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 October 12, 2021.

Continue Reading

Congratulations to our own Reeva M. Finkel and Brendan Jones for their success in Hydro One Networks Inc. v. Niagara Radio Group Inc. In that case, the Court dismissed an appeal from an order for specific performance that also involved an intervener, being the appellant’s counsel that had negotiated the contract that was specifically enforced.

In Bouchard v. Sgovio, the majority held that the motion judge properly made orders pursuant to Rule 1(8) of the Family Law Rules. The majority found that Rule 1(8) had not been interpreted as being confined to purely procedural remedies. The majority further found that nothing prevented a court from making an enforcement order in addition to, or in lieu of, a contempt order even if a contempt order was sought in the proceeding.

In Hucsko v. A.O. Smith Enterprises Limited, the Court set aside the trial decision, finding that an employer’s decision to terminate an employee’s employment was a proportional and wholly warranted response to sexual harassment.

In Tanti v. Tanti, the Court set out the test for capacity to marry:the marrying parties must understand the nature of the marriage contract and the duties and responsibilities that flow from it.

In Freeza, Brown J.A concluded his short endorsement by stating that one of the great on-going failures of the Ontario civil justice system is the confusion entrenched in the Courts of Justice Act concerning appeal routes from orders made by judges of the Superior Court of Justice. That such confusion inflicts unnecessary legal costs on parties, delays the resolution of appeals on their merits and, as this case illustrates, sows uncertainty about how a party can attempt to protect its rights pending appeal. Justice Brown called on the Ontario Legislature to enact legislation that creates an unambiguous “bright line” explaining where an appeal lies.

Lastly, for our readers who have not yet heard about it, I would like to introduce them to a new online publication, Civil Procedure & Practice in Ontario (CPPO) (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. As most of our readers probably know, CanLII is a not-for-profit organization operated by the Federation of Law Societies of Canada and is dedicated to assisting with access to justice through the free and open dissemination of the laws of Canada to all members of the public. The CPPO was written by a team of 135 leading litigators and experts in Ontario civil procedure, led by Professor Noel Semple of Windsor Law School. I had the privileged to co-author two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

CPPO will serve as a guide to Ontario’s Rules of Civil Procedure, Courts of Justice Act, and Limitations Act, and will be accessible not only to practitioners, but to members of the public. It contains not only the text of all these rules and statutory provisions, but also commentary and annotations to all the relevant case law applying and interpreting each rule and section. To access Civil Procedure & Practice in Ontario, please click here, and make sure to bookmark the site for easy access.

I would encourage all of our readers to consult CPPO in their daily practice, and to spread the word among colleagues. In addition, the authors and Professor Semple would welcome any feedback and ideas for improvement.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Burke v. Poitras, 2021 ONCA 703

Keywords: Family Law, Child Support, Spousal Support, Civil Procedure, Fresh Evidence, Costs, Palmer v. The Queen, 1980 1 SCR 759, Family Law Rules, O. Reg. 114/99, Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), Moge v. Moge, 1992 3 SCR 813

2619506 Ontario Inc., v. 2082100 Ontario Inc., 2021 ONCA 702

Keywords: Contracts, Franchise Agreements, Franchise Law, Rescission, Informed Investor Test, Definition of Franchisors Associate, Civil Procedure, Summary Judgment, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3, ss. 1(1), 6(2), 6(6), Raibex Canada Ltd. v. ASWR Franchising Corp., 2018 ONCA 62, Housen v. Nikolaisen, 2002 SCC 33, 2122994 Ontario Inc. v. Lettieri, 2016 ONSC 6209, Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673, Mendoza v. Active Tire & Auto Inc., 2017 ONCA 471, 6792341 Canada Inc. v. Dollar It Limited, 2009 ONCA 385, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87

Tomek v. Zabukovec, 2021 ONCA 723

Keywords: Wills and Estates, Unjust Enrichment, Proprietary Estoppel, Remedies, Vesting Orders, Civil Procedure, Costs, Cowper-Smith v. Morgan, 2017 SCC 61, Wall v. Shaw, 2019 ONCA 929

Bouchard v. Sgovio, 2021 ONCA 709

Keywords: Family Law, Custody and Access, Civil Procedure, Orders, Breach, Enforcement, Variation, Contempt, Children’s Law Reform Act, R.S.O 1990, c. C.12, ss. 20-29, s. 35, s. 36, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15, s. 16, s. 17, Family Law Rules, O. Reg. 114/99, Rules 1(8), 15 and 31, Hughes v. Hughes, (2007), 85 O.R. (3d) 505, Mullin v. Sherlock, 2018 ONCA 1063, Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208, Freedman v. Freedman, 2020 ONSC 301, Shouldice v. Shouldice, 2016 ONSC 1481, Sadlier v. Carey, 2015 ONSC 3537, Mantella v. Mantella, 2009 ONCA 194, Hefkey v. Hefkey, 2013 ONCA 44, Prescott-Russell Services for Children and Adults v. G. (N.), [2006] 82 O.R. (3d) 686 (Ont. C.A.), Chan v. Town, 2013 ONCA 478, Murano v. Murano (2002), 219 D.L.R. (4th) 334 (Ont. C.A.), Van de Perre v. Edwards, 2001 SCC 60, A.M. v C.H., 2019 ONCA 764, Slaughter v. Slaughter, 2013 ONCA 432, A.P. v. L.K., 2021 ONSC 150, X. v. Y., 2016 ONSC 4333, J.C.W. v. J.K.R.W., 2014 BCSC 488, E.T. v. L.D., 2018 ONSC 5132, M.L.S. v. N.E.D., 2017 SKQB 183, Belcourt v. Charlebois, 2020 ONSC 4124

Tanti v. Tanti, 2021 ONCA 717

Keywords: Family Law, Domestic Contracts, Validity, Capacity, Civil Procedure, Evidence, Experts, Cross-examination, Procedural and Natural Justice, Right to be Heard, Reasonable Apprehension of Bias, Tanti v. Tanti, 2021 ONCA 607, Hunt v. Worrod, 2017 ONSC 7397, Re McElroy, [1978] 2 O.R. (2d) 381 (Surr. Ct. J.), Reynolds v. Reynolds, 1966 CanLII 687 (B.C.S.C.), Chertkow v. Feinstein, 1929 CanLII 513 (AB CA), Lacey v. Lacey (Public Trustee of), [1983] B.C.J. No. 1016 (S.C.), Ross-Scott v. Potvin, 2014 BCSC 435, Knox v. Burton (2004), 6 E.T.R. (3d) 285, aff’d 14 E.T.R. (3d) 27, Costantino v. Costantino, 2016 ONSC 7279, Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 (Ont. S.C.), Kostopoulos v. Jesshope, 1985 CanLII 2047 (ON CA), leave to appeal refused [1985] S.C.C.A. No. 93, Heron Bay Investments Ltd. v. Canada, 2010 FCA 203, Kimberly Whaley et al., Capacity to Marry, (Aurora: Cartwright Group, 2010), “The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity” (2020) Can J Psychiatry 1

Hydro One Networks Inc. v. Niagara Radio Group Inc., 2021 ONCA 719

Keywords: Contracts, Real Property, Easement Agreements, Solicitor and Client, Remedies, Specific Performance, Civil Procedure, Interveners, Substantial Indemnity Costs, Rules of Civil Procedure, Rule 13.01

1476335 Ontario Inc. v. Frezza, 2021 ONCA 732

Keywords: Real Property, Constructive Trust, Fraudulent Conveyances, Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Certificate Pending Litigation, Adjournments, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2)

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 722

Keywords: Civil Procedure, Contempt, Sentencing, Striking Pleadings, Default Judgment, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140(5), Rules of Civil Procedure, Rules 1.04, 30.02, 30.11, 60.11, 60.12, Falcon Lumber Limited. v. 24803375 Ontario Inc., 2019 ONSC 4280, aff’d 2020 ONCA 310, Boily v. Carleton Condominium, 2014 ONCA 574, SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, iTrade Finance Inc. v. Webworx Inc., (2005) 255 D.L.R. (4th) 748 (Ont. S.C.J.), Paul Magder Furs Ltd. v. Ontario (Attorney General), 6 O.R. (3d) 188 (Ont. C.A.), Dickie v. Dickie, 2006 CanLII 576 (ON CA), Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310

Hucsko v. A.O. Smith Enterprises Limited , 2021 ONCA 722

Keywords: Employment Law, Wrongful Dismissal, Just Cause, Sexual Harassment, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McKinley v. BC Tel, [2001] 2 S.C.R. 161, Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Sexual Harassment in the Workplace, 3rd ed. (Toronto: Butterworths, 2000)

Short Civil Decisions

RE/MAX Realtron Realty Inc. v. 2458313 Ontario Inc., 2021 ONCA 714

Keywords: Contracts, Breach, Real Property, Real Estate Brokers, Representation Agreements, Corporate Veil, Civil Procedure, Summary Judgment, Yaiguaje v. Chevron Corp., 2018 ONCA 472, leave to appeal refused, [2018] S.C.C.A. No. 255

Khan v. 1806700 Ontario Inc., 2021 ONCA 724

Keywords: Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Machado v. Ontario Hockey Association, 2019 ONCA 210

M.E. v. Ontario, 2021 ONCA 718

Keywords: Family Law, Child Protection, Civil Procedure, Appeals, Abuse of Process, Child, Youth and Family Services Act, 2017, ss. 87(8), 87(9), Child, Youth and Services Act, 2017, s. 142(3), Rules of Civil Procedure, Rule 2.1.01, Atlas Construction Inc. v. Brownstones Ltd., (1996), 46 C.P.C. (3d) 67 (Ont. Gen. Div.), Bryson v. Kerr, (1976), 13 O.R. (2d) 672 (Ont. Div. Ct.)


CIVIL DECISIONS

Burke v. Poitras, 2021 ONCA 703

[Rouleau, Hoy and Thorburn JJ.A.]

Counsel:

G.S. Campbell, for the appellant
J. Wilcox, for the respondent

Keywords: Family Law, Child Support, Spousal Support, Civil Procedure, Fresh Evidence, Costs, Palmer v. The Queen, 1980 1 SCR 759, Family Law Rules, O. Reg. 114/99, Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), Moge v. Moge, 1992 3 SCR 813

facts:

The parties were married for 13 years and separated in 2014 after the respondent left the matrimonial home due to the appellant’s abusive conduct. The parties have three children and the oldest lives primarily with the appellant and the parties share parenting time with the two younger children. The appellant repeatedly failed to respect his disclosure obligations and failed to comply with court orders requiring financial disclosure to the respondent. As a result, the appellant’s answer was struck. Except in relation to the issues of decision-making responsibility and parenting time, the decision to strike the appellant’s answer was confirmed by the Court in Burke v. Poitras, 2018 ONCA 1025. The matter proceeded as an uncontested trial.

The trial judge awarded the respondent child and spousal support including substantial arrears, an equalization payment and exclusive possession of the matrimonial home, together with other relief. The trial judge also ordered that the appellant not be permitted to proceed with any future motions pertaining to the issues in the present litigation without leave of the court.

issues:

(1) Can the appellant file fresh evidence?
(2) Did the trial judge err in failing to conduct an independent inquiry into the appellant’s trial participation rights?
(3) Did the trial judge err in failing to scrutinize the respondent’s evidence on a standard of balance of probabilities?
(4) Did the trial judge err by ordering spousal support to the respondent for an indefinite period of time and not providing for review?
(5) Did the trial judge err in awarding costs against the appellant?

holding:

Appeal dismissed.

reasoning:

(1) No.

The appellant sought to introduce the affidavit of a chartered accountant whose firm had provided accounting services to the appellant and his businesses for over a decade. The information contained in the proposed fresh evidence could, with due diligence, have been adduced at trial. It did not meet the test to introduce fresh evidence.

(2) No.

The appellant argued that the trial was unfair, as he was provided with no opportunity to participate. Although he was not allowed to participate, the appellant was present throughout the trial. The appellant did not move to vary the order and, given his disruptive conduct over the course of the trial and his continued refusal to comply with the disclosure orders, there was no basis to do so.

(3) No.

The appellant argued that the trial judge simply accepted the evidence tendered by the respondent at trial without analysis or scrutiny. The respondent’s accounting expert was quite clear as to when and on what basis he made assumptions as to the appellant’s income and expenses. The trial judge explained why she accepted the expert’s evidence and the basis for her findings. The judge’s conclusions were reasonable and there was no basis to interfere.

(4) No.

The trial judge considered the principles in Moge v. Moge, [1992] 3 S.C.R. 813, and determined that support on a compensatory basis was appropriate in the circumstances. She saw no reason to depart from the number generated from the SSAGs and noted that the marriage resulted in significant economic advantages to the appellant. “Indefinite” support means that the duration is not specified and does not necessarily mean permanent. The trial judge’s findings were owed deference on appeal and there was no basis to interfere.

(5) No.

There were detailed reasons for the award accounting for the appellant’s conduct, including the breach of disclosure orders. The appellant had not demonstrated any error in the trial judge’s exercise of discretion. The amount of costs sought by the respondent was just and proportionate.


2619506 Ontario Inc., v. 2082100 Ontario Inc., 2021 ONCA 702

[Lauwers, Harvison Young and Sossin JJ.A.]

Counsel:

M. Diegel, for the appellants
A. Hora, for the respondent

Keywords: Contracts, Franchise Agreements, Franchise Law, Rescission, Informed Investor Test, Definition of Franchisors Associate, Civil Procedure, Summary Judgment, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3, ss. 1(1), 6(2), 6(6), Raibex Canada Ltd. v. ASWR Franchising Corp., 2018 ONCA 62, Housen v. Nikolaisen, 2002 SCC 33, 2122994 Ontario Inc. v. Lettieri, 2016 ONSC 6209, Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673, Mendoza v. Active Tire & Auto Inc., 2017 ONCA 471, 6792341 Canada Inc. v. Dollar It Limited, 2009 ONCA 385, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87

facts:

The appellants and the respondent executed a franchise agreement in May 2018 pursuant to which the respondent 2619506 Ontario Inc, through its president, became a franchisee of the franchisor’s “Fit for Life” chain of quick service restaurants. After they began operating, they found that the sales were much lower than expected. By May 2019, the respondent had served a notice of rescission of the franchise agreement.

In granting summary judgment in favour of the respondent, the motion judge concluded that the respondent’s notice of rescission was effective to rescind its franchise agreement with the appellants. The motion judge held that the financial disclosure document (FDD) the appellants provided was so deficient that it amounted to no disclosure at all pursuant to s. 6(2) of the Arthur Wishart Act (Franchise Disclosure). The motion judge also found that both Mr. D and Mr. A met the definition of franchisor’s associates under s.1(1) the Act, and that they were jointly and severally liable for damages pursuant to s. 6(6).

issues:

(1) Did the motion judge misapply the “informed investment decision test” in finding that the deficiencies in the disclosure document amounted to the absence of disclosure, thus allowing rescission pursuant to s. 6(2) of the Act within two years?
(2) Did the motion judge err in finding that the appellants were “franchisor’s associates” pursuant to ss.1(1) and 6(6) of the Act?
(3) Did the motion judge err in imposing joint and several liability upon both Mr. D and Mr. A?
(4) Did the motion judge err in determining this matter on a motion for summary judgment?

holding:

Appeal dismissed.

reasoning:

(1) No.

This was a question of mixed law and fact, thus attracting the standard of palpable and overriding error. The motion judge concisely and accurately set out the considerations to be taken into account and applied those to the facts before her in reaching the conclusion that the FDD was so deficient as to amount to no disclosure at all. She began by observing that the Court has repeatedly emphasized that the Act is intended to redress the imbalance of power between franchisors and franchisees, and that it does so by imposing rigorous disclosure obligations on franchisors, with strict penalties for non-compliance. It has been recognized that a disclosure document may be so deficient as to effectively amount to no disclosure, thereby permitting rescission under s. 6(2). Financial disclosure is of the utmost importance in enabling a prospective franchisee to make a properly informed investment decision. With that said, in this case, contrary to a clear requirement in the applicable regulation for the franchisor to include a 2017 financial statement, the only financial information that was provided were unaudited 2016 financial statements.

(2) No.

As the sole director and shareholder, as well as the president and CEO of the franchisor, Mr. D directly controlled the franchisor and clearly fell within section 6(6)(a)(i) of the Act as a person who controlled the franchisor. As the person who signed the FDD disclosure certificate, he was “directly involved in the grant of the franchise”, falling within the conjunctive provision of (b)(i)(A).

Mr. A met the first part of the definition as he was “controlled by another person who also controls directly or indirectly the franchisor”, that is Mr. D. This was evidenced through the appellants’ own documents. The franchisor’s organizational chart, and Mr. A’s e-mail signature which identified him as the Director of Franchising and Development for the D Group of companies, which included Fit for Life. Although the D Group was not itself a corporation, Mr. D was the head of the D Group and owned all the D Group of companies. Mr. A also met the second part of the definition in clause (b)(i)(B) because he made “representations to the prospective franchisee on behalf of the franchisor for the purpose of granting the franchise, marketing the franchise or otherwise offering to grant the franchise.”

(3) No.

There was no suggestion before the motion judge that liability for damages should be imposed on any basis other than joint and several liability.

(4) No.

There were no genuine issues that required a trial. While the parties did not agree on all factual matters, there were no disputes regarding the primary facts upon which the issues were decided.


Tomek v. Zabukovec, 2021 ONCA 723

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

D. Nolan and H. McKinnon, for the appellant
R. Sleightholm, for the respondent, Ms. T.
W.R. Milliken, for the respondent, Mr. Z.

Keywords: Wills and Estates, Unjust Enrichment, Proprietary Estoppel, Remedies, Vesting Orders, Civil Procedure, Costs, Cowper-Smith v. Morgan, 2017 SCC 61, Wall v. Shaw, 2019 ONCA 929

facts:

The appeal concerned a 15-acre parcel of land (the “Property”) registered in the name of Mr. Z. Sr. Mr. Z. Sr.’s plan was to sever the Property into lots and sell the lots for new home construction. Despite this plan, Mr. Z. Sr. invited his son, Mr. Z., to build a house on a section of the Property (the “House Lot”).

Mr. Z. and his wife, Ms. T., began constructing a house on the House Lot. They moved into the house in 1989 and finished the house over the years using their own funds. Mr. Z. Sr. treated the house as the property of Mr. Z. and Ms. T. and had no input into the design of the home. Mr. Z. Sr. applied to formally sever the House Lot from the Property, with the intention of conveying it to Mr. Z. However, Mr. Z. Sr. was forced to withdraw his application after discovering that severance was not available. Mr. Z. accepted that the House Lot would not be conveyed to him during Mr. Z. Sr.’s lifetime but hoped he would formally receive title in Mr. Z. Sr.’s will. However, Mr. Z. Sr. died intestate in 2004. After Mr. Z. Sr.’s death, Mr. Z. and Ms. T. continued to reside in the house, pay taxes, and make improvements with the full knowledge of Mr. Z. Sr.’s widow.

In 2011, Mr. Z. and Ms. T separated. The only significant remaining issue from their separation was the ownership of the Property. Mr. Z. and Ms. T. argued that there was an agreement between Mr. Z. Sr. and themselves regarding the conveyance of the land and Mr. Z. and Ms. T. had a beneficial interest in the Property through unjust enrichment and proprietary estoppel.

The trial judge ruled in favour of Mr. Z and Ms. T, finding that Mr. Z. Sr.’s estate (the “Estate”) had been unjustly enriched with respect to the house’s construction, improvement, and maintenance, but not with the respect to the remainder of the property. The trial judge also found that Mr. Z. had successfully made out the elements of proprietary estoppel. Regarding the remedy, the trial judge relied on expert evidence to find that the value of the Property, based on a cost approach that valued the land and house separately, was $813,000. The trial judge granted Mr. Z. and Ms. T. joint beneficial ownership of 75% of the property. The Estate appealed.

issues:

(1) Was the trial judge’s remedy appropriate?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The Court was not persuaded that it should interfere with the trial judge’s order. The Estate’s appeal was restricted to the appropriateness of the trial judge’s remedy. Specifically, it argued that the trial judge erred regarding the value of the land and failed to consider the contribution Joseph Sr. made to the construction of the house.

The Court agreed that the trial judge erred in her consideration of the land value, and that this impacted the amount by which the Estate was unjustly enriched. A similar argument could also be made regarding the work contribution of Mr. Z. Sr. However, the Court was not persuaded that it should interfere with the order that was made by the trial judge. The difficulty with the Estate’s argument was that it ignored the available remedies where the elements of proprietary estoppel have been proven.

The Court cited Cowper-Smith v. Morgan and held that “where a claimant has established proprietary estoppel, the court has considerable discretion in crafting a remedy that suits the circumstances.” Further, “an appellate court should not interfere unless the trial judge’s decision evinces an error in principle or is plainly wrong.”

The Court held that while a trial judge does not have unfettered authority in crafting an equitable remedy, the trial judge’s remedy in this case was appropriate. There was ample evidence to establish that it was always the intention of the parties that Mr. Z. and Ms. T. would receive both the House Lot and the house. The order of the trial judge was entirely consistent with that intended result. The order awarded them the value of the house and the House Lot. Thus, in the Court’s view, it was a just and equitable result in the circumstances and there was no basis for the Court to interfere with that order.


Bouchard v. Sgovio, 2021 ONCA 709

[Pardu, Paciocco and Nordheimer JJ.A.]

Counsel:

J. P. Schuman and K. Bell, counsel for the appellant
B. J.R. Hall, counsel for the respondent

Keywords: Family Law, Custody and Access, Civil Procedure, Orders, Breach, Enforcement, Variation, Contempt, Children’s Law Reform Act, R.S.O 1990, c. C.12, ss. 20-29, s. 35, s. 36, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15, s. 16, s. 17, Family Law Rules, O. Reg. 114/99, Rules 1(8), 15 and 31, Hughes v. Hughes, (2007), 85 O.R. (3d) 505, Mullin v. Sherlock, 2018 ONCA 1063, Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208, Freedman v. Freedman, 2020 ONSC 301, Shouldice v. Shouldice, 2016 ONSC 1481, Sadlier v. Carey, 2015 ONSC 3537, Mantella v. Mantella, 2009 ONCA 194, Hefkey v. Hefkey, 2013 ONCA 44, Prescott-Russell Services for Children and Adults v. G. (N.), [2006] 82 O.R. (3d) 686 (Ont. C.A.), Chan v. Town, 2013 ONCA 478, Murano v. Murano (2002), 219 D.L.R. (4th) 334 (Ont. C.A.), Van de Perre v. Edwards, 2001 SCC 60, A.M. v C.H., 2019 ONCA 764, Slaughter v. Slaughter, 2013 ONCA 432, A.P. v. L.K., 2021 ONSC 150, X. v. Y., 2016 ONSC 4333, J.C.W. v. J.K.R.W., 2014 BCSC 488, E.T. v. L.D., 2018 ONSC 5132, M.L.S. v. N.E.D., 2017 SKQB 183, Belcourt v. Charlebois, 2020 ONSC 4124

facts:

The parties in this matter have two children, T.B., a son, and S.B., a daughter. On June 26, 2019, the parties entered into a Parenting Agreement that was made into a final order on consent (the “Leef Order”).

On August 18, 2018, the respondent brought a notice of motion seeking relief arising from the appellant’s alleged noncompliance with the Leef Order. On October 23, 2019, Hughes J. released her decision on this motion (the “Hughes Order”). The motion judge found that, consistent with past practice, the repeated breaches of the shared parenting schedule in the Leef Order began the day after an unsuccessful property settlement conference had been held.

As a result of her findings, the motion judge ordered the father to pay a global fine of $18,000 to the mother, which she itemized between the several breaches of the Leef Order that she had identified. When she made the Hughes Order, the motion judge adjourned the matter to November 1, 2019, for a compliance hearing. That adjournment date was subsequently postponed to December 18, 2019.

On December 4, 2019, the respondent brought a Form 14 Amended Notice of Motion seeking, among other things, an order that “Mills Psychology shall conduct reintegration therapy” between the respondent and T.B. The parties settled the respondent’s December 4, 2019 motion and on December 18, 2019, McGee J. made a temporary consent order directing that the respondent’s care of T.B. was to resume, and that T.B. attend counselling with J.P. and N.B. (the “McGee Order”). The motion was further adjourned to April 17, 2020 to permit T.B.’s progress in therapy to be monitored. Due to the COVID-19 pandemic, the motion was further adjourned to September 28, 2020, where it was ultimately heard by Hughes J.

The motion judge released her decision on February 9, 2021. In her endorsement, she rejected the father’s challenge to her jurisdiction to make the orders sought, noting that this was a compliance matter, not a contempt matter. The motion judge concluded that it was necessary to order that the children be enrolled in the Family Bridges program, that a temporary parenting order relating to T.B. and S.B. be given to the mother for the period of time the children are enrolled in the Family Bridges program, and that steps be taken to “prevent the [father] from sabotaging the program” by controlling “his contact with the children until his involvement is required by the leaders of the [Family Bridges] program”. The appellant appealed the February 9, 2021 order.

issues:

(1) Did the motion judge commit jurisdictional error by making the orders that she did?
(2) Did the motion judge err by failing to consider fully the best interests of the children or by making the orders that she did with insufficient evidence?
(3) Did the motion judge err in making the retraining order?

holding:

Appeal dismissed.

reasoning:

Paciocco J.A. for the Majority (Pardu J.A. concurring):

(1) No.

The Court held the motion judge properly made the orders pursuant to r. 1(8) of the Family Law Rules. Specifically, the court noted that even though, with the exception of r. 1(8)(g), each of the itemized forms of relief in r. 1(8) could be described as purely procedural, r. 1(8) had not been interpreted as being confined to purely procedural remedies.

The court rejected the appellant’s contention that r. 1(8) could not be used to make parenting orders. Specifically, the court outlined the motion judge did not purport to vary the parenting terms contained in the Leef Order. Rather, the motion judge imposed an order that temporarily reassigned parenting rights to facilitate a therapeutic process that was ordered to enable the enforcement of the parenting terms set out in the Leef Order. Put otherwise, the order made by the motion judge did not vary or replace the Leef Order – it was made to facilitate the Leef Order.

Further, the Court rejected the appellant’s arguments that (1) the motion judge erred in making a r. 1(8) order in a contempt hearing; and (2) the motion judge erred by using a parenting order as a punishment for contempt.

Regarding the first argument, the court noted there was no clean division between contempt hearings and enforcement hearings, and that nothing prevented a court from making an enforcement order in addition to, or in lieu of, a contempt order even if a contempt order was sought in the proceedings. Further, the court noted contempt was not in issue at the hearing where the impugned order was made, rather, the motion judge arranged the hearing for the express purpose of monitoring compliance.

Regarding the second argument, the Court rejected the appellant’s contention that the motion judge used a parenting order as punishment for contempt. Specifically, the motion judge created a temporary order to facilitate therapy, not to punish the appellant.

(2) No.

The Court considered three discrete objections raised by the appellant in rejecting the appellant’s argument that the motion judge erred by failing to consider fully the best interests of the children, or by making the orders that she did with insufficient evidence: (1) The appellant’s contention that the motion judge should not have made a finding of alienation without expert evidence or the s. 30 Children’s Law Reform Act assessment that he had requested; (2) The appellant’s submission that the motion judge should not have made the findings or imposed the orders that she did without a voice of the child report from T.B.; and (3) The appellant’s contention that the motion judge misapprehended or ignored the evidence that the father had relied upon.

Specifically, the Court found it was “patent” that the motion judge fully considered whether the orders she was making were in T.B.’s best interest. Although the motion judge failed to mention listed factors under s.24(2), the Court held that this was only an error if there was an indication that the judge failed to consider them. In the Court’s view, there was no basis for concluding the motion judge failed to consider the material factors.

The Court also rejected the appellant’s contention that the motion judge lacked the evidence required to decide that the orders she made were in T.B.’s best interest. The Court held there was evidence before the motion judge supporting each of her findings about the failure of the father to comply with the Leef Order. Specifically, when she made the Hughes Order, the motion judge had a foundation from the father’s own documentation that he had communicated with T.B. about legal issues he was having with T.B.’s mother and that the father did so destructively, damaging T.B.’s relationship with his mother. The evidence suggested that these conversations were the onset of T.B.’s estrangement from his mother and that they occurred after a failed settlement conference. Accordingly, the motion judge was entitled to draw the inference that the father promoted the breach in T.B.’s relationship with his mother for the purpose of pressuring the mother to settle their legal claim to his satisfaction.

The Court also noted that alienation is not a psychiatric diagnosis that invariably requires expert evidence, but a factual finding about what happened in the family. In this case, the Court held the factual evidence of alienation was adequate without expert evidence. Accordingly, the Court found the motion judge did not err in denying the father’s request for an assessment by an expert in parental alienation under s. 30 of the Children’s Law Reform Act.

Regarding the voice of the child report, the Court noted that where a child has been poisoned against a parent and their wishes are not independent because they have been manipulated, a judge is entitled to give a child’s views no weight. The Court found there was evidence that, in the motion judge’s assessment, T.B.’s views would not be independent and could carry little if any weight. Further, the Court held T.B.’s views were already well known at the time of the hearing based on the evidence before the motion judge. Accordingly, the Court held it was not an error for the motion judge to proceed without a voice of the child report in the circumstances.

Further, the Court found there was no basis for concluding the motion judge misapprehended the evidence or failed to consider the evidence the father was relying upon to dispute the alienation claim.

Although the appellant did not object or make it a ground of appeal, the Court addressed the fact that the motion judge made the order that she did despite the respondent not filing a Form 35.1 sworn parenting affidavit, which are required where parenting rights are sought in r. 8 applications. The Court concluded it did not need to decide whether a Form 35.1 sworn parenting affidavits are technically required to secure an enforcement order that touches on parenting rights, however, the mother would have been well advised to include such an affidavit given the nature of the relief she was requesting. Nevertheless, the Court held the motion judge had a clear indication of the parenting plan during the period covered by the order, and the inquiry into the best interests of the children in this case was narrow. Accordingly, in the absence of any objection, it was not unreasonable for the motion judge to proceed in the absence of a Form 35.1 sworn parenting affidavit.

The Court also considered whether there was a proper evidentiary basis for the motion judge’s decision that it was in T.B.’s best interest to attend the Building Bridges program and be removed from the appellant for a temporary period of time as required by the program. In the Court’s view, the motion judge acted on the evidence before her, and although a better evidentiary foundation could easily be imagined, the evidence before her was sufficient.

Finally, in addressing the motion judge’s inclusion of S.B. in the orders, the court concluded that although the motion judge should have been more explicit in addressing S.B.’s best interests, the motion judge did not fail to consider S.B.’s best interests.

(3) No.

Based on fresh evidence the Court admitted with the respondent’s consent, the Court ordered that the order “restraining the father from attending at the children’s school or within 1000 meters of specific locations is varied to provide that the appellant may attend at the school that is his workplace and may communicate there with a child of the marriage who attends that school”. Further, based on evidence that the boundary order relating to the Durham Children’s Aid Society Offices frustrated the father’s travel to work, the Court further varied the order “to provide that he may pass within 1000 meters of the Durham Children’s Aid Society offices when travelling from one location to another”.

The Court refused to interfere with the restraining order beyond the variations already ordered and rejected the appellant’s contention that the respondent did not seek a restraining order in her pleadings. Specifically, although the respondent did not use the specific language of s. 35 of the Children’s Law Reform Act, the respondent asked for a temporary order that the appellant have no direct or indirect contact with the respondent and the children.

Nordheimer J.A. (dissenting):

Nordheimer J.A. concluded the motion judge lacked jurisdiction to make the “enforcement order” and, accordingly, would have set aside the order.

A. Jurisdiction

Nordheimer J.A. held that the fundamental error committed by the motion judge was that she failed to consider and address her jurisdiction to make the final order she did. Specifically, Nordheimer J.A. conceded the general and broad nature of the introductory language in r. 1(8), which grants the court authority to make “any order that it considers necessary for a just determination of the matter” in the face of non-compliance with a previous court order. However, Nordheimer J.A. held that the broad language did not provide the court with a carte blanche to make any order it wished. Rather, the itemized list of suggested orders in r. 1(8), while non-exhaustive, indicated the kind of orders that could be appropriately made, the vast majority of which are procedural in nature.

Nordheimer J.A. also identified two problems in the motion judge’s analysis. First, the motion judge’s conclusion that time was of the essence. Second, the lack of evidence before the court that the proposed intensive intervention through the Family Bridges program was suitable for the children at the time.

Nordheimer J.A held that before a judge decides to order the type of serious intervention that was made in this case, there must be comprehensive and cogent evidence regarding the program placed before the court. Specifically, the required evidence should be of a nature similar to what a court would expect to receive from an expert, who is recommending a certain course of remedial action or treatment. No such evidence was before the court in this case. Accordingly, there was no opportunity for the appellant to challenge any such evidence. Therefore, Nordheimer J.A. held the motion judge erred in making such an intrusive order in the absence of a proper evidentiary foundation.

Nordheimer J.A. concluded by stating there are established procedures that are required to be followed to obtain specific relief, such as the variation of a final order, and that taking shortcuts to those procedures simply to benefit the alleged aggrieved party, by attempting to expedite some form of relief, must not be permitted. In sum, if a party seeks a variation, or a motion judge wishes to grant a variation, then the proper procedure must be followed. It was not followed in this case.

B. Terms of the Order

Even if the jurisdiction issue could be overcome, Nordheimer J.A. identified there were problems with some of the individual terms of the order.

First, the order contained a paragraph relying on s. 36(2) of the Children’s Law Reform Act permitting the police to enter into any dwelling at any time to locate, apprehend, and return the children. Nordheimer J.A. noted that the requirement of s. 36(2) was that there be “reasonable and probably grounds” and concluded the evidence in this case did not rise to that level. Accordingly, this term should not have been in the order.

Second, Nordheimer J.A. concluded there was no jurisdiction for the imposition of penalties included in the order absent a motion for contempt being brought.

Third, Nordheimer J.A. held that no one asked the motion judge to make a restraining order, and he specifically rejected the majority’s equating of the language in the respondent’s pleadings to a request for a restraining order.

Consequently, Nordheimer J.A. would have allowed the appeal, set aside the order of the motion judge, and dismissed the respondent’s motion.


Tanti v. Tanti, 2021 ONCA 717

[Lauwers, Harvison Young and Sossin JJ.A.]

Counsel:

K. Scullion, for the appellant, Mr. R.T.
M.Z. Tufman, G. Tufman, and J. Nwawe, for the respondent, Ms. J.
M.K. Kinch, for the respondent, Mr. P.T.

Keywords:Family Law, Domestic Contracts, Validity, Capacity, Civil Procedure, Evidence, Experts, Cross-examination, Procedural and Natural Justice, Right to be Heard, Reasonable Apprehension of Bias, Tanti v. Tanti, 2021 ONCA 607, Hunt v. Worrod, 2017 ONSC 7397, Re McElroy, [1978] 2 O.R. (2d) 381 (Surr. Ct. J.), Reynolds v. Reynolds, 1966 CanLII 687 (B.C.S.C.), Chertkow v. Feinstein, 1929 CanLII 513 (AB CA), Lacey v. Lacey (Public Trustee of), [1983] B.C.J. No. 1016 (S.C.), Ross-Scott v. Potvin, 2014 BCSC 435, Knox v. Burton (2004), 6 E.T.R. (3d) 285, aff’d 14 E.T.R. (3d) 27, Costantino v. Costantino, 2016 ONSC 7279, Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 (Ont. S.C.), Kostopoulos v. Jesshope, 1985 CanLII 2047 (ON CA), leave to appeal refused [1985] S.C.C.A. No. 93, Heron Bay Investments Ltd. v. Canada, 2010 FCA 203, Kimberly Whaley et al., Capacity to Marry, (Aurora: Cartwright Group, 2010), “The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity” (2020) Can J Psychiatry 1

facts:

Mr. P.T. and Ms. J. were married on July 27, 2019. On September 12, 2019, Mr. P.T.’s son, Mr. R.T., sought a guardianship order with respect to Mr. P.T.’s property and person. Mr. R.T. was granted the order on the basis that Mr. P.T. was incapable of personal care and managing property. Ms. J. subsequently brought a motion to set aside the guardianship order.

On July 31, 2020, Justice Shaw ordered that Ms. J. be added as a party to the guardianship proceeding and ordered that the issue of the validity of the marriage be determined as a threshold issue in the application. On December 22, 2020, Justice Mandhane determined that the marriage was valid. On May 27, 2021, Justice Timble granted a stay of the guardianship proceeding pending disposition of the appeal of Justice Mandhane’s order. Ms. J. attempted to appeal Justice Timble’s order and brought a motion to expedite the appeal. On July 13, 2021, Justice Benotto dismissed Ms. J.’s motion and held that Justice Timble’s order was procedural and interlocutory and that no appeal lay to the Court of Appeal. A panel of the Court upheld Justice Benotto’s decision.

The issue on this appeal was Justice Mandhane’s decision on the validity of the marriage. The trial judge applied the test in Chertkow v. Feinstein for capacity to enter into a marriage: the parties must understand the nature of the marriage contract, and the duties and responsibilities that flow from it. The trial judge found that Mr. P.T. possessed the requisite capacity to marry. There was no persuasive evidence that, at the time of marriage, Mr. P.T.’s cognitive status had diminished to the point that he was unable to make decisions regarding his day-to-day affairs or living arrangements. The trial judge also held that whether Ms. J. stood to benefit financially from the marriage was irrelevant to the question of validity in the absence of evidence of duress. In reaching her decision, the trial judge rejected and/or discounted the evidence of several experts and, instead, relied on the direct evidence of a lawyer Mr. P.T. consulted at the time of the marriage.

issues:

(1) Did the trial judge apply the wrong test to determine Mr. P.T.’s capacity to marry?
(2) Did the trial judge err in relying on her own research without allowing the parties to make submissions on the point?
(3) Did the trial judge err in failing to accept certain expert evidence?
(4) Did the trial judge err in accepting the evidence of a lay witness without permitting meaningful cross-examination?
(5) Did the trial judge demonstrate a reasonable apprehension of bias necessitating a new trial?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court found that the trial judge applied the correct test for capacity to marry. The Court held that for a marriage to be valid, the parties must understand the nature of the marriage contract and the duties and responsibilities that flow from it. The trial judge found that Mr. P.T. met this test.

(2) No.

The Court found that the trial judge did not err by considering authorities not raised by the parties. The Court cited Heron Bay Investments Ltd. v. Canada and held that it is not inappropriate for a judge to consider relevant authorities, regardless of whether they were raised by the parties. Additionally, the Court found that there was no indication that the trial judge only relied on such sources or failed to consider the authorities raised by the parties along with her own research.

(3) No.

The Court found that the trial judge did not err by rejecting the expert evidence. The trial judge provided a cogent explanation for why she was not persuaded by the expert evidence. The expert evidence was not contemporaneous with the marriage. Thus, the trial judge did not exercise her discretion arbitrarily or capriciously.

(4) No.

The Court found that the trial judge did not err in accepting direct evidence of a witness absent meaningful cross-examination. The trial judge only prevented cross-examination on matters subject to solicitor-client privilege.

(5) No.

The Court found that the trial judge was not biased. The trial judge simply found no evidence suggesting that Mr. P.T.’s cognition was diminished to the extent that he did not have the capacity to marry.


Hydro One Networks Inc. v. Niagara Radio Group Inc., 2021 ONCA 719

[Hourigan, Huscroft and Coroza JJ.A]

Counsel:

A. McBride and D. Michaud-Shields, for the appellants
Reeva M. Finkel and Brendan Jones, for the respondent Hydro One Networks Inc.
C. Linthwaite, for the respondent Scargall Owen-King LLP

Keywords: Contracts, Real Property, Easement Agreements, Solicitor and Client, Remedies, Specific Performance, Civil Procedure, Interveners, Substantial Indemnity Costs, Rules of Civil Procedure, Rule 13.01

facts:

The corporate appellants own land in the Niagara region and A. F. is the directing mind of both appellant corporations. The respondent, Hydro One, has transmission assets on the land which it has maintained since 1925. Before the appellants acquired the land, Hydro One’s interest in the land was the subject of various license agreements with the previous owners. The land changed hands in 2008, and Mr. F. sent a notice of cancellation of Hydro One’s license and the parties began negotiations to resolve the issue. During negotiations, the appellants were represented by a law firm, the respondent, Scargall Owen-King, who billed their time and were never paid.

The parties executed an easement agreement which was signed by Mr. F. on April 27, 2018, whereby he provided an irrevocable direction for Hydro One to pay the legal account of the law firm, in trust, on closing. Hydro One signed the agreement on May 4, 2018, and the closing date was set for August 8, 2018, after a number of closing dates set by the parties.

Hydro One tendered on the appellants’ solicitor on August 8, 2018. The appellants refused to close and Hydro One brought an application for specific performance. The law firm was granted leave to intervene on the application. The application judge granted the application for specific performance of the easement agreement and ordered the law firm’s legal fees be paid out of the closing proceeds.

issues:

(1) Did the application judge make a palpable and overriding error in finding that the easement agreement was binding and in her interpretation of the agreement?
(2) Did the application judge err in her calculation of interest owed by Hydro One to the appellants?
(3) Did the application judge err in granting the law firm intervener status?
(4) Were the costs awarded to the respondent grossly excessive?

holding:

Appeal dismissed.

reasoning:

(1) No.

The application judge found that all essential elements of the material terms were clearly set out in the agreement. Furthermore, the appellants caused delays in closing and acted unreasonably. The application judge found the easement agreement was binding and specific performance was appropriate.

(2) No.

The application judge found that the agreed upon fixed amount for interest was $379,972.87. Evidence showed Mr. F. was advised by his counsel that any change was a “deal-breaker” and Mr. F. signed the agreement with a chart attached to the agreement which showed the amount to be paid by Hydro One on closing.

(3) No.

Rule 13.01 of the Rules of Civil Procedure permitted the application judge to grant leave to the law firm to intervene. The application judge identified the factors to consider and concluded that the law firm would bring relevant facts and submissions to the inquiry and would not cause any delay or prejudice to the proceeding.

(4) No.

The application judge correctly identified that a successful litigant is generally entitled to their costs and that interveners are not normally awarded costs. She correctly noted that the law firm had a direct interest in the outcome and had been entirely successful. The application judge’s award to the law firm of substantial indemnity costs was firmly rooted in the record because the appellants made unwarranted attacks on the moral and professional integrity of the lawyer retained to negotiate the easement agreement.


1476335 Ontario Inc. v. Frezza, 2021 ONCA 732

[Brown J.A.]

Counsel:

A. Gabriele, for the moving parties
J. McLeod, for the responding party, B.F
No one appearing for the responding parties, O.F, E.F, and J.F

Keywords:Real Property, Constructive Trust, Fraudulent Conveyances, Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Certificate Pending Litigation, Adjournments, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2)

facts:

In 2019 the moving parties commenced an action that seeks, among other things, declarations that the 2003 transfer of what are now two Bonnie Doon Road properties (the “Properties”) to the respondent, B.F, was a fraudulent conveyance and that J.F holds the former transferor’s interest in the Properties on a constructive trust for the moving parties. The action also seeks an order for the issuance of a certificate of pending litigation (“CPL”) for registration against the Properties. By order dated May 28, 2021, Aston J. dismissed the moving parties’ motion for a CPL (the “Order”).

The moving parties appealed the Order to two different courts. On the one hand, they have commenced a motion for leave to appeal the Order to the Divisional Court. At the same time, they filed a notice of appeal with the Ontario Court of Appeal. The Divisional Court has put the leave motion on hold until the Ontario Court of Appeal determines whether the Order is final or interlocutory.

issues:

(1) Should an “interim order” granting leave to issue and register a CPL against the Properties be granted to the moving parties?
(2) Should the motion be adjourned on the basis that the motion materials were not served in a timely manner?

holding:

Motion adjourned. Directions provided by the Court for rescheduled hearing.

reasoning:

(1) No.

The motion judge was not prepared to determine, in effect, the very question that the moving parties had placed before the panel.

(2)

The merits of this request were not considered. The motion judge determined that he must adjourn the motion in any event to the panel hearing the jurisdiction motion which was scheduled to be heard at a later date.

Brown J.A concluded his decision by stating that one of the great on-going failures of the Ontario civil justice system is the confusion entrenched in the Courts of Justice Act concerning appeal routes from orders made by judges of the Superior Court of Justice. Such confusion inflicts unnecessary legal costs on parties, delays the resolution of appeals on their merits and, as this case illustrated, sows uncertainty about how a party can attempt to protect its rights pending appeal. Brown J.A called on the Ontario Legislature to enact legislation that creates an unambiguous “bright line” explaining where an appeal lies.


Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 722

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

Counsel:

J. Necpal, J. H. Nasseri and J. Ng, for the appellants
B. N. Radnoff and J. Suttner, for the respondents

Keywords:Civil Procedure, Contempt, Sentencing, Striking Pleadings, Default Judgment, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140(5), Rules of Civil Procedure, Rules 1.04, 30.02, 30.11, 60.11, 60.12, Falcon Lumber Limited. v. 24803375 Ontario Inc., 2019 ONSC 4280, aff’d 2020 ONCA 310, Boily v. Carleton Condominium, 2014 ONCA 574, SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, iTrade Finance Inc. v. Webworx Inc., (2005) 255 D.L.R. (4th) 748 (Ont. S.C.J.), Paul Magder Furs Ltd. v. Ontario (Attorney General), 6 O.R. (3d) 188 (Ont. C.A.), Dickie v. Dickie, 2006 CanLII 576 (ON CA), Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310

facts:

In the decision under appeal, the appellants were found in contempt of court for multiple failures to disclose their assets and to account for money paid in respect of real estate investments. The appellants do not challenge the finding of contempt, but assert that the motion judge erred in granting judgment against them for some $9 million dollars, following the sentencing hearing.

The respondents alleged that the appellants misappropriated $9 million dollars of investment funds intended for real estate projects in Brampton and Richmond Hill. The respondents started an action and obtained a Mareva injunction, which required the appellants to produce an accounting for the funds, affidavits of assets, and contact information for the recipients of all funds and documents related to the real estate projects. The appellants were found in contempt after the matter was adjourned several times in an attempt to persuade the appellants to comply, without success.

issues:

(1) What factors are relevant to determining a sanction for contempt?
(2) Can an opposing party move to strike a defence or bar a defendant from participating in the proceeding as a remedy for contempt?
(3) If such a motion is brought, are the merits of the proceeding a factor in deciding whether to grant the remedy?
(4) Is judgment directly available as a sanction for contempt?
(5) What are the steps required to attempt to obtain judgment against a party in contempt?
(6) Did the motion judge err in granting judgment against the appellants?

holding:

Appeal allowed.

reasoning:

(1)

The factors relevant to the determination of the appropriate sentence for civil contempt include:

1. The proportionality of the sentence to the wrongdoing;
2. The presence of mitigating factors;
3. The presence of aggravating factors;
4. Deterrence and denunciation;
5. The similarity of sentences in like circumstances; and
6. The reasonableness of a fine or incarceration.

(2) Yes.

A statement of defence can be struck for contempt of court. Section 140(5) of the Courts of Justice Act gives the court express power to stay or dismiss a proceeding as an abuse of process. A court may also bar a defendant in contempt from filing a statement of defence. Rule 60.11 and 60.12 of the Rules of Civil Procedure both allow a court to strike a statement of defence or bar a litigant from filing a defence.

(3) Sometimes.

In determining whether to strike a pleading, there may be some analysis of the merits of the claims. Where the remedy for contempt sought is an order barring a party from defending or an order striking a pleading, some assessment of the merits may be necessary to determine whether such an order is a proportionate response to the contempt alleged. Where the contempt is less serious, is likely to be cured, and it appears that a party has a defence of substance, it would be disproportionate to bar the defendant from participating in the action.

(4) No.

Judgment is not a remedy directly available as punishment for contempt. Where a statement of defence is struck, there may follow an unopposed motion for default judgment. The Ontario Rules of Civil Procedure do not explicitly provide that judgment may be entered against a party who has failed to comply with a court order. Rule 60.12 allows a court to make any order that is just for failure to comply with an order. Final judgment in the action is not directly available as a punishment for contempt of court in Ontario. However, judgment may be an appropriate remedy against a party who is in contempt or who has failed to comply with an interim order.

(5)

When granting judgment against a party in contempt, the merits of the claim must be addressed. Where default judgement is sought by the party moving for various and alternative relief, the moving party should expect that there will be a more searching inquiry about the merits and that the respondent will be given an opportunity to respond to the merits

(6) Yes.

While a strong response was required to sanction the appellants’ contempt, they should not have been barred from making submissions as to the merits of any defence, as it was clear that the respondents were seeking final judgment on their claims. Even if the moving party had not sought judgment on the motion, but sought only to bar the appellants from defending the action because of their contempt, some skeletal review of any defence raised may have been required to assess whether they should be barred from defending the action.

In the result, the judgment was set aside and remitted to another Superior Court judge to determine the appropriate sanction to be imposed upon the appellants.


Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728

[Feldman, Harvison Young and Thorburn JJ.A.]

Counsel:

J. B. Simpson, P. Boshyk and K. Pennington, for the appellant
P. Krauss, for the respondent

Keywords:Employment Law, Wrongful Dismissal, Just Cause, Sexual Harassment, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McKinley v. BC Tel, [2001] 2 S.C.R. 161, Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Sexual Harassment in the Workplace, 3rd ed. (Toronto: Butterworths, 2000)

facts:

The appellant employer terminated the employment of the respondent employee for just cause following an investigation into a complaint made by a female co-worker, the complainant, regarding four inappropriate comments that constituted sexual harassment. Following the investigation, the respondent was offered the opportunity to take remedial action including sensitivity training, which he agreed to, and to make a direct apology to the complainant, which he refused. Following that refusal, the appellant terminated the respondent’s employment for just cause.

The trial judge’s ultimate finding was that the employee’s conduct “did not justify a conclusion that there had been an irreparable breakdown in the employment relationship.” He went on to calculate the appropriate period of notice and awarded damages in lieu of notice.

In arriving at this conclusion, the trial judge found that although the focus of the trial was about whether the employee’s comments amounted to sexual harassment, it was unnecessary for him to categorize the comments because regardless of how they were categorized, they did not justify summary dismissal. He found that it was unclear whether the employer had concluded that the employee’s conduct amounted to sexual harassment. He also found that the employee was not dismissed for sexual harassment but for “serious and wilful insubordination”, which he presumed was a reference to an apology to the complainant.

issues:

(1) Did the trial judge make a palpable and overriding error of fact by finding that the appellant did not conclude that the respondent’s four comments to the complainant amounted to sexual harassment?
(2) Did the trial judge err in law by failing to correctly apply the test for determining whether the appellant had just cause to dismiss the respondent?
(3) Did the trial judge err by failing to find that the appellant had just cause to terminate the respondent’s employment?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The trial judge made a palpable and overriding error of fact when he stated that it was unclear whether the appellant had found that the four comments constituted sexual harassment. The evidence was clear that the appellant made that finding and communicated it to the respondent, and that he understood it.

(2) Yes.

The Court examined the trial judge’s errors in the context of the three-part test for determining whether termination for cause was justified, as set out in Dowling v. Ontario (Workplace Safety & Insurance Board).

The trial judge eschewed the analysis at the first step – determining the nature and extent of the misconduct. The refusal to apologize was only part of the misconduct that the appellant had to consider when deciding whether there has been a breakdown in the employment relationship. The degree of seriousness of the misconduct that led to the discipline, and then to the dismissal, was critical to the ultimate assessment of the propriety and proportionality of the employer’s response.

The trial judge also did not adequately address the second step of the analysis, which involves considering the surrounding circumstances. He did not discuss or weigh such factors as the Workplace Harassment Policy of the employer and the recent training the respondent had undergone with respect to the Policy. He also did not consider the senior position the respondent held and the degree of trust that arose from that in the employer-employee relationship.

When it came to the third step, the trial judge’s assessment of whether dismissal was warranted by the respondent’s misconduct was tainted by his failure to consider, as part of that misconduct, the inappropriate, sexually harassing comments that the respondent made to the complainant, that were the basis for the investigation and discipline.

(3) Yes.

Faced with the respondent’s lack of contrition, lack of understanding of the seriousness of his conduct, and his refusal to comply with the reasonable and essential requirement of an apology to the complainant and target of his comments, the appellant’s decision to terminate the respondent’s employment was a proportional and wholly warranted response.


SHORT CIVIL DECISIONS

RE/MAX Realtron Realty Inc v. 2458313 Ontario Inc., 2021 ONCA 715

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

P. Starkman and C. Zhang, for the appellant
J. Goldblatt and V. Wicks, for the respondents

Keywords: Contracts, Breach, Real Property, Real Estate Brokers, Representation Agreements, Corporate Veil, Civil Procedure, Summary Judgment, Yaiguaje v. Chevron Corp., 2018 ONCA 472, leave to appeal refused, [2018] S.C.C.A. No. 255

Khan v. 1806700 Ontario Inc., 2021 ONCA 724

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

M. K., self-represented
J. S. Chahal, for the respondent, 1806700 Ontario Inc.
M. Bélanger, for the respondent, S. Joha

Keywords: Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Machado v. Ontario Hockey Association, 2019 ONCA 210

M.E. v. Ontario, 2021 ONCA 718

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

M.E., self-represented
S. Hutchison, D. Postel and Sheldon Inkol, for the respondents

Keywords:Family Law, Child Protection, Civil Procedure, Appeals, Abuse of Process, Child, Youth and Family Services Act, 2017, ss. 87(8), 87(9), Child, Youth and Services Act, 2017, s. 142(3), Rules of Civil Procedure, Rule 2.1.01, Atlas Construction Inc. v. Brownstones Ltd., (1996), 46 C.P.C. (3d) 67 (Ont. Gen. Div.), Bryson v. Kerr, (1976), 13 O.R. (2d) 672 (Ont. Div. Ct.)


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.

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

Good afternoon.

Please find below our summaries of the civil decisions of the Ontario Court of Appeal for the week of October 4, 2021. There were ten substantive civil decisions this week.

Continue Reading

 

N. v. F. is a child abduction case in which a stay of proceedings was granted pending leave to appeal to the Supreme Court of Canada.

In Gordon Dunk Farms Ltd. v. HFH Inc., the Court applied the Supreme Court’s recent decision on discoverability in Grant Thornton LLP v. New Brunswick, 2021 SCC 31,  in respect of a claim for damages suffered from the collapse of a barn.

Other topics covered this week included no reasonable cause of action for relational economic loss, two cases on whether a contract was entered into, striking pleadings for failure to comply with a court order, child protection, breach of contract of a commission agreement with a mortgage broker, the calculation of net family property where there is a date of marriage deduction for property brought into the marriage and the extension of time to serve a statement of claim.

Wishing everyone a happy Thanksgiving long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

N. v. F., 2021 ONCA 688

Keywords: Family Law, Custody and Access, Relocation, Child Abduction,  Civil Procedure, Conflict of Laws, Jurisdiction, Appeals, Stay Pending Appeal, Hague Convention, Convention on the Rights of the Child, Can. T.S. 1992, No. 3, Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983, No. 35, Supreme Court Act, R.S.C., 1985, c. S-26, s. 40(1), s. 65.1(1), and s. 65.1(2), Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 22, s. 23, and s. 40, N. v. F., 2021 ONCA 614, Zafar v. Saiyid, 2017 ONCA 919, Geliedan v. Radwah, 2020 ONCA 254, D.C. v. T.B., 2021 ONCA 562, K.K. v. M.M., 2021 ONCA 407, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Leis v. Leis, 2011 MBCA 109, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, J.P.B. v. C.B., 2016 ONCA 996

2460907 Ontario Inc. v. 1521476 Ontario Inc., 2021 ONCA 682

Keywords: Torts, Negligence, Duty of Care, Proximity, Pure Economic Loss, Relational Economic Loss, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21.01(1)(b), Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35

Salvatore v. Tommasini , 2021 ONCA 691

Keywords: Contracts, Interpretation, Agreements to Agree, Intention to Enter into Binding Contractual Relations, Civil Procedure, Summary Judgment, Geoff R. Hall, Canadian Contractual Interpretation Law, 3rd ed., (Toronto: LexisNexis, 2016)

Smith v. GCAT Group Inc., 2021 ONCA 700

Keywords: Civil Procedure, Orders, Enforcement, Striking Pleadings, Rules of Civil Procedure, Rule 60.12(b), Oz Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520

M. L. v. B.T., 2021 ONCA 683

Keywords: Family Law, Child Protection, Custody and Access, Indigenous Children, Office of the Children’s Lawyer, Civil Procedure, Stay Pending Appeal, Fresh Evidence, Factums, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, ss. 1, 10, Children’s Law Reform Act, R.S.O. 1990, c. C.12, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched 1, ss. 2, 74(3), 80, 101(3), 102, 116(1), 112(3), Courts of Justice Act, R.S.O. 1990, c. C43, s 89(3.1), Family Law Rules, s. 7(4), Rules of Civil Procedure, Rule 63.02(1), UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited, 2021 ONCA 279

Gordon Dunk Farms Ltd. v. HFH Inc., 2021 ONCA 681

Keywords: Breach of Contract, Torts, Negligence, Civil Procedure, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, s. 14, Limitation of Actions Act, S.N.B. 2009, c. L-8.5, Becker v. Toronto (City), 2020 ONCA 607, Svia Homes Limited v. Northbridge General Insurance Corporation, 2020 ONCA 684, Kaynes v. BP p.l.c., 2021 ONCA 36, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, McSween v. Louis (2000), 132 O.R. (3d) 304 (C.A.), Lawless v. Anderson, 2011 ONCA 102, Dale v. Frank, 2017 ONCA 32, leave to appeal to S.C.C. refused, 37494 (October 12, 2017), Morrison v. Barzo, 2018 ONCA 979

OMJ Mortgage Capital Inc. v. King Square Limited , 2021 ONCA 690

Keywords: Contracts, Interpretation, Corner Brook (City) v. Bailey, 2021 SCC 29, Harvey Kalles Realty Inc. v. BSAR (Eglinton) LP, 2021 ONCA 426

Knight v. Knight-Kerr , 2021 ONCA 686

Keywords: Family Law, Equalization of Net Family Property, Domestic Contract, Matrimonial Home, Family Law Act, R.S.O. 1990 c. F.3, s. 2(10), s. 4(1), s. 5(1), s. 18(1), s. 52(1), and s. 52(2)

ESC Enterprises Inc. V. 1867295 Ontario Inc. , 2021 ONCA 687

Keywords: Contracts, Interpretation, Certainty, Restitution, Unjust Enrichment, Quantum Meruit, Corporations, Corporate Veil, Owners, Statata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Yaiguaje v. Chevron Corporation, 2018 ONCA 472, Transamerica Life Insurance Co. of Canada v. Canada Life Insurance Co. (1996), 28 O.R (3d)

Sbihat v. Nasar , 2021 ONCA 701

Keywords:Civil Procedure, Originating Process, Statements of Claim, Service, Extension of Time, Rules of Civil Procedure, Rule 14.08(1)

Short Civil Decisions

Lalonde v. Agha , 2021 ONCA 704

Keywords: Civil Procedure, Costs


CIVIL DECISIONS

N. v. F., 2021 ONCA 688

[Paciocco J.A.]

Counsel:

F. L. Jamal and F. Yehia, for the appellant

B. R.G. Smith and L. Love-Forester, for the respondent

Keywords: Family Law, Custody and Access, Relocation, Child Abduction,  Civil Procedure, Conflict of Laws, Jurisdiction, Appeals, Stay Pending Appeal, Hague Convention, Convention on the Rights of the Child, Can. T.S. 1992, No. 3, Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983, No. 35, Supreme Court Act, R.S.C., 1985, c. S-26, s. 40(1), s. 65.1(1), and s. 65.1(2), Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 22, s. 23, and s. 40, N. v. F., 2021 ONCA 614, Zafar v. Saiyid, 2017 ONCA 919, Geliedan v. Radwah, 2020 ONCA 254, D.C. v. T.B., 2021 ONCA 562, K.K. v. M.M., 2021 ONCA 407, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Leis v. Leis, 2011 MBCA 109, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, J.P.B. v. C.B., 2016 ONCA 996

facts:

In this case, the appellant brought a motion pursuant to s. 65.1(1) of the Supreme Court Act for a stay of proceedings relating to the court’s decision in N. v. F., 2021 ONCA 614, pending her leave to appeal application to the Supreme Court of Canada.

N. v. F., 2021 ONCA 614

Our summary of N. v. F., 2021 ONCA 614 can be found here.

The facts and holding of that case, in brief, are as follows. The appellant is a Canadian citizen, and the respondent is a Pakistani national. The parties married in February 2012 and lived together in Dubai, the UAE, for eight years. They have two children under the age of five, who are both Canadian citizens. Neither the parties nor children are UAE nationals. In mid-2020, the appellant advised the respondent that she intended to take the children to Milton, Ontario, for a month-long trip to visit her parents. The respondent consented to the trip, and the appellant purchased return airline tickets. After arriving in Canada, the appellant told the respondent of her unilateral decision to not return to Dubai with the children. The appellant took no steps in the Ontario courts to determine the jurisdictional issue that arose regarding the custody and access of the children. The respondent commenced legal proceedings in Dubai and then in Ontario to have the children returned.

The appellant appealed the trial judge’s decision that Ontario did not have jurisdiction to deal with the case. The trial judge concluded that, on a balance of probabilities, the children’s best interests would be served by their return to Dubai so that a court there could adjudicate the matters of custody, access, and guardianship.

On appeal, the Ontario Court of Appeal considered six issues. The appeal was allowed in part, with Lauwers J.A. dissenting. Specifically, the court held that:

(1) Fresh evidence should not be admitted as it was of little or no relevance to the issues in the proceeding, and one of the documents could have been available at trial if the appellant had acted with reasonable diligence.

(2) The applicable standard of review for Custody and Support Orders was Deference, and for Questions of Foreign Law was Correctness.

(3) The trial judge did not err in declining jurisdiction under s. 22 of the CLRA. The trial judge was correct because the children were not living in Ontario with both parents since their arrival in June 2020, and the appellant failed to establish all six enumerated criteria under s. 22(1)(b).

(4) The trial judge did not err in declining jurisdiction under s. 23 of the CLRA. A trial judge’s power under s. 23 is discretionary, and the trial judge carefully considered the evidence and made a correct decision regarding its application to the case.

Lauwers J.A. dissented on this issue and found that the trial judge made a palpable and overriding error because he failed to properly assess the harm of an involuntary separation of the children from the appellant. Lauwers J.A. also stated the trial judge should have found a risk of serious harm to the children in the application of UAE custody law, because a parenting determination by the Dubai courts would not be made based on the children’s best interests, as understood under Ontario law. Accordingly, Lauwers J.A. would have allowed the appeal and ordered that the Ontario Superior Court had jurisdiction to make a parenting order in relation to the children.

(5) The trial judge did not err in declining to exercise parens patriae jurisdiction. The trial judge correctly applied the leading authority on parens patriae and there was no basis for appellate interference.

(6) Whether the trial judge erred in making an order under s. 40 of the CLRA was an issue that was not raised in the Notice of Appeal and was not argued by the appellant in her factum. Although the Office of the Children’s Lawyer raised the issue in their factum, the issue was not before the court and it declined to consider it. However, Brown JJ.A considered the issue in concurring reasons, as did Lauwers J.A. in dissenting reasons.

Brown JJ.A (concurring) held that the trial judge was correct in concluding that CLRA s. 40(3) was intra vires the legislative power of Ontario. Further, the trial judge was correct that s. 40(3) was about the return of children to a place that they are most closely connected to, and that an order under that provision did not infringe the appellant or children’s Charter rights under s. 2(a), 6(1), 7, or 15.

Lauwers K.A. (dissenting) held that s. 40 of the CLRA allows a court to order a child’s return to another jurisdiction in cases of wrongful retention. He held that, because of his earlier dissent that Ontario should exercise jurisdiction under s. 23, a return order under s. 40 was not available.

issues:

(1) Should a stay of proceedings be granted pending an appeal to the Supreme Court of Canada?

holding:

Motion granted.

reasoning:

(1) Yes.

A judge of the appeal court, whose order is being appealed to the Supreme Court of Canada, is authorized by s. 65.1(1) of the Supreme Court Act to order that the proceedings be stayed with respect to the judgment from which leave to appeal is sought, on the terms deemed appropriate. This authority can be exercised before the proposed appellant has served and filed a notice of leave to appeal “if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice”.

Whether a stay should be ordered in the interests of justice pending a determination of leave to appeal begins with a consideration of three factors: (1) based on a preliminary assessment of the merits of the case, whether there is a serious issue to be tried; (2) whether the applicant would suffer irreparable harm if the application is refused, and; (3) which party would suffer greater harm from granting or refusing the stay pending a decision of the leave to appeal application. The strength of one factor can compensate for weakness in another.

(1) The threshold of whether there is a serious issue to be tried is low. Although it is raised when an appellate court has already ruled on the question, that raising is tempered where there is a dissenting appellate decision (such as in this case).

In this case, although the appellant identified no errors in the majority’s constitutional law analysis, the Court was persuaded that there were serious issues that arose from Lauwers J.A.’s dissent that could inspire the Supreme Court of Canada to grant leave to appeal. Specifically, the Court found three potential serious issues to be tried:

First, Lauwers J.A.’s concerns about the separation of the children and the mother, and the enforceability of the “with prejudice” agreement might depend on the proper outcome in non-Hague Convention cases when the risk of separation or unenforceability may not be more probable than not, but where those outcomes, if they occur, could pose significant risks to the welfare of the children.

Second, how the onus of proving serious risk operates when there is a risk of separation and yet an inability on the evidence to predict its impact.

Third, whether gender inequalities in the law of the UAE, as a matter of law, undermine the integrity of best interest determinations.

Accordingly, the Court concluded these issues may well be of public importance that could result in leave to appeal to the Supreme Court of Canada being granted.

(2) In custody cases where a stay of proceedings is sought, the overriding consideration is the best interests of the child. The Court was satisfied that, in the circumstances, there was a risk of irreparable harm to the children if a stay was denied. This conclusion was reached based on the fact that the status quo of the mother as primary caregiver could be interrupted if the children were removed to the UAE. Further, the Court found there was a risk that parenting rights could be determined based on gender-based principles or presuppositions rather than the best interests of the children.

(3) Finally, the Court was persuaded that the balance of convenience favoured granting the stay pending leave to appeal. The Court found that even assuming the children would be returned to Ontario if the appeal succeeded, the risk that the status quo relating to the children’s primary care could be disrupted pending a final judicial determination was of greater concern than the harm caused by delay. The Court also mentioned the risk of involuntary separation of the mother from the children, given the mother’s lack of legal status in the UAE.

The Court ordered a stay of proceedings on condition that the mother must file her application for leave to appeal to the Supreme Court of Canada within 45 days from the release of the September 14, 2021 decision.


2460907 Ontario Inc. v. 1521476 Ontario Inc., 2021 ONCA 682

[Lauwers, Harvison Young and Sossin JJ.A.]

Counsel:

P. Starkman and C. Zhang, for the appellants

E. Birnboim and M. Crampton, for the respondent

Keywords: Torts, Negligence, Duty of Care, Proximity, Pure Economic Loss, Relational Economic Loss, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21.01(1)(b), Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35

facts:

The appellant 2460907 Ontario Inc. (“246”) appeals from an order striking its claim under Rule 21.01(1)(b) of the Rules of Civil Procedure, for pure economic loss arising from the respondent 1521476 Ontario Inc.’s (“152”) exercise of re-entry against 152’s tenant, 2456787 Ontario Inc. (“245”).

152 had entered into a lease with 245. Later, 245 was unable to afford the rent, stopped paying it, and asked 152 to waive or reduce the rent, a request 152 refused. 245 then wrote to 152 advising that a new restaurant to be located in the premises would be operated by 246 and requested that the original lease and the amending agreement both be changed to reflect that the tenant would now be 246. 152 responded by re-entering the premises and distraining the chattels of 245. 245 commenced an action for wrongful distraint, to which 246 was not a party. Over a year later, 246 commenced its own action against 152 for pure economic loss damages for the profits it was going to earn by operating a restaurant in the premises formerly occupied by 245. 152 brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the claim as disclosing no reasonable cause of action, and was successful.

The motion judge found that, as a third party, 246 did not have a possessory or proprietary interest in the premises. 152 had not consented to an assignment of the lease and refused to enter into any new agreement with 246, and 246 could therefore not have acquired a possessory or proprietary interest in the property. The motion judge also denied 246 the opportunity to amend its claim.

issues:

(1) Whether the trial judge incorrectly applied the test set out under Rule 21.01(1)(b) by not accepting the facts pleaded in the statement of claim as true?

(2) Whether the trial judge erred in his consideration of its tort claim for pure economic loss?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court found no error in the motion judge’s finding that 152 did not consent to the assignment of the lease and that 246 therefore had no possessory or proprietary interest in the property. The finding was well grounded in the record before the motion judge and was open to him. The motion judge was aware that “152 failed or refused to allow 246 to occupy the premises.” The precise mechanism through which 246 did not obtain possessory or proprietary interest was not vital.

(2) No.

The Court found no merit to the appellant’s argument that 152 owed it a duty of care arising from its possessory or proprietary interest in 152’s property. Without such an interest there could not be an entitlement on the part of 246 to claim possessory or proprietary interest in 152’s property and thus a duty of care that could entitle it to economic loss.

The Court went on to distinguish the case from Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021 (which remains the leading case on relational economic loss) on the basis that 246 did not have any relationship with 152, contractual or otherwise, that would entitle it to claim possessory or proprietary interest in 152’s property.

Given the motion judge’s finding that 152 had not consented to any assignment of the lease, there was nothing to ground the necessary finding of proximity.


Salvatore v. Tommasini , 2021 ONCA 691

[Benotto, Brown and Harvison Young JJ.A.]

Counsel:

A. McConnell, for the appellants

S. Denis, for the respondents

Keywords: Contracts, Interpretation, Agreements to Agree, Intention to Enter into Binding Contractual Relations, Civil Procedure, Summary Judgment, Geoff R. Hall, Canadian Contractual Interpretation Law, 3rd ed., (Toronto: LexisNexis, 2016)

facts:

The appellants and some of the respondents entered into a series of documents regarding the acquisition and operation of a helicopter: a June 24, 2016 Letter of Intent (the “LOI”); an LOI amending agreement dated July 15, 2016 (the “July Letter Agreement”); a September 14, 2016 Aircraft Management Agreement (the “AMA”); and a September 14, 2016 AMA amending agreement (the “September Letter Agreement”).

In granting summary judgment in favour of the respondents, the motion judge struck the appellants’ claim that the agreements contained a binding obligation on the part of the respondents to pay for one-half of the acquisition cost of the helicopter (the “Buy-in Claim”). Further, he dismissed the entire action against the respondents; denying the appellants damages for other breaches claimed.

issues:

(1) Did the motion judge err in finding that the respondents were not subject to an enforceable promise to pay the appellant half of the acquisition cost of the helicopter?

(2) Did the motion judge err in dismissing the action in its entirety?

holding:

Appeal dismissed.

reasoning:

(1) No.

Article 14.13 of the AMA – the so-called “entire agreement clause” – provided, in part, that “[t]his Agreement and the matters referred to herein constitute the entire agreement between Owner and Operator regarding the subject matter hereof”. The clause went on to state that the AMA superseded and cancelled all prior agreements “with respect to or in connection with the subject matter of this Agreement”.

The motion judge erred in law by determining that this clause expressly cancelled the LOI and July Letter Agreement. A recital to the AMA referred to an arrangement to acquire a direct or indirect 50% interest. This arrangement was a subject-matter discussed in the LOI and July Letter Agreement.

With that said, the error of law was of no consequence. The LOI and July Letter Agreement lacked sufficient material facts to characterize them as legal contracts, especially given the absence of fundamental business terms on which the co-ownership and the jointly owned business of the parties in operating the helicopter would be formed. The LOI simply contemplated the acquisition cost for an interest, but the rights and obligations of those with an interest in the “Owner” were to be set out in a “definitive” Owners Agreement. Therefore, any further business dealings with respect to the helicopter would be conditional on the negotiation of the definitive agreement settling all material aspects of the separate stand-alone business of owning and operating it. However, this agreement never came to fruition.

(2) No.

In response to the respondents’ notice of motion to dismiss the entire action, the appellants failed to adduce any evidence particularizing or supporting their pleaded AMA and Internal Cost Claims. As a result, there was no evidence before the motion judge that would have permitted him to conclude that there was a genuine issue requiring trial regarding any damages suffered by the appellants in respect of their AMA and Internal Cost Claims.


Smith v. GCAT Group Inc., 2021 ONCA 700

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

R. Macklin and L. Bendu, for the appellants

P. Masic, for the respondents

Keywords:Civil Procedure, Orders, Enforcement, Striking Pleadings, Rules of Civil Procedure, Rule 60.12(b), Oz Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520

facts:

The motion judge dismissed the appellants’ claim against the respondents for breach of contract, alleging that the respondents supplied inferior synthetic limestone rather than the Italian limestone for which they had contracted. The appellants’ claim, which commenced in 2012, was dismissed under Rule 60.12(b) because the appellants failed to comply with interlocutory orders requiring them to permit the respondents to inspect the limestone at the centre of the dispute.

The appellants argued that they should have been permitted a final opportunity to provide access to the respondents to inspect the limestone.

issues:

(1) Should the appellants have been permitted a final opportunity to provide access to the respondents to inspect the limestone?

(2) Should the appellants be granted leave to file fresh evidence demonstrating their lawyer gave erroneous advice on which they relied?

holding:

Appeal dismissed.

reasoning:

(1) No.

The motion judge carefully reviewed the history of the action and found that no matter how many times the appellants were told they must permit an inspection, they would not do so. The motion judge drew an inference that the appellants had no case and they must know it. The Court held that in these circumstances the dismissal of the action under Rule 60.12(b) was amply justified, and the motion judge was not required to provide the appellants with another opportunity to disobey a court order before dismissing the action.

(2) No.

The Court found there was no basis to set aside the motion judge’s order because of the appellants’ complaint about their counsel’s strategy. The Court therefore did not admit the appellants’ fresh evidence that purported to demonstrate their counsel’s failings.


M. L. v. B.T., 2021 ONCA 683

[Paciocco J.A.]

Counsel:

J. Gagné, for the appellants, M.L. and D.L.

E.R. Van Voort, for the respondent, D.C.

K. Hensel, for the respondent, Dilico Anishinabek Family Care

Keywords: Family Law, Child Protection, Custody and Access, Indigenous Children, Office of the Children’s Lawyer, Civil Procedure, Stay Pending Appeal, Fresh Evidence, Factums, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, ss 1, 10, Children’s Law Reform Act, R.S.O. 1990, c. C.12, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched 1, ss 2, 74(3), 80, 101(3), 102, 116(1), 112(3), Courts of Justice Act, R.S.O. 1990, c. C43, s 89(3.1), Family Law Rules, s. 7(4), Rules of Civil Procedure, Rule 63.02(1), UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited, 2021 ONCA 279

facts:

J.T. was apprehended by Dilico Anishinabek Family Care (“Dilico”) and placed in the appellants’ care six years ago, when she was 8 days old. Dilico intends to terminate the placement so that J.T. can be placed with her mother, D.C.’s, family, in the Berens River First Nation in Manitoba. When J.T. was four months old, Dilico executed the first of a series of six-month “customary care agreements”. The customary care agreements were also executed by J.T.’s mother, D.C., and the band to which D.C. belongs. Each customary care agreement provided that Dilico would be the legal guardian of J.T. during the duration of the agreement, and that Dilico would be entitled “to assume the duties of parent of the child” and “have the rights and responsibilities as parents of the child for the purposes of the child’s care”. Dilico submitted that its long-term plan was to use the customary care agreements as a mechanism for working towards reunification of J.T. with her indigenous family and community. The appellants submitted that it was in J.T.’s best interest to remain with them and instituted custody proceedings under the Children’s Law Reform Act.

Dilico brought a motion to strike the appellants’ custody application arguing that, as “foster parents” within the meaning of s. 2 of the Child, Youth and Family Services Act (CYFSA), the appellants were prohibited from applying for custody. The appellants sought a dismissal of the motion. They argued that they were not foster parents but “care providers” as defined in An Act respecting First Nations, Inuit, and Métis children, youth and families, the custody care agreements were invalid, and that the care agreements were not in J.T.’s best interests. The motion judge dismissed the motion, ruled that the appellants were entitled to continue their custody application, and awarded the appellants interim custody.

Dilico appealed the motion judge’s order. The appeal judge allowed the appeal and found that the motion judge had erred in concluding the customary care agreements were not creations of the CYFSA, the motion judge committed a palpable and overriding error in finding that the applicants were not “foster parents” within the meaning of s. 2 of the CYFSA, and the motion judge erred in not deferring to Dilico’s placement decision. The appeal judge set aside the motion judge’s decision, struck the appellants’ application for custody, and prohibited the appellants from being parties in a case involving the custody of or access to J.T.

The appellants brought a motion to stay the judge’s decision pending the final determination of their appeal. Dilico did not oppose a conditional stay that would require J.T. to reside with the applicants pending appeal. However, Dilico requested that the conditional stay maintain their role as the legal guardian of J.T.

The appellants also sought orders for additional relief, including the admission of fresh evidence, the representation of J.T. on appeal by the Office of the Children’s Lawyer, and leave to file an extended factum.

issues:

(1) Should the Court grant the appellants’ motion to stay the appeal decision pending further appeal to the Court?

(2) Should the Court grant the appellants’ requests for additional relief?

holding:

Motion granted.

reasoning:

(1) Yes (conditionally).

The Court ruled that granting the motion to stay the appeal decision was in the interests of justice. The Court applied the three factors required for consideration of such a stay, recently described in UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited. The Court found that there were serious issues to be tried, that the appellants and J.T. would suffer serious harm if the appellants lost their caregiving role without further determination, and that the appellants and J.T. would suffer greater harm if the Court refused the stay than Dilico, D.C. and other members of J.T.’s family and the indigenous community would experience if the Court ordered the stay.

The Court further found that as an indigenous child, J.T.’s best interests required specific consideration of both the “irreparable harm” and “greater harm” factors. The Court agreed with Dilico that the stay order must enable Dilico to take reasonable steps to nurture J.T.’s connection to her indigenous culture, her family and her community. Thus, the Court imposed conditions on the stay order requiring the most recent customary care agreement to remain in effect pending further court order and entitling D.C. and B.T. to supervised access. The Court also expedited the appeal.

(2) Yes (some).

The Court considered the orders sought for additional relief. The Court was of the view that the appellants’ request for an order admitting fresh evidence was premature. The Court ordered that the appellants were permitted to file an extended factum (no more than 45 pages) if intervenors were permitted to participate in the appeal. Finally, the Court ordered that the Office of the Children’s Lawyer could act as legal representative for J.T.


Gordon Dunk Farms Ltd. v. HFH Inc., 2021 ONCA 681

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

Counsel:

D. Zacks and G. Brimblecombe, for the appellant

P.W. Kryworuk and J.R.W. Damstra, for the respondent HFH Inc.

J.A. LeBer and E.A.F. Grigg, for the respondent M. Engineering & Construction Inc.

No one appearing for the respondent F. Concrete Forming (2011)

Keywords: Breach of Contract, Torts, Negligence, Civil Procedure, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, s. 14, Limitation of Actions Act, S.N.B. 2009, c. L-8.5, Becker v. Toronto (City), 2020 ONCA 607, Svia Homes Limited v. Northbridge General Insurance Corporation, 2020 ONCA 684, Kaynes v. BP p.l.c., 2021 ONCA 36, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, McSween v. Louis (2000), 132 O.R. (3d) 304 (C.A.), Lawless v. Anderson, 2011 ONCA 102, Dale v. Frank, 2017 ONCA 32, leave to appeal to S.C.C. refused, 37494 (October 12, 2017), Morrison v. Barzo, 2018 ONCA 979

facts:

In 2011, the appellant decided to build a new hog barn on their property. The appellant’s principals engaged the respondents, M. Engineering & Construction Inc. (“M”) to design the barn, HFH Inc. (“HFH”) to oversee construction, and F. Concrete Forming (2011) (“F”) to undertake the concrete work. The barn was completed in 2013. On May 6, 2014, the barn collapsed and, as a result, the appellant suffered a loss. The appellant’s insurance covered part, but not all, of the loss. The insurer paid the appellant for the covered loss and retained a lawyer to sue the respondents to pursue the subrogated claim. The lawyer was also retained to sue for the balance of the loss on behalf of the appellant directly. The lawyer did not commence the action until May 24, 2016.

All parties brought motions for summary judgment to determine whether the action was brought within time or was statute-barred. After the collapse, the insurance adjuster had retained an expert to examine the barn and report on the cause of the collapse. The appellant received the final expert report on May 21, 2014. The motion judge found that the principals knew they had a claim, within the meaning of the Limitations Act, 2002 (the “Act”) before they received the final report. Thus, the motion judge found that the action was statute barred. The appellants appealed the motion judge’s decision.

issues:

(1) Did the motion judge err by failing to treat each of the appellant’s 20 pleaded acts or omissions as separate claims, and conduct individual discoverability analyses for each?

(2) Did the motion judge err by failing to rule on the appellant’s motion regarding the timeliness of its action as against the respondent, F, who did not defend the motion?

(3) Did the motion judge err with respect to the meaning and effect of section 14 of the Act?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court held that it was appropriate to address this issue on appeal. As per Becker v. Toronto (City) and Svia Homes Limited v. Northbridge General Insurance Corporation, the record was sufficient, and the issue was an issue of law.

The Court held that one can have a claim for the same remedy based on one or more acts or omissions that may have caused a loss. Different acts or omissions may constitute particulars of a claim, but a claim is for a legal remedy in a court proceeding.

The Court further held that a plaintiff with a negligence claim does not need to have discovered every constituent element of that claim before the limitation period begins to run. A plaintiff need only know that an incident occurred that resulted in a loss, that the defendant failed to do something that caused that loss, and that, having regard to the nature of the injury, loss, or damage, a court proceeding is an appropriate means to seek a remedy. The Court adopted the “plausible inference of liability” standard cited by Justice Moldaver in Grant Thornton LLP v. New Brunswick.
The Court found that all of the appellant’s allegations could be classified under three categories: faulty design, faulty construction, and faulty inspection during construction. The motion judge found that the principals knew shortly after the collapse that the respondents were responsible for those aspects. Thus, the Court found that the “plausible inference of liability” test had been met.

(2) No.

The Court was satisfied, based on the reasons of the motion judge, that his failure to find that the action was statute-barred against F, as well as the other two respondents, was an oversight. The motion judge’s findings applied to the appellant’s knowledge of the involvement of each of the three respondents. Thus, the Court held that the action was statute-barred against all three respondents, including F.

(3) Yes.

The Court held that the motion judge erred by referring to section 14 of the Act. However, the error had no effect on the outcome of the motion.
The Court found that the purpose of section 14 is to allow a potential defendant to begin running a limitation period so that they can have certainty about when an action will become statute-barred. Section 14 allows a court to take notice into account if a limitation issue arises in respect of an action after it is commenced. The Court found that Section 14 had no application to the facts of the case, as the potential plaintiff had put the potential defendants on notice.


OMJ Mortgage Capital Inc. v. King Square Limited , 2021 ONCA 690

[Benotto, Brown and Harvison Young JJ.A.]

Counsel:

M. J. Neirinck, for the appellant

M. L. Solmon and R. Joshi, for the respondent

Keywords: Contracts, Interpretation, Corner Brook (City) v. Bailey, 2021 SCC 29, Harvey Kalles Realty Inc. v. BSAR (Eglinton) LP, 2021 ONCA 426

facts:

The appellant, King Square Limited (“KSL”), appealed the trial judge’s holding that the respondent, OMJ Mortgage Capital Inc. (“OMJ”), was entitled to commissions on the Second and Third Loans pursuant to the terms of a Commission Agreement (all described below).

In 2014, KSL sought construction financing for its project in Markham, Ontario, and engaged a mortgage broker, OMJ. In February 2014, OMJ obtained an oral commitment for the financing from Firm Capital Corporation (“FCC”). OMJ and KSL entered into a Commission Agreement in respect of construction financing for the project, which provided for a one-year term, following which there would be a one-year holdover period. In May 2014, KSL accepted a commitment letter for $50 million in construction financing from FCC (the “Original Commitment”). That loan closed in November 2014. KSL paid OMJ a commission in accordance with the terms of their Commission Agreement.

In January 2017, KSL and FCC entered into a Mortgage Loan Amendment and Renewal Agreement with respect to the $50 million loan (the “Renewal Agreement”) that increased the amount loaned by an additional $12.9 million (the “Second Loan”). Later that year, in September 2017, KLS and FCC entered into a second Mortgage Loan Amendment Agreement (“Amendment #2”) that provided for a further loan increase of $11.8 million (the “Third Loan”). KSL did not advise OMJ about the Second or Third Loans. When OMJ learned about the Second and Third Loans, it demanded payment of further commissions from KSL under the Commission Agreement. KSL refused to pay any further commissions. OMJ successfully sued KSL for the commissions.

issues:

(1) Did the trial judge err in her interpretation of the Commission Letter in finding that OMJ was owed commission?

a. Did the trial judge fail to characterize the Second and Third Loans as “new loans” based on a different foundation than the Original Commitment?

b. Did the trial judge analyze whether the commission-earning events for which the Second and Third Loans were made had occurred before the respective deadline dates set out in the Commission Agreement?

holding:

Appeal dismissed.

reasoning:

(1) No.

There was no dispute that the trial judge correctly identified the principles of contractual interpretation applicable to the issue before her. Her interpretation of the Commission Agreement was a commercially reasonable one, in the context of the entire agreement and the factual matrix, and was entitled to deference.

a. The trial judge held that the Second and Third Loans were not new loans but further advances made by FCC pursuant to the original Loan Commitment. KSL did not demonstrate that these findings of fact were infected by palpable and overriding error.

b. The trial judge’s analysis was firmly anchored in the language of the Commission Agreement, as interpreted in light of the factual matrix, including the circumstances surrounding the Original Commitment, the Second Loan and Third Loan. Applying the required deferential standard of review, there was no basis for appellate intervention with the trial judge’s conclusion that the Commission Agreement required KSL to pay OMJ commissions for the Second and Third Loans in 2017.


Knight v. Knight-Kerr , 2021 ONCA 686

[Feldman, Paciocco and Nordheimer JJ.A.]

Counsel:

L. Stojni-Kassik and E.F. Metcalfe, for the appellant

M.K., acting in person

Keywords: Family Law, Equalization of Net Family Property, Domestic Contract, Matrimonial Home, Family Law Act, R.S.O. 1990 c. F.3, s. 2(10), s. 4(1), s. 5(1), s. 18(1), s. 52(1), and s. 52(2)

facts:

The parties married in March 2009, after signing a domestic contract, the “Family Agreement”, that the wife prepared. The wife brought the original matrimonial home (the Kroeger property) into the marriage. The parties lived in that home for a few years, then sold it and purchased a second home, where they lived at the date of separation, which was in July 2017.

The Family Agreement contained a provision whereby the parties agreed to specific treatment of $45,000 representing the deposit that the wife paid to purchase the Kroeger property, which became the parties’ matrimonial home. The Family Agreement specified that the wife would preserve her entitlement to this $45,000 from the sale proceeds of whatever home they were living in in the event of marriage breakdown, whether the parties still lived in the Kroeger property or had moved to another home.

In addition to finding that the Family Agreement was a valid and binding domestic contract, the trial judge found that the husband owed the wife an equalization payment of $43,547. When dealing with equalization, the trial judge did so by reference to the form of the net family property (“NFP”) statement and what should be included in each Part of the form. Under “Part 4(a): Land”, the trial judge found that, because the parties agreed that the wife was entitled to $45,000 more than the husband out of the valuation-date value of the matrimonial home, his share of the value of the second home was $263,500, while hers was $308,500. At the same time, the $45,000 was shown as an exclusion from the wife’s NFP because, pursuant to the Family Agreement, the $45,000 deposit belonged exclusively to her and was not shared with the husband.

Under “Part 6: Property, Debts, and Other Liabilities on Date of Marriage”, on the wife’s side of the ledger, the trial judge included the value of the first home ($250,000) and deducted the mortgage ($157,715). The trial judge thereby included the full amount of the equity in the Kroeger property at the date of marriage, namely $92,285, as a deduction on the wife’s side of the ledger. In the last part of the NFP form, “Part 7: Value of Property Excluded under Subs. 4(2) of the ‘Family Law Act’”, the trial judge stated that the wife was also entitled to exclude $45,000 representing her deposit from the Kroeger home.

The sole issue raised by the husband on the appeal was the calculation of the NFP in respect of the treatment of the two homes, and the interpretation and application of the Family Agreement provision regarding the $45,000.

issues:

(1) Did the trial judge err in his approach to the equalization payment by double counting the respondent wife’s $45,000 deposit in the Kroeger property?

holding:

Appeal allowed in part.

reasoning:

(1) Yes.

The Court saw no error in the trial judge’s approach to the treatment of the $45,000 as agreed by the parties. The proceeds of the second property were jointly owned on the valuation date and the Family Agreement provided that $45,000 of the proceeds of the sale are to be treated as belonging to the wife. The FLA provides that that amount is an exclusion from the wife’s net family property.

Because the parties had sold the Kroeger property, it was no longer their matrimonial home at the date of separation, and therefore its marriage date value was deductible by the wife. However, the trial judge allowed an excluded property (the $45,000 deposit) to also be deducted. This was an error because the same property cannot be an exclusion and a marriage-date deduction. The effect of this error was to double count the $45,000 in the wife’s favour.

The Court allowed the appeal to the extent that the Court would subtract $45,000 from the wife’s date of marriage deduction of $92,285, representing her equity in the Kroeger property, and then recalculate the equalization payment owed by the husband to the wife. The result was that instead of owing the wife an equalization payment of $43,547, the husband owed the wife an equalization payment of $38,924.


ESC Enterprises Inc. V. 1867295 Ontario Inc., 2021 ONCA 687

[Benotto, Brown and Harvison Young JJ.A]

Counsel:

D. P. Preger, for the appellants ESC Enterprises Inc. & Strongco Plastics Ltd.

M. Poliak, for the respondents M. Hernandez, M. Hernandez and Strongco Ltd.

Keywords: Contracts, Interpretation, Certainty, Restitution, Unjust Enrichment, Quantum Meruit, Corporations, Corporate Veil, Owners, Statata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Yaiguaje v. Chevron Corporation, 2018 ONCA 472, Transamerica Life Insurance Co. of Canada v. Canada Life Insurance Co. (1996), 28 O.R (3d)

facts:

The appellant ESC Enterprises Inc. (“ESC”) is held by a sole shareholder. E, who also owns 50% of the shares of the appellant Strongco Plastics Ltd. (“Strongco”). The respondent M. and his business partner operated a company “BuiltRite”. Builtrite was deemed bankrupt on October 31, 2017. In 2017, a representative from BuiltRite approached ESC with a business plan. The plan contemplated a convertible loan of $1 million, secured against BuiltRite assets worth $5.5 million. There were two types of assets: 1) the unencumbered “Trailered Assets”, which included dies worth $2 million and were owned by a separate company, Strongco; and 2) encumbered “Warehoused Assets”, which were owned by BuiltRite. Some of the Trailered Assets had been loaned from a third party and would not form part of the security for the proposed investment.

E. proposed an alternative structure whereby a new company would operate the business and E. would advance the funds to the new company on a secured basis. On February 2, 2018, the new company, Plastics, was incorporated. It was agreed that Plastics would purchase the Warehoused Assets from the facility where they were stored and Strongco would roll the Trailered Assets into Plastics.

ESC registered a security interest under the Personal Property Security Act (PPSA) for all Plastics’ inventory, equipment, accounts, personal property and motor vehicles in February 2018. On March 14, 2018, a Unanimous Shareholders Agreement (“USA”) was signed between the principals of the corporations. At this time, ESC executed an undertaking in favour of Plastics, stating that ESC would advance an aggregate of $1 million, less all amounts advanced at any time and listed in the grid promissory note. The advancement would occur provided “there is no impediment to the advancement of the business of the Corporation on a profitable basis, other than the failure of the undersigned to advance the amounts provided for herein on the terms set forth herein”.

To effect a “roll in” of the Trailered Assets into Plastics, a Quitclaim Deed dated February, 2018 was prepared by counsel for ESC and plastics. The Quitclaim Deed stated that Strongco quitclaimed all right, title and interest in and to the personal property and assets listed on “Schedule A” for the benefit of Plastics. When the Quitclaim was signed on April 13, 2018, Schedule A was blank. M.’s counsel advised counsel for ESC and Plastics that Schedule A would need to be revised once M. had inventoried the equipment, and then a revised Schedule A would be “slip sheeted in”.

M never completed an inventory and no Schedule A was “slip sheeted” in. By August 1, 2018, there was insufficient remaining committed capital to resume the business. The parties agreed to sell the Trailered Assets and Warehoused Assets. On October 2. 2019, while attempting to sell the assets, M. raised question of ownership. In February 2019, M. sold certain dies for $85,000, notwithstanding the question of ownership. The parties agreed that M. was to receive an annual salary of $100,0000 plus a yearly bonus of up to $40,000. They disagreed as to when the salary was supposed to commence.

Two applications were brought in the court below giving rise to these two appeals:

(1) In the first application, the appellants ESC and Plastics sought an order declaring that equipment had been transferred to Plastics. The motion judge dismissed the application on the basis that the Quitclaim agreement was not enforceable. The application judge determined that the Quitclaim was not a binding contract because it lacked certainty and because no consideration was given for the Quitclaim. The application judge held that the Quitclaim was unclear as to which assets formed part of Schedule A, there was no agreement on the timing of the purported transfer of assets from Strongco to Plastics and the words “roll-in” were never defined. ESC and Plastics appealed.

(2) In the second application, the applicant M. sought compensation for work he had performed. The motion judge granted his application. The application judge ordered that ESC pay M. for work performed for Plastics from January to August 2018. She found that ESC was unjustly enriched by M.’s services from January to August 2018, as M was deprived of a living, ESC benefited from his services and there was no reason for the deprivation. She ordered ESC to pay M. $66,666 for January to August 2018, being the prorated amount of a salary of $100,000. ESC and Plastics appealed.

issues:

(1) Did the application judge err in determining that the Quitclaim was not a binding contract?

(2) Did the application judge err by ordering ESC to pay M. for work performed for Plastics?

holding:

Appeal allowed in part.

reasoning:

(1) No.

There was no error in the application judge’s determination that the Quitclaim was unenforceable. The Quitclaim did not specify the timing for the transfer of assets and neither party had a real understanding of what the Quitclaim represented. Therefore, the agreement could not constitute an enforceable contract. The appellants asserted that the equitable maxim “equity considers done that which ought to have been done” should save the agreement. The test for finding that an agreement exists at common law is set out in Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29: “the test is objective, and the offer, acceptance, consideration and terms may be inferred from the parties’ conduct and the surrounding circumstances”. The Court concluded that here, essential terms could not be inferred due to the parties’ unclear intentions. The standalone issues with the Quitclaim, aside from the issues with Schedule A, meant that even if equity treated Schedule A as finalized, the Quitclaim would still be unenforceable. Thus, the appellants the appellants could not rely on the equitable maxim to render Quitclaim enforceable.

(2) Yes.

The application judge’s determination with respect to M.’s salary could not stand for three interrelated reasons.

First, the application judge accepted M.’s evidence but did not discuss emails which appeared to indicate that the agreement was not to pay during the preparation phase. Second, the application judge did not provide an analysis, in light of the emails to explain the request for services, of ESC’s encouragement or acquiescence to M.’s work. Third, M.’s work was done for Plastics, not ESC, but ESC was ordered to pay. Even though the main shareholder of each corporation was the same person, there was no reason to pierce the corporate veil and require ESC to pay for work done for Plastics.


Sbihat v. Nasar , 2021 ONCA 701

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

T. J. McCarthy and R. J. Campbell, for the appellant

D. Zuber and A. Pressé, for the respondents

Keywords: Civil Procedure, Originating Process, Statements of Claim, Service, Extension of Time, Rules of Civil Procedure, Rule 14.08(1)

facts:

The action arose out of a motor vehicle accident that occurred on April 28, 2016. The defendants D. S. T. and Carmel Transport International Ltd. were served with the statement of claim in January or February 2020 – approximately 16 months after the six-month deadline for service of a statement of claim prescribed by r. 14.08(1) of the Rules of Civil Procedure. The defendant AJM Toor Group Inc. was never served.

The appellant moved to validate service and extend the time for service. The motion was not opposed by the respondent L. A. N. However, it was opposed by the remaining respondents.

The motion was initially scheduled for October 2020, but the appellant’s former counsel could not proceed on that date for medical reasons. The T. Respondents consented to an adjournment on the understanding that the motion would be argued on the record already filed with the court. The appellant’s former counsel agreed to this undertaking in writing. Despite that agreement, the appellant’s former counsel served and filed a supplementary affidavit six days before the motion was to be argued.

The motion was ultimately heard on November 10, 2020. The motion judge had to consider two issues: (1) whether to admit the appellant’s supplementary affidavit, and (2) whether to validate service and grant the extension of time for service.

The motion judge refused to consider the appellant’s supplementary affidavit because the appellant had previously consented not to file additional materials. Accordingly, she held that it was improper for the appellant to attempt to resile from that agreement.

Ultimately, the motion judge dismissed the motion. She found that the court should not extend the time for service where to do so would prejudice the respondents, and the onus was on the appellant to show that there was no prejudice. According to the motion judge, the appellant had provided an insufficient explanation for the delay and had adduced no evidence of a lack of prejudice beyond a bald assertion that the respondents would suffer no prejudice. The motion judge further found that the T. Respondents would suffer actual prejudice in their ability to conduct investigations, preserve evidence, and obtain timely medical assessments.

issues:

(1) Should the court admit fresh evidence?

(2) Did the motion judge err in refusing to validate service and extend the time for service?

holding:

Appeal allowed.

reasoning:

(1) No.

The court held that it was a misnomer to label the proposed evidence as fresh because it was filed on the prior motion. The court concluded the jurisprudence regarding the filing of fresh evidence was of no assistance, given that the evidence was clearly available on the return of the motion.

In the court’s view, the motion judge did not err in rejecting the evidence on the prior motion. On the record before the motion judge, it was clear that the parties had reached an agreement that no further material would be filed. Accordingly, the motion judge was correct in holding the parties to that agreement.
(2) Yes.

The court held that the motion judge erred in her analysis of whether to validate service and extend the time for service in two respects.

First, the motion judge made a palpable and overriding error of fact in finding that there was not a sufficient explanation for the delay in service. The unchallenged evidence filed on the motion made clear that the delay was attributable to the former counsel’s inadvertence.

Second, the motion judge failed to consider that the insurer for the T. Respondents had notice of the accident and the fact that the appellant was an involved person. The court held that this evidence was sufficient to meet the appellant’s onus of establishing that the T. Respondents would suffer no prejudice if the order sought was granted. On the evidence before the court, there was nothing to suggest that the T. Respondents had been hindered in any way in investigating the nature and extent of the appellant’s injuries.

Accordingly, it was evident that the appellant had met the test to validate service and extend the time for service of the statement of claim.


SHORT CIVIL DECISIONS

Lalonde v. Agha , 2021 ONCA 704

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

R. J.M. Ballance, for the appellant

M. DiCarlo, for the respondent

Keywords: Civil Procedure, Costs

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.

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 September 27, 2021.

Continue Reading

In Li v. Li, the court reviewed a motion judge’s conclusion that Ontario had jurisdiction to hear the parties’ family law dispute. In allowing the appeal, the court found that while Ontario did have jurisdiction, Yunnan Province, China was the clearly more appropriate forum, and that the motion judge erred in their analysis of forum non conveniens. The Ontario application was therefore stayed.

Other topics covered included standing to oppose the validity of a will, custody and access, renewal of a commercial lease, injunctions in the condominium context, intrusion upon seclusion and wrongful dismissal, mortgage enforcement and bank negligence, and oppression in the condominium context.

For our readers who have not yet heard about it, I would like to introduce them to a new publication, Civil Procedure & Practice in Ontario (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. As most of our readers probably know, CanLII is a not-for-profit organization operated by the Federation of Law Societies of Canada and is dedicated to assisting with access to justice through the free and open dissemination of the laws of Canada to all members of the public. The CPPO was written by a team of 135 leading litigators and experts in Ontario civil procedure, led by Professor Noel Semple of Windsor Law School.

CPPO will serve as a guide to Ontario’s Rules of Civil Procedure, Courts of Justice Act, and Limitations Act, and will be accessible not only to practitioners, but to members of the public. It contains not only the text of all these rules and statutory provisions, but also commentary and annotations to all the relevant case law applying and interpreting each rule and section. To access Civil Procedure & Practice in Ontario, please click here, and make sure to bookmark the site for easy access.

I had the privileged and honour to co-author two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

I would encourage all of our readers to consult CPPO in their daily practice, and to spread the word among colleagues. In addition, the authors and Professor Semple would welcome any feedback and ideas for improvement

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Li v. Li, 2021 ONCA 669

Keywords: Family law, Property, Equalization of Net Family Property, Domestic Contracts, Setting Aside, Civil Procedure, Conflict of Laws, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Family Law Act, R.S.O. 1990, c. F.3, s. 15, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Wang v. Lin, 2013 ONCA 33, Knowles v. Lindstrom, 2014 ONCA 116, Krebs v. Cote, 2021 ONCA 467, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Hurst v. Société Nationale de L’Amiante, 2008 ONCA 573, McNamee v. McNamee, 2011 ONCA 533, Martin v. Sansome, 2014 ONCA 14

Wakeling v. Desjardins General Insurance, 2021 ONCA 672

Keywords: Torts, Intrusion Upon Seclusion, Breach of Privacy, Breach of Confidence, Contracts, Duty of Good Faith, Remedies, Punitive Damages, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Standard of Review, Correctness, Employment law, Wrongful Dismissal, Human Rights law, Discrimination, Human Rights Code, R.S.O. 1990, c. H. 19, ss 1, 46.1(2), Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Jones v. Tsige, 2012 ONCA 32, Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co., (2002), 61 O.R. (3d) 481 (Ont. C.A.), Davy Estate v. CIBC World Markets Inc., 2009 ONCA 763, McCreight v. Canada (Attorney General), 2013 ONCA 483, Mortazavi v. University of Toronto, 2013 ONCA 655, Jaffer v. York University, 2010 ONCA 654, Knight v. Surrey Place Centre, 2017 HRTO 281, 02535 Ontario Inc. v. Non-Marine Underwriters Lloyd’s London England (2000), 184 D.L.R. (4th) 687 (Ont. C.A.), Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, Brandiferri v. Wawanesa Mutual Insurance, et al., 2012 ONSC 2206, Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, Barata v. Intact Insurance Company, 2021 ABQB 419, Dervisholli et al. and Cervenak and State Farm, 2015 ONSC 2286

Perodeau v. TD Canada Trust, 2021 ONCA 670

Keywords: Contracts, Real Property, Mortgages, Enforcement, Insurance, Termination, Torts, Negligence, Breach of Fiduciary Duty, Civil Procedure, Summary Judgment, Res Judicata, Parties Under Disability, Rules of Civil Procedure, Rules 1.03(1), and 7.01, Christie v. British Columbia (Attorney General), 2007 SCC 21, Costantino v. Costantino, 2016 ONSC 7279, Sosnowski v. Johnson, [2006] O.J. No. 3731 (Ont. C.A.)

Khairzad v. Erroussa, 2021 ONCA 667

Keywords: Family Law, Custody and Access, Decision-Making, Parenting Time, Child Support, Imputed Income, Variation, Material Change in Circumstances, Fresh Evidence, Civil Procedure, Disclosure, Costs, Child Support Guidelines, Hickey v. Hickey, [1999] 2 S.C.R. 518, Van de Perre v. Edwards, 2001 SCC 60, R.F. v. J.W., 2021 ONCA 528, Palmer v. The Queen, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300

Ottawa-Carleton Standard Condominium Corporation No.671 v. Friend, 2021 ONCA 666

Keywords: Real Property, Condominiums, Equitable Remedies, Permanent Injunctions, Civil Procedure, Applications, Condominium Act, 1998, S.O. 1998, c.19, ss. 117, 134, Rules of Civil Procedure, Rule 14.05(2)

LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046, 2021 ONCA 677

Keywords: Real Property, Condominiums, Oppression, Duty of Good Faith, Contracts, Duty of Good Faith Negotiations, Condominium Act, 1998, S.O. 1998, c. 19, s 135, 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, Welton v. United Lands Corporation Limited, 2020 ONCA 322, Manastersky v. Royal Bank of Canada, 2019 ONCA 609, R. v. R.E.M., 2008 SCC 51

Moses v. Moses, 2021 ONCA 662

Keywords: Wills and Estates, Invalidity, Undue Influence, Estates Act, R.S.O. 1990, c. E.21, s. 23, Rules of Civil Procedure, Rule 75.06(1), Adams Estate v. Wilson, 2020 SKCA 38

Narwhal International Limited v. Teda International Realty Inc., 2021 ONCA 659

Keywords: Contracts, Real Property, Commercial Leases, Duty of Good Faith, Civil Procedure, Evidence, Credibility, Godson v. P. Burns & Co. (1919), 46 D.L.R. 97 (S.C.C.), Molson Canada 2005 v. Miller Brewing Company, 2013 ONSC 2758, R. v. Palmer, [1980] 1 S.C.R. 759. Longo v. MacLaren Art Centre, 2014 ONCA 526, 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843

Short Civil Decisions

Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2021 ONCA 646

Keywords: Civil Procedure, Costs


CIVIL DECISIONS

Li v. Li, 2021 ONCA 669

[Feldman, Paciocco and Coroza JJ.A.]

Counsel:

H. (Pandora) Du, for the appellant
M. J. Stangarone and S. P. Kirby, for the respondent

Keywords: Family law, Property, Equalization of Net Family Property, Domestic Contracts, Setting Aside, Civil Procedure, Conflict of Laws, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Family Law Act, R.S.O. 1990, c. F.3, s. 15, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Wang v. Lin, 2013 ONCA 33, Knowles v. Lindstrom, 2014 ONCA 116, Krebs v. Cote, 2021 ONCA 467, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Hurst v. Société Nationale de L’Amiante, 2008 ONCA 573, McNamee v. McNamee, 2011 ONCA 533, Martin v. Sansome, 2014 ONCA 14

facts:

The appellant appeals from the dismissal of a motion in which they sought an order dismissing, on jurisdictional grounds, the respondent’s application for relief arising from the breakdown of their marriage.

On the motion, the appellant argued that Ontario lacked jurisdiction to hear the application and that, in the alternative, the city of Kunming, in the province of Yunnan, People’s Republic of China was the more appropriate forum for the dispute. The motion judge rejected both arguments and concluded Ontario had jurisdiction.

issues:

(1) Is there a real and substantial connection between the parties, the matrimonial claims being litigated, and Ontario?

(2) Is Yunnan Province, China the more appropriate forum to determine the claims raised in the respondent’s Application?

(3) Should the Court strike out all or part of the respondent’s Application, leaving only the trust claims concerning the Bevdale Property to proceed in Ontario?

holding:

Appeal allowed.

reasoning:

(1) Yes.

Absent palpable and overriding error or an extricable error of law warranting correctness review, deference ought to be afforded to the motion judge. In the Court’s view, the appellant did not identify any extricable errors of law or palpable and overriding error in the motion judge’s analysis on the question of whether Ontario had jurisdiction.

The motion judge correctly relied on evidence presented by the respondent indicating he was a Canadian citizen and lived at the Canadian address listed on his passport and driver’s license to establish the respondent resided primarily in Canada. The “real home” or “ordinary residence” of a party should be a presumptive connecting factor, and therefore, the respondent’s ordinary place of residence was a significant factor to consider.

The respondent also had property in Ontario, another presumptive connecting factor. A single presumptive connecting factor, absent any rebuttal, is sufficient to establish jurisdiction under the Van Breda analysis. Therefore, the Court deferred to the motion judge’s conclusion that there was a sufficient connection to Ontario.

(2) Yes.

The motion judge erred in principle in her analysis on the issue of forum non conveniens.

First, the motion judge ignored a very important factor – the existence of three signed agreements waiving the respondent’s entitlement to the assets and properties in China. The Divorce Agreement, dated March 26, 2018 (translated), says, “the [appellant and respondent] acknowledged that issues pertaining to assets, financial claims and debts have been resolved on their own through negotiations.”

Due to these agreements, to proceed with claims for equalization or an interest in the properties covered by the agreements, the respondent would first have to seek to set those agreements aside. Accordingly, the preliminary question of whether the agreements could be set aside was, in the Court’s view, central to assessing the more appropriate forum. Given that the agreements were executed and witnessed in China, in the Chinese language, China was the most appropriate forum for the dispute.

Second, the motion judge’s reasons stated that the natural forum for the claim to the Bevdale Property was in Ontario. However, the Court stated the motion judge’s focus on the Bevdale Property overwhelmed her analysis of forum non conveniens. The Court held that the far more valuable property interests were in China and were governed by contracts in China. The Bevdale Property should therefore not have been the focal point of the analysis, and Ontario was not the natural forum for the division of property claim viewed as a whole.

Third, the motion judge held that the respondent was not claiming any property interest in properties or corporations located in China, only in the monetary payment that would occur after the equalization calculation based on properties or corporations in China. However, this factor assumed that an equalization payment would be the only remedy under Chinese law. There was no evidence that equalization rather than distribution of properties would be the remedy in China and the motion judge engaged in speculation that this would be the case.

Finally, the motion judge erred in her analysis of the respondent’s loss of a legitimate juridical advantage. Both parties tendered conflicting expert reports about limitation periods in China, and the motion judge sided with the respondent. Although there was some evidence supporting the respondent’s position, the Court concluded that the motion judge did not resolve an inconsistency between the facts of the case and the facts relied upon by the respondent’s expert opinion. The opinion regarding the one-year time limit concerned parties who “change their mind” over property division. However, the respondent’s evidence was that he was misled in terms of the Divorce Agreement and was not aware of the existence of a Supplementary Agreement. The court held that, on that evidence, it was less clear that the respondent was, in fact, out of time in China.

In sum, the court concluded that the motion judge erred in principle in her forum non conveniens analysis, and that the balance tipped heavily in favour of China as the “clearly more appropriate” forum.

(3) Not considered.

Given that China was the more appropriate forum, this issue was moot.


Wakeling v. Desjardins General Insurance, 2021 ONCA 672

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

Counsel:

A. Ismail, for the appellants
G. P. Kerr and W. L. Main, for the respondents

Keywords: Torts, Intrusion Upon Seclusion, Breach of Privacy, Breach of Confidence, Contracts, Duty of Good Faith, Remedies, Punitive Damages, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Standard of Review, Correctness, Employment law, Wrongful Dismissal, Human Rights law, Discrimination, Human Rights Code, R.S.O. 1990, c. H. 19, ss 1, 46.1(2), Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Jones v. Tsige, 2012 ONCA 32, Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 61 O.R. (3d) 481 (Ont. C.A.), Davy Estate v. CIBC World Markets Inc., 2009 ONCA 763, McCreight v. Canada (Attorney General), 2013 ONCA 483, Mortazavi v. University of Toronto, 2013 ONCA 655, Jaffer v. York University, 2010 ONCA 654, Knight v. Surrey Place Centre, 2017 HRTO 281, 02535 Ontario Inc. v. Non-Marine Underwriters Lloyd’s London England, (2000), 184 D.L.R. (4th) 687 (Ont. C.A.), Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, Brandiferri v. Wawanesa Mutual Insurance, et al., 2012 ONSC 2206, Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, Barata v. Intact Insurance Company, 2021 ABQB 419, Dervisholli et al. and Cervenak and State Farm, 2015 ONSC 2286

facts:

B.E was involved in a car accident and her claim for accident benefits was denied by her insurer, Desjardins General Insurance Group Inc. B.E appealed the denied claim to the License Appeal Tribunal (the “LAT”). A case conference was scheduled before the tribunal. B.E brought J.W to the conference to act as a witness, recorded her name on the witness list and provided the list to Desjardins’ counsel, N.C, at the hearing. The list was then given to Desjardin. At the time, J.W was employed at Desjardin, but was subsequently let go from her position following these events.

Both B.E and J.W Desjardins and its counsel, N.C, alleging that their privacy had been invaded when it was revealed to Desjardins management that J.W had participated in the conference. J.W also argued that she had been wrongfully terminated.

The motion judge struck the appellants’ claims for breach of privacy, which included a claim for punitive damages. She dismissed the entire action against N.C and denied the appellants leave to add new claims and defendants to their Statement of Claim. The motion judge did not dismiss J.W’s wrongful termination claim, which included a claim for aggravated and punitive damages.

issues:

(1) Did the motion judge err by striking their claim for breach of privacy (intrusion upon seclusion) without leave to amend?

(2) Did the motion judge err by dismissing their entire action against the respondent N.C without leave to amend?

(3) Did the motion judge err by striking some of their claims for punitive damages?

(4) Did the motion judge err by not permitting them to amend their claim to add new defendants and new causes of action?

holding:

Appeal dismissed.

reasoning:

(1) No.

As per McCreight v. Canada (Attorney General), the standard of review on a Rule 21.01(1)(b) motion to strike is correctness. The motion judge noted that a pleading should be struck if it plainly and obviously discloses no reasonable cause of action, assuming all the facts pleaded to be true. She also set out the test for the tort of intrusion upon seclusion (breach of privacy): (1) intentional conduct by the defendant; (2) an invasion, without lawful justification, of the plaintiff’s private affairs or concerns; and (3) an invasion that would be regarded by a reasonable person as highly offensive causing distress, humiliation, or anguish.

The respondents’ conduct was not intentional, because the respondents never compelled or caused J.W to appear at the conference and never compelled or caused J.E to turn over the witness list. The respondents passively received the information that they were lawfully entitled to receive in the context of the LAT proceeding. Finally, the motion judge found that a reasonable person would never consider the alleged intrusion to be highly offensive. The decision to disseminate the witness list to Desjardins management could not be considered an intrusion, because breach of privacy is not concerned with the dissemination of information.

A motion judge’s decision not to grant leave to amend a pleading is discretionary, and an appellate court should not interfere with it unless the motion judge erred in principle or acted unreasonably.

(2) No.

The statement of claim pleaded in diverse respects variations on a theme that Desjardins’ counsel owed a duty to the appellants, and in some cases was premised on a duty said to exist after the case conference and after the report to Desjardins. For example, the appellants pleaded that counsel breached her obligations to the administration of justice when she failed to counsel her client on the impropriety of terminating J.W’s employment and failed to recognize she had a conflict of interest when she later learned that her employer had acted on the information provided.

As the motion judge correctly noted, N.C’s duty was to her employer, Desjardins, for whom she was acting as counsel. She did not owe a duty of care to the appellants.
Again, a motion judge’s decision not to grant leave to amend a pleading is discretionary, and an appellate court should not interfere with it unless the motion judge erred in principle or acted unreasonably

(3) No.

The claim for punitive damages is not a free-standing cause of action. In other words, it must be tied to an independent actionable wrong. Therefore, if the statement of claim does not disclose a reasonable cause of action for intrusion upon seclusion, then the claim for punitive damages for that wrong must also fail. Further, an attempt at characterizing the wrong supporting the claim for punitive damages as a breach of the contractual duty of good faith will be unsuccessful because the receipt of the information provided could not amount to a contractual duty of good faith.

(4) No.

The statement of claim alleged that four named individuals had access to and/or misused the plaintiff’s personal information to harass and eventually improperly terminate J.W. However, access to information at the case conference cannot amount to an intrusion upon seclusion for the reasons mentioned above. Further, there were no other particular facts alleged which could form the basis of an action against the four proposed new defendants.

The appellants also sought to add claims for breach of confidence. There could be no expectation of confidentiality here attaching to communication of a witness list, or to information as to the identity of a person attending the proceedings.

Section 46.1(2) of the Human Rights Code provides that a claim for breach of the Code may be advanced in a court proceeding when ancillary to another valid claim. The latter had not been established. Further, the appellant has not articulated in her statement of claim how the respondents’ conduct could be discriminatory under section 1 of the Code.


Perodeau v. TD Canada Trust, 2021 ONCA 670

[Paciocco, Nordheimer and Coroza JJ.A.]

Counsel:

Dominic Perodeau, acting in person
J. Kulka, for the respondent TD Canada Trust
A. Odinocki, for the respondent TD Insurance

Keywords: Contracts, Real Property, Mortgages, Enforcement, Insurance, Termination, Torts, Negligence, Breach of Fiduciary Duty, Civil Procedure, Summary Judgment, Res Judicata, Parties Under Disability, Rules of Civil Procedure, Rules 1.03(1), and 7.01, Christie v. British Columbia (Attorney General), 2007 SCC 21, Costantino v. Costantino, 2016 ONSC 7279, Sosnowski v. Johnson, [2006] O.J. No. 3731 (Ont. C.A.)

facts:

The respondent, TD Bank held a charge (“mortgage”) over the appellants’ property. Terms of the mortgage required the appellants to insure the property. Failure to meet this requirement would allow TD Bank to secure insurance and add the costs to the mortgage payments. The appellants held insurance for roughly a decade, but subsequently defaulted on the premium payments to the respondent Primmum (a TD insurance company), which cancelled the policy. The mortgage was subsequently renewed with TD Bank, despite not having insurance in place.

Two years after their insurance was cancelled for non-payment, the appellants defaulted on their mortgage which led to TD Bank demanding payment of the arrears and commencing an action for payment on the mortgage. At around the same time, the property was severely damaged by a fire. A year and a half later, TD Bank was granted summary judgment enforcing the mortgage debt.

Two months later, the appellants commenced the action that is the subject of this appeal in which they sought damages, a stay of TD Bank’s writ of possession on the property, and an order that they be permitted to make mortgage payments. In that action, the appellants claimed that TD Bank breached its fiduciary duty to them to caution them that they had not insured the property before renewing their mortgage. The appellants also claimed that Primmum breached a fiduciary duty it owed to the bank to ensure that the property was insured before the mortgage was renewed. In granting summary judgment in favour of the respondents, the motion judge held that no fiduciary duties were owed, that the action against TD Bank was res judicata, and that the action was statute barred against both respondents, pursuant to the Limitations Act, 2002, S.O. 2002, c. 24.

issues:

(1) Did the motion judge err by not ensuring that the appellants were represented, given that D.P was a “Self Litigant”, and S.P was a party under disability entitled to a litigation guardian pursuant to Rule 7.01 of the Rules of Civil Procedure.

(2) Did the motion judge err in granting summary judgment when there were shortcomings in the procedure, including the failure of the respondents to serve affidavits or produce documents, the failure of the respondents to produce witnesses for cross-examination, and the failure by the motion judge to initiate an objection to improper submissions made by respondents’ counsel.

(3) Did the motion judge err by failing to address the appellants’ claim of “On Going Tortious Harm”, and the “Civil Interpretation of Res Judicata”.

holding:

Appeal dismissed.

reasoning:

(1) No.

There is a presumption that a plaintiff is capable of conducting litigation, and the appellants did not rebut this presumption. First, a litigant is not entitled to representation simply because they are unrepresented. Second, no evidence was presented establishing that S.P was “mentally incapable” and therefore a party under disability within the meaning of the Rules.

(2) No.

The Court determined that the motion judge did not err for several reasons. The appellants: 1) did not object to the motion judge proceeding to summary judgment; 2) did not establish that the respondents failed to serve affidavits or produce material documents or information; 3) made no request for cross-examination; 4) did not show that counsel for TD Bank made inappropriate submissions.

(3) No.

a) Tortious harm was not pleaded in the action, and further the Court saw no air of reality to such a claim. Therefore, the motion judge was under no obligation to address a tortious harm claim.

b) The action against the respondents that the motion judge dismissed was an unmeritorious attempt by the appellants to delay the mortgage enforcement by relitigating the previous mortgage enforcement decision. The motion judge’s res judicata analysis was legally accurate, clear, and supported.


Khairzad v. Erroussa, 2021 ONCA 667

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

Counsel:

J.A. Brown, for the appellant
J.V. Grant, for the respondent

Keywords: Family Law, Custody and Access, Decision-Making, Parenting Time, Child Support, Imputed Income, Variation, Material Change in Circumstances, Fresh Evidence, Civil Procedure, Disclosure, Costs, Child Support Guidelines, Hickey v. Hickey, [1999] 2 S.C.R. 518, Van de Perre v. Edwards, 2001 SCC 60, R.F. v. J.W., 2021 ONCA 528, Palmer v. The Queen, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300

facts:

The appellant appealed a March 2020 order that (i) dismissed his motion to change a 2017 decision-making responsibility and parenting time order and (ii) increased his monthly child support payments based on an imputed annual income of $40,000. The appellant also brought a motion for leave to adduce fresh evidence on his annual income, employment status and leasing arrangements.

The parties separated prior to the birth of their daughter in 2016.

In August 2017, an order was made granting the respondent primary decision-making responsibility and parenting time. The appellant brought a motion to change the order, which was dismissed in March 2020. The motion judge found that despite the appellant taking on an increased role in his daughter’s life, there had not been a material change in circumstances warranting a change in decision-making responsibility. Further, the motion judge stated that even if there had been a material change, joint decision-making responsibility would be unworkable given the history of abuse and animosity between the parties. In terms of parenting time, the respondent conceded that there had been a material change in circumstances given their daughter’s age and stage of development.

The August 2017 order also required the parties to provide updated annual income disclosure. Neither the appellant nor respondent provided this disclosure. Further, in September 2019, the appellant was ordered to make financial disclosure. Again, the appellant failed to produce the disclosure. Based on the appellant’s failure to comply, the passage of time and the likelihood that the appellant’s income had not remained static, the motion judge found a material change in circumstances. The motion judge imputed income of $40,000 based on the appellant’s work hours, hourly rate, the availability of work, and collateral lifestyle evidence.

issues:

(1) Did the motion judge err by failing to award joint decision-making responsibility and refusing to increase the appellant’s parenting time?

(2) Did the motion judge err in increasing the appellant’s monthly child support based on an imputed annual income of $40,000?

(3) Should the Court grant leave to the appellant to adduce fresh evidence on his annual income, employment status, and leasing arrangement?

holding:

Appeal dismissed. Motion for leave to admit fresh evidence dismissed.

reasoning:

(1) No

The Court cited Hickey v. Hickey and Van de Perre v. Edwards in holding that a court should only intervene in a parenting order or family support decision where there has been a material error or serious misapprehension of the evidence, or an error of law. The Court did not find any such errors. The Court found that the motion judge applied the correct legal principles. Further, the Court found that the motion judge’s findings and conclusions were fully justified on the record before her and anchored in the best interests of the child.

(2) No

The Court found that the motion judge’s inference and conclusions were reasonable.

(3) No

The Court declined to grant leave to the appellant. The appellant had failed to comply with both the 2017 and 2019 disclosure orders. The Court also cited R.F. v. J.W. and stated that the proper place for new evidence about changed circumstances is not in the context of an appeal. Finally, while that the test for admitting fresh evidence in Palmer v. The Queen calls for greater flexibility where an appeal involves the best interests of a child, the Court did not find that the proposed evidence would affect the decision.


Ottawa-Carleton Standard Condominium Corporation No.671 v. Friend, 2021 ONCA 666

[Ward, Benotto, and Trotter JJ.A]

Counsel:

S. Zakhour, for the appellants
C. Wood and D. Lu, for the respondent

Keywords: Real Property, Condominiums, Equitable Remedies, Permanent Injunctions, Civil Procedure, Applications, Condominium Act, 1998, S.O. 1998, c.19, ss. 117, 134, Rules of Civil Procedure, Rule 14.05(2)

facts:

The appellants are condominium owners and F have had a long-standing dispute with the condominium corporation’s Board of Directors and employees. F has refused to follow the condominium’s by-laws and rules, interfered with contractors attempting to carry out work in the building, exhibited rude and demeaning behaviour and harassed members of the Board of Directors and employees of the condominium. Additionally, he physically accosted the President of the Board.

The respondent obtained an interim injunction that restricted F’s ability to communicate with the people he harassed and accosted. He persisted in his behaviour. The respondent condominium corporation brought an application under section 134 of the Condominium Act, and Rule 14.05(2) of the Rules of Civil Procedure seeking a permanent injunction against F. The application judge found F was in violation of s.117 of the Condominium Act, which provides: “No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.” The application judge held that “injury” includes psychological harm. The application judge ordered that F “cease and desist in conduct that contravenes the Act and/or the Condominiums’ declaration, by-laws and rules”. He restricted F’s ability to communicate with members of the condominium community, including their families.

issues:

(1) Can the appellant’s adduce fresh evidence in the form of F’s affidavit in which he purports to show that he was treated unfairly at the hearing of the application?

(2) Did the trial judge have jurisdiction to order a permanent injunction?

(3) Did the application judge err in failing to apply the proper test for a permanent injunction?

(4) Were the proceedings unfair because an adjournment was denied?

(5) Were the proceedings unfair because the trial judge failed to consider F’s position on contentious matters?

(6) Should the application judge have converted the proceeding to an action because facts were in dispute?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The fresh evidence was admitted for the limited purpose. It was not admissible, and was irrelevant, to the substantive issues decided by the application judge.

(2) Yes.

The application was properly brought under s.134 of the Condominium Act and provided the jurisdictional footing for the order that was made.

(3) No.

While the trial judge did not specifically advert to the test he applied in making the order, the order that he made was authorized by s. 134(3) of the Condominium Act, which permits a judge to “grant such other relief as is fair and equitable in the circumstances.” F’s offensive conduct continued after the interim injunction was in place which amply justified the application judge’s order.

(4) No.

The decision to grant an adjournment is a discretionary one that must be afforded deference on appeal. In this case, the application judge gave thorough reasons for refusing an adjournment, noting that the request was, “but one of a pattern of adjournment requests by F.”

(5) No.

F did not file an affidavit; instead, he relied on a slide presentation and an affidavit filed in a related lien action. As the application judge said, “[m]uch of the materials filed by F do not respond to the issues on this application and instead recite his disputes with the Condominium dating back to 2011 and unrelated matters such as the Condominium’s 2019 Auditor’s Report.”

(6) No.

The material facts were either admitted to by F or simply not addressed. The application judge’s decision was reasonable.


LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046, 2021 ONCA 677

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

Counsel:

Allan Sternberg and Emily Hives, for the appellant
Mark H. Arnold, for the respondent

Keywords: Real Property, Condominiums, Oppression, Duty of Good Faith, Contracts, Duty of Good Faith Negotiations, Condominium Act, 1998, S.O. 1998, c. 19, s 135, 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, Welton v. United Lands Corporation Limited, 2020 ONCA 322, Manastersky v. Royal Bank of Canada, 2019 ONCA 609, R. v. R.E.M., 2008 SCC 51

facts:

In the case under appeal, the application judge dismissed an application for oppression under section 135 of the Condominium Act, 1998, S.O. 1998, c. 19.

The appellant operates a commercial parking facility in a condominium building in downtown Toronto. It owns 131 of 136 parking units and 16 of 94 commercial/residential units in the building. The respondent is a condominium corporation and manages and administers the complex, including the garage. The parties entered into a lease for the parking garage in 2000. Monthly parking lot users had access to the building all hours of the day, every day, while community hourly parking lot users only had access during business hours on weekdays. The lease expired in May 2017, and the appellant proposed a new agreement to expand the hours of parking for community customers from business hours weekdays to 24 hours a day, seven days a week. The parties entered into negotiations.

On June 6, 2018, the appellant commenced an application under s. 135 of the Condominium Act, seeking a declaration that the respondent acted oppressively in interfering with the appellant’s ability to operate the parking facility and in refusing to engage in good faith negotiations for a new parking agreement. On July 31, 2018, the respondent sent the appellant a letter containing preconditions to the appellant’s commercial exploitation of its parking units. The appellant did not respond and in November 2018, unilaterally installed a parking booth in the garage while negotiations were ongoing. In December 2018, the respondent approved an extension to the opening hours of the parking facility, but not to 24/7 access as requested by the appellant, due to security concerns. In February 2019, the respondent expanded its preconditions to include priority for residents’ parking. The application came on for hearing on January 31, 2020.

issues:

(1) Did the application judge apply the wrong legal test for the oppression remedy under the Condominium Act by focusing on whether the respondent’s conduct was reasonable and whether the business judgment rule applied?

(2) Did the application judge err in concluding that the respondent’s conduct did not amount to oppression, unfair prejudice or unfair disregard?

(3) Were the application judge’s reasons insufficient, thus justifying appellate intervention?

holding:

Appeal dismissed.

reasoning:

(1) No.

The application judge clearly understood and applied the correct two-pronged test for oppression: (i) a breach of the appellant’s reasonable expectations, and (ii) conduct that amounted to oppression, unfair prejudice, or unfair disregard of the appellant’s interests. Although it would have been preferable for her to have used the term “reasonable expectations” in her discussion of the parking negotiations, she was responding to the terminology used by the parties and to the arguments as framed by them.

There is no error in her conclusion that there was no evidence of bad faith or oppressive conduct and that the respondent had acted reasonably. She accordingly applied deference to the respondent’s balancing of the interests of the appellant with those of the other unitholders.

(2) No.

The application judge considered the competing interests of the parties, recognized that the negotiations were ongoing, and found that as of the date of the hearing, the appellant had not established oppression under the Act. The evidence supported the application judge’s finding that a final decision had not been taken by the parties. While the application judge failed to make certain factual findings, she was not obliged to address every argument raised.

(3) No.

The application judge gave detailed reasons for decision. She identified the key issues, made the necessary findings of fact, and set out her chain of reasoning. This was no basis on which to interfere.


Moses v. Moses, 2021 ONCA 662

[Strathy C.J.O., Lauwers and Sossin JJ.A.]

Counsel:

G. M. Sidlofsky, for the appellant

C. Francis, for the respondent, Ra. M.

R. Das, for the respondent, Ro. M., personally and in her capacity as the Estate Trustee of the primary and secondary estates of A.R.M.

Keywords: Wills and Estates, Invalidity, Undue Influence, Estates Act, R.S.O. 1990, c. E.21, s. 23, Rules of Civil Procedure, Rule 75.06(1), Adams Estate v. Wilson, 2020 SKCA 38

facts:

The appellant appeals the application judge’s dismissal of an application for a declaration of invalidity of a will made by the appellant’s late father in 2019, three months before his death. He was not a beneficiary under the 2019 Will. The appellant claimed that the 2019 Will was invalid as a result of undue influence by his mother, the respondent Ro. M., and by his sister, the respondent Ra. M. In other proceedings, the appellant claims an interest in his father’s property, based in part on proprietary estoppel.

The application judge found that the appellant had no standing to bring the application to declare the will invalid, either under r. 75.06(1) of the Rules of Civil Procedure or under s. 23 of the Estates Act. He was not a beneficiary under the 2019 Will and, even if the 2019 Will were to be set aside on the ground of undue influence, he would not be affected by the result, because there was an earlier will, made in 1996 (the “1996 Will”), under which the appellant would receive no share on the death of his father – the entire estate would go to his mother.

issues:

(1) Whether the application judge erred in the interpretation or application of s. 23 of the Estates Act, which gives a party standing under a will when making a claim to “property affected by the will”?

(2) Whether the application judge erred by putting an onus on the appellant to establish the invalidity of the 1996 Will?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court was not persuaded that the application judge erred in the interpretation or application of s. 23 of the Estates Act. The jurisdiction under that provision is discretionary and the appellant identified no error by the application judge in the exercise of his discretion.

The appellant also submitted that in rejecting his submission – that his separate civil action against the estate is a claim “to property affected by the will” that would give him standing to challenge the validity of the Will – the application judge incorrectly relied on the decision of the Saskatchewan Court of Appeal in Adams Estate v. Wilson, 2020 SKCA 38. However, in the circumstances, the Court did not find it necessary to decide whether the decision of the Saskatchewan Court of Appeal in Adams Estate reflected the law of Ontario.

(2) No.

In the circumstances, there was an onus on the appellant to adduce some evidence to call into question the considerable body of evidence adduced by the respondent to establish the validity of the 1996 Will. The conclusion that the appellant failed to do so was entitled to deference.


Narwhal International Limited v. Teda International Realty Inc., 2021 ONCA 659

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

Counsel:

Gennady Tcherny, President of Narwal International Limited, acting as agent for the appellant, with leave of the Court
Stephanie Tassopoulos, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Duty of Good Faith, Civil Procedure, Evidence, Credibility, Godson v. P. Burns & Co. (1919), 46 D.L.R. 97 (S.C.C.), Molson Canada 2005 v. Miller Brewing Company, 2013 ONSC 2758, R. v. Palmer, [1980] 1 S.C.R. 759, Longo v. MacLaren Art Centre, 2014 ONCA 526, 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843

facts:

In the decision under appeal, the application judge found that the document tendered by the respondent was the agreement made between the parties. This document stated that the net rental rate for the five-year renewal period was to be “discussed between landlord and tenant”, and did not create an enforceable legal obligation.

In March 2019, the appellant tenant had notified the respondent landlord of its intention to renew the lease for a five-year period. Protracted negotiations between the parties did not result in agreement on the rent to be paid during the renewal period. The appellant and respondent relied on two different documents, with variable renewal provisions, as their executed agreement to lease. The appellant commenced an application for a declaration that it was entitled to renew the lease and for an order setting the rent for the renewal period.

issues:

(1) Which of the two documents was the agreement to lease executed by the parties?

(2) Did the landlord negotiate in good faith with respect to the rental rate for the renewal term?

holding:

Appeal dismissed.

reasoning:

(1) Declined to Answer

(2) Declined to Answer

The appellant invited the Court to revisit the findings of fact made by the application judge. In the absence of a palpable and overriding error in the application judge’s assessment of the evidence, an appellate court must accept the judge’s findings of fact. The application judge made no such error. The Court declined to admit fresh evidence that was not considered relevant to the issues on appeal, and would not have influenced the application judge’s findings of fact.


SHORT CIVIL DECISIONS

Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2021 ONCA 646

[Fairburn A.C.J.O., Lauwers and Jamal* JJ.A.]
*Jamal JJ.A. did not take part in this decision

Counsel:

R.P. Steep, B.E. Gray, and S. Sugar, for the appellant, Ontario Lottery and Gaming Corporation
D.B. McPherson, E.S. Huang, M. Fancy, and I. Kanjee, for the appellant, Her Majesty the Queen in right of Ontario
S. Block, D. Outerbridge, L. Jackson, N. Wall, and H. Allen, for the respondent, Ontario First Nations (2008) Limited Partnership

Keywords: Civil Procedure, Costs

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.