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Good afternoon.
Following are this week’s summaries of the Court of Appeal for Ontario for the week of June 7, 2021.
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In O’Reilly v. ClearMRI Solutions Ltd, the Court set aside the motion judge’s determination that that the two appellant corporations were common employers, and set aside the judgment against one of them. The motion judge had not properly applied the law relating to the separate corporate personalities. Just because corporations are related or commonly controlled, that does not automatically make both of them liable for the obligations of the other. The Court upheld the conditional liability of a director for unpaid wages under s. 131 of the Ontario Business Corporations Act.
In Charlesfort Development Limited v Ottawa (City), the Court concluded that the City’s duty to process a rezoning application did not give rise to a duty of care on the part of the City towards the developer to notify it of all information within the City’s knowledge that might affect the viability or profitability of a proposed development.
In Eynon v. Simplicity Air Ltd, the Court upheld a jury’s award of punitive damages against an employer for the improper conduct of its employees in a workplace health and safety case.
In Wiseau Studio, LLC v. Harper,, on a motion to review, the Court, with very brief reasons, set aside Justice Thorburn’s ground-breaking order for security for judgment ordered against the appellants. The order was based on the appellants’ concession that their appeal was frivolous. However, now that they had articulated their appeal and perfected it, they were permitted to resile from their concession. The order for security for costs of the trial and appeal was left undisturbed.
Other topics covered this week included child protection, stay pending appeal in a custody and access case, and a solicitor’s liability for a false statement on the registration of a document on title.
Wishing everyone an enjoyable weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
Charlesfort Development Limited v. Ottawa (City), 2021 ONCA 410
Keywords: Torts, Negligent Misrepresentation, Duty of Care, Proximity, Reasonable Foreseeability, Reasonable Reliance, Pure Economic Loss, Anns v. London Borough of Merton, [1977] 2 All E.R. 492 (H.L. (Eng.)); Cooper v. Hobart, 2001 SCC 79, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, 16688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42
Children’s Aid Society of Algoma v. G.C, 2021 ONCA 400
Keywords: Family Law, Child Protection, Civil Procedure, Summary Judgment, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1., ss 74(2)(d), Family Law Rules, O. Reg. 114/99, Rules 16(6.1) and (6.2), Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316
O’Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385
Keywords: Contracts, Employment, Common Employer Doctrine, Corporations, Doctrine of Separate Legal Pesonality, Unpaid Wages, Directors’ Liability, Business Corporations Act, R.S.O. 1990, c. B.16, s. 131, Yaiguaje v. Chevron Corporation, 2018 ONCA 472, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Sinclair v. Dover Engineering Services Ltd., 49 D.L.R. (4th) 297 (B.C.C.A.), Rowland v. VDC Manufacturing Inc., 2017 ONSC 3351, Downtown Eatery (1993) Ltd. v. Her Majesty the Queen in Right of Ontario (2001), 54 O.R. (3d) 161 (C.A.), Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Housen v. Nikolaisen, 2002 SCC 33
Eynon v. Simplicity Air Ltd., 2021 ONCA 409
Keywords: Torts, Negligence, Contributory Negligence, Personal Injury, Labour and Employment, Workplace Health and Safety, Damages, Punitive Damages, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A., s. 22.1, s.155.1, s.158(1), Whiten v. Pilot Insurance Co., 2002 SCC 18, Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 61 O.R. (3d) 481, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, Rutman v. Rabinowitz, 2018 ONCA 80
K.K. v. M.M., 2021 ONCA 407
Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Stay Pending Appeal, Security for Costs, Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30, Rules of Civil Procedure, Rule 61.06(1)(a), Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764
Wiseau Studio, LLC v. Harper, 2021 ONCA 396
Keywords: Civil Procedure, Appeals, Security for Judgement, Security for Costs, Orders, Enforcement
Bank of Montreal v. Cadogan, 2021 ONCA 405
Keywords: Contracts, Professional Liability, Lawyers, Real Property, Parcel Register, Registration of Documents, Law Statements, Civil Procedure, Summary Judgment, Adjournments, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), Toronto-Dominion Bank v. Hylton, 2010 ONCA 752
Short Civil Decisions
Manicom v. Manicom, 2021 ONCA 399
Keywords: Family Law, Corporations, Contracts, Share Purchase Agreements, Restrictive Covenants, Remedies, Specific Performance
Luangchaleun (Re), 2021 ONCA 398
Keywords: Reintegration into Community, Conditional Discharge, Absolute Discharge, Substance Abuse, section 672.78(1)(a) of the Criminal Code of Canada, R. v. Owen, [2003] 1 S.C.R. 779
Dhatt v. Beer, 2021 ONCA 412
Keywords: Contracts, Agreements of Purchase and Sale of Land, Civil Procedure, Costs
De Palma v. Canadian Federation of Independent Business, 2021 ONCA 406
Keywords: Contracts, Employment, Constructive Dismissal, Intentional Infliction of Mental Suffering, Long Term Disability, Accommodation, Civil Procedure, Summary Judgment, Adjournments, Ontario Human Rights Code, R.S.O. 1990, c. H.19, Rules of Civil Procedure, Rules 20.01(3), 20.04(2.1)
CIVIL DECISIONS
Charlesfort Development Limited v. Ottawa (City),, 2021 ONCA 410
[Harvison Young J.A.]
Counsel:
A. Tomkins and A. Tardif, for the respondent
T.J. Hill and M. van Zandvoort, for the respondent
Keywords: Torts, Negligent Misrepresentation, Duty of Care, Proximity, Reasonable Foreseeability, Reasonable Reliance, Pure Economic Loss, Anns v. London Borough of Merton, [1977] 2 All E.R. 492 (H.L. (Eng.)); Cooper v. Hobart, 2001 SCC 79, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, 16688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42
facts:
The respondent purchased a property with intent to redevelop it into a 15-storey condominium tower with a two-story underground parking garage. The purchase was conditional on the approval of a rezoning application from a general commercial designation to a residential designation. This rezoning would change the setback below ground level to allow for a proposed underground parking site to extend to the property lines with no setback. While deliberating the zoning application, a City engineer noted a four foot water main just north of the property – this information was not forwarded to the Infrastructure Approvals division or to the respondent.
The rezoning application was approved in 2005 and the Ontario Municipal Board approved a one-meter setback above-grade and no provision for a below-grade setback. The respondent then waived the conditions relating to rezoning and acquired the property.
In August 2007, the respondent applied for site plan approval expecting construction to be completed by the summer of 2009. In October 2007, the City asked for revised drawings including the water main and the easement. The respondent complied, obtained a demolition permit, and applied for an excavation permit. The City then realized the water main was very close to the property line and was concerned about a potential breach and whether the easement alone was enough to protect the water main. Ultimately, the respondent had to adjust its plans and increase the distance between the edge of the parking garage and excavation area and the water main to receive an excavation permit from the City. In 2008, the respondent received an excavation permit and site plan approval, and the condominium was completed in 2011, two years later than originally scheduled.
The trial judge held that the City owed the respondent a duty of care during the rezoning process in the context of a negligent misrepresentation claim. The trial judge went on to find that the City could reasonably foresee that the respondent would rely on its representations and that the respondent would incur losses if the representations were inaccurate. If the respondent had known about the water main in 2005, it would not have waived the conditions of purchase and would have found another property on which to build its condominium. The trial judge found in favour of the respondent and awarded $4.5 million in damages and pre-judgment interest because of the City’s negligence.
issues:
(1) Did the trial judge err in holding that the City owed the respondent a duty of care?
(2) Did the trial judge err in finding that the respondent relied on the City’s misrepresentation?
(3) Did the trial judge err in varying the rate of pre-judgment interest that the respondent was entitled to?
holding:
Appeal allowed.
reasoning:
(1) Yes
The trial judge erred in holding that the City owed the respondent a duty of care because there was no relationship of proximity between the City and the respondent, and no undertaking given by the City to the respondent that would be sufficient to create reasonable foreseeability of harm.
While the trial judge correctly cited and applied Livent, she did not have the benefit of Maple Leaf at the time of her decision, which has added clarity to the undertaking analysis when determining proximity between the parties. The trial judge began her proximity analysis by determining whether the parties had a sufficiently close and direct relationship to ground a duty of care. Included in this analysis was the fact that the respondent paid a fee to the City for the rezoning application and that the statutory scheme placed an onus on the City to obtain information on the proposed rezoning. She found that parties expected that all information would be shared with the respondent and that developers generally rely on information received from City planners. This created a sufficiently close and direct relationship to create a prima facie duty of care. Ultimately, the trial judge found that the City implicitly undertook to tell the respondent the details of the water main.
The appeal judge found that this “implicit undertaking” was the central flaw in the trial judge’s analysis. An implicit undertaking does not follow Maple Leaf’s clarification on the proximity analysis, which is that the relationship of proximity and duty stems from the intended effect of an undertaking. Maple Leaf further affirmed that the purpose of any undertaking limits the scope of reliance on the undertaking. The Court of Appeal found that the City did not provide an undertaking to the respondent, nor could the respondent have reasonably relied on the City’s representations.
While implicit undertakings are possible, it is more difficult to consider the scope of the undertaking to determine who its intended beneficiaries are. The extent of the City’s undertaking to the respondent, upon accepting its rezoning application and fee, was to process the application. The respondent’s reliance on the City to take the appropriate considerations in processing its application is valid. The court found that the purpose of the City’s undertaking was not to ensure the economic viability of the respondent’s project but rather to fulfil its statutory duty to process the rezoning application and act in the public interest while doing so. Nothing in the legislative framework suggests an intention to create a private law duty to developers or a duty to protect developers from pure economic loss.
The scope and purpose of the undertaking must consider the nature of the process – a rezoning application does not give a basis to support the inference that upon approval of the rezoning application, the City’s intent would be to undertake that the ultimate project would be built or profitable. The court found that this result would create a potentially limitless liability.
Ultimately, the court found that there was no relationship of proximity and the City had not induced the respondent to rely on its undertakings such that it would result in economic losses. Because the City did not undertake to ensure the viability of constructing the condominium and parking garage, there can be no reasonable foreseeability of the respondent’s reliance or related economic losses.
(2) and (3) Not considered.
Because the Court found that there was no duty of care, there was no need to consider issues 2 and 3.
Children’s Aid Society of Algoma v. G.C., 2021 ONCA 400
[Doherty, Trotter and Thorburn JJ.A.]
Counsel:
E. McCooeye, for the appellant
J. Mealey, for the respondent Children’s Aid Society of Algoma
No one appearing for the respondent C.P.
No one appearing for the respondent S.B.
No one appearing for the respondent Conseil des Abenakis D’Odanak.
C. Bellinger and L. Parisé, for the respondent Office of the Children’s Lawyer
Keywords: Family Law, Child Protection, Civil Procedure, Summary Judgment, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1., ss 74(2)(d), Family Law Rules, O. Reg. 114/99, Rules 16(6.1) and (6.2), Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316
facts:
The Children’s Aid Society of Algoma (the “Society”) applied to have three of the appellant’s children found in need of protection on the grounds of risk of sexual harm.
The appellant is the biological father of the three children. The Society brought applications in respect of each child: the first on the grounds of actual sexual harm and risk of sexual harm, and the other two on the basis of risk of sexual harm. The appellant has not been convicted of any sexual offences but has a history of being charged with sexual offences against pre-teens. A doctor who conducted a psychosexual assessment on the appellant believed the appellant suffers from pedohebephilia.
The motion judge concluded that there was no genuine issue requiring a trial and made the finding under section 74(2)(d) of the Child, Youth Family Services Act (“CYFSA”). The motion judge analyzed the evidence before him through the lens of Kawartha-Haliburton, then gave extensive and detailed reasons with respect to his jurisdiction to grant summary judgment before concluding that a trial would inevitably result in the same outcome as is sought by the applicant society. The appellant raised numerous issues on his first appeal which were dismissed because the appeal judge found that the motion judge took the proper approach and made no errors in his ruling.
This was a further appeal from the dismissal of his initial appeal.
issues:
(1) Did the motion judge and the appeal judge properly consider the principle of proportionality in the summary judgment proceeding?
holding:
Appeal dismissed.
reasoning:
(1) Yes.
The appeal judge was correct to find that the motion judge applied the correct test for summary judgment and demonstrated a proper application of the principles discussed in Kawartha-Haliburton.
The appellant’s argument was that a summary judgment motion was not suitable for a finding under section 74(2) of the CYFSA because of the significant consequences of this finding, and relied on his inability to cross-examine affiants who made allegations against him. The appeal judge found that it was open to all counsel on the motion to request a mini-trial under rule 16(6.2) of the Family Law Rules, and no such request was made. The appellant had the opportunity to attack the affiants’ evidence and was required to put his best foot forward on a summary judgment motion. The fact that he did not is not enough to find that the motion judge erred in how he dealt with the evidence. In coming to his conclusion, the motion judge ruled that the bulk o the evidence presented by the Society was inadmissible and engaged in a careful balancing of what remained. Rule 16 permitted the motion judge to make findings of credibility, to weigh the evidence, and to draw conclusions entitled to deference. The motion judge formed a proper foundation for his finding under section 74(2)(d) of the CYFSA and the appeal judge correctly upheld this finding.
O’Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385
[Roberts, Zarnett and Sossin JJ.A]
Counsel:
T. Brook and P. Macchione, for the appellants
J. Horvat and A. Chun, for the respondent
Keywords: Contracts, Employment, Common Employer Doctrine, Corporations, Doctrine of Separate Legal Pesonality, Unpaid Wages, Directors’ Liability, Business Corporations Act, R.S.O. 1990, c. B.16, s. 131, Yaiguaje v. Chevron Corporation, 2018 ONCA 472, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Sinclair v. Dover Engineering Services Ltd., 49 D.L.R. (4th) 297 (B.C.C.A.), Rowland v. VDC Manufacturing Inc., 2017 ONSC 3351, Downtown Eatery (1993) Ltd. v. Her Majesty the Queen in Right of Ontario (2001), 54 O.R. (3d) 161 (C.A.), Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Housen v. Nikolaisen, 2002 SCC 33
facts:
The respondent was employed by the appellant company, ClearMRI. The other appellant, Tornado Medical Systems, Inc., (“Tornado”) is the majority shareholder of ClearMRI, as well as the alleged common employer of the respondent.
The respondent was owed a substantial amount of money upon the end of his employment. He brought an action seeking recovery from the appellants. The respondent also brought an action against the directors of the appellants, including Dr. K, under s. 131 of Ontario’s Business Corporations Act (“OBCA”) for six months’ unpaid wages and twelve months’ vacation pay.
The respondent obtained default judgment against ClearMRI and was subsequently successful on a motion for summary judgment against the other defendants. Tornado appealed on the ground that the motion judge erred in finding it a common employer. Dr. K appealed on the ground that the motion judge improperly found liability under s. 131 of the OBCA.
issues:
(1) Was Tornado properly found to be a common employer?
(2) Was Dr. K properly found liable under s. 131 of the OBCA?
(3) Did the motion judge err in the amount of damages awarded?
holding:
Appeal by Tornado allowed. Appeal by Dr. K dismissed.
reasoning:
(1) No.
The doctrine of corporate separateness dictates that the fact that one corporation owns the shares of, or is affiliated with, another does not mean they have common responsibility for their debts: Yaiguaje v. Chevron Corporation, 2018 ONCA 472 at paras 57-58. The common employer doctrine is consistent with corporate separateness. It only imposes liability on companies within a corporate group when each can be said to have entered into a contract of employment with the employee: Sinclair v. Dover Engineering Services Ltd., 49 D.L.R. (4th) 297 (BCCA) at para. 9. A related corporation will be found to be a common employer when there is an intention to create an employer/employee relationship between the individual and the related corporation: Rowland v. VDC Manufacturing Inc., 2017 ONSC 3351, at paras 12-13. This intent is measured objectively. The imperative question for the court to ask is “where effective control over the employee resides”: Downtown Eatery (1993) Ltd. v. Her Majesty the Queen in Right of Ontario (2001), 54 O.R. (3d) 161 (C.A.) at paras 32-33.
Intervention is justified if the judge commits an extricable error of law or makes a palpable and overriding error of fact: Housen v. Nikolaisen, 2002 SCC 33 at para 36. In this case, the motion judge failed to properly address the question of whether Tornado intended to be a party to the employment agreement through exercising control, despite not being a named party to the agreement. More specifically, the evidence did not support the findings that: a) Tornado accepted the respondent’s offer to defer salary, b) why Tornado accepting a loan from the respondent is related to employment duties, c) why ClearMRI’s assurances of future revenue were related to Tornado, and d) there was relevance in the fact that the respondent and Tornado had aligned business objectives. Overall, the motion judge did not answer the critical question of whether the evidence presented showed an intention that Tornado was an employer of the respondent. This was legally insufficient to support summary judgment against Tornado.
(2) Yes.
Subsection 131(2) of the OBCA states that liability against a director personally is conditional upon whether the corporation was in liquidation, ordered to be wound-up, was formally bankrupt, or had an execution against it returned unsatisfied. In this case, judgment was obtained against ClearMRI well before the motion for summary judgment was brought against Dr. K. Even though the judgment did not reflect the fact that Dr. K’s liability was conditional, this does not mean that judgment cannot be granted against Dr. K at all. This is because the OBCA does not put a time limit on the conditions. Accordingly, the judgment was amended to provide for the conditional liability.
(3) No.
The appellants argued that the damages awarded to the respondent did not account for the fact that he resigned in December of 2013. This argument was rejected because the evidence showed that the respondent continued to work “in reality.” It was also argued that the agreement to defer salary specified that payment would resume upon the business earning revenue, which never occurred. This argument was also rejected because the evidence showed that the deferral was not permanent, so the entitlement to claim the deferred money was not waived.
Eynon v. Simplicity Air Ltd., 2021 ONCA 409
[Juriansz, van Rensburg and Sossin JJ.A.]
Counsel:
C.B. Kuehl, J. Scarfone and J. Sazio, for the appellant
R.P. Hosack and P. Karsten, for the respondent
Keywords: Torts, Negligence, Contributory Negligence, Personal Injury, Labour and Employment, Workplace Health and Safety, Damages, Punitive Damages, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A., s. 22.1, s.155.1, s.158(1), Whiten v. Pilot Insurance Co., 2002 SCC 18, Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 61 O.R. (3d) 481, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, Rutman v. Rabinowitz, 2018 ONCA 80
facts:
This is an appeal from a jury award of punitive damages. The respondent sued the appellant for injuries he suffered in the workplace. The respondent’s award of general damages and lost wages was reduced by 75% due to the respondent’s contributory negligence in causing his injuries. The jury also assessed punitive damages against the employer in the amount of $150,000. The jury cited the appellant’s serious lack of proper safety training and documentation, as well as creating a culture within the company whereby employees failed to place adequate importance on best safety practices, as the basis for its assessment of punitive damages.
issues:
(1) Was the issue of punitive damages properly left with the jury?
(2) Did the trial judge err in his instructions on punitive damages, and should he have provided a range for the amount of punitive damages?
(3) Is the appellant liable for punitive damages resulting from the conduct of its employees?
(4) In the alternative, should the amount of punitive damages be reduced because the amount is plainly unreasonable and unjust?
(5) In the alternative, should the amount of punitive damages be reduced by the respondent’s contributory negligence?
holding:
Appeal dismissed.
reasoning:
(1) Yes
The trial judge properly instructed the jury that it could award punitive damages “if the wrongful acts of the [appellant] toward [the respondent] were outrageous or reprehensible and offensive to ordinary standards of decent conduct in the community.” The trial judge referred to the factors relevant to the determination of a proportionate amount of punitive damages.
There was sufficient evidence that a properly instructed jury, acting reasonably, could have awarded punitive damages. The instructions of the appellant’s supervisor to an injured employee to falsely report that he was injured at home, without more, warranted an award of punitive damages. Had the appellant been prosecuted under s. 158(1) of WSIA, the need for punitive damages would have been lessened: Whiten v. Pilot Insurance Co., 2002 SCC 18.
(2) No
The trial judge’s instructions adequately equipped the jury to assess the appellant’s conduct. The trial judge cited the boilerplate punitive damages elements listed in Whiten and gave adequate instruction on how to apply those elements to the facts of the case.
Absent the agreement of counsel on a range for punitive damages, it would have been improper for the trial judge to suggest one to the jury.
(3) Yes
There was no requirement to find an “independent actionable wrong” on the part of the appellant employer. The cited conduct of the supervisors was carried out in the course of their employment for the appellant, and therefore, the conduct of the supervisors was the conduct of the appellant employer. Accordingly, the Court did not give effect to the argument that the award of punitive damages against the appellant was unwarranted because the focus was on the misconduct of its supervisory personnel.
(4) No
The Court was not persuaded that the jury’s award of punitive damages was so inordinately large that it exceeded what was rationally required to punish the appellant. The jury could properly regard the conduct of the appellant as sufficiently illegal and reprehensible to warrant the amount of punitive damages awarded in order to deter similar conduct in the future.
(5) No
There was no basis for reducing the punitive damages award based on contributory negligence.
K.K. v. M.M., 2021 ONCA 407
[Zarnett J.A. (Motions Judge)]
Counsel:
G. Joseph and V. Li, for the appellant, K.K.
A. Pasha, for the respondent M.M.
Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Stay Pending Appeal, Security for Costs, Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30, Rules of Civil Procedure, Rule 61.06(1)(a), Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764
facts:
The parties separated in November 2012 and engaged in what the trial judge described as a “protracted high-conflict legal battle” involving their children, V.K. (now 16 years old) and J.K. (now 11 years old). In March 2014, sole custody of the children was granted to the appellant, K.K. (the “father”) based on an interim finding of parental alienation by the respondent, M.M. (the “mother”). In September 2020, V.K. moved in with the mother in Toronto. At the time of the trial the children were living in separate residences.
Major issues at the trial included the allocation of parental decision-making, the question of whom the children should primarily reside with, and the parenting schedule. Important to the disposition of these issues was the question of which parent had tried to alienate the children from the other parent. The trial judge found that the father was not a credible witness and found the mother to be credible and for the most part a reliable historian.
The father moved for a stay pending appeal of the trial judge’s final Order (the “Order”) that pertained to parenting the parties’ son, J.K. The Order directed that J.K’s primary residence be with the mother, and temporarily suspended and then restricted contact between the father and J.K. The mother opposed the stay and moved for security for costs of the appeal.
issues:
(1) Is it in the interests of justice to grant a stay?
(2) Should the father be required to post security for costs of the appeal?
holding:
Both motions were dismissed.
reasoning:
(1) No
The test for a stay of an order involving the parenting of a child is whether granting a stay would be in the interest of justice. Three factors are considered:
(1) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a “low threshold”;
(2) whether the child would suffer irreparable harm if the application were refused; and
(3) the balance of convenience, namely, whether there would be greater harm from the granting or refusal of the stay pending a decision on the merits.
The father argued that the trial judge erred in overriding the statutory admissibility of the assessor’s reports and the statutory ability of a party to request the assessor’s attendance at trial. He argued that the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the Regulated Health Professions Act (RHPA). This argument passed the “low threshold” aspect of the test for a stay. The Court noted, however, that even if the trial judge erred in these rulings, it was not clear if that would affect its overall decision considering other findings.
The Court was not satisfied that the irreparable harm and balance of convenience aspects of the test favoured a stay. The Court found the father’s irreparable harm and balance of convenience arguments proceeded on a different view of J.K.’s best interests than taken by the trial judge. But, on a motion to stay, the result of the trial is to be treated as prima facie correct: Circuit World, at para. 13.
The father pointed to statements in the mother’s affidavit about J.K.’s difficulties in adjusting since the Order was made. But the Court found that looking at the mother’s evidence holistically showcased J.K.’s progress in building relationships with his mother and friends. The Court found that staying the Order would disassemble the structure the trial judge put in place and replace it with circumstances she found to not be in J.K.’s best interests.
(2) No
In support of her request for security for costs, the mother argued that the trial judge will likely award costs of the trial in her favour, that the father was not forthcoming in his financial disclosure, and that he will likely owe her arrears of support.
The mother relied on Rule 61.06(1)(a) of the Rules of Civil Procedure, which provides that security for costs may be ordered where, among other things, there is good reason to believe the appellant has insufficient assets in Ontario to pay the costs of the appeal. The Court found this was not the case, as the mother’s evidence showed that the father owns two properties and the trial judge found that he earns a substantial income. Thus, the motion for security for costs was dismissed.
Wiseau Studio, LLC v. Harper, 2021 ONCA 396
[Doherty, Pepall and Trotter JJ.A.]
Counsel:
D. Brinza, for the appellants
M. Diskin and M. Bacal, for the respondents
Keywords: Civil Procedure, Appeals, Security for Judgement, Security for Costs, Orders, Enforcement
facts:
In Wiseau Studio, LLC v. Harper, 2021 ONCA 31, the motion judge granted not only security for costs of the appeal and the trial costs below, but security for the judgment granted at trial. That order was made following the appellants’ concession that their proposed appeal, as framed in their Notice of Appeal, was frivolous.
The appellants had since fleshed out their grounds of appeal and perfected their appeal and filed a factum. They moved to review the motion judge’s order.
issues:
(1) Should the order for security for judgment be set aside or varied?
(2) Should the order for security for costs of the appeal and trial be set aside or varied?
holding:
Motion granted in part.
reasoning:
(1) Yes
The Court was prepared to permit the appellants to resile from their concession made before the motion judge as to the merits of their appeal. Absent that concession, the part of the order granting security for judgment should be set aside.
(2) No
The appellants’ motion did not include a request to introduce fresh evidence, and there was no justification for the court to receive fresh evidence in this case. On the material before the motion judge, it was open to her to make the order of security for costs of the appeal and trial.
Bank of Montreal v. Cadogan, 2021 ONCA 405
[Rouleau, Hoy and van Rensburg JJ.A]
Counsel:
G. Cadogan, acting in person
R. Aisenberg, for the respondent
Keywords: Contracts, Professional Liability, Lawyers, Real Property, Parcel Register, Registration of Documents, Law Statements, Civil Procedure, Summary Judgment, Adjournments, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), Toronto-Dominion Bank v. Hylton, 2010 ONCA 752
facts:
The respondent bank commenced an action for damages against the appellant, who is a lawyer. The respondent alleged that the appellant made a knowingly false “law statement” under Ontario’s electronic land registration system. The motion judge granted summary judgment in favour of the respondent for $63,494.04, plus $20,000 in punitive damages.
issues:
(1) Did the motion judge err in refusing an adjournment of the summary judgment motion?
(2) Did the motion judge err in refusing to let the appellant’s counsel participate in the hearing?
(3) Did the motion judge proceed on an evidentiary record that was incomplete and deficient?
holding:
Appeal dismissed
reasoning:
(1) No
The appellant did not appear at the virtual hearing of the motion. Instead, a lawyer appeared on his behalf by audio only. The lawyer had no instructions other than to obtain an adjournment. The motion judge determined that the appellant’s request for an adjournment followed a pattern “of obfuscation and attempting to put off his day of reckoning”.
Whether to grant an adjournment in a civil proceeding is a highly discretionary decision, and the scope for appellate intervention is limited: Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.). The inquiry on appeal must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice: Toronto-Dominion Bank v. Hylton, 2010 ONCA 752. The appellant failed to point to any circumstance the motion judge failed to consider in refusing the adjournment. The appellant also failed to have a valid excuse for his non-attendance at the virtual hearing. There was therefore no basis to interfere with the motion judge’s finding as he considered all relevant factors and came to the correct conclusion that granting an adjournment in the circumstances would permit an abuse of the court’s process.
(2) No
There was no basis for this ground of appeal. The appellant’s counsel made it clear she had only been retained to request an adjournment. She was not prepared to argue the motion.
(3) No
There was no missing evidence, nor was any evidence ignored by the motion judge. The appellant did not serve an affidavit of documents or produce any documents. Although the motion for summary judgment was outstanding for some time, the only evidence the appellant submitted in response to the motion was the affidavit of his client. The motion judge reviewed this evidence, found the affidavit inconsistent, and clearly explained why he preferred the respondent’s evidence to the contrary.
The motion judge’s conclusion that the appellant’s law statement on the electronic registry was false and must have been known by him to be false was fully supported by the evidence. The appellant did not demonstrate any reason to interfere with the judgment under appeal.
SHORT CIVIL DECISIONS
Manicom v. Manicom,, 2021 ONCA 399
[Rouleau, Hoy and van Rensburg JJ.A.]
Counsel:
M. Polvere and J. Leslie, for the appellants/respondents by way of cross-appeal
J. Skinner and J. Newman, for the respondent/appellant by way of cross-appeal
Keywords: Family Law, Corporations, Contracts, Share Purchase Agreements, Restrictive Covenants, Remedies, Specific Performance
Luangchaleun (Re), 2021 ONCA 398
[Doherty, Trotter and Thorburn JJ.A.]
Counsel:
K.J. Berger, for the appellant
A. Hotke, for the Attorney General for Ontario
G.S. MacKenzie, for the Person in Charge of Ontario Shores Centre for Mental Health Sciences
Keywords: Reintegration into Community, Conditional Discharge, Absolute Discharge, Substance Abuse, section 672.78(1)(a) of the Criminal Code of Canada, R. v. Owen, [2003] 1 S.C.R. 779
Dhatt v. Beer, 2021 ONCA 412
[Strathy C.J.O., Brown and Miller JJ.A.]
Counsel:
D.P. Lees and Z. Silverberg, for the appellants
A. Herschorn, for the respondents, M. Dhatt and K. Dhatt
S.L. Rosenberg, for the respondents, J. Brijpaul and Re/Max West Realty Inc.
Keywords: Contracts, Agreements of Purchase and Sale of Land, Civil Procedure, Costs
De Palma v. Canadian Federation of Independent Business, 2021 ONCA 406
[Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.]
Counsel:
A. Monkhouse and S. Lucifora, for the appellant
N. Chowdhury, for the respondent
Keywords: Contracts, Employment, Constructive Dismissal, Intentional Infliction of Mental Suffering, Long Term Disability, Accommodation, Civil Procedure, Summary Judgment, Adjournments, Ontario Human Rights Code, R.S.O. 1990, c. H.19, Rules of Civil Procedure, Rules 20.01(3), 20.04(2.1)