Frank v. Canada (Attorney General), 2014 ONCA 485
[Sharpe J.A. (In Chambers)]
P. Southey, G. Sinclair, P. Hajecek, for the appellants
S. O’Brien and A. Darrach, for the respondents

Keywords: Stay Pending Appeal, Elections, Voting, Canada Elections Act, Canadian Charter of Rights and Freedoms, Pressing and Substantial, Public Interest Considerations

The applicants are both residents in the United States and have been so for more than five years. They challenged a change in the election law that denied the right to vote to non-resident citizens absent from Canada for more than five consecutive years. Until the change, non-resident citizens had been able to vote in Canadian elections since World War I.

The application judge struck down ss.11(d) of the Canada Elections Act, ruling that the disenfranchising of citizens that have been absent from the country for over five years violated their democratic right to vote pursuant to s. 3 of the Charter. The judge also held that the Attorney General’s arguments that Parliament had a “pressing and substantial” reason for the limit on voting – to extend voting rights to non-resident citizens without being unfair to resident voters and to maintain the integrity of the electoral system – were too vague and that the limitation did not satisfy the proportionality test. He refused to suspend or stay the invalidity declaration, claiming it would create no harm to the public or rule of law. The Attorney General of Canada moved before the Court of Appeal for a stay pending the appeal of the judgment.

Should the application judge’s motion be stayed?

Holding: No (stay motion dismissed)

In considering the request for stay pending appeal, the Court applied the familiar three-part test: 1) that there is a serious question under determination; 2) that irreparable harm to the public interest will result if the stay is not granted; and 3) that balancing convenience and public-interest considerations favors a stay. The Court agreed that there was arguable case, but rejected the Attorney General’s submission that it had an automatic right to a stay. The Court then found that there could be irreparable harm following a tight election decided by a single non-resident vote, but the prospect of this scenario was remote and the risk of that harm was matched by the risk of harm to non-resident voters in being disenfranchised. The Court found that convenience did not favour a stay because:
• the case did not involve a complex scheme or apparatus requiring dismantling or reconstruction;
• the judgment did not create a void or gap in Canadian election law;
• the judgment did not significantly alter a class of eligible voters; and
• the judgment would not create a flood of non-resident Canadian voters.

White v Gicas, 2014 ONCA 490
[MacPherson, Simmons and Gillese JJA]
S. Dewart and Margaret Rintoul (Blaneys), for the appellants
R. McLean and P. Morrissey, for the respondent

Keywords: Estates and Trusts; Trustees; Declaration of a trust; Constitution of a trust;

James Gicas, the family patriarch and members of his family had interests in several companies. Shares in some of those companies were to become the principal assets in the Constantine Gicas Family Trust (the “Trust”). In October 1991, James Gicas signed a Memorandum of Agreement recording the previous establishment of the Trust. Constantine was the primary beneficiary and died in 2007. Constantine’s partner and his nieces, the appellants, were beneficiaries of his will. The will contained no reference to the Trust. Appellants claim that the Trust was neither validly declared nor properly constituted.

Did the application judge err in:
(1) finding that the Constantine Gicas Family Trust had been validly created?
(a) If so, were the shares of 466 and Cynthcon assets of the Trust?
(2) awarding costs against the appellants in their personal capacity and not against the Estate?

Holding: Appeal dismissed regarding issue (1). Appeal granted on issue (2) and costs awarded at trial to be paid from Estate.

(1) Yes. For a trust to be validly created, it must be properly declared and constituted. Declaration of a trust requires certainty of intention, subject-matter, and objects. Constitution of a trust requires transfer of title to the trust property to the trustee. The Memorandum of Agreement satisfied the three certainties required for a valid declaration of a trust.
(a) Yes. The Memorandum of Agreement does not refer to any shares of 466 or of Cynthcon as assets of the Trust. However, all shares of 466 and one share of Cynthcon were transferred to the Trust, making them assets of the Trust. Further, the Memorandum of Agreement does not limit the assets to those specific shares listed.
(2) No. The application judge gave no reasons for costs award and therefore it cannot be determined whether the application judge applied the proper approach to an award of costs in estate litigation. Further, Ms. White as Estate Trustee needed to know the extent of the assets with which she was dealing and recourse to the courts was a reasonably necessary step. The Estate should be responsible for her costs of the application and appeal.

Patterson v. Ontario (Transportation), 2014 ONCA 487 [Endorsement]
[Sharpe, Gillese and Hourigan JJ.A]
Bruce R. Mitchell, for the appellants Daimler Chrysler
William G. Scott, for William Patterson and Taylor Patterson, by their Litigation Guardian Tracy Patterson and Tracy Patterson, in her personal capacity
Sean Dewart, for Donald Patterson, Donna Patterson, Gregory Patterson and Shawn Patterson
James D. Wilson, for Lise St. Denis
B. Robin Moodie, for John McClelland and Rayna Bethune, and Gerald Cantin and Louise Cantin

Keywords: Insurance, Motor Vehicle Accident, Discovery, Limitations Act, Trustee Act

Appeals arose from four actions stemming from a multi-car accident. The police report from the accident stated that defendant Gagnon was the owner and driver of the vehicle that caused the accident, serious personal injury and one fatality. The plaintiffs relied on the report and named Gagnon as the owner and driver of the vehicle in their statements of claim, and Gagnon admitted to being such in his statements of defense. Counsel for the plaintiffs found out at discovery, which took place more than two years after the accident, that the vehicle was actually leased and owned by the appellant Daimler Chrysler. Plaintiff’s counsel then took steps to name the appellant as a party defendant. The appellant then sought summary judgment to have the action against it dismissed because it was statute barred. The motion judge held that the plaintiffs did not have “actual knowledge” of the true identity of the vehicle until discovery and showed reasonable diligence such that the action was not statute barred. She also held that the appellants did not suffer any prejudice and that “special circumstances” justified allowing the claims to proceed.

The appellant submits that the motion judge made an error regarding discoverability because counsel for the plaintiffs did not conduct a “Plate/VIN By Date” search.

Did the motion judge err as to discoverability?

Holding: No (appeals dismissed).

The Ontario Court of Appeal agreed with the motion judge that recent case law provides that plaintiffs’ counsel ought not to rely on the accident reports of police in regards to ownership information. However, it refused to “lay down an iron-clad rule” that provided that the failure to conduct the aforementioned search was fatal with respect to discoverability pursuant to Velasco v. North York Chevrolet Oldsmobile Ltd. The Court of Appeal also agreed with the motion judge regarding prejudice and special circumstances, reasoning that the appellant was aware of the accident soon after its occurrence, was insured by the same company as the driver and also had the benefit of its insurer’s accident investigation. Moreover, the Court of Appeal held that decisions regarding special circumstances are discretionary and that there was no palpable error in fact or law justifying interference.

806480 Ontario Limited v RNG Equipment Inc., 2014 ONCA 488
[Laskin, Pepall and Pardu JJ A]
John H. McNair, for the appellant
Benjamin G. Blay, for the respondent

Keywords: Civil procedure; Rule 48.14(1); dismissal for delay;

Action was for damages arising out of the failure of a fuel storage tank. The registrar dismissed the action for delay pursuant to Rule 48.18(1). The appellant appeals the refusal of the motion judge to restore the action.

Did the motion judge err in its application of the factors set out in Reid v Dow Corning Corp. (2001) 11 C P C (5th) 80 in refusing to set aside the dismissal?

Holding: Yes (appeal allowed with costs to the appellant)

The motion judge erred in his application of the factors set out in Reid v Dow Corning Corp. (2001) 11 C P C (5th) 80 in refusing to set aside the dismissal. The motion judge incorrectly considered the respondent’s lost opportunity to examine the tank during the first months of litigation as constituting prejudice within the meaning of the Reid v Dow Corning factors. The tank was removed five months after the statement of claim was delivered and two months before the respondent delivered its statement of defence. The loss of the tank is not prejudice arising from steps taken following dismissal, and was therefore incorrectly considered by the motions judge in his application of the appropriate test.

In any event, the registrar’s dismissal was made before the 90 day period prescribed by Rule 48.14(01) had elapsed, and therefore the dismissal order ought to be set aside as of right.

Hincks v. Gallardo, 2014 ONCA 494
[Gillese, van Rensburg and Hourigan JJ.A.]
M. Cochrane, for the appellant
C. Petersen and C. Davies, for the Intervener, Egale Canada Inc.
C. Harris, for the Intervener, Attorney General of Ontario

Keywords: Family Law; Civil Unions; Divorce Act; Family Law Act;

The appellant, Mr. Gallardo, and the respondent, Mr. Hincks, entered into a civil partnership under the United Kingdom’s Civil Partnership Act. They then moved to Canada and within a year separated. Mr. Hincks brought an application seeking relief pursuant to the provisions of the Divorce Act (“DA”) and the Family Law Act (“FLA”). Mr. Gallardo argued that the parties were not spouses under the DA and FLA. The motion judge declared that the parties’ civil partnership is a “marriage” as defined by the Civil Marriages Act and the parties are spouses” as defined by the DA and FLA.

(1) Did the motion judge err in law in her interpretation of the terms “spouses” and “marriage” under the FLA and the DA?
(2) Did the motion judge make a palpable and overriding error in finding that the parties intended to change their status to the equivalent of marriage?
(3) Did the motion judge err in law in failing to consider the effect of new U.K. marriage legislation?
(4) Did the motion judge err in law in failing to consider the fact that the respondent could enforce his rights under Part IV of the FLA?

Holding: Appeal dismissed.

(1) The motion judge’s interpretation of the terms “spouses” and “marriage” was consistent with the modern approach of the Supreme Court of Canada. The motion judged correctly conducted her statutory interpretation analysis in a manner consistent with the values of the Canadian Charter of Rights and Freedoms.
(2) The Court found that the subjective intentions of the parties “was only relevant to the issue of whether the civil partnership was voluntary”. There was no evidence that either party was forced into the partnership under duress or fraud or that either side lacked the capacity to appreciate the consequences of their actions.
(3) The new U.K. marriage legislation legalizes same-sex marriage but preserves the existing civil partnership regime. The motion judge cannot be held at fault for failing to consider legislation that was not enacted at the time of the motion. Even so, it would not have made a difference because the parties’ relationship was only ever governed by the regime in place at the time they entered into civil union.
(4) Part IV of the FLA deals with domestic contracts. The appellant argued that a civil union is a foreign domestic contract and can be enforced. The Court found that a domestic contract is distinct from a U.K. civil partnership in part because the latter are not subject to bargaining between parties but rather imposed upon them by the state.

Simpson Wigle Law LLP v Lawyers’ Professional Indemnity Company, 2014 ONCA 492
[Gillese, van Rensburg and Hourigan JJ.A.]
A. Lenczner and E. Bowker, for the appellants
J. S. Cavanagh, for the respondent

Keywords: Civil Litigation; Errors and Omissions Insurance; LawPro; Misconduct of Solicitor; Estates and Trusts

The appellants brought an application for a declaration that the allegations in an underlying action against them constituted two separate claims under their LawPro insurance policy, rather than a single claim. The application judge found that the allegations made in the Statement of Claim were ‘related’ and that, as a result, they constituted one claim for the purposes of the policy.

In the underlying claim, the plaintiffs sued Simpson Wigle and others who were acting as Estate Trustees for breach of fiduciary duty and negligence in their administration of a deceased’s estate, including the alleged improvident sale of properties and other wrongdoing. One allegation was that Mr. Wigle and CIBC were improperly and unnecessarily appointed as committees of the deceased’s person and estate and the other related to Mr. Wigle and Mr. Milne acting in a conflict of interest given their various roles and the negligent administration of the deceased’s estate. For the first claim, the relief sought was repayment of fees unnecessarily incurred when Mr. Wigle and CIBC were appointed committees of the deceased’s person and estate. For the second claim, the damages sought were for diminution of the value of the estate as a result of the alleged improvident sales.

Did the application judge err in finding that the facts alleged in the Statement of Claim disclose a single claim under the Policy?

Holding: Appeal allowed (application granted)

In determining whether the two claims in the Statement of Claim arise from ‘related’ errors, omissions or negligent acts, courts should be informed by the dictionary meaning of the word “related”: two or more errors, omissions or negligent acts are “related” when there is a sufficient association or connection between them, reading the policy as a whole and bearing in mind its objective. In determining whether there is a sufficient association or connection, courts must consider the similarities and differences between the nature and kind of the alleged misconduct which underlies each claim, and the kind and character of the losses for which recovery is sought in each. In this case, the Ontario Court of Appeal found that the allegations underlying the two claims were different in nature and kind. In addition, the nature of the alleged losses for which recovery was sought for each claim was different.

The court compared the specific allegations of misconduct underlying each of the claims. One claim is based on Simpson Wigle’s instrumentality in the allegedly improper appointment of Mr. Wigle and the CIBC as committees of the deceased’s person and estate. The specific misconduct is their failure to disclose the appropriate information to the court during the Committee Application. The other claim arises from the allegedly improvident or unnecessary sales of six parcels of land. It is based on allegations of active mismanagement (selling at improvident values and unnecessarily) and alleged errors.

The nature of the alleged losses for which recovery was sought are different in kind and character. One claim seeks recovery for losses representing the costs, fees and expenses arising from the allegedly wrongful appointment of Mr. Wigle and the CIBC as committees of the deceased’s person and estate. The other claim seeks recovery for the diminution of deceased’s estate due to the improvident or unnecessary sales of properties in which he had an interest.

There is an insufficient association or connection between the two claims because they stand independently of one another. The court could find that the committees were wrongfully appointed but that the sales of the real property did not amount to negligent administration of the deceased’s estate. Conversely, the court could find that the committees were properly appointed but that one or more of the sales was negligently performed. The two claims were therefore not “related” within the meaning of the LawPro policy.

Bui v Alpert, 2014 ONCA 495
[Hoy ACJO, Cronk and Pepall JJA]
Nicholas Cartel and Singa Bui, for the applicants
Michael A Katzman, for the respondent

Keywords: Solicitor Bill Assessment; Solicitors Act; Special Circumstances

The respondent rendered 12 bills to the appellant over a four-year period where he provided him with legal services in relation to a tax matter. The respondent gave notice of his intention to remove himself as the appellant’s counsel of record, citing the appellant’s failure to pay the last bill and to provide documents. After a 50% reduction of the last bill was negotiated and paid, the appellant brought an action to assess all 12 of the respondent’s bills under ss.4(1) and 11 of the Solicitor’s Act. The application judge dismissed the appellant’s application for an assessment. The appellant appealed this decision.

(1) Did the application judge err in finding that special circumstances did not exist within the meaning of those two statutory provisions?

Holding: No. Appeal dismissed on the basis that the application judge’s finding that special circumstances were not made out was reasonable. There was no merit to the appellant’s complaints.

Section 4(1) of the Solicitors Act provides that no bill shall be referred for assessment after 12 months. There is a presumption that payment of an account indicates that the client accepted the account as reasonable and proper. However, Section 11 states that this presumption can be rebutted by the client if there are special circumstances. The court has broad discretion to determine these special circumstances on a case-by-case basis. The application judge was not convinced that the appellant was billed for duplicative work or was dissatisfied with the quality of the respondent’s work. Further, the communications to the appellant advising that if outstanding accounts were unpaid the respondent would have to cease working on the matter were insufficient to constitute special circumstances warranting the assessment of all 12 accounts. The client’s concerns were never expressed until after the solicitor/client relationship had been terminated. In addition, there was no evidence to suggest that the appellant was unaware of his right to request an assessment. Therefore, there was no basis for appellate intervention with the application judge’s exercise of her discretion.

1670002 Ontario Limited (Canadian Professional Recruiters) v Redtree Contract Carriers Ltd., 2014 ONCA 501
[Laskin, Rouleau and Epstein JJ.A.]
R. Colautti, A. Landry, for the appellant
C. Kilby and A. Campbell, for the respondents

Keywords: Commercial Litigation, subsidiaries, oral contract, breach of contract, inducing
breach of contract, Sanderson order

Wilson Transportation, the respondent, was in the business of trucking and leasing trucks in Ontario. Its subsidiary, the respondent Wilson Logistics, had a contract with the City of Toronto to transport waste from Toronto to Michigan. Redtree, another Wilson Transportation subsidiary, was to implement the contract. In 2003, Redtree entered into an oral agreement with Canadian Professional Recruiters (CPR) to obtain drivers for the contract in return for payment. In 2004, the City of Toronto put pressure on Redtree to reduce costs, so Redtree began to phase out CPR’s services. In 2005, a vice-president of Wilson Transportation told CPR that its contract with Redtree was terminated. CPR sued Redtree, Wilson Transportation and Wilson Logistics for damages for breach of contract, interference with economic relations and inducing breach of CPR’s employment agreements.

The original trial judge died, but his draft reasons said that Redtree ought to have given CPR six months’ notice of termination. He did not quantify damages. The next judge, Thomas J, confirmed the six-month notice period and awarded damages to CPR against Redtree, then awarded Wilson its costs against CPR. His formal judgment was released December 2012, nearly one month after his reasons were released. In early January, the judge made a “Sanderson order” requiring Wilson to seek its trial costs against Redtree.

Wilson cross-appeals against the Sanderson order.

(1) Did the trial judge err by failing to take account of Wilson’s participation in the contract between CPR and Redtree?
(2) Under the common employer doctrine, is Wilson liable for breach of CPR’s contract with Redtree?
(3) On Wilson’s cross-appeal, did Thomas J have jurisdiction to make the order as it was made after his formal judgment was issued and entered?

Holding: Appeal and cross-appeal dismissed. Wilson awarded costs of $15,000 inclusive of disbursements and applicable taxes.

(1) CPR did not allege that Wilson induced the breach of contract between CPR and Redtree, although they claimed that Wilson induced the breach. This claim was not raised in the pleadings, opening submissions at trial, or in the original notice of appeal. Also, the evidence at trial does not support this claim. To prove Wilson is liable for inducing a breach of contract, CPR had to meet the test from Correia v Canac Kitchens:
(a) Wilson had knowledge of the contract between CPR an Redtree;
(b) Wilson intended to procure a breach of that contract;
(c) Wilson’s conduct caused Redtree to breach the contract; and
(d) CPR suffered damages due to the breach.

CPR failed on the second element of the test. The contract was an oral contract and the parties did not have a notice provision for termination, so CPR could not show that Wilson had the required intent to procure a breach.

(2) The original trial judge found that CPR contracted only with Redtree, so the Court need not decide whether the common employer doctrine applies to the contract. The evidence at trial was that the contract was entered into during a meeting with CPR representatives and Redtree representatives, and an employee said he understood he was contracting with Redtree.

(3) The final costs order awarding Wilson costs was an accident but was corrected under the Rules of Civil Procedure. The Sanderson order was made after the formal judgment had been entered. Before the formal judgment was entered, the trial judge spoke with the parties and offered to entertain submissions with regards to the Sanderson order. The Sanderson order was supported by the evidence and was reasonable.

Ontario Wealth Management Corporation v Sica Masonry and General Contracting Ltd., 2014 ONCA 500
[Strathy J A (In Chambers)]
Jason A. Schmidt, for the moving party
David P. Preger and Michael J. Brzezinski for the responding party, SF Partners Inc. (court appointed receiver for 1713515 Ontario Limited)
Amy Lok for the responding party, Ontario Wealth Management Corporation

Keywords: Civil procedure, bankruptcy and insolvency, extension of period to file notice, leave to appeal, s. 193 Bankruptcy and Insolvency Act

At issue in this appeal was whether the court should grant the moving party an extension of time to appeal the motion judge’s decision with respect to a priorities dispute between the respective claimants. The motion judge held that the mortgage of the respondent, Ontario Wealth Management Corporation (“Ontario Wealth”), had priority over the construction lien of the moving party, Sica Masonry and General Contracting Ltd. (“Sica”). Rule 31(1) of the Bankruptcy and Insolvency General Rules, provides notice of appeal must be filed within 10 days of the day of the order appealed from. The moving party provided their notice 18 days late, but contended that the motion judge misinterpreted the priority scheme located in section 78 of the Construction Lien Act, and were therefore entitled to an appeal as of right. In any event, the moving party contended that the facts of the case warranted that leave to appeal be granted.

(1) Should the moving party be granted an extension to file notice of appeal?
(2) In any event, is leave to appeal appropriate in the instant case?

Holding: No to both questions (application dismissed).

(1) The question of whether an extension should be granted in a given case depends on whether the justice of the case requires it. The relevant factors for this inquiry include:
(a) whether the applicant had a bona fide intention to appeal prior to the expiry date;
(b) the length of the delay and the explanation given therefor;
(c) any prejudice to the responding parties caused by the delay; and
(d) the merits of the proposed appeal.

Having considered the above factors, Strathy J. A. concluded that the application must fail. There was no evidence that Sica had any intention of appealing before the expiry of the period, it provided no explanation for the delay and advanced no evidence to support the finding that its claim had any merit. As the appeal was, at its core, fact-based, nothing short of a finding of a palpable and overriding error in the motion judge’s findings of fact would suffice to justify the finding that an extension was warranted.

(2) Leave to appeal was required and, on the facts of the case, would not have been granted. The route to appeal in the instant case was that prescribed by section 193 of the Bankruptcy and Insolvency Act. Since the instant case does not fall within the automatic right to appeal provided by subsections 193 (a) – (d), leave was required.

The remaining route to appeal for the moving party was through the discretion granted under subsection 193(e). Discretion over leave to appeal is to be exercised in a flexible and contextual manner. The essential considerations are:
(a) whether the appeal raises issues of general importance to the practice of bankruptcy or insolvency matters or the administration of justice as a whole;
(b) whether the claim is prima facie meritorious; and
(c) whether the appeal would unduly hinder the progress of bankruptcy or insolvency proceedings.

As the present case was a simple matter of priority, it meets none of the criteria that would be required in order to contemplate a grant of a discretionary leave to appeal.

Trillium Motor World Ltd v General Motors of Canada Limited, 2014 ONCA 497
[Doherty, LaForme and Lauwers JJA]
Jo-Anne Demers, Jean-Oliver Lessard and Susan Guzzo, for the appellants
Peter H Griffin and Jonathan Erik Laxer, for the respondent

Keywords: Wind-Down Agreement, Independent Legal Advice, Third Party Claims, Van Breda Presumptive Connecting Factors

After terminating dealerships across the country, General Motors of Canada Ltd (GMCL) offered compensation to dealers on terms set out in Wind-Down Agreements (WDAs). Each WDA attached a Certificate of Independent Legal Advice (ILA) signed by a local lawyer. The plaintiff, Trillium Motor World Ltd, started a national class action in Ontario against GMCL and Cassels Brock claiming damages. The terminated dealers are class members. In the main action, the class members sue GMCL and Cassels Brock claiming that they were forced to sign the WDAs in breach of provincial franchise law. They claim that Cassels Brock was negligent in failing to provide them with appropriate advice. In the third party actions, Cassels Brock asserts that it was retained by the Canadian Automobile Dealers’ Association and not by any of the individual dealers. Cassels Brock added 150 law firms as third party defendants. The appellants are law firms located in the province of Quebec. They moved for an order dismissing or staying the third party claim issued by the defendant Cassels Brock in this national class action. The motion judge dismissed the motion, and the parallel motion brought by the third party law firms in provinces other than Ontario and Quebec.

(1) Did the motion judge err in applying the 4th presumptive connecting factor from the Van Breda test which requires that a contract connected with the dispute was made in the province?
(2) Did the motion judge err in applying the 2nd presumptive connecting factor from the Van Breda test which requires that the defendant carries on business in Ontario?
(3) Is Quebec clearly a more appropriate forum than Ontario for the third party actions against Quebec-based local counsel?

Holding: Appeal dismissed. It was fair to subject the third party appellants to the power of the courts of Ontario.

(1) No. The motion judge found that the WDA was an Ontario contract and that it qualified to give Ontario jurisdiction over the third party actions. The relevant act of contract formation occurred at GMCL’s head office in Ontario. Furthermore, the bulk of the affected dealers were located in Ontario and the underlying structure of the business relationships were related to Ontario.
(2) No. The six national law firms named as third parties carried on business in Ontario, even though only partners and employees working at their places of business in Quebec were involved. It was reasonable to expect that they would be called to answer proceedings in Ontario.
(3) No. The motion judge refused to decline jurisdiction over the third party actions on the basis of forum non conveniens. Ontario was by far the most appropriate and convenient forum given the large concentration of third parties in Ontario. It was reasonable to expect the out-of-province local counsel to defend in Ontario because all of the local lawyers reviewed the WDA and knew that it was governed by Ontario law and that all disputes would have to be litigated in Ontario. Furthermore, it was reasonable to situate the third party actions in Ontario to avoid inconsistent results.