Hello again to everyone. Below are summaries of this week’s Ontario Court of Appeal civil decisions (non-criminal). This week’s topics include the contractual interpretation of a lease agreement in the context of an option to renew, the calculation of an award for wrongful dismissal, the availability of summary judgment in the context of third party claims, and the removal of counsel where a conflict of interest existed between an insured motorist and his insured.
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[Strathy C.J.O., Laskin and Brown JJ.A]
Cesario and S. O’Brien, for the appellant
C. Rootham, for the respondent
Keywords: Employment Law, Wrongful Dismissal, Termination Without Cause, Summary Judgment, Reasonable Notice
On November 26, 2012, the appellant, Best Theratronics Ltd., terminated without cause the employment of the respondent, Matthew Arnone, who had worked for the company and its predecessor for 31 years. He was 53 years old at the time. Arnone commenced a wrongful dismissal action and moved for summary judgment. The motion judge granted the motion for summary judgment and ordered Best Theratronics to pay (i) damages equal to the gross amount of salary Arnone would have earned until he qualified for an unreduced pension, less payments made to him to satisfy the statutory obligations of the employer, (ii) $65,000, representing the present value of the loss of an unreduced pension, (iii) a retirement allowance equal to 30 weeks’ pay, and (iv) costs totalling $52,280.09.
Best Theratronics appealed the judgment, seeking an order dismissing Arnone’s claim. Arnone cross-appealed, seeking to increase the damages awarded for wrongful dismissal and to increase costs to a substantial indemnity level.
(1) Did the motion judge err in concluding that no genuine issue requiring a trial existed regarding the character of the employee’s duties and responsibilities?
(2) Did the motion judge err in his calculation of the period of reasonable notice to which Arnone was entitled upon termination without cause?
(3) Did the motion judge err by failing to deduct the income earned by Arnone from his new employment from the damage award?
(4) Did the motion judge err in awarding Arnone a retirement allowance?
(5) Did the motion judge err in awarding Arnone compensation to replace the loss of his pension benefits during the notice period?
(6) In assessing costs, did the motion judge err by failing to afford the parties an opportunity to disclose their respective offers to settle?
Appeal allowed in part, setting aside the motion judge’s calculation of damages for wrongful dismissal and requiring income earned by Arnone during the notice period to be deducted from the award of damages. Cross-appeal allowed, increasing the period of reasonable notice for calculating damages for wrongful dismissal from 16.8 months to 22 months and remitting the issue of costs to the motion judge.
(1) No, the motion judge’s findings about the character of Arnone’s employment provided enough support for the conclusion that no genuine issue requiring a trial existed on the issue of the character of employment. Arnone conceded for the purposes of the summary judgment motion that he was a supervisor and not a manager and the motion judge made findings of fact about his employment that were supported by the record. Additionally, although Thorne v Hudson’s Bay Co. stands from the proposition that in appropriate cases the character of the employee’s employment may give rise to a genuine issue requiring a trial, those circumstances differed materially from the present case. In the present case, the motion judge had the cross-examinations of the affiants to assist him in making necessary findings of fact and the employee was prepared to accept the employer’s characterization of the nature of his employment for the purposes of summary judgment. The present claim was straight-forward and amenable to a Rule 20 summary judgment motion.
(2) The motion judge erred in setting the period of reasonable notice at 16.8 months, the period of time needed to “bridge” his entitlement to a full pension. Calculating the period of reasonable notice by reference to the amount of time required to “bridge” the dismissed employee to his date of eligibility for a full pension did not accord with the Bardal analysis in this case. However, the motion judge’s alternative finding of a reasonable notice period amounting to 22 months fell within an acceptable range of notice periods for employees in circumstances similar to those of Arnone. There was no basis for the court to interfere with the alternative finding.
(3) Yes, the order should be varied accordingly. The parties agreed that the judge erred in law by failing to deduct income earned from new employment during the claimed notice period from the wrongful dismissal damage award.
(4) No. The retirement allowance formed part of the contract of employment between Best Theratronics and its employees. The interpretation of that aspect would involve a question of mixed law and fact which an appellate court should defer to the motion judge, except in cases of a palpable and overriding error. Here the motion judge approached the issue as one involving pension benefits. The court found this approach misapprehended the evidence since eligibility for the retirement allowance was not tied to entitlement to a pension, but was a separate contractual entitlement based upon length of service. As a result of that error, the conclusion about entitlement to a retirement allowance was not entitled to deference. The court held that the operation of the retirement allowance had an implied term that if the employee was terminated without cause, he would be entitled to payment of the accumulated retirement allowance in consideration for the long service and fidelity to the company. Since there was no written term to the contrary, the court gave effect to this implied term.
(5) No, the award made by the motion judge was consistent with the principle expressed in Taggart v Canada Life Assurance Co., where a terminated employee is entitled to claim damages for the loss of pension benefits that would have accrued had the employee worked until the end of the notice period, unless some contractual term limits that right. There was no limit before the motion judge and the amount of damages was based on a calculation performed by an actuary contained in an expert opinion. The court found there was no basis to interfere with the award.
(6) Yes, a motion judge should take into account the effect, if any, of offers to settle on the ultimate award of costs for the motion. The court set aside the costs award and remitted the issue of costs back to the motion judge.
[Strathy C.J.O., Laskin and Brown JJ.A.]
P.J. Brunner, for the appellant
Bisceglia, for the respondents
Keywords: Construction Law, Summary Judgment, Third Party Claims, Rules of Civil Procedure, Rule 20.09
Difficulties arose during the reconstruction and redevelopment of the Wentworth Lodge in Hamilton. The City of Hamilton, the project owners, and the general contractor, The Atlas Corporation, asserted claims against the project’s architect, the appellant, Thier + Curran Architects Inc. (“TCA”). In turn, TCA commenced Third Party Claims seeking contribution and indemnity against the project’s mechanical sub-contractor, Urban Mechanical Contracting Ltd., and its electrical sub-contractor, Tricin Electric Ltd.
Urban and Tricin successfully moved for summary judgment, and by orders dated January 30, 2014 (the “Orders”), the motion judge dismissed TCA’s Third Party Claims. TCA appeals those Orders.
Issue(s): Did the motion judge err in dismissing the Third Party Claims when genuine issues requiring a trial existed as to whether the two sub-trades were directly liable to the general contractor, Atlas, and to the City, issues which in turn necessitated a trial with respect to TCA’s claims for contribution and indemnity?
Held: Yes. Appeal allowed.
Summary judgment is available in the case of third party claims. Rule 20.09 of the Rules of Civil Procedure so provides, and in Bongiardina v. York (Regional Municipality) the Court of Appeal observed that nothing in Rule 20 suggested that third party claims were to be considered on a different footing from the main action. However, in Bongiardina there is a caveat:
There might well be cases in which it would be inappropriate to bring a motion for summary judgment in respect of a third party claim. For example, if the third party claim could not be resolved without detailed knowledge of the factual circumstances that gave rise to the main action, a motion for summary judgment would be premature.
In his reasons, the motion judge acknowledged that dismissing the Third Party Claims would not put to rest the issue of any responsibility Urban and Tricin might bear for the construction delays at the project: “delay will still be dealt [with] within the various claims for lien and counter-actions.” Therefore, the court found that granting of the summary judgment motion dismissing the Third Party Claims creates a risk of inconsistent findings of fact concerning the responsibility of Urban and Tricin for any construction delays. Given that risk, it was an error in principle for the motion judge to view the dismissal of the TCA Third Party Claims as a proportionate means to achieve a just result.
The court ultimately concluded that the issues in the Third Party Claims are inextricably linked to the issues in the main actions. Therefore, summary judgment did not permit a fair and just determination of the Third Party Claims on their merits.
[Strathy C.J.O. (In Chambers)]
David L. Silverstone and Jeffery T. Booth, for the moving party, Security National Insurance Company
Nestor E. Kostyniuk and Daniel Fenwick, for the responding party, Istivan Mihali
Mark M. O’Donnell, for the proposed intervener, Royal & Sun Alliance Insurance Company
Keywords: Insurance Law, Coverage, Insurance Act, sections 234 and 251, Removal of Lawyer of Record, Intervener, Added Party, Rules of Civil Procedure, subrules 13.01(1) and 13.03(2)
Facts: On February 6, 2005, Gabor Werkmann, Kriztian Nemes and the appellant, Istivan Mihali, went for a motorcycle ride in York Region, north of Toronto. Werkmann lost control of his motorcycle and struck Mallory’s car, killing himself and a front seat passenger in the car. Mallory sustained serious injuries. Mallory sued the estate of Werkmann, Nemes and the appellant, alleging they were all negligent. He also sued his own insurer, Security National Insurance Company, claiming coverage in the event any liable party was uninsured or underinsured.
The appellant had a policy of insurance with the proposed intervener, Royal & Sun Alliance (RSA) with limits of $1 million. The policy was subject to statutory conditions limiting liability coverage to $200,000 if the driver was engaged in a “race” or “speed test”. As a result of the potential breach of condition, RSA entered into a non-waiver agreement with the appellant on October 28, 2007. The agreement granted RSA authority to defend and settle the action against the appellant, while preserving RSA’s right to continue investigating the claim and dispute coverage under the policy. RSA appointed Kostyniuk and Greenside as defence counsel on behalf of the appellant. It also appointed separate counsel to advise on the coverage issues.
On May 31, 2013, a settlement was reached between Mallory, RSA (as the appellant’s insurer) and Security National (Mallory’s insurer, as the potential uninsured carrier), agreeing to fix the amount of damages at $444,850. The appellant, and not RSA, signed the agreement due to his potential uninsured exposure in the event of breach of a condition. The agreement also provided that the appellant and Security National would proceed to trial to determine whether the appellant was liable for the plaintiff’s damages. If he was not, then Security National would be liable. If the appellant was liable for the plaintiff’s damages, then RSA would be liable for at least $200,000 and potentially for the full amount of damages in the event there was no breach of the statutory conditions.
The issue at trial was whether negligence on the part of the appellant and Nemes caused or contributed to the accident and, if so, to what extent.
The trial judge found that although the appellant and Nemes were not directly involved in the collision, they were responsible for it because they were engaged in a joint venture with Werkmann.
The trial judge dismissed the plaintiff’s claim against Security National, stating, “[s]ince Mr. Mihali was insured at the time of the collision, the claim against the defendant Security National Insurance Company is dismissed.” It is this statement that gives rise to RSA’s motion to intervene since they asserted to have an interest in the subject matter of the proceeding and may be adversely affected by a judgment in the proceeding if RSA is bound by Justice Lack’s finding relative to insurance coverage.
On March 6, 2014, the appellant’s counsel (who remained appointed and paid by RSA) filed a notice of appeal. Two grounds of appeal included:
- The opening remarks by counsel for the Appellant dealt with the potential for insurance coverage issues to arise depending on the finding of the Court. The Honourable Justice M. Lack indicated that she would not be addressing this issue at Trial and it would be dealt with subsequent to rendering of the verdict.
- The Honourable Justice M. Lack erred by addressing the issue of coverage in her decision, indicating this at paragraph 33 of her decision.
Ground 8 forms the basis for the motion to remove counsel for the appellant.
1) The respondent, Security National, moves to remove counsel acting for the appellant on the ground of conflict of interest.
2) The appellant’s insurer, RSA, moves to intervene as an added party to this appeal under subrules 13.01(1) and 13.03(2) of the Rules of Civil Procedure.
Held: The motion to remove counsel is granted and the motion to intervene is dismissed.
1) Yes. The court concluded that removing counsel for the appellant is necessary to protect the integrity of the administration of justice and avoid the appearance of impropriety.
The court found that the inclusion of ground 8 gives rise to a clear conflict between the interests of the appellant on the one hand and the interests of his insurer on the other. The same is true of ground 7. The inclusion of these grounds gives rise to the inescapable conclusion that defence counsel was acting on the instruction of the insurer to advance a ground of appeal contrary to the interests of the insured.
2) No. First, the court found that RSA’s real complaint was that it will be affected by the trial judge’s finding that the appellant had insurance coverage. However, RSA did not establish how it will be adversely affected by a finding of fact in a proceeding to which it was not a party. Therefore, the court found that RSA did not meet the test for intervention.
Second, the court concluded that even if the finding could adversely affect RSA’s interests, RSA is partly to blame for the situation it finds itself in. RSA took no steps prior to the judgment being released to clarify important points and bears some responsibility for the resulting confusion. It could have added itself as a statutory third party pursuant to s. 258(14) of the Insurance Act, but chose not to.
Moreover, after the trial, RSA failed to pursue the invitation to contact the trial co-ordinator to arrange an appointment before the trial judge. Counsel submits this was not done because RSA had no standing and would not have been permitted to make submissions on the point. This was not a foregone conclusion. The judgment had not been taken out at that time, the judge was not functus, and if there was any issue concerning the court’s order or any alleged error in the reasons, it should have been brought directly to the attention of the trial judge.
Therefore, the court concluded that RSA is not in a position to now complain on appeal about the confusion surrounding coverage.
[Strathy C.J.O., Feldman and Lauwers JJ.A]
Andrew Kerr, for the appellant
Thomasina Dumonceau, for the respondent
Keywords: Costs Endorsement
The respondent was awarded $2,500.00 in costs, inclusive of disbursements and all applicable taxes.
[Hoy A.C.J.O., van Rensburg and Brown JJ.A.]
Willmot, acting in person
E. Sirdevan, for the respondents P. Boutis and I. Campbell
Keywords: Civil Procedure, Striking Statement of Claim, Abuse of Process
The appellant appeals the striking of her statement of claim on the basis that the claim disclosed no cause of action. The appellant had claimed, inter alia, conspiracy and breaches of the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. The motion judge held that the proceedings were an abuse of process because they sought to re-litigate matters already determined in prior litigation (the “Belleville Litigation”), wherein the respondent Boutis acted as the appellant’s litigation guardian.
Issue: Did the motion judge err in his disposition of the motion?
Holding: Appeal dismissed.
No. The motion judge was correct in his characterization of the action commenced against Ms. Boutis and her firm as a collateral attack on the Belleville Litigation and an attempt to relitigate matters already determined in those proceedings. The settlement of the Belleville Litigation was properly undertaken by the Public Guardian and Trustee as the appellant’s litigation guardian, and received court approval. The appellant pursued and exhausted her rights of appeal in those proceedings.
Although this was sufficient to dispose of the matter before the motion judge and is sufficient to dispose of the appeal, the court added that it saw no error in the motion judge’s dismissal of the appellant’s claim for breach of her human rights and Charter rights, nor on his conclusions regarding the conspiracy claim.
[Doherty, Juriansz and Huscroft JJ.A]
Z. Frodis and D. Bernstein, for the appellant
M. Bookman, C. Stankiewicz and M. Rabinovitch, for the respondent
Keywords: Civil Litigation, Striking Pleadings, Failure to Comply with Disclosure Orders
Mesbur J. struck out the appellant’s pleadings on certain issues for non-compliance with various disclosure orders.
(1) Should the pleadings be reinstated?
Appeal dismissed. Costs to the respondent in the amount of $10,000 inclusive of disbursements and taxes.
(1) No, the decision to strike out the appellant’s pleadings on certain issues for non-compliance with disclosure orders was an exercise in discretion which was entitled to deference. The motion judge correctly identified the operative principles in her reasons stating “the issue is whether the respondent remains in default, whether his default is wilful, and if so, whether striking his pleadings is the only appropriate remedy available”. At the time of the motion there remained outstanding disclosure and it was open to the motion judge to find the respondent in default of production orders. There was ample evidence to find that the default was wilful as the default had continued for almost two years and the appellant’s responses could be seen as a strategy to avoid compliance with outstanding disclosure obligations. The court held that although striking pleadings is a drastic remedy, it was mitigated by the motion judge by providing that the appellant could move to reinstate the pleadings on “proper evidence”. The appellant chose not to pursue that avenue in a timely manner.
[Feldman, Cronk and Hourigan JJ.A.]
Christie, for the appellants
D. Gerson, for the respondents in the Leach Proceedings
Drudi, for the respondent Dexter Road Development Corp.
Keywords: Real Property Law, , Planning Act, ss 50(21), Legislation Act, 2006, Rule 21, Determination of a Question of Law, Interpretation of Contract
Facts: This was a consolidated appeal of two judgments following a Rule 21 motion. The appellants sought determination that an option agreement (the “Option Agreement”) was invalid because it failed to comply with the provisions of ss. 50(21) of the Planning Act (the “Act”).
The action arose from a sale of a property that occurred approximately 20 years ago (the “Property”). The Property represents the whole of a lot on a plan of subdivision. The Montesanos (the purchasers) acquired the Property from the Leaches. In addition, the Montesanos granted the Leaches an option to repurchase a portion of the Property within 21 years from the purchase date. However, the Option Agreement was conditional on compliance with the Act and the Leaches were made responsible for all costs related to the severance of the Property.
The Option Agreement had been assigned twice. The second assignment was made to the respondent Dexter Road Development Corp. (“Dexter”). The appellants acquired the Property from a successor in title to the Montesanos. The appellants brought a rule 21.01 motion for a determination that the Option Agreement did not comply with the Act because it failed to expressly refer to s. 50, which the appellants argued was required by ss. 50(21).
The motion judge held the Option Agreement was in compliance with the Act and that the respondents had a valid and enforceable interest in the Property.
(1) Did the Option Agreement have to refer to s. 50 of the Act in order to be valid?
(2) Did the motion judge err in relying on the Legislation Act, 2006, when coming to her conclusion that the Option Agreement was valid?
Holding: Appeal dismissed.
(1) No. By making the Option Agreement conditional upon compliance with the Act, the Option Agreement satisfied the statutory requirement that there be an express condition that it would only be effective if the requirements of s. 50 were satisfied. The Court found that reference to the Act in general was sufficient to meet the obligation imposed by ss. 50(21), as it is impossible to effect a severance that is in compliance with the Act, but not s. 50.
(2) No. The motions judge did not rely on the Legislation Act, 2006, nothing that the legislation was not in force at the time of the execution of the Option Agreement and, in any event, did not apply to private contracts. She merely referred to it by analogy.
[Feldman, Cronk and Hourigan JJ.A.]
Eleanor D. Baines, acting in person
Adam Pantel, for the respondent
Keywords: Motor Vehicle Accident, Intrusion upon Seclusion, Breach of Privacy, Negligence, Breach of Natural Justice, Summary Judgment, Costs, Impecuniosity
The appellant was the unsuccessful plaintiff in an action arising from a motor vehicle accident. She subsequently commenced an action against the respondent, the lawyers who represented the defendants in the motor vehicle litigation, for the tort of intrusion upon seclusion, breach of privacy and negligence. The appellant alleged that the respondent violated her privacy by: (a) providing her medical information to defence experts without her consent for the purpose of the trial and obtaining addendum reports from the defence experts based on her medical information; (b) serving copies of a rule 30.10 motion record on her former employer and the Ontario Disabilities Support Program without her consent; and (c) obtaining official transcripts of her marks from the University of Waterloo without her consent. The respondent brought a motion for summary judgment to dismiss the appellant’s claim. The motion judge granted the motion and awarded the respondent $3,500 in costs. The appellant appealed that order.
Issues: Did the motion judge err in awarding summary judgment in favor of the respondent?
Decision: Appeal Dismissed
No. The appellant’s claim in the underlying personal injury action put in issue her medical and psychological injuries, as well as her ability to work and pursue her studies. She thereby waived any privacy interest in her medical records and academic records for the purpose of the litigation. The respondent’s impugned conduct throughout, including service of the rule 30.10 motion, was justified by law as it was undertaken for the purposes of the litigation pursuant to the Rules of Civil Procedure. In these circumstances, there was no breach of the appellant’s privacy and the tort of intrusion upon seclusion cannot be established.
The respondent’s reference to the appellant’s medical condition during the trial also does not amount to negligence or any breach of duty by the respondent. The respondent owed no duty to the appellant.
The appellant also alleged a breach of her right to natural justice on the basis that the respondent raised an issue – that it was improperly named in the statement of claim – for the first time on the return of the motion. However, the naming issue was not relevant to the summary judgment motion because the respondent agreed that it was properly named for the purposes of that motion. Therefore there was no breach of natural justice.
Finally, the appellant submitted that the motion judge ignored evidence of her impecuniosity in making the costs award. The evidentiary onus is on the party asserting impecuniosity and the court saw no grounds to interfere with the motion judge’s ruling. The appellant did not meet her onus.
[Rouleau, van Rensburg and Pardu JJ.A.]
S. Dewart, for Jeffrey Streisfield
Streisfield, for Gerald Harry Barbour
R.J. Fenn and I. de Rijcke, for Angelina Bailey
Keywords: Endorsement, Appellate Jurisdiction, Wrong Court, Transfer to Divisional Court, Land Titles Act, s. 27, Courts of Justice Act, s. 110
Facts: The matter came within the scope of section 27 of the Land Titles Act.
(1) Does the Court of Appeal have jurisdiction to hear this appeal?
The appeal was transferred to the Divisional Court, and costs of the appeal were reserved to that court.
(1) No. The language in section 27 of the Land Titles Act is mandatory, and requires that any further appeal must be made to the Divisional Court. Furthermore, the costs orders related to both the appeal and the matters below must be dealt with by that court. Pursuant to section 110 of the Courts of Justice Act, the parties’ request to transfer the matter to that court is granted.
[Rouleau, van Rensburg and Pardu JJ.A.]
B.R. Kelly, for the appellant
D. Crawford, for the respondent
Keywords: Endorsement, Bankruptcy and Insolvency Act, s. 69.4, Stay of Proceedings
Appeal dismissed. Costs to the respondent fixed at $2,700, inclusive of disbursements and applicable taxes.
There was no merit to the appeal. The Deputy Registrar considered the equities of the case and, at para. 20 of the appeal judge’s reasons, she correctly noted that the Deputy Registrar had applied the correct test under s. 69.4 of the Bankruptcy and Insolvency Act on the issue of lifting the stay of proceedings. There was no basis to interfere with the appeal judge’s decision to dismiss the appeal.
[Doherty, Juriansz and Huscroft JJ.A.]
Paul V. McCallen and Miranda Spence, for the appellant/plaintiff Poss Design Limited
Milton A. Davis and Samantha Breen, for the respondent/plaintiff by counterclaim
Keywords: Endorsement, Legal and Equitable Set-off, Summary Judgment
Issue: Did the motion judge err in finding that there was no arguable issue for trial raised by the equitable set-off claims?
Held: No. Appeal dismissed.
Reasoning: The court found that the motion judge properly found there was no case for trial on the legal set-off claim. The motion judge did not overstep his fact-finding powers on the summary judgment motion.
Two of the three claims relied on by the appellant with respect to legal set-off sounded in damages flowing from alleged deficiencies in a product delivered by the respondent. They were not claims for a “debt” or for a liquidated amount readily determinable at the time of the claim.
The third claim relied on by the appellant in support of its legal set-off claim alleged an overpayment on a contract. The motion judge correctly held that this amount was not for a liquidated amount readily ascertainable at the time of the pleading.
[Doherty, Juriansz and Huscroft JJ.A.]
Hemchand Ramlall, in person
No one appearing for the respondent
Keywords: Endorsement, Civil Procedure, Dismissal for Delay
The appellant’s action was dismissed for delay in January 2013.The appellant brought a motion some 18 months later in the Superior Court. It is unclear what relief the appellant sought (the notice of motion is not filed). The appellant did not appear on the motion, although he has offered an explanation for his failure. The motion judge dismissed the motion, noting that the action had been previously dismissed.
On appeal, the appellant asks that judgment be granted and damages awarded in the amount of $30,000.
Holding: Appeal dismissed.
There is no basis in the material to question the propriety of the order dismissing the appellant’s action for delay when it was made.
The Court cannot address the merits of the appellant’s claim on this appeal. The Court is not convinced that there are any grounds to interfere with the decision of the motion judge.
[Doherty, Gillese and Lauwers JJ.A.]
David P. Preger and Mordy Mednick, for the appellant
Craig Colraine and Debbie Jorgensen, for the respondent
Keywords: Contract Law, Debtor and Creditor, Acceptance of Goods, Promise to Pay, Estoppel Certificate
This is an appeal from the order of Justice Edward Belobaba of the Superior Court of Justice, dated June 17, 2014. The appeal turned on a reading of a document entitled “Acceptance of Goods”. Counsel for the appellant submitted that fairly read, the document contained a promise by Shoppers to pay TFS the amounts in the invoices specifically referenced in the document. Counsel for TFS characterizes the document as an estoppel certificate.
Issue: Was the document a promise to pay?
Decision: Appeal Dismissed
The document properly read, was only an acknowledgement by Shoppers that when it made payments to its supplier SBL, to which SBL was entitled under the terms of the agreement with Shoppers, that Shoppers would on SBL’s request direct those payments to TFS without “set off or deduction”. The document did not constitute a promise by Shoppers to pay the face amount of the invoices regardless of the amount actually owing by Shoppers to SBL under the terms of their agreement. More precise language was required for the document to be construed as a promise to pay. Specifically, TFS should have had the debtor acknowledge the amount that was actually owing and the debtor’s reliance, and to promise to pay this amount to TFS.
[Feldman, Cronk and Hourigan JJ.A.]
B. Schwisberg, for the appellant
Haylock, for the respondent, Vista Bahia LP
E. Lung, for the respondent, Cleaver Crawford LLP
Keywords: Endorsement, Civil Litigation, Trust claim
Facts: The appellant, Heritage Investments Capital, claimed that contrary to the application judge’s ruling, the funds in the amount of US $250,000 were impressed with a trust in its favour and that it, rather than the respondent, Visa Bahia LP, was entitled to the receipt of the funds from Cleaver Crawford LLP (“CC LLP”).
The appellant accepted before the Court that neither the Term Sheet nor the Commitment Letter between the appellant and the respondent required the establishment of a trust or escrow agreement or arrangement regarding payment of the standby deposit provided for under those documents. The appellant submitted that the parties agreed to “implement” the Term Sheet and the Commitment Letter by entering into an agreement or arrangement that the funds necessary to pay the standby deposit would be provided to CC LLP to be held in trust or escrow by CC LLP for the appellant’s benefit. The appellant evidenced this by proof of a letter between the appellant and respondent, and an undated response to that letter from CC LLP, on the respondent’s behalf.
(1) Did the application judge err in not finding that the funds at issue were impressed with a trust in the appellant’s favour?
(2) Did the application judge deny the appellant procedural fairness when he declined to adjourn the application at the appellant’s request to permit the appellant to cross-examine the deponent of an affidavit filed by the respondent?
Holding: Appeal dismissed.
(1) No. Nothing in the letter relied on by the appellant referred to any trust or escrow arrangement in favour of the appellant in respect of funds provided or to be provided by the respondent to CC LLP. In the appellant’s affidavit materials, the appellant’s own affiant (in the proceedings before the application judge) did not assert any trust or escrow arrangement existed between the parties. Therefore, there was nothing on record to substantiate the appellant’s claim. The Court agreed with the application judge that: “At best, the payment of US $250,000 by [the respondent] to CC LLP was evidence of [the appellant’s] ability to pay US $250,000” when required to do so.
(2) No. The record confirmed that the date of the application was fixed at the appellant’s request to accommodate the schedule of the appellant’s counsel. The record also provided that the appellant had indicated its intention to conduct cross-examinations four and a half weeks before the agreed application hearing date. Yet, the appellant took no steps to cross-examine. Therefore, the appellant could not be heard to complain of the consequences of its own tactical decision not to seek to cross-examine before the return date of the application. It had ample opportunity to cross-examine and elected not to do so.
[Hoy A.C.J.O., van Rensburg and Brown JJ.A]
David, for the appellants
Francis and M. Freake, for the respondent
Keywords: Real Property Law, Leasing, Interpretation of Lease, Sattva v Creston, Tercon v BC, Demolition Clause, Remedies, Injunctive Relief, Damages
By lease entered into April 1, 2000, the tenant leased premises at the building for a law practice. The term of the 2000 lease was renewed for five years in 2007. Pursuant to an October 12, 2010 Lease Expansion and Extension Agreement, it was further extended until March 31, 2016. There was an option to renew for a further five-year term, and all other terms and conditions of the 2000 lease remained in full force and effect. After entering into the Expansion and Extension Agreement, the landlord decided it wanted to demolish the building and redevelop. The landlord was able to negotiate lease terminations with all other tenants in the building, except the respondent tenant. On February 28, 2014, the Landlord delivered a Notice to Vacate to the respondent tenant.
On April 1, 2014, the tenant commenced an application seeking a variety of declaratory relief, including a declaration that the Notice to Vacate was void, and a permanent injunction restraining the landlord from terminating the lease and trespassing onto the leased premises. The application judge declared the Notice to Vacate was void and enjoined the landlord from re-entering the leased premises and from otherwise failing to fulfill its obligations to supply the leased premises with the services and utilities required by the lease. The landlord appealed that decision.
(1) Whether the application judge erred in his interpretation of s. 13.07 of the 2000 lease which, the landlord contended, limited the remedy the tenant could seek for any breach of the 2000 lease to damages.
(2)Whether the application judge erred in granting a permanent injunction because the leased premises were not unique and the landlord had offered the tenant equivalent alternative premises.
(1) No, the court found no basis on which to interfere with the application judge’s interpretation of s. 13.07 of the lease. The application judge’s decision was entitled to deference, as contract interpretation is a question of mixed fact and law (Sattva v Creston). The application judge followed the principles in Tercon Contractors by first inquiring whether s. 13.07 applied to the Notice to Vacate issued by the landlord. He concluded that it did not because the landlord had committed “a complete repudiation of its grant and consideration [and a tort (trespass) to which the clause does not apply]” The court held that the conclusion was reasonable and merited deference. The application judge interpreted the section in the context of the entire lease and much clearer language would have been required in order to restrict the remedies available against the landlord when it acted arbitrarily and without any basis in the rights conferred on it under the lease.
(2) No, the court found that in the present case the application judge turned his mind to the adequacy of an award of damages but under the circumstances it fell within the discretion of the application judge to restrain the landlord from committing the trespass. There was no error in that exercise of discretion. There was no finding of an improper purpose on the part of the tenant, and it was found the landlord had engaged in tortious misconduct. The court held that the application judge balanced the parties’ respective interests and tailored the scope of the injunction to that which was necessary to restrain the specific unlawful conduct of the landlord.
[MacFarland, Hourigan and Benotto JJ.A.]
Weber, acting in person
A.R. Leardi, for the respondent
Keywords: Endorsement, Power of Attorney for Property and Personal Care
The appellant appealed the order of Justice Renee Pomerance of the Superior Court of Justice, dated February 10, 2014, which removed her as power of attorney for property and care on behalf of her elderly mother.
Appeal dismissed. Costs fixed in the amount of $4,000 to the respondent.
Pomerance J. had sufficient evidence before her to support the order being appealed. She made factual findings that do not demonstrate any palpable or overriding error.
Tags: Endorsement, Power of Attorney for Property and Personal Care
[Rouleau, Watt and Pardu JJ.A.]
G.R. Solomon, for the appellant
J. Goldblatt, for the respondent
Keywords: Endorsement, Bankruptcy and Insolvency Act, Commencement of Proceedings by Undischarged Bankrupt, Nunc Pro Tunc Orders,
This was an appeal from the judgment of Justice Lois B. Roberts of the Superior Court of Justice, dated July 30, 2014.
The appellant submitted that an order of Master Short authorized the appellant to pursue the action, despite being an undischarged bankrupt, and did so nunc pro tunc. The motion judge, in the appellant’s submission, erred in her interpretation of the order and in setting it aside as an abuse of process.
The law is clear that, as an undischarged bankrupt, the appellant did not have the ability to launch and pursue the present action. There is nothing in the Bankruptcy and Insolvency Act nor in the jurisprudence suggesting that a master has the authority to allow an undischarged bankrupt to pursue a claim such as this one. The order of Master Short did not purport to lift the appellant’s status as an undischarged bankrupt to pursue the claim, nor did it state that it is to apply nunc pro tunc.
Costs to the respondent fixed at $4,500, inclusive of disbursements and applicable taxes.
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