Below are the summaries for this week’s civil decisions of the Court of Appeal. Of note is Mason v Mason, a lengthy family law decision concerning the inclusion of corporate profits in income for the purpose of calculatingspousal support under the Spousal Support Advisory Guidelines. The court provides guidance on the use to be made of the SSAGs, which it reminds us are not mandatory and involve more than just plugging numbers into the computer program. Other topics include environmental law in the context of the Endangered Species Act, 2007; whether a stay of an appeal from a contempt order should be lifted; the stay of an action under s. 7 of the Arbitration Act; breach of fiduciary duty in the context of bankruptcy proceedings; and a request for leave to appeal from partial summary judgment in the context of CCAA proceedings.
Donald Trump is everywhere in the news these days, but I suspect most of us did not expect his name to pop up in an Ontario Court of Appeal decision. And yet, it has. In this week’s decision in Singh v Trump, our Court of Appeal set aside the motion judge’s order that had dismissed all claims against Mr. Trump and reinstated those claims that were dismissed by the motions judge that were not properly before him on the motion for summary judgment. We all know what happened the last time Mr. Trump disagreed with a judge presiding over one of his cases.
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Have a nice weekend.
Blaney McMurtry LLP
Table of Contents:
[Simmons, LaForme and Pardu JJ.A.]
E. D. Freedman, for the moving party
A. Snelius, for the respondent
Keywords: Endorsement, Family Law, Appeals, Stays, Contempt
Facts: Appellant husband moved to lift a stay of his appeal, which was from a contempt order made in this matrimonial proceeding. The stay order required the appellant to fulfill three conditions: i) serve and file an up to date financial statement; ii) provide a response to a February 2009 request for information from the wife, and iii) provide any documents given to the government of the Bahamas in support of any permit or authorization permitting him to live and work in the Bahamas.
Issue: Did the husband comply with the conditions of the stay order?
Holding: No. Motion dismissed.
Reasoning: To the extent that the appellant complied with the conditions imposed, the compliance was piecemeal, vague, selective, and incomplete. He lacked credibility, and his compliance was “more a matter of form than substance”. His responses were characterized by a lack of particulars, and he failed to explain discrepancies in his story of where he was living, his assets, and his expenses.
[Simmons, Pepall and van Rensburg JJ.A.]
A. Finlayson and N. Tellier, for the appellant
D. Lanthier, for the respondent
Keywords: Family Law, Spousal Support, Determination of Income, Pre-Tax Corporate Income, Spousal Support Advisory Guidelines (SSAGs), s. 9.6, Child Support Guidelines, ss. 17, 18, Fresh Evidence on Appeal, Issue Estoppel, Standard of Review
The parties married in 1992 and separated in 2011. During their marriage, the parties worked together to build a highly successful recreational equipment business in northeastern Ontario.
On the first day of trial, the parties signed Minutes of Settlement resolving all issues between them except spousal support. Among other things, the Minutes of Settlement provided that the husband would buy out the wife’s interest in the business and pay to her an equalization payment of $1,636,130, with $1 million payable up front and the balance over five years with interest at four per cent per year.
Following the separation, the wife continued to work in the business, at least part time, until January 2013. Under the terms of two consent interim orders, the parties agreed that each would continue to receive an annual salary of $120,000, even after the wife stopped working in the business, until the issue of spousal support was determined. For the fiscal year that ended prior to trial, on average, the parties had drawn salaries and bonuses totaling in aggregate $204,372 per calendar year.
In his reasons for judgment, the trial judge accepted the wife’s position that the husband’s income for spousal support purposes should comprise both salary and some component of after-tax corporate profits. Apparently, based on the incomes the parties had been receiving in the period leading up to the trial and the business’ historical after-tax earnings, the trial judge concluded that, going forward, the husband would have salary and after-tax corporate profits available to him for spousal support purposes totaling $400,000 per year.
As for the wife, the trial judge accepted her position that she could earn $35,000 to $40,000 per year as a bookkeeper and that she would also earn $40,000 to $50,000 per year in investment income on $1,000,000, for a total annual income of $75,000 to $90,000. The trial judge relied on $82,500 as her “midpoint” income for spousal support calculation purposes.
Using income figures of $400,000 and $82,500, the trial judge found that the Spousal Support Advisory Guidelines (“SSAGs”) produce a range for spousal support of $8,215 to $10,233 per month. Holding that there was no reason to depart from the mid-range, the trial judge ordered the husband to pay to the wife $9,584 per month in spousal support, commencing August 1, 2014.
In oral argument on appeal, the wife acknowledged that, based on the trial judge’s income figures, the applicable SSAGs range is less than that cited by the trial judge. The wife also acknowledged that the trial judge failed to take into account the income she is receiving from the balance owing on the equalization payment or consider that she would be able to invest that balance as it is received.
In addition to the issues relating to the SSAGs range and determination of the wife’s income, the husband submitted that the trial judge erred in a number of ways and also applied to introduce fresh evidence on appeal addressing how the equalization payment is being paid and the income tax consequences of the property settlement and support award.
On March 17, 2014, the first day of trial, the parties entered into Minutes of Settlement resolving all outstanding issues between them except spousal support and costs relating to that claim. In addition to the provisions relating to the husband’s buy-out of the wife’s share of the business and the equalization payment, among other things, the Minutes of Settlement recited that the parties had already agreed that a final order would be entered to confirm the interim order for child support and the ongoing arrangement for covering the children’s s. 7 expenses.
The trial evidence was completed on March 28, 2014, and the trial judge delivered reasons on July 16, 2014. Although trial counsel had contemplated submitting an order incorporating the Minutes of Settlement to the trial judge prior to the completion of the trial evidence, that was not done. Rather, on April 23, 2014, another judge signed a final order incorporating the terms of the Minutes of Settlement.
The April 23, 2014 order includes a provision indicating that the interim order for child support would continue until confirmed in a final order and that the ongoing payment of salary and benefits to the wife would continue until her claim for spousal support was adjudicated.
Apart from the trial judge’s order, which forms the subject matter of this appeal, there was no additional order.
- Did the trial judge err by focusing his analysis on the provisions of the Divorce Act rather than on the provisions of the Family Law Act?
- Did the trial judge err by failing to consider s. 2(10) of the Family Law Act and the doctrine of issue estoppel?
- Did the trial judge err by attributing after-tax corporate profits to the husband?
- Did the trial judge err in determining the wife’s income?
- Did the trial judge err in failing to consider the impact of the settlement on the appellant’s earning capacity?
- Did the trial judge err in holding that the wife is entitled to spousal support?
- Should the husband’s fresh evidence be admitted?
- Should the SSAGs calculation be adjusted?
Holding: Appeal allowed, although the motion to introduce fresh evidence was dismissed.
1. Did the trial judge err by focusing his analysis on the provisions of the Divorce Act rather than on the provisions of the Family Law Act?
On appeal, the husband submits that the trial judge erred by focusing his spousal support analysis on Divorce Act principles rather than Family Law Act principles by not taking into account assets and means in making his spousal support award. The husband claims that a Divorce Act analysis does not take into account those factors. Further, he says that, in this case, this omission is particularly important because of the debt load he assumed to pay the equalization payment.
The Court of Appeal, however, did not accept this argument. Not only was it not advanced in the court below, it appears that in that court the husband took a contrary position. More importantly however, the Court of Appeal was satisfied that, like the Family Law Act, the Divorce Act also requires a court to consider the assets and means the parties are likely to have in the future when making a support award.
The husband was unable to identify any material difference between the two Acts or any error in the trial judge’s reasons that arises from the trial judge’s focus on the provisions of the Divorce Act.
2. Did the trial judge err by failing to consider s. 2(10) of the Family Law Act and the doctrine of issue estoppel?
As the Minutes of Settlement constituted a domestic contract – and were incorporated into a final order before the trial judge delivered his reasons – the husband submits that both s. 2(10) of the Family Law Act and the doctrine of issue estoppel compel the conclusion that his income for spousal support purposes was $136,500. The Court of Appeal did not accept these arguments.
The Court of Appeal agreed that the Minutes of Settlement were a domestic contract as defined in the Family Law Act. However, they disagreed that the Minutes of Settlement determined the husband’s income for spousal support purposes for three reasons.
As such, the Court of Appeal saw no merit in the husband’s argument that the Final Order premised on the Minutes of Settlement creates an issue estoppel in relation to the husband’s income for the purposes of spousal support. The three requirements for issue estoppel are well-established: (i) the same question has been decided in earlier proceedings; (ii) the earlier judicial decision was final; and (iii) the parties to that decision or their privies are the same in both the proceedings. If the moving party successfully establishes these preconditions, a court must still determine whether, as a matter of discretion, issue estoppel ought to be applied: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44,  2 S.C.R. 460. The husband failed to show that the first two requirements are satisfied.
3. Did the trial judge err by attributing after-tax corporate profits to the husband?
a. The husband’s position on appeal
On appeal, the husband argues that the trial judge failed to apply the correct legal principles in determining his income and failed to provide sufficient reasons for the determination he made. According to the husband, courts routinely apply the Child Support Guidelines (the “Guidelines”) to determine income for spousal support purposes, even where the parties have no dependent children. Moreover, the SSAGs recommend use of the Guidelines to determine income. The husband submits that the trial judge erred in failing to apply the Guidelines in determining his income for spousal support purposes.
While case law concerning the interpretation of s. 18 of the Guidelines is unsettled, the husband submits that corporate income can only be added where the corporation had pre-tax income (as opposed to a loss) in the most recent taxation year. That is not the case here, as the business suffered a loss for the fiscal year ending April 30, 2013, the year preceding the trial.
Accordingly, the husband submits that the trial judge erred in adding any portion of the salary the wife formerly received from the business to his line 150 income or any other averaged calculation of corporate profits. However, he accepts that it would be appropriate to fix his income for spousal support purposes at $136,500, the figure underlying the child support figure in the Minutes of Settlement and Final Order.
b. The wife’s position
The wife relies on the following facts: that the parties had been drawing $240,000 per year in aggregate salary from the business in the years leading up to the buy-out of the business; that the cost of a replacement bookkeeper would be about $40,000; and that the business averaged $355,000 in annual after-tax corporate profits in the eight-year period after it limited its operations to its consolidated facility in Timmins and before the wife left the business. The wife does not suggest that 100% of the average annual after-tax corporate income of the business should be added to the husband’s income. However, she points out that at the time of the buy-out, the business had term deposits totaling $568,000, was completely debt-free and was not using its $700,000 line of credit.
Taking account of all these factors, and the lifestyle enjoyed by the parties during the marriage, the wife submits that the trial judge’s conclusion that the husband would have available to him a combined total of $400,000 in annual salary and after-tax corporate profits for purposes of paying spousal support is fully justified. Moreover, the issue of applying the Guidelines to determine income for spousal support purposes was never raised at trial.
c. Standard of Review
Because of the fact-based and discretionary nature of support awards, a trial judge’s order for spousal support is entitled to significant deference on appeal. This deferential approach to support awards promotes finality in family law litigation and also recognizes the importance of the trial judge’s role in seeing and hearing the parties and other witnesses testify. An appeal court is not entitled to overturn a spousal support order simply because it would have balanced the relevant factors differently or arrived at a different decision. Nonetheless, it was said that an appeal court must intervene where the trial judge’s reasons disclose an error in principle, a significant misapprehension of the evidence or if the award is clearly wrong.
The Court of Appeal concluded that in the particular circumstances, the trial judge erred when determining the husband’s income, despite using the SSAGs to determine the range for support. He arrived at an income figure without either applying the Guidelines or explaining why they are inapplicable and by adopting an unreasonable approach to determining income. Accordingly, the Court of Appeal decided to set aside the trial judge’s determination of the husband’s income.
Having regard to the expense involved in ordering a new trial, the Court of Appeal considered it to be in the interests of justice to determine the husband’s income for spousal support purposes.
i. The trial judge erred by failing to either apply the Guidelines or explain why they are inapplicable and by adopting an unreasonable approach to determining income
The Court of Appeal acknowledged that the SSAGs are advisory in nature, not mandatory, and that the trial judge was therefore not required to apply the SSAGs to determine the quantum of spousal support. However, the wife’s position at trial was that the trial judge should apply the SSAGs to determine the amount of support the husband should pay. The wife asked the trial judge to rely on the SSAGs’ ranges to determine the quantum of spousal support. The trial judge accepted the wife’s position. He relied solely on the SSAGs ranges to determine the quantum of spousal support.
The Court of Appeal said that for too many, using the Guidelines means just plugging the income figures into the software program, getting the range and choosing the mid-point. There is more to the SSAGs than this, and using them in this way can lead to inappropriate results. Given that the trial judge in this case relied solely on the SSAGs to determine the amount of spousal support, it was concluded that he erred in failing to either apply the Guidelines provisions for determining income or to explain why they are inapplicable.
The trial judge’s failure to either apply the Guidelines or explain why they are not applicable is exacerbated by the paucity of his reasons. He did not explain how he arrived at $400,000 as the combined salary and after-tax corporate profits that the husband would have available to him going forward for spousal support purposes. In particular, and among other things, he did not explain: what amount, if any, he attributed to the husband from the wife’s former salary; over what period of years (if any) he averaged past corporate profits; why he chose that number of years; whether, and why he included, or did not include, in any averaging, the loss the business sustained in 2013; and what percentage of anticipated corporate profits he included in the husband’s income and why he chose that percentage.
The Court of Appeal found that the trial judge’s approach to determining the husband’s income, including his unexplained departure from the Guidelines, was unreasonable and clearly wrong. The panel would not give effect on appeal to the wife’s argument that the husband failed to raise at trial the issue of applying the Guidelines to the calculation of income. Because the trial judge relied solely on the SSAGs to determine the quantum of spousal support (as the wife asked him to do), he was obliged to consider the Guidelines when determining the husband’s income.
The Court of Appeal set aside the trial judge’s finding concerning the husband’s income as being unreasonable and therefore clearly wrong.
ii. Determining the husband’s income
To determine the husband’s income, the approach followed was that set out in the SSAGs and included use of the Guidelines as the starting point for determining income. It was concluded that a proper interpretation of s. 17 of the Guidelines permits a court to consider a payor’s income “over the last three years” to determine an income that “is fair and reasonable” and that, in that context, the payor’s income over the last three years includes amounts of pre-tax corporate income that the court considers appropriate to add to the payor’s income under s. 18 of the Guidelines for each such year.
a) Determining Income under the Guidelines
The controversy in the case law surrounds whether, in the case of a payor who is a shareholder, director or officer of a corporation and where the court is of the opinion that the payor’s line 150 income does not fairly reflect all the money available to the payor for the payment of support, the court is restricted to including in a payor’s annual income pre-tax corporate income from only the most recent taxation year. Relying on Bear v. Thompson, a decision of the Saskatchewan Court of Appeal, the husband supports this position but the Court of Appeal adopted a different approach.
The Court of Appeal agreed that the modern rule of statutory interpretation should be used to interpret the Guidelines. Nonetheless, it would not adopt this restrictive interpretation of ss. 17 and 18 and stated a review of the Guidelines as a whole compels a different conclusion.
It was the view of the Court of Appeal that the scheme of these provisions is that s. 18 permits a court to take an annual snapshot of a spouse’s income – and include in it pre-tax corporate income from the most recent taxation year. If the corporation suffered a loss in the most recent taxation year, no amount of pre-tax corporate income may be included. It was said it would make little sense to permit consideration of a spouse’s income over the three-year period without permitting consideration of the spouse’s access to pre-tax corporate income in each year of the three-year period.
This approach is also consistent with the fundamental object of the Guidelines, which is to ensure fairness to both spouses, and to their children, in determining what amount of money is in fact reasonably available for the payment of support.
Finally, the Court of Appeal was not persuaded by the concerns expressed in Bear v. Thompson, that this type of interpretation will lead to unfair or egregious results for corporations or that courts will disregard legitimate corporate interests. In attributing pre-tax corporate income to a payor for any particular year, it will be incumbent on the court to have regard to the status of the corporation as a distinct legal personality as well as to legitimate corporate interests in retaining pre-tax corporate income and the degree of the payor’s involvement in the corporation.
b) Application to this case
Neither party led much evidence, be it expert or otherwise, concerning the question of what, if any, amount of pre-tax corporate income should be included in the husband’s income. As such, a court is left to do its best to resolve the issue with the evidence that is available. This is also consistent with achieving a just, expeditious and least expensive determination of the parties’ dispute.
Turning to s. 17, it was concluded that the husband’s line 150 income for 2013 would not be the fairest determination of his income for two reasons. In the light of his financial history, it is reasonable to assume the husband would continue to access corporate profits in the future.
As for the parties’ past use of corporate income, it was undisputed at trial that the parties used significant funds from their shareholders’ loan accounts to pay construction costs when they built their new house. Further, as illustrated by the motion judge’s ruling on interim child support, historically, the company also paid various personal expenses for the parties such as house related expenses, gasoline, insurance, health coverage and personal travel expenses. In addition, around the time of separation, the husband withdrew close to $100,000 from his shareholder’s loan account to buy a sports car. And around the same time, although the expense was eventually disallowed either in whole or in part by the Canada Revenue Agency, the business paid around $60,000 for a Cadillac SUV for the wife. The husband also took several vacations in the time frame leading up to trial.
In the circumstances, the Court of Appeal concluded that it would be reasonable to notionally include some component of pre-tax corporate profits in the husband’s income for past years for the purpose of assessing a fair and reasonable amount under s. 17. Although the wife remained a shareholder during these years, this is a notional calculation performed to assess the husband’s current income. Moreover, for the future, any component of the salary the wife would have received that is not required to pay for bookkeeping expenses and that can be paid from pre-tax corporate income may be available for distribution to the husband.
The Court of Appeal considered it reasonable to attribute a significant portion of the company’s pre-tax earnings to the husband for the years 2011 and 2012. Section 17 of the Guidelines permits a court to determine an amount of income that is “fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount” during the preceding three years. While declining somewhat, the husband’s income was essentially stable in 2011 and 2012, revealing a pattern of income prior to the year in which the business incurred an exceptional loss. Taking account of the 2013 corporate loss, it would be unfair to attribute a current income to the husband at the level of his 2011-2012 income. In these particular circumstances, to bring a measure of fairness to both parties, the Court of Appeal said that it would be appropriate to average the husband’s income over the last three years, which yields an annual income of $214,872.
4. Did the trial judge err in determining the wife’s income?
The husband submits that the wife would receive average interest pursuant to the Minutes of Settlement of $16,800 per year during the first three years of the payout of her equalization payment, $10,000 in the fourth year and $5,000 in the fifth year. The husband also claims that the wife could generate investment income of $15,000 per year on the remaining equalization payment. Adding these sums to the $82,500 the trial judge used for his support calculation, the husband submits that the wife’s income is at least $114,500 over the next three years, and then gradually decreases to $97,500, as the equalization installments are paid.
The Court of Appeal found that the husband’s calculations are incorrect. The wife will only begin generating additional interest on the full balance of the equalization payment once it is received. However, until she receives the full balance, she will receive interest at 4% on the outstanding balance as required under the Minutes of Settlement and she will also be able to generate interest on payments on account of the outstanding balance as they are received. The panel estimated the total of these amounts taking account of the following factors.
In determining the wife’s income, the trial judge adopted an effective interest rate of 4.5% for the income he attributed to the wife from investing the upfront equalization payment of $1,000,000 ($40,000 to $50,000, or a midpoint of $45,000).
Given that the wife is receiving 4% interest on the balance owing on the equalization payment from time to time and assuming the wife will be able to invest the installments she receives at the 4.5% rate used by the trial judge, the Court of Appeal adopted 4.25% as an appropriate rate at which to attribute income to the wife on the balance of the equalization payment until it is received in full.
As the balance owing on the equalization payment was $636,130, using an effective interest rate of 4.25%, the court attributed interest income to the wife of approximately $27,035 per year. This brings her income for the purposes of determining spousal support to a total of $109,535.
5. Did the trial judge err in failing to consider the impact of the settlement on the appellant’s earning capacity?
As recommended under s. 9.6 of the SSAGs, the Court of Appeal considered this issue when assessing the proper level of support. Taking that and the adjustments made to the husband’s income into account, it was considered unnecessary to address this issue further.
6. Did the trial judge err in holding that the wife is entitled to spousal support?
The husband points to the significant payouts the wife received under the Minutes of Settlement and asserts that the trial judge failed to recognize the modern nature of the marriage and the benefits the wife received from the marriage. Moreover, having regard to the payments the wife received and her business skills, the husband contends that the trial judge erred in failing to find she was self-sufficient.
The Court of Appeal refused to accept this submission. Although the wife did acquire substantial benefits from the marriage, the business and the marriage were intertwined. The trial judge recognized that, because of the breakdown of the marriage, it was virtually inevitable that the wife would have to relinquish her stake in the business. In doing so, the wife lost the ability to generate the significant income she was able to earn while married and working in the business as an owner. Although the assets the wife received would generate some income, those earnings plus her income from employment would not approach the income the wife earned in the business.
The trial judge did not err in recognizing that the wife suffered a significant disadvantage as a result of the breakdown of the marriage or in awarding spousal support to the wife as a result.
7. Should the husband’s fresh evidence be admitted?
The husband applied to introduce fresh evidence in the form of two affidavits, one from him, explaining how the property settlement has been paid and the impact that has had upon him and the second from his new accountant, explaining income tax consequences arising from the spousal support award and property settlement.
The Court of Appeal would not admit this evidence. Both the husband and his accountant at the time testified at trial. The husband does not seriously contest that the evidence he now seeks to adduce could have been led at trial. The proposed evidence thus fails on the first branch of the test for admission of fresh evidence. It is not in the interests of justice in this case to permit the husband to adduce evidence that was delivered close to the eve of the appeal hearing that could have been led at trial.
8. Adjusted SSAGs calculation
Based on the revised income figures of $214,872 per year for the husband and $109,535 for the wife, a total period of cohabitation of 20 years commencing in 1991, and the “with child” support formula, the SSAGs produce a range for spousal support of $0 to $1,678, with a mid-range of $767.
The Spousal Support Advisory Guidelines: The Revised User’s Guide provides that courts should avoid the tendency to “default” to the mid-range amount of spousal support. In determining the appropriate quantum of support within the range, a court is required to consider the support factors and objectives found in the Divorce Act and the Family Law Act. The SSAGs also provide a number of factors to consider while choosing a location within the range, including the strength of the recipient’s compensatory claim, the recipient’s need, property division and debts, and the payor’s needs and ability to pay.
The wife has a strong compensatory claim. The parties cohabited for at least 20 years. During their marriage, the wife worked with the husband to establish a successful business. Post-separation, the wife is no longer in a position to work in and benefit directly from the business. She suffered a significant disadvantage as a result of the breakdown of the marriage.
The issue of need is measured against the parties’ marital standard of living. The wife will be able to convert some of her assets from equalization into income, but it will not compare to that produced by the business. As the trial judge stated, self-sufficiency during the wife’s working life, measured against the marital standard of living, will be an elusive goal. On the whole, the wife’s claim to support suggests a result towards the high end of the range.
On the other hand, s. 9.6 clarifies that the SSAGs assume that the parties have accumulated the typical family property for couples of their age, incomes, and obligations, and property is divided equally. Significant departures from those assumptions may affect where support is fixed within the ranges. If the recipient receives a large amount of property, the low end of the range might be more appropriate. Here, the wife has received a substantial equalization payment of $1,636,130. Moreover, the equalization payment will negatively impact the funds available to the husband to pay support. These factors support a result in the lower end of the range.
A further factor not directly addressed by the SSAGs, is that the parties agreed to a figure for child support that is based on the husband having an income of $136,500 and that is below full Guidelines support for that income in any event. This factor supports a figure in the upper end of the range. In all the circumstances, the Court was of the view that spousal support in the amount of $1,500 per month is appropriate.
Based on the foregoing reasons, the Court of Appeal allowed the appeal and set aside the trial judge’s order, substituting an order requiring the husband to pay the wife $1,500 per month on account of spousal support commencing August 1, 2014. The Court of Appeal ordered no costs of the appeal, set aside the trial judge’s costs award and order no costs of the trial.
As for the costs of the appeal, although successful on appeal, the husband raised numerous issues on which he did not succeed. Further, the thrust of the husband’s argument concerning the main issue on which he did succeed (determination of his income) was not raised at trial.
[Sharpe, LaForme and van Rensburg JJ.A.]
L. Tessaro and A. M. Lintner, for the appellants
W. Manuel and S. Mathai, for the respondents
Keywords: Environmental Law, Administrative Law, Judicial Review, Ultra Vires, Endangered Species Act, O. Reg. 176/13
The purposes of the Endangered Species Act, 2007, S.O. 2007, c. 6 (the “ESA”) are to identify species at risk (“SAR”), to protect them and their habitats and to promote their recovery and stewardship. To support this purpose, the ESA sets out various prohibitions for activities affecting SAR and their habitats. While the ESA improves the protection of SAR, it also allows for exceptions to these prohibitions, including through the issuance of permits, through stewardship agreements with the Ministry, and by regulation. The challenged regulation, O. Reg. 176/13, was made under s. 55(1)(b) and provides for 19 exemptions from the Act’s prohibitions (including 14 activity-based exemptions), subject to compliance with prescribed conditions.
Section 57 provides for certain conditions precedent before a regulation can be made under s. 55(1)(b). S. 57(1) provides that where a regulation is proposed to be made under s. 55(1) that would apply to a listed endangered or threatened species and the Minister is of the opinion that the regulation is likely to: jeopardize the survival of the species in Ontario; have any other significant adverse effect on the species; or result in a significant reduction in the number of members of the species that live in the wild in Ontario, then the Minister shall consult with a person who is considered by the Minister to be an expert on the possible effects of the proposed regulation on the species.
Where an expert is to be consulted in respect of a proposed regulation under s. 55(1)(b), s. 57(2) provides that the Minister is not to recommend the regulation nor is the regulation to be made unless: (1) the Minister is of the opinion that the regulation will not result in the species no longer living in the wild in Ontario; (2) the expert consulted by the Minister has submitted a written report on the possible effects of the proposed regulation on the species; and (3) the Minister has considered alternatives to the proposal for a regulation.
In this case, the Minister did not consult with an expert on the possible effects of the proposed O. Reg. 176/13. Despite the regulation affecting endangered and threatened species on the SAR List, the Minister concluded that the regulation was not likely to jeopardize the survival of any such species in Ontario or to have any other significant adverse effect on the species. By expressing this opinion, the Minister purported to fulfill the statutory condition precedent set out in s. 57(1). This is the “Minister’s Determination”.
The appellants are not-for-profit environmental groups that have a number of concerns with this regulation. In essence, they believe the protection of SAR will suffer as a result of this regulation. The appellants acknowledge that they are unable to challenge the wisdom or likely effectiveness of the regulation. As such, the focus of their judicial review application is on the vires – that is whether the regulation is authorized by the statute under which it is made – of O. Reg. 176/13.
The Divisional Court dismissed the appellants’ challenge by judicial review on this regulation made under the ESA.
The appellants appealed the decision of the Divisional Court and seek an order setting aside the order of the Divisional Court and declaring the regulation ultra vires and of no force and effect.
(1) Did the Divisional Court err in concluding that the statutory condition precedent in s. 57(1) of the ESA was met by the Minister’s Determination?
(2) Did the Divisional Court err in concluding that the regulation is consistent with the purpose and objects of the ESA?
(1) No. The Divisional Court did not err in concluding the Minister complied with the necessary statutory condition precedent to consider the impact of the regulation on each affected SAR in forming his opinion that the regulation was not likely to jeopardize the survival of, or to have any other significant adverse effect on, each species.
The Minister’s Explanatory Note indicates that the Minister properly assessed the effect of the proposed regulation on each SAR, and not just on “some” species or SAR as a group, through five different ways. First, the fact that specific SAR were excluded from several exemptions, with specified reasons for the exemptions, indicates that the risk to individual species was considered. Second, the Explanatory Note indicates that the exemptions were made with a specific understanding of the different threats to individual species and their specific needs. Third, the limits on the activities that are covered by each exemption, referred to in the Explanatory Note as “scoping”, reflect the consideration of risks to individual SAR arising from the various activities. Fourth, each exemption contains conditions that require measures to be taken to minimize the effects on individual affected SAR. These measures include both mandatory conditions for certain specific SAR or reasonable measures in consideration of each affected SAR. Finally, the plain wording of the Explanatory Note is consistent with the consideration of the effect of the regulation on each SAR. The Explanatory Note concludes that the effect of the proposed regulation is not likely to jeopardize the survival or have any other significant adverse effects on “the affected endangered or threatened species in Ontario”.
(2) No. The Divisional Court did not err in concluding the regulation was not ultra vires as inconsistent with the purpose of the ESA.
As articulated in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, the court favours an interpretive approach that reconciles an impugned regulation with its enabling statute. The Divisional Court was right to look at the legislation as a whole in determining the purpose of the ESA. The court was entitled to go beyond the purpose statement in s. 1 of the ESA to examine the approach of the legislation and the extent to which the legislature had regard for social, economic and cultural factors. As such, the court did not err in concluding that the impugned regulation, based in part on social and economic concerns, is consistent with the purposes and objects of the ESA.
The legislative “purpose” for a vires analysis entails consideration of both the objective and the scheme of the ESA. In other words, the purpose is the protection of SAR, but using the scheme as set out in the ESA. While the ESA is directed toward the protection of SAR, the protection afforded by the ESA to individual species members and their habitats is not absolute. The protection of SAR and their habitat in ss. 9(1) and 10(1) is subject to exceptions. There is nothing in the statute, or the specific regulation making authority, to say that exemption regulations must be made exclusively for activities that are for the preservation and protection of SAR.
In this regard, the regulation is consistent with the ESA in terms of approach and scheme. The regulation operates under a similar approach as the ESA. It imposes limitations and conditions on proponents seeking to rely on exemptions. The limitations and conditions serve to avoid or minimize adverse effects on SAR, and in some cases, provide benefits to SAR.
Further, the issue is not whether the ESA and regulation have identical purposes or objectives, but as Katz Group directs, whether the regulation is “irrelevant”, “extraneous” or “completely unrelated to” the legislative purpose. O. Reg. 176/13 was promulgated under the specific statutory authority to make regulations prescribing exemptions from ss. 9(1) and 10(1) of the ESA. The statutory condition precedent requires an assessment by the Minister of whether the regulation would jeopardize the survival of or have any other significant adverse effect on any SAR. While the motive for the regulation may well have been a concern for administrative efficiency and cost savings, the limitations, conditions, exceptions and scoping of the exemptions contained in the regulation are directed toward the protection of SAR. The regulation is therefore not “irrelevant”, “extraneous” or “completely unrelated to” the purpose of the ESA and its scheme.
[MacPherson, Simmons and Lauwers JJ.A.]
A. D. Slodovnick and R. Sparano, for the appellants
D. Alderson and A. Ottaway, for the respondent
Keywords: Corporations, Shareholders, Torts, Fraudulent Misrepresentation, Arbitrations, Arbitration Agreements, Scope of Arbitration Clause, Jurisdiction of Arbitration, Stay, Arbitration Act, 1991, s. 7
Mr. Haas entered into a shareholders’ agreement with Mr. Gunam, Mr. Feng and Mr. Viscardi respecting an Italian restaurant in Toronto known as Osteria Dei Ganzi and invested $200,000. The restaurant failed.
Mr. Haas launched this action against Mr. Gunam, Mr. Feng and Mr. Viscardi alleging he was induced to enter into the shareholders’ agreement by fraudulent misrepresentations about the restaurant’s business prospects and how it would be managed. He seeks to recover his investment.
Mr. Gunam, Mr. Feng and Mr. Viscardi moved to stay the action under s. 7 of the Arbitration Act, 1991, S.O. 1991, c. 17 in favour of the arbitration agreement contained in the shareholders’ agreement. Mr. Gunam and Mr. Feng appeal the motion judge’s refusal to stay the action. The co-defendant Mr. Viscardi did not appeal.
Mr. Haas alleges he was induced to sign the shareholders’ agreement by a number of misrepresentations. An arbitration agreement is embedded in the shareholders’ agreement.
Issue: Did the motion judge err in refusing to stay the action under s. 7 of the Arbitration Act, thereby permitting Mr. Haas to avoid arbitrating the matters in dispute despite the arbitration agreement in the shareholders’ agreement? In answering this main question, the jurisprudence has established that the following sub-questions be considered:
(1) Is there an arbitration agreement?
(2) What is the subject matter of the dispute?
(3) What is the scope of the arbitration agreement?
(4) Does the dispute arguably fall within the scope of the arbitration agreement?
(5) Are there grounds on which the court should refuse to stay the action?
Holding: Appeal allowed. Motion judge’s order is set aside and the action against Mr. Gunam and Mr. Feng is stayed in favour of arbitration.
(1) Yes. There is an arbitration agreement embedded in the language of the shareholders’ agreement.
(2) The motion judge took a “pith and substance” approach to characterize the claim and determined that the claim was for the fraudulent misrepresentation of facts which caused Haas to enter into the business agreement. The court of appeal disagreed with the characterization of Haas’s claim as relating to only fraudulent misrepresentation.
(3) The language of the arbitration agreement is broad in scope and favours arbitration over litigation where the parties so provide in their agreement, which they did in this case.
(4) The approach taken by the motions judge in determining whether the dispute fell within the scope of the arbitration agreement was incorrect. First, the motion judge assumed tort claims fall outside of the scope of the arbitration agreement. Second, he assumed that a fraud claim vitiates an arbitration agreement. Third, he failed to advert to the law’s policy of enforcing arbitration agreements and letting arbitrators decide the scope of their authority. He fell into error in equating forum selection clauses with arbitration agreements. The motion judge was incorrect in determining that the scope of the arbitration agreement is limited to contractual issues. To the contrary, the scope is broad and, in the normal course, s. 17 of the Arbitration Act and the jurisprudence plainly expect that the determination of jurisdiction will be made by the arbitrator, not the court. The motion judge erred in failing to take the relevant principles into account. As such, the dispute falls within the scope of the arbitration agreement.
(5) Yes. Under s. 7(5) of the Arbitration Act there are grounds to stay the action but the motion judge’s reliance on this section was based on a faulty premise. Until the arbitrator decides his or her jurisdiction, a motion under s. 7(5) is premature. The motion judge erred in refusing to stay Mr. Haas’s action on the ground that the subject matter is beyond the scope of the shareholders’ agreement. The Court of Appeal held that the arbitration agreement is valid and allowing the action to continue will not prevent a multiplicity of proceedings.
[Rouleau, van Rensburg and Benotto JJ.A.]
M. Wine and K. D. Sherkin, for the appellants
S. Zucker, M. L. Solmon and N. J. Tourgis, for the respondents
Keywords: Real Property, Condominiums, Condominium Act, 1998, Torts, Negligent and Fraudulent Misrepresentation, Exclusion Clauses, Unconscionability, Limitation Periods, Limitations Act, 2002, Summary Judgment, Procedural Fairness, Natural Justice, Remedies, Rescission, Damages
In the mid-2000s, Sarbjit Singh (“Mr. Singh”) and Se Na Lee (“Mrs. Lee”) (the “appellants”) each bought a Hotel Unit in the Trump International Hotel. Mr. Singh and Mrs. Lee were both middle-class residents of the Greater Toronto Area and had no intention of occupying the Hotel Units themselves. Instead, they bought the units as investments, expecting that they would profit by participating in the hotel’s “Reservation Program”.
Under the Reservation Program, owners of individual Hotel Units could place their units in a common pool of rooms to be rented out at luxury rates by the hotel’s operator. Their expectation was that high occupancy and rental rates at the one-of-a-kind Trump International Hotel would provide healthy returns. Neither Mr. Singh nor Mrs. Lee were sophisticated investors, in real estate or otherwise. Both believed that buying into the Trump project would be an excellent investment. And in time, both came to realize that they were wrong.
In separate but similar actions, Mr. Singh and Mrs. Lee sued for rescission and damages, claiming they were misled by marketing materials that projected impressive profit margins (the “Estimates”) for purchasers who participated in the Reservation Program. They brought motions for partial summary judgment against the respondents Talon International Inc. (“Talon”), Donald John Trump Sr. (“Trump”), Val Levitan (“Levitan”), the Director, CEO and President of Talon and Alex Shnaider (“Shnaider”), the Director and Chairman of Talon. The motions judge dismissed the motions and, in addition, dismissed the claims against Trump, Levitan and Shnaider in their entirety. This is an appeal from that decision.
- Did the motions judge err in holding that the plaintiffs failed to establish the fifth element of a claim for negligent misrepresentation, namely reasonable reliance?
- Did the motions judge err in enforcing the entire agreement and exclusionary clauses to bar the plaintiffs’ action?
- Did the motions judge err by dismissing Mrs. Lee’s claim as time-barred?
- Did the motions judge err by concluding that fraudulent misrepresentation had not been pleaded?
- Did the motions judge err in dismissing the claims against Shnaider, Levitan and Trump?
- What is the proper remedy?
Appeal granted. The motions judge’s order is set aside and the order is substituted as follows:
- Rescinding Mr. Singh’s agreement of purchase and sale;
- Awarding damages to Mrs. Lee as against Talon for negligent misrepresentation;
- As against Shnaider, Levitan and Trump, dismissing only those of the appellant’s claims that were advanced for breach of the OSC Ruling and for misrepresentations;
- Remitting the claim for fraudulent misrepresentation to be decided on a further motion for summary judgment or at trial before the Superior Court;
- Awarding pre and post-judgment interest on the damage awards; and
- For costs of the appeal on a partial indemnity basis to the appellants as against Talon fixed in the amount of $35,000, inclusive of disbursements and applicable taxes.
- Reasonable reliance
Yes. As the motions judge indicated, the five elements of a claim for negligent misrepresentation are: (1) a duty of care based on a “special relationship”; (2) a misleading representation; (3) negligence in making the misrepresentation; (4) reasonable reliance on the representation; and (5) damage caused by the reliance. Only the “reasonable reliance” factor is at issue here.
It was argued that the Estimates were “for discussion purposes only” and “not a guaranteed investment program”. Although the motions judge was correct in finding that the plaintiffs were warned about the risks of their investment, it does not follow that it was unreasonable for the plaintiffs to rely on the Estimates. The risks acknowledged and accepted were the risks that market conditions could change, that rental rates and occupancy rates could fluctuate, and that their expenses might go up. Those are known, expected risks and the disclaimers in the documentation clearly disclose their existence. It would have been unreasonable for the plaintiffs to rely on representations that these risks did not exist.
The actionable misrepresentations were not that risks such as market conditions and fluctuations in rental and occupancy rates did not exist. The misrepresentations were: (1) that the figures in the Estimates were based on the best available information; and (2) that the hotel would be immediately profitable. On the motions judge’s own findings, both misrepresentations were established. The motions judge found that the figures in the Estimates were based not on hard numbers but on Mr. Levitan’s “uninformed and ill-informed opinions”. Many known expenses were not disclosed or were grossly understated.
The motions judge’s conclusion that the plaintiffs’ reliance on the Estimates was objectively unreasonable is clearly in error and cannot stand. The plaintiffs’ reliance on the Estimates was objectively reasonable.
- The entire agreement and other exclusionary clauses
Yes. In light of the circumstances and context in which the clauses were entered into, it would be unconscionable to enforce those clauses to bar the plaintiffs’ claims. The agreement of purchase and sale, the Disclosure Document and the Reservation Program agreement contained various entire agreement and exclusionary provisions. Those clauses advised purchasers that they should only rely on the agreements expressed in writing, that no representations were being made as to the projected income from the rental of the Hotel Units and that there were risks that income would not be as projected.
The motions judge erred in concluding, without analysis, that it was not unconscionable to enforce the exculpatory provisions. Unconscionability provides that despite the general principle that parties should be held to the bargains that they have made, there are some parties that must be protected and some bargains that should not be enforced.
The Court of Appeal determined that the entire agreement clause functioned as a trap to unwary purchasers. Neither the Mr. Singh nor the Mrs. Lee had anything more than minimal investing experience. Their real estate experience was limited to the purchase of their family homes. They would have known little or nothing regarding luxury hotel rental rates and occupancy. And both the Mr. Singh and the Mrs. Lee signed the agreements of purchase and sale without consulting with a lawyer. It would be unconscionable and would shock the conscience to allow a party to use an entire agreement or other exculpatory clause to escape liability.
- The limitation issue
Yes. Although they raised limitation provisions in the Securities Act and the Condominium Act in their statement of defence, the defendants did not plead the Limitations Act, 2002, nor did they seek leave to amend to do so. Further, they failed to raise a Limitations Act, 2002 defence in their written submissions on the motions for summary judgment. In these circumstances, it was not appropriate for the motions judge to invoke the Limitations Act, 2002 to dismiss Mrs. Lee’s claim.
- The fraudulent misrepresentation pleading
Yes. Although the statement of claim does not use the words “fraudulent misrepresentation”, all of the elements and materials facts for such a claim are pleaded and the claim was brought to the respondents’ attention in the factum filed on the summary judgment motions. Because the motions judge did not make the necessary factual findings, this claim should simply be remitted to be determined on a subsequent motion or at trial.
- The dismissal of the action against Shnaider, Levitan and Trump
Yes. With respect to the action against Shnaider, Levitan and Trump, the Court of Appeal agrees that the claims that were the subject of the motions for summary judgment were properly dismissed. However, the Court of Appeal determined that the motions judge erred in dismissing the claims against the three individual defendants that were not properly before him. A motion judge may not grant or dismiss a claim on a motion for summary judgment that is not within the scope of the motion before him or her. Doing so would deny procedural fairness and natural justice. Accordingly, the motions judge’s dismissal of the causes of action against Shnaider, Levitan and Trump that fall outside the scope of the motions for partial summary judgment is set aside.
The appellants argue that the appropriate remedy is to order rescission or, in the alternative, damages. It is not apparent from the record what effect rescission would have on innocent third parties such as Mrs. Lee’s mortgagor, who was not made a party to these proceedings. The Court of Appeal determined that the award of damages is the appropriate remedy for Mrs. Lee.
[Hoy A.C.J.O., Benotto and Huscroft JJ.A.]
Keywords: Endorsement, Bankruptcy and Insolvency, Companies’ Creditors Arrangement Act, Breach of Copyright, Summary Judgment, Leave to Appeal
SNMP Research International Inc. and SNMP Research Inc. (collectively, “SNMP”), licenced its software products to Nortel to use in its computer networks. Nortel’s use of the software was governed by a 1999 licence agreement that provided, among other things, that Nortel would keep SNMP’s source code strictly confidential. When Nortel’s assets were sold during the CCAA proceedings beginning in 2009, some of SNMP’s source code was transferred along with those assets. Nortel acknowledged that it was not authorized to provide source code to anyone, and that in doing so it breached its licence agreement with SNMP. SNMP sued Nortel, advancing two claims: one for disgorgement of profits attributable to the unauthorized transfer of SNMP’s intellectual property (“the profits claim”), and one for damages for breach of contract, copyright infringement and breach of confidence (“the damages claim”). The profits claim is valued at $86 million. The damages claim is for a comparatively much smaller amount.
The supervising judge granted partial summary judgment to Nortel and dismissed the profits claim. He ordered that the damages claim be held in abeyance for six months pending ongoing discovery in a parallel U.S. proceeding.
In dismissing the profits claim, the supervising judge held that while Nortel had infringed SNMP’s copyright, SNMP failed to show that Nortel profited from the unauthorized transfer of SNMP’s intellectual property. Instead, the evidence established that the companies that bought Nortel’s assets knew they were not buying SNMP’s software and would instead have to negotiate licencing fees with SNMP directly.
Issues: Should leave to appeal be granted in this CCAA proceeding?
- Is the proposed appeal prima facie meritorious or frivolous?
- Is the point on the proposed appeal of significance to the practice?
- Is the point on the proposed appeal of significance to the action? And
- Will the proposed appeal unduly hinder the progress of the action?
Held: Leave to appeal denied.
- The proposed appeal turns on the supervising judge’s findings of fact about the sufficiency of the evidence SNMP marshalled to oppose Nortel’s motion for summary judgment. Those findings are entitled to deference and cannot be disturbed on appeal absent palpable and overriding error. There was no such error in the supervising judge’s reasons.
- The proposed appeal turns on the particular facts of this case and does not raise broader issues about the intersection of copyright law and insolvency law. The supervising judge’s decision does no more than decide that in this case, on these facts, SNMP did not meet its burden under s. 35(2) of the Copyright Act, R.S.C. 1985, c. C-42, to prove that Nortel derived revenues from its infringement of SNMP’s copyright. The proposed appeal does not raise issues of significance to the practice.
- The Court of Appeal held in a similar Nortel matter that even if the allocation issue is significant to the CCAA proceeding, that factor, standing alone, is insufficient to warrant granting leave.
- Yes. The Court of Appeal noted that the proceedings have dragged on for several years, to the detriment of individuals and businesses awaiting a resolution. The fact that this was a liquidation rather than a restructuring does not render the delay immaterial. Given the court’s conclusions on the other three leave factors, it was not satisfied that a further delay was justified in these circumstances.
[Feldman, Simmons, and Lauwers JJ.A.]
G. Chouest and J. Lefebvre, for the appellant
D. Denis and J. Dutrizac, for the respondent
Keywords: Endorsement, Bankruptcy and Insolvency, Summary Judgment, Rule 20, Abuse of Process, Rule 21, Limitation Periods
The appellant, BDO Canada Limited, is the trustee in bankruptcy of Impact Tool and Mould Inc., appointed at the behest of, and funded by a competitor of, Impact in Windsor Ontario, Unique Tool and Gauge Inc. This action was commenced in London by the respondent, Doyle Sakewski Inc. (DSI), the interim receiver of Impact, for alleged improprieties by BDO in the conduct of bankruptcy, which added significant cost to the administration of the receivership where there were no funds available in the estate to pay those costs or to justify the trustee’s actions.
This action relates to breach of fiduciary duty by BDO for its actions, including making false statements in affidavits, pursuing commercially unreasonable courses of action, making unfounded allegations against the interim receiver, failing to act impartially and in good faith among creditors, and initiating frivolous and vexatious court proceedings.
The appellant, BDO, brought a motion for summary judgment under Rule 20 to dismiss the claim against it on the basis that the claim was statute-barred and a motion to strike portions of the claim as an abuse of process on the basis of issue estoppel under Rule 21.
1) Did the motion judge err in his assessment that the claim was not statute-barred?
2) Did the motion judge err in his assessment that he could not assess the claim of abuse of process?
The motion judge found that DSI had suspicions of the alleged malfeasance and made efforts to obtain necessary information to confirm its suspicions, however was repeatedly “stone-walled” by BDO. The Court of Appeal agreed with the motion judge that DSI did not have sufficient facts to properly allege a claim for breach of fiduciary obligations against BDO.
The motion judge found that the motion for abuse of process was based on whether DSI was seeking to claim costs for issues already dealt with in previous orders, and he could not determine on the record which cost awards were the subject of this action. He therefore dismissed the motion. The Court of Appeal found no basis to interfere with this finding.
[Weiler, Cronk and Benotto JJ.A.]
A. J. Lenczner, Q.C., and R. Bucholz, for the appellants/respondents by way of cross-appeal, Michael Visocchi and Visco Engineering Inc.
P. W. Kryworuk, J. T. Akbarali and D. S. Jovanovic, for the respondents/respondents by way of cross-appeal, Hollowcore Incorporated and Prestressed Systems Inc.
M.A. Chochla and M. A. D. Coleman, for the respondents/appellants by way of cross-appeal, The Royal Insurance Company of Canada, Continental Casualty Company and Certain Underwriters at Lloyd’s Under Contract No. ENC5-98
Keywords: Endorsement, Costs
The Court of Appeal previously addressed this case. However, the parties were unable to agree on costs. As such, the court addresses the various claims for costs of the appeal and cross-appeal.
What costs are appropriate for the appeal and cross-appeal?
The appellants and the respondents were successful against the third parties and are entitled to costs from the third parties.
During oral submissions, the appellants simplified and presented their submissions as two alternative grounds. Though the first ground of the appeal did not engage the respondents, the respondents were still required to address all issues. As such, the appellants are required to pay partial indemnity costs to the respondents.
[Laskin, Simmons, and Huscroft JJ.A.]
M. D. Magonet, for the appellant
J. Manson, for the respondent
Keywords: Endorsement, Costs, Interest
[Doherty, Hourigan and Roberts JJ.A.]
E. Krivicic, appellant appearing in person
J. R. Presser, amicus curiae
N. Thomas, for the Crown
J. Thomson, for the Person in Charge of the Waypoint Centre for Mental Health
Keywords: Endorsement, Mootness
[Simmons, LaForme and Pardu JJ.A.]
C. Martin, for the moving party
K. Rana, self-represented
Keywords: Endorsement, Telephone Motion, Adjournment
[Simmons, LaForme and Pardu JJ.A.]
K. Kavuru, in person
E. Machado, for the respondents
Keywords: Endorsement, Frivolous and Vexatious Claims, Solicitor’s Negligence
[Doherty, Hourigan and Roberts JJ.A.]
L. P. Strezos and S. Foda, for the appellant
R. Visca, for the respondent
Keywords: Criminal Law, Evidence, Rule in Brown v Dunne, Oliver Instruction
[Doherty, Hourigan and Roberts JJ.A.]
E. Rolfe, for the appellant
S. Ficek, for the respondent
Keywords: Criminal Law, Aggravated Assault, Criminal Code, s 21(2), Sentencing, Mitigation, Credit for Pre-sentence Incarceration
[MacPherson, Pepall and Pardu JJ.A.]
T. A. Fraser, in person
E. Dann, duty counsel
H. Freeman, for the respondent
Keywords: Criminal Law, Aggravated Assault, Assault with a Weapon, Assault, Uttering a Threat to Cause Death, Sentencing, Aggravating Factors, Repeat Offender, Lack of Remorse, Aboriginal Offender, Gladue Principles
[MacPherson, Epstein and Lauwers JJ.A.]
M. Hart, acting in person
J. Speyer, for the respondent
Keywords: Criminal Law, Impaired Driving, Summary Conviction, Arguments Not Raised at Trial
[MacPherson, Epstein & Lauwers JJ.A.]
K. Sriskantharajah, acting in person
D. M. Garg, for the respondent
Keywords: Criminal Law, Fraud
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