Table of Contents:

Civil Cases:

Paschel v. Paschel, 2017 ONCA 972

Keywords: Family Law, Custody, Child Abduction, Habitual Residence,  Hague Convention on the Civil Aspects of International Child Abduction, Article 13(b), Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.)

Weaver v. Anderson, 2017 ONCA 964

Keywords: Real Property, Boundary Dispute

Chinese Publications for Canadian Libraries Ltd. v.  Markham (City), 2017 ONCA 968

Keywords: Civil Procedure, Appeals, Security for Costs, Frivolous and Vexatious, Impecuniosity, Rules of Civil Procedure, Rules 61.06(1)(a) and 56.01(d), Yaiguage v. Chevron Corp., 2017 ONCA 741

DHMK Properties Inc. v. 2296608 Ontario Inc., 2017 ONCA 961

Keywords: Contracts, Breach, Real Property, Agreements of Purchase and Sale, Breach of Warranty, Calculation of Damages,  Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Keneric Tractor Sales Ltd. v. Langille, [1987] 2 S.C.R. 440

Montepeque v. State Farm Mutual Automobile Insurance Company, 2017 ONCA 959

Keywords: Insurance Law, MVA, Unidentified Motorist Coverage, Ontario Automobile Policy, s. 5, OPCF 44R Family Protection Coverage , Legal Causation, Jury Verdicts, Standard of Review, Jury Charges, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Highway Traffic Act R.S.O. 1990 c. H.8,

Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

Keywords: Torts, Battery, Civil Procedure, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, S.O. 2002, c.24, ss. 4 and s. 5(1)(a)(iv), Brown v. Baum, 2016 ONCA 325, Chimienti v. Windsor (City), 2011 ONCA 16, Markel Insurance Company of Canada v. ING Insurance Company, 2012 ONCA 218

Chhina v. Commercial Spring & Tool Company Limited, 2017 ONCA 967

Keywords: Employment Law, Wrongful Dismissal

Drakoulakos v. Stirpe, 2017 ONCA 957

Keywords: Trusts & Estates, Resulting Trust, Limitation Periods, Equitable Remedies, Transitional Provisions, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 24(6), Summary Judgment

Maracle III v. Miracle, 2017 ONCA 950

Keywords: Civil Procedure, Appeals, Leave, Extension of Time, Rules of Civil Procedure, r. 61.03.1(3), Reid v. College of Chiropractors, 2016 ONCA 779,  Partnership Agreements, Arbitration Agreements, Arbitration Act, 1991, S.O. 1991, c. 17

Su v. Lam, 2017 ONCA 952

Keywords: Civil Procedure, Appeals, Extension of Time, Consent Orders, Setting Aside, Reid v. College of Chiropractors, 2016 ONCA 779

Thomson v. Durham (Police Services Board), 2017 ONCA 958

Keywords: Civil Procedure, Limitation Periods, Enforcement of Court Orders, Limitations Act, 2002, ss. 4 and 16, Recovery of Personal Property

Samra v. 7544405 Canada Inc., 2017 ONCA 953

Keywords: Civil Procedure, Appeals, Security for Costs, Stay Pending Appeal, Debtor-Creditor, Mortgages

Nufrio v. Allstate Insurance Company of Canada, 2017 ONCA 948

Keywords: Employment Law, Contracts, Breach, Fundamental Changes, Unilateral Changes

Li v. Li, 2017 ONCA 942

Keywords: Civil Procedure, Summary Judgment, Res Judicata, Abuse of Process, Foreign Law

Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939

Keywords: Contracts, Construction, International Commercial Arbitration, International Commercial Arbitration Act, R.S.O. 1990, c. I.9, United Nations Commission on International Trade Law (UNCITRAL) Model Law, Jurisdiction, Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608 (Gen. Div.), Procedural Fairness, Corporacion Transnacional de Inversiones S.A. de C.V. v. STET International S.p.A. (1999), 45 O.R. (3d) 183 (S.C.), aff’d (2000), 49 O.R. (3d) 414 (C.A.), Public Policy

Criminal & Ontario Board Decisions and Short Endorsements

Civil Decisions:

Paschel v. Paschel, 2017 ONCA 972

[Pardu J.A. (In Chambers)]

Counsel:

Farrah Hudani, for the moving party

Sheila Gibb, for the responding party

Keywords: Family Law, Custody, Child Abduction, Habitual Residence,  Hague Convention on the Civil Aspects of International Child Abduction, Article 13(b), Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.)

Facts:

The moving party, Brittany Justine Paschel, is the mother of Cayvan Bain Paschel and Kazhem Hain Paschel (both children are under the age of two). The responding party is their father. The mother moves for a stay pending appeal of Trimble J.’s Order requiring the return of these two children to their habitual residence in Tennessee, U.S.A. pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 1343 UNTS 89 (entered into force December 1, 1983).

On July 31, 2017, the mother took the two children from their home in Tennessee to her mother’s home in Mississauga, Ontario without the father’s knowledge or consent. The father commenced an application, which was heard on October 30, 2017, for the return of the children. The mother opposed the father’s application. She said they lived a nomadic lifestyle in the United States and that the children had no habitual residence. She also said that the return of the children to the place of habitual residence would expose the children to a grave risk of physical or psychological harm, or otherwise place the children in an intolerable situation within the terms of Article 13(b) of the Hague Convention. The mother asked for a trial, however, the application judge concluded that he could decide the issues on the basis of the written record, which was substantial. The application judge concluded that the children’s habitual residence was in Tennessee, and that ordering the return of the children to Tennessee would not expose the children to a risk of harm of the nature contemplated by the Hague Convention.

Both parents have counsel in Tennessee. Moreover, there is a custody hearing, with oral evidence, set for January 23, 2018 in Tennessee. What makes this case different is the fact that the mother cannot return to the United States. When she came back into Canada with her children, she told American immigration authorities that she had been illegally living in the United States. As a result, she is now subject to a 20-year prohibition against entering the United States. To make matters more complicated, the father has a dated criminal record that bars him from entering Canada.

Issues:

(1) Should the court grant the mother’s motion for a stay pending appeal of Trimble J.’s Order requiring the return of the children to Tennessee?

Holding: Motion dismissed.

Reasoning:

(1)  No. Based on the evidence before him, the application judge’s conclusion that the children were habitually resident in Tennessee was reasonable and amply supported by the record. The application judge’s decision to decide this case on the basis of the written record, the 19 affidavits filed before him, rather than to direct a trial of the issues was a discretionary decision that is entitled to deference. While a trial of some issues may be necessary in some cases, some form of summary procedure is the norm, as this court pointed out in Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont. C.A.):

The Convention contemplates a very speedy process for the return of children who have been wrongfully removed or retained outside the jurisdiction of their habitual residence. That is why the normal practice is to make the necessary order one way or the other based on a summary procedure.

The trial judge analyzed the conflicting affidavits. He was not satisfied that the mother had satisfied her burden of proving that return of the children would subject them to grave harm. There is no reason to believe that the Tennessee courts will not make a custody decision on the basis of the best interests of the children, including terms about the location of their residence. A trial on the merits, in January 2018, in the country where the children are habitually resident, as opposed to prolonged jurisdictional wrangling, is in the best interests of the children. There is no reason to believe that the mother will not be able to fully participate in the trial by giving her evidence by video transmission if necessary. In making a decision about the best interests of the children, custody, access and the place of residence of the children, the court was confident the Tennessee court will endeavor to get as full an account as possible from both parents.

The mother should not be allowed to frustrate the goals of the Hague Convention by unilaterally attempting to create a new status quo outside the country of the children’s habitual residence. The court is not persuaded that the interests of justice require a stay of the order requiring the return of the children to their habitual residence jurisdiction.

Weaver v. Anderson, 2017 ONCA 964

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:

Daniel J. Wyjad, for the appellants
Andrew Mae, for the respondent

Keywords: Real Property, Boundary Dispute

Facts:

The appellants, Karen and William Weaver, assert that the application judge made palpable and overriding errors in establishing the boundary line between their property and the respondent’s, Gordon Anderson.

Issues:

(1) Did the application judge misinterpret the field notes of an earlier surveyor, White?

(2) Did the application judge fail to give proper consideration to White’s plan of the property, which identified the lot line in a location other than the fence?

(3) Did the application judge fail to apply proper legal principles in establishing the boundary?

Holding:  Appeal dismissed.

Reasoning:

(1) No. As the application judge observed, the surveyor’s notes were “cryptic”, but they were open to the interpretation the judge gave them – that a former owner of the respondent’s lot had identified the fence as the boundary between the appellants’ property and the respondent’s. The court saw no error in the application judge’s interpretation of the surveyor’s field notes.

(2) No.  The application judge found, on the basis of the evidence before him, that White erred in not using the fence line and that the fence line was the best evidence of the boundary. The court held that these findings of fact were open to the trial judge on the basis of the evidence that he accepted.

(3) No. The court held that there was both an evidentiary basis and a legal basis for the application judge’s acceptance of the fence line as the more reliable evidence of the boundary compared to White’s boundary line.

Chinese Publications for Canadian Libraries Ltd. v.  Markham (City), 2017 ONCA 968

[van Rensburg J.A. (In Chambers)]

Counsel:

Qiang Li Cao, in person for the appellant
D Boghosian and M Fish, for the respondents

Keywords: Civil Procedure, Appeals, Security for Costs, Frivolous and Vexatious, Impecuniosity, Rules of Civil Procedure, Rules 61.06(1)(a) and 56.01(d), Yaiguage v. Chevron Corp., 2017 ONCA 741

Facts:

There were two motions before the court – a motion by the appellant (“CPCL”) for an order setting aside the Registrar’s order dismissing its appeal for delay, and a motion by the respondents (the “City”) for security for costs. At the hearing of the motions, the City consented to the order setting aside the Registrar’s dismissal, which was irregular, but sought an order requiring the appellant to provide security for costs as a term of the order setting aside the dismissal.

The appellant’s action arose from the termination of a contract for the supply of Chinese-language materials to the Markham Public Library. The appellant was the successful bidder and entered into a contract with the City. It commenced an action alleging that the City improperly terminated the contract and sought specific performance of the contract and damages. The City defended and asserted a counterclaim.

The action was dismissed by Kristjanson J. on a summary judgment motion. She awarded costs of $50,000 to the City for the motion and action. The counterclaim was withdrawn during the course of the hearing of the summary judgment motion. CPCL appeals the dismissal of its action and the costs award. Pursuant to Rules 61.01(a) and 56.01(d), the City seeks security for costs in the amount of costs already awarded in its favour ($50,000) as well as $20,000 in security for costs of the appeal, arguing that the appeal is frivolous and vexatious and that the appellant is a corporation without sufficient assets in Ontario to pay the costs of the appeal.

Issues:

(1) Is the appeal frivolous and vexatious, thereby warranting security for costs under Rule 61.06(1)(a)?

(2) Should security for costs be awarded on the basis that the appellant is a corporation without assets in Ontario sufficient to pay costs, pursuant to Rule 56.01(d)?

Holding: Motion dismissed.

Reasons:

(1) No. To find that an appeal is “frivolous and vexatious” there must be something that supports the conclusion that the appeal is “vexatious” in the sense that it is taken to annoy or embarrass the respondent or has been conducted in a vexatious manner: York University v. Markicevic, 2017 ONCA 651 (in chambers), at paras. 19, 32 and 36. Mr. Cao of the CPCL has been pursuing the appeal with diligence and in the sincere belief that there was no justification for the termination of the contract. While he may be adopting other methods that are harassing to the City to achieve his overall objective, this conduct alone does not make his appeal vexatious. The City does not meet the test for security for costs under r. 61.06(1)(a).

(2) No. The City underemphasizes the impact of the panel’s decision in Yaiguage v. Chevron Corp., 2017 ONCA 741. It clearly signals that, while factors such as impecuniosity and merit continue to be relevant in determining whether security for the costs of an appeal should be granted, each case turns on its own facts, guided by the overriding interests of justice. With regards to impecuniosity, evidence indicates that Mr. Cao’s sole source of income was the contract that was terminated, and that he has ongoing financial problems. Although he is the registered co-owner of a house with his son, his interest is 30% and the house is heavily mortgaged. Moreover, there is no evidence that Beijing Publications and Distributions Group (“BPDG”) is a related company, or that it could be expected to fund the appeal. Mr. Cao provided evidence of CPCL’s impecuniosity as well as his own. CPCL (with the City’s consent) has been represented by Mr. Cao, and not by legal counsel, so there is no necessary inference that someone is funding the litigation. The City did not cross-examine Mr. Cao on his finances or the ability of CPCL to raise money. It is unreasonable to suggest, as the City does here, that Mr. Cao was obliged to provide evidence that no friend or family member could lend him money to fund an order for security for costs in CPCL’s appeal.

With regards to the merits of the appeal, the appeal appears to have little chance of success. However, the Court was satisfied that the order for security for costs sought by the City, even if its costs in the Superior Court were not included, would effectively bring an end to the appeal and that this, as well as the attempt to recover the costs already awarded in its favour, is the City’s motivation in seeking the order.

DHMK Properties Inc. v. 2296608 Ontario Inc., 2017 ONCA 961

[Rouleau, Benotto and Roberts JJ.A.]

Counsel:

Michael A. Katzman and Jessica R. Hewlett, for the appellants
Geoffrey D.E. Adair, Q.C., and Gordon McGuire, for the respondent

Keywords: Contracts, Breach, Real Property, Agreements of Purchase and Sale, Breach of Warranty, Calculation of Damages,  Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Keneric Tractor Sales Ltd. v. Langille, [1987] 2 S.C.R. 440

Facts:

The appellants appeal from the judgment granted in favour of the respondent, DHMK Properties Inc., following a motion for summary judgment on the issue of damages. Effective January 30, 2013, the appellant, Mund Real Estate Group Inc., entered into an agreement of purchase and sale with DHMK to purchase DHMK’s commercial property for the amount of $5,300,000. The agreement provided for the following warranty in paragraph 2:

“The Vendor warrants that the reports of revenue and operating expenses to be given to the purchaser are true and correct in all respects, and the property will have a net cash flow prior to debt service (“the Net Income”) of not less than $441,925.00”.

The agreement also permitted Mund to conduct due diligence inquiries and to terminate the agreement by the “Notice Date”, which the parties subsequently agreed was June 13, 2013. The transaction was scheduled to close at the end of June 2013.

Mund did not terminate the agreement before the notice date. Instead, Mund took the position that it would only close the transaction with a substantial abatement of the purchase price, alleging that the net income from the property was materially less than the amount warranted in the agreement. DHMK did not agree to close the transaction on this basis. Mund brought an application for specific performance of the agreement with an abatement of the purchase price. In response, DHMK instigated an application for damages incurred as a result of the failed transaction. The applications were heard by Justice Brian O’Marra, who found that Mund had breached the agreement of purchase and sale by failing to close without the abatement of the purchase price. He found that Mund had the option of either terminating the agreement by the notice date or closing and suing on the warranty. He ordered the forfeiture to DHMK of Mund’s $100,000 deposit, costs, and an assessment of the issue of DHMK’s damages from the failed transaction.

The appellants abandoned their appeal from O’Marra J.’s judgment in August 2014. The assessment of damages was heard by the motion judge. He found that the damages were the difference between the agreed upon price of the contract ($5.3 million) and market value of the land in August 2014 ($4.27 million). He did not discount the $5.3 million for the vendor’s potential liability under the warranty. Nor did he explain why he chose August 2014 – the date the appeal from O’Marra J. was abandoned – as opposed to the date of closing.

Issues:

(1) Did the motion judge err in failing to take into account the effect of DHMK’s warranty of the net income from the property when calculating DHMK’s loss of bargain from the failed transaction?

(2) Did the motion judge err in choosing August 2014 as the date for the valuation of the property for the purpose of calculating DHMK’s loss of bargain?

Holding: Appeal allowed.

Reasoning:

(1)  Yes. It is common ground that in assessing DHMK’s damages arising from Mund’s breach of the agreement of purchase and sale, DHMK is entitled to be put, as far as damages permit, into the same economic position that it would have occupied had the transaction closed, subject to DHMK’s duty to mitigate its damages: Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, at para. 26.  Although correctly referencing this principle at para. 47 of his reasons, the motion judge erred in failing to apply it. Specifically, the motion judge erred by finding that because Mund breached the agreement, Mund’s potential claim for damages for DHMK’s breach of warranty need not be considered. Notwithstanding Mund’s repudiation of the agreement, DHMK’s prospective warranty obligations as embodied in the agreement are relevant, and are to be taken into account in the assessment of damages: Keneric Tractor Sales Ltd. v. Langille, [1987] 2 S.C.R. 440, at p. 455. As O’Marra J. stated, Mund had the option of closing the transaction and suing for breach of DHMK’s warranty concerning the net income from the property. It is not seriously contested that had the transaction closed, Mund would have sued for breach of the warranty. The motion judge should have taken this factor into account in his assessment of DHMK’s damages.

(2) Yes. The motion judge erred by selecting August 2014 as the date for assessing the value of the property for the purpose of calculating DHMK’s loss of bargain without providing any analysis or reasons on this issue. The absence of reasons precludes meaningful appellate review. The choice of the August 2014 date departs from the general principle noted by the motion judge at para. 50 of his reasons that “the proper date for taking the market value should be the time fixed for closing”. Although there is judicial discretion to select another date than the closing date, the difficulty here is that the basis for the motion judge’s exercise of that discretion is not explained and the difference in the market valuation dates materially affects the assessment of DHMK’s damages. The difference in dates amounts to a substantial variance in damages of some $230,000: the June 2013 appraised value of the property as at the date of closing is $4,500,000; whereas the appraised value of the property, over a year later, in August 2014 is $4,270,000.

Montepeque v. State Farm Mutual Automobile Insurance Company, 2017 ONCA 959

[Laskin, Feldman and Juriansz JJ.A.]

Counsel:

K Arvai, for the appellant
C Paliare and T Lie, for the respondent

Keywords: Insurance Law, MVA, Unidentified Motorist Coverage, Ontario Automobile Policy, s. 5, OPCF 44R Family Protection Coverage , Legal Causation, Jury Verdicts, Standard of Review, Jury Charges, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Highway Traffic Act R.S.O. 1990 c. H.8,

Facts:

The Appellant, Montepeque, was involved in a car accident as a result of another driver, who was never identified. She suffered injuries to her neck, shoulders, back and right knee. As the other driver was never identified, Montepeque claimed under s. 5 of the Ontario Automobile Policy and OPCF 44R Family Protection Coverage. She sued her own car insurer, the respondent, State Farm, for damages under the unidentified motorist coverage in her car insurance policy. The action was tried before a jury. The first question that the jury was asked to answer was the central question on the issue of liability. This question read: “Did the negligence of an unidentified driver cause or contribute to the accident that occurred on November 23, 2008?” The jury answered “no”. Montepeque’s action was therefore dismissed. The jury had, however, answered “yes” to question 9, which asked whether Montepeque’s evidence of the “involvement” of an unidentified automobile was corroborated. Montepeque appealed claiming that the answers to these questions were inconsistent, the trial judge erred in her charge to the jury, and that the conduct of State Farm’s counsel at trial was inappropriate.

Issues:

• Should the verdict be set aside because the jury’s answers to questions 1 and 9 were inconsistent?
• Did the trial judge err in her charge to the jury on the grounds that:
• It did not properly charge the jury on the standard of care in an emergency situation;
• It did not properly charge the jury on the burden of proof; and
• It was unbalanced and unfair.
• Did the conduct of counsel for State Farm during the trial warrant the Court of Appeal’s intervention?

Holding: Appeal dismissed

Reasoning:

• Under s. 5.2.1 of the Ontario Automobile Policy, an insured claimant has “a legal right to recover as damages from the owner or driver of an uninsured automobile” an amount ”up to the limits in this Section.” Section 5.7.1.1 limits coverage to “the minimum limits for automobile liability insurance in the jurisdiction in which the accident happens”, which in Ontario is $200,000. Section 3 of OPCF 44R provides an insured claimant with excess coverage for an amount over $200,000, up to the amount that the claimant is legally entitled to recover from a driver or owner of an “unidentified automobile”. In order to receive the excess coverage amount from one’s insurer, the claimant must meet an additional evidentiary requirement. The claimant’s “own evidence of the involvement” of the unidentified automobile “must be corroborated by other material evidence”. OPCF 44R defines “other material evidence” to mean either “independent witness evidence” or “physical evidence indicating the involvement of an unidentified automobile”.  At trial, Montepeque claimed an amount against State Farm that was available to her only through her excess coverage policy under OPCF 44R. Question 9 was not originally included in the jury charge. In a post-charge conference with the trial judge, Montepeque’s counsel asked for a new question, which addressed the additional evidentiary requirement of OPCF 44R, to be added to the list of questions for the jury to answer. The Jury answered yes to this question.

In a civil case, an appellate court has a very limited right to set aside the verdict of a jury for unreasonableness. Where the trial judge’s charge is fair and accurate, and correctly states the applicable law, the jury’s verdict will be set aside only where it is so unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it. By its answer to question 9 the jury must have rejected State Farm’s contention that there was no unidentified car, and instead concluded that an unidentified car was there and was “involved” in the incident. But by its answer to question 1, the jury must have disbelieved Montepeque’s evidence that the unidentified car crossed the centre line, and thus concluded that the car’s driver was not negligent. Those two conclusions are not inconsistent; they are reconcilable. Questions 1 and 9 address different issues. Question 1 asks whether Montepeque proved on a balance of probabilities that the driver of the unidentified car caused the accident by crossing the center line. Question 9 does not deal with Montepeque’s onus of proof or with causation. It simply asks whether there was corroboration for Montepeque’s evidence of the “involvement” of an unidentified car. Thus this ground of appeal was dismissed.

• The trial judge gave counsel a draft of her charge and invited comments on it before she gave it to the jury. Of the three concerns about the charge now raised on appeal, Montepeque’s trial counsel raised only the first concern with the trial judge, and seemed satisfied with the way the trial judge resolved his concern. In a civil case, the failure to object at trial is usually fatal on appeal because it is an indication that trial counsel did not regard as important or necessary the additional direction now asserted. An appellate court can still give effect to an objection to an aspect of a trial judge’s jury charge raised for the first time on appeal, but only if not giving effect to the objection would cause a miscarriage of justice. Further, as per Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), “[t]he trial judge’s charge did not need to be perfect. Absent an error that amounts to a substantial wrong or a miscarriage of justice, or circumstances where the interests of justice otherwise so require, a new trial will not be ordered.”

• With respect to the standard of care Montepeque submits that, because she was facing an emergency situation when she saw the oncoming unidentified car, the trial judge should have instructed the jury that Montepeque could not be expected to act as she might in calmer circumstances. The Trial Judge’s draft charge read “[A driver] must take proper precautions to guard against risks, which might reasonably be anticipated to arise from time to time as she proceeds on her way.” Montepeque’s counsel specifically objected to the phrase “from time to time”, as to him it did not capture the emergency nature of the situation facing his client. The Trial Judge then removed that phrase, as requested. The Court of Appeal saw no error in the charge, it captured Montepeque’s duty in an emergency situation by stressing that she was not held to a standard of perfection, and was only obliged to guard against risks that she might reasonably anticipate would arise.

• By crossing the center line of a road, a driver breaches s. 148(1) of Highway Traffic Act. A driver who breaches s. 148(1) is prima facie negligent and bears the onus of explaining that the accident could not have been avoided by the exercise of reasonable care. The trial judge charged the jury that Montepeque had the burden of establishing on a balance of probabilities that the negligence of the driver of the unidentified car caused her injuries. However, he trial judge did not expressly charge the jury on the shifting onus applicable to a driver who has breached the Highway Traffic Act. It would have been preferable for the trial judge to have expressly charged the jury on the shifting burden of proof. But that instruction was not asked for at trial and the trial judge’s actual instruction conveyed the essence of the parties’ positions. Therefore this ground of appeal was dismissed.

• Montepeque submited that the trial judge’s charge did not review the evidence and positions of the parties in a fair and balanced way. The Court of Appeal disagreed. Moreover, counsel for Montepeque had the opportunity both before and after the charge was given to comment on the summary of the evidence on liability. He had one minor objection to the trial judge’s failure to include a piece of evidence. He did not suggest that the summary was unfair or unbalanced. Therefore this ground of appeal was dismissed as well.

• Montepeque argued that the conduct of State Farm’s counsel at trial was inappropriate. Combined with the jury’s findings, Montepeque argues that counsel’s conduct created an appearance of unfairness warranting appellate intervention. The Court of Appeal did not accept this argument. Montepeque’s allegations are based on (1) humorous remarks to the jury at the elevator lobby; (2) humorous remarks during the cross-examination of Montepeque’s witness; and (3) misrepresentations witnesses made in the presence of the jury. With respect to ground (1) the issue was brought up at trial and, as a result, the trial judge added to her charge to the jury a specific direction that the jury decide the case solely on the evidence, not on the conduct of the lawyers, this was adequate and resolves ground (2) as well. With respect to the third ground, while the statements should have been made in the absence of the jury, the trial judge found that the statements did not in any way prejudice Montepeque. The Court of Appeal agreed. Accordingly, this ground of appeal was also dismissed.

Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

[Feldman, MacPherson and Huscroft JJ.A.]

Counsel:

Kevin A. Egan, for the appellant
David S. Thompson, for the respondent

Keywords: Torts, Battery, Civil Procedure, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, S.O. 2002, c.24, ss. 4 and s. 5(1)(a)(iv), Brown v. Baum, 2016 ONCA 325, Chimienti v. Windsor (City), 2011 ONCA 16, Markel Insurance Company of Canada v. ING Insurance Company, 2012 ONCA 218

Facts:
The appellant, Robert Winmill, appeals from the decision of Mitchell J. of the Superior Court of Justice dismissing, on a motion, the appellant’s claim for battery against the respondents and various police officers as statute barred by virtue of s.4 of the Limitations Act, 2002 (“LA”). The central issue is when the appellant discovered his potential claim in battery against the respondents. Resolution of this issue focused on the interpretation of s. 5(1)(a)(iv) of the LA, and in particular on when the appellant knew that a legal proceeding would be “an appropriate means to seek to remedy” the alleged battery against him.

There was an altercation at the appellant’s home between the appellant and one of his sons. The appellant’s wife called the police. According to the appellant’s Statement of Claim, several officers from the Woodstock Police Service arrived at his home. According to the appellant, Constables Dopf and Campbell entered the home and confronted him in the living room. Constable Dopf initiated unnecessary and aggressive physical contact with him. Constable Campbell joined in. The two constables forced the appellant to the ground and struck the appellant in the back and head with knee strikes and punches. In the process, the constables handcuffed the appellant in such an aggressive manner that he suffered cuts and bruises to his arms. The appellant was taken to the police station. He was charged with assaulting Constable Dopf and resisting arrest. He was not charged with any offence relating to the altercation with his son. On February 17, 2016, the appellant was acquitted of both charges by Graham J. of the Ontario Court of Justice.

On June 2, 2016, the appellant filed a Notice of Action against the respondents, signalling that he would be seeking damages for negligent investigation and assault. This occurred two years and one day after the alleged battery had taken place.

On June 22, 2016, the appellant filed a Statement of Claim sounding in the tort of battery, abuse of authority as police officers, and negligence in the discharge of police duties. On September 16, 2016, the respondents filed a Notice of Motion seeking to dismiss the action because the relevant limitation period had expired. On February 24, 2017, Gorman J. of the Superior Court of Justice made a consent order permitting the appellant to make factual allegations to support a claim for negligent investigation. On March 24, 2017, the respondents filed an Amended Notice of Motion seeking an order that “[t]he limitation period for the Plaintiff’s claim for damages arising from assault or battery has expired”. The respondents did not say that the appellant’s claim grounded in negligent investigation was statute-barred.

The respondents’ motion was argued on April 3, 2017. The appellant resisted a limitation period expiration date of June 1, 2016 (two years after the alleged battery) on three bases – discoverability; inability to commence an action because he was in custody and/or the courthouse was closed on June 1, 2016; and incapacity to commence a proceeding because of a physical, mental or psychological condition. The motion judge rejected the appellant’s arguments and granted the defendant’s motion, finding that the claim for battery was barred by the limitation period. The limitation period for the tort of negligent investigation began to run on February 17, 2016 (the date Mr. Winmill was found not guilty) and, therefore, the plaintiff’s claim for negligent investigation was unaffected and could continue. The appellant appeals from the motion judge’s decision.

Issues:

(1) Did the motion judge err by concluding that the appellant’s claim in battery against the respondents was not made inside the two-year limitation period prescribed by s. 4 of the LA?

Holding: Appeal allowed, Huscroft  J.A. dissenting.

Reasoning (per MacPherson J.A., writing for the majority):

(1) Yes. In a single case where a plaintiff alleges different torts, it is possible and permissible for different limitation periods to apply to the different torts. The appeal turned on s. 5(1)(a) of the LA, which states that a claim is discovered on the earlier of the day on which the person with the claim first knew (i) that the injury, loss or damage had occurred; (ii) that the injury, loss or damage was caused by or contributed to by an act or omission; (iii) that the act or omission was that of the person against whom the claim is made, and; (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it. The crucial issue was the fourth factor, which is whether the appellant knew on June 1, 2016, that a legal proceeding would be an appropriate means to seek to remedy the injuries caused by the alleged battery committed against him. The motion judge answered this question in the affirmative.

The word “appropriate” means “legally appropriate”. Further, determining whether a limitation period applies does not simply consist of comparing the date of injury and date of initiation of legal proceeding and seeing whether the result is inside or outside the limitation period prescribed by the relevant statute. On the contrary, other important factors can come into play in the analysis. Additionally, within the rubric of “the specific factual or statutory setting of each individual case”, s. 5(1)(b) of the LA requires that attention be paid to the abilities and circumstances of the person with the claim.

With respect to the motion judge’s conclusion that the appellant’s battery claim was outside (by one day) the two-year limitation period prescribed by s. 4 of the LA, the motion judge erred for three reasons. First, the appellant’s negligent investigation claim is proceeding. The parties agree that the discoverability date for this claim is February 17, 2016, the day the appellant was acquitted on the criminal charges against him. Factually, the negligent investigation claim covers almost precisely the same parties and events as the battery claim. The appellant’s Amended Statement of Claim shows how inextricably intertwined the two alleged torts are.

Second, given the specific factual setting of this case, and bearing in mind the circumstances of the person with the claim, it made sense for the appellant to postpone deciding whether to make a battery claim against the respondents until his criminal charges for assault and resisting arrest were resolved. The court determined, relying on Brown v. Baum, that the verdict in the appellant’s criminal trial, especially on the assault charge, would be a crucial, bordering on determinative, factor in the appellant’s calculation of whether to proceed with a civil action grounded in a battery claim against the respondents. Third, and overlapping with the second reason, Chimienti v. Windsor (City) suggests that the appellant was justified in waiting for the verdict in his criminal trial before commencing a civil claim against the respondents. For these reasons, the discoverability date for the appellant’s battery claim was the same as the discoverability date for his negligent investigation claim.

The appeal was allowed, the order of the motion judge was set aside, and the appellant’s battery claim against the respondents was permitted to proceed to trial.

Reasoning (per Huscroft  J.A., writing in dissent):

On June 1, 2014, the appellant knew that he had suffered an injury, knew how the injury was caused, knew who he alleged had caused his injury, and knew that a legal proceeding would be an appropriate means to seek redress. He failed to bring his claim by June 1, 2016, and his claim is now barred by operation of the LA. In Markel Insurance Company of Canada v. ING Insurance Company, Sharpe J.A. explained that “appropriate” under s. 5(1)(a)(iv) of the Act must mean “legally appropriate”, and, at para. 34, admonished against giving the term a broad meaning.

The cases relied upon by the majority are distinguishable. An action in Brown v. Baum was not “appropriate” at the time of the injury because the defendant surgeon was providing further treatment in an attempt to rectify the harm he was alleged to have caused in the initial surgery. There was no alternative means of resolving the appellant’s allegations in this case, nor were the defendants in a position to rectify the harm they were alleged to have caused. Chimienti v. Windsor is distinguishable because it concerned claims of negligent and malicious investigation – claims that depended on the completion of the relevant criminal proceedings on which they were based. The claim of battery in this case did not. Although the appellant also seeks to advance a claim for negligent investigation, it is a separate tort to which a separate limitation period applies. A claimant cannot delay the start of a limitation period for one tort claim by tying it to another tort claim with a later limitation date, even where the claims arise out of common circumstances. Nor can a claimant delay the start of a limitation period for an intentional tort in order to await the outcome of related criminal proceedings.

In this case the appellant decided, for tactical reasons, not to bring his battery action until after the criminal proceedings against him had concluded. That was an improvident decision, and Huscroft J.A. argued that the court has no discretionary power to relieve against the consequences of it, whether the appellant’s claim is a day late or year late. In his view, the motion judge made no errors. The battery claim was late. He would have dismissed the appeal.

Chhina v. Commercial Spring & Tool Company Limited, 2017 ONCA 967

[Strathy, C.J.O, Juriansz and Huscroft JJ.A]

Counsel:

Howard Markowitz, for the appellant
Maurice J. Neirinck, for the respondent

Keywords: Employment Law, Wrongful Dismissal

Facts:

This is an appeal from the trial judge’s decision dismissing the appellant’s action for wrongful dismissal.

The appellant, Peter Chhina, worked for Commercial Spring & Tool Company Ltd. for over 21 years, rising to the position of general manager of its heat treating division. He reported to Gurmail Gill, the General Manager of Operations.

The trial judge found that the appellant quit his employment on January 22, 2010.  She rejected the appellant’s evidence that he had taken a leave of absence to wind up his father’s estate in India.

Issues:

(1) Did the trial judge err in finding that the appellant quit his employment on January 22, 2010, and was not wrongfully dismissed?

Holding:  Appeal dismissed.

Reasoning:

No. The Court held that the trial judge was entitled to accept Gurmail Gill’s evidence that the appellant had resigned, and this evidence was not challenged by the appellant in cross-examination. This conclusion was also supported by circumstantial evidence that was not contested.

Drakoulakos v. Stirpe, 2017 ONCA 957

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:

Daniel Zacks and Robert Drake, for the appellants
Ronald Bohm, for the respondents

Keywords: Trusts & Estates, Resulting Trust, Limitation Periods, Equitable Remedies, Transitional Provisions, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 24(6), Summary Judgment

Facts:

This is an appeal from summary judgment dismissing the appellant’s action for a declaration that his daughter holds assets in a numbered company in trust for him. The other respondents are the daughter’s husband and the company.

In 1996, the appellant incorporated the company making his daughter the sole shareholder and conveying a taxi license to the company. In 2003, he conveyed a second taxi license to the company. The appellant alleges the company was intended to hold the taxi licenses for tax purposes and the assets were meant to pass to his daughter only upon his death.

On the motion below, both parties proceeded on the basis that the claim related to a bare trust and that the limitation period was governed by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The respondents took the position the appellant discovered his claim by 2004 and no later than December 9, 2010. The appellant’s position on the motion was that his claim was discovered on December 9, 2010, and that a mental or psychological condition rendered him incapable of commencing an action within two years of that date.

The motion judge decided the case on a different basis than the parties had argued. First, he decided that the claim related to a resulting trust. Second, he decided that the appellant’s claim was known or ought to have been known in 2002.

The appellant argues, and counsel for the respondents properly concedes, that on the facts found by the motion judge, there is no limitation period for a claim against the trustee of a resulting trust for property still in the possession of the trustee. The two prerequisites for the application of the transitional provision in s. 24 (6) of the present Act are satisfied: there was no limitation period for such a claim under the former Act and the claim was discovered before January 1, 2004.

Issues:

(1) Did the motion judge err in finding that the limitation period applied to the appellant’s claim for property still in the possession of a trustee of a resulting trust?

Holding: Appeal allowed.

Reasoning:

Yes. It is appropriate and in the interests of justice that the court entertain the appellant’s argument. The appellant did not have the opportunity to advance the argument in the court below, his underlying claim is equitable in nature, the argument raises a pure question of law, the record provides a complete evidentiary basis for the determination of the argument, and there is no prejudice to the respondents.

Once the motion judge decided to proceed on a framework different from the one on which the parties had presented argument, he was obligated to apply the correct law to it. As noted, the parties agree that the correct law applicable to the facts found by the motion judge is that no limitation period applies to the appellant’s claim for property still in the possession of a trustee of a resulting trust.

Maracle III v. Miracle, 2017 ONCA 950

[Pardu J.A. (In Chambers)]

Counsel:

S Dewart and M Bélanger, for the moving parties
IJ Collins and G Bogue, for the responding party

Keywords: Civil Procedure, Appeals, Leave, Extension of Time, Rules of Civil Procedure, r. 61.03.1(3), Reid v. College of Chiropractors, 2016 ONCA 779,  Partnership Agreements, Arbitration Agreements, Arbitration Act, 1991, S.O. 1991, c. 17

Facts:
The moving party, Andrew Clifford Maracle III, and the respondent, Sir Andrew Clifford Miracle, are son and father. These parties signed a partnership agreement to run a business selling cigarettes and gasoline. That agreement contained a mandatory arbitration clause. The father sued the son, alleging that the son had misappropriated the profits from the partnership. The father also sued Jasmin Johnson, also a moving party, the son’s wife, alleging that she signed cheques on the partnership’s account without having signing authority. Ms. Johnson was not party to the partnership agreement. The responding party alleged breach of fiduciary duty, conspiracy to defraud, and conversion. The responding party was successful at arbitration and a substantial award was made in his favour as against his son. The Arbitrator refused to make any findings in relation to the claim against Ms. Johnson as she was not a party to the partnership agreement. The moving parties submit that this was procedurally unfair.

The moving parties seek leave to extend the time to move for leave to appeal a decision of the Superior Court of Justice, confirming an arbitral award in favour of the responding party. The moving parties’ former counsel (not counsel on the appeal) mistakenly thought he had 30 days to serve a notice of motion seeking leave to appeal, rather than 15 days as prescribed by r. 61.03.1(3) of the Rules of Civil Procedure.

Issues:

(1) Should the motion to extend the time to appeal be granted?

Holding: Motion granted.

Reasoning:

(1) Yes. The applicable principles governing motion to extend are described in Reid v. College of Chiropractors, 2016 ONCA 779.  The governing principle is whether the “justice of the case” requires that an extension be given. The relevant considerations include: (a) whether the moving party formed a bona fide intention to seek leave to appeal within the relevant time period; (b) the length of, and explanation for, the delay in filing; (c) any prejudice to the responding party, caused, perpetuated or exacerbated by the delay; and (d) the merits of the proposed appeal. The lack of merit alone can be a sufficient basis on which to deny an extension of time particularly in cases such as this where the moving party seeks an extension of time to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal.

The responding party conceded that the failure to meet the deadline occurred as a result of the error of the moving parties’ lawyer and that there is no prejudice flowing from that short delay. The responding party’s position was that the moving parties are unlikely to get leave to appeal. On that ground, it submitted that leave to extend the time to file a notice of motion for leave to appeal should be refused.

Section 46(1) of the Arbitration Act, 1991, S.O. 1991, c. 17 provides that a court may set aside an arbitral award if a party was not treated fairly, or if the arbitration procedures did not comply with the Act. The son argues that he was prejudiced by the arbitrator’s refusal to consider the claims against Ms. Johnson. The court found that given the brevity of the delay, and the absence of prejudice, the interests of justice in this case require that the moving parties be given an opportunity to persuade the court that leave should be granted. Therefore the motion was allowed and the moving parties were given 10 days to file a motion for leave to appeal.

Su v. Lam, 2017 ONCA 952

[Pardu J.A. (In Chambers)]

Counsel:
Jian Su, self-represented
David M. Goodman, for the respondent

Keywords: Civil Procedure, Appeals, Extension of Time, Consent Orders, Setting Aside, Reid v. College of Chiropractors, 2016 ONCA 779

Facts:
The appellant, Mr. Su, moves for an extension of time to appeal from an April 19, 2017 decision that dismissed his motion to set aside a consent order. The underlying consent order was made in 2009. It dismissed Mr. Su’s action against the respondent. Before the consent order was made, Mr. Su had been ordered to pay an outstanding costs award against him and a further $25,000 for security for costs. The respondent brought a motion to dismiss the action because of these outstanding orders. Mr. Su was represented by counsel at the time and his counsel consented to the dismissal of this action and the property claims in another related proceeding. By foregoing his claims to an interest in the estate assets, Mr. Su avoided the dismissal of his support claim, and he avoided the need to post security for costs and payment of the outstanding costs award.

Mr. Su moved to set aside this consent order seven or eight years after it was made, alleging fraud and subsequently discovered facts as justification. He argued that the estate trustee falsely represented there were estate assets remaining to satisfy Mr. Su’s potential claim. The motion judge found that the documentary production made to Mr. Su before the consent order was made, had it been carefully and properly examined, would have already revealed the fact that no estate assets remained. The motion judge found as a fact that Mr. Su was not provided with any incorrect or misleading information about the assets of the estate at the time he agreed to the consent order. He concluded that Mr. Su failed to prove that he was induced by fraud to agree to the consent order, and failed to demonstrate that there were any after-acquired facts or information that would warrant setting aside the consent order

Issues:

(1) Should an extension of time to appeal the motion be granted?

Holding: Motion dismissed.

Reasoning: 

(1) No. The test for determining whether to extend time to appeal is set out in Reid v. College of Chiropractors. The test was not met in this case. There was no evidence that Mr. Su formed the intention to appeal within the relevant time period. There was insufficient explanation for the delay in filing the notice of appeal. The subject matter of the proposed appeal related to litigation about the estate of Ms. Lam, who died in April 2004. Mr. Su and the respondent (the executor of Ms. Lam’s estate) have now been engaged in litigation for nearly 13 years.

Mr. Su attempts to set aside a consent order made in February 2009, at a time when he was represented by counsel and when the consent order brought real advantages to him. As a result of the consent order, the respondent did not pursue its motion for security for costs or its motion to dismiss the action for non-payment of a costs order. The motion judge’s findings of fact about the absence of misrepresentation at the time of the consent order were not undermined by the material Mr. Su filed in support of his motion for leave to extend time to appeal. In large part, the filed materials cover many of the same grounds dealt with by the court in Mr. Su’s previous appeal. The justice of the case did not require an extension of time to appeal. The motion was dismissed with costs.

Thomson v. Durham (Police Services Board), 2017 ONCA 958

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:
Joshua Evans, for the appellants
Nadia Marotta, for the respondents

Keywords: Civil Procedure, Limitation Periods, Enforcement of Court Orders, Limitations Act, 2002, ss. 4 and 16, Recovery of Personal Property

Facts:

This is an appeal from an order, made on the respondents’ summary judgment motion, dismissing the appellants’ action on the basis it was not brought within the two-year limitation period set out in s 4 of the Limitations Act, 2002.

The appellants, Nora Thompson and Peter King, submit that s. 4 of the Limitations Act does not apply to their action as it is a proceeding to enforce a court order. Section 16(1)(b) of the Limitations Act, 2002, provides there is no limitation period for the enforcement of a court order.

An order of disposition under s. 490(9) of the Criminal Code issued December 14, 2011 and revised June 27, 2012, ordered that specified items of property among property seized by the respondents from the appellants in 2010 be released to them, and the remaining property be forfeited to the Crown. The appellants picked up some items from the Police Services’ Property Bureau on November 20, 2012 and January 24, 2013, but on January 9, 2013, claimed some of that property was missing or damaged. On March 2, 2013, a lawyer representing the appellants threatened but did not commence a civil action in respect of the missing and damaged property. On May 24, 2014, all remaining property in the respondents’ possession was forfeited to the Crown in accordance with the order of disposition. The appellants commenced this action on November 4, 2015.

The respondents moved for summary judgment on the basis that the action was barred by s. 4 of the Limitations Act, 2002, because the appellants’ action was commenced more than two years after they knew that the property they claimed was missing or damaged. The motion was granted and the appellants have brought this appeal.

Issues:

(1) Did the motion judge err in dismissing the appellants’ action on the basis it was not brought within the two-year limitation period set out in s 4 of the Limitations Act, 2002?

Holding:  Appeal dismissed.

Reasoning:

(1) No. The appellants submit that the motion judge erred by saying that the plaintiffs knew when they began the action that the defendants no longer had any of the seized property in their possession. They pleaded that they were aware that the order of June 27, 2012 could not actually be enforced.

The court held that the motion judge’s response was correct. When the appellants commenced their action on November 4, 2015, they already knew that all remaining property in the hands of the respondents had been forfeited to the Crown. Therefore, the motion judge reasoned that the true and actual object of the action could not have been to enforce the order for the return of the goods. Instead, she reasoned that the appellants started their action to claim for a new court order for monetary damages based on allegations of neglect or refusal to the return goods.

The Court agreed with the motion judge’s characterization of the appellants’ action and with her conclusion that it falls outside the scope of s. 16 (1) (b) of the Limitations Act, 2002.

Samra v. 7544405 Canada Inc., 2017 ONCA 953

[Watt, Pepall and Miller JJ.A.]

Counsel:
S Kemdirim, acting in person
MV Peters, for the respondent

Keywords: Civil Procedure, Appeals, Security for Costs, Stay Pending Appeal, Debtor-Creditor, Mortgages

Facts:
Ms. Kemdirim and 7544405 Canada Inc. (“Kemdirim and 7544405”) seek to review the order of Roberts J.A. refusing to extend the time to file their earlier motion to review and set aside the July 20, 2016 order of Laforme J.A., and to grant a stay of his order and the summary judgment granted by Warkentin J. on March 14, 2016.

The genesis of these proceedings is the default of Kemdirim and 7544405 under two mortgages placed on several properties. George Samra obtained summary judgment against Kemdirim and 7544405 due to their default under the mortgages. He was also awarded costs fixed at $17,000. Kemdirim and 7544405 appealed. Samra moved, before Laforme J.A. for an order for security for costs, which was granted. Kemdirim and 7544405 subsequently moved before Roberts J.A. seeking an order to extend the time within which they could serve and file a motion to review the order of Laforme J.A., a stay of that order, and a stay of the summary judgment. Roberts J.A. granted an extension of time to post security and dismissed the remainder of the motion.

Issues:

(1) Should the order of Roberts J.A be reviewed?

Holding: Motion dismissed.

Reasoning:

(1) No. Kemdirim and 7544405 admit default under the mortgages, although they query the precise amounts of the default. The evidence before the judge on the motion for summary judgment revealed no genuine issue requiring a trial. Laforme J.A ordered security for costs because he was of the view that the appeal was without merit and that Kemdirim and 7544405, already in default under the mortgages, lacked the means to pay the costs of an unsuccessful appeal. Roberts J.A., whose order refusing an extension of time Kemdirim and 7544405 ask the court to review, dismissed the motion on two grounds. The first, echoing what the first chambers judge said, was that the appeal was wholly without merit, thus frivolous and vexatious. The second was that the justice of the case did not warrant the order sought. Therefore the motion was dismissed.

Nufrio v. Allstate Insurance Company of Canada, 2017 ONCA 948

[Rouleau, Benotto and Roberts JJ.A.]

Counsel:
K Alexander and K Stone, for the appellant
S D McAleese and K L Meehan, for the respondents

Keywords: Employment Law, Contracts, Breach, Fundamental Changes, Unilateral Changes

Facts:
On July 24, 2007 the appellant (Nufrio) received notice of fundamental changes to his employment contract with the respondents (Allstate Insurance). He was given working notice up to September 1, 2009. He accepted the notice.

In October 2008, the respondents sought to impose immediate changes to the employment relationship by requiring the appellant to close his neighbourhood office and move to an Allstate operated office by November 1, 2008. The appellant refused, insisting on operating under the previous agreements during the notice period. These agreements were the Allstate Agent Compensation Agreement (the 830 agreement) and the Neighbourhood Office Agent Amendment (the NOA). His refusal led to his termination for cause on November 6, 2008.

The trial judge found that the appellant was properly terminated for cause on November 6, 2008. In her view, the respondents had the right to impose the new terms of employment, since the appellant had been given reasonable notice of the changes.

Issues:

(1) Did the trial judge err by not addressing the question of whether the change in location, including the change to the business model under the NOA, could be made unilaterally by the respondents during the working notice period?

Holding: Appeal allowed in part.

Reasons:

(1) Yes. The proposed relocation was more than a geographic relocation of the appellant’s office. It was a fundamental change to the business model that had been agreed to under the NOA. The appellant was entitled to continue to operate in accordance with the 830 agreement and the NOA during the period of working notice to September 1, 2009, as had been set out in the respondent’s July 2007 letter. The NOA precluded the respondents from unilaterally imposing the changes during the period of working notice.

Li v. Li, 2017 ONCA 942

[Pardu, Trotter and Paciocco JJ.A.]

Counsel:

Shawna Sosnovich and Christopher Statham, for the appellant

1. David Marks, Q.C. and Corey Bergstein, for the respondents

Keywords: Civil Procedure, Summary Judgment, Res Judicata, Abuse of Process, Foreign Law

Facts:

This is an appeal from the dismissal of a motion for summary judgment brought by the appellants, Yao Chao Li (defendants to the action). The appellant had sought to end an action on the basis of a previously dismissed lawsuit brought by the respondent, Yao Wei Li, against the appellant in India relating to the same cause of action.

The appellant invoked the doctrines of res judicata and abuse of process in aid of the summary judgment motion, but relied primarily on a provision of the Indian Civil Procedure Code, Order 23, Rule 1(4), that provides a substantive right to prevent attempts at re-litigating claims that are dismissed as abandoned, without the leave of an Indian court. The parties agreed that this Indian law applied, and that leave had not been obtained in this case.

The motion judge denied the motion, disposing of the res judicata and abuse of process defences and ordering that the matter be re-listed for trial. The key factor in each of the motion judge’s rulings was that the respondent had never been served in the Indian action, and no disposition had ever been made on the merits of the respondent’s claim.

Issues:

(1) Did the motion judge err in denying the motion for summary judgment?

Holding: Appeal dismissed.

Reasoning:

(1) No. The appellant has not demonstrated that the motion judge erred in his treatment of Order 23, Rule 1(4) of the Indian Civil Procedure Code. The onus was on the appellant to establish the foreign rule of law it sought to rely upon. The motion judge accepted the respondent’s expert’s interpretation of an Indian decision, Dalmia Cement (Bharat) v Uthandi alias Peria Uthandi AIR 2005 MAD 457, holding that Order 23, Rule 1(4) does not operate where a suit is “dismissed as not pressed” before the opposing party has been served. In the absence of evidence establishing the meaning of the term “dismissed as not pressed”, the motion judge was not persuaded that the respondent’s suit would be caught by the rule, given that the appellant had never been served.

The court held that there was no basis for finding that the motion judge erred in not applying the doctrines of res judicata or abuse of process. As stated, the Indian lawsuit terminated without the appellant ever having been served with the action. The motion judge made no error in finding that the Ontario suit would not involve re-litigation, or an abuse of Ontario’s civil processes.

Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939

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

Counsel:
JA Keefe, B Halfin, and J-R Cohen, for the Appellant
DW Glaholt and MA Valo, for the Respondent

Keywords: Contracts, Construction, International Commercial Arbitration, International Commercial Arbitration Act, R.S.O. 1990, c. I.9, United Nations Commission on International Trade Law (UNCITRAL) Model Law, Jurisdiction, Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608 (Gen. Div.), Procedural Fairness, Corporacion Transnacional de Inversiones S.A. de C.V. v. STET International S.p.A. (1999), 45 O.R. (3d) 183 (S.C.), aff’d (2000), 49 O.R. (3d) 414 (C.A.), Public Policy

Facts:
Arbitration arose out of a project for the construction of a slurry pipeline from a nickel mine in Madagascar. The Appellant, Consolidated Contractors, was the contractor and the Respondent, Ambatovy Minerals, tendered the project. The contract for the project contained a three stage dispute resolution process.  A party who did not accept the second stage of internal adjudication could refer the dispute to arbitration pursuant to the International Commercial Arbitration Act, R.S.O. 1990, c. I.9 (ICAA), which incorporates the United Nations Commission on International Trade Law (UNCITRAL) Model Law (the “Model Law”). In that event, the arbitration was to take place in Ontario, in accordance with Ontario law. The contract provided that the arbitration procedure was to be governed by the International Chamber of Commerce (“ICC”) Rules of Arbitration.

The Appellant claimed that the Respondent had breached the contract, causing delays and additional costs. It claimed: an extension of the time for performance, compensation for its costs arising from delay, and compensation for additional work it claimed to have performed. The Respondent suggested that the dispute go directly to arbitration, by-passing adjudication, and the Appellant agreed. The Respondent defended the Appellant’s claims and asserted a counterclaim for liquidated damages due to the Appellant’s failure to complete the project on time. It also counterclaimed for additional costs caused by the Appellant’s failure to properly complete its work. The Appellant agreed that the Respondent’s claim for liquidated damages could proceed directly to arbitration, but argued against the inclusion of the other counterclaims, which were ultimately included. The Tribunal issued its final award, it awarded the Appellant $7 million of its $91 million claim, and the Respondent $25 million for its counterclaims. At the Superior Court, the Appellant challenged the Tribunal’s award in four respects: (a) the Tribunal had no jurisdiction to deal with some of the Respondent’s counterclaims; (b) the Tribunal failed to exercise its jurisdiction in not compensating the Appellant for costs due to delays caused by the Respondent; (c) the Tribunal denied the Appellant procedural fairness in its disposition of two claims and its award of costs; and (d) part of the Award was made in breach of Ontario public policy. The Application Judge dismissed the challenge, and the Appellant appealed.

Issues:

• Did the Tribunal have jurisdiction to deal with the counterclaims?
• Did the Tribunal err in failing to exercise its jurisdiction in not compensating the Appellant for costs due to delays caused by the Respondent?
• Did the Tribunal deny the Appellant procedural fairness in respect of:
• Its ruling on retention monies;
• Its ruling on Hydro Seeding work done; and
• Its cost award to the Respondent?
• Did the Tribunal’s award offend Ontario public policy?

Holding: Appeal dismissed.

Reasoning:

Prior to exploring the issues, the Court of Appeal undertook a review of judicial intervention under the Model Law. In Ontario, the Model Law has been given force of law by the ICAA. Article 5 of the Model Law states “In matters governed by this Law, no court shall intervene except where so provided in this Law.” Article 34 identifies the circumstances under which an international commercial arbitral award can be set aside by a domestic court. These grounds are narrow. They are: (a) incapacity of a party or legal invalidity of the agreement; Page: 7 (b) absence of notice or an opportunity to present the party’s case (i.e. procedural unfairness); (c) absence of jurisdiction; (d) non-compliance with the arbitration agreement concerning the tribunal’s composition or procedure; (e) non-arbitrability of the dispute; and (f) a conflict between the award and domestic public policy.   The standard to be applied by a reviewing court depends on the specific Model Law grounds on which the appeal is based.

• Pursuant to Article 34(2)(a)(iii), the standard of review for questions of jurisdiction is correctness.

The Respondent’s counterclaims were fully pleaded and defended in the arbitration. Evidence was adduced by both parties on the substance of the claims. It was left to the Tribunal to determine whether it had jurisdiction to address them and it determined that it did. The Tribunal found that “the parties to a complex construction contract may be presumed, when making it, to agree that any disputes that may arise will be resolved in an efficient manner.” This intention was reflected, it said, in the parties’ agreement that the Appellant’s claims could go directly to arbitration, by-passing adjudication. It concluded that the parties’ agreement reflected a common intention that disputes would be dealt with at the same time by the same tribunal when there was “sufficient connection” between the disputes to enable them to be dealt with efficiently. This applied to the Respondent’s counterclaims.

The Appellant argued that it is immaterial that the issues were fully pleaded before the Tribunal, it argued that the Tribunal’s jurisdiction is purely consensual and that the parties never consented to the counterclaims being arbitrated. The Court of Appeal rejected this submission. Article 34(2)(a)(iii) requires the court to consider whether the award deals with a “dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration”. To answer this question, the Court must consider the contractual provisions with respect to arbitration, the submission to arbitration, the agreed terms of reference of the arbitrators and the arbitral award. The terms of the contract conferred jurisdiction on the Tribunal to decide questions of fact and law necessary to determine the issues and to rule on the parties’ requests for relief. The Tribunal found that “a claim that was so connected to a claim of the other party that it should be decided at the same time” could proceed to arbitration without passing through the contractual dispute resolution process. The Respondent’s counterclaims were clearly the proper subject of arbitration under the contract. The only question was when they would be arbitrated. It was open to the Tribunal to find that the pre-arbitration dispute resolution process did not apply to claims of one party that were closely connected to the claims already submitted to arbitration by the other party. This is not to say that every dispute submitted to arbitration will necessarily draw in counterclaims. It will depend, as in this case, on the contractual intention of the parties as determined by all the surrounding circumstances. Nor will it permit a party initiating an arbitration to completely ignore pre-arbitration dispute resolution requirements.

• The Appellant sought a 36-day extension of time and US$482,480 for costs allegedly due to delays caused by the Respondent’s failure to deliver materials and to complete work required to enable the Appellant to complete its own work on the pipeline. The Tribunal granted an 18-day extension, resulting in a corresponding reduction of the Respondent’s claim for liquidated damages. But it did not specifically address the Appellant’s claim for damages caused by the delay. It gave no reasons for dismissing the Appellant’s claim under this head.  As per Schreter v. Gasmac Inc. (1992), 7 O.R. (3d) 608, at p. 621 (Gen. Div.)  “The failure to give reasons, although less helpful to the parties, is not on its own a ground for refusing to enforce an award.” There is nothing in the Model Law that requires the Tribunal to give reasons, although it is unquestionably desirable that it do so. The Court of Appeal therefore dismissed this ground of appeal.
• Article 34(2)(a)(ii) permits a challenge to an arbitral award based on procedural unfairness where a party has not received proper notice of the proceedings “or was otherwise unable to present his case.” Pursuant to Corporacion Transnacional de Inversiones S.A. de C.V. v. STET International S.p.A. (1999), 45 O.R. (3d) 183 (S.C.), aff’d (2000), 49 O.R. (3d) 414 (C.A.), to justify setting aside an award for reasons of fairness or natural justice, the conduct of the Tribunal “must be sufficiently serious to offend our most basic notions of morality and justice”  and “judicial intervention for alleged violations of the due process requirements of the Model Law will be warranted only when the Tribunal’s conduct is so serious that it cannot be condoned under the law of the enforcing State.”

The Appellant submitted that it was denied procedural fairness in relation to 3 claims: (a) Retention Monies; (b) Hydro-Seeding; and (c) Costs.

• Under the project contract, the Respondent made regular progress payments to the Appellant as construction proceeded. The Respondent was contractually entitled to retain 5% of the amount of each of these interim progress payments (the “Retention Monies”). The first half of the Retention Monies was to be paid out by the Respondent’s engineer when a “Taking-Over Certificate” was issued for the works. The remaining half was to be released on the expiry of the “Defects Notification Period.” With respect to the first half of the retention monies, the Tribunal found that the Engineer had acted reasonably in not releasing those monies, given the extent of the Appellant’s defective work. Additionally, the Tribunal found that the expiry of the Defects Notification Period (which triggered the payment of the second half of the retention monies) should be extended, because the Appellant had failed to properly perform the contract.

The Respondent’s counterclaims formed the basis of the Tribunal’s conclusion that the Appellant had legal and financial responsibility for its defective work, and the contract permitted the withholding of the retention monies until the defects were remedied. The Appellant asserted that the Tribunal breached its own procedural order and denied the Appellant procedural fairness by disposing of its claims based solely on the Respondent’s reply submissions, to which it had no opportunity to reply. The Court of Appeal rejected this submission; the issue of the Retention Monies was bound up In the Appellant’s liability for the Respondent’s counterclaims and the ability of the Respondent’s engineer to refuse payment of the Retention Monies when there were unsatisfied defect claims. The Tribunal relied on a contractual term that permitted the Respondent to withhold the Retention Monies until the Appellant cured the defects in its work. The Appellant was aware of this provision and addressed it in its submissions to the Tribunal. The Appellant was therefore not prevented from presenting its case on this issue and therefore not denied procedural fairness.

• This was a claim by the Respondent for US$7.64 million for the cost of “redoing” defective restoration work (topsoil and seeding) over the completed pipeline. The contract required the Respondent to give notice of its complaint to the Appellant and give it an opportunity to remedy the defective work. The Appellant argued before the Tribunal that the Respondent was not entitled to assert this claim because it had gone ahead and performed the work without giving the Appellant proper notice and an opportunity to correct the problem. The Tribunal found otherwise. It found that although the Respondent had not observed the “contractual niceties”, the evidence established that the Appellant had accepted and almost acquiesced in the Respondent’s use of another contractor to redo the Appellant’s work.

Before the Application Judge and in the Court of Appeal, the Appellant claimed that in resolving this issue against it, the Tribunal developed its own “novel theory” of constructive notice and denied procedural fairness by failing to give notice of that theory and an opportunity to respond to it. The Application Judge rejection this submission and found that this was a complaint about arbitral fact-finding, under the guise of a procedural fairness argument. The Court of Appeal agreed with the Application Judge’s reasons.

• Although success was somewhat divided, the Tribunal concluded that the Respondent should be regarded as the successful party and was entitled to recover the costs of the arbitration. Pursuant to The ICC Rules of Arbitration, the Tribunal has discretion with respect to costs. Article 37(5) of those Rules (now Article 38(5)) states that “in making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.” While it is true that the Tribunal initially noted the parties’ proposal that costs should be proportionate, it concluded that the Appellant had succeeded on only four claims, only two of which required evidence. The Respondent, on the other hand, had succeeded in defeating all the Appellant’s main claims and also succeeded on its counterclaims. Thus the Appellant was not denied procedural fairness on this issue.
• The Appellant claimed that a portion of the Tribunal’s award offended public policy because it was a penalty. The court may set aside an arbitral award under Article 34(2)(b)(ii) if it is in conflict with the public policy of the state. The leading case under this provision is Schreter, which states that “The concept of imposing our public policy on foreign awards is to guard against enforcement of an award which offends our local principles of justice and fairness in a fundamental way, and in a way which the parties could attribute to the fact that the award was made in another jurisdiction where the procedural or substantive rules diverge markedly from our own, or where there was ignorance or corruption on the part of the tribunal which could not be seen to be tolerated or condoned by our courts.” The Tribunal’s award does not come close to meeting this test, and accordingly, this ground of appeal was rejected.

Criminal & Ontario Board Decisions and Short Endorsements:

GM Textiles v. Sidhu, 2017 ONCA 969

[Hoy A.C.J.O., Doherty and Feldman JJ.A.]

Counsel:
Lockyer, for the appellant
S. Zucker and M. L. Somo, for the respondent

Keywords: Civil Procedure, Orders, Enforcement, Contempt, Rules of Civil Procedure, r. 60.11(8)

R v. Esseghaier, 2017 ONCA 970

[Watt J.A. (In Chambers)]

Counsel:
MacKinnon, for the moving party, Canadian Broadcasting Corporation
E. Dann, amicus curiae in relation to the responding party, Chiheb Esseghaier, and agent for responding party, Raed Jaser
Nicholas Devlin, for the responding party, Attorney General of Canada

Keywords: Criminal Law, Endorsement, Sealing Orders, “Open Court” Principle, Canadian Charter of Rights and Freedom, Section 2(b), Freedom of Expression, Dagenais/Mentuck Test

R v. G.H., 2017 ONCA 965

[Watt, Epstein and Brown JJ.A.]

Counsel:
Moustacalis, for the Appellant G.H.
M. Lai, for the respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Burden of Proof, Reasons for Decision

Architectural Millwork & Door Installations Inc. v. Provincial Store Fixtures Ltd., 2017 ONCA 955

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Sabharwal, for the appellant
No one appearing for the respondent

Keywords: Endorsement, Appeal Abandoned

Hussain v. Royal Bank of Canada, 2017 ONCA 956

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Hussain, in person
A. Jackson, for the respondent

Keywords: Endorsement, Debtor-Creditor, Summary Judgment

R v. Damassia, 2017 ONCA 954

[Laskin and Pepall JJ.A. and Gans J (ad hoc)]

Counsel:
Halfyard and B. Vandebeek, for the appellant
M. Lai, for the respondent

Keywords: Criminal Law, Sexual Assault, Canadian Charter of Rights and Freedom, Section 10(b), Evidence, Credibility

R v. Enotie, 2017 ONCA 966

[Laskin and Pepall JJ.A. and Gans J (ad hoc)]

Counsel:
Arbogast, for the appellant
K. Rawluk, for the respondent

Keywords: Criminal Law, Carjacking, Similar Fact Evidence, Jury Instructions

R v. Pettipas-Lizak, 2017 ONCA 963

[Laskin and Pepall JJ.A. and Gans J (ad hoc)]

Counsel:
Hotke, for the appellant
N. Gorham, for the respondent

Keywords: Criminal Law, Firearms Offences, Directed Verdict, Circumstantial Evidence, Credibility

Ohenhen (Re) v. C60572, 2017 ONCA 960

[Strathy, C.J.O., Doherty and Roberts JJ.A.]

Counsel:
Szigeti and J. R. Presser, for the appellant
A. Alyea, for the respondent, the Attorney General of Ontario
M. Warner, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, Canadian Charter of Rights and Freedoms, Section 24(1), Charter Remedies, Not Criminally Responsible

R v. Mayrhofer-Lima, 2017 ONCA 949

[Epstein, Paciocco and Nordheimer JJ.A.]

Counsel:
M. Garg, for the appellant
P. B. Norton, for the respondent

Keywords: Criminal Law, Summary Conviction, Canadian Charter of Rights and Freedoms, s.10

R v. Moore, 2017 ONCA 940

[Strathy C.J.O., Doherty and Trotter JJ.A.]

Counsel:
Hicks and J. Zita, for the appellant
K. Papadopoulos, for the respondent

Keywords: Criminal Law, Vetrovec warning, R v. W.(D.). [1991] 1 S.C.R. 742, Jury Instructions, Evidence, Re-Examination, Sentencing

V (Re), 2017 ONCA 941

[Simmons, van Rensburg and Nordheimer JJ.A.]

Counsel:
J. Fernandes, for A. V
M. Fawcett, for the Attorney General of Ontario
B. Walker-Renshaw, for the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Keywords: Ontario Review Board, Not Criminally Responsible, Significant Threat to Public Safety, Conditional Discharge

King (Re), 2017 ONCA 945

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Davies, for the appellant
D. Bonnet, for the Attorney General of Ontario
J. Dagher, for the Person in Charge of the Brockville Mental Health Centre

Keywords: Endorsement, Ontario Review Board, Conditional Discharge

R v. Boachie, 2017 ONCA 944

[Laskin and Pepall JJ.A. and Gans J. (ad hoc)]

Counsel:
Zegers, for the appellant
H. Amarshi, for the Respondent

Keywords: Endorsement, Criminal Law

R v. Chen, 2017 ONCA 946

[Simmons, van Rensburg and Brown JJ.A.]

Counsel:
Chozik and C. Pakosh, for the appellant
K. Wilson and K. Gill, for the Respondent

Keywords: Criminal Law, Immigration Law, Marijuana Growth Operation, Conspiracy, Fresh Evidence, Immigration and Refugee Protection Act, S.C. 2001, c. 27, Conflict of Interest, Sentencing

R c. Fawaz, 2017 ONCA 943

[Les Juges Rouleau, Benotto et Roberts]

Counsel:
Mainville, acovate de service
R. Visca, pour L’intimée

Keywords: Endorsement, Criminal Law, Adjournment

JVJ Consulting Inc. v. Barnell, 2017 ONCA 937

[Simmons, Brown and Fairburn JJ.A.]

Counsel:
Barnwell, for the appellant
R. Gosbee, for the respondent

Keywords: Endorsement, Adjournment

R v. Bridgman, 2017 ONCA 940

[Pardu, Huscroft and Fairburn JJ.A.]

Counsel:
Furgiuele and C. Barbisan, for the appellant
B. G. Puddington, for the respondent

Keywords: Criminal Law, Possession, Evidence, Admissions, Text Messages, Hearsay, Reliability, Necessity, Original Circumstantial Evidence, Jury Instructions

R v. Christiansen, 2017 ONCA 941

[Epstein, Paciocco and Nordheimer JJ.A.]

Counsel:
Wilkinson, for the appellant
J.D. Sutton and C. Reccord, for the respondent

Keywords: Criminal Law, Possession of Narcotics, Trafficking, Controlled Drugs and Substances Act, Section 11, General Warrants, Jury Instructions