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Good evening.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario released this past week. The decisions dealt mainly with procedural issues.
Topics covered included another decision in the ongoing Residential School Settlement saga (procedural fairness), family law (unequal division of property and striking pleadings for failure to comply with disclosure order), estates (passing accounts by an attorney under a POA), real property (termination of APS of land and 99 year leases contravening the Planning Act), security for costs, appellate jurisdiction and stay pending appeal in the context of vexatious litigants. We also summarized two provincial offences matters this week, as they relate to workplace safety and environmental issues that civil lawyers practicing in those areas will want to be aware of.
Wishing everyone a pleasant weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
Brunning v. Canada (Attorney General), 2018 ONCA 1009
Keywords: Class Proceedings, Interlocutory vs. Final Orders, Jurisdiction, Procedural Fairness, Natural Justice, Courts of Justice Act, RSO 1990 c C43, s 6(1)(b), s 19(1)(b), Grand River Enterprises v. Burnham (2005), 10 C.P.C. (6th) 136 (Ont CA)
Bukshtynov v. McMaster University, 2018 ONCA 1006
Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rule 61.06 (1), Yaiguaje v. Chevron Corporation, 2017 ONCA 827
Canadian Imperial Bank of Commerce v. Cherrington, 2018 ONCA 1005
Keywords: Civil Procedure, Appeals, Extensions of Time, Default Judgments, Setting Aside, Real Property, Mortgages
Son v. Khan, 2018 ONCA 984
Keywords: Civil Procedure, Vexatious Litigants, Writs of Seizure and Sale, Courts of Justice Act, ss. 134(2) and 140, Attorney General of Ontario v. Reyes, 2017 ONCA 613
Al-Fadhly v. Al-Pachachi, 2018 ONCA 1013
Keywords: Family Law, Unequal Division of Family Property, Unconscionability, Compensatory Support, Striking Pleadings, Evidence, Fresh Evidence, Adverse Inferences, Family Law Rules, Rule 1(8)(e), Ward v. Ward, 2012 ONCA 462
Lacey v. Kakabeka Falls Flying Inc., 2018 ONCA 1007
Keywords: Real Property, Commercial Tenancies, Leases, Part Performance, Civil Procedure, Procedural Fairness, Planning Act, R.S.0.1960, c. 296 s. 26(2) & 26(3)(a), Planning Act, R.S.O. 1990, c. P.13 s. 50(3), Aeronautics Act, R.S.C. 1985, c. A-2, Rules of Civil Procedure, Rule 39.02(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109
Dzelme v. Dzelme, 2018 ONCA 1018
Keywords: Wills and Estates, Powers of Attorney, Passing of Accounts, Standing, Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 42(4), McAllister Estate v. Hudgin (2008), 42 ETR (3d) 313, Lacroix v Kalman, 2015 ONSC 19
Hosseinzadeh v. Pringle, 2018 ONCA 1020
Keywords: Contracts, Real Property, Agreements of Purchase of Sale of Land, Contractual Interpretation, Standard of Review, Bouskill v. Campea (1976), 12 O.R. (2d) 265 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] S.C.R. 633, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23
Burke v. Poitras, 2018 ONCA 1025
Keywords: Family Law, Civil Procedure, Orders, Enforcement, Striking Pleadings, Settlement Conferences, Disclosure, Custody and Access, Family Law Rules, O Reg 114/99, s 1(7.1), s 1(8), s 1(8.1), s 17(5), s 17(8)(b.1), Roberts v Roberts, 2015 ONCA 450, Manchanda v Thethi, 2016 ONCA 909, DD v HD, 2015 ONCA 409
Fontaine v. Canada, 2018 ONCA 1023
Keywords: Civil Procedure, Appeals, Jurisdiction, Class Proceedings, Residential School Settlement, Orders, Stay Pending Appeal, Functus Officio, Procedural Fairness, A.(L.L.) v. B.(A.), [1995] 4 SCR 536, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 6
Short Civil Decisions
1583881 Ontario Limited v. Genesis Express and Logistics Inc, 2018 ONCA 994
Keywords: Civil Procedure, Representation by Lawyer, Security for Costs, Small Claims Court, Divisional Court, Rules of Civil Procedure, Rules 15, 56.01(1)(d) and 61.06
Braga v. Huang, 2018 ONCA 1000
Keywords: Torts, Negligence, Motor Vehicle Accidents, Civil Procedure, Persons under Disability, Litigation Guardians, Public Guardian and Trustee, Appeals, Extension of Time, Rules of Civil Procedure, r. 1.03(1), Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 6, Braga v. Huang, 2016 ONSC 6306, Braga v. Huang, 2017 ONSC 3826 Braga v. Huang, 2017 ONCA 268, Denison Mines Ltd. v. Ontario Hydro, (2001) 56 O.R. (3d) 181 (C.A.)
Ford v. Windsor (City), 2018 ONCA 992
Keywords: Civil Procedure, Costs, Appeals, Leave to Appeal, Stay Pending Appeal, Judgment Debtor Examinations, Fraudulent Conveyances, Rules of Civil Procedure, Rule 63.01
Law Society of Ontario v. Leahy, 2018 ONCA 1010
Keywords: Administrative Law, Regulated Professions, Lawyer, Law Society of Ontario, Fresh Evidence, Abuse of Process, Permanent Injunctions, Law Society Act, R.S.O. 1990, c. L.8, ss. 26.1 and 26.3
Nguyen v. Tran, 2018 ONCA 985
Keywords: Family Law, Matrimonial Home, Civil Procedure, Appeals, Stay Pending Appeal, Irreparable Harm, Balance of Convenience, Rules of Civil Procedure, Rule 63.01, Family Law Rules, O. Reg. 114/99, Rule 38(33), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311
Lee v. Ponte, 2018 ONCA 1021
Keywords: [Contracts, Interpretation, Debtor-Creditor, Wills and Estates, Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, s. 7, Papamonolopoulos v. Toronto (City) Board of Education, [1987] 75 O.R. (2d) 388 (C.A.)
Papp v. Papp ,2018 ONCA 1039
Keywords: Appeal Book Endorsement, Jurisdiction, Rules of Civil Procedure, Rule 31.10
York Region Standard Condominium Corporation No. 1279 v. 1806780 Ontario Inc., 2018 ONCA 1015
Keywords: Appeal Book Endorsement, Real Property, Condominium law, Disclosure, Condominium Act, 1998, S.O. 1998, c. 19, s. 133
Criminal Decisions
R v. Meloche, 2018 ONCA 987
Keywords: Criminal Law, Aggravated Assault, Bail Pending Appeal, Criminal Code, s. 679(3)(c), R. v. Oland, 2017 SCC 17
R. v. Johnson-Lee, 2018 ONCA 1012
Keywords: Criminal Law, Second Degree Murder, Attempted Murder, Jury Instructions, Evidence, Post-Offence Conduct, Probative Value, Identity, Fresh Evidence, Judicial Discretion, Criminal Code, s. 686(1)(a)(iii), R. v. Arcangioli, [1994] 1 S.C.R. 129, R. v. S.B.1, 2018 ONCA 807, R. v. Hall, 2010 ONCA 724, R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.), Browne v. Dunn (1893), 6 R. 87 (H.L.), R. v. Khan, 2001 SCC 86
R. v. Ledinek, 2018 ONCA 1017
Keywords: Criminal Law, Possession of Prohibited Firearm, Breach of Order Prohibiting Possession of Firearm, Sentencing, Double Counting, Totality and Parity, Pretrial Custody, Criminal Code, s. 719(3.1), R. v. Duncan, 2016 ONCA 754
R. v. M.M., 2018 ONCA 1019
Keywords: Criminal Law, Sexual Assault, Ineffective Assistance, Evidence, Credibility, R. v. G.D.B., 2000 SCC 22
R. v. Ariaratnam, 2018 ONCA 1027
Keywords: Criminal Law, Second Degree Murder, Provocation, Jury Instructions, Evidence, Post-Offence Conduct, Criminal Code, ss. 229(a) and 232(1), Canadian Charter of Rights and Freedoms, ss. 24(1) and 7, R. v. Ariaratnam, 2012 ONSC 3800, R. v. Mayuran, 2012 SCC 31, R. v. Parent, [2001] 1 S.C.R. 761, R. v. Hales, [2005] EWCA Crim. 1118, R. v. White, 2011 SCC 13, R. v. Ariaratnam, 2012 ONSC 4070
R. v. McPhee, 2018 ONCA 1016
Keywords: Criminal Law, Aggravated Assault, Consent, Evidence, Credibility, Criminal Code, ss. 34, 267(b), 268 and 686(5), R. v. McGown, 2016 ONCA 575, R. v. Cunha, 2016 ONCA 491
R. v. Punia, 2018 ONCA 1022
Keywords: Criminal Law, Aggravated Manslaughter, Sentencing, R. v. Clarke (2003) 172 O.A.C. 133
R. v. Ivall, 2018 ONCA 1026
Keywords: Criminal Law, Second Degree Murder, Intoxication, Provocation, Vetrovech Witness, Evidence, Hearsay, Opinion Evidence, Jury Instructions, Sentencing, Criminal Code, s. 686(1)(b)(iii), Canada Evidence Act, R.S.C., 1985, c. C-5, s. 9(2), R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Vetrovec, [1982] 1 S.C.R. 811, R. v. Biscette, [1996] 3 S.C.R. 599, R. v. Chretien, 2014 ONCA 403, R. v. Youvarajah, 2013 SCC 41, R. v. Bradshaw, 2017 SCC 35
R. v. Jones, 2018 ONCA 1032
Keywords: Criminal Law, Fraud under $5,000, Sentencing
R. v. Martin, 2018 ONCA 1029
Keywords: Criminal Law, Dangerous Driving, Possession of a Stolen Vehicle, Attempted Robbery, Attempted Theft, Driving while Disqualified, Sentencing, Aboriginal Offenders, Gladue Factors, Criminal Code, s. 718.2(e), R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Ipeelee, 2012 SCC 13, R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.)
R. v. Veerasingam, 2018 ONCA 1031
Keywords: Criminal Law, Child Luring, Communication for the Purpose of Prostitution with a Person under 16, Bail Pending Appeal, Criminal Code, ss. 172.1(4) and 286.1, Canadian Charter of Rights and Freedoms, s. 7
R. v. Couvieau, 2018 ONCA 1036
Keywords: Appeal Book Endorsement, Criminal Law, Appeal Dismissed as Abandoned
R. v. Harlowe, 2018 ONCA 1037
Keywords: Appeal Book Endorsement, Criminal Law, Sentencing, Probation, No Contact Orders, Variation of Conditions
R. v. Pottinger, 2018 ONCA 1028
Keywords: Appeal Book Endorsement, Criminal Law, Dismissed as Abandoned
R. v. Barna, 2018 ONCA 1034
Keywords: Criminal Law, Laundering Proceeds of Crime, Actus Reus, Mens Rea, Sentencing, Delay, Criminal Code, ss. 462.31 and 730(1), Canadian Charter of Rights and Freedoms, s. 11(b), R v. Barna, 2014 ONSC 7558, R v. Barna, 2014 ONSC 3788, R v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, R v. Morin, [1992] 1 S.C.R. 771, R v. Daoust, 2004 SCC 6
Ontario Review Board
Ghawar (Re), 2018 ONCA 1008
Keywords: Ontario Review Board, Criminal Law, Aggravated Assault, Failure to Stop for the Police, Breach of Probation, Not Criminally Responsible, Sentencing, Conditional Discharges, Significant Threat to the Safety of the Community, Criminal Code, Part XX.1, Sokal (Re), 2018 ONCA 113, Wall (Re), 2017 ONCA 713
Medcof (Re), 2018 ONCA 1011
Keywords: Ontario Review Board, Criminal Law, Kidnapping, Assault, Sentencing, Conditional Discharges, Significant Threat to the Safety of the Public, Criminal Code, Part XX.1, Medcof (Re), 2018 ONCA 299
Leger (Re), 2018 ONCA 1035
Keywords: Ontario Review Board, Criminal Law, Detention Orders, Conditional Discharges, Risk to Public Safety, Mental Health Act, R.S.O. 1990, c. M. 7, s. 15(1.1)
Provincial/Regulatory Offences Decisions
Ontario (Labour) v. Nugent, 2018 ONCA 1014
Keywords: Provincial Offences, Regulatory Offences, Labour and Employment Law, Occupational Health and Safety, Appeals, Leave to Appeal, Dismissal for Charter Delay, Criminal Negligence Causing Death, Canadian Charter of Rights and Freedoms, s. 11(b), Occupational Health and Safety Act, R.S.O. 1990, c.0.1, Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131, R. v. Jordan, 2016 SCC 27, Ontario (Ministry of the Environment and Climate Change) v Sunrise Propane Energy Group Inc, 2018 ONCA 461, R. v. Picard, 2017 ONCA 692, R. v. Manasseri, 2016 ONCA 703, R. v. Jurkus, 2018 ONCA 489, R. v. Saikaley, 2017 ONCA 374
Ontario (Environment and Climate Change) v. Gei, 2018 ONCA 1030
Keywords: Environmental Law, Provincial Offences, Regulatory Offences, Statutory Interpretation, Warrantless Inspections Definition of “Reasonable Belief”, Environmental Protection Act, RSO 1990, c E.19, s 1(1), 3(1), 6, 156(1), 156(2), 156.1, 157, 158, 159, 160, 161, 184(1), Provincial Offences Act, RSO 1990, c P.33, s 131, Legislation Act, 2006, SO 2006, c 21, Sched F, s 64(1), R v Debot, [1989] 2 SCR 1140, R v Kalsatos, 2016 ONCJ 252, Castonguay Blasting Ltd v Ontario (Environment), 2013 SCC 52, Dow Chemical Canada Inc (2000), 47 OR (3d) 577, Re Rockcliffe Park Realty Ltd and Director of the Ministry of the Environment et al (1976), 10 OR (2d) 1, R v Consolidated Mayburn Mines Ltd, [1998] 1 SCR 706, Ontario v Canadian Pacific Ltd, [1995] 2 SCR 1031, Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, Canada (Minister of Citizenship and Immigration v USA, 2014 FC 416, Ontario (Registrar of Alcohol and Gaming Commission) v 751809 Ontario Inc (Famous Flesh Gordon’s), 2013 ONCA 157, leave to appeal refused, [2013] SCCA No 259, 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685, Platnick v Bent, 2018 ONCA 687, R v McKinlay Transport Ltd, [1990] 1 SCR 627, R v Nicol (1997), 114 CCC (3d) 570 (Ont CA)
CIVIL DECISIONS
Brunning v. Canada (Attorney General), 2018 ONCA 1009
[Doherty, Miller and Fairburn JJ.A.]
Counsel:
C.A. Coughlan and B. Thompson, for the moving party, The Attorney General of Canada
L. Greenspon, for the responding party
Keywords: Class Proceedings, Interlocutory vs. Final Orders, Jurisdiction, Procedural Fairness, Natural Justice, Courts of Justice Act, RSO 1990 c C43, s 6(1)(b), s 19(1)(b), Grand River Enterprises v. Burnham (2005), 10 C.P.C. (6th) 136 (Ont CA)
FACTS:
The appellant represented persons involved in proceedings conducted under the auspices of the Indian Residential Schools Settlement Agreement (the “IRSSA”). On January 4, 2018, the Eastern Administrative Judge for the IRSSA released reasons addressing various issues raised in a Request for Directions brought by the appellant on behalf of her clients. The decision went largely, but not entirely, against the appellant’s clients.
The appellant subsequently sent several emails to court counsel in which she indicated that her client would not participate in the further scheduled proceedings before the Independent Assessment Process Adjudicator (the “IAP Adjudicator”) unless appropriate disclosure was made before the scheduled hearing date. The appellant also complained about the conduct of the respondent and failures in the adjudicative process, and challenged the correctness of the Eastern Administrative Judge’s reasons.
The Eastern Administrative Judge subsequently released a Direction of his own initiative, without requesting or receiving any input from counsel, in which he addressed the contents of the various emails. He made it clear that the appellant and her client could not unilaterally decide that they would not appear as scheduled before the IAP Adjudicator. He also he commented unfavourably and at some length about the appellant’s conduct and statements.
The appellant accordingly appealed from this Direction, while the respondent moved to quash the appeal.
ISSUE:
(1) Should the appeal be quashed due to their being no order to appeal from, or alternatively, due to the order being interlocutory in nature?
HOLDING:
Motion granted.
REASONING:
(1) Yes. The Court agreed with the appellant’s position that there was an order, insofar as the Direction contained an order for the appellant to appear before the IAP Adjudicator. However, the Court ultimately agreed with the respondent’s alternative position that the order was interlocutory and procedural in nature.
Having disposed of this issue in short order, the Court identified the true nature of this appeal as relating to the appellant’s concerns about the Eastern Administrative Judge’s comments in his Direction about her conduct. In the Court’s view, the appellant was understandably concerned that those comments, which were part of the public record, could have a very negative impact on her professional reputation. She therefore sought a forum in which to challenge the process and the Eastern Administrative Judge’s comments. Fortunately for her, she would have such a forum in the Court of Appeal, as a related appeal is pending. However, this particular order was interlocutory and could only be appealed, with leave, to the Divisional Court. The appeal was therefore quashed.
Bukshtynov v. McMaster University, 2018 ONCA 1006
[Huscroft J.A. (Motions Judge)]
Counsel:
B. R. Jones, for the appellants (responding parties)
A. B. Paul and K. Sonshine, for the respondent (moving party), McMaster University
B. M. Remigis, for the respondents (moving parties), Flying Angels Running Club, George Kerr and Hwang Lee
Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rule 61.06 (1), Yaiguaje v. Chevron Corporation, 2017 ONCA 827
FACTS:
The appellant was injured as a result of coming into contact with one of the respondents while running on an indoor track at McMaster University. The appellant required emergency surgery to repair his shoulder. He sued the respondents for negligence and breach of statutory duty.
Following a three-week trial, the jury returned a verdict that McMaster University and Hwang Lee were not liable. The Flying Angels Running Club and George Kerr were found 60% liable, while the appellant was found 40% contributory negligent.
The appellant appealed that decision. McMaster University brought a motion to dismiss the appeal on the grounds that it was frivolous and vexatious within the meaning of Rule 61.06(1)(a) of the Rules of Civil Procedure. Alternatively, it sought security for costs of the appeal under Rule 61.06(1)(b) on the basis that the appellant was not ordinarily resident in Ontario, the appeal had no merit, and that the appellant was not impecunious.
ISSUES:
(1) Is the appeal frivolous and vexatious within the meaning of Rule 61.06(1)(a)?
(2) Is security for costs justified under Rule 61.06(1)(b)?
HOLDING:
Motion granted, in part.
REASONING:
(1) No. The Court stated that there was a high standard required to establish that an appeal is frivolous and vexatious. The fact that the jury returned a zero liability verdict in favour of McMaster University and Hwang Lee did not demonstrate that the appeal was frivolous and vexatious. Moreover, the appellant’s unwillingness to accept what the trial judge considered to be reasonable settlement offers and his refusal to engage in any midtrial pretrial were not, in and of themselves, support for the conclusion that the appeal was frivolous and vexatious.
(2) Yes. First, the appellant was not a resident of Ontario but, rather, a resident of Florida. Second, the appellant’s grounds for appeal are not strong. His appeal mostly relates to the trial judge’s evidentiary decisions about the admission of hearsay evidence and the exclusion of some of the respondents’ correspondence. Those decisions are subject to deference and hard to overturn on appeal. Third, the appellant did not claim to be impecunious. Accordingly, security for the costs of the appeal was ordered.
Canadian Imperial Bank of Commerce v. Cherrington, 2018 ONCA 1005
[Lauwers J.A. (In Chambers)]
Counsel:
G. C., in person
D. Cooney, as duty counsel
A. Tratnik, for the respondent
Keywords: Civil Procedure, Appeals, Extensions of Time, Default Judgments, Setting Aside, Real Property, Mortgages
FACTS:
The appellants entered into a mortgage with the respondent, which went into default. The respondent started a mortgage action on February 2, 2018, and default judgment was granted on April 16, 2018. The respondent then issued a writ of possession in respect of the mortgaged property.
The appellant unsuccessfully moved to set aside the default judgment, but was given time to either refinance the mortgage property or to bring an appeal.
The appellant brought the current motion seeking a further extension of time within which to appeal the default judgment.
ISSUE:
(1) Should the appellant be granted a further extension of time within which to bring an appeal?
HOLDING:
Motion dismissed.
REASONING:
(1) No. A motion for an extension of time to appeal requires the moving party to show some merit to the appeal. The appellant admitted that he did not pay the mortgage. While he claimed to have new financing, he did not provide any evidence of the new financing. Accordingly, the evidence did not support his request for an extension of time to appeal.
Son v. Khan, 2018 ONCA 984
[Lauwers J.A. (In Chambers)]
Counsel:
D. A. K., in person
F. K., in person
I. A. K., not present
D. Nuri, for the respondents
Keywords: Civil Procedure, Vexatious Litigants, Writs of Seizure and Sale, Courts of Justice Act, ss. 134(2) and 140, Attorney General of Ontario v. Reyes, 2017 ONCA 613
FACTS:
The appellants were declared vexatious litigants within the meaning of s. 140 of the Courts of Justice Act, barring them from instituting any proceedings in any court except by leave of a judge. The appellants sought a stay of a writ of seizure and sale until their appeal is heard in February 8, 2019, as it pertains to the vexatious litigants order. They also sought an order giving them six months’ time to arrange financing to pay out the judgments against them, and for the order to lift a Certificate of Pending Litigation (“CPL”) so that they could take out a second mortgage to pay the costs award against them.
ISSUE:
(1) Should the appellants be granted a stay of the writ of seizure and sale?
HOLDING:
Motion dismissed.
REASONING:
(1) No. The Court stated that there were three problems with those requests. First, permission from a Superior Court judge was granted to bring the motion for a stay of the writ of seizure and sale, which the appellant had not obtained. Second, the appellants were seeking to stay the execution of a write of seizure and sale arising in a different proceeding. The CPL had been registered against the appellants by order dated November 2, 2016 and costs fixed in the amount of $25,000, and that order was not appealed. Third, after the pleadings had been struck the respondents in the appeal obtained a default judgment in the main action which required the appellants to pay about $200,000. The appellants did not get a copy of the judgment until November 23, 2018, and wish to seek leave to appeal the judgment now that they know of its existence. This was also a matter requiring the leave of a Superior Court judge. The Court found that the vexatious litigants order was hampering any other appeals and the resolution of basic dispute between the party, and the Court opted to exercise its authority under s. 134(2) and granted the stay of execution of the writ of seizure and sale until thirty days after the appeal was heard on the vexatious litigants order.
Al-Fadhly v. Al-Pachachi, 2018 ONCA 1013
[Juriansz, Brown and Roberts JJ.A]
Counsel:
T. Frederick, for the appellant
P. M. Callahan, for the respondent
Keywords: Family Law, Unequal Division of Family Property, Unconscionability, Compensatory Support, Striking Pleadings, Evidence, Fresh Evidence, Adverse Inferences, Family Law Rules, Rule 1(8)(e), Ward v. Ward, 2012 ONCA 462
FACTS:
File C63096 was an appeal of a November 28, 2016 order striking the appellant’s pleadings. The order was stayed by a subsequent order dated April 12, 2017, and the trial took place while the order was stayed, with the appellant participating in the trial on the basis of his pleadings. The motion judge found the appellant had failed to obey an order of the court. As a result, he was entitled by Family Law Rule 1(8)(e) to dismiss the appellant’s counter-motion to strike the respondent’s pleading for non-compliance with an order dated July 26, 2016. The affidavit evidence established that the respondent had complied with the earlier order. The appeal was found to be moot and was dismissed.
In appeal C64255, the appellant appealed from a final order dated August 8, 2017, after a trial heard April 19-28, 2017. First, the appellant argued that the trial judge had erred in declining to adjourn the trial until his appeal of the November 28, 2016 order striking his pleadings was heard. Second, he argued that the trial judge was estopped from finding that the appellant had failed to make proper disclosure, because Price J. had already made that finding earlier in his November 28, 2016 order. Third, the appellant applied to tender new evidence. Fourth, the appellant submitted that he was prejudiced by the admission into evidence of an email dated November 17, 2014, in which the trial judge found he indicated his intention to drain his accounts of any liquid cash in anticipation of the divorce process. Though the email was introduced during the re-examination of the respondent, the trial judge allowed counsel to put the email to him and to ask questions about it. Fifth, the appellant took issue with the trial judge’s award of an unequal division of family property, 75% in favour of the respondent, and submitted that the trial judge had an inadequate basis to find unconscionability. Finally, the appellant submitted that in effecting the unequal division of family property, the trial judge exceeded his jurisdiction by re-establishing a higher net family property for the appellant.
On cross-appeal, the respondent submitted that the trial judge erred by declining to make a lump sum payment of spousal support after finding she was entitled to compensatory support.
ISSUES:
Appeal
(1) Did the trial judge err in declining to adjourn the trial until the appellant’s appeal of the November 28, 2016 order was determined?
(2) Was the trial judge estopped from finding that the appellant had failed to make proper disclosure?
(3) Should the appellant be allowed to tender fresh evidence?
(4) Was the appellant prejudiced by the admission of the November 17, 2014 email?
(5) Did the trial judge rely on an inadequate basis in finding unconscionability?
(6) Did the trial judge exceed his jurisdiction by re-establishing a higher net family property for the appellant?
Cross-Appeal
(1) Did the trial judge err in declining to make a lump sum payment of spousal support?
HOLDING:
Appeal and cross-appeal dismissed.
REASONING:
Appeal
(1) No. The order had been stayed by Pepall J.A., who refused to adjourn the trial, emphasized that the appellant was still required to comply with the production orders made against him, and noted that in the absence of full disclosure by the applicant, it would be open to the trial judge to draw an adverse inference against him.
(2) No. The question before Price J. was different; the question before the trial judge was whether the appellant had made proper disclosure by the time of trial. The trial judge did review the appellant’s history of non-compliance with the earlier production orders before addressing his failure to make disclosure before trial, and referred to his attempts to tender “new” documents into evidence. The Court stated that even if issue estoppel applied, the result would not have changed because the trial judge would have been bound to proceed on the basis of Price J.’s earlier finding that the appellant had failed to make disclosure.
(3) No. The material tendered was not fresh evidence, but a portion of transcript that is properly part of the appeal record. The appellant could have obtained the remaining material before trial by exercising due diligence. The Court refused its admission.
(4) No. The Court was not persuaded that any unfairness was occasioned by the admission of the email.
(5) No. The Court stated that the trial judge had relied on the combination of the appellant’s failure to make proper disclosure before trial, the evidence of his stated intent to divert assets prior to separation, and his actions in actually diverting assets, including a concocted loan scheme with his brother. The high standard contemplated in Ward v Ward was met and the Court found no error.
(6) No. The Court found this submission to be based on counsel’s misapprehension of part of the trial judge’s reason. The figure of $776,553.52 referred to 75% of the total family property, not the respondent’s net family property.
Cross-Appeal
(1) No. The Court stated that the trial judge gave cogent reasons for finding no spousal support payable to the respondent from the date of separation.
Lacey v. Kakabeka Falls Flying Inc., 2018 ONCA 1007
[Doherty, van Rensburg and Hourigan JJ.A.]
Counsel:
Michael Cupello, for the appellants
J.R.D. Lester and W.A. Mouck, for the respondent
Keywords: Real Property, Commercial Tenancies, Leases, Part Performance, Civil Procedure, Procedural Fairness, Planning Act, R.S.0.1960, c. 296 s. 26(2) & 26(3)(a), Planning Act, R.S.O. 1990, c. P.13 s. 50(3), Aeronautics Act, R.S.C. 1985, c. A-2, Rules of Civil Procedure, Rule 39.02(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109
FACTS:
The appellants brought an application for a declaration that a lease registered in 1972 against property they had purchased seven years earlier (with notice of the lease) was void. The lease was between the respondent and the appellants’ predecessor in title. The lease, which was signed on November 20, 1968, was for a term of 99 years from January 1, 1967 to December 31, 2066. The appellants alleged that, at the time it was entered into, the lease violated s. 26(2) of the Planning Act, R.S.0.1960, c. 296 (now s. 50(3) of the Planning Act, R.S.O. 1990, c. P.13) (the “Act”), which prohibits the subdivision of a property, including by a lease of only part of a property for a term exceeding 21 years.
Until May 2, 1968, s. 26(3)(a) of the Act provided an exemption from the subdivision prohibition where both the subdivided land and the abutting lands had an area of ten acres or more (as was the case here). The application judge determined that the parties to the lease entered into an oral lease and that there had been part performance before May 2, 1968, such that the lease continued to be subject to the statutory exemption. This finding was determinative of his conclusion that there was a valid lease. The application judge therefore did not address any other arguments that were raised in response to the application.
ISSUES:
(1) Were the appellants denied procedural fairness when they were refused leave to provide evidence on the question of whether there had been part performance of an oral agreement?
(2) Did the application judge err in finding part performance when there was no evidence to reasonably support such a finding?
(3) Did the application judge err in his application of the test for part performance?
HOLDING:
Appeal allowed.
REASONING:
(1) Yes. The Court was satisfied that this appeal could be determined on the first ground. A fair reading of the record that was before the application judge indicated that no one had anticipated the need to address whether there was an oral lease and the question of part performance before these issues were raised by the application judge at the conclusion of oral argument.
Indeed, in response to the application, the respondent’s affidavit evidence confirmed that the written lease was entered into in November 1968 (that is, after the Act amendments came into effect). It also (1) asserted that the Act did not apply because the leased premises are an “aerodrome”, governed by the Aeronautics Act, R.S.C. 1985, c. A-2, and not subject to provincial planning legislation (the “jurisdiction” issue); (2) relied on s. 26(3)(a) of the 1960 Act, without reference to the statutory amendment by which that exemption was removed; and (3) argued that the relief sought was barred by the appellants’ delay, as they purchased the land with notice of the lease and accepted rent payments for a period of seven years (the “laches” issue).
At the conclusion of oral argument when the application was heard on September 26, 2017, the application judge adjourned the hearing and directed that the parties provide written submissions to address two matters: whether a subsequent purchaser with notice could attack the validity of the prior lease, and whether there was an oral agreement prior to the written agreement dated November 20, 1968. The appellants then prepared an affidavit to address the matters raised by the motion judge, and served the affidavit on opposing counsel. The respondent’s counsel objected to the new evidence, and there was an exchange of correspondence about a possible motion to introduce the affidavit. The application judge granted the respondent’s motion to strike the new affidavit, granted leave to the respondent to deliver a reply factum, and adjourned the application to a new date.
After hearing further submissions on the two additional issues on March 5, 2018, the application judge released his reasons for dismissing the application on April 6, 2018. As already noted, he concluded that there was an oral lease agreement and part performance before May 2, 1968 (the effective date of the amendment to the Act removing the relevant exemption).
(2) Yes. In the Court’s view, the evidence before the application judge to support a finding of part performance before May 2, 1968 was thin. Although the lease was dated November 20, 1968 and was for a stated term commencing on January 1, 1967, the respondent lessee was only incorporated on February 19, 1969. Although the written lease provided for rent payable commencing in January 1968, there was no evidence about whether rent was actually paid. In short, the Court agreed with the appellants that the evidence that was before the court, without more, was not persuasive on the question of part performance and, more importantly, that, after raising this issue, the application judge erred in refusing to permit further evidence to be received.
(3) Yes. The Court disagreed with the respondent that the appellants’ failure to bring a motion specifically seeking to file a further affidavit was fatal. The affidavit had been served and filed with the court. The question of the admissibility of the affidavit was squarely before the application judge on January 26, 2018, when he ordered that fresh evidence could not be received. Nor was this a case where r. 39.02(2) of the Rules of Civil Procedure was in play (to prohibit, without leave, the filing of an affidavit by a party who has cross-examined on an affidavit delivered by an adverse party). The application judge’s refusal to permit the filing of fresh evidence to properly respond to an issue that he had raised, especially when the record provided so little evidence on that issue, was unfair to both parties.
Dzelme v. Dzelme, 2018 ONCA 1018
[Juriansz, Brown and Roberts JJ.A.]
Counsel:
The appellant, acting in person
J. Little, for the respondent
Keywords: Wills and Estates, Powers of Attorney, Passing of Accounts, Standing, Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 42(4), McAllister Estate v. Hudgin (2008), 42 ETR (3d) 313, Lacroix v Kalman, 2015 ONSC 19
FACTS:
The appellant moved for an order that his brother, the respondent, disclose information about the assets of his parents and account for their property and finances under a power of attorney for property. In dismissing the motion, the motion judge held that the only basis on which the appellant would have standing to apply for the relief sought would be under s. 42(4)6 of the Substitute Decisions Act, 1992 (the “SDA”), which provides that “[a]ny other person” may apply for a passing of accounts of an attorney of property “with leave of the court.”
The appellant appealed, arguing that since he was one of his father’s attorneys for personal care and since his father was incapable at the time of the motion below, he had the standing to apply for a passing of accounts under s. 42(4)1 of the SDA. The respondent conceded that the motion judge erred, and that the appellant could apply under s. 42(4)1 for a passing of accounts without leave, but that the appellant’s motion would have been denied even under that section of the SDA.
ISSUE:
(1) Did the trial judge err in refusing to grant the appellant’s motion?
HOLDING:
Appeal dismissed.
REASONING:
(1) No. Notwithstanding the trial judge’s error – acknowledged by both parties – the Court of Appeal found that the motion judge would have refused the appellant’s request even under the proper section of the SDA.
Quoting from s. 42(1) of the SDA, the Court of Appeal noted that it remains in the discretion of the court to order a passing of accounts. Factors a court takes into account in exercising its discretion include the extent of the attorney’s involvement in the grantor’s financial affairs, and whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs such as to warrant an accounting.
In the present case, the motion judge made several key findings of fact: (i) both parents were capable when they executed written instructions to the respondent not to produce any financial information about their affairs to the appellant; (ii) the mother maintained this position in response to the appellant’s motion; (iii) a September 30, 2017 capacity assessment of the mother found that she was capable of making her own decisions; (iv) a third brother corroborated the respondent’s evidence that he was following his parents’ wishes; (v) the application judge had no doubt that the respondent was following his mother’s wishes; and (vi) the application judge had no reason to suspect that the respondent was not acting properly, including in respect of the survivorship designation on his mother’s tax-free savings account.
Accordingly, the Court of Appeal was not persuaded that the motion judge’s findings were tainted by any palpable and overriding error.
Hosseinzadeh v. Pringle, 2018 ONCA 1020
[Feldman, van Rensburg and Nordheimer JJ.A.]
Counsel:
R. Hine and M. Shahidi, for the appellant
J. Potasky, for the respondent
Keywords: Contracts, Real Property, Agreements of Purchase of Sale of Land, Contractual Interpretation, Standard of Review, Bouskill v. Campea (1976), 12 O.R. (2d) 265 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] S.C.R. 633, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23
FACTS:
On January 26, 2017, the appellant made an offer to purchase the respondent’s property for $1,288,888. In the offer, the respondent listed the property as “having a frontage of 87.64 feet more or less by a depth of 100 feet more or less”. When responding to the offer, the respondent signed back the appellant’s offer, he manually inserted the addition of the words “To be verified”, above the depth of 100 feet. The appellant accepted the counter-offer and provided the respondent’s real estate agent with a deposit in the amount of $100,000.
Upon conducting due diligence, the appellant measured the property’s dimensions as having dimensions of 78.3 feet x 69.17 feet x 145.17 feet. The appellant then took the position that, because of the discrepancy between the two sets of dimensions, he would only close the transaction if the purchase price was reduced to $1,050,000. The respondent refused to abate the purchase price and the transaction failed to close.
The appellant then brought an action for the return of the deposit. The motion judge ruled against the appellant. In doing so, the motion judge made a number of findings. First, he found that there was a significant inaccuracy in the description of the property’s dimensions in the Agreement of Purchase and Sale. Second, he found that a discrepancy of that magnitude fell well outside the “more or less” language in the standard form agreement. Third, he found that only the addition of the phrase “to be verified” distinguished the case from similar cases that establish that a discrepancy too substantial to be encompassed by the words “more or less” will allow a purchaser to resile from the transaction and obtain the return of their deposit.
The appellant appealed the motion judge’s decision.
ISSUE:
(1) Did the motion judge err in his interpretation of the proviso by finding that it imposed an obligation on the purchaser, before the agreement was signed by both parties and became binding, to verify the dimensions of the property to his satisfaction?
HOLDING:
Appeal allowed.
REASONING:
(1) Yes. The proviso did not become a term of the contract until it was signed by both parties. Nor did the proviso say “To be verified by the purchaser.” Therefore, the proviso could not be interpreted as imposing an obligation on the purchaser to verify the dimensions before the agreement was signed and accepted. Rather, the proviso must be interpreted as simply saying that the depth dimension of 100 feet, which all parties knew had not been taken from a survey, had to be verified. Its accuracy was not to be taken as a representation by the vendor (or the agent).
Further, there was nothing in the phrase which said that its intent or effect was to transfer the risk of the inaccuracy of the depth dimension to the purchaser, or to remove the effect of the words “more or less”, which remained in the agreement.
Burke v. Poitras, 2018 ONCA 1025
[Juriansz, Brown and Roberts JJ.A.]
Counsel:
M. Marrello, for the appellant
E. Lay, for the respondent, N.B.
J. Bergeron, for the respondent, Office of the Children’s Lawyer
Keywords: Family Law, Civil Procedure, Orders, Enforcement, Striking Pleadings, Settlement Conferences, Disclosure, Custody and Access, Family Law Rules, O. Reg. 114/99, s 1(7.1), s 1(8), s 1(8.1), s 17(5), s 17(8)(b.1), Roberts v. Roberts, 2015 ONCA 450, Manchanda v. Thethi, 2016 ONCA 909, D.D. v. H.D., 2015 ONCA 409
FACTS:
At a settlement conference, the judge struck out the entirety of the appellant’s Answer pursuant to a previous consent order. The consent order stipulated that if the appellant failed to make all or any of the required disclosure within 30 days of the order, his Answer would be struck unless the appellant, within 10 days, sought an extension on reasonable grounds from the court. The appellant never sought to extend the disclosure deadline, nor did he take any other steps to vary, amend, or appeal the consent order. The appellant appealed the settlement conference judge’s order.
ISSUES:
(1) Did the settlement conference judge have jurisdiction to strike out the appellant’s Answer?
(2) Was the settlement conference judge’s order to strike out the financial portions of the appellant’s Answer a reasonable exercise of discretion?
(3) Did the settlement conference judge err in striking out the portion of the appellant’s Answer which responded to the issues of custody and access?
HOLDING:
Appeal allowed in part.
REASONING:
(1) Yes, the settlement conference judge had jurisdiction to strike out the Answer. Rule 17(8)(b.1), which sets out a list of final or temporary orders that may be made at conference so long as notice has been served, contains no explicit restrictions on the kind of final order that may be made at a settlement conference.
The express purpose of the Family Law Rules is to ensure fairness, save time and expense, and give appropriate resources to the case (while allocating resources to other cases), in order to manage the case, control the process, ensure timelines are kept and orders are enforced. As stipulated in Rules 1(7.1), 1(8) and 1(8.1), an order, including an order to strike pleadings, can be made at any time in the process, including the settlement conference, to promote these overarching purposes.
(2) Yes, the settlement conference judge’s order to strike out the financial portions of the Answer was a reasonable exercise of discretion. The consent order put the appellant on notice of the consequences of his failure to comply. The appellant admitted at the settlement conference that he failed to comply with the consent order that required disclosure of a carefully itemized and substantial list of financial and other documentation. These were material documents necessary to permit the matter to proceed to trial or to properly negotiate a settlement.
It is well-established that the most basic obligation in family law is the parties’ duty to disclose financial information and that this requirement is immediate, automatic, and ongoing. As a result, it should not require a court order to enforce. There were no other means open to the settlement conference judge to compel compliance with the consent order. After four years of protracted litigation and a consent order to provide specified disclosure, the appellant had still not meaningfully complied with his disclosure obligations. In these circumstances, the appellant’s failure to honour his disclosure obligations and comply with a court order can only be treated as wilful disobedience.
(3) Yes, the settlement conference judge erred in striking out the portion of the Answer which responded to the issues of custody and access. Custody is to be decided based only on the best interests of the children. It follows that the utmost caution must be used before striking a party’s pleading as it relates to custody and access. A full evidentiary record, including the participation of both parents, is generally required for the court to make a custody decision in the best interest of the children. The appellant’s participation in this regard is crucial.
Fontaine v. Canada (Attorney General), 2018 ONCA 1023
[Pepall, Hourigan and Trotter JJ.A.]
Counsel:
J. Arvay and A. Faith, for the appellant
C. Coughlan and B. Thompson, for the respondent, the Attorney General of Canada
Keywords: Civil Procedure, Appeals, Jurisdiction, Class Proceedings, Residential School Settlement, Orders, Stay Pending Appeal, Functus Officio, Procedural Fairness, A.(L.L.) v. B.(A.), [1995] 4 SCR 536, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62
FACTS:
These appeals arise in the context of the administration of the Indian Residential School Settlement Agreement (“IRSSA”). The appellant, the Chief Adjudicator for the Independent Assessment Process (“IAP”) under the IRSSA, is the subject of two directions issued by the Eastern Administrative Judge for the IRSSA, represented in these appeals by the respondent, the Attorney General of Canada. The IRSSA established the IAP, a claims adjudication process that acts as a means of providing compensation to individuals who suffered abuse at Indian residential schools. The Chief Adjudicator is responsible for ensuring the proper implementation of the IAP. The Ontario Superior Court of Justice is one of nine provincial and territorial superior courts that approved the IRSSA. The courts issued orders governing the IRSSA’s implementation (the “Implementation Orders”). The Implementation Orders established a process (the “Court Administration Protocol”) in which a “party, counsel or other entity with standing in respect of the Agreement” may file a Request for Direction (“RFD”) with the supervising courts relating to the implementation of the IRSSA.
In the context of this process, the Eastern Administrative Judge, on his own motion and without notice to any party, issued a direction (the “First Direction”) prohibiting the appellant from continuing his participation in three appeals (the “Impugned Appeals”), one before the Supreme Court of Canada and two before the British Columbia Court of Appeal. The Eastern Administrative Judge found the appellant was insubordinate and in defiance of the supervising courts. He directed the appellant to withdraw from the Impugned Appeals and remove his facta from the Supreme Court of Canada and British Columbia Court of Appeal registries. One of the Impugned Appeals was to be argued before the Supreme Court of Canada a little over a month later. The appellant filed a Notice of Appeal against the First Direction in the Ontario Court of Appeal and was granted a stay pending the hearing of the appeal by the Ontario Court of Appeal.
The Eastern Administrative Judge then issued another direction (the “Second Direction”), again on his own motion and without notice to any party. The Second Direction purported to rescind the First Direction. The Second Direction also appointed amicus curiae and directed him to bring a RFD to be considered at a hearing to be held before two other supervising judges, one from the Supreme Court of Yukon and the second from the Superior Court of Québec. The Second Direction specified five issues for the RFD to address. These issues reflected similar concerns to those that motivated the First Direction, namely, whether the appellant had taken “partisan positions before courts” without proper instructions from supervising courts or advice from the Oversight Committee, and failed to properly report his activities to the supervising courts. The appellant filed a Notice of Appeal against the Second Direction and was granted a stay pending determination of the appeal by the Court of Appeal, which further ordered that the two appeals be heard together.
ISSUES:
(1) Should the First Direction be set aside?
(2) Should the Second Direction be set aside?
(3) Should the Court of Appeal adjudicate the issues raised in the directions?
(4) Should the issues raised in the directions be dealt with through the RFD process?
HOLDING:
Appeal allowed and cross-appeal dismissed.
REASONING:
(1) Yes. Firstly, the Court of Appeal found that the appellant was owed procedural fairness. The First Direction contained findings made by a judge of the Superior Court that cast aspersions on the appellant’s professional judgment and competence. Further, the First Direction ordered him to take certain actions, failing which he was at risk of being terminated from his position. The Eastern Administrative Judge was exercising his judicial functions, and it was precisely because of this that he owed the appellant an elevated duty of procedural fairness and natural justice. It is a principle underlying the Canadian judicial system that, generally, those who will be subject to an order of the court are to be given notice of the legal proceeding and afforded the opportunity to adduce evidence and make submissions: A.(L.L.) v. B.(A.), [1995] 4 SCR 536 at para. 27. Therefore, the Court found that the Eastern Administrative Judge’s power to supervise must be exercised in a manner that conforms to the principles of natural justice and respects the rights of the appellant to procedural fairness.
Secondly, the Court of Appeal found that the First Direction was issued in a manner that denied the appellant the most basic elements of procedural fairness and natural justice and should be set aside. The appellant was afforded no opportunity to participate in the Eastern Administrative Judge’s fact-finding process, given no warning that his activities were being impugned, and was deprived of the opportunity to adduce evidence and make submissions. The appellant had a significant role in the administration of a multi-billion dollar class action settlement, and the First Direction compromised the appellant’s professional reputation and his ability to carry out his mandate as Chief Adjudicator.
(2) Yes. The Court of Appeal found that the Second Direction must also be set aside on the grounds of lack of procedural fairness and breach of natural justice. It was issued in the same manner as the First Direction, and the appellant was afforded no opportunity to make submissions or participate in the process. The Court also found that the Second Direction violated the principle of functus officio. The principle of functus officio addresses the very harm at issue in these appeals, namely that a lower court must not interfere with the jurisdiction of an appellate court: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, at paras. 75-79. The Second Direction purported to entirely rescind and replace the First Direction for the express purpose of avoiding appellate review, and the Eastern Administrative Judge held that the appeal of the First Direction was “largely moot” as a result of the first stay order made by the Court of Appeal. The Eastern Administrative Judge had no jurisdiction to make that finding. In so doing, he violated the principle of functus officio, and did so in a way that usurped the jurisdiction and function of the Court of Appeal by purporting to decide an issue under appeal.
(3) No. The Court of Appeal declined to address the substantive concerns raised by the Eastern Administrative Judge regarding the appellant’s conduct. The IRSSA provides a process for adjudication for such issues and that process should be followed. Secondly, given how the proceeding unfolded, the Court said it was not confident that there was a proper evidentiary record to determine these issues.
(4) Yes. A RFD to the supervising courts is the process mandated by the Implementation Orders for applications regarding the administration of the IRSSA. Where a
hearing is required, the administrative judges determine the jurisdiction in which the hearing should be held. Where the issues will affect all jurisdictions, the hearing may be directed to any court supervising the IRSSA. There is nothing in the Court Administration Protocol that permits the courts to initiate their own process. Instead, it is contemplated that it is the parties that bring RFDs to the courts. If the respondent has a concern about that conduct, there is nothing preventing it from bringing a RFD. Engaging in the RFD process would permit all parties to adduce evidence, make submissions, and to receive the direction of the court.
The Court of Appeal dismissed the respondent’s arguments that the supervising courts have the right to initiate their own proceedings to review the conduct of the Chief Adjudicator. The Court rejected the respondent’s argument that the Chief Adjudicator is subject to orders made by the court on its own motion. This was because any such power was limited by the terms of the IRSSA, the Implementation Orders, and the Court Administration Protocol, which provided a detailed procedure regarding the adjudication of issues that arise in the administration of the IAP. The Court also rejected the respondent’s argument that the Implementation Orders granted supervising courts the ability to provide directions regarding how the Chief Adjudicator is undertaking his duties. The Court found that the language of the Implementation Orders did not support the type of comprehensive review found in the First Direction. In addition, any limited review by the supervising courts must be carried out in a procedurally fair manner and not in the manner of issuing sweeping unilateral declarations impacting the operation of the IAP and the actions of the Chief Adjudicator.
The Court of Appeal concluded by stating that any RFD would be conducted by a different supervising judge given the Eastern Administrative Judge’s involvement and views on the issues in the directions. The Court also observed that the IRSSA was designed to give some measure of redress to victims of a dark chapter in Canadian history, and that it hoped that the parties could work together in the spirit of cooperation underlying the IRSSA to resolve any concerns regarding the appellant’s performance of his duties.
SHORT CIVIL DECISIONS
1583881 Ontario Limited v. Genesis Express and Logistics Inc., 2018 ONCA 994
[Lauwers J.A. (Motion Judge)]
Counsel:
J. Laramie, for the moving party
P. S. Chandler, for the responding party
Keywords: Civil Procedure, Representation by Lawyer, Security for Costs, Small Claims Court, Divisional Court, Rules of Civil Procedure, Rules 15, 56.01(1)(d) and 61.06
Braga v. Huang, 2018 ONCA 1000
[Lauwers J.A. (In Chambers)]
Counsel:
S. H. Huang, acting in person
M. Ditkofsky, for the respondent
Keywords: Torts, Negligence, Motor Vehicle Accidents, Civil Procedure, Persons under Disability, Litigation Guardians, Public Guardian and Trustee, Appeals, Extension of Time, Rules of Civil Procedure, r. 1.03(1), Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 6, Braga v. Huang, 2016 ONSC 6306, Braga v. Huang, 2017 ONSC 3826 Braga v. Huang, 2017 ONCA 268, Denison Mines Ltd. v. Ontario Hydro, (2001) 56 O.R. (3d) 181 (C.A.)
Ford v. Windsor (City), 2018 ONCA 992
[Lauwers J.A. (Motions Judge)]
Counsel:
M. Ford, acting in person
D. Reiter and D. Collett, for the respondent
Keywords: Civil Procedure, Costs, Appeals, Leave to Appeal, Stay Pending Appeal, Judgment Debtor Examinations, Fraudulent Conveyances, Rules of Civil Procedure, Rule 63.01
Law Society of Ontario v. Leahy, 2018 ONCA 1010
[Juriansz, Brown and Roberts JJ.A.]
Counsel:
T. E. Leahy, acting in person
S. Bieber and A. Fidler-Wener, for the respondent
Keywords: Administrative Law, Regulated Professions, Lawyer, Law Society of Ontario, Fresh Evidence, Abuse of Process, Permanent Injunctions, Law Society Act, R.S.O. 1990, c. L.8, ss. 26.1 and 26.3
Nguyen v. Tran, 2018 ONCA 985
[Lauwers J.A. (Motions Judge)]
Counsel:
B. Mignardi, for the appellant
F. M. Wood, for the respondent
Keywords: Family Law, Matrimonial Home, Civil Procedure, Appeals, Stay Pending Appeal, Irreparable Harm, Balance of Convenience, Rules of Civil Procedure, Rule 63.01, Family Law Rules, O. Reg. 114/99, Rule 38(33), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311
Lee v. Ponte, 2018 ONCA 1021
[Juriansz, Brown and Roberts JJ.A.]
Counsel:
H. Markowitz, for the appellant
P. J. Morrissey, for the respondent
Keywords: Contracts, Interpretation, Debtor-Creditor, Wills and Estates, Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, s. 7, Papamonolopoulos v. Toronto (City) Board of Education, [1987] 75 O.R. (2d) 388 (C.A.)
Papp v. Papp, 2018 ONCA 1039
[Rouleau, van Rensburg and Roberts JJ.A.]
Counsel:
M. E. Rashidy, for the appellant
O. Thomas, for the respondent
Keywords: Appeal Book Endorsement, Jurisdiction, Rules of Civil Procedure, Rule 31.10
York Region Standard Condominium Corporation No. 1279 v. 1806780 Ontario Inc., 2018 ONCA 1015
[Rouleau, van Rensburg and Roberts JJ.A.]
Counsel:
AJ. Milgrom and Joseph Salmon, for the appellant
M. Simaan, for the respondent
Keywords: Appeal Book Endorsement, Real Property, Condominium law, Disclosure, Condominium Act, 1998, S.O. 1998, c. 19, s. 133
CRIMINAL DECISIONS
R. v. Meloche, 2018 ONCA 987
[Huscroft J.A. (Motions Judge)]
Counsel:
E. Taché-Green, for the appellant
J. Sone, for the respondent
Keywords: Criminal Law, Aggravated Assault, Bail Pending Appeal, Criminal Code, s. 679(3)(c), R. v. Oland, 2017 SCC 17
R. v. Johnson-Lee, 2018 ONCA 1012
[MacPherson, Miller and Paciocco JJ.A.]
Counsel:
L. Beechener and E. Taché-Green, for the appellant
D. Finley and D. Garg, for the respondent
Keywords: Criminal Law, Second Degree Murder, Attempted Murder, Jury Instructions, Evidence, Post-Offence Conduct, Probative Value, Identity, Fresh Evidence, Judicial Discretion, Criminal Code, s. 686(1)(a)(iii), R. v. Arcangioli, [1994] 1 S.C.R. 129, R. v. S.B.1, 2018 ONCA 807, R. v. Hall, 2010 ONCA 724, R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.), Browne v. Dunn (1893), 6 R. 87 (H.L.), R. v. Khan, 2001 SCC 86
R. v. Ledinek, 2018 ONCA 1017
[Hourigan, Pardu and Harvison Young JJ.A.]
Counsel:
E. Tache-Green, for the appellant
C. Sharawy, for the respondent
Keywords: Criminal Law, Possession of Prohibited Firearm, Breach of Order Prohibiting Possession of Firearm, Sentencing, Double Counting, Totality and Parity, Pretrial Custody, Criminal Code, s. 719(3.1), R. v. Duncan, 2016 ONCA 754
R. v. M.M., 2018 ONCA 1019
[Hoy A.C.J.O., Feldman and Fairburn JJ.A.]
Counsel:
B. Greenspan and M. Biddulph, for the appellant
D. Friesen, for the respondent
Keywords: Criminal Law, Sexual Assault, Ineffective Assistance, Evidence, Credibility, R. v. G.D.B., 2000 SCC 22
R. v. Ariaratnam, 2018 ONCA 1027
[Doherty, Rouleau and van Rensburg JJ.A.]
Counsel:
C. Verner, for the appellant
H. Leibovich and D. Krick, for the respondent
Keywords: Criminal Law, Second Degree Murder, Provocation, Jury Instructions, Evidence, Post-Offence Conduct, Criminal Code, ss. 229(a) and 232(1), Canadian Charter of Rights and Freedoms, ss. 24(1) and 7, R. v. Ariaratnam, 2012 ONSC 3800, R. v. Mayuran, 2012 SCC 31, R. v. Parent, [2001] 1 S.C.R. 761, R. v. Hales, [2005] EWCA Crim. 1118, R. v. White, 2011 SCC 13, R. v. Ariaratnam, 2012 ONSC 4070
R. v. McPhee, 2018 ONCA 1016
[Hoy A.C.J.O., Rouleau and Benotto JJ.A.]
Counsel:
M. Lacy, for the appellant
N. Dennison, for the respondent
Keywords: Criminal Law, Aggravated Assault, Consent, Evidence, Credibility, Criminal Code, ss. 34, 267(b), 268 and 686(5), R. v. McGown, 2016 ONCA 575, R. v. Cunha, 2016 ONCA 491
R. v. Punia, 2018 ONCA 1022
[Feldman, MacPherson and Nordheimer JJ.A.]
Counsel:
L. Daviau, for the appellant
G. Choi, for the respondent
Keywords: Criminal Law, Aggravated Manslaughter, Sentencing, R. v. Clarke (2003) 172 O.A.C. 133
R. v. Ivall, 2018 ONCA 1026
[Strathy C.J.O., Nordheimer J.A., McKinnon J. (ad hoc)]
Counsel:
M. Lacy and D. Negandhi, for the appellant
D. Finley and J. Sone, for the respondent
Keywords: Criminal Law, Second Degree Murder, Intoxication, Provocation, Vetrovech Witness, Evidence, Hearsay, Opinion Evidence, Jury Instructions, Sentencing, Criminal Code, s. 686(1)(b)(iii), Canada Evidence Act, R.S.C., 1985, c. C-5, s. 9(2), R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Vetrovec, [1982] 1 S.C.R. 811, R. v. Biscette, [1996] 3 S.C.R. 599, R. v. Chretien, 2014 ONCA 403, R. v. Youvarajah, 2013 SCC 41, R. v. Bradshaw, 2017 SCC 35
R. v. Jones, 2018 ONCA 1032
[Hoy A.C.J.O., Feldman and Benotto JJ.A.]
Counsel:
R. C. Bottomley and M. Quenneville, for the appellant
J. Epstein, for the respondent
Keywords: Criminal Law, Fraud under $5,000, Sentencing
R. v. Martin, 2018 ONCA 1029
[Hourigan, Pardu and Harvison Young JJ.A.]
Counsel:
R. F. Goddard, for the appellant
A. Terrana, for the respondent
Keywords: Criminal Law, Dangerous Driving, Possession of a Stolen Vehicle, Attempted Robbery, Attempted Theft, Driving while Disqualified, Sentencing, Aboriginal Offenders, Gladue Factors, Criminal Code, s. 718.2(e), R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Ipeelee, 2012 SCC 13, R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.)
R. v. Veerasingam, 2018 ONCA 1031
[Watt J.A.(In Chambers)]
Counsel:
S. Ponnampaln, for the appellant
D. Krick, for the respondent
Keywords: Criminal Law, Child Luring, Communication for the Purpose of Prostitution with a Person under 16, Bail Pending Appeal, Criminal Code, ss. 172.1(4) and 286.1, Canadian Charter of Rights and Freedoms, s. 7
R. v. Couvieau, 2018 ONCA 1036
[Feldman, MacPherson and Nordheimer JJ.A.]
Counsel:
B. Snell, duty counsel
A. Hotke, for the respondent
Keywords: Appeal Book Endorsement, Criminal Law, Appeal Dismissed as Abandoned
R. v. Harlowe, 2018 ONCA 1037
[Feldman, MacPherson and Nordheimer JJ.A.]
Counsel:
J. J. J. Harlowe, in person
M. Bojanowska, for the appellant
A. Hotke, for the respondent
Keywords: Appeal Book Endorsement, Criminal Law, Sentencing, Probation, No Contact Orders, Variation of Conditions
R. v. Pottinger, 2018 ONCA 1028
[Feldman, MacPherson and Nordheimer JJ.A.]
Counsel:
No one appearing for the appellant
G. Choi, for the respondent
Keywords: Appeal Book Endorsement, Criminal Law, Dismissed as Abandoned
R. v. Barna, 2018 ONCA 1034
[Hoy A.C.J.O., Feldman and Benotto JJ.A]
Counsel:
M. A. McKee, for the appellant
T. Kozlowski, for the respondent
Keywords: Criminal Law, Laundering Proceeds of Crime, Actus Reus, Mens Rea, Sentencing, Delay, Criminal Code, ss. 462.31 and 730(1), Canadian Charter of Rights and Freedoms, s. 11(b), R v. Barna, 2014 ONSC 7558, R v. Barna, 2014 ONSC 3788, R v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, R v. Morin, [1992] 1 S.C.R. 771, R v. Daoust, 2004 SCC 6
ONTARIO REVIEW BOARD
Ghawar (Re), 2018 ONCA 1008
[Hoy A.C.J.O., Feldman and Fairburn JJ.A.]
Counsel:
J. Shanmuganathan and E. Dann, for the appellant
D. Bell, for the respondent Attorney General of Ontario
Keywords: Ontario Review Board, Criminal Law, Aggravated Assault, Failure to Stop for the Police, Breach of Probation, Not Criminally Responsible, Sentencing, Conditional Discharges, Significant Threat to the Safety of the Community, Criminal Code, Part XX.1, Sokal (Re), 2018 ONCA 113, Wall (Re), 2017 ONCA 713
Medcof (Re), 2018 ONCA 1011
[Hoy A.C.J.O., Feldman and Fairburn JJ.A.]
Counsel:
K. J. Berger, for the appellant
H. Loubert, for the respondent Attorney General of Ontario
G. S. MacKenzie, for the respondent Person in Charge of the Centre for Addiction and Mental Health
Keywords: Ontario Review Board, Criminal Law, Kidnapping, Assault, Sentencing, Conditional Discharges, Significant Threat to the Safety of the Public, Criminal Code, Part XX.1, Medcof (Re), 2018 ONCA 299
Leger (Re), 2018 ONCA 1035
[Hoy A.C.J.O., Feldman and Fairburn JJ.A.]
Counsel:
P. Fréchette, for the appellant
E. N. Rivers, for the respondent Attorney General of Ontario
M.T. Pilon, for the respondent Royal Ottawa Health Care Group
Keywords: Ontario Review Board, Criminal Law, Detention Orders, Conditional Discharges, Risk to Public Safety, Mental Health Act, R.S.O. 1990, c. M. 7, s. 15(1.1)
PROVINCIAL/REGULATORY OFFENCES DECISIONS
Ontario (Labour) v. Nugent, 2018 ONCA 1014
[Benotto J.A.]
Counsel:
D. Kleiman and I. Stewart, for the moving party
S.K. Fenton, L.E. Morgan, J. Warning and R. Stephenson, for the responding parties
Keywords: Provincial Offences, Regulatory Offences, Labour and Employment Law, Occupational Health and Safety, Appeals, Leave to Appeal, Dismissal for Charter Delay, Criminal Negligence Causing Death, Canadian Charter of Rights and Freedoms, s. 11(b), Occupational Health and Safety Act, R.S.O. 1990, c.0.1, Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131, R. v. Jordan, 2016 SCC 27, Ontario (Ministry of the Environment and Climate Change) v Sunrise Propane Energy Group Inc, 2018 ONCA 461, R. v. Picard, 2017 ONCA 692, R. v. Manasseri, 2016 ONCA 703, R. v. Jurkus, 2018 ONCA 489, R. v. Saikaley, 2017 ONCA 374
FACTS:
The respondents were miners employed by Detour Gold Corporation (“DGC”). DGC was an open-pit gold mine that used an intensive cyanide reactor to leach ore from the mined materials. On June 5, 2015, D.M. was working at the mine when he became poisoned by cyanide. He was not told about the potential for exposure to the toxic substance, nor about the protections that he needed. An emergency response team on the mining site suspected that he was having a heart attack. The emergency response team did not treat D.M for cyanide poisoning, and there was no treatment for cyanide poisoning available at the site. D.M. ultimately died from “cyanide intoxication via skin absorption”.
In May 2016, the respondents N, B, and G, as well as DCG, were charged under the Occupational Health and Safety Act (OHSA). Further, DCG, N, and the operator of the reactor were charged with criminal negligence causing death. The criminal charges were resolved on June 9, 2017, with DGC pleading guilty to criminal negligence causing death, and the criminal charges against N and the operator of the reactor being withdrawn. The OHSA charges against DGC were also withdrawn.
The OHSA charges against the respondents continued despite the criminal charges being resolved, and a four-week trial was scheduled for January 2018.
The application judge at the Ontario Court of Justice stayed the OHSA trial pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms because the delay exceeded the presumptive ceiling established in R. v. Jordan (Jordan). The Crown was unsuccessful on appeal to the Superior Court of Justice, and sought leave to the Ontario Court of Appeal.
ISSUE:
(1) Should leave to appeal be granted?
HOLDING:
Leave granted.
REASONING:
(1) Yes. Whether leave should be granted turned on two questions, as per s. 131 of the Provincial Offences Act. First, whether the proposed appeal involved a question of pure law. Second, whether the appeal was essential for the public interest or for the due administration of justice.
In Jordan, the Supreme Court of Canada proposed a new framework for determining when delay is presumptively unreasonable on applications under s. 11(b) of the Charter. Where the net delay exceeds the presumptive ceiling, as was determined by the application judge in this case, the Crown bears the onus of establishing that the delay was reasonable because of exceptional circumstances. The exceptional circumstances are generally those that are either reasonably unforeseen or reasonably unavoidable, and cannot be reasonably remedied by the Crown.
The Crown argued that the complexity of the within action gave rise to exceptional circumstances. In cases where exceptional circumstances are caused by complexity, the Court should consider whether the Crown has developed and followed a concrete plan to minimize the delay caused by the complexity.
The application judge held that the steps taken by the Crown were inadequate to meet its duty to develop and follow a concrete plan to minimize delay as required by Jordan. On appeal to the Superior Court of Justice, the judge found that the application judge applied the correct standard.
The characterization of the Crown’s conduct in developing and following a concrete plan to minimize delay was a question of pure law that was essential to the administration of justice. Accordingly, leave to appeal was granted.
Ontario (Environment and Climate Change) v. Gei, 2018 ONCA 1030
[Strathy C.J.O., Doherty and Roberts JJ.A.]
Counsel:
K.A. Clements and N.P. Adamson, for the appellant
H.A. Mattson, for the respondent
Keywords: Environmental Law, Provincial Offences, Regulatory Offences, Statutory Interpretation, Warrantless Inspections Definition of “Reasonable Belief”, Environmental Protection Act, RSO 1990, c E.19, s 1(1), 3(1), 6, 156(1), 156(2), 156.1, 157, 158, 159, 160, 161, 184(1), Provincial Offences Act, RSO 1990, c P.33, s 131, Legislation Act, 2006, SO 2006, c 21, Sched F, s 64(1), R v Debot, [1989] 2 SCR 1140, R v Kalsatos, 2016 ONCJ 252, Castonguay Blasting Ltd v Ontario (Environment), 2013 SCC 52, Dow Chemical Canada Inc (2000), 47 OR (3d) 577, Re Rockcliffe Park Realty Ltd and Director of the Ministry of the Environment et al (1976), 10 OR (2d) 1, R v Consolidated Mayburn Mines Ltd, [1998] 1 SCR 706, Ontario v Canadian Pacific Ltd, [1995] 2 SCR 1031, Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, Canada (Minister of Citizenship and Immigration v USA, 2014 FC 416, Ontario (Registrar of Alcohol and Gaming Commission) v 751809 Ontario Inc (Famous Flesh Gordon’s), 2013 ONCA 157, leave to appeal refused, [2013] SCCA No 259, 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685, Platnick v Bent, 2018 ONCA 687, R v McKinlay Transport Ltd, [1990] 1 SCR 627, R v Nicol (1997), 114 CCC (3d) 570 (Ont CA)
FACTS:
A resident reported to a by-law officer that construction debris was being hauled onto the respondent’s property where it was being burned. Shortly thereafter, the by-law officer attended at the resident’s property. He spoke with the resident and observed a large fire on the property. The by-law officer could not say for certain what was being burned, but testified that it included wood. He observed smoke coming from the fire, but did not detect any unusual colour or smell.
The by-law officer informed the Ministry of Environment (the “MOE”) of his observations. Four hours later, two MOE provincial inspection officers attended at the respondent’s property, together with the by-law officer and two police officers. One MOE officer testified that he was concerned that: waste was being transported to and being disposed of on the property, an activity regulated by the Environmental Protection Act (the “EPA”); the waste was being burned; and the compounds generated by the burning waste would be emitted into the environment via smoke.
The MOE officer did not personally see smoke or fire until he entered the respondent’s property. After the MOE officer entered the property, he observed smoke from a “fairly substantial fire” of broken wood. He identified himself and informed the respondent that he wanted to inspect the fire to determine whether or not waste was being burned, and whether it constituted a contravention of the EPA. The respondent admitted that open burning was occurring on his property and indicated that he was burning debris from a demolished barn. The respondent denied the officers access to inspect the fire and asked them to leave, which they did.
The only issue at trial was whether the MOE officer had the requisite authority under s 156(1) of the EPA to conduct a warrantless inspection. Subsection 156(1)(c) permits a MOE officer, without a warrant or court order, to inspect any place in or from which the officer “reasonably believes” a contaminant “is being, has been or may be discharged into the natural environment.”
The justice of the peace noted that a reasonable belief is not the same as reasonable and probable grounds in the criminal context and found that the MOE officer had acted on a credible and reliable tip. He noted that: the presence of a fire was confirmed by both the neighbour and the by-law officer; their observations were timely and close to the time of the inspection; and there had been a history of burning on the property. Further, he found that the information received by the MOE officer from the by-law officer was sufficient to engage the MOE officer’s warrantless inspection powers. The trial justice held that the MOE officer had authority to enter the respondent’s property pursuant to s 156(1)(c) and the respondent was convicted of hindering or obstructing an MOE officer in the performance of his duties, contrary to s 184(1) of the EPA.
The Provincial Offences Appeal Court (the “POAC”) judge held that the trial justice erred in law in interpreting the MOE officer’s right to enter the property without a warrant. Further, he held that the MOE officer’s belief that contaminants may have been discharged did not have an adequate foundation. In his view, it was not enough that the MOE officer had been told by someone else that someone may have been discharging contaminants in the air.
ISSUES:
(1) Did the POAC judge err in his articulation of the legal test for a regulatory inspection under s 156(1) of the EPA?
(2) Did the POAC judge err in finding that the MOE officer did not have authority to conduct an inspection of the respondent’s property under s 156(1) of the EPA?
HOLDING:
Appeal allowed.
REASONING:
(1) Yes, the POAC judge erred in his articulation of the legal test for a regulatory inspection under s 156(1) of the EPA.
The EPA is Ontario’s primary environmental protection statute. Its purpose is to provide protection to and conservation of the natural environment and this purpose extends beyond the natural environment and includes the protection of human health, plant and animal life and property. The EPA is a remedial statute, with protective and preventative purposes.
The Supreme Court of Canada has recognized the EPA’s expansive approach to ensure that it can effectively respond to a wide range of harmful scenarios, including those not foreseen by the EPA’s drafters. The Supreme Court of Canada has also recognized that the EPA’s effective functioning is premised upon the expertise and investigative resources of the MOE.
The EPA contains a broad range of inspection, compliance, prevention and enforcement provisions. MOE officers are given powers to make inspections, conduct searches, take samples and to seize evidence, among other powers. A MOE officer’s authority to make inspections is central to the EPA’s protective and regulatory purposes.
Section 156(1) confers authority on a MOE officer to make inspections without a warrant or court order. The scope of that authority and the circumstances in which it may be exercised are informed by the EPA’s remedial, preventative and protective purposes. The MOE officer’s authority includes a broad right to enter “any part of the natural environment.” Section 156(1) was intended to support the MOE officer’s preventative and compliance powers.
A reasonable belief is one that a reasonable person would hold, based on the existence of some objective evidence to support the belief. Significantly, the term “reasonably believes” as a pre-condition to the exercise of warrantless inspection powers is located in several of Ontario’s environmental protection statutes. Caution must be exercised in examining “reasonable grounds to believe” case law, because such a general term takes its meaning from its context.
The Supreme Court of Canada has affirmed Federal Court of Appeal jurisprudence which held that “reasonable grounds to believe” required something more than “mere suspicion,” but less than proof on the balance of probabilities. It requires “an objective basis for the belief which is based on compelling and credible information.” The Federal Court of Canada noted that the standard of reasonable grounds to believe is “novel” given that beliefs are “very open ended.”
In a somewhat recent decision, the Court of Appeal held that applying the civil standard of “balance of probabilities” instead of the statutory standard of “reasonable grounds for belief” was erroneous. The Court of Appeal noted that there “is no doubt that [the statutory standard] is a lower standard than a ‘balance of probabilities’” standard. The Court of Appeal’s recent “sextet” of “anti-SLAPP” decisions suggested that the precise requirements necessary to meet a commonly used statutory standard are driven primarily by the context in which it is applied.
The use of the word “reasonable” to qualify the standard of belief suggests that there must be an objective basis for the belief. The requirements are informed by the degree of scrutiny to which the basis of belief is subjected. This, in turn, is informed by the circumstances in which the decision is made; the procedure involved; and the ultimate purpose of the decision resulting from the application of the standard.
Under s 156(1), the reasonable belief is that of the MOE officer and accordingly invokes a subjective component which is engaged in an immediate and reactive manner. The requirement of reasonableness directs that this subjective belief must have an objective basis at the time that it is formed. The reasonableness of the belief is based on the MOE officer’s assessment of the information available at the time the power of inspection is invoked.
Having regard to the EPA’s purpose and scheme, the nature of the harm it seeks to prevent, and the need to promptly and efficiently investigate and respond to potential environmental harm, “reasonable belief” in s 156(1) describes a low threshold. The standard requires a subjective belief that is reasonable in light of the information available to the MOE officer in the circumstances. It requires the ability to articulate, after the fact, the MOE officer’s assessment of information available at the time.
The Court held that a MOE officer may make an inspection under s 156(1)(c) where: (i) there is a nexus between the purpose of the entry and the EPA’s protective, preventative, or remedial purposes, and (ii) an objective and reasonable basis for the MOE officer to believe that a contaminant was, has been, or may be discharged into the natural environment. This was found to be consistent with the purpose of the inspection power and the context in which it is exercised.
Regulatory inspections take place to promote and ensure compliance. Inspection powers are based on “the common sense assumption that the threat of unannounced inspection may be the most effective way to induce compliance.” Regulatory inspections necessarily take place before there are grounds to believe an offence has been committed because they focus on compliance.
Inspection is a baseline step through which the EPA monitors activities. Based on inspections, remedial measures, compliance orders or other regulatory mechanisms may be engaged. A lower standard gives effect to the precautionary principles affirmed by the Supreme Court of Canada and provides flexibility and responsiveness to situations “on the ground” that may require prompt action, beginning with inspection. It also recognizes that the expertise for assessing potential environmental effects lies with the MOE.
Given the harm caused by the release of contaminants and the potential damage caused by a failure to remediate, MOE inspectors must be able to act swiftly and effectively. A standard of “reasonable belief,” rather than the more onerous standard of “reasonable and probable grounds” engaged in other EPA provisions, allows for a less time-consuming and intrusive fact-finding process, given the need for prompt and effective action.
(2) Yes, the POAC judge erred in finding that the MOE officer did not have authority to conduct an inspection of the respondent’s property under s 156(1) of the EPA. Neither the POAC judge nor the trial justice accurately expressed the test for reasonable belief under s 156(1). The POAC judge’s analysis is not entirely clear from his brief reasons. The trial justice set the bar too high when he adopted and applied an interpretation from the criminal context.
In this case, the MOE officer exercised his inspection powers on the basis of a report made by the by-law officer that very day, the by-law officer’s own observations of the property and a report from a neighbour. The Court held that the information received by the MOE officer prior to his attempt to enter the respondent’s property was sufficient to support the existence of a reasonable belief that a contaminant was being or had been discharged into the natural environment as a predicate to the exercise of the MOE officer’s s 156(1) inspection powers.
The information was communicated to the MOE officer by the by-law officer, a person in a position of authority with responsibility for such matters. The information was objective. The neighbour was identifiable and had communicated directly with the by-law officer. The by-law officer’s information included direct personal observations of the fire. The information was probative of the discharge of a contaminant into the natural environment and the purpose of the MOE officer’s proposed inspection had a clear nexus to the purposes of the EPA. The MOE officer’s testimony established a reasonable objective basis for his belief and permits the conclusion that his belief was reasonable. Therefore, the MOE officer met the standard to engage his authority to inspect the respondent’s property under s 156(1)(c).
The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.