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Good afternoon,

Following are the summaries for this week’s civil decisions of the Court of Appeal for Ontario.

In Stegenga v Economical Mutual Insurance Company, 2019 ONCA 615, the Court had to interpret s. 280 of the Insurance Act. This section relates to the administration of Statutory Accident Benefits under the License Appeal Tribunal. The appellant was seriously injured in a MVA and felt the insurance company acted in bad faith while administering the policy and so the appellant filed a statement of claim to commence a lawsuit. The motion judge struck the statement of claim finding that the dispute fell under the jurisdiction of the Licence Appeal Tribunal and so was statute barred in the Ontario courts. On appeal, the Court interpreted the Act similarly to the motion judge and dismissed the appeal.

In Manastersky v. Royal Bank of Canada, 2019 ONCA 609, the Court found that the trial judge erred in finding that the terminated employee was entitled to damages in respect of the “lost opportunity” to earn additional entitlements under the profit-sharing plan during the period of reasonable notice. The Court emphasized that the parties were in agreement that the terminated employee had already been fully paid for all entitlements owed under the existing plan. Further, the terms of the plan did not place the employer under any obligation to set up a new plan once the existing plan was phased out, or to grant the terminated employee any entitlement rights under such a prospective plan. As such, the Court allowed the appeal and reversed the trial judge’s award of damages for this “lost opportunity.”

In Alalouf v. Sumar, 2019 ONCA 611, the Court affirmed the principle that in family litigation, a highly deferential standard of review is owed to the factual findings of the trial judge. In applying this principle, the Court agreed with the trial judge that her findings of credibility impacted how she resolved most of the issues.

In Monk v. Farmers’ Mutual Insurance Company (Lindsay), 2019 ONCA 616, the major issue considered was the law pertaining to forfeiture and relief from forfeiture in the context of an insurance policy. The Court noted that the power to grant relief from forfeiture is a discretionary one. An appellate court is not at liberty to substitute its own discretion for that already exercised by the judge of first instance. The Court reminded us that the test to apply in assessing relief from forfeiture is the three-element test articulated in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490 and Liscumb v. Provenzano (1985), 51 O.R. (2d) 129, affirmed (1986), 55 O.R. (2d) 404n (C.A.), colloquially referred to as the Saskatchewan River/Liscumb test. The Court noted that where relief from forfeiture is available, an insured must show: (1) that his or her conduct was reasonable; (2) that the breach was not grave; and (3) that there is a disparity between the value of the property forfeited and the damage caused by the breach. In this case, the Court found that the appellant unreasonably delayed reporting the loss to the insurer, attempted to mislead the insurer, and that her breach disproportionately burdened the insurer in considering the necessary steps to take. As such, the Court held that the appellant was not entitled to relief from forfeiture. The Court also considered a number of other issues in this case, including appellate deference to credibility findings made at trial.

Other topics covered this week included a custody and access dispute, an Order regarding a commercial lease, and wrongful dismissal.

Have a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

2214416 Ontario Inc. v. Peel Standard Condominium Corporation No. 937 (Brisdale Plaza Inc.), 2019 ONCA 610

Keywords: Real Property, Commercial Lease, Exclusive Business Use, Evidence, Damages, Order, Condominium Act, 1998, S.O. 1998, c. 19, s.135, Courts of Justice Act, R.S.O. 1990, c. C.34, ss. 134(1)(a) and (c)

Manastersky v. Royal Bank of Canada, 2019 ONCA 609

Keywords: Contract Law, Employment Law, Termination Without Cause, Constructive Dismissal, Breach Of Contract, Damages, Common Law Right To Damages, Reasonable Notice, Incentive Plan Compensation, Profit-Sharing Plans, Carried Interest Plans, Taggart v. Canada Life Assurance Co., [2006] O.J. No. 310 (C.A.), Lin v. Ontario Teachers’ Pension Plan Board, 2016 ONCA 619, Paquette v. TeraGo Networks Inc., 2016 ONCA 618

Alalouf v. Sumar, 2019 ONCA 611

Keywords: Financial Issues, Breakdown of Marriage, Equalization of Net Family Property, Cottage Property, Leasehold Interest, First Nation Reserve, Post Separation Adjustments, Retroactive Spousal Support, Child Support, Jurisdiction, Credibility, Indian Act, R.S.C. 1985, c. I-5, Family Law Act, R.S.O. 1990, c. F.3, Constitution Act, 1867, Choquette v. Choquette, 2019 ONCA 306, Johanson v. Hinde, 2016 ONCA 430, Hersey v. Hersey, 2016 ONCA 494, 87 R.F.L. (7th) 272, Syrette v. Syrette, 2012 ONCA 693, 6 C.B.R. (6th) 324

Aloe v. Aloe Estate, 2019 ONCA 613

Keywords: Minutes of Settlement, Property, Final Order, Contempt, Conservation Easement, Environmental Issues, Deed Transfer, Aloe-Gunnell v. Aloe et al., 2016 ONSC 2576

English v. Manulife Financial Corporation, 2019 ONCA 612

Keywords: Employment Law, Wrongful Dismissal, Resignation, Civil Procedure, Summary Judgment, Arnone v. Best Theratronics Ltd., 2015 ONCA 63, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 1.04(1.1)

Khan v. Ahmad, 2019 ONCA 614

Keywords: Family Law, Sole Custody, Access, Evidence, Office of the Children’s Lawyer, Children’s Best Interest, Chapman v. Chapman (2001), 141 O.A.C. 389 (C.A.), Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.)

Monk v. Farmers’ Mutual Insurance Company (Lindsay), 2019 ONCA 616

Keywords: Insurance Law, Summary Judgment, Forfeiture, Relief From Forfeiture, Damages, Costs, Reasonable Expectations Of Costs, Standard Of Review, Findings Of Credibility, Limitations Act, 2002, Insurance Act, R.S.O. 1990, c. I.8, s. 129, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, R. v. Dinardo, 2008 SCC 24, Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., [1989] 2 S.C.R. 778, Cervo v. State Farm Mutual Automobile Insurance Co. (2006), 83 O.R. (3d) 205 (C.A.), Kozel v. The Personal Insurance Company, 2014 ONCA 130, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Liscumb v. Provenzano (1985), 51 O.R. (2d) 129, affirmed (1986), 55 O.R. (2d) 404n (C.A.)

Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615

Keywords: Insurance, Motor-Vehicle Accidents, Statutory Accident Benefits, Statutory Interpretation, Jurisdiction of the Superior Court, Breach of Duty of Good Faith, Insurance Act, RSO 1990, c. I. 8, Weber v Ontario Hydro [1995] 2 SCR 929, Arsenault v Dumfries Mutual Insurance Co. (2002), 57 OR (3d) 625 (CA), Whiten v Pilot Insurance Co,, 2002 SCC 18, Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70

Short Civil Decisions

Asghar v. Toronto Police Services Board (Costs) , 2019 ONCA 603

Keywords: Costs Order, No Costs Awarded

Hurst v. Hancock , 2019 ONCA 606

Keywords: Addendum, Summary Judgment

Newell v. Sax , 2019 ONCA 608

Keywords: Costs Endorsement, Costs Assessment, Proportionality, Reasonable Apprehension of Bias

Criminal Decisions

R. v. Bulhosen , 2019 ONCA 600

Keywords: Criminal Law, Constitutional Law, Drug Trafficking, Drug Importation, Conspiracy To Import Cocaine, Conspiracy To Traffic In Cocaine, Right To Be Tried Within A Reasonable Time, Exceptional Circumstances, Presumptive Ceiling, Length Of Delay, Standard Of Review, Correctness, Dawson Applications, Canadian Charter of Rights and Freedoms, s. 11(b), Criminal Code, s. 540(7) R. v. Jordan, 2016 SCC 27, R. v. Dawson (1998), 39 O.R. (3d) 436 (C.A.), R. v. Cody, 2017 SCC 31, R. v. Schertzer, 2009 ONCA 742

R. v. McGean , 2019 ONCA 604

Keywords: Criminal Law, Drug Offences, Weapons Offences, Drug Trafficking, Conspiracy To Traffic Heroin, Conspiracy To Traffic Cocaine, Hearsay Rule, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 2(1) R. v. Carter, [1982] 1 S.C.R. 938, R. v. J.F., 2013 SCC 12, R. v. Villaroman, 2016 SCC 33

R. v. Box , 2019 ONCA 601

Keywords: Appeal Book Endorsement, Criminal Law, Prohibition Order, Credibility, Bad Character Evidence, Sentencing, R. v. Boudreault, 2018 SCC 58

R. v. Young , 2019 ONCA 605

Keywords: Appeal Book Endorsement, Criminal Law, Credibility, Collusion, Legal Aid Certificate

R. v. Dhaliwal , 2019 ONCA 617

Keywords: Criminal Law, Addendum, Sentencing, Firearms Offence, Threat to Bodily Harm

Ontario Review Board

Ali (Re) , 2019 ONCA 602

Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Mental Disorder, Significant Threat, Canadian Forces, Attempted Murder, Assault Causing Bodily Harm, Assault With a Weapon, Carrying a Weapon for the Purpose of Committing an Offence, Psychiatric Evidence, Prohibition Against Communication with any Military personnel, Indirect Supervision, Inquisitorial Function, Public Safety, Treatment, Detained Person, No Contact, Condition, Compliance, Criminal Code, ss. 672.11, 672.54


CIVIL DECISIONS

2214416 Ontario Inc. v. Peel Standard Condominium Corporation No. 937 (Brisdale Plaza Inc.), 2019 ONCA 610

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

C. A. Dirks and R. Fielding, for the appellant, Peel Standard Condominium Corporation No. 937, also known as Brisdale Plaza Inc.

B. V. Hanuka, for the appellant, Royal Pann

H. S. Makkar, for the respondent

Keywords: Real Property, Commercial Lease, Exclusive Business Use, Evidence, Damages, Order, Condominium Act, 1998, S.O. 1998, c. 19, s.135, Courts of Justice Act, R.S.O. 1990, c. C.34, ss. 134(1)(a) and (c)

Facts:

Pursuant to s.135 of the Condominium Act, 1998 (the “Act”), the application judge granted the relief in paras. 4 and 5 of his order dated December 7, 2018 (the “Order”) on the basis that at the time of the February 2018 hearing the respondent had a pending sale of its two units and the proposed purchaser of the units intended to operate a restaurant. The appellant, Royal Paan, sought leave to adduce fresh evidence, which disclosed that the sale of the respondent’s two units did not proceed and later in 2018, the respondent leased the two units to other companies under separate leases that now run for 5 year terms. This new evidence changed the Order of the application judge.

Issues:
  1. Should the fresh evidence be admitted?
  2. Should the Order of the application judge be set aside?
Holding:

 Appeal allowed in part.

Reasoning:

 (1) Yes. Given the reliability of the fresh evidence, its cogency to the operation of the discretionary relief granted by the application judge in his Order, and the unavailability of that evidence at the time of the hearing, the Court granted leave to admit that fresh evidence.

(2) The Court set aside paragraphs 4, 5, 6, 7 and 8 of the Order. In light of the fresh evidence, the Court held that there was no realistic prospect that the respondent would be able to use its two units for a restaurant within the period of Exclusive Business Use stipulated in the Declaration. As a result, the equitable relief granted to the respondent by paras. 4 and 5 of the Order provided no practical benefit to it. The Court held that had the application judge had the facts that were disclosed by the fresh evidence, the relief in paras. 4 and 5 would not have been granted. Therefore, the Court set aside paras. 4 and 5 of the Order.

The Court set aside para. 6 of the Order because Peel Standard Condominium Corporation No.937’s (“PSCC 937”) failure to produce a record of Exclusive Business Uses did not lead to any damages resulting from the failed sale of the units. No basis remained for a damage claim by the respondent against PSCC 937.

Para. 7 of the Order reserved the determination of the costs below to the judge hearing the assessment. Since the Court set aside para. 6 directing the assessment, it fell to the court of appeal to determine both the costs below and the costs of appeal. In light of all the circumstances and the outcome, the Court conclude that this was an appropriate case where there should be no order as to costs and each party should absorb its costs incurred below and on appeal.

Manastersky v. Royal Bank of Canada, 2019 ONCA 609

[Feldman, Brown and Miller JJ.A.]

Counsel:

J. Devereux and G. Mens, for the appellant

N. Shapiro, for the respondent

Keywords: Contract Law, Employment Law, Termination Without Cause, Constructive Dismissal, Breach Of Contract, Damages, Common Law Right To Damages, Reasonable Notice, Incentive Plan Compensation, Profit-Sharing Plans, Carried Interest Plans, Taggart v. Canada Life Assurance Co., [2006] O.J. No. 310 (C.A.), Lin v. Ontario Teachers’ Pension Plan Board, 2016 ONCA 619, Paquette v. TeraGo Networks Inc., 2016 ONCA 618

Facts:

The respondent was employed by the appellant. At trial, the appellant conceded it had terminated the employment of the respondent without cause. The trial judge found that the respondent was entitled to 18 months’ notice upon termination.

During his employment, the respondent participated in profit-sharing plans called “carried interest plans”. In the last decade of his employment before his termination, the respondent participated in the Mezzanine Carried Interest Plan (the “Mezzanine CIP”).

All full-time employees of the appellant were eligible to participate in the Mezzanine CIP, however no employee was entitled as of right to participate. The decision as to which employees would participate lay in the hands of a management committee. When a person became entitled to participate, the committee would issue the participant an allocation letter that established the participant’s “points” in the Mezzanine CIP. These points represented the participant’s share of the portion of the aggregate profits and losses with respect to that portfolio.

The respondent was allocated points for two separate portfolios (“Fund 1” and “Fund 2”). There is no dispute that at the time of his termination, the respondent’s points were fully vested. As such, when the employment of a participant was terminated without cause, the Mezzanine Plan provided that the participant continued as a participant, retaining “in all Portfolios with respect to which he or she has Points, all rights represented by his or her Vested Points.”

In mid-2013, the respondent was advised that the appellant was reconsidering its continued reinvestment in the Mezzanine Fund. On February 12, 2014, the appellant informed the respondent that his employment would end effective February 14, 2014. The appellant’s decision regarding the Mezzanine Fund appears to have been independent of its decision to terminate the respondent’s employment.  The termination letter offered to pay the respondent his base salary, bonus payments and benefit entitlements for a period of 13 months.

The respondent did not accept the termination offer, and litigation ensued. In June 2014, the appellant sought to terminate the Mezzanine CIP and ensure no new investments were made as contemplated by the Plan. Over the course of 2015 and 2016, as the portfolios within the Mezzanine Fund were wound-down, the appellant paid the respondent a total of $5,434,309, representing the calculation of his entitlement under the Mezzanine CIP. There is no dispute that the appellant paid the respondent the full amount he was entitled to in respect of his participation in Funds 1 and 2.

When the respondent’s employment was terminated, the Mezzanine CIP comprised only Funds 1 and 2. However, the trial judge held that the respondent was entitled to an amount beyond the full share of profits he had been paid in respect of Funds 1 and 2. The trial judge awarded the respondent $953,392.50 “in respect of the lost opportunity to earn entitlements under the Mezzanine CIP during the 18 month reasonable notice period.”

At trial, the appellant also submitted that the Canada-U.S. dollar exchange rate in place at the time of the maturity of an investment in the Funds (the “Exit Rate”) should be applied. The respondent, on the other hand, contended that the exchange rate as of the date of the investment should be used to calculate the value. The trial judge accepted the conversion methodology of the respondent.

Issues:

(1) Did the trial judge err in awarding the respondent damages in respect of the “lost opportunity to earn entitlements” under the Mezzanine CIP?

(2) Did the trial judge err in applying the appropriate foreign exchange rate to value U.S. dollar investments made in the Mezzanine Fund?

Holding:

Appeal allowed in part.

Reasoning:

(1) Did the trial judge err in awarding the respondent damages in respect of the “lost opportunity to earn entitlements” under the Mezzanine CIP?

Yes. The appellant submitted that since the respondent received all the profits he was entitled to in respect of Funds 1 and 2, and as under the terms of the Mezzanine CIP, the managing committee was under no obligation to start up a new Fund 3, the respondent did not lose any opportunity to earn further entitlements.

The parties agreed that the applicable legal standards are those set out in three decisions: Taggart v. Canada Life Assurance Co., [2006] O.J. No. 310 (C.A.); Lin v. Ontario Teachers’ Pension Plan Board, 2016 ONCA 619; and Paquette v. TeraGo Networks Inc., 2016 ONCA 618.

The analysis in each of these decisions proceeded from the general principle that where an employer terminates an employee without cause, the employer is liable for damages for breach of contract, measured by the loss of wages or salary and other benefits that would have been earned during the reasonable notice period.

When considering a claim by a terminated employee in respect of benefits payable under incentive plans during the period of reasonable notice, Taggart describes the two-step inquiry a court should undertake. First, the court must consider the employee’s common law right to damages for breach of contract. Second, the court must then consider whether the terms of the plan alter or remove a common law right.

The appellant submitted that the trial judge incorrectly framed the first question of the Taggart analysis. Instead of asking what the respondent would have earned under the Mezzanine CIP had the appellant not breached the contract, the trial judge wrongfully concluded that the respondent was presumptively entitled to common law damages in respect of the Mezzanine CIP merely because the payments under that Plan historically had constituted a significant form of compensation to him.

The Court agreed with the appellant’s submission. The Court held that a finding that some form of incentive compensation being an integral part of an employee’s compensation package does not exhaust the inquiry under the first step of the Taggart analysis. The Court emphasized that the critical inquiry concerns the terms of the incentive compensation plan. The trial judge failed to examine the terms of the Mezzanine CIP and thereby made an error.

The Court reiterated that there is no dispute that the respondent was paid in full for his entitlements under Funds 1 and 2. Further, the provisions of the Plan, coupled with the committee’s decision to terminate the Plan, indicated that the respondent was not entitled to any common law damages in respect of the Mezzanine CIP beyond those relating to his vested points for Funds 1 and 2.

The trial judge’s finding of “lost opportunity” suggests that the respondent was entitled to an allocation of points in respect of some new Fund 3 that the appellant should have set up. The Court reiterated that the appellant was under no such obligation. While the trial judge did not make such an express finding, he reached the same position by resorting to the concept of constructive dismissal.

However, by terminating the Mezzanine CIP, the appellant was not evincing an intention not to be bound by the employment contract. Instead, it was exercising a fully disclosed right it had under that contract of employment. Consequently, there is no evidentiary support for the trial judge’s finding of a constructive dismissal.

(2) Did the trial judge err in applying the appropriate foreign exchange rate to value U.S. dollar investments made in the Mezzanine Fund?

No. In reaching its decision, the Court emphasized the fact that the Mezzanine CIP was silent on the foreign exchange translation methodology. Further, the appellant’s own witnesses were unanimously in agreement that the Mezzanine CIP prescribed no foreign exchange methodology.

The Court found that the trial judge’s conclusion that it was not fair or appropriate for the appellant, after the fact, to seek to apply a methodology that had the effect of exposing participants to significant foreign exchange risk was firmly supported by the evidence.

By imposing the Exit Rate methodology, the appellant in effect was amending the CIP in a material way, as well as departing from the methodology it used in making payments out under an earlier plan. Article 9.2.1 of the Mezzanine CIP required the written consent of a participant to any change that “may materially and adversely affect the determination of any amount to be paid to any Participant in respect of any Investment Period which has already commenced.” The Court found that the respondent did not consent to using the Exit Rate methodology. Therefore, the trial judge’s conclusion on this point found firm support in the language of the Mezzanine CIP.

Alalouf v. Sumar, 2019 ONCA 611

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

A. Lee, for the appellant

S. E. Deliscar, for the respondent

Keywords: Financial Issues, Breakdown of Marriage, Equalization of Net Family Property, Cottage Property, Leasehold Interest, First Nation Reserve, Post Separation Adjustments, Retroactive Spousal Support, Child Support, Jurisdiction, Credibility, Indian Act, R.S.C. 1985, c. I-5, Family Law Act, R.S.O. 1990, c. F.3, Constitution Act, 1867, Choquette v. Choquette, 2019 ONCA 306, Johanson v. Hinde, 2016 ONCA 430, Hersey v. Hersey, 2016 ONCA 494, 87 R.F.L. (7th) 272, Syrette v. Syrette, 2012 ONCA 693, 6 C.B.R. (6th) 324

Facts:

After the breakdown of the parties’ 15-year cohabitation/14-year marriage, they were able to settle the parenting issues relating to their children. However, the parties went to trial over issues regarding the equalization of net family property, post-separation adjustments, and ongoing and retroactive spousal and child support.

At trial, the judge declined to make an order relating to a cottage property situated on Saugeen First Nation land pursuant to a land lease. The trial judge held that because the land is situated on a First Nation reserve, it is governed by the provisions of the Indian Act, R.S.C. 1985, c. I-5, and therefore she had no jurisdiction to make an order in relation to this land under s. 9 of the Family Law Act, R.S.O. 1990, c. F.3. The occupancy, possession, ownership, and disposition of reserve lands governed by the Indian Act lie at the core of federal jurisdiction over “lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867. The trial judge was constrained further in her ability to deal with this issue as neither the original lease of land to the vendors, nor the assignment of the lease to the parties, were produced at trial.

Regarding payments on a joint line of credit, the father gave evidence that, from 2010 to 2017, he made all payments on that line of credit in the total amount of $16,000. However, the trial judge found that she had “no way of verifying that figure nor is it clear what portion related to the joint debt and what portion related to the debts in his own name solely.”

The trial judge did not deduct notional disposition costs of the mother’s RRSP at the date of marriage and the valuation date, and the notional disposition costs of the father’s RRSP at the valuation date. The trial judge came to this decision because neither party provided evidence regarding any costs of disposition with respect to the two RRSP accounts, nor were there entries to this effect on either party’s NFP statement.

The father had lost his job in 2016 where he was earning a salary of $190,000 per annum. The father’s credibility was an issue, as he had told the mother that he received two weeks of severance when he had actually received 20 weeks. The trial judge held that the father was intentionally underemployed or unemployed during the relevant periods of time and that he was not particularly motivated to find new employment that matched what he was capable of earning.

After the evidentiary stage of the trial ended, the father attempted to admit electronic evidence of his new employment during the final submissions stage. The offer letter provided that he was to be starting the new job the following week at a salary of 70,000 per annum. The mother then disputed its authenticity of the new employment. The trial judge held the letter could not formally be admitted into evidence. Further, even if the father was employed at a pay rate of $70,000, the trial judge stated that he would still be underemployed within the meaning of section 19 of the Child Support Guidelines.

On the issue of spousal support, the trial judge held that the father would not have been able to build his twenty-year e-commerce career without the mother having been home with the children. By assuming the household responsibilities that she did, the mother facilitated the advancement of the father’s career at the expense of her own and as a result has suffered economic hardship. She is therefore unable to maintain anything approaching the lifestyle the parties shared during the marriage without spousal support. The trial judge therefore ordered spousal support on both a compensatory and non-compensatory basis, and outlined the basis for the quantum and duration of support. The trial judge declined to set a date upon which spousal support could be reviewed, leaving it to the parties to trigger a motion to vary based on material change of circumstances. Further, the trial judge held that the father should pay $300 per month for the children’s horseback riding lessons as a s. 7 expense under the Child Support Guidelines.

The trial judge also made specific credibility findings. In general, the trial judge found the mother to be a consistent and credible witness. However, she expressed concerns about the father’s credibility. The examples listed by the trial judge included that she strongly suspected the father altered the date on a Scotiabank Line of Credit statement, she did not accept the father’s evidence concerning how the balance of this line of credit was retired upon the sale of the matrimonial home, and that the father’s sworn financial statement was “not accurate” in relation to a newly acquired job and he “misstated his income” in his updated financial statement. Overall, the trial judge concluded that the father had not been forthright with Ms. Alalouf, or with the Court, and that where the testimony of Ms. Alalouf and the father differed, the testimony of Ms. Alalouf is more credible.

The father appealed nearly all orders made by the trial judge and submitted that the trial judge erred in finding that she had no jurisdiction to deal with the cottage property.

Issues:

Whether the trial judge erred in her findings regarding:

  1. Credibility;
  2. Interest in the Cottage Property;
  3. Payments on Joint Line of Credit;
  4. Failure to Deduct Notional Disposition Costs from RRSP Values;
  5. Income Imputed for Support Purposes;
  6. Refusing to Admit Evidence of New Employment;
  7. Spousal Support;
  8. Section 7 Expenses.
Holding:

Appeal dismissed.

Reasoning:

Credibility

The trial judge’s credibility findings impacted her explanation of how she resolved may of the issues. The Court affirmed that a highly deferential standard of review is owed to the factual findings of a trial judge in family litigation and held that the trial judge’s credibility findings followed in the Court of Appeal.

Interest in the Cottage Property

The Court declined to rule on the constitutional issue. The Court dismissed this ground of appeal and endorsed the trial judge’s suggestion that the parties find a way to agree on how to deal with such interest as they may have in the property. The Court held that it was unnecessary to address the correctness of the trial judge’s conclusion, as the factual record before the court was completely inadequate. Without the original lease or the assignment, the Court is unable to determine the true nature of the parties’ interests in this property, whether any such interest is assignable, and what the value of any such interest may be.

Payments on Joint Line of Credit

The Court held that bearing in mind the trial judge’s concerns about the father’s credibility, there was no basis to disturb her finding on this issue and dismissed this ground of appeal.

Failure to Deduct Notional Disposition Costs from RRSP Values

The father contended that, had the trial judge made these deductions, the equalization payment (before post separation adjustments) owed to him would have increased. However, the Court held that the motion judge made no error in her approach to this issue and dismissed the ground of appeal.

Income Imputed for Support Purposes

The Court held there was an evidentiary basis to support the trial judge’s conclusions. Further, the findings were reasonable and reflected no palpable or overriding error, so the dismissed this ground of appeal.

Refusing to Admit Evidence of New Employment

The father submitted that the trial judge erred by not permitting him to file evidence regarding employment he had allegedly just obtained. The evidentiary stage of the trial had ended on January 25, 2017 and on May 9, 2017 the parties made final submissions. The father had failed to provide advance notice of this development to the mother, he made no hard copies of the offer letter and instead he relied upon an electronic copy on his computer. The Court therefore held that this ground of appeal should be dismissed as there is no basis to conclude that the trial judge improperly exercised her discretion in dealing with this evidence. The father offered this letter, not previously disclosed, at the last possible moment, and in light of the trial judge’s findings about the father’s conduct during the litigation, her decision was justified.

Spousal Support

The father submitted that the trial judge erred in ordering indefinite spousal support be paid to the mother, especially when the Spousal Support Advisory Guidelines provided a duration range of between 7.5 years and 15 years from the date of separation. Further, the father stated that the mother did not give evidence that she assisted in any material way in advancing the father’s career and that by the time of trial, the mother was earning $30,000 per annum and was close to being self-sufficient at a reasonable level. The Court however found no error in the trial judge’s approach and dismissed the ground of appeal.

Section 7 Expenses

The father submits that the trial judge erred in ordering that the father pay $300 per month for the children’s horseback riding lessons as a s. 7 expense, as the mother could reasonably have covered this expense given her income and the quantum of child support and spousal support ordered by the trial judge. While at the hearing of the appeal, this was no longer an ongoing expense the Court still held that there was no basis to interfere with the trial judge’s decision. The trial judge applied the correct principles in determining that the expenses were necessary and reasonable.

Aloe v. Aloe Estate, 2019 ONCA 613

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

H. L. Shankman, for the appellant

W. R. Scott, for the respondents

Keywords: Minutes of Settlement, Property, Final Order, Contempt, Conservation Easement, Environmental Issues, Deed Transfer, Aloe-Gunnell v. Aloe et al., 2016 ONSC 2576

Facts:

The appellant argues that the motion judge made four main errors when dismissing her motion to set aside the implementation of Minutes of Settlement regarding a property in Highland Falls, New York that were reduced to a final order. Further, the appellant appeals for an order finding the respondents in contempt; and granting the respondents’ cross-motion for relief permitting implementation of the terms of the settlement.

The Final Order provided that the appellant was to acquire the western portion of the property, subject to a conservation easement in favour of the purchaser of the eastern portion of the property.

Issues:

(1) Whether the motion judge erred by dismissing the appellant’s motion on the basis that leave was required for her to bring the motion and, in the circumstances, he would not grant leave;

(2) Whether the motion judge erred in rejecting the appellant’s argument that the Final Order should be set aside because the portion of the property that she is to acquire suffers from environmental clean-up issues;

(3) Whether the motion judge erred in granting the respondents’ cross-motion for approval of the Deed Transfer whereby the western portion of the property will be transferred to her;

(4) Whether the motion judge erred in granting the respondents’ cross-motion for approval of the Conservation Easement.

Holding:

Appeal dismissed.

Reasoning:

(1) Whether the motion judge erred by dismissing her motion on the basis that leave was required for her to bring the motion and, in the circumstances, he would not grant leave.

The appellant had been found in contempt of the Final Order on two occasions. However, the appellant argued that in a hand-written endorsement, the motion judge had granted her leave and that the motion judge wrote that the appellant’s consent to relieving counsel for the respondents of his undertaking to re-zone the property was “without prejudice to [her] ability to bring a motion arguing that the settlement ought to be varied or set aside on other grounds (leave granted).”

However, the Court held that this is not a basis for interfering with the motion judge’s order. To the extent that he previously granted leave, he did not do so with respect to the appellant’s motion seeking an order finding the respondents in contempt. Further, the several reasons why the motion judge denied leave were also sound reasons for dismissing the motion.

(2) Whether the motion judge erred in rejecting the appellant’s argument that the Final Order should be set aside because the portion of the property that she is to acquire suffers from environmental clean-up issues.

The motion judge came to his conclusion on basis that the appellant was aware of the dumping at the relevant times and regardless, the dumping issue would have been discoverable with due diligence. This conclusion was based, in part, on the appellant’s concession that dumping was taking place on the land for years.

The Court held that the appellant had not satisfied it that she did not make that concession and that the record indicates that the appellant had exercised considerable diligence in relation to all matters affecting the property. Therefore, there was no basis to interfere with the motion judge’s rejection of her argument that the Final Order should be set aside because of dumping on the property.

(3) Whether the motion judge erred in granting the respondents’ cross-motion for approval of the Deed Transfer whereby the western portion of the property will be transferred to her.

The appellant stated that the Deed Transfer incorrectly creates an easement on the south boundary line of the property that was not contemplated by the Final Order. However, the motion judge found that more than a year before he heard the motion, the easement on the south boundary line of the property was contemplated by the Final Order in Aloe-Gunnell v. Aloe et al., 2016 ONSC 2576. Therefore, the motion judge was correct that it was not open to the appellant to re-argue this issue.

(4) Whether the motion judge erred in granting the respondents’ cross-motion for approval of the Conservation Easement.

The appellant argued that the conservation easement is substantially more restrictive than the terms of the easement that she had agreed to at the time of the settlement and does not comply with the Final Order. Further, the appellant states that she did not appreciate that the Conservation Easement would restrict her from developing the .75 acre “no cut” area of the property she will acquire. The motion judge found that when the parties negotiated the settlement, they had an affidavit that described the conservation easement with which a portion of the property to be acquired by the appellant would be burdened, and the Conservation Easement was consistent with the conservation easement described in that affidavit. The Court held that there is no basis to interfere with the motion judge’s finding.

English v. Manulife Financial Corporation, 2019 ONCA 612

[Lauwers, Benotto and Brown JJ.A.]

Counsel:

A. Zeilikman, for the appellant

G. Jermane, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Resignation, Civil Procedure, Summary Judgment, Arnone v. Best Theratronics Ltd., 2015 ONCA 63, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 1.04(1.1)

Facts:

Elisabeth English had worked as a Senior Customer Relationship Manager for Standard Life Insurance (“Standard Life”) for nine years when it was acquired by Manulife Financial Corporation (“Manulife”). Manulife announced the implementation of a new computer system. Upon learning this news, the appellant, who was then in her early 60s, contemplated early retirement to eliminate the need to train on a new system near the end of her career. She gave her supervisor a letter indicating that she would retire at the end of the year. He said that that if she changed her mind, she could rescind the notice of retirement. A few weeks later, Manulife announced that it was no longer converting to the new computer system, so the appellant decided to stay. Manulife took the position that she had retired. The appellant sued for wrongful dismissal.

The motion judge framed the issue as whether an employee who as resigned her position of employment by way of a notice of retirement may later rescind her written notice of retirement. After analyzing two divergent lines of jurisprudence dealing with the ability of an employee to rescind a notice of resignation, he concluded that the appellant’s notice of retirement was accepted by Manulife, and Manulife did not need to show that it had relied on the notice to its detriment. On this basis, the motion judge held that the appellant had in fact resigned, and therefore had not been wrongfully dismissed.

Issue:

Did the appellant’s September 22, 2016 letter constitute a “clear and unequivocal” resignation?

Holding:

Appeal allowed.

Reasoning:

When the appellant gave her supervisor her retirement letter, she told him that she was not entirely sure she wanted to retire. The impetus for her letter was the computer conversion. She was told that she could change her mind and her supervisor admitted this fact under oath during his examination for discovery. Within three weeks of submitting her letter, the computer conversion was cancelled. The day after the cancellation was announced, the appellant told her supervisor that she had changed her mind. He did not indicate that there was a problem with this.

These facts do not support a clear and unequivocal resignation. On the contrary, they demonstrate that the appellant was equivocal when giving her resignation notice, and that her equivocation was condoned by Manulife through the actions of Ms. English’s supervisor.

When Manulife cancelled the computer conversion within three weeks of her September 22, 2016 conversation with her supervisor, the basis for the appellant’s resignation disappeared. Manulife was therefore bound by the promise made to Ms. English by her supervisor that she could change her mind. Since the appellant did not in fact resign, her termination on December 12, 2016 was a wrongful dismissal.

Khan v. Ahmad, 2019 ONCA 614

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

A. Farooq and S. Balcharan, for the appellant

K. Normandin and C. Senese, for the respondent

Keywords: Family Law, Sole Custody, Access, Evidence, Office of the Children’s Lawyer, Children’s Best Interest, Chapman v. Chapman (2001), 141 O.A.C. 389 (C.A.), Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.)

Facts:

The mother of two young children died on May 16, 2015 from abdominal cancer. On January 30, 2019, after a 13-day trial, the trial judge granted sole custody of the children to their father and ordered that their maternal uncle have access to the children one weekend per month. The father appealed the order granting the uncle access to the children.

Issues:
  1. Did the trial judge err in finding that it was “highly unlikely” and that there was a “serious risk” that access would not occur, if not ordered by the court?
  2. Did the trial judge fail to provide sufficient reasons for why he disbelieved the father’s evidence that he would voluntarily provide the uncle with access to the children?
  3. Did the trial judge make a mistake in concluding that it was in the best interests of the children to maintain a relationship with the uncle in the face of the animosity between the parties?
  4. Did the trial judge fail to provide reasons for not accepting the Office of the Children’s Lawyer’s recommendation that the uncle should not be given overnight access?
  5. Did the trial judge fail to consider the possibility of psychological or physical harm to the father, on whom the children are dependant, resulting from the access order, contrary to this court’s decision in Pollastro v. Pollastro (1999)?
Holding:

Appeal dismissed.

Reasoning:

The Court was not convinced that there was any basis to interfere with the trial judge’s decision. The Court held that trial judge’s decision to grant the uncle access to the children was properly driven by the children’s best interests and was entitled to deference.

(1) No. The father had testified that he would provide access on “whatever conditions [he and the uncle] agree on” and that while he had his counsel write that he would not provide access to the uncle, “no access to uncle means no regular access, but he can ask any time”. The trial judge was entitled to find, from the father’s own testimony, that there was a risk the access would not occur if not ordered by the court.

(2) No. The trial judge provided sufficient reasons when he explained that the animosity between the parties led him to doubt that regular access would occur.

(3) No. The Court held that the trial judge was aware of the animosity that had developed between the parties. Weighing all the facts particular to this case, he concluded that an access order was ultimately in the children’s best interests as the only way to ensure the children’s continuing beneficial relationship with the maternal extended family.

(4) No. The Court held that the trial judge’s reasons for allowing overnight access was sufficient. The trial judge explained that, in his view, it was in the children’s best interests. The children had been having overnight visits for some time, and while the OCL may not have recommended overnight visits because the oldest child advised that he did not want them, the trial judge was not persuaded that the child’s position was that unequivocal.

(5) No. The court held that the alleged psychological harm to the father results from providing access, which he argued he was willing to provide without a court order. The father references Pollastro v Pollastro (1999) to support his argument. Unlike the Pollastro case the father references, this case does not involve a determination under the Hague Convention, there has never been any violence between the parties or involving the children, and there was no evidence – and the trial judge made no findings of fact – that the father suffered or was at risk of suffering psychological or emotional harm.

Monk v. Farmers’ Mutual Insurance Company (Lindsay), 2019 ONCA 616

[Feldman, Brown and Miller JJ.A.]

Counsel:

D.A. Morin, for the appellant

M.P. Forget and E.J. Murtha, for the respondent, Farmers’ Mutual Insurance Company (Lindsay)

D. Yiokaris and S. Hodge, for the respondent, Muskoka Insurance Brokers Ltd.

Keywords: Insurance Law, Summary Judgment, Forfeiture, Relief From Forfeiture, Damages, Costs, Reasonable Expectations Of Costs, Standard Of Review, Findings Of Credibility, Limitations Act, 2002, Insurance Act, R.S.O. 1990, c. I.8, s. 129, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, R. v. Dinardo, 2008 SCC 24, Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., [1989] 2 S.C.R. 778, Cervo v. State Farm Mutual Automobile Insurance Co. (2006), 83 O.R. (3d) 205 (C.A.), Kozel v. The Personal Insurance Company, 2014 ONCA 130, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Liscumb v. Provenzano (1985), 51 O.R. (2d) 129, affirmed (1986), 55 O.R. (2d) 404n (C.A.)

Facts:

The insured appellant owned a log house. In 2008, she wanted to refinish the exterior of the logs. She hired a contractor, and the work was largely completed by the end of 2008. During and after the restoration work, the appellant noticed some damage to the interior and exterior of the house, which she attributed to the work.

The appellant had a home property insurance policy (the “Policy”) with the insurer respondent, which she obtained through the broker respondent. In September of 2011, the appellant informed the broker respondent of the damage. The broker respondent later informed the appellant that the insurer respondent regarded any claim under the Policy as time-barred.

The appellant sent a formal notice of claim in October 2011, and commenced an action for indemnification under the Policy. The respondents moved for summary judgment dismissing the action on the basis that exclusions in the Policy denied coverage. The respondents were successful on their motion.

However, in reasons released in 2015, the Court of Appeal set aside the summary judgment, holding that the resulting damage to the insured property was covered by the Policy. The Court of Appeal went on to add that the remaining question was whether, or to what extent, the appellant’s action is barred by operation of the Limitations Act, 2002.

The trial conducted in 2017 dismissed the appellant’s claim. The trial judge held that the appellant’s failure to provide timely notice of her damages constituted unreasonable conduct and had resulted in substantial prejudice to the insurer. The trial judge held the appellant was therefore not entitled to relief from forfeiture.

The trial judge also did not accept the appellant’s submission that she informed the broker respondent on three separate occasions prior to September 2011 that she had sustained damages.

Although her claim was dismissed, the trial judge assessed the appellant’s damages at $86, 320.70, and ordered the appellant to pay partial indemnity costs of $175,000 to the insurer respondent and $115,000 to the broker respondent.

Issues:

(1) Did the trial judge err in holding that the Policy covered most of the appellant’s claim?

(2) Did the trial judge err in his findings of fact about when the appellant first notified the broker respondent of her loss?

(3) Did the trial judge err in denying the appellant relief from forfeiture?

(4) Did the trial judge err in assessing the appellant’s damages at $86,320.70, instead of the $124,448.47 she requested?

(5) Did the trial judge err in his award of costs?

Holding:

Appeal dismissed, cross-appeal dismissed, leave to appeal trial judge’s costs awards granted, costs awards varied.

Reasoning:

(1) Did the trial judge err in holding that the Policy covered most of the appellant’s claim?

No. The insurer respondent submitted that the trial judge erred by failing to apply the Faulty Workmanship and Property Being Worked On Exclusions to deny the appellant’s claim. The provisions of the Policy outlining these exclusions read as follows:

  • Losses Excluded, s. 2: “the cost of making good faulty material or workmanship” (the “Faulty Workmanship Exclusion”); and
  • Property Excluded, s. 4: “property…(iii) while being worked on, where the damage results from such processes or work (but resulting damage to other insured property is covered”) (the “Property Being Worked On Exclusion”).

In Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, the Supreme Court held that a “cost of making good faulty workmanship” exclusion in a builders’ risk insurance policy excluded from coverage only the cost of redoing the faulty work contracted for.

In the present case, the trial judge concluded that the “cost of making good faulty material or workmanship” language in the Faulty Workmanship Exclusion should be interpreted to mean the cost of re-doing the work which comprised the subject matter of the contract. He held that all other damages properly fell within the scope of “resulting damage”. The trial judge noted that the contract did not require the contractor to install carpets, replace windows, doors or thermal pane glass units and exterior fixtures. The cost of the replacement of those items constituted the resulting damages awarded.

The trial judge found that the work the appellant contracted for comprised only the restoration of all wooden surfaces of the house. Damage to that property properly constituted damage resulting “from such process or work”, and was therefore excluded from coverage.

The Court of Appeal saw no palpable and overriding error in the trial judge’s findings about what fell within the category of “property while being worked on” and what property fell outside. As such, the insurer respondent’s cross-appeal was dismissed.

(2) Did the trial judge err in his findings of fact about when the appellant first notified the broker respondent of her loss?

No. While there is no dispute that the appellant advised a representative of the broker respondent of the damages on September 2, 2011, the appellant contended that she had informed the broker respondent of the damages on three prior occasions.

The Court of Appeal began its analysis of this issue by noting that appellate courts show great deference to findings of credibility made at trial, recognizing the special position of the trier of fact on matters of credibility. As stated in R. v. Dinardo, 2008 SCC 24, “rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”.

It follows that in respect of a finding of credibility by a trial judge, an appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. The Court emphasized that it is not enough that there is a difference of opinion with the trial judge. Accordingly, where detailed reasons display a strong grasp of the evidence and arguments and offer a full explanation for the findings of fact required, an appellant must point to clear and significant errors in the fact-finding process articulated in those reasons.

In the present case, the trial judge gave extensive reasons to explain why he preferred the evidence given by the broker respondent over that of the appellant. In the view of the Court, these reasons demonstrated a strong grasp of the evidence tendered. Therefore, the Court saw no reversible error in the trial judge’s credibility finding.

(3) Did the trial judge err in denying the appellant relief from forfeiture?

No. The insurer respondent relied on the defence that the appellant failed to report the damage “forthwith” and provide a proof of loss “as soon as practicable”, as required by Statutory Conditions 6 of the Policy. The appellant, on the other hand, sought relief from forfeiture pursuant to s. 129 of the Insurance Act, R.S.O. 1990, c. I.8.

As stated in Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., [1989] 2 S.C.R. 778, the purpose of allowing relief from forfeiture in insurance cases is to prevent hardship to policy beneficiaries where there has been a failure to comply with a condition for receipt of insurance proceeds, and where leniency in respect of strict compliance with the condition will not result in prejudice to the insurer.

The Court noted that the power to grant relief from forfeiture is a discretionary one. An appellate court is not at liberty to substitute its own discretion for that already exercised by the judge of first instance.

Applying Cervo v. State Farm Mutual Automobile Insurance Co. (2006), 83 O.R. (3d) 205 (C.A.), the Court found that appellate interference requires the appellant to demonstrate that the judge below: (1) exercised his or her discretion on a wrong principle of law; (2) failed to take into consideration a major element of the case; (3) disregarded, misapprehended or failed to appreciate relevant evidence; (4) or made a finding or drew an inference not reasonably supported by the evidence.

The Court further noted that the principles regarding relief from forfeiture in the circumstances of a claim under an insurance policy were reviewed in Kozel v. The Personal Insurance Company, 2014 ONCA 130. In reviewing principles articulated in Kozel, the Court outlined the test an insured must satisfy where relief from forfeiture is available. The Court noted that an insured must still show: (1) that his or her conduct was reasonable; (2) that the breach was not grave; and (3) that there is a disparity between the value of the property forfeited and the damage caused by the breach.

This three-element test is often referred to as the Saskatchewan River or Liscumb test, from two of the cases in which it was articulated, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490 and Liscumb v. Provenzano (1985), 51 O.R. (2d) 129, affirmed (1986), 55 O.R. (2d) 404n (C.A.).

Regarding the first element of the test, the Court noted that although the damage was first noticed in late 2008, the appellant failed to inform the insurer about any damage until September 2011. Further, she did not speak to anybody involved with the contractor about the damage until more than two and a half years had passed from the completion of the work. The Court also noted that once the appellant was informed that the insurer would deny coverage, she attempted to mislead the insurer by taking the position that she did not notice the damage until early 2010.

The Court did not find any palpable or overriding error by the trial judge in his conclusion that her delay in reporting the loss was unreasonable. As such, the Court saw no reason to interfere with the trial judge’s finding.

In assessing the gravity of the breach, the second element of Saskatchewan River/Liscumb test, the Court noted that both the nature of the breach itself and the impact of that breach on the contractual rights of the other party should be analyzed. The Court found that the appellant’s delay in reporting the loss led to the contractor asserting a limitations defence, thereby undermining the ability of the insurer to advance a subrogated claim in the event it indemnified her for the loss. The Court found that this also supported the trial judge’s initial finding as reasonable.

Finally, on the third element of the test, the Court noted that examining this factor requires a proportionality analysis which, in an insurance case, involves comparing the disparity between the loss of coverage and the extent of the damage caused by the insured’s breach. The Court found that timely reporting by the appellant would have enabled the insured to consider steps against the contractor, unburdened by the ability of the contractor to advance a strong limitations defence. Once again, therefore, the Court saw no basis for appellate intervention in the trial judge’s discretionary conclusion that the appellant was not entitled to relief from forfeiture.

(4) Did the trial judge err in assessing the appellant’s damages at $86,320.70, instead of the $124,448.47 she requested?

No. The difference between the appellant’s request and the trial judge’s assessment turned on the replacement costs for windows and doors. The appellant relied on the 2016 replacement cost she incurred, while the trial judge based his assessment on two 2011 estimates submitted by the appellant to the insurer respondent. The trial judge ultimately chose the midpoint between the two 2011 estimates as representing the fair and reasonable cost.

The appellant submitted that the trial judge erred in using 2011 replacement costs because she was unable to afford replacing the doors and windows until 2016. The Court rejected this submission, and held that the valuation of a loss is made in accordance with the terms of the Policy, not on a party’s ability to fund the replacement of damaged property at any particular time.

(5) Did the trial judge err in his award of costs?

Yes. The Court found that the trial judge erred by failing to take into account the impact of the 2015 decision of the Court of Appeal on the parties’ reasonable expectations of the costs of the further hearing directed by the Court of Appeal. Given the directions by this court in its 2015 decision, the appellant could reasonably expect that her cost exposure at trial would be confined to the “remaining question” as identified by this court. Yet, the trial judge expanded the issues for determination beyond those directed.

In the view of the Court, this resulted in the trial judge awarding costs in excess of the appellant’s reasonable expectations. As such, the appellant was granted leave to appeal the award of trial costs. The Court allowed her appeal to the extent of reducing the trial judge’s awards to the insurer respondent and broker respondent by one-third.

Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

J.P. Brown and M. Warfe, for the appellant

L. Armstrong, J. Brimfield and M.A. Gelowitz, for the respondent

 Keywords: Insurance, Motor-Vehicle Accidents, Statutory Accident Benefits, Statutory Interpretation, Jurisdiction of the Superior Court, Breach of Duty of Good Faith, Insurance Act, RSO 1990, c. I. 8, Weber v Ontario Hydro [1995] 2 SCR 929, Arsenault v Dumfries Mutual Insurance Co. (2002), 57 OR (3d) 625 (CA), Whiten v Pilot Insurance Co,, 2002 SCC 18, Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70

Facts:

The appellant was involved in a serious motor vehicle accident resulting in major injuries and long-term cognitive dysfunction. The appellant was insured by the respondent and made an application for Statutory Accident Benefits (“SABs”). For about three years, the respondent did not advise the appellant that their injuries could classify as ‘catastrophic impairments’ entitling the appellant to advanced benefits. There was also a series of related failures on behalf of the respondent relating to the claim.

Some years later, in 2015, the respondent advised the appellant they were now accepting that the appellant’s injuries were catastrophic impairments but continued to only provide non-catastrophic benefits. The appellant filed a statement of claim citing 56 particulars relating mostly to wilful and negligent breaches of contract and the duty of good faith.

At the Court of first instance, the respondent brought a motion to strike the statement of claim because s.280 of the Insurance Act gives jurisdiction to the Licence Appeal Tribunal (“LAT”) to resolve certain disputes and prohibit bringing proceedings in respect of those disputes in court. The motion judge found the claim fell within s.280(1) as it a dispute “in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.”

The motion judge, referring to Weber, held that the court must consider the facts giving rise to the dispute as being determinative, not the legal classification of the proceedings. Despite it being a claim for breach of a duty of good faith, the underlying facts related to the amount of benefits the insured was entitled to and whether their claim was handled appropriately. This falls within the jurisdiction of the LAT.

The appellant appealed the motion judge’s decisions.

Issues:
  1. Did the motion judge err in finding the appellant’s claim was barred by s. 280 of the Insurance Act?
Holding:

Appeal dismissed.

Reasoning:

The Court first considered the legislative scheme of the Insurance Act, including subsections 1 through 6. These sections discuss the reach of the Insurance Act as it relates to SABs and the LAT. These provisions confirm that the LAT has jurisdiction over how the administration of the claim was handled, as well as jurisdiction over the benefits themselves. Particularly, Section 3(8) of the SABs Schedule provides: If in a dispute described in subsection 280 (1) of the Act, the Licence Appeal Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in Page: 13 respect of an expense, the Licence Appeal Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred. [Emphasis added.]

(1) No. This was a question of statutory interpretation. The modern approach to statutory interpretation requires the court to consider the words of a statute “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Belwood). While the Superior Court has jurisdiction over all disputes, the Insurance Act explicitly limits this jurisdiction. The question, then, is the breadth of this limit.

The amendments to the Act that created s. 280 were enacted to reduce insurance rates and insurance fraud, and to speed up dispute resolution. In effecting this purpose, the legislature must not have intended to give overlapping jurisdiction to both the LAT and the courts as this would be inefficient and would defeat the purposes of the amendment. S. 280 also uses expansive language, namely, “in respect of”. This connotes the broadest possible connection between two subject matters, as was espoused in Arsenault. In respect of, is used in s.280 to connect dispute and entitlement, both of which are very broad terms on their own. Combining these considerations leads to a very broad jurisdiction for the LAT to exclusively hear such disputes.

The appellant also submitted that since the LAT doesn’t have the ability to award punitive damages, it cannot hear claims for bad faith since Whiten makes actions for breach of a duty of good faith subject to punitive damages. However, the Insurance Act gives the LAT power to award special awards when benefits were unreasonably withheld or delayed. Relying on this finding, the Court dismissed these submissions. Further, the Court found that differences in remedial powers do not impact determinations of jurisdiction. The legislature made a decision which matters would fall to the LAT, and in turn, what remedies would be available, and that is a determination they were fully entitled to make.

The appellant further submitted that their claim was one for bad faith, not one relating to the benefits themselves. Bad faith is a standalone cause of action according to the appellant and so should is not subject to the jurisdiction of the LAT. The Court rejected this submission. S. 280 specifically confers powers for disputes relating to the administration of the claim. While the appellant classified their action as bad faith, the facts of the matter clearly show it was a dispute over how the policy was administered.

The Court rejected the appellant’s submissions and dismissed the appeal.


SHORT CIVIL DECISIONS

Asghar v. Toronto Police Services Board (Costs), 2019 ONCA 603

[Hoy A.C.J.O., Lauwers and Zarnett JJ.A.]

Counsel:

S. Ashgar, acting in person

J. Rosolak and N. Salafia, for the respondents

Keywords: Costs Order, No Costs Awarded

Hurst v. Hancock, 2019 ONCA 606

[Feldman, Paciocco and Fairburn JJ.A.]

Counsel:

T. Gleason and R. Glass, for the appellants

K. Marciniak, for the respondents/responding parties

M. Singh and E. Cheng, for the respondent/moving party

Keywords: Addendum, Summary Judgment

Newell v. Sax, 2019 ONCA 608

[Feldman, Roberts and Fairburn JJ.A.]

Counsel:

J.D. Sloan, for the appellants

R. Tanner, for the respondent

Keywords: Costs Endorsement, Costs Assessment, Proportionality, Reasonable Apprehension of Bias


CRIMINAL DECISIONS

R. v. Bulhosen, 2019 ONCA 600

[Strathy C.J.O., Watt and Zarnett JJ.A.]

Counsel:

R. Rusonik, for the appellant R.B.

F. Addario and J. Foy, for the appellant J.K.

M.C. Halfyard, for the appellant V.B.

P. Campell, for the appellant B.V.C.

M. Dineen, for the appellant D.B.

H. Krongold, for the appellant M.C.

J. Couse, for the appellant J.O.

L. Mathews and B. Reitz, for the respondent

Keywords: Criminal Law, Constitutional Law, Drug Trafficking, Drug Importation, Conspiracy To Import Cocaine, Conspiracy To Traffic In Cocaine, Right To Be Tried Within A Reasonable Time, Exceptional Circumstances, Presumptive Ceiling, Length Of Delay, Standard Of Review, Correctness, Dawson Applications, Canadian Charter of Rights and Freedoms, s. 11(b), Criminal Code, s. 540(7) R. v. Jordan, 2016 SCC 27, R. v. Dawson (1998), 39 O.R. (3d) 436 (C.A.), R. v. Cody, 2017 SCC 31, R. v. Schertzer, 2009 ONCA 742

R. v. McGean, 2019 ONCA 604

[Watt, Tulloch and Lauwers JJ.A.]

Counsel:

E. Rolfe, for the appellant R.M.

B. Snell, for the appellant I.L.

J. Clarke, for the respondent

Keywords: Criminal Law, Drug Offences, Weapons Offences, Drug Trafficking, Conspiracy To Traffic Heroin, Conspiracy To Traffic Cocaine, Hearsay Rule, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 2(1) R. v. Carter, [1982] 1 S.C.R. 938, R. v. J.F., 2013 SCC 12, R. v. Villaroman, 2016 SCC 33

R. v. Box, 2019 ONCA 601

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

F. Box, acting in person

N. Gorham, duty counsel

A. Hotke, for the respondent

Keywords: Appeal Book Endorsement, Criminal Law, Prohibition Order, Credibility, Bad Character Evidence, Sentencing, R. v. Boudreault, 2018 SCC 58

R. v. Young, 2019 ONCA 605

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

B. S. Young, acting in person

A. Baiasu, for the respondent

Keywords: Appeal Book Endorsement, Criminal Law, Credibility, Collusion, Legal Aid Certificate

R. v. Dhaliwal, 2019 ONCA 617

[MacPherson, Juriansz and Rouleau JJ.A.]

Counsel:

J. Dhaliwal, in person

B. Snell, duty counsel

J. S. Joy, for the respondent

Keywords: Criminal Law, Addendum, Sentencing, Firearms Offence, Threat to Bodily Harm


ONTARIO REVIEW BOARD

Ali (Re), 2019 ONCA 602

[Feldman, Paciocco and Zarnett JJ.A.]

Counsel:

A. Alyea, for the appellant

N. Hasan and M. Addie, for the respondent, Ayanle Hassan Ali

J. Blackburn, for the respondent, Person in Charge of St. Joseph’s Healthcare Hamilton

Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Mental Disorder, Significant Threat, Canadian Forces, Attempted Murder, Assault Causing Bodily Harm, Assault With a Weapon, Carrying a Weapon for the Purpose of Committing an Offence, Psychiatric Evidence, Prohibition Against Communication with any Military personnel, Indirect Supervision, Inquisitorial Function, Public Safety, Treatment, Detained Person, No Contact, Condition, Compliance, Criminal Code, ss. 672.11, 672.54

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.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles professional discipline and professional negligence matters, as well as complex estates and matrimonial litigation. In addition, John represents amateur sports organizations in contentious matters, and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.