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Good evening.

There were five substantive civil decisions released by the Court of Appeal for Ontario this week.

Stewart v Toronto (Police Services Board) is another case lingering from the G20 Summit in Toronto in 2010 and it involves the nexus between the common law, the Occupiers’ Liability Act (“OLA”), and the Charter. The Court held that the Toronto Police Service’s actions to make access to the Allan Gardens park conditional upon a bag search was not authorized by either the OLA or the common law and therefore an infringement of s. 2 of the Charter and not saved by s. 1. The OLA only authorizes an occupier (the police, in this case) to take actions to ensure the safety of those entering the premises, but not to exclude entry. While the common law entitles the Crown to withdraw permission from an invitee to be present on its property, the exercise of that power is “subject always to the Charter”. The Court awarded the appellant $500 based upon the four-step framework for Charter damages from Vancouver (City) v Ward.

In Leitch v Novac, the Court overruled the motion judge’s determination that the tort of conspiracy should not be extended to the family law context. In the course of matrimonial proceedings, the appellant alleged that the respondent and his family had conspired to keep money out of the respondent’s hands specifically for the purpose of reducing the appellant’s family law entitlements. The Court ordered a new trial and opined that excluding family members from the tort of conspiracy would allow nefarious actions by “invisible litigants” to proceed with impunity. In addition, the imputation of income provisions in family law legislation do not protect against such conspiracy because the inclusion of hidden assets into the net family property calculation will be a futile exercise, as the recipient cannot collect on what is owing. The Court reasoned that a judgment against a co-conspirator would often be the only means by which a recipient could satisfy a judgment.

The other topics explored this week included administrative law in the police context, substitute decisions and child abduction.

This past Wednesday, April 15, we held our fourth annual “Top Appeals” OBA CLE. Despite the fact that it was a Zoom webcast over the dinner hour, we had an excellent turnout. Thank you again to all of our panel members for a very interesting discussion of their cases, and to all the participants for joining us from their homes. For anyone who missed it, you can view the CLE on demand through the OBA’s website.

Wishing everyone continued health and Happy Easter to those of the Greek and other Eastern Orthodox faith.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Stanley v Office of the Independent Police Review Director , 2020 ONCA 252

Keywords: Administrative Law, Judicial Review, Regulated Professions, Police Services, Discipline, Functus Officio, Police Services Act, RSO 1990, c P15, s 68, 72, Wall v Office of the Independent Police Review Director, 2014 ONCA 884, Greer v Ontario Provincial Police Commissioner, [2006] OJ No 4771 (Sup Ct (Div Ct)), Chandler v Alberta Association of Architects, [1989] 2 SCR 848

Geliedan v Rawdah, 2020 ONCA 254

Keywords: Family Law, Custody, Child Abduction, International Law, Hague Convention, Children’s Law Reform Act, RSO 1990, c C12, s. 40

Stewart v Toronto (Police Services Board), 2020 ONCA 255

Keywords: Constitutional Law, Freedom of Expression, Freedom from Unreasonable Search and Seizure, Freedom from Arbitrary Detention, Torts, Trespass, Occupier’s Liability, Charter Damages, Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 8, 9 and 24(1), Occupiers Liability Act, RSO 1990, c 02, Trespass to Property Act, RSO 1990, c T21, Waldick v Malcolm, [1991] 2 SCR 456, Langenfeld v Toronto Police Services Board, 2019 ONCA 716, Weisfeld v Canada (1994), 116 DLR (4th) 232 (FCA), Nakochee v Linklater, 1993 CarswellOnt 5678 (Ont Ct J (Gen Div), Committee for the Commonwealth of Canada v Canada, [1991] 1 SCR 139, Bracken v Fort Erie (Town), 2017 ONCA 668, Vancouver (City) v Ward, 2010 SCC 27

Volk v Volk, 2020 ONCA 256

Keywords: Substitute Decisions, Powers of Attorney, Real Property, Tenancy in Common, Civil Procedure, Evidence on Motions, Affidavits, Cross-Examination, Scope, Substitute Decisions Act, 1992, SO 1992, c 30, Moyle v Palmerston Police Services Board, [1995] OJ No 627 (Div Ct), Thomson v. Thomson, [1948] OWN 137 (HC), RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, Buccilli v Pillitteri, [2013] OJ No 6110 (CA)

Leitch v Novac, 2020 ONCA 257

Keywords: Family Law, Support, Imputation of Income, Property, Torts, Conspiracy, Civil Procedure, Summary Judgment, Federal Child Support Guidelines, SOR/97-175

Short Civil Decisions

Urbancorp Cumberland 2 GP Inc.(Re), 2020 ONCA 253

Keywords: Civil Procedure, Costs

Criminal Decisions

R v CL, 2020 ONCA 258 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Jury Instructions, Criminal Code, RSC, 1985, c C-46, s 271, R v W(D), [1991] 1 SCR 742, R v JJRD (2006), 215 CCC (3d) 252 (Ont CA)

R v P, 2020 ONCA 259

Keywords: Criminal Law, Aggravated Assault, Weapons Offences, Defences, Self-Defence, Criminal Code, RSC 1985, c C-46, s 34(1), R v Cinous, 2002 SCC 29


CIVIL DECISIONS

Stanley v Office of the Independent Police Review Director, 2020 ONCA 252

[Watt, Hourigan, and Trotter JJA]

Counsel:

WC Childs, for the appellant

SA Pieters and BM Clarke, for FS, YaS, YuS, and TS

AD Ciobotaru, for the Chief of Police of the Toronto Police Service

L Gridin, for Constable CH

Keywords: Administrative Law, Judicial Review, Regulated Professions, Police Services, Discipline, Functus Officio, Police Services Act, RSO 1990, c P15, s 68, 72, Wall v Office of the Independent Police Review Director, 2014 ONCA 884, Greer v Ontario Provincial Police Commissioner, [2006] OJ No 4771 (Sup Ct (Div Ct)), Chandler v Alberta Association of Architects, [1989] 2 SCR 848

facts:

This appeal concerns an investigation into alleged police misconduct. The respondents filed complaints with the Office of the Independent Police Review Director (“the OIPRD” or “the Director”) about a number of police officers. After an investigation, the OIPRD found that an allegation that Constable CH had used excessive force was “substantiated” and referred the matter to the Chief of Police of the Toronto Police Service (“TPS”) for a disciplinary hearing.

Shortly after the referral, an officer from the Professional Standards Unit of the TPS contacted the Director about a transcription error in Constable CH’s statement to the investigators. The Director advised the respondents that new information had come to light that required further investigation. Following a further investigation, the Director determined that the allegation against Constable CH was now “unsubstantiated” and advised the respondents of his decision. The file was closed. There was no disciplinary hearing.

The respondents sought judicial review of the Director’s second decision in the Divisional Court. They argued that: (a) the Director lacked the authority to re-open the investigation; (b) there was a breach of the rules of procedural fairness arising from the communications between the Director and the TPS; and (c) the Director’s second decision was unreasonable. The Divisional Court allowed the application solely on the basis of the procedural fairness issue. The Director’s decision was quashed and the complaints were referred back to the OIPRD for a fresh investigation. The OIPRD appealed this decision, supported by the TPS and Constable CH.

issue: 

Did the Director have authority to reconsider his decision to refer the case to the TPS for a disciplinary hearing?

holding: 

Appeal allowed in part.

reasoning: 

No. Despite the Director’s claim, he had no power at common law to re-open an investigation and reconsider his hearing referral decision. His claim relied on Greer v Ontario Provincial Police Commissioner, which held that the Superintendent was not prohibited from revisiting a decision that a complaint was unsubstantiated because he “was performing a screening function that was investigative, not adjudicative and therefore administrative in nature.” The Court found this decision unhelpful because it was decided before the creation of the OIPRD and the framework for decision-making under the current model. Further, the characterization of decisions as “investigative”, “adjudicative”, “final adjudicative”, and “administrative” is inconsistent with the approach of the Court in Endicott v Ontario (Independent Police Review Office) and Wall v Office of the Independent Police Review Director.

The Director also purported to find power to reconsider his decision in s 72 of the Police Services Act (“PSA”). The Court noted that the distinction between investigative referrals and hearing referrals is crucial to a proper reading of s 72(1). The power in s 72(1) is triggered by an investigative referral. In this case, the Director had retained the investigation, completed it, and then referred the matter to the Chief of Police to conduct a hearing. There was no longer any investigation to “take over”. Even if it could be said that s 72(1) applied to situations where the Director has made a hearing referral, the powers listed in paras (a) to (d) cannot be read so broadly so as to include the power to reconsider the hearing referral in the first place. Therefore, the Court concluded that the Director was powerless to suspend his decision made under s 68(3) of the PSA, conduct a new investigation, and then decide that the complaint was unsubstantiated.

The Court upheld the Divisional Court’s decision to set aside the Director’s second decision. However, the Divisional Court’s order requiring the Director to conduct a fresh investigation was set aside. Therefore, the Director’s original decision was restored, referring the complaint against Constable CH to the Chief of Police for a hearing, pursuant to s 68(3) of the PSA. Further, since the OIPRD’s Rules of Procedure were amended to deal specifically with the jurisdictional issue on appeal, the Director is now empowered under r 17.2 to reconsider his original decision to refer the matter to the TPS for a hearing.


Gelieden v Rawdah, 2020 ONCA 254

[Lauwers, Paciocco, and Fairburn JJA]

Counsel:

K Maurina, MJ Stangarone, and EC Conway, for the appellant

M Gourlay, F Hudani, and J Luscombe, for the respondent

EL Garfin and H Evans, for the intervenor the Attorney General of Ontario

Keywords: Family Law, Custody, Child Abduction, International Law, Hague Convention, Children’s Law Reform Act, RSO 1990, c C12, s. 40

facts:

The parties have a child who was born in the UK and is a UK citizen. The appellant is Lebanese Canadian, and the respondent is Saudi Arabian. Shortly after the birth, the parties split and a Custody Order was made by a UK court determining that the child shall reside in the UK and shall not be removed without both parents’ written consent. The appellant took her child to visit the respondent father in Dubai, where he was living. She had return tickets for the UK but claims that the respondent confiscated their passports and kept them in Dubai for over a year. She successfully escaped Dubai with her child and came to Ontario. She alleged that she flew to Ontario out of panic, because she was not sure whether she would be allowed to enter the UK seeing as she is not a UK citizen. Both the appellant and her child are Canadian citizens.

The respondent claims that the appellant was living in Dubai on her own accord, that she is mentally unstable and that her allegations are all lies. The father claimed that the child was wrongfully removed and that her principle residence was in Dubai, successfully relying on s. 40 of the Children’s Law Reform Act. The appellant appealed the decision to send the child back to Dubai.

issue: 

Did the application judge err in ordering the child back to Dubai?

holding: 

Appeal allowed.

reasoning: 

Yes. The respondent relied on section 40 of the Children’s Law Reform Act (the “CLRA”) to argue that the child had been wrongfully removed and was wrongfully retained in Ontario. He wanted her to be returned to her ‘habitual residence’ in Dubai, where custody issues could be sorted out. The appellant did not seek to have custody matters decided in Ontario, but sought the Ontario court to oppose the respondent’s application on the basis that the child’s habitual residence was in fact the UK, as determined by a pre-existing custody order from a UK court. 

The issue is that the application judge treated her section 40 CLRA analysis as though it was governed by the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). The judge determined that the child’s habitual residence was Dubai and concluded that the mother failed to meet her burden to show that the child would be in an “intolerable situation” if she were returned to Dubai.

The crux of this appeal rests on the fact that this was not a Hague Convention case and that legal framework should not have been applied. The determination of wrongful removal/retention is not tied to the concept of “habitual residence” under s. 40 of the CLRA and upon determining that wrongful removal did occur, the court was not obliged to return the child to Dubai (as it was required to do so had it followed the Hague framework). Furthermore, Dubai is not a signatory to the Hague Convention and is not obliged to make decisions in the best interest of the child.

This Court considered the fact that the appellant is a Christian, non-national, non-Arabic speaking woman who would experience hardship in Dubai. She claimed that the respondent had fabricated evidence against her, and her evidence that they were wrongfully confined to Dubai is compelling.

The application judge should have asked whether the child was wrongfully removed to, and retained in Ontario. Both parties contend that the child was wrongfully removed to Ontario, due to the existing custody order that she cannot be removed from the UK without both parents’ consent. However, the appellant had to come to Ontario out of fear; she did not want a custodial decision made by the Ontario court but rather a decision upholding the legitimacy of the UK custody order. The application judge should have used her broad discretionary powers under the CLRA and ordered the issue to be determined by the London family courts rather than return the child to Dubai. The Court of Appeal ordered the child to remain in Toronto pending further order of a UK or Ontario court.


Stewart v Toronto (Police Services Board), 2020 ONCA 255

[Brown, Huscroft, and Trotter JJA]

Counsel:

D Charney and C Rapson, for the appellant

K McGivney and J Thoburn, for the respondent

W Gee and S Whitmore, for the intervenor Canadian Civil Liberties Association

Keywords: Constitutional Law, Freedom of Expression, Freedom from Unreasonable Search and Seizure, Freedom from Arbitrary Detention, Torts, Trespass, Occupier’s Liability, Charter Damages, Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 8, 9 and 24(1), Occupiers Liability Act, RSO 1990, c 02, Trespass to Property Act, RSO 1990, c T21, Waldick v Malcolm, [1991] 2 SCR 456, Langenfeld v Toronto Police Services Board, 2019 ONCA 716, Weisfeld v Canada (1994), 116 DLR (4th) 232 (FCA), Nakochee v Linklater, 1993 CarswellOnt 5678 (Ont Ct J (Gen Div), Committee for the Commonwealth of Canada v Canada, [1991] 1 SCR 139, Bracken v Fort Erie (Town), 2017 ONCA 668, Vancouver (City) v Ward, 2010 SCC 27

facts:

In June 2010, Toronto hosted the G20 summit. A public rally was scheduled to be held on Friday, June 25, 2010 in Allan Gardens, a public municipal park located in downtown Toronto. A protest parade through some Toronto streets would follow the rally. In preparation for the peacekeeping and security services the Toronto Police Service (“TPS”) would be required to perform at Allan Gardens, certain officers assigned to patrol Allan Gardens met with a Staff Sergeant for a briefing and then, upon arriving at Allan Gardens and conducting initial preparations, the approximately 80 officers were directed to place themselves in clusters around the perimeter of Allan Gardens and to initiate contact with anyone attempting to bring a knapsack or other container into the park and to ask such persons to allow the police to inspect it. Entry into Allan Gardens would be conditional upon a person agreeing to a search of the knapsack or container. The appellant S attempted to enter the park in a manner which would avoid the clusters of TPS officers but was unsuccessful. The TPS officers that approached S asked to look at the contents of his backpack as a condition of entry into Allan Gardens. S refused to consent to the search of the backpack. The exchange between the TPS officers and S was recorded on video which shows the officers as being very calm and that they cited their authority to act in such a manner as being pursuant to the Trespass to Property Act (“TPA”). S persistently refused and continuously shouted at the TPS officer, attracting a crowd. A Staff Sergeant was called upon to de-escalate the situation, but was unsuccessful. S thereafter forced his way past the TPS officers and into the park. The officers stopped S, removed his backpack, and temporarily restrained S long enough to examine its contents. The officers removed a pair of goggles from the backpack and asked for S’s contact details in order to issue him a receipt so the goggles could later be returned to him. S refused to give his contact details. S thereafter made his way into Allan Gardens.

The police identified at trial that their authority to restrict entry to Allan Gardens was pursuant to the TPA and a letter addressed to the TPS from the City of Toronto (the “City”) authorizing the police to act as agents of the City (the “City TPA Letter”).

issues: 

1) Did the TPS have the legal authority to impose, as a condition of entry into Allan Gardens, the requirement that a person submit to a search of any bag, backpack, or other thing in which weapons could be concealed (the “Condition of Entry”)?

2) If so, was the imposition of the Condition of the Entry nevertheless justified even though it restricted S’s freedom of expression contrary to s. 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”)?

3) If the Condition of Entry unjustifiably restricted S’s rights and freedoms, what is the appropriate remedy?

holding: 

Appeal allowed.

reasoning: 

1) No. According to the TPS, the placement of officers in clusters around the perimeter of Allan Gardens on June 25, 2010, and the imposition of the Condition of Entry were done in order to ensure the safety of the public attending the public park for a protest. The Occupiers Liability Act (“OLA”) promotes and, where circumstances warrant, requires positive action on the part of occupiers to make their premises reasonably safe (Waldick v Malcolm). Section 3(1) of the OLA imposes a basic duty on the occupier of premises “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons, are reasonably safe while on the premises.” The provisions of the OLA impose duties and obligations on occupiers, but do not grant occupiers any powers. Nevertheless, the jurisprudence recognizes that in order to discharge their duties of care under the OLA, occupiers of premises must have the powers necessary to ensure that persons are reasonably safe while on the occupier’s premises. In Langenfeld v Toronto Police Services Board, the Court found that while the OLA does not contain provisions that empower the occupier to take the steps necessary to comply with the duties imposed by the OLA, occupiers of property have powers at common law. Those common law powers, the Court noted, have long included the ability of an owner/occupier to limit access to its property (Weisfeld v Canada). One case has recognized a common law power of an occupier to require those entering its property to submit to a bag search (Nakochee v Linklater). However, while the common law entitles the Crown to withdraw permission from an invitee to be present on its property, the exercise of that power is “subject always to the Charter” (Committee for the Commonwealth of Canada v Canada). Moreover, the common law powers of an occupier, at least as they apply in the context of an occupier performing the duties imposed by s. 3(1) of the OLA, are the antithesis of an arbitrary power and are sufficiently precise to be a limit “prescribed by law” for purposes of s. 1 of the Charter.

Central to the TPS’ position on appeal that its officers’ imposition of the Condition of Entry was lawful was its view of the relationship between the TPA and the common law powers of the owner/occupier of property. It argued that as authorized agent of the City, for the purposes of administering the TPA, and therefore in the position of the City as occupier, the TPS was entitled by the occupiers’ common law power to impose a “precondition to entry, such as a security screening, if the precondition is reasonable and connected to maintaining the safety of persons on the property.” The Court found, however, that this position misconceived the relationship amongst the common law powers of an occupier to restrict entry to its property, the TPA, and the City TPA Letter. Although the TPA provides owners/occupiers with a suite of enforcement powers against those who should not be on a property or carrying on a particular activity on the property, it does not confer on an owner/occupier or its agent any legal power to create restrictions on access to its property. Those powers, the Court noted, find their source either in the common law powers of owners/occupiers or, in some cases, statutes respecting a specific owner/occupier or class of owner/occupier. The TPA does provide a set of statutory remedies to which an owner/occupier, such as the City, can resort in order to enforce its common law or statutory powers to restrict access. However, the TPAis not, in itself, a source for the power of an owner/occupier to establish restrictions on or conditions for access to a property (Bracken v. Fort Erie (Town)).

The Court held that the trial judge correctly found that the City TPA Letter authorized the TPS as the City’s agents to administer the TPA, but erred in holding that (i) the TPS officers as agents had the authority under s. 3(1) of the TPA to prohibit a person’s entry by notice and that (ii) the shared definition of “occupier” in the OLA and TPA vested in the TPS all the common law powers of the City as owner/occupier to restrict access to its parks. As held in Bracken, the enforcement powers contained in the TPA do not set out the preconditions for their use. Instead, the authority to impose a restriction of entry to premises must come from some legal source other than the TPA, such as a statutory or common law power to exclude or restrict access to property. Section 3(1) of the TPA merely provides the means by which to enforce a prohibition or restriction on entry sourced elsewhere. Additionally, the fact that the OLA and TPA share a common definition of “occupier” does not operate to transfer an owner/occupier’s common law powers to restrict access to property into the TPA. The OLA does not vest in an occupier the statutory power to prohibit or restrict entry to premises. The OLAimposes duties on occupiers; it does not create powers for occupiers. Further, the City TPA Letter did not grant the TPS any of the City’s common law or statutory powers to impose conditions of entry into parks. No such language of delegation appeared in the text of the letter. Instead, by its terms, the letter delegated remedial powers possessed by the City under the TPA to enforce prohibitions or restrictions on entry already adopted or imposed by the City in the exercise of its statutory or common law powers to prohibit or limit access to the parks it owns or occupies. The letter did not give the TPS the authority to fix what conduct amounted to an act of trespass in the City parks; the authority to do so remained with the City and was not delegated by the letter. In addition, the City’s bylaws did not establish a restriction on entry of the kind imposed by the TPS officers in their Condition of Entry. Further, the enforcement section of the applicable by-law contemplates that police officers will enforce restrictions created by the City, not create new restrictions. In terms of the City’s common law power to impose prohibitions or restrictions on entry to parks, the City had not created or imposed a restriction on entry to its parks of the kind imposed on June 25, 2010 by TPS officers at Allan Gardens, and there was no evidence from the TPS officers that prior to or on June 25, 2010, the City had asked the TPS to enforce a restriction on entry created by the City exercising its common law powers or purported to delegate to the officers the City’s common law powers to do so. The trial judge therefore erred when she concluded that the combination of the OLA, the TPA, and the City TPA Letter authorized the police “to place a prohibition on a person’s entry into Allan Gardens on June 25, 2010.”

2) No. The TPS conceded that its officers’ imposition of the Condition of Entry infringed S’s freedom of expression guaranteed by s. 2(b) of the Charter. Because the police did not have the authority to impose the Condition of Entry, the interference with S’s s. 2(b) Charter freedom was not prescribed by law and thus could not be justified under s. 1 of the Charter. Further, detaining S, searching his backpack, and seizing his goggles violated ss. 2(b), 8, and 9 of the Charter.

3) Charter damages in the amount of $500. In Vancouver (City) v Ward (“Ward”), the Supreme Court set out the four-step framework for considering claims for damages for the breach of Charter rights. Even if a claimant establishes that Charter damages are functionally justified, the state may establish that other considerations render s. 24(1) damages inappropriate or unjust. Such countervailing considerations include the existence of alternative remedies and concerns for good governance. The quantum of damages awarded must be “appropriate and just” (Ward). S adduced little evidence to demonstrate that the conduct of the police caused him personal loss, whether physical, psychological or pecuniary, or affected his intangible interests. The Court noted that the freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society and requires zealous protection. The police infringed S’s freedom of expression without lawful justification and violated his rights to be free from unreasonable search and seizure, as well as from arbitrary detention. While he established a case for damages to functionally serve the vindication and deterrence objectives of Charter damages, the facts and circumstances of this case work to limit the quantum of such damages. In enacting the Condition of Entry, the police acted in good faith to protect the safety of all users of Allen Gardens. The Condition of Entry was not designed to turn protestors away from Allan Gardens, but to ensure that those who entered were not carrying objects that could be used as weapons or used to defeat police crowd control tactics. In addition, the police acted in a calm and professional manner, both of which the Court found substantially reduced the appropriate quantum of damages. Damages in the amount of $500 were therefore found to be appropriate. The Court rejected S’s request to make various declarations.


Volk v Volk, 2020 ONCA 256

[Paciocco JA (Motion Judge)]

Counsel:

EA Brohm, for the moving party

JW Switzer, for the responding parties

Keywords: Substitute Decisions, Powers of Attorney, Real Property, Tenancy in Common, Civil Procedure, Evidence on Motions, Affidavits, Cross-Examination, Scope, Substitute Decisions Act, 1992, SO 1992, c 30, Moyle v Palmerston Police Services Board, [1995] OJ No 627 (Div Ct), Thomson v. Thomson, [1948] OWN 137 (HC), RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, Buccilli v Pillitteri, [2013] OJ No 6110 (CA)

facts:

This motion involves litigation under the Substitute Decisions Act, relating to the real property of DV, who is not competent to handle her legal affairs. The dispute involves real property registered in the name of DV and her granddaughter, FK, as tenants-in-common (the “home”).

GV, DV’s husband, instituted the action by application claiming that DM, a co-attorney of DV’s property along with her sister LV, abused her power of attorney in order to enrich herself and her daughter, and that property of DV was improperly disbursed to DM and LV. GV contends that the considerable, ongoing expenses relating to the operation and maintenance of the home are being paid for with DV’s money, in further breach of trust.

On January 7, 2020, GV brought an interlocutory application for an order freezing various assets, ordering the transfer of other assets into the name of GV in trust for DV, and providing for the sale of the home, with the deposit of the proceeds to be paid to GV in trust for DV. The respondent to the application, LV, consented to the order. The respondents DM, FK and the Public Guardian and Trustee, did not appear or file opposing materials. The order was granted. Pursuant to that order, an agreement of purchase and sale has since been entered relating to the home with a closing date of May 16, 2020.

DM and FK brought a motion to stay the order of January 7, 2020, relating to the sale of the home, and filed an affidavit in support of the motion. FK was cross-examined on her affidavit, and refused to answer several of the questions on the advice of counsel. As a result, GV brought a “refusals motion”, seeking to compel the refused questions and an undertaking to be answered. GV has also requested the adjournment of the stay motion brought by DM and Felicia KK, contending that the refusals by FK have prejudiced his ability to respond to the stay motion.

issue: 

Were any of FK’s refusals on the cross-examination to her affidavit erroneous?

holding: 

Refusals motion granted in part. Stay motion adjourned.

reasoning: 

Yes. The Court emphasized that cross-examination is meant to serve the fact-finding needs that the motion requires. A person cross-examining on an affidavit is not confined to the four corners of the affidavit but may cross-examine on matters that are relevant to the issue in respect of which the affidavit was filed. Therefore, although the cross-examiner is not free to cross-examine on all matters that touch upon the underlying action, if the cross-examiner has a bona fide intention to direct questions to the issues relevant to the resolution of the motion and those questions are fair, the question should be answered, not refused. This includes questions relevant to credibility determinations that are within the competence of the motion judge, which would include questions intended to expose “errors, omissions, inconsistencies, exaggerations or improbabilities of the deponent’s testimony contained in his or her affidavit”: Moyle, at para. 14.

The Court ordered FK to answer, in writing, various questions that she refused on cross-examination, including questions related to the non-attendance at the January 7, 2020 application; questions pertaining to the use of funds provided by DV; questions pertaining to the operation/ownership of the business; questions about utility payments; and the undertaking pertaining to DV’s contribution to the property. Questions relating to other gifts from DV to FK, support FK provided to DV, DV’s state of mind or actions, and undertakings relating to future use of the property did not relate to the issues in the motion, and were not ordered to be answered.


Leitch v Novac, 2020 ONCA 257

[Lauwers, Hourigan, and Thorburn JJA]

Counsel:

L Rothstein, D Rosenbluth, I Zylberman Dembo, S Gibb, and S Romano, for the appellant

A Rosen and K Eckert, for the respondent, AN

B Smith, L Love-Forester, and C Kuehl, for the respondents, MN, NN, Sonco Group Inc., The N 2011 Family Trust, and the N Family Trust (2013)

Keywords:Family Law, Support, Imputation of Income, Property, Torts, Conspiracy, Civil Procedure, Summary Judgment, Federal Child Support Guidelines, SOR/97-175

facts:

JL and AN cohabited for 17 years. They married on May 10, 1997, and separated on September 29, 2012. They have 15-year-old twins. JL was a litigator for nine years of the marriage. After AN sold an on-line gaming platform for $11.5 million, JL left litigation to pursue a graduate legal education. She then began to teach law part-time at Osgoode Hall and the University of Toronto. Since then, her annual income has typically been less than $30,000.

From 2009 to date, AN has done paid work for Sonco Group Inc. (“Sonco) and its related corporations. AN’s father, MN, incorporated Sonco and it holds various real estate and gaming businesses. AN occupies senior positions with Sonco and other related entities.

By the time the parties separated, their wealth had been significantly depleted. JL sold the matrimonial home, which she owned, and she retained the net sale proceeds from the house in the amount of $1,066,361.

JL commenced an application seeking divorce and corollary relief from AN. She later amended her application to seek damages in conspiracy from AN, MN, AN’s mother, NN, certain family trusts, and Sonco. JL alleged that the respondents had conspired to keep money out of AN’s hands specifically for the purpose of reducing JL’s family law entitlements. AN disclosed an income of $120,000 per year plus $5,000 per year for director fees. JL’s position was that AN had undisclosed additional income or an undisclosed ownership interest in the casino business operated by Sonco.

The respondents to the conspiracy claim (apart from AN) brought a motion for partial summary judgment. In her responding motion, JL requested summary judgment on the conspiracy claim declaring the existence of the conspiracy and that damages be assessed at trial. The hearing lasted nine days. Partial summary judgment was granted, dismissing JL’s conspiracy claim as not raising a genuine issue requiring trial. The motion judge concluded that while the appellant could not succeed on her conspiracy claim, JL could still pursue at trial a claim to impute additional income to AN for the purpose of determining support.

JL appealed from the order granting partial summary judgment, as well as the costs award, an order for security for costs and an order for the preservation of assets.

issues: 

(1) Did the motion judge err in law in awarding partial summary judgment?

(2) Did the motion judge err in law in her analysis of the tort of conspiracy?

(3) Did the motion judge make a palpable and overriding error of fact and fail to advert to important evidence?

(4) Should the costs order stand?

holding: 

Appeal allowed.

reasoning: 

(1) Yes. The Court held that this was not an appropriate case for partial summary judgment because the motion judge failed to consider the substantial risk of inconsistent outcomes before bifurcating the conspiracy issue and the imputed income issue. For JL to convince a court that it is appropriate to attribute or impute additional income to AN, she would need evidence of Sonco’s earnings as well as proof that AN had indirectly received some of it, would have received a portion of it but for the divorce, and/or would be receiving it in the future. All of this was precisely what JL alleged the respondents were complicit in concealing from her. Therefore, the Court held that the risk of inconsistent findings actually materialized in the motion judge’s own inconsistent statements relating to the conspiracy claim and her assertions about avenues that remained open to JL in her family law litigation.

(2) Yes. The motion judge erred by rejecting the availability of the tort of conspiracy in the family law context. The Court did not agree with the motion judge that there would be far-reaching implications if the tort of conspiracy could be extended to include the actions of family members and that the imputation of income provisions under the Federal Child Support Guidelines protected against such activity.

The Court held that to exclude family members from the tort of conspiracy would allow nefarious actions by “invisible litigants” to proceed with impunity. These invisible litigants (family members) may be willing to break both the spirit and letter of the family law legislation to achieve their desired result, including by facilitating the deliberate hiding of assets or income. In addition, where income or assets have been hidden with the assistance of a co-conspirator, often the family law litigant will be effectively judgment-proof. In those circumstances, the imputation of income or the inclusion of hidden assets into the net family property calculation will be a futile exercise, as the recipient cannot collect on what is owing. The Court reasoned that a judgment against a co-conspirator would often be the only means by which a recipient could satisfy a judgment.

The Court also took the opportunity to clarify that a transfer of funds by loan, gift, or otherwise, is not the only way that alleged co-conspirators can act in furtherance of a conspiracy. In the case at bar, the withholding of funds from AN was the crucial act in furtherance of the alleged conspiracy.

(3) Yes. The motion judge made a palpable and overriding error of fact in her analysis of an email that then impacted her conclusion that the tort of conspiracy was not proven on the facts. The Court found that had the motion judge correctly analyzed the email in question, she would have had to consider why it appeared that Sonco’s CFO was suggesting immediately after the closing of a buyout that AN had an entitlement to a portion of the proceeds that were withheld from him, possibly to impact the matrimonial dispute. This error was compounded by her failure to analyze in her reasons a later email suggestive of an ongoing intention among the alleged co-conspirators to divert funds to AN.

(4) No. Given the Court’s conclusion that a new trial was needed, it was unnecessary to consider whether the motion judge erred in her costs award, or in ordering security for costs and making a preservation order.


SHORT CIVIL DECISIONS

Urbancorp Cumberland 2 GP Inc. (Re), 2020 ONCA 253

[Pepall, Lauwers, van Rensburg, Zarnett, and Thorburn JJA]

Counsel:

KD Sherkin and J Sacks, for the appellants, Toro Aluminum (A Partnership), Speedy Electrical Contractors Ltd., and Dolvin Mechanical Contractors Ltd.

KD Kraft and NS Rabinovitch, for the respondent, GG, in his capacity as the Israeli Court Appointed Functionary Officer of Urbancorp Inc.

AM Slavens and J Silver, for the respondent, Tarion Warranty Corporation

RJ Drake, for Fuller Landau Group Inc.

H Schwartz, for the intervener, the Attorney General of Ontario

Keywords: Civil Procedure, Costs


CRIMINAL DECISIONS

R v CL, 2020 ONCA 258 (Publication Ban)

[Hoy ACJO, Paciocco, and Nordheimer JJA]

Counsel:

MB Day, for the appellant

L Joyal, for the respondent

Keywords: Criminal Law, Sexual Assault, Jury Instructions, Criminal Code, RSC, 1985, c C-46, s 271, R v W(D), [1991] 1 SCR 742, R v JJRD (2006), 215 CCC (3d) 252 (Ont CA)

R v P, 2020 ONCA 259

[Roberts, Paciocco, and Harvison Young JJA]

Counsel:

M Mattis and L Jack-Sadiwynk, for the appellant

K Rawluk, for the respondent

Keywords: Criminal Law, Aggravated Assault, Weapons Offences, Defences, Self-Defence, Criminal Code, RSC 1985, c C-46, s 34(1), R v Cinous, 2002 SCC 29


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…

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.