Jump To: Table of Contents | Civil Decisions | Short Civil Decisions | Bonus Provincial Offences Decision

Good evening.

Please find below our summaries of the civil decisions of the Court of Appeal for the week of December 7, 2020. We have also summarized R. v. Irwin, a provincial offences decision relating to Building Code violations, as it deals with the rule prohibiting collateral attacks of orders, and is therefore a decision applicable in the civil and administrative law context.

Other topics covered this week included agreements of purchase and sale of land, jurisdiction/forum non conveniens, reasonable apprehension of bias, occupier’s liability and family law.

On another note, please mark down April 27, 2021, from 5:30-7:45pm in your calendars for our fifth annual “Top Appeals” CLE, which will take place via Zoom again. We are in the process of reviewing and deciding on the top appeals of the year, so if anyone has any suggestions, please let us know. In the meantime, please register for the program by clicking here, which will take you to the OBA’s website.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

McMurter v. McMurter, 2020 ONCA 772

Keywords: Family Law, Spousal Support, Security, Civil Procedure, Procedural and Natural Justice, Reasonable Apprehension of Bias, Divorce Act R.S.C. 1985, c. 3, (2nd Supp.), ss. 15.2, 17(3), Indian Act, R.S.C., 1985, c. I-5, R. v. S. (R.D.), [1997] 3 S.C.R. 484, D.G. v. A.F., 2015 ONCA 290

Cosentino v. Cosentino, 2020 ONCA 775

Keywords: Family Law, Support, Orders, Variation, Material Change in Circumstances, Willick v. Willick, [1994] 3 S.C.R. 670

Onley v. Whitby (Town), 2020 ONCA 774

Keywords: Torts, Negligence, Occupiers’ Liability, Standard of Care, Reasonable Measures, Expert Evidence, Occupiers’ Liability Act, ss. 3(1), Drummond v Cadillac Fairview Corporation Limited, 2019 ONCA 0447, Tondat v Hudson’s Bay Company, 2019 ONCA 0302

GIAO Consultants Ltd. v. 7779534 Canada Inc., 2020 ONCA 778

Keywords: Civil Procedure, Conflict of Laws, Jurisdiction, Forum Non Conveniens, Standard of Review, Club Resorts Ltd. v. Van Breda, 2012 SCC 1, Young v. Tyco International of Canada Ltd., 2008 ONCA 709, Haaretz.com v. Goldhar, 2018 SCC 28

Malik v. Attia, 2020 ONCA 787

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Subdivision Control, Deposits, Forfeiture, Civil Procedure, Partial Summary Judgment, Planning Act, R.S.O. 1990, c. P.13, ss. 50(3), 50(15), Baker v. Nero (1979), 23 O.R. (2d) 646 (H.C.), Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6, Komorowski v. Van Weel (1993), 12 O.R. (3d) 444 (Gen. Div.), Lapolla v. The Estate of John Bostock, 2017 ONSC 7448, Smith v. Tellier (1974), 47 D.L.R. (3d) 342 (Ont. C.A.), rev’d on other grounds [1976] 2 S.C.R. 255, Zender v. Ball (1975), 51 D.L.R. (3d) 499 (Ont. H.C.), 2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2015 ONSC 7982, Hryniak v. Mauldin, 2014 SCC 7, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, Weirfoulds LLP, Ontario Planning Practice: Annotated Statutes and Regulations (Toronto: Thomson Reuters, 2019), at PA 1, s. 50(15); Practical Law Canada, “Simultaneous Conveyancing When Land in Both Registry and Land Titles” (Thomson Reuters, October 2020), Ian Rogers & Alison Butler, Canadian Law of Planning and Zoning, 2nd ed. (Toronto: Thomson Reuters, 2019)

Dhatt v. Beer, 2020 ONCA 799

Keywords: Civil Procedure, Appeals, Expediting Appeal, Intervention, Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Specific Performance

Short Civil Decisions

Sparr v. Downing, 2020 ONCA 793

Keywords: Family Law, Child Support, Financial Disclosure, Family Law Rules, O. Reg. 114/99, Roberts v. Roberts, 2015 ONCA 450, Manchanda v. Thethi, 2016 ONCA 909, leave to appeal refused, [2017] S.C.C.A. No. 29, Peerenboom v. Peerenboom, 2020 ONCA 240,

614128 Ontario Ltd. (Trisan Construction) v. Toronto (City), 2020 ONCA 803

Keywords: Construction Law, Trust Obligations, Statutory Holdback, Settlements, Construction Lien Act, R.S.O. 1990, c. C.30

Bonus Provincial Offences Decision 

R. v. Irwin , 2020 ONCA 776

Keywords: Provincial Offences, Building Code Violations, Administrative Law, Orders, Collateral Attack, Building Code Act, ss. 1, ss. 8(1), ss. 12(2), ss. 25, ss. 36(1), R v Consolidated Maybrun Mines Ltd., [1998] 1 SCR 706, Wilson v The Queen, [1983] 2 SCR 594, R v Bird, 2019 SCC 7, Garland v Consumers’ Gas Co., 2004 SCC 25, Amtim Capital Inc. v Appliance Recycling Centers of America, 2014 ONCA 62, R v Domm, (1996) 31 OR (3d) 540 (CA), Canada (Attorney General) v Telezone Inc., 2010 SCC 62, Toronto (City) v CUPE, Local 79, 203 SCC 63, 864503 Alberta Inc. v Genco Place Properties Ltd., 2019 ABCA 80

CIVIL DECISIONS

McMurter v. McMurter, 2020 ONCA 772

[Feldman, Simmons and Harvison Young JJ.A]

Counsel:

K. A. M., acting in person

A. Rogerson, for the appellant

Keywords: Family Law, Spousal Support, Security, Civil Procedure, Procedural and Natural Justice, Reasonable Apprehension of Bias, Divorce Act R.S.C. 1985, c. 3, (2nd Supp.), ss. 15.2, 17(3), Indian Act, R.S.C., 1985, c. I-5, R. v. S. (R.D.), [1997] 3 S.C.R. 484, D.G. v. A.F., 2015 ONCA 290

facts:

The appellant, former husband, appealed from an order dated December 28, 2018, in which the motion judge dismissed the appellant’s motion requesting that she recuse herself from continuing to preside in this proceeding based on a reasonable apprehension of bias.

In the same order, the motion judge dismissed as moot a motion by the respondent, former wife, seeking to prevent the appellant from selling one of four properties (the “Bell’s Side Road property”) over which the wife had an order for security for future spousal support (the “security order”). As of the date of the motion, the appellant no longer had a buyer for the property. The motion judge also dismissed the respondent’s motion requesting that the appellant transfer to her the four properties to which the security order applied and the appellant’s motion to remove the security order from all four properties.

The motion judge made the security order following the trial of a 2016 change motion brought by the appellant in which he sought to terminate spousal support payable to the respondent. The motion judge observed at the time of making the order for security, that the order was subject to the Indian Act, which requires approval of the relevant band and the Minister of Indian Affairs and Northern Development. She found that the bases for the security order included the appellant’s past history of refusing to pay support when he had the ability to do so and lying to the court about his income. Among other things, in her 2016 change motion order, the motion judge dismissed the appellant’s request to terminate spousal support; granted the respondent’s request for the security order under the Divorce Act, and seized herself of issues arising from the change motion order.

In her reasons for the 2016 change motion order, the motion judge concluded that the appellant failed to make full disclosure, that certain disclosure he did provide was deliberately misleading and that certain values he put forward were deliberately false.

The appellant appealed and sought an order for a new hearing of the underlying motions.

issues:
  1. Did the motion judge err in failing to conclude that various adverse findings she made concerning the appellant in her reasons for the 2016 change motion order gave rise to a reasonable apprehension of bias?
holding:

Appeal dismissed.

reasoning:

No, the Court saw no basis on which to interfere with the motion judge’s decision not to recuse herself. Judges are presumed to be impartial and the test for apprehension of bias establishes a high threshold. It requires that any apprehension of bias be a reasonable one, held by reasonable and right-minded persons. It asks what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he or she think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly?

Here, the Court found that the motion judge’s 2016 change motion findings were neither unnecessary nor abusive. They were factual findings made following the change motion trial that were necessary to the proper adjudication of the issues in that proceeding. Significantly, the findings stood unchallenged in the ongoing proceedings between the parties, as the appellant did not pursue his appeal in 2016 and ultimately it was dismissed for delay.

Additionally, the Court found that the appellant did not raise an allegation of bias in his notice of appeal of the 2016 change motion order; nor did he raise the issue of bias on the initial argument of the security order motions. The Court held that the motion judge’s finding that the motivation for the recusal motion was the appellant’s disagreement with the judge’s May 7, 2018 order was supported by the record.

In any event, the Court was not satisfied that the motion judge’s adverse credibility findings in her 2016 change motion reasons, standing alone, compromised her impartiality in relation to the issues before her on the 2018 security order motions. The main issue was whether the remaining security would be sufficient if the appellant was permitted to dispose of the Bell’s Side Road property. Prior to the recusal motion, the motion judge had already determined that the remaining security would be sufficient.

The Court also observed that, particularly in family law proceedings, where, as here, parties may appear in court repeatedly, judicial continuity is recognized as promoting both efficiency and fairness. Here, the motion judge’s knowledge of the history of the matter not only saved judicial resources, it contributed to her ability to determine the appropriate outcome at both the March, April, and October 2018 hearings. She understood the basis for the security order and how it was calculated. Although adverse credibility findings may conceivably give rise to a reasonable apprehension of bias in the specific circumstances of a particular case, the Court was satisfied that the motion judge’s 2016 change motion findings created no such apprehension in relation to the 2018 security order motions.


Cosentino v. Cosentino, 2020 ONCA 775

[MacPherson, Zarnett and Jamal JJ.A.]

Counsel:

G.S. Campbell, for the appellant

H.M. Evans, for the respondent

Keywords: Family Law, Support, Orders, Variation, Material Change in Circumstances, Willick v. Willick, [1994] 3 S.C.R. 670

facts:

The respondent commenced divorce proceedings from the appellant in 2013. Following contentious proceedings, Douglas J. fixed child support at $1,652 monthly and spousal support at $1,121 monthly.

The appellant appealed these orders, which was ultimately dismissed due to the appellant’s failure to make the interim child and spousal support payments ordered, in addition to not perfecting the appeal on a timely basis.

Four days following the dismissal of the appeal, the appellant brought a motion to change the orders made by Douglas J., based on a material change in circumstances. The claim for a change in circumstances focused on the appellant’s alleged inability to continue to work in his long-time employment as an insurance broker, as well as a sharp deterioration in his health.

The motion judge determined that although the appellant’s income had decreased significantly since Douglas J.’s order in 2016, the appellant was the author of his own misfortune due to his initiative to become “intentionally underemployed”, rather than due to the deterioration in his health. As such, the motion was dismissed.

issues:

(1) Did the motion judge misconstrue the law on a change of circumstances?

(2) Did the motion judge err in not taking sufficient account of his age and retirement in reaching his decision?

holding:

Appeal dismissed.

reasoning:

(1) Did the motion judge misconstrue the law on a change of circumstances?

No. In Willick v. Willick, [1994] 3 S.C.R. 670, the Court held that a “material change of circumstances” requires a change that, if known at the time, would have resulted in different terms. Related to this point, if the matter which is relied on as constituting a “change” was known at the relevant time, it cannot be relied on as the basis for the variation.

In support of his motion for a change in the order, the appellant submitted numerous notes from physicians, psychotherapists and psychiatrists. However, this evidence significantly related to the appellant’s condition dating back prior to the hearing before Douglas J. in 2016. Further, none of this evidence was led at the hearing.

As a result, the Court found that as per the law in Willick regarding matters that existed at the relevant time, in addition to the principle that orders in family law should not be departed from lightly, the appellant did not meet the requisite test.

As an aside, the Court also noted that the appellant commenced the motion to change only four days after the initial appeal was dismissed, and only after other attempts to reduce support payments were unsuccessful.

(2) Did the motion judge err in not taking sufficient account of his age and retirement in reaching his decision?

No. Once again, the Court referred to the chronology of events. There was nothing in the record in the matter before Douglas J., nor in the subsequent appeal, that raised the issue of the appellant’s age or imminent retirement. As a result, the Court saw no basis to interfere with the motion judge’s conclusion that the appellant is “intentionally underemployed” and that his underemployment “is a direct result of the decisions he made which I find were made intentionally to avoid or reduce the payments of child and spousal support.”


Onley v. Whitby (Town), 2020 ONCA 774

[Doherty, Roberts and Harvison Young JJ.A.]

Counsel:

D.A. Morin and P.M. Reinitzer, for the appellants

C.M.K. Loopstra and P.E.F. Martin, for the respondent

Keywords:Torts, Negligence, Occupiers’ Liability, Standard of Care, Reasonable Measures, Expert Evidence, Occupiers’ Liability Act, ss. 3(1), Drummond v Cadillac Fairview Corporation Limited, 2019 ONCA 0447, Tondat v Hudson’s Bay Company, 2019 ONCA 0302

facts:

The appellant was electrocuted while playing on a soccer field owned by the respondents. A few months before the incident, a light pole on the soccer field was struck by lightning, causing damage to the internal wiring which in turn caused current to leak into the ground nearby. When the appellant was playing on the field, this current entered her body and electrocuted her. The appellant sued the respondent under the Occupiers’ Liability Act (“OLA”).

At trial, the judge found that while the possibility of the pole being damaged by lightning was foreseeable, the subsequent electrocution from playing on the ground was not. The trial judge also held that the respondent had met its standard of care under the OLA, namely through a safety agreement with Electrical Safety Authority (“ESA”), annual inspections by the ESA and compliance advice from the ESA. The appellants suggested at trial that the respondents should have adopted additional measures (most importantly the use of ‘pen testers’ to test the ground for stray voltage), which if they had been adopted, would have prevented the incident. They also submitted that the respondent was in breach of its safety agreement. The trial judge rejected these submissions, holding that they went well beyond the statutory minimums required under the OLA and that the respondent was not in breach of its safety agreement.

issues:
  1. Did the trial judge err in their conclusion as to when the lightning strike occurred, damaging the light pole?
  2. Did the trial judge err in allowing the respondent’s expert to testify on the efficacy of pen testers, even though the expert’s report did not include such opinion?
  3. Did the trial judge err in rejecting the pen testers as a reasonable measure that could have prevented the incident?
holding:

Appeal dismissed.

reasoning:

Section 3(1) of the OLA requires occupiers 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 Court of Appeal confirmed that this does not require perfection, and that reasonability is fact dependent.

(1) No.

The main issue on this ground of appeal was the date when the damage to the pole was caused. If it had been caused prior to the last inspection, the respondent may have been liable for not discovering the damage during the inspection. However, the trial judge found that it had occurred during a storm only a few months earlier, such that the only alternative measure proposed by the appellant that could have been of assistance were the pen testers. The Court of Appeal found that the trial judge carefully considered the factual record and saw no reason to overturn this finding of fact.

(2) No.

The issue of efficacy of pen testers was raised by the appellant’s expert witness during examination in chief. The respondent’s expert’s testimony was given in response to this. The respondent expert testified that the pen testers suggested by the appellant would not be useful as they would not differentiate between normal electricity running through wires in the ground or electricity leaking from those wires. The appellants submitted on appeal that this testimony should not have been allowed because it was not in the experts’ report. The Court of Appeal found that the trial judge properly exercised their discretion in admitting the evidence because there was no prejudice to the appellants. They were given the opportunity to cross-examine the expert, and the trial judge offered the appellants an opportunity to adjourn to prepare reply evidence. The appellants chose not to do this. Since the evidence was raised in reply to an issue raised by the appellants and there was no prejudice, the Court of Appeal held there was no error in law committed.

(3) No.

The Court of Appeal found no error in the trial judge’s holding that the pen testers were not a reasonable measure. The trial judge considered the conflicting evidence of the two experts and found the evidence of the respondent’s expert more convincing. This finding was open to the trial judge based on the record, and he gave detailed reasons for his decision to do so.

(4) Other Issues

While the Court of Appeal decided the appeal at the standard of care stage of the analysis, it also briefly addressed the appellant’s arguments on errors in the trial judge’s assessment of foreseeability and damages. The Court made it clear that it did not endorse the analysis or conclusion of the trial judge. It simply did not consider those other issues, as the standard of care issue was determinative.

The appellants also sought leave to appeal the trial judge’s cost award against them. Leave was granted, but the costs appeal was dismissed as the trial judge’s assessment was fair and reasonable.


GIAO Consultants Ltd. v. 7779534 Canada Inc., 2020 ONCA 778

[MacPherson, Zarnett and Jamal JJ.A.]

Counsel:

S. Bennett, for the appellants

A. G. Munera and B. Mendiola, for the respondent

Keywords: Civil Procedure, Conflict of Laws, Jurisdiction, Forum Non Conveniens, Standard of Review, Club Resorts Ltd. v. Van Breda, 2012 SCC 1, Young v. Tyco International of Canada Ltd., 2008 ONCA 709, Haaretz.com v. Goldhar, 2018 SCC 28

facts:

The respondent, GIAO Consultants Ltd. (“GIAO”) issued a statement of claim against the appellants and others for breach of contract, negligence, intentional misrepresentation, breach of trust and/or fiduciary duty, and civil conspiracy.

The appellant did not submit to the jurisdiction of Ontario courts and brought a motion to challenge the jurisdiction of the Ontario courts, or, in the alternative, to seek a declaration that Ontario was forum non conveniens to determine the proceeding. In the contract between the appellants and respondent, there was a clause that provided the governing law would be the laws of the Province of Quebec. The motion judge rejected both components of the appellants’ claim. She found that Ontario courts had jurisdiction simpliciter to hear and determine the claim and that Ontario courts were not forum non conveniens for the appellants’ claim.

issues:
  1. Did the motion judge err in finding that the Ontario courts have jurisdiction over the action?
  2. Did the motion judge err in finding that Ontario was forum conveniens for the action?
holding:

Appeal dismissed.

reasoning:

(1) No. The motion judge did nothing more than acknowledge the limits of what was available to her and upon which she was required to make her determination based on the Van Breda factors. The fact that there was no statement of defence available did not lead to an adverse inference. The motion judge’s findings would not flow through and be determinative of the issues at trial; rather, they were based only upon the evidence available at the time of the motion for the purpose of assessing the presumptive connecting factors relating to the issue of jurisdiction. The motion judge was required to make some findings for the purpose of providing a decision on the motion and was permitted to rely on the respondent’s evidence for this purpose: Young v. Tyco International of Canada Ltd., 2008 ONCA, at para. 31.

(2) No. The trial judge did not state, in absolute terms, that hiring an expert to interpret Quebec law would not be necessary. She specifically saw the possibility that an expert would be required (“If that were necessary”) and then said that the cost of an expert would not render the proceedings in Ontario unfair. A motion judge’s decision on a forum non conveniens issue is a discretionary one; an appellate court should intervene only if the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision: Haaretz.com v. Goldhar, 2018 SCC 28, at para. 49.

The appellants’ assertion on the forum non conveniens issue that the motion judge erred in saying that “the most that can be said at this stage is that the laws of Quebec may apply” was inconsistent with the argument the appellants made on the jurisdiction issue. On that issue, the appellants said that the motion judge erred by making findings relating to the merits of the claim in the underlying action and that those findings would improperly flow through and bind the trial judge. Now, on the forum non conveniens issue, the appellants criticized the motion judge’s tentative language (“may apply”) on the basis that it “completely disregards the express wording of the contract and the agreement of the parties that the contract is governed by the laws of Quebec”. In addition, the Governing Law clause of the contract, although the wording is explicit on governing law (“the Province of Quebec”), the clause also refers to “the non-exclusive jurisdiction of the courts of such Province”. Moreover, it was important that there were both contract and tort claims in the statement of claim and this may raise difficult questions of the applicable law.


Malik v. Attia, 2020 ONCA 787

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

Counsel:

S.A. Rosen, for the appellants

H. Dhaliwal, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Subdivision Control, Deposits, Forfeiture, Civil Procedure, Partial Summary Judgment, Planning Act, R.S.O. 1990, c. P.13, ss. 50(3), 50(15), Baker v. Nero (1979), 23 O.R. (2d) 646 (H.C.), Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6, Komorowski v. Van Weel (1993), 12 O.R. (3d) 444 (Gen. Div.), Lapolla v. The Estate of John Bostock, 2017 ONSC 7448, Smith v. Tellier (1974), 47 D.L.R. (3d) 342 (Ont. C.A.), rev’d on other grounds [1976] 2 S.C.R. 255, Zender v. Ball (1975), 51 D.L.R. (3d) 499 (Ont. H.C.), 2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2015 ONSC 7982, Hryniak v. Mauldin, 2014 SCC 7, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, Weirfoulds LLP, Ontario Planning Practice: Annotated Statutes and Regulations (Toronto: Thomson Reuters, 2019), at PA 1, s. 50(15); Practical Law Canada, “Simultaneous Conveyancing When Land in Both Registry and Land Titles” (Thomson Reuters, October 2020), Ian Rogers & Alison Butler, Canadian Law of Planning and Zoning, 2nd ed. (Toronto: Thomson Reuters, 2019)

facts:

The Seller owned two abutting properties in Mississauga, ON (the “Properties”). Since 1983, the properties were always conveyed together to the same new owners. The Seller acquired the Properties in 2013 and listed the Properties for sale in 2016. She indicated in the listing that the city had consented to subdivision, but that the Properties were to be sold together.

In October 2016, the Buyers entered into two agreements of purchase and sale which provided that the purchase price for each Property was $725,000, the deposit $50,000, and that closing would occur no later than December 8, 2016. The Buyers paid the deposits totalling $100,000, which the defendant brokerage continues to hold in trust. Neither Agreement contained a mortgage financing condition, and the Buyers had waived or deleted the provisions stipulating that their offers were conditional upon the approval of the terms by their solicitor.

The Ontario Real Estate Association standard form was used for the Agreements, which contained the following clause regarding the Planning Act:

  1. PLANNING ACT: This Agreement shall be effective to create an interest in the property only if Seller complies with the subdivision control provisions of the Planning Act by completion and Seller covenants to proceed diligently at Seller’s expense to obtain any necessary consent by completion.

Schedule C to the Agreements contained a sketch of the Properties for use on an Application for

Consent, which showed that one Property would be severed from the other. The Mississauga Committee of Adjustment had approved the Seller’s application to sever the Properties subject to the condition that the approval be fulfilled by July 2017. This information was provided to the Buyers.

In November 2016, Buyers’ counsel emailed Seller’s counsel requisitions for each Property that required satisfactory evidence of compliance with the Planning Act prior to closing. The requisitions also required the Seller to execute and return a statutory declaration to Buyers’ counsel before closing which included this wording:

I do not retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment with respect to any land abutting the lands being conveyed in the subject transaction.

On December 7, 2016, Seller’s counsel sent Buyers’ counsel a letter enclosing the keys and closing documents to be held in escrow until the transfers had been registered. In the enclosed Statutory Declarations, the above-noted paragraph had been amended by blacking out the word “not”, so that it read “I do [blacked out] retain the fee or the equity of redemption…”

The transactions did not close because the Buyers did not have firm mortgage financing in place.

By January 12, 2017, Seller’s counsel had advised Buyers’ counsel that the Buyers were in fundamental breach of the Agreements and that the Buyers’ deposits would be forfeited. Buyers’ counsel and real estate agent subsequently made various proposals to the Seller to revive and restructure the transactions. Seller filed her claim for forfeiture of the deposit and breach of contract against the Buyers on January 30, 2017. In April 2019, the Seller moved for summary judgment. By that time, the Properties had not been re-sold.

The motion judge addressed two issues. First, the Buyers argued that the amended Statutory Declarations stated that the Seller was retaining the fee or equity of redemption in the abutting parcel, thereby contravening the subdivision control provisions of the Planning Act. According to the Buyers, this meant that the Seller’s tender was defective, that she had repudiated the Agreements, and the Agreements were invalid. The motion judge rejected this submission, holding that the Buyers’ offers indicated their intention to purchase both parcels together and treat the Properties as merged and capable of being sold simultaneously in the same transaction. He also noted that the subdivision control provisions of the Planning Act did not apply to a mistake made between the executing parties. He concluded that the Seller did not breach the Agreements by presenting the amended Statutory Declarations to the Buyers, but that the Buyers breached the Agreements on January 10, 2017, when they failed to pay the amounts due on closing. Thus, there was no genuine issue requiring a trial regarding breach of the Agreements.

The second issue was the Buyers’ contention that granting partial summary judgment would offend the principle that such relief should only be granted rarely. Instead, the Buyers argued the motion judge should have set the action down for trial. Again, the motion judge disagreed, holding that the facts regarding the breach of contract issue were not in dispute, making this one of the rare cases in which partial summary judgment was appropriate. He directed a trial on the issues of damages and forfeiture of the deposit. The Buyers appealed, arguing that the motion judge wrongly decided both issues.

issues:

(1) Did the motion judge err by concluding there was no genuine issue regarding trial with respect to whether the Buyers had breached the Agreements?

(2) Did the motion judge err by granting partial summary judgment where it was inappropriate to bifurcate the claim, given the nature of the issues and the risk of inconsistent findings of fact?

holding:

Appeal dismissed.

reasoning:

(1) No. The Buyers advanced two arguments. First, they asserted that the motion judge erred in holding that they breached the Agreements. The Buyers acknowledged they lacked the funds to complete the transactions by the closing date, but argued that the Agreements did not comply with the subdivision control provisions of the Planning Act and therefore were void. Furthermore, the Buyers submitted that the evidence did not permit the motion judge to conclude that the Buyers intended to purchase both parcels in a single transaction. Second, the Buyers argued that the Seller tendered defective closing documents, which signalled that she was not ready, willing and able to provide marketable title on closing.

The Court emphasized the undisputed factual backdrop that the Buyers lacked the funds to purchase the Properties on any of the scheduled closing dates. Thus, in respect of the mutually dependent promises to pay and to convey, the Buyers were not ready, willing, and able to perform their promise to pay. The Buyers contended that they were entitled to point to defective performance by the Seller to justify their own non-performance even if they were ignorant of the deficiency at the time of termination. The Court disagreed, and stated it was difficult to see how the Buyers could assert that they were not aware, at the time of the scheduled closings, of the alleged defects in title and tender on which they rested their appeal.

Simultaneous conveyances of abutting properties involving the same parties merge the properties for Planning Act purposes. The parties agreed that the Properties so merged in 1983. The motion judge’s finding that the parties regarded the sale and purchase of the Properties as a single transaction was amply supported by the evidence. Buyers’ counsel conceded that closing both Agreements simultaneously was permissible under the Planning Act and, if the deals had closed at the scheduled times, they would have complied with the Planning Act. The jurisprudence and practice literature supported this view. The Court held that by entering into the two Agreements to sell the abutting Properties to the same purchaser with the same closing date, the parties clearly treated the purchase and sale of the Properties as a single transaction, and found that the Agreements contemplated that there would be simultaneous conveyances that conformed to s. 50(15) of the Planning Act on closing.

The Buyers’ second argument was based on the amendments the seller made to the Statutory Declarations. The Seller had blacked out the word “not” so that it read:

I do [blacked out] retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment with respect to any land abutting the lands being conveyed in the subject transaction.

The Buyers submitted that this amendment invalidated the Seller’s tender of documents, and argued that the Seller must have known she was attempting to close the transactions in violation of the Planning Act. The Court rejected this submission too, as it ran counter to the weight of the evidence.

In the Court’s view, it did not matter whether the amendments resulted from an error or from punctiliousness. Evidence regarding the Seller’s conduct demonstrated that the amendments to the Statutory Declarations were made in the context of the Seller’s communicated intention that the Agreements would culminate in the simultaneous conveyance of the Properties. In three separate communications, Seller’s Counsel reiterated to Buyers’ counsel that Seller owned both Properties, the parcels were part lots, and that the Buyers made the offer to purchase with full knowledge that the Properties had merged being abutting lands. These clearly indicated that the Seller sought to close the transactions in compliance with the Planning Act.

When read in the context of the Seller’s communications showing that the Agreements called for simultaneous conveyances, the amendments to the Statutory Declarations could not be characterized as a defect in the tendered documents or a failure to answer the Buyers’ requisition. On the contrary, the Seller made it clear that she was ready, willing, and able to convey marketable title to the Properties in compliance with the Planning Act, thereby fulfilling her obligation under the Agreements. Accordingly, the Court found no error in the motion judge’s conclusion that the Buyers breached the Agreements on January 10, 2017 when they failed to pay the full amounts owing upon closing.

(2) No. The Buyers argued that the motion judge erred in granting partial summary judgment as this was a complex, multi-issue case with facts and credibility issues in dispute. They contended that the motion judge’s findings would unfairly bind the trial judge, who considered the issues of relief from forfeiture and the claim for damages.

The Court was not persuaded. On the issues as pleaded and the affidavit evidence, the risk of inconsistent findings of fact on the liability issues and the issues of forfeiture and damages was seen as minimal. The risk of inconsistent findings was only one of several matters the motion judge was required to consider. When deciding whether to grant summary judgment, in whole or in part, a motion judge must determine whether, in the circumstances, partial summary judgment will achieve the objectives of proportionate, timely, and affordable justice or, instead, cause delay and increase expense.

That being said, this case involved a modest amount of money and could be distilled down to the question of who was entitled to the $100,000 in deposits. The case had the potential to fall within the monetary limits of a simplified procedure action. Bifurcating a simplified procedure action invariably would push legal costs into the realm of the disproportionate. The Court also noted that by the time the issues were finally adjudicated, the action would have languished in the Ontario civil court system for four to five years, an unconscionable amount of time for an action involving this amount of money.

Given the foregoing, the Court strongly disagreed with the Seller’s decision to move for partial summary judgment. That being said, the Court stated this was not a ground for appellate intervention. To set aside the partial summary judgment solely on the basis that the process added cost and delay would, in its own turn, only add more cost and delay.


Dhatt v. Beer, 2020 ONCA 799

[Brown J.A. (Motion Judge)]

Counsel:

A. Herschorn, for the moving parties, M.D. and K.D.

D.P. Lees and Z. Silverberg, for the responding parties, D.B. and I.B.

S.L. Rosenberg, for the responding parties, J.B. and Re/Max West Realty Inc., Brokerage

E. Rogers, for the moving intervenor, Rogers & Company Professional Corporation

M. Rotman, for the execution creditors, M.S. and C.S.

Keywords: Civil Procedure, Appeals, Expediting Appeal, Intervention, Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Specific Performance

facts:

This case involved two motions relating to an appeal from an order of specific performance. In 2016, the moving parties (the “Purchasers”) entered into an agreement of purchase and sale for a house owned by the responding parties (the “Vendors”). The Vendors defaulted on the agreement and the Purchasers brought an action seeking specific performance. In March of 2020, specific performance was granted and the Vendor’s third party claim against their brokers (the other responding party) was dismissed when the Vendors did not participate in the trial after failing to obtain an adjournment. Substantial indemnity costs were ordered against the Vendors in relation to both actions. In July, the trial judge issued the ‘Transaction Order’ which outlined a process for the Vendors to deliver up vacant possession of the property to the purchasers.

The Vendors appealed both the trial judgment and the Transaction Order, and moved for a stay of the trial judgment pending the appeals. This motion was refused when the Purchasers undertook not to deal with the subject property while the appeals were ongoing. As part of this motion, the motion judge stated that the cost orders under the trial judgment were stayed under the Rules of Civil Procedure.

The Purchasers took possession of the home in September, 2020 but the sale had not yet closed. While the attorney for the Vendors was preparing a statement of adjustments, it became apparent that there were roughly $1,000,000 worth of encumbrances on the property (mortgages, real estate commissions, taxes, the cost orders, executions in favour of M.S. and C.S. and executions in favour of Rogers & Company (“Rogers”). However, the purchase price under the agreement and the trial judgement was only $835,000, leaving a shortfall. As part of the trial judgment, the trial judge held that the Purchasers were to deduct from the purchase price the amount of the cost orders, resulting in them receiving full value for their claims while other creditors would be forced to accept less than face value of their claims.

In related proceedings, Rogers has moved before the Superior Court to vary the trial judgment so that the sale be conducted at the now fair market value of the property (close to $1.5 million) which would allow all creditors to get what they are owed.

The Purchasers brought a motion seeking to expedite the Vendors’ appeal, requiring the Vendors to post security for costs and seeking to lift the stay of the cost orders. In a second motion, Rogers sought leave to intervene as an added party on the Purchasers’ motion and to request that the Purchasers’ motion be delayed until after Rogers motion before the Superior Court is disposed of.

issues:
  1. Should the Purchaser’s motion be granted?
  2. Should Rogers be granted leave to intervene as an added party?
holding:

Purchasers’ motion granted in part. Rogers’ motion dismissed.

reasoning:

(1) Purchasers’ Motion

The responding and intervening parties sought to have this motion dismissed or delayed until the Superior Court proceedings were disposed of. The Court of Appeal was unwilling to do so. The Court of Appeal was the proper forum to decide the appeals from the trial judgment and the Transaction Order, and the Superior Court was the proper forum for the priority dispute between the creditors. While these proceedings were interrelated, they need not be determined in any particular order.

Beyond the argument that the Superior Court proceedings should be disposed of first, the Vendors offered no persuasive reason as to why the appeals should not be expedited and so the motion for an expedited appeal was granted. Given the expedited appeal date, set for February, 2021, the Purchasers abandoned the other elements of their motion (security for costs and lifting the stay of the cost order).

(2) Rogers’ Motion

The Court of Appeal was very appreciative of the materials filed by Rogers, as they helped illuminate the factual background and outline the guiding principles used to decide the Purchasers’ motion. However, Rogers’ motion for leave to intervene was so that they could argue issues of priority between the creditors. Given that the Superior Court was the proper forum for the priority dispute, there was no reason for Rogers to intervene on the appeals. Rogers’ motion for leave to intervene was therefore dismissed.


SHORT CIVIL DECISIONS

Sparr v. Downing, 2020 ONCA 793

[van Rensburg, Benotto and Thorburn JJ.A.]

Counsel:

K. Kernisant for the appellant, B.R.J.S.

I. Vallance for the respondent, D.L.D.

Keywords: Family Law, Child Support, Financial Disclosure, Family Law Rules, O. Reg. 114/99, Roberts v. Roberts, 2015 ONCA 450, Manchanda v. Thethi, 2016 ONCA 909, leave to appeal refused, [2017] S.C.C.A. No. 29, Peerenboom v. Peerenboom, 2020 ONCA 240

614128 Ontario Ltd. (Trisan Construction) v. Toronto (City), 2020 ONCA 803

[Lauwers, Miller and Nordheimer JJ.A]

Counsel:

K. J. McKenzie for the appellant, 614128 Ontario Ltd. o/a Trisan Construction

M. Wright and G. Tanner for the respondent, City of Toronto

Keywords: Construction Law, Trust Obligations, Statutory Holdback, Settlements, Construction Lien Act, R.S.O. 1990, c. C.30


BONUS PROVINCIAL OFFENCES DECISION

R. v. Irwin, 2020 ONCA 776

[Doherty, Hourigan and Pardu JJ.A.]

Counsel:

G.C. Borean, for the appellant

C.G. Bendick, for the respondent

Keywords: Provincial Offences, Building Code Violations, Administrative Law, Orders, Collateral Attack, Building Code Act, ss. 1, ss. 8(1), ss. 12(2), ss. 25, ss. 36(1), R v Consolidated Maybrun Mines Ltd., [1998] 1 SCR 706, Wilson v The Queen, [1983] 2 SCR 594, R v Bird, 2019 SCC 7, Garland v Consumers’ Gas Co., 2004 SCC 25, Amtim Capital Inc. v Appliance Recycling Centers of America, 2014 ONCA 62, R v Domm, (1996) 31 OR (3d) 540 (CA), Canada (Attorney General) v Telezone Inc., 2010 SCC 62, Toronto (City) v CUPE, Local 79, 203 SCC 63, 864503 Alberta Inc. v Genco Place Properties Ltd., 2019 ABCA 80

facts:

The appellant was charged with failing to comply with several orders under the Building Code Act (the “Building Code”). Between 1973 and 1996 the appellant erected several buildings on his property and entered into site plans and applied for various building permits for them. In 1996, six orders were issued to him under the Building Code requiring him to obtain permits for the buildings or remove them. The order related to seven buildings (numbered 1-7 consecutively). The appellant testified that after receiving the 1996 orders, he gave his lawyer permits for buildings 1, 2 and 5-7. He did not believe buildings 3 and 4 required permits and so never obtained them.

The lawyer gave the permits to the building inspector and the charges were withdrawn. Sadly, the lawyer died in a fire at his office sometime thereafter and the permits and records relating to the 1996 orders were destroyed. In 2013, six new orders were issued against the appellant that were exactly the same as the 1996 orders, the only difference being that the 2013 orders stated that they replaced the 1996 orders. The appellant chose not to follow the appeal those orders, and instead chose to do nothing. The appellant was then charged with contravening the 2013 orders.

At trial, before a justice of the peace, the appellant’s defence was that he had in fact complied with the orders for buildings 1, 2 and 5-7, and that permits were not required for buildings 3 and 4. The Crown objected to this defence at trial, claiming it was a collateral attack on the validity of the orders, which would be impermissible. The justice of the peace found that the appellant was not attacking the validity of the order, but rather, arguing that he had complied with the order. This was not a collateral attack. After this determination, the justice of the peace made several factual findings and ultimately acquitted the appellant.

On appeal to the Ontario Court of Justice, the appellate judge reversed the trial decision, holding that the appellant’s position was in fact an impermissible collateral attack on the orders because s. 25 of the Building Code was the proper avenue for disputing an order.

The appellant was granted leave to appeal to the Court of Appeal.

issues:

Did the appellate judge err in holding that the appellant’s defence was an impermissible collateral attack on the validity of the orders?

holding:

Appeal allowed in part.

reasoning:

Yes in respect of some, but not all, of the orders. The Court of Appeal first endeavoured to state the law in Ontario on collateral attack. In general, “a collateral attack is defined as an attack on an order ‘made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order’”. It is a rule designed to protect the administration of justice and to prevent someone who has been charged with violating an order from arguing the validity of the order in their defence.

The Supreme Court of Canada (“SCC”) also developed a different approach to be taken when dealing with collateral attacks on the orders of administrative decision makers. Given the important function these administrative decision makers hold in our society and the importance of recognizing the legislature’s choices in empowering them, particular focus needs to be given. In Maybrun, the SCC laid out the framework as follows: a court must first determine whether there was a collateral attack; and secondly, the court must then determine if the legislative intent behind the governing legislation was to permit collateral attacks. In assessing the second factor, courts should consider the following five non-exhaustive factors:(1) the wording of the statute under the authority of which the order was issued; (2) the purpose of the legislation; (3) the existence of a right of appeal; (4) the kind of collateral attack in light of the expertise or raison d’être of the administrative appeal tribunal; and (5) the penalty on a conviction for failing to comply with the order.

There is also a residual discretion not to apply the rule against collateral attack. Since it is a rule designed to protect the administration of justice, in situations where the rigid application of the rule would create an injustice, it should not be so applied. However, when dealing in the administrative law space, the role of discretion is diminished, as courts are bound to give effect to the intentions of the legislature. This issue is not readily discussed in previous jurisprudence and is part of why leave to appeal was granted in this case.

The Court of Appeal also addressed another line of cases that defines collateral attacks as an attack on the validity of the order itself or its legal effect, rather than attacks on the factual basis underpinning an order. This line of cases is aptly illustrated by the SCC’s decision in Toronto (City) v CUPE, Local 79, 2003 SCC 63. In that case, a union member was convicted of sexual assault and subsequently terminated from his employment with the City of Toronto. In subsequent proceedings over the dismissal, the union argued that the factual grounds relied on in the conviction were wrong, an argument which the labour board accepted and found the employee had been dismissed without cause. On appeal to the Ontario Divisional Court, the decision was quashed as the union’s argument was an attempt to re-litigate the conviction and was thus a collateral attack. On further appeal to the SCC, the SCC rejected the application of collateral attack to the issue because the union was not arguing the validity of the conviction or its legal effect. Instead, the union was attacking the correctness of the factual basis for the conviction, which is different. While the SCC ultimately dismissed the appeal because the attack on the factual basis was an abuse of process, the comments on the rule against collateral attack were particularly salient and relied upon heavily in the appeal at hand.

The Court of Appeal noted that before determining whether a collateral attack is permissible, a court must first consider the nature of the argument or defence being raised. If is the argument attacks the validity of the order, the rule against collateral attack applies and the analysis needs to proceed to the next stage of assessing whether it was permissible. If the argument is more properly characterized as an attack on some factual underpinning of the order, or some consequence of the order that is predicated on accepting the validity and legal effect of the order, the rule against collateral attack does not apply and the analysis ends at that point.

Turning to the appeal at hand, the Court of Appeal subdivided the analysis into the orders relating to buildings i) 1, 2 and 5-7 and ii) the orders relating to building 3 and 4. The Court also noted that since it is a question of whether a legal principle applies, the standard of review is correctness.

i) Buildings 1, 2 and 5-7

While the justice of the peace did not consider the line of cases following Toronto (City) in her decision at trial, her analysis was in line with it. At trial, the justice found that the appellant was arguing that he had in fact complied with the orders and had obtained permits. To argue compliance, one must first acknowledge the validity and legal effect of an order. The Crown argued that the appeal judge was correct and that by saying that he had complied with the 1996 orders such that the 2013 orders were incorrectly made, the appellant engaged in a collateral attack. However, the Court of Appeal rejected this argument and found that the appellant’s argument was more aptly characterized as attacking the factual background of the 2013 orders in that he had complied with the previous orders. The appellant never argued that permits were not required for these buildings or that the orders should not have been made, he argued that he had complied with them. This was in line with the Toronto (City) case and so the Court of Appeal found there was no collateral attack.

The Court of Appeal also saw no error in the trial justice’s finding that the Crown had not proven the appellant’s guilt under the charges, and so allowed the appeal, reinstating the acquittal.

ii) Buildings 3 and 4

The Court of Appeal found that the rule against collateral attacks applied to buildings 3 and 4. For these buildings, the appellant did not argue that he had complied with the orders, but rather, he argued that the orders were incorrect in that buildings 3 and 4 did not require permits. This was a defence of a different nature than the appellant’s defence of the other charges, and amounted to the appellant saying the orders should never have been made, as buildings 3 and 4 did not meet the definition of building under the Building Code. This was an attack on the validity of the orders and the rule against collateral attacks thus applied. The defence sought to invalidate the orders in a proceeding whose specific object was not the reversal, variation or nullification of the order.

Thus, the Court of Appeal had to move on to analyze the Maybrun factors to determine whether it was a permissible collateral attack based on the legislative scheme of the Building Code.

Factor 1 – Wording of the Statute

This factor requires a court to analyze the wording of the governing statute and to determine what is required of the decision maker. Under the relevant sections of the Building Code, the inspector has a very formulaic job to perform – the inspector must assess whether the structure in question meets the definition of a building. If it does, an order is made requiring removal or a permit. There is no room for discretion or for weighing of policy goals. Where a statute requires nothing more than an application of the scheme, a task which any competent court can perform, there is no indication that the legislature intended to shield the inspector from collateral attack.

Factor 2 – Purpose of the Act

The Building Code aims to regulate building activity in Ontario to protect the safety of everyone. Building permits are used to prevent unsafe buildings from ever being erected in the first place. This is a very important purpose and would be undermined by permitting collateral attacks. By allowing persons to wait until penal proceedings to challenge an order, rather than requiring them to appeal within 20 days as is required under the statute, would greatly increase the amount of time that a potentially dangerous structure is in place. This undermines the purpose of the Building Code and its crucial safety functions and thus, this factors weighed in favour of not permitting collateral attacks.

Factor 3 – Right of Appeal

Section 25 of the Building Code provides a broad right of appeal. This weighs against permitting collateral attacks.

Factor 4 – The Kind of Collateral Attack at Issue

This factor focuses on whether the attack on an order requires considering factors that fall within an administrative appeal tribunal’s specific expertise. If the attack is based on matters falling out the decision maker’s realm of expertise, this would favour permitting collateral attacks. Since the appeal right under the Building Code lies to the Superior Court, rather than a specialized tribunal or board, there is no reason to believe that particular expertise is required. The Superior Court is not expert in the Building Code relative to any penal courts in Ontario, and so this factor weighed in favour of permitting collateral attacks.

Factor 5 – Penalty Consequences

This factor requires an analysis of the seriousness of consequences that could be faced under the order. For the appellant, there was no chance of imprisonment and no minimum fine. However, the maximum fines were $50,000 for a first offence and $100,000 for subsequent offences. While the maximum fines are quite large, the lack of minimum fines or imprisonment made this factor neutral in the Court’s eyes.

Application

No one factor was determinative under the Maybrun analysis. In this case, while some factors weighed in either direction, the Court felt that factors 2 and 3 were the most important, both of which weighed against permitting a collateral attack. The Building Code’s safety functions would be seriously undermined by permitting collateral attacks. As well, the legislature gave an efficient, expedient and robust appeal right to people against whom orders are issued. The fact that the appeal must be exercised within 20 days further signifies the importance of time in Building Code matters. Thus, the appellant engaged in an impermissible collateral attack of the orders for buildings 3 and 4. The appeal against these orders was dismissed and the conviction affirmed.


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.

Print:
EmailTweetLikeLinkedIn
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.