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Good afternoon,

Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 10, 2021.

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In Fontaine v. Canada (Attorney General), the Court of Appeal considered a motion for a stay pending appeal in the context of the ongoing Indian residential school settlement case. A stay was not granted, and a request for a preservation order with respect to documentary records of certain claimants was also dismissed.

In Dorman v. Economical Mutual Insurance Company, the Court upheld the motion judge’s ruling that no court actions are permitted with respect to disputes about entitlements or amounts of statutory accident benefits, and that the Licence Appeal Tribunal had exclusive jurisdiction over the issue.

In Knapp v. Knapp, the Court upheld the trial judge’s decision granting joint custody, parallel decision-making authority and equal parenting time. The Court also confirmed that the trial judge was not bound by the recommendation of the Office of the Children’s Lawyer, nor the status quo. When a trial judge makes extensive factual findings that reject the foundation of the report, the judge is entitled to make his or her own assessment of the best interests of the child.

Other topics covered this week included anti-SLAPP, the dismissal of an appeal challenging on Charter grounds an Ontario Securities Commission regulation that allows individuals to purchase stocks in the “exempt market” if they meet certain income and net worth thresholds, and several decisions relating to appellate jurisdiction.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Dorman v. Economical Mutual Insurance Company, 2021 ONCA 314

Keywords: Insurance, Statutory Accident Benefits, Administrative Law, Licence Appeal Tribunal, Torts, Breach of Statutory Duty, Negligent Investigation, Civil Procedure, Striking Pleadings, Jurisdiction, Class Proceedings, Settlements, Court Approval, Insurance Act, R.S.O. 1990, c. I.8, s. 280, Rules of Civil Procedure, Rules 21.01(1)(a) and 21.01(3)(a), Class Proceedings Act,1992, S.O. 1992, c. 6, Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615

Fontaine v. Canada (Attorney General), 2021 ONCA 313

Keywords: Civil Procedure, Class Proceedings, Indian Residential School Settlement, Appeals, Jurisdiction, Final or Interlocutory, Stay Pending Appeal, Documents, Preservation Orders, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2), BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 2257573 Ontario Inc. v. Furney, 2020 ONCA 742, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674), Heidari v. Naghshbandi, 2020 ONCA 757, Henderson v. Henderson, 2014 ONCA 571, Ducharme v. Hudson, 2021 ONCA 151

Grist v. TruGrp Inc., 2021 ONCA 309

Keywords: Torts, Defamation, Unlawful Interference with Economic and Contractual Relations, Abuse of Process, Labour and Employment, Successor Employers, Departing Employees, Unfair Competition, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, Grant v. Torstar, 2009 SCC 61, Raymond E. Brown, The Law of Defamation in Canada, loose-leaf, (2008- Rel. 3) 2 nd ed. (Scarborough: Carswell, 1999)

Knapp v. Knapp, 2021 ONCA 305

Keywords: Family Law, Custody and Access,  Maximum Contact Principle, Parenting Plan, Best Interests of the Child, Office of the Children’s Lawyer, Recommendations, Civil Procedure, Variation, Material Change in Circumstances,Offers to Settle, Substantial Indemnity Costs, Evidence, Hearsay, Fresh Evidence, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16(10) (as amended to section 16(6)), Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 20(1), Family Law Rules, O. Reg. 114/99, Rules 15 and 24, Folahan v. Folahan, 2013 ONSC 2966, Rigillo v. Rigillo, 2019 ONCA 647

Short Civil Decisions

2495940 Ontario Inc. v. 2633346 Ontario Inc., 2021 ONCA 312

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Enforcement, Priority, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53

Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 322

Keywords: Civil Procedure, Appeals, Jurisdiction, Leave to Appeal, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 134(3), 7(1) and 7(3), Rules of Civil Procedure, rule 61.16(2.2)

Hilson v. Evans, 2021 ONCA 318

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Transfer, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 110(1), Sprenger v. Paul Sadlon Motors Inc., 2006 CarswellOnt 6004 (CA)

Latner v. Ontario Securities Commission, 2021 ONCA 316

Keywords: Securities, Purchase, “Exempt Market”, Income Threshold, Constitutional Law, Equality Rights, Analogous Grounds, Economic Class, Canadian Charter of Rights and Freedoms, s. 15(1), Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42

CIVIL DECISIONS

Dorman v. Economical Mutual Insurance Company, 2021 ONCA 314

[Huscroft, Nordheimer and Harvison Young JJ.A.]

Counsel:

G. Frelick, D. Salmon and A. Mortimer, for the appellants/respondents by way of cross-appeal (C68563) and the respondents/respondents by way of cross-appeal (C68566) Her Majesty the Queen in Right of Ontario, P.H. and B.M.

R. Bohm, P. Harte, J. Ralston and K. Kemp, for the respondent/respondent by way of cross-appeal (C68563) and the appellant/respondent by way of cross-appeal (C68566) B.D., and for the respondents (C68563) and the appellants/respondents by way of cross-appeal (C68566) J.M., W.E., J.N, D.M., M.B., J.R.R., M.C, G.G., B.N. and D.S., and for the respondents (C68563) and the appellants (C68566) S-L.B., C.B. and K.B., and for the respondent/respondent by way of cross-appeal (C68563) and the appellant (C68566) F.S.

M. Gelowitz, L. Fric and C. Breadon, for the respondent/appellant by way of cross-appeal (C68563 & C68566) Economical Mutual Insurance Company

B. Shaw and S. Mamo, for the respondents (C68563 & C68566) Intact Financial Insurance and Belair Insurance Company Inc.

P. Martin, S. Armstrong and D. Samadmoten, for the respondents (C68563) and the respondents/appellants by way of cross-appeal (C68566) Aviva Insurance Company of Canada, Co-operators General Insurance Company, CUMIS General Insurance Company and Gore Mutual Insurance Company

A. Hamilton, for the respondent (C68563) and the respondent/appellant by way of cross-appeal (C68566) Wawanesa Mutual Insurance Company

C. Lonsdale and A. Bond, for the respondent/appellant by way of cross-appeal (C68563) and the respondent (C68566) Certas Home and Automobile Insurance Company

B. Bain, S. Kugler and H. Vettyvel, for the respondent (C68563) and the respondent/appellant by way of cross-appeal (C68566) TD Insurance

C. Woodin and J. Blinick, for the respondents (C68563 & C68566) St. Paul Fire and Marine Insurance Company of Canada and Travelers Insurance Company of Canada

G. Zacher, A. Urbanski and P. O’Kelly, for the respondents (C68563) and the respondents/appellants by way of cross-appeal (C68566) Unifund Insurance Company and Allstate Insurance Company of Canada

P. Tushinski and G. Eckler, for the respondent (C68563) and the respondent/appellant by way of cross-appeal (C68566) Commonwealth Mutual Insurance Company

L. Armstrong, for the respondent (C68563) and the respondent/appellant by way of cross-appeal (C68566) Echelon General Insurance Company

Keywords: Insurance, Statutory Accident Benefits, Administrative Law, Licence Appeal Tribunal, Torts, Breach of Statutory Duty, Negligent Investigation, Civil Procedure, Striking Pleadings, Jurisdiction, Class Proceedings, Settlements, Court Approval, Insurance Act, R.S.O. 1990, c. I.8, s. 280, Rules of Civil Procedure, Rules 21.01(1)(a) and 21.01(3)(a), Class Proceedings Act, 1992, S.O. 1992, c. 6, Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615

facts:

The plaintiff appellants filed proposed class actions against 15 auto insurers and the Financial Services Commission of Ontario (FSCO) alleging that the insurers had improperly reduced their statutory accident benefits (“SABs”) by deducting HST and that the FSCO wrongfully failed to investigate the practices after numerous complaints.

Two of the insurers entered into tentative settlement agreements, conditional on the proceedings being certified as a class action, and court approval. The FSCO and other respondent insurers brought motions under rule 21.01(1)(a) and 21.01(3)(a) of the Rules seeking to stay or dismiss the class actions for lack of jurisdiction. The motion judge determined that the Superior Court lacked jurisdiction by virtue of s. 280 of the Insurance Act, which gives exclusive jurisdiction over entitlement to, and the amount of, SABs to the Licence Appeal Tribunal (“LAT”). The motion judge therefore granted the motion and dismissed the proposed class actions and settlements. However, he dismissed the Crown’s motion because it was not plain and obvious that the actions against FSCO were barred by s. 280 because those actions were concerned with the FSCO’s conduct, not SABs.

issues:
  1. Did the motion judge err in dismissing the proposed class actions and in finding that the LAT had jurisdiction by virtue of s. 280 of the Insurance Act?
  2. Did the motion judge err in not dismissing the claims against the FSCO?
  3. Should leave to appeal costs be granted?
holding:

Appeal dismissed.

reasoning:
  1. No.

Section 280 of the Insurance Act is clear and provides a clear answer to the plaintiff appellants’ claim. Section 280 reads as follows:

280 (1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.

(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1).

(3) No person may bring a proceeding in any court with respect to a dispute described in subsection (1), other than an appeal from a decision of the Licence Appeal Tribunal or an application for judicial review.

The Court of Appeal agreed with the motion judge that no court actions are permitted with respect to disputes about entitlements to SABs or the amount of SABs as the LAT has exclusive jurisdiction: Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615. The plaintiff appellants cannot avoid this result with policy arguments that the exclusive jurisdiction of the LAT undermines the purpose of the Act or hinders access to justice. The Act is clear and must be given effect.

It also did not aid the appellants that s. 280 does not specifically prohibit representative actions. The Act cannot be read as prohibiting only individual actions. Moreover, the Class Proceedings Act, 1992, S.O. 1992, c. 6 is procedural in nature and does not confer jurisdiction on the court that does not otherwise exist.

  1. No.

The Court saw no error in the motion judge’s analysis of the claims against the FSCO. There is nothing in s. 280 that deprives the Superior Court of its jurisdiction over tortious claims such as the ones advanced against the FSCO. While such a finding is predicated on a finding that a wrong was committed under the SAB scheme, that did not alter the nature of the claim against the FSCO.

  1. No.

The respondent insurers alleged that the motion judge erred by ignoring and misapplying relevant factors, by considering irrelevant and improper factors, by undervaluing the result of the motion and the importance of the issues at stake. The Court dismissed these submissions as it is well established that costs are within the discretion of the motion judge and unless the award is plainly wrong, an appellate court should not interfere. It was open to him to conclude that this was a straightforward motion on a jurisdictional question and that the costs incurred were excessive in the circumstances. Although he may have put the matter bluntly, his conclusion reveals no error in principle and was entitled to deference.


Fontaine v. Canada (Attorney General), 2021 ONCA 313

[Paciocco J.A. (Motion Judge)]

Counsel:

M. Swinwood and F.K. Brunning, for the moving parties

C.A. Coughlan, B. Thompson and E. Coppinger, for the responding party

Keywords: Civil Procedure, Class Proceedings, Indian Residential School Settlement, Appeals, Jurisdiction, Final or Interlocutory, Stay Pending Appeal, Documents, Preservation Orders, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2), BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 2257573 Ontario Inc. v. Furney, 2020 ONCA 742, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674), Heidari v. Naghshbandi, 2020 ONCA 757, Henderson v. Henderson, 2014 ONCA 571, Ducharme v. Hudson, 2021 ONCA 151

facts:

The Indian Residential Schools Settlement Agreement (“IRSSA”) settled the class actions and civil claims of survivors of abuse who were residents of the residential schools in Canada. The Independent Assessment Process (“IAP”) was created as a means for claimants to seek financial compensation for the abuse that they suffered at the residential schools. The moving parties were former residents of St. Anne’s Indian Residential School (“St. Anne’s”).

In March 2021, the responding party filed a Request for Directions (“RFD”) requesting that an Independent Special Advisor (“ISA”) be appointed to conduct a review of certain IAP claims relating to St. Anne’s. Specifically, the request sought to determine: (i) whether adequate disclosure was available in the adjudication of each claim; (ii) if not, whether there was a conscious decision by counsel to proceed without disclosure; and (iii) if not, whether the disclosure would have likely impacted the amount of compensation awarded. The request was granted (the “Order Under Appeal”), but the moving parties sought to stay the order pending appeal, arguing, inter alia, that the Order Under Appeal undercut other related proceedings, and provided for a process not contemplated in the IRSSA.

The moving parties also sought an interim preservation order covering all documents possessed by government officials relating to St. Anne’s IAP claimants.

issues:
  1. Should the Order Under Appeal be stayed pending appeal?
  2. Should a preservation order be issued?
holding:

Motion dismissed.

reasoning:
  1. Should the Order Under Appeal be stayed pending appeal?

No. On a motion for a stay pending appeal, the overarching question to be determined is whether a stay is in the interests of justice (BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620; 2257573 Ontario Inc. v. Furney, 2020 ONCA 742). In answering this question, the factors outlined in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 are to be applied: (i) whether there is a serious issue to be determined on the appeal; (ii) whether the moving party would suffer irreparable harm if the stay were refused; and (iii) whether the balance of convenience favours either the granting or refusing of the stay. These factors are not watertight compartments, but should be considered holistically (Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674).

With respect to the first factor, the Court noted that the threshold of what constitutes a “serious issue” is relatively low, and will be satisfied provided the appeal is not frivolous or vexatious. Nevertheless, the Court concluded that there were grounds to consider the appeal as frivolous and devoid of merit, due to apparent jurisdictional issues (Heidari v. Naghshbandi, 2020 ONCA 757). Specifically, the Court characterized the Order Under Appeal as an interlocutory order, and therefore the Court of Appeal generally lacks jurisdiction to hear an appeal from such an order. The apparent lack of jurisdiction therefore undermined the seriousness of the issues to be determined, regardless of any substantive merits advanced by the moving parties (Henderson v. Henderson, 2014 ONCA 571).

In consideration of the second factor, it was concluded that many of the moving parties’ “irreparable harm” arguments focused on allegations about the harm caused by the Order Under Appeal itself. Instead, the Court reiterated that irreparable harm arguments should in fact focus on adverse effects that are likely to arise if the stay pending appeal is not granted (Ducharme v. Hudson, 2021 ONCA 151). Of the moving parties’ arguments that did not fall prey to this pitfall, the Court was not satisfied than any of them in fact met the irreparable harm threshold.

Finally, on the third factor, the Court found that the moving parties could not demonstrate any harm that supported the view that the balance of convenience favoured granting a stay. Rather, the Court noted that the responding party would be exposed to the risk of harm if a stay was granted.

2. Should a preservation order be issued?

No. In short, the moving parties did not cite any authority to support the preservation order they sought. The moving parties argued that the preservation order was urgently required to prevent the litigation from being undermined by the destruction of documents. Notwithstanding the Court’s conclusion that it had the jurisdiction to make such an order pursuant to s. 134(2) of the Courts of Justice Act, it was found that such an order would not be the interests of justice. In support of this finding, the Court expressed concerns about “judge shopping” and duplicative proceedings, the engagement of complex issues relating to the risks of preserving highly confidential documents, and the lack of any clear demonstration that the preservation order was truly necessary to prevent prejudice to the moving parties.


Grist v. TruGrp Inc., 2021 ONCA 309

[Lauwers, Miller and Nordheimer JJ.A.]

Counsel:

D.J. Bell and K. Ellins, for the appellants

D. Buntsma and R.K. MacGregor, for the respondents

Keywords: Torts, Defamation, Unlawful Interference with Economic and Contractual Relations, Abuse of Process, Labour and Employment, Successor Employers, Departing Employees, Unfair Competition, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, Grant v. Torstar, 2009 SCC 61, Raymond E. Brown, The Law of Defamation in Canada, loose-leaf, (2008- Rel. 3) 2 nd ed. (Scarborough: Carswell, 1999)

facts:

The respondents were former employees of the appellant. The respondents left their employment to start a competing business, the corporate respondent, and litigation ensued. In particular, the respondents brought a defamation action against the appellants, which was later discontinued. Sometime thereafter, an unrelated proceeding was commenced against the respondents before the Ontario Labour Relations Board (“OLRB”) centred on whether TruGrp, the corporate respondent, was a successor employer to the appellant company (“OLRB Application”).

In responding to the OLRB Application, the respondents attached their statement of claim from the discontinued defamation action against the appellants, which the appellants alleged contained false and defamatory statements about the appellants. The appellants then commenced the subject action against the respondents for defamation, unlawful interference with economic and contractual relations and abuse of process. The respondents brought a motion under s.137.1 of the Courts of Justice Act to have the action dismissed as a SLAPP, as it was an attempt to limit the respondents’ freedom of expression on matters of public interest. The motion judge allowed the anti-SLAPP motion and dismissed the claim, holding that there was significant public interest in the operation of the restoration industry and the retaining of other business in that line of work. While the motion judge concluded that the appellants’ claim had substantial merit, the appellants were unable to establish that the respondents had no valid defence. The motion judge held that the respondents’ expressions were covered by absolute privilege in relation to the OLRB Application.

issues:
  1. Did the motion judge err by characterizing the respondents’ expression too broadly for the purposes of s. 137.1 and by concluding it was a matter of public interest?
  2. Did the motion judge err in interpreting the test for substantial merit?
  3. Did the motion judge err in finding that the appellants did not tender sufficient evidence of harm to permit the action to proceed?
holding:

Appeal allowed.

reasoning:
  1. Yes.

To satisfy the threshold requirements under s. 137.1(3), the moving party must show (i) the “proceeding arises from an expression made by the moving party”, and (ii) “the expression relates to a matter of public interest”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (“Pointes”). The purpose of s. 137.1 is “to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy”: Pointes.

The concept of public interest has been difficult to pin down. The most detailed exploration of the concept is provided in Grant v. Torstar, 2009 SCC 61, which emphasized that the public interest is not a descriptive concept: it is not a matter of ascertaining what the public, or any subgroup, believes to be interesting, entertaining, or worth their attention. Rather, the statement must address an issue “about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”. While public interest is not limited to matters of shared public life, purely private disputes between relatively equal parties are seldom of public interest.

In the case at hand, the Court of Appeal held that the motion judge characterized the respondents’ expression too broadly. The motion judge failed to analyze the specific statements that were impugned by the appellants’ action, but rather focused on the respondents’ response as a whole. The appellants’ legal proceeding was not brought in respect of the response as a whole, but in relation to several very specific claims.

The Court agreed with the appellants’ that the motion judge erred in finding that these expressions related to public interest. Activity that unfairly reduces competition is a matter of public interest, in the sense that justice requires that such actions be proscribed for the common good. But that does not mean that every occurrence of this type of misconduct is a matter of public interest, having significance to anyone other than the parties involved and the institutions established to resolve their disputes. The nature of the respondents’ expression was fundamentally a private dispute, to which s. 137.1 did not apply.

Since the impugned statements did not relate to a matter of public interest, the respondents’ anti-SLAPP motion failed on the first stage of the test and so it was unnecessary for the Court to address the other grounds of appeal.


Knapp v. Knapp, 2021 ONCA 305

[Benotto, Miller and Trotter JJ.A.]

Counsel:

M. Stangarone, for the appellant

T. Hein and J.C. Noonan, for the respondent

Keywords: Family Law, Custody and Access,  Maximum Contact Principle, Parenting Plan, Best Interests of the Child, Office of the Children’s Lawyer, Recommendations, Civil Procedure, Variation, Material Change in Circumstances,Offers to Settle, Substantial Indemnity Costs, Evidence, Hearsay, Fresh Evidence, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16(10) (as amended to section 16(6)), Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 20(1), Family Law Rules, O. Reg. 114/99, Rules 15 and 24, Folahan v. Folahan, 2013 ONSC 2966, Rigillo v. Rigillo, 2019 ONCA 647

facts:

The parties were married for over 13 years and had two children together. When they started to experience marital issues, they discussed their marriage with ‘witnesses’ from their church. In response to one of these meetings, the respondent sent the appellant the biblical passages he was referring to along with the subject line “waring [Appellant’s Name]”. Shortly thereafter, the appellant took the children and moved to a women’s shelter, denying the respondent any contact with the children citing her fear of the respondent.

The Office of the Children’s Lawyer (“OCL”), Children’s Aid Society (“CAS”) and the Crisis, Outreach and Support Team (“COAST”) were all called in to investigate and all found that the respondent was not a danger to himself or the children. However, the OCL recommended the appellant have sole custody.

The parenting dispute continued for some time, and ultimately culminated in a trial decision granting joint custody, parallel decision-making authority and equal parenting time. In making this decision, the trial judge rejected much of the appellant’s evidence, particularly her allegations that the respondent was a risk. The trial judge also rejected the recommendations of the OCL because the investigator had observed no issues with the respondent’s parenting, but instead made several erroneous assumptions and failed to consider the best interests of the children. The trial judge also ordered substantial indemnity costs to the respondent.

issues:
  1. Did the trial judge err by relying on hearsay evidence when analyzing the OCL recommendations?
  2. Did the trial judge err by failing to consider the children’s wishes?
  3. Did the trial judge err by equating the maximum contact principle with equal parenting time?
  4. Did the trial judge err by making an order that conflicted with final orders previously made on consent?
  5. Did the trial judge err by awarding costs to the respondent?
  6. Should leave be granted to adduce fresh evidence on appeal?
holding:

Appeal dismissed.

reasoning:

The Court of Appeal first addressed two themes that permeated the appellant’s submissions – that the trial judge rejected the OCL recommendation, and that the trial judge altered the status quo. The Court noted that a trial judge is not bound by the OCL recommendations, nor the status quo. The OCL recommendation is just that, a recommendation. When a trial judge makes extensive factual findings that reject the foundation of the report, the judge is entitled to make his or her own assessment of the best interests of the child. In terms of the status quo, the trial judge found that the appellant wrongly altered the status quo by removing the children and moving to a women’s shelter with little basis to do so. This did not make the appellant the primary caregiver, and the trial judge was entitled to find as much.

  1. Hearsay Evidence

No. The appellant submitted that the report from COAST and medical records filed with the court were presumptively inadmissible as hearsay. The Court rejected this argument because many of the medical reports were filed into evidence by the appellant and the COAST report was discussed in the OCL report upon which the appellant relied. Both parties were cross-examined on the various reports and neither denied their accuracy. The appellant could not now allege this was an error.

  1. Views of the Children

No. The views and preference of children must be considered in all matters affecting them, however, they must be viewed in context. In this case, the mother had taken the two children away from their father and kept away from him while the mother professed fear of him. The Court noted that it would be naïve to think this did not impact the views of the children. The trial judge rejected the appellant’s “fear” and found that her flight to the shelter was a litigation tactic. The children’s preferences had to be viewed in this context.

While the parties agreed the children’s views would be put in evidence through the OCL report, the trial judge found the report was not based on the wishes of the children but the clinician’s own views. The trial judge rejected the foundation of the report and went on to assess the best interests of the children herself.

  1. Maximum Contact

No. The appellant submitted that the trial judge erred by placing an onus on the appellant to establish that equal parenting was not in the children’s best interests. The Court held that the trial judge not did not place such an onus but when read as a whole, her reasons demonstrated that she was alive to the appropriate principles. The maximum contact principle does not necessarily require equal parenting time: Rigillo v. Rigillo, 2019 ONCA 647. Rather, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child: Divorce Act, s. 16(6). The trial judge considered these principles and applied them to her factual findings and thus did not err in her assessment of the maximum contact principle.

  1. Variation of a Final Order

No. Early in the parenting dispute, an order that was marked final set parameters around the parties’ relationship. The appellant submitted that because of this order, the trial judge did not have jurisdiction to make the orders she did, particularly surrounding decision-making, because a final order can only be changed pursuant to a motion to change under rule 15 of the Family Law Rules.

The Court of Appeal rejected this submission, noting that it bordered on frivolous. Rule 15 does not give jurisdiction, it provides a procedure for parties who wish to change a final order. It would be wrong to suggest that it limits a trial judge’s discretion. The trial judge had jurisdiction to determine the best interests of the children in all parenting matters and was in no way bound by an earlier order. Further, the Court held that despite the order being marked final, it had the hallmark of an interlocutory order – all matters of parenting remained outstanding and subject to trial.

  1. Costs

No. The trial judge found that the appellant had acted unreasonably on many occasions and unnecessarily delayed the proceeding. The respondent also made two offers to settle whereby he would get less than 50% access. Given the appellant’s conduct and that the respondent was more successful at trial than his settlement offers, the trial judge held the respondent was entitled to substantial indemnity costs. The appellant sought leave to appeal this.

The Court of Appeal saw no reason to interfere with the trial judge’s discretion or overall assessment of costs. The trial judge considered the conduct of the appellant and the guidance of rule 24. The Court of Appeal did comment that substantial indemnity and full indemnity scales of cost do not apply to rule 24, but the reference to those scales did not cast doubt on the trial judge’s overall assessment.

  1. Fresh Evidence

While there is considerably more flexibility in family matters to adduce fresh evidence on appeal, the Court found that the proposed evidence would not assist with the determination of any issues on appeal and so refused leave to admit it.


SHORT CIVIL DECISIONS

2495940 Ontario Inc. v. 2633346 Ontario Inc., 2021 ONCA 312

[Juriansz, van Rensburg and Sossin JJ.A.]

Counsel:

S. Turton, for the moving party

B. Amouzgar and S. Savic, for the responding party

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Enforcement, Priority, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53

Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 322

[Nordheimer J.A. (Motions Judge)]

Counsel:

T. Gordner, for the moving and responding party, Regional Municipality of Halton

P.H. Starkman, for the moving and responding party, L.S.

Keywords: Civil Procedure, Appeals, Jurisdiction, Leave to Appeal, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 134(3), 7(1) and 7(3), Rules of Civil Procedure, rule 61.16(2.2)

Hilson v. Evans, 2021 ONCA 318

[Nordheimer J.A. (Motions Judge)]

Counsel:

H.W. Reininger, for the moving party

O.H. Niedzviecki, for the responding party

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Transfer, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 110(1), Sprenger v. Paul Sadlon Motors Inc., 2006 CarswellOnt 6004 (CA)

Latner v. Ontario Securities Commission, 2021 ONCA 316

[Juriansz, van Rensburg and Sossin JJ.A.]

Counsel:

G. Latner, acting in person

A. Lokan and E. Rathbone, for the respondent

Keywords: Securities, Purchase, “Exempt Market”, Income Threshold, Constitutional Law, Equality Rights, Analogous Grounds, Economic Class, Canadian Charter of Rights and Freedoms, s. 15(1), Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42

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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.