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Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of July 26, 2021.

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In the high-profile case of Sakab Saudi Holding Company v. Al Jabri, in which the Saudi government and its Crown prince, MBS, are pursuing a former Saudi cabinet minister now living in Toronto for having allegedly defrauded the Saudi government of billions of dollars, the Court declined to stay a Mareva injunction obtained against the defendant and his son (to whom assets were transferred) pending an appeal on the issue of jurisdiction. The Court made clear that ongoing defence of the Mareva injunction pending the appeal on jurisdiction would not amount to attornment.

In Meekis v. Ontario, the Court of Appeal considered whether the Plaintiff had a cause of action in public misfeasance, negligent supervision, unjustified breach of s.15 of the Charter, and whether the Respondents were servants or agents of the Crown. The claim dealt with an allegation as to the lack of coronial services offered to Indigenous communities. The Court held that the Plaintiff’s claim in public misfeasance and Charter breach should be allowed to proceed to trial. The pattern of discrimination and disparity in service between Indigenous and non-Indigenous communities alleged left a “narrow window of opportunity” for the claim to succeed.

In Conseil Scolaire Catholique Franco-Nord v. Nipissing Ouest (Municipalité) the Court found that a contract between a school board and municipality as to the provision of snow and garbage removal services without an express provision specifying its term was perpetual in nature and could not be terminated unilaterally by way of reasonable notice.

In Hacopian-Armen Estate v. Mahmoud, a medmal case, the Court dismissed the appellant doctor’s appeal that the trial judge erred in her findings of legal and factual causation.

In Ching v. Pier 27 Toronto, the Court found that when a repudiatory breach occurs, the innocent party must clearly and unequivocally disaffirm the contract in order for it to be terminated.

Other topics include mortgage enforcement and family law (support and retroactive support).

Wishing everyone an enjoyable Simcoe Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Meekis v. Ontario, 2021 ONCA 534

Keywords: Torts, Crown Liability, Coroners, Misfeasance in Public Office, Negligence, Negligent Supervision, Duty of Care, Good Faith Immunity, Breach of Statutory Duties, Breach of Charter Rights, Discrimination, Charter Damages, Coroners Act, R.S.O. 1990, c. C.37, s.3(1), s. 4(2), s.10(1)(e), s. 15(1), s.18, s. 20, s.26, s. 53, Canadian Charter of Rights and Freedoms, s.15 and s.24, Indian Act, R.S.C. 1985, c. I-5, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b) and r. 25.11(c), Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7, Fridman’s The Law of Torts in Canada (Toronto: Thomson Reuters, 2020), Remedies in Tort (Toronto: Thomson Reuters, 2021),  Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Nash v. Ontario (1995),27 O.R. (3d) 1 (C.A.), Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, Ernst v. Alberta Energy Regulator, 2017 SCC 1, Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Odhavji Estate v. Woodhouse, 2003 SCC 69, The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, Ontario (Attorney General) v. Clark, 2021 SCC 18, Freeman-Maloy v. Marsden (2006), 79 O.R. (3d) 401 (C.A.), Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est, 2009 ONCA 499, Granite Power Corp. v. Ontario,72 O.R. (3d) 194, Trillium Power Wind Corporation v. Ontario (National Resources), 2013 ONCA 683, Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Roncarelli v. Duplessis, [1959] S.C.R. 121, Madadi v. Nichols, 2021 BCCA 10, Ojeikere v. Ojeikere, 2018 ONCA 372, Wellington v. Ontario, 2011 ONCA 274, Cooper v. Hobart, 2001 SCC 79, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Fraser v. Canada (Attorney General), 2020 SCC 28, Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, Mathur v. Ontario, 2020 ONSC 6918, Ward v. Vancouver (City), 2010 SCC 27, Henry v. British Columbia (Attorney General), 2015 SCC 24, Brazeau v. Canada (Attorney General), 2020 ONCA 184

Sakab Saudi Holding Company v. Al Jabri, 2021 ONCA 548

Keywords: Torts, Fraud, Civil Procedure, Jurisdiction, Attornment, Mareva Injunctions, Appeals, Stay Pending Appeal, M.J. Jones Inc. v. Kingsway General Insurance Co. (2004), 242 D.L.R. (4th) 139 (Ont. C.A.), BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Van Damme v. Gelber, 2013 ONCA 388, Wolfe v. Pickar, 2011 ONCA 347, Gourmet Resources International Inc. (Trustee of) v. Paramount Capital Corp. (1991), 5 C.P.C. (3d) 140 (Ont. C.A.); M.J. Jones Inc. v. Kingsway General Insurance Co. (2004), 72 O.R. (3d) 68 (C.A.), Yaiguaje v. Chevron Corporation, 2014 ONCA 40, Van Damme v. Gelber, 2013 ONCA 388, Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC, 2014 ONCA 546, Essar Steel Algoma (Re), 2016 ONCA 138, Wolfe v. Wyeth, 2011 ONCA 347, Schwarzinger v. Bramwell, 2011 BCSC 283

Hume v. 11534599 Canada Corp., 2021 ONCA 549

Keywords: Contracts, Real Property, Mortgages, Redemption, Assignment, Possession, Civil Procedure, Appeals, Stay Pending Appeal, Mortgages Act, R.S.O. 1990, c. M.40, s. 2, Zafar v. Saiyid, 2018 ONCA 919, Dhatt v. Beer, 2020 ONCA 545, Royal Trust Corp. of Canada v. Gupta, 1997 CarswellOnt 571, 24 O.T.C. 27 (Gen. Div.), Royal Trust Corp. of Canada v. 880185 Ontario Ltd. (2005), 198 O.A.C. 235 (C.A.)., Lusk v. Perrin, [1920] O.J. No. 201 (Ont. H.C.)

Politis v. Pilotis, 2021 ONCA 541

Keywords: Family Law, Spousal Support, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), Rules of Civil Procedure, Rule 61.03.1(18), Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice, 2016), Hickey v. Hickey, [1999] 2 S.C.R. 518, McKinnon v. McKinnon, 2018 ONCA 596, Slongo v. Slongo, 2017 ONCA 272, Gray v. Gray, 2014 ONCA 659, Climans v. Latner, 2020 ONCA 554, Nolan v. Kerry (Canada) Inc., 2009 SCC 39, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Conseil Scolaire Catholique Franco-Nord v. Nipissing Ouest (Municipalité), 2021 ONCA 548

Keywords: Contracts, Interpretation, Indefinite Contracts, Termination, 1397868 Ontario Ltd. v. Nordic Gaming Corporation (Fort Erie Race Track), 2010 ONCA 101, Thunder Bay (City) v. Canadian National Railway Co., 2017 ONSC 3560, rev’d 2018 ONCA 517, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619, Llanelly Railway & Dock Co. v. London & North Western Railway Co. (1875), L.R. 7 H.L. 550, Gill Brothers v. Mission Saw Mills Limited, [1945] S.C.R. 766, Winter Garden Theatre (London) Ltd. v. Millennium Productions Ltd., [1948] A.C. 173, Rapatax (1987) Inc. v. Cantax Corporation Ltd., 1997 ABCA 86, Robinson v. Galt Chemical Products Ltd., [1933] O.J. No. 114 (C.A.), Shaw Cablesystems (Manitoba) Ltd. v. Canadian Legion Memorial Housing Foundation (Manitoba) (1997), 143 D.L.R. (4th) 193, Brown v. Belleville (City), 2013 ONCA 148, Credit Security Insurance Agency Inc. v. CIBC Mortgages Inc. (2006), 268 D.L.R. (4th) 725, aff’d 2007 ONCA 287, Northrock Resources v. ExxonMobil Canada Energy, 2017 SKCA 60, Churchill Falls (Labrador) Corp. v. HydroQuébec, 2018 SCC 46

McMaster-Pereira v. Pereira, 2021 ONCA 547

Keywords: Family Law, Retroactive Spousal Support, Security, Charging Orders, Civil Procedure, Costs, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.1(4) and 17(4), Federal Child Support Guidelines, S.O.R./97-175, ss. 2(3), 12, and 14, R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), Waxman v. Waxman, 2004 CanLII 39040 (Ont. C.A.), Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, Colucci v. Colucci, 2021 SCC 24, D.B.S. v S.R.G., 2006 SCC 37, Reid v. Catalano, 2008 CanLII 9379 (Ont. S.C.), Katz v. Katz, 2014 ONCA 606, Hobbs v. Hobbs, 2008 ONCA 598, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545

Keywords: Torts, Negligence, Medmal, Causation, Civil Procedure, Expert Evidence, Rules of Civil Procedure, Rule 53.03, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Tilley v. Man Roland Canada, 1999 ABQB 364, aff’d 2002 ABCA 309, R. v. Coté et al., [1976] 1 S.C.R. 595, Frazer v. Haukioja, 2010 ONCA 249, Ter Neuzen v. Korn, [1995] 3 S.C.R. 674, Clements v. Clements, 2012 SCC 32, Housen v. Nikolaison, 2002 SCC 33, Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, Waxman v. Waxman, 2004 CanLII 39040 (Ont. C.A.), at paras. 300-1, leave to appeal refused, [2004] S.C.C.A. No. 291, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, leave to appeal refused, [2020] S.C.C.A. No. 409, Benhaim v. St. Germain, 2016 SCC 48, Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, 2000 CanLII 16946, leave to appeal refused [2001] S.C.C.A. No. 66; Hoang v. Vicentini, 2012 ONSC 1358, aff’d 2016 ONCA 723, Goodwin v. Olupona, 2013 ONCA 259, Ghiassi v. Sing, 2018 ONCA 764

Ching v. Pier 27 Toronto Inc., 2021 ONCA 551

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Repudiation, Disaffirmation, Good Faith, Deposits, Forfeiture, Remedies, Relief from Forfeiture, Civil Procedure, Costs, Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31, Courts of Justice Act, R.S.O. 1990, c. C.43, Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733, Brown v. Belleville (City), 2013 ONCA 148, Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, Dosanjh v. Liang, 2015 BCCA 18, Abraham v. Coblenz Holdings Inc., 2013 BCCA 512, Canada Egg Products Ltd. v. Canadian Doughnut Co. Ltd., [1995] S.C.R. 398, Stocznia Gdanska SA v. Latvian Shipping Co. (No.2), [2001] CLC 1290, King v. Urban & Country transport Ltd. (1973), 1 O.R. (2d) 449 (C.A.), Domicile Developments Inc. v. MacTavish (1999), 45 O.R. (3d) 302 (C.A.), Peyman v. Lanjani, [1984] 3 All E.R. 703 (C.A.), Samson v. Lockwood, [1998] O.J. No. 2471, Coastal Estates Pty ltd. v. Melevende, [1965] V.R. 433 (Austl.) (Vic.) (S.C.)), Azzarello v. Shawqi, 2019 ONCA 820, leave to appeal refused, [2012] S.C.C.A. No. 521, Tang v. Zhang, 2013 BCCA 52, Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282, Scicluna v. Solstice Two Limited, 2018 ONCA 176, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Varajo v. Azish, 2015 ONCA 218, Stockloser v. Johnson, [1954] 1Q.B. 476 (C.a. (Eng.)) Benedetto v. 2453912 Ontario Inc., 2019 ONCA 149, Payer v. Peerless Plating Rack Co., (1998), 37 O.R. (3d) 781 (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Short Civil Decisions

Charlesfort Development Limited v. Ottawa (City), 2021 ONCA 542

Keywords: Civil Procedure, Costs, Expert Fees, Evidence Act, R.S.O. 1990, c. E.23, s. 12, 3664902 Canada Inc. v. Hudson’s Bay Co. (c.o.b. Bay Department Stores), (2003), 169 O.A.C. 283, Yip v. HSBC Holdings plc, 2018 ONCA 626, Harding v. First Associates Investments Inc., [2003] O.J. No. 4652

Markham (City) v. AIG Insurance Company of Canada, 2021 ONCA 546

Keywords: Civil Procedure, Costs

Fontaine v. Canada (Attorney General), 2021 ONCA 550

Keywords: Civil Procedure, Directions


CIVIL DECISIONS

Meekis v. Ontario, 2021 ONCA 534

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

Counsel:

J. Falconer and M. Churchill, for the appellants

S. Valair, H. Schwartz and K. Chatterjee, for the respondents

Keywords: Torts, Crown Liability, Coroners, Misfeasance in Public Office, Negligence, Negligent Supervision, Duty of Care, Good Faith Immunity, Breach of Statutory Duties, Breach of Charter Rights, Discrimination, Charter Damages, Coroners Act, R.S.O. 1990, c. C.37, s.3(1), s. 4(2), s.10(1)(e), s. 15(1), s.18, s. 20, s.26, s. 53, Canadian Charter of Rights and Freedoms, s.15 and s.24, Indian Act, R.S.C. 1985, c. I-5, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b) and r. 25.11(c), Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7, Fridman’s The Law of Torts in Canada (Toronto: Thomson Reuters, 2020), Remedies in Tort (Toronto: Thomson Reuters, 2021),  Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.), Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, Ernst v. Alberta Energy Regulator, 2017 SCC 1, Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Odhavji Estate v. Woodhouse, 2003 SCC 69, The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, Ontario (Attorney General) v. Clark, 2021 SCC 18, Freeman-Maloy v. Marsden (2006), 79 O.R. (3d) 401 (C.A.), Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est, 2009 ONCA 499, Granite Power Corp. v. Ontario, 72 O.R. (3d) 194, Trillium Power Wind Corporation v. Ontario (National Resources), 2013 ONCA 683, Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Roncarelli v. Duplessis, [1959] S.C.R. 121, Madadi v. Nichols, 2021 BCCA 10, Ojeikere v. Ojeikere, 2018 ONCA 372, Wellington v. Ontario, 2011 ONCA 274, Cooper v. Hobart, 2001 SCC 79, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Fraser v. Canada (Attorney General), 2020 SCC 28, Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, Mathur v. Ontario, 2020 ONSC 6918, Ward v. Vancouver (City), 2010 SCC 27, Henry v. British Columbia (Attorney General), 2015 SCC 24, Brazeau v. Canada (Attorney General), 2020 ONCA 184

facts:

On May 7, 2014, B.M., a four-year-old boy from Sandy Lake First Nation, died of complications from strep throat. The Respondent Dr. W.A. was the coroner assigned to investigate B.M.’s death pursuant to the Coroners Act. He had declined to recommend an inquest into B.M.’s death. The Respondents Dr. D.H., the Chief Coroner for Ontario, and Dr. M.W., the Regional Supervising Coroner (North Region), were responsible for supervising Dr. W.A.’s investigation and otherwise administering the Coroners Act in Sandy Lake First Nation at the time of B.M.’s death. The Respondent Ontario was responsible for provincial coronial services offered by the Office of the Chief Coroner of Ontario (“OCCO”) under the Coroners Act at all relevant times.

The Appellants are B.M.’s parents, grandparents, and siblings. In 2016, the Appellants brought a civil claim against the Respondents concerning the OCCO’s investigation into B.M.’s death. Their claim made the following core allegations: (i) the nature of Dr. W.A.’s investigation and his decision not to recommend an inquest constituted misfeasance in public office; (ii) Drs. D.H. and M.W. were negligent in their supervision of Dr. W.A.’s investigation; and (iii) Ontario is responsible in law for the coroners’ conduct, which amounted to discrimination contrary to s. 15 of the Charter.

In April 2019, the Respondents succeeded on their motion to strike the Appellants’ claim in its entirety, without leave to amend. Pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, the motion judge concluded that the Appellants’ claims disclosed no reasonable cause of action.

issues:

(1) Did the motion judge err by striking the claim in misfeasance in public office and finding that all pleaded conduct constituted lawful exercises of statutory discretion?
(2) Did the motion judge err by striking the claim in negligent supervision and finding that the supervising coroners did not owe the appellants a duty of care?
(3) Did the motion judge err by striking the claim of unjustified breach of s. 15 of the Charter and the claim for Charter damages?
(4) Did the motion judge err by finding (a) that the facts pleaded could not overcome the good faith immunity clause, and (b) that an investigating coroner is not a servant or agent of the Crown?

holding:

Appeal allowed in part.

reasoning:

(1) Yes

The motion judge struck the portion of the Appellant’s statement of claim that dealt with misfeasance in public office on the ground that the pleaded acts and omission amounted to the lawful exercise of statutory discretion under the Coroners Act. The Appellants argued the motion judge failed to consider their pleading that the Respondent coroners’ actions were dictated by a discriminatory policy of non-attendance and otherwise inadequate coronial service delivery in First Nations communities.

The Court, citing Odhavji Estate v. Woodhouse, 2003 SCC 69, set out the five steps to succeed in a claim for misfeasance:
(1) The defendant was a public official exercising public functions;
(2) The public official deliberately engaged in an unlawful act in their public capacity, which can be established by proving (a) an act in excess of the public official’s powers (b) an exercise of a power for an improper purpose, or (c) a breach of a statutory duty (the “unlawful act element”);
(3) The public official was aware both that their conduct was unlawful and that it was likely to harm the plaintiff (can be established through knowledge, subjective recklessness, or “conscious disregard”);
(4) The public official’s tortious conduct was the legal cause of the plaintiff’s injuries; and
(5) The injuries suffered are compensable in tort law.

The first element was met by virtue of the Respondents being provincial coroners. The Appellants’ core misfeasance allegation on the “unlawful act element” was that the Respondent coroners exercised their discretion to knowingly discriminate against a class of persons which included the Appellants. The Court understood this as an exercise of discretion for an improper purpose. Discretion must be exercised reasonably, and it cannot be exercised based on discriminatory considerations. Rather, it should be structured by the relevant statutory factors under the applicable legislative scheme: Ojeikere v. Ojeikere, 2018 ONCA 372.

The Court found that the motion judge failed to consider how the Appellants’ pleadings as to discrimination could satisfy the unlawful act element. The Court found that the Appellants’ statement of claim was premised on the allegation that the acts and omissions of the investigating coroner formed part of a pattern of discriminatory conduct. Further, by pleading the Goudge Report, which highlighted the harmful effects of inadequate coronial services on First Nations communities, there was a sufficient link that tied the coroner’s actions in B.M.’s case to a documented pattern of neglect towards First Nations communities. Thus, the “unlawful act” element had been satisfied, and the Appellants had a “narrow window of opportunity” to establish that the Respondents had acted/failed to act for the improper purpose of discrimination.

Further, the Court also found that the Appellant’s pleadings, read generously, could meet the knowledge requirement of the test. The amended pleadings contained material facts, including the findings and recommendations of the Goudge Report, which in the Court’s view were sufficient at this preliminary stage to support the allegations of recklessness or carelessness.

The Court found that the remaining elements of causation and compensability were better left unaddressed on a pleadings motion, and should be determined on a full factual record.

(2) No

The Court found that the motion judge correctly applied the Anns/Cooper Test to the claim of negligent supervision. The Court found that the statutory provisions at issue under the Coroners Act established public duties, but did not, on their own, establish a relationship between the Respondents and the Appellants which could be found to form the basis of a private duty of care.

(3) Yes

The correct s.15 Charter violation analysis was stated in Fraser v. Canada (Attorney General), which provides that the claimant must demonstrate that the impugned law or state action:

• on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and
• imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

The Court found that motion judge erred by not considering the concept of adverse impact discrimination. The Appellants’ pleadings stated that the Respondents’ conduct had the effect of creating a discriminatory distinction against Indigenous communities. The motion judge failed to look past the neutral rules of the Coroners Act to examine whether the rules were pleaded to have been applied to effectively disadvantage the Appellants. The Appellants were not required to prove a distinction, and in the Court’s view the amended statement of claim contained sufficient material facts to support the allegation of distinction based on prohibited grounds.

The motion judge also erred in his application of Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78. The Appellants’ core allegation was that coronial services are provided arbitrarily and exclude on-reserve indigenous communities, undercutting the Coroners Act. Requiring on-reserve Indigenous peoples to live without adequate coronial services could arguably amount to a burden which is not imposed on non-members of Indigenous communities. If established, this would be sufficient to satisfy the second step of the s. 15(1) test. It was not apparent that the Appellants would be unable to show that the Respondents’ alleged conduct widened the coronial service gap between Indigenous on-reserve residents and the rest of society.

The motion judge also erred in concluding that the “only fact alleged” by the Appellants supporting discrimination was the investigating coroner’s impugned direction to the police. He failed to engage with the Appellants’ core claim of adverse impact discrimination.

Further, as to the Charter damage claims, the Appellants alleged a Charter breach and contended that Charter damages would compensate. The Court found that the Appellants’ core allegation – that the investigating coroner deliberately adhered to a known discriminatory pattern – is sufficient to particularize the requisite “threshold misconduct” engaging Charter damages.

Finally, when considering countervailing factors to Charter damages, the Court held that neither the availability of judicial review nor “good governance” were sufficient to strike the Appellants’ claim for Charter damages.

(4) No

Regarding the good faith immunity clause, the motion judge had directed his findings to the Appellants’ negligent supervision claim. As the Court had denied that ground of appeal, it was unnecessary to address his striking of the claim under s.53 of the Coroners Act (good faith immunity clause).

Further, the Appellants alleged that the motion judge erred in finding that an investigating coroner was not a servant or agent of the Crown. However, since the Court found no error in the motion judge’s striking of the claim of negligent supervision, it was unnecessary to explore this ground of appeal.


Sakab Saudi Holdings Company v. Al Jabri, 2021 ONCA 548

[Benotto JJ.A. (Motions Judge)]

Counsel:

H. Underwood and A. Max, for the Moving Parties

M. Mohamed, Q.C., for the Responding Parties

Keywords: Torts, Fraud, Civil Procedure, Jurisdiction, Attornment, Mareva Injunctions, Appeals, Stay Pending Appeal, M.J. Jones Inc. v. Kingsway General Insurance Co. (2004), 242 D.L.R. (4th) 139 (Ont. C.A.), BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Van Damme v. Gelber, 2013 ONCA 388, Wolfe v. Pickar, 2011 ONCA 347, Gourmet Resources International Inc. (Trustee of) v. Paramount Capital Corp. (1991), 5 C.P.C. (3d) 140 (Ont. C.A.); M.J. Jones Inc. v. Kingsway General Insurance Co. (2004), 72 O.R. (3d) 68 (C.A.), Yaiguaje v. Chevron Corporation, 2014 ONCA 40, Van Damme v. Gelber, 2013 ONCA 388, Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC, 2014 ONCA 546, Essar Steel Algoma (Re), 2016 ONCA 138, Wolfe v. Wyeth, 2011 ONCA 347, Schwarzinger v. Bramwell, 2011 BCSC 283

facts:

The moving parties were some of the defendants in the action. They moved for a stay of the order of Gilmore J. which determined that Ontario has jurisdiction over an action involving an alleged fraud by former high-ranking government officials in Saudi Arabia. The plaintiffs in the action alleged that billions of dollars were stolen through a fraudulent scheme masterminded by a former Saudi cabinet minister, the defendant. The other defendants allegedly participated in or benefitted from the scheme to defraud the plaintiffs.

The plaintiffs alleged that the defendant used nominees to hide his control and beneficial ownership of significant assets. He installed family members, including his son, as nominee shareholders and made significant transfers to the nominees. The misappropriated funds were used to acquire assets around the world. The defendant also made a “gift deed” where the defendant purportedly gifted his son all his worldwide assets.

In January 2021, Gilmore J. issued a Mareva injunction over all the defendant’s worldwide assets, restraining him from dissipating his assets. In February 2021, the plaintiffs learned of the gift to the defendant’s son and returned to Gilmore J. to seek to vary the order to secure the gifted assets. Gilmore J. adjourned the motion so that the son and other corporate defendants could move to challenge the jurisdiction of the Ontario courts.

The jurisdiction motion was heard on May 19, 2021, and the motion judge held that to assert jurisdiction over a foreign defendant, a “good arguable case” must be established on the record before her. She concluded on five separate grounds that Ontario had jurisdiction. The motion to expand the Mareva to include the son’s assets was scheduled for August 9, 2021.

issues:

(1) Should a stay pending appeal on the issue of jurisdiction be granted?

holding:

Motion dismissed.

reasoning:

(1) No

The motion judge concluded that there were five independent reasons to find jurisdiction and any one of them would lead to her order being upheld. The record before the motion judge was extensive, and it was open for the motion judge to conclude on the record before her that there was a real and substantial connection between Ontario, the subject matter of the litigation and the defendant. The Court found that while it could not say the appeal was frivolous, the merits of the appeal leaned in favour of the plaintiffs.

The moving parties submitted that they would remain at risk of having attorned to the jurisdiction if they responded to the outstanding Mareva motion because there was uncertainty with respect to the law on this issue. The Court turned to the source of the alleged uncertainty and discussed the implications for the case.

In Essar Steel Algoma (Re), the Court stated that its previous decisions have uniformly held that where the responding party provided the Court with an undertaking of the kind given by Essar in that case, the undertakings significantly reduced or removed the risk of irreparable harm. In Van Damme, MacPherson J.A. pointed out (i) compliance with the order, including related conduct of depositions and discoveries, does not constitute attornment in the face of an ongoing jurisdictional challenge; and (ii) there is no reason not to respect counsel’s undertaking. Lastly, to attorn to the jurisdiction, a party must take a voluntary step indicating submission to the jurisdiction. Attornment cannot arise is circumstances of duress: Wolfe v. Wyeth, 2011 ONCA 347 at para. 44.

The plaintiffs submitted that a response to a worldwide Mareva injunction should not be considered a voluntary step indicating submission to the jurisdiction, rather, it was an example of duress. The Court agreed with the plaintiffs that a response to the worldwide Mareva injunction would not amount to attornment in those circumstances. The defendants were not asking the court to engage in an issue, unlike in Wolfe, where the defendants sought to dismiss or stay the action for issue estoppel. In this case, there was also the undertaking of the plaintiffs not to assert attornment. The Court concluded that the moving parties had not demonstrated that they would suffer irreparable harm if a stay pending appeal was not granted.

The balance of convenience favoured the plaintiffs. Considering all the criteria and the fact that the plaintiff’s consent to an order that the moving parties will not attorn to the jurisdiction by defending the Mareva injunction, the Court concluded that it was not in the interests of justice to grant the stay.


Hume v. 11534599 Canada Corp., 2021 ONCA 549

[Thorburn J.A. (Motions Judge)]

Counsel:

P. Robson, for the moving party

E.S. Peritz, for the responding parties

Keywords: Contracts, Real Property, Mortgages, Redemption, Assignment, Possession, Civil Procedure, Appeals, Stay Pending Appeal, Mortgages Act, R.S.O. 1990, c. M.40, s. 2, Zafar v. Saiyid, 2018 ONCA 919, Dhatt v. Beer, 2020 ONCA 545, Royal Trust Corp. of Canada v. Gupta, 1997 CarswellOnt 571, 24 O.T.C. 27 (Gen. Div.), Royal Trust Corp. of Canada v. 880185 Ontario Ltd. (2005), 198 O.A.C. 235 (C.A.)., Lusk v. Perrin, [1920] O.J. No. 201 (Ont. H.C.)

facts:

The respondents resided in a property that was subject to two mortgages. The second mortgage was provided by the appellant in September 2019, was due September 1, 2020, and automatically renewed on September 2, 2020. The appellant argued that the respondents defaulted on their interest payments due on October 1. As a result, the appellant sent a demand letter on October 2, 2020 with no response. On October 28, 2020, the appellant found the property to be unoccupied and severely damaged by a fire earlier that month. The appellant retained a property manager to change the locks and post notices to secure possession of the property, which was completed October 28, 2020. On November 4, 2020, the respondents’ counsel accused the appellant of breaking and entering and claimed that the possession was illegal as the property was not vacant. The respondents claimed entitlement to pay the interest and demanded an assignment of the mortgage.

On December 30, 2020, a Notice of Sale was sent to the property and the respondents’ counsel. The respondents then requested and were given a mortgage discharge statement. The respondents and a third-party lawyer demanded that the mortgage be assigned to a third party based on s. 2(1) of the Mortgages Act, R.S.O. 1990, c. M.40 (the “Act”), which the appellant refused on the basis of the exception in s. 2(3), which provides that the obligation of a mortgagee to transfer is not applicable where the mortgagee “is or has been” in possession of the mortgaged property.

The appellant sought an order granting a stay pending appeal of the order of Justice Coats (“the Order”), which required the appellant to provide possession of the property to the respondents. Furthermore, the Order required the respondents to redeem the appellant’s mortgage and that the appellant assign the mortgage debt and convey the property to a third-party lender, pursuant to s. 2 of the Act.

issues:

(1) Can the appellant rely on s. 2(3) of the Act to refuse to assign the mortgage?

(2) Is there a serious issue to be tried?

(3) Will the appellant suffer irreparable harm if a stay pending appeal is granted?

holding:

Motion dismissed.

reasoning:

(1) No.

The Court affirmed the application judge’s decision that the appellant could not rely on s. 2(3) of the Act to refuse assignment of the mortgage to the new third-party lender. The Court agreed with the application judge’s following findings: (i) that the property was not vacant, (ii) the property had not been abandoned by the respondents and their possessions remained there, (iii) that the appellant could expect resistance to the taking of possession, (iv) the property was locked, and (v) the respondents’ lawyer challenged the taking of possession within days. Therefore, the appellant took illegal possession of the property contrary to the Act.

(2) Yes.

The following factors must be considered for whether to stay an order being appealed: (i) there is a serious issue to be tried based on a preliminary assessment of the merits of the case; (ii) the applicant would suffer irreparable harm if the application were refused; and (iii) which parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: Zafar v. Saiyid, 2018 ONCA 919.

The Court held that the interpretation of “peaceable” possession remained a serious issue on appeal. The Court examined case law interpreting “peaceable” possession and held that the case at bar was distinguishable because: (i) the property was not vacant because the respondents were forced to leave after the fire; (ii) the respondents left the property locked to prevent others from entering and their possessions remained there; (iii) the property was not abandoned; and (iv) the appellant could reasonably expect that the respondents would not consent to taking possession without notice, and such resistance took place within days of the appellant taking possession.

(3) No.
The Court rejected the appellant’s argument that they would suffer irreparable harm to their ability to enforce this and other mortgages if the stay was not granted. The Court also rejected the appellant’s argument that if the stay was not granted, they would incur a significant loss in the form of litigation costs, entitlement to quiet possession, property management expenses, and other charges the respondents were contractually obligated to pay. The Court held that while the appellant may not recover all funds owed to them, they would not suffer irreparable harm if there was no stay pending this expedited appeal. The Court held that there was equity in the property, the appellant could pursue a claim for relief, and the respondents had undertaken not to sell the property in the interim. The Court noted that the respondents would be the ones to suffer significant hardship if they lost their principal residence which they only vacated because of the fire. Accordingly, the balance of convenience favoured the respondents.


Politis v. Politis, 2021 ONCA 541

[Tulloch, Nordheimer and Jamal JJ.A.]

Counsel:

H.I. Fogelman and L. Daneman, for the Appellant

J.D. Singer, for the Respondent

Keywords: Family Law, Spousal Support, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), Rules of Civil Procedure, Rule 61.03.1(18), Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Department of Justice, 2016), Hickey v. Hickey, [1999] 2 S.C.R. 518, McKinnon v. McKinnon, 2018 ONCA 596, Slongo v. Slongo, 2017 ONCA 272, Gray v. Gray, 2014 ONCA 659, Climans v. Latner, 2020 ONCA 554, Nolan v. Kerry (Canada) Inc., 2009 SCC 39, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

facts:

The parties were married for 25 years. They had three children together, all of which are now independent. The Appellant was a full-time homemaker and caregiver for the children. She was diagnosed with Lyme disease in October 2012, affecting her ability to re-enter the workforce. The Respondent is a civil engineer. At the time of separation, their matrimonial home was their only significant asset. The net proceeds of sale were $113,263.05, and neither party made equalization payments.

In 2015, the Appellant brought a motion for interim spousal support. The motion judge ordered the Respondent to pay spousal support in the amount of $5,288 per month. In calculating the amount of interim support, the motion judge took into consideration a monthly amount contributed by the Appellant’s new partner. At trial, the Appellant sought increased monthly spousal support for an indefinite period. The trial judge found that the Appellant had established a prima facie entitlement to spousal support on both a compensatory and needs-based model. In considering the means, needs, and circumstances of the Appellant and the financial support she received from her new partner in the relevant years, neither an increased payment nor a credit for overpayment was appropriate in this case. The trial judge ultimately ordered the Respondent to pay spousal support of $3,000 per month until October 2024, at which time the payments will be reduced to $1,500. Payments will then completely terminate in October 2026.

issues:

(1) Did the trial judge err in determining the amount and duration of spousal support?

(2) Did the trial judge err by double counting the contributions of the Appellant’s new partner?

(3) Did the trial judge err in making the costs award?

holding:

Appeal dismissed. Cross-appeal dismissed.

reasoning:

(1) No.

The Court should not overturn a support order “unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong”: Hickey v. Hickey, [1999] 2 S.C.R. 518, para. 12. The presumptive starting point for awarding support is the Spousal Support Advisory Guidelines (“SSAGs”): McKinnon v. McKinnon, 2018 ONCA 596, at para. 24; Slongo v. Slongo, 2017 ONCA 272, at paras. 105-106. However, while the SSAGs are helpful, there are complicating factors that must be considered: Gray v. Gray, 2014 ONCA 659, at para. 45. The Court held that the Appellant erred in applying the SSAGs without considering other factors.

The SSAGs state at s. 14.7 that, where the recipient re-partnered with someone of similar income to the previous partner, the support will often be extinguished over time. When and if the support is extinguished is determined on the facts of the case. In this case, the trial judge found that the Appellant enjoys a standard of living that is comparable to, or better than, the standard of living she enjoyed during the marriage. The trial judge’s explanation for deviating from the SSAGs formula range was clear and reveals no error in principle.

The trial judge further reasoned that it was appropriate for the support and the ranges themselves to be reduced, based on the increasing obligation of the Appellant’s new partner to contribute to her needs at the time of trial, the Respondent had paid the Appellant spousal support for about nine years. Given the considerable length of the parties’ marriage, the Respondent was ordered to continue to pay support until 2026, albeit on a reduced basis. By then, the trial judge found that the Appellant will be compensated for any economic loss associated with the dissolution of the marriage. The SSAGs made it clear that permanent support was not required. The trial judge’s approach was consistent with the overall guidance in the SSAGs, was owed considerable deference, and the Court found no reason to interfere.

(2) No.

The Court held that there was no error in the trial judge’s assessment of the benefits that the Appellant obtains from her new partner. The trial judge stated that it was appropriate for support to be reduced due to the new partner’s contributions. The reasoning was apt in the circumstances.

(3) No.

In the cross-appeal, the Respondent argued that the trial judge failed to consider the purpose of offers to settle, relative success of the parties, and the parties’ behaviour at trial. The Respondent also stated that the trial judge erred in accounting for pre-trial and mid-trial motions that were already accounted for. The Court stated that costs decisions are discretionary and should only be set aside if the court below made an error in principle or if the costs award is plainly wrong: Nolan v. Kerry (Canada) Inc., 2009 SCC 39, at para. 126; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, at para. 27. The Respondent did not meet this standard.


Conseil Scolaire Catholique Franco-Nord v. Nipissing Ouest (Municipalité), 2021 ONCA 544

[Rouleau, Hoy and van Rensburg JJ.A.]

Counsel:

P. Champagne and A. Lafrance, for the appellant

M. Sirdevan, for the respondent

Keywords: Contracts, Interpretation, Indefinite Contracts, Termination, 1397868 Ontario Ltd. v. Nordic Gaming Corporation (Fort Erie Race Track), 2010 ONCA 101, Thunder Bay (City) v. Canadian National Railway Co., 2017 ONSC 3560, rev’d 2018 ONCA 517, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619, Llanelly Railway & Dock Co. v. London & North Western Railway Co. (1875), L.R. 7 H.L. 550, Gill Brothers v. Mission Saw Mills Limited, [1945] S.C.R. 766, Winter Garden Theatre (London) Ltd. v. Millennium Productions Ltd., [1948] A.C. 173, Rapatax (1987) Inc. v. Cantax Corporation Ltd., 1997 ABCA 86, Robinson v. Galt Chemical Products Ltd., [1933] O.J. No. 114 (C.A.), Shaw Cablesystems (Manitoba) Ltd. v. Canadian Legion Memorial Housing Foundation (Manitoba) (1997), 143 D.L.R. (4th) 193, Brown v. Belleville (City), 2013 ONCA 148, Credit Security Insurance Agency Inc. v. CIBC Mortgages Inc. (2006), 268 D.L.R. (4th) 725, aff’d 2007 ONCA 287, Northrock Resources v. ExxonMobil Canada Energy, 2017 SKCA 60, Churchill Falls (Labrador) Corp. v. HydroQuébec, 2018 SCC 46

facts:

The Conseil Scolaire Catholique Franco-Nord (the “school board”) and the Municipality of West Nipissing (the “Municipality”) are the successors of two entities which in 1988 entered into a sale of property contract. As a result of this contract, the Municipality’s predecessor purchased a school for $1 from the school board’s predecessor and agreed to provide snow and garbage removal services at the Marguerite d’Youville school. It was agreed by both entities that that this arrangement would be for the benefit of the community.

The transfer of the school property included two clauses of relevance to this appeal. The first clause required the Municipality to pay the Vendor’s Lien in the amount of $27,300.00 if the interest in the property was transferred to another party within ten years. The second clause granted the school board a right of first refusal if the interest in the property was transferred within twenty years of the initial transfer. The sale contract did not expressly provide for any expiry or term.

The Municipality provided the snow and garbage removal services from 1988 until 2017. The Municipality advised the school board that it intended to end the snow removal services in 2002, but after discussions with the school board, decided to continue the services. In 2012, the Municipality again indicated an intention to end the snow and garbage removal services, but once again, following discussion, maintained the services. In 2017, the Municipality informed the school board that it had decided to end the services and did not deviate from its decision.

In attempting to characterize the relationship between the parties, the application judge found that “while the relationship created by the 1988 contract was not one of employment or partnership, it resembled in some fashion a personal services contract”, adding that “[t]hese are the types of contracts into which Courts routinely imply terms of termination on reasonable notice”. The application judge found that the surrounding circumstances, including the vendor’s lien expiring after 10 years and the right of first refusal expiring after 20 years, pointed away from a perpetual agreement. The application judge also found that the Municipality’s efforts to terminate the agreement in 2002 and 2012 supported a finding that the contract could be terminated on reasonable notice in November 2017.

issues:

(1) Did the application judge err in concluding that the 1988 agreement was terminable on reasonable notice?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The application judge erred in his analysis of the surrounding circumstances and in his characterization of the contract as a personal services contract into which courts routinely imply a right of termination upon reasonable notice. The relationship between the parties and the surrounding circumstances suggested that no such right of termination was intended, nor should one be implied.

In considering the nature of the parties’ agreement, the case law placed a particular emphasis on the relationship created by the contract. The court recognized in 1397868 Ontario Ltd. v. Nordic Gaming Corporation (Fort Erie Race Track), 2010 ONCA 101 (‘Nordic Gaming’) that certain types of contracts naturally give rise to an implied right to terminate upon reasonable notice. Employment relationships, partnerships, and personal service contracts, all of which depend upon a level of trust and continuous performance, engage specific concerns about the extent to which courts should enforce performance when a relationship has collapsed. However, the simple characterization of a contract as a “personal service contract” does not automatically give rise to an implied right of termination on reasonable notice; the court is still required to examine the agreement in its entire context.

When a contract contains no fixed term and no provision for termination on reasonable notice, the court may treat the contract either as perpetual or as indefinite into which a provision of unilateral termination on reasonable notice is implied. The decision as to which is the proper interpretation is an exercise in contractual interpretation which requires the court to examine the specific terms of the contract as well as the relationship between the parties and the surrounding circumstances. Because there is no presumption either way, neither party bears an onus except to the extent that any applicant bears the onus in an application for declaratory judgment, such as this one.

The application judge incorrectly placed an onus on the school board to “satisfy” the court that the contract was perpetual. The application judge also, despite correctly identifying Nordic Gaming  as the governing authority, committed palpable and overriding errors in the characterization of the agreement.

The Court stated that the contract in this case was fundamentally different from the types of contract into which the courts routinely imply termination on reasonable notice. Drawing a comparison to the contract in Nordic Games, the court identified two critical differences. First, there is not an ongoing relationship in the present case. The school board’s upfront investment in a form of property is indicative of its intention to create a perpetual agreement. The second difference that the court identified was that the services being provided by the Municipality in this case were not the types of services that raised concerns of the nature referenced in Nordic Gaming, that is one party is not serving the clientele of the other party. Snow and garbage removal are normal functions of a municipality, and the standards to which they are provided is generally consistent and uniform throughout the municipality. A relationship of “trust” between the parties had not collapsed or deteriorated to a point where it would be inappropriate to force the relationship to continue.

The Court found that the application judge erred in his appreciation of the surrounding circumstances by considering irrelevant factors. The Court found the circumstance of mutual betterment of the community to be of little assistance and at most an indication that neither party was pursuing strictly commercial aims by entering into the agreement. The two provisions that were inserted into the transfer were also of little assistance in interpreting the Municipality’s obligation to provide snow and garbage removal services. The length of time the Municipality rendered the services and its repeated attempts to end them was only relevant if it was decided that a reasonable notice period should be implied. This circumstance was of no assistance in deciding the central issue of whether the agreement was perpetual. In fact, the continuous 30-year performance and the abrupt termination in 2017, without any reference to an understanding that the agreement contained an implied termination provision, suggested that the agreement had been treated by the Municipality, until then, as being perpetual.

The Court did not find the Municipality’s suggestion that it had provided enough services over time to pay for the transferred property to be persuasive for two reasons. First, the record did not permit an accurate assessment of the value of the property or the value of the municipal services at the time the contract was entered into. Second, even if it could be shown that the value of snow and garbage removal had exceeded the value of the property since the 1988 sale, it did not necessarily follow that the parties did not intend those services to be provided in perpetuity. At the time the contract was entered into, the parties would not have known how long the school board would continue to operate the Ste. Marguerite d’Youville School.

The application judge erred by failing to consider relevant factors. The relevant factors were the circumstances known to parties when they reached the agreement, not when the Municipality sought to terminate it. This was an agreement between two public institutions in the business of providing services to the community. Neither party was pursuing strictly commercial objectives and based on the evidence, not much consideration was given to whether one might achieve a windfall at the other’s expense. The parties did not carry out a valuation of the St. Jean Baptiste School being transferred, nor did they estimate the costs to the Municipality of incorporating the snow and garbage removal services for the Ste. Marguerite d’Youville School into their usual operations. An after-the-fact analysis as to whether the arrangement turned out to be economically advantageous to one party or the other ought not to have factored into the interpretation of the agreement that was reached.

The Court concluded that the terms of the agreement, the relationship of the parties and the surrounding circumstances at the time the contract was entered into all pointed to the obligation of the Municipality to provide snow and garbage removal services to the Ste. Marguerite d’Youville School was perpetual in nature. The Court declared that the 1988 agreement between parties remained in force.


McMaster-Pereira v. Pereira, 2021 ONCA 547

[Strathy C.J.O., Feldman and Sossin JJ.A.]

Counsel:

K. Kalogiros and B. Cerqua, for the Appellant

C. I.R. Morrison and P. J. Cahill, for the Respondents

Keywords: Family Law, Retroactive Spousal Support, Security, Charging Orders, Civil Procedure, Costs, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.1(4) and 17(4), Federal Child Support Guidelines, S.O.R./97-175, ss. 2(3), 12, and 14, R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), Waxman v. Waxman, 2004 CanLII 39040 (Ont. C.A.), Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, Colucci v. Colucci, 2021 SCC 24, D.B.S. v S.R.G., 2006 SCC 37, Reid v. Catalano, 2008 CanLII 9379 (Ont. S.C.), Katz v. Katz, 2014 ONCA 606, Hobbs v. Hobbs, 2008 ONCA 598, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

facts:

The parties married in 2001, separated in 2011, and divorced in 2013. They have four children ranging in age from 9 to 20. From the minutes of settlement in the divorce proceeding, Graham J ordered the Appellant to pay support in the amount of $3,000 per month. This was based on the Appellant’s annual income of $109,000, and the Respondent could only seek a change in support if there were a material change in annual income.

In July 2017, the Respondent brought a motion to retroactively increase the support. The trial judge found that the Appellant’s income in the years of 2014 to 2019 were all between $300,000 to $500,000. The trial judge also found that the Appellant failed to disclose his true income and had gone to great lengths to conceal this information. It was determined that there had been a material change in circumstances within the meaning of s. 17(4) of the Divorce Act and s. 14 of the Federal Child Support Guidelines (the “FCSG”). The Appellant was ordered to pay retroactive support in the amount of $222,484 and $6,671 per month from July 2020 onward. Due to the determination that the Appellant was untrustworthy, support obligations were to be secured against his house, as well as against any interest in corporations of which he was a shareholder.

issues:

(1) Did the trial judge err in his imputation of the Appellant’s income?

(2) Did the trial judge err in finding that support arrears were payable, or did he err in the determination of the amount?

(3) Did the trial judge act without jurisdiction in making the charging order?

(4) Should the Appellant be granted leave to appeal the costs order on the basis that the amount was not proportionate to the issues determined by the court?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Appellant argued that the trial judge erred in law by declining to rely on his current income information because s. 2(3) of the FCSG states that the most recent information must be used. The Court held that the trial judge did not err because he made the finding of fact that the Appellant did not disclose his full income nor sufficiently explain why he left a far more lucrative job. There was no reversible error that could justify interfering with the trial judge’s conclusions on this point.

Alternatively, the Appellant argued that the trial judge misapprehended evidence in calculating the go-forward income. Where a misapprehension of evidence goes to the root of a finding of fact or the outcome of the case, appellate intervention is justified: Waxman v. Waxman, 2004 CanLII 39040 (Ont. C.A.), at paras. 296-97. The Court held that the trial judge did not err in determining which figures should be grossed up, and the application of the auto gross up using DivorceMate was consistent with the trial judge’s determinations.

(2) No.

After this appeal was heard, the Supreme Court of Canada released Colucci v. Colucci, 2021 SCC 24. Once a material change has been established, the Colucci decision creates a presumption in favour of retroactively increasing support to the date that the recipient gave the payor effective notice of the request. The presumption was implemented in Colucci because it would not be in the best interest of the child to force the recipient to police the income of the payor. However, the court still has the discretion to depart from the presumption where the result would be unfair. Once the court has determined that support should be retroactively increased, it must do so in accordance with the FCSG.

The Court held that the trial judge did not err in granting a retroactive increase in support. The material change was easily established, and calculation of the Appellant’s annual income was obtained through exhaustive analysis of the evidence. The trial judge was open to draw an adverse inference from the multitude of credibility issues presented by the Appellant. In fact, the Appellant’s failure to disclose various benefits of his employment caused the expert that he had retained to withdraw his opinion. Furthermore, the trial judge gave the Appellant the opportunity to make submissions on any potential errors in calculating the Appellant’s income or determining the amount of retroactive support. The Appellant did not do so.

(3) No.

The Appellant further argued that the criteria to be considered by the court in exercising discretion to grant a charging order are limited to those cited in Reid v. Catalano, 2008 CanLII 9379 (Ont. S.C.). Such factors include an inability to handle money, being a flight risk, a history of refusing support obligations, and a poor employment history. The Court held that there was no merit to this argument. S. 15.1(4) of the Divorce Act states that the court “may impose terms, conditions or restrictions in connection with the [child support] order or interim [child support] order as it thinks fit and just.” Furthermore, the trial judge noted that s. 12 of the FCSG gave him the discretion to require that the amount payable be paid and secured. The trial judge’s use of discretion was reasonable and consistent with the case law: Katz v. Katz, 2014 ONCA 606.

(4) No.

To succeed on an application for leave to appeal a costs award, there must be strong grounds on which the trial judge erred in exercising their discretion: Hobbs v. Hobbs, 2008 ONCA 598, at para. 32. A court should only set aside a costs award on appeal if the trial judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, at para. 27. The trial judge diligently reviewed the Respondent’s bill of costs and accounted for duplications. In addition, the trial judge correctly pointed out that the conduct of the Appellant made it so that the Respondent had to incur significant costs to uncover his true annual income. The Court held that the costs award was proportionate and reasonable in the circumstances.


Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545

[Strathy C.J.O., Feldman and Sossin JJ.A.]

Counsel:

K. Kalogiros and B. Cerqua, for the Appellant

C. I.R. Morrison and P. J. Cahill, for the Respondents

Keywords: Torts, Negligence, Medmal, Causation, Civil Procedure, Expert Evidence, Rules of Civil Procedure, Rule 53.03, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Tilley v. Man Roland Canada, 1999 ABQB 364, aff’d 2002 ABCA 309, R. v. Coté et al., [1976] 1 S.C.R. 595, Frazer v. Haukioja, 2010 ONCA 249, Ter Neuzen v. Korn, [1995] 3 S.C.R. 674, Clements v. Clements, 2012 SCC 32, Housen v. Nikolaison, 2002 SCC 33, Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, Waxman v. Waxman, 2004 CanLII 39040 (Ont. C.A.), at paras. 300-1, leave to appeal refused, [2004] S.C.C.A. No. 291, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, leave to appeal refused, [2020] S.C.C.A. No. 409, Benhaim v. St. Germain, 2016 SCC 48, Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, 2000 CanLII 16946, leave to appeal refused [2001] S.C.C.A. No. 66; Hoang v. Vicentini, 2012 ONSC 1358, aff’d 2016 ONCA 723, Goodwin v. Olupona, 2013 ONCA 259, Ghiassi v. Sing, 2018 ONCA 764

facts:

This appeal raised issues of factual and legal causation in the context of a medical negligence action. The patient died on August 24, 2011, because of Stage IV uterine leiomyosarcoma (“uLMS”). The respondents, members of her family, brought the action against the appellant, her gynecologist. They alleged that the appellant was negligent when he examined the patient on May 25, 2019, in failing to conduct an endometrial biopsy, a simple in-office procedure for the detection of uterine pathologies and abnormalities. The respondents claimed that this would probably have detected her cancer at an early stage when treatment would likely have been effective.

The trial judge found that: the appellant breached the applicable standard of care; the patient and family members had suffered damages as a result; the damage was foreseeable; and the appellant’s negligence was causative of the damages. On appeal, the appellant did not challenge the trial judge’s finding that he breached the standard of care by failing to perform an endometrial biopsy. He alleged that the trial judge erred in concluding that his breach of duty caused the patient’s death.

issues:

(1) Did the trial judge err in finding legal causation?
(2) Did the trial judge err in finding factual causation?
a. Did the trial judge err in finding uLMS was likely present in May 2009?
b. the trial judge err in finding that an endometrial biopsy would likely have detected uLMS, had it been present?

holding:

Appeal dismissed.

reasoning:

1. No

The appellant acknowledged that the trial judge correctly identified the principles of legal causation but submitted that her analysis was inconsistent with those principles and that she erred by engaging in a retrospective approach to causation. He asserted that the trial judge erred by asking whether it was foreseeable that the presence of uLMS, if untreated, would lead to serious injury or harm. According to the appellant, the correct question was whether uLMS, specifically, was foreseeable in May 2009. The appellant also submitted that the trial judge’s erroneous approach to legal causation would create a dangerous precedent, resulting in an increase of retrospective claims and would overburden the medical system by encouraging physicians to order unnecessary tests to avoid the risk of missing an unforeseeable disease.

The Court accepted the appellant’s submission that the trial judge inappropriately blended into her foreseeability analysis her finding of fact that an endometrial biopsy performed in May 2009 would have detected the presence of uLMS. However, on the correct analysis, it did not matter that the appellant was not aware that the patient had uLMS – what mattered was that the combination of her AUB, her age, and her nulliparous state not only required an endometrial biopsy in accordance with the appropriate standard of care, but also made it reasonably foreseeable that the failure to conduct one would preclude detection of a uterine pathology that would cause her serious harm if left untreated.

The appellant’s proposed foreseeability analysis was flawed because in focusing on the presence of uLMS, he inappropriately narrows the scope of the risk that he ought to have foreseen. In failing to conduct a test that would have detected the presence of cancers of the “same class” or character as uLMS, including uLMS, it was foreseeable that uLMS or other malignancies would go undetected, with consequent injury to the patient: Ter Neuzen v. Korn, [1995] 3 S.C.R. 674, at para. 60. The Court rejected the appellant’s submission that the trial judge’s approach to foreseeability would require physicians to order unnecessary tests.

2. No

The appellant submitted that the trial judge committed two reviewable errors in her analysis and conclusion on factual causation. First, he alleged that the trial judge erred when she found that uLMS was likely present in May 2009. Second, the appellant alleged that the trial judge erred in finding that an endometrial biopsy would have likely detected uLMS in 2009.

a. Did the trial judge err in finding uLMS was likely present in May 2009?

No. The trial judge did not err in admitting the evidence of Dr. A.C (a specialist in gynecological oncology) on this issue and having admitted his evidence, did not misapprehend it. At trial, the appellant sought to limit Dr. A. C’s evidence regarding factual causation on the ground that he had failed to provide the foundational basis for his opinion in his expert report, filed pursuant to Rule 53.03 of the Rules of Civil Procedure.

The Court found no error in the trial judge’s decision to permit Dr. A.C to testify. The trial judge’s interpretation of Dr. A. C’s report was reasonable and consistent with the opinion given in Dr. A. C’s testimony. It was obvious that the timing of the origin of the malignancy was a central issue at trial and the appellant adduced expert evidence on that very question. As a result, the appellant could not have been taken by surprise by Dr. A. C’s evidence. The appellant demonstrated no prejudice because of misunderstanding Dr. A. C’s report. The Court also did not accept the appellant’s submission that the trial judge misapprehended Dr. A.C’s evidence when she stated that it was his opinion that it was “highly likely” that the patient had Stage I uLMS in May 2009.

The trial judge did not misapprehend Dr. A. B’s evidence. Dr. A. B’s testimony was that there was a “very good chance” that the patient’s abnormal bleeding in 2009 was due to the uLMS and that it was “more likely than not” that an endometrial biopsy performed on May 25, 2009, would have detected uLMS. The appellant did not pursue this issue in oral argument and the Court rejected this ground of appeal.

The trial judge did not misapprehend the evidence of the defence expert, Dr. G. V’s. Rather, the trial judge accepted the evidence of the respondents’ experts in preference to that of Dr. G.V.

b. Did the trial judge err in finding that an endometrial biopsy would likely have detected uLMS, had it been present?

No. The trial judge did not overlook or misapprehend the appellant’s expert evidence on the likelihood of detection of uLMS. The appellant was correct to point out that Dr. G. V’s position on the likelihood of finding uLMS in 2009 was not that it was “purely speculative and unknowable”, but rather that it was unlikely to have been detected. However, the trial judge correctly referred to Dr. G. V’s evidence several times, at paras. 48 and 52. The trial judge’s characterization of his evidence, at para. 144, was not central to her conclusion. She simply accepted the evidence of the respondents’ experts, who disagreed with Dr. G. V’s evidence.

The trial judge did not misapprehend the appellant’s expert evidence on the location of uLMS. There was a clear conflict in the expert evidence as to whether an endometrial biopsy could detect a cancer that was not in either the uterine cavity or the endometrium. The trial judge was entitled to prefer the evidence of the respondents’ experts on this issue. The Court was not satisfied that the trial judge misapprehended the evidence on this issue or made either a “palpable” or “overriding” error in her assessment of the evidence. She simply preferred the respondents’ expert evidence that a patient’s menopausal or peri-menopausal status was a better indicator of whether an endometrial biopsy would have detected uLMS in 2009 than the location of the LMS.

The trial judge did not misapprehend the nature and significance of the diagnostic imaging evidence. She simply accepted Dr. A. C’s evidence that the tumour was not visible on imaging because it was very small or because it was only detectable by a pelvic transvaginal ultrasound and that did not take place until April 2011, when her cancer was well advanced.

The trial judge did not err in asserting that the uLMS had not yet entered the uterine cavity in April 2011 and the trial judge did not improperly rely on the April 2011 endometrial biopsy that detected the uLMS. The appellant’s submissions on this issue omitted reference to the full scope of the trial judge’s reasoning, in which she made it clear that the detection of uLMS by endometrial biopsy in 2011 was not central to her findings about the patient’s condition in 2009. Further, the question of whether the uLMS had invaded the uterine cavity by 2011 was contested at trial. It was open to the trial judge to note that the defence’s theory was potentially undermined if the uLMS was detected by an endometrial biopsy in spite of being outside the uterine cavity. Ultimately, it did not matter, because the trial judge based her findings on the theory of the respondents’ experts that patient’s menopausal status, among other things, would have made detection of the uLMS by endometrial biopsy more likely than not.


Ching v. Pier 27 Toronto Inc., 2021 ONCA 551

[Pepall, Nordheimer and Thorburn JJ.A.]

Counsel:

D. N. Vaillancourt and J. Millar, for the appellants

G. R. Solomon, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Repudiation, Disaffirmation, Good Faith, Deposits, Forfeiture, Remedies, Relief from Forfeiture, Civil Procedure, Costs, Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31, Courts of Justice Act, R.S.O. 1990, c. C.43, Ali v. O-Two Medical Technologies Inc., 2013 ONCA 733, Brown v. Belleville (City), 2013 ONCA 148, Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, Dosanjh v. Liang, 2015 BCCA 18, Abraham v. Coblenz Holdings Inc., 2013 BCCA 512, Canada Egg Products Ltd. v. Canadian Doughnut Co. Ltd., [1995] S.C.R. 398, Stocznia Gdanska SA v. Latvian Shipping Co. (No.2), [2001] CLC 1290, King v. Urban & Country transport Ltd. (1973), 1 O.R. (2d) 449 (C.A.), Domicile Developments Inc. v. MacTavish (1999), 45 O.R. (3d) 302 (C.A.), Peyman v. Lanjani, [1984] 3 All E.R. 703 (C.A.), Samson v. Lockwood, [1998] O.J. No. 2471, Coastal Estates Pty ltd. v. Melevende, [1965] V.R. 433 (Austl.) (Vic.) (S.C.)), Azzarello v. Shawqi, 2019 ONCA 820, leave to appeal refused, [2012] S.C.C.A. No. 521, Tang v. Zhang, 2013 BCCA 52, Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282, Scicluna v. Solstice Two Limited, 2018 ONCA 176, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Varajo v. Azish, 2015 ONCA 218, Stockloser v. Johnson, [1954] 1Q.B. 476 (C.a. (Eng.)) Benedetto v. 2453912 Ontario Inc., 2019 ONCA 149, Payer v. Peerless Plating Rack Co., (1998), 37 O.R. (3d) 781 (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

facts:

The appellants entered into an agreement of purchase and sale (the “Agreement”) with the respondent on April 23, 2008, to purchase a “presidential suite” of a condo in Toronto, a parking spot, and a locker for $1,389,000. The appellants provided the respondent with a total deposit of $214,238.85 and obtained mortgage financing for $883,200.

The initial tentative occupancy date was November 30, 2010, but was not firm and represented an estimated completion date for the first unit and not the appellants’ unit. On June 9, 2010, the tentative occupancy date was extended to October 18, 2012. The appellants moved to Canada on March 15, 2011, and contacted a real estate agent to sell or assign the unit prior to final closing. They listed the unit for $1,699,000 on March 27, 2012.

In 2012, the appellants came to Toronto, and learned the developer was not permitting assignments. The occupancy date was then extended nine more times to a final confirmed occupancy date of August 20, 2014. On each occasion, the respondents sent a letter explaining why the extension was taking place and the appellants did not complain upon receipt.

On December 23, 2013, the appellants’ mortgage was cancelled as the cancellation date for their mortgage approval had passed and the appellants unsuccessfully applied for other mortgages. The appellants believed that the Agreement was still in force regardless of the consistent postponements of the occupancy date because each notice of extension stated that apart from the occupancy date, the terms of the Agreement remained unchanged, and time would be of the essence.

The appellants continued to try to assign the Agreement without success before hiring a litigation lawyer to represent them in discussions with the respondent on August 7, 2014. The lawyer noted the numerous extensions, suggested that the respondent had failed to act in good faith and set bona fide closing date estimates, and asked that the Agreement be terminated, with the return of all deposits paid. The respondent’s lawyer responded by saying that the appellants did not have the right to terminate the Agreement. The appellants did not take possession on August 20, 2014, and the transaction did not close. Without mortgage financing, the appellants had no funds to pay and no intention of taking possession of the unit.

On September 9, 2014, the respondents terminated the Agreement and kept all deposits. The appellants brought an action against the respondents for breach of the Agreement, seeking return of their $214,238.85 in deposits, the agreed upon increase in value of the unit of $93,000, and punitive damages of $100,000 for dishonest performance of the Agreement.

The trial judge found that: (1) the respondent breached the Agreement by extending the occupancy date arbitrarily absent circumstances out of the respondent’s control, (2) the appellants terminated the Agreement on August 7, 2014, and (3) the respondent was not dishonest in its performance of the Agreement and had conducted itself honestly. The trial judge also made findings of credibility against the appellants and found that the appellants had not accepted the repudiation of the Agreement, treated the Agreement as subsisting, and did not grant any relief from the forfeiture of their deposits.

issues:

(1) Did the trial judge err in his repudiation analysis:
a. In considering irrelevant factors to conclude that the appellants had affirmed the Agreement?
b. In failing to consider the appellants’ lack of knowledge of the facts and their legal rights to terminate the Agreement?

(2) Did the trial judge err in his quantification of damages?

(3) Did the trial judge err by failing to grant relief from forfeiture of the deposit?

(4) Did the trial judge err in his assessment of costs?

holding:

Appeal dismissed.

reasoning:

(1) No.

The governing principles of repudiation stem from the fact that a repudiatory breach does not terminate a contract on its own. The innocent party must accept the repudiation, also called disaffirmation, for it to terminate the contract. The innocent party may also affirm the contract by treating the contract as subsisting or the innocent party’s actions may exist somewhere in the middle.

Disaffirmation must be clearly and unequivocally communicated within a reasonable time. The communication can be inferred from conduct or express communication accepting the repudiation. If the innocent party accepts the repudiation the contract is terminated.

A failure by the innocent party to accept the repudiation does not mean the contract has been affirmed ¬– the innocent party’s conduct must be consistent with the contract still being in force. The test is objective: what would a repudiating party reasonably understand from the words or conduct of the innocent party?

The innocent party may be given a reasonable period of time to decide whether to affirm or disaffirm the contract; however, depending on the circumstances, inaction for too long may be read as either a failure to elect or affirmation of the contract.

a. No.

The trial judge identified and applied the correct test and made no palpable or overriding errors in finding that the appellants treated the Agreement as subsisting notwithstanding the respondent’s repudiation of the Agreement. This was because the appellants had the opportunity to disaffirm the Agreement upon receipt of each notice of extension but when they remained silent past the initial closing date being extended, their conduct was taken to affirm the Agreement.

The appellants made no clear and unequivocal communication of their acceptance of the repudiation of the Agreement until August 7, 2014, at which time the appellants’ conduct was consistent with an affirmation of the Agreement to close on August 20, 2014. The appellants’ attempt to terminate the Agreement on August 7, 2014 was ineffective because there was no repudiation in play at that time.

b. No

The trial judge did not err in determining that the appellants had affirmed the Agreement. The appellants had knowledge of all the relevant facts and their affirmation of the Agreement is not ineffective due to legal infirmity. As the appellants had the opportunity to ascertain their legal rights from professional advisors. Any lack of knowledge of their legal rights was due to their own indifference and recklessness.

(2) This issue was not necessary to consider.

(3) No.

Relief from forfeiture is a discretionary remedy and the trial judge made no palpable and over-riding error justifiying overturning the decision on appeal. It is well-established that if a real estate transaction fails to close, the deposit is forfeited even where the vendor suffers no loss.

(4) Yes.

A trial judge’s cost award is entitled to deference absent an error in principle or an award that is plainly wrong. The trial judge made an error in principle by awarding the respondent their costs and disregarding the $100,000 of profit earned by the respondent as a result of their own breach of the Agreement. It was fair and reasonable, in this case, for the parties to bear their own costs of both the trial and the appeal.


SHORT CIVIL DECISIONS

Charlesfort Development Limited v. Ottawa (City), 2021 ONCA 542

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

Counsel:

A. Tomkins and A. Tardif, for the respondent

T.J. Hill and M. van Zandvoort, for the respondent

Keywords: Civil Procedure, Costs, Expert Fees, Evidence Act, R.S.O. 1990, c. E.23, s. 12, 3664902 Canada Inc. v. Hudson’s Bay Co. (c.o.b. Bay Department Stores), (2003), 169 O.A.C. 283, Yip v. HSBC Holdings plc, 2018 ONCA 626, Harding v. First Associates Investments Inc., [2003] O.J. No. 4652

Markham (City) v. AIG Insurance Company of Canada, 2021 ONCA 546

[Doherty, Brown and Thorburn JJ.A.]

Counsel:

M. B. Snowden and S. A. Kamayah, for the Appellant

D. G. Boghosian and S. S. Taylor, for the Respondent

Keywords: Civil Procedure, Costs

Fontaine v. Canada (Attorney General)., 2021 ONCA 550

[Fairburn A.C.J.O., Roberts and Thorburn JJ.A.]

Counsel:

J. Birenbaum, for the appellant National Centre for Truth and Reconciliation

C.A. Coughlan and B. Thompson, for the respondent Attorney General of Canada

S. Wuttke and J. Kolodziej, for the respondent Assembly of First Nations

P.J. Faulds, Q.C., for the respondent National Administration Committee

Keywords: Civil Procedure, Directions

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with…

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