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Please find below our summaries of the civil decisions of the Court of Appeal for the week of August 2, 2021.

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In Canadian Federation of Students v. Ontario (Colleges and Universities), the Court of Appeal held that the Minister of Training, Colleges and Universities could not force colleges and universities to make student association fees optional through its executive authority and prerogative spending power. The Court held that the Ontario Colleges of Applied Art and Technology Act and the many University Acts prevented such a mandate without first amending the governing legislation.

Other topics covered included family law (relocation and variation of support), assault and other tort claims by children against their father, and extensions of time to appeal.

Have a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553

Keywords: Constitutional law, Executive Authority, Prerogative Power, Spending, Statutory Interpretation Justiciability, Education, Colleges and Universities, Ancillary Fees, Student Associations, Funding, Ontario Colleges of Applied Arts and Technology Act, S.O. 2002, c. 8, Sched. F, s.4, s.5, s.7, s.8, Algoma University Act, 2008, s.5, s.8, s.15, s.17(1), s.18, s.24, s.32, The University of Toronto Act, S.O. 1906, c. 55, niversity of Ottawa Act, 1965, s.8, Longueépée v. University of Waterloo, 2020 ONCA 830, Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, Housen v. Nikolaisen, 2002 SCC 33, Apotex Inc. v. Canada (Health), 2018 FCA 147, Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th) 228 (Ont. C.A.), Canada (Prime Minister) v. Khadr, 2010 SCC 3, Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, R. v. Walsh, 2021 ONCA 43, R. v. Mohan, [1994] 2 S.C.R. 9, Ross River Dena Council Band v. Canada, 2002 SCC 54, Attorney General v. De Keyser’s Royal Hotel, [1920] A.C. 509 (H.L.), Ball v. McAulay, 2020 ONCA 481, Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225,  Newman and Regimbald, The Law of the Canadian Constitution, 2nd ed. (Toronto: LexisNexis, 2017), Hogg, Constitutional Law of Canada, loose-leaf (2009-Rel. 1), Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan and Co., 1915)

D.C. v. T.B., 2021 ONCA 562

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Extension of Time, Best Interests of the Child, Stay Pending Appeal, Rules of Civil Procedure, Rule 3.02, Denomme v. McArthur, 2013 ONCA 694, K.K. v. M.M., 2021 ONCA 407, Lefebvre v. Lefebvre, 167 O.A.C. 85 (C.A.), Bors v. Bors, 2021 ONCA 513

O’Brien v. Chuluunbaatar, 2021 ONCA 555

Keywords: Family Law, Custody and Access, Relocation, Children’s Law Reform Act, R.S.O. 1990, c. C.12, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Van de Perre v. Edwards, 2001 SCC 60, Reeves v. Brand, 2018 ONCA 263, Gordon v. Goertz, [1996] 2 S.C.R. 27

Dreesen v. Dreesen, 2021 ONCA 557

Keywords: Family Law, Child Support, Spousal Support, Variation, Material Change in Circumstances, Federal Child Support Guidelines, S.O.R./97-175 (“CSG”), Colucci v. Colucci, 2021 SCC 24, Mason v. Mason, 2016 ONCA 725, Bravo v. Pohl (2008), 62 R.F.L. (6th) 209 (Ont. S.C.), Koester v. Koester (2003), 50 R.F.L. (5th) 78 (Ont. S.C.)

Calin v. Calin, 2021 ONCA 558

Keywords: Torts, Negligence, Assault, Battery, Intentional Infliction of Mental Distress, Wrongful Imprisonment, Breach of Fiduciary Duty, Causation, Damages, F.H. v. McDougall, 2008 SCC 53, Salomon v. Matte-Thompson, 2019 SCC 14, Housen v. Nikolaisen, 2002 SCC 33, R. v. G.F., 2021 SCC 20, R. v. R.E.M., 2008 SCC 51, R. v. A.M., 2014 ONCA 769, R. v. Gagnon, 2006 SCC 17, R. v. Slatter, 2019 ONCA 807, R. v. Sanichar, 2012 ONCA 117, R. v. N.K., 2021 ONCA 13, R. v. A.K., 2018 ONCA 567, Benhaim v. St-Germain, 2016 SCC 48, Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, Armstrong v. Moore, 2020 ONCA 49

Kudrocova v. Kronberger , 2021 ONCA 563

Keywords: Civil Procedure, Appeals, Perfection, Dismissal for Delay, Setting Aside, Family Law, Custody and Access, Paulsson v. University of Illinois, 2010 ONCA 21, Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, Van de Perre v. Edwards, [2001] 2 S.C.R. 1014

Short Civil Decisions

Boudreau v. Jakobsen , 2021 ONCA 556

Keywords: Costs


CIVIL DECISIONS

Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553

[Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A]

Counsel:

S.S. Mathai, A. Sinnadurai, and C. Bourrier, for the Appellant
M. Wright, L. Century, and G. Philipupillai, for the Respondents
E. Krajewska, T. Markin, and M. Chowdhury, for the Intervener University of Toronto Graduate Students’ Union
P. Tunley, for the Intervener Canadian Journalists for Free Expression, the Ryerson Centre for Free Expression, the Canadian Association of Journalists, PEN Canada, World Press Freedom Canada, and the Canadian Association of University Teachers
D. Kastner and V. Vaitheeswaran, for the Intervener the Association for Canadian Clinical Legal Education
R.A. Centa and L. Pearce, for the Intervener University of Ottawa, Queen’s University at Kingston, Governing Council of the University of Toronto, University of Waterloo, and University of Western Ontario\
P. Hrick and D. Rakic, for the Intervener Start Proud and Guelph Queer Equality

Keywords: Constitutional law, Executive Authority, Prerogative Power, Spending, Statutory Interpretation Justiciability, Education, Colleges and Universities, Ancillary Fees, Student Associations, Funding, Ontario Colleges of Applied Arts and Technology Act, S.O. 2002, c. 8, Sched. F, s.4, s.5, s.7, s.8, Algoma University Act, 2008, s.5, s.8, s.15, s.17(1), s.18, s.24, s.32, The University of Toronto Act, S.O. 1906, c. 55, niversity of Ottawa Act, 1965, s.8, Longueépée v. University of Waterloo, 2020 ONCA 830, Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, Housen v. Nikolaisen, 2002 SCC 33, Apotex Inc. v. Canada (Health), 2018 FCA 147, Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th) 228 (Ont. C.A.), Canada (Prime Minister) v. Khadr, 2010 SCC 3, Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, R. v. Walsh, 2021 ONCA 43, R. v. Mohan, [1994] 2 S.C.R. 9, Ross River Dena Council Band v. Canada, 2002 SCC 54, Attorney General v. De Keyser’s Royal Hotel, [1920] A.C. 509 (H.L.), Ball v. McAulay, 2020 ONCA 481, Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225,  Newman and Regimbald, The Law of the Canadian Constitution, 2nd ed. (Toronto: LexisNexis, 2017), Hogg, Constitutional Law of Canada, loose-leaf (2009-Rel. 1), Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan and Co., 1915)

facts:

Colleges are established pursuant to the Ontario Colleges of Applied Arts and Technology Act (“OCAATA”) and operate as highly controlled agents of the Crown. Universities are established by separate University Acts and operate independently and in accordance with its statutorily mandated governance structure. Both colleges and universities are funded, in part, through grants made by the Minister of Training, Colleges and Universities.
Students at these institutions pay compulsory ancillary fees in addition to tuition fees. Some of these ancillary fees are used to fund student associations. The Appellant Minister, to reduce tuition fees, established a framework governing ancillary fees. The framework differentiated between essential and non-essential services and made the fees for student associations optional. Compliance was enforced via a threat to reduce college and university operating grants.
The Respondents brought an application for judicial review to quash the framework. They argued that it was inconsistent with the statutory schemes regulating colleges and universities, was made for an improper purpose and in bad faith and was made in breach of procedural fairness.
The Divisional Court rejected the Appellant’s argument that the application was non-justiciable. The court characterized the framework as a decision made pursuant to the Crown’s powers to spend, which it described as a prerogative power. However, the court quashed the framework on the ground that it was inconsistent with the OCAATA and the University Acts.

issues:

(1) Did the Divisional Court err in law by holding that s.7 of the OCAATA prohibited the Minister from implementing the framework?
(2) Did the Divisional Court err in law by holding that the University Acts occupy the field such that they displace or limit the exercise of the Crown’s spending power?

holding:

Appeal dismissed.

reasoning:

(1) No.
The Court found that the Crown’s “spending power” was not a prerogative power, and instead is part of its executive authority to spend money in support of government policies and programs. As an exercise of executive authority, it was axiomatic that it must yield in the event of legislative conflict. The question was therefore whether the framework conflicted with the OCAATA.
Section 4 of the OCAATA provides the Appellant with extensive control over Ontario colleges. Further, s.8 of the OCAATA allows the Appellant to exercise control through its regulation making authority. However, s.7 states that nothing in the Act restricts a student governing body from carrying on its normal activities.
The Appellant argued that, since s.7 was silent on the powers of the Minister, the Legislature did not intend to curtail its authority. The Court held that s.7 specifically protected the ability of student associations to carry out normal activities. Accordingly, in line with the rules of statutory interpretation, s. 7 had to be understood as an instruction not to interpret any provisions in the Act as authorizing interference with student associations. If student associations received less funding, their ability to engage in “normal activities” will be affected.
The Court therefore found no error in the Divisional Court’s findings. The Divisional Court had properly interpreted s. 7 as prohibiting the Appellant from exercising statutory authority over colleges in a manner that would interfere with the student associations.
(2) No.
Ontario universities are not agents of the Crown like colleges. The various University Acts all establish universities as self-governing and autonomous institutions. There is no residual ministerial or government authority concerning university operations.
The Appellant argued the Divisional Court erred in applying an “occupy the field” test to determine whether the University Acts displaced the Crown’s power to impose the framework. Further, the Minister argued that the court had erred in interpreting the University Acts as complete codes governing their relationship with the Crown, and that the University Acts bound the Crown.
The Court held that since the framework was an exercise of executive authority, the “occupy the field” language was incorrect. However, this was irrelevant to the outcome. Universities remained self-governing bodies. Student associations form an integral part of university governance. Student association fees are necessary to facilitate that part of university governance. The framework interferes with university governance by virtue of limiting universities’ authority to make decisions regarding the role played by student associations, however they choose to make them.
The Court found that the argument that the University Acts do not bind the Crown was untenable. Universities are created to be independent, self-governing bodies, and it is fanciful to suggest that they are not. To conclude that the University Acts do not bind the Crown would wholly frustrate their clear purpose, and this was sufficient to establish that the legislation binds the Crown: Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225.
The Court also noted that the question, as argued by the Appellant, was not whether tuition fees may be regulated. The question was how they may be regulated, and whether they could be regulated through executive action as opposed to regulation. Therefore, the government’s ability to regulate tuition fees was not at risk.


D.C. v. T.B., 2021 ONCA 562

[van Rensburg J.A. (Motions Judge)]

Counsel:

M.J. Stangarone and A. MacEachern, for the moving party
C. Doris and J. Luscombe, for the responding party

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Extension of Time, Best Interests of the Child, Stay Pending Appeal, Rules of Civil Procedure, Rule 3.02, Denomme v. McArthur, 2013 ONCA 694, K.K. v. M.M., 2021 ONCA 407, Lefebvre v. Lefebvre, 167 O.A.C. 85 (C.A.), Bors v. Bors, 2021 ONCA 513

facts:

The moving party seeks an extension of time to appeal the final order of Conlan J. with respect to parenting of the parties’ daughter, as well to stay the final order pending appeal. The appeal was filed three days after the deadline.

issues:

(1) Should the moving party be granted an extension of time to appeal?

(2) Should the final order be stayed pending appeal?

holding:

Motion to extend time to appeal granted. Motion for stay pending appeal dismissed.

reasoning:

(1) Yes.
The factors that the Court will analyze in determining whether to extend time to appeal under Rule 3.02 of the Rules of Civil Procedure are: (1) whether an intention formed to appeal within the relevant period; (2) the length of, and explanation for, the delay; (3) prejudice to the respondent; (4) the merits of the appeal; and (5) ultimately, whether it is in the interests of justice to order the extension of time. In cases involving children, the justice of the case is reflected in the best interests of the children: Denomme v. McArthur, 2013 ONCA 694, at para. 10.
The moving party argued that the delay was a result of the traumatic effect of the final order and retaining counsel. The motion was then brought promptly. The Court reasoned that an extension of time was in the interest of justice. The final order prevented the moving party from having contact with her child. She had substantially complied with the order and had demonstrated a formed intention to appeal in the required timeline. Furthermore, due to the short delay in appealing the order, the strength of the appeal on the merits was not a compelling factor in this case.
(2) No.
In determining whether to stay an order involving the parenting of a child, the courts must consider: (1) whether the appeal raises a serious question (recognizing that this is a low threshold); (2) whether the child will suffer irreparable harm if a stay is refused; and (3) the balance of convenience. the court must be satisfied that it is in the child’s best interests to grant a stay: K.K. v. M.M., 2021 ONCA 407, at para. 17. The standard for appellate review of a custody or parenting decision is exacting: Bors v. Bors, 2021 ONCA 513, at paras. 18-20. Intervention is warranted only if there is a material error, a serious misapprehension of the evidence, or an error of law.
The moving party argued that the trial judge erred in the application of expert evidence and that the temporary separation from her child amounted to irreparable harm. The responding party argued that the therapeutic program that the daughter was working through while in his care was in her best interest. The Court was not persuaded that a stay was in the best interest of the daughter. A stay would disrupt the benefits that the daughter was receiving under the final order of the trial judge. Furthermore, the trial judge’s reasons were comprehensive and revealed no obvious error.


O’Brien v. Chuluunbaatar, 2021 ONCA 555

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

B.C. in person

J.O. in person

Keywords: Family Law, Custody and Access, Relocation, Children’s Law Reform Act, R.S.O. 1990, c. C.12, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Van de Perre v. Edwards, 2001 SCC 60, Reeves v. Brand, 2018 ONCA 263, Gordon v. Goertz, [1996] 2 S.C.R. 27

facts:

The appellant, the mother, and the respondent, the father, have one child. They separated when she was about nine months old. Based on a consent order, the mother has sole custody of the child and the father has access on alternate weekends. When the child was five years old, the mother brought a motion seeking permission to relocate with the child to Mongolia. The mother was born, raised, educated, and employed in Mongolia before immigrating to Canada. Relocation to Mongolia would improve the mother’s employment and social situation and would permit her to give the child better accommodations, education and family environment. The mother’s evidence included a detailed plan of how the child’s life would be improved in Mongolia. The father opposed the motion. After a three-day trial in the Ontario Court of Justice, the trial judge issued an order permitting the relocation. The father’s appeal to the Superior Court of Justice was successful and the relocation order was overturned. The mother appealed. Her appeal depends, in part, on whether the recent amendments to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”) relating to relocation apply to a case started before the amendments came into effect on March 1, 2021.

issues:

(1) Did the appeal judge err finding that the trial judge improperly applied the test for relocation?

(2) Did the appeal judge err in reweighing the trial judge’s assessment of the maximum contact principle?

(3) Did the appeal judge err in intervening because of an allegedly deficient evidentiary basis for the move?

holding:

Appeal allowed.

reasoning:

(1) No

The trial judge made no error in her application of the test for relocation. The Court found that the appeal judge was incorrect to say that the trial judge focused solely on the mother’s reasons for relocation. The trial judge’s focus throughout was squarely on whether the relocation was in the child’s best interests. It follows that an improvement in the mother’s social, emotional, and financial circumstances are in the child’s best interests. The appeal judge’s reason for concluding that the trial judge erred in her application of the test for relocation – namely, that the trial judge erred because she considered the mother’s reasons for moving – disappears because of recent amendments to the CLRA. The CLRA explicitly directs the court, when deciding whether to authorize a relocation, to take into consideration the reasons for the relocation. The CLRA amendments must apply to any ongoing proceedings, given that the parallel amendments in the Divorce Act, R.S.C., 1985, c. 3 are applied to any ongoing proceedings. Accordingly, the Court found that the reasons for relocation are a proper consideration and there was no error on the part of the trial judge.

(2) No

The trial judge made no error on the law as it stood when the motion was decided in respect of the maximum contact principle. The trial judge was fully alive to the maximum contact principle and its importance when assessing whether the relocation was in the child’s best interest. The trial judge’s decision involved weighing of competing considerations and is entitled to deference. Rather than the trial judge having erred, it was the appeal judge who fell into error by reweighing the competing considerations based on his view of the weight to be afforded to the maximum contact principle. Additionally, the maximum contact principle has been replaced in the CLRA amendments and it highlights the importance of a child having time with each parent while explicitly providing that the allocation of parenting time must be consistent with the child’s best interests. The trial judge’s reasons demonstrate that she was alive to the importance of the child having time with each parent so long as the allocation of parenting time was consistent with the child’s best interests.

(3) No

The trial evidence was sufficient and the appeal judge erred by stating that there was an “absence of a proper evidentiary record” to support trial judge’s finding that the proposed move to Mongolia was in the child’s best interests. The mother’s evidence was led through her affidavits and the detailed information provided as evidence was tested before the trial judge through cross-examination. The trial judge was best positioned to assess the sufficiency of the evidence. Further, she was entitled to accept the mother’s evidence, as she did. The language, financial, and technical barriers to having witnesses from Mongolia testify, coupled with the mother’s limited financial means, go a long way to explaining why direct witness evidence from Mongolia was not before the trial court. The uncontested evidence concerning the help that the mother’s family had given her and the child and mother’s commitment to the father’s relationship with the child provided the context within which the trial judge considered the rest of the mother’s evidence and came to the determination that relocation was in the child’s best interests. The trial judge was in the best position to decide whether relocation was in the child’s best interests. She concluded that it was and exercised her discretion accordingly. There was no basis for interference by the appeal judge.

The Court also admitted fresh evidence provided by the mother and made the requested change to winter access to the child by the father.


Dreesen v. Dreesen, 2021 ONCA 557

[Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.]

Counsel:

G.S. Joseph and J. McArthur, for the appellant
V.E. Craig, for the respondent

Keywords: Family Law, Child Support, Spousal Support, Variation, Material Change in Circumstances, Federal Child Support Guidelines, S.O.R./97-175 (“CSG”), Colucci v. Colucci, 2021 SCC 24, Mason v. Mason, 2016 ONCA 725, Bravo v. Pohl (2008), 62 R.F.L. (6th) 209 (Ont. S.C.), Koester v. Koester (2003), 50 R.F.L. (5th) 78 (Ont. S.C.)

facts:

The parties were married in 2000 and separated in 2012. At the time the parties entered into minutes of settlement, the appellant father was employed and had also started his own business in 2012, which then acquired another corporation in 2018. In the consent order (the “order”), the following were provided: (i) both parties would pay set-off table child support in accordance with the Federal Child Support Guidelines, S.O.R./97-175 (“CSG”) based on the appellant’s income and on the greater of the respondent mother’s actual income or $48,000; (ii) in the event of a material change, either party can seek a variation of the child support arrangements; (iii) the parties would adjust child support annually based on their respective incomes, the children’s living arrangements, and the CSG; (iv) the appellant would pay the respondent compensatory monthly spousal support based on the respondent’s imputed income and the appellant’s actual income; (v) spousal support could be changed if there was a material change; and (vi) there would be a review of spousal support in October 2019 which would assess the respondent’s efforts to become self sufficient.
In July 2017, the appellant was laid off from his job and commenced a motion to change in June 2019, which was heard in September 2020. In the meantime, the appellant had unilaterally reduced support to reflect what he claimed his actual income was at that point. The appellant sought to have his child and spousal support reduced retroactively and going forward and to terminate spousal support. The motion judge found that the appellant had not demonstrated a material change warranting a reduction in child support. The end of the appellant’s employment was known prior to the date of the order. Further, the appellant continued to have significant self-employment income available, and his income had increased since the date of the order. The motion judge added the pre-tax corporate income and any unreasonably deducted expenses to the appellant’s income for support purposes as the appellant was the sole shareholder and director of two corporations. For future child support, the appellant was ordered to pay set-off table child support based on his average income from 2017-2019 and the respondent’s income.

issues:

1. Did the motion judge err in finding that the appellant’s change in financial circumstances did not constitute a material change?
2. Did the motion judge err in imputing the father’s pre-tax corporate income in calculating his income available for support?
3. Did the motion judge err in averaging the appellant’s income?
4. Did the motion judge err in ordering step-down spousal support rather than terminating spousal support?
5. Did the motion judge err in determining the motion on affidavit evidence alone?

holding:

Appeal dismissed.

reasoning:

1. No.
The onus is on the payor seeking to retroactively decrease child support to establish a past material change in circumstances: Colucci v. Colucci, 2021 SCC 24. Although the appellant lost his job after the final minutes of settlement were negotiated, it did not constitute a material misapprehension of the evidence on the part of the motion judge, given that the appellant’s income did not decrease. The appellant did not meet the threshold for a retroactive decrease in support. The Court held that even if the motion judge had erred on this issue, a court would still need to consider the appellant’s disclosure to the respondent of his loss of employment when determining the appropriate date of retroactivity: Colucci. However, in these circumstances where the appellant had been growing a business, the Court held it was difficult to see how it could have constituted effective notice, given the appellant’s failure to provide any disclosure of his corporate income at that point.
2. No.
The appellant did not provide sufficient evidence to explain why his corporations needed to retain earnings. The motion judge had no evidence or documentation other than the limited disclosure of the appellant to ground a broader consideration of the nature of the corporations’ business and had no evidence of legitimate calls on its corporate income for the purposes of that business. The Court held that the appellant’s breakdown of the cumulative retained earnings from 2012-2018 and his general statement about paying staff lacked supporting evidence and did not adequately explain why or how much corporate income from 2017 onward needed to be retained. The Court held that the motion judge’s reasoning on this issue was clear given the evidence.
3. No.
The Court held that the motion judge’s decision to take a three-year average because the payor was growing a business was fair. The appellant gave no reasons for expecting a continuing decline in the successes of his businesses. There was no obligation to use the most current year’s income when there was reason to think it was anomalous.
4. No.
The Court held that the motion judge did not err in fact or law in considering the respondent’s entitlement to spousal support, as he considered the evidence and concluded that she had a continued entitlement on a compensatory and needs basis. When imposing the step-down in support, the motion judge was correct in finding that this approach best balanced the respondent’s transition to self-sufficiency.
5. No.
The Court held that the evidence in the affidavit material was not contradictory nor conflicting. Considering the minimal evidence, which the appellant submitted late in the day and only after great effort on the part of the respondent, it was open to the motion judge to accept the respondent’s evidence over the appellant’s evidence. Finally, the respondent failed to provide conflicting evidence on what the respondent had done in terms of her efforts in seeking employment and becoming self-sufficient. It was open to the motion judge to consider the evidence of the respondent’s efforts and come to his own determination about whether she had made efforts to or had become self-sufficient.


Calin v. Calin, 2021 ONCA 558

[Tulloch, Nordheimer and Jamal JJ.A.]

Counsel:

A. Baldy, for the Appellant/Respondent by way of cross-appeal

A. C. Gibson and C. M. Gibson, for the Respondents/Appellants by way of cross-appeal

Keywords: Torts, Negligence, Assault, Battery, Intentional Infliction of Mental Distress, Wrongful Imprisonment, Breach of Fiduciary Duty, Causation, Damages, F.H. v. McDougall, 2008 SCC 53, Salomon v. Matte-Thompson, 2019 SCC 14, Housen v. Nikolaisen, 2002 SCC 33, R. v. G.F., 2021 SCC 20, R. v. R.E.M., 2008 SCC 51, R. v. A.M., 2014 ONCA 769, R. v. Gagnon, 2006 SCC 17, R. v. Slatter, 2019 ONCA 807, R. v. Sanichar, 2012 ONCA 117, R. v. N.K., 2021 ONCA 13, R. v. A.K., 2018 ONCA 567, Benhaim v. St-Germain, 2016 SCC 48, Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, Armstrong v. Moore, 2020 ONCA 49

facts:

The appellant at trial was found liable for assault, battery, negligence, and breach of fiduciary duty for physical and emotionally abusing his twin daughters, the respondents. The respondent’s claim for intentional infliction of mental distress and wrongful imprisonment were dismissed. The appellant was ordered to pay the respondents a total of $85,000 as general damages and $20,000 as punitive damages.

The trial judge found that the appellant did not socially isolate the respondents or control all their activities. She also concluded, based on the expert evidence, that the respondents had not proved the appellant’s conduct caused them to suffer from psychiatric disorders. Finally, she concluded that the respondents had not proved loss of income or competitive advantage because of the appellant’s actions.

The appellant appealed the findings of liability and the amount of damages awarded at trial. The respondents cross-appealed the dismissal of their claim for intentional infliction of mental distress and the amount of damages.

issues:

(1) Did the trial judge err in her factual findings or credibility assessments?
(2) Did the trial judge err in finding that the respondents had not proved that the appellant’s acts caused their psychiatric conditions?
(3) Did the trial judge err in her assessment of damages?

holding:

Appeal and cross-appeal dismissed.

reasoning:

(1) No
The appellant argued the trial judge misapprehended the evidence by failing to consider and give sufficient weight to relevant evidence in assessing the respondents’ credibility. He asserted that the trial judge’s failure to address inconsistencies in the witnesses account was a reversible error. The Court disagreed and found that inconsistencies in a witness’s evidence, even absent corroborative evidence, does not open the door to appellate review of a trial judge’s credibility findings.

The Court found the trial judge was alive to the inconsistencies in the respondents’ evidence and highlighted those inconsistencies throughout her reasons, rejecting aspects of their evidence and accepting others, or finding the evidence insufficiently to conclude one way or another. She did not have to expressly reconcile every inconsistency arising from the respondent’s evidence.

The Court also did not accept the appellant’s submissions that the trial judge erred by failing to address concerns about the respondent’s reliability, focusing only on their credibility. The trial judge did not ignore credibility concerns about certain aspects of the respondent’s evidence, which he said undermined their evidence. A trial judge’s determination to accept a witness’s evidence includes an implicit assessment of its accuracy or reliability. The trial judge’s credibility concerns did not oblige her to reject all the respondents’ evidence.

Lastly, the Court disagreed with the appellants’ assertion that the trial judge reversed the burden of proof and applied uneven scrutiny to the evidence. The trial judge’s reasons confirm that she understood and applied the correct law on the burden and standard of proof.

(2) No

The Court found no reviewable error in the trial judge’s causation analysis. Whether an inference of causation is warranted is within the trial judge’s discretion, to be determined with reference to all of the evidence. The trial judge weighed the evidence of both experts, in view of all the other evidence before her, and preferred the evidence of the appellant’s expert. She declined to infer causation and concluded that the respondents had not proved that their psychiatric disorders were caused by the appellant’s actions. The trial judge’s weighing of the expert evidence attracted appellate deference.

(3) No

An appellate court can interfere with a damages award only if the trial judge made an error in principle, misapprehended the evidence, failed to consider relevant factors, considered irrelevant factors, made an award without any evidentiary foundation, or made a wholly erroneous assessment of damages. The Court found neither the appellant nor the respondents met the exacting standard for appellate intervention. The Court found the trial judge considered and weighed all the relevant evidence and came to her own determination of the appropriate damages and found no basis to intervene. The Court also found no basis to reverse the trial judge’s finding that the respondents were not entitled to damages for loss of competitive advantage.


Kudrocava v. Kronberger, 2021 ONCA 563

[van Rensburg J.A (Motions Judge)]

Counsel:

J. Montes, agent for T. Frederick, for the moving party
M. Ruhl and K. Gordon, for the Respondent

Keywords: Civil Procedure, Appeals, Perfection, Dismissal for Delay, Setting Aside, Family Law, Custody and Access, Paulsson v. University of Illinois, 2010 ONCA 21, Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, Van de Perre v. Edwards, [2001] 2 S.C.R. 1014

facts:

The purpose of the motion was to set aside the Registrar’s dismissal of an appeal for failure to perfect on time, and awarding costs to the respondent of $750. The appeal is from the orders of J. McLeod. The orders are in relation to the parenting of the parties’ two children.
The affidavit of the moving party stated that the delay was the fault of their first lawyer on the appeal, who misled the moving party to believe the appeal was proceeding. The first lawyer was later involved in a car accident and replaced by the present counsel.

issues:

(1) Should the Registrar’s order be set aside?

holding:

Motion allowed.

reasoning:

(1) Yes
The Court held that it was in the interest of justice to allow the appeal to proceed. The Appellant reasonably understood that her appeal was proceeding. The circumstances leading to the Registrar’s order and delay in bringing the motion were not her fault. Accordingly, she should not suffer the consequences of her lawyer’s oversight and inattention.
Further, all the materials had been prepared, and the appeal could be perfected without delay. Finally, the Court was not persuaded that the delay was prejudicial to the children’s best interests.
The Court refused to express any opinion on the merits of the appeal.


SHORT CIVIL DECISIONS

Boudreau v. Jakobsen, 2021 ONCA 556

[Brown, Roberts and Zarnett JJ.A]

Counsel:

M.J. Stangarone and S.P. Kirby, for the appellant

J. Beaton and J. Grys, for the respondent

Keywords: Costs


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.