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Good evening.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of September 13, 2021.

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In a very lengthy child custody/abduction/relocation case, N. v. F., the Court upheld the trial judge’s decision to order that the parties’ children be returned to Dubai, as Ontario did not have jurisdiction to deal with the custody issues. It was felt that on the balance of probabilities, the children’s best interests would be served by their return to Dubai, so that a court there could adjudicate the matters of custody, access, and guardianship. The Court confirmed that significant deference must be paid to family law decisions, and given the absence of a legal error or a palpable and overriding error of fact or mixed fact and law, the Court should not interfere. Lauwers J.A. dissented.

Other topics covered this week included leave to appeal a bankruptcy matter (denied), agreements of purchase and sale of land, a dispute over rights of way over a Toronto property that dated back to the early 1900’s, and the quashing of an appeal because the order appealed from was interlocutory.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

N. v. F., 2021 ONCA 614

Keywords: Family Law, Custody and Access, Relocation, Child Abduction, Civil Procedure, Conflict of Laws, Jurisdiction, Appeals, Fresh Evidence, Standard of Review, Constitutional Law, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 22, 23 and 40, Canadian Charter of Rights and Freedoms, s. 2(a), 6(1), 7 and 15, Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, Palmer v. The Queen, [1980] 1 S.C.R. 759, H.E. v. M.M., 2015 ONCA 813, 393 D.L.R. (4th) 267, leave to appeal refused, [2016] S.C.C.A. No. 63, Hickey v. Hickey, [1999] 2 S.C.R. 518, Van de Perre v. Edwards, 2001 SCC 60, Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79, E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, Canadian Western Bank v. Alberta, 2007 SCC 22, Office of the Children’s Lawyer v. Balev, 2018 SCC 16, McKee v. McKee, [1950] S.C.R. 700, rev’d [1951] 2 D.L.R. 657 (P.C.), R. v. S. (S.), [1990] 2 S.C.R. 254, References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, Geliedan v. Rawdah, 2020 ONCA 254, Thomson v. Thomson, [1994] 3 S.C.R. 551, M.A.A. v. D.E.M.E., 2020 ONCA 486, leave to appeal refused, [2020] S.C.C.A. No. 402, Bolla v. Swart, 2017 ONSC 1488, Fraser v. Canada (Attorney General), 2020 SCC 28, Parsons v. Styger (1989), 67 O.R. (2d) 1 (H.C.), aff’d (1989), 67 O.R. (2d) 11 (C.A), J.P.B. v. C.B., 2016 ONCA 996, Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47.

James Henry Ting (Re), 2021 ONCA 622

Keywords: Bankruptcy and Insolvency, Civil Procedure, Orders, Enforcement, Contempt, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C 1985, c. B-3, s. 193(e), Bankruptcy and Insolvency General Rules, C.R.C., c. 386, Rule 31(2), Rules of Civil Procedure, Rule 61.03.1 , Business Development Bank of Canada v. Pine Tree Resorts Inc, 2013 ONCA 282, Carey v. Laiken, 2015 SCC 17, Susin v. Susin, 2014 ONCA 733.

Forest Meadows Developments Inc. v. Shahrasebi, 2021 ONCA 620

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of land, Representation, Reliance, Breach of Contract, Anticipatory Breach, Termination of Contract, Standard of Review, Deference, Finding of Fact, Costs.

Yekrangian v. Boys, 2021 ONCA 629

Keywords: Real Property, Easements, Rights of Way, Abandonment, Palmer v. The Queen, [1980] 1 S.C.R. 759, Owners Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Housen v. Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.)¸ Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443, Gale on Easements, 20th ed. (London: Thomson Reuters (Professional) UK Limited, 2017), Tasker v. Badgerow, [2007] O.J. No. 2487 (S.C.J.), Overs v. ten Kortenaar (2006), 46 R.P.R. (4th) 118 (Ont. Sup. Ct.)

Pinder v. Biggar, 2021 ONCA 623

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Garnishment Hearings

Short Civil Decisions

Gefen v. Gaertner, 2021 ONCA 631

Keywords: Civil Procedure, Appeals, Costs, Fontaine v. Canada (Attorney General), 2012 ONCA 206, Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.), Ross v. Canada Trust Company, 2021 ONCA 161

South Beach Street Development Ltd. v. US Income Partners LLP, 2021 ONCA 624

Keywords: Civil Procedure, Settlements


CIVIL DECISIONS

N. v. F., 2021 ONCA 614

[Lauwers, Hourigan and Brown JJ.A.]

Counsel:

F. L. Jamal, F. Yehia and E. C. Conway, for the Appellant

B. R.G. Smith, L. Love-Forester and A. Lokan, for the Respondent

E. Garfin and H. Evans, for the intervener Attorney General of Ontario

C. E. Tempesta and S. Scott, for the intervener Office of the Children’s Lawyer

Keywords: Family Law, Custody and Access, Relocation, Child Abduction, Civil Procedure, Conflict of Laws, Jurisdiction, Appeals, Fresh Evidence, Standard of Review, Constitutional Law, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 22, 23 and 40, Canadian Charter of Rights and Freedoms, s. 2(a), 6(1), 7 and 15, Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, Palmer v. The Queen, [1980] 1 S.C.R. 759, H.E. v. M.M., 2015 ONCA 813, 393 D.L.R. (4th) 267, leave to appeal refused, [2016] S.C.C.A. No. 63, Hickey v. Hickey, [1999] 2 S.C.R. 518, Van de Perre v. Edwards, 2001 SCC 60, Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79, E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, Canadian Western Bank v. Alberta, 2007 SCC 22, Office of the Children’s Lawyer v. Balev, 2018 SCC 16, McKee v. McKee, [1950] S.C.R. 700, rev’d [1951] 2 D.L.R. 657 (P.C.), R. v. S. (S.), [1990] 2 S.C.R. 254, References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, Geliedan v. Rawdah, 2020 ONCA 254, Thomson v. Thomson, [1994] 3 S.C.R. 551, M.A.A. v. D.E.M.E., 2020 ONCA 486, leave to appeal refused, [2020] S.C.C.A. No. 402, Bolla v. Swart, 2017 ONSC 1488, Fraser v. Canada (Attorney General), 2020 SCC 28, Parsons v. Styger (1989), 67 O.R. (2d) 1 (H.C.), aff’d (1989), 67 O.R. (2d) 11 (C.A), J.P.B. v. C.B., 2016 ONCA 996, Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47

facts:

In the decision under appeal, the trial judge held that Ontario did not have jurisdiction to deal with the case under ss. 22 or 23 of the Children’s Law Reform Act (“CLRA”) and ordered the parties’ children be returned to the United Arab Emirates (“UAE”). After an 11-day trial, the trial judge found that the respondent was “significantly more credible” than the appellant, and disbelieved many of the appellant’s claims about why the children should remain in Ontario. He concluded that, on the balance of probabilities, the children’s best interests would be served by their return to Dubai, so that a court there could adjudicate the matters of custody, access, and guardianship.

The appellant is a Canadian citizen, and the respondent is a Pakistani national. The parties married in February 2012 and lived together in Dubai, the UAE, for eight years. They have two children under the age of five, who are both Canadian citizens. Neither the parties nor children are UAE nationals. In mid-2020, the appellant advised the respondent that she intended to take the children to Milton, Ontario, for a month-long trip to visit her parents. The respondent consented to the trip, and the appellant purchased return airline tickets. After arriving in Canada, the appellant told the respondent of her unilateral decision to not return to Dubai with the children. The appellant took no steps in the Ontario courts to determine the jurisdictional issue that arose regarding the custody and access of the children. The respondent commenced legal proceedings in Dubai and then in Ontario to have the children returned.

issues:

(1) Should the proposed fresh evidence be admitted?

(2) What is the applicable standard of review?

(3) Did the trial judge err in declining jurisdiction under s. 22 of CLRA?

(4) Did the trial judge err in declining jurisdiction under s. 23 of the CLRA?

(5) Did the trial judge err in declining to exercise parens patriae jurisdiction?

(6) Did the trial judge err in making an order under s. 40 of the CLRA?

holding:

Appeal dismissed (Lauwers J.A. dissenting).

reasoning:

(1) No.

The evidence sought to be tendered was of little or no relevance to the issues in the proceeding, and in the case of one of the documents, could have been available at trial if the appellant had acted with reasonable diligence. To obtain leave to file such evidence, the moving party must establish that the evidence: (a) is credible; (b) could not have been obtained by reasonable diligence before the trial or motion; and (c) would likely be conclusive of an issue on the appeal. The appellant failed to meet the test for the admission of fresh evidence on appeal.

(2) Custody and Support Orders: Deference.
Questions of Foreign Law: Correctness.

The jurisprudence established that significant deference must be paid to family law decisions. It is not the role of appellate courts to redo a trial judge’s analysis based on vague notions of what they perceive to be a just result. This runs the risk of rendering results-based rulings, which create uncertainty in the law. Absent a legal error or a palpable and overriding error of fact or mixed fact and law, an appellate court cannot redo a lower court’s analysis to achieve a result that it deems to be in the best interests of the child.
For issues regarding the proper interpretation of foreign law, the appropriate standard of appellate review in Ontario is correctness.

(3) No.

CLRA s. 22, which defines the circumstances in which an Ontario court will assume jurisdiction for the purposes of making a parenting or contact order, does not apply. The trial judge correctly found that s. 22(1)(a) does not ground jurisdiction because the children were not living in Ontario with both parents since their arrival in June 2020. Further, the appellant failed to establish that all six enumerated criteria were met under s. 22(1)(b), as required for an Ontario court to assume jurisdiction. These findings were well-grounded in the evidence and free of error. They were immune from appellate interference.

(4) No.

A trial judge’s exercise of powers under s. 23 is discretionary. The trial judge carefully considered the expert evidence regarding the UAE law and made the correct decision about its application in this case. He also reached conclusions available to him regarding the respondent’s parenting plan and the issue of serious harm. There was nothing in the record to suggest that the respondent wanted to limit the appellant’s interaction with the children The trial judge accepted expert evidence that there were solutions to resolve concerns associated with the appellant’s residency status. The trial judge correctly concluded that the application of UAE custody law would not harm the children.

Lauwers J.A. (dissenting): The trial judge made a palpable and overriding error because he failed to properly assess the harm of an involuntary separation of the children from the appellant. There was no evidence that a negotiated settlement agreement acceptable to the appellant and reasonably congruent with the best interests of the children under Ontario law would be enforceable in Dubai. The trial judge should have also found a risk of serious harm to the children in the application of UAE custody law, because a parenting determination by the Dubai courts would not be made based on the children’s best interests, as understood under Ontario law. On these grounds, Lauwers J.A. would have allowed the appeal, and ordered that the Ontario Superior Court had jurisdiction to make a parenting order in relation to the children

(5) No.

The trial judge correctly applied the leading authority on parens patriae jurisdiction and found no necessity for the court to protect the children. There was no basis for appellate interference with this highly discretionary judgment call.

(6) Not answered.

This issue was not raised in the Notice of Appeal and was not argued by the appellant in her factum. Despite the fact the Office of the Children’s Lawyer (“OCL”) raised the issue in its factum, it was not properly before the Court and therefore it declined to consider it.

Brown JJ.A (concurring): The trial judge was correct in concluding that CLRA s. 40(3) “is all about the return of children to a place (in this case, Dubai) that they are most closely connected to, for a determination of custody issues in that place, provided no serious harm will result” and that the section falls within Ontario’s lawful authority to legislate matters of child welfare and family law. CLRA s. 40(3) is intra vires the legislative power of Ontario. The trial judge correctly found that a return order made under s. 40(3) does not infringe the appellant or children’s Charter rights under s. 2(a), 6(1), 7, or 15.

Lauwers J.A. (dissenting): Section 40, cl. 3 of the CLRA allows a court to order a child’s return to another jurisdiction in cases of wrongful retention. Because the dissent would have found that Ontario should exercise jurisdiction under s. 23, a return order under s. 40 was not available


James Henry Ting (Re), 2021 ONCA 622

[Lauwers J.A]

Counsel:

A. Rogerson and A. Jazayeri for the moving party, AHT

A. Ishai and A. Zur for the responding parties, CB and JW

Keywords: Bankruptcy and Insolvency, Civil Procedure, Orders, Enforcement, Contempt, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C 1985, c. B-3, s. 193(e), Bankruptcy and Insolvency General Rules, C.R.C., c. 386, Rule 31(2), Rules of Civil Procedure, Rule 61.03.1 , Business Development Bank of Canada v. Pine Tree Resorts Inc, 2013 ONCA 282, Carey v. Laiken, 2015 SCC 17, Susin v. Susin, 2014 ONCA 733

facts:

This was an application for leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, Rule 31(2) of the Bankruptcy and Insolvency General Rules, C.R.C., c. 386, and r. 61.03.1 of the Rules of Civil Procedure. The order sought to be appealed found the applicant, AHT, in contempt of court for failing to attend at an examination in aid of the foreign bankruptcy of his father, JHT, as required by the order of Penny J. dated January 15, 2019.

issues:

(1) Did the motion judge err by failing to recuse herself after hearing damning descriptions of the conduct and character of the moving party’s father during argument?

(2) Did the motion judge err in law by dispensing with the requirement of Rule 60.11(2) that requires personal service on the alleged contemnor and not by an alternative thereto unless the court orders otherwise?

holding:

Motion dismissed.

reasoning:

(1) No.

There was no merit to the suggestion that the motion judge was unable to disabuse herself of the prosecutor’s rhetorical flourishes. Such a disposition is routinely expected from judges. The motion judge properly instructed herself, and counsel raised nothing in her reasons to suggest that she did not meet this expectation.

(2) No.

The motion judge knew that the burden on the Trustees was to prove contempt beyond a reasonable doubt. To paraphrase Blair J.A. in Susin, there was substantive compliance here because the purpose of personal service had been met in the circumstances and there had been no substantial wrong or miscarriage of justice. There was nothing in this matter that rose to the level required for leave to be granted as specified in Pine Tree Resorts. The proposed appeal does not raise an issue that is of general importance to the practice in bankruptcy/insolvency matters nor to the administration of justice as a whole. There was no prima facie merit to the proposed appeal, and granting leave in these circumstances would unduly hinder the progress of the bankruptcy proceeding.


Forest Meadows Developments Inc. v. Shahrasebi, 2021 ONCA 620

[Benotto, Brown and Harvison Young JJ.A.]

Counsel:

M.A. Ross and V.M. Ivanov, for the appellant

E. Battiston and H. Rosenberg, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of land, Representation, Reliance, Breach of Contract, Anticipatory Breach, Termination of Contract, Standard of Review, Deference, Finding of Fact, Costs.

facts:

The appellant and respondent entered into an Agreement of Purchase and Sale of land (“APS”) in March 2017. Closing was initially supposed to occur on March 25, 2018, but was later extended to October 29, 2019. Closing did not occur on October 29. The respondent argued that she was ready to close on October 29, and the failure of the appellant to close on that date was a breach of the APS. The appellant argued that it had relied on the representations by the respondent that she would not be able to close on October 29 because her house was not selling at a price necessary to finance the purchase of the new property, and therefore the appellant had slowed down construction and preparation for the final appraisal, which would be necessary to close and a prerequisite for the respondent to obtain the financing that had been preapproved. The appellant commenced an application arguing that the respondent had made representations that she would not close on October 29, that she was in anticipatory breach of the APS, and that the appellant was entitled to terminate the APS. The application judge dismissed the application. The application judge found that there had been no anticipatory breach or representations that could have given rise to reasonable reliance by the appellant. The appellant appealed the application judge’s order.

issues:

(1) Did the application judge err in finding that the respondent did not say or represent that she would not be able to close on October 29?

(2) Did the application judge err in failing to give weight to the September 12th meeting between the respondent, her husband, and a representative of the appellant?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court found that the application judge did not err in finding that the respondent did not say or represent that she would not be able to close on October 29. Findings of fact attract a high level of deference. The Court did not find any palpable or overriding error to justify intervention. The application judge’s findings were well grounded in the record before her. While the respondent had communicated the difficulty she was having selling her house for the price necessary, she had never said that she would not be able to close on October 29.

(2) No.

The Court found that the application judge did not err in failing to give weight to the September 12th meeting, which was recorded by the appellant. The application judge gave good reasons for declining to give much weight to that meeting, namely that there was ample written correspondence between the parties and their counsel and that there was clear unfairness where the respondent, and her husband were not aware that their conversation with the appellant on September 12th was being recorded.


Yekrangian v. Boys, 2021 ONCA 629

[Fairburn A.C.J.O., Miller and Zarnett JJ.A]

Counsel:

M. Solmon and R. Joshi, for the appellants

J. Barr and A. Dear, for the respondents

Keywords: Real Property, Easements, Rights of Way, Abandonment, Palmer v. The Queen, [1980] 1 S.C.R. 759, Owners Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Housen v. Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.)¸ Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443, Gale on Easements, 20th ed. (London: Thomson Reuters (Professional) UK Limited, 2017), Tasker v. Badgerow, [2007] O.J. No. 2487 (S.C.J.), Overs v. ten Kortenaar (2006), 46 R.P.R. (4th) 118 (Ont. Sup. Ct.)

facts:

The appellants purchased a Toronto residential property in 2017, intending to replace the existing house with a much larger one. They have been prevented from proceeding with their plans by the existence of rights of way registered on title in favour of two neighbouring properties. The appellants had notice of the rights prior to completing the purchase because they are registered on title. The appellants believed, relying on advice from their realtor, that the rights of way had been abandoned. Their neighbours, the beneficiaries of the rights of way, believed otherwise. The appellants sought a declaration that the rights of way had been abandoned, and an order deleting them from title. The application judge disagreed and dismissed the application. The appellants appealed.

issues:

(1) Should the appellants be granted leave to adduce fresh evidence on appeal (a copy of a survey of 121 Massey dated December 16, 1986, a reported Ontario Municipal Board decision, and a deed of land for 174 Strachan registered in 1967)?

(2) Did the application judge misinterpret the rights of way?

a. What is the applicable standard of review?
b. Did the application judge make an extricable error in principle by apprehending the two rights of way as one and failing to distinguish them?
c. Did the application judge err in principle by requiring the appellants to produce evidence of non-use?
d. Did the application judge err in the interpretation of the purpose of the rights of way?

(3) Did the application judge err by finding the appellants had not established the rights of way had not been abandoned?

(4) Can the appellants seek as an alternative to deleting the right of way from title for the first time on appeal that the Court modify the right of way in favour of 176 Strachan and provide a declaration that 176 Strachan has abandoned the portion of its right of way currently obstructed by the house?

holding:

Appeal allowed in part.

reasoning:

(1) No.
None of the evidence satisfied the test for admission established in Palmer v. The Queen, [1980] 1 S.C.R. 759. There was no satisfactory explanation provided as to why the evidence, which pre-existed the hearing of the application, was not introduced then.

(2) No.

a. Deference.
Absent an extricable error of law, or a palpable and overriding error of fact, the application judge’s interpretation of the deed was subject to deference on appeal.

b. No.
Although there are two rights of way, in the sense that two different properties are entitled to use a portion of the lands of 121 Massey and two sets of legal relationships are established, the portion of the land that is burdened is more or less identical in both cases. The application judge did not misapprehend the two rights of way as one by failing to distinguish them. The application judge’s reasons as a whole made it abundantly clear that she understood there were two sets of legal relations at issue: one between 121 Massey and 174 Strachan, and one between 121 Massey and 176 Strachan.

c. No.
The application judge understood she had to consider all the relevant evidence from whatever source, and not simply the evidence led by the appellants, in order to determine whether the appellants had established an intention to abandon the rights of way.

d. No.
The appellant’s argument of tying the nature of the rights of way to the sheds located on the property was speculative. There was no express statement in any of the title documents explaining the nature of rights of way.

(3) No.

General Principles

The party asserting abandonment must prove, in the absence of express release, that the party holding the easement demonstrated a fixed intention never to assert the right conferred by the easement, or to transmit it to anyone else: Remicorp. An intention to abandon is found more readily where a permanent structure has been constructed over the right of way, and the holder of the right of way has not objected to it.

174 Strachan

The Court of Appeal concluded that the application judge made a palpable and overriding error in not finding that the house extension constituted a complete obstruction to the use of the right of way by 174 Strachan. It was inconceivable that the extension could have been built without the knowledge and acquiescence of a predecessor in title, who could not have failed to appreciate that it constituted a complete and permanent obstruction. The application judge erred by not finding that there had been an intention to abandon the right of way by a predecessor in title to the respondents CB and KB.

176 Strachan

The presence of the extension was, in itself, not sufficient to establish that predecessors in title to 176 Strachan had any intention to abandon the right of way in its entirety, as opposed to abandoning only one portion of it that was unnecessary for it use.

Conclusion

The application judge made no error in concluding that the appellants did not meet their burden of establishing non-use. More significantly, they did not meet their burden of proving on a balance of probabilities that either the current owners of 176 Strachan or their predecessors in title intended to abandon the right of way in total. The fences and sheds do not obstruct the right of way to the same extent as the extension of the house. They are not structures of any permanence, nor have they prevented the right of way from being used to access the rear of 176 Strachan for occasional maintenance, renovation, and repair. To the extent that the fences constituted an obstruction, they were and are easily removable. Similarly, a garden shed is not typically constructed in a manner that makes it impractical or disproportionately expensive to remove or modify to facilitate the sort of access contemplated by the rights of way. The sheds were either easily removable or the appellants failed to discharge their burden of establishing that they were not. Permitting sheds and fences (and even constructing a fence) did not, in this case, suggest abandonment.

(4) Yes, remitted to Superior Court for a determination of the dimensions of the portion of lands subject to the right of way in favour of 176 Strachan.

It was an inescapable conclusion that if the predecessors in title to 174 Strachan, by acquiescing to the construction of the extension of 121 Massey, abandoned their right of way, then the predecessors in title to 176 must similarly have abandoned that portion of the right of way on which the house extension sits.


Pinder v. Biggar, 2021 ONCA 623

[Benotto, Brown and Harvison Young]

Counsel:

S. Barbier and B. Tustain, for the moving parties

D. Spiller, for the responding party WB

J. Davies, for the responding party Hospodar Davies & Goold

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Garnishment Hearings

facts:

The respondents moved to quash an appeal brought by the appellant from an order made by a motion judge following a garnishment hearing (the “Order”) on the basis that the Order was interlocutory.

In 2018, the appellant commenced an oppression action against the respondents in which he obtained an interlocutory injunction and orders to produce information. The appellant alleged that the respondents failed to comply with the production order and moved for contempt. The respondents brought a cross-motion to dissolve the injunction. By an order dated June 5, 2019, the motion was dismissed and the injunction was dissolved.

The appellant appealed the order to the Ontario Court of the Appeal and the Divisional Court. The order was upheld, and the appellant was ordered to pay costs totalling $128,500.

The respondents sought to enforce the cost orders in a garnishment hearing. The motion judge ordered the costs to be paid and an additional $5,600 for accrued post-judgment interest. The appellant appealed the motion judge’s Order. The respondent moved to quash the appeal as not being within the Court of Appeal’s jurisdiction.

issues:

(1) Is the Order interlocutory?

holding:

Motion granted.

reasoning:

(1) Yes.

The Order was interlocutory. It was made in the original oppression action. The Order did not finally dispose of the rights of the parties in the oppression action, finally dispose of any issue raised by a defence in the oppression action, or end a discrete proceeding before the court.

Since the Order was interlocutory, the Court had no jurisdiction to hear the appeal, and accordingly, the appeal was quashed.


SHORT CIVIL DECISIONS

Gefen v. Gaertner, 2021 ONCA 631

[Strathy C.J.O., Pepall and Pardu JJ.A.]

Counsel:

C. Graham, for the moving party

D. Moldaver, Q.C, for the responding party

D. McMurtry, for the responding party

Keywords: Civil Procedure, Appeals, Costs, Fontaine v. Canada (Attorney General), 2012 ONCA 206, Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.), Ross v. Canada Trust Company, 2021 ONCA 161


South Beach Street Development Ltd. v. US Income Partners LLP, 2021 ONCA 624

[Strathy C.J.O., Pepall and Pardu JJ.A.]

Counsel:

M. R. Harris, for the appellants Amaryco Inc. and F. L.

Y. Pejman, for the respondent

Keywords: Civil Procedure, Settlements


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.