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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of September 20, 2021. The theme this week was family law.

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Congratulations to our own Ryan Kniznik for his success in Muraven v. Muraven. In that case, the Court dismissed an appeal addressing property, child support and prejudgment interest issues.

In Meloche v. Meloche, the Court was asked to answer the following question: Where a retired member spouse’s pension payments are divided at source for family law purposes, can the parties agree (or can a court order or can an arbitrator award) that payment sharing continue to the non-member spouse’s estate for the balance of the retired member spouse’s life? The motion judge had answered that question in the negative. However, after an exhaustive review of the relevant provisions of the Pension Benefits Act and the Family Law Act, the Court set aside that decision and answer the question in the affirmative.

In Lalonde v. Agha, the Court dismissed the appellant’s appeal from the trial judge’s order that the parties’ religious marriage in Tennessee that was not formally valid in that state because no marriage licence was obtained, was nonetheless deemed valid in Ontario pursuant to s. 31 of the Marriage Act, and therefore that the parties were “spouses” under the Family Law Act.

In Smith v. Kane, the Court upheld the trial judge’s decision that there was no breach of the standard of care of a family doctor in failing to diagnose a rare condition that resulted in the loss of the patient’s leg that could have been avoided if there had been an earlier diagnosis.

In Johnson v Ontario, the Court determined that a decision to deny an extension of time to a class member to opt out of a class proceeding so that the class member could proceed with his own individual action was a final order, not an interlocutory order. The Court was of the view that the opt out right was of such importance, that the denial of that right amounted to a decision that affected substantive legal rights, and not merely procedural rights. The order dismissing the class member’s motion for an extension of time to opt out of the class proceeding was therefore characterized as a final order. Ontario’s motion to quash the appeal on the basis that the order was interlocutory and therefore before the wrong court was dismissed.

Lastly, for our readers who have not yet heard about it, I would like to introduce them to a new publication, Civil Procedure & Practice in Ontario (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. As most of our readers probably know, CanLII is a not-for-profit organization operated by the Federation of Law Societies of Canada and is dedicated to assisting with access to justice through the free and open dissemination of the laws of Canada to all members of the public. The CPPO was written by a team of 135 leading litigators and experts in Ontario civil procedure, led by Professor Noel Semple of Windsor Law School.

CPPO will serve as a guide to Ontario’s Rules of Civil Procedure, Courts of Justice Act, and Limitations Act, and will be accessible not only to practitioners, but to members of the public. It contains not only the text of all these rules and statutory provisions, but also commentary and annotations to all the relevant case law applying and interpreting each rule and section. To access Civil Procedure & Practice in Ontario, please click here, and make sure to bookmark the site for easy access.

Together with my colleague, Natasha Rambaran, I had the privileged and honour to contribute two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference). I would like to thank Professor Semple for inviting me to participate in this very worthwhile project.

I would encourage all of our readers to consult CPPO in their daily practice, and to spread the word among colleagues. In addition, the authors and Professor Semple would welcome any feedback and ideas for improvement, as the resource will not be static. The intention is for CPPO to be continually updated and refined.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Smith v. Kane, 2021 ONCA 634

Keywords: Torts, Negligence, Medical Malpractice, Standard of Care, Causation, Contributory Negligence, Expert Evidence, ter Neuzen v. Korn, [1995] 3 S.C.R. 674, Kaiman v. Graham, 2009 ONCA 77, Whitby (Town) v. G&G, 2020 ONCA 654, Samms Estate v. Moolla, 2019 ONCA 220, Nattrass v. Weber, 2010 ABCA 64, McCann v. Hyndman, 2004 ABCA 191, Housen v. Nikolaisen, 2002 SCC 33, Hajgato v. London Health Association (1982), 36 O.R. (2d) 669 (S.C.), Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, Rowlands v. Wright, 2009 ONCA 492, Gent and Gent v. Wilson, [1956] O.R. 257 (C.A.), Ellen I. Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Carswell, 2017)

Blacklock v. Tkacz, 2021 ONCA 630

Keywords: Family Law, Motion, Estate, Deceased, Retroactive Child Support, Decree Nisi, Costs, Divorce Act, Family Law Act, Family Law Rules, O. Reg. 114/99, Katz v. Katz, 2014 ONCA 606

Meloche v. Meloche, 2021 ONCA 640

Keywords: Family Law, Motion, Question of Law, Divorce, Equalization, Net Family Property, Pension, Estate, Standard of Review, Correctness, Statutory Interpretation, Costs, Family Law Rules, O. Reg. 114/99, Pension Benefits Act, R.S.O. 1990, c. P.8, Family Law Act, R.S.O. 1990, Family Law Matters, O. Reg. 287/11, Divorce Act, Colucci v. Colucci, 2021 SCC 24, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Harvey v. Talon International Inc., 2017 ONCA 267, 137 O.R. (3d) 184, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R. 336, 148 D.L.R. (4th) 1, State Farm Mutual Automobile Insurance Company v. Old Republic Insurance Company of Canada, S.H. v. D.H., 2019 ONCA 454, 146 O.R. (3d) 625, Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, Kendra D.M.G. Coats et al., Ontario Family Law Practice 2020, Volume 2 (Toronto: LexisNexis Canada, 2019)

Johnson v. Ontario, 2021 ONCA 650

Keywords: Torts, Negligence, Breach of Charter Rights, Crown Liability, Civil Procedure, Class Proceedings, Opting Out, Extension of Time, Appeals, Jurisdiction, Final or Interlocutory, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 9, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1), Canadian Charter of Rights and Freedoms, s. 24(1), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97, Skunk v. Ketash, 2016 ONCA 841, Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065 (S.C.), 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2012 ONSC 4317, rev’d on other grounds 2013 ONCA 279, Currie v. McDonald’s Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321 (C.A.), Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, Webb v. K-Mart Canada Ltd. (1999), 45 O.R. (3d) 389, Workmen Optometry v. Aviva Insurance, 2021 ONSC 3843, Dumoulin v. Ontario (Ontario Realty Corp.), [2004] O.J. No. 2778, M.J. Jones Inc. v. Kingsway General Insurance Co. (2003), 233 D.L.R. (4th) 285 (Ont. C.A.), Smith Estate v. National Money Mart Company, 2008 ONCA 746, leave to appeal refused, [2008] S.C.C.A. No. 535, Fontaine v. Canada (Attorney General), 2018 ONCA 832, Locking v. Armtec Infrastructure Inc., 2012 ONCA 774, Hendrickson v. Kallio, [1932] 4 D.L.R. 580 (Ont. C.A.), Sun Life Assurance Co. of Canada v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 2d ed. (Markham: Lexis-Nexis Canada Inc., 2014), Kennedy, Gerard, Civil Appeals in Ontario: How the Interlocutory/Final Distinction Became So Complicated and the Case for a Simple Solution?, (2020) 45:2 Queen’s L.J. 243

Skinner v. Skinner, 2021 ONCA 658

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Arrears, Imputing Income, Section 7 Extraordinary Expenses, Child of Marriage, Spousal Support Advisory Guidelines, Willick v. Willick, [1994] 3 S.C.R. 670, Lavie v. Lavie, 2018 ONCA 10, 8 R.F.L. (8th) 14, Rosenberg v. Rosenberg (2003), 42 R.F.L. (5th) 440 (Ont. S.C.), Hickey v. Hickey, [1999] 2 S.C.R. 518

Lalonde v. Agha, 2021 ONCA 651

Keywords: Family Law, Marriage, Validation, Definitition of Spouse, Equalization of Net Family Property, Marriage Act, R.S.O. 1990, c. M.3, s. 4 and 31, Family Law Act, R.S.O. 1990, c. F.3, s. 1(1), Tennessee Code Annotated, The Marriage Act, 1896, S.O. 1896, c. 39, s. 29, Alspector v. Alspector (1957), 9 D.L.R. (2d) (Ont. C.A.), Debora v. Debora (1999), 167 D.L.R. (4th) 759 (Ont. C.A.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Berthiaume v. Dastous, [1930] 1 D.L.R. 849 (P.C.), Brook v. Brook (1861), 11 E.R. 703 (H.L.), Porteous v. Dorn et al., [1975] 2 S.C.R. 37, Powell v. Cockburn, [1977] 2 S.C.R. 218, Peppiatt v. Peppiatt (1916), 30 D.L.R. 1 (Ont. C.A.), Kerr v. Kerr and Ontario (Attorney General), [1934] S.C.R. 72, Clause v. Clause (1956), 5 D.L.R. (2d) 286, Breakey v. Breakey (1846), 2 U.C.Q.B. 349, Smith v. Waghorn, 2012 ONSC 496, Dutch v. Dutch (1977), 1 R.F.L. (2d) 177 (Ont. Co. Ct.), Harris v. Godkewitsch (1983), 41 O.R. (2d) 779 (Ont. Prov. Ct.), Kanafani v. Abdalla, 2010 ONSC 3651, Chhokar v. Bains, 2012 ONSC 6602, Aden v. Mohamud, 2019 ONSC 6493, Moza and Thusu (Re), 2021 ONSC 1552, Friedman v. Smookler, [1964] 1 O.R. 577, Ayoub v. Osman, 2006 CanLII 9309 (Ont. S.C.), Isse v. Said, 2012 ONSC 1829, Jama v. Basdeo, 2020 ONSC 2922, Walker, Janet, Castel & Walker: Canadian Conflict of Laws, loose-leaf (ReI. 82-9/2020), 6th ed. (Markham, Ont.: LexisNexis Butterworths, 2005) vol. 2, Payne, Julien D. and Marilyn A., Canadian Family Law, 8th ed. (Toronto: Irwin Law, 2020) H.R. Hahlo, Nullity of Marriage in Canada: With A Sideways Glance At Concubinage And Its Legal Consequences, (Toronto: Butterworth & Co. (Canada), 1979), Riddell, William Renwick, The Law of Marriage in Upper Canada, (1921) 2 Can Historical Rev 226

Short Civil Decisions

Public Guardian and Trustee v. Zammit, 2021 ONCA 648

Keywords: Wills and Estates, Powers of Attorney, Public Guardian and Trustee, Substitute Decisions Act, 1992, S.O. 1992, c.30, s.32(1) and s.38(1), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448 (C.A.)

31 Kingsbury Inc v. Delta Elevator Company Limited, 2021 ONCA 656

Keywords: Civil Procedure, Appeals, Abandonment, Costs

Maynard v. Mississippi Mills (Municipality), 2021 ONCA 639

Keywords: Municipal Law, By-Laws, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Jurisdiction, Ontario Land Tribunal Act, S.O. 2021, Local Land Appeal Tribunal Act, S.O. 2017, Country Pork Ltd. v. Ashfield (Township), 60 O.R. (3d) 529, Grabe v. Ottawa (City), 2019 CanLII 107083, Rules of Civil Procedure, Rule 21.01(1)(b)

College of Massage Therapists of Ontario v Schoelly, 2021 ONCA 655

Keywords: Civil Procedure, Appeals, Mootness

Markham (City) v. AIG Insurance Company of Canada, 2021 ONCA 649

Keywords: Civil Procedure, Appeals, Costs

Jonas v Akwiwu, 2021 ONCA 641

Keywords: Child Support, Retroactive Variation, Effective Date of Variation, Material Change in Circumstances, Delay in Application, Fresh Evidence on Appeal, Palmer Test, R. v. Palmer, [1980] 1 S.C.R. 759

Hanna & Hamilton Construction Co. Ltd v. Robertson, 2021 ONCA 660

Keywords: Bankruptcy and Insolvency, Debt Surviving Bankruptcy, Civil Procedure, Procedural and Natural Justice, Reasons, Appeals, Lack of Reasons, Appeal Allowed, R. v. Sheppard, [2002] 1 SCR 869

Diamond v. Berman], 2021 ONCA 653

Keywords: Family law, Spousal Support, Variation, Spousal Support Advisory Guidelines


CIVIL DECISIONS

Smith v. Kane, 2021 ONCA 634

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

Counsel:

R. Naimark, K. MacLeod, C. Madison, for the appellant
J. Sirivar and S. Rogers,for the respondent

Keywords: Torts, Negligence, Medical Malpractice, Standard of Care, Causation, Contributory Negligence, Expert Evidence, ter Neuzen v. Korn, [1995] 3 S.C.R. 674, Kaiman v. Graham, 2009 ONCA 77, Whitby (Town) v. G&G, 2020 ONCA 654, Samms Estate v. Moolla, 2019 ONCA 220, Nattrass v. Weber, 2010 ABCA 64, McCann v. Hyndman, 2004 ABCA 191, Housen v. Nikolaisen, 2002 SCC 33, Hajgato v. London Health Association (1982), 36 O.R. (2d) 669 (S.C.), Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, Rowlands v. Wright, 2009 ONCA 492, Gent and Gent v. Wilson, [1956] O.R. 257 (C.A.), Ellen I. Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Carswell, 2017)

facts:

In November 2007, the appellant slipped and fell on some ice, injuring her ankle. She first consulted her family doctor, the respondent, about the injury on December 13, 2007. At issue in this case was the respondent’s care of the appellant between January and October 2008, and in particular, in January, when the respondent ordered X-rays and an ultrasound, and between July and October, when the appellant was seen on three occasions. In December 2008, the respondent referred the appellant, at her request, to an orthopaedic surgeon. The appellant was diagnosed with a rare condition, Charcot foot. In 2009, the appellant was forced to have a portion of her leg amputated.

The trial judge found in favour of the appellant on the issue of causation: but for the negligence of the respondent, if such had been found, the appellant’s leg more probably than not would have been saved had a referral to an appropriate consultant been made on or before October 24, 2008. The trial judge found that if X-rays had been taken at the end of July 2008, they would clearly have shown a marked neuropathic fracture and significant radiological deformity, compelling a referral to an orthopaedic specialist. The trial judge also concluded that there was no contributory negligence. In the end, however, the trial judge dismissed the action because he was not persuaded that the respondent had breached the standard of care of a family doctor.

issues:

(1) Did the trial judge err in his assessment of the expert evidence, by (a) misapprehending the evidence of the appellant’s standard of care expert; and (b) ignoring an important concession by the respondent’s expert.

(2) Did the trial judge err in failing to find a breach of the standard of care, even in the absence of expert evidence, based on his ordinary knowledge and common sense?

(3) Did the trial judge err in failing to find a breach of the standard of care in the respondent’s alleged failure to diagnose the appellant’s ongoing foot pain and swelling?

holding:

Appeal dismissed.

reasoning:

(1) No.

(a) The trial judge did not overlook aspects of the evidence of the appellant’s expert. The Court supported the trial judge’s finding that the appellant’s expert did not provide any “detailed or cogent evidence or relation for what the respondent did or failed to do” during the relevant time period. Further, that the appellant’s expert did not say that it fell below acceptable standards not to contemporaneously repeat or alter foot imaging by at least mid-September.

(b) The respondent’s expert did not concede that there was a breach of the standard of care. The alleged “concession” had to be considered in the context of the parties’ submissions and the trial judge’s conclusion regarding the meaning of the word “reasonable”. Moreover, the alleged concession had to be considered in the context of the totality of the expert’s trial evidence. With that being said, the other evidence unequivocally contradicted the inference of a concession that there was a breach of the standard of care.

(2) No.

This argument was no raised at trial. Generally, the Court will not entertain entirely new issues on appeal.
There was no scope for the application of the principle recognized in ter Neuzen. The trial judge and counsel recognized that expert evidence was essential in determining whether the respondent breached the standard of care of a reasonable family physician in her care and treatment of the appellant during the relevant period.

(3) No.

Although this case was in general terms about the delay in diagnosing the appellants condition, it was agreed that the standard of care for a family doctor would not have required the respondent to have diagnosed or even suspected this condition. The standard of care issue, in the context of the case, including the trial judge’s causation findings, was what steps ought to have been taken as part of the standard of care of a reasonable family physician, that would have assisted in a timely diagnosis. While the alleged failure to diagnose was not itself a breach of the standard of care, it was relevant to the failure to refer and to repeat imaging. The argument at trial was that the referral to an orthopaedic specialist and repeat imaging were steps that should have been taken in circumstances where, in the summer and fall of 2008, there was no diagnosis for the appellant. In other words, in the context of this case the failure to diagnose in itself could not have been a breach of the standard of care, in view of the concession that the respondent could not reasonably have diagnosed Charcot foot, and the causation findings.


Blacklock v. Tkacz, 2021 ONCA 630

[Juriansz, Lauwers, Sossin JJ.A.]

Counsel:

M.L. Riddell, for the appellant
W.R. Clayton, for the respondent

Keywords: Family Law, Motion, Estate, Deceased, Retroactive Child Support, Decree Nisi, Costs, Divorce Act, Family Law Act, Family Law Rules, O. Reg. 114/99, Katz v. Katz, 2014 ONCA 606

facts:

The appellant brought a motion against the trustee of the estate of her deceased husband for retroactive child support payments. The deceased had died on March 14, 2019, and the motion was filed on October 4, 2019.

The motion judge dismissed the motion. The motion judge held that under section 17 of the Divorce Act, an application cannot be brought to claim or vary a support order against a deceased’s estate if the original order is silent on whether that order binds the estate.

The appellant appealed the dismissal of the motion.

issues:

(1) Did the motion judge err in dismissing the motion because the application was related strictly to the payor’s lifetime on a retroactive basis?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court held that the motion judge correctly decided that an application under s. 17(1) of the Divorce Act to change child support cannot be brought after the death of the payor. The appellant sought an application to vary the original support order. As there was no order binding the estate, there was no subsisting order that could be varied to bind the estate.


Meloche v. Meloche, 2021 ONCA 640

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

Counsel:

A. Franks and M. Zalev, for the appellant
M. Aroca and A. Harmon, for the respondent

Keywords: Family Law, Motion, Question of Law, Divorce, Equalization, Net Family Property, Pension, Estate, Standard of Review, Correctness, Statutory Interpretation, Costs, Family Law Rules, O. Reg. 114/99, Pension Benefits Act, R.S.O. 1990, c. P.8, Family Law Act, R.S.O. 1990, Family Law Matters, O. Reg. 287/11, Divorce Act, Colucci v. Colucci, 2021 SCC 24, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Harvey v. Talon International Inc., 2017 ONCA 267, 137 O.R. (3d) 184, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R. 336, 148 D.L.R. (4th) 1, State Farm Mutual Automobile Insurance Company v. Old Republic Insurance Company of Canada, S.H. v. D.H., 2019 ONCA 454, 146 O.R. (3d) 625, Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, Kendra D.M.G. Coats et al., Ontario Family Law Practice 2020, Volume 2 (Toronto: LexisNexis Canada, 2019)

facts:

The parties were married. The appellant applied to the court for a divorce and equalization of the net family property. The appellant wanted to divide the respondent’s pension payments and wanted his share of the pension payments to continue to his estate following his death. The appellant had been diagnosed with ALS and his death appeared imminent.

The appellant brought a motion to decide a question of law under Rule 16(12)(a) of the Family Law Rules. The appellant brought forward the following question: Where a retired member spouse’s pension payments are divided at source for family law purposes, can the parties agree (or can a court order or can an arbitrator award) that payment sharing continue to the non-member spouse’s estate for the balance of the retired member spouse’s life?

The motion judge answered this question in the negative. The motion judge concluded that the Pension Benefits Act specifically precluded a deceased non-member spouse’s share of a retired member’s pension payments from continuing to the non-member’s estate after the non-member’s death.
The appellant died two days after the motion judge’s ruling. The sole Estate Trustee of the appellant’s estate pursued this appeal.

issues:

(1) Did the motion judge err by concluding that the pension payments could not continue to be shared after the appellant’s death?

(2) In the alternative, did the motion judge err by ordering retroactive sharing of the monthly pension amounts?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The Court held that where a retired member spouse’s pension payments are divided at source for family law purposes, payment sharing can continue to the non-member spouse’s estate for the balance of the retired member spouse’s life.

After undergoing an extensive analysis of the relevant statutory provisions, the Court concluded that there was nothing in the “Family Law Matters” sections of the Pension Benefits Act (ss. 67.1 to 67.9) or the Family Law Act that precluded the parties from agreeing to, a court from ordering, or an arbitrator from awarding a continuation of shared pension payments to the deceased non-member’s estate for the balance of the member spouse’s life. When these provisions are read together as a cohesive unit, they leave open the possibility of proceeding in this exact way.

(2)

In light of the answer to the first issue, the Court declined to address the second issue.


Johnson v Ontario, 2021 ONCA 650

[Lauwers, Coroza and Sossin JJ.A.]

Counsel:

R.V. Bambers and L. Brost, for the moving party

M.R. Sharp, N.S. Barkhordari and N.S. Gosai, for the responding party D.P.

K. Egan and M. Peerless, for the responding parties G.J., M.S. and T.H.

Keywords: Torts, Negligence, Breach of Charter Rights, Crown Liability, Civil Procedure, Class Proceedings, Opting Out, Extension of Time, Appeals, Jurisdiction, Final or Interlocutory, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 9, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1), Canadian Charter of Rights and Freedoms, s. 24(1), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97, Skunk v. Ketash, 2016 ONCA 841, Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065 (S.C.), 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2012 ONSC 4317, rev’d on other grounds 2013 ONCA 279, Currie v. McDonald’s Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321 (C.A.), Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, Webb v. K-Mart Canada Ltd. (1999), 45 O.R. (3d) 389, Workmen Optometry v. Aviva Insurance, 2021 ONSC 3843, Dumoulin v. Ontario (Ontario Realty Corp.), [2004] O.J. No. 2778, M.J. Jones Inc. v. Kingsway General Insurance Co. (2003), 233 D.L.R. (4th) 285 (Ont. C.A.), Smith Estate v. National Money Mart Company, 2008 ONCA 746, leave to appeal refused, [2008] S.C.C.A. No. 535, Fontaine v. Canada (Attorney General), 2018 ONCA 832, Locking v. Armtec Infrastructure Inc., 2012 ONCA 774, Hendrickson v. Kallio, [1932] 4 D.L.R. 580 (Ont. C.A.), Sun Life Assurance Co. of Canada v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 2d ed. (Markham: Lexis-Nexis Canada Inc., 2014), Kennedy, Gerard, Civil Appeals in Ontario: How the Interlocutory/Final Distinction Became So Complicated and the Case for a Simple Solution?, (2020) 45:2 Queen’s L.J. 243

facts:

D.P., an inmate in the Elgin Middlesex Detention Centre in 2016, sued Ontario claiming damages for negligence and under s. 24(1) of the Canadian Charter of Rights and Freedoms for breaches of ss. 7 and 12 after sustaining a permanent disabling injury resulting from Ontario’s delay in seeking medical treatment for D.P.

When he started his lawsuit, D.P. was not aware of the existence of two class actions that had been certified and consolidated on behalf of persons incarcerated at the Elgin Middlesex Detention Centre. A long-form notice about the class action was sent to D.P., but not at Joyceville Institution, the federal prison D.P. had been transferred to in 2017. D.P. deposed that he learned of the class proceeding only when he received a letter from counsel from Ontario dated June 2020 asking D.P.’s counsel to discontinue the action or to limit the claim in view of this class action. D.P. responded by seeking an extension of time within which he could opt out of the class action. The motion judge, however, refused to extend the period of time within which D.P. could opt out of the class proceeding under s. 9 of the Class Proceedings Act, and in doing so, effectively terminated D.P.’s individual action.

The appellant appealed to the Court. Ontario moved to quash the appeal on the basis that the motion judge’s order was interlocutory and therefore appealable only to the Divisional Court under s. 19(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

issues:

(1) Was the motion judge’s decision to refuse to extend the time within which a class member can opt out of a class proceeding final or interlocutory?

holding:

Motion dismissed.

reasoning:

(1) Final.

An interlocutory order is one which does not determine the real matter in dispute between the parties—the very subject matter of the litigation—or any substantive right to relief of a plaintiff or substantive right of a defendant. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided.

In general terms, the policy underlying the distinction between interlocutory and final orders is the proportionality principle. For judicial decisions that are of comparatively less importance to the parties and the public than other decisions (particularly those other decisions that are determinative of the outcome of the litigation), there should be no appeal at all, or the right of appeal should be curbed by a leave requirement.

Ontario argued that the Class Proceedings Act is “entirely a procedural statute” and submitted that any right under it, such as the right to opt out, should also be seen as nothing more than procedural, certainly not substantive.

However, the Court commented that one can speak of the right to opt out as itself a substantive right. The right of a party to opt out is fundamental to the court’s jurisdiction over unnamed class members. It is also fundamental to preserve the legal rights of those who wish to exercise those rights other than through the class action. Our society places a high premium on a person’s ability to initiate and participate in litigation as an incident of personal autonomy. Along with it goes the right to appoint counsel of one’s choice, the right to participate meaningfully in the development of litigation strategy, to participate in settlement negotiations, and to settle the action. The legislative right to opt out of a class proceeding recognizes these significant rights.

In general terms, a decision that determines the forum in which the merits of the dispute are to be heard is considered to be a final decision.

The Court held that it was reasonable in this case to treat the order under appeal as a final order for the purposes of determining appeal rights since the appellant lost substantive rights of significant importance when his motion for an extension of time within which to opt out of the class action was denied.

Relevant to the Court’s reasoning was that Ontario could have brought a motion to the Superior Court in the appellant’s individual action seeking a stay of that action. In that case, that stay, if obtained, would no doubt have been a final order.

Although courts often distinguish between substantive and procedural rights in litigation terms, they are in fact symbiotic. It is not always possible or wise to distinguish one from the other. In the overall context, the appellant lost substantive rights of significant importance when his motion for an extension of time within which to opt out of the class action was denied. In the Court’s view, it was reasonable to treat the order under appeal as a final order for the purposes of determining appeal rights.

Because the removal of the appellant’s substantive rights rendered the motion judge’s decision final, it was not necessary to resolve the question of whether foreclosing the opt-out option constituted a change of forum (which would have also made the order final).


Skinner v. Skinner, 2021 ONCA 658

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

Counsel:

E.M. Carroll, for the appellant
E. Sadvari and R. Gill, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Arrears, Imputing Income, Section 7 Extraordinary Expenses, Child of Marriage, Spousal Support Advisory Guidelines, Willick v. Willick, [1994] 3 S.C.R. 670, Lavie v. Lavie, 2018 ONCA 10, 8 R.F.L. (8th) 14, Rosenberg v. Rosenberg (2003), 42 R.F.L. (5th) 440 (Ont. S.C.), Hickey v. Hickey, [1999] 2 S.C.R. 518

facts:

The appellant and respondent both sought to change the support order between them due to a material change in circumstances. The respondent also argued that the appellant was no longer entitled to spousal and child support. The motion judge found that there had been a material change in the respondent’s circumstances and reduced the arrears owing. The motion judge also found that the appellant’s entitlement to spousal support ended as of June 30, 2019, and her entitlement to child support ended as of December 31, 2017 and December 31, 2019, for the first and second child of the marriage, respectively.

issues:

(1) Did the motion judge err in finding that there had been a material change in circumstances warranting a reduction in the respondent’s support obligations?
(2) Did the motion judge err in finding that the respondent was excused from his unintentional underemployment for the years of 2011-2016?
(3) Did the motion judge err in reducing arrears back to 2011?
(4) Did the motion judge err in failing to address the children’s Section 7 extraordinary expenses accumulated after March 31, 2011?
(5) Did the motion judge err in finding that one child was not a “child of the marriage” in 2018 and 2019 and that the other child did not qualify for child support effective December 31, 2019?

holding:

Appeal dismissed.

reasoning:

(1), (2), (3), (5) No.

In regard to issues 1, 2, 3, and 5, the Court found that the motion judge cited the applicable authorities and correctly distilled the governing tests. The motion judge applied the test for a material change in circumstances as set out in Willick v. Willick, the test for imputing income as stated in Lavie v. Lavie, and the criteria for assessing whether a child constitutes a child of the marriage as described in Rosenberg v. Rosenberg. The Court further found that the motion judge’s conclusions were reasonable and based on the evidence before her.

(4) No.

The Court found that while the motion judge did not directly address retroactive Section 7 expenses, the motion judge did not err. The appellant would have had to establish that the expenses were necessary, in the children’s best interest, and reasonable in relation to the means of the spouses and children and the family’s spending patterns before separation.


Lalonde v. Agha, 2021 ONCA 651

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

R.J.M. Ballance, for the appellant

M. DiCarlo, for the respondent

Keywords: Family Law, Marriage, Validation, Definitition of Spouse, Equalization of Net Family Property, Marriage Act, R.S.O. 1990, c. M.3, s. 4 and 31, Family Law Act, R.S.O. 1990, c. F.3, s. 1(1), Tennessee Code Annotated, The Marriage Act, 1896, S.O. 1896, c. 39, s. 29, Alspector v. Alspector (1957), 9 D.L.R. (2d) (Ont. C.A.), Debora v. Debora (1999), 167 D.L.R. (4th) 759 (Ont. C.A.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Berthiaume v. Dastous, [1930] 1 D.L.R. 849 (P.C.), Brook v. Brook (1861), 11 E.R. 703 (H.L.), Porteous v. Dorn et al., [1975] 2 S.C.R. 37, Powell v. Cockburn, [1977] 2 S.C.R. 218, Peppiatt v. Peppiatt (1916), 30 D.L.R. 1 (Ont. C.A.), Kerr v. Kerr and Ontario (Attorney General), [1934] S.C.R. 72, Clause v. Clause (1956), 5 D.L.R. (2d) 286, Breakey v. Breakey (1846), 2 U.C.Q.B. 349, Smith v. Waghorn, 2012 ONSC 496, Dutch v. Dutch (1977), 1 R.F.L. (2d) 177 (Ont. Co. Ct.), Harris v. Godkewitsch (1983), 41 O.R. (2d) 779 (Ont. Prov. Ct.), Kanafani v. Abdalla, 2010 ONSC 3651, Chhokar v. Bains, 2012 ONSC 6602, Aden v. Mohamud, 2019 ONSC 6493, Moza and Thusu (Re), 2021 ONSC 1552, Friedman v. Smookler, [1964] 1 O.R. 577, Ayoub v. Osman, 2006 CanLII 9309 (Ont. S.C.), Isse v. Said, 2012 ONSC 1829, Jama v. Basdeo, 2020 ONSC 2922, Walker, Janet, Castel & Walker: Canadian Conflict of Laws, loose-leaf (ReI. 82-9/2020), 6th ed. (Markham, Ont.: LexisNexis Butterworths, 2005) vol. 2, Payne, Julien D. and Marilyn A., Canadian Family Law, 8th ed. (Toronto: Irwin Law, 2020) H.R. Hahlo, Nullity of Marriage in Canada: With A Sideways Glance At Concubinage And Its Legal Consequences, (Toronto: Butterworth & Co. (Canada), 1979), Riddell, William Renwick, The Law of Marriage in Upper Canada, (1921) 2 Can Historical Rev 226

facts:

On August 7, 1998, the parties participated in a religious marriage ceremony at a mosque in Memphis, Tennessee. Following the marriage ceremony, the parties received a marriage certificate with the seal of the mosque’s Imam, though no marriage licence was issued by any government entity. The parties lived openly as husband and wife for many years in Ontario until their separation in 2016.

The appellant appeals from the trial judge’s final order that the parties’ August 7, 1998 marriage in Memphis, Tennessee was deemed to be a valid marriage pursuant to s. 31 of the Marriage Act, and therefore, that the parties were “spouses” under the Family Law Act for the purposes, among others, of equalization of net family property.

issues:

(1) Can s. 31 of the Marriage Act apply to validate a marriage solemnized outside of Ontario?

(2) If s. 31 applies to marriages solemnized outside of Ontario, can a court consider the subjective intention of the parties to comply with the Marriage Act?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The Court found no error in the trial judge’s conclusion that s. 31 of the Marriage Act applied to validate the parties’ formally invalid marriage notwithstanding that it was solemnized in Tennessee. The Court further noted that the appellant’s position that s. 31 can only apply to marriages solemnized in Ontario represents an overly narrow and technical interpretation of s. 31.

(2) Yes.

The Court disagreed with the appellant’s position that the parties’ subjective intentions to comply with the law of Ontario was irrelevant. Neither the English nor the French language version of s. 31 precluded the assessment of the parties’ subjective intentions to comply, nor have they been excluded from judicial consideration.

The Court further stated that the parties believed that the marriage ceremony created a binding marriage in conformity with the laws of Tennessee and Ontario, and their subsequent conduct showed they acted on that belief, which indicated an intention to enter into a valid, legally recognized marriage. There was no evidence in the present case that either party intended not to be legally married or was deliberately not complying with the law of Ontario. Both parties had the capacity to enter into the marriage and consented to do so. Most importantly, neither of them knew that a marriage license was required to create a formally valid marriage.


SHORT CIVIL DECISIONS

Public Guardian and Trustee v. Zammit, 2021 ONCA 648

[Tulloch, van Rensburg and Nordheimer JJ.A]

Counsel:

P. Z., acting in person
M. Tubie, for the moving party
M. Z. P. Geddie, for the responding party

Keywords: Wills and Estates, Powers of Attorney, Public Guardian and Trustee, Substitute Decisions Act, 1992, S.O. 1992, c.30, s.32(1) and s.38(1), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448 (C.A.)

31 Kingsbury Inc. v. Delta Elevator Company Ltd.>, 2021 ONCA 656

[Simmons, Pepall and Trotter, JJ.A]

Counsel:

J. Wortzman, for the appellant
C.Gastle and H Gastle, for the respondent

Keywords: Civil Procedure, Appeals, Abandonment, Costs

Maynard v. Mississippi Mills (Municipality), 2021 ONCA 639

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

Counsel:

S. M., acting in person
T. Fleming and L. Scheulderman for the respondent

Keywords: Municipal Law, By-Laws, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Jurisdiction, Ontario Land Tribunal Act, S.O. 2021, Local Land Appeal Tribunal Act, S.O. 2017, Country Pork Ltd. v. Ashfield (Township), 60 O.R. (3d) 529, Grabe v. Ottawa (City), 2019 CanLII 107083, Rules of Civil Procedure, Rule 21.01(1)(b)

College of Massage Therapists of Ontario v. Schoelly, 2021 ONCA 655

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

Counsel:

E. Richler and A. Hountalas, for the appellant
No one appearing for the respondent

Keywords: Civil Procedure, Appeals, Mootness

Markham (City) v. AIG Insurance Company of Canada, 2021 ONCA 649

[Doherty, Brown and Thorburn JJ.A.]

Counsel:

D. G. Boghosian and S. S. Taylor, for the Corporation of the City of Markham and Lloyd’s Underwriters
M. B. Snowden and S. A. Kamayah, for AIG Insurance Company of Canada

Keywords: Civil Procedure, Appeals, Costs

Jonas v. Akwiwu, 2021 ONCA 641

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

Counsel:

K. A., acting in person
E. Adams-Idode, for the respondent

Keywords: Child Support, Retroactive Variation, Effective Date of Variation, Material Change in Circumstances, Delay in Application, Fresh Evidence on Appeal, Palmer Test, R. v. Palmer, [1980] 1 S.C.R. 759.

Hanna & Hamilton Construction Co. Ltd. v. Robertson, 2021 ONCA 660

[Watt, Benotto and Trotter JJ.A.]

Counsel:

Not listed.

Keywords: Bankruptcy and Insolvency, Debt Surviving Bankruptcy, Civil Procedure, Procedural and Natural Justice, Reasons, Appeals, Lack of Reasons, Appeal Allowed, R. v. Sheppard, [2002] 1 SCR 869

Diamond v. Berman, 2021 ONCA 653

[Rouleau, Hoy and Thorburn JJ.A.]

Counsel:

D. Sherr, for the appellant
M. Greenstein, A. Krol & K. Hunter, for the respondent

Keywords: Family law, Spousal Support, Variation, Spousal Support Advisory Guidelines


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.