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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of September 27, 2021.

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In Li v. Li, the court reviewed a motion judge’s conclusion that Ontario had jurisdiction to hear the parties’ family law dispute. In allowing the appeal, the court found that while Ontario did have jurisdiction, Yunnan Province, China was the clearly more appropriate forum, and that the motion judge erred in their analysis of forum non conveniens. The Ontario application was therefore stayed.

Other topics covered included standing to oppose the validity of a will, custody and access, renewal of a commercial lease, injunctions in the condominium context, intrusion upon seclusion and wrongful dismissal, mortgage enforcement and bank negligence, and oppression in the condominium context.

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.

I had the privileged and honour to co-author two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

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

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Li v. Li, 2021 ONCA 669

Keywords: Family law, Property, Equalization of Net Family Property, Domestic Contracts, Setting Aside, Civil Procedure, Conflict of Laws, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Family Law Act, R.S.O. 1990, c. F.3, s. 15, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Wang v. Lin, 2013 ONCA 33, Knowles v. Lindstrom, 2014 ONCA 116, Krebs v. Cote, 2021 ONCA 467, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Hurst v. Société Nationale de L’Amiante, 2008 ONCA 573, McNamee v. McNamee, 2011 ONCA 533, Martin v. Sansome, 2014 ONCA 14

Wakeling v. Desjardins General Insurance, 2021 ONCA 672

Keywords: Torts, Intrusion Upon Seclusion, Breach of Privacy, Breach of Confidence, Contracts, Duty of Good Faith, Remedies, Punitive Damages, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Standard of Review, Correctness, Employment law, Wrongful Dismissal, Human Rights law, Discrimination, Human Rights Code, R.S.O. 1990, c. H. 19, ss 1, 46.1(2), Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Jones v. Tsige, 2012 ONCA 32, Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co., (2002), 61 O.R. (3d) 481 (Ont. C.A.), Davy Estate v. CIBC World Markets Inc., 2009 ONCA 763, McCreight v. Canada (Attorney General), 2013 ONCA 483, Mortazavi v. University of Toronto, 2013 ONCA 655, Jaffer v. York University, 2010 ONCA 654, Knight v. Surrey Place Centre, 2017 HRTO 281, 02535 Ontario Inc. v. Non-Marine Underwriters Lloyd’s London England (2000), 184 D.L.R. (4th) 687 (Ont. C.A.), Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, Brandiferri v. Wawanesa Mutual Insurance, et al., 2012 ONSC 2206, Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, Barata v. Intact Insurance Company, 2021 ABQB 419, Dervisholli et al. and Cervenak and State Farm, 2015 ONSC 2286

Perodeau v. TD Canada Trust, 2021 ONCA 670

Keywords: Contracts, Real Property, Mortgages, Enforcement, Insurance, Termination, Torts, Negligence, Breach of Fiduciary Duty, Civil Procedure, Summary Judgment, Res Judicata, Parties Under Disability, Rules of Civil Procedure, Rules 1.03(1), and 7.01, Christie v. British Columbia (Attorney General), 2007 SCC 21, Costantino v. Costantino, 2016 ONSC 7279, Sosnowski v. Johnson, [2006] O.J. No. 3731 (Ont. C.A.)

Khairzad v. Erroussa, 2021 ONCA 667

Keywords: Family Law, Custody and Access, Decision-Making, Parenting Time, Child Support, Imputed Income, Variation, Material Change in Circumstances, Fresh Evidence, Civil Procedure, Disclosure, Costs, Child Support Guidelines, Hickey v. Hickey, [1999] 2 S.C.R. 518, Van de Perre v. Edwards, 2001 SCC 60, R.F. v. J.W., 2021 ONCA 528, Palmer v. The Queen, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300

Ottawa-Carleton Standard Condominium Corporation No.671 v. Friend, 2021 ONCA 666

Keywords: Real Property, Condominiums, Equitable Remedies, Permanent Injunctions, Civil Procedure, Applications, Condominium Act, 1998, S.O. 1998, c.19, ss. 117, 134, Rules of Civil Procedure, Rule 14.05(2)

LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046, 2021 ONCA 677

Keywords: Real Property, Condominiums, Oppression, Duty of Good Faith, Contracts, Duty of Good Faith Negotiations, Condominium Act, 1998, S.O. 1998, c. 19, s 135, 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, Welton v. United Lands Corporation Limited, 2020 ONCA 322, Manastersky v. Royal Bank of Canada, 2019 ONCA 609, R. v. R.E.M., 2008 SCC 51

Moses v. Moses, 2021 ONCA 662

Keywords: Wills and Estates, Invalidity, Undue Influence, Estates Act, R.S.O. 1990, c. E.21, s. 23, Rules of Civil Procedure, Rule 75.06(1), Adams Estate v. Wilson, 2020 SKCA 38

Narwhal International Limited v. Teda International Realty Inc., 2021 ONCA 659

Keywords: Contracts, Real Property, Commercial Leases, Duty of Good Faith, Civil Procedure, Evidence, Credibility, Godson v. P. Burns & Co. (1919), 46 D.L.R. 97 (S.C.C.), Molson Canada 2005 v. Miller Brewing Company, 2013 ONSC 2758, R. v. Palmer, [1980] 1 S.C.R. 759. Longo v. MacLaren Art Centre, 2014 ONCA 526, 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843

Short Civil Decisions

Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2021 ONCA 646

Keywords: Civil Procedure, Costs


CIVIL DECISIONS

Li v. Li, 2021 ONCA 669

[Feldman, Paciocco and Coroza JJ.A.]

Counsel:

H. (Pandora) Du, for the appellant
M. J. Stangarone and S. P. Kirby, for the respondent

Keywords: Family law, Property, Equalization of Net Family Property, Domestic Contracts, Setting Aside, Civil Procedure, Conflict of Laws, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Family Law Act, R.S.O. 1990, c. F.3, s. 15, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Wang v. Lin, 2013 ONCA 33, Knowles v. Lindstrom, 2014 ONCA 116, Krebs v. Cote, 2021 ONCA 467, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Hurst v. Société Nationale de L’Amiante, 2008 ONCA 573, McNamee v. McNamee, 2011 ONCA 533, Martin v. Sansome, 2014 ONCA 14

facts:

The appellant appeals from the dismissal of a motion in which they sought an order dismissing, on jurisdictional grounds, the respondent’s application for relief arising from the breakdown of their marriage.

On the motion, the appellant argued that Ontario lacked jurisdiction to hear the application and that, in the alternative, the city of Kunming, in the province of Yunnan, People’s Republic of China was the more appropriate forum for the dispute. The motion judge rejected both arguments and concluded Ontario had jurisdiction.

issues:

(1) Is there a real and substantial connection between the parties, the matrimonial claims being litigated, and Ontario?

(2) Is Yunnan Province, China the more appropriate forum to determine the claims raised in the respondent’s Application?

(3) Should the Court strike out all or part of the respondent’s Application, leaving only the trust claims concerning the Bevdale Property to proceed in Ontario?

holding:

Appeal allowed.

reasoning:

(1) Yes.

Absent palpable and overriding error or an extricable error of law warranting correctness review, deference ought to be afforded to the motion judge. In the Court’s view, the appellant did not identify any extricable errors of law or palpable and overriding error in the motion judge’s analysis on the question of whether Ontario had jurisdiction.

The motion judge correctly relied on evidence presented by the respondent indicating he was a Canadian citizen and lived at the Canadian address listed on his passport and driver’s license to establish the respondent resided primarily in Canada. The “real home” or “ordinary residence” of a party should be a presumptive connecting factor, and therefore, the respondent’s ordinary place of residence was a significant factor to consider.

The respondent also had property in Ontario, another presumptive connecting factor. A single presumptive connecting factor, absent any rebuttal, is sufficient to establish jurisdiction under the Van Breda analysis. Therefore, the Court deferred to the motion judge’s conclusion that there was a sufficient connection to Ontario.

(2) Yes.

The motion judge erred in principle in her analysis on the issue of forum non conveniens.

First, the motion judge ignored a very important factor – the existence of three signed agreements waiving the respondent’s entitlement to the assets and properties in China. The Divorce Agreement, dated March 26, 2018 (translated), says, “the [appellant and respondent] acknowledged that issues pertaining to assets, financial claims and debts have been resolved on their own through negotiations.”

Due to these agreements, to proceed with claims for equalization or an interest in the properties covered by the agreements, the respondent would first have to seek to set those agreements aside. Accordingly, the preliminary question of whether the agreements could be set aside was, in the Court’s view, central to assessing the more appropriate forum. Given that the agreements were executed and witnessed in China, in the Chinese language, China was the most appropriate forum for the dispute.

Second, the motion judge’s reasons stated that the natural forum for the claim to the Bevdale Property was in Ontario. However, the Court stated the motion judge’s focus on the Bevdale Property overwhelmed her analysis of forum non conveniens. The Court held that the far more valuable property interests were in China and were governed by contracts in China. The Bevdale Property should therefore not have been the focal point of the analysis, and Ontario was not the natural forum for the division of property claim viewed as a whole.

Third, the motion judge held that the respondent was not claiming any property interest in properties or corporations located in China, only in the monetary payment that would occur after the equalization calculation based on properties or corporations in China. However, this factor assumed that an equalization payment would be the only remedy under Chinese law. There was no evidence that equalization rather than distribution of properties would be the remedy in China and the motion judge engaged in speculation that this would be the case.

Finally, the motion judge erred in her analysis of the respondent’s loss of a legitimate juridical advantage. Both parties tendered conflicting expert reports about limitation periods in China, and the motion judge sided with the respondent. Although there was some evidence supporting the respondent’s position, the Court concluded that the motion judge did not resolve an inconsistency between the facts of the case and the facts relied upon by the respondent’s expert opinion. The opinion regarding the one-year time limit concerned parties who “change their mind” over property division. However, the respondent’s evidence was that he was misled in terms of the Divorce Agreement and was not aware of the existence of a Supplementary Agreement. The court held that, on that evidence, it was less clear that the respondent was, in fact, out of time in China.

In sum, the court concluded that the motion judge erred in principle in her forum non conveniens analysis, and that the balance tipped heavily in favour of China as the “clearly more appropriate” forum.

(3) Not considered.

Given that China was the more appropriate forum, this issue was moot.


Wakeling v. Desjardins General Insurance, 2021 ONCA 672

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

Counsel:

A. Ismail, for the appellants
G. P. Kerr and W. L. Main, for the respondents

Keywords: Torts, Intrusion Upon Seclusion, Breach of Privacy, Breach of Confidence, Contracts, Duty of Good Faith, Remedies, Punitive Damages, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Standard of Review, Correctness, Employment law, Wrongful Dismissal, Human Rights law, Discrimination, Human Rights Code, R.S.O. 1990, c. H. 19, ss 1, 46.1(2), Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Jones v. Tsige, 2012 ONCA 32, Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 61 O.R. (3d) 481 (Ont. C.A.), Davy Estate v. CIBC World Markets Inc., 2009 ONCA 763, McCreight v. Canada (Attorney General), 2013 ONCA 483, Mortazavi v. University of Toronto, 2013 ONCA 655, Jaffer v. York University, 2010 ONCA 654, Knight v. Surrey Place Centre, 2017 HRTO 281, 02535 Ontario Inc. v. Non-Marine Underwriters Lloyd’s London England, (2000), 184 D.L.R. (4th) 687 (Ont. C.A.), Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, Brandiferri v. Wawanesa Mutual Insurance, et al., 2012 ONSC 2206, Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, Barata v. Intact Insurance Company, 2021 ABQB 419, Dervisholli et al. and Cervenak and State Farm, 2015 ONSC 2286

facts:

B.E was involved in a car accident and her claim for accident benefits was denied by her insurer, Desjardins General Insurance Group Inc. B.E appealed the denied claim to the License Appeal Tribunal (the “LAT”). A case conference was scheduled before the tribunal. B.E brought J.W to the conference to act as a witness, recorded her name on the witness list and provided the list to Desjardins’ counsel, N.C, at the hearing. The list was then given to Desjardin. At the time, J.W was employed at Desjardin, but was subsequently let go from her position following these events.

Both B.E and J.W Desjardins and its counsel, N.C, alleging that their privacy had been invaded when it was revealed to Desjardins management that J.W had participated in the conference. J.W also argued that she had been wrongfully terminated.

The motion judge struck the appellants’ claims for breach of privacy, which included a claim for punitive damages. She dismissed the entire action against N.C and denied the appellants leave to add new claims and defendants to their Statement of Claim. The motion judge did not dismiss J.W’s wrongful termination claim, which included a claim for aggravated and punitive damages.

issues:

(1) Did the motion judge err by striking their claim for breach of privacy (intrusion upon seclusion) without leave to amend?

(2) Did the motion judge err by dismissing their entire action against the respondent N.C without leave to amend?

(3) Did the motion judge err by striking some of their claims for punitive damages?

(4) Did the motion judge err by not permitting them to amend their claim to add new defendants and new causes of action?

holding:

Appeal dismissed.

reasoning:

(1) No.

As per McCreight v. Canada (Attorney General), the standard of review on a Rule 21.01(1)(b) motion to strike is correctness. The motion judge noted that a pleading should be struck if it plainly and obviously discloses no reasonable cause of action, assuming all the facts pleaded to be true. She also set out the test for the tort of intrusion upon seclusion (breach of privacy): (1) intentional conduct by the defendant; (2) an invasion, without lawful justification, of the plaintiff’s private affairs or concerns; and (3) an invasion that would be regarded by a reasonable person as highly offensive causing distress, humiliation, or anguish.

The respondents’ conduct was not intentional, because the respondents never compelled or caused J.W to appear at the conference and never compelled or caused J.E to turn over the witness list. The respondents passively received the information that they were lawfully entitled to receive in the context of the LAT proceeding. Finally, the motion judge found that a reasonable person would never consider the alleged intrusion to be highly offensive. The decision to disseminate the witness list to Desjardins management could not be considered an intrusion, because breach of privacy is not concerned with the dissemination of information.

A motion judge’s decision not to grant leave to amend a pleading is discretionary, and an appellate court should not interfere with it unless the motion judge erred in principle or acted unreasonably.

(2) No.

The statement of claim pleaded in diverse respects variations on a theme that Desjardins’ counsel owed a duty to the appellants, and in some cases was premised on a duty said to exist after the case conference and after the report to Desjardins. For example, the appellants pleaded that counsel breached her obligations to the administration of justice when she failed to counsel her client on the impropriety of terminating J.W’s employment and failed to recognize she had a conflict of interest when she later learned that her employer had acted on the information provided.

As the motion judge correctly noted, N.C’s duty was to her employer, Desjardins, for whom she was acting as counsel. She did not owe a duty of care to the appellants.
Again, a motion judge’s decision not to grant leave to amend a pleading is discretionary, and an appellate court should not interfere with it unless the motion judge erred in principle or acted unreasonably

(3) No.

The claim for punitive damages is not a free-standing cause of action. In other words, it must be tied to an independent actionable wrong. Therefore, if the statement of claim does not disclose a reasonable cause of action for intrusion upon seclusion, then the claim for punitive damages for that wrong must also fail. Further, an attempt at characterizing the wrong supporting the claim for punitive damages as a breach of the contractual duty of good faith will be unsuccessful because the receipt of the information provided could not amount to a contractual duty of good faith.

(4) No.

The statement of claim alleged that four named individuals had access to and/or misused the plaintiff’s personal information to harass and eventually improperly terminate J.W. However, access to information at the case conference cannot amount to an intrusion upon seclusion for the reasons mentioned above. Further, there were no other particular facts alleged which could form the basis of an action against the four proposed new defendants.

The appellants also sought to add claims for breach of confidence. There could be no expectation of confidentiality here attaching to communication of a witness list, or to information as to the identity of a person attending the proceedings.

Section 46.1(2) of the Human Rights Code provides that a claim for breach of the Code may be advanced in a court proceeding when ancillary to another valid claim. The latter had not been established. Further, the appellant has not articulated in her statement of claim how the respondents’ conduct could be discriminatory under section 1 of the Code.


Perodeau v. TD Canada Trust, 2021 ONCA 670

[Paciocco, Nordheimer and Coroza JJ.A.]

Counsel:

Dominic Perodeau, acting in person
J. Kulka, for the respondent TD Canada Trust
A. Odinocki, for the respondent TD Insurance

Keywords: Contracts, Real Property, Mortgages, Enforcement, Insurance, Termination, Torts, Negligence, Breach of Fiduciary Duty, Civil Procedure, Summary Judgment, Res Judicata, Parties Under Disability, Rules of Civil Procedure, Rules 1.03(1), and 7.01, Christie v. British Columbia (Attorney General), 2007 SCC 21, Costantino v. Costantino, 2016 ONSC 7279, Sosnowski v. Johnson, [2006] O.J. No. 3731 (Ont. C.A.)

facts:

The respondent, TD Bank held a charge (“mortgage”) over the appellants’ property. Terms of the mortgage required the appellants to insure the property. Failure to meet this requirement would allow TD Bank to secure insurance and add the costs to the mortgage payments. The appellants held insurance for roughly a decade, but subsequently defaulted on the premium payments to the respondent Primmum (a TD insurance company), which cancelled the policy. The mortgage was subsequently renewed with TD Bank, despite not having insurance in place.

Two years after their insurance was cancelled for non-payment, the appellants defaulted on their mortgage which led to TD Bank demanding payment of the arrears and commencing an action for payment on the mortgage. At around the same time, the property was severely damaged by a fire. A year and a half later, TD Bank was granted summary judgment enforcing the mortgage debt.

Two months later, the appellants commenced the action that is the subject of this appeal in which they sought damages, a stay of TD Bank’s writ of possession on the property, and an order that they be permitted to make mortgage payments. In that action, the appellants claimed that TD Bank breached its fiduciary duty to them to caution them that they had not insured the property before renewing their mortgage. The appellants also claimed that Primmum breached a fiduciary duty it owed to the bank to ensure that the property was insured before the mortgage was renewed. In granting summary judgment in favour of the respondents, the motion judge held that no fiduciary duties were owed, that the action against TD Bank was res judicata, and that the action was statute barred against both respondents, pursuant to the Limitations Act, 2002, S.O. 2002, c. 24.

issues:

(1) Did the motion judge err by not ensuring that the appellants were represented, given that D.P was a “Self Litigant”, and S.P was a party under disability entitled to a litigation guardian pursuant to Rule 7.01 of the Rules of Civil Procedure.

(2) Did the motion judge err in granting summary judgment when there were shortcomings in the procedure, including the failure of the respondents to serve affidavits or produce documents, the failure of the respondents to produce witnesses for cross-examination, and the failure by the motion judge to initiate an objection to improper submissions made by respondents’ counsel.

(3) Did the motion judge err by failing to address the appellants’ claim of “On Going Tortious Harm”, and the “Civil Interpretation of Res Judicata”.

holding:

Appeal dismissed.

reasoning:

(1) No.

There is a presumption that a plaintiff is capable of conducting litigation, and the appellants did not rebut this presumption. First, a litigant is not entitled to representation simply because they are unrepresented. Second, no evidence was presented establishing that S.P was “mentally incapable” and therefore a party under disability within the meaning of the Rules.

(2) No.

The Court determined that the motion judge did not err for several reasons. The appellants: 1) did not object to the motion judge proceeding to summary judgment; 2) did not establish that the respondents failed to serve affidavits or produce material documents or information; 3) made no request for cross-examination; 4) did not show that counsel for TD Bank made inappropriate submissions.

(3) No.

a) Tortious harm was not pleaded in the action, and further the Court saw no air of reality to such a claim. Therefore, the motion judge was under no obligation to address a tortious harm claim.

b) The action against the respondents that the motion judge dismissed was an unmeritorious attempt by the appellants to delay the mortgage enforcement by relitigating the previous mortgage enforcement decision. The motion judge’s res judicata analysis was legally accurate, clear, and supported.


Khairzad v. Erroussa, 2021 ONCA 667

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

Counsel:

J.A. Brown, for the appellant
J.V. Grant, for the respondent

Keywords: Family Law, Custody and Access, Decision-Making, Parenting Time, Child Support, Imputed Income, Variation, Material Change in Circumstances, Fresh Evidence, Civil Procedure, Disclosure, Costs, Child Support Guidelines, Hickey v. Hickey, [1999] 2 S.C.R. 518, Van de Perre v. Edwards, 2001 SCC 60, R.F. v. J.W., 2021 ONCA 528, Palmer v. The Queen, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300

facts:

The appellant appealed a March 2020 order that (i) dismissed his motion to change a 2017 decision-making responsibility and parenting time order and (ii) increased his monthly child support payments based on an imputed annual income of $40,000. The appellant also brought a motion for leave to adduce fresh evidence on his annual income, employment status and leasing arrangements.

The parties separated prior to the birth of their daughter in 2016.

In August 2017, an order was made granting the respondent primary decision-making responsibility and parenting time. The appellant brought a motion to change the order, which was dismissed in March 2020. The motion judge found that despite the appellant taking on an increased role in his daughter’s life, there had not been a material change in circumstances warranting a change in decision-making responsibility. Further, the motion judge stated that even if there had been a material change, joint decision-making responsibility would be unworkable given the history of abuse and animosity between the parties. In terms of parenting time, the respondent conceded that there had been a material change in circumstances given their daughter’s age and stage of development.

The August 2017 order also required the parties to provide updated annual income disclosure. Neither the appellant nor respondent provided this disclosure. Further, in September 2019, the appellant was ordered to make financial disclosure. Again, the appellant failed to produce the disclosure. Based on the appellant’s failure to comply, the passage of time and the likelihood that the appellant’s income had not remained static, the motion judge found a material change in circumstances. The motion judge imputed income of $40,000 based on the appellant’s work hours, hourly rate, the availability of work, and collateral lifestyle evidence.

issues:

(1) Did the motion judge err by failing to award joint decision-making responsibility and refusing to increase the appellant’s parenting time?

(2) Did the motion judge err in increasing the appellant’s monthly child support based on an imputed annual income of $40,000?

(3) Should the Court grant leave to the appellant to adduce fresh evidence on his annual income, employment status, and leasing arrangement?

holding:

Appeal dismissed. Motion for leave to admit fresh evidence dismissed.

reasoning:

(1) No

The Court cited Hickey v. Hickey and Van de Perre v. Edwards in holding that a court should only intervene in a parenting order or family support decision where there has been a material error or serious misapprehension of the evidence, or an error of law. The Court did not find any such errors. The Court found that the motion judge applied the correct legal principles. Further, the Court found that the motion judge’s findings and conclusions were fully justified on the record before her and anchored in the best interests of the child.

(2) No

The Court found that the motion judge’s inference and conclusions were reasonable.

(3) No

The Court declined to grant leave to the appellant. The appellant had failed to comply with both the 2017 and 2019 disclosure orders. The Court also cited R.F. v. J.W. and stated that the proper place for new evidence about changed circumstances is not in the context of an appeal. Finally, while that the test for admitting fresh evidence in Palmer v. The Queen calls for greater flexibility where an appeal involves the best interests of a child, the Court did not find that the proposed evidence would affect the decision.


Ottawa-Carleton Standard Condominium Corporation No.671 v. Friend, 2021 ONCA 666

[Ward, Benotto, and Trotter JJ.A]

Counsel:

S. Zakhour, for the appellants
C. Wood and D. Lu, for the respondent

Keywords: Real Property, Condominiums, Equitable Remedies, Permanent Injunctions, Civil Procedure, Applications, Condominium Act, 1998, S.O. 1998, c.19, ss. 117, 134, Rules of Civil Procedure, Rule 14.05(2)

facts:

The appellants are condominium owners and F have had a long-standing dispute with the condominium corporation’s Board of Directors and employees. F has refused to follow the condominium’s by-laws and rules, interfered with contractors attempting to carry out work in the building, exhibited rude and demeaning behaviour and harassed members of the Board of Directors and employees of the condominium. Additionally, he physically accosted the President of the Board.

The respondent obtained an interim injunction that restricted F’s ability to communicate with the people he harassed and accosted. He persisted in his behaviour. The respondent condominium corporation brought an application under section 134 of the Condominium Act, and Rule 14.05(2) of the Rules of Civil Procedure seeking a permanent injunction against F. The application judge found F was in violation of s.117 of the Condominium Act, which provides: “No person shall permit a condition to exist or carry on an activity in a unit or in the common elements if the condition or the activity is likely to damage the property or cause injury to an individual.” The application judge held that “injury” includes psychological harm. The application judge ordered that F “cease and desist in conduct that contravenes the Act and/or the Condominiums’ declaration, by-laws and rules”. He restricted F’s ability to communicate with members of the condominium community, including their families.

issues:

(1) Can the appellant’s adduce fresh evidence in the form of F’s affidavit in which he purports to show that he was treated unfairly at the hearing of the application?

(2) Did the trial judge have jurisdiction to order a permanent injunction?

(3) Did the application judge err in failing to apply the proper test for a permanent injunction?

(4) Were the proceedings unfair because an adjournment was denied?

(5) Were the proceedings unfair because the trial judge failed to consider F’s position on contentious matters?

(6) Should the application judge have converted the proceeding to an action because facts were in dispute?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The fresh evidence was admitted for the limited purpose. It was not admissible, and was irrelevant, to the substantive issues decided by the application judge.

(2) Yes.

The application was properly brought under s.134 of the Condominium Act and provided the jurisdictional footing for the order that was made.

(3) No.

While the trial judge did not specifically advert to the test he applied in making the order, the order that he made was authorized by s. 134(3) of the Condominium Act, which permits a judge to “grant such other relief as is fair and equitable in the circumstances.” F’s offensive conduct continued after the interim injunction was in place which amply justified the application judge’s order.

(4) No.

The decision to grant an adjournment is a discretionary one that must be afforded deference on appeal. In this case, the application judge gave thorough reasons for refusing an adjournment, noting that the request was, “but one of a pattern of adjournment requests by F.”

(5) No.

F did not file an affidavit; instead, he relied on a slide presentation and an affidavit filed in a related lien action. As the application judge said, “[m]uch of the materials filed by F do not respond to the issues on this application and instead recite his disputes with the Condominium dating back to 2011 and unrelated matters such as the Condominium’s 2019 Auditor’s Report.”

(6) No.

The material facts were either admitted to by F or simply not addressed. The application judge’s decision was reasonable.


LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046, 2021 ONCA 677

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

Counsel:

Allan Sternberg and Emily Hives, for the appellant
Mark H. Arnold, for the respondent

Keywords: Real Property, Condominiums, Oppression, Duty of Good Faith, Contracts, Duty of Good Faith Negotiations, Condominium Act, 1998, S.O. 1998, c. 19, s 135, 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, Welton v. United Lands Corporation Limited, 2020 ONCA 322, Manastersky v. Royal Bank of Canada, 2019 ONCA 609, R. v. R.E.M., 2008 SCC 51

facts:

In the case under appeal, the application judge dismissed an application for oppression under section 135 of the Condominium Act, 1998, S.O. 1998, c. 19.

The appellant operates a commercial parking facility in a condominium building in downtown Toronto. It owns 131 of 136 parking units and 16 of 94 commercial/residential units in the building. The respondent is a condominium corporation and manages and administers the complex, including the garage. The parties entered into a lease for the parking garage in 2000. Monthly parking lot users had access to the building all hours of the day, every day, while community hourly parking lot users only had access during business hours on weekdays. The lease expired in May 2017, and the appellant proposed a new agreement to expand the hours of parking for community customers from business hours weekdays to 24 hours a day, seven days a week. The parties entered into negotiations.

On June 6, 2018, the appellant commenced an application under s. 135 of the Condominium Act, seeking a declaration that the respondent acted oppressively in interfering with the appellant’s ability to operate the parking facility and in refusing to engage in good faith negotiations for a new parking agreement. On July 31, 2018, the respondent sent the appellant a letter containing preconditions to the appellant’s commercial exploitation of its parking units. The appellant did not respond and in November 2018, unilaterally installed a parking booth in the garage while negotiations were ongoing. In December 2018, the respondent approved an extension to the opening hours of the parking facility, but not to 24/7 access as requested by the appellant, due to security concerns. In February 2019, the respondent expanded its preconditions to include priority for residents’ parking. The application came on for hearing on January 31, 2020.

issues:

(1) Did the application judge apply the wrong legal test for the oppression remedy under the Condominium Act by focusing on whether the respondent’s conduct was reasonable and whether the business judgment rule applied?

(2) Did the application judge err in concluding that the respondent’s conduct did not amount to oppression, unfair prejudice or unfair disregard?

(3) Were the application judge’s reasons insufficient, thus justifying appellate intervention?

holding:

Appeal dismissed.

reasoning:

(1) No.

The application judge clearly understood and applied the correct two-pronged test for oppression: (i) a breach of the appellant’s reasonable expectations, and (ii) conduct that amounted to oppression, unfair prejudice, or unfair disregard of the appellant’s interests. Although it would have been preferable for her to have used the term “reasonable expectations” in her discussion of the parking negotiations, she was responding to the terminology used by the parties and to the arguments as framed by them.

There is no error in her conclusion that there was no evidence of bad faith or oppressive conduct and that the respondent had acted reasonably. She accordingly applied deference to the respondent’s balancing of the interests of the appellant with those of the other unitholders.

(2) No.

The application judge considered the competing interests of the parties, recognized that the negotiations were ongoing, and found that as of the date of the hearing, the appellant had not established oppression under the Act. The evidence supported the application judge’s finding that a final decision had not been taken by the parties. While the application judge failed to make certain factual findings, she was not obliged to address every argument raised.

(3) No.

The application judge gave detailed reasons for decision. She identified the key issues, made the necessary findings of fact, and set out her chain of reasoning. This was no basis on which to interfere.


Moses v. Moses, 2021 ONCA 662

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

Counsel:

G. M. Sidlofsky, for the appellant

C. Francis, for the respondent, Ra. M.

R. Das, for the respondent, Ro. M., personally and in her capacity as the Estate Trustee of the primary and secondary estates of A.R.M.

Keywords: Wills and Estates, Invalidity, Undue Influence, Estates Act, R.S.O. 1990, c. E.21, s. 23, Rules of Civil Procedure, Rule 75.06(1), Adams Estate v. Wilson, 2020 SKCA 38

facts:

The appellant appeals the application judge’s dismissal of an application for a declaration of invalidity of a will made by the appellant’s late father in 2019, three months before his death. He was not a beneficiary under the 2019 Will. The appellant claimed that the 2019 Will was invalid as a result of undue influence by his mother, the respondent Ro. M., and by his sister, the respondent Ra. M. In other proceedings, the appellant claims an interest in his father’s property, based in part on proprietary estoppel.

The application judge found that the appellant had no standing to bring the application to declare the will invalid, either under r. 75.06(1) of the Rules of Civil Procedure or under s. 23 of the Estates Act. He was not a beneficiary under the 2019 Will and, even if the 2019 Will were to be set aside on the ground of undue influence, he would not be affected by the result, because there was an earlier will, made in 1996 (the “1996 Will”), under which the appellant would receive no share on the death of his father – the entire estate would go to his mother.

issues:

(1) Whether the application judge erred in the interpretation or application of s. 23 of the Estates Act, which gives a party standing under a will when making a claim to “property affected by the will”?

(2) Whether the application judge erred by putting an onus on the appellant to establish the invalidity of the 1996 Will?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court was not persuaded that the application judge erred in the interpretation or application of s. 23 of the Estates Act. The jurisdiction under that provision is discretionary and the appellant identified no error by the application judge in the exercise of his discretion.

The appellant also submitted that in rejecting his submission – that his separate civil action against the estate is a claim “to property affected by the will” that would give him standing to challenge the validity of the Will – the application judge incorrectly relied on the decision of the Saskatchewan Court of Appeal in Adams Estate v. Wilson, 2020 SKCA 38. However, in the circumstances, the Court did not find it necessary to decide whether the decision of the Saskatchewan Court of Appeal in Adams Estate reflected the law of Ontario.

(2) No.

In the circumstances, there was an onus on the appellant to adduce some evidence to call into question the considerable body of evidence adduced by the respondent to establish the validity of the 1996 Will. The conclusion that the appellant failed to do so was entitled to deference.


Narwhal International Limited v. Teda International Realty Inc., 2021 ONCA 659

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

Counsel:

Gennady Tcherny, President of Narwal International Limited, acting as agent for the appellant, with leave of the Court
Stephanie Tassopoulos, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Duty of Good Faith, Civil Procedure, Evidence, Credibility, Godson v. P. Burns & Co. (1919), 46 D.L.R. 97 (S.C.C.), Molson Canada 2005 v. Miller Brewing Company, 2013 ONSC 2758, R. v. Palmer, [1980] 1 S.C.R. 759, Longo v. MacLaren Art Centre, 2014 ONCA 526, 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843

facts:

In the decision under appeal, the application judge found that the document tendered by the respondent was the agreement made between the parties. This document stated that the net rental rate for the five-year renewal period was to be “discussed between landlord and tenant”, and did not create an enforceable legal obligation.

In March 2019, the appellant tenant had notified the respondent landlord of its intention to renew the lease for a five-year period. Protracted negotiations between the parties did not result in agreement on the rent to be paid during the renewal period. The appellant and respondent relied on two different documents, with variable renewal provisions, as their executed agreement to lease. The appellant commenced an application for a declaration that it was entitled to renew the lease and for an order setting the rent for the renewal period.

issues:

(1) Which of the two documents was the agreement to lease executed by the parties?

(2) Did the landlord negotiate in good faith with respect to the rental rate for the renewal term?

holding:

Appeal dismissed.

reasoning:

(1) Declined to Answer

(2) Declined to Answer

The appellant invited the Court to revisit the findings of fact made by the application judge. In the absence of a palpable and overriding error in the application judge’s assessment of the evidence, an appellate court must accept the judge’s findings of fact. The application judge made no such error. The Court declined to admit fresh evidence that was not considered relevant to the issues on appeal, and would not have influenced the application judge’s findings of fact.


SHORT CIVIL DECISIONS

Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2021 ONCA 646

[Fairburn A.C.J.O., Lauwers and Jamal* JJ.A.]
*Jamal JJ.A. did not take part in this decision

Counsel:

R.P. Steep, B.E. Gray, and S. Sugar, for the appellant, Ontario Lottery and Gaming Corporation
D.B. McPherson, E.S. Huang, M. Fancy, and I. Kanjee, for the appellant, Her Majesty the Queen in right of Ontario
S. Block, D. Outerbridge, L. Jackson, N. Wall, and H. Allen, for the respondent, Ontario First Nations (2008) Limited Partnership

Keywords: Civil Procedure, 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.