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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of October 12, 2021.

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Congratulations to our own Reeva M. Finkel and Brendan Jones for their success in Hydro One Networks Inc. v. Niagara Radio Group Inc. In that case, the Court dismissed an appeal from an order for specific performance that also involved an intervener, being the appellant’s counsel that had negotiated the contract that was specifically enforced.

In Bouchard v. Sgovio, the majority held that the motion judge properly made orders pursuant to Rule 1(8) of the Family Law Rules. The majority found that Rule 1(8) had not been interpreted as being confined to purely procedural remedies. The majority further found that nothing prevented a court from making an enforcement order in addition to, or in lieu of, a contempt order even if a contempt order was sought in the proceeding.

In Hucsko v. A.O. Smith Enterprises Limited, the Court set aside the trial decision, finding that an employer’s decision to terminate an employee’s employment was a proportional and wholly warranted response to sexual harassment.

In Tanti v. Tanti, the Court set out the test for capacity to marry:the marrying parties must understand the nature of the marriage contract and the duties and responsibilities that flow from it.

In Freeza, Brown J.A concluded his short endorsement by stating that one of the great on-going failures of the Ontario civil justice system is the confusion entrenched in the Courts of Justice Act concerning appeal routes from orders made by judges of the Superior Court of Justice. That such confusion inflicts unnecessary legal costs on parties, delays the resolution of appeals on their merits and, as this case illustrates, sows uncertainty about how a party can attempt to protect its rights pending appeal. Justice Brown called on the Ontario Legislature to enact legislation that creates an unambiguous “bright line” explaining where an appeal lies.

Lastly, for our readers who have not yet heard about it, I would like to introduce them to a new online publication, Civil Procedure & Practice in Ontario (CPPO) (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. I had the privileged to co-author two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

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 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

Burke v. Poitras, 2021 ONCA 703

Keywords: Family Law, Child Support, Spousal Support, Civil Procedure, Fresh Evidence, Costs, Palmer v. The Queen, 1980 1 SCR 759, Family Law Rules, O. Reg. 114/99, Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), Moge v. Moge, 1992 3 SCR 813

2619506 Ontario Inc., v. 2082100 Ontario Inc., 2021 ONCA 702

Keywords: Contracts, Franchise Agreements, Franchise Law, Rescission, Informed Investor Test, Definition of Franchisors Associate, Civil Procedure, Summary Judgment, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3, ss. 1(1), 6(2), 6(6), Raibex Canada Ltd. v. ASWR Franchising Corp., 2018 ONCA 62, Housen v. Nikolaisen, 2002 SCC 33, 2122994 Ontario Inc. v. Lettieri, 2016 ONSC 6209, Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673, Mendoza v. Active Tire & Auto Inc., 2017 ONCA 471, 6792341 Canada Inc. v. Dollar It Limited, 2009 ONCA 385, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87

Tomek v. Zabukovec, 2021 ONCA 723

Keywords: Wills and Estates, Unjust Enrichment, Proprietary Estoppel, Remedies, Vesting Orders, Civil Procedure, Costs, Cowper-Smith v. Morgan, 2017 SCC 61, Wall v. Shaw, 2019 ONCA 929

Bouchard v. Sgovio, 2021 ONCA 709

Keywords: Family Law, Custody and Access, Civil Procedure, Orders, Breach, Enforcement, Variation, Contempt, Children’s Law Reform Act, R.S.O 1990, c. C.12, ss. 20-29, s. 35, s. 36, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15, s. 16, s. 17, Family Law Rules, O. Reg. 114/99, Rules 1(8), 15 and 31, Hughes v. Hughes, (2007), 85 O.R. (3d) 505, Mullin v. Sherlock, 2018 ONCA 1063, Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208, Freedman v. Freedman, 2020 ONSC 301, Shouldice v. Shouldice, 2016 ONSC 1481, Sadlier v. Carey, 2015 ONSC 3537, Mantella v. Mantella, 2009 ONCA 194, Hefkey v. Hefkey, 2013 ONCA 44, Prescott-Russell Services for Children and Adults v. G. (N.), [2006] 82 O.R. (3d) 686 (Ont. C.A.), Chan v. Town, 2013 ONCA 478, Murano v. Murano (2002), 219 D.L.R. (4th) 334 (Ont. C.A.), Van de Perre v. Edwards, 2001 SCC 60, A.M. v C.H., 2019 ONCA 764, Slaughter v. Slaughter, 2013 ONCA 432, A.P. v. L.K., 2021 ONSC 150, X. v. Y., 2016 ONSC 4333, J.C.W. v. J.K.R.W., 2014 BCSC 488, E.T. v. L.D., 2018 ONSC 5132, M.L.S. v. N.E.D., 2017 SKQB 183, Belcourt v. Charlebois, 2020 ONSC 4124

Tanti v. Tanti, 2021 ONCA 717

Keywords: Family Law, Domestic Contracts, Validity, Capacity, Civil Procedure, Evidence, Experts, Cross-examination, Procedural and Natural Justice, Right to be Heard, Reasonable Apprehension of Bias, Tanti v. Tanti, 2021 ONCA 607, Hunt v. Worrod, 2017 ONSC 7397, Re McElroy, [1978] 2 O.R. (2d) 381 (Surr. Ct. J.), Reynolds v. Reynolds, 1966 CanLII 687 (B.C.S.C.), Chertkow v. Feinstein, 1929 CanLII 513 (AB CA), Lacey v. Lacey (Public Trustee of), [1983] B.C.J. No. 1016 (S.C.), Ross-Scott v. Potvin, 2014 BCSC 435, Knox v. Burton (2004), 6 E.T.R. (3d) 285, aff’d 14 E.T.R. (3d) 27, Costantino v. Costantino, 2016 ONSC 7279, Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 (Ont. S.C.), Kostopoulos v. Jesshope, 1985 CanLII 2047 (ON CA), leave to appeal refused [1985] S.C.C.A. No. 93, Heron Bay Investments Ltd. v. Canada, 2010 FCA 203, Kimberly Whaley et al., Capacity to Marry, (Aurora: Cartwright Group, 2010), “The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity” (2020) Can J Psychiatry 1

Hydro One Networks Inc. v. Niagara Radio Group Inc., 2021 ONCA 719

Keywords: Contracts, Real Property, Easement Agreements, Solicitor and Client, Remedies, Specific Performance, Civil Procedure, Interveners, Substantial Indemnity Costs, Rules of Civil Procedure, Rule 13.01

1476335 Ontario Inc. v. Frezza, 2021 ONCA 732

Keywords: Real Property, Constructive Trust, Fraudulent Conveyances, Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Certificate Pending Litigation, Adjournments, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2)

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 722

Keywords: Civil Procedure, Contempt, Sentencing, Striking Pleadings, Default Judgment, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140(5), Rules of Civil Procedure, Rules 1.04, 30.02, 30.11, 60.11, 60.12, Falcon Lumber Limited. v. 24803375 Ontario Inc., 2019 ONSC 4280, aff’d 2020 ONCA 310, Boily v. Carleton Condominium, 2014 ONCA 574, SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, iTrade Finance Inc. v. Webworx Inc., (2005) 255 D.L.R. (4th) 748 (Ont. S.C.J.), Paul Magder Furs Ltd. v. Ontario (Attorney General), 6 O.R. (3d) 188 (Ont. C.A.), Dickie v. Dickie, 2006 CanLII 576 (ON CA), Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310

Hucsko v. A.O. Smith Enterprises Limited , 2021 ONCA 722

Keywords: Employment Law, Wrongful Dismissal, Just Cause, Sexual Harassment, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McKinley v. BC Tel, [2001] 2 S.C.R. 161, Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Sexual Harassment in the Workplace, 3rd ed. (Toronto: Butterworths, 2000)

Short Civil Decisions

RE/MAX Realtron Realty Inc. v. 2458313 Ontario Inc., 2021 ONCA 714

Keywords: Contracts, Breach, Real Property, Real Estate Brokers, Representation Agreements, Corporate Veil, Civil Procedure, Summary Judgment, Yaiguaje v. Chevron Corp., 2018 ONCA 472, leave to appeal refused, [2018] S.C.C.A. No. 255

Khan v. 1806700 Ontario Inc., 2021 ONCA 724

Keywords: Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Machado v. Ontario Hockey Association, 2019 ONCA 210

M.E. v. Ontario, 2021 ONCA 718

Keywords: Family Law, Child Protection, Civil Procedure, Appeals, Abuse of Process, Child, Youth and Family Services Act, 2017, ss. 87(8), 87(9), Child, Youth and Services Act, 2017, s. 142(3), Rules of Civil Procedure, Rule 2.1.01, Atlas Construction Inc. v. Brownstones Ltd., (1996), 46 C.P.C. (3d) 67 (Ont. Gen. Div.), Bryson v. Kerr, (1976), 13 O.R. (2d) 672 (Ont. Div. Ct.)


CIVIL DECISIONS

Burke v. Poitras, 2021 ONCA 703

[Rouleau, Hoy and Thorburn JJ.A.]

Counsel:

G.S. Campbell, for the appellant
J. Wilcox, for the respondent

Keywords: Family Law, Child Support, Spousal Support, Civil Procedure, Fresh Evidence, Costs, Palmer v. The Queen, 1980 1 SCR 759, Family Law Rules, O. Reg. 114/99, Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), Moge v. Moge, 1992 3 SCR 813

facts:

The parties were married for 13 years and separated in 2014 after the respondent left the matrimonial home due to the appellant’s abusive conduct. The parties have three children and the oldest lives primarily with the appellant and the parties share parenting time with the two younger children. The appellant repeatedly failed to respect his disclosure obligations and failed to comply with court orders requiring financial disclosure to the respondent. As a result, the appellant’s answer was struck. Except in relation to the issues of decision-making responsibility and parenting time, the decision to strike the appellant’s answer was confirmed by the Court in Burke v. Poitras, 2018 ONCA 1025. The matter proceeded as an uncontested trial.

The trial judge awarded the respondent child and spousal support including substantial arrears, an equalization payment and exclusive possession of the matrimonial home, together with other relief. The trial judge also ordered that the appellant not be permitted to proceed with any future motions pertaining to the issues in the present litigation without leave of the court.

issues:

(1) Can the appellant file fresh evidence?
(2) Did the trial judge err in failing to conduct an independent inquiry into the appellant’s trial participation rights?
(3) Did the trial judge err in failing to scrutinize the respondent’s evidence on a standard of balance of probabilities?
(4) Did the trial judge err by ordering spousal support to the respondent for an indefinite period of time and not providing for review?
(5) Did the trial judge err in awarding costs against the appellant?

holding:

Appeal dismissed.

reasoning:

(1) No.

The appellant sought to introduce the affidavit of a chartered accountant whose firm had provided accounting services to the appellant and his businesses for over a decade. The information contained in the proposed fresh evidence could, with due diligence, have been adduced at trial. It did not meet the test to introduce fresh evidence.

(2) No.

The appellant argued that the trial was unfair, as he was provided with no opportunity to participate. Although he was not allowed to participate, the appellant was present throughout the trial. The appellant did not move to vary the order and, given his disruptive conduct over the course of the trial and his continued refusal to comply with the disclosure orders, there was no basis to do so.

(3) No.

The appellant argued that the trial judge simply accepted the evidence tendered by the respondent at trial without analysis or scrutiny. The respondent’s accounting expert was quite clear as to when and on what basis he made assumptions as to the appellant’s income and expenses. The trial judge explained why she accepted the expert’s evidence and the basis for her findings. The judge’s conclusions were reasonable and there was no basis to interfere.

(4) No.

The trial judge considered the principles in Moge v. Moge, [1992] 3 S.C.R. 813, and determined that support on a compensatory basis was appropriate in the circumstances. She saw no reason to depart from the number generated from the SSAGs and noted that the marriage resulted in significant economic advantages to the appellant. “Indefinite” support means that the duration is not specified and does not necessarily mean permanent. The trial judge’s findings were owed deference on appeal and there was no basis to interfere.

(5) No.

There were detailed reasons for the award accounting for the appellant’s conduct, including the breach of disclosure orders. The appellant had not demonstrated any error in the trial judge’s exercise of discretion. The amount of costs sought by the respondent was just and proportionate.


2619506 Ontario Inc., v. 2082100 Ontario Inc., 2021 ONCA 702

[Lauwers, Harvison Young and Sossin JJ.A.]

Counsel:

M. Diegel, for the appellants
A. Hora, for the respondent

Keywords: Contracts, Franchise Agreements, Franchise Law, Rescission, Informed Investor Test, Definition of Franchisors Associate, Civil Procedure, Summary Judgment, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3, ss. 1(1), 6(2), 6(6), Raibex Canada Ltd. v. ASWR Franchising Corp., 2018 ONCA 62, Housen v. Nikolaisen, 2002 SCC 33, 2122994 Ontario Inc. v. Lettieri, 2016 ONSC 6209, Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673, Mendoza v. Active Tire & Auto Inc., 2017 ONCA 471, 6792341 Canada Inc. v. Dollar It Limited, 2009 ONCA 385, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87

facts:

The appellants and the respondent executed a franchise agreement in May 2018 pursuant to which the respondent 2619506 Ontario Inc, through its president, became a franchisee of the franchisor’s “Fit for Life” chain of quick service restaurants. After they began operating, they found that the sales were much lower than expected. By May 2019, the respondent had served a notice of rescission of the franchise agreement.

In granting summary judgment in favour of the respondent, the motion judge concluded that the respondent’s notice of rescission was effective to rescind its franchise agreement with the appellants. The motion judge held that the financial disclosure document (FDD) the appellants provided was so deficient that it amounted to no disclosure at all pursuant to s. 6(2) of the Arthur Wishart Act (Franchise Disclosure). The motion judge also found that both Mr. D and Mr. A met the definition of franchisor’s associates under s.1(1) the Act, and that they were jointly and severally liable for damages pursuant to s. 6(6).

issues:

(1) Did the motion judge misapply the “informed investment decision test” in finding that the deficiencies in the disclosure document amounted to the absence of disclosure, thus allowing rescission pursuant to s. 6(2) of the Act within two years?
(2) Did the motion judge err in finding that the appellants were “franchisor’s associates” pursuant to ss.1(1) and 6(6) of the Act?
(3) Did the motion judge err in imposing joint and several liability upon both Mr. D and Mr. A?
(4) Did the motion judge err in determining this matter on a motion for summary judgment?

holding:

Appeal dismissed.

reasoning:

(1) No.

This was a question of mixed law and fact, thus attracting the standard of palpable and overriding error. The motion judge concisely and accurately set out the considerations to be taken into account and applied those to the facts before her in reaching the conclusion that the FDD was so deficient as to amount to no disclosure at all. She began by observing that the Court has repeatedly emphasized that the Act is intended to redress the imbalance of power between franchisors and franchisees, and that it does so by imposing rigorous disclosure obligations on franchisors, with strict penalties for non-compliance. It has been recognized that a disclosure document may be so deficient as to effectively amount to no disclosure, thereby permitting rescission under s. 6(2). Financial disclosure is of the utmost importance in enabling a prospective franchisee to make a properly informed investment decision. With that said, in this case, contrary to a clear requirement in the applicable regulation for the franchisor to include a 2017 financial statement, the only financial information that was provided were unaudited 2016 financial statements.

(2) No.

As the sole director and shareholder, as well as the president and CEO of the franchisor, Mr. D directly controlled the franchisor and clearly fell within section 6(6)(a)(i) of the Act as a person who controlled the franchisor. As the person who signed the FDD disclosure certificate, he was “directly involved in the grant of the franchise”, falling within the conjunctive provision of (b)(i)(A).

Mr. A met the first part of the definition as he was “controlled by another person who also controls directly or indirectly the franchisor”, that is Mr. D. This was evidenced through the appellants’ own documents. The franchisor’s organizational chart, and Mr. A’s e-mail signature which identified him as the Director of Franchising and Development for the D Group of companies, which included Fit for Life. Although the D Group was not itself a corporation, Mr. D was the head of the D Group and owned all the D Group of companies. Mr. A also met the second part of the definition in clause (b)(i)(B) because he made “representations to the prospective franchisee on behalf of the franchisor for the purpose of granting the franchise, marketing the franchise or otherwise offering to grant the franchise.”

(3) No.

There was no suggestion before the motion judge that liability for damages should be imposed on any basis other than joint and several liability.

(4) No.

There were no genuine issues that required a trial. While the parties did not agree on all factual matters, there were no disputes regarding the primary facts upon which the issues were decided.


Tomek v. Zabukovec, 2021 ONCA 723

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

D. Nolan and H. McKinnon, for the appellant
R. Sleightholm, for the respondent, Ms. T.
W.R. Milliken, for the respondent, Mr. Z.

Keywords: Wills and Estates, Unjust Enrichment, Proprietary Estoppel, Remedies, Vesting Orders, Civil Procedure, Costs, Cowper-Smith v. Morgan, 2017 SCC 61, Wall v. Shaw, 2019 ONCA 929

facts:

The appeal concerned a 15-acre parcel of land (the “Property”) registered in the name of Mr. Z. Sr. Mr. Z. Sr.’s plan was to sever the Property into lots and sell the lots for new home construction. Despite this plan, Mr. Z. Sr. invited his son, Mr. Z., to build a house on a section of the Property (the “House Lot”).

Mr. Z. and his wife, Ms. T., began constructing a house on the House Lot. They moved into the house in 1989 and finished the house over the years using their own funds. Mr. Z. Sr. treated the house as the property of Mr. Z. and Ms. T. and had no input into the design of the home. Mr. Z. Sr. applied to formally sever the House Lot from the Property, with the intention of conveying it to Mr. Z. However, Mr. Z. Sr. was forced to withdraw his application after discovering that severance was not available. Mr. Z. accepted that the House Lot would not be conveyed to him during Mr. Z. Sr.’s lifetime but hoped he would formally receive title in Mr. Z. Sr.’s will. However, Mr. Z. Sr. died intestate in 2004. After Mr. Z. Sr.’s death, Mr. Z. and Ms. T. continued to reside in the house, pay taxes, and make improvements with the full knowledge of Mr. Z. Sr.’s widow.

In 2011, Mr. Z. and Ms. T separated. The only significant remaining issue from their separation was the ownership of the Property. Mr. Z. and Ms. T. argued that there was an agreement between Mr. Z. Sr. and themselves regarding the conveyance of the land and Mr. Z. and Ms. T. had a beneficial interest in the Property through unjust enrichment and proprietary estoppel.

The trial judge ruled in favour of Mr. Z and Ms. T, finding that Mr. Z. Sr.’s estate (the “Estate”) had been unjustly enriched with respect to the house’s construction, improvement, and maintenance, but not with the respect to the remainder of the property. The trial judge also found that Mr. Z. had successfully made out the elements of proprietary estoppel. Regarding the remedy, the trial judge relied on expert evidence to find that the value of the Property, based on a cost approach that valued the land and house separately, was $813,000. The trial judge granted Mr. Z. and Ms. T. joint beneficial ownership of 75% of the property. The Estate appealed.

issues:

(1) Was the trial judge’s remedy appropriate?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The Court was not persuaded that it should interfere with the trial judge’s order. The Estate’s appeal was restricted to the appropriateness of the trial judge’s remedy. Specifically, it argued that the trial judge erred regarding the value of the land and failed to consider the contribution Joseph Sr. made to the construction of the house.

The Court agreed that the trial judge erred in her consideration of the land value, and that this impacted the amount by which the Estate was unjustly enriched. A similar argument could also be made regarding the work contribution of Mr. Z. Sr. However, the Court was not persuaded that it should interfere with the order that was made by the trial judge. The difficulty with the Estate’s argument was that it ignored the available remedies where the elements of proprietary estoppel have been proven.

The Court cited Cowper-Smith v. Morgan and held that “where a claimant has established proprietary estoppel, the court has considerable discretion in crafting a remedy that suits the circumstances.” Further, “an appellate court should not interfere unless the trial judge’s decision evinces an error in principle or is plainly wrong.”

The Court held that while a trial judge does not have unfettered authority in crafting an equitable remedy, the trial judge’s remedy in this case was appropriate. There was ample evidence to establish that it was always the intention of the parties that Mr. Z. and Ms. T. would receive both the House Lot and the house. The order of the trial judge was entirely consistent with that intended result. The order awarded them the value of the house and the House Lot. Thus, in the Court’s view, it was a just and equitable result in the circumstances and there was no basis for the Court to interfere with that order.


Bouchard v. Sgovio, 2021 ONCA 709

[Pardu, Paciocco and Nordheimer JJ.A.]

Counsel:

J. P. Schuman and K. Bell, counsel for the appellant
B. J.R. Hall, counsel for the respondent

Keywords: Family Law, Custody and Access, Civil Procedure, Orders, Breach, Enforcement, Variation, Contempt, Children’s Law Reform Act, R.S.O 1990, c. C.12, ss. 20-29, s. 35, s. 36, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15, s. 16, s. 17, Family Law Rules, O. Reg. 114/99, Rules 1(8), 15 and 31, Hughes v. Hughes, (2007), 85 O.R. (3d) 505, Mullin v. Sherlock, 2018 ONCA 1063, Children’s Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208, Freedman v. Freedman, 2020 ONSC 301, Shouldice v. Shouldice, 2016 ONSC 1481, Sadlier v. Carey, 2015 ONSC 3537, Mantella v. Mantella, 2009 ONCA 194, Hefkey v. Hefkey, 2013 ONCA 44, Prescott-Russell Services for Children and Adults v. G. (N.), [2006] 82 O.R. (3d) 686 (Ont. C.A.), Chan v. Town, 2013 ONCA 478, Murano v. Murano (2002), 219 D.L.R. (4th) 334 (Ont. C.A.), Van de Perre v. Edwards, 2001 SCC 60, A.M. v C.H., 2019 ONCA 764, Slaughter v. Slaughter, 2013 ONCA 432, A.P. v. L.K., 2021 ONSC 150, X. v. Y., 2016 ONSC 4333, J.C.W. v. J.K.R.W., 2014 BCSC 488, E.T. v. L.D., 2018 ONSC 5132, M.L.S. v. N.E.D., 2017 SKQB 183, Belcourt v. Charlebois, 2020 ONSC 4124

facts:

The parties in this matter have two children, T.B., a son, and S.B., a daughter. On June 26, 2019, the parties entered into a Parenting Agreement that was made into a final order on consent (the “Leef Order”).

On August 18, 2018, the respondent brought a notice of motion seeking relief arising from the appellant’s alleged noncompliance with the Leef Order. On October 23, 2019, Hughes J. released her decision on this motion (the “Hughes Order”). The motion judge found that, consistent with past practice, the repeated breaches of the shared parenting schedule in the Leef Order began the day after an unsuccessful property settlement conference had been held.

As a result of her findings, the motion judge ordered the father to pay a global fine of $18,000 to the mother, which she itemized between the several breaches of the Leef Order that she had identified. When she made the Hughes Order, the motion judge adjourned the matter to November 1, 2019, for a compliance hearing. That adjournment date was subsequently postponed to December 18, 2019.

On December 4, 2019, the respondent brought a Form 14 Amended Notice of Motion seeking, among other things, an order that “Mills Psychology shall conduct reintegration therapy” between the respondent and T.B. The parties settled the respondent’s December 4, 2019 motion and on December 18, 2019, McGee J. made a temporary consent order directing that the respondent’s care of T.B. was to resume, and that T.B. attend counselling with J.P. and N.B. (the “McGee Order”). The motion was further adjourned to April 17, 2020 to permit T.B.’s progress in therapy to be monitored. Due to the COVID-19 pandemic, the motion was further adjourned to September 28, 2020, where it was ultimately heard by Hughes J.

The motion judge released her decision on February 9, 2021. In her endorsement, she rejected the father’s challenge to her jurisdiction to make the orders sought, noting that this was a compliance matter, not a contempt matter. The motion judge concluded that it was necessary to order that the children be enrolled in the Family Bridges program, that a temporary parenting order relating to T.B. and S.B. be given to the mother for the period of time the children are enrolled in the Family Bridges program, and that steps be taken to “prevent the [father] from sabotaging the program” by controlling “his contact with the children until his involvement is required by the leaders of the [Family Bridges] program”. The appellant appealed the February 9, 2021 order.

issues:

(1) Did the motion judge commit jurisdictional error by making the orders that she did?
(2) Did the motion judge err by failing to consider fully the best interests of the children or by making the orders that she did with insufficient evidence?
(3) Did the motion judge err in making the retraining order?

holding:

Appeal dismissed.

reasoning:

Paciocco J.A. for the Majority (Pardu J.A. concurring):

(1) No.

The Court held the motion judge properly made the orders pursuant to r. 1(8) of the Family Law Rules. Specifically, the court noted that even though, with the exception of r. 1(8)(g), each of the itemized forms of relief in r. 1(8) could be described as purely procedural, r. 1(8) had not been interpreted as being confined to purely procedural remedies.

The court rejected the appellant’s contention that r. 1(8) could not be used to make parenting orders. Specifically, the court outlined the motion judge did not purport to vary the parenting terms contained in the Leef Order. Rather, the motion judge imposed an order that temporarily reassigned parenting rights to facilitate a therapeutic process that was ordered to enable the enforcement of the parenting terms set out in the Leef Order. Put otherwise, the order made by the motion judge did not vary or replace the Leef Order – it was made to facilitate the Leef Order.

Further, the Court rejected the appellant’s arguments that (1) the motion judge erred in making a r. 1(8) order in a contempt hearing; and (2) the motion judge erred by using a parenting order as a punishment for contempt.

Regarding the first argument, the court noted there was no clean division between contempt hearings and enforcement hearings, and that nothing prevented a court from making an enforcement order in addition to, or in lieu of, a contempt order even if a contempt order was sought in the proceedings. Further, the court noted contempt was not in issue at the hearing where the impugned order was made, rather, the motion judge arranged the hearing for the express purpose of monitoring compliance.

Regarding the second argument, the Court rejected the appellant’s contention that the motion judge used a parenting order as punishment for contempt. Specifically, the motion judge created a temporary order to facilitate therapy, not to punish the appellant.

(2) No.

The Court considered three discrete objections raised by the appellant in rejecting the appellant’s argument that the motion judge erred by failing to consider fully the best interests of the children, or by making the orders that she did with insufficient evidence: (1) The appellant’s contention that the motion judge should not have made a finding of alienation without expert evidence or the s. 30 Children’s Law Reform Act assessment that he had requested; (2) The appellant’s submission that the motion judge should not have made the findings or imposed the orders that she did without a voice of the child report from T.B.; and (3) The appellant’s contention that the motion judge misapprehended or ignored the evidence that the father had relied upon.

Specifically, the Court found it was “patent” that the motion judge fully considered whether the orders she was making were in T.B.’s best interest. Although the motion judge failed to mention listed factors under s.24(2), the Court held that this was only an error if there was an indication that the judge failed to consider them. In the Court’s view, there was no basis for concluding the motion judge failed to consider the material factors.

The Court also rejected the appellant’s contention that the motion judge lacked the evidence required to decide that the orders she made were in T.B.’s best interest. The Court held there was evidence before the motion judge supporting each of her findings about the failure of the father to comply with the Leef Order. Specifically, when she made the Hughes Order, the motion judge had a foundation from the father’s own documentation that he had communicated with T.B. about legal issues he was having with T.B.’s mother and that the father did so destructively, damaging T.B.’s relationship with his mother. The evidence suggested that these conversations were the onset of T.B.’s estrangement from his mother and that they occurred after a failed settlement conference. Accordingly, the motion judge was entitled to draw the inference that the father promoted the breach in T.B.’s relationship with his mother for the purpose of pressuring the mother to settle their legal claim to his satisfaction.

The Court also noted that alienation is not a psychiatric diagnosis that invariably requires expert evidence, but a factual finding about what happened in the family. In this case, the Court held the factual evidence of alienation was adequate without expert evidence. Accordingly, the Court found the motion judge did not err in denying the father’s request for an assessment by an expert in parental alienation under s. 30 of the Children’s Law Reform Act.

Regarding the voice of the child report, the Court noted that where a child has been poisoned against a parent and their wishes are not independent because they have been manipulated, a judge is entitled to give a child’s views no weight. The Court found there was evidence that, in the motion judge’s assessment, T.B.’s views would not be independent and could carry little if any weight. Further, the Court held T.B.’s views were already well known at the time of the hearing based on the evidence before the motion judge. Accordingly, the Court held it was not an error for the motion judge to proceed without a voice of the child report in the circumstances.

Further, the Court found there was no basis for concluding the motion judge misapprehended the evidence or failed to consider the evidence the father was relying upon to dispute the alienation claim.

Although the appellant did not object or make it a ground of appeal, the Court addressed the fact that the motion judge made the order that she did despite the respondent not filing a Form 35.1 sworn parenting affidavit, which are required where parenting rights are sought in r. 8 applications. The Court concluded it did not need to decide whether a Form 35.1 sworn parenting affidavits are technically required to secure an enforcement order that touches on parenting rights, however, the mother would have been well advised to include such an affidavit given the nature of the relief she was requesting. Nevertheless, the Court held the motion judge had a clear indication of the parenting plan during the period covered by the order, and the inquiry into the best interests of the children in this case was narrow. Accordingly, in the absence of any objection, it was not unreasonable for the motion judge to proceed in the absence of a Form 35.1 sworn parenting affidavit.

The Court also considered whether there was a proper evidentiary basis for the motion judge’s decision that it was in T.B.’s best interest to attend the Building Bridges program and be removed from the appellant for a temporary period of time as required by the program. In the Court’s view, the motion judge acted on the evidence before her, and although a better evidentiary foundation could easily be imagined, the evidence before her was sufficient.

Finally, in addressing the motion judge’s inclusion of S.B. in the orders, the court concluded that although the motion judge should have been more explicit in addressing S.B.’s best interests, the motion judge did not fail to consider S.B.’s best interests.

(3) No.

Based on fresh evidence the Court admitted with the respondent’s consent, the Court ordered that the order “restraining the father from attending at the children’s school or within 1000 meters of specific locations is varied to provide that the appellant may attend at the school that is his workplace and may communicate there with a child of the marriage who attends that school”. Further, based on evidence that the boundary order relating to the Durham Children’s Aid Society Offices frustrated the father’s travel to work, the Court further varied the order “to provide that he may pass within 1000 meters of the Durham Children’s Aid Society offices when travelling from one location to another”.

The Court refused to interfere with the restraining order beyond the variations already ordered and rejected the appellant’s contention that the respondent did not seek a restraining order in her pleadings. Specifically, although the respondent did not use the specific language of s. 35 of the Children’s Law Reform Act, the respondent asked for a temporary order that the appellant have no direct or indirect contact with the respondent and the children.

Nordheimer J.A. (dissenting):

Nordheimer J.A. concluded the motion judge lacked jurisdiction to make the “enforcement order” and, accordingly, would have set aside the order.

A. Jurisdiction

Nordheimer J.A. held that the fundamental error committed by the motion judge was that she failed to consider and address her jurisdiction to make the final order she did. Specifically, Nordheimer J.A. conceded the general and broad nature of the introductory language in r. 1(8), which grants the court authority to make “any order that it considers necessary for a just determination of the matter” in the face of non-compliance with a previous court order. However, Nordheimer J.A. held that the broad language did not provide the court with a carte blanche to make any order it wished. Rather, the itemized list of suggested orders in r. 1(8), while non-exhaustive, indicated the kind of orders that could be appropriately made, the vast majority of which are procedural in nature.

Nordheimer J.A. also identified two problems in the motion judge’s analysis. First, the motion judge’s conclusion that time was of the essence. Second, the lack of evidence before the court that the proposed intensive intervention through the Family Bridges program was suitable for the children at the time.

Nordheimer J.A held that before a judge decides to order the type of serious intervention that was made in this case, there must be comprehensive and cogent evidence regarding the program placed before the court. Specifically, the required evidence should be of a nature similar to what a court would expect to receive from an expert, who is recommending a certain course of remedial action or treatment. No such evidence was before the court in this case. Accordingly, there was no opportunity for the appellant to challenge any such evidence. Therefore, Nordheimer J.A. held the motion judge erred in making such an intrusive order in the absence of a proper evidentiary foundation.

Nordheimer J.A. concluded by stating there are established procedures that are required to be followed to obtain specific relief, such as the variation of a final order, and that taking shortcuts to those procedures simply to benefit the alleged aggrieved party, by attempting to expedite some form of relief, must not be permitted. In sum, if a party seeks a variation, or a motion judge wishes to grant a variation, then the proper procedure must be followed. It was not followed in this case.

B. Terms of the Order

Even if the jurisdiction issue could be overcome, Nordheimer J.A. identified there were problems with some of the individual terms of the order.

First, the order contained a paragraph relying on s. 36(2) of the Children’s Law Reform Act permitting the police to enter into any dwelling at any time to locate, apprehend, and return the children. Nordheimer J.A. noted that the requirement of s. 36(2) was that there be “reasonable and probably grounds” and concluded the evidence in this case did not rise to that level. Accordingly, this term should not have been in the order.

Second, Nordheimer J.A. concluded there was no jurisdiction for the imposition of penalties included in the order absent a motion for contempt being brought.

Third, Nordheimer J.A. held that no one asked the motion judge to make a restraining order, and he specifically rejected the majority’s equating of the language in the respondent’s pleadings to a request for a restraining order.

Consequently, Nordheimer J.A. would have allowed the appeal, set aside the order of the motion judge, and dismissed the respondent’s motion.


Tanti v. Tanti, 2021 ONCA 717

[Lauwers, Harvison Young and Sossin JJ.A.]

Counsel:

K. Scullion, for the appellant, Mr. R.T.
M.Z. Tufman, G. Tufman, and J. Nwawe, for the respondent, Ms. J.
M.K. Kinch, for the respondent, Mr. P.T.

Keywords:Family Law, Domestic Contracts, Validity, Capacity, Civil Procedure, Evidence, Experts, Cross-examination, Procedural and Natural Justice, Right to be Heard, Reasonable Apprehension of Bias, Tanti v. Tanti, 2021 ONCA 607, Hunt v. Worrod, 2017 ONSC 7397, Re McElroy, [1978] 2 O.R. (2d) 381 (Surr. Ct. J.), Reynolds v. Reynolds, 1966 CanLII 687 (B.C.S.C.), Chertkow v. Feinstein, 1929 CanLII 513 (AB CA), Lacey v. Lacey (Public Trustee of), [1983] B.C.J. No. 1016 (S.C.), Ross-Scott v. Potvin, 2014 BCSC 435, Knox v. Burton (2004), 6 E.T.R. (3d) 285, aff’d 14 E.T.R. (3d) 27, Costantino v. Costantino, 2016 ONSC 7279, Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 (Ont. S.C.), Kostopoulos v. Jesshope, 1985 CanLII 2047 (ON CA), leave to appeal refused [1985] S.C.C.A. No. 93, Heron Bay Investments Ltd. v. Canada, 2010 FCA 203, Kimberly Whaley et al., Capacity to Marry, (Aurora: Cartwright Group, 2010), “The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity” (2020) Can J Psychiatry 1

facts:

Mr. P.T. and Ms. J. were married on July 27, 2019. On September 12, 2019, Mr. P.T.’s son, Mr. R.T., sought a guardianship order with respect to Mr. P.T.’s property and person. Mr. R.T. was granted the order on the basis that Mr. P.T. was incapable of personal care and managing property. Ms. J. subsequently brought a motion to set aside the guardianship order.

On July 31, 2020, Justice Shaw ordered that Ms. J. be added as a party to the guardianship proceeding and ordered that the issue of the validity of the marriage be determined as a threshold issue in the application. On December 22, 2020, Justice Mandhane determined that the marriage was valid. On May 27, 2021, Justice Timble granted a stay of the guardianship proceeding pending disposition of the appeal of Justice Mandhane’s order. Ms. J. attempted to appeal Justice Timble’s order and brought a motion to expedite the appeal. On July 13, 2021, Justice Benotto dismissed Ms. J.’s motion and held that Justice Timble’s order was procedural and interlocutory and that no appeal lay to the Court of Appeal. A panel of the Court upheld Justice Benotto’s decision.

The issue on this appeal was Justice Mandhane’s decision on the validity of the marriage. The trial judge applied the test in Chertkow v. Feinstein for capacity to enter into a marriage: the parties must understand the nature of the marriage contract, and the duties and responsibilities that flow from it. The trial judge found that Mr. P.T. possessed the requisite capacity to marry. There was no persuasive evidence that, at the time of marriage, Mr. P.T.’s cognitive status had diminished to the point that he was unable to make decisions regarding his day-to-day affairs or living arrangements. The trial judge also held that whether Ms. J. stood to benefit financially from the marriage was irrelevant to the question of validity in the absence of evidence of duress. In reaching her decision, the trial judge rejected and/or discounted the evidence of several experts and, instead, relied on the direct evidence of a lawyer Mr. P.T. consulted at the time of the marriage.

issues:

(1) Did the trial judge apply the wrong test to determine Mr. P.T.’s capacity to marry?
(2) Did the trial judge err in relying on her own research without allowing the parties to make submissions on the point?
(3) Did the trial judge err in failing to accept certain expert evidence?
(4) Did the trial judge err in accepting the evidence of a lay witness without permitting meaningful cross-examination?
(5) Did the trial judge demonstrate a reasonable apprehension of bias necessitating a new trial?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court found that the trial judge applied the correct test for capacity to marry. The Court held that for a marriage to be valid, the parties must understand the nature of the marriage contract and the duties and responsibilities that flow from it. The trial judge found that Mr. P.T. met this test.

(2) No.

The Court found that the trial judge did not err by considering authorities not raised by the parties. The Court cited Heron Bay Investments Ltd. v. Canada and held that it is not inappropriate for a judge to consider relevant authorities, regardless of whether they were raised by the parties. Additionally, the Court found that there was no indication that the trial judge only relied on such sources or failed to consider the authorities raised by the parties along with her own research.

(3) No.

The Court found that the trial judge did not err by rejecting the expert evidence. The trial judge provided a cogent explanation for why she was not persuaded by the expert evidence. The expert evidence was not contemporaneous with the marriage. Thus, the trial judge did not exercise her discretion arbitrarily or capriciously.

(4) No.

The Court found that the trial judge did not err in accepting direct evidence of a witness absent meaningful cross-examination. The trial judge only prevented cross-examination on matters subject to solicitor-client privilege.

(5) No.

The Court found that the trial judge was not biased. The trial judge simply found no evidence suggesting that Mr. P.T.’s cognition was diminished to the extent that he did not have the capacity to marry.


Hydro One Networks Inc. v. Niagara Radio Group Inc., 2021 ONCA 719

[Hourigan, Huscroft and Coroza JJ.A]

Counsel:

A. McBride and D. Michaud-Shields, for the appellants
Reeva M. Finkel and Brendan Jones, for the respondent Hydro One Networks Inc.
C. Linthwaite, for the respondent Scargall Owen-King LLP

Keywords: Contracts, Real Property, Easement Agreements, Solicitor and Client, Remedies, Specific Performance, Civil Procedure, Interveners, Substantial Indemnity Costs, Rules of Civil Procedure, Rule 13.01

facts:

The corporate appellants own land in the Niagara region and A. F. is the directing mind of both appellant corporations. The respondent, Hydro One, has transmission assets on the land which it has maintained since 1925. Before the appellants acquired the land, Hydro One’s interest in the land was the subject of various license agreements with the previous owners. The land changed hands in 2008, and Mr. F. sent a notice of cancellation of Hydro One’s license and the parties began negotiations to resolve the issue. During negotiations, the appellants were represented by a law firm, the respondent, Scargall Owen-King, who billed their time and were never paid.

The parties executed an easement agreement which was signed by Mr. F. on April 27, 2018, whereby he provided an irrevocable direction for Hydro One to pay the legal account of the law firm, in trust, on closing. Hydro One signed the agreement on May 4, 2018, and the closing date was set for August 8, 2018, after a number of closing dates set by the parties.

Hydro One tendered on the appellants’ solicitor on August 8, 2018. The appellants refused to close and Hydro One brought an application for specific performance. The law firm was granted leave to intervene on the application. The application judge granted the application for specific performance of the easement agreement and ordered the law firm’s legal fees be paid out of the closing proceeds.

issues:

(1) Did the application judge make a palpable and overriding error in finding that the easement agreement was binding and in her interpretation of the agreement?
(2) Did the application judge err in her calculation of interest owed by Hydro One to the appellants?
(3) Did the application judge err in granting the law firm intervener status?
(4) Were the costs awarded to the respondent grossly excessive?

holding:

Appeal dismissed.

reasoning:

(1) No.

The application judge found that all essential elements of the material terms were clearly set out in the agreement. Furthermore, the appellants caused delays in closing and acted unreasonably. The application judge found the easement agreement was binding and specific performance was appropriate.

(2) No.

The application judge found that the agreed upon fixed amount for interest was $379,972.87. Evidence showed Mr. F. was advised by his counsel that any change was a “deal-breaker” and Mr. F. signed the agreement with a chart attached to the agreement which showed the amount to be paid by Hydro One on closing.

(3) No.

Rule 13.01 of the Rules of Civil Procedure permitted the application judge to grant leave to the law firm to intervene. The application judge identified the factors to consider and concluded that the law firm would bring relevant facts and submissions to the inquiry and would not cause any delay or prejudice to the proceeding.

(4) No.

The application judge correctly identified that a successful litigant is generally entitled to their costs and that interveners are not normally awarded costs. She correctly noted that the law firm had a direct interest in the outcome and had been entirely successful. The application judge’s award to the law firm of substantial indemnity costs was firmly rooted in the record because the appellants made unwarranted attacks on the moral and professional integrity of the lawyer retained to negotiate the easement agreement.


1476335 Ontario Inc. v. Frezza, 2021 ONCA 732

[Brown J.A.]

Counsel:

A. Gabriele, for the moving parties
J. McLeod, for the responding party, B.F
No one appearing for the responding parties, O.F, E.F, and J.F

Keywords:Real Property, Constructive Trust, Fraudulent Conveyances, Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Certificate Pending Litigation, Adjournments, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2)

facts:

In 2019 the moving parties commenced an action that seeks, among other things, declarations that the 2003 transfer of what are now two Bonnie Doon Road properties (the “Properties”) to the respondent, B.F, was a fraudulent conveyance and that J.F holds the former transferor’s interest in the Properties on a constructive trust for the moving parties. The action also seeks an order for the issuance of a certificate of pending litigation (“CPL”) for registration against the Properties. By order dated May 28, 2021, Aston J. dismissed the moving parties’ motion for a CPL (the “Order”).

The moving parties appealed the Order to two different courts. On the one hand, they have commenced a motion for leave to appeal the Order to the Divisional Court. At the same time, they filed a notice of appeal with the Ontario Court of Appeal. The Divisional Court has put the leave motion on hold until the Ontario Court of Appeal determines whether the Order is final or interlocutory.

issues:

(1) Should an “interim order” granting leave to issue and register a CPL against the Properties be granted to the moving parties?
(2) Should the motion be adjourned on the basis that the motion materials were not served in a timely manner?

holding:

Motion adjourned. Directions provided by the Court for rescheduled hearing.

reasoning:

(1) No.

The motion judge was not prepared to determine, in effect, the very question that the moving parties had placed before the panel.

(2)

The merits of this request were not considered. The motion judge determined that he must adjourn the motion in any event to the panel hearing the jurisdiction motion which was scheduled to be heard at a later date.

Brown J.A concluded his decision by stating that one of the great on-going failures of the Ontario civil justice system is the confusion entrenched in the Courts of Justice Act concerning appeal routes from orders made by judges of the Superior Court of Justice. Such confusion inflicts unnecessary legal costs on parties, delays the resolution of appeals on their merits and, as this case illustrated, sows uncertainty about how a party can attempt to protect its rights pending appeal. Brown J.A called on the Ontario Legislature to enact legislation that creates an unambiguous “bright line” explaining where an appeal lies.


Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 722

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

Counsel:

J. Necpal, J. H. Nasseri and J. Ng, for the appellants
B. N. Radnoff and J. Suttner, for the respondents

Keywords:Civil Procedure, Contempt, Sentencing, Striking Pleadings, Default Judgment, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140(5), Rules of Civil Procedure, Rules 1.04, 30.02, 30.11, 60.11, 60.12, Falcon Lumber Limited. v. 24803375 Ontario Inc., 2019 ONSC 4280, aff’d 2020 ONCA 310, Boily v. Carleton Condominium, 2014 ONCA 574, SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, iTrade Finance Inc. v. Webworx Inc., (2005) 255 D.L.R. (4th) 748 (Ont. S.C.J.), Paul Magder Furs Ltd. v. Ontario (Attorney General), 6 O.R. (3d) 188 (Ont. C.A.), Dickie v. Dickie, 2006 CanLII 576 (ON CA), Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310

facts:

In the decision under appeal, the appellants were found in contempt of court for multiple failures to disclose their assets and to account for money paid in respect of real estate investments. The appellants do not challenge the finding of contempt, but assert that the motion judge erred in granting judgment against them for some $9 million dollars, following the sentencing hearing.

The respondents alleged that the appellants misappropriated $9 million dollars of investment funds intended for real estate projects in Brampton and Richmond Hill. The respondents started an action and obtained a Mareva injunction, which required the appellants to produce an accounting for the funds, affidavits of assets, and contact information for the recipients of all funds and documents related to the real estate projects. The appellants were found in contempt after the matter was adjourned several times in an attempt to persuade the appellants to comply, without success.

issues:

(1) What factors are relevant to determining a sanction for contempt?
(2) Can an opposing party move to strike a defence or bar a defendant from participating in the proceeding as a remedy for contempt?
(3) If such a motion is brought, are the merits of the proceeding a factor in deciding whether to grant the remedy?
(4) Is judgment directly available as a sanction for contempt?
(5) What are the steps required to attempt to obtain judgment against a party in contempt?
(6) Did the motion judge err in granting judgment against the appellants?

holding:

Appeal allowed.

reasoning:

(1)

The factors relevant to the determination of the appropriate sentence for civil contempt include:

1. The proportionality of the sentence to the wrongdoing;
2. The presence of mitigating factors;
3. The presence of aggravating factors;
4. Deterrence and denunciation;
5. The similarity of sentences in like circumstances; and
6. The reasonableness of a fine or incarceration.

(2) Yes.

A statement of defence can be struck for contempt of court. Section 140(5) of the Courts of Justice Act gives the court express power to stay or dismiss a proceeding as an abuse of process. A court may also bar a defendant in contempt from filing a statement of defence. Rule 60.11 and 60.12 of the Rules of Civil Procedure both allow a court to strike a statement of defence or bar a litigant from filing a defence.

(3) Sometimes.

In determining whether to strike a pleading, there may be some analysis of the merits of the claims. Where the remedy for contempt sought is an order barring a party from defending or an order striking a pleading, some assessment of the merits may be necessary to determine whether such an order is a proportionate response to the contempt alleged. Where the contempt is less serious, is likely to be cured, and it appears that a party has a defence of substance, it would be disproportionate to bar the defendant from participating in the action.

(4) No.

Judgment is not a remedy directly available as punishment for contempt. Where a statement of defence is struck, there may follow an unopposed motion for default judgment. The Ontario Rules of Civil Procedure do not explicitly provide that judgment may be entered against a party who has failed to comply with a court order. Rule 60.12 allows a court to make any order that is just for failure to comply with an order. Final judgment in the action is not directly available as a punishment for contempt of court in Ontario. However, judgment may be an appropriate remedy against a party who is in contempt or who has failed to comply with an interim order.

(5)

When granting judgment against a party in contempt, the merits of the claim must be addressed. Where default judgement is sought by the party moving for various and alternative relief, the moving party should expect that there will be a more searching inquiry about the merits and that the respondent will be given an opportunity to respond to the merits

(6) Yes.

While a strong response was required to sanction the appellants’ contempt, they should not have been barred from making submissions as to the merits of any defence, as it was clear that the respondents were seeking final judgment on their claims. Even if the moving party had not sought judgment on the motion, but sought only to bar the appellants from defending the action because of their contempt, some skeletal review of any defence raised may have been required to assess whether they should be barred from defending the action.

In the result, the judgment was set aside and remitted to another Superior Court judge to determine the appropriate sanction to be imposed upon the appellants.


Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728

[Feldman, Harvison Young and Thorburn JJ.A.]

Counsel:

J. B. Simpson, P. Boshyk and K. Pennington, for the appellant
P. Krauss, for the respondent

Keywords:Employment Law, Wrongful Dismissal, Just Cause, Sexual Harassment, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McKinley v. BC Tel, [2001] 2 S.C.R. 161, Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Sexual Harassment in the Workplace, 3rd ed. (Toronto: Butterworths, 2000)

facts:

The appellant employer terminated the employment of the respondent employee for just cause following an investigation into a complaint made by a female co-worker, the complainant, regarding four inappropriate comments that constituted sexual harassment. Following the investigation, the respondent was offered the opportunity to take remedial action including sensitivity training, which he agreed to, and to make a direct apology to the complainant, which he refused. Following that refusal, the appellant terminated the respondent’s employment for just cause.

The trial judge’s ultimate finding was that the employee’s conduct “did not justify a conclusion that there had been an irreparable breakdown in the employment relationship.” He went on to calculate the appropriate period of notice and awarded damages in lieu of notice.

In arriving at this conclusion, the trial judge found that although the focus of the trial was about whether the employee’s comments amounted to sexual harassment, it was unnecessary for him to categorize the comments because regardless of how they were categorized, they did not justify summary dismissal. He found that it was unclear whether the employer had concluded that the employee’s conduct amounted to sexual harassment. He also found that the employee was not dismissed for sexual harassment but for “serious and wilful insubordination”, which he presumed was a reference to an apology to the complainant.

issues:

(1) Did the trial judge make a palpable and overriding error of fact by finding that the appellant did not conclude that the respondent’s four comments to the complainant amounted to sexual harassment?
(2) Did the trial judge err in law by failing to correctly apply the test for determining whether the appellant had just cause to dismiss the respondent?
(3) Did the trial judge err by failing to find that the appellant had just cause to terminate the respondent’s employment?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The trial judge made a palpable and overriding error of fact when he stated that it was unclear whether the appellant had found that the four comments constituted sexual harassment. The evidence was clear that the appellant made that finding and communicated it to the respondent, and that he understood it.

(2) Yes.

The Court examined the trial judge’s errors in the context of the three-part test for determining whether termination for cause was justified, as set out in Dowling v. Ontario (Workplace Safety & Insurance Board).

The trial judge eschewed the analysis at the first step – determining the nature and extent of the misconduct. The refusal to apologize was only part of the misconduct that the appellant had to consider when deciding whether there has been a breakdown in the employment relationship. The degree of seriousness of the misconduct that led to the discipline, and then to the dismissal, was critical to the ultimate assessment of the propriety and proportionality of the employer’s response.

The trial judge also did not adequately address the second step of the analysis, which involves considering the surrounding circumstances. He did not discuss or weigh such factors as the Workplace Harassment Policy of the employer and the recent training the respondent had undergone with respect to the Policy. He also did not consider the senior position the respondent held and the degree of trust that arose from that in the employer-employee relationship.

When it came to the third step, the trial judge’s assessment of whether dismissal was warranted by the respondent’s misconduct was tainted by his failure to consider, as part of that misconduct, the inappropriate, sexually harassing comments that the respondent made to the complainant, that were the basis for the investigation and discipline.

(3) Yes.

Faced with the respondent’s lack of contrition, lack of understanding of the seriousness of his conduct, and his refusal to comply with the reasonable and essential requirement of an apology to the complainant and target of his comments, the appellant’s decision to terminate the respondent’s employment was a proportional and wholly warranted response.


SHORT CIVIL DECISIONS

RE/MAX Realtron Realty Inc v. 2458313 Ontario Inc., 2021 ONCA 715

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

P. Starkman and C. Zhang, for the appellant
J. Goldblatt and V. Wicks, for the respondents

Keywords: Contracts, Breach, Real Property, Real Estate Brokers, Representation Agreements, Corporate Veil, Civil Procedure, Summary Judgment, Yaiguaje v. Chevron Corp., 2018 ONCA 472, leave to appeal refused, [2018] S.C.C.A. No. 255

Khan v. 1806700 Ontario Inc., 2021 ONCA 724

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

M. K., self-represented
J. S. Chahal, for the respondent, 1806700 Ontario Inc.
M. Bélanger, for the respondent, S. Joha

Keywords: Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Machado v. Ontario Hockey Association, 2019 ONCA 210

M.E. v. Ontario, 2021 ONCA 718

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

M.E., self-represented
S. Hutchison, D. Postel and Sheldon Inkol, for the respondents

Keywords:Family Law, Child Protection, Civil Procedure, Appeals, Abuse of Process, Child, Youth and Family Services Act, 2017, ss. 87(8), 87(9), Child, Youth and Services Act, 2017, s. 142(3), Rules of Civil Procedure, Rule 2.1.01, Atlas Construction Inc. v. Brownstones Ltd., (1996), 46 C.P.C. (3d) 67 (Ont. Gen. Div.), Bryson v. Kerr, (1976), 13 O.R. (2d) 672 (Ont. Div. Ct.)


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.