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Good afternoon.

Following are this week’s summaries of the civil decisions of the Ontario Court of Appeal for the week of November 15, 2021.

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In Grand River Conservation Authority v. Ramdas, a case in which injunctions were granted to prohibit improvements to a property without permits, Justice Lauwers made some observations surrounding self-represented litigants. First, Justice Lauwers called upon judges to not only rely on counsel for a clear understanding of where things stand in the litigation, but to permit self-represented parties to explain how they understand the status quo, in order to avoid any impression of favouritism or bias. Second, he cautioned judges about the confusion self-represented litigants may experience when understanding the difference between evidence and submissions. Finally, Justice Lauwers reminded opposing counsel of their obligations to assist both self-represented litigants and the court to ensure that justice is not only done, but is seen to be done.

Other topics covered this week included the enforcement of a fence bylaw, whether a refusal to issue a certificate of pending litigation is an interlocutory or final order, fraudulent conveyances and vexatious litigants.

I would like to introduce them to a new online publication, Civil Procedure & Practice in Ontario (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. 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 of co-writing 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, to spread the word among colleagues, and to provide any feedback they may have.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Syrowik v. Wheeler, 2021 ONCA 819

Keywords: Administrative Law, Municipal Law, By-laws, Enforcement, Municipal Act, 2001, S.O. 2001, c. 25, s. 440, Wheeler v. Syrowik, 2017 ONSC 2901

Grand River Conservation Authority v. Ramdas, 2021 ONCA 815

Keywords: Municipal Law, Civil Procedure, Self-Represented Litigants, Injunctions, Adjournment, Conservation Authorities Act, Rules of Professional Conduct, Model Code of Professional Conduct, Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants, Irvine: American College of Trial Lawyers, 2009, Dhatt v. Beer, 2021 ONCA 137, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), Pintea v. Johns, 2017 SCC 23, Johansson v. Janssen, 2021 BCCA 190, 50 B.C.L.R. (6th) 122, Gardaworld Cash Services Canada Corporation v. Smith, 2020 FC 1108, Malton v. Attia, 2016 ABCA 130, 35 Alta. L.R. (6th) 27, Girao v. Cunningham, 2020 ONCA 260

1388020 Ontario Corp. v. Machnowski, 2021 ONCA 806

Keywords: Civil Procedure, Settlements, Enforcement, Summary Judgement

Lee v. Singh, 2021 ONCA 829

Keywords: Contracts, Real Property, Civil Procedure, Orders, Enforcement, Striking Pleadings, Default Judgment, Setting Aside

Ebrahimpour v. Askari, 2021 ONCA 830

Keywords: Promissory Note, Caution, Constructive Trust, Equitable Charge, Certificate of Pending Litigation, Duress, Coercion, Rules of Civil Procedure, Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157, Sadie Moranis Realty Corporation v. 1667038 Ontario Inc., 2012 ONCA 475

Ball Media Corporation v. Imola, 2021 ONCA 833

Keywords: Torts, Fraud, Conversion, Property, Fraudulent Conveyances, Resulting Trust, Civil Procedure, Summary Judgment, Family Law Act, s. 14

1476335 Ontario Inc. v. Frezza, 2021 ONCA 822

Keywords: Civil Procedure, Orders, Costs, Enforcement, Fraudulent Conveyances, Certificates of Pending Litigation, Appeals, Jurisdiction, Final or Interlocutory, Summary Judgment, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 13, 18m 19(1)(a), 19(1.2), 134(2), Rules of Civil Procedure, Rule 62.02(4), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Archer v. Archer (1975), 11 O.R. (2d) 432 (C.A.), Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, 561895 Ontario Ltd. v. Metropolitan Trust Co. of Canada (1997), 14 C.P.C. (4th) 195 (Ont. C.A.), leave to appeal to S.C.C. refused, 26191 (November 20, 1997), Skunk v. Ketash, 2016 ONCA 841, Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839

Stewart v. Fuhgeh, 2021 ONCA 824

Keywords: Civil Procedure, Vexatious Litigants, Intervenors, Leave to Appeal, Canadian Charter of Rights and Freedoms, Rules of Civil Procedure, Rule 2.1, Fuhgeh v. Stewart, 2021 ONSC 3053, Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806

Short Civil Decisions

Cao v. Markham (City), 2021 ONCA 818

Keywords: Torts, Defamation, Dereliction of Duty, Racial Discrimination, Civil Procedure, Issue Estoppel, Evidence

Royal Bank of Canada v. Mundo Media Ltd., 2021 ONCA 832

Keywords: Bankruptcy and Insolvency, Receiverships, Equitable Set-Off


CIVIL DECISIONS

Syrowik v. Wheeler, 2021 ONCA 819

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

A. Baroudi, for the appellants

D. M. Sanders, for the respondents

Keywords: Administrative Law, Municipal Law, By-laws, Enforcement, Municipal Act, 2001, S.O. 2001, c. 25, s. 440, Wheeler v. Syrowik, 2017 ONSC 2901

facts:

The appellants and the respondents own neighbouring cottages in the Municipality of Lambton Shores (the “Municipality”) on Lake Huron. In 2015, the respondents built a privacy fence (the “Fence”) that runs parallel to the east wall of their cottage and their eastern property line, which divides their land from the appellants’ land. The Fence sits adjacent to the respondents’ cottage and runs beyond their cottage towards the lake.

The appellants contended that the Fence was to high and violated the Fence By-law of the Municipality. Accordingly, in April 2018, the appellants complained to the Municipality. By email dated may 25, 2018, the Municipality indicated it had considered the complaint, and although it believed the end of the Fence closest to the lake violated a 6.5 feet height restriction in the Fence By-law, it indicated it would not be conducting any further investigation with respect to the alleged violation based on all the circumstances.

Subsequently, the appellants brought an application to enforce the Fence By-law under s. 440 of the Municipal Act. Although the application judge assumed for the purposes of the application that the Fence was “probably higher than the Municipality permits”, he nonetheless declined to make an order that the respondents remove or lower the Fence. The application judge found the Municipality had looked into and declined to enforce the Fence By-law for articulable reasons. Further, given that the Municipality had not acted unreasonably or in bad faith, he saw no basis on which to intervene and grant the relief requested.

The appellants appealed from the application judge’s decision.

issues:

(1) Did the application judge err in concluding that in order to succeed on an application to enforce a by-law under s. 440 of the Municipal Act, where a municipality has declined to do so, a taxpayer is required to show that the Municipality acted unreasonably or in bad faith in declining to enforce the by-law?

(2) Should the appellants be granted an order restraining the respondent’s alleged contravention of the Fence By-law?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

Both parties submitted, and the Court agreed, that the application judge erred in concluding that a taxpayer was required to show that the Municipality acted unreasonably or in bad faith in order to succeed on an application to enforce a by-law under s. 440 of the Municipal Act. However, the Court nonetheless held that the evidence the appellants adduced lacked sufficient detail to establish a clear breach of the Fence By-law and that they were therefore not entitled to an order restraining its contravention.

(2) No.

The Court noted that the Fence By-law’s height restrictions, as they applied to the respondent’s property, were determined by reference to the term “street”, defined in the Fence By-law to mean “a public highway which provides the principal means of vehicular access to abutting lots and includes its sidewalks and boulevards”. However, there were no “public highways” adjacent to the respondent’s property. Accordingly, whether and how the Fence By-law applied was “fraught with difficulty”.
Based on its review of the record, the Court held the appellants’ evidence was not sufficient to demonstrate whether or how the Fence By-law applied to the respondent’s property. Accordingly, the appeal was dismissed.


Grand River Conservation Authority v. Ramdas, 2021 ONCA 815

[Lauwers J.A.]

Counsel:

H. Syed, for the appellant

C.A. Brown, for the respondent Grand River Conservation Authority

D.N. Germain, for the respondent Township of Amaranth

Keywords: Municipal Law, Civil Procedure, Self-Represented Litigants, Injunctions, Adjournment, Conservation Authorities Act, Rules of Professional Conduct, Model Code of Professional Conduct, Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants, Irvine: American College of Trial Lawyers, 2009, Dhatt v. Beer, 2021 ONCA 137, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), Pintea v. Johns, 2017 SCC 23, Johansson v. Janssen, 2021 BCCA 190, 50 B.C.L.R. (6th) 122, Gardaworld Cash Services Canada Corporation v. Smith, 2020 FC 1108, Malton v. Attia, 2016 ABCA 130, 35 Alta. L.R. (6th) 27, Girao v. Cunningham, 2020 ONCA 260

facts:

The appellant owned a property in the Township of Amaranth on the edge of a wetland regulated by the Grand River Conservation Authority. She began work on the property without a permit from the Township or the Conversation Authority.

The work came to the attention of the Township and Conversation Authority and, on July 5, 2018, a Conservation Authority staff member asked the workers to stop. They did not. On July 13, 2019, the appellant was charged with violating s. 28(16) of the Conservation Authorities Act and an associated regulation. On July 19, 2018, the appellant was served with a summons to appear in court. The work continued despite the charges. A by-law enforcement officer also investigated a complaint on July 11, 2018. He delivered a stop work order and a remedial order on July 16, 2018. On August 11, 2018, the officer again attended the property regarding complaints about ongoing filling activities.

The Conservation Authority and Township brought applications for injunctions to prevent the appellant from continuing work. Lemon J. granted interim injunctions on August 27, 2018. Thereafter proceedings were adjourned several times. By order dated June 3, 2019, Coroza J. ordered that no further adjournments would be granted without leave and required the appellant to file responding materials by September 30, 2019.

The applications for a permanent injunction came before the application judge on November 12, 2019. Although the appellant’s previous counsel served responding materials on October 30, 2018, they had not been filed, nor was a factum served or filed by the appellant. The application judge did not grant a further adjournment and the hearing proceeded without evidence from the appellant.

The application judge granted the permanent injunctions. The order in favour of the Conservation Authority obliged the appellant to comply with the law. The order in favour of the Township was more extensive and required the appellant to remediate the property and to reimburse the Township for its enforcement expenses and, should she fail to comply with the order, to pay its remediation costs.

issues:

(1) Did the application judge improperly deny the appellant’s request for an adjournment?

(2) Was it inappropriate for the Conservation Authority and the Township to proceed by way of application because there were contested facts?

holding:

Appeal dismissed.

reasoning:

(1) No.

A judge has broad discretion as to whether to grant an adjournment. Further, the Court is highly deferential and will set aside adjournment refusals in limited situations.

Justice Lauwers found no basis for intervention with the application judge’s adjournment refusal. Although the application judge acted on the basis that the appellant had requested an adjournment, the request was not clear on the transcript. Additionally, the appellant did not tell the application judge what she would do with an adjournment if granted.

(2) No.

Justice Lauwers found no basis for intervention on the merits. The hearing was peremptory to the appellant. The evidence on which the respondents relied was overwhelming. While there may have been conflict on points of credibility as to who said what to whom and when, there was no doubt that the appellant proceeded with excavations on her property without the requisite permits.

Observations:

The appellant was self-represented on the appeal. Following his reasoning, Justice Lauwers provided three observations surrounding self-represented litigants.

First, Justice Lauwers called upon judges to not only rely on counsel for a clear understanding of where things stand in the litigation, but to permit self-represented parties to explain how they understand the status quo in order to avoid any impression of favouritism or bias. Second, he cautioned judges about the confusion self-represented litigants may experience when understanding the difference between evidence and submissions. Finally, Justice Lauwers reminded opposing counsel of their obligations to assist both self-represented litigants and the court to ensure that justice is not only done but is seen to be done.


1388020 Ontario Corp. v. Machnowski, 2021 ONCA 806

[Doherty, Miller and Sossin JJ.A.]

Counsel:

P. Pape, for the appellants

D. Delagran, for the respondents

Keywords: Civil Procedure, Settlements, Enforcement, Summary Judgement

facts:

The parties were business partners. A dispute between them led to litigation, followed by judicial mediation, and ultimately resolution by way of a settlement agreement. The minutes of settlement included a clause – Clause 4 – making the provision of settlement funds contingent on the respondent’s production of business records. The respondent was required to deliver up to the accountants, Fuller Landau, “all books and records of 1388020 Ontario Corp. in their possession”. Both parties were to have an opportunity to discuss “the appropriateness of productions” with Fuller Landau, after which Fuller Landau was to advise the parties “if satisfied with” the production of records. After Fuller Landau advised that it was satisfied, the appellant was to advance the agreed settlement funds. Clause 5 provided that any dispute arising out of the minutes was to be submitted to the judge who presided over the mediation for determination.

There was a disagreement between the parties as to the sufficiency of the records produced by the respondent. The respondent’s position was that he satisfied his obligation under Clause 4 by producing all the financial statements and tax returns he had in his possession. The appellant argued this was not sufficient, and demanded production of all supporting records as well. Although Fuller Landau initially agreed with the appellant on its understanding that the minutes of settlement required production of supporting records, it ultimately changed its position and confirmed to both sides that it was satisfied with what the respondent had produced.

The appellant refused to advance the settlement funds on the basis that the productions were not sufficient, such that Fuller Landau could not be satisfied and was not satisfied with the production.

The respondent brought a summary judgment motion to enforce the terms of settlement. The motion judge granted summary judgment, enforcing the minutes of settlement.

issues:

(1) Did the motion judge err in finding that Fuller Landau was ultimately satisfied with the production received?

(2) Did the motion judge err by not considering early correspondence which showed that Fuller Landau had initially taken the position that the minutes of settlement required the respondent to produce supporting documents?

holding:

Appeal dismissed.

reasoning:

(1) No.

On October 10, 2019, Fuller Landau emailed counsel for the appellant and advised that “(b)ased on [the respondents] confirmation we are satisfied with the production of those records.” Counsel repeatedly pressed the issue with Fuller Landau, questioning how it could be satisfied with the production. Fuller Landau reiterated on October 11, 2019 that it believed that there are “no further documents available to deliver to our office”. It asked counsel to provide it with a detailed list of documents it believed were missing. The motion judge noted that there was no evidence of any reply to that request. Fuller Landau was not obligated to provide any further justification of its decision.

(2) No.

Fuller Landau’s initial interpretation of its role under the minutes of settlement was not dispositive of any issue. Further, the minutes of settlement did not specify what criteria Fuller Landau should use to determine whether production was satisfactory. Fuller Landau was entitled to reject its initial interpretation of the minutes of settlement as mistaken, as it evidently did.


Lee v. Singh, 2021 ONCA 829

[Feldman, van Rensburg and Coroza JJ.A]

Counsel:

M. Singh, speaking for the appellant

A. Mazinani and E.E. Mazinani, for the respondent

Keywords: Contracts, Real Property, Civil Procedure, Orders, Enforcement, Striking Pleadings, Default Judgment, Setting Aside

facts:

The appellant entered into an arrangement with the respondent relating to the purchase of a home in Oshawa, Ontario. The appellant lived in the home with her spouse and their family. A dispute arose between the parties as to the ownership of the home. The respondent’s position was that he is the lawful owner of the property and has paid all costs towards the home. The appellant filed a statement of defence and counterclaim that the respondent held the property in trust for her. The motion judge struck the appellant’s pleadings because she had not complied with previous orders of the Superior Court of Justice to pay occupation rent. Once the appellant’s pleadings were struck, the respondent obtained default judgment for possession of the home.

issues:

(1) Did the motion judge err by striking the appellant’s pleadings based on the record before him?

holding:

Appeal allowed.

reasoning:

(1) No.

The motion judge was entitled to strike the appellant’s pleadings based on the record before him and that he committed no error in doing so. However, during oral argument, the appellant advised the court that because he had recently found work, the appellant could satisfy the outstanding arrears shortly and that the litigation was ready to proceed in the Superior Court of Justice. The panel directed that if the appellant provided funds to counsel for the respondent in the amount of $49,500 by noon on November 5, 2021, the appeal would be allowed, and the order striking pleadings would be set aside along with the default judgment that followed it.

In light of the information received from the parties and the fact that the appellant paid the full amount claimed in arrears, the orders striking the appellant’s pleadings should be set aside. The respondent now having now received the arrears, the Court saw no identifiable prejudice to the respondent in proceeding with the litigation. In the circumstances of this case, the striking of the appellant’s pleadings was not a proportionate response.


Ebrahimpour v. Askari, 2021 ONCA 830

[Fairburn A.C.J.O., Roberts J.A. and Van Melle J. (ad hoc)]

Counsel:

J. A. Howlett, for the appellants

D. M. Bertao, for the respondent

Keywords: Promissory Note, Caution, Constructive Trust, Equitable Charge, Certificate of Pending Litigation, Duress, Coercion, Rules of Civil Procedure, Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157, Sadie Moranis Realty Corporation v. 1667038 Ontario Inc., 2012 ONCA 475

facts:

The appellants appealed an order made under rule 45.02 of the Rules of Civil Procedure, that the amount of $550,000 be paid into court pending the resolution of the parties’ dispute.

The respondent loaned funds and worked on a house building project with the appellants. The parties had a falling out. The respondent maintained that the appellants failed to repay the monies owing to him under a promissory note, pay him his share of the profits from the project, and compensate him for his services. Without advising the respondent, the appellants sold the house for $3,250,000. The respondent registered a caution on the property when he learned about the sale.

Before closing, the parties agreed that the caution would be removed in exchange for the appellants providing an irrevocable direction that $550,000 of the net proceeds of sale would be held in trust pending resolution of the parties’ respective claims. The respondent commenced an action claiming:

i. an equitable charge against $465,000 of the net proceeds from the house sale for the debt under the promissory note;
ii. a constructive trust or equitable charge over 25% of the net profit of the project; and
iii. a constructive trust or equitable charge over $72,000 of the net sale proceeds for alleged unpaid wages.

The appellants brought an application to set aside the irrevocable direction and for a declaration that the caution was invalidly registered in the first place. They sought an order releasing to them all of the proceeds of sale held in trust. The respondent brought a cross-application under rule 45.02 to have the proceeds of sale paid into court. The application judge dismissed the appellants’ application and allowed the respondent’s application.

issues:

(1) Did the application judge err in failing to find that, had the caution not been deleted, it would have been set aside because the respondent did not satisfy the test for a certificate of pending litigation?

(2) Did the application judge err in failing to find that the irrevocable direction was unenforceable because it was procured by economic duress caused by the invalid registration of the caution?

(3) Did the application judge err in failing to find that the test under rule 45.02 had not been met such that the funds ought to be paid into court?

holding:

Appeal dismissed.

reasoning:

(1) No
(2) No

There was no error in the application judge’s decisions.

The withdrawal of the caution was based upon a negotiated agreement reached between the parties, which were both represented by counsel, who all agreed that $550,000 would be held in trust. This context belied any suggestion that a certificate of pending litigation would not have been available or that there was a “coercion of will” sufficient to set aside the irrevocable direction.

(3) No

The finding that the respondent satisfied the criteria for an order under rule 45.02 was amply supported by the record. The parties’ agreement that the loan would be repaid, the profits shared, and the respondent’s wages paid from the sale of the property raised a serious issue to be tried regarding the respondent’s claim to the funds by way of the remedies of constructive trust or equitable charge. The balance of convenience favoured granting the relief sought by the respondent. The respondent will suffer substantial prejudice if the funds are dissipated before the parties’ dispute is resolved.


Ball Media Corporation v. Imola, 2021 ONCA 833

[Fairburn A.C.J.O., Roberts J.A. and Van Melle J. (ad hoc)]

Counsel:

R. Di Gregorio and C. Ellis, for the appellant

M. A. Jaeger, for the respondent

Keywords: Torts, Fraud, Conversion, Property, Fraudulent Conveyances, Resulting Trust, Civil Procedure, Summary Judgment, Family Law Act, s. 14

facts:

The appellants appealed from an order that $136,434.87, held in court, be paid to the respondent in partial satisfaction of summary judgment granted against P. I.; L. I. is P. I.’s husband and was the appellant in this proceeding.

The money held in court was the net proceeds from the sale of the I. home, which had been jointly owned by the I.’s until April 29, 2009, when the appellant transferred his interest to his wife for the purpose of insulating the property against a potential claim by the appellant’s former employer.

The house was sold six years after the transfer, and by that time P. I.’s employer had started an action against her for civil fraud, conversion, and misappropriation of funds. Therefore, the money from the sale was deposited into court with the I.’s consent to the credit of the civil action brought by the respondent.

Ultimately, P. I. was convicted of fraud and possession of stolen property. The respondent successfully moved for summary judgment against P. I. as the court imposed a $500,000 restitution order against P.I. in favour of the respondent. The respondent also obtained an order for the payment of all monies held in court from the sale of the home, which the appellant appealed from as he contended half of the money was his because he enjoyed a resulting trust over it.

issues:

(1) Did the motion judge err in her application of the resulting trust doctrine or by proceeding on the erroneous premise that the presumption of resulting trust under s. 14 of the Family Law Act is only applicable in Family law proceedings?

(2) Was there insufficient evidence from which to draw the inference that the appellant had gifted the house to his wife?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court noted the motion judge’s reference to any rights the appellant may have had regarding the net proceeds in Family law proceedings signified the basis on which she factually distinguished this particular case, rather than as a statement of legal principle as to when the presumption of resulting trust between spouses under s. 14 of the Family Law Act may be invoked.

(2) No.

The Court held the inferences drawn by the motion judge were available to her on the record, and that she clearly considered the material issue of the appellant’s intention in transferring his interest in the home to his wife and canvassed the evidence relevant to that issue. Accordingly, the Court saw no basis to interfere with the motion judge’s order.


1476335 Ontario Inc. v. Frezza, 2021 ONCA 822

[Feldman, van Rensburg and Coroza JJ.A.]

Counsel:

A. J. Gabriele, for the moving parties

D. J. Kirby, for the responding party B.F.

No one appearing for the responding parties O.F. , E.A.F. and J.F.

Keywords: Civil Procedure, Orders, Costs, Enforcement, Fraudulent Conveyances, Certificates of Pending Litigation, Appeals, Jurisdiction, Final or Interlocutory, Summary Judgment, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 13, 18m 19(1)(a), 19(1.2), 134(2), Rules of Civil Procedure, Rule 62.02(4), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Archer v. Archer (1975), 11 O.R. (2d) 432 (C.A.), Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, 561895 Ontario Ltd. v. Metropolitan Trust Co. of Canada (1997), 14 C.P.C. (4th) 195 (Ont. C.A.), leave to appeal to S.C.C. refused, 26191 (November 20, 1997), Skunk v. Ketash, 2016 ONCA 841, Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839

facts:

The moving parties are the plaintiffs in an action seeking to set aside three alleged fraudulent conveyances. In the current action, the plaintiffs alleged that during the prior litigation, which was dismissed in 2016 and resulted in a significant costs award in favour of the current plaintiffs, the current defendants E.A.F, O.F., and Frezza Management Inc. fraudulently transferred three properties to J.F. and B.F. for nominal consideration. The plaintiffs maintained that, as a result of these transfers, they were unable to enforce the costs order from the prior litigation against those defendants. They commenced the action to set aside the fraudulent conveyances against both the transferors and the recipients of the properties, the current defendants, and sought a certificate of pending litigation to prevent the disposal of the properties.

The plaintiffs’ motion for a certificate of pending litigation over two properties that are now owned by B.F. was dismissed by the motion judge on the basis that the fraudulent conveyance action was statute-barred. He also found that, in any event, a balancing of the equities favoured the defendants. The plaintiffs took two steps to appeal: they sought leave to appeal to the Divisional Court on the basis that the order denying the certificate may be interlocutory, and at the same time they filed a notice of appeal to the Court on the basis that the order may be final. The appellants adopted this unusual procedure on the basis that they were uncertain whether the motion judge’s order was final or interlocutory.

There were two motions before the Court. The moving parties asked, and the Divisional Court agreed, to hold the leave motion in abeyance while a motion for directions was brought in the Court of Appeal to determine the jurisdiction issue. The moving parties also brought a second motion in the Court asking it to grant leave to issue and register a certificate of pending litigation as interim relief pending appeal. Brown J.A., sitting in chambers, referred the interim relief motion to the panel to be heard following the panel’s determination whether the Court had the jurisdiction to hear the appeal: 1476335 Ontario Inc. v. Frezza, 2021 ONCA 732. The panel heard both motions.

issues:

(1) Was the order under appeal a final or an interlocutory order?

(2) Where the Court does not have jurisdiction over the appeal, can it make an interim order pending the appeal?

holding:

Appeal quashed.

reasoning:

(1) Interlocutory order.

The order sought to be appealed in this case was an order denying leave to issue and register a certificate of pending litigation. A number of authorities from the Court have held that an order granting or lifting a certificate of pending litigation is an interlocutory order. The reason is that the granting or lifting of the certificate does not finally determine the litigation, which is ongoing. The refusal to grant a certificate is analogous. It does not finally determine any issue in the litigation, which remains ongoing. It is therefore an interlocutory order. As a result, the appeal does not lie to the Court of Appeal but to the Divisional Court, with leave.

The appellants also asked the Court whether the order could be viewed as final based on the reasons of the motion judge. The motion judge’s primary reason for denying the certificate was that the action was statute-barred. The answer was no: the reasons for denying the motion for a certificate of pending litigation were not binding on the trial or summary judgment judge. The reasons did not constitute the final determination of the limitation period issue because the court was not asked to determine that issue for the purpose of granting or denying judgment. The full record for finally determining the issue may or may not have been placed before the motion judge, but only enough to allow the motion judge to make or deny the discretionary order that was sought. In any event, the court was not asked to make a final determination of the limitation issue.

(2) No.

Where the Court does not have jurisdiction to hear the appeal, it cannot make an interim order because such an order can only be made “pending the appeal”.

However, there have been rare occasions in the past where an appeal has been wrongly commenced in the Court and proceeded to an oral hearing before anyone realized that the appeal was in the wrong court, and where, on consent of all parties, the Court has requested the authority of the Chief Justice of the Superior Court to sit as the Divisional Court in order to save time and cost: Courts of Justice Act, ss. 13 and 18; Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839.

This was not an appropriate case to seek to apply this procedure. The appeal to the Court was not brought by mistake. The appellants have their leave to appeal motion ready to proceed in the Divisional Court. The appellants may seek interim relief from the Divisional Court, if they decide to proceed with the appeal to that court.


Stewart v. Fuhgeh, 2021 ONCA 824

[Gillese, Trotter, and Nordheimer JJ.A.]

Counsel:

W.N.F. in person

No one appearing for the responding parties

Keywords: Civil Procedure, Vexatious Litigants, Intervenors, Leave to Appeal, Canadian Charter of Rights and Freedoms, Rules of Civil Procedure, Rule 2.1, Fuhgeh v. Stewart, 2021 ONSC 3053, Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806

facts:

On April 26, 2021, the motion judge dismissed W.N.F’s appeal proceedings in the Divisional Court pursuant to Rule 2.1 of the Rules of Civil Procedure. The motion judge reviewed the law respecting, and the principles applicable to, such motions. The motion judge concluded that there was no merit to the appeal and also that it was abusive, as it attempted to relitigate matters decided some years earlier. The motion judge also found that the appeal displayed “the hallmarks of vexatious proceedings”. W.N.F filed a notice of motion for leave to appeal to the Court from the motion judge’s order. The intervenors sought an order under Rule 2.1 to dismiss the motion for leave to appeal.

issues:

(1) Should the Court dismiss the motion for leave to appeal under Rule 2.1?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The Court found W.N.F’s notice of motion did not raise any arguable ground of appeal with respect to the motion judge’s analysis and conclusion. W.N.F’s belated attempt to invoke five different sections of the Canadian Charter of Rights and Freedoms did not assist in this regard. Rather, W.N.F’s efforts to take further steps in a proceeding that has been determined to be abusive in nature, must itself be seen as abusive. Thus, the Court held that W.N.F’s motion for leave to appeal constituted a proceeding that appeared on its face to be frivolous or vexatious or otherwise an abuse of the process of the court as defined in Rule 2.1.


SHORT CIVIL DECISIONS

Cao v. Markham (City), 2021 ONCA 818

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

Q. Cao, acting in person

D. Boghosian and M. Brown, for the respondents

Keywords: Torts, Defamation, Dereliction of Duty, Racial Discrimination, Civil Procedure, Issue Estoppel, Evidence

Royal Bank of Canada v. Mundo Media Ltd., 2021 ONCA 832

[Fairburn A.C.J.O., Roberts J.A. and Van Melle J. (ad hoc)]

Counsel:

R. Howell and D. Schatzker, for the appellant Vdopia Inc.

S. McGrath and R. Bengino, for Ernst & Young Inc., in its capacity as court-appointed receiver in the within proceeding

Keywords: Bankruptcy and Insolvency, Receiverships, Equitable Set-Off


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.