The headline decision this week is the 47-page decision of Fresco v. Canadian Imperial Bank of Commerce, a class action involving over 30,000 CIBC employees. The Court upheld the motion judge’s finding on motions for summary judgment that the bank breached the overtime provisions in the Canada Labour Code and that, therefore, liability to the class for overtime pay had been established. The Court also upheld the motion judge’s decision to allow the issue of aggregate damages to be determined as a common issue, notwithstanding that the Court of Appeal had previously refused to certify aggregate damages as a common issue. Following the Supreme Court’s decision in Pro-Sys Consultants Ltd. v. Microsoft Corporation, which clarified/changed the law after the Court’s initial decision not to certify aggregate damages in this case, the Court held that the ultimate decision lay with the trial judge, and that the Court’s prior decision was not res judicata. Finally, the Court upheld the motion judge’s decision to have the limitation period defences determined on an individual basis.

In Paddy-Cannon v. Canada (Attorney General), a historical abuse case, the Court overturned the trial judge’s findings that the appellants were not reliable witnesses as a result of the passage of time. A new trial was ordered.

In Joy Estate v. McGrath, the Court held the application judge erred in finding that the deceased did not have testamentary capacity when he wrote a 2-page suicide note that the parties agreed met the requirements of a Holograph Will. The fact the deceased had consumed drugs and alcohol the day before was not sufficient to conclude that he lacked capacity. The Court also outlined the principles applicable to costs in the estates context. The traditional approach to costs in estate litigation is to have the parties’ costs paid from the testator’s estate. The public policy considerations for that approach include the need to give effect to valid wills that reflect the intention of competent testators and the need to ensure that estates are properly administered. Accordingly, if there are reasonable grounds on which to question the execution of a will or the testator’s capacity to make the will, it is in the public interest that such questions be resolved without cost to those questioning the will’s validity. And, where the difficulties or ambiguities that gave rise to the litigation are caused by the testator, it is again appropriate for the testator’s estate to bear the costs of their resolution. When deciding costs in estate litigation, the Court must, at first instance, carefully scrutinize the litigation to determine whether one or more of the public policy considerations applies. If so, as a general principle, the parties’ reasonable costs are to be paid from the testator’s estate.

Other topics covered this week included limitation periods and discoverability in the arbitration context, setting aside an administrative dismissal for delay, setting aside a noting in default and appellate jurisdiction (final or interlocutory) in an assessment of legal fees case.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Paddy-Cannon v. Canada (Attorney General), 2022 ONCA 110

Keywords: Intentional Torts, Assault, Battery, Duty of care, Crown Liability, Breach of Fiduciary Duty, Evidence, Witnesses, Reliability, Credibility, R. v. W. (R.), [1992] 2 S.C.R. 122, R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, R. v. Pindus, 2018 ONCA 55, R. v. Radcliffe, 2017 ONCA 176, R. v. Sanichar, 2012 ONCA 117, rev’d, 2013 SCC 4

Franchetti v. Huggins, 2022 ONCA 111

Keywords: Civil Procedure, Noting in Default, Setting Aside, Rules of Civil Procedure, Rules 1.04(1), 2.01(1)(a), 18.01, 18.02, 19.01, 19.02(1), 19.03 Intact Insurance Company v. Kisel, 2015 ONCA 205, Penner v. Niagara, 2013 SCC 19, H.B. FullerCompany v. Rogers, 2015 ONCA 173, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194

Burgess v. University Health Network, 2022 ONCA 105

Keywords: Civil Procedure, Administrative Dismissal for Delay, Setting Aside, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 30, Rules of Civil Procedure, Rule 48.14, 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, Faris v. Eftimovski, 2013 ONCA 360, Mihoren v. Quesnel, 2021 ONCA 898

Maisonneuve v. Clark, 2022 ONCA 113

Keywords: Contracts, Settlements, Arbitration Agreements, Civil Procedure, Limitation Periods, Discoverability, Appropriate Means, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, section 5(1)(a)(iv), Insurance Act, R.S.O. 1990, c. I.8, section 275(4), Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, PQ Licensing S.A. v. LPQ Central Canada Inc., 2018 ONCA 331, L-3 Communication SPAR Aerospace Limited v. CAE Inc., 2010 ONSC 7133

Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115

Keywords: Labour and Employment Law, Overtime Pay, Breach of Statute, Constitutional Law, Civil Procedure, Class Proceedings, Limitation Periods, Discoverability, Appropriate Means, Common Issues, Aggregate Damages, Res Judicata, Canada Labour Code, R.S.C. 1985, c. L-2., s. 174, Class Proceedings Act, 1992, S.O. 1992, c.6, s. 28, Canada Labour Standards Regulations, C.R.C. 1978, c. 986, s. 24(2), Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., s. 5, Constitution Act, 1867, s. 92(13), Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444, leave to appeal refused, [2012] S.C.C.A. No. 379, Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 75, Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 4288, Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 6098, Machtinger v. HOJ Industries, [1992] 1 S.C.R. 986, Cooper Tool Group Ltd. v. U.S.W.A., Local 6497 (1975), 10 L.A.C. (2d) 407 (Ont. Arb. Bd.), Lafarge Canada Inc. Construction Materials v. CMSG, [2000] C.L.A.D. No. 376, Koscis Transport Ltd. and Chabaylo (Re), [2003] C.L.A.D. No. 519, Fresco v. Canadian Imperial Bank of Commerce, 2010 ONSC 4724, T-Line Services Ltd. v. Morin, [1997] C.L.A.D. No. 422, RSB Logistic Inc. v. Hale, [1999] C.L.A.D. No. 548. Kindersley Transport Ltd. v. Semchyshen, [2002] C.L.A.D. No. 4., Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148, Cavanaugh v. Grenville Christian College, 2021 ONCA 755, Insurance Corp. of British Columbia and COPE Local 378 (Unpaid Overtime Claim), Re, [2012] B.C.W.L.D. 7745, Baroch v. Canada Cartage, 2015 ONSC 40, Shah v. LG Chem Ltd., 2018 ONCA 819,  leave to appeal refused, [2018] S.C.C.A. No. 520. Markson v. MBNA Canada Bank, 2007 ONCA 334, leave to appeal refused, [2007] S.C.C.A. No. 346, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 5, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Vezina v. Loblaw Companies Ltd. (2005), 17 C.P.C. (6th) 307 (Ont. S.C.), Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, leave to appeal refused, [2019] S.C.C.A. No. 284., British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 , Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 168., Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, R. v. Henry, 2005 SCC 76, Presley v. Van Dusen, 2019 ONCA 66, Presidential MSH Corp. v. Marr Foster & Co. LLP, 2017 ONCA 325, Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, leave to appeal refused, [2016] S.C.C.A. No. 509, Gillham v. Lake of Bays (Township), 2018 ONCA 667, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Pioneer Corp. v. Godfrey, 2019 SCC 42, R. v. Drury, 2020 ONCA 502, Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, Ontario Deputy Judges Assn. v. Ontario (2006), 80 O.R. (3d) 481

McGrath v. Joy, 2022 ONCA 119

Keywords: Wills and Estates, Holograph Wills, Interpretation, Testamentary Capacity, Civil Procedure, Costs, Public Policy Considerations, Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 6, Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (U.K. Queen’s Bench Div.), Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), Zimmerman v. Fenwick, 2010 ONSC 3855, Neuberger Estate v. York, 2016 ONCA 303, Housen v. Nikolaisen, 2002 SCC 33, Vout v. Hay, [1995] 2 S.C.R. 876, Skinner v. Farquharson (1902), 32 S.C.R. 58, Dujardin v. Dujardin, 2018 ONCA 597, Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), Sawdon Estate v. Sawdon, 2014 ONCA 101

Singh v. Heft, 2022 ONCA 135

Keywords: Contracts, Solicitor and Client, Fees, Assessments, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Solicitors Act, R.S.O. 1990, c. S.15, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), s. 19(1)(b), Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 (C.A.), Paulpillai Estate v. Yusuf, 2020 ONCA 655, Somerleigh v. Brayshaw (1993), 15 C.P.C. (3d) 160 (Ont. Div. Ct.), Karbaliotis v. Anaheim Unit Investors (1996), 89 O.A.C. 58 (C.A.), Lala v. Basman Smith LLP, 2017 ONCA 614, CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare Trust Co. of Canada, 2015 ONCA 846, Ball; Stoiantsis v. Spirou, 2008 ONCA 553, Hopkins v. Kay, 2014 ONCA 514, Abbott v. Collins (2002), 62 O.R. (3d) 99 (C.A.)

Short Civil Decisions

Silvera v. Taylor, 2022 ONCA 120

Keywords: Civil Procedure, Settlements, Enforcement, Rules of Civil Procedure, Rule 49.09

Philbert v. Taylor, 2022 ONCA 122

Keywords: Civil Procedure, Appeals, Vexatious Litigants, Rules of Civil Procedure, Rule 2.1.01, Rizzi v. Mavros, 2007 ONCA 350, Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, Friedrich v. Metropolitan Toronto Condominium Corporation No. 1018, 2019 ONCA 216, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497

Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2022 ONCA 127

Keywords: Civil Procedure, Summary Judgment, Costs

1758704 Ontario Inc. v. Priest, 2022 ONCA 126

Keywords: Civil Procedure, Appeals, Reconsideration, Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942, RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP, 2020 ONCA 182

CIVIL DECISIONS

Paddy-Cannon v. Canada (Attorney General), 2022 ONCA 110

[Lauwers, Coroza and Sossin JJ.A.]

Counsel:

R. E. Christie, acting in person

M. J. Prestell and C. Barbeau, for the respondent K. C.

D. Luxat, for the respondent the Attorney General of Canada

Keywords: Intentional Torts, Assault, Battery, Duty of care, Crown Liability, Breach of Fiduciary Duty, Evidence, Witnesses, Reliability, Credibility, R. v. W. (R.), [1992] 2 S.C.R. 122, R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, R. v. Pindus, 2018 ONCA 55, R. v. Radcliffe, 2017 ONCA 176, R. v. Sanichar, 2012 ONCA 117, rev’d, 2013 SCC 4

facts:

The three appellants are sisters and are all members of the Thunderchild First Nation, an independent Cree First Nations band in Turtleford, Saskatchewan. The respondent is their aunt. The appellants lived with their aunt and her family when they were children, during which time they allege that their aunt physically abused them. The allegations relate to events that began over fifty years ago, when the appellants were very young.

The appellants sued their aunt for damages, alleging assault and battery. They also claimed damages against the Attorney General of Canada (“Canada”) for breaching its fiduciary duty to protect them from physical abuse by their aunt. The trial judge found that the appellants were credible witnesses. However, he was not persuaded that the appellants were physically abused by their aunt. He concluded that the passage of several decades made it impossible for him to determine that the appellants’ evidence was reliable. He dismissed the claim. Since the claim against Canada was predicated on the allegation of physical abuse, that claim was also dismissed.

The appellants appealed, alleging several errors in the trial judge’s analysis.

issues:

(1) Did the trial judge improperly determine the appellants were not reliable witnesses because of the passage of time?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The trial judge’s analysis was so brief, the passage of time treated as nearly determinative, and the appellants’ testimony criticized without sufficient explanation or acknowledgement of context. Accordingly, the trial judge’s finding that the appellants were unreliable was arrived at by an error in principle. A new trial was warranted.

On appeal, there is a presumption that the trial judge correctly applied the law, particularly regarding the relationship between reliability and credibility. On a functional and contextual reading of trial reasons, the focus is whether the trial judge turned his mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.

When adult witnesses testify about events that occurred when they were children, in general their evidence should be assessed by the criteria applicable to adult witnesses. However, inconsistencies and lack of memory in that testimony must be considered in the context of the age of the witness at the time of the events.

The trial judge’s very brief analysis reveals that he was mindful that the events had occurred some time ago, but allowed the passage of time to overwhelm his analysis. His criticisms of the appellants’ testimony indicate that he was not alive to the principles for assessing adult testimony of childhood abuse.

First, the trial judge criticized the appellants’ evidence as framed in generalizations and lacking in detail because they used the phrases “Sometimes”, “I believe”, and “As I recall”. However, the appellants were children when the assaults allegedly occurred. The mere fact that they prefaced many of their answers with these qualifications did not, by itself, mean that their evidence was unreliable. It is unsurprising that a witness who is testifying to things that occurred decades ago would use these words. The record also does not support the trial judge’s finding that their evidence lacked detail. Several examples in their accounts reveal a high level of detail, suggesting the trial judge was overly critical of this evidence and overemphasized the passage of time.

Second, the trial judge did not point to any internal inconsistencies in the appellants’ individual accounts but noted that they were not consistent with each other’s descriptions of the mechanics of the beatings. It is unclear why this inconsistency about being beaten collectively or individually disqualified the appellants’ testimony about events which occurred when they were all children. The trial judge did not explain how these contradictions detracted from the core of their story, and reviewing his reasons in light of the record, it remained unclear as to why he did not consider these inconsistencies as “peripheral”. Inconsistencies can be a significant factor in determining the credibility and reliability of that evidence, however, the analysis here was too sparse.

Franchetti v. Huggins, 2022 ONCA 111

[Lauwers, Huscroft and Coroza JJ.A.]

Counsel:

R. Botiuk, for the appellants

B. Salsberg, for the respondents

Keywords: Civil Procedure, Noting in Default, Setting Aside, Rules of Civil Procedure, Rules 1.04(1), 2.01(1)(a), 18.01, 18.02, 19.01, 19.02(1), 19.03 Intact Insurance Company v. Kisel, 2015 ONCA 205, Penner v. Niagara, 2013 SCC 19, H.B. FullerCompany v. Rogers, 2015 ONCA 173, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194

facts:

The respondent, C.F, was assaulted at Jovy’s Bar (“Jovy’s”) in 2011. The statement of claim was served on Jovy’s and one of their employees in 2013. In March 2014, counsel for the respondents advised the appellants that they would be noted in default if they did not file a statement of defence. After getting no response, counsel noted the appellants in default on March 13, 2014. The appellants did not request an extension of time or a waiver of the requirement that a statement of defence be filed.

This is an appeal by Jovy’s and its owner Z.Z, from the motion judge’s decision refusing to set aside their noting of default.

issues:

(1) Did the motion judge err in refusing to set aside the appellants noting in default?

holding:

Appeal dismissed.

reasoning:

(1) No.

Whether or not to set aside a noting of default is a discretionary decision. Such discretionary decisions are entitled to appellate deference, but “will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice”. Further, “reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations”.

Rules 18.01 and 18.02 oblige a defendant to respond with a statement of defence within 20 to 30 days of the date the defendant is served with the statement of claim. Under Rule 19.01, the claimant may have the defendant noted in default. The court agreed with the appellants’ assertion that their defence on the merits – that the attack at Jovy’s Bar was unforeseen and unforeseeable – was arguable and had an air of reality. With respect to the delay, appellants’ counsel admitted that the initial decision not to defend was “strategic” or tactical, and that the appellants proceeded on the erroneous advice that the absence of insurance on the bar made them unlikely targets for legal action. The court was reluctant to provide relief to parties who make strategic decisions that turn out to be wrong. The Court agreed that matters should be determined on their merits and not by technical defaults, however they also agreed with the motion judge that parties must be responsible for their actions. The Court further determined that setting aside the noting in default would cause undue prejudice to the respondent.

Burgess v. University Health Network, 2022 ONCA 105

[Huscroft, Sossin and Favreau JJ.A.]

Counsel:

M. P. Forget and R. McIntyre, for the appellants

D. Girlando, for the respondent University Health Network

A. Kalamut and E. Bruneau, for the respondents Dr. L.D. and Dr. A.A.

Keywords: Civil Procedure, Administrative Dismissal for Delay, Setting Aside, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 30, Rules of Civil Procedure, Rule 48.14, 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, Faris v. Eftimovski, 2013 ONCA 360, Mihoren v. Quesnel, 2021 ONCA 898

facts:

S.B. injured his arm in a cycling accident in 2011 while working as a by-law enforcement officer for the City of Ottawa. He received benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the “WSIA”).

On June 17, 2014, on the eve of the expiry of the limitation period, the appellants commenced an action by Statement of Claim. They alleged that the care S.B. received at the respondent hospital, including surgery on his right arm, made the injury he sustained worse. The appellants also claimed against the respondent physicians who provided him with treatment. None of the respondents filed defences.

The WSIA subrogates any action of a plaintiff to his or her employer. In this case, the plaintiff’s action was subrogated to the City of Ottawa (the “City”). Under s. 30 of the WSIA, the appellants were required to obtain the City’s consent prior to issuing their claim. It was in the City’s discretion whether to grant that consent.

The appellants accepted that the action could only be commenced or continued with the City’s consent. They first contacted the City to obtain its consent in 2015. Based on oral communications, appellants’ counsel proceeded from that time forward on the basis that the City’s consent was forthcoming. The respondents, advised of the purported consent in 2015, requested that it be provided to them in writing. The City, however, did not provide the requested consent in writing. Negotiations proceeded between 2015 and 2017 on the terms of the agreement between the City and the appellants. No agreement was reached.

The negotiations ended in 2017, and no further steps were taken to obtain the City’s consent for over two years. In June 2019, just before the matter was to be administratively dismissed for delay, the appellants served their notice of motion for a status hearing to extend the set down date. While the original return date for the status hearing was September 2019, several adjournments followed and the status hearing did not occur until January 2021.

In November 2020, two months before the parties were scheduled to appear on the status hearing, the appellants finally obtained the City’s written consent.

At the status hearing, pursuant to r. 48.14 of the Rules of Civil Procedure, the motion judge dismissed the motion to extend the set down date and dismissed the action for delay. He held that the appellants failed to provide an acceptable explanation for the delay in prosecuting their action, and that the appellants had failed to rebut the presumption of prejudice that would result if the action were permitted to proceed.

This appeal was from the order of the motion judge dismissing the appellants’ motion to extend the timetable and dismissing the appellants’ action.

issues:

(1) Did the motion judge misapprehend or overlook certain evidence, resulting in palpable and overriding errors?

holding:

Appeal dismissed.

reasoning:

(1) No.

All parties agreed that the motion judge was entitled to deference in his decision to dismiss the motion for an extension of time and to dismiss the action for delay. The dismissal order may only be set aside if the motion judge made a palpable and overriding error of fact, or reached a decision based on an erroneous legal principle reviewable on a correctness standard: 1196158 Ontario Inc. v. 6274013 Canada Ltd.

Rule 48.14 requires that courts balance the objective of resolving disputes on their merits with the objective of resolving disputes in a timely and efficient manner in order to maintain public confidence in the administration of justice. The role of the judge presiding over a status hearing is to ensure that justice is served for all of the litigants: 1196158 Ontario Inc.

On a motion under Rule 48.14, the moving party must establish that (a) there was an acceptable explanation for the delay; and (b) if the action were allowed to proceed, the defendant(s) would suffer no non-compensable prejudice; Faris v. Eftimovski. In this case, the motion judge found that the appellants had not established either prong of the test.

In the Court’s view, nothing in this case turned on the way in which the appropriate test was described. The motion judge considered the record, including the relevant context, and concluded that the delay was both inordinate and not acceptably explained by the appellants. That finding was amply justified.

The respondents argued that, while the inordinate delay was in itself a sufficient basis to decide the motion, the motion judge reasonably found that the appellants had failed to rebut the presumption of prejudice caused by the unexplained delay. According to the respondents, it was open to the motion judge to determine that the memories of individuals, including the yet to be identified nurse defendant Jane Doe, would be compromised, and that the fairness of any trial would be jeopardized.

The Court agreed. This was an unusual case, in that the action was never properly commenced. Moreover, by the time the matter got to the motion judge, virtually no steps had been taken. No statement of defence was filed – with the appellants’ consent – no affidavits of documents had been exchanged, and no examinations for discovery had taken place. This Court has recognized that the passage of an inordinate length of time after a cause of action arises presumptively gives rise to trial fairness concerns. As Sharpe J.A. stated in 1196158 Ontario Inc., at para. 42: “If flexibility is permitted to descend into toleration of laxness, fairness itself will be frustrated. As the status hearing judge recognized, even if there is no actual prejudice, allowing stale claims to proceed will often be unfair to the litigants.” The problem was pronounced in this case, and the appellants presented no persuasive argument to rebut this presumption.

In the Court’s view, there was no basis to disturb the motion judge’s decision. There was ample evidence in the record on which to base his conclusion on both prongs of the Rule 48.14 test. The Court did not accept the argument that he committed palpable and overriding errors in doing so.

Maisonneuve v. Clark, 2022 ONCA 113

[Huscroft, Sossin and Favreau JJ.A.]

Counsel:

B. Dillon, for the appellants

D. Cutler, for the respondents

Keywords: Contracts, Settlements, Arbitration Agreements, Civil Procedure, Limitation Periods, Discoverability, Appropriate Means, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, section 5(1)(a)(iv), Insurance Act, R.S.O. 1990, c. I.8, section 275(4), Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, PQ Licensing S.A. v. LPQ Central Canada Inc., 2018 ONCA 331, L-3 Communication SPAR Aerospace Limited v. CAE Inc., 2010 ONSC 7133

facts:

The personal appellant and respondent were cousins who were in business together as shareholders of various companies, including Eastern Ontario Real Estate Investors Inc. (“EOREI”). Their relationship deteriorated over the years. In early 2016, the parties referred their business disputes to arbitration. In September 2016, the parties reached an agreement on all issues in dispute except for one. As part of the agreement, the personal appellant agreed to transfer all his shares in EOREI to the personal respondent. However, the parties were not able to agree on the payment of various expenses associated with EOREI. The mutual release the parties signed in the context of their overall settlement provided that this outstanding issue was to be referred to arbitration.

The parties signed the release on September 26 and 27, 2016. In 2017, the parties became involved in litigation over the validity of the settlement agreement as a whole. On January 31, 2018, in the context of settlement negotiations regarding the litigation, the appellants’ lawyer took the position that there would be no negotiations over the EOREI expenses.

In June 2019, the respondents’ lawyer wrote to the appellants’ lawyer seeking to initiate the arbitration over the EOREI expenses. The appellants refused the request to arbitrate on the basis that it was time-barred.

In September 2019, the respondents commenced an application to appoint an arbitrator. The appellants took the position that the arbitration was time-barred because the parties had agreed that the referral for arbitration would take place within 90 days of the signing of the settlement agreement or, in the alternative, that the two-year limitation period in the Limitations Act, 2002 applied and the respondents were required to commence the arbitration within two years of the date when the parties signed the settlement agreement.

The application judge held that there was no agreement that the parties would conduct the arbitration within 90 days of the agreement and that the arbitration was not barred by the two-year limitation period in the Limitations Act, 2002 because, based on s. 5(1)(a)(iv), it was not evident that the arbitration was “appropriate” until it was clear that the dispute could not be resolved through negotiations. The application judge relied on the wording of the arbitration clause and the context of the negotiations leading up to the September 2016 settlement. Ultimately, she found that the respondents should have known by January 31, 2018, that a negotiated settlement of the EOREI expenses was not possible.

issues:

(1) Did the application judge err in failing to apply the Court’s decision in Markel Insurance Company of Canada v. ING Insurance Company of Canada to the interpretation of the arbitration clause?

(2) Did the application judge err in finding that it was not clear at the time the parties agreed to the arbitration clause in September 2016 that they would not participate in any further negotiations over the EOREI expenses?

(3) Did the application judge err in relying on the decisions in PQ Licensing S.A. v. LPQ Central Canada Inc. and L-3 Communication SPAR Aerospace Limited v. CAE Inc. as authority for the proposition that the limitation period that applies to an arbitration clause may not start to run until the parties have exhausted attempts at informal resolution?

(4) Will the application judge’s decision lead to uncertainty with respect to the application of limitation periods to arbitration clauses?

holding:

Appeal dismissed.

reasoning:

(1) No.

In Markel, the Court addressed the limitation period that applies to s. 275(4) of the Insurance Act. The Court held that negotiation was not a precondition to arbitration and, therefore, the limitation period does not start to run at the conclusion of unsuccessful negotiations. The application judge distinguished Markel on the basis that the Court was interpreting a statutory provision rather than a provision in an agreement. She explained that, in the context of an agreement, the factual matrix is also relevant to understanding the party’s intentions. In addition, she found that the differences between the wording of s. 275(4) of the Insurance Act and the arbitration clause were significant. The use of the word “then” in the arbitration clause added a temporal component that made the clause both “temporal and conditional”. Accordingly, an attempt at informal resolution was a prerequisite to arbitration. The distinctions the application judge drew between Markel and the circumstances of the case were available on the law and record before her.

(2) No.

The application judge reviewed correspondence between the parties leading up to the agreement to arbitrate and concluded that it represented an “evolution” in the personal appellant’s position. The application judge made this finding based on her review of the correspondence and the wording of the arbitration clause.

(3) No.

The application judge made no palpable and overriding error in her interpretation of the arbitration clause as including a precondition for enforcement.

(4) No.

The application judge’s decision was based on the specific wording of the arbitration clause and the circumstances in which it was negotiated. The Court held that parties are free to agree to arbitration clauses that make no reference to the possibility of an informal agreement or that are more specific about the steps and timing leading to arbitration.

Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115

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

Counsel:

L. Plumpton, S. Whitmore, R. Lax, L. Guest, H. Federer, J. Field, L. Reesor and E. Jamieson-Davies, for the appellant

D. F. O’Connor, J. A. Dewar, L. Sokolov, S. Barrett, P. Engelmann, L. Century and J. Brown, for the respondent

Keywords: Labour and Employment Law, Overtime Pay, Breach of Statute, Constitutional Law, Civil Procedure, Class Proceedings, Limitation Periods, Discoverability, Appropriate Means, Common Issues, Aggregate Damages, Res Judicata, Canada Labour Code, R.S.C. 1985, c. L-2., s. 174, Class Proceedings Act, 1992, S.O. 1992, c.6, s. 28, Canada Labour Standards Regulations, C.R.C. 1978, c. 986, s. 24(2), Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., s. 5, Constitution Act, 1867, s. 92(13), Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444, leave to appeal refused, [2012] S.C.C.A. No. 379, Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 75, Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 4288, Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 6098, Machtinger v. HOJ Industries, [1992] 1 S.C.R. 986, Cooper Tool Group Ltd. v. U.S.W.A., Local 6497 (1975), 10 L.A.C. (2d) 407 (Ont. Arb. Bd.), Lafarge Canada Inc. Construction Materials v. CMSG, [2000] C.L.A.D. No. 376, Koscis Transport Ltd. and Chabaylo (Re), [2003] C.L.A.D. No. 519, Fresco v. Canadian Imperial Bank of Commerce, 2010 ONSC 4724, T-Line Services Ltd. v. Morin, [1997] C.L.A.D. No. 422, RSB Logistic Inc. v. Hale, [1999] C.L.A.D. No. 548. Kindersley Transport Ltd. v. Semchyshen, [2002] C.L.A.D. No. 4., Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148, Cavanaugh v. Grenville Christian College, 2021 ONCA 755, Insurance Corp. of British Columbia and COPE Local 378 (Unpaid Overtime Claim), Re, [2012] B.C.W.L.D. 7745, Baroch v. Canada Cartage, 2015 ONSC 40, Shah v. LG Chem Ltd., 2018 ONCA 819,  leave to appeal refused, [2018] S.C.C.A. No. 520. Markson v. MBNA Canada Bank, 2007 ONCA 334, leave to appeal refused, [2007] S.C.C.A. No. 346, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 5, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Vezina v. Loblaw Companies Ltd. (2005), 17 C.P.C. (6th) 307 (Ont. S.C.), Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, leave to appeal refused, [2019] S.C.C.A. No. 284., British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 , Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 168., Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, R. v. Henry, 2005 SCC 76, Presley v. Van Dusen, 2019 ONCA 66, Presidential MSH Corp. v. Marr Foster & Co. LLP, 2017 ONCA 325, Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, leave to appeal refused, [2016] S.C.C.A. No. 509, Gillham v. Lake of Bays (Township), 2018 ONCA 667, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Pioneer Corp. v. Godfrey, 2019 SCC 42, R. v. Drury, 2020 ONCA 502, Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, Ontario Deputy Judges Assn. v. Ontario (2006), 80 O.R. (3d) 481

facts:

In 2007, D. F. started a class action against the Canadian Imperial Bank of Commerce on behalf of 31,000 customer service employees who had worked for the Bank between 1993 and 2009. She claimed that two of the Bank’s policies enabled it to permit its employees to work overtime hours without appropriate compensation, contrary to the Canada Labour Code.

Two competing narratives set the scene. The Bank argued that its policies aimed to stop unnecessary overtime in order to control costs and to prevent overwork. To the contrary, D. F. argued that these policies resulted in the Bank getting the economic value of overtime work without compensating employees as required by the Code.

The first overtime policy, which applied to employees in the retail branch network from February 1, 1993 to April 10, 2006, covered all class members (the “1993 Overtime Policy”). It provided for additional compensation where employees worked more than 8 hours a day or 37.5 hours a week, but required that employees get management approval before working overtime in order to receive payment (pre-approval). There was no provision for getting management approval after the overtime hours were worked (post-approval). The second policy, which applied to all of the Bank’s lines of business, was put in place starting on April 10, 2006 (the “2006 Overtime Policy”). This policy maintained the pre-approval requirement, but also allowed for post-approval in extenuating circumstances where approval was sought as soon as possible after the overtime work was done.

This class action concerned the application of the Canada Labour Code to these two overtime policies. The Court had certified eight common issues in 2012. The motion judge heard two summary judgment motions on the merits, one brought by each side.

The motion judge released three decisions leading to these appeals. On liability, he granted summary judgment to D. F. as the representative plaintiff. On damages, he certified aggregate damages as a common issue, leaving the merits of the proposed methodology for determining the class members’ individual damages entitlements to be assessed at a later stage. On the issue of the limitation period defence, he dismissed the Bank’s summary judgment motion for a class-wide limitations order and left the Bank’s limitation defences to be addressed at the individual hearing stage.

issues:

(1) Did the motion judge misinterpret s. 174 of the Canada Labour Code?

(2) In considering whether the Bank’s system-wide overtime policies and related practices contravened the requirements of the Code and the regulations under it, did the motion judge err in finding that the following were “institutional impediments” to the overtime claims of class members:

(a) the Bank’s 1993 and 2006 Overtime Policies; and

(b) the Bank’s record-keeping practices for tracking and compensating overtime hours?

(3) Did the motion judge err in certifying aggregate damages because the Court had already determined that such damages were not available in this case?

(4) The Bank’s limitations appeal raised two issues: Did the motion judge err by requiring the Bank to prove discoverability could be resolved on a class-wide basis, thereby reversing the onus of proof?

(5) Did the motion judge err in refusing to answer the Bank’s constitutional question regarding the extra-territorial application of s. 28 of the Ontario Class Proceedings Act, 1992?

holding:

Appeal dismissed.

reasoning:

(1) No.

As the motion judge pointed out, most arbitral decisions agree that s. 174 of the Canada Labour Code does impose a positive duty on employers to actively prevent employees from working overtime hours. This duty does not conflict with the employer’s right to manage its workforce. This duty does not subject an employer to indeterminate liability because the employer will not be found to have permitted overtime work unless the employer has actual or constructive knowledge that its employees are working beyond the hours permitted under the Code. The risk of silence in the face of actual or constructive knowledge falls on the employer. The motion judge did not impose a duty on employers to compensate employees for overtime hours of which it was not aware because an employer cannot be said to permit what it does not know.

Moreover, the motion judge did not simply rely on the wording of the policies in finding liability. He also made findings of fact on the evidence that support his conclusion that the effect of the Bank’s overtime policies was that it failed to prevent overtime from being worked without compensation.

The Court did not accept the Bank’s submission that the motion judge erred in his interpretation of the Code or its application to the Bank’s overtime policies. The Court found no legal error in the motion judge’s finding that, read as a whole, and together with the surrounding evidence of manuals, circulars and guidelines, the Bank’s overtime policies required pre-authorization (or post-authorization in extenuating circumstances in the case of the 2006 Overtime Policy). Overtime hours that were permitted but not authorized under the policies would not be paid, contrary to the Code.

(2) No.

(a)

It was more appropriate to ask how employees were denied overtime compensation than to ask how many employees were denied compensation. Here, the respondent had to show that employees were denied overtime compensation because of the operation of the policies. The motion judge found that she did so. Since the policies impacted the class in its entirety, this finding established the Bank’s liability to the class as a whole.

(b)

In the Court’s view, based on the evidence before the motion judge, it would have been preferable if he had refrained from quantifying the occasions when the Bank’s system of record-keeping led to overtime hours not being recorded. That said, the Court saw no basis for interfering with the motion judge’s finding on this aspect of the liability analysis.

(3) No.

The Court addressed the test for certifying an aggregate damages issue, and whether the Court’s refusal to certify an aggregate damages common issue was res judicata.

The motion judge properly expressed the standard for certifying aggregate damages as being “whether there is a reasonable likelihood that the methodology suggested by the plaintiff’s expert can determine damages in the aggregate without proof by individual class members”. He cited Markson and observed that the “reasonable likelihood” standard originated in Cullity J.’s comments in Vezina v. Loblaw Companies Ltd.

The Court would not give effect to the Bank’s argument – that the motion judge erred in adopting a “reasonable possibility” test instead of the “reasonable likelihood” one – because, on the facts of the case, the “reasonable likelihood” standard had been met, for all the reasons the motion judge provided about the methodology. To paraphrase Pro-Sys, the proposed methodology was sufficiently credible or plausible to establish some basis in fact for the commonality requirement, and it offered a realistic prospect of assessing class-wide monetary relief in the aggregate that was grounded in the facts and the available data. It was the task of the trial judge, not the certification motion judge, to resolve any conflicts between the experts.

The Court then turned to the Bank’s other assertion, which was that because the Court had previously finally determined that aggregate damages were not available in this case, the matter was res judicata. The Court specifically made two observations about Pro-Sys, where Rothstein J. held that the trial judge has ultimate responsibility for deciding whether aggregate damages are available.

First, the Supreme Court does not discourage the identification of aggregate damages as an issue to be certified at the outset. This makes sense because early identification of an issue is always a good thing. Second, the Supreme Court leaves the final decision about the availability of aggregate damages to the trial judge, even where the issue was not previously proposed or certified. This too makes sense because the trial judge becomes deeply familiar with the case as it crystallizes, which makes the trial judge uniquely able to make the appropriate call.

Does the law’s clarification or change in Pro-Sys displace the Court’s prior refusal to certify aggregate damages as a common issue? In the Court’s view, it did. The Court had made the “ultimate decision” that the Supreme Court later stipulated “should be left to the common issues trial judge”. In other words, neither the certification judge’s refusal nor the Court’s refusal on appeal to certify aggregate damages as a common issue should be the final disposition. The Court was obliged to give effect to Pro-Sys. Accordingly, the motion judge was correct in concluding on the basis of Pro-Sys that as the common issues judge, he had the ultimate authority to certify the aggregate damages common issue.

(4) No.

The Court was not persuaded that the first factor, that “some (and perhaps many) of the class members feared reprisal and were afraid that they might lose their job if they sued the bank for unpaid overtime” was a valid basis on which the limitation period can be suspended. However, there was merit in the second factor of reasonable reliance on misrepresentation. The applicable law was set out in the Court’s decision in Presley v. Van Dusen. In that decision, Sharpe J.A. discussed the governing principles, and then referred to one of the “guiding principles” expressed by Pardu J.A. in Presidential MSH Corp. v. Marr Foster & Co. LLP: “Resort to legal action may be ‘inappropriate’ in cases where the plaintiff is relying on the superior knowledge and expertise of the defendant, which often, although not exclusively, occurs in a professional relationship.

On the facts of this case, it was quite plausible, as the motion judge found, that some class members reasonably relied on the Bank’s misrepresentations that its overtime policies complied with federal labour law. The influence of this factor on individual class members was really a matter best left to individual assessment, as the court noted in the earlier certification decision.

The Bank’s second argument was that the question of whether a class member knew that a proceeding was an “appropriate means” to remedy unpaid overtime is only relevant to class members’ claims governed by statutes that include such discoverability language, that is, claims in Ontario, Saskatchewan, and Alberta. On that basis, a class-wide limitations order would be appropriate for all other claims.

The Bank argued that the “appropriate means” criterion in s. 5(1)(a)(iv) of the Limitations Act, 2002 was not an element of the common law discoverability rules, relying on 407 ETR Concession Company Limited v. Day and other cases. The Court, however, did not agree that common law discoverability rules could not be found to function in an equivalent manner. The ordinary development of the common law means that the categories are not closed. Whether this argument had traction was a matter to be decided on the individual assessments and not on a fact-free, class-wide basis.

The Court would also not give effect to the Bank’s argument that the motion judge effectively reversed the burden of proof applicable to discoverability. Having moved for summary judgment, the onus was on the Bank to establish that it was so entitled. In any event, the respondent had established a sufficient basis to require the application of the limitations defence to be worked out on an individual basis.

(5) No.

The Bank asked the Court to consider this constitutional question on the basis that it must be resolved for all claims governed by non-Ontario law. It asserted that rendering a decision on a class-wide basis would preserve judicial economy, efficiency, and consistency in results.

The Court declined to decide this issue in the absence of a lower court decision and in the absence of a better evidentiary landscape. The Court agreed with the motion judge that the issue was premature, and the Court therefore also declined to remit the matter back to him for resolution. Courts should not decide constitutional questions unnecessarily.

McGrath v. Joy, 2022 ONCA 119

[Gillese, Trotter and Nordheimer JJ.A.]

Counsel:

P. W. G. Carey and K. P. Nagrani, for the appellant M. R. M.

J. L. Turner, for the respondent J. J.

O. Niedzviecki, for the respondent D. R.

B. Hayes, for the respondent M. M. Jr.

Keywords: Wills and Estates, Holograph Wills, Interpretation, Testamentary Capacity, Civil Procedure, Costs, Public Policy Considerations, Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 6, Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (U.K. Queen’s Bench Div.), Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), Zimmerman v. Fenwick, 2010 ONSC 3855, Neuberger Estate v. York, 2016 ONCA 303, Housen v. Nikolaisen, 2002 SCC 33, Vout v. Hay, [1995] 2 S.C.R. 876, Skinner v. Farquharson (1902), 32 S.C.R. 58, Dujardin v. Dujardin, 2018 ONCA 597, Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), Sawdon Estate v. Sawdon, 2014 ONCA 101

facts:

Shortly before committing suicide, Mr. J. wrote a suicide note which met the requirements for a holograph will. He had been drinking and using drugs the day before his death. The suicide note contained a statement declaring that anything in his will that had his wife Ms. J.’s name on it was void, and that everything was to go to his stepson and grandson. Mr. J. had two previous wills, a 2014 Will and a 2016 Will.

The appellant, Mr. J.’s stepson, brought an application to have the suicide note declared Mr. J.’s valid will and admitted to probate. The application was supported by the Office of the Children’s Lawyer (the “OCL”) who represented Mr. J.’s grandson. The application was opposed by Ms. J., and Mr. R. a long-time friend of the deceased and a beneficiary under Mr. J.’s initial will (the “Respondents”). Mr. R. also submitted that should the suicide note be declared a valid will, it would be “more correctly characterized” as a codicil to the 2016 Will.

On application, the sole issue for the Court was whether the deceased had testamentary capacity when he wrote the suicide note. The application judge concluded that he did not, based upon Mr. J.’s consumption of alcohol and drugs the day before his death. The application judge also made a “blended costs order” in which he ordered Mr. J.’s estate to pay a small part of the costs of the Respondents and the OCL, and the appellant to pay the majority of their costs (the “Costs Order”).

issues:

(1) Did the application judge err in concluding that, when Mr. J. wrote the Suicide Note, he did not have the capacity to make a will?

(2) If the suicide note is a valid will, is it better characterized as a codicil to the 2016 Will?

(3) Did the application judge err in awarding costs against the appellant personally?

holding:

Appeal allowed.

reasoning:

The Court held that no deference was owed to the application judge’s conclusion because a failure to apply the relevant legal principles is an error in principle warranting the Court’s intervention.

(1) Yes.

The Court held that despite setting out the relevant legal principles for determining whether Mr. J. had testamentary capacity, the application judge failed to apply them and erroneously concluded that Mr. J. lacked testamentary capacity when he wrote the suicide note.

The Court noted the legal principles for determining testamentary capacity are long-standing and have been applied since they were established in the 1902 Supreme Court of Canada case of Skinner v. Farquharson. Specifically, to make a valid will a testator must have a “sound disposing mind”, which requires the testator to: (a) understand the nature and effect of a will; (b) recollect the nature and extent of his or her property; (c) understand the extent of what he or she is giving under the will; (d) remember the people that he or she might be expected to benefit under his or her will; and (e) where applicable, understand the nature of the claims that may be made by persons he or she is excluding under the will.

As the application judge failed to apply the legal principles, the Court did so, and concluded that Mr. J. had testamentary capacity.

The Court also held that it was an error to infer a lack of testamentary capacity based on a person’s use of alcohol and drugs. Although such information is properly considered when applying the relevant legal principles, that was not done by the application judge. Although there was evidence Mr. J. was drunk the day before he died, none of the witnesses said he presented as “irrational, delusional, incoherent, or abnormal”.

The Court also addressed the application judge’s characterization of the appearance and language of the suicide note, and failed to see the relevance. Although the language was laced with profanity, it merely indicated Mr. J. was angry and upset, and was not an indicator that Mr. J. lacked testamentary capacity.

(2) No.

The Court rejected Mr. R.’s argument that the suicide note was “more correctly characterized” as a codicil to the 2016 Will for two reasons.

First, such an interpretation would conflict with the language of s. 6 of the Succession Law Reform Act, which states a testator “may make a valid will wholly by his or her handwriting and signature”. The Court held that s. 6 was unambiguous in that it empowered a testator to make a valid will, which is different from a codicil. Accordingly, the suicide note was a will.

Second, to accept Mr. R.’s submission would result in the maladministration of Mr. J.’s valid will (the suicide note), because one of the terms of the suicide note is that “everything” was to go to the appellant and his grandson. Accordingly, to give effect to any bequest made in the prior will would be contrary to that term, and therefore an act of maladministration.

(3) Yes.

The Court held that although the application judge referred to the governing principles on costs orders in estate litigation, he failed to follow those principles resulting in the Costs Order being “plainly wrong”.

The traditional approach to costs in estate litigation is to have the parties’ costs paid from the testator’s estate. The public policy considerations for that approach include the need to give effect to valid wills that reflect the intention of competent testators and the need to ensure that estates are properly administered. Accordingly, if there are reasonable grounds on which to question the execution of a will or the testator’s capacity to make the will, it is in the public interest that such questions be resolved without cost to those questioning the will’s validity. And, where the difficulties or ambiguities that gave rise to the litigation are caused by the testator, it is again appropriate for the testator’s estate to bear the costs of their resolution. When deciding costs in estate litigation, the Court must, at first instance, carefully scrutinize the litigation to determine whether one or more of the public policy considerations applies. If so, as a general principle, the parties’ reasonable costs are to be paid from the testator’s estate.

The Court held the application judge failed to take that first step, and if he had, he would have found that the public policy considerations applied and the application was necessary to ensure that Mr. J.’s estate was properly administered. Further, the Court held that the application judge erred in concluding that the appellant acted unreasonably in bringing the application.

Accordingly, the Court held the Estate should pay the appellant’s costs of the application on a full indemnity basis.

Turning to the costs of the appeal, the Court held the Estate should pay the appellant’s costs of the appeal on a full indemnity basis, provided the costs are reasonable and warranted. Although the respondents were unsuccessful on appeal, the Court held this was not a situation in which they should be required to pay the appellant’s costs as their participation at first instance was necessary to ensure the questions surrounding Mr. J.’s testamentary capacity were fully explored.

Next, the Court concluded the respondents were entitled to their reasonable costs on appeal from the Estate. The Court held it would be unfair to penalize the respondents on costs because it was Mr. J.’s conduct that created the need for the litigation. Finally, the Court made no order of costs of the appeal in favour of the OCL because it gave no reason for changing its position, and had very little involvement on the appeal.

Singh v. Heft, 2022 ONCA 135

[Pepall, Thorburn and Coroza JJ.A.]

Counsel:

A. S., acting in person

N. Cellucci, for the responding parties

Keywords:

Contracts, Solicitor and Client, Fees, Assessments, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Solicitors Act, R.S.O. 1990, c. S.15, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), s. 19(1)(b), Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 (C.A.), Paulpillai Estate v. Yusuf, 2020 ONCA 655, Somerleigh v. Brayshaw (1993), 15 C.P.C. (3d) 160 (Ont. Div. Ct.), Karbaliotis v. Anaheim Unit Investors (1996), 89 O.A.C. 58 (C.A.), Lala v. Basman Smith LLP, 2017 ONCA 614, CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare Trust Co. of Canada, 2015 ONCA 846, Ball; Stoiantsis v. Spirou, 2008 ONCA 553, Hopkins v. Kay, 2014 ONCA 514, Abbott v. Collins (2002), 62 O.R. (3d) 99 (C.A.)

facts:

The respondent, R. H., is a lawyer with the respondent, Heft Law. The appellant, A. S., was her client. The respondents rendered six accounts totaling $152,262.48 to A. S. of which she has already paid $146,940.18. A. S. applied to have the respondents’ legal bills assessed pursuant to the provisions of the Solicitors Act. In May 2017, Perell J. made such an order on consent.

The Assessment Officer conducted the assessment and concluded that the respondents had failed to establish that their fees were fair and reasonable. The Assessment Officer reduced the fees to $80,000 plus HST and disbursements. A. S. was entitled to a refund of over $50,000. The respondents brought a motion before a judge of the Superior Court of Justice opposing confirmation of the Assessment Officer’s Certificate of Assessment.

The motion judge set aside the Assessment Officer’s order and referred the fees to be assessed anew before a different assessment officer. The motion judge concluded that the Assessment Officer had exceeded her jurisdiction under the Solicitors Act, an assessment officer may not conduct an assessment where the retainer is disputed. Further, the Assessment Officer had erred by failing to consider the respondents’ objections and in refusing to receive evidence proffered by the respondents in response to serious allegations of misconduct.

A. S. appealed the order of the motion judge.

issues:

(1) Is the order under appeal interlocutory and not final in nature, and, hence, does the appeal lie to the Divisional Court with leave?

holding:

Appeal quashed.

reasoning:

(1) Yes
The order of the motion judge is interlocutory, not final in nature, and the appeal is to the Divisional Court with leave.
Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from “a final order of a judge of the Superior Court of Justice”, while s. 19(1)(b) provides that an appeal lies to the Divisional Court from “an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court”.
The evidentiary decision was interlocutory in nature, as it did not determine the matter in dispute nor any substantive right. The motion judge set aside the certificate of assessment and directed that a new assessment be conducted before a different assessment officer. The motion judge did not finally dispose of the matter. The subject-matter of the litigation between the parties and their substantive rights remained to be determined. As a result, the order A. S. sought to appeal was interlocutory.
Appeal decisions where the issue of jurisdiction was not raised or decided does not establish the jurisdiction of the court in a subsequent appeal.

SHORT CIVIL DECISIONS

Silvera v. Taylor, 2022 ONCA 120

[Simmons, Pardu and Brown JJ.A.]

Counsel:

D. I. Reisler, for the appellants

R. Tofilovski, for the respondents

Keywords:Civil Procedure, Settlements, Enforcement, Rules of Civil Procedure, Rule 49.09

Philbert v. Graham, 2022 ONCA 113

[Thorburn J.A. (Motions Judge)]

Counsel:

E. P., acting in person

H. G., acting in person

Keywords:Civil Procedure, Appeals, Vexatious Litigants, Rules of Civil Procedure, Rule 2.1.01, Rizzi v. Mavros, 2007 ONCA 350, Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, Friedrich v. Metropolitan Toronto Condominium Corporation No. 1018, 2019 ONCA 216, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497

Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2022 ONCA 127

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

Counsel:

P. Virc and M. M. Title, for the appellant

K. Prehogan, H. Peglar, M. Skrow, for the respondent

Keywords:Civil Procedure, Summary Judgment, Costs

1758704 Ontario Inc. v. Priest, 2022 ONCA 126

[Benotto, Miller and Trotter JJ.A.]

Counsel:

M. Zemel, for the appellants/respondents by way of cross-appeal

K. McKenzie, for the respondents/appellants by way of cross-appeal

Keywords: Civil Procedure, Appeals, Reconsideration, Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942, RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP, 2020 ONCA 182

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.