This was a fairly light week. Topics covered included the applicable appeal routes to class proceedings in light of the 2020 amendments to the Class Proceedings Act, 1992, judicial review of a Human Rights Tribunal decision regarding whether Minutes of Settlement intended to settle both or only of the two outstanding human rights proceedings, stay pending appeal in a family law relocation case, vexatious litigants in a family law custody case and security for costs of an appeal where the appellant had few assets and a history of non-payment of costs orders and mortgage payments.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.597.4895 Email

Table of Contents

Civil Decisions

Briggs v. Durham (Police Services Board), 2022 ONCA 823

Keywords: Human Rights, Administrative Law, Judicial Review, Standard of Review, , Contracts, Interpretation, Settlements, Human Rights Code, R.S.O. 1990, c. H.19, s. 45.8, Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Shaw v. Phipps, 2012 ONCA 155, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Biancaniello v. DMCT LLP, 2017 ONCA 386, 2274659 Ontario Inc. v. Canada Chrome Corporation, 2016 ONCA 145

Flores v. Glegg, 2022 ONCA 825

Keywords: Family Law, Emancipation of a Minor, Child Support, Civil Procedure, Vexatious Litigants, Abuse of Process, Res Judicata, Issue Estoppel, Collateral Attack, Costs, Courts of Justice Act, R.S.O. 1990 c. C.43, ss. 106, 140, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, R.G. v. K.G., 2017 ONCA 108, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Winter v Sherman Estate, 2018 ONCA 703, Peoples Trust Company v. Atas, 2018 ONSC 58

David v. Loblaw Companies Limited, 2022 ONCA 833

Keywords: Class Action Proceedings, Certification Order, Appeal, Jurisdiction of Appeal, Transitionary Rules, Statutory Interpretation, Class Proceedings Act, 1992, S.O. 1992, c. 6, s.5, s.30(1)(a)(b), s.30(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s.6(1)(b), Legislation Act, 2006, S.O. 2006, c. 21, s. 52, Cavanaugh v. Grenville Christian College, 2013 ONCA 139

Ncube v. Hassen, 2022 ONCA 840

Keywords: Family Law, Co-Parenting, Relocation, Best Interest of Child, Civil Procedure, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), s. 19(1)(b) and s. 39.2, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Fontaine v. Canada (Attorney General), 2021 ONCA 313, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Johnson v. Ontario, 2021 ONCA 650, Hopkins v. Kay, 2014 ONCA 514, D.C. v. T.B., 2021 ONCA 562

Gauthier Estate v. White, 2022 ONCA 846

Keywords: Wills and Estates, Estate Trustees, Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, r. 56 and 61.06, Yaiguaje v. Chevron Corporation , 2017 ONCA 827, Henderson v. Wright, 2016 ONCA 89

Short Civil Decisions

Godoy v. Godoy, 2022 ONCA 828

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Rules of Civil Procedure, r. 2.1.01, Visic v. Elia Associates Professional Corporation, 2020 ONCA 690

Liu v. Qiu, 2022 ONCA 835

Keywords: Civil Procedure, Costs

Singh v. Seth, 2022 ONCA 837

Keywords: Family Law, Spousal Support, Equalization of Net Family Property, Civil Procedure, Orders, Enforcement, Striking Pleadings, Financial Disclosure, Procedural Fairness, Mullin v. Sherlock, 2018 ONCA 1063

ALYU Inc. v. Deca-Yorkville Building Group Inc., 2022 ONCA 834

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Corner Brook (City) v. Bailey, 2021 SCC 29

Visic v. Elia Associates Professional Corporation, 2022 ONCA 841

Keywords: Torts, Defamation, , Regulated Professions, Lawyers, Civil Procedure, Summary Judgment, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5(1)(a)

Children’s Aid Society Region of Peel v. L.M., 2022 ONCA 838

Keywords: Family Law, Child Protection, Civil Procedure, Costs

CIVIL DECISIONS

Briggs v. Durham (Police Services Board), 2022 ONCA 823

[Simmons, Benotto and Favreau JJ.A.]

Counsel:

D. Cowling and A. Boissonneau-Lehner, for the appellants

T. Young and M. Noble, for the respondent J.B.

J. Tam and K. Snukal, for the respondent Human Rights Tribunal of Ontario

Keywords: Human Rights, Administrative Law, Judicial Review, Standard of Review, , Contracts, Interpretation, Settlements, Human Rights Code, R.S.O. 1990, c. H.19, s. 45.8, Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Shaw v. Phipps, 2012 ONCA 155, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Biancaniello v. DMCT LLP, 2017 ONCA 386, 2274659 Ontario Inc. v. Canada Chrome Corporation, 2016 ONCA 145

facts:

The respondent, J.B., brought two separate applications to the Human Rights Tribunal of Ontario (the “Tribunal”) against the Durham Regional Police Services Board (the “Board”) and individual police officers. The first application arose from an incident on May 4, 2011, when two officers followed J.B., who is a black man, out of a restaurant parking lot. J.B. was then pulled over, questioned, handcuffed and detained. He alleged that he was discriminated against on the basis of race, colour, and ethnic origin. The second application arose from an incident on October 8, 2012, when J.B. was arrested and detained in Oshawa. An independent investigative report found that the police used excessive force against J.B. and denied him medical assistance. This application alleged that the arrest and maltreatment were a reprisal for his first application.

Before the Vice-Chair released her decision in the first application, the parties participated in a mediation in the context of the second application. The parties reached an agreement at mediation, and the Minutes of Settlement (the “Minutes”) referred to the style of cause of the second application. In addition, the Minutes stated that the parties “wish to resolve this matter without further hearing by the Tribunal” and that “the parties agree to the full and final settlement of the Application as follows” (emphasis added by the Court). The parties signed a Form 25 to confirm that the parties had resolved the application.

In June 2015, J.B. inquired about the decision on the first application. The Tribunal advised that it would be released in December 2015, however, the Board advised that its position was that the Minutes settled both applications. Despite these communications, the Vice-Chair released her decision on the first application on December 18, 2015 (the “Merits Decision”). The Vice-Chair became aware of the dispute as to the scope of the Minutes and convened a hearing to address the issue.

On November 3, 2017, the Vice-Chair released her decision (the “Interim Decision”), wherein she found that the Minutes were meant to cover both applications. She held that, despite the fact that the Minutes did not reference the first application, the parties intended to resolve both application because Paragraph 7 stated that J.B. released “[the Board and] all Personal Respondents, from any and all applications, claims, demands, complaints, or actions of any kind…” The Vice-Chair also held that the Form 25 was not part of the factual matrix in deciding the parties’ intentions. On March 27, 2017, the Vice-Chair released her Reconsideration Decision, in which she found that it was an abuse of process for the Tribunal to have issued the Merits Decision and she cancelled the decision.

J.B. sought judicial review of the Tribunal’s Interim Decision and Reconsideration Decision. The Divisional Court held that the decision of the Tribunal was unreasonable because it was an error for the Vice-Chair not to consider the Form 25. The Divisional Court exercised its discretion to decide the matter on the record before it because of the significant delay in resolving the first application and the fact that the issue of whether or not the Minutes covered both applications was binary. The Divisional Court ultimately found that the conduct of the parties demonstrated that they had not intended to settle the first application, and therefore it set aside the Interim Decision and the Reconsideration Decision. The Tribunal appealed.

issues:

(1) Was the Tribunal’s Interim Decision reasonable?

(2) Did the Divisional Court err in not remitting the matter to the Tribunal?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court noted that, in applying the reasonableness standard, the focus is supposed to be on the decision actually made, including both the decision maker’s reasoning and the outcome. The Court held that the court is to look for reasoning that is “rational and logical”, having regard to the relevant factual and legal constraints. The court is not to hold the reasons up to a standard of perfection or conduct a “line-by-line treasure hunt for error”: Canada (Minister of Citizenship and Immigration) v. Vavilov.

The Court held that the Vice-Chair’s decisions were unreasonable because she failed to consider the full factual matrix as required in a contractual interpretation exercise. A contract must be read as a whole, having regard to the ordinary and grammatical meaning of the words used, consistent with the surrounding circumstances or factual matrix. If there is ambiguity, the court can look to external or parol evidence, which may include the subsequent conduct of the parties. Specific to a release, the Court noted that one can look at the circumstances surrounding the giving of the release.

The Court determined that the Vice-Chair erred in holding that the Form 25 was post-settlement evidence and did not form part of the agreement. Given that the Minutes contemplated that the parties would sign a Form 25 and that the Board signed the Minutes and Form 25 on the same date, it was clear from the record that the Form 25 was part of the settlement. As a result, the Vice-Chair’s focus was too narrow. She only considered Paragraph 7 of the Minutes and not other factors that suggested that the settlement was not meant to cover the first application.

The Board argued that the Divisional Court erred in holding that the parties were clearly aware that they were required to sign a Form 25 for the matter to be resolved at the Tribunal. The Board cited Rule 15.6 of the Tribunal’s Rules of Procedure, which stated that the Tribunal can dispose of a matter by filing the Form 25 or by issuing a consent order. The Court held that, though Form 25 is not a strict requirement in all cases, the Tribunal still needed some form of notification of the settlement. In this case, the Minutes only required that a Form 25 be signed for the second application. Therefore, part of the factual matrix was the fact that the Tribunal was only notified of settlement for the second application, despite the fact that the parties were aware that the Merits Decision was pending. This suggested that the parties did not intend to settle the first application.

(2) No.

The Court held that the Divisional Court did not make an error of law or a palpable and overriding error of fact or mixed fact and law. This was an appropriate case for substituting its decision for the Tribunal’s decision. The Divisional Court correctly noted that, in the normal course, matters should be remitted to the Tribunal. However, it exercised its discretion not to do so because: 1) the first application has been extensively delayed, 2) the Tribunal does not have special expertise in interpreting settlement agreements, 3) the matter could be resolved on the record before it, and 4) the issue could only be answered one of two ways.

The Board argued that the decision not to remit to the Tribunal deprived it of calling evidence relevant to the issue of the parties’ intention to settle the first application. The Court disagreed, stating that the Board had this opportunity and failed to do so at the hearing before the Vice-Chair that led to the Interim Decision.

Flores v. Glegg, 2022 ONCA 825

[Pepall, Trotter and Thorburn JJ.A]

Counsel:

J. Zibarras, for the appellant R.G.

A.J. Wygodny, for the respondent’s H.F. and A.F.

L. Plumpton, A. Shelley and T. Weyman, for the respondents Justice for Children and Youth, J.M., M.B. and E.C.

Keywords: Family Law, Emancipation of a Minor, Child Support, Civil Procedure, Vexatious Litigants, Abuse of Process, Res Judicata, Issue Estoppel, Collateral Attack, Costs, Courts of Justice Act, R.S.O. 1990 c. C.43, ss. 106, 140, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, R.G. v. K.G., 2017 ONCA 108, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Winter v Sherman Estate, 2018 ONCA 703, Peoples Trust Company v. Atas, 2018 ONSC 58

facts:

On April 26, 2016, the appellant’s daughter, OG, obtained a declaration to withdraw from the appellant’s parental control and seek child support from him. OG was represented at the hearing by Justice for Children and Youth (“JFCY”), who, along with three of its staff lawyers, are respondents on this appeal. HF and AF, the remaining respondents, are family friends of OG who provided her safe haven when she withdrew from parental control.

After unsuccessfully opposing OG’s withdrawal from his parental control, the appellant commenced numerous proceedings including: an unsuccessful appeal of the withdrawal declaration, a private prosecution against the mother that was stayed, unsuccessful complaints alleging professional misconduct and seeking disbarment against two of the JFCY lawyers, the seeking of criminal charges against the mother in Florida that the Florida police refused to pursue, an unsuccessful application for enforcement of subpoenas and letters rogatory in Ontario and an unsuccessful ensuing appeal, commencement and dismissal of a Florida action seeking $9.6 million in damages against the mother for intentional interference with custodial rights and intentional infliction of emotional distress.

In addition, the appellant commenced: (1) a tort claim against the respondents JFCY and certain of their named employees seeking damages for alleged false representations, and (2) a tort claim against the respondents, HF and AF, seeking damages for allegedly helping OG’s mother circumvent the appellant’s sole custody order.

The respondents successfully brought two parallel applications against the appellant pursuant to s. 140 of the Courts of Justice Act: the first, to have the appellant declared a vexatious litigant, and the second, to stay his proceedings against them. The application judge declared the appellant to be a vexatious litigant, stayed the existing proceedings, barred him from commencing further proceedings absent leave of the court, and ordered full indemnity costs against the appellant.

issues:

(1) Did the application judge err by treating the applications as consolidated?

(2) Did the application judge err in finding the appellant’s proceedings to be an abuse of process and a collateral attack on previous court orders?

(3) Did the application judge err by prohibiting the appellant from litigating “in any court”?

(4) Did the application judge err by permanently staying the appellant’s actions against the respondents?

(5) Did the application judge err in awarding full indemnity costs against the appellant?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court held that the application judge did not err, as he did not consolidate the applications. Rather, he treated the two applications not as one, but as two parallel proceedings wherein some evidence from one was relied on in the other.

(2) No.

The Court held that application judge correctly held that the appellant’s actions against the respondents could not succeed without seeking to attack conclusions of the Court and other courts. One objective of abuse of process is to protect the integrity of the court’s process by preventing a party from relitigating matters that have already been finally determined. The doctrine of abuse of process applies to prevent re-litigation of previously decided facts and is available even where one or more parties to the action were not parties to the prior action. As the premise for these actions, that OG was brainwashed by her mother to seek emancipation, has been finally determined, the Court held that the appellant’s actions based on this premise amounted to an abuse of process. Accordingly, the Court found no basis to interfere with the application judge’s finding that the appellant’s actions against the respondents were predicated on allegations which several Ontario courts have rejected. Moreover, the Court held that the application judge correctly held that the appellant is a vexatious litigant.

(3) No.

The Court did not give effect to this ground of appeal as the application judge’s order, including the prohibition on the appellant from commencing and continuing certain proceedings “in any court” absent leave, is specifically provided for in s. 140(1) of the Courts of Justice Act.

(4) No.

The Court held that the application judge’s order to stay the underlying actions permanently was empowered by the court’s inherent jurisdiction and s. 106 of the Courts of Justice Act. The Court noted that Ontario courts have accepted that s. 140 is not a “complete code” that precludes the court from making purposive ancillary orders.

(5) No.

The Court held that a costs award should only be set aside on appeal if the application judge has made an error in principle or if the costs award is plainly wrong. The Court found that full indemnity costs were fully justified on the record before the application judge, and there was no basis to interfere.

David v. Loblaw Companies Limited, 2022 ONCA 833

[Doherty, Feldman and Trotter JJ.A.]

Counsel:

R. Hofley and N. Cammarasana, for the respondent (C70893) / moving party (M53684) Canada Bread Company, Limited

S. Forbes, for the respondent (C70893) / moving party (M53678) Wal-Mart Canada Corp.

C. Cseh, for the respondent (C70893) / moving party (M53678) Giant Tiger Stores Limited

S. R. Hennig, for the respondent (C70893) / moving party (M53678) Sobeys Inc.

A. McCoomb and T. Brook, for the respondent (C70893) / moving party (M53678) Metro Inc.

M. Kremer and J. Abaki, for the respondents (C70893) / moving parties (M53664) Loblaw Companies Limited, George Weston Limited, Weston Foods (Canada) Inc. and Weston Bakeries Limited

J. C. Orr, K. R. Taylor and J. H.W. Careen, for the appellants (C70893) / responding parties (M53684, M53678 & M53664)

Keywords: Class Action Proceedings, Certification Order, Appeal, Jurisdiction of Appeal, Transitionary Rules, Statutory Interpretation, Class Proceedings Act, 1992, S.O. 1992, c. 6, s.5, s.30(1)(a)(b), s.30(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s.6(1)(b), Legislation Act, 2006, S.O. 2006, c. 21, s. 52, Cavanaugh v. Grenville Christian College, 2013 ONCA 139

facts:

The plaintiffs moved under s. 2(1) of the Class Proceedings Act (“CPA”) for an order under s. 5 of the CPA certifying a class proceeding against various producers and retailers of manufactured packaged bread. The plaintiffs alleged a widespread price fixing conspiracy, involving the manufacturers and retailers of packaged bread. The motion judge certified the proceedings against most of the named defendants (various producers and retailers of manufactured packaged bread). In certifying the proceeding, the motion judge defined the class as “All persons residing in Canada … other than Excluded Persons, who during the Class Period purchased Packaged Bread, either directly or indirectly, that was sold by a Defendant retailer.”

The plaintiffs appealed the definition of the class used by the motion judge to the Court on the basis that it effectively excluded the plaintiffs from the class.

The defendants brought motions to quash the responding parties’ appeal of the underlying certification order, on the basis that this court has no jurisdiction to hear the appeal.
The motion judge’s definition of the class for the purposes of the class proceeding was the exclusive focus of the proposed appeal brought by the plaintiffs. The moving parties brought motions to quash the responding parties’ appeal of the underlying certification order on the basis that the court had no jurisdiction to hear the appeal.

issues:

(1) Do the appeal provisions in the CPA govern this appeal?

(2) If the appeal provisions in the CPA govern this appeal, does the former appeal provision in the CPA apply, as opposed to the current provision?

holding:

Motion granted. Appeal quashed.

reasoning:

(1) Yes.

The Court determined that the proper characterization of the order under appeal was central to the determination of the proper appellate forum. In making that characterization, the Court determined that it ought to be concerned with the substance of the order and its effect on the proceedings, as applied by the court in Cavanaugh v. Grenville Christian College.

The Court reasoned that the certification order defines the class for the purpose of the certification proceeding. The Court noted that there was nothing in the order, expressly or by implication, decided on the merits of any claim in respect of any of the plaintiffs. Further, there was nothing in the motion judge’s language that suggested that any part of any claim by any potential plaintiff was dismissed by the motion judge.

The Court further noted that the order was not a final order bringing a plaintiff’s claim to an end. It was a procedural order, describing the constitution of the class for the purposes of the class proceeding certified by the motion judge. As such, the Court held that the appeal provisions of the CPA apply.

(2) Yes.

The plaintiffs referred to s. 52 of the Legislation Act, 2006, in support of the submission that s. 39(1) of the CPA (the transitionary provision) had no application to appeals. The Court held that the language in s. 39(1) of the CPA could not be clearer and so there was no need to look to other statutes to interpret s. 39(1).

The Court noted that the Legislature drew a bright line between class action proceedings commenced before the 2020 amendments came into effect, and class action proceedings commenced after that date. That bright line was: “except as otherwise provided by this section”. In applying this provision, the Court held that nothing in the language of s. 39(1) suggested that the section did not apply to the provisions in the CPA governing rights of appeal. The appeal provisions as they existed before the 2020 amendments to the CPA applied to this appeal, therefore, the former s. 30(2) of the CPA applied. The Court concluded that the appeal from the certification order was to the Divisional Court with leave from a Superior Court judge.

Ncube v. Hassen, 2022 ONCA 840

[Favreau JJ.A. (Motion Judge)]

Counsel:

S.P. Kirby, for the moving party

F.M. Wood, for the responding party

Keywords: Family Law, Co-Parenting, Relocation, Best Interest of Child, Civil Procedure, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), s. 19(1)(b) and s. 39.2, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Fontaine v. Canada (Attorney General), 2021 ONCA 313, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Johnson v. Ontario, 2021 ONCA 650, Hopkins v. Kay, 2014 ONCA 514, D.C. v. T.B., 2021 ONCA 562

facts:

The moving party (the “mother”) and the responding party (the “father”), have a daughter. The parties moved to Sarnia in 2017 so the father could attend a college program. The parties separated in June 2021. At the time, the father had a job in Pickering and the mother lived and worked in Sarnia.

Months after the separation, the parties agreed to live together in Milton to facilitate their parenting arrangements. The mother stated that the arrangement was supposed to be temporary, while the father stated that there was no agreement that it would be a temporary arrangement. In early February 2022, the parties moved in together in Milton. They lived in the same dwelling, but they lived apart and co-parented their daughter.

The living arrangement did not work out, and in March 2022, the mother moved into her own apartment in Milton. In September 2022, the child started junior kindergarten at a school in Milton.

In October 2022, the mother moved the child back to Sarnia and enrolled her in a school in that city. Soon after the move, the father started an application in the Superior Court in Milton for various forms of relief, including the return of the child to Milton. The mother then brought an urgent application in the Superior Court in Sarnia. On the motion, the mother took the position that she and the child were habitually resident in Sarnia, and that the family law proceedings should take place in the court in Sarnia.

On November 1, 2022, the motion judge directed that the proper venue for the proceedings was Milton and ordered that the child be returned to Milton within 14 days. The mother moved to stay the order pending appeal.

issues:

(1) Does the appeal raise a serious issue?

(2) Would there be irreparable harm if the stay was not granted?

(3) Does the balance of convenience favour granting the stay?

holding:

Motion dismissed.

reasoning:

(1) No.

The Court described the threshold for the “serious issue” branch of the test for a stay pending appeal to be low. The moving party must only show that the appeal is neither frivolous nor vexatious. The Court found that the appeal was frivolous because it did not appear that the Court had jurisdiction over the issues raised. The Court explained that the motion judge’s order appeared to be interlocutory and therefore, the appeal lied to the Divisional Court, with leave.

(2) No.

The Court outlined that irreparable harm focuses on the child’s best interests. The mother argued that the child would suffer irreparable harm because her life in Sarnia would be disrupted and because she would not be with her mother, who had been her primary caregiver. The Court rejected both of these arguments. The Court noted that the evidence was that the child had lived and was enrolled in school in Milton. The Court found that the disruption occurred when the mother decided to unilaterally move the child to Sarnia and there was no evidence that the mother notified the father of her intention to move back to Sarnia, contrary to s. 39.3 of the Children’s Law Reform Act. In addition, the Court held that the motion judge’s order did not interfere with the mother’s regular parenting time.

(3) No.

The Court held that the balance of convenience did not favour granting a stay in light of the Court’s finding that there was no irreparable harm.

Gauthier Estate v. White , 2022 ONCA 846

[Favreau JJ.A. (Motion Judge)]

Counsel:

J. R.D. Lester, for the moving party

M. Cupello, for the responding party

Keywords: Wills and Estates, Estate Trustees, Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, r. 56 and 61.06, Yaiguaje v. Chevron Corporation , 2017 ONCA 827, Henderson v. Wright, 2016 ONCA 89

facts:

The moving party (the respondent on the appeal) brought a motion for security for costs of a pending appeal pursuant to r. 61.06 of the Rules of Civil Procedure. The appeal arose from a dispute over the enforcement of an agreement of purchase and sale of a property in Longlac, Ontario (“APS”). The plaintiff in the action (the late Y.G.) brought a claim to enforce the APS. Y.G. claimed the appellant, J.H.W. agreed to sell him the property for $40,000.

Y.G. made cash payments totalling $40,000 to J.H.W. and started some repair work on the property before the parties entered into the formal APS. In May 2018, the APS was prepared by a law firm acting for Y.G. and J.H.W. The APS provided for a purchase price of $40,000 and a deposit of $40,000 to the vendor. The APS did not reflect that Y.G. had already paid $40,000 to J.H.W.

Around the time the sale was supposed to close, J.H.W. discovered that there was a mortgage for $25,000. He had thought the mortgage was for approximately $5,000. On the date of closing J.H.W. refused to close, claiming that the parties had agreed to a purchase price of $80,000. Y.G. brought an action against J.H.W. for specific performance or for a vesting order. J.H.W. counterclaimed, seeking, in part, a declaration that the purchase price was to be $80,000. The trial judge granted the vesting order and dismissed the counterclaim. The trial judge accepted Y.G.’s evidence and did not accept J.H.W.’s evidence on the purchase price. J.H.W. appealed the trial decision, submitting that the trial judge erred in his interpretation of the APS.

issues:

(1) Should the court make an order for security for costs?

holding:

Motion granted.

reasoning:

(1) Yes.

Rule 61.06 of the Rules of Civil Procedure provides that the court may order security for costs in specified circumstances where it appears that,

a. there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
b. an order for security for costs could be made against the appellant under rule 56.01; or
c. for other good reason, security for costs should be ordered,
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.

The Court found the appeal was not frivolous and vexatious. The Court noted that the appeal raised legitimate issues regarding the interpretation of the APS. The trial judge’s reasons did not set out the principles of contract interpretation applied, nor did he explain why he focused on the parties’ credibility rather than the terms of the APS. While this did not mean the appeal would succeed or that the appellant had strong arguments on appeals, the Court was not persuaded that the appeal was frivolous and vexatious.

The Court found that the unpaid costs order did not justify an order for security for costs. The Court noted that at the time the motion was brought, J.H.W. had not yet paid an outstanding costs order for $500 on a refusals motion. However, J.H.W. paid the outstanding costs before the motion before the Court was heard. The moving party still sought to rely on the outstanding costs order as a basis for the Court to order security. The Court held that the outstanding costs order alone did not justify an order for security for costs. The amount was relatively small. There was no evidence that the moving party made a demand for payment prior to bringing the motion. J.H.W. had since paid the outstanding costs.

Finally, the Court found that the there was ‘other good reason’ to make an order for security for costs. The Court exercised its residual discretion to make an order for security for costs on the basis that the appeal had a low prospect of success, and the appellant could pay costs but it would be “nearly impossible” for the respondent to collect those costs: Henderson v. Wright. The Court noted that the prospects of success were low, as at most, it appears there may be an ambiguity in the APS. The Court also found there was compelling evidence that it would be nearly impossible to collect costs from J.H.W based on the following: (1) J.H.W.’s affidavit only referred to two assets, being a small pension and scrap vehicles; (2) J.H.W. did not pay the $500 costs order from the refusals motion until the motion was brought; and (3) J.H.W. failed to make outstanding mortgage payments totalling approximately $10,000 since the trial. The Court found this evidence established that J.H.W. would not voluntarily pay any costs orders made against him.

The Court further found that the justness of the case required J.H.W. to post security for costs. Given that the chances of success on appeal were low, that there were no immediate assets to satisfy a costs order and that J.H.W. had a history of non-payment of his mortgage and costs, the Court was satisfied that the moving party should be protected from incurring further costs without some assurance that the costs could be recovered if the appeal was dismissed.

SHORT CIVIL DECISIONS

Godoy v. Godoy, 2022 ONCA 828

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

Counsel:

J. Godoy, acting in person

B. Hutchison, for the respondents D.S. and K.P.

A. Crangle, for the respondents C.G., B.R., K.S. and S.B

R. Szymanski, for the respondents V.F. and P.M.

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Rules of Civil Procedure, r. 2.1.01, Visic v. Elia Associates Professional Corporation, 2020 ONCA 690

Liu v. Qiu, 2022 ONCA 835

[Feldman, Tuloch and Miller JJ.A.]

Counsel:

S. J. Erskine and A. Zaya, for the appellant

R. He and C. Tran, for the respondent

Keywords: Civil Procedure, Costs

Singh v. Seth, 2022 ONCA 837

[Tulloch, Thorburn and George JJ.A.]

Counsel:

C. D. Rawn, for the appellant

A. R. Toor, for the respondent

Keywords: Family Law, Spousal Support, Equalization of Net Family Property, Civil Procedure, Orders, Enforcement, Striking Pleadings, Financial Disclosure, Procedural Fairness, Mullin v. Sherlock, 2018 ONCA 1063

ALYU Inc. v. Deca-Yorkville Building Group Inc., 2022 ONCA 834

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

Counsel:

E.S. Lederman and Z. Rosen, for the appellant

S. Zucker and N.J. Tourgis, for the respondents

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Corner Brook (City) v. Bailey, 2021 SCC 29

Visic v. Elia Associates Professional Corporation, 2022 ONCA 841

[MacPherson, Miller and Copeland JJ.A.]

Counsel:

A. Visic, acting in person

A. Casalinuovo, for the respondents

Keywords: Torts, Defamation, , Regulated Professions, Lawyers, Civil Procedure, Summary Judgment, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5(1)(a)

Children’s Aid Society of the Region of Peel v. L.M., 2022 ONCA 848

[Feldman, Pepall and Tulloch JJ.A.]

Counsel:

A. Burgess and J. Gagne, for the appellant

L. Shaw, for the respondent

Keywords: Family Law, Child Protection, Civil Procedure, Costs

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