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Good morning.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of December 12, 2022.

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In Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, the Court undertook a complex jurisdictional analysis for an international insurance coverage dispute resulting from a handful of environmental contamination class actions. The Court first confirmed that the framework set out by the Supreme Court of Canada’s landmark decision in Club Resorts Ltd. v. Van Breda for assumed jurisdiction applies equally to contractual disputes as it does to claims in tort. The Court then provided guidance on applying the presumptive connecting factor of “carrying on business in Ontario” in the international insurance coverage context. The Court ultimately held that the Ontario court had jurisdiction simpliciter over Vale’s many insurers in this dispute, and that Ontario was not forum non conveniens.

In Abraham v. Gallo, the Court considered whether a bare talaq divorce was recognized as valid in Canada. The motion judge found that the divorce was recognized and valid since the Province had recognized the divorce by issuing a marriage license to the respondent for his second marriage. The Court held that the issuance of a marriage license did not serve to recognize the registered bare talaq divorce as a valid foreign divorce, as it had only been registered in Egypt but not granted by a divorce-granting authority for the purposes of s. 22 of the Divorce Act. The Court further held that bare talaq divorces, without more, were not recognizable as valid in Canada. The Court stated that bare talaq divorces lacked adjudicative oversight and accordingly, ran afoul of public policy issues such as potential for abuse and lack of natural justice.

In Tall Ships Development Inc. v. Brockville (City), the appellant, Brockville, appealed the order of the application judge setting aside three arbitral awards and appointing a new arbitrator to preside over the matters upon reconsideration. Brockville argued that the questions before the arbitrator were questions of mixed fact and law, which did not give rise to any right of appeal pursuant to the Arbitration Act and the Arbitration Agreement as agreed upon by the parties. The Court found that the application judge had erred in considering issues of mixed fact and law and law alone as the Arbitration Agreement specifically provided that there could be no appeals on the law. The Court further noted that the application judge’s interpretation of the contracts in dispute required her to consider the conduct of the parties, the factual matrix and the circumstances giving rise to the parties’ agreement in accordance with Sattva. The Court allowed the appeal reversing the application judge’s decision to set aside all three arbitral awards.
Other topics included several family law appeals relating to a s. 30 assessment, extension of time to perfect an appeal, quashing an appeal from a garnishment order, and a wrongful retention of a child application, and finally, a corporate dispute where a Norwich Order was unsuccessfully sought to obtain pre-action discovery.

Have a nice weekend,

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

 

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862

Keywords: Contracts, Insurance, Interpretation, Commercial General Liability, Excess Insurance, Coverage, Pollution, Private International Law, Conflict of Laws, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Comity, Courts of Justice Act, R.S.O. 1990, c. C.43, Insurance Act, R.S.O. 1990, c. I.8, ss. 20(3), 21, 123, Foreign Insurance Companies Act, R.S.C. 1970, c. I-16, ss. 2, 4, Rules of Civil Procedure, r. 17.02, Spar Aerospace Ltd v. American Mobile Satellite Corp., 2002 SCC 78, Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, Hilton v. Guyot, 159 U.S. 113 (1895), Zingre v. The Queen, [1981] 2 S.C.R. 392, The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116 (1812), Tolofson v. Jensen; Lucas (Litigation Guardian of) v. (Gagnon), [1994] 3 S.C.R. 1022, Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897, Chevron Corp. v. Yaiguaje, 2015 SCC 42, Kaynes v. BP, plc, 2014 ONCA 580, Kaynes v. BP, plc, 2016 ONCA 601, Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Neophytou v. Fraser, 2015 ONCA 45, Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC, 2016 ONCA 977, OMI Holdings v. Royal Insurance Co. of Canada, 149 F.3d 1086, Daimler AG v. Bauman, 571 U.S. 117, Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, Bristol Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773, Domtar, Inc. v. Niagara Fire Insurance Co., 533 N.W.2d 25 (Minn.), Burger King Corp. v. Rudzewicz, 471 U.S. 462, Farmers Insurance Exchange v. Portage La Prairie Mutual Insurance Co., 907 F.2d 911 (9th Cir. 1990), International Shoe Co. v. Washington, 326 U.S. 310, Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2021 SCC 44, Haaretz.com v. Goldhar, 2018 SCC 28, Breeden v. Black, 2012 SCC 19, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Arthur T. von Mehren and Donald T. Trautman, “Recognition of Foreign Adjudications: A Survey and A Suggested Approach” (1968) 81 Harv. L. Rev. 1601

Weidenfeld v. Weidenfeld, 2022 ONCA 860

Keywords:Family Law, Parental Support, Child Support, Foreign Orders, Enforcement, Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990 c. C.43, s. 7(5), s.106, Family Law Act, R.S.O. 1990, c. F.3, s. 32, Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, s. 2(3) Enforcement of Money Judgments Act, SNB, 2013, c. 23, s. 34, Support Enforcement Act, S.N.B. 2005, c. S-15.5, Family Law Rules, O/Reg. 114/99, r. 1(8), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, Oliveira v. Oliveira, 2022 ONCA 218

Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 861

Keywords:Contracts, Interpretation, Arbitration Agreements, Civil Procedure, Appeals, Standard of Review, Arbitration Act, 1991, S.O. 1991, c. 17, s. 45(2) and 46, Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, 2022 ONCA 769, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance, 2016 SCC 37, Tall Ships Landing Devt. Inc. v. City of Brockville, 2019 ONSC 6597, Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Thomas J. Kelleher Jr. & G. Scott Walter, eds, Smith, Currie & Hancock’s Common Sense Construction Law: A Practical Guide for the Construction Professional, 4th ed (Hoboken, USA: John Wiley & Sons, Inc., 2009)

Van Delst v. Hronowsky, 2022 ONCA 881

Keywords:Family Law, Equalization of Net Family Property, Civil Procedure, Appeals, Abuse of Process, Frivolous and Vexatious, Rules of Civil Procedure, Rule 2.1, Dickie v. Dickie, 2007 SCC 8, Bell v. Fishka, 2022 ONCA 683

Parmar v. Flora, 2022 ONCA 869

Keywords:Family Law, Custody and Access, Child Abduction, Wrongful Retention, Habitual Residence, COVID-19, Hague Convention on the Civil Aspects of International Child Abduction, 1980, Can. T.S. 1983 No. 35, Art. 3, Family Law Rules, rr. 10(5), 1(8.4)(2), Ludwig v. Ludwig, 2019 ONCA 680, Office of the Children’s Lawyer v. Balev, 2018 SCC 16, Purcaru v. Purcaru, 2010 ONCA 92, Law Society of Upper Canada v. Neinstein, 2010 ONCA 193

Bluemoon Capital Ltd. v. Ceridian HCM Holding Inc., 2022 ONCA 868

Keywords:Corporations, Civil Procedure, Equitable Remedies, Interlocutory Injunctions, Pre-Action Discovery, Norwich Orders, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 96(1), Rules of Civil Procedure, r. 39.03, GEA Group AG v. Ventra Group Co. (2009), 96 O.R. (3d) 481, 1654776 Ontario Limited v. Stewart, 2013 ONCA 184, Straka v. Humber River Regional Hospital (2000), 51 O.R. (3d) 1 (C.A.)

Rodriguez v. Vella, 2022 ONCA 870

Keywords: Family Law, Parenting, Assessment of Needs of Child, Civil Procedure, Orders, Enforcement, Contempt, Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30

Abraham v. Gallo, 2022 ONCA 874

Keywords:Family Law, Divorce, Foreign Divorces, Validity, Corollary Relief, Spousal Support, Child Support, Civil Procedure, Private International Law, Conflict of Laws, Jurisdiction, Real and Substantial Connection, Forum Shopping, Public Policy, Natural Justice, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s.22(1), s.22(2), s.22(3), Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (C.A.), Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, Abdulla v. Al-Kayem, 2021 ONSC 3562, Al Sabki v. Al Jajeh, 2019 ONSC 6394, Cheng v. Liu, 2017 ONCA 104, Okmyansky v. Okmyansky, 2007 ONCA 427, Novikova v. Lyzo, 2019 ONCA 821, Wilson v. Kovalev, 2016 ONSC 163, Canada v. Hazimeh, 2009 FC 380, Butt v. Canada (Citizenship and Immigration), 2010 CanLII 78765 (CA IRB), Beals v. Saldanha, 2003 SCC 72, Ali v. Ibrahim, 2019 ONSC 300,  Zeineldin v. Elshikh, 2020 ONSC 1160, Wang v. Lin, 2013 ONCA 33, Knowles v. Lindstrom, 2014 ONCA 116, Li v. Li, 2021 ONCA 669, Orabi v. Qaoud, 2005 NSCA 28, L.G.V. v. L.AP., 2016 NBCA 23

CIVIL DECISIONS

Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862

[Feldman, Lauwers and Zarnett JJ.A.]

Counsel:

C. Hubbard, H. Afarian, A.S. Lewis, A. Stern and A. Jarvis, for the appellants Vale Canada Limited (C70291, C70292, C70288, C70290, C70293, C70295 & C70300)

M. M. O’Donnell and S. Patel, for the appellant Royal & Sun Alliance Insurance Company of Canada (C70294, C70297, C70281, C70287, C70289, C70298 & C70302)

D. Stewart, D. Dutt and A.J. Freedman, for the appellants Travelers Casualty & Surety Company and St. Paul Mercury Insurance Company (C70281 & C70300)

R. McLauchlan, J. Henderson, M. Ebrahim and S. Kim, for the appellant United States Fire Insurance Company (C70293 & C70302) and for the respondent The North River Insurance Company (C70291, C70292, C70294 & C70297)

D.C. Rosenbaum, C.J. Rae and M.M. Hussein, for the appellant Employers Insurance Company of Wausau (C70295 & C70298)

D. Smith and S. Sweet, for the appellants Allstate Northbrook Indemnity Company (C70287 & C70288) and for the appellant General Reinsurance Corporation (C70289 & C70290)

David S. Wilson and Anthony Gatensby, for the respondents Zurich Insurance Company Limited (UK Branch) and RiverStone Insurance (UK) Limited (C70291 & C70292)

Keywords: Contracts, Insurance, Interpretation, Commercial General Liability, Excess Insurance, Coverage, Pollution, Private International Law, Conflict of Laws, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Comity, Courts of Justice Act, R.S.O. 1990, c. C.43, Insurance Act, R.S.O. 1990, c. I.8, ss. 20(3), 21, 123, Foreign Insurance Companies Act, R.S.C. 1970, c. I-16, ss. 2, 4, Rules of Civil Procedure, r. 17.02, Spar Aerospace Ltd v. American Mobile Satellite Corp., 2002 SCC 78, Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, Hilton v. Guyot, 159 U.S. 113 (1895), Zingre v. The Queen, [1981] 2 S.C.R. 392, The Schooner Exchange v. M’Faddon, 11 U.S. (7 Cranch) 116 (1812), Tolofson v. Jensen; Lucas (Litigation Guardian of) v. (Gagnon), [1994] 3 S.C.R. 1022, Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897, Chevron Corp. v. Yaiguaje, 2015 SCC 42, Kaynes v. BP, plc, 2014 ONCA 580, Kaynes v. BP, plc, 2016 ONCA 601, Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Neophytou v. Fraser, 2015 ONCA 45, Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC, 2016 ONCA 977, OMI Holdings v. Royal Insurance Co. of Canada, 149 F.3d 1086, Daimler AG v. Bauman, 571 U.S. 117, Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, Bristol Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773, Domtar, Inc. v. Niagara Fire Insurance Co., 533 N.W.2d 25 (Minn.), Burger King Corp. v. Rudzewicz, 471 U.S. 462, Farmers Insurance Exchange v. Portage La Prairie Mutual Insurance Co., 907 F.2d 911 (9th Cir. 1990), International Shoe Co. v. Washington, 326 U.S. 310, Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2021 SCC 44, Haaretz.com v. Goldhar, 2018 SCC 28, Breeden v. Black, 2012 SCC 19, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Arthur T. von Mehren and Donald T. Trautman, “Recognition of Foreign Adjudications: A Survey and A Suggested Approach” (1968) 81 Harv. L. Rev. 1601

facts:

Over several decades, Vale Canada Limited (“Vale”) purchased 92 policies of insurance worldwide with 24 primary and excess insurers. The excess insurance policies were substantially follow-form to primary policies that applied to Vale’s mining and other operations in Canada and elsewhere.

This action arose out of a claim by Vale for insurance coverage for environmental contamination damages in Ontario, New Jersey, Japan, Indonesia, and Wales. However, 19 of the 26 contaminated sites were in Ontario. Vale sought to negotiate coverage and contribution terms among its insurers with respect to several class actions that it was found liable or had settled. The negotiations broke down, and Travelers Casualty & Surety Company (“Travelers”) brought an action in the State of New York against Vale and the many insurers with respect to whether it was obligated to indemnify Vale. Soon after, Vale and Royal & Sun Alliance Insurance Company of Canada (“RSA”) brought ostensibly the same action in Ontario. Vale and RSA took the position that the action they commenced should continue in Ontario. Travelers and several other insurers took the position that the Ontario action either cannot, or should not, proceed.

The motion judges in both Ontario and New York dismissed similar motions, both in which the moving party argued that the respective court did not have jurisdiction simpliciter and, in the alternative, was forum non conveniens. However, the motion judge in the within action held that the Ontario court did not have jurisdiction simpliciter over North River Insurance Company (“North River”). Travelers and multiple other insurers appealed the motion judge’s decision that the Ontario court had jurisdiction simpliciter and that it was not forum non conveniens. Vale and RSA appealed the motion judge’s decision regarding North River.

issues:

(1) Does the Van Breda framework apply to contractual enforcement disputes?

(2) Did the motion judge err in determining that carrying on business in Ontario is a presumptive connecting factor in contract cases?

(3) Did the motion judge err in holding that the Ontario Superior Court of Justice had jurisdiction simpliciter over Vale’s insurers?

(4) Did the motion judge err in holding that the Ontario Superior Court of Justice did not have jurisdiction simpliciter over North River?

(5) Is Ontario’s Superior Court of Justice forum non conveniens and is the Supreme Court of the State of New York the clearly more appropriate forum for this litigation?

holding:

Appeal of Travelers et al dismissed. Appeal of Vale and RSA allowed.

reasoning:

To guide this appeal, the Court provided an overview of the principle of comity in the private international law context. The Court noted that: (1) comity is neither an absolute obligation nor a mere courtesy, (2) in the modern world, a lack of comity disrupts the normal patterns of life, (3) comity rests on the assumption of reciprocity and can be refused where reciprocity is not forthcoming, and (4) one court’s assertion of jurisdiction is not determinative of another court’s decision to refuse to assert jurisdiction.

(1) Yes.

In Club Resorts Ltd v Van Breda (“Van Breda”), the Supreme Court of Canada (“SCC”) established a new analytical framework for applying the real and substantial connection test to determine if a court has jurisdiction simpliciter. The purpose is to identify a link between the forum and the defendants or subject matter of the litigation. To identify this link, the SCC noted four presumptive connecting factors: (1) whether the defendant is domiciled in the province, (2) whether the defendant carries on business in the province, (3) whether the tort was committed in the province, and (4) whether there was a contract made in the province that is connected to the litigation. This is not a closed list. The court can also look to forum and foreign case law and statutes to establish a new connecting factor. If one of the presumptive connecting factors apply, the burden shifts to the defendants to rebut the presumption.

It was argued that, because this is a contract enforcement dispute and the framework set out in Van Breda was made in the context of a tort, the framework does not apply. The Court disagreed for three reasons. First, there are multiple Ontario appellate cases that have adopted the Van Breda framework in contract cases. Second, Rules 17.02(f) and 17.02(p) of the Rules of Civil Procedure specifically contemplate service outside of Ontario in an Ontario action where there has been a breach of contract in Ontario, or a subsequent breach that rendered performance in Ontario impossible. Third, the same presumptive connecting factors exist in the United States. In Domtar, Inc. v. Niagara Fire Insurance Co., which was also a case regarding insurance coverage for environmental damage, the Supreme Court of Minnesota stated that the insurer would have considered at the time of executing the general liability policy that coverage extended to operations in the forum state. This was held to be a sufficient contractual connection between the forum and the subject matter of the litigation.

(2) No.

Allstate Northbrook Indemnity Company (“Allstate”) argued that carrying on business in a jurisdiction should not be a presumptive connecting factor in contract cases where there is neither consent-based nor presence-based jurisdiction, and the contract was formed in another jurisdiction. The Court disagreed because this argument was inconsistent with the case law. However, the Court noted that, while carrying on business in a jurisdiction is relevant to contract cases, the approach that the court is to take in determining what constitutes “carrying on business” might vary in the insurance context. Carrying on business in Ontario might link the subject matter of the litigation and the defendant to Ontario as a forum, even if the contract is not made in Ontario, depending on the relationship between the business activities, the contract, and what the contract and the claim are about. The Court stated that the connection will be especially strong where the business activities are reflected in a contract that related to property, interests, or activities in Ontario, that contemplated some aspect of contractual performance in Ontario, or that were aimed at protecting a person from harm that might otherwise be suffered in Ontario.

(3) No.

Having held that the Van Breda framework applied and that carrying on business in Ontario was a proper presumptive connecting factor, the Court carried on with the analysis. The motion judge held that the Ontario court had jurisdiction over all insurers of Vale, with the exception of North River, on the basis that they carried on business in Ontario.

Travelers argued that this presumptive connecting factor is only engaged if it were carrying on business in Ontario at the time that the action was commenced. The Court rejected this argument for several reasons. First, it added a qualification to the established framework that is contradicted by the actual analysis of the SCC in Van Breda. Second, accepting this temporal argument would render the presumptive connecting factor redundant because presence-based jurisdiction would be established if the defendant carried on business in Ontario at the time the action was commenced. Van Breda made it clear that presence-based jurisdiction is a separate basis for jurisdiction from that of assumed jurisdiction under the real and substantial connection test. Third, the link between the forum and the litigation was either created in executing the contract or at the time that the contract was to be performed. It would not follow that this connection is lost because the defendant later ceased carrying on business in Ontario.

Several other insurers argued that, because the insurance policies were negotiated and delivered to Vale in New York, the conclusion that the insurers were carrying on business in Ontario for the purpose of the real and substantial connection test was precluded. It was further argued that it was not material that many of the insurers were in fact registered and licensed in Ontario because there was still no connection to the insured or the subject matter of the litigation. To hold otherwise would grant universal jurisdiction in Ontario for claims on policies issued to Ontario residents. The Court noted that Van Breda does not define exactly what activities would satisfy the standard of carrying on business in Ontario. It requires a contextual analysis that will depend on the nature of the business.

The motion judge found that the excess insurers must have known from their underwriting activities that their policies were part of a global insurance program for a Canadian multi-national company and that the policies would necessarily be received and acted on in Ontario. The motion judge also considered the existence of federal and provincial regimes for registration and licensing of foreign insurers. According to the federal legislation in force when the policies were issued, the Foreign Insurance Companies Act, registration and its related requirements were imposed on any foreign company that “transact[ed] the business of insurance in Canada”: at ss. 2, 4. According to Ontario legislation in the same period, an insurer “undertaking insurance in Ontario or carrying on business in Ontario” was required to obtain and hold a licence: Insurance Act (the “IA”), at s. 21. Furthermore, pursuant to s. 20(3) of the IA, “undertaking insurance in Ontario” was specifically deemed to meet the definition of “carrying on the business of insurance in Ontario”. This was not a determinative finding, but it provided a factual aspect of the analysis for each defendant.

The Court noted that the issuance of an insurance policy, even if made outside of Ontario, can itself constitute carrying on business in Ontario. In a jurisdictional analysis, the links of the insurance business activity to Ontario are examined to determine whether or not it would be reasonable to expect that the insurer would be called to answer proceedings in Ontario under the policy it issued.

Employers Insurance Company of Wausau (“Wausau”) submitted that, while its policies provided comprehensive general liability insurance, an endorsement excluded coverage relating to ownership of, operations at, and goods manufactured at any locations in Canada. Therefore, Wausau argued that the motion judge made a reversible error in suggesting that Wausau’s policies were in relation to “Ontario liabilities” and that they had anything to do with what Wausau’s Ontario licence permitted. The Court rejected this argument. Wausau confused the subject matter of the claim with what may be used as a defense to it. Whether the defendant has a good defence is a separate issue from whether there is jurisdiction over the defendant.

Allstate submitted that, unlike the other insurers, it was never licensed or registered to sell insurance in Canada or Ontario, never had any physical presence in Ontario, and that its policy was issued from its U.S. address and directed to Vale at its New York office. Allstate’s central argument was that none of the reasons the motion judge gave for finding jurisdiction for the other insurers apply to it. The Court held that this argument was not supported by the record. The motion judge found that the Allstate policy was with respect to liabilities arising out of Ontario. Further, as an excess insurer, it had the reasonable expectation that the policies would be acted on in Ontario. The findings of the motion judge were entitled to deference and contained no overriding error.

(4) Yes.

North River was licensed to sell insurance in Ontario prior to selling the relevant policies to Vale, but not at the time that they were executed. However, the North River policies were excess insurance to the RSA primary policies. They insured liabilities arising out of Ontario operations that might be incurred by an Ontario corporation. The Court noted that this is factually similar to the findings with respect to Allstate, and no explanation was provided to explain the different result. Therefore, the Court held that the Ontario court did have jurisdiction simpliciter over North River.

(5) No.

Even if the court finds that it had jurisdiction simpliciter, under the forum non conveniens doctrine it may decline to hear an action on the basis that there is another “clearly more appropriate” forum. Therefore, where there is no one forum that is the most appropriate, the domestic forum wins by default, provided it is an appropriate forum. The burden of proof is on the party raising the forum non conveniens argument to show that the proposed forum is “clearly more appropriate”. The non-exhaustive list of factors the courts use to determine if one forum is clearly more appropriate than another, as laid out in Van Breda and subsequent SCC cases, are as follows: (1) the comparative convenience and expense, (2) the law to be applied, (3) avoiding multiplicity of proceedings, (4) avoiding conflicting decisions, (5) enforcement of eventual judgments, (6) the fair and efficient workings of the Canadian legal system, (7) fairness to the parties, (8) loss of juridical advantage, and (9) the avoidance of forum shopping.

The Court held that the motion judge did not err in determining that Ontario was not forum non conveniens because the factual backdrop and a majority of evidence available was situated in Ontario. Multiple excess insurers argued that New York is the clearly more appropriate forum because the insurance was purchased on the international insurance market located in New York. The Court disagreed because the argument inferred that the excess insurance coverage was the most important issue in the litigation, which was not factually correct. The Court noted that the fundamentals of this case are in the Ontario liability and indemnity facts.

With respect to the applicable law, the Court stated that the law regarding Vale’s liability is rooted in Ontario. The largely follow-form excess insurance policies contained no choice of law provisions. This was because the policies were drafted to cover Vale in several jurisdictions, and the parties could not know in advance where indemnifiable liability might arise. Local law applies to trigger Vale’s local liability; the insurance took into account, in its inferential choice of law, the operative source of Vale’s liability. Neither Ontario law nor New York law will apply universally. Some claims may require the consideration of foreign law, which is well within the competence and actual practice of the courts in both Ontario and New York.
Further, it is desirable to avoid a multiplicity of legal proceedings, not only to avoid the waste of resources but also because such an eventuality would contradict the basic values of comity. The SCC has held that comity does not entail that a Canadian court automatically defer to a foreign court’s decision to take jurisdiction. In the circumstances, the fact that Travelers started the New York lawsuit first carries no weight in the forum non conveniens analysis. Likewise, the parties gave the Court no reason to anticipate that the New York and Ontario courts would reach inconsistent outcomes.

On the final noteworthy factor, the Court noted there was no inherent unfairness to the parties to hear the case in Ontario. It was entirely fair to find that a comprehensive general liability insurer, underwriting primary or excess insurance coverage for Ontario risks, and carrying on business in Ontario for jurisdictional purposes, had thus committed to defending, in Ontario, claims arising out of those risks. In the Court’s view, no other outcome was commercially reasonable in the operation of the international insurance market.


Weidenfeld v. Weidenfeld, 2022 ONCA 860

[Simmons, Huscroft and Coroza JJ.A.]

Counsel:

R.W., acting in person

A.C. Gerstl, for the respondents

Keywords:Family Law, Parental Support, Child Support, Foreign Orders, Enforcement, Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990 c. C.43, s. 7(5), s.106, Family Law Act, R.S.O. 1990, c. F.3, s. 32, Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, s. 2(3) Enforcement of Money Judgments Act, SNB, 2013, c. 23, s. 34, Support Enforcement Act, S.N.B. 2005, c. S-15.5, Family Law Rules, O/Reg. 114/99, r. 1(8), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, Oliveira v. Oliveira, 2022 ONCA 218

facts:

The appellant, RW, claimed for support from his adult children, the respondents, by making an application under s.32 of the Family Law Act, (the “s.32 Application”). An Ontario Court judge (the “OCJ Judge”) dismissed the s.32 Application, finding that the appellant had failed to obey an order in a related case where the appellant was required to pay a lump sum of $35,000 in child and spousal support in relation to his two children, who were four and six years old at the time (the “1995 Judgement”). The OCJ Judge’s order was dated February 27, 2019.

Because the appellant lives in Alberta, the s.32 Application was made under the Interjurisdictional Support Orders Act, 2002, which sets the appeal period at 90 days from the date the OCJ order was entered. The appeal period passed and the appellant brought a motion to request an extension of time before a Superior Court judge (the “SCJ Judge”). The SCJ Judge did not accept the appellant’s explanation for the inordinate delay and found that the respondents were suffering prejudice from the appellant’s delay, that the appellant’s proposed appeal was devoid of merit and that the justice of the case did not warrant granting an extension. The SCJ judge further rejected the appellant’s argument that the 1995 Judgement had expired and his allegation of procedural unfairness.

On April 25, 2022, the SCJ judge refused the appellant’s request for an extension of time to file a notice of appeal from the order of the OCJ judge. On August 9, 2022 an order was made by a single judge of the Court of Appeal for Ontario (the “motion judge”) declining the appellant’s request for an extension of time to perfect his appeal on the bases that: the appellant’s explanation for the delay was not reasonable; the appellant failed to contradict the OCJ judge’s finding that he failed to comply with the 1996 Judgment; and the prejudice to the responding parties.

issues:

(1) Did the motion judge fail to identify the applicable principles, err in principle, or reach an unreasonable result when declining to extend the time to perfect the appellant’s appeal?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court held that the appellant has not shown that the motion judge failed to identify the applicable principles, err in principle, or reach an unreasonable result when declining to extend the time to perfect the appellant’s appeal.

The Court rejected the appellant’s argument that he was prejudiced by advice he received that it was unnecessary to file a factum. Although self-represented, the appellant was an experienced litigator and made an informed choice not to file a factum. The Court further held that nothing in the record indicated that the appellant’s position before the motion judge was not properly considered.

The Court rejected the appellant’s submissions that the motion judge erred in failing to address his arguments about lack of due process in the OCJ proceeding or about the expiry of, or failure to register in Ontario, the 1995 judgment. The New Brunswick Enforcement of Money Judgments Act, on which the appellant relied, only applies if a certificate under s. 34 of the Support Enforcement Act (a “s. 34 Certificate”) is entered and recorded. The Court found no evidence of a s. 34 Certificate, and further found that, in any event, the enforcement of Money Judgments Act only addresses expiry of the registration of an order, not the order itself.

The Court held that it was unnecessary to consider the appellant’s arguments that were patently without merit, including the appellant’s constitutional questions, which were not raised in the courts below.


Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 861

[Doherty, Huscroft and Harvison Young JJ.A.]

Counsel:

A. Rubinoff and B. Dillon, for the appellant

J. Plotkin, J. Saikaley and A. Tomkins, for the respondent

Keywords: Contracts, Interpretation, Arbitration Agreements, Civil Procedure, Appeals, Standard of Review, Arbitration Act, 1991, S.O. 1991, c. 17, s. 45(2) and 46, Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, 2022 ONCA 769, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance, 2016 SCC 37, Tall Ships Landing Devt. Inc. v. City of Brockville, 2019 ONSC 6597, Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Thomas J. Kelleher Jr. & G. Scott Walter, eds, Smith, Currie & Hancock’s Common Sense Construction Law: A Practical Guide for the Construction Professional, 4th ed (Hoboken, USA: John Wiley & Sons, Inc., 2009)

facts:

Litigation arose out of a partnership between the appellant, Brockville and the respondent, Tall Ships Development Inc. (“Tall Ships”), to develop waterfront property in Brockville. The Public-Private Partnership Agreement (“PPPA”) was executed on October 9, 2007. The property was conveyed to Brockville in March 2016. The plan was that Tall Ships would develop the property and, when it was “substantially complete”, would sell the property to Brockville for a price set out by a formula in the PA. The formula included the cost of construction, the budget for which was defined in that agreement as $7,400,000 for the construction of the approximate 27,000 square foot MDC building [Maritime Discovery Centre].

The first issue was whether Brockville was liable for the difference of $1,800,000 between the $7,400,000 “estimate” and actual cost of construction. Tall Ships claimed about $1,800,000 in additional costs from Brockville alleging that Brockville knew that the MDC was roughly 6,000 square feet larger than designed, construction was over budget, and that the committee appointed by Brockville to oversee construction (“Steering Committee”) approved design changes that led to cost increases. Brockville refused to pay arguing that it was unaware that construction costs exceeded the budget until the MDC was substantially complete, and it had not agreed to increases over the $7,400,000. The second issue arose from Brockville’s refusal to pay invoices for remediation costs on the basis that they were out of time under the Brownfields Agreements (“BA”). The third issue was Tall Ships’ claim for interest paid one year after it was submitted. Tall Ships did not advise Brockville it would be claiming interest on the invoice prior to the closing date but asked for interest in its statement of claim.

The parties agreed to an arbitration of the Tall Ships claims. After a 4-week hearing, the arbitrator dismissed the claims in three awards. In the first award, the arbitrator rejected Tall Ships’ claim for remediation costs under the BA holding that the claims failed to comply with the 15-day deadline specified in the BA and was therefore out of time, and in any event, were statute barred.
In the second award, the arbitrator found that Tall Ships was responsible for the cost overruns because Tall Ships had not kept Brockville informed as to cost overruns despite knowing that the project would be much larger and cost substantially more than originally planned. The arbitrator rejected Tall Ships’ claim of unjust enrichment since it failed to show a lack of juristic reason for its loss and Brockville’s corresponding enrichment.
In the third award, the arbitrator rejected Tall Ships’ claim for interest on an invoice paid a year after it was submitted. Tall Ships did not advise Brockville that it would be claiming interest prior to the closing date, thus, Tall Ships was effectively estopped in the circumstances from making this claim.

On appeal, the application judge set aside the three arbitral awards and ordered that a new arbitrator be appointed for reconsideration. Brockville argued that the questions before the arbitrator were questions of mixed fact and law, which did not give rise to any right of appeal pursuant to the Arbitration Act (the “Act”) and the Arbitration Agreement (“AA”). It also argued that the application judge erred in finding errors of law that warranted the court’s intervention.

issues:

Did the application judge incorrectly categorize questions of mixed fact and law as extricable questions of law?

holding:

Appeal allowed.

reasoning:

Yes.

Regarding the first award, Brockville stated that s. 45 of the Act allowed appeals on questions of law or mixed fact and law “if the arbitration agreement so provides” and the AA in this case provided for appeals on questions of law only. It argued that the findings made by the arbitrator were founded on contractual interpretation which is a matter of mixed fact and law, and thus, he overstepped his jurisdiction. Tall Ships submitted that it could not “join issue” on the arbitrator’s conclusion that time was of the essence and that Brockville pleaded that the requests for more information were, in fact, rejection notices. The arbitrator recognized that a request for information and a rejection were distinct, but found that the same deadline should apply to the response.

The application judge held that the arbitrator erred in finding that “time was of the essence” because the point was neither advanced nor argued. In her view, basing his decision on this point “violated mandatory rules of procedural fairness in the Arbitration Act”. The Court disagreed and stated that in order to find that the arbitrator fell into error with respect to the contractual interpretation he reached, the application judge was required to find that the question of whether Tall Ships could submit its claims after 15 days had passed from its receipt of the determination or request for information from Brockville was an extricable question of law. The reason being that the parties had expressly provided that only questions of law could be subject to appeal. The Court noted that the Supreme Court of Canada in Sattva has cautioned against identifying extricable questions of law in disputes over contractual interpretation.
While the Court stated that the expression “time was of the essence” was less than ideal, it was neither a fair, nor reasonable interpretation of his reasons in rejecting the claim based on implying a “time is of the essence” clause into the contract. Rather, having found that Brockville’s responses did constitute determinations or refusals, they triggered the 15-day period within which Tall Ships was required, pursuant to the BA, to dispute the determination or refusal. The Court held that the application judge’s error in interpretation arose largely out of a failure to consider the arbitrator’s reasons as a whole and failing to consider the factual matrix. As long as the “time of the essence” comment was not read as a term of the contract, there was no procedural unfairness caused to Tall Ships. Furthermore, the question of mixed fact and law fell within the purview of the arbitrator, by which appeals would be on questions of law only.

With respect to the second award, the arbitrator found that Tall Ships was responsible for cost overruns. The Court noted that he resolved this issue according to the core, most basic obligations under the PA. He noted that both parties were obligated to have regard for the legitimate contractual interests of the other, that Brockville had an obligation to co-operate with Tall ships and that Tall Ships had a “core obligation” as construction manager.

The arbitrator had noted that Brockville was not in a financial position to give Tall Ships a financial carte blanche on the project. It was therefore essential for Tall Ships, in its role as construction manager, to keep Brockville informed. The evidence was that Tall Ships knew the project would cost substantially more than originally planned and did not disclose this. Thus, Tall Ships did not perform its duties as construction manager reasonably, and withheld information arbitrarily which led to breaching its duty of good faith.
The application judge found that the arbitrator erred in relying on Tall Ships’ obligations as a construction manager because Brockville did not rely on this obligation in its submissions before the arbitrator. She also found the arbitrator’s elaboration of Tall Ships’ duties as construction manager relied on a contractual term implied using the incorrect test. Lastly, she found the arbitrator’s conclusion that Tall Ships breached its duty of good faith failed because it resulted from the arbitrator’s improper implication of a contractual term.
The Court found that the central error in the application judge’s analysis was in characterizing aspects of the arbitrator’s decision addressing the construction cost overruns as errors of law rather than errors of mixed fact and law. The task facing the arbitrator was to interpret the PA within the context of the other instruments and circumstances at the time. The arbitrator carefully considered Tall Ships’ role as construction manager and considered what the term “construction manager” meant within the context of the PA, citing authorities on the issue and noting that it was not a term with a fixed meaning.

The Court found that the application judge erred in focusing on what she considered to have been a legal error by the arbitrator in imputing the duties that he did to a construction manager. The Court noted that the arbitrator was clear in his reasons in finding Tall Ships was not simply a construction manager by considering the contract as a whole within the context of the project as a whole. This was not a question of law, but a question of mixed fact and law, which according to the parties’ AA, was not subject to appeal.
The Court observed that the arbitrator then turned to the question of who knew what and when. The Court stated that this was directly relevant to Tall Ships’ central argument that Brockville knew, should have known and or was wilfully blind to the true size and cost of the project. The Court noted that the arbitrator 1) referred to a number of admissions by SF that he knew, at the time, that Tall Ships entered into the PA, that the project cost would exceed $7,400,000.
Moreover, the arbitrator found that SF possessed this information “in sharp contrast” to what members of the Steering Committee and Brockville did not know. He found that Tall Ships had the financial expertise, and as construction manager and contractor, had information and details that Brockville and the Steering Committee did not. The arbitrator also referred to the fact that art. 3.9 made it clear that the Steering Committee could not approve increases in costs beyond the $7,400,000 and Tall Ships never presented a request for an increased budget to Brockville.

The Court disagreed with the application judge’s finding that obligations arose out of “implied terms” which were neither pleaded nor argued and were thus unfair to Tall Ships. The Court held that the obligations arose from the interpretation of the contract as a whole and was a matter of mixed fact and law. The Court found that the application judge’s characterization that the obligation to keep the Steering Committee informed as an “implied term”, such that it attracts a right to appeal, would entirely undermine the intent of these parties to submit the dispute, which arose out of a network of agreements and relationships which developed over a decade, to arbitration, and would frustrate their specific provision that only errors of law could be appealed. The Court found no basis for any argument of procedural unfairness to Tall Ships.

The Court noted that Tall Ships conceded that it could not dispute the arbitrator’s finding that it breached the duty of good faith. Still, it argued that there was no causation between this breach and any damages to Brockville. The Court held that that the arbitrator did not make an order for damages but instead found Tall Ships was not entitled under the contract to claim for construction budget overruns. He found SF had actively misled the Steering Committee and withheld information which constituted a breach of Tall Ships’ duty of good faith. The arbitrator considered the contract and found Tall Ships never requested an increase of the construction budget and were not entitled to the construction cost overruns. The Court saw no merit to Tall Ships’ submissions that it should succeed on the unjust enrichment claim.

In the third award, the arbitrator denied Tall Ships’ claim for interest on the $315,000 paid in settlement of the MDC Exclusions claim. The Court saw no extricable error of law in the arbitrator’s conclusions. He considered the contract as a whole, the context of the negotiations and found that the parties agreed that the MDC Exclusions claim would be resolved by the payment of $315,000. He found that they effectively amended the PA in that they did not contemplate the payment of interest and that they could not resurrect such a claim by later resiling from that agreement and that they were estopped from making that claim before him. The Court held that this was a finding of mixed fact and law and was not subject to interference on appeal.


Van Delst v. Hronowsky, 2022 ONCA 881

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

K. Shadbolt, for the moving party

T. J. Hronowsky, acting in person

Keywords: Family Law, Equalization of Net Family Property, Civil Procedure, Appeals, Abuse of Process, Frivolous and Vexatious, Rules of Civil Procedure, Rule 2.1, Dickie v. Dickie, 2007 SCC 8, Bell v. Fishka, 2022 ONCA 683

facts:

The parties were married in 1995 and separated in 2016. A trial was held and, in April 2019, Mr. H was ordered to pay Ms. VD an equalization payment. In August 2019, costs of the first trial were ordered in favour of Ms. VD.

Mr. H appealed and moved to introduce new evidence on appeal without success. Costs of the motion were ordered against him. The Court disposed of the appeal by ordering a retrial on a single issue: Ms. VD’s pension was to be calculated based on a normal retirement date of age 60 rather than 65. The appeal judgment affirmed all other determinations made on the first trial.

In advance of the retrial, the parties each engaged experts to prepare pension valuations. Those valuations produced figures that were less than a thousand dollars apart. Nonetheless, Mr. H forced the matter on to a second trial. The second trial lasted much longer than necessary because he raised numerous matters outside the scope of the recalculation of the pension.

The second trial decision affirmed the costs order from the first trial and ordered costs of the second trial, on a full indemnity basis, against Mr. H. Mr. H appealed the second trial decision to the Court. His appeal was dismissed with costs against him. The Court gave Ms. VD sixty days to commence enforcement proceedings for the equalization payment and the various costs orders, none of which had been paid by Mr. H.

Ms. VD served three notices of garnishment in June 2022, directing Mr. H’s banks to pay the funds owed to the court clerk. Mr. H disputed the garnishments on the basis that he had delivered a motion to this Court in June 2022 seeking a stay of enforcement, and sought to have the enforcement steps reversed and the money returned to his banking and investment accounts. In July 2022, Simmons J.A. heard and dismissed the motion, with costs against Mr. H. Mr. H then moved for a panel review of the decision of Simmons J.A.

In September 2022, Mr. H’s garnishment dispute was heard. He argued that it should not proceed until his review motion of Simmons J.A.’s order had been heard and decided. By order dated October 3, 2022, the hearing judge dismissed the garnishment dispute and ordered that the garnished sum, held in court, be paid out to Ms. VD (the “Garnishment Order”). The hearing judge found that Mr. H had a long and well-documented history of delaying the enforcement action and had failed to raise any accepted grounds for a dispute to a garnishment.

Mr. H filed a notice of appeal of the Garnishment Order (the “Appeal”) but has not perfected it. The Appeal has the effect of staying the Garnishment Order. Ms. VD seeks to have the Appeal quashed.

This motion was scheduled to be heard on December 12, 2022. On December 7, 2022, Mr. H wrote to the Court seeking to have it adjourned. The Court advised the parties that the adjournment request would be the first matter to be heard and decided on the return of the motion but the parties should be prepared to proceed on December 12, as scheduled. At the hearing of the motion, Mr. H argued for an adjournment primarily on the basis that he had had insufficient time to prepare responding motion material.
The Court declined to adjourn the motion. Mr. H’s written adjournment request was contained in a 35-page letter and accompanied by a 146-page enclosure containing supplementary material. Based on those materials, the Court found that he had in fact provided a response to the motion. Moreover, when the Court dismissed Mr. H motion to set aside the order of Simmons J.A. on November 9, 2022, it established December 12, 2022, as the hearing date for this motion. That gave Mr. H over a month’s notice and sufficient time for him to prepare responding materials.

issues:

Should the Court quash Mr. H’s appeal?

holding:

Motion granted.

reasoning:

Yes.

The Court clarified that Rule 2.1 of the Rules of Civil Procedure, empowers the Court to stay or dismiss a proceeding if the proceeding appears, on its face, to be frivolous or vexatious or otherwise an abuse of the process of the Court.

The Court determined that it would be grossly unfair to Ms. VD to allow Mr. H to continue to relitigate this matter, as her entitlement to an equalization payment and numerous unpaid costs orders have been clear and reaffirmed in numerous judicial proceedings. The Court further held that Mr. H’s failure to abide by court orders alone justified the Court to exercise its discretion and refuse to hear his appeal. Accordingly, the Court concluded that to permit Mr. H to continue the Appeal would be an abuse of process.


Parmar v. Flora, 2022 ONCA 869

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

Counsel:

S. M. Bookman and G. Bookman, for the appellant

F. Hudani and J. Luscombe, for the respondent

Keywords: Family Law, Custody and Access, Child Abduction, Wrongful Retention, Habitual Residence, COVID-19, Hague Convention on the Civil Aspects of International Child Abduction, 1980, Can. T.S. 1983 No. 35, Art. 3, Family Law Rules, rr. 10(5), 1(8.4)(2), Ludwig v. Ludwig, 2019 ONCA 680, Office of the Children’s Lawyer v. Balev, 2018 SCC 16, Purcaru v. Purcaru, 2010 ONCA 92, Law Society of Upper Canada v. Neinstein, 2010 ONCA 193

facts:

The appellant father brought an application against the respondent mother pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) seeking to have the child returned from Toronto to Florida on the basis that she was being wrongfully retained in Toronto.

The appellant is an American citizen born in the United States who works in Florida as an anesthesiologist and pain physician. The respondent is a Canadian citizen born in Toronto who works in Toronto as a behavioural scientist and researcher. The parties met online in 2006 and started a long-distance relationship in 2014. The appellant promised to move to Toronto if the relationship became serious. In 2016, the parties were engaged to be married and the respondent alleged that the appellant agreed to move to Toronto before she accepted the appellant’s proposal.

The appellant looked for work in both Florida and Toronto and unsuccessfully sat for the Canadian Medical Board exams in May and June 2017. The parties married on September 2, 2017 without resolving the issue of where they would live. The parties’ daughter, DK, was born in Toronto on May 18, 2019. For the first nine months of her life, the appellant visited DK and the respondent in Toronto every weekend. On February 28, 2020, the respondent and DK went to Florida for a visit. In March 2020, the COVID-19 pandemic struck and the border between Canada and the United States was closed. The respondent and DK stayed in Florida until July 18, 2021 as it was safer to “shelter in place” at the time rather than risk travelling with an infant. On July 18, 2021, the respondent and DK returned to Toronto. Between July and December 2021, the appellant travelled to Toronto six times. During each visit, the parties discussed where they would live.

On December 10, 2021, the appellant realized the respondent had no intention of living in Florida and commenced divorce proceedings. The respondent was served with divorce papers in December 20, 2021. On February 22, 2022, the appellant brought an application pursuant to the Hague Convention for the return of the child to Florida.

The application judge found that the date of alleged wrongful retention was December 10, 2021, and determined that immediately prior to this date the child was habitually resident in Toronto, not Florida. There was, therefore, no wrongful retention and the application was dismissed.

issues:

(1) Was there a wrongful retention of the child?
(2) Did the application judge err in permitting the respondent mother to participate in the hearing, given that she did not serve and file an Answer?
(3) Were the application judge’s reasons inadequate?

holding:

Appeal dismissed.

reasoning:

(1) No.
The Court held that there was no wrongful retention or removal of the child, regardless of whether the application judge relied on July 18, 2021 or December 10, 2021 as the date of determination. The Court further held that the application judge’s conclusion was entitled to deference.
Article 3 of the Hague Convention sets out that wrongful retention or removal occurs when: (1) it is in breach of custody rights under the law of the State in which the child was habitually resident before the retention or removal; and (2) at the time of removal or retention those custody rights were actually exercised, either jointly or alone, or would have but for the retention or removal.
The approach to habitual residence considers parental intention and the circumstances of the child. The two-step process begins with the court determining the date of the alleged wrongful retention or removal, then look at the parental intention and the circumstances of the child to determine the focal point of the child’s life.
The Court held that a removal is only wrongful if it is in breach of rights of custody or access being exercised. Since Toronto was the child’s habitual residence, a factual finding made by the application judge and supported by the evidence, this meant that there was no unilateral decision made by the mother when she took the child back to Toronto or when she remained there with the child. Thus, the mother did not breach the father’s rights of custody or access. Nor did she need his consent to return the child to her habitual residence.

(2) No.
The Court dismissed the appellant’s ground of appeal relating to the respondent’s participation in the hearing for two reasons. First, the Court held that this ground of appeal was only raised for the first time on appeal. Second, the trial judge retains discretion to allow a party to participate in a hearing, whether or not procedural rules have been followed. The Court further noted that trial participation should only be denied in exceptional circumstances where no other remedy would suffice, particularly in family law matters, where the interests of children are at issue.

(3) No.
The Court held that the application judge made findings of fact, carefully explained them, and applied the correct legal principles. Accordingly, there was no basis for a finding of inadequacy.


Bluemoon Capital Ltd. v. Ceridian HCM Holding Inc., 2022 ONCA 868

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

Counsel:

E. S. Lederman, B. Kolenda, and D. Salter, for the appellant

J. Rosenthal and M. Leonard, for the respondent, Ceridian HCM Holding Inc.

L. Fric, K. Sachar and D. Williams, for the respondents, Morneau Shepell Ltd. and Morneau Shepell Inc.

Keywords: Corporations, Civil Procedure, Equitable Remedies, Interlocutory Injunctions, Pre-Action Discovery, Norwich Orders, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 96(1), Rules of Civil Procedure, r. 39.03, GEA Group AG v. Ventra Group Co. (2009), 96 O.R. (3d) 481, 1654776 Ontario Limited v. Stewart, 2013 ONCA 184, Straka v. Humber River Regional Hospital (2000), 51 O.R. (3d) 1 (C.A.)

facts:

The appellant was a shareholder of the respondent, Ceridian HCM Holdings Inc. (“Ceridian”). The appellant brought a Norwich application in its effort to obtain information and documents with respect to the allegedly concerning circumstances surrounding Ceridian’s 2018 distribution to its shareholders of shares of its former subsidiary, LifeWorks Corporation Ltd., and the latter’s subsequent sale to Morneau Shepell. Its principal allegation was that Ceridian seriously and deliberately undervalued LifeWorks in its final prospectus issued in connection with Ceridian’s public Canadian offering, resulting in losses to its shareholders. The appellant commenced a class action against the respondents while the application judge’s decision was under reserve.

The application judge concluded that the appellant did not meet the test for a Norwich order because he was not satisfied in the circumstances of this case that such an order was necessary or in the interests of justice. He also quashed the appellant’s notice of examination of the President and CEO of Morneau Shepell, as it was moot given his dismissal of the application. The appellant appealed the dismissal of its application for the equitable remedy of a Norwich order in aid of pre-action discovery of the respondents and the decision to quash the notice of examination.

issues:

(1) Did the application judge err in dismissing the application for the Norwich order?
(2) Did the application judge err in quashing the notice of examination?

holding:

Appeal dismissed.

reasoning:

(1) No.

The purpose of a Norwich order is to facilitate access to justice by victims of suspected or unknown wrongdoers. The Court noted that The application judge referenced and applied the correct legal principles under s. 96(1) of the Courts of Justice Act and the relevant case law in determining whether to issue the exceptional remedy of a Norwich order. The Court stated that the application judge determined that the appellant had failed to persuade him that it had a valid, bona fide or reasonable claim, that the requested pre-action discovery was necessary, and that the interests of justice favoured obtaining the disclosure. The Court rejected the appellant’s contention that the application judge applied a prima facie case standard to the merits of the claim and held that the application judge weighed the nature and apparent strength of the appellant’s claims together with the other relevant factors noted in accordance with the case law and, without definitively analyzing its merits, assessed the appellant’s claims as weak. The Court found the application judge made no error in his approach.
The Court stated that the application judge had found that the appellant had enough information to bring its claim and that the Norwich order was therefore unnecessary. The Court noted that the fact that the appellant issued a class action after having brought the application is further evidence that it had sufficient information for its claim.

The appellant also argued that it had insufficient information to bring a derivative claim on behalf of Ceridian. The Court noted that the application judge stated that the appellant had sufficient information to plead breach of fiduciary duty against certain executive officers and directors for undervaluing the shares, all of which the appellant had sufficient knowledge. The Court stated that the application judge was entitled to reach these conclusions on the record before him and there was no basis to interfere with them.
The Court held that the application judge’s overarching assessment of whether it would be in the interests of justice to grant the extraordinary remedy of the requested Norwich order was properly informed by his consideration of the bona fides and the strength of the appellant’s action, as well as appellant’s need for the information.

(2) No.

The application judge’s decision to quash as moot the appellant’s notice of examination flowed logically and reasonably from his dismissal of the application. Further, the Court noted that there was no prejudice to the appellant. The appellant has commenced a class action against the respondents and can exercise its examination and discovery rights in that proceeding, including during the certification process.


Rodriguez v. Vella, 2022 ONCA 870

[Paciocco, George and Favreau JJ.A.]

Counsel:

A. Dror and D. Rappaport, for the appellant
D. Vasilescu, for the respondent

Keywords: Family Law, Parenting, Assessment of Needs of Child, Civil Procedure, Orders, Enforcement, Contempt, Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30

facts:

The appellant father and respondent mother were separated from marriage and had one child. On August 6, 2019, the parties consented to an order which had the child in the appellant’s care every Sunday from 10:30 a.m. until 6:30 p.m. The order also directed the completion of a s. 30 assessment in relation to decision-making responsibility and parenting time. If an agreement could not be reached on an assessor, it was to be decided by way of motion. Between the time the order was made and the appeal was heard, three different assessors withdrew after initially agreeing to conduct the assessment.

The last assessor to withdraw was not agreed upon but ordered by the court. This order, made on February 26, 2021 (the “February Order”), provided that the appellant “shall forthwith complete his intake form, retainer agreement and pay his retainer”. After the last assessor withdrew, the respondent sought to have the appellant found in contempt of various court orders, including the February Order. The respondent then unilaterally suspended the appellant’s parenting time. On November 23, 2021, the motion judge found the appellant to be in contempt of the February Order.

issues:

(1) Did the trial judge err by finding the appellant in contempt?
(2) Did the trial judge err by prohibiting the appellant from filing further motions without leave?
(3) Did the trial judge err by giving to the respondent sole decision-making responsibility and by delegating treatment authority to the assessor?

holding:

The appeal was allowed in part.

reasoning:

(1) No.

The appellant submitted that a contempt finding was not available to the motion judge, as the order did not prohibit him from suggesting amendments to the assessor’s retainer. The Court rejected this argument, stating that it ignored the directions that the appellant sign the assessor’s retainer “forthwith”; and that it invited the Court to revisit the motion judge’s finding that his proposed changes were not minor, which is to be afforded a high degree of deference. The Court found that the motion judge identified the elements of the test for contempt, and found that a) the order clearly and unequivocally set out what should and should not have been done; b) the appellant had actual knowledge of the order; and c) that the appellant intentionally failed to do what the order compelled him to do. The Court noted that the motion judge found that the February Order was clear and unequivocal and its terms clear, concise and easy to follow. The Court reject the appellant’s attempt to expand the scope of the assessor’s work, which was in stark contrast to the direction he was given, contrary to the February Order. The Court concluded that the motion judge’s finding of contempt was reasonably arrived at and supported by the evidence.

(2) Yes.

The Court held that the motion judge’s decision to prohibit the appellant from filing further motions without leave was an overreach. The Court’s reasoning was that this type of prohibition is reserved for vexatious litigants and those found to have abused the court’s process. The appellant’s conduct in this case did not rise to that level. The Court noted that the appellant did not commence this litigation, correctly served his reply, there were no unpaid cost orders and there had not been multiple appeals.

The Court held that prohibiting the appellant from filing further motions was not an appropriate term given the respondent’s decision to unilaterally withhold the child from the appellant. The motion judge provided no reasons for its inclusion and the prohibition imposed an added, and unnecessary, layer of complexity to the appellant’s ability to enforce his court ordered parenting time.

(3) No.

The Court found no error in the motion judge’s decision. The Court held that granting the respondent mother temporary sole decision-making authority was a justified response to the father’s ongoing attempts to frustrate and delay the assessment. The Court further held that it was a mischaracterization of the motion judge’s order to say that she delegated decisions about the child’s treatment to third parties. The order simply allowed the mother to employ a variety of therapeutic options, so long as they are recommended by a professional involved with the child. The motion judge’s reasons made it clear that she made this decision with a view to achieving the child’s best interests.


Abraham v. Gallo, 2022 ONCA 874

[Lauwers, Roberts and Trotter JJ.A.]

Counsel:

M.J. Stangarone and S.P. Kirby, for the appellant
R. Williams, for the respondent

Keywords: Family Law, Divorce, Foreign Divorces, Validity, Corollary Relief, Spousal Support, Child Support, Civil Procedure, Private International Law, Conflict of Laws, Jurisdiction, Real and Substantial Connection, Forum Shopping, Public Policy, Natural Justice, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s.22(1), s.22(2), s.22(3), Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (C.A.), Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, Abdulla v. Al-Kayem, 2021 ONSC 3562, Al Sabki v. Al Jajeh, 2019 ONSC 6394, Cheng v. Liu, 2017 ONCA 104, Okmyansky v. Okmyansky, 2007 ONCA 427, Novikova v. Lyzo, 2019 ONCA 821, Wilson v. Kovalev, 2016 ONSC 163, Canada v. Hazimeh, 2009 FC 380, Butt v. Canada (Citizenship and Immigration), 2010 CanLII 78765 (CA IRB), Beals v. Saldanha, 2003 SCC 72, Ali v. Ibrahim, 2019 ONSC 300,  Zeineldin v. Elshikh, 2020 ONSC 1160, Wang v. Lin, 2013 ONCA 33, Knowles v. Lindstrom, 2014 ONCA 116, Li v. Li, 2021 ONCA 669, Orabi v. Qaoud, 2005 NSCA 28, L.G.V. v. L.AP., 2016 NBCA 23

facts:

The parties were married for 15 years and separated in 2016. They were both born in Egypt and adherents to the Islamic faith. Neither party had lived in Egypt for over 20 years. The parties had resided in Ontario with their two children since 2002.
The respondent had sent a text message in December 2016 stating that the parties were divorced. This represented the completion of a divorce or “talaq” under Islamic law. In 2018, in order to remarry, the respondent arranged for the parties to attend at the Egyptian Embassy in Ontario to register the bare talaq divorce. The Declaration of Divorce registered by the Egyptian Embassy was filed with the Egyptian Civil Affairs Registry. The Registrar General of Ontario then issued the respondent a marriage licence based on the Declaration of Divorce. The respondent remarried in June 2019.

In November 2019 the appellant brought an application seeking a declaration that the registered bare talaq divorce should not be enforced, an order for spousal and child support, exclusive possession of the matrimonial home, and a division of net family property. The appellant then brought a motion for summary judgment for her claims for declaratory relief and spousal support.
The motion judge dismissed the appellant’s summary judgment motion and recognized the registered bare talaq divorce under s.22(3) of the Divorce Act. He held that the registered bare talaq divorce was “presumed valid” and that the appellant had failed to meet her onus “to establish otherwise”. Having recognized the registered bare talaq divorce, the motion judge dismissed the appellant’s claim for spousal support because he lacked jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce.

issues:

(1) Did the motion judge err in finding that the Egyptian Embassy’s registering of the bare talaq divorce amount to the granting of a divorce?
(2) Did the motion judge err in finding that the parties had a real and substantial connection to Egypt?

holding:

Appeal allowed.

reasoning:

(1) Yes
The Court held that ss. 22(3) of the Divorce Act allowed the court to recognize a foreign divorce based on the principles of conflicts of laws and the rules of common law. The Court stated that at common law, a foreign divorce decree is presumed valid, thus placing the onus on a party disputing its validity to establish that the divorce decree was not properly obtained. The Court then noted that a foreign divorce decree will not be recognized in limited circumstances, including when:

i. the responding spouse did not receive notice of the divorce application;

ii. the foreign divorce is contrary to Canadian public policy;

iii. the foreign court or other authority that granted the divorce did not have the jurisdiction to do so under the law of the foreign country;
iv. there is evidence of fraud going to the jurisdiction of the authority that granted the divorce;

v. there was a denial of natural justice by the authority that granted the divorce in making the divorce order.

The Court held that the motion judge had erred by failing to distinguish between the administrative registering of a divorce and the granting of a divorce. The Court found that s. 22 of the Divorce Act’s use of the word “granted” made it clear that for a foreign divorce to be recognized it must be granted and not merely registered. The Court held that the divorce occurred – according to Islamic law – upon the husband’s third pronouncement of the talaq and was merely authenticated by the Egyptian authorities; accordingly, no part of s.22 applied.

The Court stated that bare talaq divorces, without more, were not recognizable as valid in Canada. The Court stated that bare talaq divorces lacked adjudicative oversight and accordingly, ran afoul of public policy issues such as potential for abuse and lack of natural justice. The Court held that despite the bare talaq divorce’s effect on the wife’s status and her rights to corollary relief, the wife had no participatory role and could not stop the divorce from coming into effect.

The Court found that the motion judge had erred when he found that the Province had recognized the divorce by issuing a marriage license to the respondent for his second marriage. The Court held that while a foreign divorce decree granted by a competent authority is presumptively valid, the onus of proving that a foreign divorce is a foreign divorce decree granted by a competent authority is on the party seeking to rely upon it. As there was no expert evidence adduced, the Court found that this had not been proven. Further, the Court held that the governmental issuance of a marriage license did not serve to recognize the registered bare talaq divorce as a valid foreign divorce that had been granted by a divorce-granting authority for the purposes of s. 22 of the Divorce Act.

The Court rejected the respondent’s submissions on policy considerations to recognize bare talaq divorce as valid. The respondent argued that if marriages authorized by government-issued marriage licenses were subsequently invalid, chaos would ensure. The Court found that the respondent’ situation was of his own making, and could not supersede s.22(3) of the Divorce Act.

(2) Yes

The Court found that the motion judge had erred in finding that the parties had a real and substantial connection to Egypt. The Court held that there were six common law grounds for a foreign divorce to be recognized, with the fifth stating that a foreign divorce will be recognized where “the petitioner or respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted”.

The Court concluded that the motion judge erred in the application of the real and substantial connection test from Beals v. Saldanha, when he held that the test “set a low bar” and did “not require recency”. The Court stated that the motion judge had incorrectly diluted the requirement that the connection to the foreign jurisdiction must be a substantial one. The Court held that the motion judge had placed too much weight on the parties’ historical connection to Egypt. While past connections to a jurisdiction may be considered, the Court stated that the focus of the real and substantial connection analysis should be on the parties’ real circumstances at the time of the divorce.

Further, the Court held that the fact that the parties had a connection to Egypt decades ago was not sufficient to ground a real and substantial connection to the jurisdiction. The Court stated that the motion judge’s application of the test had undermined the policy considerations of the test, that is, to exclude artificial bases of jurisdiction and prevent forum shopping.
Accordingly, the Court found that the motion judge had erred when he misapplied the real and substantial connection test, and failed to consider whether the respondent’s choice of registering the divorce at the Egyptian Embassy had amounted to forum shopping. In the Court’s view, it did.

Finally, the Court also noted that as child support and property issues had remained to be determined in the proceedings, it was a reasonable conclusion flowing from the respondent’s conduct that he wished to avoid spousal support obligations.



The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with over two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with over two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, partnership, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles complex estates and matrimonial litigation involving disputes over property and businesses, as well as professional discipline and professional negligence matters for various types of professionals. In addition, John represents amateur sports organizations in contentious matters, and also advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.