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Good afternoon.
Following are this week’s summaries of the Court of Appeal for Ontario for the week of June 12, 2023.
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In Friendly v. 1671379 Ontario Inc., a dispute arose among various judgment creditors of 1671379 Ontario Inc. (“167”) asserting priority claims to garnishment funds. The motion judge had considered the interplay of s. 20(1)(a) of the PPSA and s. 2(1) of the Creditors’ Relief Act. The general rule under the Creditors’ Relief Act is that there is no priority among creditors for garnished funds, but the PPSA permits priority claims. On the issue of priority, the Court upheld the motion judge’s findings that a mortgagee with registered PPSA had priority. However, the Court found that the other judgment creditors who were not given an opportunity to make submissions at the garnishment proceeding on certain new issues that were only uncovered during the appeal were entitled to do so, and thus, remitted the issue back to the motion judge for determination.
We would like to congratulate Blaney’s very own Varoujan Arman for successfully responding to the appeal in Friendly v. 1671379 Ontario Inc.
In Trillium Power Wind Corporation v. Ontario, the Court dealt with the issue of spoliation. While the appellant lost on the appeal from the dismissal of its main claim against the Ontario government, the Court allowed the appeal in respect of the claim for spoliation. Ontario had destroyed relevant records with knowledge of the appellant’s claim. As a remedy, the Court denied Ontario over $750,000 in costs that had been awarded to it by the motion judge, and awarded $30,000 in costs of the appeal to the appellant.
In a very lengthy 99-page decision in Lauzon v Ontario (Justices of the Peace Review Council), the Appellant, a Justice of the Peace, appealed a Hearing Panel’s finding that she committed judicial misconduct. The Appellant wrote an article published in the National Post criticizing the operation of bail courts and the conduct of some Crown prosecutors. Following complaints made to the Justices of the Peace Review Council, the Hearing Panel asserted that the Appellant’s misconduct indicated “a reasonable apprehension of bias, if not actual bias”, and recommended the Appellant’s removal from office. The Divisional Court dismissed a judicial review application. Thankfully, the Court set aside the disposition that removed the Appellant from office and substituted it with a reprimand and 30-day suspension without pay.
In Raponi v. Olympia Trust Company, the Court upheld the decision of the motion judge to dismiss the motion for certification of a class action.
Other topics covered this week include defamation, constructive dismissal, and vexatious litigants.
Wishing everyone an enjoyable weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
Trillium Power Wind Corporation v. Ontario, 2023 ONCA 412
Keywords: Torts, Misfeasance in Public Office, Spoliation, Remedies, Civil Procedure, Summary Judgment, Costs, Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, Trillium Power Wind Corp. v. Ontario, 2021 ONSC 6731, McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, Spasic Estate v. Imperial Tobacco Ltd. (2000), 49 O.R. (3d) 699 (C.A.), Casbohm v. Winacott Spring Western Star Trucks, 2021 SKCA 21, St. Louis v. Canada (1896), 25 S.C.R. 649, Armstrong v. Moore, 2020 ONCA 49, R. v. Livingston, 2018 ONCJ 25
Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425
Keywords: Professional Discipline, Justices of the Peace, Reasonable Apprehension of Bias, Administrative Law, Judicial Review, Constitutional Law, Freedom of Speech, Canadian Charter of Rights and Freedoms, ss. 1 and 2, Justices of the Peace Act, R.S.O. 1990, c. J.4., Justices of the Peace Review Council Procedures Document, s. 17.3, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 6(1)(a), Baron v. Canada [1993] 1 S.C.R. 416., Doré v. Barreau du Québec 2012 SCC 12, Moreau-Bérubé v. New Brunswick (Judicial Council) 2002 SCC 11, Law Society of British Columbia v. Trinity Western University 2018 SCC 32, Loyola High School v. Quebec (Attorney General) 2015 SCC 12, R. v. Oakes [1986] 1 S.C.R. 103, R. v. Singh 2018 ONSC 5336, R. v. Zora 2020 SCC 14, R. v. Antic 2017 SCC 27, R. v. Lippé [1991] 2 S.C.R. 11, Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65, Ruffo v. Conseil de la magistrature 1995 SCC 267, Agraira v. Canada (Public Safety and Emergency Preparedness) 2013 SCC 36, Northern Regional Health Authority v. Horrocks 2021 SCC 42, Ottawa Police Services v. Diafwila 2016 ONCA 627, Conférence des juges de paix magistrats du Québec v. Québec (Attorney General) 2016 SCC 39, Wewaykum Indian Band v. Canada 2003 SCC 45, Committee for Justice and Liberty et al. v National Energy Board et al. [1978] 1 S.C.R. 369, Re Paroian , Courey, Cohen & Houston and The Queen, Boucher v. The Queen (1980) ONCA 471, Boucher v The Queen [1955] S.C.R. 16, R v McNeil 2009 SCC 3, Re Bienvenue (Can. Judicial Council, 1996), Re Camp (Can. Judicial Council, 2017), Re Zabel (Ont. Judicial Council, 2017), Re Philips (Ont. Justices of the Peace Review Council, 2013), Re Foulds (Ont. Justices of the Peace Review Council, 2018), Re Welsh (Ont. Justices of the Peace Review Council, 2009 and 2018), Re Matlow (Can. Judicial Council, 2003), Re Winchester (Ont. Justices of the Peace Review Council, 2020), Ruffo (Re) 2005 QCCA 1197, Re Massiah (Ont. Justices of the Peace Review Council, 2012), Groia v Law Society of Upper Canada 2015 ONSC 686, R v Valentini 1999 ONCA 178, R v Reeve 2020 ONCA 381, Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, Cooper v Canada (Human Rights Commission) 1996 SCC 854, Slaight Communications v Davidson 1989 SCC 1038, Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, Alberta v Hutterian Brethren of Wilson Colony 2009 SCC 37, Flynn (Can. Judicial Council, Report by the Inquiry Committee, 2003), Ethical Principles for Judges, Commentary 1.A.1, 1.A.3, 1.A.6, 1.C.1, Judiciaries in Comparative Perspective, “The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr. Justice Berger”, “Judicial Free Speech and Accountability: Should Judges Be Seen but Not Heard?”, “Time, Place, and Manner Restrictions on Extrajudicial Speech by Judges”, “Courting Controversy: The Problems Caused by Extrajudicial Speech and Writing”, “Must a Judge be a Monk – Revisited”
Raponi v. Olympia Trust Company, 2023 ONCA 428
Keywords: Breach of Fiduciary Duty, Breach of Trust, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Class Proceedings Act, 1992, S.O. 1992, c. 6, Income Tax Act, R.S.C. 1985, 15, c. 1, Mortgage Brokerages, Lenders and Administrators Act, 2006, S.O. 2006, c. 29, Income Tax Regulations, C.R.C., c. 945, Income Tax Folio S3-F10-C1, Hollick v. Toronto (City), 2001 SCC 68, Bowman v. Ontario, 2022 ONCA 477, Leroux v. Ontario, 2023 ONCA 314, Froese v. Montreal Trust Company of Canada (1996), 137 D.L.R. (4th) 725 (B.C.C.A.), Ivany et al. v. Financiere Telco Inc., et al., 2013 ONSC 6347, Das v. George Weston Limited, 2018 ONCA 1053, McCreight v. Canada (Attorney General), 2013 ONCA 483, Waters’ Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984)
Friendly v. 1671379 Ontario Inc., 2023 ONCA 423
Keywords: Judgment Creditors, Consent Judgment, General Security Agreement, Priorities, Interpretation, Enforcement, Garnishment, Personal Property Security Act, R.S.O. 1990, c. P.10 Creditors’ Relief Act, 2010, S.O. 2010, Assignments and Preferences Act, R.S.O. 1990, 1889072 Ontario Limited v. Globealive Wireless Management Corp. et al, 2016 ONSC 3578
Short Civil Decisions
Bell v. Garden River First Nation, 2023 ONCA 424
Keywords: Torts, Defamation, Defences, Justification, Civil Procedure, Summary Judgment, Appeals, Fresh Evidence
Morey v. C.A.T. Inc., 2023 ONCA 422
Keywords: Contracts, Employment, Constructive Dismissal, Civil Procedure, Evidence, Hearsay, Fresh Evidence, Evidence Act, R.S.O. 1990, c. E.23, s. 20, Rules of Civil Procedure, r. 25.11, 76, Farber v. Royal Trust Co., [1997] 1 S.C.R. 846
Samra v. Ontario (Attorney General), 2023 ONCA 420
Keywords: Civil Procedure, Appeals, Frivolous and Vexatious, Abuse of Process, Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, Rules of Civil Procedure, r. 2.1, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720
Monterosso v. Metro Freightliner Hamilton Inc., 2023 ONCA 413
Keywords: Contracts, Interpretation, Breach, Defences, Mitigation, Howard v. Benson Group Inc., 2016 ONCA 256, Mohamed v. Information Systems Architects Inc., 2018 ONCA 428
Aplyn Estate v. Aplyn, [2023 ONCA 429]
Keywords: Wills and Estates, Intention, Gifts, Resulting Trust
CIVIL DECISIONS
Trillium Power Wind Corporation v. Ontario, 2023 ONCA 412
[Feldman, Lauwers and Roberts JJ.A.]
Counsel:
D. Milosevic, for the appellant
C. Wayland, E. Wagner and R. Mann, for the respondents
Keywords: Torts, Misfeasance in Public Office, Spoliation, Remedies, Civil Procedure, Summary Judgment, Costs, Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, Trillium Power Wind Corp. v. Ontario, 2021 ONSC 6731, McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, Spasic Estate v. Imperial Tobacco Ltd. (2000), 49 O.R. (3d) 699 (C.A.), Casbohm v. Winacott Spring Western Star Trucks, 2021 SKCA 21, St. Louis v. Canada (1896), 25 S.C.R. 649, Armstrong v. Moore, 2020 ONCA 49, R. v. Livingston, 2018 ONCJ 25
facts:
In response to Ontario’s promotion of its wind farm policies, the appellant applied for and proceeded toward obtaining authorization to operate a wind farm in the Lake Ontario Lakebed. The appellant made a significant investment in performing the studies and other matters required in the approval process when, on February 11, 2011, without prior notice, Ontario announced a halt to its consideration of any offshore wind farm projects until such time as the environmental impact of such projects could be studied. This announcement effectively terminated the appellant’s approval application and coincided with the closing of the appellant’s project financing, which consequently did not proceed.
On May 19, 2011, by notice of proceeding against the Crown, the appellant commenced proceedings against Ontario, seeking damages for its failed wind farm project. In 2013, the Court dismissed much of the appellant’s claim down to only the allegation of misfeasance in public office because Ontario allegedly timed its moratorium announcement to forestall the closing of the appellant’s project financing. In 2015, the appellant amended its pleadings to include a claim of spoliation after it learned that Ontario had destroyed thousands of documents and evidence allegedly related to internal government communications leading to the halt. The parties brought competing summary judgment motions and the motion judge dismissed the appellant’s remaining causes of action, with costs to Ontario in the amount of $757,486.89.
issues:
- Did the motion judge err in concluding that there was no evidentiary basis to support the appellant’s claim of misfeasance that the February 11, 2011, public announcement was timed to injure the appellant?
- Did the motion judge err by misstating and misapplying the test for spoliation, as either a standalone tort or as an evidentiary finding?
holding:
Appeal allowed, in part.
reasoning:
- No.
The Court found that the motion judge correctly concluded that the appellant had no evidence to counter the direct evidence of Mr. M. and Mr. MI. that the timing of the February 11, 2011, public announcement about offshore windfarm projects was coincidental. The Court stated that further support for the conclusion that the timing of the announcement was coincidental came from the unchallenged evidence of other officials that the moratorium decision by the Environmental Minister and the timing of the announcement by the Office of the Premier were independently made prior to February 9 in January or early February 2011.
The Court rejected the appellant’s submission that an email dated January 27, 2011, from members of the Ministry of the Environment about a conversation with J.K. amounted to cogent evidence to support the appellant’s claim that Ontario deliberately timed its announcement to undermine the appellant’s financing. First, the Court stated that as this email was not referenced or otherwise brought to the motion judge’s attention during the motion, it was hardly fair to fault the motion judge for not addressing it. Second, the Court stated that this would not have affected the outcome of the motion due to the vague timing reference, and failed to undermine the direct evidence accepted by the motion judge that the individuals in charge of the timing of the announcement had no knowledge of the timing of the appellant’s financing.
The Court also upheld the motion judge’s decision that the appellant could not contest the wisdom of Ontario’s wind farm policies, including its decision to cancel the program. As a result, it could not compel Ontario to reverse the cancellation of the program, nor insist that Ontario continue to offer project funding. The appellant could therefore not prove that it suffered any damages. The motion judge’s conclusion that no amount of funding could accomplish what the appellant could not achieve in these proceedings was logical and unassailable.
2. No.
The Court agreed that the appellant’s claim for spoliation should not have been dismissed. The motion judge had dismissed the spoliation claim by finding that “no reasonable inference can be drawn that any documents were deleted or destroyed in an attempt to affect this litigation”. In addition, the motion judge had found that any presumption of an intentional destruction of records was rebutted by evidence demonstrating that the normal record keeping practice for the Office of the Premier, at the relevant time, was to purge email accounts for departing employees and destroy mobile devices belonging to very senior employees.
The Court noted that spoliation “occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation” (McDougall). In St. Louis v. Canada, the Supreme Court established that the destruction of evidence carries a rebuttable presumption that “the evidence destroyed would have been unfavourable to the party who destroyed it”.
The court’s jurisdiction to grant remedies in response to spoliation springs from rules of civil procedure, its inherent power to control an abuse of its process, and its inherent discretion with respect to costs. The Court stated that whether damages, including punitive damages, may be awarded if spoliation is treated as a standalone cause of action was an issue for another day.
The Court found that the motion judge erred in dismissing the claim by holding that the evidentiary basis for the appellant’s claim was absent and by concluding that the unfavourable presumption against Ontario because of its destruction of documents was rebutted by the implementation of a government policy that the motion judge acknowledged was improper.
First, there was ample evidentiary basis to support spoliation by Ontario. Based on the motion judge’s findings, there was no question that the destruction in issue was deliberate and in accordance with an improper government policy, and a notorious violation of record-keeping obligations raising serious issues of political accountability.
Additionally, there was no dispute that the impugned destruction occurred subsequent to the commencement of the appellant’s claim and concerned likely relevant documents in the possession of individuals intimately involved in the relevant events and who were aware of the appellant’s claim. As a party to these proceedings, Ontario was required to preserve any potentially relevant documents in order to fulfill its disclosure obligations.
The Court held that the motion judge failed to look at the question of spoliation in the broader context of Ontario’s obligations to preserve and produce relevant documents. He therefore applied a very narrow construction to the meaning and effect of Ontario’s intentional destruction of evidence that Ontario knew it had to preserve and produce. The Court declined to remit the case to trial for a determination of the appropriate quantum of damages arising from the spoliation, as the spoliation claim was inextricably tied up with its misfeasance claim. Instead, the Court provided a remedy depriving Ontario of its costs that had been awarded to it by the motion judge and granted the appellant its costs of the appeal in the amount of $30,000.
Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425
[Lauwers, Roberts and Miller JJ.A.]
Counsel:
Greenspon and P. Daly, for the appellant
Goldenberg and A. Dobkin, for the respondent
Rollwagen and A. Quinn, for the intervener The Association of Justices of the Peace of Ontario
Keywords: Professional Discipline, Justices of the Peace, Reasonable Apprehension of Bias, Administrative Law, Judicial Review, Constitutional Law, Freedom of Speech, Canadian Charter of Rights and Freedoms, ss. 1 and 2, Justices of the Peace Act, R.S.O. 1990, c. J.4., Justices of the Peace Review Council Procedures Document, s. 17.3, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 6(1)(a), Baron v. Canada [1993] 1 S.C.R. 416., Doré v. Barreau du Québec 2012 SCC 12, Moreau-Bérubé v. New Brunswick (Judicial Council) 2002 SCC 11, Law Society of British Columbia v. Trinity Western University 2018 SCC 32, Loyola High School v. Quebec (Attorney General) 2015 SCC 12, R. v. Oakes [1986] 1 S.C.R. 103, R. v. Singh 2018 ONSC 5336, R. v. Zora 2020 SCC 14, R. v. Antic 2017 SCC 27, R. v. Lippé [1991] 2 S.C.R. 11, Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65, Ruffo v. Conseil de la magistrature 1995 SCC 267, Agraira v. Canada (Public Safety and Emergency Preparedness) 2013 SCC 36, Northern Regional Health Authority v. Horrocks 2021 SCC 42, Ottawa Police Services v. Diafwila 2016 ONCA 627, Conférence des juges de paix magistrats du Québec v. Québec (Attorney General) 2016 SCC 39, Wewaykum Indian Band v. Canada 2003 SCC 45, Committee for Justice and Liberty et al. v National Energy Board et al. [1978] 1 S.C.R. 369, Re Paroian , Courey, Cohen & Houston and The Queen, Boucher v. The Queen (1980) ONCA 471, Boucher v The Queen [1955] S.C.R. 16, R v McNeil 2009 SCC 3, Re Bienvenue (Can. Judicial Council, 1996), Re Camp (Can. Judicial Council, 2017), Re Zabel (Ont. Judicial Council, 2017), Re Philips (Ont. Justices of the Peace Review Council, 2013), Re Foulds (Ont. Justices of the Peace Review Council, 2018), Re Welsh (Ont. Justices of the Peace Review Council, 2009 and 2018), Re Matlow (Can. Judicial Council, 2003), Re Winchester (Ont. Justices of the Peace Review Council, 2020), Ruffo (Re) 2005 QCCA 1197, Re Massiah (Ont. Justices of the Peace Review Council, 2012), Groia v Law Society of Upper Canada 2015 ONSC 686, R v Valentini 1999 ONCA 178, R v Reeve 2020 ONCA 381, Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, Cooper v Canada (Human Rights Commission) 1996 SCC 854, Slaight Communications v Davidson 1989 SCC 1038, Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, Alberta v Hutterian Brethren of Wilson Colony 2009 SCC 37, Flynn (Can. Judicial Council, Report by the Inquiry Committee, 2003), Ethical Principles for Judges, Commentary 1.A.1, 1.A.3, 1.A.6, 1.C.1, Judiciaries in Comparative Perspective, “The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr. Justice Berger”, “Judicial Free Speech and Accountability: Should Judges Be Seen but Not Heard?”, “Time, Place, and Manner Restrictions on Extrajudicial Speech by Judges”, “Courting Controversy: The Problems Caused by Extrajudicial Speech and Writing”, “Must a Judge be a Monk – Revisited”
facts:
The Appellant was appointed as a justice of the peace in 2011. In 2016, the Appellant wrote an article critical of the operation of bail courts and the conduct of some Crown prosecutors, which was published in the National Post. Three complaints about the article were made to the Justices of the Peace Review Council by several senior Crown Attorneys, in accordance with the Justices of the Peace Act. In 2018, after an investigation, the Council’s Complaints Committee ordered a formal hearing. The Hearing Panel unanimously found that the Appellant committed judicial misconduct.
In the merits decision, the Hearing Panel observed that by publishing an article on issues in the bail system a judicial officer would not necessarily be committing misconduct. However, the Panel asserted that it was how the Appellant wrote the article that constituted misconduct. The Panel explained that the issue was whether in publishing the article “[the Appellant] failed to exercise caution and restraint and thereby crossed a line giving the appearance of bias and undermining public confidence [in] the judiciary.” The Panel criticized the Appellant’s use of language in the article, finding that it was not “judicious” or “measured”, but was “accusatory, insulting, inflammatory, and personal”, especially regarding prosecutors, and was designed to “garner maximum media attention”.
However, there was a dramatic escalation in the Hearing Panel’s description of the seriousness of the Appellant’s misconduct, and again in the majority’s disposition reasons, which asserted that the Appellant’s misconduct was showing “a reasonable apprehension of bias, if not actual bias” against Crown prosecutors.
Following the disposition hearing, two Panel members recommended the Appellant’s removal from office as necessary to restore public confidence in the administration of justice. The dissenting member was the only panelist with personal experience of the courtroom pressures that justices of the peace face. He largely agreed with the majority’s discussion of the disposition principles but found that a more appropriate recommendation would be a reprimand and a 30-day suspension without pay.
The Divisional Court dismissed the Appellant’s application for judicial review of the merits and disposition decisions on the basis that both were reasonable. The Court previously granted the Appellant leave to appeal under s. 6(1)(a) of the Courts of Justice Act.
issues:
- Was the finding that the Appellant was biased reasonable?
- Was the majority’s assessment of the seriousness of the Appellant’s misconduct reasonable considering the precedents and aggravating and mitigating factors?
- Did the majority take account of the Appellant’s Charter rights and related constitutional elements in the proportionality analysis required by Doré?
holding:
Appeal allowed in part.
reasoning:
- Was the finding that the Appellant was biased reasonable?
No.
(a) Were the Hearing Panel’s findings warranted on the evidence?
No, the Court held that the majority’s finding that the Appellant was biased against Crown prosecutors could not be sustained on the evidence. The Court noted that in the merits decision, the Hearing Panel rightly observed that a judicial officer would not necessarily commit misconduct by publishing an article on issues in the bail system. However, the Court found that the amplification of the language around the seriousness of her misconduct in the balance of the Hearing Panel’s merit’s decision was not reasonable.
(b) Was the Hearing Panel’s approach to the evidence reasonable?
No, the Court found that the Hearing Panel’s approach to the evidence was unreasonable because: the Hearing Panel did not take a holistic approach to the Appellant’s article; its articulation of her misconduct evolved; the Panel did not take seriously the truth of her assertions about problems in the bail system; it discounted her positive motivation in writing the article; and it was not even-handed in its approach to the evidence.
The Court found that while the Appellant used very strong words in her article, the Hearing Panel did not account for the context in which she was driven to use such words. The Court concluded that the Appellant’s language did not evidence any operative bias against prosecutors.
”’Further, the Court found that it was unreasonable for the Hearing Panel to downplay the veracity of both the general and specific complaints the Appellant set out so forcefully in the article. The Court also noted that the Hearing Panel’s views of the Appellant’s misconduct escalated, which took away from the fairness of the discipline process where the subject is supposed to know precisely the misconduct that is at issue.
The Court found that the Hearing Panel discounted the evidence of the Appellant’s positive motivation in publishing the article, and that this failure to treat the positive motivation issue seriously was an obvious reasoning error. The Court found that motivation is a relevant consideration, even though not dispositive.
The Court found that the Hearing Panel did not scrutinize the evidence fairly and even-handedly. The Court found that it was unreasonable to ignore the evidence of other justices of the peace who would have corroborated the Appellant’s testimony about the issues plaguing bail courts.
(c) Was the finding of irremediable bias reasonable?
No, the Court was of the view that the majority’s finding that the Appellant was irremediably biased against Crown prosecutors was unreasonable. The Court cited four reasons for that conclusion: the majority applied a subjective and not an objective test for judicial bias; the evidence cited in support of its finding of bias did not support the finding; there was no evidence of operative bias on the Appellant’s part against Crown prosecutors; and, post-complaint, the Appellant sat for years without incident.
The Court held that the appropriate test for judicial bias is objective, not subjective, and that the presence of bias is to be assessed from the perspective of a reasonable person. The Court found that the Hearing Panel erroneously adopted the subjective view of bias.
The Court found that the finding of bias was unreasonable based on the record. The Appellant continued to sit for years after the complaints at issue in this proceeding without any complaints about bias in anything she did, including approving bail conditions. The Court found that the Panel asked itself the wrong legal question by focusing on bias as subjective. According to the Court, the Panel considered only whether Crown prosecutors felt that the Appellant was biased. Instead, the Panel should have asked itself whether an informed person viewing the matter realistically and practically would believe that litigants would receive a fair hearing before the Appellant in bail court, which would have been an objective test. While the Appellant did manifest her anger in an inappropriate way in the article, her anger did not amount to bias on any measure.
2. Was the majority’s assessment of the seriousness of the Appellant’s misconduct reasonable considering the precedents and aggravating and mitigating factors?
No. The Court held that the majority made errors in its assessment, stating that the majority failed to adequately consider the effect that the disposition would have on the Appellant – a factor it was required to account for under Vavilov. By not engaging adequately with the precedents and the approach required by Vavilov, the majority escalated the misconduct that the Hearing Panel initially found – publication of an inflammatory article – to something much more serious – irremediable bias – without the necessary evidentiary record to support such a finding.
(a) Precedents
The Court explained that the Hearing Panel was required to advert to precedents in assessing the disposition. In the dissenting member’s view, the Appellant’s removal from office would constitute a marked departure from the existing jurisprudence. The Court agreed, stating that in Canadian history, no judges had ever been removed from office purely for their extrajudicial speech.
The Court stated that the precedents set a high bar that must be met before misconduct will justify a recommendation for removal from judicial office. Cases that have led to removal have involved types of misconduct that overshadow what the Appellant did. The Court explained that examples of such conduct include discriminatory and sexist speech, participation in illegality, self-dealing, repeated instances of misconduct, and the failure to do the work required of the office. It was incumbent on the majority to engage with the precedents cited by the dissent on matters of principle, but it did not do so.
The Court concluded that the precedents established that a removal recommendation generally requires truly offensive speech and a disregard for the rule of law. The Court held that none of these examples applied to the Appellant.
(b) Aggravating and Mitigating Factors
The Court explained that the disposition phase requires a hearing panel to consider both aggravating and mitigating factors, and so resembles criminal and quasi-criminal sentencing. The Court stated that while both the majority and the dissenting member considered the factors, it was unusual that the majority did not identify a single mitigating factor in the Appellant’s favour.
The Court stated that the first and second factors addressed whether the misconduct was an isolated incident or showed a pattern, and the nature of the misconduct. The dissent noted that the Panel “only found misconduct” respecting the article’s publication and its “language and tone”, and that because “there [was] no pattern of misconduct … this [was] a mitigating factor.” As to the nature of the misconduct, the dissent observed that while the article garnered publicity, there were “only three formal complaints” and none were from the public. The dissent found that this “muted response from the public … should now be taken into account when determining the appropriate sanction to impose.”
The Court explained that the majority of the Panel took a different approach by accepting counsel’s submission that it was open to the Panel “to find that the evidence shows continuing bias by [the Appellant] since the publication of the Article” so that the misconduct is better characterized not as an “isolated event, but part of a pattern of misconduct.” The Court held that while professing to keep separate the complaints and the Appellant’s conduct since the article’s publication, the majority did not do so.
The Court explained that another sentencing factor asks whether the justice has “evidenced an effort to change or modify [her] conduct”. The dissent considered this to be a mitigating factor because the Appellant did not write further articles or opinions since the original publication. The Appellant’s counsel submitted that the fact that she “refrained from responding to media requests for interviews” implied “that there [was] little risk of the conduct reoccurring.” The Court found that the majority rejected this submission without explanation.
The Court noted that the majority referred to several precedents to establish some well-founded and uncontroversial propositions. The Court held that the problem was not with these general propositions, but with their proportional application to the Appellant. In their details, these precedents were not factually or legally apposite – the majority cherry-picked quotes without engaging in an analysis of the nature and seriousness of the misconduct at issue in the cases.
The Court held that the majority made a legal error in its approach. Because the Appellant continued to assert her defence, the majority effectively turned her adamant defence into an aggravating factor. The Court stated that this was wrong in principle because it interfered with the Appellant’s right to make full answer and defence.
3. Did the majority take account of the Appellant’s Charter rights and related constitutional elements in the proportionality analysis required by Doré?
No. The Court explained that the Charter applies in assessing the constitutional validity of both laws and of decisions made by officials and statutory tribunals discharging statutory mandates, including the Hearing Panel. The Hearing Panel’s fullest discussion of Doré was in the merits reasons, and not revisited in the disposition reasons. The Court explained that this was because the Panel invoked Doré in properly dismissing the Appellant’s application for a stay under s. 24(2) of the Charter on the basis that her s. 2(b) Charter right to freedom of expression was limited by the proceedings. However, the Court held that the Panel did not adequately attend to the application of Doré in the disposition phase.
The Court stated that a “robust proportionality analysis” involves adverting to the proportionality analysis developed by the Supreme Court in Oakes for cases in which a government actor is seeking to limit a Charter right. The Court held that the Hearing Panel did not undertake a full Doré analysis but simply said, of the merits decision, that it would be “guided by Charter principles” in making its findings about the article and otherwise going about its work. The Court stated that the Doré approach should not tempt tribunals to omit key steps in the analysis and held that because the rights limitation analysis in this case was complex and involved many competing public interests, the Hearing Panel had to do more.
Under Doré, the Hearing Panel was required to engage in a robust limitations analysis that takes the guarantee of s. 1 seriously. The Court explained that an administrative decision-maker must bear in mind the elements of the affected Charter rights and determine whether the proposed disposition would constitute an unreasonable limit. One way of acting unreasonably is to limit the right more than is necessary to achieve the statutory objectives in the particular context. The Court noted that the context here included the fact that the Appellant is a public office holder protected by the constitutional principles of judicial independence associated with the separation of powers.
The Court stated that the Panel was required to undertake three inquiries: (1) assess the negative or deleterious effects that the removal recommendation would have on the exercise of right asserted by the Appellant and any collateral effects; (2) assess the benefits of that disposition in terms of the public good; and (3) undertake the proportionality analysis by assessing, for example, whether the disposition involves means that are always impermissible, whether the disposition is needed to achieve the good sought, or whether the deleterious effects are out of proportion to the public good to be achieved. The Court found that the Panel did not do that work, and that it was not up to the Court to reconstruct what the Panel’s approach would have been. It is not the reviewing court’s function to fill a “fundamental gap” in a tribunal’s reasoning by mining the record.
The Court stated that the manifest errors made by the majority rendered its disposition decision unreasonable: it failed to take due account of the governing principles in the areas of judicial independence and judicial impartiality; it erred in its finding that the Appellant was biased against Crown prosecutors; it failed to take into account the relevant precedents and the appropriate mitigating and aggravating sentencing factors; and it failed to carry out the robust proportionality analysis required by Doré. The Court explained that this was the kind of matter that would ordinarily be remitted to another hearing panel. However, the Court stated that remitting the matter would serve no useful purpose.
The Court agreed with the dissenting member that the Hearing Panel should “act cautiously” in the disposition because “[i]t is important to recognize…that the manner in which complaints of judicial misconduct are addressed can have an inhibiting or chilling effect on judicial action” (Re Baldwin). The Court stated that if the Appellant’s conduct were condemned and she were removed from the bench, other judges might be dissuaded from being critical of the administration of justice, which would undermine judicial independence, freedom of expression and the separation of powers.
According to the Court, giving effect to the Hearing Panel’s flawed approach to the analysis would give rise to a bad precedent, especially the reframing of the test for bias in subjective terms. It would substantially lower the bar for a justice’s removal.
The Court agreed with the Hearing Panel that the statutory objective in this case was the protection of public confidence in the independence, integrity, and impartiality of the judiciary. However, the Court held that removal from office is a weighty penalty, and its imposition against the Appellant in this case would be disproportionate.
Having concluded that the majority’s finding that the Appellant’s conduct “gives rise to a reasonable apprehension of bias, if not actual bias” was not principled, legally correct, or proven, the Court explained that the only thing left was the Hearing Panel’s initial finding of misconduct – writing the article in a certain inflammatory fashion. The Court stated that while the initial view of the Appellant’s conduct – the public nature of the intemperate remarks – was sound, there was a lurking issue requiring comment. Namely, that any judge with experience soon discovers frequent litigants about whom the judge forms impressions, both good and bad. The Court explained that judges know that they are obliged to set aside such personal impressions, and that this is no less true of bail court.
The Court held that the Appellant’s removal from office as justice of the peace for writing a polemical article that, nonetheless, accurately identified real problems with bail courts, would be grossly disproportionate to the nature, extent and seriousness of her judicial misconduct.
The Court set aside the disposition that removed the Appellant from office and substituted it with a reprimand and 30-day suspension without pay.
Raponi v. Olympia Trust Company, 2023 ONCA 428
[Trotter, Sossin and Copeland JJ.A.]
Counsel:
G. Myers and P. Bates, for the appellant
R. Morris, D. Szirmak and I. Alame, for the respondents
Keywords: Breach of Fiduciary Duty, Breach of Trust, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Class Proceedings Act, 1992, S.O. 1992, c. 6, Income Tax Act, R.S.C. 1985, 15, c. 1, Mortgage Brokerages, Lenders and Administrators Act, 2006, S.O. 2006, c. 29, Income Tax Regulations, C.R.C., c. 945, Income Tax Folio S3-F10-C1, Hollick v. Toronto (City), 2001 SCC 68, Bowman v. Ontario, 2022 ONCA 477, Leroux v. Ontario, 2023 ONCA 314, Froese v. Montreal Trust Company of Canada (1996), 137 D.L.R. (4th) 725 (B.C.C.A.), Ivany et al. v. Financiere Telco Inc., et al., 2013 ONSC 6347, Das v. George Weston Limited, 2018 ONCA 1053, McCreight v. Canada (Attorney General), 2013 ONCA 483, Waters’ Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984)
facts:
The Appellant brought a motion to certify a class action against Olympia Trust Company (“Olympia Trust”). The Appellant is one of approximately 13,000 lenders who allege they were induced to invest by Fortress Real Capital Inc. and Fortress Real Developments Inc. (“Fortress Developments”), which designed and promoted a syndicated mortgage loan (“SML”) scheme. Olympia Trust was a trustee for the syndicated mortgages (69 SMLs on 54 projects) for the lenders who advanced funds from their self-directed registered savings accounts.
The syndicated mortgage design was allegedly a sham. In 2014, some of the projects began to experience financial difficulties and the syndicated mortgages fell into arrears. The lenders collectively suffered losses on 54 projects and 69 syndicated mortgages upwards of $442.2 million.
The class action concerned the projects planned at 54 locations. The motion judge roughly calculated the average loss per class member at $25,000 with a class size of approximately 2,750 to 3,250 lenders who used registered savings accounts with Olympia Trust.
The motion judge dismissed the Appellant’s certification motion because he found that: a) it was plain and obvious that the Appellant’s claims for breach of trust, breach of fiduciary duty, breach of contract, and negligence could not succeed and therefore did not disclose a cause of action; b) none of the proposed issues were common to the omnibus class action; c) as a result of these two conclusions, the preferable procedure criterion was also not satisfied; and, d) the Appellant was not an adequate representative plaintiff because he only participated as a lender in the Collier Centre projects and his litigation plan was wrongly premised on not requiring individual issues trials or subclasses.
The Appellant seeks certification of the class action solely on behalf of the lenders for the Collier Centre projects and its three syndicated mortgages claiming breach of trust and fiduciary duty.
issues:
Did the motion judge err in dismissing the certification motion with respect to the Collier Centre projects?
holding:
Appeal dismissed.
reasoning:
No.
The motion judge set out the elements of the test on a certification motion under s. 5 of the Class Proceedings Act, 1992 (“CPA”) as follows: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (3) the claims of the class members raise common issues; (4) a class proceeding would be the preferable procedure for the resolution of the common issues; and (5) there is a representative plaintiff who: (a) would fairly and adequately represent the interests of the class; (b) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding; and (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
The motion judge recognized that the question is not whether the plaintiff’s claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding, based on a purposive and generous application of the certification criteria.
The Court found that the motion judge did not err in finding that the Income Tax Act (“ITA”), Income Tax Regulations, (“Regulations”) and the Income Tax Folio S3-F10-C1 (“Folio”) do not impose duties on Olympia Trust to take steps to ensure that the Collier SMLs were a “qualified investment” within the meaning of the ITA. The Court found that the ITA provisions at issue permitted investors to use registered retirement fund savings for purposes of investing in SMLs where the subject property is a “qualified investment” as defined by the ITA. Section 4900(1)(j) of the Regulations explains that an SML is a ““qualified investment” only when it is “fully secured” or “would be fully secured were it not for a decline in the fair market value of the property after the debt obligation was issued”.
The Court found that the motion judge set out the law with respect to the fiduciary duties of trustees and correctly emphasized that such duties are to be determined on a case-by-case basis. The motion judge found that s. 207.01(5) of the ITA did not give rise to duties as between trustees and investors. He also found that the ITA does not impose a duty to eliminate non-qualified investments, but instead imposes an obligation of reporting the non-qualified investments and a penalty for the failure to report.
The Court found that there was no error in the motion judge’s reasoning and conclusion. The Court noted that while there may be differing views on the scope of a “duty to minimize” the possibility of investments from the registered savings plan in non-qualifying properties, the text, context and purpose of this provision makes clear that is a duty owed by trustees to the CRA, not to the investors.
The Court found that the non-binding guidance set out in the Folio cannot itself be the source of a legally binding duty and that the scheme was aimed at regulating tax avoidance, not protecting investors.
The Court further found that the motion judge did not err in finding that the Declaration of Trust did not impose the duties on the trustee to ensure SML investments were in qualified properties. The Court noted that the provision of the agreement requiring that “the Trustee will exercise the same degree of care with the assets of your Plan as it would with its own assets to minimize the fact that the Plan hold any non-qualified investments” similarly reflects a promise on the part of the trustee to meet its obligation under the ITA and to the CRA, not a promise to protect investors.
The Court concluded that the motion judge did not exceed the scope of s. 5(1)(a) of the CPA in finding it was plain and obvious that the claims for breach of trust and breach of fiduciary obligation could not succeed.
Friendly v. 1671379 Ontario Inc., 2023 ONCA 423
[Brown, Sossin and Copeland JJ.A.]
Counsel:
E. Birnboim and M. Crampton, for the appellant
S. Robinson, for the respondent MCAP Financial Corporation
J. Cherniak for the respondent Cherniak Law Professional Corporation
Varoujan Arman, for the respondent Dorr Capital Corporation
D. Seed, for the respondent 1671379 Ontario Inc.
Keywords: Judgment Creditors, Consent Judgment, General Security Agreement, Priorities, Interpretation, Enforcement, Garnishment, Personal Property Security Act, R.S.O. 1990, c. P.10 Creditors’ Relief Act, 2010, S.O. 2010, Assignments and Preferences Act, R.S.O. 1990, 1889072 Ontario Limited v. Globealive Wireless Management Corp. et al, 2016 ONSC 3578
facts:
The dispute arises out of competing priorities of various judgment creditors related to a garnishment hearing. The payments subject to the garnishment were owed to the respondent 1671379 Ontario Inc. (“167”) by the City of St. Catharines and the Region of Niagara, pursuant to a program designed to encourage remediation of contaminated properties, called the Brownfield Tax Increment Based Incentive Grant Program Agreement (“BTIG”). The appellant, Assignment Credit Corp. (“ACC”), and the remaining respondents are judgment creditors of 167.
167 owned a commercial property located at 583 Welland Avenue in St. Catharines (the “Property”), which it intended to develop as a residential subdivision. At the time of the hearing before the motion judge, the City of St. Catharines had confirmed that at least $167,976.15 was then available and payable to 167 under the BTIG. It was noted that additional amounts may become available in the future as the development project is completed but those additional amounts were not quantified.
Two of the judgment creditors asserted priority to the garnishment funds in question. The respondent, MCAP Financial Corporation (“MCAP”) was a mortgagee over the subject development lands. MCAP held a general security agreement (“GSA”) and registered PPSA security. MCAP obtained default judgment against the 167 respondents on the shortfall remaining unpaid on the loan following the sale (the “Shortfall Judgment”). MCAP asserted a priority over all of the other judgment creditors on the basis of its registered security.
The other judgment creditor that asserted priority was the appellant, ACC. ACC is a corporation controlled by a lawyer who had acted for the ex-wife of 167’s principal in matrimonial litigation. ACC obtained an assignment of a judgment of Justice Mesbur obtained in the matrimonial litigation (the “Mesbur Judgment”). The judgment included a charge over the contemplated BTIG payments as security for the amounts required to be paid pursuant to the judgment. ACC asserted that this language in the judgment gave it priority over all of the other judgment creditors, including MCAP. Other judgment creditors were not told of the garnishment proceedings and thus, were excluded from making submissions at the garnishment hearing on the amounts available to judgment creditors.
issues:
- Did the motion judge err in finding that MCAP’s claim for the Shortfall Judgment had priority based on MCAP’s GSA?
- Did the motion judge err in finding that ACC’s claim under the assignment of the Mesbur Judgment does not have any priority as among the claims of the remaining creditor respondents?
holding:
Appeal allowed, in part.
reasoning:
- No.
The Court began by stating that the motion judge recognized that s. 2(1) of the Creditors’ Relief Act (the “CRA”), provides: “Except as otherwise provided in this Act, there is no priority among creditors by execution or garnishment issued by the Superior Court of Justice.” However, based on s. 20(1)(a) of the PPSA and 1889072 Ontario Limited v. Globealive Wireless Management Corp. et al, the motion judge held that perfected security under the PPSA takes precedence over a later notice of garnishment.
In relation to priority as between MCAP and ACC, the motion judge held that the Mesbur Judgment, by its express terms, provided that the security interest it created in the BTIG payments is “subject to any valid prior encumbrance.” In light of his finding that MCAP had a secured interest (under the GSA) in amounts owed to 167 pursuant to the BTIG, any claim by ACC based on the Mesbur Judgment must be subject to MCAP’s claims secured by the GSA, which was perfected before the date of the Mesbur Judgment.
ACC argued that the motion judge erred in finding that MCAP’s judgment had priority under the GSA over ACC’s security interest in the proceeds of the BTIG based on the security interest created by the Mesbur Judgment.
The Court saw no error in the motion judge’s finding that MCAP’s GSA gave it priority over ACC’s claim based on the assignment of the Mesbur Judgment. The Court reasoned that 1) the GSA in favour of MCAP, by its terms, applies to the amounts due to the 167 respondents pursuant to the BTIG credits; 2) the GSA was perfected prior to the date of the Mesbur Judgment and 3) the Mesbur Judgment, by its terms, made the security interest it created in the payments due to the 167 respondents on account of the BTIG credits subordinate to “any valid prior encumbrance.”
2. Issue Remitted.
The respondent Dorr Capital Corporation (“Dorr”) was another judgment creditor of the 167 respondents. Dorr was the mortgage broker for the financing of the MCAP mortgage. Dorr obtained a judgment against the 167 respondents on December 16, 2014, for payment of $66,814.68, plus costs and interest at the rate of 10% per annum.
The Court noted that while motion judge had considered the priorities of the remaining creditors, he was not told that the Mesbur Judgment was a consent judgment. As a result, he did not consider whether the fact that it was a consent judgment had an impact on whether the PPSA applies to the Mesbur Judgment. Nonetheless, he found that the Mesbur Judgment created a security interest in several assets, including the BTIG credits, which may be owed to the 167 respondents. The Mesbur Judgment provided that: “[Ms. F.] shall be at liberty to register this judgment as security against such assets.” However, ACC had provided no evidence of registration or perfection. The motion judge then referred back to his earlier analysis of s. 2(1) of the CRA, which provides that there is no priority among creditors by execution or garnishment, subject to security registered and perfected under the PPSA. He held that because ACC’s asserted security from the Mesbur Judgment had not been registered and perfected, ACC could not claim priority over other creditors because of the general rule in s. 2(1) of the CRA that creditors are entitled to share in garnishment proceeds on a pro rata basis.
The respondent creditors argued that the fact that the Mesbur Judgment was obtained on consent was relevant to whether the PPSA applies to the Mesbur Judgment. If the PPSA applies, they argued that this would affect whether ACC is entitled to priority based on the Mesbur Judgment when the Judgment was not registered or perfected under the PPSA.
The respondent creditors submitted that the fact that the Mesbur Judgment was obtained on consent represented a further basis to conclude that ACC’s unperfected security interest based in the assignment of the Mesbur Judgment is subordinate to the interest of parties entitled to participate on a pro rata basis in the distribution of property seized by garnishment, pursuant to s. 2(1) of the CRA and s. 20(1)(ii) or (iii) of the PPSA. The Court stated that if this argument is accepted, it provides another basis to sustain the motion judge’s conclusion that ACC is not entitled to priority based on the Mesbur Judgment because its security interest was not perfected.
The respondents Dorr and Cherniak further argued that in light of the new information that the Mesbur Judgment was obtained on consent, it contravened ss. 3 and 4 of the Assignments and Preferences Act (the “APA”), such that the Mesbur Judgment is void as against them. In particular, Dorr and Cherniak argued that there is reason to believe that the 167 respondents were insolvent as of January 2015, when the Mesbur Judgment was issued. The 167 respondents knew of the claims of Dorr and Cherniak at the time the Mesbur Judgment was issued, but gave no notice to Dorr and Cherniak of the proceedings.
Dorr and Cherniak further argued that there is a basis to conclude that in entering into the Mesbur Judgment on consent, the 167 respondents preferred Ms. F and her corporation as creditors, voluntarily or by collusion with Ms. F, with intent to defeat other creditors. Alternatively, Dorr and Cherniak argued that the consent judgment is a conveyance or transfer made with intent to defeat creditors, contrary to s. 4 of the APA. The Court noted that if these arguments are accepted, then the Mesbur Judgment would be void as against any creditor against whom the 167 respondents engaged in an unjust preference and ACC would not be entitled to share in the disputed garnishment funds on a pro rata basis.
The Court found that the respondent creditors were denied the opportunity to raise these arguments before the motion judge, and to develop the appropriate evidentiary record, because ACC did not disclose before the motion judge that the Mesbur Judgment was obtained on consent. The Court concluded that as a matter of fairness, the respondent creditors should be given an opportunity to create a record and make submissions on these issues. Accordingly, the Court remitted the issue of priorities between ACC and the remaining creditor respondents after MCAP’s Shortfall Judgment had been satisfied to the motion judge for determination.
Congratulations to our very own Varoujan Arman for his success in Friendly v. 1671379 Ontario Inc.
SHORT CIVIL DECISIONS
Bell v. Garden River First Nation, 2023 ONCA 424
[Doherty, Hoy and Favreau JJ.A.]
Counsel:
N. Sayers and M. Bourrie, for the appellant
B. Shefman and V. Wicks, for the respondents
Keywords: Torts, Defamation, Defences, Justification, Civil Procedure, Summary Judgment, Appeals, Fresh Evidence
Morey v. C.A.T. Inc., 2023 ONCA 422
[Doherty, Hoy and Favreau JJ.A.]
Counsel:
L. Cerdà and S. Lemesurier, for the appellant
C. M. Krueger, for the respondent
Keywords: Contracts, Employment, Constructive Dismissal, Civil Procedure, Evidence, Hearsay, Fresh Evidence, Evidence Act, R.S.O. 1990, c. E.23, s. 20, Rules of Civil Procedure, r. 25.11, 76, Farber v. Royal Trust Co., [1997] 1 S.C.R. 846
Samra v. Ontario (Attorney General), 2023 ONCA 420
[Doherty, Hoy and Favreau JJ.A.]
Counsel:
J.S., acting in person
Ion, for the respondents
Keywords: Civil Procedure, Appeals, Frivolous and Vexatious, Abuse of Process, Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, Rules of Civil Procedure, r. 2.1, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720
Monterosso v. Metro Freightliner Hamilton Inc., 2023 ONCA 413
[Lauwers, Huscroft and Zarnett JJ.A.]
Counsel:
G. McGinnis and S. Ramsay, for the appellants
B. J. Troup, for the respondent
Keywords: Contracts, Interpretation, Breach, Defences, Mitigation, Howard v. Benson Group Inc., 2016 ONCA 256, Mohamed v. Information Systems Architects Inc., 2018 ONCA 428
Aplyn Estate v. Aplyn, 2023 ONCA 429
[Doherty, Hoy and Favreau JJ.A.]
Counsel:
K. Wise, for the appellant
J. M. Friedman, for the respondent
Keywords: Wills and Estates, Intention, Gifts, Resulting Trust
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.