In Beshay v Labib, the appellant had purchased a business and subsequently sued for breach of contract and misrepresentation, alleging the business was not as profitable as had been claimed. The case was dismissed for delay, as the appellant failed to provide a sufficient explanation for the litigation’s lack of progress, despite the extended deadlines due to the COVID-19 pandemic. The appeal was also dismissed, with the Court emphasizing the necessity of an acceptable explanation for delay with supporting evidence (which was lacking in this case).

In Jacob v Canada (Attorney General), the Court granted leave to intervene to the Canadian Civil Liberties Association and the Income Security Advocacy Center in an appeal. The case relates to a claim of discrimination against people with disabilities by the Federal Government in its implementation of the following emergency COVID-19 benefit programs: Canada Emergency Response Benefit, the Canada Recovery Benefit and the Canada Recovery Sickness Benefit.

In Roe v. Roe, a mother disinherited one of her four sons. He unsuccessfully challenged the Will at trial on the basis of a lack of capacity or undue influence. His appeal was dismissed.

In Scheibler v. Scheibler, a wife was ordered at trial to pay support to her husband. Her appeal was dismissed, partly on the basis that she had acquiesced in the husband’s failure to “get a job”.

In Frenkel v. Frenkel, the Court allowed an appeal, in part, from a property equalization order in a family law case. The trial judge had made calculation errors.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Beshay v Labib, 2024 ONCA 186

Keywords: Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, r. 48.14(7)(a), 1196158 Ontario Inc v 6274013 Canada Limited, 2012 ONCA 544, Windebank v Toronto East General Hospital, 2022 ONSC 6913, Yang v The Christian World Korea Inc, 2019 ONSC 6131, Burgess v University Health Network, 2022 ONCA 105

Jacob v Canada (Attorney General), 2024 ONCA 195

Keywords: Civil Procedure, Interveners, Canadian Charter of Rights and Freedom, s. 15, R v Sharma, 2022 SCC 39, Fraser v Canada (Attorney General), 2020 SCC 28

Roe v. Roe, 2024 ONCA 179

Keywords: Wills and Estates, Capacity, Undue Influence, Suspicious Circumstances, Vout v. Hay, [1995] 2 S.C.R. 876, Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Ont. S.C.), Boughton v. Knight (1873) L.R. 3 P. & D. 64 (U.K.), Tate v. Gueguegirre, 2015 ONSC 844 (Div. Ct.), Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225

Scheibler v. Scheibler, 2024 ONCA 191

Keywords: Family Law, Property, Matrimonial Home, Occupation Rent, Equalization of Net Family Property, Spousal Support, Family Law Act, R.S.O. 1990, c. F.3, s. 14(a), Hickey v. Hickey, [1999] 2 S.C.R. 518, Kerr v. Baranow, 2011 SCC 10, D.B.S. v. S.R.G., 2006 SCC 37

Frenkel v. Frenkel, 2024 ONCA 193

Keywords: Family Law, Property, Equalization of Net Family Property, Civil Procedure, Evidence, Witnesses, Credibility

Short Civil Decisions

Buduchnist Credit Union Limited v 2321197 Ontario Inc, 2024 ONCA 190

Keywords: Civil Procedure, Orders, Injunctions, Mareva Orders, Enforcement, Costs, Trade Capital Finance Corp v Cook, 2017 ONCA 281

Ekum-Sekum Incorporated (Brantco Construction) v. Lanca, 2024 ONCA 189

Keywords: Contracts, Construction, Breach of Trust, Construction Lien Act, R.S.O. 1990, c. C.30

9806881 Canada Corp. v. Swan, 2024 ONCA 187

Keywords: Contracts, Security Agreements, Repair and Storage Liens, Priority, Personal Property Security Act, Civil Procedure, Appeals, Orders, Directions

Shannon v. Hrabovsky, 2024 ONCA 188

Keywords: Civil Procedure, Appeals, Costs, Enhanced Costs, Substantial Indemnity, Rules of Civil Procedure, rr 1.03, 57.01(1), Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 29, Unisys Canada Inc. v. York Three Associates Inc. (2001), 150 O.A.C. 49, Davies v. Clarington (Municipality) et al., 2009 ONCA 722, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, Sawdon Estate v. Sawdon, 2014 ONCA 101, Westover Estate v. Jolicouer, 2024 ONCA 81, Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, Yan v. Hutchinson, 2024 ONCA 158

Kesete v. Gaspar, 2024 ONCA 198

Keywords: Torts, Negligence, MVA, Damages, Civil Procedure, Costs

CIVIL DECISIONS

Beshay v Labib, 2024 ONCA 186

[Pepall, George and Dawe JJ.A.]

Counsel:

A. Katzman, for the appellant

G. Honickman, for the respondents

Keywords: Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, r. 48.14(7)(a), 1196158 Ontario Inc v 6274013 Canada Limited, 2012 ONCA 544, Windebank v Toronto East General Hospital, 2022 ONSC 6913, Yang v The Christian World Korea Inc, 2019 ONSC 6131, Burgess v University Health Network, 2022 ONCA 105

Facts:

The appellant purchased Forest Grove Academy of Arts & Technology Inc. from A.L and H.L in December 2015 and sued them in December 2016 for breach of contract and misrepresentation, claiming the business was less profitable than represented. The appellant sought to rescind the purchase agreement or receive damages, while the respondents denied the claims. Despite occasional correspondence between counsel, the appellant made no significant effort to advance the litigation. The efforts to arrange a settlement were unproductive, and the appellant’s counsel was unresponsive for years. The legal deadline for setting the action for trial was extended due to the COVID-19 pandemic, but the appellant’s motion to avoid dismissal for delay was unsuccessful, leading to the dismissal of the action in May 2023. The appellant appealed from the dismissal order.

Issues:

Did the motion judge fail to properly apply the established legal test for dismissing actions for delay?

Holding:

Appeal dismissed.

Reasoning:

This legal test as per 1196158 Ontario Inc v 6274013 Canada Limited required the plaintiff to establish that there was “an acceptable explanation” for the delay, and also to demonstrate that the defendant would not suffer any non-compensable prejudice if the action was allowed to proceed. The Rules of Civil Procedure had previously required dilatory plaintiffs to bring a motion under r. 48 if an action had not been set down for trial within two years, but this deadline had been extended to five years.

The appellant contended that the motion judge made errors by setting an overly high standard for an “acceptable” explanation for delay, improperly evaluating his reasons for not advancing the litigation, and incorrectly assessing the prejudice to the respondents. The appellant attributed his inaction to family deaths, mental health issues, and financial strains, but the motion judge found these explanations unsupported by evidence, particularly noting his active business engagements during the period of alleged incapacity. The Court also rejected the appellant’s claim that financial difficulties due to the preschool’s profitability and the COVID-19 pandemic were to blame, pointing out his significant income and assets.

The Court concluded that the motion judge did not err in her decisions, highlighting the appellant’s failure to present convincing evidence for his delay and the respondents’ potential prejudice due to faded memories and missing records. The appellant’s argument that the motion judge should have considered the respondents’ inactivity and his proposed litigation timetable was dismissed, with the Court emphasizing the primary responsibility of the party initiating the proceeding to advance it. The dismissal of the action for delay was seen as justified, considering the appellant’s insufficient explanations for his inaction and the clear prejudice to the respondents.

Jacob v Canada (Attorney General), 2024 ONCA 195 

[Fairburn A.C.J.O. (Motion Judge)]

Counsel:

M. Chowdhury, E. Krajewska, É. Arsenault and A. Bakshi, for the proposed intervener, the Income Security Advocacy Centre

S. Choudhry, for the appellant

B. Sunallah and M. Ambwani, for the respondent

Keywords: Civil Procedure, Interveners, Canadian Charter of Rights and Freedom, s. 15, R v Sharma, 2022 SCC 39, Fraser v Canada (Attorney General), 2020 SCC 28

Facts:

The appeal arose from an unsuccessful s. 15 Charter challenge relating to benefit programs during the COVID-19 pandemic: the Canada Emergency Response Benefit (“CERB”), the Canada Recovery Benefit (“CRB”) and the Canada Recovery Sickness Benefit (“CRSB”). The programs were offered to workers who lost employment income as a result of the pandemic. To be considered a “worker”, the claimant must have earned at least $5,000 from specified income in the 12 months prior to the claim. Income from federal or provincial disability support benefits did not qualify as income. The appellant challenged the $5,000 threshold, claiming that it discriminated against people living with disabilities.

The Canadian Civil Liberties Association (“CCLA”) and the Income Security Advocacy Centre (“ISAC”) sought leave to intervene in the appeal as friends of the court. The appellant, V.J, consented to both interventions. The Respondent, Attorney General of Canada, took no position in relation to the CCLA’s motion for leave to intervene and opposed the motion brought by the ISAC.

Issue:

Should the CCLA and the ISAC be granted leave to intervene in the appeal as friends of the court?

Holding:

Motion granted.

Reasoning:

Yes.

The CCLA, recognized for its expertise in constitutional issues, was deemed capable of making a unique contribution to the appeal, especially regarding the issues of remedy and retroactivity in legal declarations. The ISAC, despite opposition from the respondent, was acknowledged for its potential to contribute valuable insights into substantive equality, particularly in the context of income security and disability. They aimed to enrich the Court’s understanding of the substantive equality analysis, which had not been extensively explored by the parties. The Court found the ISAC’s expertise relevant for addressing the legal challenges of adverse-impact discrimination and substantive equality affecting low-income individuals with disabilities. It was determined that their involvement would assist the Court without them overstepping into the decision-making process. Consequently, both CCLA and ISAC were granted permission to intervene under specific conditions, including limiting their submissions and oral presentation time, and they were not allowed to incur or be subject to any costs associated with the motions or the appeal.

Roe v. Roe, 2024 ONCA 179

[Tulloch C.J.O., Hourigan and Dawe JJ.A.]

Counsel:

B. Donavan and N. Kochman, for the appellant RMR

N. Mukherjee and A. Rogerson, for the respondent RSR

D.N. Delagran, for the respondent RCR

Keywords: Wills and Estates, Capacity, Undue Influence, Suspicious Circumstances, Vout v. Hay, [1995] 2 S.C.R. 876, Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Ont. S.C.), Boughton v. Knight (1873) L.R. 3 P. & D. 64 (U.K.), Tate v. Gueguegirre, 2015 ONSC 844 (Div. Ct.), Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225

Facts:

BGR died on July 12, 2014, at the age of 90. Her Last Will and Testament dated August 24, 2005 (the “2005 Will”), named three of her four sons as beneficiaries – RTR, RSR, and RCR. Her fourth son, RMR, was excluded. The exclusion of RMR was a change from her previous wills, which provided for her assets to be split equally among her four sons.

RMR applied to have the 2005 Will declared invalid on the basis that BGR lacked testamentary capacity. In a related action, RMR sued RTR, RSR, and RCR to set aside monetary gifts that BGR made prior to her death. However, RMR conceded that if he was not successful in setting aside the 2005 Will, he had no standing to challenge the gifts.

The application judge dismissed the application and the action. RMR challenged all of the application judge’s findings on appeal.

Issues:

1. Did the application judge err in finding that the 2005 Will was made under suspicious circumstances, but that BGR had the requisite testamentary capacity to make it and was not operating under “insane delusions” when she disinherited RMR?
2. Did the application judge err in finding that BGR was not unduly influenced by RTR when she instructed counsel on the 2005 Will?
3. Did the application judge err in finding that BGR understood the extent of her property?

Holding:

Appeal dismissed.

Reasoning:

Regarding insane delusions, the application judge adopted the approach in Banton v. Banton that the fundamental question regarding the issue was “whether the belief should be characterized merely as being quite unreasonable, on the one hand, or as something that, in the particular circumstances, no one ‘in their senses’ could believe.” The application judge engaged in a detailed review of the circumstances, which she found provided a factual basis to explain the disinheritance. The application judge also found that there was a tendency in the family for members to “hold onto beliefs that can be countered by more reasonable and objective facts” and that the “[R]’s appear to be a passionate family who think and feel deeply about the issues that affect them.”  While the application judge found that BGR acted irrationally and hyperbolically at times, she held that there was a factual foundation to ground her views. There was no error in the analysis and no basis for appellate interference.

Contrary to RMR’s submission citing Tate v. Gueguegirre, there is no set list of considerations that must be considered in all cases when considering an allegation of undue influence. Instead, the analysis of the issue is case specific and should examine the circumstances to understand the nature of the relationship between the alleged influencer and the deceased.

The application judge focused on the evidence of RMR’s expert on elder abuse to determine whether RTR unduly influenced BGR to disinherit RMR. There was nothing impermissible in the application judge relying on this evidence to understand the nature of the relationship between RTR and his mother. She concluded that the facts did not support the inference that BGR was susceptible to RTR’s influence and that BGR was not particularly vulnerable to him. The application judge also found that “BGR and RTR had a symbiotic relationship that seemed to work” and that she was able to manage RTR. There was no error in that analysis, which was well rooted in the evidence.

The application judge was entitled to rely on the evidence of the geriatric psychiatrists and conclude that BGR understood the nature and extent of her property. A competent testator does not have to know the precise make up of her estate, only in a general way the nature and extent of her property: Orfus Estate v. The Samuel and Bessie Orfus Family Foundation. There was no basis for appellate interference.

Scheibler v. Scheibler, 2024 ONCA 191

[Tulloch C.J.O., Hourigan and Dawe JJ.A.]

Counsel:

A. I. Jiwa, for the appellant

P. Howie, for the respondent

Keywords: Family Law, Property, Matrimonial Home, Occupation Rent, Equalization of Net Family Property, Spousal Support, Family Law Act, R.S.O. 1990, c. F.3, s. 14(a), Hickey v. Hickey, [1999] 2 S.C.R. 518, Kerr v. Baranow, 2011 SCC 10, D.B.S. v. S.R.G., 2006 SCC 37

Facts:

The parties were married in August 2000 and separated on December 31, 2013. It was a third marriage for both. Following the separation, the respondent husband remained in the matrimonial home and operated a wildlife sanctuary, which he had opened in 2003, on the surrounding property. The respondent eventually applied for a divorce in February 2017, which led to the order which is the subject of the appeal.

Throughout the marriage, both before and after the separation, the appellant wife worked as a grocery store clerk. On appeal, she challenged the trial judge’s order requiring her to pay retroactive non-compensatory spousal support to the respondent totaling $39,000 for the years 2014 to 2016, and the trial judge’s determinations concerning ownership of, expenses for, and occupancy rent in relation to, the matrimonial home.

Issues:

1. Did the trial judge err in ordering that the appellant pay to the respondent transitional retroactive non-compensatory spousal support for the three-year period following the separation?
2. Did the trial judge err in failing to order that the respondent pay occupation rent for his exclusive occupation of the matrimonial home post separation and/or in failing to order that he reimburse the appellant for expenses relating to the matrimonial that she paid post separation?
3. Did the trial judge err in dismissing the appellant’s claim for sole ownership of the matrimonial home?

Holding:

Appeal dismissed.

Reasoning:

A high level of deference is owed to a trial judge’s determination of appropriate spousal support because of its fact-based and discretionary nature. The appellant invited the reweighing of evidence and retrying of the case, which is not the function of an appellate court.

It was open to the trial judge to come to the determination that the respondent was financially dependent on her during the marriage. There was ample evidence to support the trial judge’s this finding, and that the appellant acquiesced in that dependence, even though she had actively encouraged the respondent to “get a job”.

As for the appellant’s second submission that the trial judge erred by ordering her to pay retroactive spousal support for a period prior to the date on which the respondent’s divorce application was issued and before any notice of his claim for spousal support, the amount ordered was only notionally “retroactive”, since the appellant had in fact supported the respondent by paying significant expenses during the relevant time. The trial judge set off the $43,243 he ordered the respondent to repay the appellant against the amount owing for retroactive support and a portion of the equalization payment the appellant owed the respondent. It was implicit in the trial judge’s reasoning that he was satisfied that the appellant had effective notice of the respondent’s claim for spousal support by virtue of the payments she already made on his behalf for living expenses. Moreover, the fact of those payments adequately explained the respondent’s delay in making a formal application for support.

The trial judge was not asked to reduce the amount of support for transitional retroactive non-compensatory spousal support to reflect tax consequences. The failure to do so did not reflect an error in principle.

The trial judge reviewed the principles applicable to the equitable remedy of requiring payment of occupation rent in circumstances where one joint owner of property occupies the property to the exclusion of another. There was no error in the trial judge’s exercise of discretion not to award occupation rent where he was faced with an unusual set of circumstances. The parties had no children and the appellant was the primary income earner, acquiescing in the respondent’s failure to seek remunerative employment. Both parties were dilatory in seeking any remedy through legal action. The trial judge was entitled to exercise his discretion in balancing the parties’ competing claims for spousal support, occupancy rent and reimbursement of expenses.

The appellant’s evidence did not rise to the level of asserting that the parties had agreed that the matrimonial home would be registered in their names as joint tenants conditional on the respondent contributing to the payments. In the absence of direct evidence of the mutual intentions of the parties, it was open to the trial judge to rely on the inferences to be drawn from the actions of the parties. In the circumstances, there was no error in the trial judge’s finding that the appellant failed to rebut the presumption of joint tenancy that arises under s. 14(a) of the FLA. It was therefore unnecessary that he resolve the conflict in the evidence concerning the parties’ respective contributions to the purchase price of the matrimonial home.

Frenkel v. Frenkel, 2024 ONCA 193

[Trotter, Zarnett and Sossin JJ.A]

Counsel:

EF, acting in person

VF, acting in person

Keywords: Family Law, Property, Equalization of Net Family Property, Civil Procedure, Evidence, Witnesses, Credibility

Facts:

The issues on appeal stemmed from the equalization of net family properties following a marriage breakdown, with the appellant challenging the trial judge’s order to pay the respondent $210,665.48, reflecting an adjusted equalization payment of $233,363.02 minus certain child support arrears and s. 7 expenses. The dispute, litigated over an eight-day trial, centered on who removed $314,945.25 in precious metals and $60,000 in cash from the apartment, items stored in safes by the respondent. The trial judge, after evaluating the evidence, concluded that the appellant retained these valuables and, consequently, adjusted her net family property statement, leading to the appellant owing $23,918.79 in equalization payments, further adjusted for the precious metals value, culminating in the final adjusted equalization payment owed by the appellant. The appellant appealed.

The respondent filed a very late motion for an order that the appellant be enjoined from dissipating any of her assets. He also sought an order for security for costs.

Issues:

1) Did the trial judge improperly engage in a criminal investigation and find the appellant guilty of theft?

2) Did the trial judge err in finding that the appellant retained or removed the disputed items from the apartment?

3) Did the trial judge make a mathematical error in the final calculation of the adjusted equalization payment?

4) Should the appellant be enjoined from dissipating her assets?

5) Should the appellant be ordered to pay security for the costs of the appeal?

Holding:

Appeal allowed, in part.

Reasoning:

1) No.

The trial judge was not engaged in a criminal investigation. The appellant was not found guilty of “theft”. In addressing the equalization of net family property and the required post-separation adjustments, the trial judge was required to determine which party retained which assets. Although the factual background of the case may have been somewhat unique, the trial judge was engaged in a routine task of family law judges – tracing the assets of the parties in the determination of net family property. The Court found that the trial judge did not exceed her jurisdiction in doing so.

2) No.

The Court saw no error in the trial judge’s resolution of the factual dispute. As she noted in her reasons, the case turned on the credibility of the witnesses. The Court noted that credibility findings of a trial judge must be afforded substantial deference on appeal unless an appellant can demonstrate a material misapprehension of the evidence, an error in principle, or that the findings are clearly unreasonable. The Court concluded that the appellant has not demonstrated any such deficiency in the trial judge’s findings on this issue.

3) Yes.

The Court agreed with the appellant that the trial judge erred in calculating the post-separation adjustment based on her finding that the appellant had retained all the jointly owned precious metals valued at $314,945.25. The Court found that the trial judge should have adjusted for each party to receive half the value, or $157,472.50, of the precious metals. Instead, an incorrect adjustment of $232,077.47 was made, favoring the respondent unfairly. Further, the trial judge incorrectly deducted amounts related to joint BMO and Effective Technologies bank accounts from what the appellant owed, when these amounts should have increased her payable sum. Correcting these errors, the adjusted equalization payment was $168,282.39, not $233,363.02 as originally determined, leading to a net amount due of $145,584.85 after accounting for child support and s. 7 expense arrears.

4) and 5) No.

There was no basis to grant any of the requested relief. The motions for non-dissipation of assets and for security for costs were dismissed.

SHORT CIVIL DECISIONS

Buduchnist Credit Union Limited v 2321197 Ontario Inc, 2024 ONCA 190

[Roberts, Trotter and Sossin JJ.A.]

Counsel:

P. Carey and C. Lee, for the appellant/respondent by way of cross-appeal

B. Grossman and S.A Wilson, for the respondent/appellant by way of cross-appeal

Keywords: Civil Procedure, Orders, Injunctions, Mareva Orders, Enforcement, Costs, Trade Capital Finance Corp v Cook, 2017 ONCA 281

Ekum-Sekum Incorporated (Brantco Construction) v. Lanca, 2024 ONCA 189

[Rouleau, Lauwers and Monahan JJ.A.]

Counsel:

A. J. Gabriele and A. M. Beney, for the appellant

D. Touesnard, for the respondents

Keywords: Contracts, Construction, Breach of Trust, Construction Lien Act, R.S.O. 1990, c. C.30

9806881 Canada Corp. v. Swan, 2024 ONCA 187

[van Rensburg, Roberts and Favreau JJ.A.]

Counsel:

J. M. Wortzman and J. C. Wortzman, for the appellants

P. Virc and R. Karrass, for the respondent

Keywords: Contracts, Security Agreements, Repair and Storage Liens, Priority, Personal Property Security Act, Civil Procedure, Appeals, Orders, Directions

Shannon v. Hrabovsky, 2024 ONCA 188

[Roberts, Sossin and Dawe JJ.A.]

Counsel:

N. Ronski, for the appellants

V. Msi, for the respondent

Keywords: Civil Procedure, Appeals, Costs, Enhanced Costs, Substantial Indemnity, Rules of Civil Procedure, rr 1.03, 57.01(1), Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 29, Unisys Canada Inc. v. York Three Associates Inc. (2001), 150 O.A.C. 49, Davies v. Clarington (Municipality) et al., 2009 ONCA 722, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, Sawdon Estate v. Sawdon, 2014 ONCA 101, Westover Estate v. Jolicouer, 2024 ONCA 81, Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, Yan v. Hutchinson, 2024 ONCA 158

Kesete v. Gaspar, 2024 ONCA 198

[Fairburn A.C.J.O., Simmons J.A. and Daley J. (ad hoc)

Counsel:

M. Stoiko, for the appellant

M. Kennedy and G. Harper, for the respondent

Keywords: Torts, Negligence, MVA, Damages, Civil Procedure, Costs

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.