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Good afternoon,

Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario.

Topics covered this week included several family law decisions, international sale of goods and striking pleadings.

The summer is now almost half over already, so I hope everyone finds some time to enjoy it before it is too late.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

Farah v. Mohamed, 2019 ONCA 0620

Keywords: Family Law, Custody, Civil Procedure, Appeals, Adjournments, Procedural Fairness, Sufficiency of Reasons

Global Fund Holdings, Corp. v. Hines, 2019 ONCA 0621

Keywords: Settlement Agreement, Due Diligence, Fresh Evidence, Condition, Written Confirmation, Palmer v. The Queen, [1980] 1 S.C.R. 759, Criminal Action, Detention Order, Arrest Warrant, Enforcement of Settlement Agreement

Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 0624

Keywords: Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Regulated Professions, Lawyers, Law Society, Lawyers’ Professional Indemnity Company, Rules of Civil Procedure, Rules 1.04, 2.02, 21.01(2)(b) & 26.01, Law Society Act, R.S.O. 1990, c. L.8, s. 9, Bell v. Booth Centennial Healthcare Linen Services, 2006 CanLII 39029 (Ont. S.C.), Arsenijevich v. Ontario (Provincial Police), 2019 ONCA 150, R. v. Imperial Tobacco, 2011 SCC 42, Louie v. Lastman (2002), 61 O.R. (3d) 459 (C.A.), Grigonis v. Toronto Boardsailing Club, 2010 ONCA 651, Conway v. Law Society of Upper Canada, 2016 ONCA 72, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959

Petersoo v. Petersoo, 2019 ONCA 0618

Keywords: Family Law, Custody and Access, Mobility, Arbitrations, Procedural Fairness, Arbitration Act, 1991, S.O. 1991, c. 17, s. 19(2), s. 21, Patton-Casse v. Casse, 2012 ONCA 709, R. v. Reid, 2016 ONCA 524, leave to appeal refused [2016] S.C.C.A. No. 432

Khan v. Ramsingh, 2019 ONCA 0623

Keywords: Family Law, Custody and Access, Best Interests of the Child, Child Support, Civil Procedure, Case Management, Motions to Change, Procedural Fairness, Family Law Rules, Rule 13, 2(3), King v. Mongrain, 2009 ONCA 486

Rados v. Rados, 2019 ONCA 0627

Keywords: Family Law, Equalization of Net Family Property, Valuation of Debts, Non-Arm’s Length Creditors, Spousal Support, Corporations, Piercing Corporate Veil, Salamon v. Salamon, [1997] O.J. No. 852 (Gen. Div.), Poole v. Poole (2001), 16 R.F.L. (5th) 397 (Ont. S.C.), Cade v. Rothstein, 2002 CanLII 2811 (Ont. S.C.), aff’d (2004), 181 O.A.C. 225 (C.A.)., Johanson v. Hinde, 2016 ONCA 430, Zavarella v. Zavarella, 2013 ONCA 720

1944949 Ontario Inc. (OMG ON THE PARK) v. 2513000 Ontario Ltd., 2019 ONCA 0628

Keywords: Contracts, Real Property, Commercial Leases, Interpretation, Civil Procedure, Adjournments, Evidence, Affidavits, Procedural Fairness, Standard of Review, Rules of Civil Procedure, Rules 1.04(1.1), 39.02(2), Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Lacey v. Kakabeka Falls Flying Inc., 2018 ONCA 1007, Lockridge v. Director, Ministry of the Environment, 2013 ONSC 6935 (Div. Ct.), Crown Resources Corp. S.A. v. National Iranian Oil Co., 2005 CanLII 6053 (Ont. Div. Ct.), First Capital Realty Inc. v. Centrecorp Management Services Ltd. (2009), 258 OAC 76 (Div. Ct.), Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246, aff’d 2017 ONCA 293, leave to appeal to SCC refused, 37039 (October 19, 2017).

Ontario (Finance) v. Echelon General Insurance Company, 2019 ONCA 0629

Keywords: Insurance Law, Statutory Accident Benefits, Priority Disputes, Arbitration,Arbitration Act, 1991, S.O. 1991, c. 17, s. 31, Insurance Act, R.S.O. 1990, c. I.8, Disputes Between Insurers, O. Reg. 283/95, ss. 2, 7(1), 7(6), Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, 2007 ONCA 61, Kalinkine v. Superintendent of Financial Services Commission (Ont.) et al. (2004), 193 O.A.C. 77 (C.A.)

Solea International BVBA v. Bassett & Walker International Inc., 2019 ONCA 0617

Keywords: Breach of Contract, International Sale of Goods, Damages, Duty to Mitigate, Specific Performance, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 134(1) and (4), International Sale of Goods Act, R.S.O. 1990, c. I.10, International Sales Conventions Act, S.O. 2017, c. 2, Sch. 8, s. 2, Schedule 1, the United Nations Convention on Contracts for the International Sale of Goods

Short Civil Decisions

V Hazelton Limited v. Perfect Smile Dental Inc.,2019 ONCA 0632

Keywords: Costs Endorsement

Criminal Decisions

R. v. Ching, 2019 ONCA 0619

Keywords: Criminal Law, First Degree Murder, Second Degree Murder, Assault, Mens Rea, Defences, Not Criminally Responsible by Reason of Mental Disorder, Jury Instructions, Evidence, Admissibility, Post-Offence Conduct, R. v. Droste, [1984] 1 S.C.R. 208, Criminal Code, s. 229, 231, s. 683(3), s. 686(1)(b)(i)

R. v. Trachy, 2019 ONCA 0622

Keywords: Publication Ban, Criminal Law, Sexual Assault, Indecent Assault, Sexual Interference, Sexual Exploitation, Mens Rea, Expert Evidence, Criminal Code, s. ss. 676(1)(a) & 686(4)(b)(ii), R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Chase, [1987] 2 S.C.R. 293, R. v. Litchfield [1993] 4 S.C.R. 333, R. v. Ewanchuk, [1999] 1 S.C.R. 330, R. v. Lutoslawski, 2010 SCC 49, R. v. Marshall, 2017 ONCA 801, R. v. Skalbania, [1997] 3 S.C.R. 995, R. v. Cassidy, [1989] 2 S.C.R.

R. v. Claros, 2019 ONCA 0626

Keywords: Criminal Law, Discharging a Firearm With Intent to Wound, Possession of a Weapon for the Purpose of Committing an Offence, Possession of a Firearm Without a Licence, Unauthorized Possession of a Firearm in a Motor Vehicle, Aggravated Assault, Possession of a Firearm While Prohibited, Possession of a Firearm Obtained by Crime, Sentencing, Pre-Sentence Custody, Concurrent Sentences, Disclosure Breaches, Remedies, Canadian Charter of Rights and Freedoms, s 24, Criminal Code, ss.  88(2), 92(3), 94(2), 96(2), 96(3), 117.01(3), 244(2), 268(2) & 718.2(c), R. v. Nasogaluak, 2010 SCC 6

R. v. Locknick, 2019 ONCA 0625

Keywords: Criminal Law, Conspiracy to Traffic in a Controlled Substance, Delay, Canadian Charter of Rights and Freedoms, ss. 8, 11(b), 24(2), R. v. Jordan, 2016 SCC 27, R. v. Morin, [1992] 1 S.C.R. 771, R. v. Antic, 2019 ONCA 160, R. v. Cody, 2017 SCC 31, R. v. Araujo, 2000 SCC 65

R. v. Grewal, 2019 ONCA 0630

Keywords: Criminal Law, Kidnapping, Aiding and Abetting, Actus Reus, Mens Rea, Defences, Duress, Jury Instructions, Evidence, Hearsay, Criminal Code, RSC 1985, c. C-46, ss. 21(1)(b), 24, R. v. W.(D.), [1991] 1 SCR 742, R. v. Calnen, 2019 SCC 6, R. v. Srun, 2019 ONCA 453, R. v. Dooley, 2009 ONCA 910, leave to appeal refused, [2010] SCCA No. 83, R. v. Simon, 2010 ONCA 754, leave to appeal refused, [2010] SCCA No. 459, R. v. Romano, 2017 ONCA 837, R. v. Luciano, 2011 ONCA 89, R. v. Wong (2006), 209 CCC (3d) 520 (Ont. CA), R. v. Cinous, 2002 SCC 29, R. v. Bucik, 2011 ONCA 546, R. v. Barrett, 2016 ONCA 12

R. v. Ibrahim, 2019 ONCA 0631

Keywords: Criminal Law, Second Degree Murder, Unlawful Act Manslaughter, Criminal Negligence, Dangerous Driving, Intent to Cause Bodily Harm, Assault, Defences, Provocation, Jury Instructions, W.(D.) Instruction, Reasonable Apprehension of Bias, Criminal Code, R.S.C. 1985, c. C-46, ss. 150.1(4), 222(5)(a), 222(5)(b), 229(a), s.232, s. 249(1)(a), 265(1)(a), 265(1)(b), Highway Traffic Act, R.S.O. 1990, c. H.8, s. 130, R. v. (W.D.), [1991] 1 S.C.R. 742, R. v. Beatty, 2008 SCC 5, R. v. Roy, 2012 SCC 26, R. v. Ibrahim, 2016 ONSC 1538, R. v. Hundal, [1993] 1 S.C.R. 867, R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.), R. v. Dunchie, 2007 ONCA 887, R. v. Sadiqi, 2013 ONCA 250, R. v. Reynolds, 2013 ONCA 433, R v. Griffith, 2019 BCCA 37, 38 M.V.R. (7th) 1, R. v. Dowholis, 2016 ONCA 801, R. v. Stewart (1991), 62 C.C.C. (3d) 289 (Ont. C.A.)

R. v. Jordan, 2019 ONCA 0607

Keywords: Criminal Law, Human Trafficking, Intimidation Of A Justice System Participant, Sentencing, Mandatory Minimum Sentence, Consecutive Sentences, Concurrent Sentences

CIVIL DECISIONS

Farah v. Mohamed, 2019 ONCA 0620

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

J. Omward, for the appellant
E. M. Young, for the respondent

FACTS:

The father appeals from the dismissal of his appeal from four family law orders relating to the custody and access of the three children of the marriage.

In the proceedings before Jones J., the father consented to an order awarding custody of the children to the mother, with unsupervised access by the father. However, after the mother brought a motion, the order was amended by Murray J. that access by the father be supervised. The father brought a motion to change two and half years later. On that motion, Finlayson J. essentially maintained the Murray J. order. Both Murray J. and Finlayson J. were concerned with the father’s conduct in bad-mouthing the mother in the presence of the children, and with the sporadic nature of the father’s visits with the children.

When the appeal from these orders was scheduled, the father sought and was granted an adjournment. The father was told to order the transcripts from all four proceedings. However, when the re-scheduled appeal was to be argued, the father had failed to obtain all the required transcripts. Counsel for the father told the appeal judge that circumstances beyond the father’s control prevented had him from acquiring the missing transcripts. Counsel for the father requested a second adjournment, however the father insisted on proceeding in the absence of the missing transcripts. The appeal judge ruled that the father was not seeking an adjournment and that the father had not provided the full transcripts as was requested. As a result, a complete record for the appeal had not been advanced or completed. Therefore, based on the material before the appeal judge, she held that the appeal had no merit and should be dismissed.

The father appealed on the basis that he was denied procedural fairness and that the appeal should have been adjourned so that transcripts could be obtained. Further, he stated that the reasons of the appeal judge do not explain why she considered the appeal to have no merit.

ISSUES:

Whether any of the following four orders should be set aside:

(1) Interim order of Scully J. (December 22, 2010);

(2) Interim and final consent order of Jones J. (December 20, 2011);

(3) Final order of Murray J. (July 17, 2015); and

(4) Order of Finlayson J. denying the father’s motion to change the order of Murray J. (January 15, 2018).

HOLDING: Appeal dismissed.

REASONING:

The Court held that the father’s appeal to dismiss the four orders should be dismissed. It was open to the appeal judge to adjourn the appeal once again, and it appeared that she was prepared to do so. However, the father wished to proceed without complying with the appeal judge’s previous direction to obtain transcripts. Therefore, it was not now open to the father to argue that the appeal judge should have granted a further adjournment to give him another opportunity to obtain these materials.

The father also asserted that the appeal judge failed to give sufficient reasons for her decision to dismiss the appeal. However, as the appeal judge explained, based on the materials before her, the appeal had no merit. The Court held that there was no basis to disturb the custodial/access arrangements reflected in the order of Murray J. and confirmed by Finlayson J.


Global Fund Holdings, Corp. v. Hines, 2019 ONCA 0621

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

E. Moore, for the appellant
L. Corne, for the respondent

FACTS:
This appeal arises from an order enforcing a Settlement Agreement in the amount of US$200,000. In the underlying action, Global Fund Holdings, Corp. (“Global”) sued Kenneth Hines (“Hines”), alleging that, on the basis of Hines’ fraud and false pretences, Global advanced US$500,000 to him in order to purchase shares in a Panamanian company. It was an alleged sham. After the parties commenced settlement negotiations, Hines learned that Global had caused criminal charges to be brought against him in Panama. The prosecutor in Panama sent a detention order (equivalent to an arrest warrant in Canada) to the National Police of Panama and the National Migration Service of Panama. As a result of these charges, the following condition was included in the Settlement Agreement:

Upon receipt of a written confirmation from the prosecutor in Panama, which confirms that the desist of the pretension of the punitive claim has been duly filed at the Panama Penalty Court of Law and that all charges against Hines […] are dismissed or withdrawn, Hines hereby irrevocably instructs PDC [LLP] to pay the sum of US$200,000 to Global.

Counsel for Global provided documentation to Hines’ counsel from the Panama Court to prove that the criminal action against Hines was “declared as extinguished.” Hines insisted on “written confirmation from the prosecutor in Panama”. On July 30, 2018, they were provided with written confirmation from the Prosecutor of Panama that no criminal charges were being proceeded with against Hines. Global demanded payment of the US$200,000. Hines resisted, however, this time because of the existence of the outstanding detention order/arrest warrant. According to evidence filed on the motion, the declaration of the Panama Court had not been sent to the National Police of Panama or the National Migration Service of Panama. Consequently, Hines was at risk of arrest if he entered Panama. On this basis, he claimed that the condition in the Settlement Agreement had not been satisfied.

The motion judge concluded that the condition was satisfied when the prosecutor in Panama provided written confirmation that the charges against Hines were at an end. The motion judge made an order enforcing the Settlement Agreement. He declined to exercise any residual discretion not to enforce the Settlement Agreement because of the outstanding detention order/arrest warrant.

ISSUES:

(1) Did the motion judge misapprehend the evidence, thereby giving rise to a palpable and overriding error in his interpretation of the Settlement Agreement?
(2) Is the appellant permitted to bring a motion to adduce fresh evidence?

HOLDING:
Appeal dismissed. Application to adduce fresh evidence dismissed.

REASONING:
(1) No. The Court held that the motion judge committed no error in interpreting the Settlement Agreement in the manner that he did. His decision was entitled to deference on appeal.

When Hines entered into the Settlement Agreement, he was represented by counsel, both in Canada and Panama. The existence of the detention order/arrest warrant was known at the time. It was open to Hines to insist that the Settlement Agreement specifically addressed the detention order/arrest warrant. He did not.

(2) No. Some of the purported fresh evidence was available at the time that the motion judge made his decision. It could have been obtained with due diligence. For this reason, it did not meet the test for admitting fresh evidence.

The rest of the purported fresh evidence consisted of letters from the Panama Court to the National Police of Panama or the National Migration Service of Panama informing those agencies of the termination of the proceedings against Hines that were sent after the motion judge made his decision. In this sense, the evidence might be considered “fresh” because it did not exist at the time of the motion. However, this aspect of the fresh evidence application failed because the evidence did not bear upon a “decisive or potentially decisive issue” on the motion.


Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 0618

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

M. A. Munro, for the appellants
A. T. Antoniou and F. C. Caruso, for the respondent

FACTS:
The appellants’ action is premised on the Law Society’s alleged practice of requiring or permitting lawyers facing potential negligence claims to provide a copy of the relevant client file to the Lawyers’ Professional Indemnity Company (“LPIC”) to allow it to address the anticipated professional indemnity claim. The appellants say that this practice gives rise to a variety of civil causes of action against the Law Society.

Neither the statement of claim nor the amended statement of claim pleaded that the respondent engaged in any bad faith conduct. After filing its statement of defence, the respondent moved to strike the appellants’ statement of claim as disclosing no reasonable cause of action. The appellants argued that the respondent was required to obtain leave before bringing its motion because it had filed its statement of defence.

The motion judge found that s. 9 of the Law Society Act conferred upon the Law Society a statutory immunity from claims for damages for actions taken in good faith pursuant to its statutory mandate to regulate the legal profession or the provision of legal services. The motion judge also held that the appellants’ “slim allegations” in their pleadings did not include any claim of bad faith against the Law Society, and therefore struck out the pleadings as disclosing no reasonable cause of action, without leave to amend.

The appellants appealed the order of the motion judge striking out their statement of claim and amended statement of claim as against the respondent as disclosing no reasonable cause of action.

ISSUES:
1. Did the motion judge err in hearing the Law Society’s motion to strike after the Law Society had delivered its statement of defence?
2. Did the motion judge err in striking out the statement of claim and amended statement of claim as against the Law Society?
3. Did the motion judge err in refusing to grant leave to amend?

HOLDING:
Appeal dismissed.

REASONING:
(1) No. The Court held that the motion judge did not err in hearing the motion to strike. While generally a defendant should move to strike a claim as disclosing no reasonable cause of action before filing a statement of defence, in some instances a defendant may bring such a motion without leave even after delivering a defence. One such instance is where it is obvious from the defendant’s pleading that the defendant takes issue with the sufficiency of the plaintiff’s claim. The Court held that was the case here.

The respondent’s statement of defence pleaded the very deficiencies that were relied on in the motion to strike. Additionally, the motion judge’s determination to proceed was consistent with Rule 1.04 of the Rules of Civil Procedure that the rules “be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

(2) No. The Court held that the motion judge did not err in striking out the appellants’ pleadings as disclosing no reasonable cause of action. The appellants contended that they were not required to plead bad faith to pre-emptively defeat the application of s.9 of the Law Society Act, as good faith is a statutory defence to be pleaded by the respondent. The Court did not agree with this submission. While a claim against the respondent alleging that it engaged in bad faith conduct may not be subject to the immunity provided by s. 9 of the Law Society Act, such a claim must still be pleaded with precision and with full particulars, as required by the Rules of Civil Procedure. The Court held that in this case, neither the statement of claim nor the amended statement of claim alleged that the respondent engaged in any bad faith conduct. None of the causes of action pleaded by the appellants – namely, breach of confidence, confidentiality, trust, privacy and solicitor-client privilege, as well as conversion and trespass to chattels – involved bad faith as an essential element. Accordingly, there was no viable claim pleaded against the respondent.

Additionally, the appellants contended that the defence of good faith should not be determined on a motion to strike, as good faith is a question of fact requiring an evidentiary record. The Court did not accept this submission. Since the appellants’ pleadings did not allege any bad faith conduct by the respondent, there was no basis for conducting an evidentiary hearing to determine that issue.

(3) No. The Court held that the motion judge was entitled to refuse leave to amend. Here, the motion judge exercised his discretion to refuse leave to amend as the appellants had already twice pleaded no allegations of bad faith against the respondent. His decision to refuse to afford a third opportunity to fashion a tenable plea was reasonable in the circumstances. The motion judge also did not err in law, given the Court’s finding that, absent allegations of bad faith, the respondent was protected by the statutory immunity in s. 9 of the Law Society Act. Accordingly, there were no amendments that the appellants could have made that might have saved their claim.


Petersoo v. Petersoo, 2019 ONCA 0624

[Tulloch, Benotto and Huscroft JJ.A.]

Counsel:

K. Normandin and J. Hunt-Jones, for the appellant
M. Stangarone and S. Kirby, for the respondent

FACTS:
The parties retained an arbitrator to conduct a parenting plan review provided for in their separation agreement. Prior to the arbitration, the appellant served an offer to settle including a term that she be entitled to move to Guelph so the children could attend a school adapted to their special needs. When Opening Statements were exchanged, the appellant’s statement also indicated that she would be seeking an order allowing her to move to Guelph so the children could attend this school.

The arbitration began in July 2017, and lasted for eight days. At no point during the hearing did the respondent seek an adjournment in response to the mother having raised the issue of the move to Guelph. The arbitrator correctly set out the law on mobility and concluded that the children should move to Guelph with the appellant to attend the aforementioned school.

Following the award, the appellant and children made the move to Guelph.

No motion to stay the award was brought by the respondent.

The respondent later appealed the award. The appeal judge overturned the arbitral award on the basis that there was a fundamental procedural unfairness to the process causing a denial of natural justice. This unfairness arose, she found, because the respondent did not receive adequate notice of the appellant’s intent to move. Specifically, the appeal judge found that the arbitrator did not comply with s. 19(2) of the Arbitration Act, 1991, S.O. 1991, c. 17, which provides that both sides shall be treated equally and fairly and be provided with an opportunity to present their case. The appeal judge set aside the arbitrator’s award and directed the parties to attend another arbitration before a different arbitrator.

ISSUES:
Did the appeal judge err in law by finding that the arbitrator violated principles of procedural fairness?

HOLDING:
Appeal allowed.

REASONING:
Yes. The Court began its analysis by stating the principle articulated in Patton-Casse v. Casse, 2012 ONCA 709, that the decision of an arbitrator, particularly in child related matters, is entitled to significant deference by the courts. Although the family law of Ontario must be applied, the procedures on an arbitration are not meant to mirror those of the court.

Ultimately, the Court found that the appeal judge erred in law by finding a violation of s. 19 of the Arbitration Act for four reasons. First, the Court found that the proceedings were, in fact, fair. During the eight day hearing, the respondent was never impeded from presenting his case. At no point did the respondent request a further assessment to challenge the evidence that the school in question would benefit the children. Having received the evidence of both parties, the arbitrator ultimately found in the appellant’s favour. The proceedings were not rendered unfair simply because the arbitrator found in favour of the appellant on this issue.

Second, the Court found that the respondent acquiesced in the late notice. Instead of raising the issue and seeking an adjournment, he proceeded with the hearing, and only raised an objection when the result was not to his liking. The Court emphasized that as a general rule, an appellate court will not permit an issue to be raised for the first time on appeal. This rule is grounded in society’s interests in finality, according to the principle articulated in R. v. Reid, 2016 ONCA 524, leave to appeal refused [2016] S.C.C.A. No. 432. Further, this principle is particularly important when the lives of children are impacted by the proceedings.

Third, the Court found that the record left no doubt that the children were in crisis. By relying exclusively on the short notice given to the father to set aside the award, the appeal judge had no regard for the children’s best interests. The procedural rights of a parent cannot be invoked long after a hearing has been completed in order to override the welfare of children in crisis.

Finally, the appeal judge’s interpretation of s. 19 of the Arbitration Act would place a new and unreasonable burden on an arbitrator in family law proceedings. The appeal judge placed an obligation on the arbitrator to depart from his role as independent adjudicator and move to the role of advocate. This would compromise an arbitrator’s independence and potentially breach his duty of impartiality. Section 19 does not require the arbitrator to descend into the arena and become an advocate or advance a party’s case.


Khan v. Ramsingh, 2019 ONCA 0623

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

I. van Weert, for the appellant
No one appearing for the respondent

FACTS:

The father and mother separated in December 2014. They are the parents of two children, an 18 year old daughter and a 14 year old autistic son. The father continued living with the mother and children after separation until he was arrested and incarcerated in 2013 for narcotic offences and possession of a firearm. In September 2016, the mother commenced an application for sole custody of the children, retroactive child support and s.7 expenses since the father was arrested, and an order requiring any access by the father to the children to be supervised, and restraining the father from coming within 500 meters of her and the children. The father had difficulty in obtaining a Legal Aid certificate, and, as a result, difficulty in retaining a lawyer to respond to the mother’s Application.

In March 2017, the case management judge made a temporary order on consent that the mother would have sole custody of the children; restricting the father’s access to the children to telephone access and to commence only after the father provided stipulated disclosure about his criminal convictions; and that the father serve and file stipulated documents, including a current sworn financial statement, at least seven days before the next court date. Without the parties’ consent, she also ordered that the father pay child support based on an imputed minimum wage, serve and file his Answer by April 18, 2017, on a peremptory basis, and pay the mother costs in the amount of $2,500.

At a case conference held on July 12, 2017, the case management judge noted that the father had not yet paid the costs that she had ordered and that the father was in default, because he had not filed his Answer as required by her order of March 16, 2017. In her endorsement, she noted that the mother might ask for final orders at the next court date and ordered the father to pay the mother a further $800 in costs.

On the next court date, on September 20, 2017, the case management judge noted that both costs orders remained outstanding and the father had still not filed his Answer. She also noted that the father had been represented by a lawyer since at least March 16, 2017. She denied the father’s request for a further extension. She also ordered that the father “shall not bring a Motion to Change without leave obtained in advance on a Form 14B motion, maximum 2 pages in support not to be served on the other side unless the court orders.”

The father paid the outstanding costs orders and sought leave to bring a Motion to Change supported by a two-page affidavit, dated April 23, 2018. In the affidavit the father explained how he had to borrow money to pay the costs ordered. He provided that he would like there to be a hearing on the merits with respect to the son’s care. The son was severely autistic and his skills had been regressing. The father was unemployed and available to give the son more attention and care than the mother. The father also wanted a hearing regarding whether income should be imputed to him as he could not pay the support ordered.

On April 27, 2018, the case management judge dismissed the father’s motion for leave to which the father appealed the denial of leave to bring a Motion to Change. The Superior Court of Justice appeal court judge dismissed the appeal.

ISSUES:
(1) Did the appeal court judge err in deferring to the case management judge’s decision?

HOLDING:
Appeal allowed.

REASONING:
Yes. The Court held that the appeal judge erred in deferring to the case management judge’s decision in the face of an almost complete absence of evidence about the child’s bests interests. The case management judge erred in denying the father leave to bring a Motion to Change after he had cured his default and based only on an affidavit that she had limited to two pages. Appellate courts should give considerable deference to first instance decisions relating to custody and access. The problem here, however, is that as matters evolved, custody and access orders were made for this child in the face of almost a complete absence of written evidence upon which to ensure that the orders were, and continued to be, in the child’s best interests. In this case, only the mother’s Application and presumably her Form 35.1 Affidavit in Support of Claim for Custody or Access had ever been considered by the court in making what would amount to a final order about custody and access. Additionally, given the two-page limit placed on the father’s request for leave to bring a motion to change, the Court held it was almost impossible to make even a prima facie case that a different order was needed in the child’s best interests.


Rados v. Rados, 2019 ONCA 0627

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

N. J. Cartel and G. Brandys, for the appellant
A. Franks and A. Prewer, for the respondent

FACTS:
The appellant appeals from orders relating to the division of net family property and spousal support. The parties were married in 1995 and separated in 2012.

In addition to working as a pilot, the appellant was involved in a substantial condominium development project. Between 1994 and 1996, the appellant bought the land for the project. In 2000, he incorporated a company, of which he was the sole officer and shareholder. The corporation became the owner of the land and built two buildings as part of the project.

The appellant testified that the project cost over $8,000,000 to complete. He was initially unable to obtain outside financing, so his father stepped in to provide a large portion of the funding. The project was completed in 2007. In 2008, the appellant signed a promissory note, on behalf of the numbered company, in favour of his parents in the amount of $5,000,000 as a demand loan.

The appellant testified that the funding was always intended to be a loan, not a gift. The respondent acknowledged that the appellant’s father had funded the project, but she was certain that they were not expected to repay him.

The trial judge accepted that the appellant’s father had funded the project and that a $5,000,000 corporate debt existed on the date of separation. The trial judge also reviewed the case law permitting the court, when calculating net family property, to discount a debt owing by a spouse to reflect the likelihood that the spouse would ever be called to repay the debt (Salamon v. Salamon, [1997] O.J. No. 852 (Gen. Div.); Poole v. Poole (2001), 16 R.F.L. (5th) 397 (Ont. S.C.); and Cade v. Rothstein, 2002 CanLII 2811 (Ont. S.C.), aff’d (2004), 181 O.A.C. 226 (C.A.).

The trial judge considered 33 specific factors, and found that the prospect of a call for repayment was “extremely unlikely”. Accordingly, the trial judge found that the debt was a contingent liability that had to be “significantly discounted”. The trial judge proceeded to exercise her discretion to discount the promissory note by 90% as a “true reflection of the practical reality”.

In addition to this, the trial judge also ordered indefinite spousal support based on the circumstances of the case, including the age of the parties, the duration of the marriage, and the respondent’s long standing health issues that have impacted her ability to maintain employment.

ISSUES:
(1) Did the trial judge err in discounting the promissory note by 90%?
(2) Did the trial judge err in ordering indefinite spousal support without imposing periodic reviews or an end date?

HOLDING:
Appeal dismissed.

REASONING:
(1) Did the trial judge err in discounting the promissory note by 90%?
No. The Court began its analysis by noting that substantial deference is owed to the trial judge’s determination of fact and mixed fact and law, especially in family law cases. The Court will interfere “only where the fact-related aspects of the judge’s decision in a family law case exceeds a generous ambit within which reasonable disagreement is possible and is plainly wrong” (Johanson v. Hinde, 2016 ONCA 430).

The Court continued that the case law relied on by the trial judge was consistent with the Court’s guidance in Zavarella v. Zavarella, 2013 ONCA 720, that the debt is to be valued based on the reasonable likelihood that it will ever be repaid. The trial judge’s application of that law to the facts is therefore owed substantial deference.

The appellant submitted that the trial judge erred in piercing the corporate veil in respect of the appellant’s numbered company. However, the Court rejected this submission, noting that the trial judge analyzed the role of the appellant and his corporation separately. This evidenced the fact that the trial judge respected the corporation’s separate legal personality from the appellant.

(2) Did the trial judge err in ordering indefinite spousal support without imposing periodic reviews or an end date?

No. At trial, the appellant did not make any submissions on the claim for indefinite spousal support. However, even if it were open to the appellant to take this position for the first time on appeal, the Court saw no basis to interfere. The Court noted that the trial judge exercised her discretion having regard to the age of the parties, the duration of the marriage, the respondent’s health issues that have impacted her employment, and the compensatory nature of spousal support. The Court saw this exercise of discretion to be reasonable in the circumstances.


1944949 Ontario Inc. (OMG ON THE PARK) v. 2513000 Ontario Ltd., 2019 ONCA 0628

[Feldman, Roberts and Fairburn JJ.A.]

Counsel:

S. Siddiqui, for the appellant
P. Ingrassia, for the respondent

FACTS:
The respondent tenant operated a bakery and café out of premises leased from the appellant landlord. When the premises’ HVAC system broke down in December 2017, a dispute arose between the parties as to the appellant landlord’s obligations under the lease to repair the system.

The issuance of the respondent’s application on March 26, 2018 was the culmination of several fractious months of increasingly heated dealings between the parties. In the almost three months leading up to the hearing of the application, the appellant never objected to this matter proceeding by way of application. Rather, the parties agreed on a timetable for the delivery of materials, including affidavits and facta, as well as the conduct of cross-examinations. Particularly relevant were the deadlines for the service and filing of the application record, including affidavit materials, and the conduct of cross-examinations, including the delivery of any answers to undertakings arising out of the latter, as well as the delivery of facta. There was no provision allowing for the delivery of any further affidavit materials following the completion of the cross-examinations.

The parties complied with the deadlines for the filing of responding and reply affidavits by April 20, 2018 and April 30, 2018, respectively, and the completion of the cross-examinations. The respondent filed the affidavit of its principal sworn March 26, 2018. In response, the appellant filed the affidavit of its property manager sworn April 20, 2018. The respondent filed its April 30, 2018 reply affidavit. It filed its factum, authorities and compendium on schedule but the appellant did not. Following the May 21, 2018 cross-examination deadline, the respondent filed their June 6, 2018 supplementary affidavit.

The Hamilton court’s motion administrative protocol notes that where an application is scheduled for a specified week, as was the case here, the trial coordinator will contact parties or their counsel to advise them when the matter will be argued. On June 19, 2018 the trial co-ordinator advised the parties that the hearing of the application would take place the next day. On the day of the hearing, the appellant’s trial counsel attended late and did not advise the court that he would be late. He asked the court to accept a motion record to adjourn the application. He also sought to file a supplementary affidavit sworn June 19, 2018, in response to the respondent’s supplementary affidavit, as well as a factum, a compendium, and a brief of authorities. The application judge denied both of these requests.

After hearing arguments from both sides, the application judge concluded that the appellant was obligated to repair and maintain the HVAC system and that it had fundamentally breached the lease by failing to do so. He also found that this fundamental breach invariably led to a breach of the respondent’s quiet enjoyment of the premises. The application judge ordered the termination of the lease and a trial, by way of an action, as to the damages suffered by the respondent. The appellant landlord appealed, saying that the application judge’s order should be set aside and remitted for re-hearing.

ISSUES:
(1) Was the hearing of the application procedurally unfair and did it result in prejudice to the appellant?

(2) Did the application judge err in his interpretation of the lease?

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

HOLDING:
Appeal allowed in part.

REASONING:
(1) No. The appellant argued that it suffered procedural unfairness because the application judge erroneously refused to hear the appellant’s motion to adjourn the application or to accept the affidavit materials prepared in response to the respondent’s supplementary affidavit. The respondent maintained that no procedural unfairness occurred: there was no error in the application judge’s exercise of his discretion not to adjourn the application or admit the appellant’s supplementary materials.

Parties to a proceeding are entitled to a fair hearing which requires that all parties are given a reasonable opportunity to be heard. A reasonable opportunity must be meaningful. It is not, however, unlimited. In exercising its wide discretion to control the process before it, the court must balance the parties’ respective interests in a full and fair hearing. This aligns with the court’s obligation to ensure the just, most expeditious and least expensive determination of every proceeding.

The Court found no error in the application judge’s denial of the requested adjournment. As the application judge correctly observed, the appellant had adequate time to respond or object to the respondent’s late service of materials. Despite having these materials for several days and knowing that the application could be called for hearing any day during the week it was scheduled, the appellant did not request an adjournment until the eve of the hearing nor seek to file any responding materials until the day of the hearing. The application judge’s refusal of the adjournment was reasonable and in keeping with his duty to fairly manage the proceedings in accordance with the parties’ reasonable expectations that the application would proceed in accordance with the agreed upon timetable.

With respect to whether the appellant was prejudiced by the application judge’s failure to admit the appellant’s supplementary affidavit to respond to the respondent’s late-delivered supplementary affidavit, the Court did find that the application judge’s approach was flawed. Rather than turning his mind to whether leave should be granted under r. 39.02(2) of the Rules of Civil Procedure (the “Rules”) to admit the parties’ supplementary affidavits, he rejected the appellant’s but admitted the respondent’s supplementary affidavit without addressing whether leave should be granted to permit the respondent to file it following cross-examinations in admitted contravention of r. 39.02(2), and in breach of the court-ordered timetable. That being said, this flawed approach did not taint the application judge’s interpretation of the lease or finding of the appellant’s breach.

Rule 39.02(2) of the Rules of Civil Procedure prohibits the use at a hearing of an affidavit delivered after cross-examinations without leave of the court or the consent of the parties. A court must undertake a flexible, contextual approach when considering the following criteria to determine whether a party should be granted leave to respond to a matter raised on cross-examination:

1) Is the evidence relevant?
2) Does the evidence respond to a matter raised on the cross-examination, not necessarily raised for the first time?
3) Would granting leave to file the evidence result in non-compensable prejudice that could not be addressed by imposing costs, terms, or an adjournment?
4) Did the moving party provide a reasonable or adequate explanation for why the evidence was not included at the outset?

It did not appear the application judge considered these factors or adopted a “flexible, contextual approach”. He made no reference to the provisions of r. 39.02 or advert to its leave requirement. He should have done so. Rather, he focussed principally on the late submission of the appellant’s materials. Despite this, the Court found that the application judge’s exclusion of the appellant’s supplementary affidavit and the inclusion of the respondent’s supplementary affidavit did not result in an unfair hearing with an incomplete record that caused prejudice to the appellant. There was nothing new in the respondent’s supplementary affidavit that made any difference to the result of the substantive lease issues to be determined on the application, nor would the appellant’s supplementary affidavit have affected the outcome. Moreover, it does not appear that the application judge relied in any material way upon the contents of the respondent’s supplementary affidavit to reach his interpretation of the lease or his finding of the appellant’s breach.

(2) No. The appellant submitted that the application judge misconstrued the terms of the lease: it was the respondent’s obligation under the lease to find someone to carry out any repairs to the HVAC system; the appellant fulfilled its lease obligations by paying for any repairs. The Court did not give any effect to this argument and found that the application judge’s interpretation of the non-standard form provisions of the lease was reasonable. Absent a palpable or overriding error or an extricable error of law, the application judge’s interpretation of the lease is subject to deference on appeal.

(3) Yes. The application judge relied on the unchallenged evidence as set out in the respondent’s supplementary affidavit about the appellant’s alleged harassment of the respondent through its property manager to support his finding that the appellant engaged in litigation misconduct that warranted an award of substantial indemnity costs. This was an unfair outcome that resulted from the application judge’s unreasonable exclusion of the appellant’s supplementary affidavit which provided a different version of the events.


Ontario (Finance) v. Echelon General Insurance Company, 2019 ONCA 0629

[Lauwers, Fairburn and Nordheimer JJ.A.]

Counsel:

J.R. Pollack and Erica Lewin, for the appellant
M. Sydney, for the respondent

FACTS:
Ms. Barnes was a passenger on a snowmobile operated by her boyfriend, Mr. Bird, when she was thrown off and suffered injuries. Mr. Bird was a named insured under an automobile insurance policy issued by Echelon General Insurance Company. Ms. Barnes applied to Echelon for statutory accident benefits. Echelon began paying her benefits as required by s. 2 of Disputes Between Insurers, O. Reg. 283/95 (the “Regulation”), enacted under the Insurance Act, R.S.O. 1990, c. I.8. However, Echelon soon decided that it was not liable because the snowmobile was not a described vehicle under Mr. Bird’s policy. In reality, the snowmobile was insured under the “other automobiles” section of the policy. In the mistaken belief that Ms. Barnes was not covered by its insurance policy, but was uninsured, Echelon persuaded the Motor Vehicle Accident Claims Fund (also referred to as “HMQ”) to accept the payment obligation. Echelon’s coverage mistake eventually came to light and the Fund requested Echelon to resume paying Ms. Barnes, and to reimburse it for payments made to her. Echelon refused.

The Fund and Echelon arbitrated their dispute under the provisions of the Regulation. The arbitrator found that Echelon, not the Fund, was obliged to pay the benefits to Ms. Barnes. The appeal judge agreed that Echelon was obliged to pay the benefits. Echelon appeals to the Court with leave.

ISSUES:
(1) The overarching issue is whether responsibility for paying statutory accident benefits to Ms. Barnes lies with Echelon or the Fund:
(a) Was the appeal judge correct in holding that the arbitration was void from the outset?
(b) Does the arbitral jurisprudence bind the Fund in a priority dispute?
(c) Was the arbitrator’s interpretation of s. 7(6) of the Regulation reasonable?

HOLDING:
Appeal dismissed.

REASONING:
(1):Responsibility for payment lay with Echelon, not the Fund. The arbitrator’s order in this regard was correct:

(a) No, the appeal judge was not correct in concluding that the arbitration was void from the outset.
By basing his reasoning on a finding that the arbitration was void from the outset, the appeal judge nullified the arbitration award. If the arbitration was void, it is unclear on what basis the Fund could obtain the remedy it seeks and to which it is entitled.
The arbitration was properly initiated by the Fund and duly constituted. The arbitrator had the authority given to him by the Regulation and the Arbitration Act, 1991 to resolve the issues confided to him. There is nothing in the text of the amended Regulation or in the Insurance Act that compels or could even justify the result of voiding the arbitration award. Quite to the contrary, s. 7(6) of the Regulation addresses precisely the situation in which an insurer fails to comply with s. 3.1, including the insurer’s failure under s. 3.1(2) (a) to “complete a reasonable investigation to determine if any other insurer or insurers are liable to pay benefits in priority to the Fund”.
This conclusion requires looking at the reasonableness of the arbitration decision.

(b) Does the arbitral jurisprudence bind the Fund in a priority dispute?
No. The Fund is not an ordinary insurer, as Laskin J.A. noted in Allstate. And the Fund is not an ordinary insurer in a priority dispute under the Regulation, as the 2010 amendments make abundantly clear. The Court agreed with the arbitrator and the appeal judge that even though the Fund is an insurer for some purposes, it stands apart from ordinary insurers in priority disputes under the Regulation. The arbitrator did not err in refusing to apply the arbitral jurisprudence to the Fund in this instance.

(c) Was the arbitrator’s interpretation of s. 7(6) of the Regulation reasonable?

No. The arbitrator’s interpretation of s. 7(6) of the Regulation as it related to the jurisdiction to make a special award was unreasonable. Contrary to his view, the section permits an arbitrator to resolve the priority dispute by requiring an insurer to fully reimburse the Fund for benefits paid for which the insurer was properly responsible, in addition to the costs of the investigation and legal fees, and ordering any sanctions the arbitrator might find to be warranted. This reading rounds out the regulatory scheme. However, since the arbitrator imposed a reasonable award, the appeal should be dismissed.

The narrow reading of his authority under s. 7(6) compelled the arbitrator to pursue the convoluted common law route to an effective remedy that occupied many pages of his lengthy decision. This extended the arbitration well beyond its normal summary dimensions and was an unnecessary side trip. While the arbitrator has jurisdiction under the Arbitration Act, 1991 to take that road, there was no need to do so in this case. This is the summary perspective within which an arbitration under the Regulation is intended to operate, as Sharpe J.A. noted in West Wawanosh.
Furthermore, s. 282(10) was repealed in 2016. There was no reason to implicitly import the express limitations on a “special award” found in an earlier repealed provision. It is trite law that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the legislature. Implicitly importing repealed limitations would not be consistent with the accepted approach to statutory interpretation, which is to give effect to the text of the provision resorting only to the implication of additional terms where that is necessary and consistent with the statutory scheme.


Solea International BVBA v. Bassett & Walker International Inc., 2019 ONCA 0617

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

G.R. Hall and A.D. Iarusso, for the appellant
A. Mazzotta and T.J. Law, for the respondent

FACTS:

The respondent, Solea International BVBA (“Solea”) is a trader of seafood products who sold two containers of frozen shrimp to the appellant, Bassett & Walker International Inc. (“BWI”). Under the terms of its sales contract with BWI, Solea was to deliver the shrimp CIF (Cost, Insurance, and Freight) to the Mexican port of Manzanillo. The shrimp arrived at the port and was off-loaded in 2014. BWI was not able to pass the goods through Mexican customs. Although first assuring Solea that it would pay the invoice, ultimately BWI refused to pay Solea’s invoice for the contract price of the shrimp. The shrimp was returned to Ecuador. Solea commenced this action for payment of the purchase price of US$228,604.50 plus interest at 8%. The motion judge granted judgment to Solea for the full amount of the purchase price, together with pre-judgment interest.

Two rounds of summary judgment motions have taken place in this proceeding. In Round One, summary judgment was granted to Solea for the contract price. This court set aside that judgment on the basis that the parties and the motion judge had failed to consider whether the International Sale of Goods Act (the “ISGA”), now titled the International Sales Conventions Act, and its Schedule 1, the United Nations Convention on Contracts for the International Sale of Goods (the “Convention”), applied to the transaction. On that appeal, the parties agreed that the ISGA and its schedule, the Convention, applied.

In Round Two, the Court again granted Solea summary judgment, ordering BWI to pay the Canadian dollar equivalents of US$228,604.50 and US$79,817.40 for the contract price and prejudgment interest respectively. The motion judge applied a prejudgment interest rate of 8% per annum. The motion judge found that BWI: (i) did not declare the contract avoided pursuant to Art. 49 of the Convention; and (ii) had not established the applicability of either estoppel or unjust enrichment as a defence to paying the purchase price.

ISSUES:
(1) Did the motion judge commit an error of law by concluding that the Convention did not impose on Solea a duty to mitigate?

(2) Did the motion judge err in awarding prejudgment interest at the rate of 8% per annum?

HOLDING:
Appeal dismissed.

REASONING:
(1) Any ultimate characterization of Solea’s claim for the purpose of determining whether Art. 77 of the Convention imposes a duty to mitigate would need to take into account the availability of an Art. 62-based specific performance remedy in a common law jurisdiction such as Ontario in view of the limitation placed by Art. 28.

The parties did not address what effect, if any, Art. 28 may have on any duty for Solea to mitigate in its Ontario action for the purchase price. While it would be open to the panel to ask the parties to provide further submissions on this point, the Court found it was not appropriate or necessary in the specific circumstances of this case. It was not appropriate because: Solea claims a modest amount, utilizing the Simplified Procedure; its action is now over four years old; and this is the second trip to the Court of Appeal. Further submissions were not necessary because this appeal can be decided without expressing a definitive view on whether a duty to mitigate under the Convention applies to Solea’s action.

Taking BWI’s case at its highest by assuming (without deciding) that Solea was subject to a duty to mitigate, Solea satisfied any such duty. When BWI breached the contract by refusing to pay the invoice, it had title to and possession of the goods—circumstances that limited the reasonable measures Solea could take to mitigate its losses caused by BWI’s breach.

The record contained other evidence concerning the mitigation issue. BWI refused an offer from Solea to take the goods back but only if BWI covered Solea’s related costs, which it estimated to be in the range of US$25,000 – $30,000. Art. 77 reflects the common law principle that while it is up to the plaintiff to establish what it has lost from the defendant’s breach of contract, it is up to the defendant to show that the plaintiff could have avoided some, or perhaps all, of these losses. Given that onus on BWI, it was significant that it did not adduce any evidence about what Solea likely would have fetched on a resale of the goods at the material time.

The findings of fact of the motion judge, taken together with the evidence support the conclusion that even if Solea was subject to a duty to mitigate under the Convention, it took such measures as were reasonable in the circumstances to mitigate its loss, including loss of profit, resulting from BWI’s breach of contract.

(2) No. While the Solea sales confirmation did not refer to interest payable on the amount billed, there was no dispute that the commercial practice for this type of international food commodity transaction first involved the formation of a sale contract, followed by the approval of other documentation required to perform the transaction. An email exchange between the parties confirmed that one required document was a commercial invoice.

Solea sent to BWI by email a package of documents, which included an invoice of the same date. Term 11 of the “General Terms of Sale” on the back page of the invoice stipulated a minimum rate of interest of 8% on any amount unpaid on the due date, with interest otherwise calculated at a rate of 2% on top of the current Euribor rate.

BWI’s affiant, Jose Barajas Andrade, swore two affidavits for the motions. In neither affidavit did he take the position that BWI was not aware of the General Terms of Sale on the reverse of the invoice.

BWI had also confirmed that it had received a copy of the invoice, would proceed on the basis of the copy, and had approved the acceptability of the invoice as a transaction document. The front page of the invoice contained the following language: “General Terms of Sale: see reverse side”. Given the clear disclosure that the invoice contained additional terms, BWI’s approval of the acceptability of a copy of the invoice bearing that language operated to incorporate those terms into the contract of sale.


SHORT CIVIL DECISIONS

V Hazelton Limited v. Perfect Smile Dental Inc., 2019 ONCA 0632

[Watt, Hourigan and Huscroft JJ.A.]

Counsel:

M. G. McQuade, for the appellant
R. W. Trifts, for the respondent Perfect Smile Dental Inc.

Keywords: Costs Endorsement


CRIMINAL DECISIONS

R. v. Ching, 2019 ONCA 0619

[Strathy C.J.O., Rouleau and Miller JJ.A.]

Counsel:

H. L. Krongold and P. Michaud-Simard, for the appellant
H. Leibovich, for the respondent

Keywords: Criminal Law, First Degree Murder, Second Degree Murder, Assault, Mens Rea, Defences, Not Criminally Responsible by Reason of Mental Disorder, Jury Instructions, Evidence, Admissibility, Post-Offence Conduct, R. v. Droste, [1984] 1 S.C.R. 208, Criminal Code, s. 229, 231, s. 683(3), s. 686(1)(b)(i)


R. v. Trachy, 2019 ONCA 0622

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

J. Patton, for the appellant
M. R. Gourlay, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Indecent Assault, Sexual Interference, Sexual Exploitation, Mens Rea, Expert Evidence, Criminal Code, s. ss. 676(1)(a) & 686(4)(b)(ii), R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Chase, [1987] 2 S.C.R. 293, R. v. Litchfield [1993] 4 S.C.R. 333, R. v. Ewanchuk, [1999] 1 S.C.R. 330, R. v. Lutoslawski, 2010 SCC 49, R. v. Marshall, 2017 ONCA 801, R. v. Skalbania, [1997] 3 S.C.R. 995, R. v. Cassidy, [1989] 2 S.C.R.


R. v. Claros, 2019 ONCA 0626

[Hoy A.C.J.O., Hourigan and Paciocco JJ.A.]

Counsel:

L. Shin, for the appellant
D. Doucette, for the respondent

Keywords: Criminal Law, Discharging a Firearm With Intent to Wound, Possession of a Weapon for the Purpose of Committing an Offence, Possession of a Firearm Without a Licence, Unauthorized Possession of a Firearm in a Motor Vehicle, Aggravated Assault, Possession of a Firearm While Prohibited, Possession of a Firearm Obtained by Crime, Sentencing, Pre-Sentence Custody, Concurrent Sentences, Disclosure Breaches, Remedies, Canadian Charter of Rights and Freedoms, s 24, Criminal Code, ss.  88(2), 92(3), 94(2), 96(2), 96(3), 117.01(3), 244(2), 268(2) & 718.2(c), R. v. Nasogaluak, 2010 SCC 6


R. v. Locknick, 2019 ONCA 0625

[Watt, Tulloch and Lauwers JJ.A.]

Counsel:

K. Grad and K. Heath, for the appellant
C. Walsh, for the respondent

Keywords: Criminal Law, Conspiracy to Traffic in a Controlled Substance, Delay, Canadian Charter of Rights and Freedoms, ss. 8, 11(b), 24(2), R. v. Jordan, 2016 SCC 27, R. v. Morin, [1992] 1 S.C.R. 771, R. v. Antic, 2019 ONCA 160, R. v. Cody, 2017 SCC 31, R. v. Araujo, 2000 SCC 65


R. v. Grewal, 2019 ONCA 0630

[Tulloch, van Rensburg and Harvison Young JJ.A.]

Counsel:

J. Lockyer and A. Ohler, for the appellant
H. Loubert, for the respondent

Keywords: Criminal Law, Kidnapping, Aiding and Abetting, Actus Reus, Mens Rea, Defences, Duress, Jury Instructions, Evidence, Hearsay, Criminal Code, RSC 1985, c. C-46, ss. 21(1)(b), 24, R. v. W.(D.), [1991] 1 SCR 742, R. v. Calnen, 2019 SCC 6, R. v. Srun, 2019 ONCA 453, R. v. Dooley, 2009 ONCA 910, leave to appeal refused, [2010] SCCA No. 83, R. v. Simon, 2010 ONCA 754, leave to appeal refused, [2010] SCCA No. 459, R. v. Romano, 2017 ONCA 837, R. v. Luciano, 2011 ONCA 89, R. v. Wong (2006), 209 CCC (3d) 520 (Ont. CA), R. v. Cinous, 2002 SCC 29, R. v. Bucik, 2011 ONCA 546, R. v. Barrett, 2016 ONCA 12


R. v. Ibrahim, 2019 ONCA 0631

[Rouleau, Trotter and Zarnett JJ.A.]

Counsel:

C. Murphy, for the appellant
J. Barrett, for the respondent

Keywords: Criminal Law, Second Degree Murder, Unlawful Act Manslaughter, Criminal Negligence, Dangerous Driving, Intent to Cause Bodily Harm, Assault, Defences, Provocation, Jury Instructions, W.(D.) Instruction, Reasonable Apprehension of Bias, Criminal Code, R.S.C. 1985, c. C-46, ss. 150.1(4), 222(5)(a), 222(5)(b), 229(a), s.232, s. 249(1)(a), 265(1)(a), 265(1)(b), Highway Traffic Act, R.S.O. 1990, c. H.8, s. 130, R. v. (W.D.), [1991] 1 S.C.R. 742, R. v. Beatty, 2008 SCC 5, R. v. Roy, 2012 SCC 26, R. v. Ibrahim, 2016 ONSC 1538, R. v. Hundal, [1993] 1 S.C.R. 867, R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.), R. v. Dunchie, 2007 ONCA 887, R. v. Sadiqi, 2013 ONCA 250, R. v. Reynolds, 2013 ONCA 433, R v. Griffith, 2019 BCCA 37, 38 M.V.R. (7th) 1, R. v. Dowholis, 2016 ONCA 801, R. v. Stewart (1991), 62 C.C.C. (3d) 289 (Ont. C.A.)


R. v. Jordan, 2019 ONCA 0607

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

D.J., in-person
M. Halfyard, duty counsel
J. Smith Joy, for the respondent

Keywords: Criminal Law, Human Trafficking, Intimidation Of A Justice System Participant, Sentencing, Mandatory Minimum Sentence, Consecutive Sentences, Concurrent Sentences

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


Jump To: Table of Contents | Civil Decisions | Short Civil Decisions | Criminal Decisions | Ontario Review Board

Good afternoon,

Following are the summaries for this week’s civil decisions of the Court of Appeal for Ontario.

In Stegenga v Economical Mutual Insurance Company, 2019 ONCA 615, the Court had to interpret s. 280 of the Insurance Act. This section relates to the administration of Statutory Accident Benefits under the License Appeal Tribunal. The appellant was seriously injured in a MVA and felt the insurance company acted in bad faith while administering the policy and so the appellant filed a statement of claim to commence a lawsuit. The motion judge struck the statement of claim finding that the dispute fell under the jurisdiction of the Licence Appeal Tribunal and so was statute barred in the Ontario courts. On appeal, the Court interpreted the Act similarly to the motion judge and dismissed the appeal.

In Manastersky v. Royal Bank of Canada, 2019 ONCA 609, the Court found that the trial judge erred in finding that the terminated employee was entitled to damages in respect of the “lost opportunity” to earn additional entitlements under the profit-sharing plan during the period of reasonable notice. The Court emphasized that the parties were in agreement that the terminated employee had already been fully paid for all entitlements owed under the existing plan. Further, the terms of the plan did not place the employer under any obligation to set up a new plan once the existing plan was phased out, or to grant the terminated employee any entitlement rights under such a prospective plan. As such, the Court allowed the appeal and reversed the trial judge’s award of damages for this “lost opportunity.”

In Alalouf v. Sumar, 2019 ONCA 611, the Court affirmed the principle that in family litigation, a highly deferential standard of review is owed to the factual findings of the trial judge. In applying this principle, the Court agreed with the trial judge that her findings of credibility impacted how she resolved most of the issues.

In Monk v. Farmers’ Mutual Insurance Company (Lindsay), 2019 ONCA 616, the major issue considered was the law pertaining to forfeiture and relief from forfeiture in the context of an insurance policy. The Court noted that the power to grant relief from forfeiture is a discretionary one. An appellate court is not at liberty to substitute its own discretion for that already exercised by the judge of first instance. The Court reminded us that the test to apply in assessing relief from forfeiture is the three-element test articulated in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490 and Liscumb v. Provenzano (1985), 51 O.R. (2d) 129, affirmed (1986), 55 O.R. (2d) 404n (C.A.), colloquially referred to as the Saskatchewan River/Liscumb test. The Court noted that where relief from forfeiture is available, an insured must show: (1) that his or her conduct was reasonable; (2) that the breach was not grave; and (3) that there is a disparity between the value of the property forfeited and the damage caused by the breach. In this case, the Court found that the appellant unreasonably delayed reporting the loss to the insurer, attempted to mislead the insurer, and that her breach disproportionately burdened the insurer in considering the necessary steps to take. As such, the Court held that the appellant was not entitled to relief from forfeiture. The Court also considered a number of other issues in this case, including appellate deference to credibility findings made at trial.

Other topics covered this week included a custody and access dispute, an Order regarding a commercial lease, and wrongful dismissal.

Have a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

2214416 Ontario Inc. v. Peel Standard Condominium Corporation No. 937 (Brisdale Plaza Inc.), 2019 ONCA 610

Keywords: Real Property, Commercial Lease, Exclusive Business Use, Evidence, Damages, Order, Condominium Act, 1998, S.O. 1998, c. 19, s.135, Courts of Justice Act, R.S.O. 1990, c. C.34, ss. 134(1)(a) and (c)

Manastersky v. Royal Bank of Canada, 2019 ONCA 609

Keywords: Contract Law, Employment Law, Termination Without Cause, Constructive Dismissal, Breach Of Contract, Damages, Common Law Right To Damages, Reasonable Notice, Incentive Plan Compensation, Profit-Sharing Plans, Carried Interest Plans, Taggart v. Canada Life Assurance Co., [2006] O.J. No. 310 (C.A.), Lin v. Ontario Teachers’ Pension Plan Board, 2016 ONCA 619, Paquette v. TeraGo Networks Inc., 2016 ONCA 618

Alalouf v. Sumar, 2019 ONCA 611

Keywords: Financial Issues, Breakdown of Marriage, Equalization of Net Family Property, Cottage Property, Leasehold Interest, First Nation Reserve, Post Separation Adjustments, Retroactive Spousal Support, Child Support, Jurisdiction, Credibility, Indian Act, R.S.C. 1985, c. I-5, Family Law Act, R.S.O. 1990, c. F.3, Constitution Act, 1867, Choquette v. Choquette, 2019 ONCA 306, Johanson v. Hinde, 2016 ONCA 430, Hersey v. Hersey, 2016 ONCA 494, 87 R.F.L. (7th) 272, Syrette v. Syrette, 2012 ONCA 693, 6 C.B.R. (6th) 324

Aloe v. Aloe Estate, 2019 ONCA 613

Keywords: Minutes of Settlement, Property, Final Order, Contempt, Conservation Easement, Environmental Issues, Deed Transfer, Aloe-Gunnell v. Aloe et al., 2016 ONSC 2576

English v. Manulife Financial Corporation, 2019 ONCA 612

Keywords: Employment Law, Wrongful Dismissal, Resignation, Civil Procedure, Summary Judgment, Arnone v. Best Theratronics Ltd., 2015 ONCA 63, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 1.04(1.1)

Khan v. Ahmad, 2019 ONCA 614

Keywords: Family Law, Sole Custody, Access, Evidence, Office of the Children’s Lawyer, Children’s Best Interest, Chapman v. Chapman (2001), 141 O.A.C. 389 (C.A.), Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.)

Monk v. Farmers’ Mutual Insurance Company (Lindsay), 2019 ONCA 616

Keywords: Insurance Law, Summary Judgment, Forfeiture, Relief From Forfeiture, Damages, Costs, Reasonable Expectations Of Costs, Standard Of Review, Findings Of Credibility, Limitations Act, 2002, Insurance Act, R.S.O. 1990, c. I.8, s. 129, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, R. v. Dinardo, 2008 SCC 24, Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., [1989] 2 S.C.R. 778, Cervo v. State Farm Mutual Automobile Insurance Co. (2006), 83 O.R. (3d) 205 (C.A.), Kozel v. The Personal Insurance Company, 2014 ONCA 130, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Liscumb v. Provenzano (1985), 51 O.R. (2d) 129, affirmed (1986), 55 O.R. (2d) 404n (C.A.)

Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615

Keywords: Insurance, Motor-Vehicle Accidents, Statutory Accident Benefits, Statutory Interpretation, Jurisdiction of the Superior Court, Breach of Duty of Good Faith, Insurance Act, RSO 1990, c. I. 8, Weber v Ontario Hydro [1995] 2 SCR 929, Arsenault v Dumfries Mutual Insurance Co. (2002), 57 OR (3d) 625 (CA), Whiten v Pilot Insurance Co,, 2002 SCC 18, Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70

Short Civil Decisions

Asghar v. Toronto Police Services Board (Costs) , 2019 ONCA 603

Keywords: Costs Order, No Costs Awarded

Hurst v. Hancock , 2019 ONCA 606

Keywords: Addendum, Summary Judgment

Newell v. Sax , 2019 ONCA 608

Keywords: Costs Endorsement, Costs Assessment, Proportionality, Reasonable Apprehension of Bias

Criminal Decisions

R. v. Bulhosen , 2019 ONCA 600

Keywords: Criminal Law, Constitutional Law, Drug Trafficking, Drug Importation, Conspiracy To Import Cocaine, Conspiracy To Traffic In Cocaine, Right To Be Tried Within A Reasonable Time, Exceptional Circumstances, Presumptive Ceiling, Length Of Delay, Standard Of Review, Correctness, Dawson Applications, Canadian Charter of Rights and Freedoms, s. 11(b), Criminal Code, s. 540(7) R. v. Jordan, 2016 SCC 27, R. v. Dawson (1998), 39 O.R. (3d) 436 (C.A.), R. v. Cody, 2017 SCC 31, R. v. Schertzer, 2009 ONCA 742

R. v. McGean , 2019 ONCA 604

Keywords: Criminal Law, Drug Offences, Weapons Offences, Drug Trafficking, Conspiracy To Traffic Heroin, Conspiracy To Traffic Cocaine, Hearsay Rule, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 2(1) R. v. Carter, [1982] 1 S.C.R. 938, R. v. J.F., 2013 SCC 12, R. v. Villaroman, 2016 SCC 33

R. v. Box , 2019 ONCA 601

Keywords: Appeal Book Endorsement, Criminal Law, Prohibition Order, Credibility, Bad Character Evidence, Sentencing, R. v. Boudreault, 2018 SCC 58

R. v. Young , 2019 ONCA 605

Keywords: Appeal Book Endorsement, Criminal Law, Credibility, Collusion, Legal Aid Certificate

R. v. Dhaliwal , 2019 ONCA 617

Keywords: Criminal Law, Addendum, Sentencing, Firearms Offence, Threat to Bodily Harm

Ontario Review Board

Ali (Re) , 2019 ONCA 602

Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Mental Disorder, Significant Threat, Canadian Forces, Attempted Murder, Assault Causing Bodily Harm, Assault With a Weapon, Carrying a Weapon for the Purpose of Committing an Offence, Psychiatric Evidence, Prohibition Against Communication with any Military personnel, Indirect Supervision, Inquisitorial Function, Public Safety, Treatment, Detained Person, No Contact, Condition, Compliance, Criminal Code, ss. 672.11, 672.54


CIVIL DECISIONS

2214416 Ontario Inc. v. Peel Standard Condominium Corporation No. 937 (Brisdale Plaza Inc.), 2019 ONCA 610

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

C. A. Dirks and R. Fielding, for the appellant, Peel Standard Condominium Corporation No. 937, also known as Brisdale Plaza Inc.

B. V. Hanuka, for the appellant, Royal Pann

H. S. Makkar, for the respondent

Keywords: Real Property, Commercial Lease, Exclusive Business Use, Evidence, Damages, Order, Condominium Act, 1998, S.O. 1998, c. 19, s.135, Courts of Justice Act, R.S.O. 1990, c. C.34, ss. 134(1)(a) and (c)

Facts:

Pursuant to s.135 of the Condominium Act, 1998 (the “Act”), the application judge granted the relief in paras. 4 and 5 of his order dated December 7, 2018 (the “Order”) on the basis that at the time of the February 2018 hearing the respondent had a pending sale of its two units and the proposed purchaser of the units intended to operate a restaurant. The appellant, Royal Paan, sought leave to adduce fresh evidence, which disclosed that the sale of the respondent’s two units did not proceed and later in 2018, the respondent leased the two units to other companies under separate leases that now run for 5 year terms. This new evidence changed the Order of the application judge.

Issues:
  1. Should the fresh evidence be admitted?
  2. Should the Order of the application judge be set aside?
Holding:

 Appeal allowed in part.

Reasoning:

 (1) Yes. Given the reliability of the fresh evidence, its cogency to the operation of the discretionary relief granted by the application judge in his Order, and the unavailability of that evidence at the time of the hearing, the Court granted leave to admit that fresh evidence.

(2) The Court set aside paragraphs 4, 5, 6, 7 and 8 of the Order. In light of the fresh evidence, the Court held that there was no realistic prospect that the respondent would be able to use its two units for a restaurant within the period of Exclusive Business Use stipulated in the Declaration. As a result, the equitable relief granted to the respondent by paras. 4 and 5 of the Order provided no practical benefit to it. The Court held that had the application judge had the facts that were disclosed by the fresh evidence, the relief in paras. 4 and 5 would not have been granted. Therefore, the Court set aside paras. 4 and 5 of the Order.

The Court set aside para. 6 of the Order because Peel Standard Condominium Corporation No.937’s (“PSCC 937”) failure to produce a record of Exclusive Business Uses did not lead to any damages resulting from the failed sale of the units. No basis remained for a damage claim by the respondent against PSCC 937.

Para. 7 of the Order reserved the determination of the costs below to the judge hearing the assessment. Since the Court set aside para. 6 directing the assessment, it fell to the court of appeal to determine both the costs below and the costs of appeal. In light of all the circumstances and the outcome, the Court conclude that this was an appropriate case where there should be no order as to costs and each party should absorb its costs incurred below and on appeal.

Manastersky v. Royal Bank of Canada, 2019 ONCA 609

[Feldman, Brown and Miller JJ.A.]

Counsel:

J. Devereux and G. Mens, for the appellant

N. Shapiro, for the respondent

Keywords: Contract Law, Employment Law, Termination Without Cause, Constructive Dismissal, Breach Of Contract, Damages, Common Law Right To Damages, Reasonable Notice, Incentive Plan Compensation, Profit-Sharing Plans, Carried Interest Plans, Taggart v. Canada Life Assurance Co., [2006] O.J. No. 310 (C.A.), Lin v. Ontario Teachers’ Pension Plan Board, 2016 ONCA 619, Paquette v. TeraGo Networks Inc., 2016 ONCA 618

Facts:

The respondent was employed by the appellant. At trial, the appellant conceded it had terminated the employment of the respondent without cause. The trial judge found that the respondent was entitled to 18 months’ notice upon termination.

During his employment, the respondent participated in profit-sharing plans called “carried interest plans”. In the last decade of his employment before his termination, the respondent participated in the Mezzanine Carried Interest Plan (the “Mezzanine CIP”).

All full-time employees of the appellant were eligible to participate in the Mezzanine CIP, however no employee was entitled as of right to participate. The decision as to which employees would participate lay in the hands of a management committee. When a person became entitled to participate, the committee would issue the participant an allocation letter that established the participant’s “points” in the Mezzanine CIP. These points represented the participant’s share of the portion of the aggregate profits and losses with respect to that portfolio.

The respondent was allocated points for two separate portfolios (“Fund 1” and “Fund 2”). There is no dispute that at the time of his termination, the respondent’s points were fully vested. As such, when the employment of a participant was terminated without cause, the Mezzanine Plan provided that the participant continued as a participant, retaining “in all Portfolios with respect to which he or she has Points, all rights represented by his or her Vested Points.”

In mid-2013, the respondent was advised that the appellant was reconsidering its continued reinvestment in the Mezzanine Fund. On February 12, 2014, the appellant informed the respondent that his employment would end effective February 14, 2014. The appellant’s decision regarding the Mezzanine Fund appears to have been independent of its decision to terminate the respondent’s employment.  The termination letter offered to pay the respondent his base salary, bonus payments and benefit entitlements for a period of 13 months.

The respondent did not accept the termination offer, and litigation ensued. In June 2014, the appellant sought to terminate the Mezzanine CIP and ensure no new investments were made as contemplated by the Plan. Over the course of 2015 and 2016, as the portfolios within the Mezzanine Fund were wound-down, the appellant paid the respondent a total of $5,434,309, representing the calculation of his entitlement under the Mezzanine CIP. There is no dispute that the appellant paid the respondent the full amount he was entitled to in respect of his participation in Funds 1 and 2.

When the respondent’s employment was terminated, the Mezzanine CIP comprised only Funds 1 and 2. However, the trial judge held that the respondent was entitled to an amount beyond the full share of profits he had been paid in respect of Funds 1 and 2. The trial judge awarded the respondent $953,392.50 “in respect of the lost opportunity to earn entitlements under the Mezzanine CIP during the 18 month reasonable notice period.”

At trial, the appellant also submitted that the Canada-U.S. dollar exchange rate in place at the time of the maturity of an investment in the Funds (the “Exit Rate”) should be applied. The respondent, on the other hand, contended that the exchange rate as of the date of the investment should be used to calculate the value. The trial judge accepted the conversion methodology of the respondent.

Issues:

(1) Did the trial judge err in awarding the respondent damages in respect of the “lost opportunity to earn entitlements” under the Mezzanine CIP?

(2) Did the trial judge err in applying the appropriate foreign exchange rate to value U.S. dollar investments made in the Mezzanine Fund?

Holding:

Appeal allowed in part.

Reasoning:

(1) Did the trial judge err in awarding the respondent damages in respect of the “lost opportunity to earn entitlements” under the Mezzanine CIP?

Yes. The appellant submitted that since the respondent received all the profits he was entitled to in respect of Funds 1 and 2, and as under the terms of the Mezzanine CIP, the managing committee was under no obligation to start up a new Fund 3, the respondent did not lose any opportunity to earn further entitlements.

The parties agreed that the applicable legal standards are those set out in three decisions: Taggart v. Canada Life Assurance Co., [2006] O.J. No. 310 (C.A.); Lin v. Ontario Teachers’ Pension Plan Board, 2016 ONCA 619; and Paquette v. TeraGo Networks Inc., 2016 ONCA 618.

The analysis in each of these decisions proceeded from the general principle that where an employer terminates an employee without cause, the employer is liable for damages for breach of contract, measured by the loss of wages or salary and other benefits that would have been earned during the reasonable notice period.

When considering a claim by a terminated employee in respect of benefits payable under incentive plans during the period of reasonable notice, Taggart describes the two-step inquiry a court should undertake. First, the court must consider the employee’s common law right to damages for breach of contract. Second, the court must then consider whether the terms of the plan alter or remove a common law right.

The appellant submitted that the trial judge incorrectly framed the first question of the Taggart analysis. Instead of asking what the respondent would have earned under the Mezzanine CIP had the appellant not breached the contract, the trial judge wrongfully concluded that the respondent was presumptively entitled to common law damages in respect of the Mezzanine CIP merely because the payments under that Plan historically had constituted a significant form of compensation to him.

The Court agreed with the appellant’s submission. The Court held that a finding that some form of incentive compensation being an integral part of an employee’s compensation package does not exhaust the inquiry under the first step of the Taggart analysis. The Court emphasized that the critical inquiry concerns the terms of the incentive compensation plan. The trial judge failed to examine the terms of the Mezzanine CIP and thereby made an error.

The Court reiterated that there is no dispute that the respondent was paid in full for his entitlements under Funds 1 and 2. Further, the provisions of the Plan, coupled with the committee’s decision to terminate the Plan, indicated that the respondent was not entitled to any common law damages in respect of the Mezzanine CIP beyond those relating to his vested points for Funds 1 and 2.

The trial judge’s finding of “lost opportunity” suggests that the respondent was entitled to an allocation of points in respect of some new Fund 3 that the appellant should have set up. The Court reiterated that the appellant was under no such obligation. While the trial judge did not make such an express finding, he reached the same position by resorting to the concept of constructive dismissal.

However, by terminating the Mezzanine CIP, the appellant was not evincing an intention not to be bound by the employment contract. Instead, it was exercising a fully disclosed right it had under that contract of employment. Consequently, there is no evidentiary support for the trial judge’s finding of a constructive dismissal.

(2) Did the trial judge err in applying the appropriate foreign exchange rate to value U.S. dollar investments made in the Mezzanine Fund?

No. In reaching its decision, the Court emphasized the fact that the Mezzanine CIP was silent on the foreign exchange translation methodology. Further, the appellant’s own witnesses were unanimously in agreement that the Mezzanine CIP prescribed no foreign exchange methodology.

The Court found that the trial judge’s conclusion that it was not fair or appropriate for the appellant, after the fact, to seek to apply a methodology that had the effect of exposing participants to significant foreign exchange risk was firmly supported by the evidence.

By imposing the Exit Rate methodology, the appellant in effect was amending the CIP in a material way, as well as departing from the methodology it used in making payments out under an earlier plan. Article 9.2.1 of the Mezzanine CIP required the written consent of a participant to any change that “may materially and adversely affect the determination of any amount to be paid to any Participant in respect of any Investment Period which has already commenced.” The Court found that the respondent did not consent to using the Exit Rate methodology. Therefore, the trial judge’s conclusion on this point found firm support in the language of the Mezzanine CIP.

Alalouf v. Sumar, 2019 ONCA 611

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

A. Lee, for the appellant

S. E. Deliscar, for the respondent

Keywords: Financial Issues, Breakdown of Marriage, Equalization of Net Family Property, Cottage Property, Leasehold Interest, First Nation Reserve, Post Separation Adjustments, Retroactive Spousal Support, Child Support, Jurisdiction, Credibility, Indian Act, R.S.C. 1985, c. I-5, Family Law Act, R.S.O. 1990, c. F.3, Constitution Act, 1867, Choquette v. Choquette, 2019 ONCA 306, Johanson v. Hinde, 2016 ONCA 430, Hersey v. Hersey, 2016 ONCA 494, 87 R.F.L. (7th) 272, Syrette v. Syrette, 2012 ONCA 693, 6 C.B.R. (6th) 324

Facts:

After the breakdown of the parties’ 15-year cohabitation/14-year marriage, they were able to settle the parenting issues relating to their children. However, the parties went to trial over issues regarding the equalization of net family property, post-separation adjustments, and ongoing and retroactive spousal and child support.

At trial, the judge declined to make an order relating to a cottage property situated on Saugeen First Nation land pursuant to a land lease. The trial judge held that because the land is situated on a First Nation reserve, it is governed by the provisions of the Indian Act, R.S.C. 1985, c. I-5, and therefore she had no jurisdiction to make an order in relation to this land under s. 9 of the Family Law Act, R.S.O. 1990, c. F.3. The occupancy, possession, ownership, and disposition of reserve lands governed by the Indian Act lie at the core of federal jurisdiction over “lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867. The trial judge was constrained further in her ability to deal with this issue as neither the original lease of land to the vendors, nor the assignment of the lease to the parties, were produced at trial.

Regarding payments on a joint line of credit, the father gave evidence that, from 2010 to 2017, he made all payments on that line of credit in the total amount of $16,000. However, the trial judge found that she had “no way of verifying that figure nor is it clear what portion related to the joint debt and what portion related to the debts in his own name solely.”

The trial judge did not deduct notional disposition costs of the mother’s RRSP at the date of marriage and the valuation date, and the notional disposition costs of the father’s RRSP at the valuation date. The trial judge came to this decision because neither party provided evidence regarding any costs of disposition with respect to the two RRSP accounts, nor were there entries to this effect on either party’s NFP statement.

The father had lost his job in 2016 where he was earning a salary of $190,000 per annum. The father’s credibility was an issue, as he had told the mother that he received two weeks of severance when he had actually received 20 weeks. The trial judge held that the father was intentionally underemployed or unemployed during the relevant periods of time and that he was not particularly motivated to find new employment that matched what he was capable of earning.

After the evidentiary stage of the trial ended, the father attempted to admit electronic evidence of his new employment during the final submissions stage. The offer letter provided that he was to be starting the new job the following week at a salary of 70,000 per annum. The mother then disputed its authenticity of the new employment. The trial judge held the letter could not formally be admitted into evidence. Further, even if the father was employed at a pay rate of $70,000, the trial judge stated that he would still be underemployed within the meaning of section 19 of the Child Support Guidelines.

On the issue of spousal support, the trial judge held that the father would not have been able to build his twenty-year e-commerce career without the mother having been home with the children. By assuming the household responsibilities that she did, the mother facilitated the advancement of the father’s career at the expense of her own and as a result has suffered economic hardship. She is therefore unable to maintain anything approaching the lifestyle the parties shared during the marriage without spousal support. The trial judge therefore ordered spousal support on both a compensatory and non-compensatory basis, and outlined the basis for the quantum and duration of support. The trial judge declined to set a date upon which spousal support could be reviewed, leaving it to the parties to trigger a motion to vary based on material change of circumstances. Further, the trial judge held that the father should pay $300 per month for the children’s horseback riding lessons as a s. 7 expense under the Child Support Guidelines.

The trial judge also made specific credibility findings. In general, the trial judge found the mother to be a consistent and credible witness. However, she expressed concerns about the father’s credibility. The examples listed by the trial judge included that she strongly suspected the father altered the date on a Scotiabank Line of Credit statement, she did not accept the father’s evidence concerning how the balance of this line of credit was retired upon the sale of the matrimonial home, and that the father’s sworn financial statement was “not accurate” in relation to a newly acquired job and he “misstated his income” in his updated financial statement. Overall, the trial judge concluded that the father had not been forthright with Ms. Alalouf, or with the Court, and that where the testimony of Ms. Alalouf and the father differed, the testimony of Ms. Alalouf is more credible.

The father appealed nearly all orders made by the trial judge and submitted that the trial judge erred in finding that she had no jurisdiction to deal with the cottage property.

Issues:

Whether the trial judge erred in her findings regarding:

  1. Credibility;
  2. Interest in the Cottage Property;
  3. Payments on Joint Line of Credit;
  4. Failure to Deduct Notional Disposition Costs from RRSP Values;
  5. Income Imputed for Support Purposes;
  6. Refusing to Admit Evidence of New Employment;
  7. Spousal Support;
  8. Section 7 Expenses.
Holding:

Appeal dismissed.

Reasoning:

Credibility

The trial judge’s credibility findings impacted her explanation of how she resolved may of the issues. The Court affirmed that a highly deferential standard of review is owed to the factual findings of a trial judge in family litigation and held that the trial judge’s credibility findings followed in the Court of Appeal.

Interest in the Cottage Property

The Court declined to rule on the constitutional issue. The Court dismissed this ground of appeal and endorsed the trial judge’s suggestion that the parties find a way to agree on how to deal with such interest as they may have in the property. The Court held that it was unnecessary to address the correctness of the trial judge’s conclusion, as the factual record before the court was completely inadequate. Without the original lease or the assignment, the Court is unable to determine the true nature of the parties’ interests in this property, whether any such interest is assignable, and what the value of any such interest may be.

Payments on Joint Line of Credit

The Court held that bearing in mind the trial judge’s concerns about the father’s credibility, there was no basis to disturb her finding on this issue and dismissed this ground of appeal.

Failure to Deduct Notional Disposition Costs from RRSP Values

The father contended that, had the trial judge made these deductions, the equalization payment (before post separation adjustments) owed to him would have increased. However, the Court held that the motion judge made no error in her approach to this issue and dismissed the ground of appeal.

Income Imputed for Support Purposes

The Court held there was an evidentiary basis to support the trial judge’s conclusions. Further, the findings were reasonable and reflected no palpable or overriding error, so the dismissed this ground of appeal.

Refusing to Admit Evidence of New Employment

The father submitted that the trial judge erred by not permitting him to file evidence regarding employment he had allegedly just obtained. The evidentiary stage of the trial had ended on January 25, 2017 and on May 9, 2017 the parties made final submissions. The father had failed to provide advance notice of this development to the mother, he made no hard copies of the offer letter and instead he relied upon an electronic copy on his computer. The Court therefore held that this ground of appeal should be dismissed as there is no basis to conclude that the trial judge improperly exercised her discretion in dealing with this evidence. The father offered this letter, not previously disclosed, at the last possible moment, and in light of the trial judge’s findings about the father’s conduct during the litigation, her decision was justified.

Spousal Support

The father submitted that the trial judge erred in ordering indefinite spousal support be paid to the mother, especially when the Spousal Support Advisory Guidelines provided a duration range of between 7.5 years and 15 years from the date of separation. Further, the father stated that the mother did not give evidence that she assisted in any material way in advancing the father’s career and that by the time of trial, the mother was earning $30,000 per annum and was close to being self-sufficient at a reasonable level. The Court however found no error in the trial judge’s approach and dismissed the ground of appeal.

Section 7 Expenses

The father submits that the trial judge erred in ordering that the father pay $300 per month for the children’s horseback riding lessons as a s. 7 expense, as the mother could reasonably have covered this expense given her income and the quantum of child support and spousal support ordered by the trial judge. While at the hearing of the appeal, this was no longer an ongoing expense the Court still held that there was no basis to interfere with the trial judge’s decision. The trial judge applied the correct principles in determining that the expenses were necessary and reasonable.

Aloe v. Aloe Estate, 2019 ONCA 613

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

H. L. Shankman, for the appellant

W. R. Scott, for the respondents

Keywords: Minutes of Settlement, Property, Final Order, Contempt, Conservation Easement, Environmental Issues, Deed Transfer, Aloe-Gunnell v. Aloe et al., 2016 ONSC 2576

Facts:

The appellant argues that the motion judge made four main errors when dismissing her motion to set aside the implementation of Minutes of Settlement regarding a property in Highland Falls, New York that were reduced to a final order. Further, the appellant appeals for an order finding the respondents in contempt; and granting the respondents’ cross-motion for relief permitting implementation of the terms of the settlement.

The Final Order provided that the appellant was to acquire the western portion of the property, subject to a conservation easement in favour of the purchaser of the eastern portion of the property.

Issues:

(1) Whether the motion judge erred by dismissing the appellant’s motion on the basis that leave was required for her to bring the motion and, in the circumstances, he would not grant leave;

(2) Whether the motion judge erred in rejecting the appellant’s argument that the Final Order should be set aside because the portion of the property that she is to acquire suffers from environmental clean-up issues;

(3) Whether the motion judge erred in granting the respondents’ cross-motion for approval of the Deed Transfer whereby the western portion of the property will be transferred to her;

(4) Whether the motion judge erred in granting the respondents’ cross-motion for approval of the Conservation Easement.

Holding:

Appeal dismissed.

Reasoning:

(1) Whether the motion judge erred by dismissing her motion on the basis that leave was required for her to bring the motion and, in the circumstances, he would not grant leave.

The appellant had been found in contempt of the Final Order on two occasions. However, the appellant argued that in a hand-written endorsement, the motion judge had granted her leave and that the motion judge wrote that the appellant’s consent to relieving counsel for the respondents of his undertaking to re-zone the property was “without prejudice to [her] ability to bring a motion arguing that the settlement ought to be varied or set aside on other grounds (leave granted).”

However, the Court held that this is not a basis for interfering with the motion judge’s order. To the extent that he previously granted leave, he did not do so with respect to the appellant’s motion seeking an order finding the respondents in contempt. Further, the several reasons why the motion judge denied leave were also sound reasons for dismissing the motion.

(2) Whether the motion judge erred in rejecting the appellant’s argument that the Final Order should be set aside because the portion of the property that she is to acquire suffers from environmental clean-up issues.

The motion judge came to his conclusion on basis that the appellant was aware of the dumping at the relevant times and regardless, the dumping issue would have been discoverable with due diligence. This conclusion was based, in part, on the appellant’s concession that dumping was taking place on the land for years.

The Court held that the appellant had not satisfied it that she did not make that concession and that the record indicates that the appellant had exercised considerable diligence in relation to all matters affecting the property. Therefore, there was no basis to interfere with the motion judge’s rejection of her argument that the Final Order should be set aside because of dumping on the property.

(3) Whether the motion judge erred in granting the respondents’ cross-motion for approval of the Deed Transfer whereby the western portion of the property will be transferred to her.

The appellant stated that the Deed Transfer incorrectly creates an easement on the south boundary line of the property that was not contemplated by the Final Order. However, the motion judge found that more than a year before he heard the motion, the easement on the south boundary line of the property was contemplated by the Final Order in Aloe-Gunnell v. Aloe et al., 2016 ONSC 2576. Therefore, the motion judge was correct that it was not open to the appellant to re-argue this issue.

(4) Whether the motion judge erred in granting the respondents’ cross-motion for approval of the Conservation Easement.

The appellant argued that the conservation easement is substantially more restrictive than the terms of the easement that she had agreed to at the time of the settlement and does not comply with the Final Order. Further, the appellant states that she did not appreciate that the Conservation Easement would restrict her from developing the .75 acre “no cut” area of the property she will acquire. The motion judge found that when the parties negotiated the settlement, they had an affidavit that described the conservation easement with which a portion of the property to be acquired by the appellant would be burdened, and the Conservation Easement was consistent with the conservation easement described in that affidavit. The Court held that there is no basis to interfere with the motion judge’s finding.

English v. Manulife Financial Corporation, 2019 ONCA 612

[Lauwers, Benotto and Brown JJ.A.]

Counsel:

A. Zeilikman, for the appellant

G. Jermane, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Resignation, Civil Procedure, Summary Judgment, Arnone v. Best Theratronics Ltd., 2015 ONCA 63, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 1.04(1.1)

Facts:

Elisabeth English had worked as a Senior Customer Relationship Manager for Standard Life Insurance (“Standard Life”) for nine years when it was acquired by Manulife Financial Corporation (“Manulife”). Manulife announced the implementation of a new computer system. Upon learning this news, the appellant, who was then in her early 60s, contemplated early retirement to eliminate the need to train on a new system near the end of her career. She gave her supervisor a letter indicating that she would retire at the end of the year. He said that that if she changed her mind, she could rescind the notice of retirement. A few weeks later, Manulife announced that it was no longer converting to the new computer system, so the appellant decided to stay. Manulife took the position that she had retired. The appellant sued for wrongful dismissal.

The motion judge framed the issue as whether an employee who as resigned her position of employment by way of a notice of retirement may later rescind her written notice of retirement. After analyzing two divergent lines of jurisprudence dealing with the ability of an employee to rescind a notice of resignation, he concluded that the appellant’s notice of retirement was accepted by Manulife, and Manulife did not need to show that it had relied on the notice to its detriment. On this basis, the motion judge held that the appellant had in fact resigned, and therefore had not been wrongfully dismissed.

Issue:

Did the appellant’s September 22, 2016 letter constitute a “clear and unequivocal” resignation?

Holding:

Appeal allowed.

Reasoning:

When the appellant gave her supervisor her retirement letter, she told him that she was not entirely sure she wanted to retire. The impetus for her letter was the computer conversion. She was told that she could change her mind and her supervisor admitted this fact under oath during his examination for discovery. Within three weeks of submitting her letter, the computer conversion was cancelled. The day after the cancellation was announced, the appellant told her supervisor that she had changed her mind. He did not indicate that there was a problem with this.

These facts do not support a clear and unequivocal resignation. On the contrary, they demonstrate that the appellant was equivocal when giving her resignation notice, and that her equivocation was condoned by Manulife through the actions of Ms. English’s supervisor.

When Manulife cancelled the computer conversion within three weeks of her September 22, 2016 conversation with her supervisor, the basis for the appellant’s resignation disappeared. Manulife was therefore bound by the promise made to Ms. English by her supervisor that she could change her mind. Since the appellant did not in fact resign, her termination on December 12, 2016 was a wrongful dismissal.

Khan v. Ahmad, 2019 ONCA 614

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

A. Farooq and S. Balcharan, for the appellant

K. Normandin and C. Senese, for the respondent

Keywords: Family Law, Sole Custody, Access, Evidence, Office of the Children’s Lawyer, Children’s Best Interest, Chapman v. Chapman (2001), 141 O.A.C. 389 (C.A.), Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.)

Facts:

The mother of two young children died on May 16, 2015 from abdominal cancer. On January 30, 2019, after a 13-day trial, the trial judge granted sole custody of the children to their father and ordered that their maternal uncle have access to the children one weekend per month. The father appealed the order granting the uncle access to the children.

Issues:
  1. Did the trial judge err in finding that it was “highly unlikely” and that there was a “serious risk” that access would not occur, if not ordered by the court?
  2. Did the trial judge fail to provide sufficient reasons for why he disbelieved the father’s evidence that he would voluntarily provide the uncle with access to the children?
  3. Did the trial judge make a mistake in concluding that it was in the best interests of the children to maintain a relationship with the uncle in the face of the animosity between the parties?
  4. Did the trial judge fail to provide reasons for not accepting the Office of the Children’s Lawyer’s recommendation that the uncle should not be given overnight access?
  5. Did the trial judge fail to consider the possibility of psychological or physical harm to the father, on whom the children are dependant, resulting from the access order, contrary to this court’s decision in Pollastro v. Pollastro (1999)?
Holding:

Appeal dismissed.

Reasoning:

The Court was not convinced that there was any basis to interfere with the trial judge’s decision. The Court held that trial judge’s decision to grant the uncle access to the children was properly driven by the children’s best interests and was entitled to deference.

(1) No. The father had testified that he would provide access on “whatever conditions [he and the uncle] agree on” and that while he had his counsel write that he would not provide access to the uncle, “no access to uncle means no regular access, but he can ask any time”. The trial judge was entitled to find, from the father’s own testimony, that there was a risk the access would not occur if not ordered by the court.

(2) No. The trial judge provided sufficient reasons when he explained that the animosity between the parties led him to doubt that regular access would occur.

(3) No. The Court held that the trial judge was aware of the animosity that had developed between the parties. Weighing all the facts particular to this case, he concluded that an access order was ultimately in the children’s best interests as the only way to ensure the children’s continuing beneficial relationship with the maternal extended family.

(4) No. The Court held that the trial judge’s reasons for allowing overnight access was sufficient. The trial judge explained that, in his view, it was in the children’s best interests. The children had been having overnight visits for some time, and while the OCL may not have recommended overnight visits because the oldest child advised that he did not want them, the trial judge was not persuaded that the child’s position was that unequivocal.

(5) No. The court held that the alleged psychological harm to the father results from providing access, which he argued he was willing to provide without a court order. The father references Pollastro v Pollastro (1999) to support his argument. Unlike the Pollastro case the father references, this case does not involve a determination under the Hague Convention, there has never been any violence between the parties or involving the children, and there was no evidence – and the trial judge made no findings of fact – that the father suffered or was at risk of suffering psychological or emotional harm.

Monk v. Farmers’ Mutual Insurance Company (Lindsay), 2019 ONCA 616

[Feldman, Brown and Miller JJ.A.]

Counsel:

D.A. Morin, for the appellant

M.P. Forget and E.J. Murtha, for the respondent, Farmers’ Mutual Insurance Company (Lindsay)

D. Yiokaris and S. Hodge, for the respondent, Muskoka Insurance Brokers Ltd.

Keywords: Insurance Law, Summary Judgment, Forfeiture, Relief From Forfeiture, Damages, Costs, Reasonable Expectations Of Costs, Standard Of Review, Findings Of Credibility, Limitations Act, 2002, Insurance Act, R.S.O. 1990, c. I.8, s. 129, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, R. v. Dinardo, 2008 SCC 24, Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., [1989] 2 S.C.R. 778, Cervo v. State Farm Mutual Automobile Insurance Co. (2006), 83 O.R. (3d) 205 (C.A.), Kozel v. The Personal Insurance Company, 2014 ONCA 130, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Liscumb v. Provenzano (1985), 51 O.R. (2d) 129, affirmed (1986), 55 O.R. (2d) 404n (C.A.)

Facts:

The insured appellant owned a log house. In 2008, she wanted to refinish the exterior of the logs. She hired a contractor, and the work was largely completed by the end of 2008. During and after the restoration work, the appellant noticed some damage to the interior and exterior of the house, which she attributed to the work.

The appellant had a home property insurance policy (the “Policy”) with the insurer respondent, which she obtained through the broker respondent. In September of 2011, the appellant informed the broker respondent of the damage. The broker respondent later informed the appellant that the insurer respondent regarded any claim under the Policy as time-barred.

The appellant sent a formal notice of claim in October 2011, and commenced an action for indemnification under the Policy. The respondents moved for summary judgment dismissing the action on the basis that exclusions in the Policy denied coverage. The respondents were successful on their motion.

However, in reasons released in 2015, the Court of Appeal set aside the summary judgment, holding that the resulting damage to the insured property was covered by the Policy. The Court of Appeal went on to add that the remaining question was whether, or to what extent, the appellant’s action is barred by operation of the Limitations Act, 2002.

The trial conducted in 2017 dismissed the appellant’s claim. The trial judge held that the appellant’s failure to provide timely notice of her damages constituted unreasonable conduct and had resulted in substantial prejudice to the insurer. The trial judge held the appellant was therefore not entitled to relief from forfeiture.

The trial judge also did not accept the appellant’s submission that she informed the broker respondent on three separate occasions prior to September 2011 that she had sustained damages.

Although her claim was dismissed, the trial judge assessed the appellant’s damages at $86, 320.70, and ordered the appellant to pay partial indemnity costs of $175,000 to the insurer respondent and $115,000 to the broker respondent.

Issues:

(1) Did the trial judge err in holding that the Policy covered most of the appellant’s claim?

(2) Did the trial judge err in his findings of fact about when the appellant first notified the broker respondent of her loss?

(3) Did the trial judge err in denying the appellant relief from forfeiture?

(4) Did the trial judge err in assessing the appellant’s damages at $86,320.70, instead of the $124,448.47 she requested?

(5) Did the trial judge err in his award of costs?

Holding:

Appeal dismissed, cross-appeal dismissed, leave to appeal trial judge’s costs awards granted, costs awards varied.

Reasoning:

(1) Did the trial judge err in holding that the Policy covered most of the appellant’s claim?

No. The insurer respondent submitted that the trial judge erred by failing to apply the Faulty Workmanship and Property Being Worked On Exclusions to deny the appellant’s claim. The provisions of the Policy outlining these exclusions read as follows:

  • Losses Excluded, s. 2: “the cost of making good faulty material or workmanship” (the “Faulty Workmanship Exclusion”); and
  • Property Excluded, s. 4: “property…(iii) while being worked on, where the damage results from such processes or work (but resulting damage to other insured property is covered”) (the “Property Being Worked On Exclusion”).

In Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, the Supreme Court held that a “cost of making good faulty workmanship” exclusion in a builders’ risk insurance policy excluded from coverage only the cost of redoing the faulty work contracted for.

In the present case, the trial judge concluded that the “cost of making good faulty material or workmanship” language in the Faulty Workmanship Exclusion should be interpreted to mean the cost of re-doing the work which comprised the subject matter of the contract. He held that all other damages properly fell within the scope of “resulting damage”. The trial judge noted that the contract did not require the contractor to install carpets, replace windows, doors or thermal pane glass units and exterior fixtures. The cost of the replacement of those items constituted the resulting damages awarded.

The trial judge found that the work the appellant contracted for comprised only the restoration of all wooden surfaces of the house. Damage to that property properly constituted damage resulting “from such process or work”, and was therefore excluded from coverage.

The Court of Appeal saw no palpable and overriding error in the trial judge’s findings about what fell within the category of “property while being worked on” and what property fell outside. As such, the insurer respondent’s cross-appeal was dismissed.

(2) Did the trial judge err in his findings of fact about when the appellant first notified the broker respondent of her loss?

No. While there is no dispute that the appellant advised a representative of the broker respondent of the damages on September 2, 2011, the appellant contended that she had informed the broker respondent of the damages on three prior occasions.

The Court of Appeal began its analysis of this issue by noting that appellate courts show great deference to findings of credibility made at trial, recognizing the special position of the trier of fact on matters of credibility. As stated in R. v. Dinardo, 2008 SCC 24, “rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”.

It follows that in respect of a finding of credibility by a trial judge, an appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. The Court emphasized that it is not enough that there is a difference of opinion with the trial judge. Accordingly, where detailed reasons display a strong grasp of the evidence and arguments and offer a full explanation for the findings of fact required, an appellant must point to clear and significant errors in the fact-finding process articulated in those reasons.

In the present case, the trial judge gave extensive reasons to explain why he preferred the evidence given by the broker respondent over that of the appellant. In the view of the Court, these reasons demonstrated a strong grasp of the evidence tendered. Therefore, the Court saw no reversible error in the trial judge’s credibility finding.

(3) Did the trial judge err in denying the appellant relief from forfeiture?

No. The insurer respondent relied on the defence that the appellant failed to report the damage “forthwith” and provide a proof of loss “as soon as practicable”, as required by Statutory Conditions 6 of the Policy. The appellant, on the other hand, sought relief from forfeiture pursuant to s. 129 of the Insurance Act, R.S.O. 1990, c. I.8.

As stated in Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., [1989] 2 S.C.R. 778, the purpose of allowing relief from forfeiture in insurance cases is to prevent hardship to policy beneficiaries where there has been a failure to comply with a condition for receipt of insurance proceeds, and where leniency in respect of strict compliance with the condition will not result in prejudice to the insurer.

The Court noted that the power to grant relief from forfeiture is a discretionary one. An appellate court is not at liberty to substitute its own discretion for that already exercised by the judge of first instance.

Applying Cervo v. State Farm Mutual Automobile Insurance Co. (2006), 83 O.R. (3d) 205 (C.A.), the Court found that appellate interference requires the appellant to demonstrate that the judge below: (1) exercised his or her discretion on a wrong principle of law; (2) failed to take into consideration a major element of the case; (3) disregarded, misapprehended or failed to appreciate relevant evidence; (4) or made a finding or drew an inference not reasonably supported by the evidence.

The Court further noted that the principles regarding relief from forfeiture in the circumstances of a claim under an insurance policy were reviewed in Kozel v. The Personal Insurance Company, 2014 ONCA 130. In reviewing principles articulated in Kozel, the Court outlined the test an insured must satisfy where relief from forfeiture is available. The Court noted that an insured must still show: (1) that his or her conduct was reasonable; (2) that the breach was not grave; and (3) that there is a disparity between the value of the property forfeited and the damage caused by the breach.

This three-element test is often referred to as the Saskatchewan River or Liscumb test, from two of the cases in which it was articulated, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490 and Liscumb v. Provenzano (1985), 51 O.R. (2d) 129, affirmed (1986), 55 O.R. (2d) 404n (C.A.).

Regarding the first element of the test, the Court noted that although the damage was first noticed in late 2008, the appellant failed to inform the insurer about any damage until September 2011. Further, she did not speak to anybody involved with the contractor about the damage until more than two and a half years had passed from the completion of the work. The Court also noted that once the appellant was informed that the insurer would deny coverage, she attempted to mislead the insurer by taking the position that she did not notice the damage until early 2010.

The Court did not find any palpable or overriding error by the trial judge in his conclusion that her delay in reporting the loss was unreasonable. As such, the Court saw no reason to interfere with the trial judge’s finding.

In assessing the gravity of the breach, the second element of Saskatchewan River/Liscumb test, the Court noted that both the nature of the breach itself and the impact of that breach on the contractual rights of the other party should be analyzed. The Court found that the appellant’s delay in reporting the loss led to the contractor asserting a limitations defence, thereby undermining the ability of the insurer to advance a subrogated claim in the event it indemnified her for the loss. The Court found that this also supported the trial judge’s initial finding as reasonable.

Finally, on the third element of the test, the Court noted that examining this factor requires a proportionality analysis which, in an insurance case, involves comparing the disparity between the loss of coverage and the extent of the damage caused by the insured’s breach. The Court found that timely reporting by the appellant would have enabled the insured to consider steps against the contractor, unburdened by the ability of the contractor to advance a strong limitations defence. Once again, therefore, the Court saw no basis for appellate intervention in the trial judge’s discretionary conclusion that the appellant was not entitled to relief from forfeiture.

(4) Did the trial judge err in assessing the appellant’s damages at $86,320.70, instead of the $124,448.47 she requested?

No. The difference between the appellant’s request and the trial judge’s assessment turned on the replacement costs for windows and doors. The appellant relied on the 2016 replacement cost she incurred, while the trial judge based his assessment on two 2011 estimates submitted by the appellant to the insurer respondent. The trial judge ultimately chose the midpoint between the two 2011 estimates as representing the fair and reasonable cost.

The appellant submitted that the trial judge erred in using 2011 replacement costs because she was unable to afford replacing the doors and windows until 2016. The Court rejected this submission, and held that the valuation of a loss is made in accordance with the terms of the Policy, not on a party’s ability to fund the replacement of damaged property at any particular time.

(5) Did the trial judge err in his award of costs?

Yes. The Court found that the trial judge erred by failing to take into account the impact of the 2015 decision of the Court of Appeal on the parties’ reasonable expectations of the costs of the further hearing directed by the Court of Appeal. Given the directions by this court in its 2015 decision, the appellant could reasonably expect that her cost exposure at trial would be confined to the “remaining question” as identified by this court. Yet, the trial judge expanded the issues for determination beyond those directed.

In the view of the Court, this resulted in the trial judge awarding costs in excess of the appellant’s reasonable expectations. As such, the appellant was granted leave to appeal the award of trial costs. The Court allowed her appeal to the extent of reducing the trial judge’s awards to the insurer respondent and broker respondent by one-third.

Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

J.P. Brown and M. Warfe, for the appellant

L. Armstrong, J. Brimfield and M.A. Gelowitz, for the respondent

 Keywords: Insurance, Motor-Vehicle Accidents, Statutory Accident Benefits, Statutory Interpretation, Jurisdiction of the Superior Court, Breach of Duty of Good Faith, Insurance Act, RSO 1990, c. I. 8, Weber v Ontario Hydro [1995] 2 SCR 929, Arsenault v Dumfries Mutual Insurance Co. (2002), 57 OR (3d) 625 (CA), Whiten v Pilot Insurance Co,, 2002 SCC 18, Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70

Facts:

The appellant was involved in a serious motor vehicle accident resulting in major injuries and long-term cognitive dysfunction. The appellant was insured by the respondent and made an application for Statutory Accident Benefits (“SABs”). For about three years, the respondent did not advise the appellant that their injuries could classify as ‘catastrophic impairments’ entitling the appellant to advanced benefits. There was also a series of related failures on behalf of the respondent relating to the claim.

Some years later, in 2015, the respondent advised the appellant they were now accepting that the appellant’s injuries were catastrophic impairments but continued to only provide non-catastrophic benefits. The appellant filed a statement of claim citing 56 particulars relating mostly to wilful and negligent breaches of contract and the duty of good faith.

At the Court of first instance, the respondent brought a motion to strike the statement of claim because s.280 of the Insurance Act gives jurisdiction to the Licence Appeal Tribunal (“LAT”) to resolve certain disputes and prohibit bringing proceedings in respect of those disputes in court. The motion judge found the claim fell within s.280(1) as it a dispute “in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.”

The motion judge, referring to Weber, held that the court must consider the facts giving rise to the dispute as being determinative, not the legal classification of the proceedings. Despite it being a claim for breach of a duty of good faith, the underlying facts related to the amount of benefits the insured was entitled to and whether their claim was handled appropriately. This falls within the jurisdiction of the LAT.

The appellant appealed the motion judge’s decisions.

Issues:
  1. Did the motion judge err in finding the appellant’s claim was barred by s. 280 of the Insurance Act?
Holding:

Appeal dismissed.

Reasoning:

The Court first considered the legislative scheme of the Insurance Act, including subsections 1 through 6. These sections discuss the reach of the Insurance Act as it relates to SABs and the LAT. These provisions confirm that the LAT has jurisdiction over how the administration of the claim was handled, as well as jurisdiction over the benefits themselves. Particularly, Section 3(8) of the SABs Schedule provides: If in a dispute described in subsection 280 (1) of the Act, the Licence Appeal Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in Page: 13 respect of an expense, the Licence Appeal Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred. [Emphasis added.]

(1) No. This was a question of statutory interpretation. The modern approach to statutory interpretation requires the court to consider the words of a statute “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Belwood). While the Superior Court has jurisdiction over all disputes, the Insurance Act explicitly limits this jurisdiction. The question, then, is the breadth of this limit.

The amendments to the Act that created s. 280 were enacted to reduce insurance rates and insurance fraud, and to speed up dispute resolution. In effecting this purpose, the legislature must not have intended to give overlapping jurisdiction to both the LAT and the courts as this would be inefficient and would defeat the purposes of the amendment. S. 280 also uses expansive language, namely, “in respect of”. This connotes the broadest possible connection between two subject matters, as was espoused in Arsenault. In respect of, is used in s.280 to connect dispute and entitlement, both of which are very broad terms on their own. Combining these considerations leads to a very broad jurisdiction for the LAT to exclusively hear such disputes.

The appellant also submitted that since the LAT doesn’t have the ability to award punitive damages, it cannot hear claims for bad faith since Whiten makes actions for breach of a duty of good faith subject to punitive damages. However, the Insurance Act gives the LAT power to award special awards when benefits were unreasonably withheld or delayed. Relying on this finding, the Court dismissed these submissions. Further, the Court found that differences in remedial powers do not impact determinations of jurisdiction. The legislature made a decision which matters would fall to the LAT, and in turn, what remedies would be available, and that is a determination they were fully entitled to make.

The appellant further submitted that their claim was one for bad faith, not one relating to the benefits themselves. Bad faith is a standalone cause of action according to the appellant and so should is not subject to the jurisdiction of the LAT. The Court rejected this submission. S. 280 specifically confers powers for disputes relating to the administration of the claim. While the appellant classified their action as bad faith, the facts of the matter clearly show it was a dispute over how the policy was administered.

The Court rejected the appellant’s submissions and dismissed the appeal.


SHORT CIVIL DECISIONS

Asghar v. Toronto Police Services Board (Costs), 2019 ONCA 603

[Hoy A.C.J.O., Lauwers and Zarnett JJ.A.]

Counsel:

S. Ashgar, acting in person

J. Rosolak and N. Salafia, for the respondents

Keywords: Costs Order, No Costs Awarded

Hurst v. Hancock, 2019 ONCA 606

[Feldman, Paciocco and Fairburn JJ.A.]

Counsel:

T. Gleason and R. Glass, for the appellants

K. Marciniak, for the respondents/responding parties

M. Singh and E. Cheng, for the respondent/moving party

Keywords: Addendum, Summary Judgment

Newell v. Sax, 2019 ONCA 608

[Feldman, Roberts and Fairburn JJ.A.]

Counsel:

J.D. Sloan, for the appellants

R. Tanner, for the respondent

Keywords: Costs Endorsement, Costs Assessment, Proportionality, Reasonable Apprehension of Bias


CRIMINAL DECISIONS

R. v. Bulhosen, 2019 ONCA 600

[Strathy C.J.O., Watt and Zarnett JJ.A.]

Counsel:

R. Rusonik, for the appellant R.B.

F. Addario and J. Foy, for the appellant J.K.

M.C. Halfyard, for the appellant V.B.

P. Campell, for the appellant B.V.C.

M. Dineen, for the appellant D.B.

H. Krongold, for the appellant M.C.

J. Couse, for the appellant J.O.

L. Mathews and B. Reitz, for the respondent

Keywords: Criminal Law, Constitutional Law, Drug Trafficking, Drug Importation, Conspiracy To Import Cocaine, Conspiracy To Traffic In Cocaine, Right To Be Tried Within A Reasonable Time, Exceptional Circumstances, Presumptive Ceiling, Length Of Delay, Standard Of Review, Correctness, Dawson Applications, Canadian Charter of Rights and Freedoms, s. 11(b), Criminal Code, s. 540(7) R. v. Jordan, 2016 SCC 27, R. v. Dawson (1998), 39 O.R. (3d) 436 (C.A.), R. v. Cody, 2017 SCC 31, R. v. Schertzer, 2009 ONCA 742

R. v. McGean, 2019 ONCA 604

[Watt, Tulloch and Lauwers JJ.A.]

Counsel:

E. Rolfe, for the appellant R.M.

B. Snell, for the appellant I.L.

J. Clarke, for the respondent

Keywords: Criminal Law, Drug Offences, Weapons Offences, Drug Trafficking, Conspiracy To Traffic Heroin, Conspiracy To Traffic Cocaine, Hearsay Rule, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 2(1) R. v. Carter, [1982] 1 S.C.R. 938, R. v. J.F., 2013 SCC 12, R. v. Villaroman, 2016 SCC 33

R. v. Box, 2019 ONCA 601

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

F. Box, acting in person

N. Gorham, duty counsel

A. Hotke, for the respondent

Keywords: Appeal Book Endorsement, Criminal Law, Prohibition Order, Credibility, Bad Character Evidence, Sentencing, R. v. Boudreault, 2018 SCC 58

R. v. Young, 2019 ONCA 605

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

B. S. Young, acting in person

A. Baiasu, for the respondent

Keywords: Appeal Book Endorsement, Criminal Law, Credibility, Collusion, Legal Aid Certificate

R. v. Dhaliwal, 2019 ONCA 617

[MacPherson, Juriansz and Rouleau JJ.A.]

Counsel:

J. Dhaliwal, in person

B. Snell, duty counsel

J. S. Joy, for the respondent

Keywords: Criminal Law, Addendum, Sentencing, Firearms Offence, Threat to Bodily Harm


ONTARIO REVIEW BOARD

Ali (Re), 2019 ONCA 602

[Feldman, Paciocco and Zarnett JJ.A.]

Counsel:

A. Alyea, for the appellant

N. Hasan and M. Addie, for the respondent, Ayanle Hassan Ali

J. Blackburn, for the respondent, Person in Charge of St. Joseph’s Healthcare Hamilton

Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Mental Disorder, Significant Threat, Canadian Forces, Attempted Murder, Assault Causing Bodily Harm, Assault With a Weapon, Carrying a Weapon for the Purpose of Committing an Offence, Psychiatric Evidence, Prohibition Against Communication with any Military personnel, Indirect Supervision, Inquisitorial Function, Public Safety, Treatment, Detained Person, No Contact, Condition, Compliance, Criminal Code, ss. 672.11, 672.54

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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Good evening.

Following are the summaries for this past week’s civil decisions of the Court of Appeal for Ontario.

In Dermann v. Baker, 2019 ONCA 584, the Court considered the qualifying of certain witnesses as experts for the purposes of r. 53.03 of the Rules of Civil Procedure, the standard of review for a trial judge’s charge to the jury in a civil trial, and costs assessments in the context of payments made in advance, and offers to settle. On the first issue, the Court held that r. 53.03 has no application to non-party experts as long as their opinions are limited to those formed based on observations made for a purpose other than litigation. On the second issue, the Court found that a new trial will not be ordered on the basis of a misdirection in a charge unless the error leads to a substantial wrong or miscarriage of justice. Finally, on the third issue, the Court held that r. 49.10(2) of the Rules of Civil Procedure has no application where the plaintiff is awarded a nil judgment.

Continue Reading BLANEY’S APPEALS: ONTARIO COURT OF APPEAL SUMMARIES (JULY 8 – 12, 2019)