COURT OF APPEAL SUMMARIES (SEPTEMBER 2 – SEPTEMBER 6)

By John Polyzogopoulos on September 6, 2024

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of September 2, 2024. There were only three substantive civil decisions released this week.

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Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) involved the constitutional validity of the Tamil Genocide Education Week Act, 2021. The appellants argued that the Act was ultra vires Ontario and infringed their ss. 2(b) and 15(1) Charter rights by proclaiming that a genocide of the Tamils had been perpetrated by the Sinhalese-dominated Sri Lankan government during the Sri Lankan Civil War that ended in 2009. The Court dismissed their appeal, finding no Charter breach or violation of the division of powers provisions of the Constitution.

Jacob v. Canada (Attorney General) was a Charter application/appeal seeking to have the $5,000 income thresholds to qualify for the federal government’s pandemic EI/CERB/CRB benefits declared unconstitutional. The argument was that the threshold discriminated against disabled workers, who disproportionately fall below the $5,000 annual income threshold when compared to the rest of the population. The Court dismissed the appeal, but on different grounds. It disagreed with the application judge that the threshold was discriminatory, finding that it was. However, the Court felt the measure was saved by s. 1 of the Charter. Perhaps we have not heard the last of this case.

Manjunath v. Kuppa was a family law decision in which the husband and his friends (purported mortgagees) ignored a court order to pay the proceeds of sale of the matrimonial home into court ($1.6 million). The husband also failed to provide adequate disclosure. The application judge struck his pleading, paving the way for an uncontested trial without notice to, or the participation of, the husband. His appeal from that order was dismissed.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Jacob v. Canada (Attorney General), 2024 ONCA 648

Keywords: Pensions, Charter Claims, Equality, Life, Liberty, Security of the Person, Canadian Charter of Rights and Freedoms, ss 7, 15, Canada Emergency Response Benefit Act, S.C. 2020, c. 5, s. 8, Canada Recovery Benefits Act, S.C. 2020, c. 12, s. 2, Vital Statistics Act, R.S.B.C. 1996, c. 479, R. v. Sharma, 2022 SCC 39, Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, R. v. Pike, 2024 ONCA 608, Fraser v. Canada (Attorney General), 2020 SCC 28, Withler v. Canada (Attorney General), 2011 SCC 12, R. v. C.P., 2021 SCC 19, Begum v. Canada (Citizenship and Immigration), 2018 FCA 181, Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, Ontario Teacher Candidates’ Council v. Ontario (Education), 2023 ONCA 788, Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, Simpson v. Canada (A.G.) et al., 2020 ONSC 6465, Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, RJRMacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, Canada (Attorney General) v. JTI-MacDonald Corp., 2007 SCC 30, Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, Trociuk v. British Columbia (Attorney General), 2003 SCC 34, Ontario v. Trinity Bible Chapel et al., 2022 ONSC 1344, Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66

Sri Lankan Canadian Action Coalition v. Ontario (Attorney General), 2024 ONCA 657

Keywords: Constitutional Law, Division of Powers, Double Aspect Doctrine, Pith and Substance Doctrine, Charter Rights, Freedom of Expression, Equality, Standard of Review, Tamil Genocide Education Week Act, 2021, SO 2021, c 11, Canadian Charter of Rights and Freedoms, ss. 2(b), 15(1), Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1984, 78 U.N.T.S. 277 (entered into force 12 January 1951), Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, s. 4, Ukrainian Famine and Genocide (Holodomor) Memorial Day Act, SA 2008, c U-0.5, Act to proclaim Armenian Genocide Memorial Day, CQLR c J-0.2, Holocaust Memorial Day Act, SBC 2000, c 3, Holocaust Memorial Day Act, SC 2003, c. 24, Sri Lankan Canadian Action Coalition v Ontario (Attorney General), 2022 ONSC 1675, Canadian Western Bank v Alberta, 2007 SCC 22, Constitution Act, 1867: Reference re An Act respecting First Nations, Inuit, and Métis children, youth and families, 2024 SCC 5, Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, Québec (Attorney General) v Canada (Attorney General), 2015 SCC 14, RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Reference re Genetic Non-Discrimination Act, 2020 SCC 17, Kitkatla Band v British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, Chatterjee v Ontario (Attorney General), 2009 SCC 19, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, Housen v Nikolaisen, 2002 SCC 33, Reference re Securities Act, 2011 SCC 66, Murray-Hall v Québec (Attorney General), 2023 SCC 10, Motors of Canada Ltd. v City National Leasing, [1989] 1 S.C.R. 641, Reference re Validity of the Combines Investigation Act and of s. 498 of the Criminal Code, [1929] SCR. 409, Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13, Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15, Adler v Ontario, [1996] 3 SCR 609, Public School Boards’ Assn of Alberta v Alberta (Attorney General), 2000 SCC 45, Schneider v The Queen, [1982] 2 SCR 112, R v Hydro-Québec, [1997] 3 SCR 213, Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, R v Crown Zellerbach Canada Ltd., [1988] 1 SCR 401, Switzman v Elbling and AG of Quebec, [1957] SCR 285, Reference Re Alberta Statutes, [1938] SCR 100, Canada (Prime Minister) v Khadr, 2010 SCC 3, Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, Canadian Broadcasting Corp. v Canada (Attorney General), 2011 SCC 2, R v Sharma, 2022 SCC 39, Poorkid Investments Inc. v Ontario (Solicitor General), 2023 ONCA 172, Eldridge v British Columbia (Attorney General), [1997] 3 S.C.R. 624, Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69, Bracken v Niagara Parks Police, 2018 ONCA 261, Harper v Canada (Attorney General), 2004 SCC 33, Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31, Figueiras v Toronto (Police Services Board), 2015 ONCA 208, Thomas Christian Zaugg v Ontario (Attorney General), 2019 ONSC 2483, Toronto (City) v Ontario (Attorney General), 2019 ONCA 732

Manjunath v. Kuppa, 2024 ONCA 668

Keywords: Family Law, Domestic Contracts, Separation Agreements, Civil Procedure, Disclosure, Orders, Enforcement, Striking Pleadings, Family Law Rules, O. Reg. 114/99, rr. 1(8)(c), 1(8.4), 2(2) and (3), Purcaru v. Purcaru, 2010 ONCA 92, Marcoccia v. Marcoccia, 2008 ONCA 866, Kovachis v. Kovachis, 2013 ONCA 663, Mullin v. Sherlock, 2018 ONCA 1063

CIVIL DECISIONS

Jacob v. Canada (Attorney General), 2024 ONCA 648

[Sossin, Monahan and Madsen JJ.A.]

Counsel:

S. Choudhry, D. Baker and D. Mulroy for the appellant

D. Rasmussen, B. Sunallah and M. Ambwani for the respondent

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

J. Hunter, K. Ball and Z. Vaid for the intervener Canadian Civil Liberties Association

facts:

The appellant, V.J., appealed the decision of an application judge who dismissed her application as failing to establish a breach of s. 15(1) of the Canadian Charter of Rights and Freedoms.

V.J. received the Canada Pension Plan Disability Benefit (“CPP-D”) on the basis of severe and prolonged disability. Recipients of CPP-D are permitted to supplement their benefits with income from employment up to a certain threshold of allowable earnings. As she was able to, V.J. continued to work at various jobs.

As a result of the COVID-19 pandemic, EI claims were divided into two streams, the EI Emergency Response Benefit (“EI ERB”) and the Canada Emergency Response Benefit (“CERB”). In order to qualify for CERB, an eligibility criterion required a minimum income threshold of $5,000 in the preceding 12 months. The Canada Recovery Benefits (“CRB”) which eventually replaced CERB also included the $5,000 minimum income threshold. CPP-D was not a specified source of income under this framework. Accordingly, V.J. did not qualify as a worker under the CERB and subsequent CRB framework.

V.J. brought an application that challenged both the $5,000 income threshold as an all-or-nothing eligibility requirement, and the exclusion of CPP-D from the eligible income sources counted toward this threshold, as contrary to s. 15(1) of the Charter. The application judge dismissed her application. The claimant group to which V.J. belonged for the purpose of her Charter application was disabled workers with active labour market participation.

On appeal, V.J. sought a series of declarations of invalidity in relation to the statutory provisions that established the $5,000 income threshold and defined eligible income sources. In support, V.J. raised two arguments. First, that the application judge failed to make essential fact findings necessary to determine her s. 15 claim. Second, that the judge erred in finding V.J.’s failure to meet the $5,000 income threshold was not caused by her disability. V.J. claimed the second argument was not before the application judge and he dismissed her s. 15 claim on this basis.

issues:

Did the application judge err in dismissing the s. 15(1) Charter claim as failing to establish a breach?

holding:

Appeal dismissed.

reasoning:

Yes, the application judge erred in not finding a breach of s. 15(1). However, the breach was justifiable under s. 1 of the Charter (under the Oakes test). The application judge correctly iterated the two-part test for an adverse effects s. 15(1) Charter claim. Step one of the test requires assessing whether the impugned law created a distinction based on an enumerated or analogous ground. Step two asks whether the impugned law imposed a burden or denied a benefit in a manner that has the effect of reinforcing the perpetuating or existing disadvantage.

The Court assessed step one of the test, and found that the application judge failed to approach the s. 15(1) analysis from the perspective of substantive equality. The application judge examined V.J.’s personal circumstances in detail but did not engage with evidence about the claimant group to which V.J. belonged. The application judge briefly summarized the evidence tendered on the broader question of discrimination of workers with disabilities. This evidence flowed from federal public servants who were involved in the design of the social programs in question and expert evidence provided by specialists in the field of social inclusion for people with disabilities. However, the Court found that the application judge failed to link these perspectives with V.J.’s evidentiary burden. This led the application judge to consider whether the statutory provision which stipulated the minimum income threshold expressly discriminated against workers with disabilities. The court found that although the income threshold was neutral on its face, it has a disproportionate impact on workers with disabilities. To support this, the Court looked at statistics which demonstrated that disabled workers are 1.6 times more likely than non-disabled workers to have employment income below $5,000. The Court asserted that the application judge failed to evaluate V.J.’s personal evidence in the context of the broader claimant group; this resulted in an error of law. Accordingly, the Court found that V.J. did meet the first step of the s. 15(1) analysis and went on to consider step two of the test.

In step two of the test, the Court found that the $5,000 income threshold and the exclusion from CPP-D from the calculation of that threshold, made it substantially more difficult for workers with a disability to replace lost employment income, thereby exacerbating their disadvantage. Citing Fraser, the court confirmed that not all members of the protected group need be impacted in the same way. There was ample evidence to support the fact that disabled workers face significant barriers in the workforce and tied this to the specific exclusion of CPP-D from eligible income. With the finding that V.J. had established that her s. 15(1) rights were violated, the Court turned to a s. 1 analysis.

Under the Oakes framework, the Court found the infringement was justifiable. V.J. confined her submissions to minimal impairment, arguing that if the CERB and CRB had a lower income threshold for workers with a disability, it would have increased eligibility amongst the claimant group. Canada argued that the limits of the impugned provisions were proportional and rationally connected to the intent of government to process a vast number of applications within a short amount of time. Canada further contended that the program limits were minimally impairing and the benefit outweighed the deleterious effects.

Part one of the Oakes test was not in dispute. Both parties agreed the objective was pressing and substantial. In part two of the test, the Court found that the limit was rationally connected. There was debate around the minimal impairment criteria. As the pandemic persisted, amendments made to the suite of EI programs through CERB to CRB, and the adjacent amendments made to the EI criteria, ameliorated the infringement previously found. The Court asserted that this indicated two things. That the original legislation was not minimally impairing, but also that the government was responsive to rights-infringing concerns. The Court ultimately found that while the CERB and CRB programs may not have represented a minimal impairment of rights, the “mid-course correction” by Canada to the EI programs highlighted an attempt by government to respond to concerns in the context of a crisis of extraordinary nature. The Court went on to conduct the final balancing assessment. The Court found that the benefits of infringement did outweigh the negative effects, as the government was able to quickly provide income support to millions of workers impacted by the pandemic. Given that the s. 15(1) breach was saved by s. 1, a consideration of the proper remedy for the breach was unnecessary.

Sri Lankan Canadian Action Coalition v. Ontario (Attorney General), 2024 ONCA 657

[Fairburn A.C.J.O., van Rensburg and Zarnett JJ.A.]

Counsel:

H. S. Fairley, N. J. Kasozi, S. Kebeich and N. M. Rouleau, for the appellants Sri Lankan Canadian Action Coalition and Sri Lanka Canada Association of Brampton

D. R. Chohan, for the appellant Neville Hewage

R. Amarnath and P. Atkinson, for the respondent

A. Weaver and G. Philipupillai, for the interveners National Council of Canadian Tamils, Canadian Tamil Academy and Canadian Tamil Youth Alliance

J. Shanmuganathan, for the intervener Tamil Rights Group

facts:

This appeal arose from a constitutional challenge to the validity of the Tamil Genocide Education Week Act, 2021, SO 2021, c. 11 (the “TGEWA” or “Act”).

The Act’s preamble purports to recognize that the Sri Lankan state perpetrated a genocide against the Tamils leading up to and during the Sri Lankan Civil War. The Act’s operative provisions proclaim the week ending May 18 (the date in 2009 on which the civil war ended) as “Tamil Genocide Education Week”, and encourages Ontarians to “educate themselves about, and to maintain their awareness of, the Tamil genocide and other genocides that have occurred in world history” each year during that week.

The appellants, Sri Lankan Canadian Action Coalition and Sri Lanka Canada Association of Brampton (collectively, the “Coalition Appellants”), are community organizations that advocate for the interests of Sinhalese Ontarians. The appellant, N. Hewage is an Adjunct Professor and Research Fellow at the International Centre for Interdisciplinary Research in Law at Laurentian University and a member of Ontario’s Sinhalese community. The Coalition Appellants and professor Hewage oppose the TGEWA, disputing its factual predicates with concerns that it further marginalizes Ontario’s small Sinhalese community. Before the Act was enacted, the appellants sought to have their perspectives included and following the Act receiving royal assent, they applied for a declaration of constitutional invalidity. They argued that the TGEWA is ultra vires Ontario and infringes their rights under ss. 2(b) and 15(1) of the Canadian Charter of Rights and Freedoms.

The respondent, Attorney General of Ontario (“Ontario”), and the interveners, the National Council of Canadian Tamils, the Canadian Tamil Academy, the Canadian Tamil Youth Alliance (collectively, the “Tamil Canadian Coalition”) and the Tamil Rights Group sought to uphold the TGEWA. Collectively, they argued that the Act constitutes a valid exercise of provincial power that neither suppresses the appellants’ expression nor discriminates against them. Ontario and the Tamil Canadian Coalition argued that the TGEWA advances the substantive equality of Tamil-Ontarians, who have suffered from intergenerational trauma and stigma in the wake of the Sri Lankan Civil War.

The application judge upheld the TGEWA, finding that the Act has an educative purpose that falls within s. 93 of the Constitution Act, 1867 and does not infringe the appellants’ right to free expression and equality.

On this appeal, the appellants submitted that the application judge mischaracterized the purpose of the Act, which is to recognize and declare a genocide, which they argued is reserved for Parliament. Additionally, professor Hewage contended that the application judge erred in holding that TGEWA does not breach their right to free expression and equality.

issues:

1. Is the TGEWA intra vires Ontario?

2. Does the TGEWA breach s. 2(b) of the Charter?

3. Does the TGEWA breach s. 15(1) of the Charter?

holding:

Appeal dismissed.

reasoning:

Yes.

The Court agreed with the application judge that the TGEWA is intra vires Ontario, but disagreed with the application judge’s characterization of the Act’s pith and substance as “educative.”

The Court held that, in keeping with Vavilov, questions concerning division of power, are questions of law and thus attract a correction standard of review. The Court found that the application judge erred in characterizing TGEWA’s pith and substance by failing to keep characterization and classification of the analysis distinct and to characterize the law with sufficient precision. The Court outlined that the characterization and classification stages must be kept distinct and should not describe the pith and substance too generally.

The Court then conducted the characterization exercise afresh with reference to the governing principles, the intrinsic and extrinsic evidence, and the TWEGA’s effects. After doing so, the Court held that the Act’s dominant purpose was “to affirm and commemorate the Tamil Ontarian community’s experience of the Sri Lankan Civil War and thus promote, within Ontario, the values of human rights, diversity and multiculturalism”. The Court concluded that this purpose was a valid exercise of the province’s power over matters of a merely local or private nature in the province under s. 92(16) of the Constitution Act, 1867.

2. No.

The Court held that the TGEWA does not suppress or compel expression, nor is its purpose, dominant or otherwise, to infringe the appellants’ freedom of expression.

The appellants each submitted that the application judge erred in her s. 2(b) analysis, but they differed in the type of infringement they asserted. Professor Hewage asserted that the Act’s purpose was to limit his freedom of expression, because in his view, the TGEWA’s purpose was to dictate how people understand the Sri Lankan Civil War and to limit dissent from the government’s preferred characterization of the conflict as a “genocide.” The Coalition Appellants, on the other hand, argued that the TGEWA has the effect of infringing s. 2(b) by effectively shutting down the marketplace of ideas of any dissent that Tamil genocide had occurred.

The Court outlined that there are different considerations depending on whether a claimant alleges that the purpose of the government action is to infringe their free of expression or whether they allege that it has that effect. The Court noted that the Act’s text contains no provisions prohibiting or penalizing the form, content of, or access to, the appellants’ messaging, nor is there anything in the legislative debate which suggested that the Legislature intended for the Act to be used to prohibit dissent. The Court held that the TGEWA imposes no deprivation on the appellants that diminishes the reach or force – or any other metric of effectiveness – of their messaging.

3. No.

The Court agreed with the application judge’s finding that the TGEWA does not infringe the appellants’ equality rights.

In order to establish a s. 15(1) breach, the claimant must demonstrate that the impugned state law or action: (i) creates a distinction based on an enumerated or analogous grounds, either on its face or in its impact, and (ii) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

Professor Hewage argued that by indicating that the Sri Lankan state’s actions in furtherance of the alleged genocide were “Sinhala-Buddhist centric”, the Act impliedly lay blame for the genocide at the feet of all Sinhala-Buddhists.

The Court rejected this submission, noting that the impugned portions of the TGEWA’s preamble stated that the Sri Lankan government’s allegedly genocidal policies were “Sinhala-Buddhist centric”, not that Sinhala-Buddhists are, as a racial group, collectively responsible for them. Further, the Court agreed with the application judge that the TGEWA has no discriminatory impact.

The Court held that the Act does not draw an adverse distinction cognizable under s. 15(1). The Court clarified that anyone who cites the TGEWA to marginalize Sinhalese Ontarians, as perpetrators or supporters of the “Tamil Genocide” or otherwise, does so in error.

Manjunath v. Kuppa, 2024 ONCA 668

[Pepall, Miller and Wilson JJ.A]

Counsel:

No one appearing for the appellant

D. Sherr, for the respondent

facts:

The appellant husband and the respondent wife were married on March 13, 1992. On August 9, 2011, the respondent signed an agreement which is stated to be a separation agreement. The respondent alleges that she was misled and coerced into signing the document which purports to waive all equalization and support claims. According to the respondent, the parties continued to live together as a married couple until 2018. The appellant says they separated in 2011. In 2015, the appellant asked the respondent to leave the jointly owned home, which she did. Later in 2018, because of alleged threats by the appellant, she transferred her interest in the home to the appellant for $1 but continued to remain liable on the indebtedness of $1,600,000 secured against the home.

During the proceedings the appellant had a history of delays, disregard for court orders, and non-disclosure. Apart from some very modest payments, the appellant failed to pay spousal support. He repeatedly ignored orders to make financial disclosure. On August 12, 2021, the respondent’s first motion to strike the appellant’s pleadings was heard. The motion judge found the respondent’s failure to comply with court orders to be wilful, but gave him one last chance to comply, warning him that he would likely see his pleadings struck if he failed to comply. At the encouragement of the appellant, and unbeknownst to the respondent, the purported mortgagees on the matrimonial home, M. and S. (who were friends of the appellant), sold the matrimonial home under power of sale proceedings. The results of an order for disclosure obtained by the respondent revealed that the proceeds of sale were paid to the appellant. Despite court orders that the appellant and the purported mortgagees pay the proceeds into court and make disclosure, non-compliance persisted. The motion judge was satisfied that the appellant and the two purported mortgagees had breached the court order to pay the approximately $1.6 million in sale proceeds into court. The motion judge found that the breaches of court orders continued to the date of the application. The judge therefore ordered the pleadings struck and permitted the respondent to proceed to an uncontested trial without notice to the appellant or to M. and S.

issues:

Did the motion judge fail to consider and apply the principle that striking pleadings is an instrument of last resort?
Did the motion judge err in failing to decide that the respondent bore the onus of proving that the validity and enforceability of the separation agreement should have been determined before striking out the appellant’s pleadings?

holding:

Appeal dismissed.

reasoning:

The Court held that the appellant’s argument had no traction in this case. The motion judge expressly recognized that striking a party’s pleadings is reserved for exceptional cases where no lesser remedy will redress the party’s failure to comply with court order(s). Rule 1(8) of the Family Law Rules explicitly provides direction to the court on the types of orders that may be made when a person fails to obey an order.

The Court noted that in Mullin v. Sherlock, it had established a decision-making framework for assessing whether pleadings should be struck. This framework includes consideration of the relevance of the non-disclosure, the context and complexity of the issues in dispute, the extensiveness of existing disclosure, the seriousness of the efforts made to disclose, and any other relevant factors. The Court held the motion judge followed this framework.

2. No.

The Court held again that the appellant’s argument had no basis. The motion judge expressly noted that the issue of the validity of the separation agreement was not before him and that he was making “no comment or determination of that issue”. Rule 1(8)(c) of the Family Law Rules, which provides that the court may deal with the failure to obey a prior order by striking any document(s) filed by the party, clearly makes the remedy available without any determination of the merits of the case. This is clear from the consequences of a strike motion which are described in r. 1(8.4). It establishes that if an order is made striking out a party’s document(s), that party is automatically not entitled to further notice of steps in the case or to participate in the case in any way. The court may deal with the case in the party’s absence and a date may be set for an uncontested trial of the case.

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.

COURT OF APPEAL SUMMARIES (AUGUST 26 – AUGUST 30)

By John Polyzogopoulos on August 30, 2024

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good evening.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 26, 2024.

Continue Reading

Live Nation Ontario Concerts GP, Inc. v. Aviva Insurance Company of Canada was an insurance coverage dispute where some of the claims were covered by the insured’s CGL policy and others were not. The insurer was found to only be liable for the portion of the defence costs attributable to the defence of the covered claims.

Spina v. Shoppers Drug Mart Inc. was a lengthy class action decision involving Shoppers Drug Mart’s liability to franchisees for “Professional Allowances” under the Ontario Drug Benefit Act.

In Bogue v Miracle, the Court ordered security for outstanding costs and for the costs of the pending appeal. However, the Court rejected the moving party’s request for security for judgment. Security for judgment is an “extraordinary remedy” that was not appropriate in this case.

In Surefire Dividend Capture, LP v. National Liability & Fire Insurance Company (Berkshire Hathaway Specialty Insurance) the Court granted intervener status to a receiver of a corporation. The corporation in receivership was not technically a party to this insurance coverage proceeding, but it was affected by it, as the application judge had found that the corporation was an insured under the fidelity policy at issue.

Wishing everyone an enjoyable Labour Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Live Nation Ontario Concerts GP, Inc. v. Aviva Insurance Company of Canada, 2024 ONCA 634

Keywords: Contracts, Insurance, Commercial General Liability, Coverage, Duty to Defend, Equitable Contribution, Liquor Licence Act, R.S.O. 1990, c. L.19, Occupiers’ Liability Act, R.S.O. 1990, c. O.2, Hanis v. Teevan, 2008 ONCA 678, Markham (City) v. AIG Insurance Company of Canada, 2020 ONCA 239, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Michaud v. Sécurité Nationale compagnie d’assurance, 2021 NBCA 39, Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Papapetrou v. 1054422 Ontario Ltd., 2012 ONCA 506, Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, Atlific Hotels and Resorts Ltd. v. Aviva Insurance Co. of Canada (2009), 97 O.R. (3d) 233 (SC), Daher v. Economical Mutual Insurance Co. (1996), 31 O.R. (3d) 472 (C.A.), Family Insurance Corp. v. Lombard Canada Ltd., 2002 SCC 48, Loblaw Companies Limited v. Royal & Sun Alliance Insurance Company of Canada, 2024 ONCA 145

Bogue v. Miracle, 2024 ONCA 643

Keywords: Contracts, Solicitor and Client, Contingency Fee Agreements, Aboriginal Law, Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Security for Costs, Security for Judgment, Indian Act, R.S.C. 1985, c. I-5, s. 89, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3, s. 147, Rules of Civil Procedure, rr. 56.01(1), 61.01(1), Bogue v. Miracle, 2021 ONCA 278, Bogue v. Miracle, 2022 ONCA 672, leave to appeal refused, [2023] S.C.C.A. No. 3, Bogue v. Miracle, 2024 ONSC 1964, Miracle v. Bogue, 2024 ONSC 3028, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, Wiseau Studio, LLC. v. Harper, 2021 ONCA 31, leave to appeal refused, [2021] S.C.C.A. No. 464

Surefire Dividend Capture, LP v. National Liability & Fire Insurance Company (Berkshire Hathaway Specialty Insurance), 2024 ONCA 644

Keywords: Contracts, Insurance, Fidelity, Coverage, Civil Procedure, Interveners, Insurance, Coverage, Receivership, Fraud, Rules of Civil Procedure, RSO 1990, c C.43

Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642

Keywords: Contracts, Interpretation, Franchise Agreements, Duty of Good Faith Performance, Civil Procedure, Class Proceedings, Aggregate Damages, Appeals, Standard of Review, Limitation Periods, Arthur Wishart Act (Franchise Disclosure), 2000, S.O., 2000, c. 3, s. 3, Class Proceedings Act, 1992, S.O. 1992,c. 6, ss. 24, 25, Ontario Drug Benefit Act, R.S.O. 1990, c. O.10, s. 11.5, Drug Interchangeability and Dispensing Fee Act, R.S.O. 1990, c. P.23, s. 12.1, O. Reg 201/96, s. 1, s. 3 (Code of Conduct), R.R.O. 1990, Reg. 935, s. 2, Sched 1 (Code of Conduct), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Ontario Securities Commission v. Bridging Finance Inc., 2023 ONCA 769, Canada (Attorney General) v. Fontaine, 2017 SCC 47, Karkhanechi v. Connor, Clark & Lunn Financial Group Ltd., 2022 ONCA 518, leave to appeal refused, [2022] S.C.C.A. No. 353, Richards v. Sun Life Assurance Company of Canada, 2016 ONSC 5492, Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179, Marvelous Mario’s Inc. v. St. Paul Fire and Marine Insurance Co., 2019 ONCA 635, Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16, Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, Bhasin v. Hrynew, 2014 SCC 71, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, Ramdath v. George Brown College, 2014 ONSC 3066, Markson v. MBNA Canada Bank, 2007 ONCA 334, Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, Shah v. LG Chem Ltd., 2018 ONCA, Brazeau v. Canada (Attorney General), 2020 ONSC 7229, Hryniak v. Mauldin, 2014 SCC 7, Lundy v. VIA Rail Canada Inc., 2015 ONSC 7063, Geoff R. Hall, Canadian Contractual Interpretation Law, 3^rd and 4^th eds. (Toronto: LexisNexis, 2016), Concise Oxford English Dictionary, 12th ed. (New York: Oxford University Press, 2011), John D. McCamus, The Law of Contracts, 3rd ed. (Toronto: Irwin Law, 2020), Canadian Oxford Dictionary, 2nd ed. (Don Mills, ON: Oxford University Press, 2004), Black’s Law Dictionary, 11th ed. (Saint Paul: Thomson Reuters, 2019), Steven J. Burton & Eric G. Andersen, Contractual Good Faith: Formation, Performance, Breach, Enforcement (Boston: Little, Brown and Co, 1995), Report of the Attorney General’s Advisory Committee on Class Action Reform, (Toronto: Ministry of the Attorney General of Ontario, 1990)

Thomas v. Thomas, 2024 ONCA 646

Keywords: Family Law, Parenting, Relocation, Child Abduction, Convention of the Civil Aspects of International Child Abduction, The Hague, October 25, 1980, [1983] Can. T.S. No. 35, Katsigiannis v. Kottick-Katsigiannis (2001), 55 O.R. (3d) 456 (C.A.), Ibrahim v. Girgis, 2008 ONCA 23, Jackson v. Graczyk, 2007 ONCA 388.

Short Civil Decisions

Malhotra (Re), 2024 ONCA 640

Keywords: Bankruptcy and Insolvency, Claims Provable in Bankruptcy, Proofs of Claim

Janzen v. Cook, 2024 ONCA 654

Keywords: Family Law, Separation Agreements, Child Support, Parenting, Variation, Civil Procedure, Appeals, Jurisdiction, Transfer, Family Law Act, R.S.O. 1990 c. F.3, s. 35, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1)(a.1), 21.1(1), 110(1), Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), Bahadori v. Samadzadeh, 2009 ONCA 10, Christodoulou v. Christodoulou, 2010 ONCA 93

O’Regan v. Carleton Condominium Corporation No. 169, 2024 ONCA 647

Keywords: Real Property, Condominiums, Common Elements, Special Assessments, Liens, Oppression, Civil Procedure, Summary Judgment, Reasonable Apprehension of Bias

Hanson Crossborder Tax Inc. v. Bazar McBean LLP, 2024 ONCA 645

Keywords: Civil Procedure, Appeals, Costs, Offers to Settle, Rules of Civil Procedure, r. 49

CIVIL DECISIONS

Live Nation Ontario Concerts GP, Inc. v. Aviva Insurance Company of Canada, 2024 ONCA 634

[Roberts, George and Monahan JJ.A]

Counsel:

D. Ong for the appellants

K. Pereira and A. Sharabi for the respondents

facts:

T.M. was injured at a concert at Budweiser Stage when security personnel removed an unruly patron. T.M. commenced an action against the respondents, Live Nation Ontario Concerts GP (“Live Nation”/ “the respondents”), and Northwest Protection Services Ltd. (“Northwest”), among others. Live Nation is a producer and promoter of live musical entertainment that leases and occupies Budweiser Stage. Northwest was contracted by the respondent to provide security personnel and “crowd management services” for all shows at the venue.

Live Nation had an insurance policy with Starr Indemnity & Liability Company (“Starr”) which included commercial general liability coverage and a duty to defend where the $1 million self-insured retention had been depleted. Northwest had an insurance policy with the appellants, Aviva Insurance Company of Canada and Aviva Canada Inc. (“Aviva” / “the appellants”), which included commercial general liability coverage for “bodily injury and property damage liability” resulting from the failure of Northwest’s services “to meet the level of performance, quality, fitness or durability warranted or represented” by Northwest. As part of this agreement, Northwest had named Live Nation as “Additional Insured.” This entitled the respondents to have Aviva “indemnify, defend and hold harmless [the respondents] from and against any and all claims or loss … arising from the acts or omissions of [Northwest].”

This coverage was triggered by T.M’s claim and Live Nation brought an application against Aviva for declaratory relief. On the application, Aviva argued that its policy was an excess policy that only applied when the limits under the Starr policy were met. The application judge disagreed and ordered Aviva to pay 100% of the past and future defence costs, subject to their right to apply to reapportion those costs at the end of trial.

On its appeal, Aviva argued that the application judge failed to treat the pleaded claims as mixed claims and in finding that the principles of equitable contribution were inapplicable. The respondents maintained that the application judge made no error. Further, they asserted that even if the claims were mixed, the principle of equitable contribution would not apply because they are an insurer and not the insured.

issues:

Did the application judge err in characterizing the claims made against the appellants?
Can the appellant, an insurer, seek equitable contribution against the respondent, an insured?

holding:

Appeal allowed in part.

reasoning:

1. Yes.

The application failed to recognize the claims levied against the appellant were mixed claims. Mixed claims are those which fall both within and outside of the insurance policy. The claims made against the respondents in the initial cause of action were comprised of two sorts. First, allegations that overlapped with the “security negligence claims” levied against Northwest. These claims dealt with the conduct of security personnel. Second, unrelated “statutory negligence claims” that pertained to the Liquor Licence Act and the Occupiers’ Liability Act. These claims pertained to serving alcohol in excess and the failure to provide safe premises. In his assessment, the application judge concluded that all the pleaded claims amounted to security negligence claims.

On this appeal, the Court found that the application judge mischaracterized the claims by finding them wholly covered. On the question of covered and uncovered claims, the application judge employed the Hanis test. The Court found that while the application judge applied the correct test, his mischaracterization of the pleadings led him to misapply the test. The Court found that some of the claims made by T.M. fell outside the scope of the insurance policy provided that the appellant’s coverage was triggered by Northwest’s inability to “meet the level of performance, quality, fitness or durability warranted or represented” to conduct their services. Due to the error in characterizing the pleadings, the application judge did not undertake the full Hanis analysis and accordingly, failed to consider whether any portion of the defence costs should have been allocated to the respondents.

2. No.

The appellant, as an insurer, could not seek equitable contribution against the respondent, an insured. The Court found that the application judge did not err in declining to permit the appellant to seek equitable contribution from the respondents. In the absence of Starr as a party to the proceedings, the appellant could not seek equitable contribution from the respondents. The Court found that equitable contribution can only be sought from a concurrent insurer, not from the insured. Furthermore, the Court found that the existence of the respondent’s self-insured retention under their policy with Starr did not turn them into an insurer. Accordingly, the appellant’s argument for equitable contribution was unfounded.

In the result, only the security negligence claims were covered under the Aviva policy and the Aviva is not liable to pay defence costs that are solely related to the uncovered statutory negligence claims. However, the rest of the application judge’s order remained in place.

Bogue v. Miracle, 2024 ONCA 643

[Fairburn A.C.J.O.]

Counsel:

G. Roberts, for the moving party

I.J. Collins, for the responding party

facts:

This motion arose from a complex history of litigation. The dispute initially centered around the right to profits and ownership of an on-reserve business between the responding party and his son. The moving party represented the responding party as counsel in arbitration on a retainer agreement that reflected a contingency fee of 25 percent, which resulted in an award in favour of the responding party in the amount of $11,486,238 and his son’s interest in the business. The respondent has not collected the $11 million owing to him, but did recover his son’s interest in the business. After his son made an assignment in bankruptcy and was subsequently discharged, the trustee in bankruptcy, SLF, declared a dividend to be paid to creditors in the amount of $1,458,752.16, less a statutory levy of $56,734.08, payable under s. 147 of the Bankruptcy and Insolvency Act. The responding party is his son’s largest creditor.

The moving party claims that he was still owed $2,871,000 in legal fees by the respondent.

Following multiple appeals by the responding party with respect to whether an appointed receiver could recover proceeds from the responding party’s assets located on reserve, Mew J. granted summary judgment to the moving party in the amount of $2,858,500. Mew J. concluded that the responding party was bound by the original application judge’s decision that the responding party owed the moving party $2,858,500, set off by $30,000 to reflect the Court’s costs order. Justice Mew ordered costs in the following amounts:

for the vexatious litigant application – $14,938.65
for the charging order/solicitor’s lien application – $45,748.05
for the summary judgment motion – $24,340.20

The responding party did not pay these costs nor those in favour of SLF, and again appealed to the Court, arguing that a contingency fee did not have to be paid in circumstances where no monies have been collected. Pending appeal, the moving party brought this motion for security for costs and security for judgment.

issues:

Was the moving party entitled to an order for security for the outstanding costs and security for costs of the pending appeal?
Was the moving party entitled to an order for security for judgment?

holding:

Motion granted in part.

reasoning:

1. Yes.

The responding party was ordered to pay security for the outstanding costs in the amount of $85,026.9, and security for costs in the pending appeal in the amount of $30,000, for a total of $115,026.90. A judge of the Court has discretion to award security for costs of an appeal pursuant to r. 61.06(1) of the Rules. Citing Thrive Capital Management Ltd. v. Noble 1324 Queen Inc, the Court described the two-step reasoning process to be followed in assessing whether to make an order pursuant to r. 61.06(1): “[the] ordering of security for costs is discretionary; a two-step reasoning process is involved. The first question is whether the requirements of r. 61.06(1)(a), (b), or (c) are met. If so, the second question is whether it would be just to order security, considering the circumstances and the interests of justice: Yaiguaje v. Chevron Corporation”: Thrive Capital Management at para 17.

With respect to r. 61.06(1)(a), the Court held that the responding party’s grounds of the pending appeal were not entirely frivolous. From the record, the Court noted that the responding party had not received the money awarded by the arbitrator and that there were ongoing issues around how that money was touched by the operation of the Indian Act. While the Court concurred with Mew J.’s observations that the responding party appeared to have put up every obstacle possible to the moving party’s recovery of any money for the work that he did in securing the lucrative arbitration award, the Court held that the pending appeal could not be said to be frivolous, especially with the Court having decided the last appeal in this case on such a narrow basis.

The moving party also relied on r. 61.06(1)(b) on the basis that r. 56.01(1)(c) applied, arguing for its application given that he was a respondent below on the responding party’s vexatious litigant application and the responding party had not paid costs awarded by Mew J. on the dismissal of the application.

The Court rejected granting security for costs on this basis. The Court explained that the responding party’s pending appeal arose from the summary judgment motion (determining a claim made against him by the moving party) and not the vexatious litigant application brought against the moving party.

Turning to r. 61.06(1)(c), the Court held that there was “other good reason” to grant security for costs. The Court explained that under r. 61.06(1)(c), the reason must be a “fairly compelling reason” and one that is related to the purpose for ordering security: Combined Air Mechanical Services Inc. v. Flesch at para. 8.

The Court noted that this litigation has been, and continues to be, very expensive for the moving party. He attempted to get answers from the responding party about his off-reserve properties and was met with no response at all. The Court found this troubling given that the Court clearly said that “s. 89 [did] not protect [the responding party’s] off-reserve assets from seizure” and that the existence and location of those assets would have to be “determined by the receiver”: Bogue (ONCA 2022), at para. 47. The Court explained that this included real and personal property.

The Court held that the responding party had been uncooperative in responding to questions about whether there were enough assets located off reserve to satisfy a costs award arising from the pending appeal should it be dismissed. The Court stated that while a Teraview search revealed a few assets, they appeared to be fully encumbered by a substantial CRA lien and sizable executions, and had no equity. This caused the Court significant concern, especially given the difficult history of this proceeding. It also caused the Court concern given Mew J.’s factual finding that the responding party did all in his power to prevent the moving party from receiving any payment at all, despite seeming to have acknowledged that the moving party did work that resulted in the arbitrator’s decision, a decision that resulted in great potential return to the responding party.

For these reasons, the Court concluded that it was just to order security for costs for the outstanding costs orders in favour of the moving party. Accordingly, the Court ordered that costs in the amount of $85,026.90 be paid into court as security for costs before the litigation proceed no later than 30 days after this order was issued.

In addition, given the history of this matter, the responding party’s resistance to paying the moving party almost anything, and the fact that he had been less than cooperative in making it known whether he had any off-reserve assets, the Court agreed with the moving party with respect to security for costs on the pending appeal and ordered that the responding party pay into court security for costs of the appeal in the amount of $30,000.

2. No.

The responding party was not ordered to pay security for judgment. The moving party asked for security for judgment in the amount of $1.5 million as a “top-up” to the sum that SLF was holding. This would effectively ensure that the entire amount that the moving party said was owing to him sat with both SLF and the court. The moving party argued that this was the “only way” in which he would “ever collect the full amount of the judgment” and get the funds off the reserve.

The Court explained that security for judgment is an “extraordinary remedy” and that such an order should be reserved for the most exceptional circumstances: Wiseau Studio, LLC. v. Harper.

The moving party acknowledged that this was about trying to get money secured into the court that may otherwise be money that rests on reserve. The Court held that this came very close, if not crossed over the line into what the Court had earlier said cannot be done by virtue of s. 89 of the Indian Act. The Court held that it was best that all of these issues be sorted out in the normal course and through litigation in the normal course, with a proper and complete evidentiary record.

Surefire Dividend Capture, LP v. National Liability & Fire Insurance Company (Berkshire Hathaway Specialty Insurance), 2024 ONCA 644

[Zarnett J.A.] (Motions Judge)]

Counsel:

R. Datt and M.P. Nadeau for the appellant

R. Lester for the respondent

G. Healy-Murphy for the proposed intervener

Keywords: Contracts, Insurance, Fidelity, Coverage, Civil Procedure, Interveners, Insurance, Coverage, Receivership, Fraud, Rules of Civil Procedure, RSO 1990, c C.43

facts:

M.F. as the Ancillary Receiver for Broad Reach Capital, LC (“BRC”) sought leave to intervene as an added party within the appeal.

The judgment under appeal resulted from a claim between the appellant, Surefire Dividend Capture, LP (“SDC”) on a fidelity bond issued by the respondent National Liability & Fire Insurance Company (“Berkshire”). The claim was for losses alleged to have resulted from a ponzi scheme operated by BRC’s CEO. BRC is a subsidiary of SDC. SDC claimed that the fidelity bond required Berkshire to indemnify it for the loss of its investment. SDC was a named insured under the bond, and the bond referred to BRC as a subsidiary. SDC and Berkshire did not agree on the meaning or effect of referring to BRC as a subsidiary. In the course of his reasons, the trial judge dismissed SDC’s claim. The trial judge did, however, find that BRC was an insured.

BRC has been in receivership since 2020 and it is not a party to the proceeding. The Ancillary Receiver was appointed in 2024 for the purpose of analyzing BRC’s entitlement to coverage under the fidelity bond. It was at this point that the Ancillary Receiver sought to intervene. The SDC consented to the intervention, Berkshire opposed it.

The Ancillary Receiver argued that he should be allowed to intervene as a party at the appellate stage as the trial court made two findings that are favourable to BRC in its own dispute with the respondent insurer (including that BRC is an insured entity under the Bond) and those findings are in issue on the appeal. He also argued that no delay or prejudice would result from the intervention given that an adjournment of the appeal will not be required and his own submissions on the issues that are of concern are brief, focused, and address matters already in play on the appeal.

issues:

Should M.F. as the Ancillary Receiver of BRC be permitted to intervene in the appeal?

holding:

Motion granted.

reasoning:

The Court applied the two-part test for intervening as a party under Rule 13.01 of the Rules of Civil Procedure. The first prong of the test required the proposed intervener to show: (a) that it has an interest in the subject matter of the appeal; or (b) that it may be adversely affected by a judgment in the appeal; or (c) that there exists between the proposed intervener and one or more of the parties to the appeal a question of law or fact in common with one or more of the questions in issue in the appeal.

The Court found that the Ancillary Receiver met the third prong of the first part of the intervention test. The Ancillary Receiver indicated to the Court that BRC sought to pursue its own claim against Berkshire under the bond. This pending claim is in large part grounded by the trial judge’s finding that BRC is insured under the fidelity bond. If on appeal, the trial judge’s interpretation that BRC is an insured entity under the fidelity bond were overturned in favour of SDC’s contention that BRC does not have that status, BRC’s claim would be prejudiced. Accordingly, the Court found it fair to give the Ancillary Receiver a chance to be heard on that issue.

The second part of the test requires consideration of “whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding.” The Court found that given the focused nature of the Ancillary Receiver’s intervention, it would not unduly delay or prejudice the determination of the rights of the parties to the appeal.

Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642

[Simmons, Paciocco and Thorburn JJ.A.]

Counsel:

L. Rothstein, O. Soriano, K. Rosenberg, P. Davis, D. Montgomery and E. Snyder, for the appellants/respondents by way of cross-appeal

M. A. Gelowitz, G. Hunnisett, M. Aboud, L. Mishra and G. Buitenhuis, for the respondents/appellants by way of cross-appeal

facts:

This was an appeal and cross-appeal of orders made on motions for summary judgment. At issue was the entitlement to and quantification of Professional Allowance payments for enumerated direct patient care services. This involved a review of the franchise agreements between the parties. The appellants are licensed pharmacists and the representative plaintiffs. Through their companies, the corporate appellants, they are Shoppers Drug Mart franchisees referred to in the Agreements (defined below) as “Associates.” Shoppers Drug Mart Inc. and Shoppers Drug Mart (London) Limited (together “Shoppers”) operate a franchise system in which they grant licenses to operate full-service retail drug stores across Canada.

The Associates entered into standard form agreements with Shoppers which governed their franchisee-franchisor relationship. Shoppers introduced the 2002 version of the standard form Associate agreement in 2002 (the “2002 Agreement”). In 2010, Shoppers introduced an updated version of this agreement which it used for new Associates and for Associates whose 2002 Agreement expired (the “2010 Agreement”). The Ontario Class members (“The Ontario Class”) are parties to either or both of the 2002 and 2010 Agreements (the “Agreements”).

In 2006, the Ontario government introduced amendments to the Ontario Drug Benefit Act, and the Drug Interchangeability and Dispensing Fee Act, and their associated regulations, O. Reg 201/96 (the “ODBA Regulation”) and R.R.O. 1990, Reg. 935 (the “DIDFA Regulation”), collectively “the Legislation”, to ban rebates for products from generic drug manufacturers, such as those that Shoppers had been collecting. The Legislation did, however, allow payment for “Professional Allowances.”

Shoppers and the Associates participated in a complex profit-sharing arrangement. In 2006, Shoppers introduced a New Financial Model (the “Model”) which set out the profit-sharing arrangement between Shoppers and the Associates. After Associate earnings were calculated, Associates paid the remainder of store profits to Shoppers as a service fee.

The amendments to the Legislation terminated one major source of revenue for pharmacies and replaced it with a type of reimbursement for specifically enumerated direct patient care services: Professional Allowances. The Legislation also contained a Code of Conduct which was intended to establish system-wide guidance governing the use of professional allowances to be paid by manufacturers to operators of pharmacies. At times there were legislated caps on Professional Allowance amounts and any excess amounts were deemed rebates, not Professional Allowances.

Before 2006, Shoppers bought drugs in bulk from generic drug manufacturers and received rebates on the cost of those drugs. The drugs were then resold to the Associates. The direct patient care services were traditionally provided without direct compensation, so there was no “revenue” to either Shoppers or the pharmacies for the provision of direct patient care services. The 2002 Agreement continued to be used until January 1, 2010, following which the 2010 Agreement was used for new Associates and for Associates whose contracts had expired.

issues:

Is the appropriate standard of review for the interpretation of the Agreements a palpable and overriding error standard?
Did the motion judge err in concluding that there was a breach of the 2002 Agreement or, in the alternative, did the motion judge err in dismissing the claim for unjust enrichment?
Did the motion judge err in concluding that there was no breach of the 2010 Agreement or, in the alternative that there was no claim for unjust enrichment?
Did the motion judge err in finding that the Professional Allowance claims for 2006 and 2007 were statute-barred and in finding that a rolling limitation period applied to the Professional Allowance claims?
Did the motion judge err in holding that Shoppers received $955 million in Professional Allowances over the Class Period?
Did the motion judge err in refusing to award aggregate damages?

holding:

Appeal allowed, in part.

reasoning:

1. Yes.

In Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co, the SCC explained why some standard form contracts are subject to review on the standard of correctness and not on a deferential standard of review. The Court went on to consider the Ledcor factors as they applied in this case. First, the Court held that the Agreements are standard form contracts that govern the franchise relationship between Shoppers and the Associates across Canada. Second, the Court concluded that the interpretation of these provisions in this class action will not likely arise again in cases involving other parties and the precedential value was therefore not significant. Third, there was a factual matrix specific to these parties that was relevant to the interpretation of these Agreements. Thus, the Court concluded that in sum, although the Agreements are standard form contracts, there is a distinct factual matrix and no significant precedential importance, such that the analysis is not a question of law alone but rather, a question of mixed fact and law, reviewable on a palpable and overriding error standard of review.

2. No.

Professional Allowances are defined in the Legislation as “a benefit in the form of currency, services, or educational materials that are provided by a manufacturer …for the purposes of direct patient care”. The Code of Conduct provides that Professional Allowances were “to be calculated based on … [r]easonable costs to provide direct patient care,” “[r]easonable frequency of providing direct patient care,” and “a reasonable number of patients.” Professional Allowances are directly tied to direct patient care services, which were largely provided by the Associates at store-level. The Court held that the Professional Allowances provided for in the Legislation are materially different than “rebates”, “discounts” or “other similar advantages.”

The Associates were entitled to share in revenue pursuant to Article 7.01 of the 2002 Agreement. In 2006, the Professional Allowance Regime allowed generic drug manufacturers to pay for specifically enumerated direct patient care services. Those services were provided by the Associates. In the Court’s view, this was revenue earned by providing direct patient care services.

The Court held that there was no error in the motion judge’s conclusion that Professional Allowances are revenue earned by providing direct patient care services within the meaning of Article 7.01. The Code of Conduct required Professional Allowances be calculated based on the reasonable costs and frequency of providing direct patient care, and such services were provided by the Associates. The Legislation makes it clear that Professional Allowances “must be used only for” funding specifically enumerated direct patient care services such that, in the Court’s view, the Professional Allowances should be attributed to those who provided the specifically enumerated direct patient care services to be considered revenue pursuant to Article 7.01.

3. No.

The Court noted that in assessing whether the motion judge erred in holding that Shoppers did not breach the 2010 Agreement, the issue was whether the motion judge erred in holding that the words in Article 11.10 reflect an agreement to allow Professional Allowances to be retained by Shoppers. The 2010 Agreement must be read in accordance with the legislative amendments enacted in 2006, the meaning of the words in Article 11.10, including “concessions” and “other allowances”, and the objective knowledge and intention of the parties at the time of the formation of the contract.

First, the Court stated that the words “concessions” and “other allowances” in Article 11.10 of the 2010 Agreement, given their ordinary meaning, clearly included Professional Allowances. Second, the factual matrix confirmed this interpretation. The words “other allowances” and “concessions” were added into the 2010 Agreement several years after the Professional Allowance Regime was introduced and were within the objective knowledge of the parties. As noted by the motion judge, “[T]he Professional Allowance Regime was a part of the factual nexus of the [2010 Agreement]”, as the legislative amendments allowing Professional Allowances and prohibiting rebates were enacted in 2006.

The motion judge noted that Professional Allowances were a new breed of payment from a vendor to a wholesaler. In describing the difference between rebates and Professional Allowances, the motion judge also stated that “patients [who received direct patient care] likely did not receive patient care that was connected to the generic drug manufacturer’s merchandise for which the Professional Allowance was paid.” Therefore, the Court disagreed that the concluding language in Article 11.10 excluded Professional Allowances and the Court saw no error in the motion judge’s conclusion that Shoppers did not breach the 2010 Agreement.

4. No.

The Court held that the motion judge did not err in finding that the Ontario Class had sufficient knowledge to trigger the limitation periods applicable to the 2006 and 2007 claims. The motion judge found as a fact that the Professional Allowance Regime was “notorious” in the retail pharmacy sector. He held that the Associates ought to have known from the outset of the Professional Allowance Regime that they were suffering damages at the hands of Shoppers. Accordingly, the limitation period began to run when the Legislation was enacted.

The Court held that the motion judge did not misapprehend the evidence in concluding that the Ontario Class could make claims for Professional Allowances received by Shoppers between January 1, 2008, and November 19, 2008. Shoppers reconciled revenues at the end of each year and the motion judge held that rolling breaches of contract happened when “Shoppers did not remit the Professional Allowances so they became part of the revenue of the stores, the profits of which Shoppers would share with the Associates.” It followed that Shoppers’ breaches crystallized when profits were reconciled at year-end.

5. Yes.

The motion judge found that Shoppers “allocated the money it received under national agreements disproportionately”, such that “Ontario Professional Allowances were understated and rebates in the rest of Canada were overstated by a corresponding amount.” The motion judge acknowledged that Shoppers’ unilateral allocation often resulted in rebate rates in the rest of Canada in excess of 100% of the price of the drugs in the rest of Canada. However, he rejected that Shoppers received $1.084 billion in Professional Allowances in Ontario and concluded that Shoppers only received $955 million in Professional Allowances as Shoppers allocated $126 million as rebates outside of Ontario and that it was open to Shoppers to do so.

Article 7.01 of the 2002 Agreement provides that, “All revenues and income derived by the Associate from the Franchised Business shall be monies belonging to the Associate” (emphasis added). In 2006, the Legislation was amended to prohibit rebates but allow Professional Allowances. Rebates continued to be allowed in many other provinces and territories in Canada. Professional Allowances were revenue generated for providing the enumerated direct patient care services. Accordingly, the Associates’ right to share in all revenue from the franchised business included the right to their share of this revenue in the form of Professional Allowances for providing enumerated direct patient services. Shoppers reported the Professional Allowances it received to the Ontario government on behalf of the Associates.

Taking into account the legislated caps, the maximum allowable amount of Professional Allowances Shoppers could have accepted under the Legislation was $1.084 billion. Shoppers confirmed that its reports were submitted on behalf of the Associates. However, there was no suggestion that the Associates knew Shoppers decided not to ask for the full allowable amount of Professional Allowances in Ontario. Instead, Shoppers allocated only $955 million into Professional Allowances and treated the balance ($129 million) as rebates in the rest of Canada.

The Court stated that discretionary power is constrained by good faith. Whether a party to a contract exercises its discretion in a manner not connected to the underlying purposes of the discretion granted by the contract, such that it is in breach of the duty to exercise contractual discretionary powers in good faith, is a matter of contractual interpretation. The Court held that the motion judge erred in quantifying the Professional Allowances received by Shoppers at $955 million. Shoppers had duties of good faith in the performance of the 2002 Agreement.

First, it had a special statutory duty to deal fairly and in good faith in the performance and enforcement of this franchise agreement and a similar common law duty of honest performance of the 2002 Agreement with the Associates to refrain from knowingly misleading the Associates about matters linked to its performance of the 2002 Agreement.

Second, Shoppers had the authority pursuant to the Agreement and the Legislation, to collect and report monies received on behalf of the Associates and had the discretion pursuant to its authority to collect and report, to allocate Professional Allowances. Shoppers had an obligation to exercise its contractual discretion to allocate those monies in good faith. In allocating $129 million as rebates in other parts of Canada where rebates were allowed, Shoppers diverted revenue from Ontario, while purporting to act on behalf of the Associates. Shoppers thereby diverted revenue otherwise eligible as Professional Allowances to enrich itself.

The failure of the motion judge to consider what he called the effect of Shoppers “cooking the books” constituted a palpable and overriding error. While the 2002 Agreement permitted Shoppers to retain volume rebates, and while Shoppers labelled the $129 million as rebates in the rest of Canada, a “rebate” in excess of 100% of the cost of a product is not really a rebate. The motion judge’s quantification of Professional Allowances received by Shoppers at $955 million was set aside and replaced by $1.084 billion.

6. No.

The motion judge held that aggregate damages were not appropriate, and the Court saw no error in his conclusion. The test to allow aggregate damages is set out in s. 24(1) of the Class Proceedings Act, 1992 (“CPA”). The Court held that the motion judge correctly found that under s. 24(1) of the CPA he needed to determine whether “the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.” The Court held that aggregate damages were inappropriate here and that there was no evidence that individual damage assessments would jeopardize the goals of access to justice.

The Court declined to certify aggregate damages as a common issue for two reasons. First, because of the idiosyncratic effects of the profit-sharing arrangement, individual damage assessments under s. 25 of the CPA are more appropriate than an aggregate damage assessment under s. 24. Second, s. 24(1)(c) requires that the defendant’s liability to some or all class members can “reasonably be determined without proof by individual class members.” The Court saw no error in the motion judge’s solution to order individual damage assessments. Section 25 of the CPA gives considerable latitude in crafting efficient procedures and dispensing with unnecessary formalities to assess individual damages in the most cost-effective way possible.

Thomas v. Thomas, 2024 ONCA 646

[Nordheimer, J.A.]

Counsel:

M. Mehra and A. Malinowska, for the appellant

A.S. Zaslavsky, for the respondent

facts:

This appeal arises from a child custody dispute. The respondent mother, a Canadian citizen, met and married an American from Balch Springs, Texas. The marriage produced one child. Shortly after the birth of the child, the mother and child relocated to Texas to be with the father. Approximately two years later, the mother and child returned to Ontario without the father’s knowledge. Upon her arrival in Ontario, the mother informed the father that she intended to live here with the child. Some months later the father commenced an application under the Convention of the Civil Aspects of International Child Abduction (“Hague Convention”) for the return of the child.

The application judge found that the mother had established on “clear and cogent evidence” that the father had unequivocally acquiesced to the relocation of the child to Toronto. The father appealed.

issues:

Did the application judge err in applying the Hague Convention principles?

holding:

Appeal allowed.

reasoning:

Yes.

The Court held that while the application judge correctly cited the applicable legal principles under the Hague Convention, she failed to properly apply those principles. In particular, she failed to understand the degree of proof required for a proper determination of whether the acquiescence exception under Article 13(a) could be relied upon by the mother.

The object of the Hague Convention is to deter abductions and secure the prompt return of children where abductions occur. In addition, the Court reiterated that acquiescence is a question of subjective intention of the wronged parent with the onus on the abducting parent to establish acquiescence on clear and cogent evidence. The Court further noted that it must be shown that acquiescence was unequivocal and the standard for finding acquiescence is high. The application judge’s finding that the appellant did not explicitly state that he did not consent to the child’s removal was contradicted by the judge’s own statement that “it is clear that the father did not consent to the [child’s] relocation to Ontario” and evidence before the judge, including that the father had informed the Toronto Police on his visit that there was a custody dispute and commenced an application in Texas requesting the right to decide the child’s primary residence. Further, the Court held that such a finding reversed the burden of proof because it is the abducting parent who must prove consent or acquiescence. The Court held that the clear and cogent evidence standard does not require a balancing of evidence as with the balance of probabilities standard, nor is it established by a finding that the appellant “implicitly consented.” Thus, the application judge’s decision did not fulfil the objective of the Hague Convention, nor did it accord with the presumption thereunder for the summary return of a child in accordance with its Article 12.

SHORT CIVIL DECISIONS

Malhotra (Re), 2024 ONCA 640

[Nordheimer, Gomery and Wilson JJ.A.]

Counsel:

M. Harris, for the appellant

C. Linthwaite, for the respondent

Keywords: Bankruptcy and Insolvency, Claims Provable in Bankruptcy, Proofs of Claim

Janzen v. Cook, [2024 ONCA 654]

[Pepall J.A. (Motion Judge)]

Counsel:

A. Snelius, for the moving party

J. Brown, for the respondent

O’Regan v. Carleton Condominium Corporation No. 169, 2024 ONCA 647

[Nordheimer, Gomery and Wilson JJ.A.]

Counsel:

J. O., acting in person

R. Escayola and G. Macpherson, for the respondents

Keywords: Real Property, Condominiums, Common Elements, Special Assessments, Liens, Oppression, Civil Procedure, Summary Judgment, Reasonable Apprehension of Bias

Hanson Crossborder Tax Inc. v. Bazar McBean LLP, 2024 ONCA 645

[Trotter, Thorburn and Dawe JJ.A.]

Counsel:

M. Girard, for the appellants

O. Niedzviecki, for the respondents

Keywords: Civil Procedure, Appeals, Costs, Offers to Settle, Rules of Civil Procedure, r. 49

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.

COURT OF APPEAL SUMMARIES (AUGUST 19 – AUGUST 23)

By John Polyzogopoulos on August 23, 2024

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 19, 2024.

Continue Reading

James Estate (Re) was a wills and estates case involving an application for the appointment of an estate trustee. The Court discussed the inquisitorial role the Superior Court has in estate proceedings and reaffirmed the court’s inherent jurisdiction and discretion to refuse even an unopposed application for a certificate of appointment of estate trustee. In this case, the proposed estate trustee was a disbarred lawyer. The application judge was not satisfied that the proposed trustee was not engaging in the unauthorized practice of law and dismissed the application, even though it was consented to by all the beneficiaries. The appeal was also dismissed.

Shipton v Shipton was a family law relocation case. The Court allowed the appeal, finding that the trial judge made numerous material factual errors. While the application judge was not found to have been biased, he was admonished by the Court for the “mocking and inflammatory tone” of his reasons for decision. The Court was of the view that some of the trial judge’s comments were “inappropriate in a judicial decision”, were “entirely unnecessary… rhetorical flourish” and had “no place in the context of an already contentious family law dispute.”

In Zhang v Primont Homes, purchasers who did not close on their agreement of purchase and sale to purchase a new-build condo unit settled with the vendor. The vendor was allowed to keep the deposit in exchange for not pursuing further damages against the purchasers. At trial, the purchasers recovered the deposit from the real estate agent and brokerage who had misrepresented to the purchasers the location of the new condo that was to be built. The appeal by the agent and brokerage was dismissed. The Court rejected the appellants’ argument that the purchasers were required to prove that they had the right to repudiate the agreement of purchase and sale as a condition precedent to recovery from the appellants.

Fresco v Canadian Imperial Bank of Commerce is a class proceedings decision involving the claim against CIBC for unpaid overtime. The consortium of three class counsel acting for the plaintiffs negotiated a $153 million settlement with CIBC. The motion judge granted the law firms $25 million in legal fees but dismissed the request that the representative plaintiff be awarded a $30,000 honorarium for her efforts. The Court found no error in principle in the motion judge’s exercise of discretion and dismissed the appeal.

Nutrition Guidance Services Inc. v. Schwartz was a decision to grant a stay pending an appeal of an order for the sale of real property under the Partition Act. The appeal had some merit on the issue of whether the motion judge erred in granting a remedy not sought and that the parties did not make submissions on. The irreparable harm and balance of convenience factors favoured the appellants.

Downing Street Financial Inc. v. 1000162497 Ontario Inc. was a receivership case where the Court permitted a sale of real property under an approval and vesting order to proceed notwithstanding an appeal by the debtor. Congratulations to our very own Eric Golden for the good result achieved for our client.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Rathod v. Chijindu, 2024 ONCA 625

Keywords: Civil Procedure, Orders, Costs, Enforcement, Rules of Civil Procedure, r. 57.03(1), Rathod v. Chijindu, 2024 ONSC 939, Rathod v. Chijindu, 2024 ONCA 317, Serra v. Serra, 2007 ONCA 465, 225 O.A.C. 236, Sears v. Sears (2005), 195 O.A.C. 376 (Div. Ct.), Bank of Nova Scotia v. Gillespie, 2008 CanLII 31415 (Ont. S.C.)

Zhang v Primont Homes (Caledon) Inc., 2024 ONCA 622

Keywords: Torts, Negligent Misrepresentation, Standard of Care, Contracts, Real Property, Agreements of Purchase and Sale of Land, Concurrent Liability, Remedies, Damages, Contribution and Indemnity, Causation, Mitigation, Civil Procedure, Evidence, Expert Evidence, Burden of Proof, Krawchuk v. Scherbak, 2011 ONCA 352, Zink v. Adrian, 2005 BCCA 93, BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12, 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980, Clements v. Clements, 2012 SCC 32, Bowman v. Martineau, 2020 ONCA 330, James Street Hardware and Furniture Co. v. Spizziri (1987), 62 O.R. (2d) 385 (C.A.), Kaltenegger v. Cao, 2022 BCSC 2203, Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, Edgeworth Construction Ltd. v. N. D. Lea & Associates Ltd., [1993] 3 S.C.R. 206, Janiak v. Ippolito, [1985] 1 S.C.R. 146

Shipton v. Shipton, 2024 ONCA 624

Keywords: Family Law, Parenting, Relocation, Best Interests of the Child, Civil Procedure, Reasonable Apprehension of Bias, Divorce Act, R.S.C. 1985, c. 3 ss. 16-16.93, Van de Perre v. Edwards, 2001 SCC 60, C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, N.S. v. R.M., 2019 ONCA 685, J.N. v. C.G., 2023 ONCA 77, Gordon v. Goertz, [1996] 2 S.C.R. 27, Barendregt v. Grebliunas, 2022 SCC 22, Porter v. Bryan, 2017 ONCA 677

James Estate (Re), 2024 ONCA 623

Keywords: Wills and Estates, Applications for Appointment of Estate Trustees, Civil Procedure, Inherent Jurisdiction, Judicial Discretion, Appeals, Standard of Review, Fresh Evidence, Estates Act, R.S.O. 1990, c. E.21, ss. 7(1), 29, 35, 37, Trustee Act, R.S.O. 1990, c. T.23, s. 5, Rules of Civil Procedure, r. 74.14(4), 75, Law Society Act, R.S.O. 1990, c. L.8, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(4)(b), Law Society of Upper Canada v. William John Franklin Bishop, 2012 ONLSHP 87, aff’d 2014 ONLSTA 19, aff’d 2014 ONSC 5057 (Div. Ct.), Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22, Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), St. Amand v. Tisi, 2018 ONCA 106, Re Chiang, 2009 ONCA 3, Bent v. Platnick, 2020 SCC 23, Otis v. Otis (2004), 7 E.T.R. (3d) 221 (Ont. S.C.), Neuberger v. York, 2016 ONCA 191, McLaughlin v. McLaughlin, 2015 ONSC 3491, Seepa v. Seepa, 2017 ONSC 5368, Martin v. Martin, 2018 ONSC 1840, Gonder v. Gonder Estate, 2010 ONCA, Public Guardian and Trustee v. Duggan (1998), 165 D.L.R. (4th) 713 (Ont. S.C.), Mohammed v. Heera (2008), 43 E.T.R. (3d) 273 (Ont. S.C.), Re Lagrandeur Estate, 2021 ONSC 3447, Petrovskaya v. Morelli, 2013 ONSC 2659, Letterstedt v. Broers (1881), 9 A.C. 371 (P.C.), Radford v. Radford Estate (2008), 43 E.T.R. (3d) 74 (Ont. S.C.), St. Joseph’s Health Centre v. Dzwiekowski, 2007 CanLII 51347 (Ont. S.C.), Woolnough v. Dare, 2016 ONSC 4013, R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, R. v. S. (R.D.), [1997] 3 S.C.R. 484

Fresco v. Canadian Imperial Bank of Commerce, 2024 ONCA 628

Keywords: Contracts, Employment, Overtime Pay, Lawyer and Client, Contingency Fee Agreements, Civil Procedure, Class Proceedings, Legal Fees, Honorariums, Approval, Amicus Curiae, Class Proceedings Act, 1992, S.O., c. 6, Canada Labour Code, R.S.C. 1985, c. L-2, Lavier v. MyTravel Canada Holidays Inc., 2013 ONCA 92, Canada (Attorney General) v. Fontaine, 2017 SCC 47, Reeves v. Brand, 2018 ONCA 26, O’Brien v. Chuluunbaatar, 2021 ONCA 555, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Hryniak v. Mauldin, 2014 SCC 7, Cowles v. Balac (2006), 83 O.R. (3d) 660 (C.A.), Bancroft-Snell v. Visa Canada Corporation, 2016 ONCA 896, Smith Estate v. National Money Mart Co., 2011 ONCA 233, Gagne v. Silcorp (1998), 41 O.R. (3d) 417 (C.A.), Sutts, Strosberg LLP v. Atlas Cold Storage Holdings Inc, 2009 ONCA 690, McCarthy v. Canadian Red Cross Society (2001), 8 C.P.C. (5th) 349 (Ont. S.C.), Cannon v. Funds for Canada Foundation, 2013 ONSC 7686, Fulawka v. Bank of Nova Scotia, 2014 ONSC 4743, Moushoum v. Canada (Attorney General), 2023 FC 1739, MacDonald v. BMO Trust Co., 2021 ONSC 3726, Wein v. Rogers Cable Communications Inc., 2011 ONSC 7290, Osmun v. Cadbury Adams Canada Inc., 2010 ONSC 2752, McDonald v. Home Capital Group, 2017 ONSC 5195, Clegg v. HMQ Ontario, 2016 ONSC 2662, Mancinelli v. Royal Bank of Canada, 2017 ONSC 2324, Doucet v. The Royal Winnipeg Ballet, 2023 ONSC 2323 (Div. Ct.), Baker Estate v. Sony BMG Music (Canada Inc.), 2011 ONSC 7105, McCarthy v. Canadian Red Cross Society, [2007] O.J. No. 2314 (S.C.), Sutherland v. Boots Pharmaceutical Plc., (2002), 21 C.P.C. (Ont. S.C.)

Nutrition Guidance Services Inc. v. Schwartz, 2024 ONCA 636

Keywords: Contracts, Real Property, Partnerships, Civil Procedure, Appeals, Stay Pending Appeal, Summary Judgment, Partnerships Act, R.S.O. 1990, c. P.5, Partition Act, R.S.O. 1990, c. P.4, RJR‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, Fiala v. Hamilton, 2008 ONCA 784, Backman v. Canada, 2001 SCC 10

Downing Street Financial Inc. v. 1000162497 Ontario Inc., 2024 ONCA 639

Keywords: Bankruptcy and Insolvency, Receiverships, Real Property, Approval and Vesting Orders, Civil Procedure, Appeals, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Royal Bank of Canada v. Soundair Corp., (1991) 83 D.L.R. (4th) 76 (Ont. C.A.), LLC v. Portofino Corporation, 2015 ONCA 906, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Business Development Bank of Canada v. Pine Tree Resorts, Inc., 2013 ONCA 282, Peakhill Capital Inc. v. 1000093910 Ontario Inc., 2024 ONCA 584, Enroute Imports Inc. (Re), 2016 ONCA 247, Trimor Mortgage Investment Corporation v. Fox,2015 ABCA 44, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873RJR‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Grillone (Re), 2023 ONCA 844

Short Civil Decisions

D’Mello v. Sapusak, 2024 ONCA 627

Keywords: Civil Procedure, Application, Striking Pleadings, No Reasonable Cause of Action, Reasonable Apprehension of Bias

Kranenburg v. Grice, 2024 ONCA 629

Keywords: Real Property, Easements

Stayside Corporation Inc. v. Cyndric Group Inc., 2024 ONCA 630

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Appeals, Representation by Lawyer, Security for Costs, Rules of Civil Procedure, r. 15.01(2), 61.01(1)(a) and 61.01(1)(b), GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, Heidari v. Naghshbandi, 2020 ONCA 757, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Foodinvest Limited v. Royal Bank of Canada, 2020 ONCA 387

Peng v. Chen Estate, 2024 ONCA 632

Keywords: Civil Procedure, Costs, Appeals, Leave, Extension of Time

Graham v. New Horizon System Solutions, 2024 ONCA 631

Keywords: Administrative Law, Judicial Review, Human Rights Tribunal, Civil Procedure, Appeals, Leave, Perfection, Extension of Time, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

Rathod v. Chijindu, 2024 ONCA 633

Keywords: Civil Procedure, Appeals, Addendum, Costs, Rathod v. Chijindu, 2024 ONCA 317, Rathod v. Chijindu, 2024 ONCA 420

Farokhian v. Bonyanpour, 2024 ONCA 635

Keywords: Family Law, Equalization of Net Family Property, Unequal Division, Domestic Contracts, Maher, Civil Procedure, Disclosure, Bakshi v. Hosseinzadeh, 2017 ONCA 838, Cohen v Cohen, 2024 ONCA 114

Duwyn v. Ross, 2024 ONCA 637

Keywords:Family Law, Parenting, Decision Making, Retroactive Child Support, Civil Procedure, Fresh Evidence, Costs, Child and Family Services Act, R.S.O. 1990, c. C.11, s. 69(6), Cuthbert v. Nolis, 2024 ONCA 21, Children’s Aid Society of Owen Sound v. R.D., 178 O.A.C. 69 (C.A.), Rigillo v. Rigillo, 2019 ONCA 548, Knapp v. Knapp, 2021 ONCA 305, Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), V.K. v. T.S., 2011 ONSC 4305, Andrade v. Kennelly, 33 R.F.L. (6th) 125 (Ont. S.C.), Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Legault v. TD General Insurance Company, 2024 ONCA 439

CIVIL DECISIONS

Rathod v. Chijindu, 2024 ONCA 625

[Fairburn A.C.J.O.]

Counsel:

A. Sidhu for respondent/moving party (H.R.)
B. Belmont for moving party (Bluekat Capital Corp.)
C.C. acting in person
N.C. acting in person
I.C. acting in person

facts:

The responding parties borrowed considerable sums of money from the moving parties who gave them mortgages over two properties. The mortgages went into default a long time ago. The properties were sold under a power of sale and the net proceeds were paid into court. The responding parties on this motion appealed the February 13, 2024 judgment of Woodley J., who ordered that monies paid into court be distributed to the moving parties to satisfy their mortgages and several outstanding costs orders that the responding parties had failed to pay.

The moving parties’ motions for security for costs of the appeal were granted. Throughout the entirety of litigation, the responding parties consistently provided untruthful, unreliable and unsubstantiated evidence. In addition, they claimed were unable to pay the security for costs only to do so just before the deadline.

The moving parties on this motion asked that a single judge dismiss the pending appeal. In the alternative, they asked for an order which required that the responding parties pay the outstanding cost orders by a prompt and final deadline. The responding parties argued that the single judge did not have the jurisdiction to do so.

issues:

Does a single judge of the Court have the jurisdiction to dismiss an appeal on the ground that a costs order remained outstanding?
Does a single judge of the Court have the jurisdiction to require the responding parties to pay costs by a prompt and final deadline pursuant to an outstanding order?

holding:

Motion granted.

reasoning:

A single judge of the Court has no jurisdiction to dismiss an appeal under Rule 61.16(2.2) of the Rules of Civil Procedure.

Yes.

A single judge of the Court does have jurisdiction to order the responding parties to pay costs by a prompt and final deadline. The responding parties argued that setting a final deadline would be akin to varying the previous costs order. Where an order is silent on a deadline for payment, it is payable within 30 days after the order is made. Given that this deadline had long passed, setting a final deadline was akin to a mechanism of enforcement as opposed to a variation on the costs order.

Zhang v Primont Homes (Caledon) Inc., 2024 ONCA 622

[Roberts, Miller and Gomery JJ.A.]

Counsel:

D. Fogel, for the appellants

Y.Z. and J.D., acting in person

Keywords: Torts, Negligent Misrepresentation, Standard of Care, Contracts, Real Property, Agreements of Purchase and Sale of Land, Concurrent Liability, Remedies, Damages, Contribution and Indemnity, Causation, Mitigation, Civil Procedure, Evidence, Expert Evidence, Burden of Proof, Krawchuk v. Scherbak, 2011 ONCA 352, Zink v. Adrian, 2005 BCCA 93, BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12, 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980, Clements v. Clements, 2012 SCC 32, Bowman v. Martineau, 2020 ONCA 330, James Street Hardware and Furniture Co. v. Spizziri (1987), 62 O.R. (2d) 385 (C.A.), Kalteneggerv. Cao, 2022 BCSC 2203, Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, Edgeworth Construction Ltd. v. N. D. Lea & Associates Ltd., [1993] 3 S.C.R. 206, Janiak v. Ippolito, [1985] 1 S.C.R. 146

facts:

In February 2017, the respondents entered into an APS for a house to be built in a new subdivision by a developer. The appellants, the real estate agent and their brokerage, told the respondent purchaser that the property was located at or near the intersection of Mayfield Road and Kennedy Road in Brampton. The respondent purchaser and respondent co-purchaser together made a $120,000 deposit on the total purchase price of $1,232,500.

In May 2018, the respondents discovered that the property was not located at the site indicated by the appellants but rather about three kilometres north, in Caledon. The respondents took the position that the defendants had misrepresented the location of the development, as a result of which the respondents were not required to complete the purchase and were entitled to a return of their deposit.

Before trial, the respondents settled their claims against all parties except the appellant agent and brokerage. As part of that settlement, the respondents agreed that the developer was entitled to keep the $120,000 deposit. In exchange, the developer abandoned its counterclaim against the respondents for damages flowing from their repudiation of the APS. At trial, the trial judge ordered the appellants to pay $120,000 to the respondents.

issues:

Did the trial judge err in concluding that the appellants negligently misrepresented the property’s location and that the respondents reasonably relied on this misrepresentation in signing the APS?
Did the trial judge err in concluding that the appellants’ negligent misrepresentation caused the respondents to suffer any damages that they were entitled to recover from the appellants?

holding:

Appeal dismissed.

reasoning:

The appellants contended that there was no basis in the evidence for the trial judge to find that they misrepresented the location of the property or that the respondents relied on anything they said about the property. The appellants also challenged the trial judge’s finding that the appellants were negligent in the absence of expert evidence on the standard of care of a realtor or broker.

The trial judge found that the appellants’ misrepresentation about the property’s location was a key factor in the respondents’ decision to invest their money in the development, and concluded that the respondents would not have signed the APS and deposited $120,000 had they known the property’s actual location.

The Court held that the trial judge’s findings of fact were open to him to make on the evidence and explained that it was not the Court’s role to reassess or reweigh the evidence absent a palpable and overriding error of fact or mixed fact and law. The Court concluded that no such error was identified.

The respondents did not adduce any expert evidence on the standard of care of a real estate agent or broker. The Court was not persuaded, however, that such evidence was required to establish the appellants’ breach of their duties as realtors in the circumstances of this case.

The Court held that, generally, expert evidence is required to support a claim against a licensed professional, such as a real estate agent: Krawchuk v. Scherbak. However, the Court held that a breach may be established without expert evidence if a case involves “non-technical matters or those of which an ordinary person may be expected to have knowledge”: Krawchuk, citing Zink v. Adrian.

In the Court’s view, it was open to the trial judge to find that the appellants’ representation that the property was located at Mayfield and Kennedy Roads, as opposed to a completely different location, involved a non-technical matter. The Court therefore held that no expert evidence was required to find that the appellants’ misrepresentation was negligent.

The appellants’ first causation argument was that the respondents could not legally establish that they suffered any loss because they did not complete the purchase. The appellants relied on Kaltenegger v. Cao for this proposition, where the BCSC held that although the repudiating defendant purchaser proved that the plaintiff made negligent misrepresentations that induced entry into the APS, the defendant was not entitled to repudiate the contract. Based on Kaltenegger, the appellants contended that, since the respondents did not comply with their obligations pursuant to the APS, they could not recover any damages flowing from the appellants’ misrepresentation.

The Court rejected the argument that Kaltenegger established a general rule that any plaintiff who agrees to buy property based on misrepresentations of any kind by a third party is legally foreclosed from recovering damages for that misrepresentation if they fail to complete the purchase. The Court held that the result in Kaltenegger was specific to the facts of that case and concluded that the appellants’ position was moreover inconsistent with the Supreme Court of Canada’s jurisprudence on concurrent liability.

The Court held that appellants conflated the issue of causation with the respondents’ entitlement to assert a separate cause of action, explaining that a party who has suffered damages may have concurrent claims in contract and tort. The Court cited Central Trust Co. v Rafuse stating that “the plaintiff has the right to assert the cause of action that appears to be most advantageous to him in respect of any particular legal consequence”. The Court therefore held that there was nothing preventing the respondents from suing the appellants, whether or not they chose to pursue a claim in contract (or tort) against the developer.

The appellants contended that, even if the respondents were not required to complete the purchase as a condition to recovery, the trial judge should have found that it was the respondents’ repudiation that caused their financial loss. By the respondents’ own admission, the property they agreed to purchase increased in value between the time they executed the APS and the trial.

The Court interpreted the appellants’ second causation argument as fundamentally a mitigation defence. In the context of negligent misrepresentation, the Court explained that courts generally focus on the date that a misrepresentation was discovered. In this case, the respondents learned of the negligent misrepresentation months before closing, and they had to take reasonable steps to mitigate a potential loss. This involved deciding whether to proceed with the purchase.

The Court held that appellants’ mitigation argument presupposed that the respondents foresaw or should have foreseen that the property would increase in value when they discovered the misrepresentation, even though the property was not as well-situated and therefore not as attractive an investment as they had been led to believe. Citing Bowman, the Court explained that appellants bore the burden of proving a failure to mitigate. The appellants did not obtain a retrospective appraisal showing that the property had already increased in value at the time the respondents realized the property’s actual location, nor did they present any other evidence to prove that the respondents should have realized that they would not suffer damages if they proceeded with the purchase.

The Court therefore held that there was no evidence that the increase in value was reasonably foreseeable. The Court also explained that the respondents did not have to assume the risk of an uncertain market to recover against the appellants. The appellants should not be able to escape the legal consequences of their negligence because the respondents did not take that risk and market conditions happened to improve.

Finally, the appellants contended that the trial judge should not have ordered them to pay damages to the respondents because, in the respondents’ statement of claim, they did not seek an order for damages against the appellants. Instead, the respondents had sought an order holding the appellants liable for contribution and indemnity if the respondents were ordered to pay damages or costs to any of the other defendants then named in the action.

The Court rejected this argument, holding that the respondents did not obtain relief that was not pleaded. As a result of the settlement between the respondents and the developer, the respondents took the position that they were entitled to recover $120,000 from the appellants in contribution and indemnity for the amount that they were required to forfeit to the developer under the terms of the settlement.

The Court held that, in these circumstances, no pleadings amendment was required to reflect the settlement. The issues to be resolved, and the evidence relevant to them, remained the same whether or not the statement of claim was formally amended.

Shipton v. Shipton, 2024 ONCA 624

[Roberts, Coroza and Gomery JJ.A.]

Counsel:

A. Franks and M. H. Tweyman, for the appellant
D. Tobin and C. Hinds, for the respondent

facts:

The appellant (the “mother”) and the respondent (the “father”) married in 2014 and moved to Toronto in 2016 to pursue the father’s employment opportunities. In 2019, the couple had a baby girl, and they separated ten months later. The mother applied for divorce, child and spousal support, and sole decision-making responsibility for the child. The mother wanted to move back to Ireland with her daughter, and thus the question before the trial judge was whether relocation to Ireland was in the child’s best interests. The trial judge correctly observed that in any relocation case, the Divorce Act (the “Act”) requires the court to consider the best interests of the child in accordance with factors set out in ss. 16 and 16.92 of the Act. Applying these factors, the trial judge ruled that relocation was not in the child’s best interests.

issues:

Did the trial judge err in his consideration of the best interests of the child under s. 16 of the Act?
Did the trial judge err in his characterization of the case as “a support case” and in his application of the presumptions under s. 16.93 of the Act?
Do the trial judge’s reasons give rise to a reasonable apprehension of bias?

holding:

Appeal allowed.

reasoning:

1. Yes.

The Court held that the trial judge’s reasons for concluding that relocation was not in the best interest of the child revealed material errors and serious misapprehensions of the evidence. First, in his analysis of the mother’s claim of coercive control, directly relevant to s.16(3)(j) of the Act, which requires the court to consider any family violence in the relationship, the trial judge erred by misapprehending or ignoring relevant evidence. Second, the trial judge made assumptions about the mother and her family’s attitude to the child’s Indian heritage that were entirely unfounded. This error tainted his findings under s. 16(3)(f) of the Act to consider the child’s cultural, linguistic, religious and spiritual upbringing and heritage. Third, the trial judge allowed his analysis to be informed by an unreasonable conclusion that the mother had “manipulated” the system against the father. In this, the trial judge erred in his analysis of s.16(3)(i) of the Act.

The Court explained that the term “coercive control” does not appear in the Act. However, when determining the impact of any family violence within the “best interests” analysis, a judge is bound to consider “whether there is a pattern of coercive and controlling behaviour in relation to a family member”: s. 16(4)(b) of the Act. Where allegations of family violence are raised it is, of course, incumbent on the trial judge to carefully evaluate them and to take a dispassionate approach to the evidence tendered to support and rebut the allegations. Moreover, a trial judge must approach these allegations with an awareness that “[d]omestic violence allegations are notoriously difficult to prove”: Barendregt v. Grebliunas. The judge must also be attentive to the harm a child may experience through indirect exposure to domestic conflict.

The mother gave evidence, such as emails between her and the father and testimony from two midwives that the trial judge apparently did not take very seriously. The Court held that the trial judge ignored material evidence relevant to the issue of control. The mother’s evidence of coercive control was conspicuously absent from the trial judge’s analysis. Similarly, despite substantiating the mother’s claim of the father’s controlling behaviour, the email she tendered as evidence of this behaviour received no mention in the trial judge’s analysis. Furthermore, the trial judge discarded the only independent evidence offered by either party, namely the midwives’ evidence, referring to the midwives disparagingly as part of a “circle of self-appointed jurors pointing their fingers at [the father].” While the trial judge was entitled to find the midwives’ evidence neither credible nor reliable, his reasons did not disclose a logical path to such conclusion.

The Court held that the trial judge’s analysis of the evidence of coercive control revealed material errors and significant misapprehension of the evidence. These errors tainted his assessment of the best interests of the child. His ultimate conclusions that the mother “has not proven that there was any family violence” and that “[t]he only violence, in terms of verbal assaults, appear to have come from her and directed at [the father] and his family” were set aside.

The Court held that the trial judge improperly attributed a motive to erase the child’s biracial identity to the mother. The trial judge’s reasons revealed multiple misapprehensions of evidence and unfounded assumptions about the mother and her family’s attitude to the child’s racial identity and about the town to which the mother proposed to move. These errors were most centrally connected to the child’s best interests and the decision could not stand because of these errors. The trial judge found that the mother harboured a “delusion” about the child’s racial identity, that she and her family had a motive to “assimilate” the child, and that the town to which the mother proposed to return was, in his words, “small and strict” and would be unwelcoming to a biracial child. These findings were disconnected from any evidence in the record.

The mother’s mother from Ireland provided an affidavit at trial where she mentioned her Catholic faith and that if the mother would return to Ireland with the child, then the child would be brought up in a catholic community. The Court held that the trial judge made problematic comments as a result of the evidence of the religious beliefs of the mother’s parents. The first was the explicit assertion that Irish Catholics in a rural town inhabit a “small and strict world.” No evidence in the record supported such a finding. These passages reflected stereotypical reasoning with no basis in the record. It was a perspective brought to the decision entirely by the trial judge himself. Similarly, the suggestion that the mother’s family sought to assimilate the parties’ child was not supported by the record. What the grandmother stated was that she and her husband were Catholic and that “faith and tradition [were] values that [they] would pass on” to their granddaughter. They did not evince an “expectation to conform to” those values. The leap from a statement about passing on values to an intent to assimilate was both harsh and unjustified. The trial judge’s findings on the mother and her family’s attitude to the child’s biracial heritage were entirely speculative. Without any basis in the record, these findings could not stand.

2. Yes.

The Court held that the trial judge wrongly treated this relocation case as if it was a case about spousal support. At one point, the trial judge even bluntly stated that “it is a support case”. The Court found that this was a clear legal error. By treating this as a support case and the mother’s motivations for moving as financial only, the trial judge circumvented the list of legally mandated considerations relevant to relocation as set out in s. 16.92(1) of the Act. No doubt, the mother’s determination to remain financially viable and able to provide for her child was a compelling reason connected to relocation. It was a legal error for the trial judge to overlook the motivations referred to by the mother and reduce her relocation request to a “support case”.

The Court agreed with the mother that she should have had the benefit of a presumption in favour of the move given that she was the primary caregiver. In determining that the mother should not have the benefit of the presumption, the trial judge inappropriately imported into his analysis his unfounded criticism of the original parenting order. The trial judge stated: “[the mother] should not benefit from the draconian order she obtained at the outset in order to skew the percentages toward her idea of ‘vast majority’.” There was no support for the finding that the mother manipulated the system, so this finding was a clear error.

3. Undecided.

Given the Court’s conclusion that the order could not stand, it was not necessary to deal with the mother’s allegation of bias on the part of the trial judge. However, the Court felt the need to comment on the language used by the trial judge in his reasons for decision. In the Court’s view, there was no suggestion that the trial judge exhibited any bias in his conduct, comportment, or demeanour during the proceedings. However, several passages in the written reasons appeared to show that the trial judge approached the case with a level of disdain for the mother. The trial judge made many comments that the Court found mocking and inflammatory in tone, were inappropriate and entirely unnecessary. The Court stated that most charitably, the trial judge’s comments could be construed as rhetorical flourish that have no place in the context of an already contentious family law dispute.

James Estate (Re), 2024 ONCA 623

[Miller, Harvison Young and Gomery JJ.A.]

Counsel:

S. Bookman and M. Rabinovitch, for the appellant
No one appearing for the respondents

facts:

The deceased executed a will. He left his estate to his four children and his common law spouse, I.H. He appointed his friend, E.S.W, as executrix and trustee. The signing of the will was witnessed by the appellant. His name and address also appeared on the backsheet of the will, where a lawyer’s name and address would ordinarily appear. The appellant was identified as a “consultant” on the backsheet.

The deceased died 7 months after the execution of the will. Two days later, E.S.W signed a renunciation of her right to a certificate of appointment. Three weeks later, each of the deceased’s children signed a consent to the appellant’s appointment as estate trustee and a waiver of the standard requirement that he post security. I.H. signed the same consent shortly thereafter.

The appellant filed an application for a certificate of appointment and an order dispensing of the requirement that security be posted under s. 35 of the Estates Act.

The application judge held that he had to determine whether he should exercise the court’s inherent jurisdiction to refuse the appellant’s application on the basis that the appellant’s appointment could bring the administration of justice into disrepute.

The specific concern that the application judge identified was that the appellant might be engaged in the unlicensed practice of law. The appellant had been a member of the Law Society of Ontario and had practiced as a lawyer in Ontario for 40 years. However, his license was revoked in 2013 after he was found to have participated or knowingly assisted in fourteen fraudulent mortgage transactions over a three-and-a-half-year period. The application judge noted that the appellant had, on the face of the application, been involved in the preparation of the deceased’s will and that steps had been taken rapidly after the deceased’s death to have the appellant appointed as executor, even though someone else was appointed to this role in the will.

The application judge concluded that the application should be denied because no evidence had been tendered that allayed his concern that the appellant might be engaged in prohibited conduct. In the circumstances, he held that the court could not “simply allow Mr. Bishop’s application because that is what the heirs want”. Given the “ample grounds” to believe that the appellant might have engaged in the practice of law despite losing the privilege to do so, the application judge concluded that granting the appointment ran contrary to the court’s obligation to promote confidence in the administration of justice and dismissed the application.

issues:

Did the application judge have the discretion to refuse the appellant’s appointment as an estate trustee even though the application was unopposed?
Did the application judge err in exercising this discretion?
Did the decision give rise to a reasonable apprehension of bias?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court held that a review of whether a Superior Court judge has discretion, in the exercise of the court’s inherent jurisdiction, to refuse an unopposed application for a certificate of appointment as estate trustee is a question of law and therefore reviewable on a standard of correctness.

The Court noted that it had previously endorsed the view of the court’s inquisitorial role in estates proceedings in Neuberger v. York. The court “has a special responsibility to the testator, who cannot be present to give voice to his or her true intentions”: Neuberger, at para. 68. For that reason, an application for probate can be refused if there is no evidence to support it, and even if the estate’s beneficiaries support it: Otis, at paras. 24-26; McLaughlin v. McLaughlin, at paras. 31-36.

The Court noted that this inherent jurisdiction also empowers a Superior Court judge to refuse to grant an application to appoint a trustee. It would be illogical if the court had the power to terminate a trustee’s appointment in appropriate circumstances but did not have the power to prevent an inappropriate appointment.

The Court rejected the appellant’s argument that s. 29(2) of the Estates Act compelled the application judge to grant his application as it was supported by persons entitled to apply for a certificate of appointment under s. 29(1) and there was no other competing application. The Court held that discretion may be exercised even if an application is unopposed, due to the inquisitorial nature of the court’s role in estate proceedings, and its gatekeeping and oversight functions with respect to the appointment of trustees.

The Court further considered the appellant’s reliance on Petrovskaya v. Morelli, in which Morgan J. granted an application by the widow of a deceased person despite an objection. He held in that case that s. 29 of the Estates Act “dictates that in the absence of any more appropriate choice, the Applicant shall be appointed”. The Court noted that this statement must be viewed in the context of that case, where the court recognized the urgent need to appoint someone to administer the estate at issue.

The Court held that there was no suggestion of special circumstances that would require the immediate appointment of an estate trustee in this case. Even if there were special circumstances as contemplated in s. 29(3), they would be a factor to be weighed rather than an imperative requiring the appellant’s application to be granted.

2. No.

The Court held that a trial judge’s exercise of their inherent discretion gives rise to a determination of mixed fact and law. This determination is entitled to deference and will not be reversed absent an error in principle or a palpable and overriding error. No such error has been identified here.

The Court noted that the application judge identified the relevant factors in this case as the wishes of the deceased’s heirs, on the one hand, and “the overarching responsibility of the court to promote confidence in the administration of justice and uphold the rule of law” on the other. Although the application judge acknowledged that a disbarred lawyer is not precluded from acting as an estate trustee, he noted that the appellant had not offered any evidence to allay the court’s concern that he might be engaged in the unlicensed practice of law.

The Court held that a court will rarely have a basis for a serious concern about an unopposed application for a certificate of appointment. In this case, however, the application judge identified a legitimate concern about the appellant’s potential unlicensed practice of law and the impact on the public perception of the administration of justice if he were appointed as estate trustee. This concern was grounded in the public record of the appellant’s disbarment and information in the application record suggesting that the appellant may have taken on a lawyer’s role in the planning and administration of the deceased’s estate.

3. No.

The Court held that a party seeking to rebut the presumption that a judge has acted impartially must “present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the [court’s] reasons constitute an after-the-fact justification of the verdict rather than an articulation of the reasoning that led to it”: Teskey, at para. 21. The Court held that the appellant had not rebutted the presumption of impartiality in this case.

The Court noted that the appellant advanced two arguments. First, he suggested that the referral of his application to the application judge was inherently suspicious. Second, he argued that the application judge demonstrated a predisposition to dismiss the application in his direction that preceded the dismissal order.

The Court held that the appellant was seeking an order that only a judge could grant. Under r. 74.14(1)(a), the registrar may issue a certificate of appointment if satisfied that the application for the certificate contains the information, evidence and supporting documentation required by the Rules and any Act. The registrar may otherwise only issue a certificate of appointment “if directed to do so by a judge”: r. 74.14(1)(b).

The Court stated that in his application, the appellant did not include proof that he had obtained a bond as required under s. 35 of the Estates Act. He sought to be relieved of the bond requirement on consent but did not comply with r. 74.11(6). His affidavit was silent as to whether the deceased had any unpaid debts when he died and, if so, what the appellant proposed to do to pay them and otherwise protect their interests. The Court held that the registrar therefore had no choice but to refer the appellant’s application to a judge.

Regarding the appellant’s second argument, the Court held that it was legitimate for the application judge to bring a higher level of scrutiny to bear on the application given the appellant’s professional history. The Court held that a reasonable person, reading the earlier direction from the court, would not conclude that the application judge had already made up his mind to dismiss the application. The application judge’s reasons did not read as an ex post facto justification for a decision that he made prior to issuing the direction. They did not demonstrate or suggest bias.

Fresco v. Canadian Imperial Bank of Commerce, 2024 ONCA 628

[Pepall, Roberts and Sossin JJ.A.]

Counsel:

J.C. Lisus, Z. Naqi, D. Ionis, D.F. O’Connor and L. Sokolov, for the appellant D. Fresco and Class Counsel

S. Whitmore and L. Reesor, for the respondent CIBC

J. Leon and E. Schiff, appearing as amicus curiae

facts:

This appeal involved the fees to be paid to a consortium of three law firms acting as class counsel following the settlement of a class action against CIBC concerning unpaid overtime work. The motion judge awarded the appellant class counsel $25 million in fees for obtaining a $153 million settlement. After other deductions, this left $106 million to be allocated to the class.

The appellant class counsel requested a $19 million increase in fees, which would have reduced the class portion of the settlement to $86 million for 31,000 class members. Class counsel and the representative plaintiff, D.F. (the “appellants”), also appealed from the motion judge’s refusal to grant D.F. a $30,000 honorarium for her efforts as the representative plaintiff.

issues:

Did the motion judge err in attributing self-interest to class counsel absent an evidentiary basis and allowing his subjective views and presumptions to dominate his analysis of the fee request?
Did the motion judge err in failing to properly analyze the relevant factors, including the risks and results achieved, and failing to assign them appropriate weight and consideration?
Did the motion judge err in determining that the “appropriate” fee was $25 million absent any objective, principled criteria, while expressly disregarding comparators and cross-checks?
Did the motion judge err in failing to apply the facts to the applicable law on the request for an honorarium?

holding:

Appeal dismissed.

reasoning:

The Court held that much of the motion judge’s reasons consisted of a synopsis of his experience with class actions and not a commentary on class counsel in this particular case. However, the Court noted that the motion judge expressly instructed himself to consider all the circumstances of the case and asked himself “as a matter of objective – not subjective – judgment,” whether the fee fixed by the agreement was reasonable and maintained the integrity of the profession.

The Court held that the motion judge’s language was strong and at times inflammatory. However, the Court held that for the most part, a close reading of his reasons reflected a discussion and review of the challenges facing judges in approving counsel fees in class actions in general, rather than this case in particular. The Court noted that the concerns the motion judge expressed were not improper.

Reading the motion judge’s reasons as a whole, the Court was not persuaded that his subjective views and presumptions dominated or overwhelmed his analysis. The Court held that the exercise of the motion judge’s discretion was not infected by considerations untethered to the facts before him.

The Court also rejected the submission that the motion judge improperly attributed self-interest to class counsel. The Court explained that self-interest denotes a focus on the interests of oneself. In the context of a fee approval motion, class counsel will already have done what they can for the class and are now looking for payment of their legal fees. Accordingly, the Court stated that an element of self-interest is embedded in the process and that it is often inherent in the request for fees. Finally, the Court noted that the motion judge exhibited the scepticism described by the Court Smith Estate.

(a) Risks Taken

The appellants advanced numerous complaints, submitting that the motion judge treated this fee approval like every other fee approval; failed to evaluate the risks when the litigation was commenced and as it continued; failed to consider the likely result at a contested hearing; and improperly treated the high-water mark of damages as probable while making no findings in that regard. Finally, the appellants submitted that the motion judge failed to address the “significant professional opportunity cost required to successfully prosecute a case of this length, scale and complexity.”

The Court agreed with Amicus Curiae and held that there was no basis to interfere with the motion judge’s assessment of risk, stating that he addressed risk in detail. The Court noted that, having accepted that this class action was high-risk litigation, the motion judge considered that class counsel had still overstated the risks, noting that, even truncated by limitation periods, the class would remain large. Moreover, the Court noted that the risk was attenuated because refusal to certify aggregate damages would leave counsel with remunerative damages work at the individual level.

Contrary to the appellants’ arguments, the Court held that the motion judge evaluated the fee approval request on its own merits. The Court explained that he considered the risk of non-certification and the changes in risk as the proceeding progressed, noting that class counsel thought the class had damages of $650 million (but noted that CIBC had exposure in excess of $426 million), a class size of 31,000 claimants with strong individual claims, and a Schedule A bank as a defendant. The Court explained further that the motion judge did reference the various methodologies for calculating potential outcomes advanced by the appellants, just not in the detail that the appellants wanted.

The Court held that it was reasonable for the motion judge to consider that payment on account of docketed time based on unquestioned hourly rates coupled with a premium of $8.5 million would not act as a deterrent to incentivizing counsel. As stated in Lavier, at para. 63, “the viability of the class action regime does not depend on an overly generous award being approved in every case.”

Importantly, the Court found that the motion judge’s finding achieved a fair and proportional balance between class counsel fees and the class settlement fund. The Court explained that such proportionality serves to protect the integrity of the profession in the face of a request by class counsel that, by its nature, operates to reduce the funds available for class members. The Court held that this is a particularly important principle in the context of mega-fund settlements and supported the objectives that animate the Class Proceedings Act, 1992 (“CPA”).

(b) Results Achieved

The appellants asserted that the motion judge’s view of the results was based on speculation about what Belobaba J. might have thought of the settlement and that this was an error in principle. The Court rejected this argument, holding that a fair reading of the relevant section of the motion judge’s reasons suggested that his comment was of limited, if any, significance.

Second, the appellants submitted that the motion judge’s comparison of the settlement to a $426 million damages figure was not an appropriate benchmark for assessing the quality of the result and that the outcome had to be considered on a risk-adjusted basis, bearing in mind the realistic scenario at a contested hearing. They asserted that the motion judge did not engage with the report of the appellants’ expert. The Court disagreed, explaining that the motion judge summarized the damages models that a court could apply at trial as described in the report of the appellant’s expert and concluded that class counsel had achieved a good result when compared to the alternative of taking the matter to judgment about aggregate damages. The motion judge compared the result to the settlement in Fulawka v. Bank of Nova Scotia and determined that that settlement was more favourable.

The appellants also asserted that the motion judge did not engage with class counsel’s assessment of what they realistically expected to achieve at an aggregate damages hearing. The Court rejected this assertion and noted that class counsel’s assessment was subjective in nature and that the motion judge considered the settlement objectively, as he was required to do.

Finally, the Court also rejected the appellants’ contention that the motion judge failed to account for various facts in his decision. The Court noted that, contrary to the submissions of the appellants, the motion judge addressed opportunity cost, some coverage for class members with potentially expired limitation periods, the absence of any need for class members to prove their claims, and the fact that no portion of the settlement would revert to the CIBC.

The appellants’ next argument under this second ground of appeal related to the absence of an anchor for the motion judge’s finding that the requested fee was contrary to the integrity of the profession. The motion judge found that an award of $44 million would call the integrity of the profession into question. The appellants accepted that the motion judge identified the proper test but took issue with his application of that test.

The Court held that this was an inaccurate characterization. The Court explained that the existence of discretion typically implies that different decision makers can reasonably arrive at different results, and that the appellants may not have liked the result reached by the motion judge in the exercise of his discretion, but he considered the relevant factors and the decision was open to him to make. The motion judge had discretion to balance, as he did, proportionality and considerations about incentivizing future class counsel with the needs of class members in the immediate case. The Court found no reason to interfere with the motion judge’s assessment.

The appellants submitted that the motion judge’s approach in determining an appropriate fee was tainted by his disclaimer of the utility of objective criteria and his misapprehension of the Fulawka settlement as a benchmark.

The motion judge noted that the lodestar methodology and comparisons to other class actions are used as cross-checks although he expressed concern about their reliability. He concluded that the multiplier method was problematic for mega-fund settlements such as this one. He reasoned that each case turns on its own facts. The Court noted that, in their materials before the motion judge, the appellants acknowledged that this was a mega-fund settlement and that in these circumstances courts have held that class counsel fees should be decided on a case-by-case basis.

The appellants argued that the motion judge’s rejection of multipliers as an apt comparator was contrary to s. 33(7) of the CPA and the principles in Gagne. The Court held that in the CPA, the use of multipliers is not mandatory but discretionary, and Gagne was not pointed at mega-fund settlements. In arguing that comparators and cross-checks should not be ignored, the appellants cited five cases in their factum, three of which were decided by the motion judge in this appeal. The Court held that the parties’ positions on these five cases highlighted the different interpretations often available for comparators and illustrate that although comparators and multipliers are of assistance, fee approvals are ultimately fact driven and case specific.

The Court also addressed the motion judge’s reliance on Fulawka. The motion judge noted that a contingency fee of 17 percent was lower than the 20 percent in Fulawka, which the Court held was appropriate given that it was arguable that the Fulawka settlement was modestly better and achieved much sooner. The appellants argued that the motion judge misapprehended the evidence as the effective contingency fee in Fulawka was 24 percent and not 20 percent. The Court held that even if this was a palpable error, it was not overriding. Furthermore, the appellants submitted that the settlement in this case was better than in Fulawka and that the timing on certification was very different for each of these cases.

The Court held that the motion judge was entitled to consider timeliness as a factor in the exercise of his discretion and did so without error, noting that the motion judge did not assume that quicker automatically meant better. The motion judge also considered the Fulawka settlement to be “modestly better” than the settlement in this case, and that he emphasized that the Fulawka settlement amount for the class was not diluted by legal fees and disbursements. These were paid separately by the bank. The Court held that this was a reasonable and significant distinction.

The appellants submitted that the motion judge erred in finding that the Fulawka settlement was uncapped. The Court rejected this, holding that this was not a material error. The Court explained that the key distinction drawn by the motion judge was that the Fulawka settlement was undiluted by legal fees and disbursements, unlike this case.

The appellants submitted that the motion judge made two errors in refusing to grant D.F. an honorarium. First, they submitted that the motion judge did not give sufficient weight to the courage she displayed or the risk she took on. Second, they asserted that the motion judge’s decision was contrary to precedent as other courts have awarded honoraria to plaintiffs who were less extensively involved over shorter periods of time and who faced less personal risk.

Amicus opposed the request, stating that it amounted to improper interference with the motion judge’s exercise of discretion to refuse to award an honorarium. Relying on Doucet v. The Royal Winnipeg Ballet, Amicus submitted that honoraria should be reserved for exceptional cases where such an award will serve access to justice.

The Court accepted Amicus’ submission, explaining that in Doucet, in determining that an honorarium requires exceptional circumstances, the Divisional Court undertook an extensive review of the jurisprudence on honoraria. Furthermore, the Court noted that in Baker Estate v. Sony BMG Music (Canada Inc.), Strathy J. (as he then was), emphasized that this type of payment “is exceptional and rarely done… It should not be done as a matter of course”, and that it “should be reserved for cases…where the contribution of the representative plaintiff has gone well above and beyond the call of duty.”

The Court also cited Sutherland v. Boots Pharmaceutical Plc. where Winkler J. (as he then was) observed that “where a representative plaintiff benefits from the class proceeding to a greater extent than the class members, and such benefit is as a result of the extraneous compensation…rather than the damages suffered by him or her, there is an appearance of a conflict of interest between the representative plaintiff and the class member.”

The Court explained that factors that might qualify as exceptional circumstances could include exposure to a real risk of costs or significant personal hardship in connection with the prosecution of the action. The Court cited the Divisional Court in Doucet, noting that additional payment should be available only where the representative plaintiff can demonstrate a level of involvement and effort that is “truly extraordinary.” Therefore, the Court held that the motion judge’s decision on the honorarium was not unreasonable or infected with error.

Nutrition Guidance Services Inc. v. Schwartz, 2024 ONCA 636

[Sossin J.A. (Motion Judge)]

Counsel:

J. Goldblatt and R. Allen, for the appellants/moving parties
R. B. Macdonald and T. Obradovic, for the respondents/responding parties

facts:

This was a motion for a stay of an order following a summary judgment motion. The appellants and two corporate entities own 75% of a commercial property in Toronto and had sought to buy out the respondents, who own 25% of the property under the Partnerships Act. The respondents counterclaimed for a sale of the property under the Partition Act. The motion judge found for the respondents, granting them the unilateral right to sell the commercial property at its highest market value, failing which the parties could go back to the court to seek an extension or resolve any impediments to sale. The appellants moved to stay this remedy pending their appeal.

issues:

Did the appellants successfully establish that:

a) there was some merit to the appeal?

b) they would suffer irreparable harm if the stay were refused?

c) the balance of convenience favoured the stay?

holding:

Motion granted.

reasoning:

The test for granting a stay pending appeal is well-settled. Based on the Supreme Court’s framework in RJR‑MacDonald Inc. v. Canada (Attorney General), in order to obtain a stay, the moving party must establish that:

There is some merit to the appeal;
The moving party will suffer irreparable harm if the stay should be refused; and
The balance of convenience favoured the stay.

Importantly, the court’s power to grant a stay is discretionary, guided by what is in the interests of justice. Further, these prongs to the test are not watertight compartments. The conclusions on one prong may affect the analysis of another.

a) Yes – Merit to the Appeal

The first prong of the test regarding merits will be met where an appeal is not frivolous or vexatious, and where there is “some reasonable prospect of success.” The appellants raised two grounds of appeal regarding the merits: first, they argued the motion judge failed to reach key findings to support his conclusion that the parties were co-owners of the commercial property, rather than parties to a partnership. Second, they asserted that the motion judge imposed an improper remedy that neither party asked for or addressed as part of the summary judgment motion.

The Court did not explicitly reject the first argument, arguments founded on inadequate reasons and/or the misapprehension of evidence generally face an uphill climb on appeal. In this case, the Court was not able to say these arguments failed to cross the low threshold of the test for a stay.

The Court accepted the second argument raised by the appellants on the basis that it met the low threshold of a serious issue on appeal for a stay. The Court found that the motion judge’s imposition of a remedy not sought by any party, along with fairness concerns based on the motion judge considering a course of action without providing the parties an opportunity to address it, was sufficient for the appellants to challenge the remedy.

b) Yes – Irreparable Harm

For the second prong of the test, the Court considered the appellants’ argument that irreparable harm would arise if the stay was not granted. The Court found that the risk arising from the potential completion of the sale of the property in the 90-day period ordered by the motion judge, which would render an appeal moot, was sufficient to constitute irreparable harm. Although a further step would be needed to render the sale complete, the lack of a guarantee that the motion judge (or another judge) would not take any further steps to complete the sale prior to an appeal being heard was determined to be sufficient risk of irreparable harm.

c) Yes – Balance of Convenience

For the third prong of the test, the Court accepted the appellants’ first argument that, in light of the strength of their appeal and the irreparable harm caused by the appeal becoming moot, the balance of convenience favoured the stay. The Court considered evidence proposed by the respondents that there was a time-sensitive offer to purchase the property which did not favour a stay, but rejected this on the basis that this offer was not determinative regarding the balance of convenience. The Court was not in a position to conclude that the offer would be lost and not extended or reactivated in the event the appellants are unsuccessful in their appeal, or that an equivalent or better offer would not present itself.

Downing Street Financial Inc. v. 1000162497 Ontario Inc.,, 2024 ONCA 639

[Sossin, L. J.A.]

Counsel:

D. Seifer, for the receiver
Eric Golden, for the responding party, Downing Street Financial Inc.
S.A. Hussain, for the responding parties, 10000162497 Ontario Inc. and Maplequest Uptown Developments Inc.

facts:

This was a motion brought by the court-appointed receiver in a bankruptcy proceeding following a notice of appeal by the appellants. The issues on this motion stemmed from a pending $15.5 million sale of real property pursuant to an Approval and Vesting Order (the “AVO”).

The respondent, Downing Street Financial Inc. (“Downing”), a creditor of the mortgagees, listed the property for sale under power of sale which attracted two offers. Downing accepted an offer for a purchase price of $16 million conditional upon applying to court and obtaining the appointment of a receiver to convey the property to the purchaser. Downing applied to court for approval of the sale, which the appellants opposed, arguing that the $16 million purchase price did not represent fair value and the power of sale process was carried out improvidently. Downing and the appellants resolved the dispute wherein Downing would withdraw the sale and a receiver would be appointed to conduct further marketing and handle the sale process for the property. Times 1010 Inc. (“Times”), who made the offer for $16 million, would serve as a “stalking horse bidder” at $15.5 million. On consent, the Receivership Order was granted on April 11, 2024.

On April 24, 2024, Justice Kimmel granted an order that approved the Receiver’s proposed stalking horse sale procedure; approved the listing of the properties by the Receiver; authorized the Receiver and listing agent to carry out the sale; and declined a request from the appellants to guarantee their right to redeem the mortgage.

Following a comprehensive marketing campaign, no other offers were received by the deadline of July 2, 2024, and the Receiver notified Times that it was the successful bidder. The appellants did not bring a proceeding to redeem the mortgage at that point. On August 1, 2024, the Receiver moved to complete the transaction. On August 1, 2024, the appellants served responding materials by way of an affidavit from the appellant’s officer and director asserting that an Ontario numbered company had provided a commitment letter to advance a $17 million first mortgage for the properties, with an advance date of August 20, 2024. On that basis, the appellants sought leave to redeem the mortgage. Justice Steele declined that request, as there was no motion before her nor any evidence regarding the purported commitment before the court. Justice Steele, applying the criteria set out in Royal Bank of Canada v. Soundair Corp., approved the AVO. The appellants appealed that AVO. The Receiver moved for directions.

issues:

Is the Notice of Appeal a nullity?
Is the appeal governed by the BIA?
Does this appeal fall within the categories of an automatic right of appeal to the Court of Appeal?
Should leave to appeal be addressed?
Should a stay, if it were in place, be lifted to permit the transaction to be closed?

holding:

Motion granted.

reasoning:

1. Undetermined.

The court declined to deal with this portion of the appeal, finding that the Receiver’s requested declaration could be interpreted as quashing the appeal, which is a remedy reserved for a panel of the Court of Appeal. The Court however noted that on its face, the appellants filed their notice of appeal within the 10-day period set out in the BIA.

2. Yes.

Despite citing the CJA in their notice of appeal, the appellants agreed in oral arguments that the BIA governed and relied on its provisions for various arguments.

3. No.

The appeal did not meet the threshold for an automatic right of appeal under s.193(c) of the BIA.

The Court rejected the appellants’ assertions of the higher valuation of the properties as closer to $27 million. The Court noted that to trigger the automatic right of appeal under s.193(c) of the BIA, the appeal must relate to a clear difference between the order under appeal and the evidence in the record that the debtor should have obtained a higher value. Section193(c) is interpreted narrowly given the broad right to an automatic stay under s.195 where the threshold of s.196 is met.

4. Did not address.

The Court did not address this issue, as the appellants did not seek leave to appeal.

5. Yes

The Court held that even if the appellants had a right of appeal pursuant to s.193 of the BIA or were granted leave to appeal, it would lift the associated stay to permit the transaction approved by the AVO to proceed.

The test for a stay of proceedings is well established (RJR‑MacDonald Inc. v. Canada (Attorney General), which has been adapted for a stay pursuant to s.195 of the BIA. The Court held that if there was a stay, it should be lifted primarily because the appeal, as framed, lacked merit. The impugned sale process was not opposed by the appellants, nor was any credible basis to take issue with it raised in the Notice of Appeal, except for the gap between outcomes and what the appellants believed to be the value of the properties. Further, the Court found that the balance of convenience favoured the Receiver. The Court noted that although the appellants claimed they would “lose everything”, that loss was rooted in the sale process which they did not oppose, not the AVO.

SHORT CIVIL DECISIONS

D’Mello v. Sapusak, 2024 ONCA 627

[Nordheimer, Gomery and Wilson JJ.A.]

Counsel:

R.D. acting in person
M. Chung and M. J. Sims, for the respondents, The Honourable Justice Leonard Ricchetti and Attorney General of Ontario
N. Colville-Reeves, for the respondent, C.J.S.

Keywords: Civil Procedure, Application, Striking Pleadings, No Reasonable Cause of Action, Reasonable Apprehension of Bias

Kranenburg v. Grice, 2024 ONCA 629

[Nordheimer, Gomery and Wilson JJ.A.]

Counsel:

J. M. Fischer, for the appellant
A. Shahabi, for the respondents

Keywords: Real Property, Easements

Stayside Corporation Inc. v. Cyndric Group Inc., 2024 ONCA 630

[Gomery J.A. (Motions Judge)]

Counsel:

C. Guilbault, for the appellant, Stayside Corporation Inc.
S. Émard-Chabot, for the respondents, Cyndric Group Inc. and R. M.

Peng v. Chen Estate, 2024 ONCA 632

[Nordheimer, Gomery and Wilson JJ.A.]

Counsel:

X.P., acting in person
S. Eisen and J. Valencia, for the responding party, M. H. T.

Keywords: Civil Procedure, Costs, Appeals, Leave, Extension of Time

Graham v. New Horizon System Solutions, 2024 ONCA 631

[Nordheimer, Gomery and Wilson JJ.A.]

Counsel:

L.L.G., acting in person
D. Search and T. Schjerning, for the responding parties, New Horizon System Solutions, Capgemini Canada Inc., P.W., S.M., and A.T-B.
G. McGinnis, for the responding party, Oncidium Health Group

Keywords: Administrative Law, Judicial Review, Human Rights Tribunal, Civil Procedure, Appeals, Leave, Perfection, Extension of Time, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

Rathod v. Chijindu, 2024 ONCA 633

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

Counsel:

A. Sidhu, for the moving party, H. R.
B. Belmont, for the moving party, Bluekat Capital Corp.
C. C., acting in person
N. C., also known as N. O. and J. C., acting in person
I. C., acting in person

Keywords: Civil Procedure, Appeals, Addendum, Costs, Rathod v. Chijindu, 2024 ONCA 317, Rathod v. Chijindu, 2024 ONCA 420

Farokhian v. Bonyanpour, 2024 ONCA 635

[Nordheimer, Gomery and Wilson JJ.A.]

Counsel:

A. Teshebaeva, for the appellant
The respondent not appearing

Duwyn v. Ross, 2024 ONCA 637

[Nordheimer, Gomery and Wilson JJ.A.]

Counsel:

W. R. Clayton, for the appellant
A. A. Nicholls and J. Davies, for the respondent

Keywords: Family Law, Parenting, Decision Making, Retroactive Child Support, Civil Procedure, Fresh Evidence, Costs, Child and Family Services Act, R.S.O. 1990, c. C.11, s. 69(6), Cuthbert v. Nolis, 2024 ONCA 21, Children’s Aid Society of Owen Sound v. R.D., 178 O.A.C. 69 (C.A.), Rigillo v. Rigillo, 2019 ONCA 548, Knapp v. Knapp, 2021 ONCA 305, Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), V.K. v. T.S., 2011 ONSC 4305, Andrade v. Kennelly, 33 R.F.L. (6th) 125 (Ont. S.C.), Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Legault v. TD General Insurance Company, 2024 ONCA 439

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CIVIL DECISIONS

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facts:

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holding:

reasoning:

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Table of Contents

CIVIL DECISIONS

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holding:

reasoning:

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SHORT CIVIL DECISIONS

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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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CIVIL DECISIONS

Counsel:

facts:

issues:

holding:

reasoning:

Counsel:

facts:

issues:

holding:

reasoning:

Counsel:

facts:

issues:

holding:

reasoning:

Counsel:

facts:

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holding:

reasoning:

Counsel:

facts:

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email