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

Good afternoon.

There were only two substantive civil decisions release by the Court of Appeal for Ontario this past week. Both related to the enforcement of settlements, one of a debt, the other of a medmal claim.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email


Table of Contents

Civil Decisions

Chaba v Khan, 2020 ONCA 643

Keywords: Contracts, Debtor-Creditor, Guarantees, Torts, Fraudulent Misrepresentation, Inducing Breach of Contract, Civil Procedure, Reasonable Apprehension of Bias, Costs, Courts of Justice Act, R.S.O. 1990, c. c.43, s. 131, Mariani v. Lemstra (2004), 246 D.L.R. (4th) 489 (Ont. C.A.), Drouillard v. Cogeco Cable Inc., 2007 ONCA 322, R. v. Sahdev, 2017 ONCA 900, R. v. Aird, 2013 ONCA 447, R v. Gravesande, 2015 ONCA 774, R. v. Ibrahim, 2019 ONCA 613, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Boucher v. Public Accountants Council for Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.)

Huma v Mississauga Hospital, 2020 ONCA 0644

Keywords: Torts, Negligence, MedMal, Contracts, Settlements, Enforcement, Implied Terms, Releases, Rules of Civil Procedure, Rule 49.09,  Milios v Zagas (1998), 38 OR (3d) 218 (CA),  Olivieri v Sherman, 2007 ONCA 0491, Hodai v RBC Dominion Securities, 2011 ONSC 6881, aff’d 2012 ONCA 0796, Kuo v Kuo, 2017 BBCA 245

Short Civil Decisions

Bilotta v Booth, 2020 ONCA 658

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Consequential Loss, Azzarello v. Shawqi, 2019 ONCA 820

WDM v Native Child and Family Services of Toronto, 2020 ONCA 0641

Keywords: Civil Procedure, Appeals, Frivolous, Vexatious, Abuse of Process, Parties Under Disability, Capacity, Rules of Civil Procedure, Rules 2.1.01(6), 2.1.01(1) & 7.04

Rolley v MacDonell, 2020 ONCA 0642

Keywords: Civil Procedure, Trial, Juries, Discharge of Jury, Mistrial, Evidence, Admissibility, Documents, Late Disclosure

Heliotrope Investment Corporation v 1324789 Ontario Inc., 2020 ONCA 647

Keywords: Civil Procedure, Appeals, Evidence, Examination of Witnesses, Solicitor-Client Communications, Rules of Civil Procedure, Rules 39.02(2) & 39.03(2)


CIVIL DECISIONS

Chaba v Khan, 2020 ONCA 643

[Doherty, Hoy and Jamal JJ. A.]

Counsel:

M.A. Khan, for the appellants

R.H. Parker, for the respondent

Keywords: Contracts, Debtor-Creditor, Guarantees, Torts, Fraudulent Misrepresentation, Inducing Breach of Contract, Civil Procedure, Reasonable Apprehension of Bias, Costs, Courts of Justice Act, R.S.O. 1990, c. c.43, s. 131, Mariani v. Lemstra (2004), 246 D.L.R. (4th) 489 (Ont. C.A.), Drouillard v. Cogeco Cable Inc., 2007 ONCA 322, R. v. Sahdev, 2017 ONCA 900, R. v. Aird, 2013 ONCA 447, R v. Gravesande, 2015 ONCA 774, R. v. Ibrahim, 2019 ONCA 613, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Boucher v. Public Accountants Council for Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.)

facts:

The individual appellant, a lawyer, provided a loan to a third party couple to finance the purchase of a home. When the borrowers did not make their monthly payments, the appellant issued a notice of sale and obtained an order for possession.

The respondent, a mortgage broker, became involved and tried to arrange alternative financing for the borrowers. The appellant and the borrowers later agreed to settle the debt. In a schedule to the settlement, the borrowers signed a promissory note in favour of the appellant, and the respondent signed as guarantor.

The respondent continued to seek financing for the borrowers, but in the meantime disputed his role as guarantor. He, in conjunction with the borrowers, sued the appellant for fraudulent misrepresentation. The appellant settled with the borrowers, but counterclaimed against the respondent, likewise claiming fraudulent misrepresentation, in addition to alleging that the respondent induced a breach of contract by undermining the original settlement for the debt.

The trial judge dismissed the appellant’s counterclaim, and held that the appellant’s settlement with the borrowers with respect to the debt released the respondent of any obligations as a guarantor. The appellant raised at least 14 issues on this appeal. The Court categorized these issues into six topics.

issues: 

(1) Did the trial judge err in dismissing the claim for fraudulent misrepresentation?

(2) Did the trial judge err in dismissing the claim for inducing breach of contract?

(3) Did the trial judge err in dismissing the claim to enforce the respondent’s guarantee?

(4) Did the trial judge approach the evidence unfairly by applying differential standards of scrutiny?

(5) Did the trial judge’s interventions give rise to a reasonable apprehension of bias?

(6) Did the trial judge err in his costs ruling?

holding: 

Appeal dismissed.

reasoning: 

(1) No. The trial judge correctly summarized the elements of fraudulent misrepresentation as laid out in Mariani v. Lemstra (2004), 246 D.L.R. (4th) 489 (Ont. C.A.): (i) defendant made a false representation of fact; (ii) defendant knew the statement was false or was reckless as to its truth; (iii) defendant made the representation with the intention that it would be acted upon by the plaintiff; (iv) the plaintiff relied upon the statement; and (v) the plaintiff suffered damages as a result.

(2) No. Once again, the trial judge correctly cited the four elements of inducing breach of contract as established in Drouillard v. Cogeco Cable Inc., 2007 ONCA 322: (i) plaintiff must have a valid and enforceable contract with the defendant; (ii) defendant was aware of the existence of the contract; (iii) defendant intended to and did procure the breach of the contract; and (iv) because of the breach, the plaintiff suffered damages.

Again, the Court was very brief in its analysis, and limited its comments to finding that there was no basis to interfere with the trial judge’s conclusion on this issue.

(3) No. The trial judge accepted that a lender may have separate claims against a borrower and their guarantor. However, in this case, it was not a term of the appellant’s settlement with the borrowers that he could maintain his pursuit of the respondent. Instead, the settlement provided for the “payment of the debt in its entirety.” Again, there was no basis to interfere with these findings.

(4) No. The Court emphasized that credibility findings are part of the bedrock of a trial judge’s function, and as such, attract a very high degree of deference on appeal (R. v. Sahdev, 2017 ONCA 900; R. v. Aird, 2013 ONCA 447). To challenge these findings, the appellant “must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied” (R v. Gravesande, 2015 ONCA 774). The Court concluded that the appellants did not meet this threshold.

(5) No. The appellant submitted that the trial judge’s apparently excessive questioning during his final submissions compromised his ability to cover all the issues before the court. However, the Court found no merit to these submissions, and pointed out that the questions involved nothing more than standard discussion between the court and counsel. This fell well short of meeting the test of a reasonable apprehension of bias as assessed from the perspective of a reasonable observer present throughout the trial (R. v. Ibrahim, 2019 ONCA 613).

(6) No. The Court stated that a costs award should only be set aside on appeal if the trial judge made an error in principle, or if the award is plainly wrong (Hamilton v. Open Window Bakery Ltd., 2004 SCC 9). This is a stringent test, and once again one that the appellants had failed to meet. The trial judge was well within his rights to exercise discretion in his costs award pursuant to s. 131 of the Courts of Justice Act, provided that the amount is “fair and reasonable” (Boucher v. Public Accountants Council for Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.)). The Court found no error in this exercise of discretion, and therefore no basis to intervene.


Huma v Mississauga Hospital, 2020 ONCA 0644

[Rouleau, Miller and Zarnett JJ.A.]

Counsel:

R. P Bohm and D. S Lee, for the appellants

C.K. Hunter, for the respondent physicians

H. Ngan and B. Shakinovsky, for the respondent hospitals

Keywords: Torts, Negligence, MedMal, Contracts, Settlements, Enforcement, Implied Terms, Releases, Rules of Civil Procedure, Rule 49.09,  Milios v Zagas (1998), 38 OR (3d) 218 (CA),  Olivieri v Sherman, 2007 ONCA 0491, Hodai v RBC Dominion Securities, 2011 ONSC 6881, aff’d 2012 ONCA 0796, Kuo v Kuo, 2017 BBCA 245

facts:

The appeal arises from an alleged settlement in a medical malpractice case. One of the appellants alleged that the professional wrongdoing of the respondents left them injured, while the other two appellants were family members who brought claims under the Family Law Act. While the appellants had help from a lawyer drafting the statement of claim, the lawyer would not go on record, and the appellants were considered self-represented.

After almost two years had passed since the statement of claim was issued, lawyers for the respondents began making inquiries of the appellant as to their intention to pursue the claim. The appellant responded asking for further time to consider their options. The respondents’ lawyer advised the appellant that they would be seeking a court ordered timetable for the action and also asked the appellants if they would consider dismissing the action on a without cost basis in exchange for a release.

Two weeks later, one of the appellants sent an email to counsel for the respondents confirming they would be dismissing the case on a without costs basis, but made no mention of a release. They asked for confirmation of acceptance from the respondents as well as a copy of the form needed to file the dismissal with the court. All three appellants signed the letter. Counsel for the respondent physicians replied the same day confirming that the respondent physicians agreed to the dismissal in exchange for a release. A few days later, counsel for the respondent hospitals confirmed that the agreement was in exchange for a release and sent along a proposed form of release. This proposed release included a waiver of independent legal advice as well as a clause requiring the appellants to keep the terms of the settlement confidential.

Ultimately, the appellants refused to proceed with the settlement. They eventually retained legal counsel and wanted to proceed with the action. The respondents moved under rule 49.09 of the Rules of Civil Procedure to have the settlement enforced. The motion judge ultimately enforced the settlement and the appellants appealed that decision.

issues: 

(1) Did the motion judge err in finding an enforceable agreement to settle?

(2) Did the motion judge err by not exercising their discretion not to enforce an otherwise enforceable settlement on the grounds of unconscionability?

holding: 

Motion dismissed.

reasoning: 

(1) No. The appellants submitted that the spouse thought she was only taking an exploratory step when emailing counsel saying they would dismiss the action without costs. Citing Olivieri v Sherman, the Court of Appeal held that the conduct of the parties, including the language used, is to be viewed objectively when determining whether a contract has been made. The motion judge considered the words used in the email and held the requisite intention to create a binding settlement was present when viewed objectively.

Of particular note in this case was the issue of the releases. The appellants’ email did not mention releases as a term of the settlement. While the releases had been discussed initially, they were only re-introduced in the emails from the respondents’ counsel when accepting the offer from the appellant to dismiss the action. The Court of Appeal held that there is an implied obligation to furnish a release as part of a settlement, and so the fact the respondents introduced the term while accepting did not render the agreement unenforceable because the terms were not inconsistent. The releases proffered by both the respondent physicians and respondent hospitals’ counsel were overly broad, however. In particular, the proposed releases contained independent legal advice waivers and confidentiality clauses. These terms went beyond what was strictly necessary to enforce the intentions of the binding settlement agreement, and so they were beyond the reach of the implied obligation to furnish a release. The essential terms of the agreement, that is, to dismiss the action without costs and the implied obligation to furnish a release remained binding, however.

The appellants also submitted that the settlement was not enforceable because the spouse was acting without the authority of the other appellants when she sent the settlement email, and that the main appellant, the one who was injured, never consented or was never consulted on the settlement. The Court of Appeal accepted the motion judge’s finding that this was inconsistent with all three appellants having signed the email.

(2) No. The motion judge correctly recognized their overriding discretion to refuse to enforce a settlement and correctly cited the test in Milio v Zagas. Nevertheless, the motion judge did not find the terms of the settlement to be unconscionable and so did not exercise his discretion. The Court of Appeal saw no error in the motion judge’s approach and noted that he considered all the relevant factors in making his decision. This process and exercise of discretion was entitled to deference and the Court of Appeal saw no reason to intervene.


SHORT CIVIL DECISIONS

Bilotta v Booth 2020 ONCA 658

[Huscroft, Zarnett and Coroza JJ.A.]

Counsel:

Lee for the appellants KB and DB (Respondents/Applicants by Counter-Application)

Binavince, for the respondents CB and RB (Applicants/Respondents by Counter-Application)

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Consequential Loss, Azzarello v. Shawqi, 2019 ONCA 820

WDM v Native Child and Family Services of Toronto, 2020 ONCA 0641

[Juriansz, Hourigan and Thorburn JJ A]

Counsel:

WDM, acting in person

D. Mayer, for the respondents Her Majesty the Queen in Right of Ontario and the Public Guardian and Trustee

Keywords: Civil Procedure, Appeals, Frivolous, Vexatious, Abuse of Process, Parties Under Disability, Capacity, Rules of Civil Procedure, Rules 2.1.01(6), 2.1.01(1) & 7.04

Rolley v MacDonell, 2020 ONCA 0642

[Fairburn ACJO, Miller and Zarnett JJ A]

Counsel:

A. L. Rachlin, for the appellant/respondent by way of cross-appeal

J.Y. Obagi and E. A. Quigley, for the respondents/appellants by way of cross-appeal

Keywords: Civil Procedure, Trial, Juries, Discharge of Jury, Mistrial, Evidence, Admissibility, Documents, Late Disclosure

Heliotrope Investment Corporation v 1324789 Ontario Inc., 2020 ONCA 647

[Hourigan, Trotter and Jamal JJ. A]

Counsel:

B. Marks for the appellants

C. Merovitz for the respondent

Keywords: Civil Procedure, Appeals, Evidence, Examination of Witnesses, Solicitor-Client Communications, Rules of Civil Procedure, Rules 39.02(2) & 39.03(2)


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

Jump To: Table of Contents | Civil Decisions

Good afternoon.

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

The decisions were all fairly short. Topics covered included prescriptive easements, breach of contract, family law (support), the approval of a settlement and contingency fee agreement in a personal injury matter and security for costs.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Ballanger v. Ballanger, 2020 ONCA 626

Keywords: Family Law, Spousal Support, Child Support, Retroactive Support, Civil Procedure, Appeals, Standard of Review, Hickey v. Hickey, [1999] 2 S.C.R. 518

Estates Associates Inc. v. 1645112 Ontario Ltd., 2020 ONCA 640

Keywords: Civil Procedure, Appeals, Security of Costs, Breach of Contract, Torts, Fraud, Negligent Misrepresentation, Conspiracy, Professional Negligence, Lawyers, Rules of Civil Procedure, Rules 61.06(1), Yaiguaje v. Chevron Corporation, 2018 ONCA 827

Honey Bee (Hong Kong) Limited v. VitaSound Audio Inc., 2020 ONCA 629

Keywords: Contracts, Technology, Manufacture and Sale, Fresh Evidence, Admissibility, “Palmer Test”, Due Diligence, Relevance, Reliability

Krukowski v Aviva Insurance Company of Canada, 2020 ONCA 0631

Keywords: Contracts, Solicitor and Client, Contingency Fee Agreements, Torts, Negligence, MVA, Settlements, Court Approval, Parties Under Disability, Henricks-Hunter v. 814888 Ontario Inc., 2012 ONCA 496, Wu (Estate) v. Zürich Insurance Company (2006), 268 DLR (4th) 670 (CA), leave to appeal refused, [2006] SCCA No. 289, Aywas v. Kirwan, 2010 ONSC 2278, Re Solicitor, [1973] 1 OR 652 (CA)

Paleshi Motors Limited v Woolwich (Township), 2020 ONCA 625

Keywords: Real Property, Easements, Land Titles, Watermain, Land Titles Act, R.S.O. 1990, c. L.5, s. 51(2), Municipal Act, 2001 S.O. 2001, ss. 6, 8, 9, Condos Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, Garfinkel v. Kleinberg and Kleinberg, [1955] O.R. 388 (C.A.), Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116

White v 6975429 Ontario Inc., 2020 ONCA 627

Keywords: Breach of Contract, Real Property, Mortgages, Torts, Misrepresentation, Civil Procedure, Appeals, Sufficiency of Reasons


CIVIL DECISIONS

Ballanger v. Ballanger, 2020 ONCA 626

[Juriansz, Hourigan and Thorburn JJ.A.]

Counsel:

S. Beddoe and J. Robinson, for the appellant
G.S. Joseph and A.M. Mastervick, for the respondent
J.J. Neal, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Retroactive Support, Civil Procedure, Appeals, Standard of Review, Hickey v. Hickey, [1999] 2 S.C.R. 518

facts:

This appeal was brought from the trial judge’s orders on spousal support, retroactive spousal support and retroactive child support. The appellant claims that the trial judge made palpable and overriding errors in granting insufficient spousal support and failing to order retroactive spousal support and child support.

The parties separated in 2004. In 2006, the parties agreed on amounts for both child support and spousal support, as well as a division of matrimonial assets. In 2008, however, the appellant applied for an increase in support based on an increase in the respondent’s income. A temporary order for an increase was made, as well as an order to pay retroactive support.

The parties later contentiously disputed the issue of spousal and child support over the course of an eight day trial. The trial judge fashioned an order based on average income attributed to the respondent, due to the fact that the respondent’s income varied greatly from year to year.

issues:

(1) Did the trial judge err in granting insufficient support and failing to order retroactive support?

holding:

Appeal dismissed.

reasoning:

No. The Court pointed out that the Supreme Court of Canada has instructed appellate courts to afford significant deference to trial judges in cases relating to support orders. Firstly, because the discretion involved in making a support order is best exercised by the judge who heard the parties directly. And secondly, because this approach promotes finality in family law matters.

The Court of Appeal therefore concluded that an appellate court can only interfere with a trial judge’s decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision (Hickey v. Hickey, [1999] 2 S.C.R. 518).

The Court ultimately found that, in this case, the trial judge heard evidence over an extensive trial. His reasons were adequate and thoughtful, and it was clear that he had considered all of the relevant factors in arriving at his decision. As such, the Court of Appeal found no reason to interfere with the trial judge’s decision.


Estates Associates Inc. v. 1645112 Ontario Ltd., 2020 ONCA 640

[Strathy C.J.O., Brown and Huscroft JJ.A.]

Counsel:

M. I., acting in person for the appellant/ moving party

D.N.V., for the responding party, B.C.

A.S.D., for the responding parties, 1645112 Ontario Ltd., 1793411 Ontario Ltd., and R.M.

Keywords: Civil Procedure, Appeals, Security of Costs, Breach of Contract, Torts, Fraud, Negligent Misrepresentation, Conspiracy, Professional Negligence, Lawyers, Rules of Civil Procedure, Rules 61.06(1), Yaiguaje v. Chevron Corporation, 2018 ONCA 827

facts:

The appellant made claims for events that occurred 11 to 12 years ago including fraud, negligent misrepresentation, conspiracy, and breach of contract against the respondent, R.M. and his companies, in connection with the sale of a property. The appellant also claimed against the defendant, B.C., for allegedly negligent legal services. The claim was dismissed and the trial judge subsequently awarded costs to the respondents. The appellant sought to set aside or vary the order of the motion judge requiring that it post security for costs of the appeal in the amount of $100,000 each.

issues:

(1) Should the motion judge’s order requiring the appellant to post security for costs in the amount of $100,000 each be set aside or varied?

holding:

Motion dismissed.

reasoning:

No. The Court held that the motion judge’s order for security for costs rested on two foundations: first, a finding that the merits of the appeal were very much in doubt; and second, a finding that the respondents failed to establish that, despite its apparent impecuniosity, it did not have access to funds.

The motion judge’s order was discretionary and entitled to deference. The Court found that the appellant had demonstrated neither an error of law nor an error in principle in the exercise of the motion judge’s discretion. The Court found that, while the appeal may not be frivolous or vexatious, it appeared to have a very low prospect of success. The motion judge properly considered whether the appellant had established that it did not have access to funds and would not have been able to pay security for costs. There was evidence that the appellant had funded its litigation at various times by retaining several different lawyers, retaining an expert witness, and paying for the costs of the trial transcripts. In the face of this evidence, the appellant had an obligation to lead evidence that not only showed that it was without assets, but that it also had no access to funds. The appellant failed to do so, and the motion judge properly considered this failure in concluding that security for costs could be awarded.


Honey Bee (Hong Kong) Limited v. VitaSound Audio Inc., 2020 ONCA 629

[Rouleau, Miller and Zarnett JJ.A.]

Counsel:

M. Chamberlain and G. Ganguli for the appellant

Walter Kravchuk, for the respondent

Keywords: Contracts, Technology, Manufacture and Sale, Fresh Evidence, Admissibility, “Palmer Test”, Due Diligence, Relevance, Reliability

facts:

The appellant, VitaSound Audio Inc. (“VitaSound”), is a technology company in the business of developing personal audio devices. The respondent, Honey Bee (Hong Kong) Ltd. (“Honey Bee”), is in the business of manufacturing electronic devices. They entered into three agreements related to the manufacture and sale of audio devices Honey Bee manufactured using technology developed by VitaSound: a Loan Agreement for which the individual appellants executed personal guarantees, as well as an Investment Agreement and a Commercial Agreement.

VitaSound defaulted on the loan agreement. Honey Bee sued VitaSound for non-payment and the individual appellants pursuant to their personal guarantee. The appellants did not contest liability. However, VitaSound counterclaimed on the basis Honey Bee breached the Investment Agreement after the parties orally amended it. The appellants sought to set off Honey Bee’s liability against theirs under the Loan Agreement and personal guarantees.

The trial judge rejected VitaSound’s claims regarding oral amendment of the Loan Agreement and alleged breach by Honey Bee, and therefore any entitlement to a set-off from Honey Bee’s supposed liability. The trial judge found that the Commercial Agreement had no bearing on the matters in issue under the Loan Agreement or Investment Agreement.

In support of the appeal, the appellants sought to introduce fresh evidence. They alleged that Honey Bee sold units of an audio device in the Asian market, which contradicted Honey Bee’s evidence at trial. They argued that this evidence showed that Honey Bee not only misled the trial court, but also triggered an obligation under the Commercial Agreement to advance $500,000 to VistaSound. The appellants sought to set off their liability under the Loan Agreement against any damages for breach of the Commercial Agreement.

issues:

(1) Can fresh evidence be introduced on appeal from the trial decision?

(2) Did the trial judge err in not finding that Honey Bee breached the Commercial Agreement?

(3) Did the trial judge err in not finding that Honey Bee breached the Investment Agreement?

holding:

Motion and appeal dismissed.

reasoning:

(1) No. The Court applied the Palmer test and concluded the fresh evidence could not be admitted. The first branch of the Palmer test requires that the evidence not have been discoverable at trial through the exercise of due diligence. Emails that allegedly documented the sale of the device by Honey Bee were found after trial, by accident, when reviewing the spam folder of a departed employee’s email. The court found these emails were under the control of VitaSound at all times and were discoverable. Accordingly, the due diligence requirement was not satisfied.

The second branch of the Palmer test requires that the evidence be relevant, bearing upon a decisive or potentially decisive issue. The evidence was tendered to establish a breach of the Commercial Agreement and support a claim of set-off. A breach of the Commercial Agreement was never pleaded by the appellants at trial. Additionally, there was no basis in the evidence, including fresh evidence, to support that VitaSound would have been entitled to keep the entirety of the $500,000 advance payment from Honey Bee.

Finally, regarding reliability of the evidence, the fresh evidence consisted of emails from a third party to persons at VitaSound, from whom no direct evidence was elicited. Accordingly, the contents of the emails were hearsay.

(2) No. Performance of the Commercial Agreement was not a live issue at trial, and the trial judge made no error in that regard.

(3) No. The appellants argued that the trial judge ought to have accepted their evidence that the Investment Agreement had been orally amended, such that VitaSound could choose to have Honey Bee’s investment obligations be satisfied through the supply of audio units other than those enumerated in these agreements. The Court disagreed. The trial judge gave cogent reasons explaining why he concluded that the Investment Agreement had not been amended, including why he preferred the evidence of Honey Bee. There was therefore no basis for the Court to interfere with the trial judge’s decision.


Krukowski v Aviva Insurance Company of Canada, 2020 ONCA 0631

[Juriansz, Hourigan and Thorburn J.J.A.]

Counsel:

N. de Koning, for the appellant, Deutschmann Law Professional Corporation

No one appearing for the respondent, A.K.

Keywords: Contracts, Solicitor and Client, Contingency Fee Agreements, Torts, Negligence, MVA, Settlements, Court Approval, Parties Under Disability, Henricks-Hunter v. 814888 Ontario Inc., 2012 ONCA 496, Wu (Estate) v. Zürich Insurance Company (2006), 268 DLR (4th) 670 (CA), leave to appeal refused, [2006] SCCA No. 289, Aywas v. Kirwan, 2010 ONSC 2278, Re Solicitor, [1973] 1 OR 652 (CA)

facts:

The respondent was severely injured in a snowmobiling accident and was uninsured at the time. The respondent’s sister entered into a contingency fee retainer with the appellant wherein the appellant would receive 15% of any settlement they were able to reach with Aviva for the respondent.

The respondent eventually was found to be a party under disability and the Public Guardian Trustee (“PGT”) took control of the respondent’s property, pursuant to the Substitute Decisions Act, and as part of this control, entered into a new retainer agreement with the appellant where the contingency fee was set at 10%. The respondent’s sister was later named litigation guardian for the matter, and entered into a third retainer agreement on the same terms as the original one.

The appellant eventually reached a settlement with Aviva for $1,200,000. Based on their contingency arrangement, with HST and disbursements, the appellant’s portion of the settlement was just over $200,000. The appellant spent a total of 115 hours on the file (including clerk and associate time) and at the agreed upon billing rate, legal fees would have only amounted to approximately $20,000 absent the contingency agreement. The PGT objected to this amount and proposed reduced fees of $180,000 (including HST and disbursements), which the appellant agreed to.

When the settlement was brought to court for approval, the application judge approved the settlement, but further reduced the legal fees award to $60,000 plus HST and disbursements. The appellant appeals this cost order, submitting that while the application judge cited the correct legal test for legal fees in cases involving a party under disability, the application judged erred in applying the test to the case at hand.

issues:

(1) Did the application judge err in failing to apply the correct legal test to the determination of whether the legal fees for the accident benefits claim were reasonable?

holding:

Appeal dismissed.

reasoning:

No. A fee agreement involving a party under disability is not binding until it is approved by the court, and it is a discretionary exercise. Court approval of settlements for persons under disability is founded on the need to protect those who cannot care for themselves, and the court must ensure that the settlement as a whole, including provisions for legal fees are both reasonable and in the interest of the protected party.

Aywas v Kirwan and Re Solicitor were both cited by the court to identify the factors to be considered when fixing legal fees for a party under disability:
i) the time expended by the solicitor;
ii) the legal complexity of the matters dealt with;
iii) the degree of responsibility assumed by the solicitor;
iv) the monetary value of the matters in issue;
v) the importance of the matters to the client;
vi) the degree of skill and competence demonstrated by the solicitor;
vii) the results achieved;
viii) the ability of the client to pay;
ix) the client’s expectation of the amount of the fee;
x) the financial risk assumed by the solicitor of pursuing the action, including the risk of non-payment, the likelihood of success and the amount of the expected recovery; and
xi) the social objective of providing access to justice for injured parties.

The Court of Appeal reviewed the application judge’s analysis and found that not only did the judge cite the correct test and factors, but also discussed the factors relevant to this case when making their decision. In this case, the court noted that while the fees were agreed upon in a fair manner and were fully explained to the litigation guardian and that the appellant was very experienced in the area and obtained a favourable settlement, the issues in this case were not overly complex. Further, the appellants actual costs only amounted to $20,000 and a fee award that was many multiples of that amount was simply not reasonable or in the interest of the respondent.

The Court of Appeal found that it was clear that the application judge addressed and weighed all of the appropriate factors to be considered in deciding whether it would be fair and reasonable to approve the legal fees sought. Accordingly, there was no error and the appeal was dismissed.


Paleshi Motors Limited v Woolwich (Township), 2020 ONCA 625

[Doherty, Hoy and Jamal JJ. A.]

Counsel:

S. Rayman, C. Harris and S. Spitz for the appellant

P. A. Hertz, for the respondents

Keywords: Real Property, Easements, Land Titles, Watermain, Land Titles Act, R.S.O. 1990, c. L.5, s. 51(2), Municipal Act, 2001 S.O. 2001, ss. 6, 8, 9, Condos Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, Garfinkel v. Kleinberg and Kleinberg, [1955] O.R. 388 (C.A.), Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116

facts:

The appellant, Paleshi Motors Limited owned property that consisted of two adjacent lots designated as Lots 20 and 21 (the “Paleshi property”). Lot 21 lies immediately to the east of Lot 20. Paleshi Motors acquired Lot 20 in July 1975 and acquired Lot 21 in July 1981. In late 1979 or early 1980, the respondent, the Corporation of the Township of Woolwich (“Woolwich”) installed a watermain just inside the eastern boundary of Lot 21. That watermain ran for some 200 feet along Lot 21. Woolwich acknowledged that it was aware the watermain was installed on property it did not own. Woolwich did not seek or obtain the permission of the owner of Lot 21, and did not attempt to enter into any easement agreement with the owner.

Paleshi Motors was acquired by new owners in 2015. None of the owners of the Paleshi property objected to either the installation or maintenance of the watermain until Paleshi Motors, under its new owners, objected in 2017. The Paleshi property was converted to the Land Titles Registry system on September 16, 2002. There was no evidence from anyone who owned the Paleshi property during the 20-year period preceding that date, or from anyone associated with any owner, as to the owner’s knowledge of the existence of the watermain, or any arrangement that existed between the owners and Woolwich with respect to the watermain.

In 2019, the present owners of Paleshi Motors brought an application seeking a declaration the watermain was illegally on their property and an order directing the removal of the watermain. At the same time, Woolwich brought an application seeking a declaration it had a prescriptive easement over the Paleshi property for the purposes of operating, maintaining, repairing and replacing the watermain.

The application judge dismissed Paleshi Motors’ application, and granted the prescriptive easement sought by Woolwich.

issues:

(1) Did the application judge err by concluding the appellants had acquiesced in the use of their property for the watermain during the relevant 20 year period?

(2) Should public authorities not be allowed to claim a prescriptive easement because they could expropriate the property?

holding:

Appeal dismissed.

reasoning:

(1) No. The application judge correctly identified the prerequisites to the existence of a prescriptive easement. There was no doubt Woolwich’s use and enjoyment of the Paleshi property for the purposes of the watermain was continuous, uninterrupted and peaceful during the relevant 20-year period. In reaching the conclusion that the owners of the Paleshi property during the relevant 20 years had acquiesced in the use of their property for the watermain, the application judge drew inferences based on the public nature of the construction in 1970-80, the regular maintenance of the watermain after it was installed, and Paleshi Motors’ ownership of the immediately adjacent lot (Lot 20) when construction occurred and maintenance was carried out. In considering whether the owners of Paleshi Motors were aware of the watermain on their property when they purchased Lot 21, the application judge was entitled to conclude the owners exercised reasonable diligence as purchasers when buying Lot 21. Paleshi motors had actual knowledge of the existence of the watermain on their property no later than 1986 based on a document prepared at Paleshi Motors’ request in respect of its proposed development of Lot 21 in 1986. Knowledge of the existence of the watermain could be imputed to the owners of the Paleshi property if an ordinary landowner, diligent in the protection of her interests, would have had a reasonable opportunity of becoming aware of the watermain. There is nothing unreasonable, either in the inferences drawn by the application judge, or in his ultimate conclusion that the owners of the Paleshi property had knowledge, actual or imputed, of the existence of the watermain by 1982 and acquiesced in Woolwich’s use of their property for that purpose over the next 20 years. Even if the application judge misplaced the ultimate burden of proof, it had no possible effect on his finding Woolwich did not have permission to use the property.

(2) No. Nothing in the case law offers any support for the proposition that public authorities should not be able, as a matter of law, to claim a prescriptive easement because they could have expropriated the property. To the extent the Municipal Act speaks to the issue, it offers support for the power of a municipality to acquire prescriptive easements in the same way as other legal entities. There are policy reasons for distinguishing between public authorities and private landowners insofar as the acquisition of easements by prescription is concerned. However, the fundamental policy underlying the common law’s recognition of prescriptive easements applies to all property owners. Whether that policy should apply to all, some, or no public authorities, is a question for the legislature.


White v 6975429 Ontario Inc., 2020 ONCA 627

[Pepall, Benotto and Coroza JJ.A.]

Counsel:

J. Zibarras, for the appellants/ respondents by way of cross-appeal

C. Shammas and T. Watson, for the respondents/ appellants by way of cross-appeal

Keywords: Breach of Contract, Real Property, Mortgages, Torts, Misrepresentation, Civil Procedure, Appeals, Sufficiency of Reasons

facts:

The respondents sold shares of 2402169 Ontario Inc. (“240”) to the appellants. The only assets of 240 were a quarry, the licence to operate it and equipment. The terms of the share purchase involved a sale price of $1,610,000, a promissory note and a personal guarantee signed by the appellants, and an agreement to assume the obligations of 240 with respect to three mortgages. The appellants also agreed to indemnify the respondents for all liabilities in connection with the mortgages. Prior to the closing of the transaction, the appellants were given a bill of sale that described the equipment and that it had been acquired on an “as is” condition from a third party. The appellants did not make the payments required, including the payments on the first mortgage.

The respondents brought an action in Newmarket (the “Newmarket action”) for damages arising from breach of the agreement. The appellants’ defence was that they were induced to enter the agreement by misrepresentations. They also counterclaimed asserting that the respondents had breached the agreement because they failed to deliver equipment that was in working order.

Meanwhile, the individuals who held the first mortgage, A.A. and A.F., brought an action in Toronto (the “Toronto action”) against the respondents for payment of the first mortgage. They obtained judgment against the respondents. The respondents brought a third-party action against the appellants for contribution and indemnity.

The two actions became the subject matter of two summary judgment motions heard together. In the Newmarket action, the motion judge granted judgment against the appellants and dismissed their counterclaim. He held that the various agreements were valid, and that the appellants were not induced by misrepresentation. In the Toronto action, the motion judge held that the appellants breached their agreement to assume all obligations and indemnify the respondents in relation to the mortgage. He declared that the respondents were entitled to contribution and indemnity from the appellants for all amounts in relation to the judgment against them.

issues:

(1) Did the motion judge err in his interpretation of the agreement by failing to consider the circumstances surrounding the agreement when he concluded that there was no representation in the Agreement that the equipment was in good working order?

(2) Were the respondents’ claims in respect of 240 capable of appellate review?

holding:

Appeal dismissed. Cross-appeal allowed.

reasoning:

(1) No. The appellants argued that various factors, such as the definition of “equipment” in the agreement and the appellants’ intention to use the equipment, support their allegation that the respondents made a misrepresentation that the appellants relied on. The Court did not accept these submissions. The motion judge considered the surrounding circumstances and found that there was no misrepresentation as to the condition of the equipment. The Court held that a plain reading of the agreement supported his conclusion. The Court found no legal error and gave deference to the motion judge’s interpretation of the agreement.

The Cross-Appeal
(2) No. The Court found this aspect of the appeal was not capable of review as the motion judge provided no reasons for the dismissal of the respondents’ claims in relation to 240. There was no consideration of the request for a declaration for an indemnity from 240, be it at law or in equity. The Court therefore remitted the claim against 240 to the motion judge for determination.


Jump To: Table of Contents | Civil Decisions | Short Civil Decisions | Provincial Offences and Criminal Decisions

Good afternoon.

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

Becker v Toronto is an occupier’s liability case. In upholding the trial judge’s decision finding the City liable, the Court rejected the City’s arguments that the trial judge erred in failing to consider an alternative theory that, although not expressly raised and thoroughly developed at trial, was never formally abandoned. Legal theories can be implicitly abandoned when parties neglect to develop them at trial, and a trial judge is under no obligation to consider an issue from any perspective other than those actually articulated by the parties. If a party fails to develop an argument at trial, it may well be too little, too late to try to revive it on appeal.

In Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, the Court of Appeal considered the Supreme Court’s ruling in TELUS Communications Inc. v. Wellman, released just last year. In Wellman, the Supreme Court  concluded that the interpretation of s. 7(5) of the Arbitration Act, 1991 as outlined in Griffin v. Dell Canada Inc., 2010 ONCA 29 was bad law. Put succinctly, Wellman stands for the proposition that a motion judge does not have the discretion to refuse to stay claims dealt with in an arbitration agreement. While claims that fall outside the scope of an arbitration agreement may be allowed to proceed as a matter of the motion judge’s discretion under s. 7(5), claims that fall within the scope of the arbitration agreement must be arbitrated.

In discussing the principle of stare decisis, the Court of Appeal went on to find that Wellman did not overturn the line of cases beginning with Huras v. Primerica Financial Services Ltd. (2000), 137 OAC 79 (Ont CA), which interpret s. 7(6) of the Arbitration Act. Those cases stand for the proposition that s. 7(6) does not bar an appeal when there is no arbitration agreement or applicable arbitration agreement, the dispute lies beyond the scope of s. 7, the Act does not apply or the motion judge did not make a decision under s. 7.

In Belton v Spencer a motion judge struck a jury notice for a ten year old personal injury matter that had been scheduled to go to trial this month, but could not proceed before a jury due to COVID-19. The defendant sought to appeal, sought a stay of the order striking the jury notice pending the appeal, and sought an adjournment of the trial scheduled to proceed before a judge alone. The Court refused to stay the order, finding that it was probably interlocutory, given that it did not substantively decide the parties’ rights. The appeal therefore probably should have been brought to the Divisional Court. Moreover, the Court found that the RJR-MacDonald test for a stay was not satisfied. The right to a trial by jury in the civil context is limited and qualified. The fact that COVID-19 was necessitating a further 12-18 month delay, on top of an already decade-long process, amounted to an unconscionable delay and justified the striking of the jury notice. As an aside, in a Civil Bench and Bar Committee meeting I participated in last week, Justices Darla Wilson and Fred Myers confirmed that in-person civil jury trials have resumed in Toronto (but nowhere else). While we still have a ways to go yet, the courts are getting back to business, which is great to see.

In Groves v UTS Consultants Inc., a purchaser of a business was found to owe the vendor 24 months’ notice upon dismissing him without cause three years after purchasing the business. The vendor had only resigned as an officer and director, but not as an employee. The release he provided purported to release ESA entitlements, which was void and therefore unenforceable, resulting in the purchaser being on the hook for the full notice period from when the vendor had started the business. Careful drafting by the solicitors who handled the purchase and sale transaction could have avoided this outcome.

Walters v Nusseiri is a family law case that deals with the presumptions of resulting trust and advancement.

Finally, we have summarized one criminal decision this week, R. v Hossannah, because it discusses the law of introducing fresh evidence on appeal, which is applicable in civil cases as well. In this sad case, the parents of a young child were found guilty of not providing the necessities of life. The medical experts at trial had concluded that the child had died as a result of a combination of severe malnutrition and asthma. However, on appeal, new medical evidence put forward by the parents revealed that the child died of heart failure due to megaloblastic anemia and Vitamin D deficiency rickets, which is associated with sudden unexpected deaths in children. This caused the Crown’s medical expert to change his opinion, and he no longer believed the child had died due to asthma, but only as a result of malnutrition. Even though the parents could have introduced the new medical evidence at trial, given the complexity of the medical evidence, which was the “lynchpin” of the Crown’s case at trial, the convictions were set aside and a new trial ordered despite the lack of “due diligence”.

Thank you all for your continued support of our blog.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email


Table of Contents

Civil Decisions

Becker v Toronto, 2020 ONCA 607

Keywords: Torts, Negligence, Occupiers’ Liability, Duty Of Care, Standard Of Care, Civil Procedure, Procedural Fairness, New Issues on Appeal, Occupiers’ Liability Act, RSO 1990, c. O2, s. 3(1), 1990 Ontario Building Code, O. Reg 413/90, The Queen (Can) v Saskatchewan Wheat Pool, [1983] 1 SCR 205, Union Building Corporation of Canada v Markham Woodmills Development Inc, 2018 ONCA 401, Shaver Hospital for Chest Diseases v Slesar (1979), 27 OR (3d) 383 (CA), leave to appeal refused, [1981] 1 SCR xiii, Cotic v Gray, [1983] 2 SCR 2

Belton v Spencer, 2020 ONCA 623

Keywords:Torts, Negligence, Personal Injury, Civil Procedure, Appeals, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Civil Jury Trials, Striking Jury Notice, COVID-19, Rules of Civil Procedure, Rules 22.03 & 63.02(1)(b), RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, Circuit World Corp v Lesperance (1997), 33 OR (3d) 674 (CA), BTR Global Opportunity Trading Limited v RBC Dexia Investor Services Trust, 2011 ONCA 0620, Cowles v Balac (2006), 83 OR (3d) 660 (CA), leave to appeal refused, [2006] SCCA No, 496, Kostopoulos v Jesshope (1985), 50 OR (2d) 54 (CA), leave to appeal refused, [1985] SCCA No 93, Fontaine v Attonrey General of Canada, 2020 CanLII 64770 (Ont. CA), Ball v Donais (1993), 13 OR (3d) 322, Thomsan v Alberta (Transportation and Safety Board), 2003 ABCA 322

Toronto Standard Condominium Corporation No. 1628 v Toronto Standard Condominium Corporation No. 1636], 2020 ONCA 612

Keywords: Real Property, Condominiums, Civil Procedure, Arbitration Agreements, Appeals, Jurisdiction, Stare Decisis, Arbitration Act, 1991, SO 1991, c .17, s. 7, Condominium Act, 1998, SO 1998, c. 19, s. 135, TELUS Communications Inc v Wellman, 2019 SCC 19, Griffin v Dell Canada Inc., 2010 ONCA 29, Huras v Primerica Financial Services Ltd (2000), 137 OAC 79 (CA), Fernandes v Araujo, 2015 ONCA 571, David Polowin Real Estate Ltd v Dominion of Canada General Insurance Co (2005), 76 OR (3d) 161 (CA), Uber Technologies Inc v Heller, 2020 SCC 16, National Westminster Bank PLC v Spectrum Plus Limited, [2005] UKHL 41

Groves v UTS Consultants Inc, 2020 ONCA 630

Keywords: Contracts, Interpretation, Sale of Business, Employment, Wrongful Dismissal, Reasonable Notice Period, Damages, Bonuses, Employment Standards Act, SO 2000 c 41, Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, Wood v Deeley, 2017 ONCA 158, Payette v Guay Inc, 2013 SCC 45, Cosentino v Sherwood Dash Inc, 2014 ONCA 843, Kerzner v American Iron & Metal Company Inc, 2018 ONCA 989, Paquette v TeraGo Networks Inc, 2016 ONCA 618

Walters v Nusseiri, 2020 ONCA 615

Keywords: Family Law, Property, Family Residence, Joint Tenancy, Presumption of Resulting Trust, Presumption of Advancement, Family Law Act, RSO 1990, c. F.3, s. 14, Kerr v Baranow, 2011 SCC 10, Pecore v Pecore, 2007 SCC 17

Short Civil Decisions

Lone Oak Properties Ltd v Baillie, 2020 ONCA 614

Keywords: Civil Procedure, Appeals, Offer to Settle, Costs, Partial Indemnity Costs, Substantial Indemnity Costs, Rules of Civil Procedure, Rule 49.10(7), Borowski v Canada, [1989] 1 SCR 342, Groh v Steele, 2017 ONSC 4925

1947755 Ontario Ltd v Caruso, 2020 ONCA 0616

Keywords: Civil Procedure, Default Judgments, Setting Aside, Appeals, Motion to Quash, Failure to Comply with an Order, Jurisdiction, Interlocutory vs Final Order, Jurisdiction for Appeal of Interlocutory Order, Inforica Inc v CGI Information Systems and Management Consultants Inc, 2020 ONCA 0642

Elbasiouni v Brampton (City), 2020 ONCA 0628

Keywords: Wills and Estates, Substitute Decisions, Guardian of Property, Civil Procedure, Adjournments

Provincial Offences and Criminal Decisions

R v Nguyen, 2020 ONCA 609

Keywords: Provincial Offences, Constitutional Law ,Procedural and Natural Justice, Right to Trial Within a Reasonable Time, Delay, Presumptive Ceiling, Uniform Ceiling, Evidence ,Onus of Proof, Obligation to Take Steps to Expedite Trial, Charter of Rights and Freedoms, s.11(b), Highway Traffic Act, R v Jordan, 2016 SCC 27, R v KJM, 2019 SCC 55

R v Hosannah, 2020 ONCA 617

Keywords: Manslaughter, Failure to Provide Necessities of Life, Criminal Procedure, Appeals, Fresh Evidence, Expert Medical Evidence, Admissibility, Cogency, Due Diligence, Criminal Code s. 683(1)(d), White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, R v Truscott, 2007 ONCA 575, R v Manasseri, 2016 ONCA 703


CIVIL DECISIONS

Becker v Toronto (City), 2020 ONCA 607

[Watt, Trotter and Zarnett JJ A]

Counsel:

Rebecca L. Bush and Ruby Egit, for the appellant

Jason F Katz and Ari Singer , for the respondent

Keywords: Torts, Negligence, Occupiers’ Liability, Duty Of Care, Standard Of Care, Civil Procedure, Procedural Fairness, New Issues on Appeal, Occupiers’ Liability Act, RSO 1990, c. O2, s. 3(1), 1990 Ontario Building Code, O. Reg 413/90, The Queen (Can) v Saskatchewan Wheat Pool, [1983] 1 SCR 205, Union Building Corporation of Canada v Markham Woodmills Development Inc, 2018 ONCA 401, Shaver Hospital for Chest Diseases v Slesar (1979), 27 OR (3d) 383 (CA), leave to appeal refused, [1981] 1 SCR xiii, Cotic v Gray, [1983] 2 SCR 2

facts:

The appellant, the City of Toronto, appeals a judgment that found it liable to the respondent under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “OLA”). The respondent was injured when staff at a City-operated community centre shattered a piece of glass that struck the respondent.

The trial judge found the City breached its duty of care as an occupier of the community centre, since the glass was not the type of safety glass required by the 1990 Ontario Building Code, O. Reg 413/90, which was in place at the time of the accident. The trial judge also found the other elements of negligence to be satisfied on the facts.

On this appeal the City argued that the trial judge erred by treating the simple absence of the prescribed safety glass as sufficient to support the conclusion that it breached its duty of care under the OLA. The City argued that since the OLA imposes a standard of reasonable care, as opposed to a strict liability standard, it could be saved from liability if it demonstrated reasonable efforts were made to install the proper safety glass, even if it ultimately was not installed. Further, the City argued that the trial judge was required at law to consider the matter from that perspective, notwithstanding the fact that there was little to no evidence in the record that this theory was ever expressly articulated at trial.

issues: 

(1) Did the trial judge’s characterization of the issue of whether the duty of care was breached reflect the way the case was put by the parties?

(2) Was the trial judge’s characterization of the issue legally sufficient in the sense that it would be a proper legal basis to analyze whether the City had breached its duty of care under s. 3(1) of the OLA?

(3) Was the trial judge required to consider questions concerning whether the City breached the duty of care beyond those put by the parties and reflected in the theories they advanced at trial?

holding: 

Appeal dismissed.

reasoning: 

(1) Yes. The Court reviewed the theories advanced by both parties and concluded that the trial judge accurately characterized the issue in light of those theories. The Court particularly pointed out three instances where the issues put before the trial judge accurately supported the trial judge’s characterization of the issue. First, in the City’s opening statement, there was no reference to any requirement that the trial judge also determine whether the City had taken reasonable, albeit unsuccessful, attempts to try to have the safety glass installed. Second, the Court noted that the expert evidence called by both parties spoke only to whether or not the prescribed safety glass was, in fact, installed. No expert opinion was given as to the reasonableness of efforts to have the safety glass installed. Third, in its closing submissions, the City once again framed the issue as a one-dimensional determination of whether or not the requisite glass was actually installed.

The City also argued that some of the evidence led at trial should have prompted the trial judge to consider this additional question. In rejecting this submission, the Court reiterated the purpose of opening and closing statements, which is provide the trial judge with the lens through which to evaluate the evidence. Even if the evidence could support this additional theory, the onus still rests on the party to expressly raise and articulate the theory.

(2) Yes. The Court affirmed that s. 3(1) of the OLA does impose a standard of reasonable care, as opposed to one of strict liability. However, the Court rejected the City’s submission that this required the trial judge to also consider whether it took reasonable care to have the required glass installed. In this case, the trial judge determined whether the City’s premises had the type of glass required by the Building Code, addressed what the City did or failed to do, and whether that conduct fell below a required standard. Nowhere in this chain of analysis was a strict liability approach used.

The Court went further, adding that although the breach of a statute is not per se negligence, statutory standards are often used to inform a standard of reasonable conduct. This principle was articulated by the Supreme Court in The Queen (Can) v Saskatchewan Wheat Pool, [1983] 1 SCR 205. Therefore, the Court found that there was no basis to argue that the trial judge did not properly understand the standard of reasonable care required under s. 3(1) of the OLA.

(3) No. The City argued that even if it did not expressly advance its alternative theory at trial, it also never expressly abandoned it. The Court rejected this submission. First and foremost, it runs contrary to the well-established principle of procedural fairnes that a trial judge errs when deciding a case on a basis not advanced by the parties, as opposed to failing to decide issues that were not raised (Union Building Corporation of Canada v Markham Woodmills Development Inc, 2018 ONCA 401).

There was also ample authority that contradicted the City’s argument that a position remains on the table so long as it was pleaded and not formally abandoned. For example, in Shaver Hospital for Chest Diseases v Slesar (1979), 27 OR (3d) 383 (CA), leave to appeal refused, [1981] 1 SCR xiii, the Court found that it would be unfair to permit the defendant to resurrect an argument virtually abandoned at trial. There was also further authority for the proposition that the parties may put the matter to the trial judge in a way that implicitly takes a defence off the table (Cotic v Gray, [1983] 2 SCR 2).

The Court concluded that the trial judge was not obliged to consider the issue from any other perspective apart from the ones expressly put to her by the parties at trial. In an interesting footnote, however, the Court did mention that nothing in its reasons should be taken as a comment on the sufficiency of the evidence of reasonable care in trying to have the required glass installed.


Belton v Spencer, 2020 ONCA 623

[Brown JA (Motions Judge)]

Counsel:

T J McCarthy and O Guillaume, for the moving party

A Rouben, L Hiilyer and J Page, for the responding party

Keywords: Torts, Negligence, Personal Injury, Civil Procedure, Appeals, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Civil Jury Trials, Striking Jury Notice, COVID-19, Rules of Civil Procedure, Rules 22.03 & 63.02(1)(b), RJR-MacDonaldInc. v Canada (Attorney General), [1994] 1 SCR 311, Circuit World Corp v Lesperance (1997), 33 OR (3d) 674 (CA), BTR Global Opportunity Trading Limited v RBC Dexia Investor Services Trust, 2011 ONCA 0620, Cowles v Balac (2006), 83 OR (3d) 660 (CA), leave to appeal refused, [2006] SCCA No, 496, Kostopoulos v Jesshope (1985), 50 OR (2d) 54 (CA), leave to appeal refused, [1985] SCCA No 93, Fontaine v Attonrey General of Canada, 2020 CanLII 64770 (Ont. CA), Ball v Donais (1993), 13 OR (3d) 322, Thomsan v Alberta (Transportation and Safety Board), 2003 ABCA 322

facts:

The appellant/moving party is the defendant in a personal injury case dating back to 2010. In 2012, the action was commenced and both parties requested a trial by jury. The action was set down for trial in 2017 with the trial to commence in November 2018. For various reasons, the trial was delayed several times and ultimately ended up being scheduled for the long trial sittings in October, 2020. However, in March of 2020, the COVID-19 pandemic hit Ontario and the Superior Court of Justice restricted its scope of operations.

In June 2020, the parties were advised that it was unlikely jury trials would take place for at least another 12-18 months. The responding party, the plaintiff to the main action, moved to strike out the jury notices. In early September, just over a month before the trial was scheduled to begin, the motion judge granted the order sought (the “Order”) and struck out the jury notice. One week later, the appellant filed a notice of appeal with the Court of Appeal and the respondent filed a notice of motion to quash the appeal because the Order was interlocutory in nature and so an appeal would lie to the Divisional Court, with leave.

On September 22, 2020 the appellant served a notice of motion under Rule 22.03 to state a case before the Court of Appeal and two days later served a notice of motion seeking to stay the Order. The motion to quash and the motion to state a case were not to be heard until November 2020, but the trial was scheduled to begin October 5, 2020.

The appellant sought an order staying the Order and staying the action and adjourning the trial until a date in 2021 so that the appeal process relating to the Order can be completed.

issue: 

Should the Order striking the jury notices be stayed?

holding: 

Appeal dismissed.

reasoning: 

No. The governing test for whether to grant an order under Rule 63.02 (1)(b) staying an order pending appeal is the familiar test set out in RJR-MacDonald Inc. v Canada (Attorney General): (1) is there a serious question to be determined on the appeal; (2) will the moving party suffer irreparable harm if the stay is not granted; and (3) does the balance of convenience favour granting the stay? No question is determinative, the factors are interrelated and help answer the overriding question of “whether the moving party has shown that it is in the interests of justice to grant a stay” (BTR Global Opportunity).

Serious Question

The moving party submitted that the motion judge erred by permanently depriving her of her substantive right to a trial by jury with little to no time remaining before the trial. She further submitted that the motion judge failed to recognize the importance of her substantive right to have a trial by jury by failing to properly balance that right with a proportionate concern for trial delay and the lack of prejudice to the respondent.

The Court of Appeal found these submissions unpersuasive, even in the face of the very low bar on this element of the test for a stay. The right to a trial by jury in the civil context is limited and qualified. A party’s right to trial by jury is subject to the power of the court to order the action to proceed without a jury. The judge hearing a motion to strike a jury notice has broad discretion to decide whether the interests of justice are better served with or without a jury and so long as the discretion is not exercised arbitrarily or capriciously, and is not based upon a wrong or inapplicable principle of law, appellate intervention is not justified. The Court of Appeal found that the motion judge considered the relevant and correct factors when deciding the motion and saw no error, nor was the decision arbitrary or capricious.

The Court also addressed the question of jurisdiction at this stage. The Court recognized that orders striking a jury notice have been held to be interlocutory orders by a long and well established line of cases, thus the proper route of appeal was probably to the Divisional Court. The court emphasized that while the right to a jury trial is a substantive right, it is not a substantive right which could be determinative of the entire action and so it is probably an interlocutory matter.

In this case, the weak merits of the question to be determined on appeal and the fact that the Court likely had no jurisdiction because the Order is probably interlocutory militated against granting the stay.

Irreparable Harm

The irreparable harm stage of the analysis focuses on the harm the moving party may suffer if the stay is not granted. Irreparable, in this sense, refers to the nature of the harm suffered rather than its magnitude. The moving party raised three grounds upon which she said she would suffer irreparable harm.

The first was that being denied their right to a jury trial constituted irreparable harm. However, since this right is not absolute, the court was not convinced.

The second ground raised was that if the stay was not granted and the trial proceeded as scheduled, the appeal would become moot. While rendering an appeal moot can constitute irreparable harm, it did not in this case. The Court found that the appellant’s decision to incorrectly bring the appeal to the Court of Appeal rather than to the Divisional Court was not an error, but was in fact a tactical decision. The appellant took a calculated risk and the Court of Appeal held that it was not open to the appellant to argue that the mootness of her improperly constituted appeal amounted to irreparable harm.

The final ground raised was that allowing the trial to proceed would be a waste of judicial resources if the subsequent appeal is ultimately determined in the appellants favour. The Court found this submission to be speculative and remote. There was therefore no irreparable harm.

Balance of Convenience

The balance of convenience component requires considering which party will suffer the greater harm from the granting or refusal of the stay. The appellant submitted that the balance of convenience favoured upholding the original wishes of both parties. However, this submission ignored the intervening event that was COVID-19. The fact that COVID-19 was necessitating a further 12-18 month delay, on top of an already decade-long process amounted to an unconscionable delay in the eyes of the Court. The balance of convenience therefore weighed overwhelmingly in favor of the respondent.

The appellant also submitted that the stay should be granted so that the Court of Appeal could establish a province-wide approach to such decisions in light of COVID-19. The court rejected this submission for three reasons: i) the focus of an appeal is on the rights of the parties to that appeal, not the province as a whole; ii) the pandemic evolves so rapidly that the time required to hear an appeal and develop an approach would likely render the plan inaccurate; and iii) the resources available to each region of the province are vastly different and so developing a uniform approach is impractical.

Overall, all three factors of the RJR-MacDonald test weighed against the appellant. The appellant did not establish a serious issue to be heard on appeal, did not establish that irreparable harm would be suffered and the balance of convenience was in favour of the respondent. The motion for a stay of the Order was dismissed.


Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612

[Strathy CJO, MacPherson, Pardu, Huscroft and Jamal JJ A]

Counsel:

CA Dirks, R Davis and R Fielding, for the moving party

A Sternberg, E Hives and P Anisman, for the responding parties

Keywords: Real Property, Condominiums, Civil Procedure, Arbitration Agreements, Appeals, Jurisdiction, Stare Decisis, Arbitration Act, 1991, SO 1991, c .17, s. 7, Condominium Act, 1998, SO 1998, c. 19, s. 135, TELUS Communications Inc v Wellman, 2019 SCC 19, Griffin v Dell Canada Inc., 2010 ONCA 29, Huras v Primerica Financial Services Ltd (2000), 137 OAC 79 (CA), Fernandes v Araujo, 2015 ONCA 571, David Polowin Real Estate Ltd v Dominion of Canada General Insurance Co (2005), 76 OR (3d) 161 (CA), Uber Technologies Inc v Heller, 2020 SCC 16, National Westminster Bank PLC v Spectrum Plus Limited, [2005] UKHL 41

facts:

This motion and appeal arise out of litigation concerning amounts owing under a cost-sharing agreement for the costs of common facilities in two adjoining condominium projects. The cost-sharing agreement contained a standard mediation/arbitration clause. The parties attempted to mediate the dispute, but when mediation failed, the moving party refused to arbitrate and began an application in the Superior Court of Justice. The responding parties responded by moving before the Superior Court to stay the court application in favour of arbitration. The motion judge dismissed the motion and ruled that the entire matter should proceed in the form of an application before the court.

The motion judge accepted that some of the claims were arbitrable, and that none of the exceptions in s. 7(2) of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”) to the mandatory stay under s. 7(1) were applicable. However, the motion judge went on to add that some of the remedies that the moving party’s application sought were not available through arbitration, including remedies for oppression under s. 135 of the Condominium Act, 1998, S.O. 1998, c. 19, and that bifurcating the arbitrable and non-arbitrable claims would be inappropriate in the circumstances.

Weeks after the motion judge’s decision, the Supreme Court of Canada released its decision in TELUS Communications Inc v Wellman, 2019 SCC 19. In Wellman, the Supreme Court held that s. 7(5) of the Act does not grant a court discretion to refuse to stay claims that are dealt with in an arbitration agreement. Section 7(5) simply provides courts with the discretion to allow proceedings with respect to matters not dealt in the arbitration agreement to continue. However, matters that do fall within the scope of the arbitration agreement must be stayed. Wellman overturned the Ontario Court of Appeal’s erroneous interpretation of s. 7(5) in Griffin v. Dell Canada Inc., 2010 ONCA 29, which construed s. 7(5) as granting a motion judge the discretion to refuse to stay claims dealt with in an arbitration agreement.

Justice Moldaver, writing for the majority of the Supreme Court in Wellman, reasoned that this interpretation reflects the purpose and scheme of the Act as a whole, which can be broken down into two principles. First, the parties should be afforded the autonomy to craft their own dispute resolution mechanisms through agreement. Second, that there should be limited court intervention in arbitration matters.

The responding parties to this motion then appealed the motion judge’s decision to the Court of Appeal, relying in part on Wellman.

However, the moving party here moved to quash the appeal. The moving party claimed that the Court of Appeal lacked jurisdiction because the appeal was barred by s. 7(6) of the Act, and that given the reasoning in Wellman, the Court should overturn the Huras v Primerica Financial Services Ltd (2000), 137 OAC 79 (CA) line of cases.

issues: 

(1) Did the Supreme Court in Wellman overrule the Huras line of cases on the interpretation of s. 7(6) of the Arbitration Act?

(2) Should the Huras line of cases be overruled?

(3) Does s. 7(6) of the Arbitration Act bar this appeal?

holding: 

Motion dismissed.

reasoning: 

(1) No. Section 7(6) simply provides that there is no appeal from a court’s decision. As mentioned above, Wellman was concerned primarily with the application of s. 7(5) of the Act, and only mentioned s. 7(6) in obiter. Justice Moldaver applied the principles of statutory interpretation and concluded that the absence of any qualifying language in s. 7(6) must be taken as referring to a “decision” made under any other subsection contained in s. 7. This would include, for example, a decision to refuse a stay under s. 7(2), or a decision to order a partial stay under s. 7(5).

In Huras, on the other hand, the Court of Appeal held that a motion judge’s decision that a matter is not subject to arbitration under an arbitration agreement is a decision outside the scope of s. 7, and thus an appeal from that decision is not barred by s. 7(6). In other words, if the court determines that the Act is not applicable, then then prohibition against an appeal in s. 7(6) is equally not applicable. The collective review of the Huras line of cases shows that courts have held that s. 7(6) does not bar an appeal when: (i) there is no arbitration agreement or no applicable arbitration agreement; (ii) the dispute lies beyond the scope of s. 7; (iii) the Act does not apply; and (iv) the motion judge did not make a decision under s. 7.

The latter instance proves reconcilable with Justice Moldaver’s reasoning in Wellman. Further, the second time Justice Moldaver mentioned s. 7(6) in Wellman was at the conclusion of his reasons, at para 104. There, he noted that due to the brief oral arguments made on s. 7(6) before the Court, and in the absence of full submissions, it would be inappropriate to make a final ruling on the matter. Accordingly, the Court of Appeal concluded that Wellman did not overrule the Huras line of cases.

(2) No. The Court began its reasons on this issue by stating the general rule that a court is bound to follow its past decisions, citing Justice Sharpe in Fernandes v. Araujo, 2015 ONCA 571. Expanding on this general rule, the Court noted that it may overrule one of its own decisions in limited circumstances. First, the Court must ask whether the earlier decision was correctly decided. If it is determined that the earlier decision was wrongly decided, the Court must then ask whether the decision should be overruled, based on weighing the advantages and disadvantages of correcting the error, taking into consideration the factors mentioned in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 OR (3d) 161 (C.A.), at paras. 107, 127.

In the view of the Court, the interpretation of s. 7(6) in the Huras line of cases is consistent with both Justice Moldaver’s comments in Wellman, as well as the Supreme Court’s recent decision in Uber Technologies Inc. v. Heller, 2020 SCC 16. Once again, this interpretation of s. 7(6) respects not only the principles of statutory interpretation, but also the purpose and scheme of the Act itself, as evidenced by the two principles mentioned above. The conclusion that the decision was in fact correct precluded any necessity to continue the analysis.

(3) No. After clarifying the principle in Huras vis-à-vis Wellman, the Court boiled this issue down to whether the motion judge made a decision under s. 7 of the Act. If so, then s. 7(6) bars the appeal. Once again, the motion judge refused to grant a stay of any part of the court proceeding, including the claims that were conceded as arbitrable. The Court found that the motion judge was under the mistaken impression that he had the statutory authority to make this order due to the erroneous interpretation of s. 7(5) in Griffin. Given the recent overruling of Griffin by Wellman, such a disposition is unavailable under s. 7. The motion judge’s decision was thus not made under s. 7, because it could not be made under s. 7.

The support for this conclusion was grounded in the UK decision of National Westminster Bank plc v. Spectrum Plus Limited, [2005] UKHL 41. There, the House of Lords found that a court correcting an erroneous judicial interpretation of legislation does not change the law or overrule a previous decision with prospective effect only. Rather, the court gives effect to the legislature’s intention from the date of the enactment of the legislation. This proposition had previously been cited by the Court of Appeal in Ontario (Finance) v Progressive Casualty Insurance Company of Canada, 2009 ONCA 258.

In sum, then, the disposition made by the motion judge was unavailable and has always been unavailable. The fact that it was made with the support of what was thought to be good law at the time is of no consequence. The overruling of Griffin in Wellman does not simply apply to decisions moving forward. Instead, the interpretation of s. 7 of the Act must give effect to Parliament’s original intention from the day of its enactment. Those intentions, in the view of both the Supreme Court and the Court of Appeal, are clear. First, parties must be given the autonomy to arbitrate their disputes as per agreements that were voluntarily executed. Second, there should be minimal court intervention in the arbitration process. Therefore, since the decision was not made under the authority of s. 7 of the Act, this appeal was consequently not barred by s. 7(6) of the Act. The Court therefore refused to quash the appeal.


Groves v UTS Consultants Inc, 2020 ONCA 630

[Juriansz, Hourigan and Thorburn JJ A]

Counsel:

C M Dockendorff and D Di Sauro, for the appellant

K Karimjee and M Imai, for the respondent

Keywords: Contracts, Interpretation, Sale of Business, Employment, Wrongful Dismissal, Reasonable Notice Period, Damages, Bonuses, Employment Standards Act, SO 2000 c 41, Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, Wood v Deeley, 2017 ONCA 158, Payette v Guay Inc, 2013 SCC 45, Cosentino v Sherwood Dash Inc, 2014 ONCA 843, Kerzner v American Iron & Metal Company Inc, 2018 ONCA 989, Paquette v TeraGo Networks Inc, 2016 ONCA 618

facts:

The respondent had a commercial agreement to sell the shares of 1223099 Ontario Limited (“122”) to the appellant, UTS Consultants Inc. (“UTS”). Under the terms of the sale, the respondent signed a resignation stating that he resigned as an officer and director of 122. The respondent also executed a release in connection with the transaction and entered into an employment agreement with UTS. He was later terminated without cause. The respondent then commenced an action for wrongful dismissal and brought a motion for summary judgement in that action. UTS brought a cross-motion for summary judgement. In granting the respondent’s summary judgement motion, the motion judge found that he resigned as an officer and director of 122, but never resigned as an employee. She further found that both the termination provision in the employment contract and the release were void because they breached the Employment Standards Act (ESA). The motion judge concluded that a reasonable notice period was 24 months and the respondent was entitled to damages, including bonus pay, which was an integral part of his compensation. UTS appealed.

issues: 

Did the motion judge err:

(1) By failing to interpret the resignation, release, and employment contract in the context of the share sale;

(2) In finding that the respondent had not resigned as an employee of 122;

(3) In her interpretation of the release;

(4) In her conclusion that a reasonable notice period was 24 months; and

(5) In including bonus payments as part of the respondent’s entitlements throughout the notice period?

holding: 

Appeal dismissed.

reasoning: 

Standard of Review

The Court first considered the applicable standard of review. The appellant sought to have the Court review the alleged errors on a correctness standard. The Court, following Sattva, concluded that the issues of contractual interpretation of non-standard form contracts are generally questions of mixed fact and law and are reviewable on the standard of palpable and overriding error.

(1) Did the motion judge err by failing to interpret the resignation, release, and employment contract in the context of the share sale?

No, the Court did not find the appellant’s argument persuasive. The Court held that the motion judge’s reasons made clear that she repeatedly averted to the share transaction and took into account the factual matrix in her analysis. The appellant tried to argue that in the context of a commercial contract, the ESA provisions did not apply. The Court disagreed, stating that there was nothing in the ESA that indicated that it was inapplicable in employment relationships connected to commercial transactions.

(2) Did the motion judge err in finding that the respondent had not resigned as an employee of 122?

No. The Court held that the motion judge’s finding that the respondent did not resign was well rooted in the evidence. The Court also found no error in the motion judge’s finding that Cosentino v. Sherwood Dash Inc was distinguishable on the basis that, in that case, the share purchase agreement contemplated continued employment only if requested by the purchaser and then only for one month.

(3) Did the motion judge err in her interpretation of the release?

No. The appellant’s initial argument was that the parties intended for the respondent to waive all of his claims arising from his termination under the release. At the Court of Appeal, the appellant changed its position on this issue and asserted that the release was intended to waive common law claims only. The Court left aside the issue of the inconsistency in the appellant’s position and found this ground of appeal to be fully answered by the motion judge. The Court found no basis for appellate interference as this was a finding of mixed fact and law open to the motion judge.

(4) Did the motion judge err in her conclusion that a reasonable notice period was 24 months?

No. Given the Court’s conclusions on the other grounds of appeal, the respondent was not limited to notice based only on his post-sale employment period. The Court found no error in the motion judge’s conclusions that the respondent was entitled to a notice period of 24 months.

(5) Did the motion judge err in including bonus payments as part of the respondent’s entitlements throughout the notice period?

No. The motion judge awarded the respondent damages for a pro rata bonus by finding that the respondent had a common law entitlement to a bonus, and then concluded that nothing in the bonus plan removed that common law entitlement. The appellant argued that there was no evidence that the parties entered into a bonus plan after 2015. The Court disagreed, based on the evidence to support the motion judge’s finding that the bonus plan continued beyond 2015.


Walters v Nusseiri, 2020 ONCA 615

[Pepall, Benotto and Coroza JJ A]

Counsel:

H A Swartz, for the appellant

S Jagpal, for the respondent

Keywords: Family Law, Property, Family Residence, Joint Tenancy, Presumption of Resulting Trust, Presumption of Advancement, Family Law Act, RSO 1990, c. F.3, s. 14, Kerr v Baranow, 2011 SCC 10, Pecore v Pecore, 2007 SCC 17

facts:

The appellant and the respondent were involved in a relationship. They met in 2001 and never married. The nature of the relationship was in dispute. The appellant claimed he was a committed common law spouse who contributed financially to the initial purchase of a residential property in Brampton, ON (“Property”) and to the carrying costs of the mortgage, property tax and utilities during the time that he lived there.

The respondent purchased the Property in her name alone in July, 2005. Title was then transferred to both parties as joint tenants two months later in September, 2005. The Property was the appellant’s principal residence from 2005 until 2009, when the parties ended their relationship and the appellant moved out. The Property was then sold in 2016. When the Property was sold, the respondent received half of the proceeds of the sale. A dispute arose over the entitlement to the other half of the proceeds, an amount of $169,774.01.

The trial judge dismissed the appellant’s claim and concluded that his half interest in the Property was held in trust for the respondent’s benefit. She granted the respondent’s counterclaim and ordered that the other half of the proceeds of sale be released to her immediately. The appellant made no contribution to the initial purchase of the Property in July 2005 and that the respondent’s transfer of 50 percent of her ownership interest to the appellant gave rise to a presumptive resulting trust. There was no basis to impose a constructive trust in the appellant’s favour, because his work on the Property did not unjustly enrich the respondent.

issues: 

(1) Did the trial judge err by misapprehending the principles of resulting trust and the presumption of advancement?

(2) Did the trial judge err in making various factual findings which resulted in the appellant not being entitled to any of the proceeds of sale?

holding: 

Appeal dismissed.

reasoning: 

(1) No. The trial judge did not misapprehend the presumption of resulting trust and the presumption of advancement. Her reasons carefully tracked the jurisprudence on the presumptions of resulting trust and advancement from the Supreme Court of Canada: Kerr v. Baranow, 2011 SCC 10, at para. 20; Pecore v. Pecore, 2007 SCC 17 at para. 24. She correctly concluded that the presumption of resulting trust applied to these unmarried parties because there was a gratuitous property conveyance between them. The trial judge also examined s. 14 of the Family Law Act, R.S.O. 1990, c.F.3, and held that the presumption of joint tenancy did not apply. The parties were never married nor were they spouses within the meaning of the Act.

(2) No. The trial judge was perfectly entitled to prefer the respondent’s evidence over the evidence of the appellant. Further, the trial judge did not ignore the appellant’s evidence that he had contributed to the down payment of the Property. She considered the appellant’s claim and expressly rejected it. She did not ignore the evidence from the solicitor who handled the real estate transactions of the Property in 2005. The fact that the solicitor was told by one of the parties that they were common law spouses was an out-of-court hearsay statement, and not proof that they were indeed spouses. The trial judge did not ignore the appellant’s evidence that he made financial contributions to the mortgage on the Property until he moved out in 2009. This evidence was expressly rejected because she found the appellant had no employment income throughout the entire relationship and that the appellant lived solely from the earnings of the respondent. Finally, the trial judge did not ignore the evidence of the appellant and his father that they made numerous improvements to the Property. There was insufficient evidence to establish that the appellant enhanced the value of the Property through contribution of exterior stone work, refinishing a deck, replacing a closet door, putting up walls in the basement and building a fireplace in the living room. All the work had to be redone after the appellant moved out in 2009.


SHORT CIVIL DECISIONS

Lone Oak Properties Ltd v Baillie, 2020 ONCA 614

[Pepall, Benotto and Coroza JJ A]

Counsel:

M L Kropp and K J Peacocke, for the appellant
M J R Chapman, for the respondents

Keywords:Civil Procedure, Appeals, Offer to Settle, Costs, Partial Indemnity Costs, Substantial Indemnity Costs, Rules of Civil Procedure, Rule 49.10(7), Borowski v. Canada, [1989] 1 SCR 342, Groh v. Steele, 2017 ONSC 4925

1947755 Ontario Ltd v Caruso, 2020 ONCA 0616

[Juriansz, Hourigan and Thorburn JJ A]

Counsel:

A Jarvis, for the moving party

D LaFramboise, for the responding party

Keywords: Civil Procedure, Default Judgments, Setting Aside, Appeals, Motion to Quash, Failure to Comply with an Order, Jurisdiction, Interlocutory vs Final Order, Jurisdiction for Appeal of Interlocutory Order, Inforica Inc. v CGI Information Systems and Management Consultants Inc., 2020 ONCA 0642

Elbasiouni v Brampton (City), 2020 ONCA 0628

[Fairburn ACJO, Miller and Zarnett JJ A]

Counsel:

C A Painter, for the respondent, The Corporation of the City of Brampton in C65017

B H Kussner, for the respondent, The Corporation of the City of Brampton in C67932

Keywords: Wills and Estates, Substitute Decisions, Guardian of Property, Civil Procedure, Adjournments


PROVINCIAL OFFENCES AND CRIMINAL DECISIONS

R v Nguyen, 2020 ONCA 609

[Strathy CJO, Gillese and Watt JJ A]

Counsel:

T D Tutunjian, for the appellants

C G Bendick, for the respondent Her Majesty the Queen ex rel. the Regional Municipality of York

Keywords: Provincial Offences, Constitutional Law, Procedural and Natural Justice, Right to Trial Within a Reasonable Time, Delay, Presumptive Ceiling, Uniform Ceiling, Evidence ,Onus of Proof, Obligation to Take Steps to Expedite Trial,  Charter of Rights and Freedoms, s.11(b), Highway Traffic Act, R v Jordan, 2016 SCC 27, R v KJM, 2019 SCC 55

R v Hosannah, 2020 ONCA 617

[Simmons, Watt and Roberts JJ A]

Counsel:

J Lockyear, for the appellant S H

J Gemmell, for the appellant M H

J Klukach, for the respondent

Keywords: Manslaughter, Failure to Provide Necessities of Life, Criminal Procedure, Appeals, Fresh Evidence, Expert Medical Evidence, Admissibility, Cogency, Due Diligence, Criminal Code s. 683(1)(d), White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Truscott, 2007 ONCA 575, R. v. Manasseri, 2016 ONCA 703

facts:

Six years ago, a jury found the appellants guilty of the unlawful act of manslaughter arising from the death of their 27-month-old daughter. The child had suddenly stopped breathing and died in her mother’s arms. The unlawful act alleged was failure to provide the necessaries of life from their daughter’s birth until her death. The appellants were sentenced to terms of imprisonment and each subsequently appealed their conviction and sentence.

At the appellant’s joint trial, the Crown presented arguments on two discrete bases of liability:

(i) that they failed to provide her with adequate food and/or a balanced diet of protein and vitamins; and

(ii) that they failed to provide her with medical attention by failing to follow up on a referral to a pediatrician 11 months before her death.

At trial, Dr. Pollanen, the examining forensic pathologist who had completed the post-mortem, testified that the deceased died of a combination of asthma and malnutrition. An asthma attack caused low blood oxygen levels. Her protein malnutrition and vitamin deficiencies caused a failure of blood circulation and a failure to oxygenate the brain. Dr. Pollanen could not separate the asthma attack and the malnutrition causally and stated the combination led to her death.

Dr. Zlotkin, a pediatric nutritionist, also testified at trial. He agreed with Dr. Pollanen’s conclusion that when she died, the deceased suffered from severe malnutrition, combined with Vitamin D deficiency rickets, megaloblastic anemia and protein malnutrition. The anemia was attributable to Vitamin B12 deficiency, a rarity among children. Dr. Zlotkin also agreed with Dr. Pollanen’s conclusion of protein malnutrition.

The Crown also argued the deceased’s death resulted from a lack of medical attention. Specifically, the Crown alleged that the appellants failed to take the deceased to an appointment with a pediatrician recommended by a doctor who had seen the child at a walk-in-clinic.

The trial judge presented both these bases of liability to the jury. He also included the offence of failure to provide the necessaries of life for the jury’s consideration.

Following the convictions, counsel for the appellants secured reports from two medical experts regarding the “protein malnutrition/asthma basis of liability.” They sought to introduce these reports as fresh evidence on the appeal from conviction. Neither expert had been cross-examined by the time of this appeal.

Dr. Shkrum disagreed with Dr. Pollanen’s opinion about the cause of death. He opined that the deceased died of heart failure due to megaloblastic anemia and Vitamin D deficiency rickets, which is associated with sudden unexpected deaths in children. He also disagreed that the child died from complications of an asthma attack. Finally, Dr. Shkrum found no compelling evidence that the deceased suffered from protein malnutrition as was described by Drs. Pollanen and Zlotkin. In response to Dr. Shkrum’s report, Dr. Pollanen amended his opinion. He no longer believed the child died due to an acute asthma attack, and instead attributed her death to malnutrition.

Dr. Miller also concluded that the deceased had severe Vitamin D deficiency rickets, and stated that this systemic disease affects bones, the heart, muscles and immune system. Dr. Miller opined that Dr. Pollanen underestimated the potential severity of this condition. He also opined that the child was at risk of sudden death from her serious protein malnutrition.

issue:

Can fresh evidence be introduced on appeal from conviction under s. 683(1) of the Criminal Code?

holding:

Appeal allowed.

reasoning:

Yes. Fresh or new evidence may be admitted on appeal if the panel of the appellate court considers it in the interest of justice to receive it. An essential aspect of “the interests of justice” is the reliability of the verdict rendered at trial. Therefore, fresh evidence may be tendered and admitted on appeal to challenge factual findings essential to the trial verdict.

The criteria which inform the exercise of an appellate court’s authority to receive fresh or new evidence in the interests of justice are admissibility, cogency, and due diligence.

Regarding admissibility, the proposed evidence consisted of opinions of duly qualified experts within their respective fields of expertise, and satisfied the requirements articulated by the Supreme Court in White Burgess Langille Inman v Abbott and Haliburton Co. As such, the Court agreed that the proposed evidence would have been admissible if tendered at trial.

To satisfy the cogency requirement, evidence must be relevant to a potentially decisive trial issue, be reasonably capable of belief, and sufficiently probative that it could reasonably be expected to have affected the result at trial. The charge of manslaughter required the Crown to prove beyond a reasonable doubt that the appellant’s unlawful act of failing to provide the necessaries of life was a substantial contributing cause of their daughter’s death. Thus, the Court found the proposed evidence was relevant to a decisive issue at trial – the cause of death and, by inference, whether her death originated in any unlawful conduct by the appellants.

Next, the Court found that opinion evidence tendered by well-qualified experts on issues within their respective fields of expertise, was reasonably capable of belief.

Finally, the Court found that the proposed evidence was also sufficiently probative that, when considered alongside the evidence adduced at trial, it could reasonably be expected to have affected the result. The new evidence undermined the diagnoses of protein malnutrition and complications during an asthma attack, critical components of Dr. Pollanen’s trial evidence, and also assigned more significance to the vitamin deficiencies as a contributing factor in the child’s death. The Court acknowledged a jury could have concluded a reasonable parent may not have realized their child’s diet lacked adequate vitamins D and B12.

With respect to due diligence, the Court was not persuaded that the failure to produce this evidence at trial warranted rejection of obviously cogent evidence when tendered for reception on appeal. The medical issues raised by the fresh evidence were complex. The Crown’s principal witness, Dr. Pollanen, had also modified the opinion he gave at trial about the cause of death. There was therefore no basis to reject this evidence.


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