Hello everyone,

There were a number of substantive civil law decisions released this week.  Blaney’s own Chris McClelland was successful for the respondents in Gill v CPNI Inc. where the Court of Appeal held that the respondents’ employment contracts did not authorize deductions from wages imposed by their former employer.  Congratulations to Chris on the successful result!

Other topics include the Children’s Aid Society’s statutory duty under the Child and Family Services Act, the interpretation of a title insurance policy, a wrongful dismissal in the context of a securities dispute, a real estate and gift case involving a dowry and an environmental contamination dispute, among others.

Wishing everyone an enjoyable weekend.

Varoujan Arman

Blaney McMurtry LLP
VArman@blaney.com
Tel: 416.596.2884
http://www.blaney.com/lawyers/varoujan-arman

Table of Contents

Roffey v. Hunter Corporation, 2015 ONCA 824 (click on the case name to read the summary)

Keywords: Striking of Pleadings, Late filing of Materials, Failure to Satisfy Undertakings, Cure Default

Ang v. Premium Staffing Ltd., 2015 ONCA 821 (click on the case name to read the summary)

Keywords: Oral Contract, Employment Contract, Fraudulent Contract, Temporary Foreign Workers, Equitable Set-Off, Holt v. Telford Test, Motion to Strike Pleading, Rule 21.01(b)

Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828 (click on the case name to read the summary)

Keywords: Notice of Appeal, Merits of Appeal, Motion to Extend Time, Rules of Civil Procedure, 3.02(1), Howard v. Martin, Violation of Court Orders, Abuse of Process

Hoang v. Mann Engineering Ltd., 2015 ONCA 838 (click on the case name to read the summary)

Keywords: Wrongful Dismissal, Breach of Contract, Withheld Sales Commission, Employment Standards Act, 2000, Post-Hearing Submissions, Re-hearing Appeal, Motion in Writing, Rules of Civil Procedure rules 37.12.1(1), 59.06(2) & 2.1.02(1)-(3)

McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830 (click on the case name to read the summary)

Keywords: Damages, Authorized Users of Marijuana, Ejected from Premises, Frivolous Claims, No Reasonable Cause of Action, Abuse of Process, Rule 21 Rules of Civil Procedure

Abdollahpour v. Banifatemi, 2015 ONCA 834 (click on the case name to read the summary)

Keywords: Estate Law, Real Property, Deed of Gift, Revocation, Marriage Contract, Dowry, McNamee v McNamee, Summary Judgment, Evidence, Fresh Evidence, Statute of Frauds, ss. 1(1), s. 4, Appeal Dismissed

Gill v CPNI Inc., 2015 ONCA 833 (click on the case name to read the summary)

Keywords:   Employment Law, Summary Judgment, Employment Standards Act, S. 13, Authorization to Deduct from Wages, Stay, Counterclaim, Return of Employer Property

AB2000 Software Corporation v. Infinium Capital Corporation, 2015 ONCA 829 (click on the case name to read the summary)

Keywords: Securities, Trading, Competition, Wrongful Dismissal, Leave to Appeal Costs, Contract Interpretation, Costs, Rules of Civil Procedure, r.49, Appeal Allowed in Part

Children’s Aid Society of Toronto v. L.G., 2015 ONCA 840 (click on the case name to read the summary)

Keywords:  Family Law, Crown Wardship, Child and Family Services Act, S. 15(3)(c), S. 70, Children’s Aid Society

Partridge v. Botony Dental Corporation, 2015 ONCA 836 (click on the case name to read the summary)

Keywords: Employment Law, Wrongful Termination, Discrimination, Notice Period, Family Status, Costs, Ontario Human Rights Code, s.46.1(1), Bardal v. Globe and Mail Ltd, Appeal Dismissed

MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842 (click on the case name to read the summary)

Keywords: Contract Law, Real Estate, Motion for Summary Judgment, Title Insurance, Policy, Coverage, Indemnification, Interpretation, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp, Defect

Chowdhury v. Bangladeshi-Canadian Community Services, 2015 ONCA 844 (click on the case name to read the summary)

Keywords: Civil Litigation, Motion, Strike Out Pleading, Leave to Amend, Rule 21.01(1)(b), Rule 25.11(b)

Kadiri v. Southlake Regional Health Centre, 2015 ONCA 847 (click on the case name to read the summary)

Keywords:   Civil Litigation, Summary Judgment, Health Professions Appeal and Review Board, Jurisdiction, Public Hospitals Act, S. 41, Hospital Privileges

Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819 (click on the case name to read the summary)
[Feldman, Hourigan and Benotto JJ.A.]

Keywords:   Environmental Law, Negligence, Nuisance, Liability, Personal Liability, Toxic Real Estate, Contamination, Remediation Costs, “Corporate Veil”, Damages, Punitive Damages, Environmental Protection Act, s. 99(2), “Spills Bills”, Limitations Act, s. 17, Antrim Truck Centre Ltd v Ontario (Transportation), Mustapha v Culligan of Canada Ltd., Whiten v Pilot Insurance Co.

CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare Trust Co. of Canada, 2015 ONCA 846 (click on the case name to read the summary)

Keywords: Statutory Interpretation, Commercial Law, Jurisdiction, Appropriate Court  Mortgages, Priority, Land Titles Act, S. 24(1), Courts of Justice Act, S. 110

Mwanri v. Mwanri, 2015 ONCA 843 (click on the case name to read the summary)

Keywords: Family Law, Spousal Support, Child Support, Bankruptcy and Insolvency, Office of the Children’s Lawyer, Reasonable Apprehension of Bias, Bankruptcy and Insolvency Act, 168.1, Family Law Act, s.9(1)(b), Davis v. Crawford, Wewaykum Indian Band v. Canada, Appeal Allowed in Part

For a list of Civil Endorsements, click here

For a list Criminal Decisions, click here

 

Civil Decisions

Roffey v. Hunter Corporation, 2015 ONCA 824
[Strathy C.J.O., LaForme and Huscroft JJ.A.]

Counsel:
Michael Simaan, for the appellants, 1355394 Ontario Inc. and Richard K. Watson
D. Gordon Bent, for the respondents

Keywords: Striking of Pleadings, Late filing of Materials, Failure to Satisfy Undertakings, Cure Default

Facts:
The motion judge granted the respondent’s motion and struck the appellants’ defence.  The only reason the motion judge provided was that the material was not filed as directed by order of O’Connell J.

Issues:
The appellants made three submissions on appeal:

(1) The motion judge ought to have provided them with a chance to cure the default.

(2) The motion judge failed to consider the proportionality of the remedy and the merits of the defence.

(3) It was unreasonable to strike the defence because the response to undertakings was only 35 days late.

Holding: Appeal Dismissed.

Reasoning:
(1) The motion judge had no evidence before him to explain the appellants’ failure to satisfy undertakings.  On appeal they were still unable to explain what their argument would have been to the striking of the defence.

(2) The motion judge was in a position to consider the relief sought in the context of the entire litigation.  The court ruled that this context included lengthy delays, violation of court orders and conduct that could be regarded as obstructionist on the part of the appellants.

(3) The motion judge’s order to strike the defence was discretionary, and absent clear error, is entitled to significant deference on appeal.

Ang v. Premium Staffing Ltd., 2015 ONCA 821
[Strathy C.J.O., LaForme and Huscroft JJ.A.]

Counsel:
Glenn Yoon, for the appellant, Premium Staffing Ltd.
Thomas Mathews, for the respondents

Keywords: Oral Contract, Employment Contract, Fraudulent Contract, Temporary Foreign Workers, Equitable Set-Off, Holt v. Telford Test, Motion to Strike Pleading, Rule 21.01(b)

Facts:
The appellant, Premium Staffing Ltd., appealed from an order of the motion judge striking a defence of set-off from its statement of defence.  The respondents alleged they paid the appellants $580,000 pursuant to an oral contract in exchange for a guarantee of employment positions for temporary foreign workers, and that the employment contracts turned out to be fraudulent.  The appellant counterclaimed for $170,000 it alleged was owing on an oral contract with the respondent that made the respondent the exclusive supplier of candidates for temporary work permits.  The appellant also claimed set-off of $170,000 in its defence.  The motion judge struck the plea for set-off on the grounds that it was inappropriate.

Issues:
Did the motion judge err in her treatment of the claim for equitable set-off?

Holding: Appeal allowed.

Reasoning:
This was a proper claim for set-off based on the test in Holt v. Telford, [1987] 2 S.C.R. 193.  The motion judge set out the relevant principles governing equitable set-off:  1) The party relying on a set-off must show some equitable ground for being protected against his adversary’s demands;  2) The equitable ground must go to the very root of the plaintiff’s claim before a set-off will be allowed;  3) A cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim;  4) The plaintiff’s claim and the cross-claim need not arise out of the same contract; and  5) Unliquidated claims are on the same footing as liquidated claims. However, her decision did not address these principles specifically, and she reasoned that the claim would be better brought as a counterclaim.  Once set-off was pleaded it, was incumbent on the motion judge to address the Telford factors in order to make a decision on the motion and she failed to do so.  Although the appellant’s plea of set-off was relatively thin, the motion judge was required to read the statement of claim generously under Rule 21.01(b).

Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828
[Hourigan J.A. (In Chambers)]

Counsel:
Binh Thi Nguyen, acting in person
Catherine Korte and Matthew W. Malcolm, for the respondent Economical Mutual Insurance Company
Jacqueline Cole and Elder C. Marques, for the respondent Dr. Monte Bail

Keywords: Notice of Appeal, Merits of Appeal, Motion to Extend Time, Rules of Civil Procedure, 3.02(1), Howard v. Martin, Violation of Court Orders, Abuse of Process

Facts:
The appellant, Ms. Nguyen, commenced an action against the respondents, Economical and Dr. Bail, alleging they prepared an Insurer’s Assessor report that libelled her.  The parties were unable to agree to a discovery plan, and Ms. Nguyen brought an unsuccessful motion to impose one.  Justice Stinson largely accepted the discovery plan Dr. Bail proposed; Ms. Nguyen delivered a notice of appeal which was later abandoned.

Ms. Nguyem did not comply with Justice Stinson’s order and counsel for Economical and Dr. Bail advised they would bring a motion to stay/dismiss her action.  Ms. Nguyen refused to provide her availability and did not attend a subsequent case conference.  A timetable was ordered by Master Pope in her absence.

Ms. Nguyen then moved unsuccessfully before Justice Perell to vary or set aside Justice Stinson’s order.  The defendants were awarded costs of $2,000 each.  On the morning of the defendants’ motion to stay/dismiss the action, Ms. Nguyen advised that she would not attend because she “she had been legally advised” not to do so.  The motion proceeded and an order was made that her action would be dismissed unless she complied with Justice Stinson’s order and the $2,000 costs awards.

Ms. Nguyen then brought an emergency motion before Justice Corrick on July 15, 2015 to set aside Justice Stinson’s order.  She swore that she was in financial hardship.  A notice of examination was served upon her for a cross-examination on this claim, and Ms. Nguyen failed to attend.  Justice Corrick then dismissed the motion, finding that it was an abuse of process, and ordered Ms. Nguyen to pay costs of $3,000 to each defendant.

Dr. Bail’s counsel filed an affidavit confirming that Ms. Nguyen remained non-compliant with Justice Stinson’s order, and Justice Faieta dismissed the action.  Dr. Bail sent a copy of the order to Ms. Nguyen by email.  Ms. Nguyen’s daughter wrote to opposing counsel to canvass dates for a motion to set aside Justice Faieta’s order. She was advised by counsel that the action was dismissed.  Ms. Nguyen later wrote to counsel seeking consent for the late filing of her notice of appeal. Consent was not given.

Issues:
What is the correct test for an extension of time for the service and filing of a notice of appeal?

Holding: Motion Dismissed

Reasoning:
Pursuant to r. 3.02(1), the court may order an extension or abridgment of time on such terms as are just. The following five factors are relevant:

(1) whether the appellant formed an intention to appeal within the relevant period;

(2) the length of, and explanation for the delay;

(3) the prejudice to respondent;

(4) the merits of the appeal; and

(5) whether the “justice of the case” requires extending the time.

When considering the merits of an appeal, the court must determine whether the appeal has so little merit that it could reasonably deny the important right of appeal.  The merits of a proposed appeal can be decisive on a motion to extend the time for filing.  Even if the other factors militate against extending time, the merits may be so significant as to justify an extension.  Similarly, even if other factors militate in favour of granting an extension, where the appeal is clearly without merit the motion will be denied

The court found that there was no evidence that Ms. Nguyen intended to appeal Justice Faieta’s order within 30 days of the making of that order.  She understood that an appeal was the appropriate course of action and had previously delivered a notice of appeal from the order of Justice Stinson.  Moreover, Justice Corrick told Ms. Nguyen repeatedly that a motion to set aside an order was not the correct procedure and that if she disagreed with an order the proper course of action was to appeal.  Despite her knowledge that an appeal was the appropriate remedy, she declined to pursue that remedy within the time period in which to do so.

The length of the delay was relatively short, but no explanation was offered to explain the delay and there would be prejudice to the respondents if the relief was granted.  There were four cost orders against her by four different judges and there was a real risk that the respondents would not recover the existing costs awards or any future costs awards.

No material was filed that disclosed the grounds of the appeal.  There was nothing to suggest that Justice Faieta made any error in the exercise of his discretion and instead his order appeared well justified.  While the merits test on this motion is not a high threshold, it was not met in this case.

Finally, the “justice of the case” did not favour an extension.  Ms. Nguyen demonstrated a lack of respect for court orders and the court process.  Ms. Nguyen was not in compliance with the order of Justice Stinson, failed to attend cross-examination and a case conference without good reason, repeatedly brought motions in the Superior Court that were clearly collateral attacks on orders that she did not appeal, and ignored the warnings that the motions werere an abuse of process.

Hoang v. Mann Engineering Ltd., 2015 ONCA 838
[Strathy C.J.O., LaForme and Huscroft JJ.A.]

Counsel:
Karen J. Sanchez, for the moving party
Jeff C. Hopkins and Justin Tetreault, for the responding parties

Keywords: Wrongful Dismissal, Breach of Contract, Withheld Sales Commission, Employment Standards Act, 2000, Post-Hearing Submissions, Re-hearing Appeal, Motion in Writing, Rules of Civil Procedure rules 37.12.1(1), 59.06(2) & 2.1.02(1)-(3)

Facts:
Mr. Hoang brought an action against the respondents for damages for wrongful dismissal, breach of contract, and withheld sales commissions.  The trial judge dismissed his action, finding there was just cause for termination and no commission owing.  Mr. Hoang was self-represented on appeal.  The court allowed the appeal in part, finding that Mr. Hoang had a valid point in respect of the amount being wrongly withheld pursuant to the Employment Standards Act, 2000.  Newly-retained counsel for Mr. Hoang received permission from the original panel in the appeal to file post-hearing submissions.  In his submissions, counsel argued that Mr. Hoang was unable to effectively communicate the nature of the appeal.  The panel treated Mr. Hoang’s request as a motion and refused to amend the endorsement.  Mr. Hoang, now for the second time, sought an order to have the appeal re-heard by a different panel of judges.

Issues:
Should there be a re-hearing of the appeal by a differently constituted panel?

Holding: Motion dismissed under rule 2.1.02(1).  Appellant prohibited from making any further motions without leave of the court under rule 2.1.02(3).

Reasoning:
No, this was an appropriate case for the court to invoke its powers under rule 2.1.02(1).  This rule provides: The court may, on its own initiative, stay or dismiss a motion if the motion appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.  Mr. Hoang had not identified any circumstances that would justify ordering a re-hearing of an appeal by a differently constituted panel.  He was merely attempting to re-argue the same arguments advanced on the original appeal and in the post-hearing submissions.  Rule 59.06 provides for a very narrow jurisdiction to set aside or vary an order made by a panel.  Any motions relying on this rule will be monitored by the court under rule 2.1.02.

McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830
[Weiler, van Rensburg and Roberts JJ.A]

Counsel:
Ryan McIlvenna and Stacey Holmes, in person
Spencer Ball, for the respondents

Keywords: Damages, Authorized Users of Marijuana, Ejected from Premises, Frivolous Claims, No Reasonable Cause of Action, Abuse of Process, Rule 21 Rules of Civil Procedure

Facts:
The appellants commenced an action seeking damages for how they were treated while being ejected from a bar because they smelled like marijuana.  The appellants claim to be authorized users of medical marijuana.

The respondents brought a motion under Rule 21 of the Rules of Civil Procedure to dismiss the action for failure to disclose any reasonable cause of action and on the basis that the claim was frivolous.

Before motion was heard, the plaintiffs (appellants) delivered an amended statement of claim.  At the hearing of the motion, Stacey Holmes was not present in court and  Ryan McIlvenna sought to speak on her behalf.  The motion judge denied the request and dismissed Ms. Holmes’claim for failure to disclose a reasonable cause of action, without leave to amend.   He ruled that the action was an abuse of process and was frivolous.  He awarded costs against McIlvenna on a substantial indemnity basis

Issues:
The appellants advance five (5) arguments on appeal:

(1) The motion judge ought to have permitted McIlvenna to speak on Ms. Holmes’ behalf when no objection was taken by the respondents, and that her claims should be allowed to proceed.

(2) The order dismissing the action should be set aside because the motion judge demonstrated bias in certain comments made in the course of the hearing.

(3) The motion judge did not accept the allegations in the statement of claim as true, and erred in striking the claim on the basis that it disclosed no reasonable cause of action.  If the claim was in fact deficient, the motion judge erred in refusing to grant leave to amend.

(4) The motion judge erred in concluding that the claim was an abuse of process and frivolous.

Holding: Appeal Allowed.

Reasoning:
(1) Although the motion judge did have discretion to allow Mr. McIlvenna to speak on Ms. Holmes’ behalf, Mr. McIlvenna offered the court a choice: if he was not permitted by the judge to speak for Ms. Holmes, she wanted to discontinue her claim.  During argument he agreed that the claim could be dismissed if he were not permitted to speak for her.  The motion judge followed the alternate course of conduct proposed by Mr. McIlvenna.  In the circumstances, it is not open to the parties to appeal the dismissal of Ms. Holmes’ claim.

(2) The appellants did not meet the high threshold required to establish bias, which requires that an informed person viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the decision maker would not decide the matter fairly.  The motion judge attempted to exercise control over the court proceedings, including trying to keep the arguments on track.  The motion judge’s conduct did not constitute bias.

(3) On a Rule 21 motion, the court must accept the allegations in the statement of claim as true, unless they are patently ridiculous or incapable of proof. The statement of claim must be read generously, allowing for inadequacies due to drafting deficiencies. The motion judge in this case correctly identified the test; however, he made errors in its application. The motion judge approached the motion as a motion for summary judgment and not as a Rule 21 motion. While the motion judge made the comments referred to, which might suggest that he considered evidence and failed to assume the pleadings to be true, on the whole of his reasons, it appears that he accepted the appellants’ pleading as true.  Although he greeted the claim with some skepticism, he approached his task as determining whether, assuming the facts were as pleaded, the amended statement of claim disclosed a cause of action.  The court then considered whether the motion judge erred in his assessment of the pleading, and whether it disclosed a cause of action in intimidation and intentional infliction of mental suffering.  The court found that the motion judge erred in striking the action, which disclosed a cause of action in intimidation.  The court did not find that the amended statement of claim disclosed a cause of action for intentional infliction of mental suffering.

(4) The court found that there was a palpable and overriding error of fact that informed the motion judge’s conclusion that the action was an abuse of process.  The motion judge stated that Mr. McIlvenna had failed to amend his claim and that the earlier proceeding was at an end. That information was incorrect, and may have informed the motion judge’s conclusion that the action was frivolous and an abuse of process of the court process.

Abdollahpour v. Banifatemi, 2015 ONCA 834
[Gillese, Blair and Brown JJ.A.]

Counsel:
Evan Moore, for the appellants
Kevin Kavanagh, for the respondent

Keywords: Estate Law, Real Property, Deed of Gift, Revocation, Marriage Contract, Dowry, McNamee v McNamee, Summary Judgment, Evidence, Fresh Evidence, Statute of Frauds, ss. 1(1), s. 4, Appeal Dismissed

Facts:
It is Iranian custom for agroom’s family to make a gift to the bride’s family during a marriage.  In this case, the groom’s parents and the appellants transferred a 50% interest in a house they owned in Ottawa to the respondent bride, by way of a Deed of Gift.  The marriage dissolved one and a half years later and the appellants sought to have the 50% interest in the property transferred back to them, as well as repayment for the cost of the wedding and a return of all wedding gifts.

The appellants submitted that the transfer of interest in the property was subject to conditions that the parties remain married and continue to reside in the home as their matrimonial home.  The appellants allege that the respondent’s father made a verbal promise to return the property interest if the respondent ended the marriage.  The appellants also submitted that the respondent entered into the marriage with the fraudulent intent to obtain a 50% interest in the property, as well as to receive permanent residency in Canada.  Lastly, the appellants submitted that they signed the Deed of Gift under duress or as a result of undue influence.

The respondent was successful on a motion for summary judgment to dismiss the claims, on the basis that the transfer of interest in the property was an irrevocable and unconditional gift.  The appellants only appealed the judgment as it relates to the property interest and also sought to introduce fresh evidence.  The fresh evidence was a translated copy of the marriage contract and an expert report from an Islamic scholar confirming that, in certain circumstances, a dowry must be returned by the wife upon breakdown of the marriage.

Issues:
(1) Should the fresh evidence be introduced on appeal?

(2) Did the motion judge did err in finding that the transfer of the 50% interest in the property to the respondent was an irrevocable, unconditional gift and that there was no genuine issue requiring a trial?

Holding: Appeal dismissed.

Reasoning:
(1) The court did not need to decide whether the proposed fresh evidence met the necessary requirements for admission on appeal, because even if admitted, it would not change the outcome of the appeal.  The issue was not whether Iranian customs included the characteristics explained by the evidence, but whether the parties agreed to the transfer being subject to the conditions imposed by their culture.  An expert cannot give an opinion as to what the parties’ intentions were.

(2) The motion judge did not err in his findings.  The motion judge applied the proper test for the determination of a gift, per the court’s decision in McNamee v McNamee.  The three essential elements required to constitute a gift were met, being: an intention on the part of the donor to make a gift without consideration or expectation of remuneration; an acceptance of the gift by the donee; and a sufficient act of delivery or transfer of the property to complete the transaction.

The motion judge did not misapprehend the evidence or make incorrect findings of fact that materially affected his conclusions with regard to the terms of the Deed of Gift.  The court recognized that the parties received independent legal advice during negotiations.  Further, during these negotiations, there was evidence that the 50%interest for the respondent was transferred irrevocably, as the final Deed of Gift stated.  There was no mention between the lawyers in exchanges leading up to the transfer that conditions would be attached other than the marriage itself.

In relation to the alleged verbal statements by the respondent’s father, the court agreed with the motion judge that even if the statement had been made, it did not affect the result for two reasons.  First, the respondent’s father could not bind the respondent as he was not party to the transaction, and second, a verbal representation or promise to transfer the interest back to the appellants would be ineffective as a result of ss. 1(1) and 4 of the Statute of Frauds.  The purpose of s. 1(1) is to avoid such difficulties by requiring written corroboration of a disputed oral deal.

The court also touched on the concept of the dowry as part of the Iranian culture, and noted that cultural norms and traditions cannot be imported into a transaction involving the transfer of real property.  Even if the appellants had an underlying motivation for the transfer, a valid gift cannot be revoked or retracted.

Lastly, the court agreed with the motion judge in rejecting the submission that the Deed of Gift should be set aside on the basis that it had been obtained by undue influence or fraud.  There was no evidence to support the allegationthat the appellants were coerced or pressured.

Gill v CPNI Inc., 2015 ONCA 833
[Hoy A.C.J.O, Blair and Hourigan JJ.A.]

Counsel:
Patrick Bird, acting in person for CPNI Inc.
Chris McClelland, for the respondents

Keywords:   Employment Law, Summary Judgment, Employment Standards Act, S. 13, Authorization to Deduct from Wages, Stay, Counterclaim, Return of Employer Property

Facts:
The respondents were former employees of the appellant, CPNI Inc. (“CPNI”), who sued for unpaid wages and moved for summary judgment.  At the motion, CPNI argued that it was authorized under s. 13 of the Employment Standards Act (ESA) to make deductions from the respondents’ unpaid wages, because they stole software and intellectual property when they failed to return a company computer.  CPNI also claimed that provisions in the respondent’s employment contracts requiring them to return company property on request constituted a written authorization by the respondents that permitted such deductions in accordance with s. 13(3) of the ESA.

The motion judge held that CPNI had not established a valid defence to the respondents’ claim and granted summary judgment.  He found that, while one respondent had the computer for a number of months, it was not entirely clear when its return was demanded, what the consequences of its non-return were, and what losses were suffered by CPNI as a result.  The evidence did not establish any involvement on the part of the other two respondents in the alleged wrongful conversion of the computer.  The motion judge was not persuaded that the employment contract between one respondent and CPNI contained an authorization of the sort contemplated by s. 13(3) of the ESA.  He refused to stay the enforcement of the respondents’ judgment while CPNI’s counterclaim for conversion in relation to the unreturned computer proceeded.

 

Issues:
(1) Did the motion judge err in dismissing the ESA defence?

(2) Did the motion judge err in excluding the two respondents who were allegedly involved in the wrongful conversion of the computer from the s. 13 defence?

(3) Did the motion judge err in declining to order a stay pending CPNI’s counterclaim?

Holding: Appeal dismissed.

Reasoning:
(1) and (2) No, under s. 13 of the ESA an employer is prohibited from making any deduction from an employee’s wages unless it is authorized to do so under that section.  The motion judge was correct in concluding that there was nothing in the respondents’ employment contracts that authorized deductions from the respondents’ wages pursuant to s. 13(3).  The provision in the employment contracts relating to the return of company property does not make any reference to deduction from wages nor does any other provision in the contract.  This defence did not raise a genuine issue requiring a trial.

(3) No, a stay is a discretionary remedy.  The Court of Appeal was not persuaded that the motion judge erred in the exercise of his discretion, so there was no basis to interfere with his decision.

AB2000 Software Corporation v. Infinium Capital Corporation, 2015 ONCA 829
[Cronk, Lauwers and van Rensburg JJ.A.]

Counsel:
Alexandre Bevziouk, acting in person
Daniel J. Stern, for the respondent

Keywords: Securities, Trading, Competition, Wrongful Dismissal, Leave to Appeal Costs, Contract Interpretation, Costs, Rules of Civil Procedure, r.49, Appeal Allowed in Part

Facts:
The appellant, Alexandre Bevziouk (“Bevziouk”) was hired by Infinium Capital Corporation (“Infinium”), a securities trading company.  While employed elsewhere full-time, Bevziouk had helped Infinium develop its electronic trading platform.  After he was hired, he developed, installed, and operated an algorithmic trading system.

Two consecutive service agreements between Infinium and Bevziouk’s corporation, AB2000 Software Corporation (“AB2000 Software”), provided for the terms and conditions of the work to be performed and his compensation.  Following an initial service agreement, in March 2006, the parties executed a mutual release and entered into a second agreement with somewhat different terms, including an increase in the monthly payment to AB2000 Software and the elimination of Bevziouk’s stock option.  This second service agreement was backdated to December 1, 2005, and was in effect when Bevziouk’s services were terminated.

Infinium terminated the service agreement for cause and alleged that Bevziouk was competing with it and taking steps to sabotage the algorithmic trading system.  Shortly thereafter, Infinium sued Bevziouk, his company and other defendants for damages and other relief.  The appellants counterclaimed and asserted a claim for unpaid compensation under the service agreement and damages for wrongful dismissal.

The main action was discontinued against the other defendants, and a few weeks before the trial of the counterclaim, the main action was discontinued on consent as against the appellants, with costs to be determined by the trial judge.  This was an appeal from the dismissal of the appellants’ counterclaim against the respondent.  The appellants asserted that the trial judge erred in concluding that the contract governing the relationship between the parties had been terminated for cause and in rejecting the appellants’ claims for commissions and other compensation. The appellants also sought leave to appeal the costs awarded against them.

Issues:
(1) Did the trial judge err in his interpretation of the service agreement with respect to compensation?

(2) Did the trial judge err in finding that the service agreement was terminated for just cause?

(3) Was it an error in principle for the trial judge to award Infinium costs for a claim that it withdrew on the eve of trial and, further, that were excessive?

Holding: Appeal allowed in part (dismissal of counterclaim set aside; costs award varied and substituted)

Reasoning:
(1) Mr. Bevziouk asserted that he was entitled to commissions on trades made using the algo-trading system, salary for the last month before his termination, and bonuses.

The claim for commissions was rejected by the trial judge, who found that there was no contractual right to the payment of commissions.   The trial judge accepted the opinion of an expert in the administration and application of securities law and regulation in Ontario, that Bevziouk could not have been a “trader” with reference to the terms of the service agreement.  The court found no error in the trial judge’s rejection of the appellants’ claim for commissions.

However, Infinium did not make a monthly payment of $14,583.33 to AB2000 Software for September 2006.  Infinium explained that it withheld that payment as a set-off against the damages it believed that it had suffered as a result of the appellants’ conduct.  The court agreed with the appellants that there was no basis for this and found AB2000 Software was entitled topayment.

The service agreement provided for the payment of a quarterly bonus. For the first two quarters of 2006, Infinium advised Bevziouk that he had earned a quarterly bonus of $25,000.  However, Infinium withheld one half of the amount, paying the total sum of $25,000 in two instalments of $12,500.  While the bonuses were discretionary, once declared, there was no basis for Infinium to impose unilateral terms on its payment, and AB2000 Software was entitled to the sum of $25,000.  Bevziouk was not entitled to a third quarter bonus.

(2) There was overwhelming evidence at trial that Bevziouk was attempting to promote software that would enable Infinium’s competitors to engage in algorithmic trading.  The fact that his negotiations with third parties were not fruitful is irrelevant. Therefore, the trial judge did not err in concluding that Bevziouk’s employment was terminated for cause.

(3) Leave to appeal costs is granted sparingly but the test was met in this case.  The trial judge ought to have separately considered the question of the appellants’ costs of defending the discontinued main action and whether the appellants were entitled to set-off those costs against any costs of the counterclaim. Having defended the main action up to weeks before trial, the appellants would reasonably have expected an award of costs for their defence of the main action.

With respect to the appellants’ argument that the costs award was excessive, the court found no error in principle that would justify any further reduction in the costs awarded to Infinium.

Children’s Aid Society of Toronto v. L.G., 2015 ONCA 840
[Sharpe, Cronk and Miller JJ.A.]

Counsel:
Reide L. Kaiser, for the appellant
Michelle Cheung, for the respondent

Keywords:  Family Law, Crown Wardship, Child and Family Services Act, S. 15(3)(c), S. 70, Children’s Aid Society

Facts:
The appellant appealed the decision of the Superior Court dismissing her appeal from a trial judgment directing that her son, K.H., be made a Crown ward without access by the appellant, her mother or K.H.’s biological father.

Issues:
(1) Did the trial judge err by failing to find that the respondent breached its duty under s. 15(3)(c) of the Child and Family Services Act (CFSA)?

(2) Did the trial judge err by failing to extend the period of Children’s Aid Society (CAS) wardship for K.H. under s. 70 of the CFSA?

Holding: Appeal dismissed.

Reasoning:
(1) No, the evidentiary record did not support the assertion that the CAS failed to discharge its statutory duty.  There was overwhelming evidence at trial of the appellant’s long-standing pattern of entering into violent relationships with current or former domestic partners, which placed herself and her son at risk of serious harm.  The CAS made numerous attempts to work with the appellant to address the violence and emotional turmoil in her life that were impeding her ability to safely and adequately parent her son, and to access available services to obtain assistance.  Although there may have been some delay in processing information and documentation, when the evidentiary record was examined as a whole, the CAS was not derelict or deficient in any material way.

(2) No, the Court of Appeal agreed with the appeal judge who considered this issue and concluded that, even if such an extension was available as a matter of law, an extension order was neither appropriate nor justified in this case.  By the time of trial, K.H. had been in CAS care for more than 24 months.  There was nothing in this case that warranted an extension beyond the 18 months contemplated in the CFSA.

Partridge v. Botony Dental Corporation, 2015 ONCA 836

[Laskin, Pardu and Roberts JJ.A.]

Counsel:
Joe Conforti, for the Appellant
Michael D. Wright, for the respondent
Christopher Perri, for the respondent

Keywords: Employment Law, Wrongful Termination, Discrimination, Notice Period, Family Status, Costs, Ontario Human Rights Code, s.46.1(1), Bardal v. Globe and Mail Ltd, Appeal Dismissed

Facts:
At trial Lee Partridge sought damages and declarations based on the alleged wrongful termination of her employment with Botony Dental Corporation.  The defendant asserted that it terminated Partridge’s employment for just cause, and counterclaimed for damages in the sum of $400,000 for loss of revenue and loss of value of the dental practice.  The trial judge found in favour of Ms. Patridge.  The appellant argued that the trial judge erred:

  • in concluding that the appellant did not have just cause to dismiss the respondent;
  • in determining that the respondent was entitled to a twelve-month notice period;
  • in failing to make an order concerning the return of patient day sheets that the respondent had taken from the appellant’s office;
  • in concluding that the appellant had discriminated against the respondent and awarding $20,000 in damages; and
  • in awarding costs to the respondent on a substantial indemnity scale.

Issues:
Did the trial judge err in her findings on (1) wrongful dismissal, (2) reasonable notice period and damages, (3) discrimination on the basis of family status, and (4) awarding trial costs on a substantial indemnity scale?

Holding: No to all issues – appeal dismissed.

Reasoning:
The court rejected each of the appellant’s grounds of appeal.  Each finding was fact-specific and would have required the court to overturn or retry the trial judge’s findings of fact.  The trial judge correctly applied the law and made no palpable or overriding errors.  Her findings were based on the evidence that was before her at trial and were therefore entitled to considerable deference.

(1) In particular, the appellant argued that the respondent’s removal of the patient day sheets constituted just cause for her dismissal without notice or pay in lieu of notice.  The court disagreed and found that the trial judge correctly determined that the respondent’s removal of the day sheets was not for the purpose of setting up a competing business.  The trial judge was entitled to conclude that the respondent was wrongfully dismissed and that there was no just cause for her dismissal without notice or payment in lieu of notice.

(2) The trial judge’s assessment of the applicable notice period was in accordance with the well-established criteria set out in Bardal v. Globe and Mail Ltd.  The twelve-month notice period was reasonable: the appellant made highly damaging allegations of misconduct on the respondent’s record of employment and aggressively pursued them.  The court noted that the respondent was able to find work in her field relatively quickly.

(3) The court found no error in the trial judge’s award of $20,000 as compensatory damages under s. 46.1(1) of the Ontario Human Rights Code (allowing for civil court remedies on the basis of breaches of the Code).  The appellant committed multiple and deliberate breaches of its obligations towards the respondent and the trial judge’s conclusion that the appellant’s unlawful actions amounted to discriminatory treatment of the respondent because of her family status were supported by the evidence.

(4)  There was no basis for setting aside the substantial indemnity award of costs to the respondent.  The respondent’s offer to settle was well below the amount of the judgment.  The appellant’s unproven allegations against the respondent of serious employee misconduct also supported an award of costs on a substantial indemnity scale.

MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842
[Cronk, Hourigan and Benotto JJ.A.]

Counsel:
Gavin Tighe and Alexander Melfi, for the appellants
Robert W. Dowhan and Catharine J. Grinyer, for the respondent
R. Leigh Youd, for the intervener Lawyers’ Professional Indemnity Company (LAWPRO)

Keywords: Contract Law, Real Estate, Motion for Summary Judgment, Title Insurance, Policy, Coverage, Indemnification, Interpretation, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp, Defect

Facts:
The appellants brought a motion for summary judgment for a declaration that the title insurance policy (the “Title Policy”) purchased from the respondent, Chicago Title Insurance Company of Canada (“Chicago Title”), provided coverage and indemnification for a dangerous structural defect in their home.  The condition was caused by unauthorized construction performed by a prior owner.  The motion judge dismissed the  motion and the action.

Issues:
(1)  What standard of review applies to the interpretation of the standard form insurance policy?

(2)  Did the motion judge err in finding that any admissions made by the representative of Chicago Title did not bind the corporation?

(3) Did the motion judge err in his interpretation of the Title Policy?

(4) If so, what is the correct interpretation of the Title Policy?

Holding: Appeal allowed.  The appellants were awarded $18,000 for costs on a partial indemnity basis.

Reasoning:
(1) The standard of review applicable to a standard form insurance contract like the Title Policy is correctness.  The deferential standard favoured in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53  is not applicable in this case, since there is no factual matrix regarding negotiations and the parties’ intentions, where the Title Policy was presented on a “take it or leave it” basis.  The correctness standard for such contracts enables the provincial appellate courts to maintain consistency in the law.

 (2) Yes.  The motion judge erred in law.  The appellants relied on admissions given by Mr. Mineo on his cross-examination.  When a corporate officer is cross-examined on an affidavit filed in support of the corporation’s position, that officer speaks for the corporation.  The officer’s admissions on cross-examination may be used against the corporation in the same way that admissions on an examination for discovery may be relied upon.

(3) Yes.  The motion judge erred in concluding that the Title Policy only responds to defects registered against title.  Such a conclusion would undermine one of the major purposes of title insurance, to provide coverage for off-title defects.  The motion judge’s error regarding the scope of the title insurance caused him to take an unduly restrictive interpretation of the Title Policy’s coverage provisions.  The motion judge failed to apply the correct principles of contractual interpretation for insurance contracts, which are set out below.

(4) The correct principles for the interpretation of insurance contracts in Canada are as follows:

  • the court must search for an interpretation from the whole of the contract and any relevant surrounding circumstances that promotes the true intent and reasonable expectations of the parties;
  • where words are capable of two or more meanings, the meaning that better promotes the parties’ intentions will be selected;
  • ambiguities will be construed against the insurer having regard to the reasonable expectations of the parties;
  • an interpretation that will result in either a windfall to the insurer or an unanticipated recovery to the insured is to be avoided;
  • coverage provisions are to be construed broadly, while exclusion clauses are to be construed narrowly;
  • the contract of insurance should be interpreted to promote a reasonable commercial result; and
  • aclause should not be given effect if to do so would nullify the coverage provided by the

Clause 11 of the Title Policy provides coverage and indemnification regarding the subject defect, being the unauthorized construction.  The clause uses the term “unmarketable” with reference to title.  It is not necessary to look further than the wording of the provision, as  this is a standard form contract.  Chicago Title defined the circumstances that would constitute an “unmarketable title” within the clause.  Chicago Title is therefore fixed with the language it chose to include in the clause.  That language must be interpreted broadly given that it is a coverage provision.

Chowdhury v. Bangladeshi-Canadian Community Services, 2015 ONCA 844
[Strathy C.J.O., LaForme and Huscroft JJ.A.]

Counsel:
MD Ahsanullah Chowdhury, acting in person
Nasima Akter, for the respondent Bangladeshi-Canadian Community Services
David Tortell, for the respondents City of Toronto/Toronto Police Services
Orna Raubfogel, for the respondent Toronto Community Housing Corporation
Paul J. Davis, for the respondent Dr. Abu Arif
Jayanta K. Singha, for the respondent Alam Moral
Simon A. Clements, for the respondent Warden Woods

Keywords: Civil Litigation, Motion, Strike Out Pleading, Leave to Amend, Rule 21.01(1)(b), Rule 25.11(b)

Facts:
MD Chowdhury appealed the orders of a motions judge striking his statement of claim against all seven respondents without leave to amend.  The allegations against some of the respondents include invasions of privacy, harassment, and torture, among other things.  Six of the respondents were sued for $1 million each.  The City of Toronto was sued for $10 million.

Issues:
Did the motion judge err in striking the appellant’s statement of claim against all seven respondents without leave to amend?

Holding: Appeal dismissed.

Reasoning:
No, it was appropriate for the motions judge to strike all of the various pleadings for two reasons.  First, under Rule 21.01(1)(b), it is appropriate to dismiss claims that plead no reasonable cause of action.  Although a court is required to read a statement of claim generously on a motion to dismiss, it does not need to accept the allegations pleaded if they are patently ridiculous or incapable of proof.  The claims in this case could not possibly succeed and could not be saved by amendment.  Second, it was appropriate for the motions judge to strike all of the claims under R. 25.11(b) without leave to amend.  Her conclusion that the claims were frivolous, vexatious, or an abuse of process was amply supported by the record.

Kadiri v. Southlake Regional Health Centre, 2015 ONCA 847
[Gillese, Epstein and Brown JJ.A.]

Counsel:
William Carter and Lee Lenkinski, for the appellants
Paul Harte and Giuseppe Michelucci, for the respondent

Keywords:   Civil Litigation, Summary Judgment, Health Professions Appeal and Review Board, Jurisdiction, Public Hospitals Act, S. 41, Hospital Privileges

Facts:
The respondent, Dr. Kadiri, was acting as the anesthetist during a knee replacement surgery at the appellant hospital, the Southlake Regional Health Centre (the “Hospital”).  He left the operating room without telling the other members of the surgical team.  While he was away, the patient awoke from the sedation.  The Hospital commenced an investigation.  From April 2008 until December 2010, Dr. Kadiri was on reduced duties pending the results of medical and psychological assessments.  In January 2011, following a series of assessments and a period of re-training, Dr. Kadiri returned to full practice at the Hospital.

In April 2012, Dr. Kadiri commenced an action for loss of income and other damages as a result of the events between the date of the incident and his return to full practice at the Hospital.  The defendants brought a motion for summary judgment seeking to dismiss the action on several grounds, including that the court had no jurisdiction over the subject-matter of the action and that the action was statute-barred.  Alternatively, the defendants sought a stay of the action until Dr. Kadiri’s claims had been determined by the Health Professions Appeal and Review Board (the “Board”).  The motion judge dismissed the action against Drs. Bloom and Cruickshanks as being statute-barred, but held that the action was not statute-barred as against any of the other defendants.  No appeal was taken from that finding.  The motion judge denied the appellants’ request to dismiss Dr. Kadiri’s action on jurisdictional grounds.  The appellants submitted that the court had no jurisdiction because Dr. Kadiri had not followed the process set out in s. 41 of the Public Hospitals Act (the “PHA”) which in their submission, required him to proceed to a hearing before the Board before starting a lawsuit.

Issues:
(1) Did the motion judge err in concluding that the Superior Court had the jurisdiction to consider Dr. Kadiri’s claim?

(2) Did the motion judge err in finding that no decisions were made within the meaning of s. 41(1)(b) of the PHA?

(3) Did the motion judge err in finding that Dr. Kadiri exhausted the remedies available to him under the By-law and the PHA?

(4) Is an appeal to the Board a condition precedent to an action in court?

Holding: Appeal dismissed.

Reasoning:
(1) No, the motion judge was correct in concluding that the court had jurisdiction over the lawsuit.  At the time that the lawsuit was commenced, Dr. Kadiri had properly followed the statutory process under the Bylaw and PHA as required in the specific circumstances of this case, albeit an informal process worked out by the parties.

(2) No, the motion judge did not err, as there was no dispute that the Hospital’s own board or the Hospital’s medical advisory committee did not make a decision that cancelled, suspended or substantially altered Dr. Kadiri’s privileges.  Although the motion judge’s conclusion that “no decision appears to have been made at all which Dr. Kadiri could appeal” was not completely accurate, ultimately it did not have any consequence on whether the court has jurisdiction over the action.

(3) No, the motion judge did not err, as there was ample evidence supporting her finding that Dr. Kadiri had followed through with the Bylaw’s dispute resolution process as required. Further, her conclusion accorded with the reality that as ofApril 2012, Dr. Kadiri was back at the Hospital enjoying full privileges.  Under s. 41(1)(b) of the PHA, the Board may order a remedy regarding any member of medical staff aggrieved by a decision under the By-law cancelling, suspending, or substantially altering his or her privileges.  The Board could not have taken any action as of that date regarding the cancellation, suspension, or substantial alteration of Dr. Kadiri’s privileges, since as of that time, there was nothing left to restore.

(4) No, an appeal to the Board is not a condition precedent to an action in court.  The Ontario Court of Appeal decision in Beiko v. Hotel Dieu Hospital St. Catherines does not stand for that proposition.  Depending on the specific circumstances of a case, proceeding to a hearing before the the Board may or may not be required.  In the present case, this was not necessary since: (i) Dr. Kadiri and the Hospital worked out an arrangement to deal with their dispute which they saw through to its end, and (ii) at the time Dr. Kadiri commenced his lawsuit, he had returned to practice with full privileges.

Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819
[Feldman, Hourigan and Benotto JJ.A.]

Counsel:
Evert Van Woudenberg, for the appellant
Frank Zechner and Christopher Du Vernet, for the respondents
Sandra Nishikawa and Isabelle O’Connor, for the intervener, Minister of the Environment and Climate Change

Keywords:   Environmental Law, Negligence, Nuisance, Liability, Personal Liability, Toxic Real Estate, Contamination, Remediation Costs, “Corporate Veil”, Damages, Punitive Damages, Environmental Protection Act, s. 99(2), “Spills Bills”, Limitations Act, s. 17, Antrim Truck Centre Ltd v Ontario (Transportation), Mustapha v Culligan of Canada Ltd., Whiten v Pilot Insurance Co.

Facts:
The plaintiff, Midwest Properties Ltd. (“Midwest”), brought a claim for damages in nuisance, negligence and for statutory compensation under section 99 of the Ontario Environmental Protection Act (“EPA”) against the owners of adjacent property. Thorco had used its property as a storage site for petroleum hydrocarbon (PHC) waste.  After it acquired its property in 2007, Midwest’s experts discovered certain pockets of PHC contamination that exceeded the allowable amount pursuant to Ministry of the Environment (“MOE”) and Climate Change guidelines.  The MOE ordered Thorco to investigate and remediate Midwest’s property.  Midwest brought a claim for damages against Thorco for the cost of a proposed remediation.

The trial judge held that the respondents were not liable under any of the various causes of action.  She found that Midwest had failed to prove that it suffered damages, since there was no proof that the PHC contamination lowered the value of its property.  Further, she found that because there was already a remediation order from the MOE, a remedy under s. 99(2) was not available to Midwest.

Issues:
(1) Did the trial judge err in finding that recovery under s. 99(2) of the EPA is precluded where the MOE has ordered a defendant to remediate the land?

(2) Did the trial judge err in finding that no compensable “loss or damage” under s. 99(2) of the EPA was established?

(3) Is Mr. Thordarson personally liable under the EPA?

(4) Did the trial judge err in dismissing the nuisance and negligence claims?

(5) Did the trial judge err in dismissing the claim for punitive damages?

Holding: Appeal allowed and judgment entered against both respondents jointly and severally for $1,328,000 in damages under s. 99 of the EPA.  $50,000 in punitive damages also awarded against each respondent.

Reasoning:
(1) Yes.  The trial judge’s interpretation of s. 99(2) was inconsistent with the wording of the legislation and binding authority on the interpretive approach to the EPA.  Further, given the history and purpose of the statutory private right of action in s. 99(2), her intention was clearly inconsistent with its purpose.

(2) Yes.  The trial judge should have considered the cost of restoration as opposed to the diminution in property value.  The former approach is preferred in environmental cases since the cost of restoration may exceed the value of the property and an award based on diminution of value may not adequately fund clean-up.  This approach to damages reflects the “polluter pays” principle. The court rejected the respondents’ submission that compensation under s. 99(2) depends on  nuisance. If the Legislature wanted to define the new cause of action in a manner consistent with the existing common law of nuisance, it would have done so.

(3) Yes.  Parties with control of a pollutant cannot rely on separate ownership of the pollutant or hide behind the corporate veil to shield themselves from liability. Thorco was a small corporation, and as its principal, Mr. Thordarson controlled operations.

(4) Yes.  The court considered the nuisance and negligence claims in order to determine whether punitive damages were available to Midwest.  The trial judge erred by failing to consider evidence that established a diminution in the value of Midwest’s property and a human health risk.  The fact that the contamination of the property presented a health risk to Midwest employees was evidence of physical and material harm or injury to the property.  Therefore, the trial judge committed a palpable and overriding error in not considering that evidence and in reaching the unsupported finding that damage had not been proven.

The  nuisance claim was established on the basis of Antrim Truck Centre Ltd v Ontario (Transportation) (SCC); the migration of PHC onto Midwest’s property was not trivial, insubstantial or reasonable.  The negligence claim was also established, as Midwest established that Thorco owed it a duty of care which it breached, causing the damage suffered (see Mustapha v Culligan of Canada Ltd.).

(5) Yes.  The court cited the general objectives of punitive damages from Whiten v Pilot Insurance Co. in support of its finding that punitive damages were warranted. Thorco had a history of non-compliance with its Certificate of Approval and orders from the MOE.  Its continuing conduct demonstrated a wanton disregard for environmental obligations, warranting punitive sanctions.

CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare Trust Co. of Canada, 2015 ONCA 846
[Sharpe, Cronk and Miller JJ.A.]

Counsel:
Benjamin Frydenberg and Sam Rappos, for the appellant
Jeffrey Spiegelman and Christine Jonathan, for the respondent

Keywords: Statutory Interpretation, Commercial Law, Jurisdiction, Appropriate Court  Mortgages, Priority, Land Titles Act, S. 24(1), Courts of Justice Act, S. 110,

Facts:
Two applications were brought under the Land Titles Act: the first from the appellants, CIBC Mortgages Inc., trading as FirstLine Mortgages (“FirstLine”), and the second from the respondent, Computershare Trust Company of Canada (“Computershare”).

The application judge found that the property owner fraudulently discharged the mortgage in favour of Computershare.  The application judge ordered that the Computershare mortgage be restored and given priority over the subsequently registered FirstLine mortgage.

Issue: Is the Court of Appeal the correct venue for the appeal?

Holding: The appeal should be transferred to the Divisional Court.  No costs were awarded.

Reasoning:

No.  The Court of Appeal does not have jurisdiction.  The Divisional Court has jurisdiction to hear appeals under the Land Titles Act.

Section 24(1) of the Land Titles Act reads: “Any jurisdiction of the court under this Act, other than an appeal to which section 19 of the Courts of Justice Act applies, may be exercised by a judge of the court.”  Section 1 defines “Court” as the Superior Court of Justice, and certain appeals can be made to the Divisional Court pursuant to section. 19.

Section 26 of the Land Titles Act states that a party to a hearing under the Land Titles Act can appeal the Director’s decision to the court within 30 days.  Section 27, “Further Appeal” allows provides that any person affected by an order made under the Land Titles Act can appeal to the Divisional Court within 30 days.

FirstLine relied on the heading “Further Appeal” from s. 27 of the Land Titles Act.  In statutory interpretation, statute headings are not determinative, although they can be used as interpretive aids.  The ordinary meaning of section 27 is that “any person affected by an order made under this Act” has an appeal to the Divisional Court.  The court rejected this argument.

FirstLine was unsuccessful in relying on s. 6(2) of the Courts of Justice Act.  This provision allows the Court of Appeal to subsume a matter that should be heard by the Divisional Court, if an appeal in the same proceeding lies to and it taken to the Court of Appeal.   The appellant submitted that its appeal of the application judge’s finding that Computershare did not have actual notice of the discharge of its mortgage is such an issue.  The Court of Appeal disagreed that the issue was a separate and discrete.  It was simply a factual finding that was part of the application judge’s overall consideration of mortgage priority.  Therefore, s. 6(2) did not apply.

Mwanri v. Mwanri, 2015 ONCA 843
[Cronk, Lauwers and van Rensburg JJ.A.]

Counsel:
Miguna Miguna, as agent for the appellant
Cynthia Mancia, for the respondent
Mark N. Demeda, for the Office of the Children’s Lawyer

Keywords: Family Law, Spousal Support, Child Support, Bankruptcy and Insolvency, Office of the Children’s Lawyer, Reasonable Apprehension of Bias, Bankruptcy and Insolvency Act, 168.1, Family Law Act, s.9(1)(b), Davis v. Crawford, Wewaykum Indian Band v. Canada, Appeal Allowed in Part

Facts:
Justice Seppi of the Superior Court of Justice granted a divorce and ordered the father to make an equalization payment to the mother, plus monthly spousal and child support and contributions to educational expenses of the children.  The order also required the payment of costs.  Subsequently, the daughter began living with the father, who moved for a change to the existing custody, access and support arrangements.  He sought a temporary custody order with respect to the daughter, together with specified access rights, a temporary order terminating his existing child support obligations towards the daughter and an order requiring the mother to disclose details of her employment.

The father then filed an assignment in bankruptcy.  At the time of his filing, his support payments were current, although he had not paid any portion of the equalization payment or the costs award.  The father’s motion was not heard in the fall of 2014, and in December 2014 the mother brought a motion seeking orders for lump sum and continuing periodic spousal support, a review date for spousal support, and a fixing of the quantum of child support to be paid for the daughter.  By the time of the mother’s motion, the daughter had been residing with her father for approximately six months.  The father was automatically discharged from bankruptcy in May 2015.

At the hearing of the motions, there was no dispute regarding the temporary custody of the daughter.  The motions judge granted continuing temporary sole custody to the father and made an access order in favour of the mother.  He ordered several further directions, including that the parenting/access schedule was to be monitored by the Office of the Children’s Lawyer (“OCL”), and that both parents cooperate with OCL’s counsel.  On appeal, the father challenged the motions judge’s child and spousal support rulings.

Issues:
(1) Did the motions judge’s conduct give rise to a reasonable apprehension of bias?

(2) Did the motions judge err in his child support ruling?

(3) Did the motions judge err in his spousal support ruling?

(4) Did the motions judge err by ordering the parties to follow the directions of counsel for the Office of the Children’s Lawyer, regarding the interpretation of the order?

Holding: Appeal allowed in part.

Reasoning:
(1) The father argued that the motions judge’s conduct at the hearing created a reasonable apprehension of bias, because he failed to provide the father procedural fairness and fundamental justice.  While there was no doubt that the motions judge took an active role in the hearing, he did not act in a manner that satisfied the high threshold required by the test for reasonable apprehension of bias.

(2) The father submitted that the motions judge erred by not retroactively terminating his child support obligation for the daughter when she began to live with him, and that he erred in failing to credit his payments during the eight months prior to the hearing.  The evidence showed that the father influenced his daughter to live with him, and there was no suggestion that the motions judge erred in finding that the father had failed to comply with existing court orders.

The father also submitted that the motions judge erred in failing to order that the mother pay prospective child support,and in his treatment of the mother’s annual income.  He also argued that the motions judge erred by failing to order the mother to contribute to the daughter’s extraordinary expenses.  The motions judge’s assessment should have proceeded on the basis of the mother’s admitted annual income on the date of the motions.  The mother was already obliged to contribute to the extraordinary expenses.

(3) The father submitted that the motions judge erred in ordering him make  a lump sum spousal support payment to the mother, and that his lump sum and periodic spousal support obligations be subject to a charging order.  The motions judge’s award of lump sum spousal support could not stand.  While the motions judge was entitled to reconsider the mother’s need for spousal support, he failed to consider each of the relevant factors.  The motions judge “essentially commenced, and ended, [the] spousal support analysis by focusing on the merits of a lump sum spousal support award, without addressing the adequacy of the existing periodic spousal support award.”  The analysis failed to adhere with the governing principles for lump sum awards set out in Davis v. Crawford.   The motions judge failed to consider the father’s status as an undischarged bankrupt and the implications of his discharge from bankruptcy.  The court set aside the lump sum spousal support award without prejudice to the mother’s right to renew her request for a change in spousal support.  Since the lump sum spousal support award was set aside, the charging order could not stand.

(4) Finally, the father argued that the OCL Direction violated his right to choice of counsel, and also raised a conflict of interest since the OCL acted for the daughter’s interests.  The court rejected this submission and found that the motions judge’s direction was in the best interests of the children and the interests of justice.  The direction did not oblige the father to seek out or follow the OCL’ legal advice.

Civil Law Endorsements

Baker v. Bell Media Inc., 2015 ONCA 835
[Simmons, van Rensburg and Hourigan JJ.A.]

Counsel:
James Zibarras, for the appellants
Andrea Laing and Peter H. Smiley, for the respondents

Keywords:  Contract Law, Fiduciary Duty, Civil Procedure, Motion to Strike, Failure to Disclose a Reasonable Cause of Action, Appeal Dismissed

Gorecki Estate v. Gorecki, 2015 ONCA 845
[Sharpe, Cronk and Miller JJ.A.]

Counsel:
Angela Assuras, for the appellant
Jonathan Marler, for the respondent

Keywords:  Property, Tenancy in Common, Matrimonial Home, Fresh Evidence, Appeal Dismissed

Criminal Decisions

R. v. Best, 2015 ONCA 826
[Simmons, van Rensburg and Benotto JJ.A.]

Counsel:
Apple Newton-Smith, for the appellant
Michael Bernstein, for the respondent

Keywords: Criminal Law, Self-defence, Retrospective Application of Provisions, Appeal Dismissed

R. v. Keating, 2015 ONCA 825
[Simmons, van Rensburg and Benotto JJ.A.]

Counsel:
Michael Pasquale, for the appellant
Jason A. Gorda, for the respondent

Keywords:  Criminal Law, Evidence, Admissibility, Hearsay, Principled Exception, Appeal Dismissed

R. v. J.L., 2015 ONCA 839
[Feldman, Gillese and Watt JJ.A.]

Counsel:
Peter Scrutton, for the appellant
Vincenzo Rondinelli, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Interference, Misapprehension of Forensic Evidence, Appeal Allowed

R. v. Jackson, 2015 ONCA 832
[LaForme, Watt and Epstein JJ.A.]

Counsel:
Michael Fawcett and Philip Perlmutter, for the appellant Crown
Vincent Westwick and Hugh O’Toole, for the appellant Ottawa Police Service
Howard L. Krongold, for the respondent David Jackson
Paul Burstein, Jonathan Rosenthal and Eric Neubauer, for the intervener Criminal Lawyers’ Association
Christopher Diana and Amal Chaudry, for the intervener Commissioner of the Ontario Provincial Police

Keywords: Criminal Law, Disclosure, First Party Disclosure, Crown Disclosure, R v. Stinchombe, Obviously Relevant, Third Party Production, Police Disclosure, R. v. O’Connor,  Likely Relevance  R. v. St-Onge Lamoureux, Appeal Allowed

R. v. Manship, 2015 ONCA 837
[Feldman, Gillese and Watt JJ.A.]

Counsel:
Jeffrey Langevin, for the appellant
Brock Jones, for the respondent

Keywords:  Criminal Law, Assault, Driving Under the Influence, Sentencing, Mitigating Factors, Appeal Dismissed

R. v. Smith, 2015 ONCA 831
[Hoy A.C.J.O., Laskin and Pardu JJ.A.]

Counsel:
Catriona Verner, for the appellant
Howard Leibovich, for the respondent

Keywords:  Criminal Law, First Degree Murder, Mens Rea, Intent, Appeal Dismissed

R. v. Benson, 2015 ONCA 827
[Gillese, Tulloch and Lauwers JJ.A.]

Counsel:
John Collins, for the appellant
John Pearson, for the respondent

Keywords: Criminal Law, Arson, Evidence, Video Evidence, Reliability of Reconnection Evidence,  Admissibility, Witness Testimony, Credibility, Appeal Dismissed

R. v. Tenny, 2015 ONCA 841
[Hoy A.C.J.O., MacFarland and Lauwers JJ.A.]

Counsel:
Gatlin Smeijers and Glen Jennings, for the appellant
Sylvia Davis, for the respondent

Keywords:  Environmental Law, Provincial Offences Act, Section 26(3), Service of a Summons Outside Canada, Appeal Dismissed

R. v. Ahmed, 2015 ONCA 848
[Simmons, van Rensburg and Benotto JJ.A.]

Counsel:
Neil Weinstein, for the appellant
Mary-Ellen Hurman, for the respondent

Keywords: Criminal Law, Robbery, Evidence, DNA, Unreasonable Verdict, Appeal Allowed

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.

Hello everyone. Below are the summaries of this week’s Ontario Court of Appeal decisions.  Topics covered include the duty to defend in insurance law; custody; summary judgment; section 7 of the Charter and the Building Code Act; and contractor fraud/theft charges in a home renovation case.    

Please feel free to share this blog with anyone whom you think would be interested. As always, we welcome your comments and feedback.

Lea Nebel

Blaney McMurtry LLP

lnebel@blaney.com

Tel: 416. 593.3914

http://www.blaney.com/lawyers/lea-nebel

 

Unifund Assurance Company v. D.E., 2015 ONCA 423

[MacPherson, Cronk and Gillese JJ.A.]

Counsel:

M. O’Donnell and M. Barrett, for the appellant.

V. Msi, for the respondents.

Keywords: Insurance Law, Insurance Policy Interpretation, Duty to Defend, Duty to Indemnify, Exclusion Clauses, Contra Proferentem

Facts:

The respondents, D.E. and L.E., have a homeowners’ insurance policy with Unifund Assurance Company (“Unifund”), which includes liability coverage if their personal actions cause unintentional bodily injury or property damage. D.E. and L.E. are defendants in a lawsuit where the anchor claim is that their daughter bullied a fellow student, resulting in physical and psychological injuries. The claim against D.E. and L.E. sounds in negligence: failure to control their daughter.

Unifund refused to defend and indemnify them in the underlying lawsuit, relying on two exclusion clauses in the insurance policy. D.E. and L.E. brought a successful application for  a declaration that Unifund had a duty to defend and duty to indemnify.  Unifund appeals the application judge’s decision.

Issues:  Can Unifund rely on the exclusion clauses in the insurance policy to preclude their duty to defend and indemnify D.E. and L.E. in the underlying action?

Held: Appeal allowed. The exclusion clauses preclude the duty to defend and duty to indemnify. Unifund is entitled to costs of the appeal.

Reasoning:

  • The Court applied the three-part test for interpreting insurance policies in the context of the duty to defend and duty to indemnify, as established in Non-Marine Underwriter, Lloyd’s of London v Scalera, 2000 SCC 24. First, a court should determine which of the plaintiff’s legal allegations are properly pleaded. Second, the court should determine if any claims are entirely derivative. Finally, the court must decide whether any of the properly pleaded, non-derivative claims could potentially trigger the insurer’s duty to defend.
  • At the first and second steps, the plaintiff’s claims are properly pleaded, and are not derivative of the intentional tort claim against the respondents’ daughter.
  • Finally, the non-derivative claims do not trigger the duty to defend, as a result of the exclusion clauses. Contrary to the application judge, the Court of Appeal found that the exclusion clauses were clearly worded, and rejected the application judge’s reliance on the contra proferentem The negligence alleged against the respondents in the Statement of Claim falls within the wording of the exclusion clauses.

C.S. v. TD Home and Auto Insurance Company, 2015 ONCA 424

 [MacPherson, Cronk and Gillese  JJ.A.]

Counsel:
M. D. Isaacs and C. A. Grant for the appellants
E. Mehrabi for the respondents

Keywords: Civil litigation; Insurance defence and indemnification; Minors; Verbal threats; Physical abuse

Facts:  This is a companion appeal to Unifund Assurance Company v D.E. and L.E., also released today, in which the Court of Appeal set aside the order of the application judge and held that the appellant insurance company did not have a duty to defend and indemnify the respondent parents in the underlying action which related to alleged bullying and harassment by several defendants’ minor daughters.  The principal parties (parents), underlying actions and relevant insurance policies in both cases are identical. In the case at bar, the application judge adopted the reasons at first instance in Unifund and held that TD Home and Auto Insurance Company (“TD Home”) had a duty to defend and indemnify the parents, C.S. and J.G., in the underlying action.

Issues:

 (1) Can TD Home rely on the exclusion clauses in the insurance policy to preclude their duty to defend and indemnify C.S. and J.G. in the underlying action?

(2) If yes, what happens to the respondents’ minor daughter, M.G., who is a party to the underlying action?

(3) What is the correct award of costs?

Holding: TD  does not have a duty to defend or indemnify C.S., J.G. and M.G. in the underlying action. On consent of the parties, application costs are fixed at $11,300  and appeal costs at $10,500, both payable to the appellant.

Reasoning: 

(1) The application judge erred in his interpretation of the exclusion clause in the insurance policy.  The appellant does not have a duty to defend and indemnify the respondent parents in the underlying action.

(2) The style of cause before this Court and in the underlying action includes M.G. as a party. The application judge gave no consideration to the position of M.G. The minor daughter in Unifund was not a party. The underlying action claims that the three minor defendants, including M.G., verbally threatened and physically assaulted K.S. at school, in the community, and also verbally threatened her via telecommunications.  By parity of reasoning, exclusion 6(a) in the TD Home policy applies just as it did in Meadows v Meloche Monnex Insurance Brokers Inc., 2010 ONCA 394, and there is no duty to defend or indemnify M.G. in the underlying action.

(3)The application judge awarded the respondents costs of $13,000 “on consent”.  The parties all state that they agreed on $11,300 to the successful party. The appellant is also entitled to its costs of the appeal, fixed on consent at $10,500.

D.D. v. H.D., 2015 ONCA 409

 [Cronk, Gillese and Brown JJ.A.]

Counsel:

C. Murray and S. Wozny, for the appellant.

A. Fazari and A. Iler, for the respondent.

Keywords: Family Law, Custody, Interaction between Child Protection Proceedings and Custody Proceedings, Divorce Act, Children’s Best Interests, Domestic Violence, Child Support, Spousal Support, Evidence for Custody

Facts: The mother, H.D. (the “appellant”) and the father, D.D. (the “respondent) have two children. In June 2009, the Children’s Aid Society (“CAS”) became involved with the family due to concerns about domestic violence. Various incidents of violence occurred, resulting in multiple criminal charges against D.D. He later pled guilty to criminal harassment.

H.D. and D.D. reached an agreement on custody, access, and child and spousal support (the “Consent Order”). Subsequent incidents of domestic violence resulted in further criminal charges against D.D. The CAS recommended that D.D. exercise only supervised access, and later apprehended the children from H.D. because she was transient, appeared unstable, and was overwhelmed and homeless. The children were returned to H.D. after 4 days in CAS care.

After H.D. and the children were involved in a car accident en route to Alberta, D.D. brought a motion to vary the Consent Order, gain custody of the children, and end his child and spousal support obligations (the “Motion to Vary”). A hearing was held, where H.D. was ordered to return the children to Ontario and provide the children’s address. H.D. did not comply, and was later held in contempt of court.

When the Motion to Vary was returned, H.D. and her counsel were prohibited from participating or filing any materials. By orders dated July 31, 2013 and August 2, 2013 (the “Orders”), D.D. was given custody of the children; H.D. was given supervised access, subject to her providing D.D. with a satisfactory psychiatric report; D.D.’s child and spousal support obligations were terminated; and H.D. was ordered to pay D.D. child support based on imputed annual income of $20,000.

H.D. appealed to the Court of Appeal, and asked that the Orders be set aside and the Motion to Vary remitted for a new hearing before a different judge.

Issues:

(1) Did the motion judge err in giving the respondent custody without considering the children’s best interests and without affording the appellant procedural fairness?

(2) Did the motion judge err in making the appellant’s access to the children conditional on the respondent’s approval?

(3) Did the motions judge err in her determination of the child and spousal support issues?

Holding: Appeal allowed. The motion judge erred on all three determinations. Orders set aside. Motion to Vary to be heard anew before a different judge.

Reasoning: Custody is to be decided based only on the best interests of the children.

(1) A full evidentiary record, including evidence from both parents, is generally required in order to determine the child’s best interests (King v. Mongrain, 2009 ONCA 486). The motion judge awarded custody on an inadequate evidentiary basis. The evidence was solely that of the respondent. Moreover, the motion judge seems to have given no consideration to important factors such as the history of domestic violence and the father’s limited time spent with the children.

(2) In M.(C.A.) v. M.(D.) (2003), 67 O.R. (3d) 181 (C.A.), the Court emphasized that courts cannot delegate to a third party the power to determine access. The order purporting to give the appellant supervised access to the children only if she provides a psychiatric report satisfactory to the respondent was an improper delegation.

(3) No reasons were given for the orders made in regard to child and spousal support. Given the virtual absence of evidence and inquiry on those issues, the orders cannot stand.

Fritz Marketing Inc. v. Metz, 2015 ONCA 410

[Feldman, Hourigan and Pardu JJ.A.]

Counsel:

W. W. Sarasin, for the appellants

J. R. Smith, for the respondents

Keywords: Summary judgment, Rule 20, genuine issue, counterclaim

Facts: The appellant, Metz,  appealed from  an order granting summary judgment against him personally for amounts owing on invoices for bags supplied by the respondent to Mr. Metz’s two companies. He submitted that the motion judge erred by making findings of fact that determined liability based only on the motion record, which included cross-examinations on the affidavits filed, and without resorting to the powers under Rule 20 to order the trial of an issue or to hold a mini-trial on genuine issues for trial. The appellant submitted that there were two genuine issues that required a trial: 1) whether the appellant had agreed to be personally liable for the debts of his companies; and 2) whether he agreed that the monies paid for new purchases were to be credited first to an old debt of Ontario Bag Company Ltd., which he acknowledged a direct connection to on cross-examination.

Issues: Did the motion judge err in granting  summary judgment?

Holding: The appeal is dismissed, with costs fixed in the agreed amount of

$19,000, inclusive of disbursements and HST.

Reasoning: The motion judge made no error either in the procedure he followed or in his conclusions based on the record. His reasons were amply supported by the evidence that the appellant agreed to be personally liable for the past and future debts of his companies. Moreover, the record was clear that the appellant understood that the outstanding Ontario Bag Company Ltd. debt was being paid down before the new invoices.

The Court also rejected the appellants’ argument that the motion judge had not disposed of their  counterclaim for damages arising from defective bags. Although the motion judge did not make final orders dismissing both the appellants’ counterclaim and the respondent’s claims, it was clear from his reasons that the summary judgement order would determine and deal with all issues raised by the parties.

R. v. Goebel, 2015 ONCA 411

[Weiler, Watt and Epstein JJ.A.]

 Counsel:

K. J. Berger, for the appellant

D. Guttman, for the respondent Attorney General of Ontario

A. Ross, for the respondent City of Toronto

Keywords: The Canadian Charter of Rights and Freedoms, ss. 7, 15 and 2(b), Building Code Act, Provincial Offences Act, Jurisdiction, Advanced Funding, British Columbia (Minister of Forests) v. Okanagan Indian Band, Prerogative relief

Facts: 

The appellant is a man with a disability. He suffers from a serious mental illness. He owns and occupies a house on property in the City of Toronto. As a result of complaints relating to the maintenance of the appellant’s property, the City performed a number of inspections and made various compliance orders under the Business Code Act (“BCA”). The appellant failed to comply. Faced with continued non-compliance, the City charged the appellant under the Provincial Offences Act for failing to comply with the BCA and the appellant challenged the constitutional validity of the BCA. He argued that the BCA violates his security of the person under s. 7 of the Charter asthe enforcement of the BCA allows the City to seize his home. He also argued that the BCA discriminates against him contrary to s. 15 of the Charter, and curtails his freedom of expression contrary to s. 2(b) of the Charter. However, the crux of his argument rests with s. 7 of the Charter.

The appellant submitted that, without government funding, he does not have the financial wherewithal to defend the charge against him, that his constitutional challenge has merit, and that the issues his case raises are of public importance. He therefore argues that the criteria for advanced funding are met and the application judge erred in concluding otherwise.

Finally, the appellant seeks prerogative relief in  light of what he characterizes as the City’s manifestly unfair and oppressive prosecution of him.

Issues: 

(1) Is the order under appeal  interlocutory?

(2) Does the appellant meet the criteria for advanced funding?

(3) Is the appellant entitled to prerogative relief?

Holding:

Appeal dismissed.

Reasoning: 

(1) Unresolved. Having considered the submissions, the panel decided that, given the state of this record, it is preferable to leave the issue of jurisdiction to another day.

(2) No. The appellant did not satisfy the three-part test set out for advanced funding in British Columbia (Minister of Forests) v. Okanagan Indian Band. Namely, pursuant to part two of the test, the appellant did not show that his claim has sufficient merit since the appellant’s primary challenge is premised on the argument that the BCA gives the City the right to take his shelter, and section 7 of the Charter has not been interpreted to protect a right to property. Second, the appellant’s assertion that the operation of the BCA puts his interest in his property in jeopardy is factually incorrect. There is no provision in either statute that would allow the City to deprive the appellant of his shelter. Finally, due to the statutory framework designed to further the City’s objectives to keep property maintained to certain minimum standards, the appellant’s constitutional challenge to the BCA cannot succeed. Specifically, the impugned legislation, the BCA, does not operate so as to deprive the appellant of any Charter-protected interests.

(3) No. The prerogative relief request is also devoid of merit. The City has, within the context of the avenues available to it, dealt with the appellant fairly and reasonably by attempting to assist him, where possible.

Orr v Metropolitan Toronto Condominium Corporation No. 1056, 2015 ONCA 407

[Feldman, Tulloch and Lauwers JJ.A.]

Counsel:
G. D. E. Adair, Q.C. for appellant Orr
B. A. Percival, Q.C. and T. B. Rotenberg for respondent Metropolitan Toronto Condominium Corporation No. 1056,and  respondents Ward, Boland and Dorman
R. J. Clayton, for respondent Brookfield LePage Residential Management Services, and respondents Post and Cawthorn
D. Gadsden, J. B. Casey, and M. Saunders, for respondent Gowling, Strathy & Henderson
T. W. Arndt for third party respondent and appellant Weldon

Keywords: Implementation of an Appeal Decision; Costs; Valuation; Prejudgment and Post Judgment interest; Sanderson order; References

Facts:  This decision addresses (1) the implementation of a previous decision released by this court on December 2, 2014 and (2) the costs related to same.

Issues:

(1) How should the decision be implemented (e.g.valuation of a two-story townhouse; prejudgment and post judgment interest; changes to trial judge’s order referring some matters to references by a Master)?

(2) Which party should pay which appeal and trial costs, and in what amounts?

Holding:

(1) The valuation difference between a two-story and three-storey townhouse should be determined by way of the trial of an issue before the trial judge. The Plaintiff is not entitled to prejudgment interest on damages relating to the valuation of the unit. Prejudgment interest on the damages for common element repairs ends on Aug. 18, 2011.  The appellant is not awarded interest on close-up costs. References are no longer necessary.

(2) Costs are awarded as follows. Appeal costs: MTCC 1056 and Gowlings will each pay $44,170.81 to the appellant and also $11,325.62 to Brookfield; Gowlings will pay $42,490.60 to MTCC 1056; appellant will pay $22,651.25 to Brookfield. Trial costs: MTCC 1056 and Gowlings will each pay $150,000 to the appellant and also $50,000 to Brookfield; appellant will pay $100,000 to Brookfield.

Reasoning: 

(1) The plaintiff is not entitled to prejudgment interest on the townhouse valuation because it is to be calculated in the manner set out by the trial judge, per para. 148 of the appeal reasons. The plaintiff is fully compensated because the valuation date was moved from the date of closing in 1998 to the date of the decision in 2014. The plaintiff’s prejudgment interest on the damages for common element repairs ends on the date of the trial judge’s order awarding such damages. Interest on close up costs is not awarded because the appellant had no obligation to close up the third floor and was not awarded close-up costs.

(2) The appellant is responsible for only 50% of Brookfield’s appeal costs under a modified Sanderson order to mitigate the unfairness that would result from ordering the appellant to pay the entirety of Brookfield’s costs.  MTCC 1056 is responsible for one quarter of the costs because they were unsuccessful in defending against the appellant’s misrepresentation claim at appeal.  Certain issues relating to costs (e.g.whether some indemnification obligations extend to costs) should be remitted to the trial judge.

Meisels v. Lawyers Professional Indemnity Company, 2015 ONCA

[Weiler, Cronk and Pepall JJ.A.]

Counsel:

J. S. Cavanagh, for the appellant.

M. Simaan and A. Minkin, for the respondent.

Keywords: 

Facts:

The respondent, Meisels, is a lawyer licensed to practice law in Ontario. He is an undischarged bankrupt. He is being sued for professional negligence in a class action in Colorado. He brought an application pursuant to rule 14.05(3) of the Rules of Civil Procedure seeking a declaration that the appellant, his professional liability insurer, is required to indemnify him for all sums that he may be liable to pay, plus defence costs, in relation to the Colorado class action. The trustee in bankruptcy is not defending the class action on behalf of Meisels and did not oppose the application.

The appellant took the position that Meisels lacked the legal capacity to bring the application and brought a motion to strike his application pursuant to rule 21.01(3)(b). The motion judge dismissed the appellant’s motion and her order contained a declaration that the respondent “has status to bring the Application against LawPro.”

Issues:

(1) Is the motion judge’s order interlocutory or final?

(2) Did the motion judge err in holding that the respondent has the capacity to bring this application?

Holding:

The appeal is allowed and the motion judge’s decision is set aside. The respondent’s application is dismissed with costs below and in this court. By agreement of counsel, the costs of the appeal are fixed in the amount of $10,000, inclusive of disbursements and all applicable taxes.

Reasoning:

(1) The order is a final order and the appeal is properly before this court. The motion judge’s order contained a declaration that the respondent had a substantive right to bring the application. This declaration deprives the appellant of the substantive defence that the application is a nullity. That defence, if successful, would be determinative of the entire action. Thus, although the order does not finally dispose of the rights of the parties to the action, it disposes of a substantive right that is determinative of the entire action.

(2) Yes, the motion judge erred in holding that the respondent has the capacity to pursue the appeal. Section 71 of the Bankruptcy and Insolvency Act (BIA) provides that once a bankruptcy order is made, subject to the Act and the rights of secured creditors, the bankrupt’s property passes to the trustee named in the bankruptcy order. The bankrupt ceases to have any capacity to deal with his property and an action commenced by an undischarged bankrupt is a nullity. However, there is a common law exception to s. 71 of the BIA where the claim or loss is personal in nature rather than proprietary. The respondent’s claim against the appellant does not fit within this exception because it is not a personal claim as defined in the jurisprudence. His application for a declaration that the appellant must indemnify him under his insurance policy is a claim in breach of contract that is solely about money and vests in the trustee.

The right to claim an indemnity and to enforce this claim by bringing an action is the right of the trustee in bankruptcy, and this right belongs to the trustee whether the indemnity is payable directly to the insured bankrupt or to a third party. This is so because, even though the proceeds do not form part of the bankrupt’s estate, if the claim is successful, all the creditors of the bankrupt may benefit from the reduction of another creditor’s claim.

Additionally, similar to Re Adler, the right to bring an action to enforce the terms of the insurance policy do vest in the trustee and can be assigned by the trustee.

Vacca v. Golf North Properties Inc, 2015 ONCA 418

[Weiler, Cronk and Pepall JJ.A.]

Counsel:

V. Vacca, for the appellants

S. Adler, for the respondents

Keywords: Summary judgment, Rules 20, 21 and 25.06 Rules of Civil Procedure, purchase and sale, satisfied or waived, limitation period, s. 4 Real Property Limitations Act

Facts: The appeal involved two separate properties: one in Fergus and the other in Erin, Ontario. Regarding the Fergus property, the action arose with respect to the enforceability of a purchase and sale agreement. Absent prior written consent by both parties, the closing would not take place after September 30, 2006. The respondents moved for summary judgment and to strike the appellant’s claim under Rules 20, 21 and 25.06 of the Rules of Civil Procedure. The respondent argued that the agreement was null and void because the conditions in the agreement were not satisfied or waived before the last possible closing date.

The motion judge agreed and struck the appellant’s statement of claim and dismissed the action. She concluded that no viable cause of action had been demonstrated before her; the appellant had failed to provide any written evidence that the conditions under the agreement had been satisfied or waived. She also concluded that the appellant’s action was barred by the two-year limitation period.

Regarding the Erin property, the appellant’s action alleged claims for money due under a vendor take-back mortgage. In a prior action, Lemon J. of the Superior Court of Justice interpreted the terms of the disputed agreement in the respondent’s favour. The appellant and his daughter appealed but both appeals were dismissed. The appellant then commenced the  within action. The respondents moved to strike his statement of claim. The motion judge concluded that the appellant was seeking to relitigate the issues that were, or could have been, before Lemon J.

Issues:

(1) Did the motion judge err in concluding that no viable cause of action had been demonstrated?

(2) Did the motion judge err with respect to the application of the two-year limitation period?

(3) Did the motion judge err in concluding that the appellant was seeking to relitigate a decided action?

Holding: The appeal relating to the Fergus property is allowed. The appeal relating to the Erin property is dismissed.

Reasoning:

(1)The President of the respondent corporation filed an affidavit that made unqualified assertions that the conditions under the agreement “were never satisfied and were never waived” and that “there had never been an extension” of the closing date. However, the appellant directed the Court to documents that supported his claims of waiver and an agreed extension of the closing date. Thus, the critical assertions in the respondent’s affidavit were directly contradicted by the documents available to the Court. The record did not clearly establish what transpired before the motion judge. It is possible that the motion judge was misinformed about both matters. The Court concluded that it was not plain and obvious that the appellant’s statement of claim disclosed no reasonable cause of action. Nor was it clear that there is no genuine issue requiring a trial in respect of the Fergus property.

(2) With respect to the relevant limitation period, the Court stated that to the extent that the appellant’s action could be characterized as “an action to recover any land” the ten-year limitation period in s. 4 of the Real Property Limitations Act may apply.

(3) Regarding the Erin property, the Court stated that the allegations in the statement of claim were already resolved by Lemon J. or should have been raised before him. The motion judge had correctly struck out the appellant’s pleading and dismissed his action.

Golfnorth Properties Inc. v. 457351 Ontario Inc., 2015 ONCA 419

[Weiler, Cronk and Pepall JJ.A.]

Counsel:

V. Vacca, as agent for the appellant 457351 Ontario Inc.

S. Adler, for the respondent

Keywords: Endorsement, Mortgage Discharge

Facts: This appeal arises from the respondent’s application for an order discharging the $800,000 mortgage registered on the Erin property, which it brought against 457351 Ontario Inc. and Diana Vacca. In a prior proceeding, Lemon J. of the Superior Court of Justice interpreted the disputed agreement in the respondent’s favour. Under the interpretation Lemon J. adopted, the respondent could decline to pay an $800,000 mortgage, which was registered against title to the Erin property. If it did, the appellant had the option to repurchase the property from the respondent for $1.2 million. The respondent did decline to pay the mortgage but the appellant did not proceed to repurchase the property pursuant to its option. The respondent therefore applied to have the mortgage discharged.

Issues: Should the mortgage be discharged?

Holding: Appeal dismissed.  The court agreed with the motion judge that the mortgage should be discharged.

Reasoning: The motion judge noted that the terms of the parties’ agreement were clear. The motion judge concluded that the relief requested by the respondent should be granted as it logically flowed from the reasons of Lemon J.

The agreement expressly provided that if the transaction failed to close for any reason not directly attributable to the fault of the respondent, the mortgage was deemed to be satisfied in full.

The order for discharge of the mortgage flowed from Lemon J.’s resolution of the parties’ dispute and the appellant’s failure to repurchase the property for the purchase price of $1.2 million. On the findings of Lemon J., that failure did not arise from any fault of the respondent.

R. v. Singer, 2015 ONCA 415

[Weiler, Tulloch and van Rensburg JJ.A.]

Counsel:

A. D. Gold and M. Webb, for the appellant.

S. G. Ficek, for the respondent.

Keywords: Endorsement, Criminal Law, Fraud Over $5000, Theft, R v Zlatic, Other Fraudulent Means, Overcharging, R v Lake, Expert Witness

Facts:

Mrs. Heath, a 76 year old woman at the time of these events in 2008, lived alone in a house she had owned for 30 years. She had a mental illness, and her financial advisor restricted her to withdrawing $1,000 per month. Mrs. Heath called the appellant after receiving his brochure for his home renovation business “Stay in Place Renovations”. Upon meeting the appellant, the complainant signed a contract for various items of renovation work. The contract price was $5,617.50. On August 15, she signed another contract for $122,010, for further renovation work. On September 12, she signed a third contract for $195,300. The contracts were all signed by the appellant. In total, Mrs. Heath paid out $301,000 to the appellant. She withdrew some of the money from her savings, and some from RRSPs and RRIFs, resulting in an income tax liability of almost $80,000.

After November 5, 2008, Mrs. Heath’s mental health began to deteriorate and she had a psychiatric admission to the hospital. She never returned to her home and moved to a nursing home. On November 19, 2008, the appellant left a note on her fridge saying that “because of your present health condition all work will be stopped on Nov. 20/08. Please call when your health improves.” At the time, none of the work had been completed, much of the work that was performed was deficient, and the house was uninhabitable. Despite attempts by Ms. Heath’s son to have the appellant do the contracted work, the appellant never did any more work and did not refund any of the money the appellant had paid.

The trial judge convicted the appellant of fraud over $5,000 because in comparison to industry standards, the appellant grossly overcharged the complainant for an amount between $85,000 and $200,000.  The trial judge was satisfied beyond a reasonable doubt the overcharge was dishonest conduct by the ordinary standards of reasonable and honest people.

The finding of guilt in relation to theft was based on the fact that after Mr. Heath spoke to the appellant he kept the money that the complainant had paid although he had terminated work on the house, leaving the house uninhabitable, when the complainant went into hospital.

Issues:

(1) Did the trial judge err by finding that overcharging amounted to fraud?

(2) Did the trial judge err by qualifying one of the Crown witnesses, Rudy Mulder, as an expert, despite his being an acquaintance of the complainant’s son?

(3) Did the trial judge err in finding the appellant guilty of theft in addition to fraud?

Holding:

The appeal is allowed to the extent of setting aside the finding of guilt in relation to the count of theft. In relation to the count of fraud, the appeal is dismissed and the conviction upheld.

Reasoning:

(1) No, the trial judge did not err in finding that overcharging amounted to fraud. The Supreme Court in R. v. Zlatic, [1993] 2 S.C.R. 29 observed that “other fraudulent means” is “conduct which reasonable and decent persons would consider dishonest and unscrupulous”. In this case, the appellant did more than overcharging the respondent. The appellant persuaded the respondent to enter into two further contracts for a total of $300,000 on a house with a market value in the mid $400,000 range. Further, the appellant knew he was taking advantage of the complainant.

While the trial judge did not quantify the exact amount of the overcharging in his reasons for conviction, he concluded that there was overcharging by at least $85,000. He was not required to specifically quantify the amount over $5,000 in finding the appellant guilty.

(2) No, the trial judge did not err in  permitting Mr. Mulder to testify as an expert witness. The trial judge conducted a voir dire into Mr. Mulder’s evidence. He properly considered the witness’ education and experience and limited the scope of his expert testimony. The question of whether Mr. Mulder was impartial and independent was not pursued by defence counsel at the voir dire or in argument at trial.

(3) Yes, the appellant should not have been found guilty for theft. In R. v. Lake, [1953] O.R. 1009 (C.A.), the court distinguished fraud and theft. Based on the facts of the current case, the appellant’s actions fit within fraud, but not theft. Mrs. Heath intended to part with her money; she was induced to do so “by other fraudulent means”; she was induced to act to her detriment by giving the appellant money in circumstances where she would not have done so but for the course of action he followed.

Law Society of Upper Canada v. Fuerst Estate, 2015 ONCA 430

[MacPherson, Huscroft, and Roberts JJ.A]

Counsel:

W. Rallis, acting in person

N. Musclow, for the respondent

Keywords: Endorsement, ss. 49.45, 49.47 and 49.52 of the  Law Society Act, deceased lawyer’s professional material

Rojas v. Unilever Canada Inc., 2015 ONCA 428

[Juriansz, Rouleau, and Lauwers JJ.A.]

Counsel:

C. Guerette and J. Rajagopalan, for the appellant

A. Wood, for the respondent

Keywords: Endorsement, Adding Defendant as a Party

Skypower CL 1 LP v. Ontario Power Authority, 2015 ONCA 427

[Juriansz, Rouleau, and Lauwers JJ.A]

Counsel:

T. Gilbert, M. Diskin, and A. Moser, for the appellants

L. Favreau, A. Leamen, H. Borlack, and D. Elmaleh, for the respondents

Keywords: Endorsement, Judicial Review, Abuse of Process Doctrine

Farid v. Porteous, 2015 ONCA 413

[Feldman, Hourigan, and Benotto JJ.A]

Counsel:

M. Farid, acting in person

G. Elliot, for the respondent

Keywords: Endorsement, Damages, Failed Real Estate Transaction

Waye v. Cook, 2015 ONCA 425

[Simmons, Cronk, and Blair JJ.A.]

M. Tweyman, for the appellant

D. Smith, for the respondent

Keywords: Endorsement, Jurisdiction

The Canada Trust Company v. Potomski, 2015 ONCA 420

[Pardu J.A. (In Chambers)]

Counsel:

R. J. Potomski, acting in person

J. Kukla, for the respondent

Keywords: Endorsement, Mortgage Terms, Costs

R. v. Bengy, 2015 ONCA 409

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

Counsel:

R. Litkowski, for the appellant

M. Bernstein and R. Gattrell, for the respondent

Keywords: Criminal Law, New Self Defence Provisions, Defence of Provocation, R. v. W. (D.), [1991] 1 S.C.R. 742

R. v. Modeste, 2015 ONCA 398

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

Counsel:

D. Doucette, for the appellant

R. Shallow and M. Bernstein, for the respondent

Keywords: Criminal Law, s. 21(2) Criminal Code, Self Defence, Prior Statement of a Witness

R. v. Rogers, 2015 ONCA 399

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

Counsel:

D. Doucette, for the appellant

M. Bernstein, for the respondent

Keywords: Criminal Law, Self Defence, R. v. W. (D.), [1991] 1 S.C.R. 742, After-the-Fact Conduct

R. v. Liard, 2015 ONCA 414

[Laskin, Epstein, and van Rensburg JJ.A]

Counsel:

E. Nakelsky and M Fawcett, for the appellant

J. Lockyer, L Beechener, D. Brodsky, for the respondent

Keywords: Criminal Law, First Degree Murder, R. v. Edgar, 2010 ONCA 529, spontaneous statement

R. v. Moffit, 2015 ONCA 412

[Doherty, Pepall, and Tulloch JJ.A]

Counsel:

I. Smith, for the appellant

C. Tier, for the respondent

Keywords: Criminal Law, Second Degree Murder, irrelevant and prejudicial evidence

R. v. Trudel, 2015 ONCA 422

[Blair, Tulloch, and Hourigan JJ.A]

Counsel:

C. Trudel, acting in person

J. Presser, Amicus Curiae

D. Calderwood, for the respondent

Keywords: Criminal Law, Not Criminally Responsible by Reason of Mental Disorder, Aggravated Assault

R. v. Dufour, 2015 ONCA 426

[Feldman, Hourigan, and Pardu, JJ.A.]

Counsel:

K. Doherty, for the appellant

B. Chase, for the respondent

Keywords: Criminal Law, Sentencing, Break and Enter, Staying of a Sentence

R. v. Hockey, 2015 ONCA 421

[Laskin, MacFarland, and Rouleau JJ.A]

Counsel:

R. Litkowski, for the appellant

J. McInnes, for the respondent

Keywords: Endorsement, Criminal Law, Aggravated Assault, Assault with a Weapon, Witness Testimony, R. v. W. (D.), [1991] 1 S.C.R. 742

R. v. Remey, 2015 ONCA 416

[Weiler, Tulloch, and van Rensburg JJ.A]

Counsel:

Z. Kerbel, for the appellant

M. Adams, for the respondent

Keywords: Endorsement, Criminal Law, Section 8 Charter, Possession of a Firearm Without a License, Possession of Cocaine for the Purpose of Trafficking, Obstructing a Police Officer

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.

Hello everyone and welcome. I’m very excited to announce in this posting the official launch of a brand new blog called the Blaneys Ontario Court of Appeal Summaries Blog (or Blaneys OCA Blog for short).

For years, our firm has been preparing weekly summaries of all decisions just released by the Court of Appeal for Ontario (other than criminal law decisions) for internal distribution, usually on Friday afternoons. On more than one occasion, our litigators (we have over 80 of them) have relied on decisions they learned about over the weekend at their hearings the following week.

We have now decided to share our summaries with the Ontario bench and bar. If you find this blog and the weekly emails useful, please feel free to forward the emails you receive or a link to our blog to any colleagues or friends who you think may be interested in following the blog.

As the editor, I welcome any feedback or comments you may have that can help us to improve the blog or weekly emails. This is a new initiative and we are still working out the kinks, so please bear with us.

I hope everyone has a wonderful summer.

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com
Tel: 416.593.2953
http://www.blaney.com/lawyers/john-polyzogopoulos

 

Turfpro Investments Inc. v Heinrichs, 2014 ONCA 503
[Hoy A.C.J.O., Cronk and Pepall JJ.A.]
Counsel:
I. A. Duncan and M. A. van Bodegom, for the appellants
P. D. Amey, for the respondent

Keywords: Summary Judgment, Loan Agreement, Material Alteration, Laches

Facts:
The appellants, the Heinrichs, guaranteed a loan made by the respondent, Turfpro Investments Inc., to Rose of Sharon Retirement Community (“Rose”) that was due in 2007. Rose entered into a loan agreement with the respondent dated May 4, 2006, for the advance of $500,000 in standby funds to be used for the construction of retirement residences by Rose. The loan agreement provided, among other things, that the debt was due and payable on October 1, 2007; Rose granted the respondent an irrevocable option to purchase a specific unit in the retirement development at a specified price; and the appellants guaranteed repayment of the standby debt plus interest and agreed to observe the covenants, terms and conditions of the loan agreement. In the event of default by Rose, the appellants, upon demand, would pay any amounts in default. The language of the guarantee was very sparse and did not contain any provisions that expressly allowed for time extensions for repayment, renewal or forbearance.

The respondent demanded payment on the guarantee in 2012, subsequently sued the appellants and then brought a motion for summary judgment. The motion judge awarded judgment in favour of the respondent in the amount of $994,728.92 plus interest.

On appeal, the appellants claim that four amendments were made to the loan agreement by the respondent and Rose without the appellants’ consent: These include the short-term fixed term loan payable on October 1, 2007 was converted into a demand loan; the respondent and Rose agreed that the respondent would not demand payment of the standby loan while the construction project was ongoing (the “forbearance agreement”); and two different units were substituted for the one unit that was subject to the respondent’s option to purchase and which was specified in the loan agreement.

Issues:
Did the motion judge err in finding there was no genuine issue requiring a trial with respect to:
(1) the material alteration of the terms of the loan agreement?
(2) the respondent’s action being premature?
(3) the defence of accord and satisfaction?
(4) the defence of laches?

Holding:
Appeal allowed. Summary judgment set aside and the action referred to trial on the defences of laches and the material alterations to the loan agreement which related to the repayment date and the alleged forbearance agreement.

Reasoning:
(1) Yes. The motion judged failed to consider the factual matrix underlying the arrangements between the respondent and Rose and also failed to apply the appropriate legal principles. He failed to consider the totality of the evidence that supported the appellants’ position that there were material alterations to the loan agreement with respect to the repayment date and the alleged forbearance agreement.
As an alternative basis for his decision, the motion judge focused his attention on whether each alteration fell within an exception to the material alteration test: was the alteration necessarily beneficial to the guarantor; that is, could it be prejudicial to the guarantor or otherwise than beneficial to the guarantor? The motion judge applied the incorrect test. He considered that the parties had knowledge of the continuation of the standby debt and that there was “a clear benefit” to the appellants that arose from any forbearance by the respondent. Knowledge is not determinative and the motion judge failed to decide whether the alterations were necessarily beneficial or otherwise than beneficial to the appellants. His finding that there was no prejudice was infected with an absence of any consideration of the impact of the potential for prejudice arising from a change in, or extension of, the due date in the loan agreement.

(2) No. There was ample evidence to support the motion judge’s conclusion that construction had been completed and that the action was not premature.

(3) No. There was no evidence the respondent ever accepted any units in satisfaction of the debt owing under the loan agreement with Rose. The original unit was not pledged as security and the respondent never exercised the option to purchase.

(4) Yes. There is a genuine issue requiring a trial with respect to the defence of laches and more particularly, its requisite component of prejudice. Apart from a blanket finding of no prejudice, the motion judge did not assess the evidence of potential prejudice found in the record. This included the significant time that had elapsed between the due date of the standby loan and demand for payment from the guarantors and the ramifications associated with that delay.

Langstaff v. Marson, 2014 ONCA 510
[MacPherson, Watt and Benotto JJ.A.]
Counsel:
D. Rogers and D. Rogers, for the appellant
R. S. Baldwin, for the respondent

Keywords: Admissibility of Fresh Evidence; Reasonable Apprehension of Bias; Judicial Impartiality;

Facts:
The respondent brought an action based on the sexual abuse he suffered at the hands of his teacher in 1976 and 1977. At trial, a jury found the appellant school board negligent and vicariously liable. Around the same time the respondent brought his action, another former student brought a very similar case (“the Mead action”) which was to be heard after the respondent’s. At a pre-trial conference for the Mead action, the judge realized that he knew both the plaintiff and his family and recused himself after making statements on liability. The same lawyer represented the appellant in both actions.

Four months after the pre-trial, the appellant’s lawyer retired and the files were transferred to a new lawyer (“Mr. Morris”). After the jury had been selected in the respondents trial, an adjuster with the appellants insurer commented to Mr. Morris that she recognized the trial judge as the pre-trial judge in the Mead action. Mr. Morris had no issue with this because he believed any conflict issues would have been disclosed prior to trial. At this point in time, Mr. Morris was also unaware of the similarities between the two actions. It was only in preparation for the Mead case that Mr. Morris learned what had transpired at the respondents pre-trial conference. Mr. Morris testified that if had known this prior to the respondent’s trial, he would have asked the trial judge to recuse himself.

Issues:
(1) Is the fresh evidence admissible?
(2) Does the evidence disclose a reasonable apprehension of bias?

Holding:
Appeal allowed. A new trial is ordered.

Reasoning:
(1) The Court held the fresh evidence should be admitted. The Palmer test for the admissibility of fresh evidence on appeal does not always apply when the proposed fresh evidence “raises issues connected to the validity of the process itself”. The fresh evidence sought to be introduced in this case deals with subsequently discovered facts that challenge the very validity of the trial process.

(2) Rule 50 of Ontario’s Rules of Civil Procedure does not preclude a pre-trial judge from presiding at a trial of a related matter. The issue in this case was the unique combination of the “pre-trial judge’s opinion on the matter; his association with a party; and his decision in an identical matter which might reasonably assist that party he had an association with”.
The test for whether a reasonable apprehension of bias exists is “what would an informed person, viewing the matter realistically and practically, and having thought the matter through conclude? Would he think more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly”. The Court held that a person viewing this matter would likely conclude there was an apprehension of bias. Before withdrawing himself from the pre-trial, he gave an opinion on an issue of liability which was consistent with his decision in the respondents trial.
The respondent also submitted that Mr. Morris should have objected to the trial judge because of what he was told by the claims adjuster. The Court rejected this based on the presumption of impartiality and Mr. Morris’ belief at the time that there was nothing to object to given the information he knew in the moment.

Whitley v. Homma, 2014 ONCA 509 [Endorsement]
[Laskin, MacFarland and LauwersJJ.A.]
Counsel:
G. Sheppard,, for the appellant
A. Mills and S. Beattie, for the respondent

Keywords: Summary Judgment

Holding:
The Court held that this was a proper case for summary judgment and agreed with the reasons of the motion judge.

Hopkins v Kay, 2014 ONCA 514
[Feldman, Watt and van Rensburg JJA]
Counsel:
J.M. Leclerc and M.A. Crystal, for the moving parties
P.J. Hawkins and D. Girlando, for Peterborough Regional Health Centre

Keywords: Civil Practice and Procedure, Motion to Strike, Privacy and freedom of information, Intrusion Upon Seclusion

Facts:
The moving parties are the representative Plaintiffs (the “Plaintiffs”) in a proposed class proceeding. They claim damages alleging that the Peterborough Regional Health Centre (the “Hospital”) breached the privacy interests of approximately 280 patients when their records were accessed. The claim in tort is based on the tort of intrusion upon seclusion based on this court’s decision in Jones v Tsige. The Hospital brought a motion under rule 21.01 to strike the claim for no reasonable cause of action. The motion was dismissed. The Hospital filed a notice of appeal, the Plaintiffs filed a motion on the basis that the route of appeal was to seek leave to appeal to the Divisional Court.

Issue:
Whether this court has jurisdiction to hear the appeal, which depends on whether the order under appeal is final.

Holding:
Motion dismissed with costs payable to the respondents.

Reasoning:
The motion judge’s refusal to dismiss or stay the action based on lack of jurisdiction was a final order. Where, as here, the effect of the order is that the action is going to proceed in the Superior Court, the consequence is that the defendant is precluded from continuing to dispute the court’s jurisdiction over the subject matter of the action. The order therefore is final on the jurisdiction question.

Further, a review of the reasons of the motion judge suggests that the issues of whether the pleading disclosed a cause of action and jurisdiction were bound up in the same question, and the issue is properly characterized as one of jurisdiction. As such, the entire appeal is properly before this court.

Boone v. Ontario (Community Safety and Correctional Services), 2014 ONCA 515
[MacPherson, Blair and Pepall JJ.A.]
Counsel:
Paul Champ and Christine Johnson, for the appellant
Brian G. Whitehead and Melanie Goren for the respondents

Keywords: Procedural Fairness, Habeas Corpus, s.10 Canadian Charter of Rights and Freedoms, Ministry of Correctional Services Act

Facts:
The appellant, an inmate in solitary confinement at Ottawa-Carleton Detention Centre (“OCDC”), is HIV-positive and prone to sexual contact with other male prisoners, some of which are unaware of his condition. He had been convicted of multiple very serious offences, including intent to inflict victims with HIV. The application judge held that while the OCDC did not completely comply with procedural fairness regarding the transfer process, the detention was not unlawful and necessary to ensure the safety of the other inmates or potential cellmates. The OCDC’s position in this application was that the confinement was necessary to protect both the inmate and other inmates; the OCDC had also offered several alternatives, though each still required solitary confinement at night. The appellant claims he was never provided with any reasons for being segregated and that he was not given a meaningful explanation or an opportunity to respond. He sought an order to be returned to the general inmate population and to be placed with a cellmate. Specifically, the appellant argues that once a breach of procedural fairness was found, the application judge had no discretion to refuse to issue a writ.

Issues:
(1) Did the application judge err in assuming he had residual discretion to deny the remedy of habeas corpus?
(2) Did the application judge err in finding that the appellant posed a threat to other inmates?

Holding:
No to both (Appeal dismissed)

Reasoning:
(1) Solitary confinement is a serious deprivation of individual liberty. Section 34 of the Ministry of Correctional Services Act requires the Superintendent of the correctional institution to conduct reviews and make notifications to the Minister depending on how long the inmate has been in solitary confinement.  The Deputy Superintendent failed to fully comply with these and other provisions.  Nonetheless, the breaches to procedural fairness were minor and technical and the application judge had authority to determine whether they rendered the detention unlawful. Moreover, not all procedural breaches result in procedural unfairness.  The appellant was fully aware of the reasons for his segregation and took advantage of various opportunities to make submissions to authorities.  The application judge’s decision was thus reasonable and based on sufficient evidence and the appellant was not denied a fair hearing.

(2) There was enough evidence to justify the application judge’s findings with respect to the threat posed by the appellant and therefore the Court’s analysis was confined to the first issue.

 

Verschuren v Verschuren, 2014 ONCA 518
[Sharpe, Simmons and Benotto JJ A]
Counsel:
P. McInnis, for the appellant
R. Snell, for the respondent

Keywords: Family law, Divorce, Separation Agreement; Spousal Support; Income

Facts:
At issue in this appeal was the trial judge’s determination that a non-arm’s length transaction to hide certain assets did not constitute a decrease in income as contemplated by the separation agreement. The parties had been married for nearly 15 years when they separated. Following the separation, the two children of the marriage then aged nine and thirteen were placed in the custody of the respondent mother. The parties entered into a separation agreement in 2008, which along with the subsequent divorce order provided as follows: “[The appellant] shall pay child and spousal support based on an imputed income of $200,000 and child and spousal support in any given year shall not be subject to variation unless [the appellant’s] income changes by more than 10%.” The $200,000 threshold was derived partly from the appellant’s interest in MAD Designs and the income that it produced. In 2011, the appellant brought a motion to change, alleging that his income had changed by more than 10% as a result of the transfer of this interest. The trial judge rejected this argument, finding that the appellant had voluntarily transferred his interest in the company to his common law spouse for the sole purpose of having his spousal and child support payments reduced. This, in the opinion of the trial judge, did not have the effect of a decrease in income as contemplated by the terms of the separation agreement.

Issue:
Did the motion judge err in law or fact in determining that the appellant’s income had not dropped by more than 10%?

Holding:
No. Appeal dismissed with costs to the respondent.

Reasoning:
The motion judge made the factual determination that the $200,000 figure agreed to had specifically incorporated the income that the appellant would derive from his interest in MAD Designs. Moreover, the motion judge determined that when the appellant transferred this interest to his new common law spouse, he had made a “voluntary non-arms-length transfer of an income producing asset for nominal if any compensation”, solely for the purpose of shirking his spousal and child support obligations. In addition, it was shown that the appellant continued to live lavishly with his common law spouse, partially as a result of the income derived from the MAD Designs investment. As a result, there was no error in fact or law in the trial judge’s determination that (a) the appellant’s interest in MAD Designs formed an essential ingredient of the separation agreement, and (b) that the appellant had not truly divested himself of this interest.

Monette v Tebo, 2014 ONCA 516 [Endorsement]
[Feldman, Watt and van Rensburg JJ.A]
Counsel:
P. Tunley, for the appellants
K. R. Pearson, for the Respondents

Keywords: Property, Construction, Injunction, Counterclaim, Flooding; Nuisance, Harassment

Facts:
The appellants appeal from a judgment dismissing their counterclaim for damages and an injunction. The parties are neighbours with large rural properties near Napanee, Ontario. The Tebo property is 11 acres and the Monette property is 30 acres. The Monettes built a six-hole golf course on their property. The Tebo’s claim that construction of the golf course has caused excessive flooding and pooling of water on their property. They also claimed harassment for golf ball related incidents and the burial by the Monettes of their dog near the property line.

Issues:
(1) Did the trial judge err on the finding of fact on the amount of flooding on the property after the golf course was constructed?
(2) Did the trial judge err by not finding that the failure to fully comply with the Quinte Conservation Authority’s requirements constituted evidence that it was not constructed in a reasonable manner and was evidence of nuisance?
(3) Did the trial judge make findings of credibility against Mr. Tebo on a basis that constituted a misapprehension of certain evidence?

Holding:
Appeal dismissed. The trial judge made no reversible error.

Reasoning:
(1) The trial judge did not err. He had to determine whether the flooding conditions on the Tebo property after construction of the golf course were worse than before the construction. He concluded that they were not.

(2) Because of the finding of fact for Issue #1, this issue became moot because there was no causal connection between the golf course and the alleged flooding. The trial judge “was not satisfied that any accumulation of water on the Tebo land was exacerbated by the golf course or that it constituted a nuisance.”

(3) The trial judge did not err. He was entitled to prefer Mrs. Tebo’s evidence and discount Mr. Tebo’s credibility on the other bases even if the trial judge misapprehended the reason for the discrepancy.

Stevenson v. Smit, 2014 ONCA 521
[Weiler, MacPherson and Cronk JJ A]
Counsel:
D. S. Melamed and C. Levitan, for the appellant
H. I. Fogelman and O. Weinberg, for the respondent

Keywords: Family Law, Separation Agreements, Child Support, Material Change in Circumstances

Facts:
Following a separation in 2005, the parties entered into a separation agreement (the “Agreement”) setting out that the parties would share equally in major expenses concerning their children and that neither party would pay child support in accordance with the Child Support Guidelines (the “Guidelines”).  The father’s income declined over the years and he was forced to liquidate some of his capital assets to meet his obligations.  In 2008, the appellant (the “father”) informed the respondent (the “mother”) that he could no longer satisfy his child support obligations.  The mother applied to the Ontario Court of Justice for an order quantifying the father’s arrears of child support and the father countered with an application to terminate his child support obligations under the Agreement and instead pay child support in accordance with the Guidelines.  The application judge held that the father failed to established a material change in circumstances and dismissed the application.

Issue:
(1) Did the application and appeal judges err by failing to find a material change in circumstances as contemplated by s. 14 of the guidelines?
(2) Is the foreseeability of a change in circumstances the appropriate test for variation under the Guidelines of contractual child support obligations?
(3) Did the judges err by, in effect, requiring him, without imputing income to him, to comply with a child support order that he cannot possibly honour.

Holding:
Appeal Dismissed.

Reasoning:
(1) The findings of the application judge that the father’s need to resort to liquidating capital assets to meet his obligations and that his income was in decline were plainly known to the parties at the time they entered into the Agreement were “amply supported by evidentiary record”.  The father failed to establish a material change in circumstances.

(2)  Both the application and appeal judge correctly identified that foreseeability was a key in the test for the variation of special contractual child support obligations on the basis of a material change in circumstances.  The Court stated that “ if the matter relied upon as constituting a material change in circumstances was known at the time of contract formation, it cannot ground a variation request”.

(3) No.  The application judge correctly considered and rejected the father’s contention that the mother’s application constituted a request to impute income to him.

Ferreira v Esteireiro, 2014 ONCA 523
[Feldman, MacPherson and Cronk JJA]
Counsel:
J M DeMarco for the appellant
J M Nicoll for the respondent

Keywords: Matrimonial Dispute; Separation Agreement; Spousal Support; Arbitration Act; Section 47(1)

Facts:
In 2005, the parties entered into a separation agreement (the “agreement”) which provided for lump sum and periodic spousal support to be paid by the respondent to the appellant.  In 2012, the respondent ceased making support payments on the basis that the appellant was in a relationship resembling marriage, thus terminating his support obligations under the agreement.  The agreement contained an arbitration/mediation dispute resolution mechanism.  The arbitrator ruled in favour of the respondent.  After unsuccessfully seeking leave to appeal the arbitral award, the appellant commenced a fresh application.  The motions judge dismissed the application.  The appellant appealed.

Issue:
Did the motion judge err in dismissing the application as an abuse of process?

Holding:
Appeal dismissed based on res judicata.  The appellant’s repeated attempts to re-litigate issues previously determined by the courts was an abuse of process.

Reasoning:
No.  The record on appeal overwhelmingly demonstrated that the appellant was dissatisfied with the outcome of the arbitration, and that the sole purpose of the proceedings was to avoid enforcement of the arbitrator’s ruling.  This strategy was misconceived and duplicative of the court’s process.  In any event, the appellant’s application was time-barred under ss.47(1) of the Arbitration Act.  Therefore, there was no basis for interference with the motions judge’s decision.

Jennings v. Latendresse, 2014 ONCA 517 [Endorsement]
[Doherty, Epstein and Benotto JJ.A.]
Counsel:
J. Poproski, for the appellant
C. G. Paliare and T. H. Lie, for the respondent

Keywords:  Personal Injury, Causation, Insurance Act, Chronic Pain

Facts:  The appellant Jennings claimed damages against the respondent as a result of a motor vehicle accident. After a nine-day trial, the jury returned a verdict that stated the appellant had recovered from her injuries as a result of the accident.  They awarded her $58,000 for loss of competitive advantage and marketability in the workplace.

While the jury was deliberating, the respondent brought a motion pursuant to s. 267.5(3) of the Insurance Act requesting that the trial judge dismiss the action on the basis that the appellant had not met the “threshold” for damages because she had not sustained a “permanent serious impairment of an important physical, mental or psychological function” from the accident.

The trial judge reserved his decision and rendered it after the jury returned its verdict. He dismissed the appellant’s action on the basis that she had “failed to establish on a balance of probabilities that her injuries from the accident are permanent.”  The trial judge awarded costs to the respondent in the amount of $61,912.64.

Issues:
(1)  Was the jury’s verdict that she had recovered from her injuries perverse and internally inconsistent?
(2)  Did the trial judge err by concluding the appellant’s chronic pain was not permanent and dismissing the action?
(3)  Did the trial judge err in the costs award?

Holding: Appeal dismissed.  Costs payable to the respondent.

Reasoning:
(1)  No.  There was evidence on which the jury could have reached the conclusion that the appellant had recovered from injuries sustained as a result of the accident. This includes medical evidence that the appellant was improving and would continue to improve; expert testimony from a neurologist who said the fact that the appellant’s pain improved and then returned years later demonstrates that the recurring pain was not caused by the original injury; and evidence that pre-accident and post-accident stressors, both physical and psychological, had contributed to the appellant’s chronic pain but had nothing to do with the accident.  The appellant failed to show a causal link between her medical problems as described in the evidence at trial (chronic pain) and the injuries she suffered in the accident.  The evidence was open to that interpretation. A high degree of deference is accorded to a jury verdict even if there is another conclusion that the evidence could have supported.

The jury’s award of $58,000 for loss of competitive advantage and marketability was not internally inconsistent with the finding that the appellant had recovered from her injuries because the jury was asked to assess damages for loss of competitive advantage and marketability independent of its determination on the issue of causation.

(2)  No.  Section 267.5(5) of the Insurance Act provides that the permanent impairment must have been “a result of the use or operation of the automobile”.  The trial judge’s conclusion that the appellant’s chronic pain was not caused by the motor vehicle accident is supported by the evidence and consistent with the jury verdict.  The dismissal of the action was correct even though $58,000 was awarded for loss of competitive advantage/marketability because there was no causation.  Absent causation, the appellant was not entitled to recover any amount from the respondent.