The Court of Appeal released a number of civil decisions this week. Topics included family law, summary judgment, a settlement stemming from the finding of a mouldy piece of chicken found in a cereal box, a contractual disagreement with respect to oil and gas assets, MVA, bankruptcy and wrongful dismissal.
Civil Cases
Tadayon v. Mohtashami, 2015 ONCA 777
[Gillese, Pepall and Lauwers JJ.A.]
Counsel:
Stephen Codas and Michael Zalev, for the appellant/respondent by way of cross-appeal
Michael Stangarone and Ryan Kniznik, for the respondent/appellant by way of cross-appeal
Keywords: Family Law, Family Law Act, Domestic Contracts, Setting Aside, Non-Disclosure, Unconscionability, Miglin v Miglin, Retroactive Child and Spousal Support, Pre-judgment Interest
Facts:
The appellant and the respondent married in 1984 and had three children. They separated in 1999 and were divorced in 2004. The parties entered into a separation agreement in 1999. That agreement set out how the matrimonial home was to be dealt with and that the appellant would pay the respondent $2,000 per month for child and spousal support.
In 2005, the matrimonial property was sold, and another home (Chamwood Property) was purchased for the respondent and the three children. As a result, the parties entered into an amending agreement in 2005, and even though the new property was taken in the respondent's name alone, the 2005 amendment provided that each party had a 50% interest in it.
In 2010, the respondent brought an application in which she sought to set aside the two agreements, obtain retroactive child and spousal support and be declared the sole owner of the new property. At the time the parties entered the 2005 agreement, the appellant misrepresented his income for 2005. The appellant made a lot more money in 2005, which the appellant did not disclose. The application judge found that this financial information was highly material and had been concealed from the respondent; the judge found that the appellant's non-disclosure was unconscionable. He set aside the 2005 agreement, but not the 1999 agreement, declared the respondent the owner of the new property and made other orders relating to support and costs.
Issues:
The appellant raises three issues on appeal. He submits that the applications judge erred in:
- Setting aside the 2005 Amending Agreement;
- Finding the respondent to be the sole owner of the Charnwood Property; and
- The quantum and duration of the prospective spousal support.
In her cross-appeal, the respondent raises four further grounds of appeal. She submits that the applications judge erred in:
- Failing to order retroactive child and spousal support prior to 2010;
- Failing to award pre-judgment interest on the retroactive child and spousal support order;
- Time-limiting the spousal support order and the quantification of that support; and
- His disposition of the costs of the application.
Holding: Appeal Dismissed. Cross-Appeal allowed on one matter only – the respondent's entitlement to pre-judgment interest on the retroactive child and spousal support award.
Reasoning:
(1) The court held that the application judge did not err in setting aside the 2005 amending agreement. The appellant had an obligation to make proper financial disclosure at the time the 2005 amending agreement was entered into, and did not do so.
(2) The court held that the application made the correct decision in finding the respondent to be the sole owner of the Charnwood Property. Only the respondent's funds were used for the down payment on the Charnwood Property, and the respondent was entirely responsible for making the mortgage payments and paying the other costs on the property. These findings, coupled with the application judge's findings that the appellant preyed on the respondent's economic vulnerability, satisfied the test for unconscionability.
(3) The court relied on the test set out in the Miglin, which provides for a two-step inquiry to determine whether a domestic contract ought to be set aside. As part of the first stage, the court must consider the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it. As well, as part of the second stage, the substance of the agreement must be considered so that the court can determine whether it is in substantial compliance with the objectives of the Divorce Act. The appellant says that the applications judge did not take into consideration the factors and objectives set out in the Divorce Act, he says the judge simply ran the Spousal Support Advisory Guidelines and ordered spousal support. The court refuted this submission. The court held that the applications judge carefully considered the issue of entitlement and found that even post-separation, the appellant derived a significant benefit from the respondent's dominant role in childcare. He further found that while the respondent's role did not prevent her from working at all, it did create some limits on what she could do.
(4) The court saw no merit in the respondent's claim that the application judge erred in disallowing her claim for retroactive child and spousal support prior to 2010. The court disagreed with the respondent's submission claiming that the judge placed too much emphasis on her delay in asserting this claim. The applications judge found that the respondent had not put forward any credible, reasonable excuse for failing to assert those claims before 2010. In making this finding, the applications judge noted, among other things, that the respondent had sworn an affidavit in 2004, to obtain the divorce, in which she indicated that she was content with the terms of the 1999 Agreement with respect to support. The applications judge also found that the respondent had not provided a basis for such claims. I understand him to be referring to the absence of evidence suggesting that either the children's needs or her needs had not been met in the relevant time period. The court held that in these circumstances, it cannot be said that the applications judge erred in failing to order retroactive support.
(5) The court held that the application judge's failure to award pre-judgment interest was an oversight. The court allowed the cross appeal on this issue and ordered that the respondent is entitled to pre-judgment interest on the amount of the retroactive child and spousal support.
(6) The court held that the applications judge applied the appropriate legal principles to findings that were solidly grounded in the evidence. The court saw no significant misapprehension of the evidence on the part of the applications judge and the award is not clearly wrong.
(7) The court relied on subsection 133(b) of the CJA which states that leave to appeal is required where an appeal is only as to a discretionary costs order. When, however, the disposition on appeal changes the decision under appeal, leave to appeal from the costs order is not necessary. Here, since the court allowed the cross-appeal on the issue of pre-judgment interest, the disposition of the cross-appeal changes the decision below. Thus, it would seem that leave to appeal the costs order is not required. However, the court did not interfere with the costs order below.
Brown v. Wahl, 2015 ONCA 778
[Cronk, Epstein and Huscroft JJ.A.]
Counsel:
Mark H. Arnold and Joyce Weinman, for the appellant
Andrew Lundy, for the respondents
Keywords: Torts, Negligence, Medical Malpractice, Limitation Periods, Limitations Act, 2002, ss.4 & ss.5(1)(a) – ss.5(2) Discoverability, Lawless v. Anderson, Expert Opinion, Summary Judgment, Hryniak v Mauldin
Facts: This was an appeal from the summary judgment granted by the motion judge dismissing the appellant's negligence action against the respondents in relation to elective cosmetic dental surgery because it was statute-barred due to the expiry of the two-year limitation period under ss. 4 of the Limitations Act, 2002 (the "Act").
Issues:
(1) Did the motion judge err by failing to apply the test for discoverability of a negligence claim set out in Lawless v. Anderson, 2011 ONCA 102?
(2) Did the motion judge err in finding that an expert opinion was unnecessary in this case to trigger the commencement of the limitation period?
Holding: Appeal dismissed.
Reasoning:
(1) No. Lawless confirms that the test for discoverability is when a prospective plaintiff "had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent". It does not establish a new test for discoverability. Under ss. 5(2) of the Act, a claimant is presumed to have known of the matters referred to in ss. 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. The motion judge found that prior to December 13, 2011, when the appellant met with Dr. Singh, her new dentist, she was experiencing serious and ongoing problems associated with the implant and dental prostheses procedures performed by the respondents. At the same meeting, Dr. Singh explained to the appellant the problem with her prostheses and the cause of breakage in her dentures. These facts amply support the motion judge's conclusion that the appellant ought to have known by December 13, 2011, that the dental problems she was experiencing were caused by substandard treatment by one or both of the respondents. This was sufficient to establish that the appellant discovered her claim no later than December 13, 2011, and that the limitation period began to run on that day. Therefore, the appellant's actions against the respondents were statute-barred because they were commenced in January 2014, after the expiry of the two-year limitation period under the Act.
(2) No. Expert medical evidence is not required before the plaintiff can be said to have reasonably discovered the facts supporting a claim. While the appellant may have learned additional information about the respondents' substandard treatment once she received the expert reports in early 2014, those reports do not detract from the fact that she had sufficient knowledge to be aware of a breach by December 13, 2011 at the latest. This is not a case in which an expert opinion was necessary for the plaintiff to conclude that there was the likelihood of negligence of some kind.
Catanzaro v. Kellogg's Canada Inc., 2015 ONCA 779
[Cronk, Epstein and Huscroft JJ.A.]
Counsel:
Mark Wiffen, for the appellants
Michael White, for the respondent
Keywords: Civil Procedure, Enforcement of Settlements, Infants, Rules of Civil Procedure, Rules 7.08(4) and 49.09
Facts:
The appellants, the Catanzaros, including an infant represented by her mother as litigation guardian, sued the respondent, Kellogg's Canada, after finding a mouldy piece of chicken in a Kellogg's box of cereal bought by the Catanzaros. A settlement was reached and the court was notified. Approximately a year after the settlement, a new lawyer for the Catanzaros notified Kellogg's that his clients were resiling from the settlement agreement and were going to proceed with the action. Kellogg's moved to enforce the settlement under rule 49.09 of the Rules of Civil Procedure to approve the settlement.
The Catanzaros' argued that court should decline to enforce the settlement on the basis that the infant settlement was not in the best interests of their daughter and that Ms. Catanzaro was depressed at the time she entered into the settlement and that it was done in haste. The motion judge ordered the settlement to be enforced against the parents on the basis that they had not met their onus of establishing that the settlement ought to be set aside. The motion judge dismissed the motion to enforce the settlement in relation to the infant, finding that it was not supported by the material required under rule 7.08(4). The parents appealed.
Issue:
Did the motion judge err in failing to consider the circumstances surrounding the acceptance of the settlement?
Holding:
Appeal dismissed.
Reasoning:
No. The discretion to refuse to enforce a settlement should be used rarely. The court in Milios v. Zagas set out the following factors when considering whether to enforce a settlement agreement: mistake, significant compromise and prompt notification of the mistake. The motion judge found these factors were not present in this case and rejected the argument that the offer was accepted in haste.
The court found no error in the finding that the Catanzaros' did not meet their onus of demonstrating that in these circumstances, they should be allowed to resile from the settlement.
James Bay Resources Limited v. Mak Mera Nigeria Limited, 2015 ONCA 781
[ Hoy A.C.J.O., MacFarland and Lauwers JJ.A.]
Counsel:
Mark Crane and Niklas Holmberg, for the appellants
Hilary Book and Nadia Chiesa, for the respondent
Keywords: Private International Law, Conflict of Laws, Contracts, Jurisdiction Simpliciter, Forum Non Conveniens, Comity, Van Breda
Facts:
The respondent, James Bay Resources Limited, entered into a Memorandum of Understanding (the "MOU") with the appellant, Wale Sola dated March 3, 2011. The MOU was negotiated and signed in Ontario. It set out an arrangement between the parties with respect to the acquisition of Nigerian oil and gas assets. On February 12, 2012, the respondent and the appellant, Mak Mera Limited entered into a Letter Agreement (the "LA") which was more detailed and replaced the earlier MOU.
A dispute arose between the parties in respect of their contractual arrangements and that dispute was fuelled by a letter sent by Mak Mera and Mak Mera Nigeria Limited to Royal Dutch Shell PLL on July 2, 2014. The letter contained defamatory statements against the respondent and was copied to the respondent and others, including the Nigerian Ambassador to Canada. The respondent commenced proceedings against Mak Mera Nigeria Limited and Wale Sola by statement of claim issued September, 4, 2014, in Ontario. On September 16, 2014, Mak Mera Nigeria Limited, Wale Sola and Sola's father-in-law commenced an action in Nigeria against numerous parties. Some of the claims in the Nigerian action were similar to those in the Ontario action.
The respondent moved in The Federal High Court of Nigeria to strike the Nigerian action on grounds that the Nigerian court lacked jurisdiction and was unsuccessful. The respondent is also appealing that order.
On March 2, 2015, the appellants moved to strike or permanently stay the Ontario action on the grounds that Ontario does not have jurisdiction simpliciter or that Ontario is forum non conveniens. In his reasons, the motion judge concluded that Ontario had jurisdiction simpliciter and identified several presumptive factors that would apply, including that Wale Sola is an Ontario resident and both the MOU and the LA were negotiated and signed in Ontario. He observed that the latter provides that it is governed by Ontario law and contains a choice of forum clause that names Ontario as the jurisdiction where any disputes would be resolved.
Issues:
(1) Did the motion judge err in failing to consider comity in his analysis of the issue of forum non conveniens?
(2) Whether the motion judge should have considered the reasons of the Federal High Court of Nigeria (in dismissing the respondent's motion to strike) in making his decision?
Holding: Appeal dismissed.
Reasoning:
(1) No. The court rejected the appellants' submission that the motion judge failed to consider comity in his analysis. Rather, the court found he considered it implicitly when he outlined and considered all of the relevant factors in coming to his conclusion that Nigeria was not the more convenient forum.
The appellants relied on a decision of the Supreme Court of Canada that was over-taken by that court's decision in Van Breda v Village Resorts with regard to jurisdiction and forum conveniens issues. The court in Van Breda also mentioned that comity is not a stand-alone factor, but is part and parcel of the forum non conveniens assessment.
The court agreed with the motion judge's conclusion that "balancing all factors, Nigeria is not clearly the appropriate forum for the dispute, and Ontario is not forum non conveniens." The court held the motion judge did not err in dismissing the appellant's motion to stay the action.
(2) No. The court found this to be proposed "fresh evidence" as the appellants sought to file the reasons for the first time at the hearing of the appeal, despite the reasons being released February 2, 2015 and the lower court motion taking place one month later on March 2, 2015. The reasons were not before the motion judge and the appellants did not bring a motion to admit fresh evidence. However, the appellants argued on appeal that the motion judge failed to consider these reasons, despite the reasons not being before him. Theappellants did not meet the Palmer test for the admission of fresh evidence in light of the reasons being available before the motion was heard. Therefore, the court declined to consider the fresh evidence.
Hoang v Vincentini, 2015 ONCA 780
[Laskin JJ.A.]
Counsel:
Kerri Kamra, for the moving party Can Hoang, in his personal capacity
Geoffrey D.E. Adair, for the moving parties Christopher Hoang and Danielle Hoang, both minors by their Litigation Guardian San Trieu, and San Trieu
David Zuber, for the responding party Adriano Vicentini
Bruce Mitchell, for the responding party Ford Credit Canada Leasing Company
Michael O'Brien, for the responding party Can Hoang
Teri Liu, for the responding party The Personal Insurance Company
Keywords: Torts, Negligence, Motor Vehicle Accident, Insurance Law, Coverage, Reservation of Rights, Removal of Counsel Appointed by Insurer, Reasonable Apprehension of Conflict of Interest
Facts:
The plaintiffs are appealing a jury verdict, which found Can Hoang ("Mr. Hoang") solely responsible for the injuries his son (a plaintiff) suffered when he dropped his son off at an intersection in Toronto. The action against the driver and owner of the car that struck the son was dismissed. The jury awarded Mr. Hoang's son damages of approximately $835,000 against his father. Counsel appointed by Mr. Hoang's car insurer, The Personal Insurance Company ("The Personal"), delivered a notice of cross-appeal asking the court to set aside the finding of liability.
At trial, the jury particularized Mr. Hoang's negligence, and all but one particular did not give rise to coverage under Mr. Hoang's insurance policy as those particulars concerned Mr. Hoang's negligent parental supervision of his son at the time of the accident. The one particular that could give rise to coverage under the policy was Mr. Hoang's "unsuitable choice of unloading area" when he dropped off his son.
The plaintiffs and Mr. Hoang in his personal capacity (not through his insurer) brought a motion to disqualify counsel appointed by The Personal, Mr. McCarthy, from continuing to represent Mr. Hoang on the appeal and cross-appeal, because of an appearance of a conflict of interest.
Issues:
The moving parties requested three orders:
(1) an order removing Mr. McCarthy as counsel of record for Mr. Hoang on the appeal and cross-appeal;
(2) an order appointing Laxton Glass as counsel of record for Mr. Hoang on the appeal and cross-appeal; and
(3) an order requiring The Personal to pay Laxton Glass' reasonable fees and disbursements.
Holding: Orders granted.
Reasoning:
Three principles are relevant on these motions:
1) Where a lawyer is appointed by an insurer to defend its insured, the lawyer's primary duty is to the insured, even though the lawyer is paid by the insurer and the insurer may eventually have to pay the claim against its insured.
2) An insurer may be required to relinquish control of the defence and pay for independent counsel retained by its insured if there is "in the circumstances of the particular case, a reasonable apprehension of conflict of interest on the part of counsel appointed by the insurer".
3) Where the insurer has insisted on a reservation of rights or its insured has signed a non-waiver agreement, then a conflict of interest may arise if coverage under the policy depends on the insured's conduct in the accident giving rise to the litigation.
Applying these principles, the test of reasonable apprehension of conflict of interest is made out in this case as a reasonable bystander might think that counsel appointed by the insurer would focus on overturning the one finding for which the insurer could be liable to indemnify the insured and downplay or focus less on the jury's findings of negligent parental supervision, for which the insurer has no obligation to indemnify. For Mr. Hoang, an appellate decision overturning the finding of "unsuitable choice of unloading area", yet leaving in place the findings of negligent parental supervision, would be disastrous, as it would leave him without any prospect of indemnification and his son would be left without any hope of recovery.
The Catalyst Capital Group Inc. v. Moyse, 2015 ONCA 784
[Hoy A.C.J.O., MacFarland, and Lauwers JJ.A.]
Rocco Di Pucchio, for the appellant/responding party
Kristian Borg-Olivier and Denise Cooney, for the respondents/moving party, Brandon Moyse
Andrew Carlson, for the respondents/moving party, West Face Capital Inc.
Keywords: Motion to Quash Appeal, Jurisdiction, Interlocutory Order, Contempt, Leave to Divisional Court Required, Courts of Justice Act, S. 19(1)(b)
Facts:
Brandon Moyse (the "Respondent") was an employee of The Catalyst Capital Group Inc. (the "Appellant"). The Appellant brought a motion to find the Respondent in contempt of an order for failing to preserve certain electronic documents. The motion judge was not able to find "beyond a reasonable doubt" that the Respondent was in contempt by deleting his personal browsing history from his computer and dismissed the motion.
The Respondent seeks to quash the Appellant's appeal because the order being appealed is interlocutory and therefore falls under the Divisional Court's jurisdiction.
Holding: Appeal quashed. The Appellants can seek leave to the Divisional Court. The Respondent is awarded $5,000 in costs.
Reasoning:
(1) Yes. The matter should be appealed to the Divisional Court with leave pursuant to s. 19(1)(b) of the Courts of Justice Act. While an order finding contempt is final, an order dismissing a motion for contempt is interlocutory (Simmonds v. Simmonds, 2013 ONCA 479).
Wilson (Re), 2015 ONCA 787
[Hoy A.C.J.O., Gillese and Brown JJ.A.]
Counsel:
Paul Alexander Robson, for the appellant Wilson
Brandon Jaffe, for the respondent Paddon & Yorke
Keywords: Bankruptcy and Insolvency, Non-Disclosure of Assets by Bankrupt, Preservation Order, Trust Agreement, Beneficial Ownership, Exercise of Discretion
Facts: The appellant appealed the preservation order of the motion judge, ordering that the appellant deliver up the possession of luxury vehicles to the respondent trustee in bankruptcy or, if he no longer had possession of the vehicles, deliver up particulars concerning their sale. The motion judge also ordered that the appellant's bank accounts be frozen.
Issues:
(1) Did the motion judge err in finding that the appellant had a beneficial interest in the vehicles at the time of his bankruptcy based on a trust agreement?
(2) Were the terms of the preservation ordered by the motion judge "heavy handed"?
Holding: Appeal dismissed.
Reasoning:
(1) No. The trust agreement provided that the assets of 2246519 Ontario Inc. ("Ontario") were "the sole and exclusive ownership of [the appellant] and although held in the name of Ontario, Ontario has no right or ownership of the said assets." The appellant did not disclose the trust agreement or his interest in the vehicles in his statement of affairs on his bankruptcy. Gray J. found that the trust agreement was valid and that the appellant was the beneficial owner of the vehicles. However, he directed that a copy of his endorsement be sent to the respondent, who brought a motion before the motion judge for preservation of the vehicles and ancillary relief. The motion judge's finding that the appellant had a beneficial interest in some of the vehicles at the time of his bankruptcy was unassailable. The appellant's interest in the vehicles was affirmed by the trust agreement. It did not arise as a result of Gray J.'s declaration.
(2) No. There were no errors in principle. The motion judge provided that the appellant could return to court to rescind or vary the order once he provided the respondent with the requested information. The motion judge did not err in the exercise of his discretion.
Mikhail v Downsview Chrysler Plymouth Limited (1964) Ltd., 2015 ONCA 798
[Cronk, Epstein and Huscroft JJ.A.]
Counsel:
Michael Mikhail and Mary Mikhail and Adly Mikhail, acting in person
Ali Chahbar, for the respondent
Keywords: Endorsement, Sale of Goods, Summary Judgment
Facts:
The appellants purchased a car from Downsview Chrysler. Downsview Chrysler obtained the car from the respondent dealer Oxford Dodge, which is managed by the respondent James Bennett ("Mr. Bennett"). The car's air conditioner malfunctioned and the appellants brought an action seeking over $400,000 in damages. The claims were settled with all of the defendants except for Oxford Dodge and Mr. Bennett. Oxford Dodge and Mr. Bennett brought a motion for summary judgment seeking to have the claims against them dismissed, which the motion judge granted. The appellants appealed from the order granting summary judgment and dismissing their action.
Issues: Did the motion judge err in granting summary judgment?
Holding: Appeal dismissed. The appellants must pay the costs of the appeal in the amount of $5,000.
Reasoning:
No, the motion judge did not err in granting summary judgment. Nothing on the record gave rise to a genuine issue requiring a trial. The Court of Appeal agreed with the motion judge's reasons and her conclusion. The motion judge found there was no factual foundation for a finding of liability against either Oxford Dodge or Mr. Bennett on any of the causes of action pleaded. Oxford Dodge had no contractual relationship with the appellants and the appellants led no evidence that would support a finding of negligence or bad faith against it. The appellants admitted that they had never met Mr. Bennett or communicated with him prior to commencing their action and that he did not make any representations to them concerning their purchase of the car. Moreover, any damages the appellants may have sustained were amply compensated by settlements with the other defendants.
Reddy v. Freightliner Canada Inc., 2015 ONCA 797
[Hoy A.C.J.O., Gillese and Lauwers JJ.A.]
Keith Geurts and Ellen Snow, for the appellant
Andrew Camman and Susan Toth, for the respondent
Keywords: Employment Law, Wrongful Dismissal, Disability Benefits, Summary Judgment, Whether Cause of Action Properly Pleaded
Facts:
Daryl Reddy ("Reddy") worked for Freightliner Canada ("Freightliner") from January 1998 to January 8, 2007, when Freightliner terminated his employment. Later in his employment, Reddy had a stroke and went on short-term disability. He returned to work, but did not function as well. Reddy had another stroke after he was terminated and was unable to speak or move the left side of his body as a result. But, because he was no longer employed, Co-Operators Life Insurance ("Co-Operators") denied his claim for long-term disability. Reddy sued Freightliner and Co-Operators.
In Reddy's reply to Freightliner's defence, he claimed that he was wrongfully terminated. Freightliner moved for summary judgment. The motion judge dismissed the motion, but acknowledged the statement of claim did not specifically plead that Reddy was wrongfully dismissed. However, the failure to plead those specific words was not fatal to the claim.
Issue: Did the motion judge err by dismissing the motion?
Holding: Appeal dismissed with costs to the respondent fixed at $10,000.
Reasoning:
No. The motion judge's result and reasons were both correct. It was not fatal that Reddy did not specifically plead wrongful dismissal because the notice of claim alleged the facts that the defendant breached the employment contract. The only reason Reddy's benefits were denied is because the plaintiff was terminated from his employment. At the core of Reddy's claim is a set of facts establishing an employment relationship and contract, that the employment contract was breached as a result of termination without notice, and that damages flowed from the breach, including loss of LTD benefits.
Candito v. Nmezi, 2015 ONCA 793
[Brown J.A. (In Chambers)]
Counsel:
James Tausendfreund, for the moving party
Philip Pollack, for the responding party
Keywords: Professional Conduct, Civility, Settlement of Formal Order Under Appeal, Motion to Extend Time to Appeal, Costs
Facts:
The appellant, Economical Insurance Group ("Economical") issued a third party claim involving insurance coverage in a motor vehicle accident against the respondent, State Farm Mutual Automobile Insurance Company ("State Farm"). State Farm was granted summary judgment dismissing Economical's third party claim.
Economical served a notice of appeal and certificate respecting evidence within the 30-day period required by r. 61.04(1) of the Rules of Civil Procedure. To perfect its appeal, r. 61.09(1) required Economical to include a copy of the order appealed as signed and entered and a copy of the court's reasons. Economical required the co-operation of State Farm to sign and enter the order. Economical sent a draft order within the perfection period to State Farm's counsel for approval and requested State Farm's consent to a 60-day extension to perfect the appeal. State Farm's counsel refused to provide their consent for an extension or approve of the draft order.
Economical brought a motion to extend the time to perfect its appeal and served an offer to settle the motion with State Farm's payment of $3,000 in costs. State Farm finally approved the draft order and agreed to an extension but did not offer to pay costs. At the hearing of the motion, State Farm's counsel advised that they had submitted the approved order for signing and entry the week before but the Registrar refused to process the order on an expedited basis.
Issue:
Should Economical receive partial indemnity costs of the motion in the amount of $5,000?
Holding:
Yes. An order that the time for the perfection of this appeal is extended and State Farm is required pay Economical its partial indemnity costs of the motion in the amount of $5,000.
Reasoning:
Economical's request for costs is reasonable. State Farm failed to perform its obligation to settle an order subject to appeal in a timely manner. The position that State Farm took that it would not settle the order under appeal until Economical had argued its motion to extend the time to perfect were unacceptable litigation tactics. State Farm delayed responding to maneuver Economical into a position where it might have to argue the merits of its appeal to secure an extension of time to perfect.
The court also ordered that the time for perfection of the appeal be extended and that State Farm contact the Registrar and request the summary judgment motion order be issued and entered on an urgent basis. At the time it submitted the approved order, State Farm counsel should have drawn the Registrar's attention to the policy set out in s. 11.2(2) of its Practice Direction Concerning Civil Appeals in the Court of Appeal that summary judgment appeals will be expedited without the necessity of an order to that effect.
Civil Endorsements
Green v. Green, 2015 ONCA 790
[Sharpe, Pepall, and van Rensburg JJ.A.]
Counsel:
Aaron Franks and Michael Zalev, for the appellant Charles David Green Sr.
Mathew H. Hilbing and Frank Coscarella, for the appellant by way of cross-appeal Charles David Green Jr.
Sanjeev P. Mitra and Miranda Spence, for the appellants Strike Furlong Ford LLP and Robert James Lorne Ford
Margot Poepjes, for the respondent Diana Freda Green
Russell Alexander, for the respondent Lisa Maxwell
Brenda Yurko, acting in person
Keywords: Costs
Criminal Endorsements
R. v. Aminyar, 2015 ONCA 785
[MacPherson, Tulloch and Pardu JJ.A.]
Counsel:
Monte MacGregor, for the appellant
Michael Fawcett, for the respondent
Keywords: Criminal Law, Aggravated Assault, Evidence, Unreasonable Verdict, Appeal Dismissed
R. v. Butters, 2015 ONCA 783
[Gillese, Watt and Pardu JJ.A.]
Counsel:
Eric Granger, for the appellant
Melissa Adams, for the respondent
Keywords: Criminal Law, Constitutional Law, Evidence, Possession of Child Pornography, Unreasonable Search, Criminal Code, s.489.1, Canadian Charter of Rights and Freedoms, s.24(2), R. v. Harris, Appeal Dismissed
R. v. Montoya, 2015 ONCA 786
[MacPherson, Tulloch and Pardu JJ.A.]
Counsel:
Peter Thorning and Richard Diniz, for the appellant
Dayna Arron, for the respondent
Keywords: Criminal Law, Fraud, Uttering Forged Documents, Evidence, Restitution, Sentencing, Canadian Charter of Rights and Freedoms, s.11(b), Appeal Dismissed
R. v. Blazevic, 2015 ONCA 789
[MacPherson, Tulloch and Pardu JJ.A.]
Counsel:
Brad Burgess, for the appellant
David Finley, for the respondent
Keywords: Criminal Law, Firearms Offences, Conspiracy to Commit an Indictable Offence, Unlawful Confinement, Sentencing, Credit for Pre-Sentence Custody, Appeal Dismissed
R. v. Brown, 2015 ONCA 782
[Doherty, Laskin and Tulloch JJ.A.]
Counsel:
Timothy E. Breen and Cate Martell, for the appellant
Benita Wassenaar, for the Respondent
Keywords: Criminal Law, First Degree Murder, Attempted Murder, Evidence, Criminal Code, s.229(a), R. v. Wallen, Appeal Dismissed
R. v. Bediako, 2015 ONCA 788
[Watt, Brown and Roberts JJ.A.]
Counsel:
Danielle Robitaille and Samuel Walker, for the appellant
Christine Tier, for the respondent
Keywords: Criminal Law, Possession of an Unauthorized Firearm, Sentencing, Credit for Pre-Sentence Custody, Criminal Code, s.495, Canadian Charter of Rights and Freedoms, ss.7-9, s.24(2), R. v. Grant, Appeal from Conviction Dismissed, Leave to Appeal Sentence Granted, Appeal from Sentence Allowed in Part
R. v. An, 2015 ONCA 799
[MacPherson, Tulloch and Pardu JJ.A.]
Counsel:
Patrick Metzler, for the appellant, Richard An
Patrick Ducharme and Christopher Tarach, for the appellant, Justin Li-Tin-Po
Ian Bell and Brendan Gluckman, for the respondent
Keywords: Criminal Law, Drug Trafficking, Possessing Proceeds of Crime, Evidence, Unreasonable Verdict, R. v. Biniaris, Appeal Dismissed
R. v. Hamade, 2015 ONCA 802
Counsel:
Catriona Verner, for the appellant
John Patton, for the respondent
Keywords: Criminal Law, Second Degree Murder, Sentencing, Parole Eligibility, Evidence, Probative Value, R. v. White, Appeal Dismissed
R. v. McDonald, 2015 ONCA 791
Counsel:
John Hale, for the appellant
Michael Perlin, for the respondent
Keywords: Criminal Law, Aggravated Assault, Evidence, Jury Instructions, Unreasonable Delay, Consent, Canadian Charter of Rights and Freedoms, s.11(b) R. v. Rowe, R. v. P.J.B., Appeal Allowed
R. v. Veseli, 2015 ONCA 795
Counsel:
Mark Wiffen, for the appellant
Chris Bendick, for the respondent
Keywords: Criminal Law, Careless Driving, Strict Liability, Defence to a Charge, Highway Traffic Act, s.130, Appeal Allowed
Le Feuvre (Re), 2015 ONCA 796
[Doherty, Laskin and Tulloch JJ.A]
Counsel:
Geoffrey Le Feuvre, appearing in person
Ken Berger, for the appellant
Greg Skerkowski, for the respondent Crown
Keywords: Criminal Law, Mental Health, Detention Order, Not Criminally Responsible, Appeal Dismissed
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