Canada: Court Of Appeal Summaries (December 12 – December 16, 2016)

Hello,

Below are the summaries for this week's civil decisions of the Court of Appeal.

Topics covered this week included a number of civil procedure issues (civil contempt, appeal routes, administrative dismissals for delay), of couple of real property/municipal law cases (dedication of roads, relief from forfeiture) and an unjust enrichment case in the context of a family dispute.

Have a nice weekend.

Kideckel v. Glenbarra Renewable Energy Solutions Inc., 2016 ONCA 932

[Doherty, MacPherson and Lauwers JJ.A.]

Counsel:

A. Sternberg and D. Murynlca, for the appellant
S. E. Kazushner, for the respondent

Keywords: Endorsement, Contracts, Privity of Contract, Assignments, Partnerships, Summary Judgment

Facts:

The appellant, Sheldon Kideckel, brought an action against several defendants for commissions in the amount of $100,000. He claimed the commissions were owing to him by the defendants for his services of identifying and acquiring leases for three locations upon which rooftop solar systems were built by the defendant Gemco Solar Inc.

The respondent, Fovere Glenbarra Energy Fund I Ltd, brought a motion for summary judgment, seeking dismissal of the appellant's action against it. The motion judge granted summary judgment. He found that (1) Kideckel did not have an agreement with Fovere for the payment of the commissions claimed; (2) there was no basis to disregard the separate legal personalities of Gemco and Fovere; (3) Fovere was not liable for Gemco's obligations to Kideckel because there was no evidence that Kideckel was led to believe by Fovere that it was Gemco's partner; and (4) Fovere was not enriched by Gemco's alleged failure to pay Kideckel and, therefore, is not liable to Kideckel in equity.

Issues:

1. Did the motion judge fail to properly consider the law of privity of contract and the principled exceptions thereto?

2. Did the motion judge fail to consider the law of assignments in equity, whereby an assignee takes "subject to the equities"?

3. Did the motion judge err by not finding that the defendants were partners?

4. Did the motion judge fail to properly assess credibility?

Holding:

Appeal dismissed.

Reasoning:

1. The motion judge did not fail to properly consider the law of privity of contract and the principled exceptions thereto. This submission is entirely inconsistent with the appellant's testimony at the mini-trial ordered by the motion judge during the summary judgment hearing.

2. The motion judge did not fail to consider the law of assignments in equity, whereby an assignee takes "subject to the equities". The appellant did not raise this issue in his Statement of Claim or advance it on the motion for summary judgment.

3. The motion judge did not err by not finding that the defendants were partners. The motion judge correctly concluded that the legal relationship was between the appellant and Gemco, not the appellant and Gemco and Fovere. The plaintiff was not aware of Fovere's existence until 2011 or 2012, long after he had agreed to work for Gemco in September or October 2010.

4. The motion judge did not fail to properly assess credibility. The documentary record in conjunction with the mini-trial involving the testimony of the appellant and representatives from Gemco and Fovere provided an appropriate platform for the motion judge's analysis and disposition.

Wharry v. Wharry, 2016 ONCA 930

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

Counsel:

E. Cohen, for the appellant

R. C. McLean and John W.E. Gilbert, for the respondent

Keywords: Family Law, Retroactive Child Support, Spousal Support, Spousal Support Advisory Guidelines, D.B.S. D.B.S. v. S.R.G., [2006] 2 S.C.R. 231, Constructive Trusts, Gifts, Buttar v. Buttar, 2013 ONCA 517

Facts:

The parties were married on August 25, 1992 in Northern Ireland. This was a 14-year relationship. They have two children, Scott (age 21) born May 13, 1995 who is now independent, and Rebekah (age 20) born September 11, 1996 who is continuing her post-secondary education.

The appellant was working full time at the date of the marriage, but never returned to work full time after the children were born. She suffered from postpartum depression after the birth of each of the children. The respondent spent long hours working; she looked after the household and the children.

The respondent's father, Mr. Wharry Sr., operated a dairy and cattle farming business with the respondent at the "Drumcrow" farm in Northern Ireland. Mr. Wharry Sr.'s own father had transferred the farm to Mr. Wharry Sr., the oldest son. Mr. Wharry Sr. in turn transferred the farm and related property to the respondent, his oldest son, in 1997 during the parties' marriage.

The deed of transfer to the respondent for Drumcrow farm reserved a "right of residence" so that the respondent's parents, Mr. Wharry Sr. and Mrs. Wharry, could live in a bungalow located on the property for the rest of their lives.

The parties moved to Canada in 2002 and purchased the "Kincardine" farm in Ontario. The parties separated on November 26, 2006. After separation, both children primarily resided with the appellant. However, Scott moved in with the respondent in March 2013.

Procedural History:

The respondent brought his Application on January 23, 2007. The appellant filed her Answer on March 13, 2007, seeking, among other things, equalization, child support, and spousal support. Shortly thereafter, the respondent was ordered to pay interim monthly child support in the amount of $360 for the children, effective July 11, 2007. The interim child support order was based on an imputed annual income of $25,000 to the respondent. No interim spousal support was ordered. The respondent unilaterally reduced his child support to $200 per month without seeking to change the interim order when Scott moved in with him in March 2013. The parties settled a number of issues in 2008, including the appellant's equalization claim regarding the Kincardine farm. The respondent paid the appellant $85,000 to purchase her interest in the farm.

The appellant submits that the trial judge erred by limiting her monetary compensation for unjust enrichment to an amount representing one half the value of the bungalow on the Drumcrow farm property at the date of trial, rather than basing his award for her contributions to the joint family enterprise on the value of the whole farm. She further submits that he erred in concluding that the Drumcrow farm transferred to the respondent was a gift and therefore excluded from his net family property.

The respondent maintains his position that the Drumcrow farm and related property were a gift. He accepts and relies on the trial judge's decision.

The appellant submits that the facts of this case are very similar to Buttar, that is to say, the transferor reserved the right of parents to occupy the property during their lifetime, and the transferee continued to provide his parents with income from the farm to assist with their living expenses after the transfer. As in Buttar, the appellant submits that there must have been consideration or an expectation of remuneration for the transfer.

Issues:

1. Is the trial judge's assessment of the appellant's claim to unjust enrichment entitled to deference?
2. Did the trial judge err in concluding that the Drumcrow farm transferred to the respondent was a gift and therefore excluded from his net family property?
3. Did the trial judge err in interpreting B.S. as imposing a three-year limit to retroactive child support claims from the trial date?
4. Spousal Support:
   
   
   1. Did the trial judge err by limiting retroactive child support to a three-year period?
   2. Did the trial judge err by terminating spousal support on December 31, 2016?
5. Did the trial judge err in the allocation of various post-separation obligations?

Holding: The trial judge erred in limiting retroactive child support to a three-year period and terminating spousal support in December 2016. The balance of the appeal was dismissed.

Reasoning:

1. Yes. He assessed all of the circumstances surrounding the acquisition of the Drumcrow Farm, the construction of the bungalow, and each party's contributions. Absent palpable and overriding error, there is no basis to intervene.

2. No.

3. Yes. The trial judge erred when he concluded that D.B.S. mandated a three year limit from the trial date for retroactive child support. The Supreme Court in D.B.S. at para. 118 provided that, having determined that a retroactive award is appropriate, the court must choose a date of retroactivity. Among the four main options are (i) the date of effective notice and (ii) the date of formal notice. The date of effective notice refers to any indication by the recipient that child support should be paid or renegotiated. It does not require the recipient to take any legal action; all that is required is that the topic be broached.

Despite this general default to effective notice, the Supreme Court in D.B.S. added at para. 123 that it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given.

On March 13, 2007, the appellant filed her Answer, claiming child support for the children. This appears to be the date of both effective and formal notice. Therefore, the three-year rule in D.B.S. is not at issue in this case, as the appellant gave effective and formal notice at the same time, and less than four months after separation.

Nevertheless, as the Supreme Court stated in D.B.S. at para. 64, "parents should not have the impression that child support orders are set in stone." A court should consider four main factors before making a retroactive child support order: (i) the reason for the delay by the recipient parent; (ii) the conduct of the payor parent (e.g., any blameworthy behaviour); (iii) the circumstances of the child; and (iv) any hardship occasioned by a retroactive award. The Supreme Court cited Tedham v. Tedham, 2003 BCCA 600, 20 B.C.L.R. (4th) 56 for the proposition that "[n]one of the factors is decisive. For instance, it is entirely conceivable that retroactive support could be ordered where a payor parent engages in no blameworthy conduct."

While the interim support period in Tedham was shorter than this case, the appellant cannot be faulted for failing to try to vary the interim support as more information became available about the respondent's income, given the cost and difficulty associated with such a step. The appellant was on public assistance for a time following separation. She has earned limited income over the years. Both children resided with her after separation and beyond November 28, 2011, the date to which the trial judge made support retroactive.

The appellant should not have to bear more than her proportionate share of support for the children simply because the respondent did not have, or had not produced, all of the information required to make a final determination of that issue when the interim order was made in 2007. This is particularly true given the significant disparity between the parties' incomes and assets. The respondent submitted that the Drumcrow farm was worth $984,500 at the date of trial. The appellant had received $85,000 to purchase her interest in the Kincardine farm, pursuant to the 2008 consent order.

Considering all these factors, and the early effective and formal notice of the claim for child support on March 13, 2007, the trial judge should have made support retroactive to that date.

4a. Yes. In limiting retroactive spousal support to three years, it is unclear if the trial judge mistakenly interpreted D.B.S. as imposing a three-year limit (as he did with retroactive child support) or if he was exercising judicial discretion. Regardless of when spousal support commences, it should continue indefinitely for a period of seven to 14 years, in accordance with the duration provisions of the Spousal Support Advisory Guidelines.

The trial judge ordered retroactive support of $239, effective November 2011, based on the parties' up-to-date circumstances and 2013 financial information, rather than factoring in the parties' circumstances in 2011 and 2012. Neither party takes issue with this approach. The retroactive monthly award of $239 exceeds the high end of the SSAG range for 2011 and 2012, which is $186 and $192 respectively.

4b. Yes. The trial judge erred by terminating spousal support on December 31, 2016. He applied the SSAG in determining the amount of spousal support, but ignored the SSAG in establishing duration without explanation. There is nothing in the record supporting the conclusion that the appellant would be self-sufficient by December 31, 2016. although the trial judge seemed to rely on the SSAG to determine the amount of support, he ignored them when he limited duration to five years.

5. No. The trial judge did not err in the conclusion on these points. The allocation of responsibility to the appellant of $1,280 in tractor lease payments payable after separation, reimbursement to the respondent for one half the balance on a line of credit in the sum of $2,160, and payment for hay in the sum of $3,300 during a time when the appellant operated the Kincardine family farm after separation were correct.

Jadid v Toronto Transit Commission, 2016 ONCA 936

[Feldman, Epstein and Miller JJ.A.]

Counsel:

B. R. Moodie as agent for J. Van Allen, for the appellant

M. Ferreira, for the respondents

Keywords: Civil Procedure, Administrative Dismissal For Delay, Setting Aside, Reid Factors, Fresh Evidence

Facts:

The appellant was injured while attempting to board a TTC bus in March 2006. After settling a statutory accident benefits claim in 2007, the appellant commenced an action against the respondents. The action was dismissed administratively for delay, and after obtaining an order setting aside the dismissal on terms (the "O'Marra order"), the appellant failed to take the procedural steps required by that order. The appellant's subsequent motion to vary those terms, years later, was dismissed. The appellant now appeals from that order.

Among the terms of the O'Marra order was a requirement that the appellants set the action down for trial within 60 days, requiring the appellants to complete examinations for discovery and file a trial record within 60 days. The appellant did none of those things. Neither did the appellant have the O'Marra order issued and entered. The appellant took no further steps for two years. In May 2014, counsel for the appellant wrote to request the respondent's affidavit of documents. The respondents replied that it had been provided two years earlier and suggested that counsel review his file. By this time, the respondent had assigned new in-house counsel who was not yet aware of the procedural history of the action, and did not know that the O'Marra order had not been taken out. The appellant sought to schedule an examination for discovery of the representative of the respondent. The respondent objected on the basis that it had not completed its examination of the appellant, which took place June 20, 2014. The respondent agreed to an examination on September 30, 2015. In the meantime, the respondent sought confirmation that the O'Marra order had been entered, and in February 2015 requested a copy of the entered order. They repeated the demand at the examination on September 30, 2015, and when the appellant could not produce it, the respondent refused to proceed. The appellant brought a motion to vary the timetable established by that order, which was unopposed.

The motion judge concluded that the delay was extreme, that there were no non-perfunctory explanations offered, and that the plaintiff never had a bona fide intention to adhere to the deadline ordered and only intermittent interest in advancing the case. He dismissed the motion and imposed a stay of the action.

The appellant appeals on the basis that the motion judge erred in refusing to vary the order setting aside the registrar's dismissal, and in staying the action.

Issues:

1. Whether the motion judge misapprehended the governing legal principles.

2. Whether the motion judge erred by finding that the respondent suffered actual prejudice as a result of the delay.

3. Whether the motion judge erred by finding that the litigation and the motion delay were not explained.

Holding:

Appeal dismissed.

Reasoning:

1. No. The motion judge's analysis began with the criteria from Reid v Dow Corning Corp, [2001] OJ No 2365 (Master), at para 41, rev'd on other grounds [2002] OJ No 3414, 48 CPC (5th) 93 (Div Ct) governing appeals from a registrar's dismissal for delay. The four factors that Reid identifies as relevant to the exercise of discretion are (1) the explanation of the litigation delay, (2) the inadvertence in missing the deadline, (3) the efforts to move promptly to set aside the dismissal, and (4) the absence of prejudice to the defendant.

The matter before the motion judge was a step removed from an appeal of a registrar's dismissal. The dismissal of the action had previously been set aside by the O'Marra order, on terms which had not been satisfied. The appellant moved to vary the terms which can no longer be met on the original schedule. The motion judge reasoned that this additional factor, a "moving party who has been to the well for relief once and returns a second time necessitated the following additional considerations: (1) the length of both the pre-and post- order delay; (2) that no priority should be given to any of the Reid factors over any others; (3) that prejudice to the defendant may be inferred from the passage of time; and (4) the application of the heightened scrutiny of the four Reid factors and the requirement of an explanation for why the first lifeline was ignored. The Court of Appeal rejected the appellant's arguments that the motion judge misapprehended the Reid test by rejecting the proposition that prejudice takes priority over the other factors. None of the Reid factors have automatic priority over any others. The Reid test provides a structured approach to reconciling the principle that civil actions should be decided on their merits, with the principle that the public interest is served by enforcing procedural rules that promote the timely and efficient resolution of disputes. It guides the exercise of judicial discretion and reduces the risk of overlooking relevant considerations. It does not set out a formula, prioritize any enumerated factors over any others, or categorically exclude the consideration of other factors not listed.

2. No. There is no requirement that the respondent adduce evidence of actual prejudice. Prejudice can be inferred from the mere passage of time. The motion judge found that, in the particular circumstances of the case, the ability of the respondent to defend the claim was compromised. The Court of Appeal saw no error in the motion judge's conclusion that there was non-compensable prejudice to the defendant.

3. No. The Court of Appeal disagreed with the appellant's submission that any delay was neither intentional nor deliberate and has been explained, and therefore the motion judge erred in finding that the delay in this case favored dismissing the motion. That the delay was not intentional does not absolve the appellant of the responsibility to move the action forward. Neither did the motion judge err in concluding that the appellant failed to provide a reasonable explanation for missing the deadlines set in the O'Marra order. It was for the motion judge to balance the competing interests and weigh the almost four-year delay in moving to vary the order in the context of the entire delay and all of the other circumstances that he canvassed. He made no error in his treatment of the appellant's failures to explain both the delay in missing the 60 day timeline set out in the O'Marra order and the delay in bringing the motion to vary the O'Marra order. The motion judge did not accept as exculpatory the appellant's argument that the reason she failed to meet the deadline in the O'Marra order because the O'Marra order had not been taken out. The conduct of the defendant in litigation may be a relevant consideration, however in this case, little turned on this factor. Although the respondents did little to move things along, this was the appellant's responsibility.

After deciding these issues, the Court of Appeal addressed criticism of counsel by the motion judge, some of which was excessive and unfounded. The Court of Appeal found that certain rhetorical flourishes amounted to ridicule and were unfair. The motion judge's characterization of non-compliance with the O'Marra order by the appellant's counsel as tantamount to contempt of court also required correction. The O'Marra order did not compel the appellant to do anything. It was a power conferring order rather than a mandatory order, which set out conditions that needed to be fulfilled in order to restore an action that had been administratively dismissed. No one was under any obligation to have the action restored, or to take any steps to that end. In not taking the lifeline offered by the O'Marra order, counsel was not acting contemptuously, but presumptuously, in expecting that his failure to follow the O'Marra order's prescriptions would be excused. The fruit of that presumption was the dismissal of the motion and the stay of the action.

There was also an exchange between the motion judge and motion counsel. Motion counsel sought to hand up unsworn email correspondence between counsel for the parties in support of the allegation of absence of prejudice to the respondent. The supposed import of the correspondence, which was put before the Court of Appeal on a fresh evidence motion, was that the respondent's non-opposition to the motion was de facto consent. The motion judge rejected this evidence on the basis that it was inadmissible and non-probative. At the conclusion of the argument, motion counsel for the appellants sought and was granted permission to file additional legal argument. This he did later that day, but also added the unsworn email correspondence that the motion judge had refused to receive. The Court of Appeal saw this step as misguided, as counsel had not sought permission to file additional material, particularly unsworn evidence that the motion judge had refused to receive. The motion judge had a severe reaction to this step. The Court of Appeal took issue with the motion judge's characterization of counsel's conduct, and commented that it was out of proportion to label the conduct as deceit and to impugn the motion counsel's professional integrity.

The Court of Appeal allowed the motion for leave to file fresh evidence, and dismissed the appeal.

Granger v. Granger, 2016 ONCA 945

[Cronk, Juriansz and Brown JJ.A.]

Counsel:

S. Ahmad and M. Hackl, for the appellant

B. Baron and M. Pluto, for the respondents

Keywords: Contracts, Constructive Trust, Unjust Enrichment, Proprietary Estoppel, Wills and Estates, Powers of Attorney, Undue Influence

Facts:

The family home in Toronto was purchased in 1981 and title was taken in Katarina's name only. Shortly after his father deserted the family in 1984, John dropped out of school and lived with his mother in the family home for the next 30 years. Then this dispute arose. John's position is that his mother wanted him to live with her to look after her and the house. Later, after Katarina helped Helena purchase another property, John says Katarina promised him the entire house upon her death. In 2012, after Helena's marriage broke up, she moved back into the house. Helena, exercising her power of attorney, transferred title to the house to Katarina and herself as joint tenants for two dollars' consideration.

In September 2014, Katarina and Helena commenced an application for a writ of possession to evict John and his common-law wife, Margaret, from the family home. John brought a counter-application challenging Helena's power of attorney, seeking the appointment of a neutral litigation guardian, and seeking a beneficial interest in the property.

The application judge found that Katarina was competent and dismissed John's allegation of undue influence as well as his request for the appointment of a litigation guardian. He granted Katarina and Helena's request for an order evicting John and Margaret from the property. They moved out of the property in 2015. The application judge also ordered a trial of an issue as to whether Katarina and Helena held their interests in the property for John by way of constructive trust, or whether John was entitled to damages for his financial and other contributions to the property and to Katarina's care and maintenance. The trial judge dismissed John's claims and he appealed.

Issue:

1. Did the trial judge err in denying John's claim based on proprietary estoppel?

2. Did the trial judge err in denying John's claim based on unjust enrichment?

3. Did the trial judge err in failing to reconsider his initial decision upholding Helena's power of attorney in light of his subsequent adverse findings of fact against Helena at trial?

Holding:

Appeal allowed.

John was entitled to equitable damages in the amount of $438,113 to be recovered from the proceeds of the sale of the house held in trust by the real estate solicitor to the credit of this litigation. Further, it was ordered that Helena's continuing power of attorney over Katarina's property be revoked and Helena be required to account for her management of Katarina's property.

Reasoning:

1. The trial judge rejected John's claim on the basis that he was not promised a present interest in the property by Katarina but, rather, an interest that would not vest until Katarina's death. He therefore held that John's claim based on proprietary estoppel was premature. John never claimed a present interest in the property but asserted he was promised he would receive an interest upon his mother's death. Katerina has disposed of the allegedly promised asset and can no longer bequeath it to John. But even characterizing John's claim as one for damages for the breach of the promise, his right to damages would arise on Katarina's death. The court therefore rejected this ground of appeal. The trial judge made no error in holding that it would be premature to assess whether John might have a claim based on proprietary estoppel against Katarina's estate.

2. In this case, the trial judge asked himself the wrong initial question by immediately considering whether John had conferred a "net benefit" on Katarina. Instead, at the first step of the analysis, the trial judge should have considered whether John conferred a benefit on Katarina. The court was not persuaded that the trial judge committed reversible error by finding John and Margaret did not adduce sufficient evidence to permit him to quantify any payments they made. As the trial judge observed, the onus was on John to prove not only that it was more likely than not that he had made payments, but also to prove the probable amount of those payments, at least in approximate terms. The trial judge was entitled to find the evidence John had adduced did not allow him to determine with any confidence how frequently he had made payments or in what amounts.

The court found that the trial judge seemed to have attributed little to no value to John's domestic services because of his observation that those services were those of a "dutiful son". That error infected his assessment of the uncontroverted evidence regarding the value of John's services. The evidence establishes the monetary value of the services the trial judge implicitly found that John performed.

The evidence before the trial judge and counsel's admission suggest that John reasonably expected some compensation. It is clear that Katarina and Helena did not discharge the onus on them to point to a juristic reason outside the established categories that would entitle Katarina to retain the benefit conferred by John, without compensation. John had discharged his onus to establish a prima facie case of enrichment.

The trial judge's error was to implicitly treat proof of the accommodation value as proof of an offsetting benefit. That approach was wrong in law. The onus remained on Katarina, who was claiming an offsetting mutual benefit, to prove rent-free accommodation was provided. Katarina did not satisfy the burden on her to prove that she provided rent-free accommodation to John. The court set aside the trial judge's dismissal of John's application insofar as it claimed equitable damages and replaced it with an order granting John's claim in the amount of $438,113 to be recovered from the proceeds of the sale of the house held in trust by the real estate solicitor to the credit of this litigation.

3. While the limited evidence before the trial judge on the application may not have demonstrated undue influence, it is obvious from his trial reasons that he considered it abundantly clear that Helena exerted undue influence over Katarina. Accepting those trial findings as fresh evidence, the court concluded that Helena exercised undue influence over Katarina. The judge's dismissal of John's application was set aside and replaced with an order granting John's application, revoking Helena's power of attorney and requiring Helena to account for her management of Katarina's property.

Diemer (Cornacle Cattle Co.) v. London Farms Ltd., 2016 ONCA 946

[Cronk, Juriansz and Roberts JJ.A.]

Counsel:

S. Pickard, for the appellant

D. MacKeigan, for the respondent

Keywords: Civil Procedure, Originating Process, Notice of Claim, Statement of Claim, Rules of Civil Procedure, Rule 14.03(13)

Facts:

The appellant commenced an action by way of notice of action on July 22, 2015, but failed to deliver a statement of claim within the 30-day deadline under Rule 14.03(3) of the Rules of Civil Procedure. He brought a motion for leave to deliver the statement of claim outside the 30 days but his motion was dismissed. He appealed.

The appellant alleged that the respondent sold him defective dairy cows. In response to the appellant's complaint, on September 26, 2013, the respondent provided two new dairy cows. The respondent alleged that on that day, the parties concluded a settlement agreement and the appellant provided the respondent with a release. The appellant sold his farm and cows on October 4, 2013, went into receivership on October 23, 2013, and was discharged on May 26, 2015. There was no evidence that the appellant sought leave from the receiver or the court to commence a claim. It was not disputed that there was no further communication between the appellant and the respondent until the appellant served its notice of motion for leave to file his statement of claim.

The appellant conceded that the motion judge applied the correct test and considered the relevant factors, as set out in Nugent v. Crook, 1969 CarswellOnt 951, 40 O.R. (2d) 110 (C.A.) at para 3 ("Nugent"). However, the appellant argued that motion judge erred in rejecting the appellant's explanation for the delay in filing his statement of claim. Similarly, the appellant argued that the motion judge erred in concluding that there was prejudice to the respondent as a result of the delay.

Issue:

1. Did the motion judge err in rejecting the appellant's explanation for the delay in filing his statement of claim?

2. Did the motion judge err in finding that there was prejudice to the respondent as a result of the delay.

Holding:

Appeal dismissed.

Reasoning:

1. It was open to the motion judge to find that the appellant's explanation for the failure to file within the requisite time was inadequate because it lacked the necessary detail to explain the delay. Specifically, the motion judge noted the absence of the following particulars: "The plaintiff's request for an extension is made without: (i) any suggestion of inadvertence; (ii) a statement as to when the plaintiff requested documents; (iii) information as to when the plaintiff received documents; and (iv) and explanation why after the plaintiff filed a notice of action to protect against an upcoming limitation period, it failed for months to file a statement of claim."

2. There was no error in the motion judge's conclusion that there was prejudice to the respondent because, at the very least, the respondent had lost the opportunity to investigate the appellant's claim, assess the validity of the appellant's assertions regarding the health and productivity of the cows, and evaluate the reasonableness of the steps taken by the appellant in purported mitigation of his damages.

It was common ground that the appellant's action was commenced within the relevant two-year limitation period; however, his failure to file the statement of claim on a timely basis brought his action to an end, absent the respondent's consent or leave of the court.

The expiry of the relevant two-year limitation period thereafter (on September 26, 2015, which was two years after the appellant advanced a complaint and two new cows were provided to him, or on October 4, 2015, which was two years after his damages crystallized on the sale of his farm and cows) gave rise to a rebuttable presumption of prejudice to the respondent. The appellant did not file any evidence to rebut this presumption. The onus was not on the respondent to put forward positive evidence that it was prejudiced, per Nugent. As the court noted in Nugent at para 3: "It is the plaintiff who is seeking the indulgence and it is for the plaintiff to establish proper grounds for the exercise of the discretion of the court." Accordingly, the motion judge correctly determined that the appellant had failed to do so and the Court saw no basis to interfere with that discretionary decision.

Lehtiniemi v. Mattawan (Municipality), 2016 ONCA 940

[Feldman, Lauwers and Miller JJ.A.]

Counsel:

P. A. Webber, Q.C., for the appellant

M. M. Miller, for the respondent

Keywords: Real Property, Public Highway, Dedication, Acceptance

Facts:

The appellant, Lehtiniemi, owns Lot 34 in Concession 8 of the respondent municipality. The Municipality asserts that the appellant built the laneway on top of an existing, though unmaintained, public road known as Marion Road, to which it holds title. The appellant disputes this assertion. He argues that the laneway and the old public road are separate roads, and accordingly the laneway is not a public road, and he has title to it.

The appellant brought this application for a declaration that the laneway he built on his property is his own and not a public highway.

The application judge dismissed his application. The appellant appeals.

Issue:

Did the application judge make a palpable and overriding error of fact, or misapprehend the evidence?

Holding:

Appeal dismissed.

Reasoning:

No. The motion judge did not make a palpable and overriding error of fact, or misapprehend the evidence. To the contrary, the application judge's findings find ample root in the record. Further, the motion judge correctly articulated and applied the common law doctrine of dedication and acceptance. In particular, once a dedication is complete, neither the owners nor their successors in title can revoke it. Therefore, the motion judge correctly concluded that the dedication and acceptance of a public road on the appellant's land could not now be revoked; the appellant's laneway was built on top of a public road.

Poplar Point First Nation Development Corporation v. Thunder Bay (City), 2016 ONCA 934

[Rouleau, van Rensburg and Benotto JJ.A]

Counsel

R. Larson and T. Demetzer, for the appellant

A. D. McKitrick, for the respondent

Keywords: Municipal Law, Property Tax Sales, Municipal Act, 2001, S.O. 2001, c. 25, Relief from Forfeiture, Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, Fines and Forfeitures Act, R.S.O. 1990, c. F.13

Facts:

The appellant, a not-for-profit corporation supporting Poplar Point First Nation Band and its members, was the registered owner of a property that was sold by the City of Thunder Bay (the "Municipality") in a municipal tax sale. After recovering $5,843.11 in tax arrears and additional associated costs, the Municipality paid into court the surplus (an amount exceeding $76,000). Pursuant to s. 380(4) of the Municipal Act (the "Act"), the appellant had one year from the date of payment of the surplus into court to bring an application for payment out of court. Pursuant to s. 380(6), one year after payment in, the monies were deemed to be forfeited to the Municipality. The appellant applied to the court three weeks after the one-year deadline. In response to the appellant's application, the Municipality brought a counter-application, seeking payment out of court of the monies pursuant to s. 380(7) of the Act.

The application judge considered whether to grant the appellant relief from forfeiture under s. 98 of the Courts of Justice Act or under s. 5(1) of the Fines and Forfeitures Act. After considering the contradictory case law, the application judge dismissed the appellant's application on the basis that he was not empowered to grant relief from forfeiture under either statute. He said he would have granted relief from forfeiture, if he had the jurisdiction to do so. He granted the Municipality's application for payment out of court.

The appellant appeals, arguing that the application judge erred in concluding that he did not have the jurisdiction to grant relief from forfeiture. The respondent says that the application judge was correct on this point, and, in any event, that relief from forfeiture is not warranted on the evidence in this case.

Issues:

1. Did the application judge err in concluding that he did not have jurisdiction to grant relief from forfeiture under the Courts of Justice Act?
2. Did the application judge err in concluding that he did not have jurisdiction to grant relief from forfeiture under the Fines and Forfeitures Act?
3. Is relief from forfeiture warranted in this case?

Holding: Appeal granted and order set aside. Relief from forfeiture and payment ordered.

Reasons:

1. Yes. The Courts of Justice Act provides for broad and unlimited authority to the court to grant relief from forfeiture. The context of the appellant's claim for relief from forfeiture was within a civil proceeding commenced by way of application under s. 380 of the Act. Next, the broad wording of s. 98 of the Courts of Justice Act and its application to civil proceedings suggests that it should be available in this case, in the context of an application to obtain payment out of court of monies deemed to be forfeited to the Municipality.

After a thorough review of the jurisprudence, the Court of Appeal determined that there was no impediment to the relief sought in the present case. The forfeiture of the surplus to the municipality under s. 380 is not a penalty for the taxpayer's failure to pay taxes or breach of any other obligation, nor does it occur as the release of security for an obligation owed to the municipality. The municipality has already been made whole, having received the cancellation price consisting of the tax arrears, interest and its costs.

The forfeiture does not occur in order to punish the property owner, but to ensure that the money, which belongs to the owner or other claimants at the time it is paid into court, does not sit in court unclaimed, in perpetuity. The forfeiture brings finality to the process where funds might otherwise remain in court and unclaimed. The forfeiture arises from the failure to meet a time limit, and not as the consequence of any breach of a statutory obligation. The Court of Appeal concluded that there is no clear legislative intent to exclude relief from forfeiture, nor is the recognition of such authority inconsistent with the statutory scheme.

2. In light of the Courts of Justice Act finding, it was unnecessary to offer any definitive views about the scope and availability of relief under s. 5 of the Fines and Forfeitures Act. However, the Court of Appeal stated that a fair reading of that statute suggests that it applies in the context of fines, penalties and forfeitures that are imposed for violations of Ontario statutes. As such, it has no application to the facts of this case. A reading of this statute suggests that the ability of the court to remit a fine, penalty or forfeiture is in the context of proceedings for their recovery where they have been imposed for contraventions of a statute (and where no other provision is made in respect thereof). In this case, the deemed forfeiture arises from the expiry of a time limit under s. 380 of the Act, and is not a penalty imposed" for a "contravention" of the Act.

3. Yes. Before exercising discretion to grant relief from forfeiture in a particular case, a court must first consider: (1) the conduct of the applicant; (2) the gravity of the breach; and (3) the disparity between the value of the property forfeited and the damage caused by the breach. Had the trial judge concluded that s. 98 was available, he would have exercised his discretion to grant relief from forfeiture and to allow the appellant's late application for payment out of court of the surplus funds. He found that the appellant's conduct was inadvertent, although negligent, and that the Municipality did not suffer undue prejudice from the three-week delay. He noted the disparity between the short delay in applying and the value of the property forfeited.

The Court of Appeal determined that there was no reason to depart from the application judge's assessment of the relevant factors in this case. The appellant would have been entitled to the monies in court, without any claim by the Municipality, had its application been initiated three weeks earlier. The appellant's delay was explained by its erroneous belief about timing because of its two other properties also subject to tax sales. When it realized its error, the appellant moved promptly. The Municipality had not received the funds, and had not even commenced an application for payment out. And the windfall to the Municipality would have been enormous, amounting to the receipt of $76,264.60 in surplus funds when the initial tax arrears, which had been fully satisfied, were $5,843.11. Therefore, the Court of Appeal granted the appellant relief against forfeiture under s. 98 of the Courts of Justice Act.

Greenberg v. Nowack, 2016 ONCA 949

[Strathy C.J.O., LaForme and van Rensburg JJ.A.]

Counsel:

M. Greenglass, for the appellants

S. J. Nowack, acting in person

Keywords: Civil Procedure, Contempt, Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79

Facts:

This is an appeal of an order dated February 1, 2016. The order arises out of a contempt motion brought in the course of the efforts of the appellants, Joseph and Pepi Greenberg, to enforce a judgment against the respondent, Steven Nowack. The Greenbergs (the "appellant") assert that the motion judge erred in law in refusing to find Mr. Nowack (the "respondent") in contempt of various orders, in accepting Mr. Nowack's unsworn submissions at the contempt motion as evidence, in ordering that Mr. Nowack complete a particular form of judgment debtor questionnaire in use in Alberta (the "Judgment Debtor Questionnaire"), and in discharging Mr. Nowack from any obligations under various orders made in the course of these proceedings, namely the orders of Master Glustein (the "Prior Orders").

Issue:

1. Did the motion judge err in concluding that no branch of the three-part test for civil contempt was met?
2. Did the motion judge err in relying on Mr. Nowack's submissions as evidence?
3. Did the motion judge err in ordering Mr. Nowack to complete the Alberta Judgment Debtor Questionnaire?
4. Did the motion judge err in discharging Mr. Nowack's obligations under the Prior Orders, with the result that they are deprived of the benefit of such orders, including the ability to enforce costs awards properly made in their favour?

Holding:

Appeal allowed.

Reasoning:

1. Yes. The test for civil contempt was articulated by the Supreme Court in Carey v. Laiken: (i) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (ii) the party alleged to have breached the order must have had actual knowledge of it; and (iii) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act the order compels. Each element of civil contempt must be proven beyond a reasonable doubt. A judge has discretion to decline to make a contempt finding where the three-part test has been met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order.

In this case, it was difficult to understand the motion judge's conclusion that the contempt motion failed all three prongs of the test for contempt. The motion judge did not explain his conclusion, other than that he was unwilling to find contempt in the context of the enforcement of a civil judgment. The conclusion may also stem from the motion judge's finding that Mr. Nowack's performance was not contumelious. In any event, a motion judge "must at a minimum turn his or her mind to the test and apply the elements of the test properly." The motion judge failed to do so here.

2. Yes. The contempt hearing was conducted in a summary manner. The motion judge did not invite oral testimony. Mr. Nowack, who was self-represented, had filed no evidence. He did, however, make submissions as to why he failed to provide an accounting.

While the motion judge may well have been entitled to consider Mr. Nowack's submissions as evidence, relying on the fact that he had previously been sworn as a witness, he ought to have informed the Greenbergs' counsel that this was what he was doing, and afforded him the opportunity to cross-examine Mr. Nowack. The Court of Appeal accepts that the Greenbergs were taken by surprise by the motion judge's apparent acceptance of Mr. Nowack's brief explanation in his oral submissions as to why he had failed to comply with the outstanding orders. In these circumstances, to the extent that the motion judge relied on Mr. Nowack's explanation to conclude that the Greenbergs had not met the test for contempt, he erred in doing so.

3. Yes. The Court of Appeal agreed with the Greenbergs' submission that the Judgment Debtor

Questionnaire provides for a narrower range of financial disclosure than would be available to them in an examination in aid of execution. Rule 60.18 allows a creditor to examine a debtor, among other things, about the reason for nonpayment, the disposal of a debtor's property before or after the making of the order, or any other matter pertinent to the enforcement of a judgment. The "transfer of property" section of the Judgment Debtor Questionnaire only requires the disclosure of property transferred within one year of the date of completion of the Questionnaire. Completion of the Judgment Debtor Questionnaire in 2016 therefore does not address what became of the Greenbergs' investment monies for which judgment was granted in 2013, and in respect of which the various orders in the enforcement process were made. The motion judge was firmly focused on the need to get the judgment debtor enforcement process back on track. To this end, it was not wrong for him to order Mr. Nowack to complete the Judgment Debtor Questionnaire.

4. Yes. An order may only be set aside, amended or varied by a successful appeal or by a motion to set aside or vary under r. 37.14 or r. 59.06. It is not open to the court to set aside or vary an order on its own motion where this relief was not requested. Further, while a judge may discharge, set aside or vary an order where a finding of contempt has been made under r. 60.11(8), this rule does not authorize a judge to discharge any order on the court's own motion – in contempt proceedings or otherwise. In the present case, the motion judge did not discharge or set aside the Prior Orders. Rather, he discharged Mr. Nowack's obligations under the orders. Such an order might well be warranted, where a judge concludes that an alleged contemnor has in fact complied with the requirements of an order or otherwise purged his contempt. In this case, however, the contempt motion was dismissed because the motion judge held that the Greenbergs had not met the three-part test. He did not find that Mr. Nowack had complied with the Prior Orders; at best, Mr. Nowack offered an excuse for not complying with certain requirements of the orders. Accordingly, the motion judge erred in discharging Mr. Nowack from compliance with the Prior Orders. There was no basis for granting such relief simply because the motion judge concluded that the Greenbergs had not met the three-part test for contempt, or as part of the dismissal of their contempt motion. The relief, which no one had requested, was prejudicial to the Greenbergs and took away their rights under the existing orders without good reason.

In the result, the order dismissing the contempt motion was set aside. The matter was remitted back to the Superior Court for determination by another judge.

2363523 Ontario Inc. v Nowack, 2016 ONCA 951

[Strathy CJO, LaForme and van Rensburg JJ.A.]

Counsel:

J. T. Curry and L. E. Robinson, for the appellant

N. Groot, for the respondent

Keywords: Civil Procedure, Contempt, Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79, Procedural Fairness, Canadian Charter of Rights and Freedoms, s. 7, Crown Brief Evidence, Wagg Applications

Facts:

The appellant, Steven Nowack, appealed an order dated January 8, 2016, finding him in contempt and an order dated April 18, 2016, finding he had not purged his contempt and sentencing him to 30 days in prison. The contempt proceedings arose out of the efforts of the respondent, 2363523 Ontario Inc. ("236"), to enforce a default judgment.

The appellant argued that the motion judge failed to direct himself as to the elements of the legal test and the reasonable doubt standard of proof for civil contempt, and failing to properly apply these elements; requiring Mr. Nowack to produce documents that were included in the Crown's brief in criminal proceedings arising from the same facts; and conducting the contempt proceeding in a manner that violated the principles of fundamental justice.

Issue:

1. Whether the motion judge failed to direct himself as to the required test for contempt and the associated burden of proof;

2. Whether the motion judge erred in how he dealt with Mr. Nowack's documents that had been included in the Crown brief in his criminal proceedings (the "Wagg issue");

3. Whether the motion judge failed to provide Mr. Nowack with certain procedural safeguards.

Holding:

Appeal dismissed.

Reasoning

1. A party seeking to establish civil contempt must prove that: (a) the order alleged to have been breached states clearly and unequivocally what should and should not have been done; (b) the party alleged to have breached the order had actual knowledge of it; and (c) the party allegedly in breach intentionally did the act the order prohibits or intentionally failed to do the act the order compels: Carey v Laiken, 2015 SCC 17, [2015] 2 SCR 79] at paras 33-35. A judge retains an overriding discretion to decline to make a contempt finding where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order. The burden on a party seeking a contempt order is to establish the above elements by proof beyond a reasonable doubt. The elements of contempt were clearly made out on the evidence beyond a reasonable doubt. The motion judge had to decide whether the appellant intentionally failed to do what the orders compelled. This requirement is distinct from proving whether an alleged contemnor intended to disobey the order in question. Contumacy, or lack thereof, is not an element of civil contempt. It was for the motion judge to determine if it was appropriate to exercise his discretion to decline to make a contempt order in the circumstances. In Bell ExpressVu Limited Partnership v Torroni, 2009 ONCA 85, the Court of Appeal held that the reasons for a contempt order need not analyze the application of the three-part test to the facts of the case in great detail, but that the judge must at a minimum turn his or her mind to the test and apply the elements of the test properly. Torroni does not require the judge to set out the test expressly in his or her reasons. In this case, there was no dispute about the clarity of the orders and what they required, or that they had come to the appellant's attention. The only issue was whether the appellant had intentionally failed to perform the acts the orders compelled, or whether he had a reasonable explanation for his non-compliance. The motion judge understood and correctly applied the test for contempt.

2. The motion judge did not err in dealing with the Wagg issue, which did not excuse Mr. Nowack's failure to produce documents and to perform the accounting required by the orders. Mr. Nowack reiterated the argument made at his contempt hearing that he was unable to comply with the orders because the documents were part of the Crown's brief in his criminal proceedings. He said that documents he had received through Crown disclosure, even if they were his own documents that had been seized from him, ought not to have been ordered to be produced. He relied on this court's decision in P.(D.) v. Wagg (2004), 71 O.R. (3d) 229 (C.A.), at para. 17, which outlined a three-step procedure to be followed before a litigant produces documents in his possession or control that form part of a Crown disclosure brief. Mr. Nowack contended that the motion judge's finding of contempt based on his failure to produce documents contained in a Crown brief was premised on a misapprehension of the obligations imposed on Mr. Nowack as a recipient of Crown disclosure. The appellant argued that the motion judge erred in stating, in response to his Wagg concerns, that he ought to have produced the documents to the court under seal. Instead, he says it was incumbent on 236 to bring a motion to obtain the Crown's consent to have the documents produced. In argument on appeal, Mr. Nowack's counsel acknowledged that it was possible for Mr. Nowack to have brought any Wagg motion that was required. He argued, however, that it was sufficient for Nowack to signal to 236 that he had documents that were part of the Crown brief. The Court of Appeal disagreed with these arguments. The motion judge did not accept the bona fides of Mr. Nowack's excuse for failing to comply. The motion judge was correct to note that Mr. Nowack had been ordered to produce documents and to use documents to prepare an accounting, irrespective of their source. Mr. Nowack was not a litigant involved in a discovery process, but a judgment debtor who had been ordered to produce documents that were in his possession and to use the documents to prepare an accounting. As the motion judge noted, if Mr. Nowack had concerns, he could have provided the documents to the court under seal. It was incumbent on Mr. Nowack to do something himself to address the concern, assuming it was legitimate, rather than to simply raise the argument as an excuse for his non-compliance. There was no error in the motion judge's treatment of the Wagg issue.

3. There was no procedural unfairness. Section 7 of the Canadian Charter of Rights and Freedoms applies to civil contempt proceedings, as they are penal in nature. Contempt proceedings must therefore afford an alleged contemnor "all necessary safeguards". The proceeding must preserve the principles of fundamental justice by safeguarding the right to be presumed innocent and the right to make full answer and defence. Mr. Nowack argued that the contempt proceedings were inconsistent with these principles because he was denied the presumption of innocence. The Court of Appeal held that there was no prejudging of the issue of contempt in this case. The motion judge clearly began the contempt hearing with the premise that he had to be satisfied of Mr. Nowack's contempt beyond a reasonable doubt, and he afforded him the full opportunity to explain his conduct. Mr. Nowack also contends that the motion judge did not properly assess the relevance of the evidence that he attempted to adduce at his sentencing hearing. He argues that the contempt proceedings denied him the right to make full answer and defence. This right includes the right to submit or call evidence. The motion judge concluded that the evidence Mr. Nowack sought to advance pertained to 236's alleged motives, which was not relevant to the purpose of the hearing. On appeal, Mr. Nowack did not attempt to put forward any other explanation of how the excluded evidence might have been relevant to the sentencing hearing. Counsel for Mr. Nowack on appeal took issue with the motion judge sitting on a motion for contempt of his own order. He said that, as a general rule, a judge should not be permitted to hear a motion for contempt of his or her own order, as there could be a reasonable apprehension of bias. The Court of Appeal did not address this argument in any detail except to say that it was not aware of any principled basis to adopt such a general rule. Such a rule would be both impractical and inconsistent with the overall objective of contempt motions in securing compliance with orders. The procedure adopted here where a judge seized himself with contempt proceedings, and then made a series of orders that gave Mr. Nowack the opportunity to avoid a finding of contempt could only serve to enhance the fairness of the process and did not in itself give rise to a reasonable apprehension of bias The procedure the motion judge adopted permitted the appellant, after the respondent had made out a prima facie case of contempt, the full opportunity to explain himself. The motion judge also afforded Mr. Nowack the opportunity to purge his contempt before he was sentenced.

Saleh v. Nebel, 2016 ONCA 948

[Cronk, Juriansz and Roberts JJ.A.]

Counsel:

R. Naimark and M. Warfe, for the appellant/respondent by cross-appeal

A. Rachlin, D. Romano Reid, J. Curry and C. Pauchulo, for the respondent/appellant by cross-appeal

Keywords: Endorsement, Appeals, Jurisdiction, Courts of Justice Act, ss. 19(1.2), Insurance Act, s. 267.5(5)(b)

Facts:

The appellant sued the respondent for damages for personal injuries allegedly suffered by the appellant in a 2007 car accident admittedly caused by the respondent. The jury assessed the appellant's general damages at $30,000 and his other claimed damages at zero.

The trial judge concluded that the appellant had failed to prove the existence of the first of his alleged injuries and that the second injury was caused by the accident. The appellant having failed to establish the existence of his injuries or causation, the trial judge held, in effect, that it was unnecessary to determine whether the appellant's claim was barred by the statutory immunity threshold set out in s. 267.5(5)(b) of the Insurance Act, R.S.O. 1990, c. I.8, and he dismissed the action. His judgment contained no declaratory relief regarding the threshold.

Issue:

Should the appeal lie to the Court of Appeal or the Divisional Court?

Holding:

Transfer of the appeal and cross-appeal to the Divisional Court.

Reasoning:

The jurisdictional issues were raised by the Court on its own motion. The Court concluded that the appeal lies to the Divisional Court under ss. 19(1.2) of the Courts of Justice Act, R.S.O. 1990 c. C.43. The court relied on the decision in Watson v. Boundy (2000), 49 O.R. (3d) 134, 130 O.A.C. 328. The proposed cross-appeal, therefore, must follow the main appeal.

Wallace (Re), 2016 ONCA 958

[Cronk, Juriansz and Brown JJ.A.]

Counsel:

S. N. Zeitz, for the appellant/responding party, Brief & Associates Inc.

C. Dockrill, for the respondent/moving party, Alma Maria Wallace

Keywords: Endorsement, Bankruptcy and Insolvency, Appeals, Leave to Appeal, Bankruptcy and Insolvency Act, ss 183(1), 193, Courts of Justice Act, s 19, Interlocutory v Final Orders

Facts:

The moving party, the bankrupt Alma Maria Wallace (the "Bankrupt"), seeks to quash the appellant Trustee's appeal from the dismissal of its motion for a contempt finding against the Bankrupt. The sole ground advanced by the Bankrupt in support of her motion to quash was that the order sought to be appealed is interlocutory in nature and, consequently, any appeal from it falls within the Divisional Court's jurisdiction under s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43, with leave. Argument of the motion to quash therefore focused exclusively on whether the dismissal order is final or interlocutory.

The Panel indicated its view that the dismissal order did not finally determine the bankruptcy proceeding. Further, no contempt finding was made against the Bankrupt, the bankruptcy proceeding was ongoing and it was open to the Trustee to obtain relief in that proceeding arising out of the Bankrupt's admitted failure to abide by the terms of Patillo J.'s order dated April 8, 2015 or any other court order.

Issue:

1. Was the impugned order interlocutory in nature?

2. Should leave to appeal be granted?

Holding:

Motion dismissed.

Reasoning:

1. Yes, it appeared that the impugned order was interlocutory in nature and, consequently, that the court lacked jurisdiction to hear the appeal on the authority of Chirico v. Szalas, 2016 ONCA 586 and The Catalyst Capital Group Inc. v. Moyse, 2015 ONCA 784. Based on this, the court was satisfied that the Trustee's contempt motion was brought in the context of the bankruptcy proceeding, based on the Bankrupt's conduct in the bankruptcy.

The order in question, being an order of a judge of the Superior Court of Justice vested with original jurisdiction under s. 183(1) of the BIA, the court also concluded that the motion judge's determination of the Trustee's request for a contempt finding against the Bankrupt was an "order or decision of a judge of the court" within the meaning of s. 193 and the definition of "court" under s. 2 of the BIA.

2. It follows that an appeal from the dismissal order lies to the Court of Appeal either as of right under ss. 193(a) to (d), or with leave of a judge of the court under s. 193(e) of the BIA. On this analysis and in light of the unlimited introductory language of s. 193, the issue whether the challenged dismissal order is interlocutory or final is irrelevant.

The allegations advanced by the Trustee against the Bankrupt in support of the Trustee's contempt motion are serious and, in the court's view, raise issues that are of general importance to the practice in bankruptcy matters. The subject matter of the appeal therefore also engages issues relating to the administration of justice. Accordingly, the court was persuaded that if leave to appeal to this court is required by reason of s. 193(e) of the BIA, this was an appropriate case for the granting of such leave.

The motion to quash was dismissed and the Trustee's appeal was to be scheduled for argument in the Court of Appeal.

CIVIL ENDORSEMENTS:

Olumide v. Ontario (Attorney General), 2016 ONCA 941

[Cronk, Juriansz and van Rensburg JJ.A.]

A. Olumide, acting in person

D. Polla, for the respondent

Keywords: Endorsement, Civil Procedure, Vexatious Litigants, Orders, Variation

CRIMINAL DECISIONS:

R. v. Pearle, 2016 ONCA 954

[Feldman, MacPherson and Hourigan JJ.A.]

B. Greenshields, for the appellant

M. Potrebic, for the respondent

Keywords: Criminal Law, Endorsement, Possession of Cocaine for Trafficking, Evidence, Admissibility, Circumstantial Evidence

R. v. Anglin, 2016 ONCA 939

[Simmons, van Rensburg and Miller JJ.A.]

M. MacGregor

M. Campbell

Keywords: Criminal Law, Appeal Book Endorsement, Direct Evidence, Circumstantial Evidence

R. v. Hafizi, 2016 ONCA 933

[Gillese Rouleau and Brown JJ.A.]

I. Joffe, for the appellant

H. Krongold, for the respondent

Keywords: Criminal Law, Drug Trafficking, Wire Taps, Canadian Charter of Rights and Freedoms, s. 8

R. v. Carelse-Brown, 2016 ONCA 943

[Feldman, Gillese and Benotto JJ.A.]

D. Quayat, for the appellant

N. Devlin, for the respondent

Keywords: Criminal Law, Reasonable and Probable Grounds, Investigative Detention

R. v. Carlisle, 2016 ONCA 950

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

M. Conway, for the appellant

C. Chorney, for the respondent

Keywords: Criminal Law, Long Term Permanent Residency, Sentencing, Deportation

R. v. Chibani, 2016 ONCA 952

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

R. C. Sheppard, for the appellant

M. Comiskey and E. K. Carley, for the respondent

Keywords: Criminal Law, Conspiracy to Export Drugs

R. v. Johnson, 2016 ONCA 935

E. Rondinelli, duty counsel

G. Roberts, for the respondent

Keywords: Criminal Law, Endorsement, Armed Robbery, Possession of Firearm, Youth Sentence

R. v. Reid, 2016 ONCA 944

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

A. Stastny, for the appellant

L. Price, for the respondent

Keywords: Criminal Law, Canadian Charter of Rights and Freedoms, ss. 7, 8, 9, 10(a), 10(b)

R. v. Williams, 2016 ONCA 937

[Pardu, Benotto, and Brown JJ.A.]

K. Williams, in person

J. Presser, duty counsel

M. Lai, for the respondent

Keywords: Criminal Law, Endorsement, Assault, Firearms, Attempt to Obstruct Justice

R. v. Zvolensky, 2016 ONCA 947

[Sharpe, Watt, and Pardu JJ.A.]

A. K. Kapoor, for the appellants

J. Speyer and A. Wheeler, for the respondent

Keywords: Criminal Law, Juries, Eligibility

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