Court Of Appeal Summaries (March 27 – 31, 2017) - Civil Law

There were several substantive civil decisions released this week.

Boaden Catering Limited v. Real Food For Real Kids Inc. was a contest over website domain names.

The decision of United States v Equinix Inc. dealt with the Mutual Legal Assistance in Criminal Matters Act, which allows countries that have a mutual legal assistance treaty with Canada to seek the help of the Minister of Justice in locating and obtaining relevant evidence believed to be in Canada. At issue was whether a judge erred in making an order directing that the seized material be examined by an FBI clean team to prepare a report to assist the court in determining what documents should be delivered to the FBI. The court indicated that someone impartial should be appointed.

There were two real estate law decisions – one dealing withadverse possession and the other with rescission of an APS under the Condominium Act, 1998 related to Trump Tower. Other topics included offers to lease and family law.

Civil Decisions:

Hunks v. Hunks, 2017 ONCA 247

[Gillese, MaFarland and Pepall JJ.A.]

Counsel:

C. Vitsentzatos, T. Zimmerman, for the appellant

P. A. R. Giles, for the respondent

Keywords: Family Law, Structured Settlements, Property, Income, Family Law Act

Facts: The wife was injured in a motor vehicle accident during the marriage. She reached a settlement of her claim. Some of the proceeds of the personal injury settlement were used to create a structured settlement ("SS Annuity") for her. The marriage ended but the wife continued to receive payments from the SS Annuity.

Issues: Are the SS Annuity payments to be treated as property or income under the Family Law Act?

Holding: The payments are income.

Reasoning: The SS Annuity payments should be considered income for the purposes of spousal support and not property under Part 1 of the Act. First, the SS Annuity arose from a structured settlement. A structured settlement is created when some or all of a personal injury settlement is deposited with a life insurance company in exchange for guaranteed tax-free payments for a specific number of years or for the recipient's lifetime. The wife did not receive the whole of the settlement monies during the marriage. She received $200,000 during the marriage, and used the money to benefit the family. Second, the SS Annuity is analogous to disability benefits and not to a pension, and should therefore be treated as income. The SS Annuity payments replace the employment income that the wife would have earned had she been able to work.

Northridge Property Management Inc. v. Champion Products Corp, 2017 ONCA 249

[Epstein, Benotto and Trotter JJ.A]

Counsel:

H. Khukh, for the appellant

D. Landry, for the respondent

Keywords: Real Property, Commercial Leases, Offers to Lease, Fundamental Breach, Damages, Pre-Judgment and Post-Judgment Interest

Facts:

The appellant, Champion Products Corp. ("Champion"), moved into the rental property of the respondent, Northridge Property Management Inc. ("Northridge"), only to move out three weeks later. Northridge claimed damages against Champion for breach of an Offer to Lease ("OTL"). Champion argued it owed no damages because either there was no contract, or, if a contract existed, Northridge had fundamentally breached it. The trial judge rejected both arguments.

Under the OTL, signed by the parties in September 2011, Northridge agreed to renovate parts of the leased premises. Schedule "B", attached to the OTL, set out specific renovations Northridge agreed to undertake. Paragraph 7 of the OTL provided that Champion "shall execute" a standard form of lease, attached as Schedule "C".

The trial judge found the OTL to be a complete agreement. It contained the essential elements of a lease and it contained an arbitration provision. Moreover, the parties conducted themselves as if an agreement existed. Specifically, Northridge upgraded the premises to suit Champion's specific needs, as set out in Schedule "B". Champion took possession of the premises.

The trial judge also held that there had not been a fundamental breach, despite the assertions by Champion that it could not use the property for its business because it was not properly zoned and that the property was unusable due to incomplete renovations. With respect to zoning, the trial judge held that the property was suitable for one of the businesses that Champion intended to operate out of the premises. Furthermore, none of the property deficiencies Champion relied on amounted to a fundamental breach.

Issue:

1) Did the trial judge err in finding that the OTL was a binding agreement?

2) If the OTL was a binding agreement, did the trial judge err in finding Northridge did not fundamentally breach the agreement?

3) Did the trial judge err in awarding 12% interest on his damages award, compounded monthly?

Holding: Appeal dismissed.

Reasoning:

1) No. First, Champion pleaded that the OTL was an agreement the parties entered into. Second, the trial judge correctly relied upon the precedent in Upper Room Alliance Group Ltd. v. John Volken Foundation, 2008 CarswellOnt 5980 (S.C.). Third, the parties were sophisticated corporate entities that discussed the terms of their bargain, reduced those terms to writing, and signed the document reflecting those terms.

The Court gave no credence to Champion's assertion that Northridge promised Champion a location that was the same or better. The alleged assertion was not a term of the OTL. It was not pleaded as a representation that induced Champion to enter into the OTL. If it was made at all, the assertion did not alter Northridge's obligations to Champion.

2) No. The trial judge's finding that Northridge did not breach the OTL was sound. The complaints asserted by Champion at trial, essentially aesthetic, were only raised after it left the premises. Champion's assertion of such work being an important part of the OTL lacked credibility. Even if Northridge had to perform the repairs Champion requested, failure to do so did not deprive Champion of essentially the whole benefit of the contract.

3) No. The discretionary award of pre-judgment interest can only be interfered with if the court finds the trial judge wrongfully exercised his discretion or gave insufficient weight to relevant considerations. The trial judge explained the interest awarded on the basis that it was set out in the OTL as part of Schedule "C". The OTL provided that Champion was "required" to sign a lease in the form contained in Schedule C. The only leeway was that the parties could negotiate non-financial terms – a category into which the rate of interest did not fall.

Boaden Catering Limited v. Real Food For Real Kids Inc., 2017 ONCA 248

[MacFarland, van Rensburg and Huscroft JJ.A.]

Counsel:

A. Jarvis, for the appellant

J. Simpson, for the respondents

Keywords: Copyright, Trademarks, Trade Secrets, Website Domain Registrations, Defamation, Arbitration, Civil Procedure, Witnesses, Cross-examination, Rules of Civil Procedure, Rule 39.02(3)

Facts:

The proceedings arise out of a dispute over website domain names. The appellant Boaden Catering Limited ("Boaden") and the respondent Real Food For Real Kids Inc. ("RFRK") are competitors in the market for healthy children's catering in the Greater Toronto Area. In July 2014 and December 2014, Boaden registered a ".com" domain name (realfoodforrealkidss.com) and three ".ca" domain names (realfoodforkids.ca, rfrk.ca and realfoodlunchclub.ca), which were identical or similar to names that RFRK claimed to have used in its business continuously since 2005. In December 2014, Boaden registered RFRK and RFRK.CA as business names under Ontario's Business Names Act, R.S.O. 1990, c. B.17. Boaden also embedded "RFRK", "Real Food for Real Kids" and other similar keywords as "meta-tags" on its website at organickidscatering.ca, which ensured that persons searching the internet using such keywords would be directed to Boaden's website.

In March 2015, RFRK submitted a complaint under the Internet Corporation for Assigned Names and Numbers ("ICANN") Uniform Domain Name Dispute Resolution Policy ("UDRP") concerning Boaden's registration of the domain name "realfoodforrealkidss.com". On May 5, 2015, an arbitrator found that Boaden had no legitimate interest in this domain name, which it had registered in bad faith. On May 7, 2015, RFRK submitted a complaint under the Canadian Internet Registration Authority ("CIRA") Domain Name Dispute Resolution Policy concerning Boaden's registration of the three ".ca" domain names. On July 8, 2015, the CIRA arbitrator found that Boaden had no legitimate interest in the disputed ".ca" domain names, and that the domain names had been registered in bad faith. The arbitrator ordered that the registration of the ".ca" domain names be transferred from Boaden to RFRK.

On June 2, 2015, Boaden commenced an action in the Superior Court against RFRK and its principal David Farnell for a variety of relief, including a declaration that Boaden is the lawful owner of the disputed domain names, and damages for passing off, defamation and theft of trade secrets. In accordance with CIRA policy, the order to transfer the registration of the ".ca" domain names to RFRK is suspended while court proceedings are pending.

RFRK and Farnell defended the action and RFRK counterclaimed for injunctive and declaratory relief as well as compensatory and punitive damages for Boaden's conduct in registering and using the domain names, and for other conduct in relation to Boaden's business.

On January 4, 2016, RFRK served a motion for summary judgment to dismiss Boaden's action. The motion was originally returnable at the same time as an interlocutory injunction motion brought by Boaden, which had been adjourned on July 17, 2015, to the week of February 29, 2016. In the interim, Boaden had served a motion to strike certain paragraphs of the statement of defence, also returnable on February 29, 2016. During the week of February 29, 2016, Boaden's counsel was ill. As a result, on March 1, 2016, the parties appeared before Sproat J. and all three motions were adjourned to the week of April 11, 2016. Sproat J. made it clear that Boaden's pleadings motion would not be heard or determined in advance of the summary judgment motion.

Accordingly three motions were before the court on April 13, 2016: the motion for summary judgment to dismiss the action, the motion to strike paragraphs of the statement of defence, and the motion for an interlocutory injunction (which Boaden withdrew). Boaden sought an adjournment of the summary judgment motion for the purpose of cross-examining RFRK's deponents. The motions judge refused to adjourn the motion. As the motions judge explained in his written reasons, having regard to the history of the proceedings, Boaden was in breach of the obligation under rule 39.02(3) of the Rules of Civil Procedure to exercise its right to cross-examine with reasonable diligence.

After hearing argument and reserving his decision, the motions judge decided to hear viva voce evidence on the summary judgment motion from Louie Tassone ("Tassone"), Boaden's principal, in accordance with his powers under rule 20.04(2.1). The motions judge subsequently provided written reasons dismissing Boaden's action and the pleadings motion.

Issue:

(1) Was Boaden denied procedural fairness when the motions judge wrongly refused to adjourn the summary judgment motion?

(2) Should the motion's judge have granted its motion to strike certain paragraphs of RFRK's statement of defence?

(3) Did the denial of Boaden's adjournment request have a "snowballing" effect and was it denied procedural fairness?

(4) Did the motions judge err in failing to expressly apply the "test" in Black v. Molson Canada (2002), which Boaden characterizes as the proper authority relating to domain name registrations?

(5) Did the motions judge err in failing to consider its offer to settle, and in awarding costs in respect of the summary judgment motion that included RFRK's costs on its counterclaim?

Holding: Appeal dismissed.

Reasoning:

(1) No. There is limited scope for appellate intervention with respect to the denial of an adjournment. The decision to grant or refuse an adjournment is discretionary and will only be interfered with if the judge has failed to take account of relevant factors and has exercised his or her discretion unreasonably, such that the decision is contrary to the interests of justice. There is no reason in this case to interfere with the exercise of discretion by the motions judge in refusing to adjourn the summary judgment motion.

(2) No. There was no error in the refusal of the motion to strike paragraphs of the respondent's defence. The motions judge was entitled to find that the impugned paragraphs were relevant to the appellant's alleged bad faith, which in turn was clearly relevant to the validity of its domain name registrations. The motions judge was entitled to consider all of the evidence of Boaden's use of the disputed marks and Boaden's course of conduct in deciding, among other things, whether Boaden was entitled to a declaration that it owned the contested domain names.

(3) No. Although this part of Boaden's argument was difficult to follow, Boaden seems to have argued that it was prevented from responding properly to the motion for summary judgment and that the motions judge relied on the previous arbitration decisions in which Boaden had not participated to grant summary judgment dismissing Boaden's action. There is no merit to this argument. Boaden was not prevented from responding properly to the motion. Although only delivered on the eve of the summary judgment motion, Boaden's materials seeking to substantiate the claims asserted in the action were before the court, as were the materials previously filed in respect of the interlocutory injunction motion.

(4) No. In Black, the court referred to the criteria for directing the transfer of a .com domain name, as articulated in the ICANN policies at the time, which required that a domain name be "identical" to the complainant's mark. The current criteria are substantially the same under both the ICANN policies and the CIRA Dispute Resolution Policy governing disputes over .ca domain names, except that it is sufficient if the disputed domain name is "confusingly similar" to a mark in which the complainant had and continues to have rights. The motions judge applied the same "test" in his reasons. And, contrary to Boaden's assertion, the motions judge considered all of the relevant evidence put forward by Boaden seeking to explain why it had rights and legitimate interests in respect of the domain name. The evidence was proffered by Tassone, who claimed that Boaden had registered the domain names as part of a public education initiative it started in 2014 called "Real Food Real Knowledge", and that it never occurred to him that this bore a resemblance to the name of his competition. The motions judge explained why he soundly rejected that evidence at paras. 29 to 38 of his reasons. Accordingly, the Court of Appeal found no merit to this ground of appeal.

(5) No. The offer to settle would have required RFRK to consent to a dismissal of its counterclaim in exchange for a dismissal of the action on a without costs basis, and would have no bearing on the respondents' costs entitlement for their success on all three motions that were before the court. The respondents' bill of costs properly noted that it did not claim any costs for attendances that were exclusively in relation to the counterclaim. The claim and counterclaim arose out of the same dispute between the parties. The motions judge was satisfied that the attendances set out in the bill of costs were reasonable, and, noting that Boaden had not filed its own accounts, he concluded the amount claimed was proportionate. There is no basis to interfere with the motions judge's determination of costs in this matter.

Ontario (Attorney General) v. $25,610 in Canadian Currency, 2017 ONCA 251

[Brown J.A. (In Chambers)]

Counsel:

N/A – in writing

Keywords: Civil Procedure, Appeals, Filing Fees, Waiver, Administration of Justice Act

Facts:

Godwin Diogu is requesting a fee waiver from a judge in respect of his notice of appeal from the order of Penny J., dated January 31, 2017. In that proceeding by the Attorney General of Ontario under the Civil Remedies Act, 2001, the application judge granted an application for the forfeiture of C$25,610 and US$80 on the basis the funds were either the proceeds of unlawful activity or an instrument of illegal activity. Mr. Diogu took the position that the funds were owned either by himself or Mr. Chidi Chinagroom. The motion judge did not accept his evidence.

Mr. Diogu wishes to appeal that judgment on several grounds: (i) the seized funds were not the proceeds of crime; (ii) the judgment was based on the improper application of the facts and law and, therefore, was wrong; and (iii) "further reasons to be provided".

In relation to the appeal, Mr. Diogu made a fee waiver request to the registrar. The registrar referred Mr. Diogu's fee waiver request to Brown J.A. for consideration.

Issues:

Is Mr. Diogu entitled to a fee waiver?

Holding:

Mr. Diogu is not entitled to a fee waiver certificate.

Reasoning:

Mr. Diogu is not entitled to a fee waiver. In most civil appeals brought to the Court of Appeal for Ontario, an appellant must pay $220 on the filing of a notice of appeal and $405 to perfect the appeal. Those fees are quite modest in amount, given the services received by the litigant in return. However, for some, even such modest amounts are beyond their financial means. To address this concern, the Administration of Justice Act (the "AJA"), creates a mechanism by which civil filing fees can be waived "so that individuals who might otherwise be denied access to justice because of their financial circumstances can be excused from paying fees". Under the fee waiver regime, two different routes are available to a person to request a fee waiver for an appeal in this court: (i) a request to the court registrar; and (ii) a request to a judge.

In the present case, Mr. Diogu has followed the second route, requesting a fee waiver from a judge in respect of his notice of appeal from the order of Penny J. dated January 31, 2017. Mr. Diogu has provided some information about his financial means in his affidavit. He states that he is "presently unemployed because [his] work authorization application is pending." He lives with his wife and lists their net annual household income from employment at $11,000, but he attached 2016 T4s for his wife that show only about $175 in employment income. He lists their household assets as zero; he did not file any documentation about bank accounts or any other asset.

However, the evidence Mr. Diogu placed before the application judge paints a much different picture of his financial means than shown by his fee request affidavit. Mr. Diogu has not provided any explanation that reconciles the statements he makes on this fee waiver request about his current financial means with the evidence he placed before the application judge about his prior employment in Canada, annual income, and use of bank accounts. As a result, Mr. Diogu did not persuade the Court that he lacks the financial means to pay fees relating to his appeal.

Lloyd v. Bush, 2017 ONCA 252

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

Counsel:

D. G. Boghosian and L. I. Amaral, for the appellants

R. S. Baldwin, for the respondents

Kewords: Torts, MVA, Municipal Liability, Non-Repair of Roads, Municipal Act, 2001, Reasonable Apprehension of Bias, Damages, Attendant Care Costs

Facts:

On the morning of January 3, 2003, the respondents Leslie and Jason Lloyd were at the rural home of Jason's parents on County Road #9 ("CR9"), also known as River Road. They had spent the night there after returning from a ski vacation the previous day. The home received a telephone call from one of Jason's sisters who had fallen ill at work in nearby Napanee. Leslie volunteered to pick up her sister-in-law and promptly left the home in her 2001 Hyundai Elantra. She intended to proceed into Napanee, which was about 4 km east along CR9. Leslie was an experienced driver and was familiar with the road.

Leslie had been driving for less than 30 seconds when she entered an "S-curve" portion of the road known locally as "Rankins Corners", which was located some 400 metres east of her in-laws' home on CR9. Entering Rankins Corners from the other direction was a commercial tank truck loaded with 20,000 poundsof propane driven by David Bush. He was in the process of making propane deliveries.

At approximately 10:35 a.m., Leslie's vehicle collided with the propane truck in the eastern half of the S-curve. Leslie was severely injured and was left with permanent disabilities affecting her mobility, speech, dexterity, cognition and overall functioning. She has no recollection of the accident.

The appellants – The County of Lennox and Addington (the "County") and The Corporation of the Town of Greater Napanee ("Napanee" or the "Town") – appeal from the judgment finding them liable to the respondents for damages arising from a motor vehicle accident. The primary ground of appeal is that the trial judge erred in his finding of liability and, specifically, in his interpretation and application of the municipal defendants' duty under the Municipal Act, 2001 to clear roads of snow and ice during a snow event. The County is the owner of the road on which the accident occurred and the Town was responsible for its winter maintenance pursuant to a 1998 agreement between the appellants.

The trial judge's award of damages for attendant care costs and the costs of the action are also under appeal. In their written submissions the appellants also raise allegations of apparent bias on the part of the trial judge, but this ground of appeal was not pressed in oral argument.

This was the second trial of the matter. During the course of the first trial, the plaintiffs settled with the defendants, David Bush and 818601 Ontario Inc. c.o.b. MacDonald's Propane and at the end of that trial, the claim against the municipal defendants was dismissed. On appeal from the first trial, the Court of Appeal ordered a new trial on the basis that the first trial judge demonstrated a reasonable apprehension of bias against the plaintiffs: Lloyd v. Bush, 2012 ONCA 349, 110 O.R. (3d) 781.

Trial Judge Decision:

The trial judge acknowledged that the appellants' liability, if any, was to be determined in accordance with s. 44 of the Municipal Act, 2001. In accordance with the relevant jurisprudence, he was to determine whether a condition of "non-repair" existed. This was a question of fact assessed from the standpoint of a reasonable and prudent driver in the circumstances. If the plaintiffs demonstrated that a condition of non-repair existed, the trial judge was to determine whether the condition of non-repair caused or contributed to the accident and, if so, the onus then shifted to the municipality to show that it undertook reasonable efforts to maintain CR9 that morning. The trial judge made a number of findings which are the basis for this appeal.

Issues:

1) Did the trial judge err in his analysis and application of the test for determining a Town's liability pursuant to s. 44 of the Municipal Act, 2001?

2) Did the trial judge err in his determination of contributory negligence?

3) Did the trial judge exhibit bias against the appellant?

4) Did the trial judge err in his assessment of the attendant care damages?

5) Did the trial judge err in his assessment of the trial costs?

Held: Appeal allowed in part. New trial ordered on the issue of the appellant's liability and the issues that flow therefrom, such as causation and contributory negligence. The trial judge's award of costs is also set aside and the costs issue is to be determined at a new trial. The Court of Appeal only dealt with issues 1, 3 and 4.

Reasoning:

Yes. The trial judge erred in his analysis and application of the test for determining a Town's liability pursuant to s. 44 of the Municipal Act, 2001.

(1) The test for liability pursuant to s. 44 of the Municipal Act, 2001

The central issue at trial was determining whether the appellants had any liability for the accident pursuant to s. 44 of the Municipal Act, 2001.

Section 44 of the Municipal Act, 2001 sets out the duty of a municipality with respect to road maintenance. It provides as follows:

(1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.

Liability

(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.

Defence

(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the default from arising; or

(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.

In Fordham v. Dutton Dunwich, (Municipality), 2014 ONCA 891, [2014] 327 O.A.C. 302, at para. 26, Laskin J.A. set out the four-step test to be applied when a claim is made against a municipality for non-repair. It can be summarized as follows:

(a) Non-Repair: The plaintiff must prove the existence of a condition of non-repair, that is, a road-based hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road, with a view to the circumstances including the "character and location" of the road.

(b) Causation: The plaintiff must prove that the condition of non-repair caused the loss in question.

(c) Statutory Defences: If the plaintiff has proven both non-repair and causation, a prima facie case is made out against the municipality. The municipality then bears the onus of proving that one of the three independently sufficient defences in s. 44(3) applies. These defences include proof that the municipality took reasonable steps to prevent the default from arising (s. 44(3)(b)).

(d) Contributory Negligence: If the municipality cannot establish any of the statutory defences, it will be found liable. The municipality can, however, still demonstrate that the plaintiff's driving caused or contributed to his or her injuries.

In considering these steps, Canadian courts have taken into account the difficult winter conditions that exist and the cost of clearing the roads of snow. The courts have emphasized that a municipality is not to be treated as an insurer of the safety of the users of its roads by imposing overly onerous maintenance obligations. Specifically, a municipality's failure to salt or sand its roads does not automatically expose it to civil liability: "[t]he driving public cannot expect municipalities to keep the roads free and clear of snow and ice at all times during the winter" (Frank v. Central Elgin (Municipality), 2010 ONCA 574, [2010] O.J. No. 3736, at para. 7).

Proof of a state of non-repair is not in itself enough to establish liability. Rather, a municipality will only be liable for failing to salt and/or sand and clear the road of snow where it had actual or constructive knowledge that road conditions created an unreasonable risk of harm to users of the highway, and where the municipality unreasonably neglected that risk: see Frank, at paras. 7-11; Montani v. Matthews, [1996] 29 O.R. (3d) 257 (C.A.), at p. 270.

(2) Was the road in a state of non-repair?

The appellants argue that the trial judge erred in finding that the road was in a state of non-repair. Specifically, they argue that CR9 is a Class 4 road and that the trial judge's decision imposes an unreasonably high standard of maintenance for such a class of road.

The trial judge's reliance in this case on Giuliani for the above proposition – namely that two to five centimetres of snow accumulation constitutes a state of non-repair – was misplaced.

(3) Did the town take reasonable steps to prevent or correct the state of non-repair?

The appellants argue that the trial judge committed several errors in his analysis of this issue. Specifically, the trial judge erred in failing to weigh all of the relevant circumstances, such as the condition of the road, financial considerations, and the fact that snow was still falling at the time of the accident.

The trial judge's finding that the appellants did not take reasonable steps to prevent the state of non-repair at Rankins Corners from arising, or did not take reasonable steps to correct it, must be set aside. The trial judge erred:

in focusing on whether the state of non-repair had in fact been corrected rather than on the reasonableness of the steps that were taken by the Town;
by making conflicting findings as to the plowing and application of sand/salt mixture that was performed at Rankins Corners on that morning; and
in concluding that, because the Town did not apply straight salt in addition to a greater amount of sand/salt mixture on Rankins Corners, the Town did not respond reasonably to the state of non-repair.

(a) The reasonableness of the steps taken

The trial judge was clearly focused on what, in theory, the Town would have had to do in order to have prevented or corrected the state of non-repair before the accident occurred, rather than on the reasonableness of the Town's response to the state of non-repair in the circumstances. However, the fact that whatever actions the Town took did not ultimately achieve the goal of centre-bare pavement or non-slippery road conditions at Rankins Corners before the collision occurred is not determinative of whether the actions the Town took were reasonable. Given unlimited resources, any town might be able to keep its roads centre-bare even in the middle of the worst snow storm. That, however, is not the standard to be met.

The trial judge properly referenced but does not appear to have applied Ondrade v. Toronto (City), [2006] O.J. No. 1769 (S.C.J.) where it is noted at para. 65 that s. 44(3)(b) of the Municipal Act, 2001 speaks to action rather than to result. In other words, the Municipal Act, 2001 does not create a regime of absolute liability. The steps to be taken by a municipality need only be within the range of what is reasonable in the circumstances. The trial judge's focus ought to have been on the evidence related to the Town's response to the snow event.

(b) How many times did the Town plow and apply sand/salt mix to Rankins Corners before the accident?

A significant factor in assessing the reasonableness of the Town's response to the snow event is the frequency with which it plowed and applied material to Rankins Corners. At trial, this was a hotly disputed issue.

The Town led evidence suggesting several applications of sand/salt mixture to Rankins Corners but the trial judge was clearly reluctant to accept that evidence, as the Town's key witnesses had little or no independent recollection of their actions on the relevant day. Only one of the trial judge's findings is clear with respect as the second finding of the trial judge may have contained a typographical error. The court is left to guess how many times Rankins Corners was plowed and material deposited at that location.

(c) Was the application of both straight salt and a greater amount of sand/salt mixture required?

The trial judge found that the application of a sand/salt mixture was not an adequate response to the state of non-repair that existed at Rankins Corners that day. There are several problems with the trial judge's finding that straight salt ought necessarily to have been applied. Firstly, in an action against a municipality for non-repair of a road, the resources of the municipality and the cost of the proposed measures can be relevant considerations.

Whether a municipality's actions are reasonable or not depends in part on the resources that were available to the municipality. In considering whether reasonable efforts have been made to keep the road in a state of repair, regard must be had to a number of factors including the means available to the municipality: Foley v. Township of East Flamborough (1898), 29 O.R. 139, at p. 141.

In this case, the statement of claim does not contain a specific plea that the alleged negligence was the failure to apply straight salt. There was, therefore, no reason for the appellants to have specifically pled in their defence that applying straight salt would have imposed an unreasonable financial burden on them.

The trial judge's failure to admit evidence of the financial impact of applying straight salt therefore constitutes reversible error, when viewed in combination with his conclusion that applying straight salt to "one or more" of the Town's "hot spots" such as Rankins Corners would not have imposed any meaningful financial burden on the Town.

(4) The appropriate remedy

Ordering a new trial is never desirable. It is especially undesirable in this case, where the judgment under appeal is the product of a second trial, the first decision having been set aside because of a reasonable apprehension of bias on the part of the first trial judge.

A new trial on the issue of liability is required. The Court of Appeal is unable to make or substitute findings necessary to resolve the claim, both as to the applicable standard of repair for CR9 in light of all the circumstances and the reasonableness of the Town's response to the state of non-repair, if indeed such a state of non-repair existed at the time.

3) No. There was no reasonable apprehension of bias.

The appellants argue that the trial judge exhibited bias against them and that this bias was apparent from the very first day of trial. On that day, the trial judge sparred with the appellants' counsel during opening statements regarding the established legal principles that should be applied by the trial judge in this case. These principles included consideration of the character of the road, traffic volumes and the like, as these all would have an impact on the extent of the duty resting on the municipality to maintain the roads.

In the appellants' submission, the trial judge's negative conduct toward the appellants escalated over the course of the trial and included unwarranted, aggressive, threatening and intimidating interventions, including banging his fist on the desk and making comments such as "too bad, so sad" when the appellants' counsel took issue with rulings that were unfavourable to the appellants.

The test for reasonable apprehension of bias has recently been summarized by the Supreme Court of Canada in Yukon Francophone School Board, Education Area No. 23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282. The court cited the classic, undisputed test as follows, at para. 20:

What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?

Judges are afforded a strong presumption of impartiality that is not easily displaced (Yukon, at para. 25; Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 22). However, as the court noted in Yukon, the presumption of a trial judge's impartiality can be rebutted by the trial judge's conduct, particularly by the manner and frequency of his or her interventions.

A review of the trial transcript in this case confirms that the trial judge's interventions were, on occasion, unduly aggressive and disrupted the flow of the appellants' cross-examination of the respondents' witnesses. The trial judge's choice of words when dealing with the appellants' counsel was in some cases unnecessarily harsh and he appears to have subjected factual challenges made by the appellants to greater scrutiny than those advanced by the respondents. This is certainly unfortunate, particularly in light of the fact that this was a retrial, the first trial having been set aside for a reasonable apprehension of bias. However, the interventions and comments do not, taken alone or together with the other concerns raised by the appellants, displace the presumption of impartiality.

4) No. The trial judge did not err in his assessment of future attendant care costs.

The only aspect of the damages calculation challenged on appeal is the amount awarded for future attendant care costs. The trial judge did, as the appellants submit, find that 3,650 hours per year of attendant care at $13 per hour was appropriate. The court accepted that, using the expert's figures, the hours necessary at the rates specified would produce the present value figure of $1,447,708. The trial judge, however, determined that there were contingencies that ought to be factored into his award. Specifically, the trial judge was concerned that, for various reasons, such as marriage break-up or untimely death, Leslie's husband Jason might not be available to care for Leslie for the balance of her life.

While one might disagree with the magnitude of the adjustment made by the trial judge for contingencies, his decision in this regard is not unreasonable. It is entitled to deference and there is no basis to interfere.

S.A. v. A.A., 2017 ONCA 243

[Feldman, Simmons and Lauwers JJ.A.]

Counsel:

W. Friedman, J. Hamilton and M. A. Russell, for the appellant

H. Niman and D. MacKenzie, for the respondent Z.G.

Keywords: Family Law, Real Estate, Mortgages, Enforceability, Duress

Facts:

S.A. is A.A.'s father, and Z.G. is the former wife of A.A.

The husband and the wife were married in 1991. They had a turbulent relationship, with at least two separations before the final breakup of the marriage in 2008. The wife was qualified in 1995 as a real estate sales agent and later as a broker, and worked part time outside the home throughout the marriage. The husband owned a company that manufactured exterior and interior mouldings for commercial and residential units.

In April 2005 the couple purchased a property for $1,030,000. This was the matrimonial home at the date of separation. A first mortgage was registered on the property in the amount of $700,000 with HSBC as the lender. The couple had the original house demolished and began construction of a new home on the property. On January 6, 2006 a second mortgage in the amount of $800,000 was registered with the father as mortgagee. The mortgage did not require periodic payments or the payment of interest, and the principal was due on July 1, 2006.

The father, husband and wife were all parties to the second mortgage. The mortgage was prepared by Donald Grant, a lawyer who acted for all three parties. Mr. Grant was well known to the family, having been engaged by them on other transactions. He advised each of the parties to obtain independent legal advice, but they declined to do so.

A company owned in part by the husband, 808276 Ontario Inc. ("808"), made payments that funded the construction of the new home. The father claims these payments were his advances under the mortgage. When 808 was originally incorporated, it was owned 98% by the husband and 2% by the father. The shareholdings of 808 were restructured in 1993 and 2003. The father no longer owns shares in 808.

The husband and the wife separated on June 12, 2008. The father did not demand repayment of the mortgage until August 2008, after the separation. He issued a statement of claim to enforce the mortgage against the husband and the wife on November 18, 2008, the same day on which the husband initiated his divorce application.

The husband did not defend the mortgage action and default judgment against him in his father's favour was entered on March 23, 2009. However, following a trial, the father's action to enforce the mortgage against the wife was dismissed. That dismissal is the subject of this appeal.

Issues:

1) Did the trial judge err in determining the mortgage was unenforceable on the basis that the wife signed it under some form of pressure or duress?

2) Did the trial judge err in finding that the mortgage was a sham from the outset?

3) Did the trial judge err in finding that the father had not proven that he made advances under the mortgage?

Held: Appeal dismissed.

Reasoning:

1) Yes. The wife's signature on the mortgage was not obtained by duress. The trial judge did not apply the proper test and the facts do not support the finding.

The trial judge did not specify the test he applied in determining that the mortgage to the wife was unenforceable on grounds of pressure or duress (which term we use in a general sense to catch the matters the trial judge addressed).

The law will not lightly set aside contracts reached by parties having contractual capacity: John D. McCamus, The Law of Contracts, 2d ed. (Toronto: Irwin Law, 2012).

A formulation of the test applicable to economic duress, taken from the Pao On v. Lau Yiu, [1979] 3 All E.R. 65 (P.C.), and cited in Stott, at para. 49 (WL Can), is: "the victim must have entered the contract against his will, must have had no alternative course open to him, and must have been confronted with coercive acts by the party exerting the pressure".

Where duress is alleged, the contractual obligations often demonstrate some element of unusual advantage favouring the party with the dominant power.

The evidence as laid out by the trial judge does not substantiate the finding of duress. There is no doubt that the father was the dominant party, in the sense that he had the money to which the husband and wife wanted access in order to build the house, but they were not under any compulsion to do so. The wife clearly wanted to have the house built, and giving a mortgage was the only way she was going to get access to the father's money for that purpose. The mortgage was prepared by a lawyer who acted for all three parties.

Although the trial judge accepted that the wife felt pressured to give the mortgage, he did not address the fact that given her employment qualifications and experience in real estate, it is highly unlikely that the wife did not understand what her rights were in the circumstances. Nor did he consider that in refusing to sign a marriage contract, the wife demonstrated her independence.

2) Yes. The mortgage was not a sham. The trial judge misapplied the sham test. The most commonly cited definition of the sham doctrine is that of Lord Diplock in Snook v. London & West Riding Investments Ltd., [1967] 1 All E.R. 518 (C.A.). He stated, at p. 528, that a sham means:

[A]cts done or documents executed by the parties to the "sham" which are intended by them to give to third parties or to the court the appearance of creating between the parties the legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create... [F]or acts or documents to be a "sham", with whatever legal consequences follow from this, all parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.

The majority of cases involving the sham doctrine arise in the tax context, but the doctrine has been used in appropriate cases to strike down mortgages: see Moghimi v. Dashi, 2016 ONSC 2580. The mortgage here does not meet the requirements of the sham doctrine. To the contrary, the transaction was prepared by a lawyer with advice to all parties. The mortgage was not a façade intended to deceive a third party or the courts. The wife was aware of what she was signing, and the legal obligations created by her signature. The father fully intended to create a legally binding mortgage, even if it was possible that he might never seek to enforce it. Far from being a sham, the mortgage created a legally-binding obligation on the part of the husband and wife to pay back funds advanced to them by the father, which is exactly what it purported to do.

The trial judge's conclusion that the valid mortgage signed by all parties was a sham amounts to an error in law.

3) No. The trial judge did not err in finding that the father had not proven that he made advances under the mortgage. On this ground alone, the trial judge was correct in dismissing the father's action.

While the mortgage was valid, the father, the named mortgagee, must prove that he made advances under it in order to enforce it against the wife. It is trite law that a mortgage is only security for the loan of funds advanced under it. The term "advance" does not have a technical meaning. It arises most frequently in construction lien cases where the competition is between the mortgage lender and lien claimants.

To succeed, the appellant must establish that the trial judge made a palpable and overriding error of fact in concluding that payments made by 808 to fund the construction were not the father's advances under the mortgage.

The trial judge made no palpable and overriding error in concluding that the father did not prove that he had made advances under the mortgage, since at least some of the funds flowing from 808 appear to be treated as income in the husband's hands for tax purposes as part of an income splitting scheme funded by the father. As noted, those payments cannot also be advances under the mortgage. It was the father's task to prove that the 808 payments were advances under the mortgage. This he failed to do to the trial judge's satisfaction.

Bimman v. Neiman, 2017 ONCA 264

[Juriansz, Brown and Miller JJ.A.]

I. Ellyn and E.S. Perez-Youssoufian, for the appellant/respondents by way of cross-appeal

D.A. Shiller and J. T. Curry, for the respondents/appellants by way of cross-appeal

Keywords: Corporations, Oppression, Ontario Business Corporations Act, s. 248, Valuation, Substantial Indemnity Costs

Facts: The appellants were minority investors in the respondent, Corayana Enterprises Ltd. ("CEL"), which owned several multi-unit residential complexes in Thompson, Manitoba. CEL acquired the properties and renovated them for subsequent sale or lease. Bimman's company initially held 20% of CEL's issued shares. In early 2010, CEL required further funds to renovate its properties. Unable to secure third party financing, CEL's shareholders made two cash calls. Bimman declined to participate; all other shareholders participated.

Relying on a provision in a 2009 Shareholders' Agreement (SHA), the majority of CEL's shareholders approved the issuance of additional shares to shareholders who had participated in the cash calls, thereby diluting Bimman's ownership interest in CEL.

Bimman commenced an action in which he sought relief from oppression. The main issues of the trial were whether the respondents engaged in oppressive conduct and if so, how many CEL shares did the appellant own and what was their value. The trial judge found that there was oppressive conduct. He granted declarations (i) specifying the number of shares CEL ought to have issued on the two cash calls and (ii) the resulting ownership interest of the appellants in CEL which he fixed at 11.08%. The judge then valued the appellant's shares at $858,468.31 and ordered the respondents to purchase those shares.

Issues: Did the judge err in determining the appellant's shareholding and the value of those shares?

Holding: Appeal dismissed. Cross-appeal allowed in part.

Reasoning:

The trial judge committed a calculation error by including $250,000 for "add-back debt", i.e. contributions made by shareholders on the January 11, 2010 cash call. He included $250,000 when in his reasons he found net contributions made on cash call totalled only $150,000.

It was open to the judge to accept the evidence of one expert over the other with regard to valuation of the company. It was also open to the trial judge to find that the appellant's entitlement to a deferred management fee was intentionally left open to future negotiation.

Regarding the appeal of the costs award, award of costs fall to the discretion of the judge. While unsubstantiated allegations of fraud can sometimes warrant costs on a substantial indemnity scale, the allegation was directed at the contractor as opposed to the appellant. Further, an award of punitive damages, which were awarded against certain respondents, does not automatically translate into an award of substantial indemnity costs.

The appeal of punitive damages against one of the respondents was allowed as the pleadings did not seek punitive damages against this respondent.

Currie v. Ontario (Attorney General), 2017 ONCA 266

[Feldman, van Rensburg and Pardu JJ.A.]

Counsel:

T. Falldien, for the appellant

P. Perlmutter and B. Kettles, for the respondents The Attorney General of Ontario and Her Majesty the Queen

S. K. Fenton, for the respondent Christopher Labreche

Keywords: Endorsement, Criminal Law, Private Prosecutions, Prosecutorial Discretion, Judicial Review, Standing, Issue Estoppel

Facts:

The appellant commenced a private prosecution against the respondent, Constable Labreche, claiming he was assaulted while in police custody. Following a pre-enquete hearing during which Crown counsel appeared and cross-examined the appellant and a witness, a justice of the peace found that a prima facie case had been made out and issued process compelling Labreche to attend to answer the charge of assault. The Crown then intervened to assume carriage of the prosecution. The appellant then brought an application in the Superior Court under Rule 14 of the Rules of Civil Procedure (referred to by the parties as the "Recusal Application") to challenge the actions of the Crown in taking over the private prosecution, claiming a breach of his rights under s. 7 and s. 11(d) of the Canadian Charter of Rights and Freedoms.

The Recusal Application was heard in June 2015 and dismissed on August 12, 2015, for reasons reported at 2015 ONSC 4448. The application judge held that the Crown had lawful authority to intervene in the private prosecution and that the appellant had failed to demonstrate an abuse of process or bias. The Crown, on notice to the appellant and in an attendance in the provincial court, withdrew the assault charge on October 6, 2015, on the basis that there was no reasonable prospect of conviction.

The appellant moved for an extension of time for leave to appeal the order dismissing the Recusal Application. The motion was dismissed. The appellant brought a second application in the Superior Court (referred to by the parties as the "Constitutional Application"), this time pursuant to the Criminal Proceedings Rules. The appellant sought a declaration of unconstitutionality of s. 507.1 of the Criminal Code (which provides for the referral of private prosecutions to the provincial court after a hearing, and for notice to and the participation of the Attorney General in the hearing), and s. 11(d) of the Crown Attorneys Act. The application judge, Cornell J., heard and dismissed the Constitutional Application. He dismissed the application in its entirety on the basis of issue estoppel.

Issue:

(1) Did the application judge err in concluding that the Constitutional Application was barred by issue estoppel?

(2) Did the application judge err by not allowing the Constitutional Application to succeed on the merits?

Holding: Appeal dismissed.

Reasoning:

(1) No. The Court held that the appeal could be disposed of on the estoppel ground. It was clear from a review of the two applications and the materials relied on by the appellant for each, that the Constitutional Application raised exactly the same issues as were dealt with in the Recusal Application. The withdrawal of the charges did not change the character of the proceedings. "Advancing new legal arguments and asserting additional claims for relief will not avoid the application of issue estoppel: Las Vegas Strip Ltd. v. Toronto (City) (1996), 30 O.R. (3d) 286 (Gen. Div.), at para. 25, aff'd (1997), 32 O.R. (3d) 651 (C.A.).

Thus, the Court rejected the appellant's argument that the Recusal Application, which challenged the Crown's intervention in the private prosecution, was distinct from the Constitutional Application, which challenged the Crown's withdrawal of the charge. Similarly, the fact that the Constitutional Application raised for the first time the constitutionality of s. 507.1 of the Criminal Code and s. 11(d) of the Crown Attorneys Act was of no consequence.

The Court declined to exercise its discretion where the application of the doctrine of issue estoppel would result in an injustice: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at paras 63-64.

(2) The Court declined to address the second issue in light of its determination that the appeal could be disposed on the ground of issue estoppel. However, the Court noted two points in obiter.

First, the Court had serious concerns about the appellant's standing, as a complainant, to challenge the exercise of prosecutorial discretion. The question of standing ought to be addressed before any such application is considered on the merits. Although framed as a constitutional challenge to the legislative regime for private prosecutions, the appellant did not advance evidence or argument in support of a constitutional challenge. Rather, his focus was on the merits of the Crown's assessment of the available evidence leading to the decision to withdraw the charge.

Second, the 'triable issue' standard the appellant advanced was entirely misplaced. The question for the Crown was not whether there was a triable issue respecting the officer's guilt, but whether there was a reasonable prospect of conviction.

Harvey v. Talon International Inc., 2017 ONCA 267

[Blair, Epstein and Huscroft JJ.A.]

Counsel:

S. Zucker and N. Tourgis, for the appellant

M. W. Carlson, for the respondents

Keywords: Real Property, Condominiums, Agreements of Purchase and Sale, Rescission, Material Change, Condominium Act, 1998,, s. 74, Limitation Periods, Real Property Limitations Act, s. 4

Facts:

The applications concern the obligation of the appellant, Talon International Inc., to return deposits that the respondents – Young Sook Yim and Paul Chung-Kyu Kim (collectively "Ms. Yim"), in one application and Adrian B. Harvey and Harvey Legacy Holdings Ltd. (collectively, "Mr. Harvey"), in the other – paid toward the purchase of condominium units in Talon's development known as Trump Tower.

Several years after entering into their respective agreements of purchase and sale (an "APS") with Talon, the Hotel Unit Maintenance Agreement (HUMA) became available to Ms. Yim and Mr. Harvey. At this point, Ms. Yim and Mr. Harvey each provided written notices to Talon, advising of their intention to "terminate" the APS. Both stated their basis for doing so as being, in part, what they viewed as material changes to the revised disclosure statement Talon had provided to them. Both requested the return of their deposits. The respondents take the position that their communications constituted valid notices to rescind their respective APS under s. 74(6) and (7) of the Condominium Act, 1998 (the "Act"). Because Talon had not challenged, within the time the Act allows, either Ms. Yim's or Mr. Harvey's right to rescind, the respondents applied to the court for an order that Talon return their deposits. Talon defended on the basis that the respondents' purported notices to rescind did not meet the requirements of the Act.

The application judge allowed both applications. She held that the notices sufficiently complied with the requirements of s. 74(7) of the Act. Each notice therefore triggered Talon's obligation to challenge the alleged material change set out within ten days of receipt, or to accept the claim for rescission. Because Talon did not challenge the respondents' claims for rescission, the application judge ordered Talon to refund Ms. Yim's and Mr. Harvey's deposits, with interest.

In Ms. Yim's case, Talon also argued that she was seeking to amend her notice of application to claim statutory rescission more than two years after the date on which such a claim was discovered. Her amendment was therefore statute-barred, pursuant to s. 4 of the Limitation Act, 2002,. The application judge disagreed. She held that the ten-year limitation period in s. 4 of the Real Property Limitations Act (the "RPLA") governed claims for the refund of deposits advanced toward the purchase of condominium units. Ms. Yim's claim was, therefore, not out of time.

Talon appealed. The main issue in these appeals involves the interpretation of the provisions in the Act that give a purchaser the right to rescind his or her APS. These provisions are found in s. 74 of the Act.

Issues:

What is the standard of review?
What is the applicable limitation period?
Did Ms. Yim's and Mr. Harvey's communication to Talon constitute notices to rescind for the purposes of s. 74 of the Act?

Holding:

Appeal dismissed.

Reasoning:

(1) The standard of review varies for the different issues on appeal.

What s. 74(7) of the Act means by the words "notice of rescission" is a question of law, and accordingly is reviewed on the correctness standard. Answering this question requires the interpretation of the Act, and it is well established that questions of statutory interpretation are questions of law.

The question of whether the actual notices provided by the respondents met the requirements of the Act is one of mixed fact and law, and reviewed on the palpable and overriding error standard. In answering this question, the application judge considered all the evidence the law required her to consider. In my view she did not apply an incorrect standard or make an error in principle. Accordingly, her determination that the notices provided in this case were sufficient is entitled to deference, and should not be overturned absent palpable and overriding error.

Whether Yim's application was statute-barred is also a question of law, and thus reviewed by this court on the correctness standard. There is no factual component to the dispute about whether the application is statute-barred in these circumstances. The sole issue is thus whether an application for the return of a deposit is covered by the RPLA, in which case the application was not brought out of time, or by the Limitation Act, 2002, in which case the application was brought out of time. Accordingly, the limitation period issue is a question of law, without a factual component.

(2) The applicable limitation period is ten years. Section 4 of the RPLA requires three things: an "action", to "recover" and what must be recovered is "land". An action is defined in s. 1 of the RPLA to include "any civil proceeding". "Recovery" means to 'gain through a judgment or order. Therefore, this action is clearly an action to recover. The remaining question is whether what Ms. Yim seeks to recover – her deposit – is "land". Section 1 of the RPLA defines land. Based on this definition, the application judge was also correct in concluding that an application for the return of the deposit was an action for the recovery of "land"; specifically the recovery of "money to be laid out in the purchase of land".

Had Ms. Yim's claim been one primarily seeking damages, for example breach of contract, her application would be statute-barred. This would be true even if the claim for damages incidentally related to real property, specifically the condominium that was the subject of her APS. Claims for damages do not fit within the definition of "land" in the RPLA. However, Ms. Yim is not seeking damages. She advances a specific claim under a provision in the Act, a provision that only allows for the return of her deposit and interest, not damages. As stated by the case law, a genuine deposit ordinarily has nothing to do with damages, except that credit must be given for the amount of the deposit in calculating damages.

In considering, the phrase "money to be laid out in the purchase of land" in the definition of "land" in section 1 of the RPLA, there is scant jurisprudence. However, in the court's view, an action for the return of a deposit fits comfortably within its plain meaning. Frankly, what would fit within this phrase if not an action such as this?

On the basis of the foregoing analysis, Ms. Yim's application is not statute-barred. This is also true of the amendment of her initial application to specifically claim statutory rescission. As her application is covered by s. 4 of the RPLA, the applicable limitation period is ten years.

(3) Ms. Yim's and Mr. Harvey's communication to Talon constitute notices to rescind for the purposes of s. 74 of the Act.

A. What is required for notice of rescission under s. 74 of the Act?

The application judge correctly considered this issue through the lens that the Act is consumer protection legislation. The fact that the Act is consumer protection legislation is well established. The legislative history of s. 74 of the Act provides further support for the identification of the statutory scheme dealing with rescission as consumer protection legislation. The goal of consumer protection laws is to place consumers, who are average citizens engaging in business deals, on par with companies or citizens who regularly engage in business. Consumer protection legislation must be interpreted generously in favour of the consumer.

Further support for the application judge's approach to interpreting what is required for notice of rescission under s. 74 of the Act can be found in how a right to rescind has been interpreted in another statute that has been identified as consumer protection legislation – the Arthur Wishart Act (the "AWA"). Section 6 of the AWA provides franchisees with the right to rescission via a statutory provision not dissimilar to that found in the Act. Pursuant to s. 6(3), the only requirements for the franchisee's notice of rescission is the following: "Notice of rescission shall be in writing and shall be delivered to the franchisor, personally, by registered mail, by fax or by any other prescribed method, at the franchisor's address for service, or to any other person designated for that purposes in the franchise agreement". This provision is substantially similar to the rescission provision found in s. 74(7) of the Act.

The issue of what constitutes a "notice of rescission" under s. 6(3) of the AWA was considered in detail in 779975 Ontario Ltd. v. Mmmuffins Canada Corp., 2009 CarswellOnt 3262 (S.C.). The Mmmuffins case provides support for the application judge's conclusion that a notice of rescission under the Act does not need to include the word "rescind" or "rescission", or reference the relevant section of the Act. As Strathy J. made clear, the notice "does not have to be in specific language". What is required is that the notice indicates that the purchaser is exercising his or her statutory authority to "rescind" or "unmake" the APS based on a material change. Where the notice achieves this, the declarant can decide whether to apply to the Superior Court for a determination of the materiality of the change set out.

The Court agreed with the application judge's interpretation that a notice of rescission pursuant to s. 74(7) of the Act does not require the use of the words "rescind" or "rescission". As previously indicated, the Act is well established to be consumer protection legislation. It therefore must be interpreted generously in a manner that protects consumers. Consumers will not always be represented by counsel. Consumers will not always be familiar with words such as rescission and rescind. For consumers to be on a level playing field with developers in accessing the respective rights afforded them under the Act, they must be given considerable leeway in their use of language. As long as the purchaser's intention to undo the transaction based on a material change is clear, that is sufficient. That is all the declarant needs to understand in order to take advantage of the statutory rights then available to it.

B. Did the respondents' correspondence constitute notice of rescission?

There is no reason to interfere with the application judge's determination that the notices provided were sufficient to qualify as "notices of rescission".

It is true that both notices utilized the word "terminate". However, both also included repeated requests that the deposit be returned. As the application judge noted (para. 56 of Mr. Harvey, 54 of Ms. Yim), return of deposit is a remedy consistent with rescission, and not with repudiation. As well, both notices referred to the materially different terms contained in the HUMA as a basis for undoing the transaction. The HUMA had just been disclosed to Ms. Yim and Mr. Harvey a few days before their respective notices. They were well within the window to claim rescission based on a material change.

Although Ms. Yim was represented by counsel, the Court did not feel that this factor was relevant to a determination of whether the notice was sufficiently clear that Ms. Yim wanted to undo the transaction based on a material change. Regardless, Ms. Yim's counsel wrote a follow-up email to Talon the day after the initial notice, making it clear that rescission pursuant to s. 74(7) of the Act was being sought. Considering these factors as a whole, it was reasonable for the application judge to conclude that the notice provided in the case of Ms. Yim was sufficient to meet the requirements of the Act.

The application judge was also correct that the change to the HUMA actually was a material change. That issue does not come into play. Talon received valid notices of rescission under the Act, based on an alleged material change in the HUMA. Talon had ten days to make an application to Superior Court for a determination as to whether the alleged material change was in fact material. Having failed to do so, it is now too late for Talon to argue that the change was not material.

Mr. Harvey's letter of February 24 did not contain the word rescind, and did not reference s. 74 of the Act. Nor did he provide a follow-up communication the next day, unlike Ms. Yim. However, his letter did contain information sufficient to bring home to the declarant that s. 74 was being engaged. As noted by the application judge, Mr. Harvey both asked for the return of his deposit, and relied on the material differences in the HUMA. Given this, the application judge made no error concluding that Mr. Harvey's letter met the requirements under s. 74 of the Act. It was a valid notice of rescission.

Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265

[Hoy A.C.J.O., Benotto and Huscroft JJ.A.]

Counsel:

J.Winch, for the appellants

D. Winnitoy, for the respondent

Keywords: Real Property, Adverse Possession, Masidon Test, Land Titles Act, s. 51(2), Real Property Limitations Act, s. 4

Facts:

The appellants, Ted Sipsas and Leslie Carruthers, own 173 Gooch Ave. ("173"), which adjoins 171 Gooch Ave. ("171"). Both properties are in Toronto and were converted to Land Titles on October 22, 2001. The appellants purchased 173 from Delila and Fred Hendricks on September 28, 2007. The Hendricks had purchased the property in 1969 from the builder who built their two-storey brick home on the property.

171 was purchased by the respondent, 1299781 Ontario Inc., from the City of Toronto on December 18, 2006. It was essentially a vacant piece of land. The City had taken ownership of the property as a result of unpaid taxes owed by the previous owner, Jennie D. Thompson ("Thompson"), who owned the property from 1932 until 2005. A dispute arose when the respondent listed 171 for sale. The appellants asserted ownership of part of that property as a result of adverse possession and took the position that 171 could not be sold if the sale included the disputed lands. The appellants commenced an application and obtained a certificate of pending litigation that prevented the sale of 171 until ownership of the disputed lands was resolved. The application was converted to an action that was tried pursuant to the simplified procedure, resulting in the order under appeal.

There is no evidence that the disputed lands were used by Thompson at any time between the Hendricks' purchase of 173 in 1969 and the City's assumption of ownership of 171, including the disputed lands, in 2005. Mr. Hendricks, the prior owner of 173, gave evidence that the builder from whom he purchased it built a retaining wall on 171 and enclosed the disputed lands with a board fence in 1969, prior to his purchase. He said that he always understood from the builder that the disputed lands were part of his property. According to Mr. Hendricks, he completed the fencing of the disputed lands by 1974. In addition, he built concrete steps on the disputed lands by 1970 and two sheds in 1979, one that was used as a tool shed and the other as a dog house and dog run.

The trial judge noted Mr. Hendricks' evidence that he believed the disputed lands were part of 173. The trial judge observed that none of the purchase and sale documentation from the sale of 173 in 1969 was put into evidence. He acknowledged that the Listing Agreement in connection with the Hendricks' 2007 sale of 173 referred to a Garden Shed being included in the sale. However, the agreement of purchase and sale and the statutory declaration that were executed when the appellants purchased the property did not refer to the disputed lands. He gave more weight to those documents than to the Listing Agreement and Page 4 found that they contradicted Mr. Hendricks' evidence that he always believed that the disputed lands were part of 173.

This is an appeal of an order denying the appellants' request for a declaration that they own a part of the property that adjoins the property they purchased, as a result of adverse possession.

Issues:

Did the trial judge err in concluding that the appellants failed at the first step of the Masidon test because the Hendricks' use of the disputed lands was seasonal and intermittent at best?
Was the trial judge entitled to give any weight to the agreement of purchase and sale and the statutory declaration that Hendricks signed because they came after adverse possession had to be established?
Did the trial judge fail to consider their claim for an easement?

Holding: Appeal dismissed.

Reasoning:

Although title to lands registered in Land Titles cannot be obtained by adverse possession following the registration of title, title may be obtained by adverse possession that can be established for a continuous period of 10 years prior to registration: s. 51(2) of the Land Titles Act and s. 4 of the Real Property Limitations Act. Thus, as the trial judge found, the appellants were required to establish that the Hendricks adversely possessed the disputed lands for any 10-year period ending October 21, 2001.

It is clearly arguable that the Hendricks' use of the disputed lands was sufficient to establish actual possession. The Supreme Court recently reiterated that the requirement that a claimant have actual "possession" does not require continuous occupation: Nelson v. Mowatt, 2017 SCC 8, [2017] S.C.J. No. 8, at para. 31. The Hendricks could be said to have used the disputed lands as a backyard, and backyards are necessarily used on a seasonal basis. But even assuming that the actual possession requirement was satisfied, the appellants' claim would fail on the second step of the Masidon test.

The appellants were required to establish that the Hendricks intended to use the disputed lands in a manner inconsistent with the rights of Thompson and the use she intended to make of it. There is no question that the "inconsistent use" test makes it more difficult for claimants of adverse possession to establish an intention to exclude, especially where, as in this case, the intentions of the true owner of the disputed lands are unknown.

It was open to the trial judge to consider the agreement of purchase and sale and statutory declaration in rejecting Mr. Hendricks' evidence that he believed that the Hendricks owned the disputed lands. The court was not persuaded that the trial judge's conclusion that the Hendricks knew they had no claim to 171 is a palpable and overriding error.

No. There is no merit to the argument in any event. There was no evidence to support the claim that an easement was reasonably necessary for the enjoyment of the appellants' land. Furthermore, the grant of an easement would all but preclude the respondent's use of the disputed lands.

Unger v. Unger, 2017 ONCA 270

[Feldman, Sharpe, and Roberts JJ.A.]

Counsel:

M. J. Stangarone and K. A. Maurina, for the appellant

A. Feldstein and N. Slinko, for the respondent

Keywords: Endorsement, Family Law, Custody and Access, Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Children's Law Reform Act, Habitual Residence

Facts:

The appellant appeals the dismissal of his application against his former spouse, under Articles 3 and 12 of the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, C.T.S. 1983/35; 19 I.L.M. 1501 ("Hague Convention") and s. 46(5) of the Children's Law Reform Act, for a declaratory order that their child is habitually resident in Israel.

Article 3 of the Hague Convention states that a removal or retention of a child is wrongful where:

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Article 12 of the Hague Convention requires the mandatory return of the child if the removal or retention is determined to be wrongful. Under s. 46(5) of the Act, an application may be made to a court in pursuance of such a return.

From February 2014 to August 2015, the appellant and the respondent lived in Israel with their daughter. In August 2015, they travelled to Toronto, Ontario to visit the respondent's parents and to allow the respondent to seek medical treatment for various, serious medical issues. At the end of three months, the appellant returned to Israel; the respondent and their daughter remained in Toronto.

The application judge found that while the parties were in Toronto, they mutually agreed to change their habitual residence from Israel to Ontario, but that the appellant later changed his mind and decided to remain in Israel, and wanted the respondent and their daughter to return to Israel as well. The application judge also determined that the appellant had acquiesced in the respondent and their daughter remaining in Ontario. As a result, the application judge determined that she was not bound to order the return of the daughter to Israel.

The application judge's determinations that the daughter's habitual residence is Ontario and that the appellant had consented to or acquiesced in Ontario as the daughter's habitual residence are factual findings that are subject to considerable deference on appeal: Baggot v. Balev, 2016 ONCA 680, [2016] 405 D.L.R. (4th) 98, at para. 53; I. (A.M.R.) v. R. (K.E.), 2011 ONCA 417, [2011] 106 O.R. (3d) 1, at para. 88.

Issue: Did the application judge make a palpable and overriding error in her consideration of the evidence and findings of fact with the result that she erred in determining that the appellant had consented to or acquiesced in Ontario as the habitual residence of his daughter?

Holding: Appeal dismissed.

Reasoning:

No. The application judge carefully and thoroughly reviewed the evidence presented by the parties. Her findings that the appellant had consented to or acquiesced in Ontario being his daughter's habitual residence were open to her on the record. In particular, the application judge looked to the appellant's own conduct and communications with the respondent and others to support her findings. For example, in a text message exchange with the respondent's sister on November 17, 2015, after his return to Israel, the appellant wrote that he was "[t]rying to get everything in order, and cope with leaving..." and that "the plan is to be in Toronto until further notice...which basically means forever...". In later texts to the respondent in December 2015, the appellant advised that he would come to Toronto from time to time to visit, asked her to find him a place in Toronto where he could stay, and forwarded employment training opportunities for the respondent in Toronto.

United States v. Equinix Inc., 2017 ONCA 260

[Hoy A.C.J.O., Doherty and Miller JJ.A.]

Counsel:

M. Gourlay, for the appellant Megaupload Inc.

M. Rahman and N. Dennison, for the respondent

Keywords: International Law, Mutual Legal Assistance in Criminal Matters Act, RSC 1985 c 30, Evidence, Criminal Law, Criminal Copyright Infringement

Facts:

The Mutual Legal Assistance in Criminal Matters Act allows countries that have the appropriate treaty with Canada to seek the assistance of the Minister of Justice in locating and obtaining evidence believed to be in Canada, relevant to a criminal investigation in the foreign country. The Minister can approve the use of various investigative techniques, including a search warrant. If the Minister authorizes his agent to seek a search warrant, the application is made to the Superior Court. The judge may issue the warrant if the prerequisites in s 12 of the Act are met.

The issuing judge must fix a date for a hearing to consider whether the warrant was properly executed and, if so, whether the seized material should be sent to the foreign jurisdiction (s 12(3)). The peace officer who executes the warrant prepares a report for the judge to consider on the return date, which includes a description of the things seized. The person from whom the material was seized and any other person who claims an interest in the material is entitled to notice of the hearing and to make submissions at the hearing (ss 12(4), 15(1) of the Act).

At the hearing under s 15(1) of the Act, the judge must decide whether to order the seized material sent to the foreign jurisdiction. If the judge is not satisfied that the warrant was executed in accordance with its terms, or is satisfied that a sending order should not be made, the court may return the material to the person from whom it was seized, or to a person lawfully entitled to the material. If the judge is satisfied that the warrant was executed according to its terms and there is no reason why the order should not be made, the judge may order the material sent to the foreign jurisdiction. Section 15(2) allows the judge, before deciding whether to make a sending order under s 15(1), to order a physical object or document, seized pursuant to the warrant, brought before him or her for examination.

On the appeal before the Court of Appeal, the Court must decide whether the reach of s 15(2) extends beyond that literal meaning.

In December 2011, the US Department of Justice sought the Minister's assistance in an investigation involving allegations of criminal breach of copyright. The US investigators alleged that the appellant and its officers and employees were facilitating criminal copyright infringement and related money laundering transactions. The investigators learned that the appellant leased computer servers in Toronto. They believed that the servers contained copyrighted content and other information relevant to the investigation. The US authorities asked the Minister to obtain a search warrant authorizing the seizure of the servers.

The appellant acknowledged the warrant had been properly issued and the search was executed in accordance with the terms of the warrant. However, the appellant submitted that the servers contained a mass of information, much of which was the property of third parties and was not relevant to the investigation. The appellant argued that information on the servers irrelevant to the US investigation could not be sent to the United States under s 15 of the Act. Pardu J, as she then was, concluded that, before a sending order could be made, the court required assistance in separating the content on the servers relevant to the US investigation from the irrelevant content. The parties were unable to agree on a method of sorting the relevant material from the irrelevant. They sought directions. The Minister proposed that an FBI "clean team" would sort the material and draft a report for the court.

Counsel for the appellant agreed that the suggested process was appropriate to help the judge in sorting out the relevant from the irrelevant material. Counsel submitted, however, that the process should not be done by the FBI, the same agency investigating the copyright allegations. Rather, an independent expert should provide the summary.

The application judge accepted the proposal and directed that the FBI proceed.

Issue:

(1) Whether the application judge had jurisdiction under s 15(2) of the Act to make an order directing that the seized material be examined by an FBI "clean team" for the purposes of preparing a report to assist the court in determining what order, if any, should be made under s 15(1) of the Act.

(2) If the application judge had that jurisdiction, whether he erred in exercising it by allowing the FBI "clean team" to examine the material.

Holding: Appeal allowed.

Reasoning:

(1) Yes. Section 15(2) exists to assist the judge in making a determination under s 15(1). In cases like this one, an effective examination of the material can only be made by a judge who has the necessary technical and expert assistance. The power to direct that the material be brought before the judge includes, by implication, the power to make the orders necessary for the judge to carry out her role in assessing the material under s 15(1). The judge who issued the search warrant could have made a similar order under s 12(2) of the Act, which allows the judge who issues the warrant to impose conditions on the execution of the warrant.

(2) Yes. The application judge erred in failing to consider the proposed order's effect on the appearance of fairness, and in particular, the appearance of the sending judge's impartiality. The judge had to decide what material, if any, should be ordered sent to the United States. The appellant and the American investigators, the FBI, stood in a strongly adversarial position with respect to the order. The judge needed someone who could prepare a report outlining the nature of the materials so that the judge could decide what part of the material, if any, should be sent to the United States. It was offensive to the appearance of fairness, and specifically the appearance of judicial impartiality, to have an entity closely associated with one of the adversaries provide the judge with the necessary report.

If a judge asked to make a s 15(1) order needs assistance in examining the seized material, the judge should start from the premise that anyone retained for that purpose should be independent of the interested parties. If a party claims that an associated entity should be allowed to review the material and prepare a report for the judge, that party bears the onus to justify use of an associated entity. For example, there could be cases in which the foreign investigative authorities have a particular and unique expertise that would be valuable in examining the seized material. Cost considerations may be relevant in deciding who should be appointed to assist the judge in examining seized material, however, the cost considerations cannot play a leading role.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Canada: Court Of Appeal Summaries (March 27 – 31, 2017)

Table of Contents:

Civil Decisions:

Canada: Court Of Appeal Summaries (March 27 – 31, 2017)

Table of Contents:

Civil Decisions:

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