Canada: Top 5 Civil Appeals From The Court Of Appeal (January 2013)

Last Updated: January 25 2013
Article by Jason Squire
  1.  Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854 (Rosenberg, Goudge and Feldman JJ.A.), December 5, 2012
  2. St. Mary's Cement Inc. (Canada) v. Clarington (Municipality), 2012 ONCA 884 (Winkler C.J.O., Pepall J.A. and Smith J. (ad hoc)), December 17, 2012
  3. Trang v. Nguyen, 2012 ONCA 885 (Simmons, Juriansz and Epstein JJ.A.), December 17, 2012
  4. Dembeck v. Wright, 2012 ONCA 852 (Gillese, Rouleau and Epstein JJ.A.), December 4, 2012
  5. The Canada Trust Company v. Browne, 2012 ONCA 862 (Feldman, Simmons and Cronk JJ.A.), December 7, 2012 

1.  Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854 (Rosenberg, Goudge and Feldman JJ.A.), December 5, 2012
In this appeal, the Court considered the admissibility and possible use of hearsay evidence – in this case, the evidence of the deceased – in an action by beneficiaries of a life insurance policy against the insurance company.
Brisco died in January 2004 in an airplane crash, triggering the $1,000,000 insurance benefits for common carrier fatal accidents. At the time of his death, he held a number of insurance policies.
The appellant, Canadian Premier Life Insurance Company, had insured the deceased under a group accident insurance policy but claimed that Brisco had cancelled that policy. The respondent beneficiaries of Brisco's estate submitted that the appellant cancelled the policy in error and that the deceased had intended to cancel a different policy. The respondents' claim rested on statements made by the deceased over the course of several years with respect to his insurance. At trial, Justice Tausendfreund admitted these statements under the state of mind exception to the hearsay rule.
Rosenberg J.A. of the Court of Appeal agreed with the appellant that the trial judge erred in relying on the state of mind exception. The statements made by the deceased in 2003 –that he owned two million-dollar insurance policies— may demonstrate his state of mind at that time, but his state of mind in 2003 was not at issue. What was at issue were acts taken by the deceased in 1998, when the appellant claims that the policy was cancelled. The deceased's state of mind when he made the impugned statements was therefore only relevant to determining past acts, an inference prohibited under the leading state of mind exception cases R. v. Smith, [1992] 2 S.C.R. 915 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. In both of those cases, the Supreme Court adopted Justice Doherty's statement in R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.) that hearsay evidence is "not admissible to establish that past acts or events referred to in the utterances occurred."
Rosenberg J.A. did find, however, that the deceased's statements were admissible under the principled approach to hearsay. Citing R. v. Khelawan, 2006 SCC 57, [2006] 2 S.C.R. 787, which established that hearsay evidence may be admitted "if sufficient indicia of necessity and reliability are established," Rosenberg J.A. explained that threshold reliability in this case rested on demonstrating that, in the context in which the statements were made, there was no real concern about whether or not they were true. Considering the circumstances in which Brisco's comments were made along with the confirmatory evidence, Rosenberg J.A. held that the statements met sufficient threshold reliability to warrant admissibility. 
The Court further rejected the appellant's argument that the trial judge erred in holding that s. 13 of the Evidence Act was not applicable and that, regardless, there was evidence to satisfy the corroboration requirement. Considering the words "heirs, next of kin, executors, administrators or assigns of a deceased person" in the provision, Rosenberg J.A. concluded that s. 13 is limited to circumstances in which the interested party claims under one of the enumerated categories and not simply because he or she happens to fall within one of them. In this case, the Brisco children did not claim as next of kin but under a contractual right as beneficiaries of the insurance policy. Because the provision did not apply to the Brisco children, there was no need for corroboration of their evidence.
Regardless, Rosenberg J.A. opined that the same evidence which rendered the deceased's statements admissible under the principled approach to hearsay was capable of satisfying the corroboration requirement in s. 13. A cumulative consideration of the evidence could corroborate that of the Brisco children and of the executor of the estate.
The appeal was dismissed.
2.  St. Mary's Cement Inc. (Canada) v. Clarington (Municipality), 2012 ONCA 884 (Winkler C.J.O., Pepall J.A. and Smith J. (ad hoc)), December 17, 2012
In this case, the Court of Appeal considered whether substituting alternative fuel for part of the conventional fossil fuel used in a cement manufacturing plant constituted a permissible change in land use under a municipal zoning by-law.
St. Mary's Cement Inc. (Canada) ("SMC") operates a cement manufacturing plant in the Municipality of Clarington. It proposed to substitute fuel recovered from post-recycling and post-composting materials for part of the conventional fossil fuel currently used in its cement manufacturing process. The municipality opposed the proposal on the basis that it would give rise to a new land use, namely the use of the site as a "waste disposal area" which is not permitted under the by-law governing the use of the site.
SMC appealed from a decision on an application for the interpretation of the municipality's by-law 84-63. The application judge interpreted the by-law in favour of Clarington, holding that the use of the alternative fuel would be an impermissible change in land use.
Writing for the Court, Winkler C.J.O. held that, while the application judge correctly found that the proposed fuel fell within the broad definition of "waste" under the EPA, he erred in concluding that the use of this waste as fuel would bring the plant within the definition of a "waste disposal area", therefore constituting a new and additional use.
There was no dispute among the parties that the use of the lands as a "waste disposal area" is impermissible under the by-law. Winkler C.J.O. found, however, that the application judge failed to apply the express language used in the by-law to define "waste disposal area", namely "a place where garbage, refuse or domestic or industrial waste is dumped, destroyed, or stored in suitable containers." Under its proposal, SMC would not dump, destroy or store waste at the site. The use of alternative fuel is not the "destruction of waste", but is in fact the productive use of the fuel for the operation of a cement manufacturing plant, the use expressly permitted under the by-law.
As Winkler C.J.O. explained, when considering the definition of "waste disposal area" in the context of the by-law as a whole and the plans of the municipality, it is clear that the municipality seeks "to regulate land that is used for the purpose of removing, containing or managing unwanted materials." SMC was simply proposing to use these materials as a resource for a permitted and existing process.
Clarington also submitted before the Court of Appeal that the proposed substitution of fuels is a prohibited additional use because the by-law does not permit the processing of waste at the site. Winkler C.J.O. disposed of this argument, holding that SMC's use of alternative fuel did not constitute an additional use of the land.
Winkler C.J.O. looked to the decision of Court of Appeal of England and Wales in R. (ex parte Lowther) v. Durham County Council and Lafarge Redland Aggregates Limited, [2001] EWCA Civ 781, in which that court considered the proposition that partial substitution of alternative fuels constitutes a change in use. In Lowther, the court held that the use of alternative fuel was not a material change in land use: the burning of fuel is "so entirely part of the manufacture of cement [...] that it would be wrong to characterise it as a separate use." Winkler C.J.O. concluded that because the burning of fuel is "inherent in the production of cement," the use of alternative fuel did not constitute a separate use of the land.
The Court allowed the appeal and issued an order that SMC's proposed use of alternative fuels at its plant in Clarington did not constitute a new land use and was permissible for the purposes of the municipality's zoning by-law.
3. Trang v. Nguyen, 2012 ONCA 885 (Simmons, Juriansz and Epstein JJ.A.), December 17, 2012
At issue in this appeal was whether an unregistered equitable interest in land can take priority over a lien registered by the Canada Revenue Agency against a taxpayer's real property. The Court of Appeal ruled that it can.
The CRA, which registered liens against three properties owned by Trang, brought a motion under rule 21.01(1)(a) of the Rules of Civil Procedure to determine whether equitable interests to the properties claimed by Trang's wife and sister could entitle them to payment in priority to the liens. McKinnon J. of the Superior Court of Justice held that the unregistered equitable interests of Trang's wife and sister could be payable in priority to the CRA's subsequent liens. McKinnon J. rejected the CRA's argument that s. 223(5)(a) of the Income Tax Act makes the CRA liens the equivalent of a "charge" under s. 93(3) of the Land Titles Act, thus giving them priority over existing unregistered interests, finding instead that the provision gives the CRA the status of a judgment creditor which does not override prior unregistered equitable interests.
On appeal to the Court of Appeal, the CRA raised essentially the same argument under a different provision of the Income Tax Act. The CRA submitted that s. 223(5)(b) of the Act adopts the scheme created for amounts owing to the provincial Crown, whereby once a notice of indebtedness to the Crown is registered, it secures a "lien and charge" on a debtor's lands.
The Court agreed to consider the CRA's argument on s. 223(5)(b) despite the fact that it was not raised below. Nonetheless, it found that that provision was no more helpful to the CRA than s. 223(5)(a) in creating a "charge" under the Land Titles Act and obtaining for the CRA the priority which s. 93(3) confers.
Writing for the Court, Simmons J.A. first explained that a charge cannot be created under s. 93(3) of the Land Titles Act without a voluntary act on the part of the owner of the land. The CRA's liens are created by statute; therefore, they cannot qualify as a "charge" within the meaning of the provision.  
Simmons J.A. similarly rejected the CRA's argument that s. 223(5)(b) of the Income Tax Act incorporates the remedies contained in the Ontario tax collection statutes which create a "lien and a charge" on the taxpayer's interest in the property. The "lien and charge" in the Fuel Tax Act and other provincial legislation cited by the CRA is no more a "charge" under the Land Titles Act, for the same reason that it does not arise through the voluntary act of the property owner. Simmons J.A. opined that the Ontario legislature did not intend to create a "charge" within the meaning of the Land Titles Act when it enacted the various tax collection provisions on which the CRA relied.
Moreover, the Ontario tax collection statutes contain their own priority provisions for the "lien and charge" they create. Section 17.1 of the Fuel Tax Act, for example, creates a different priority from that created by s. 93(3) of the Land Titles Act. For this reason, Simmons J.A. that it would be inconsistent to hold that the provision has the effect of creating "a charge" within the meaning of s. 93 of the Land Titles Act.
Ultimately, neither s. 223(5)(a) nor s. 223(5)(b) of the Income Tax Act were able to make the CRA liens over Tran's property a "charge" under the Land Titles Act. Therefore, they could not take priority over existing unregistered interests in the land.
The appeal was dismissed.
4.  Dembeck v. Wright, 2012 ONCA 852 (Gillese, Rouleau and Epstein JJ.A.), December 4, 2012
In this appeal, the Court considered whether a spouse "owns", on the date of marriage, an entitlement to an Employment Standards Act severance payment that he or she later receives.
At trial, Justice Perkins dealt with various financial disputes between the parties. Before the Court of Appeal, the appellant wife challenged a number of the judge's findings, including his determination of the value of her business and of certain household items, and his determination of the respondent's support obligations.
The central issue on appeal, however, concerned a $190,000 severance package the respondent husband received when his employment was terminated three days before the couple's separation. The appellant argued before the Court of Appeal that the trial judge erred in ruling that a portion of the amount of severance the respondent husband was paid was property owned by him on the date of their marriage. She submitted that, like the common law damages portion, the respondent's right to severance under the Employment Standards Act was not property owned by him until his employment was terminated without cause.
Writing for the Court, Epstein J.A. noted that on a plain reading of s. 57 of the Act, an employee does not have an absolute right to be paid ESA severance, but is entitled to severance only if his employment is terminated without notice.
Moreover, despite the importance of defining property broadly in Family Law Act proceedings as articulated by Sharpe J.A. in Lowe v. Lowe (2006), 78 O.R. (3d) 760 (C.A.), Epstein J.A. noted that the Ontario courts have consistently held that entitlement to severance pay is only property once it has crystallized. In Leckie v. Leckie (2004), 238 D.L.R. (4th) 571 and Ross v. Ross (2006), 83 O.R. (3d) 1, the Court of Appeal made clear that "for a severance package to be considered property at the date of separation, there must be a right or entitlement to it at that date."
Epstein J.A. also noted that in defining property, the FLA does not distinguish between the date of marriage and the date of separation; thus, for a severance package to be considered property as of either of those dates that form the basis of an equalization calculation, there must be a right or entitlement to it on that date.
When the parties married, the respondent did not have a right or entitlement to severance under the ESA. That right only crystallized when his employment was terminated without cause. The trial judge therefore erred in finding that the respondent's accumulated ESA severance as of the date of marriage was property owned by him at that point in time.
Epstein J.A. briefly considered and rejected the respondent's alternative argument that his interest in the ESA portion of the severance package retroactively became date-of-marriage property when his entitlement crystallized. Nothing in s. 4(1) of the FLA, which defines property as including "any interest, present or future, vested or contingent, in real or personal property," allows a court to reclassify an interest due to changed circumstances. Moreover, as Blair J.A. noted in Serra v. Serra, 2009 ONCA 105, 307 D.L.R. (4th) 1, Ontario deliberately chose a fixed valuation date approach and there is no discretion to vary that date. Epstein J.A. held that reclassifying an interest that is not property on the date of marriage or the date of separation, even if that interest can later be identified as property, would effectively allow ongoing adjustments to what is and is not property.  This would undermine the "fixed date valuation" approach. Epstein J.A. further opined that expanding the definition of property to allow for retroactive reclassification would be contrary to the intent to the FLA.

The Court allowed the appeal on the severance issue but dismissed it in respect of the other issues raised by the appellant.
5.  The Canada Trust Company v. Browne, 2012 ONCA 862 (Feldman, Simmons and Cronk JJ.A.), December 7, 2012
This appeal concerns the use and consequences of a "percentage trust" or "unitrust," in circumstances where continuing set payments to income beneficiaries would deplete the capital of the trust, to the detriment of minor capital beneficiaries.
The trust was settled in 1980 in favour of Primo Poloniato's grandchildren, the income beneficiaries, and their issue, the capital beneficiaries. At one time worth more than $130 million, the trust holds shares in a holding company which, in turns, holds an investment portfolio.
The trust was varied twice, in 1988 and in 1997, in accordance with arrangements that were approved by the court. The second arrangement, which was intended to afford the trustee greater discretion as to the management of investments and to make distributions to income beneficiaries more predictable, changed the nature of the trust to a "percentage trust" or a "unitrust". Under this arrangement, the income beneficiaries received yearly income calculated by a formula and subject to a floor and a ceiling. The Court of Appeal found that the arrangement to vary the trust also provided that if the investments chosen by the trustee did not produce sufficient income to make the required distributions to the income beneficiaries, the trustee could sell equities or other capital investments held by the holding company to raise the funds necessary to make the payments.
Although the 1997 variation was based on projected increases in the value on the trust, the subsequent economic downturn resulted in the trust having insufficient income to meet annual payments to the income beneficiaries, without having the holding company declare cash dividends resulting from the sale of its capital assets. 
It was in this context that the current trustee brought an application for directions to clarify its obligations under the trust agreement as varied by the arrangement in 1997. In particular, the trustee sought direction on the extent of its discretion not to make the minimum percentage distributions to the income beneficiaries in order to preserve the value of the corpus of the trust for the capital beneficiaries.
Using contractual interpretation principles, the application judge interpreted the trust as mandating the trustee to make the distributions to the income beneficiaries in spite of the downturn in the market and its effect on the capital value of the trust. The Children's Lawyer appealed on behalf of the minor, unborn and unascertained capital beneficiaries of the trust. The principal issue before the Court of Appeal was whether the application judge made a fundamental error in his interpretation of the trust deed as varied in 1997 in finding that minimum percentage payments to the income beneficiaries were mandatory and that the "even hand rule" had been ousted with respect to the management of trust distributions.
The appellant argued that the application judge erred in interpreting the trust only as a contract and that he failed to apply trust principles and take into account the proper factual matrix in the interpretive process. The appellant further submitted that the application judge erred by finding, contrary to trust principles and the language of the trust, that the obligation of the trustee to maintain an even hand was ousted, and permitted an interpretation of the trust, as varied, that could not have been approved at first instance.
Writing for the Court of Appeal, Feldman J.A. first addressed the appellant's submission that the application judge erred in narrowly construing the factual matrix so as to exclude consideration of the role of the court and its jurisdiction in approving the arrangement to vary the trust. She agreed that court approval of the 1997 variation was an important part of the factual matrix that informs the interpretation of the trust deed, but held that, while the approval process was to ensure that the arrangement to vary the trust was in the best interests of the minor beneficiaries, the interpretation of that arrangement did not have the same focus.   
The Court went on to address and reject the appellant's other challenges to the application judge's interpretation of the trust. Feldman J.A. disagreed that the application judge failed to consider a CRA tax ruling which sought to ensure that there would be no disposition of the capital assets of the trust for the benefit of the income beneficiaries, holding that the only disposition about which CRA would be concerned would be that of the shares of the holding company, not of its capital assets.
Feldman J.A. also dismissed the appellant's claim that the application judge erred in finding that the intention of the settlor –to financially benefit two generations of the Poloniato family—was irrelevant in interpreting the trust deed, reiterating that the application judge was charged with interpreting a trust deed as varied, not considering the application for approval of the arrangement to vary the trust.  If the "court approved a variation that did not take the settlor's intent into account, and its meaning is clear, it is not the role of the interpreting court to distort the meaning of the deed as varied." Moreover, the intent and effect of the variation was not to benefit the income beneficiaries at the expense of the capital beneficiaries: "That was clearly not the intent of the approving court, which was obliged to approve the variation only if it was for the benefit of the capital beneficiaries on whose behalf the approval was given."  
Turning to the appellant's argument that the application judge erred in failing to give effect to the duty of the trustee to maintain an even hand between the interests of the income and capital beneficiaries, Feldman J.A. held that it is "trite law" that executors and trustees have a duty to treat different classes of beneficiaries fairly and impartially unless that obligation is explicitly displaced in the trust deed. In a percentage trust, however, the trustee's duty is to increase the size of the entire trust for the benefit of both classes of beneficiaries. Feldman J.A. explained: 
This includes increasing the capital rather than preserving it, and therefore involves an investment strategy that may include more risk. Because in a percentage trust the trustee is investing to increase the entire value of the trust to benefit all, the issue is not whether the trustee's even hand duty is ousted in respect of the management of the trust's investments. What is disputed is whether the duty has been ousted in respect of the obligation of the trustee to make distributions to the beneficiaries.

Feldman J.A. considered the Law Reform Commission's Report on the Law of Trusts, which recommends that trustees continue to maintain an even hand in the periodic valuation of the trust and when making the distributions, but noted that the percentage payable to income beneficiaries cannot be re-set in this case because it is based on a fixed formula. Therefore, the trustee must deplete the assets of the holding company if it is necessary to meet the obligation to the income beneficiaries.  The even hand duty has been effectively ousted.

Feldman J.A. concluded that the application judge interpreted the trust deed in accordance with proper trust principles and in the way it was intended by the parties and by the approving court at the time. The trustee is therefore obliged to continue to make the minimum percentage distributions to the income beneficiaries. The appeal was dismissed.

Lerners LLP acted for the Children's Lawyer on behalf of the minor, unborn and unascertained capital beneficiaries.

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