Canada: Court Of Appeal Summaries (December 6- 11)

Last Updated: December 17 2015
Article by John Polyzogopoulos

Hello again for another week,

The Court of Appeal released a fair number of civil decisions this week on a variety of topics, but nothing groundbreaking. Perhaps the most interesting was a successful claim against a bank for knowing assistance of breach of trust on the part of a banking customer, which provides another example of the risks for financial institutions arising out of the activities of their customers. Other topics included the financial management of not-for-profit corporations, the assessment of lawyers' accounts, regulated professions (lawyers and traditional Chinese medical practitioners), commercial leases, aborted real estate transactions, estate litigation, family law and defamation.

Until next week, enjoy the unseasonably warm weather while it lasts.

Civil Decisions

4439155 Canada Inc. v. Albert Tower Inc., 2015 ONCA 859
[Sharpe, Cronk and Miller JJ.A.]

Marcus Boire, for the appellants
Steven Greenberg, for the respondents

Keywords: Real Estate, Commercial Leases, Wrongful Termination of Lease, Waiver of Arrears of Rent, Deference

Facts: This appeal arose from the termination of a commercial lease. The trial judge found as a fact that the appellant landlord had wrongly terminated the lease as the parties had reached an agreement on the quantum of arrears owing and that the landlord had thereby waived any additional arrears.

(1) Did the trial judge err in finding that there was an agreement when the agreement and waiver had not been pleaded?

(2) Did the trial judge err in accepting the evidence of Mr. Yang and rejecting that of Mr. Fard in relation to the agreement?

(3) Should the amounts owing be reduced:

(a) on the basis of taxes; or

(b) on account of the respondent's equipment left on the premises; or

(c) on the basis of an apparent typographical error as to the trial judge's assessment of the value of that equipment?

Finding: Appeal dismissed.

(1) No. The issue of whether or not there was an agreement and waiver was fully canvased at trial and the appellant did not object to evidence being led. There was no error in law in relation to the trial judge's finding of waiver. There was evidence that the landlord prepared a written summary of the arrears he claimed, and evidence that the parties had agreed. Further, a post-dated cheque in satisfaction of the agreed arrears was cashed. The trial judge was entitled to find that the landlord had unequivocally waived any further amount of arrears.

(2) No. The trial judge explained the basis for his findings of credibility. They attracted deference, and the court was not persuaded that there were any grounds to interfere.

(3)(a) This was a net lease that allowed the landlord to require the tenant to pay its share of the estimated annual taxes during the first six months of the year. It was open to the trial judge to find that the tenant was entitled to a credit for the taxes it had paid for that period of the lease that followed the wrongful termination.

(3)(b) In a letter, the landlord required the tenant to pay the arrears he claimed as a precondition for the tenant being allowed to access the premises to retrieve his equipment. It was open for the trial judge to find that the tenant had been wrongfully deprived of the equipment.

(3)(c) At different paragraphs of the judgment, the value of the property was listed as $7,500 and $17,500. Since this was a matter to be resolved by the trial judge, it was referred back to him.

College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Federation of Ontario Traditional Chinese Medicine Association (Committee of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario), 2015 ONCA 851
[Sharpe, Cronk and Miller JJ.A.]

Sean Hu, representative for the corporate appellants
James X.N. Yuan, acting in person
Jia Li, acting in person
Jaan Lilles and Laura Robinson, for the respondent College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario
Zachary Green, for the intervener the Attorney General of Ontario

Keywords: Regulation of Professions, Traditional Chinese Medicine, Civil Procedure, Injunctions, Res Judicata, Issue Estoppel, Abuse of Process, Charter of Rights and Freedoms, s. 15

The appellants appealed the decision of the Superior Court granting the respondent College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the "College") declaratory and injunctive relief. The application judge found that the corporate appellants falsely held themselves out as regulatory colleges, that the individual appellants had wrongly held themselves out as representatives of the regulator, that certain of the appellants had engaged in unauthorized practice, and that the individual appellants had engaged in the unauthorized use of the protected titles "Doctor" or "traditional Chinese medicine practitioner", all contrary to the Regulated Health Professions Act and the Traditional Chinese Medicine Act.

In their defense to the claims of the College, the appellants submitted that the Traditional Chinese Medicine Act and its Registration Regulation were discriminatory and violated their s. 15 Charter rights. The application judge rejected that defense on the ground that both individual appellants and one of the corporate appellants had previously unsuccessfully advanced essentially the same argument in an application before the Divisional Court. The appellants did not seek leave to appeal the Divisional Court's decision. The application judge held that the Divisional Court judgment barred the appellants from advancing the same arguments on grounds of res judicata, issue estoppel or abuse of process.

Did the application judge err by refusing to entertain the appellants' constitutional argument on the ground that it had been conclusively and finally determined against them in the prior proceeding?

Holding: Appeal dismissed.

No, the application judge did not err because the three preconditions for issue estoppel were made out. First, the issue was the same as the one decided in the prior decision. Second, the order of the Divisional Court dismissing the previous application was a final order. Third, the parties to both proceedings were the same. Almost all of the corporate appellants shared the same registered address and many of the same directors and officers, which constitutes a sufficient degree of identification among the parties. In any event, even if the "same parties" requirement for issue estoppel was not strictly met, permitting the appellants to re-litigate the issue that was determined by the Divisional Court would amount to an abuse of process. The court was also not persuaded that the application judge erred by failing to exercise his discretion to permit the appellants to avoid the doctrines of issue estoppel and abuse of process.

Speciale Law Professional Corporation v. Shrader Canada Limited, 2015 ONCA 856
[Laskin, Pardu and Miller JJ.A.]

John Gray, for the appellants
Rosemary Fisher, for the respondents

Keywords: Solicitor and Client, Legal Fees, Interim Accounts, Order for Assessment, Solicitors Act, s.3(b), s.4, Special Circumstances

Speciale or SLPC acted as counsel to Shrader and rendered accounts to it from 1979 to 2013. From 2009 to 2013, Speciale was also the president and Chief Executive Officer of Shrader. In July 2013, Shrader obtained a Registrar's order and appointment to assess the solicitor's accounts pursuant to s.3 of the Solicitors Act, without notice to Speciale or SLPC.

In October 2013, Speciale's counsel informed Shrader that he intended to bring a motion to challenge the order. In January 2014, an unsuccessful mediation took place, and in September 2014 Speciale attended Assessment Scheduling Court.

The assessment was scheduled to begin on June 1, 2015. On May 26, Speciale brought an urgent but unsuccessful motion to adjourn or stay the assessment and to quash the Registrar's order. Speciale and SLPC appealed this order.

While his order was interlocutory, Turnbull J. decided issues that could have deprived Speciale and SLPC of substantive defences and thus the order was treated as final for the purpose of the appeal. Moreover, because the assessment eventually commenced, the appeal from the refusal to adjourn or stay was moot.

Issues: Should the Registrar's order for assessment be quashed?

Holding: No – Appeal Dismissed

Initially, the appellants argued that the assessment should be quashed against Speciale as he did not render any of the accounts in question. The court rejected this argument, as Speciale signed each of the accounts and the appellants led no evidence to show that SLPC included any other lawyers or was not simply the professional corporation of Speciale.

The appellants then claimed that most of the accounts were for management or administrative services and thus should not have been assessed under the Solicitors Act. The court instead agreed with Turnbull's finding that "[t]he accounts attached thereto are all rendered on the letterhead of Speciale Law Professional Corporation ... [and] are clearly legal accounts rendered to Shrader Canada."

The appellants also submitted that their retainer was in dispute as Shrader never executed a retainer agreement and Speciale's rates were never approved by Shrader's board. The court found that while Shrader did not sign a written retainer, the retainer had been in place for many years and was never disputed. Moreover, Speciale's rates were properly within the jurisdiction of an assessment officer to determine.

The appellants submitted that two circumstances were "special": (i) most of the accounts were for management services and (ii) all of the accounts had been paid. Again, the court rejected this argument and found that each account was a legal account and properly subject to assessment. Moreover, the payment of accounts is but one factor to be considered in deciding whether special circumstances exist.

Finally, the appellants submitted that Shrader did not meet either of the time requirements under s. 3(b) & 4 of the Solicitors Act. The court rejected this argument and found that each bill was delivered and not disputed. Moreover, each account was an interim account and the appellants agreed that when a solicitor delivers interim accounts, the 30-day period under s. 3(b) does not begin until the last account is delivered.

CarriereIndustrial Supply Limited v. Toronto-Dominion Bank, 2015 ONCA 852[Simmons, van Rensburg and Hourigan JJ.A.]

Geoff R. Hall and Richard J. Lizius, for the appellant TD/respondent by way of cross-appeal
J. Anthony Caldwell, for the respondents Carriere Industrial et al./appellants by way of cross-appeal

Keywords: Trust Law, Financial Institutions, Breach of Trust, Liability of Bank, Knowing Assistance in Breach of Trust, Knowing Receipt of Trust Funds

2026227 Ontario Inc. ("TPC") carried on a payroll processing and payment business and used the Toronto-Dominion Bank ("TD") to service its clients. 2140074 Ontario Inc. ("TPN") was a wholly owned subsidiary and franchisee of TPC, carrying on a similar business for its clients. The respondents were representative plaintiffs appointed to represent the interests of 416 claimants who were customers of TPC and its franchisees, and suffered a loss as a result of the events that took place between January and March 2011.

TPC had used surplus funds in its trust tax account to pay operating expenses, with an average of $65,000 per year withdrawn from the tax account from 2003 to 2011. Funds were never restored and there were 100 occasions where the tax account was in overdraft. TPC explained to TD that this was a result of timing differences, and TPN loaned money to TPC to cover the overdraft.

As a result of an investigation engaged by Garland, the owner of TPC and TPN, it was concluded that around January 6, 2011, TPC made a significant overpayment from its tax account to the Canada Revenue Agency ("CRA"), which the CRA refused to return, causing an overdraft in the tax account. TPC then transferred funds out of its payroll account to its tax account which reduced the overdraft. TD refused to permit the overdraft and reduced the overdraft to zero by setting up a demand loan owing by TPC to TD. TPC then transferred $1,000,000 from its payroll trust account to TPN's payroll account in a purported loan repayment between those accounts. On February 10, 2011, Garland advised TD that TPC could no longer carry on its business and TD froze TPC's accounts.

The trial judge found TD liable to the respondents, Carriere Industrial Supply Limited and Dibrina Sure Benefits Consulting Inc., for knowing assistance in a breach of trust in relation to the funds transfer from TPC's payroll account into TPN's payroll account. The trial judge then dismissed the respondents' claim against TD for knowing receipt of trust funds in relation to $1,327,616 transferred by TPC from its payroll account to its tax account, which in effect reduced, but did not eliminate, the existing overdraft on that account.

TD's appeal from the finding of liability for knowing assistance raised three issues:

(1) whether the trial judge misapplied the knowledge requirement for knowing assistance in a breach of trust;

(2) whether the trial judge erred in finding TD could have put in place a system of pre-approval for the electronic bank facilities in relation to the payroll account in the absence of any evidence concerning that issue; and

(3) whether the trial judge erred in holding that failing to put in place a monitoring system, or failing to withdraw electronic banking services, can constitute "assistance" for the purpose of liability under the doctrine of knowing assistance in a breach of trust.

The respondents' cross-appeal from the finding that the bank is not liable for knowing receipt of trust funds in relation to the funds transferred by TPC from its payroll account to its tax account raised two issues:

(1) whether the trial judge erred in law when he found that TD had no obligation to inquire into the reasons for the overdraft; and

(2) whether the trial judge erred in holding that the reduction of the overdraft was not a "receipt" within the meaning of the doctrine of knowing receipt.

Holding: Appeal dismissed. Cross-appeal dismissed.


The Appeal

(1) No. The trial judge accurately set out the knowledge requirement for knowing assistance in a breach of trust. The court was not persuaded that the trial judge blurred the distinction between actual and constructive knowledge, and found that the trial judge correctly identified the requisite knowledge based on TD's awareness of the deficit in the tax account and the possibility of fraud, and its actions in permitting to continue the account to operate only on the basis of funds in hand.

The court agreed with the trial judge that in continuing to afford unmonitored access to electronic banking services, TD acted recklessly. Further, the court found the trial judge correctly defined TD's actions as reckless. It cited the Supreme Court of Canada in R. v. Sansregret for the principle that recklessness consists of knowledge of a danger or risk and persistence in a course of conduct that creates a risk that the prohibited result will occur.

(2) No. The court found that even if there was limited evidence that a system was available requiring pre-approval of payments from the TPC payroll account, TD could have frozen TPC's payroll account. Although it may have prevented TPC from doing business pending the investigation, given TD's knowledge, TD was not justified in giving TPC unfettered access to electronic banking in the meantime.

(3) No. The court found nothing improper in the trial judge's conclusion that by continuing to permit TPC access to its electronic banking services in the face of TD's knowledge, TD participated in a breach of trust. TD had afforded TPC the means to perpetrate a fraudulent breach of trust.

The Cross-Appeal

(1) No. The court only considered the first issue and found that this conclusion was premised on a finding of fact and the trial judge was assessing TD's conduct on an objective basis. In addition, the respondents did not demonstrate any palpable and overriding error in the trial judge's findings.

(2) The court found it unnecessary to consider the other issue on cross-appeal, however it noted that nothing in its reasons should be taken as endorsing the trial judge's conclusion on that issue.

O'Brien v. Blue Heron Co-operative Homes Inc., 2015 ONCA 858
[Sharpe, Cronk and Miller JJ.A.]

Stephen O'Brien, acting in person
Joseph Jebreen, for the respondent

Keywords: Business Associations, Not-for-Profit Corporations, Co-operative Corporations Act, Sections 146 to 148, 178, Financial Management, Appointment of Investigator, Sufficiency of Reasons, R v Sheppard, Fresh Evidence

The appellant, Stephen O'Brien, is a member of the respondent Blue Heron Co-operative Homes Inc. ("Blue Heron"). Blue Heron is a not-for-profit housing corporation incorporated under the Co-operative Corporations Act (the "CCA"). O'Brien brought an application against Blue Heron for an order under s. 146 of the CCA appointing an inspector to investigate and conduct a forensic audit of Blue Heron's business and affairs and an order under s. 178 of the CCA compelling Blue Heron to comply with Blue Heron's by-laws and the CCA. O'Brien's application was dismissed.

Did the application judge err:

  • by failing to apply the civil standard of proof to the determination of the matters raised by the appellant;
  • by ignoring the appellant's evidence and submissions, instead preferring those of the respondent without appropriate scrutiny;
  • by misapprehending or ignoring relevant evidence;
  • by misinterpreting ss. 146–48 of the CCA;
  • by failing to apply or misapplying s. 135 of the Condominium Act, 1998; and
  • by failing to deliver reasons that accord with R. v. Sheppard.

Appeal Dismissed.

No. O'Brien's main issue on appeal was the alleged mismanagement of Blue Heron over a long period of time by successive boards of directors. The evidence before the application judge was as follows. First, O'Brien had made similar complaints to the Financial Services Commission of Ontario ("FSCO"). FSCO declined to appoint an inspector to investigate Blue Heron's affairs and concluded that any by-law infraction had been remedied. Second, the City of Ottawa confirmed that Blue Heron had met its reporting requirements since it opened in 2006. Third, Blue Heron's independent audited financial statements did not reveal any illegal or improper payments. The judge properly concluded that the appellant had not met its burden to proffer satisfactory evidence of any specific instance of mismanagement by Blue Heron.

There are two prerequisites to the appointment of an inspector under s. 146 of the CCA: i) the application for the appointment of an inspector must be brought in good faith; and ii) the appointment must be in the interests of the co-operative or the holders of its securities. The second prerequisite was not met in this case. Also, s. 178 of the CCA required O'Brien to establish specific instances of non-compliance with the statute or the by-laws that would justify a court order for compliance, which he failed to do.

O'Brien also argued that the judge relied on the wrong standard of proof alleging that the application judge reference to the need for "substantial" evidence of intentional malfeasance or serious and continued mismanagement by Blue Heron imported a higher standard of proof than the applicable proof on balance of probabilities. The court disagreed, holding that the judge's statements correctly reflected the need for clear evidence rather than bald assertions without supporting evidence.

The application judge's reasons clearly met the sufficiency for reasons identified in Sheppard. There was no error in the interpretation of ss. 146 and 178 of the CCA and the application judge's treatment of the appellant's evidence was thorough and even-handed. The court rejected the appellant's attempt to adduce fresh evidence on the basis that it related to issues and relief that were not part of the initial application.

Business Development Insurance Ltd. v. Caledon Mayfield Estates Inc., 2015 ONCA 864
[Weiler, Pardu and Benotto JJ.A.]

Todd C. Hein, for the appellant
William S.M. Cord, for the Estate of Palmyra Kucinskaite
An Nguyen, for Caledon Mayfield Estates Inc.

Keywords: Real Estate, Agreements of Purchase and Sale, Registration of Caution, Certificate of Pending Litigation, Specific Performance, Damages, Annulment Clause, Time of the Essence, Duty of Good Faith, Summary Judgment

Facts: The respondent sellers entered into an Agreement of Purchase and Sale ("Agreement") with the appellant buyer for a property in Caledon (the "Property"). The respondents had previously agreed to sell the Property to a third party, 2079664 ("207"). 207 registered a Certificate of Pending Litigation ("CPL") against the Property. The appellant indicated it would not close the purchase unless the CPL was removed. Since the respondents were unable to discharge the CPL, they relied on an annulment clause to terminate the agreement with the appellant. The appellant brought an action for specific performance and damages in the alternative. The respondents brought a motion for summary judgment dismissing the appellant's action. The trial judge granted the respondents' motion.


(1) Did the trial judge err in his interpretation of a letter from the appellant's counsel?

(2) Did the trial judge err in granting summary judgment because the action respecting 207 had not been determined?

(3) Did the motions judge subject the evidence of the appellant and respondents to unequal scrutiny?

Finding: Appeal dismissed.

(1) No. The letter from the appellant's counsel could not be interpreted as indicating that the appellant's position was that the Agreement was to continue after the closing date. The letter stated, "Our client will be looking to your clients for damages as a result of the inability of your clients to provide clear title to our client and to complete this transaction on the closing date." The trial judge did not err in his interpretation that the letter amounted to a demand to remove the CPL, and not a request to extend closing.

(2) No. Time was stipulated to be of the essence in the Agreement, and the appellant had no authority to support this submission.

(3) No. Although the trial judge required the appellant to act in good faith without imposing the same duty on the respondents, there was no merit to this submission.

Walchuk Estate v. Houghton, 2015 ONCA 862
[Laskin, Pardu and Roberts JJ.A.]

Andrew Sheremeta, for the moving party
Michael Jaeger, for the responding party

Keywords: Bankruptcy and Insolvency, Bankruptcy and Insolvency Act, s. 69, Stay of Proceedings, Civil Procedure, Appellate Jurisdiction, Final or Interlocutory Order, Motion to Quash Appeal, Contempt

In 2011, the respondent, Ms. Walchuk, obtained a judgment against the appellant, Mr. Houghton, for $105,000. In December 2013, the respondent sought to examine the appellant in aid of execution on the judgment. The appellant did not attend the examination, so the respondent brought a motion for contempt. The contempt motion was adjourned and the appellant was ordered to attend at an examination in aid of execution. The day before the examination, the appellant filed for bankruptcy. The appellant attended the examination but did not bring any of the requested documents and took the position that the contempt proceedings against him were stayed because of s. 69 of the Bankruptcy and Insolvency Act. The respondent renewed her motion for contempt. The motion judge did not rule on the contempt motion, and instead ordered that it be heard on a date to be fixed by the trial coordinator. Mr. Houghton appealed this judgment. The respondent then brought a motion to quash the appeal. The issue on this motion was whether the order to fix the date for the hearing of the contempt motion is a final or interlocutory order: if it is a final order then the motion fails, but if it is an interlocutory order then the motion succeeds.

Was the order a final or interlocutory order?

Holding: Motion to quash appeal dismissed.

The order was final. By only looking at the order alone, it appears to be interlocutory since it adjourned the contempt motion. However, in some cases the reasons need to be examined in order to determine whether an order is truly final or interlocutory. If the reasons show that a defendant has been deprived of a substantive right or defence that could resolve all or part of the proceedings, then the order is final. In this case, the only question before the motion judge was whether Mr. Houghton could still be liable for contempt even though he had declared bankruptcy. Since the motion judge decided that question by adjourning the contempt motion to a date to be fixed by the registrar rather than ordering that he action was stayed by reason of the bankruptcy, Mr. Houghton was potentially deprived of a right or defence that would have ended the proceedings against him. For this reason, the judgment was a final order.

Coady v. The Law Society of Upper Canada, 2015 ONCA 876
[van Rensburg J.A. (In Chambers)]

Mary Martha Coady, acting in person
Jaan E. Lilles, for the respondent

Keywords: Regulated Professions, Lawyers, Professional Misconduct, Jurisdiction, Final Decision, Motion for Leave to Hear Special Case, Rules of Civil Procedure, Rule 22, Motion for Directions on Leave to Appeal

The applicant, Martha Coady, was involved in lengthy discipline proceedings with the respondent, the Law Society of Upper Canada (the "Law Society"). The proceedings resulted in findings of professional misconduct and the loss of Ms. Coady's licence to practices law. During the discipline proceedings, Ms. Coady brought a motion for a stay of proceedings on the basis that the Hearing Panel did not have jurisdiction because the Law Society did not comply with the mandatory preconditions for a hearing.

The stay was refused by the Hearing Panel and Ms. Coady's appeal was quashed by the Appeal Panel on the basis that it was not a final decision. Ms. Coady appealed to the Divisional Court and the appeal was again quashed because it was not a final decision. Ms. Coady was reminded by the Divisional Court that she could raise the issue of jurisdiction before the Appeal Panel if the Hearing Panel made findings of misconduct against her.

In November 2009, Ms. Coady requested leave "to have a special case determined in the first instance by the Court of Appeal". Her motion was not heard and Ms. Coady took no further steps to advance her motion because she was continuing to argue the jurisdiction issue at the Law Society and Divisional Court levels.

In July 2015, the Registrar notified Ms. Coady that her November 2009 motion had been scheduled for a hearing to determine its status in August 2015. At the hearing, Blair J.A. declined to dismiss the motion, and adjourned the motion to December 2, 2015. This was the hearing of the November 2009 motion seeking "leave to have a special case determined in the first instance" by the court, and directions for leave to appeal the 2009 Divisional Court Order.

(1) Should the motion for the Court of Appeal to hear a special case be granted?

(2) Should the motion for directions on leave to appeal be granted?

Holding: Motion Dismissed.

(1) No. Rule 22 of the Rules of Civil Procedure provides for parties to move before a judge to state a special case. The order will be made only in situations where the parties concur in stating a question of law in the form of a special case for the opinion of the court, and where the judge is satisfied that the test for leave under rule 22.01(2) is met.

Ms. Coady argued that the parties do not need to agree to state a case as long as they agree on the relevant facts and at some time in the past, agreed to certain facts. Ms. Coady proposed to put the jurisdiction issue before the court based on the Agreed Statement of Facts signed by the parties before the Hearing Panel in December 2007. The court held that Ms. Coady's interpretation of the rules was wrong and that Rule 22 does indeed require the parties to agree on a point of law and submit their stated case in the prescribed form.

(2) No. Ms. Coady requested that the motion be heard by a bilingual panel. However, there was no pending motion for leave to appeal. The Law Society argued that the motion for directions should be dismissed because there was no pending motion for leave to appeal. It also argued that and as result of the delay, any motion for leave to appeal the 2009 Divisional Court order should not be permitted.

The court agreed that directions cannot be given without a pending motion for leave to appeal and that issues in the proposed appeal have been overtaken by developments in the discipline proceedings since 2009. At this point, the jurisdiction issue has been argued before both the Appeal Panel and the Divisional Court, with decisions rendered by both tribunals. There is no basis for a motion for leave to appeal the 2009 Divisional Court Order at this point in time.

Bryce v. Bryce, 2015 ONCA 871
[Sharpe, Cronk and Miller JJ.A.]

Karen Bryce, acting in person
Michael J. Polisuk, for the respondent

Keywords: Family Law, Sale of Matrimonial Home, Spousal Support, Child Support, Child Support Guidelines, Section 7, Extraordinary Expenses, Motion to Adjourn, Apprehension of Bias

The appellant, Karen Bryce, appealed a final order that determined the following: (1) the matrimonial home be listed for sale and stipulating the division of the proceeds of sale, (2) the quantum of child support, retroactive and prospective, (3) the quantum of spousal support, retroactive and prospective, and (4) the allocation of s.7 expenses between the parties.

Mrs. Bryce sought a new trial on the basis that the trial should have been adjourned so that she could receive better financial disclosure from the respondent and that the trial judge was biased against her. She also appealed the decision not to allow the appellant to claim an unequal division of property or relief under the Canada Business Corporations Act. As well, she appealed on the basis that the substantive result was unconscionable because it was not in the children's best interests for the matrimonial home to be sold, the spousal support is inadequate and the calculation of child support is based on an incorrect assessment of the respondent's income.

(1) Did the trial judge err in dismissing the appellant's adjournment request?

(2) Should the trial judge have recused herself on the basis that she was biased?

(3) Did the trial judge err in her substantive findings?

Holding: Appeal Dismissed.

(1) No. The matter had already been set down for trial twice and there was a risk that the expert evidence would become stale. It was up to the trial judge's discretion as to whether the adjournment should have been granted. The appellant offered no concrete proposal on how she would obtain further evidence and the trial judge doubted her financial means to retain another expert.

(2) No. The appellant brought a motion after the trial had concluded but before judgment had been given asking the trial judge o recuse herself for bias. The trial judge dismissed the motion pointing out that she had not been involved in any settlement discussions and that she had made no findings of credibility. Participation in earlier steps in the proceedings does not itself constitute bias. The appellant did not identify any errors in the trial judge's rulings that suggested bias.

(3) No. The appellant argued that the trial judge erred with respect to her findings as to the date of separation; in ordering the matrimonial home to be listed for sale and the stipulation of the distribution of the proceeds; in the quantum of child and spousal support ordered; and in the apportionment of s.7 expenses.

The trial judge applied the correct legal principles to factual findings that were supported by the evidence before her. The trial judge did not deny that the sale of the matrimonial home would be a hardship in all the ways that the appellant describes. However, the trial judge held that parties' debt was crippling them and that it could not continue.

The appellant correctly identified and the respondent conceded what appeared to be a transposition error with respect to the proportionate sharing of s. 7 expenses.

Heston-Cook v. Schneider, 2015 ONCA 875 (Endorsement)
[Sharpe, Cronk and Miller JJ.A.]

Gregory M. Sidlofsky, for the appellant
Lisbeth A. Hollaman, for the respondent

Keywords: Estates, Removal of Estate Trustee, Estate Trustee During Litigation, Motion to Dismiss, Rules of Civil Procedure, Rule 21, Appeal Dismissed

The appellant initially brought an action against the respondent alleging that the respondent breached her fiduciary duty to her mother during the time the respondent was her attorney for personal care and property. During the first motion brought by the respondent for summary judgment to dismiss the appellant's claim, the motion judge granted the appellant leave to bring a cross-motion to be appointed estate trustee. Since the appellant had no standing to sue the respondent for breach of duties owed to the mother, and therefore only the estate had standing, the appellant was granted leave accordingly. At the hearing of the cross-motion, Wilton-Siegel J dismissed the appellant's motion, and the respondent remained estate trustee of their mother's estate.

The appellant had appealed that decision and lost, with reasons reported at 2015 ONCA 10. She then brought another motion substantially the same as the previous motion, except this time it was to appoint her as Estate Trustee During Litigation only to pursue this claim. She lost again. She appealed again.

Whether the motion judge erred in dismissing the appellant's second motion.

Holding: Appeal dismissed.

No. The court found the issue before the motion judge was substantially the same as that decided on the previous motion and to permit the appellant to bring another application would be to allow her a second attempt to put forth substantially the same issue. The question whether an unnamed independent trustee should be appointed could have and should have been raised on the previous application.

The court also disagreed with the appellant's submission that the previous order was not final. Nor did the court find that there was anything in the Court of Appeal's endorsement of the motion judge's reasons that could reasonably have been interpreted as permitting the appellant to re-litigate the same issue. Lastly, the court rejected the submission that the motion judge erred by failing to exercise her discretion to permit the appellant to proceed. The appellant had no tenable claim to discretionary relief from the preclusive effect of the earlier proceedings.

Mardonet v. BDO Canada LLP, 2015 ONCA 883
[Simmons, LaForme and Huscroft JJ.A.]

Paul D. Stern and Peter-Paul E. du Vernet, for the appellants
Andrew MacDonald, for the respondents

Keywords: Civil Procedure, Appellate Jurisdiction, Motion to Quash Appeal, Mareva Injunctions, Examination of Witnesses to Pending Motion, Notices of Examination Quashed, Whether Order Quashing Final or Interlocutory

The Ontario Psychological Association ("OPA") sued the appellants, Mardonet, Benusan and 2181420 Ontario Inc., to recover funds it alleged were misappropriated. OPA also alleged that the moving parties, BDO Canada LLP and Penner, were negligent in conducting audits. The OPA moved for a Mareva injunction against the appellants. The appellants served notices of examination on BDO and Penner. The motion judge quashed the notices of examination, holding that the appellants failed to demonstrate evidence relevant to the Mareva injunction motion and that the notices of examination were an abuse of process. The moving parties submitted that the order under appeal was fundamentally interlocutory and therefore this appeal ought to be quashed. In response, the appellants submitted that the order was final, relying on Smerchanski v. Lewis. BDO and Penner did not file a defence, and were not responding parties to the Mareva injunction motion. The appellants submitted that, in these circumstances, the moving parties were the effective equivalent of non-parties.

Was the motion judge's order quashing notices of examination final or interlocutory?

Holding: Appeal quashed.

The order under appeal was interlocutory. The key factor in this court's decision in Smerchanski was that a summons was issued to a non-party. That was not the case at hand. The moving parties were parties to the action. The order under appeal did not finally determine whether the moving parties could be examined in the action. Further, the fact that the motion judge's decision may finally determine whether the moving parties could be examined in relation to the Mareva injunction did not make the motion judge's order final. The motion judge's order did not terminate the underlying action or resolve a substantive claim or defence of one of the parties. To hold that the motion judge's order was final because it determined whether parties to an action could be examined in relation to an interlocutory motion would effectively eliminate the distinction between interlocutory and final orders.

Warman v. Fournier, 2015 ONCA 873
[Sharpe, Cronk and Miller JJ.A.]

Barbara Kulaszka, for the appellants
James Katz, for the respondent

Keywords: Defamation, Malice, Jury Charge, Permanent Injunction, Substantial Indemnity Costs, Aggravated and Punitive Damages, Deference

Following a civil libel trial by a judge and jury, the appellants were found liable to the respondent for defamation of character. The jury awarded the respondent general, aggravated and punitive damages of $42,000. The trial judge granted a permanent injunction against the appellants, enjoining them from publishing in any manner any statements found by the jury to be defamatory of the respondent. He also awarded costs against the appellants, on a substantial indemnity scale, of $62,900.

1) Did the trial judge err by failing to determine, before the case was left with the jury, whether the defamatory statements and false innuendos pleaded were capable of bearing the defamatory meanings asserted by the respondent?

2) Did the trial judge err by leaving the question of malice with the jury and misdirecting the jury on malice?

3) Did the trial judge err by granting a permanent injunction?

4) Did the trial judge err by awarding costs against the appellants on a substantial indemnity scale?

5) Were the aggravated and punitive damages awarded unreasonable and irrational?

Holding: Appeal dismissed

(1) No. The appellant's counsel did not make a request for this ruling from the trial judge that the appellants now say was necessary. The appellant's counsel neither objected to the form of the statements submitted to the jury nor to the trial judge's instructions on the statements and innuendo. Furthermore, it is clear from the trial judge's instructions to the jury that he did decide that the statements at issue, together with the innuendos alleged, were capable in law of bearing the defamatory meanings alleged and he instructed the jury accordingly.

(2) No. The appellants did not ask the trial judge to rule that there was no evidence capable of supporting a finding of malice. A review of the record indicates that there was evidence capable of supporting a finding of malice and had the appellants asked for such a ruling, the trial judge would have had no choice but to put malice to the jury. The court was also not persuaded that the jury was misdirected on the legal requirements for a finding of actual malice.

(3) No. The trial judge confined the scope of the injunction to only restrain the appellants from publishing any statements found by the jury to be defamatory of the respondent. Thus, the injunction was not overly broad. It only prevented future postings on the appellants' website if those postings repeat the defamatory content as found by the jury.

(4) No. The trial judge based the award of substantial indemnity costs by considering three factors: i) the respondent achieved a result at trial that exceeded his pre-trial offer to settle under r. 49 of the Rules of Civil Procedure; ii) the jury found that the appellants acted with malice towards the respondent, and in a high-handed and egregious manner; and iii) the principles governing costs as detailed in r. 57.01(1) of the Rules of Civil Procedure. These factors amply justified an award of costs on a substantial indemnity scale.

(5) No. A jury's award of damages, including aggravated or punitive damages, attracts considerable deference on appeal. Furthermore, the appellants did not identify any error in the trial judge's instructions on these types of damages or any other basis for appellate intervention with the jury's damages awards.

Civil Endorsements

Enroute Imports Inc. (Re), 2015 ONCA 849
[Sharpe, Cronk and Miller JJ.A.]

J. Dannial Baker, for the appellant Victor Santaguida
Craig Mills, for the respondent Enroute Imports
Graham Phoenix, for the respondent MNP Limited

Keywords: Appeal, Endorsement, Adjournment

Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2015 ONCA 867
[Strathy C.J.O., LaForme and Tulloch JJ.A.]

Scott Hutchison, for appellant City of Windsor
Brendan van Niejenhuis, for the appellant Town of Tecumseh
Peter W. Kryworuk and Yola S. Ventresca, for the respondents

Keywords: Civil Law, Endorsement, Costs, Workable Class Definition, Delay

Kakoutis v. Bank of Nova Scotia, 2015 ONCA 872
[Sharpe, Cronk and Miller JJ.A.]

Louis Kakoutis and Effie Kakoutis, appearing in person
Adrian Visheau, for the respondent

Keywords: Debtor-Creditor, Procedural Rights, Default, Line of Credit, Summary Judgment

Criminal and Capacity Decisions

R. v. Araya, 2015 ONCA 854
[Strathy C.J.O., Laskin and Gillese JJ.A.]

James Lockyer, Michael Lacy and Anida Chiodo for the appellant
Michael Bernstein, for the respondent

Keywords: Criminal Law, Sentence Appeal, Manslaughter, Mandatory Minimum Sentence, Criminal Code, S. 718, S. 236(a), Error in Principle, Aggravating Considerations, Fresh Evidence, Palmer Test

R. v. M.R.H., 2015 ONCA 853
[Feldman, Gillese and Watt JJ.A.]

Michael Davies and Meaghan McMahon, for the appellant
Andrew Cappell, for the respondent

Keywords: Criminal Law, Alleged Sexual Assaults, Conviction, Evidence, Hearsay, curative proviso, Criminal Code, ss. 68(1)(b)(iii)

R. v. Singh, 2015 ONCA 855
[Feldman, Gillese and Watt JJ.A.]

Walter Fox and Sayeh Hassan, for the appellant
Deborah Calderwood, for the respondent

Keywords: Criminal Law, Endorsement, Criminal Negligence, Fire, Unsafe Property, Fire Code

R. v. Boateng, 2015 ONCA 857
[Doherty, Laskin and Tulloch JJ.A.]

John Norris and Meara Conway, for the appellant
Brendan Gluckman, for the respondent

Keywords: Criminal Law, Narcotics, Delay, Tried Within Reasonable Time, Charter, s. 11(b), Disclosure, Rowbotham Application, Legal Aid Certificate

R. v. Zarama, 2015 ONCA 860
[Feldman, Gillese and Watt JJ.A.]

Bruce Simpson, for the appellant
Phillippe Cowle, for the respondent

Keywords: Criminal Law, Police Officers, Acting Reasonably, Assault, Not Criminally Responsible, Finding of Guilt

Hannora (Re), 2015 ONCA 861
[Feldman, Gillese and Watt JJ.A.]

Ivana Denisov, for the appellant
Michael Fawcett, for the respondent, Attorney General of Ontario
Barbara Walker-Renshaw, for the respondent, Person in Charge of Ontario Shores Centre for Mental Health Sciences

Keywords: Criminal Law, Sexual Assault, Mental Health, Ontario Review Board

R. v. Gobin, 2015 ONCA 865
[Feldman, Gillese and Watt JJ.A.]

Theodore Sarantis, for the appellant
Michael Fawcett, for the respondent

Keywords: Criminal Law, Jury, Jury Charge, Deciding Guilt, Eyewitness, Prior Statements

R. v. Kassim, 2015 ONCA 863
[MacPherson, MacFarland and Roberts JJ.A.]

Amin Mohamed Kassim, appearing in person
Ian R. Smith and Amy J. Ohler, amici curiae
John Neander, for the respondent

Keywords: Criminal Law, First Degree Murder, Amici Curiae, Witnesses, Jury Charge

Carrick (Re), 2015 ONCA 866
[Doherty, Tulloch and Huscroft JJ.A.]

Anita Szigeti, for the appellant Quentin Carrick
Daniel Di Fonzo, for the respondent Her Majesty the Queen
Julie Zamprogna Ballès, for the respondent Person in Charge of Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London

Keywords: Criminal Law, Ontario Review Board, Mental Health, Not Criminally Responsible, Significant Threat to Public Safety, Hospitalization

R. v. Chair, 2015 ONCA 868
[Doherty, Pepall and Tulloch JJ.A.]

Hans J. Saamen, for the appellant
Arvin Ross, for the respondent

Keywords: Criminal Law, Evidence, Radar Guns, R v Bigioni

R. v. Lee, 2015 ONCA 850
[MacPherson, MacFarland and Roberts JJ.A.]

Vincenzo Rondinelli, for the appellant
James Clark, for the respondent

Keywords: Criminal Law, Burden of Proof, Evidence, Sentencing

R. v. Nyanin, 2015 ONCA 869
[Doherty, Pepall and Tulloch JJ.A.]

Christopher A. Avery, for the appellant
Mary Ellen Hurman, for the respondent

Keywords: Criminal Law, Sentencing, Credit for Time Served

R. v. K.J.W., 2015 ONCA 870
[Doherty, Pepall and Hourigan]

Brian H. Greenspan and Naomi M. Lutes, for the appellant
David Lepofsky, for the respondent

Keywords: Criminal Law, Sexual Assault, Adequacy of Reasons, Evidence, Misapprehension of Material Evidence, Witness Testimony, Credibility, Prior Consistent Statements

R. v. Singh, 2015 ONCA 879
[Doherty, Pepall and Tulloch JJ.A.]

Mark M. Persaud and Julia A. Toso, for the appellant
Christopher Chorney, for the respondent

Keywords: Criminal Law, Range of Reasonable Inferences

Skeene (Re), 2015 ONCA 878
[Doherty, Pepall and Tulloch JJ.A.]

Anita Szigeti, for the appellant, Kwasi Skeene
Karen Papadopoulos, for the respondent Crown
Gavin S. MacKenzie, for the Centre for Addiction and Mental Health
Janice Blackburn, for the Person in Charge of Waypoint Centre for Mental Health Care

Keywords: Mental Health, Endorsement, Ontario Review Board, Uncontroverted Evidence

Wakeling v. Kolla, 2015 ONCA 881
[Weiler, Pardu and Benotto JJ.A.]

D'Arcy J. Hiltz, for the appellant
Kendra Naidoo, for the respondent

Keywords: Mental Health, Consent and Capacity Board, Consent to Treatment, Mental Illness, Test for Capacity

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