Canada: Court Of Appeal Summaries (March 7-11, 2016)

Last Updated: March 20 2016
Article by John Polyzogopoulos

This week's Court of Appeal decisions covered a range of subjects including contracts, torts, civil procedure, and wills and estates. A quick note of congratulations to our partners, Lou Brzezinski and Chad Kopach who successfully represented the respondents in Roopchand v Chau.

The two most notable substantive decisions this week were two wills and estates matters.  In Spence v BMO Trust Co., the question was whether a bequest could be voided on public policy grounds because the disappointed heir (the daughter) alleged that the true motivation for being cut out of the will by her father was racism (she had fathered a child with a person of a different skin colour).  The Court decided that it would be dangerous to go behind the stated reason of the testator in the will, which was that father and daughter had grown apart.  Accordingly, the father's decision should be respected.  However, the Court went on to clearly state, albeit in obiter, that even if the father had explicitly said in his will that he was not providing for his daughter on racist grounds, that decision would still have been respected because of the common law principle of testamentary freedom.  In Neuberger v York, a dispute over a $100 million dollar estate, the Court determined that the doctrine of estoppel should not apply to bar an heir (who was also a trustee and had taken steps under the will) from challenging the validity of the will.

Civil Decisions

Tender Choice Foods Inc. v. Planet Energy (Ontario) Corp., 2016 ONCA 192

[Laskin, MacFarland and Roberts JJ.A.]


Louis A. Frapporti, for the appellant

Dan Murdoch and James Wilson, for the respondent

Keywords:   Contracts, Standard of Review, Findings of Fact, Palpable and Overriding Error


In April 2008, the respondent electricity provider entered into a fixed price electricity supply contract with the appellant. The appellant subsequently sued the respondent for a declaration that the contract was rescinded and damages for negligence and negligent misrepresentation. At trial, the judge accepted the evidence of the respondent that the appellant wanted to contain its costs and have predictable costs going forward that the appellant could accurately budget for and that would avoid the need to worry about the fluctuations in those costs. In accepting the evidence, the trial judge rejected the evidence of the appellant that the respondent had misrepresented to it that electricity costs would continue to escalate and that the appellant would save money over the five-year term of the proposed fixed price contract. He rejected the evidence of the appellant that it was totally ignorant of the fixed price contract given its experience and sophistication.


Did the trial judge err in his factual determination?

Holding: Appeal dismissed.


No. The findings of a trial judge are entitled to deference, and absent palpable and overriding error the Court of Appeal will not intervene. Even if the respondent owed the appellant any duty of care, it was met in this case on the factual findings of the trial judge, which was supported by the evidence.

Donis v. Georgopoulos, 2016 ONCA 194

[Gillese, Huscroft and Miller JJ.A]


Constantine Alexiou, for the appellant

Maurice W. Pilon, for the respondent

Keywords: Contracts, Estates, Real Property, Undue Influence, Non Est Factum, Consideration, Independent Legal Advice


The issue in this appeal is the validity of a memorandum of agreement (MOA) that transfers ownership of a house from Sofia Denis (mother) to her daughter, Dimitra Georgopoulos, in exchange for $100,000.00 and a promise that the mother could remain living in the house for the rest of her life.

Soon after, the mother passed away unexpectedly.  The transfer of the house reduced the inheritance of the mothers son, Christos Donis and other daughter Eleni.

The son challenged the validity of the transfer primarily on the basis that: (1) their mother's rudimentary understanding of English prevented her from having the requisite capacity and understanding to execute the MOA; and (2) Dimitra exercised undue influence over her mother, who did not receive proper independent legal advice. The trial judge dismissed his challenge and Christos appeals.


The appellant argues that the trial judge erred in finding that:

  1. The mother understood the MOA and the MOA was not invalidated by the doctrine of non est factum;
  2. Dimitra rebutted the presumption of undue influence;
  3. The mother's interests were protected by independent legal advice; and
  4. The MOA was valid despite a failure of consideration.

Holding: Appeal Dismissed


  1. The court held that the factual findings of the trial judge were sufficient and there is no need to interfere with his findings. He found that: (1) the mother had sufficient ability in English to read and understand the MOA; (2) the mother had sufficient ability in English to understand the lawyer's explanation of the content of the MOA; and (3) Dimitra provided her mother with an explanation of the content of the MOA in her native language.
  2. The appellant argues that, in the alternative, if the mother understood the MOA, she only signed it as a result of Dimitra's undue influence over her. The trial judge stated that there was sufficient evidence to raise the presumption of undue influence because Sofia was dependant on Dimitra for basic needs, she was in a relationship of trust and confidence.  He went on, however, to find that Dimitra had rebutted the presumption of undue influence, as the mother received independent legal advice from a lawyer.
  3. The appellant argued that the trial judge erred, stating that the MOA was invalid because there was a failure of consideration, as the mother died shortly after the MOA was signed and therefore never received the future care that she was contemplated by the MOA. The court rejected this argument, looking to the MOA which stated, "[t]he agreement did not provide that Dimitra could have the house for such a time as she continued to provide care to Sofia". There was sufficient consideration for the MOA.

McDowell v. Cavan-Millbrook – North Monaghan (Municipality), 2016 ONCA 193

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

Roderick McDowell, in person

Raffaele Sparano, for the appellant

Christopher Afonso, for the respondent

Keywords: Civil Procedure, Dismissal For Delay, Prejudice, Self-Represented Litigant, Inordinate and Inexcusable Delay, Rules of Civil Procedure, Rule 24.01, Armstrong v. McCall


Appellant McDowell, commenced an action against the respondent Municipality and others asserting various causes of action, including negligence, intentional torts and breach of contract. McDowell claimed that the Municipality prevented him from obtaining approval of a plan of subdivision and limited his ability to sell his property. This action was eventually dismissed for delay under rule 24.01 of the Rules of Civil Procedure. The appellant appeals from that dismissal.


(1) Did the motion judge err in finding that the appellant's delay was inordinate and inexcusable?

(2) Did the motion judge err in finding a failure to rebut the presumption of prejudice and that actual prejudice existed?

(3) Did the motion judge fail to comply with responsibilities owed to self-represented parties?

(4) Did the motion judge err in failing to address the appellant's cross-motion for the production of documents?

Holding: Appeal Dismissed


(1) No.  The motion judge found no evidence that the Municipality was the cause of any delay and that there was no substance to the appellant's suggestion that the Municipality "laid in wait to pounce on the appellant." The appellant was given numerous warnings. Thus the delay was inordinate and inexcusable, for which the appellant was responsible.

(2) No.  Once inordinate and inexcusable delay is found, there is a presumption of prejudice:  Armstrong v. McCall. The appellant failed to produce any convincing evidence to rebut the presumption and thus there was no need for a finding of actual prejudice, even if the motion judge concluded that actual prejudice existed.

(3) No.  While the court system presents considerable challenges to self-represented parties, these parties have a responsibility to familiarize themselves with any procedures relevant to the case. This matter had an inordinate and prejudicial delay and the appellant's conduct cannot be excused simply because he was self-represented.

(4) No.  The appellant's motion was served four days before the hearing and would be rendered moot if the dismissal for delay motion was granted. The motion judge's adjournment was a discretionary decision and uninfected by any error.

Neuberger v. York, 2016 ONCA 191

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

Chris G. Paliare, Megan E. Shortreed and Jean-Claude Killey, for the appellant Edie Neuberger
Kimberly Whaley, Benjamin Arkin and Arieh Bloom, for the appellant Adam Jesin-Neuberger
Guy Pratte, Aaron Blumenfeld and Ewa Krajewska, for the respondent Myra York in all capacities
Clare E. Burns and Bianca La Neve, for the respondents Sonny York, Laura York and Spencer York

Keywords: Wills and Estates, Validity of Wills, Estoppel by Representation and Convention, Rules of Civil Procedure, Rule 75.01 & 75.06, Evidence, Proof of Wills

Chaim Neuberger's ("Mr. Neuberger") long-standing intention was to leave his estate, worth over $100 million, equally to his two daughters Edie and Myra. The appellant, Edie, has five adult children, one of whom is the appellant, Adam Jesin-Neuberger ("Adam").  The respondent, Myra, has three adult children (the "York Parties").

Mr. Neuberger executed primary and secondary wills in 2004 (the "2004 Wills") and again in 2010 (the "2010 Wills") with Edie and Myra named as co-estate trustees.  Both sets of wills left his estate to Edie and Myra and their children. However, the two wills allegedly differ in a manner that results in Myra's share exceeding Edie's by approximately $13 million.

Edie took a number of steps in her capacity as co-estate trustee under the 2010 Wills and ultimately commenced legal proceedings to challenge the validity of the 2010 Wills on the basis that her father did not have the testamentary capacity when he executed them.  Adam, through separate legal representation, seeks to challenge the validity of the 2010 Wills. Together, Edie and Adam's proceedings are referred to as the "Wills Challenges".  In response, the York Parties moved to dismiss the Wills Challenges on the basis that they are barred by the equitable doctrines of estoppel by representation and estoppel by convention.

The motion judge granted the motion to dismiss the Wills Challenges. She found that Adam was a "straw man" who had no knowledge of the 2010 Wills or the estate and came forward only to support his mother's position in the litigation. The motion judge found that Edie was estopped from challenging the validity of the 2010 Wills on the following basis: she had delayed bringing her challenge without explanation despite having doubts of Mr. Neuberger's capacity prior to 2011; Edie undertook  actions as an estate trustee in which she held herself out as such to various professionals; and the prejudice that would ensue from having to unwind the estate freeze that would cause the respondents to suffer as a result of having taken steps based on the 2010 Wills.  Edie and Adam appealed from the dismissal of their Wills Challenges.

(1) Is there an automatic right to proof in solemn form pre-probate?
(2) Did the motion judge err in her analysis of Edie's right to challenge the 2010 wills?
(3) Did the motion judge err in barring the Wills Challenges based on estoppel?
(4) Did the motion judge err by failing to take into account the relevant policy considerations?
(5) Did the motion judge err in barring Adam from pursuing his wills challenge because he is a "straw man"?
(6) Did the motion judge err in her factual findings in respect of Adam?

Holding: Appeal allowed.

(1) No. Edie and Adam are Interested Persons under Rule 75.06(1) of the Rules of Civil Procedure. As a general principle, before probate issues, an Interested Person has the right under rules 75.01 and 75.06 to request formal proof of the testamentary instrument, however they do not have, as of right, the ability to require that the testamentary instrument be proved in solemn form.

Flowing from the wording of rule 75.01, an Interested Person does not have the right to compel proof in solemn form. Rather, they can make an application for it to be "proved in such manner as the court directs" and it must be considered in conjunction with rule 75.06 because the application must be brought under that rule. When read together, rules 75.01 and 75.06 give the court discretion over whether a testamentary instrument is to be proved and the manner in which the instrument is proved.

In addition, an Interested Party must meet a minimal evidentiary threshold before a court should grant a request that a testamentary instrument be proved. In small estates, needless litigation could deplete the estate.  An applicant or moving party under 75.06 must adduce some evidence which, if accepted, would call into question the testamentary instrument that is being propounded.

(2) No. Rules 75.04 and 75.05 apply to wills challenges where probate has already issued and the court must decide whether to revoke or return the certificate. In the current case, probate has never been granted.  Edie argued that the motion judge conflated the legal tests in relation to Rules 75.04 and 75.05 with the test to be applied under Rule 75.01 where probate had never been granted. The court agreed with the argument of the York Parties  that this issue was a "red herring" because the sole task was to decide whether the doctrine of estoppel applied to preclude the Wills Challenges from proceeding.

(3) Yes. The motion judge erred in finding that estoppel by representation and convention can bar a challenge to the validity of a will. The motion judge erred in relying on a jurisprudential basis for her finding. The motion judge relied on the following three cases as the basis to invoke estoppel to bar the Wills Challenges: Canadian Superior Oil Ltd. v. Paddon Hughes Development Co., [1970] S.C.R. 932; Ryan v. Moore, 2005 SCC 38; and, Leibel v. Leibel, 2014 ONSC 4516.

The court held that neither Canadian Superior Oil nor Ryan were relevant to the issue at hand and that the judge in Liebel erred in relying on the aforementioned cases.  In Leibel, the motion judge found that there were discoverability issues and that the party seeking to challenge to the validity of the wills was statute-barred. In this case, the motion judge erred in finding the application was statute-barred and she mistakenly relied on Canadian Superior Oil and Ryan as authority for the proposition that estoppel applies to the question of whether an interested person should be permitted to proceed with a challenge to the validity of a will.

(4) Yes. The court has a responsibility to ensure that only wills that meet the hallmarks of validity are probated. The court also has a duty to the testator whose death precludes them from protecting their own interests, and to those with a legitimate interest in the estate and to the public at large. The court's ability to discharge these duties would be jeopardized if the doctrine of estoppel was available to prohibit a party from having the validity of a will determined.

The court agreed with Edie's submission that the motion judge's reliance on Edie's undue delay as a basis for her decision created a bad precedent that could adversely affect the administration of estates and had to be set aside for policy reasons. The motion judge's decision in this case  could result in parties bringing premature and potentially poorly informed challenges or force trustees to take no steps in the administration of estates for fear of being deemed unduly dilatory or as having affirmed the validity of the will.  The court found no basis to import the doctrine of estoppel into Rule 75. Rule 75 gives the court enough discretion to screen out baseless claims for formal proof of testamentary instruments and, for those with merit, control the manner in which the instrument is proved.

(5) Yes. It is not clear the basis for the motion judge finding that Adam was a "straw man". Adam provided evidence that he made an independent decision to challenge the 2010 Wills and Edie's evidence was that she did not want her children to be involved. Neither of their evidence was disturbed on cross-examination. The motion judge was required to provide an explanation as to why she rejected Adam's evidence.

(6) Yes. The motion judge made findings of fact in relation to Adam's claim in a conclusory fashion and did not explain how she weighed conflicting evidence and credibility disputes. First, there was no basis for the motion judge's finding that Adam did not have a close relationship with his grandfather.  Second, the motion judge must have misapprehended the evidence in finding that Adam had not explained why he brought his will challenge. Adam's evidence was that he was content to have his mother pursue the validity of the 2010 Wills without his involvement until January 2014, when he learned the York Parties were intending to bring a motion to strike his mother's wills challenge. As a result of the motion to strike, Adam felt his interests might not be protected.  It is not clear based on Adam's evidence how the motion judge came to the conclusion that he gave no explanation for why he challenged the will.

In the result, the dismissal of the Wills Challenges was set aside and the Wills Challenges are permitted to proceed on the merits.

Labelle v. Canada (Border Services Agency), 2016 ONCA 187

[Laskin, Pardu and Roberts JJ.A.]


William G. Scott, for the appellants
Helene Robertson, for the respondents

Keywords: Torts, Negligence, Occupier's Liability, Slip and Fall, Rules of Civil Procedure, Rule 48.14, Administrative Dismissal for Delay, Prejudice, Reid v Dow Corning Corp.


Suzan Labelle (the "Appellant") allegedly slipped and fell at a border crossing in Ontario. She commenced a claim against the Canada Border Services Agency ("CBSA"), Abitibi Consolidated Inc. ("Abitibi") and International Bridge Company ("International Bridge") (collectively the "Respondents"). Abitibi and International Bridge were subject to an order under the Companies' Creditors Arrangement Act, so the claims against them were automatically stayed.

The claim moved very slowly until March 2012, when the court issued a status notice. Although the Appellant's counsel instructed staff to do so, they failed to request a status hearing from the court. The registrar dismissed the Appellants' action in June 2012. Appellant's counsel promptly obtained the Respondents' position that they would not oppose the motion to set aside the dismissal order. More than two years passed before the Appellant's counsel brought the motion. The motion judge refused to set aside the dismissal order because the Respondents were prejudiced by the delay.  The Appellant appeals.

Issue: Did the motion judge err in her assessment of prejudice to the Respondents?

Holding: Appeal allowed.


Yes. The motion judge erred in her assessment, which was at the heart of her decision to dismiss the Appellants' motion.

The motion judge applied the circumstances of the case as outlined in Reid v Dow Corning Corp: explanation of the litigation delay; inadvertence in missing the deadline set out in the status notice; promptly moving to set aside the registrar's dismissal order; and no substantial prejudice to the respondents because of the delay. The motion judge correctly observed that it was not mandatory that the Appellant satisfy all four factors. The motion judge listed the Appellant's reasons for the litigation delay and failure to promptly move to set aside the dismissal order.

The motion judge concluded the motion ought to be dismissed because the Appellant's delay caused significant prejudice to the Respondents. The Respondents were prejudiced because the crossclaim against Abitibi disappeared and the Respondents lost the ability to defend themselves because evidence regarding maintenance was no longer available.

Prejudice to the defence that exists regardless of the Appellant's delay is not relevant. Prejudice arising from the defendants' own failure to do something that they reasonably could have or ought to have done such as interviewing witnesses and conducting surveillance cannot be the basis for refusing to revive a claim that was administratively dismissed for delay.  The Respondents failed to take any steps to preserve or pursue any claims that they may have had against Abitibi or International Bridge in the CCAA proceedings. The unavailability of evidence regarding maintenance was not a product of the Appellant's delay.

The motion judge's conclusion regarding prejudice was central to her decision to dismiss the Appellants' motion. Without the finding of prejudice to the Respondents, a contextual analysis would result in concluding that the order ought to be set aside.  The factor of delay by itself is not sufficient to deny the Appellant's request to reinstate the action. Also, there is no evidence that the Appellant's delay was the product of a deliberate decision not to take any steps in the proceedings.

Spence v. BMO Trust Company, 2016 ONCA 196

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


Justin W. de Vries and Angela Casey, for the appellant

Earl A. Cherniak, Q.C., Jasmine T. Akbarali and Michael S. Deverett, for the respondents

Keywords: Wills and Estates, Validity of Will, Testamentary Freedom, Testator's Discriminatory Motive, Public Policy, Rules of Civil Procedure, Rule 75.06, Succession Law Reform Act, ss. 58 and 60, Extrinsic Evidence, Admissibility

Facts: The deceased, Eric Spence ("Eric"), was survived by his daughter, the respondent Verolin Spence ("Verolin"). According to Verolin, she and her father enjoyed a positive relationship for many years.  However, their relationship changed in 2002 when she told Eric that she was pregnant. Verolin says that Eric, a black man, began to restrict his communications and any other contact with her when he learned that the father of her child was white. Verolin gave birth to her son A.S. in 2003. Eric made a will in 2010 in which he expressly excluded Verolin from sharing in any part of his estate.

Eric passed away and the appellant, BMO Trust Company ("BMO Trust"), was issued a Certificate of Appointment of Estate Trustee with a Will in 2013 and began to administer the estate. Verolin and A.S. did not challenge the Will or BMO Trust's appointment as estate trustee in the probate proceeding.  Instead, in 2014, they applied in the Superior Court under rule 75.06 of the Rules of Civil Procedure, and ss. 58 and 60 of the Succession Law Reform Act (the "SLRA") for: i) a declaration that the Will was void, in whole or in part, because it was contrary to public policy; ii) leave to proceed with a dependant's relief application under the SLRA; and iii) directions from the court.

In support of the application, Verolin filed her own affidavit, together with an affidavit sworn by Imogene Parchment ("Imogene"), who had acted as Eric's occasional caregiver.  In both affidavits (the "Extrinsic Evidence"), the affiants alleged that Eric's decision to exclude Verolin and A.S. from his Will was racially-motivated. Verolin asserted that, because her disinheritance was motivated by racial discrimination on Eric's part, the Will was void by reason of public policy. The application judge set aside the Will on the basis that it violated public policy against discrimination on racial grounds. BMO Trust appeals the application judge's decision.


(1)     Was the Extrinsic Evidence admissible before the application judge?

(2)     Did the application judge err by improperly interfering with Eric's testamentary freedom?

Holding: Appeal allowed.


(1) No. As a general rule, extrinsic evidence of a testator's intentions is not admissible when the testator's will is clear and unambiguous on its face. In Rondel v. Robinson Estate, this court recognized two exceptions to this rule.  First, direct extrinsic evidence of intention may be admissible where a will is equivocal, that is, where the words used in the will may be read as applying equally to two or more persons or things.  Second, evidence of the testator's circumstances or the circumstances surrounding the formation of a will may also be admissible in cases where the will is or may be ambiguous. This is not a wills interpretation case and the application judge was not sitting as a court of construction.  Here, it is accepted that the terms of the Will are unambiguous and unequivocal.  Consequently, the established exceptions to the general exclusionary rule regarding evidence of a testator's intentions are not engaged.

It need hardly be said that public policy in Canada precludes discrimination on the basis of race and other discriminatory characteristics.  The public policy against discrimination is reflected in the Charter  and the human rights legislation of every province in Canada, including Ontario's Human Rights Code. However, the desirability of affirming the public policy against discrimination does not lead to the conclusion that third-party extrinsic evidence of a testator's alleged discriminatory motive is admissible to challenge the validity of a will where, as here, the testator's residual bequest to a private beneficiary is absolute, unequivocal and unambiguous. If, as Rondel holds, extrinsic evidence is not admissible to establish what a testator intended, still less should it be admissible to question why the testator made a particular bequest. In this case, the Will expressly discloses Eric's motive, at clause 5(h).  That clause provides an explanation, from the testator himself, for his decision to exclude Verolin from the Will, namely, that "she has had no communication with me for several years and has shown no interest in me as her father". Viewed in this fashion, the purpose of the Extrinsic Evidence was not to establish Eric's motive for the residual bequest in his Will but, rather, to contradict the lawful motive for the bequest disclosed by the plain language of the Will and to substitute, in its stead, a different and allegedly unlawful motive. There is no basis at law for the admission of wholly contradictory, extrinsic evidence of motive for this purpose.  The courts should be loath to sanction such an indirect attack, which the deceased cannot challenge, on a testator's expressed motive and testamentary choices.

(2) Yes. Judicial interference with Eric's testamentary freedom was not warranted. A testator's freedom to distribute his property as he chooses is a deeply entrenched common law principle. The Supreme Court has also recognized the importance of testamentary autonomy in Tataryn v. Tataryn Estate. However, notwithstanding the robust nature of the principle of testamentary freedom and its salutary social interest dimensions, the courts have recognized that it is not an absolute right.  Apart from limits imposed by legislation, it may also be constrained by public policy considerations in some circumstances. Canada Trust Co. v. Ontario (Human Rights Commission, where the discriminatory terms of a trust were found to be contrary to public policy,   is instructive in this regard. However, in this case, the Will at clause 5(h) that no provision was made for Verolin because "she has had no communication with me for several years and has shown no interest in me as a father" was not the language of racial discrimination. Canada Trust confirms that Canadian courts will not hesitate to intervene on the grounds of public policy where implementation of a testator's wishes requires a testator's executors or trustees or a named beneficiary to act in a way that collides with public policy. That is not this case. To apply the public policy doctrine to void an unconditional and unequivocal testamentary bequest in cases where, as here, a disappointed potential heir has been disinherited absolutely in favour of a different, worthy heir, would effect a material and unwarranted expansion of the public policy doctrine in estates law.  Absent valid legislative provision to the contrary, or legally offensive conditional terms in the will itself, the desire to guard against a testator's unsavoury or distasteful testamentary dispositions cannot be allowed to overtake testamentary freedom. The need for a robust application of the principle of testamentary freedom is especially important in the context of a testator's central right to choose his or her residual beneficiaries. On the facts of this case, there was no foundation for the public policy-driven review undertaken by the application judge.  She erred by going behind the testator's expression of his clear intentions regarding the disposition of his property. The application judge's decision in this case implicitly endorses a general supervisory role for the courts in policing a testator's unqualified and legitimate choice of his or her heirs on the ground of enforcing the public policy against discrimination.  This proposition, if accepted, would significantly erode and arguably displace meaningful testamentary freedom.

International Property Group Inc. v. 2262814 Ontario Ltd., 2016 ONCA 203

[Epstein, Pepall and Hourigan JJ.A.]


Douglas Bourassa, for the appellants
Harvin D. Pitch, for the respondent

Keywords: Contracts, Interpretation, Factual Matrix, Standard of Review, Question of Mixed Fact and Law, Sattva Capital v. Creston Moly Corp.


The appellants ("Appellants") agreed to sell certain properties to the respondents ("Respondents"). The parties entered an agreement of purchase and sale in 2014. The purchase price was $36,000,000 and included a $2,000,000 deposit. Part of the purchase price included the Respondent's assumption of two existing mortgages on the properties. There were two related clauses in the agreement. A  Rider required the respondent to proceed in good faith and with due diligence. If the Respondent fulfilled this obligation, it was entitled to determine whether the terms of the mortgages were acceptable and, if not, to back away from the deal.

The Respondent did not agree to the mortgages' conditions and backed out of the agreement. The Appellants refused to return the deposit. The parties agreed to have the dispute settled by summary judgment. The Respondent won the motion and the Appellants appealed the decision on the grounds that the motion judge's interpretation of the agreement was an error of law.

Issue: Was the motion judge's interpretation of the agreement incorrect?

Holding: Appeal dismissed


No. Contractual interpretation involves issues of mixed fact and law and courts should be cautious in identifying extricable questions of law in interpretive disputes.

The Appellants argued that the motion judge did not interpret the Rider in the context of the factual matrix, including the Rider's wording. The court did not accept this argument. The Appellants relied on the parties' negotiations and subjective intent, which was not relevant to interpreting the agreement.

The Appellants also argued that the motion judge erred by failing to interpret the Rider as a whole by failing to interpret specific language. However, the motion judge did interpret the language which was evident by his referral to the Respondent's obligation regarding the mortgages.

The motion judge was of the view that the Respondent acted in good faith and the evidence supported it. This finding was open to the motion judge to make and he did so by interpreting a witness's evidence as a whole.

Civil Endorsements

Damallie v. Shaukat, 2016 ONCA 198

[Laskin, MacFarland and Roberts JJ.A.]


Clifton Damallie, in person

No one appearing for the responding party

Keywords: Motion to Extend Time for Leave to Appeal, Motion to Vary Order

1860035 Ontario Ltd. v. Velika Realty Inc., 2016 ONCA 195

[Laskin, MacFarland and Roberts JJ.A.]


Charles L. Merovitz, for the appellants

Craig O'Brien, for the respondent

Keywords: Striking Statement of Defence, Fresh Evidence

Roopchand v. Chau, 2016 ONCA 202

[Juriansz, Epstein and Pepall JJ.A.]


Richard P. Quance, for the appellants

Lou Brzezinski and Chad Kopach of Blaney McMurtry, for the respondents

Keywords: Refusal of Request for Adjournment, Discretion, Balancing Interests of Parties, Balancing Interests of Justice, Appeal Dismissed

Samuda v. Jarvis George Housing Co-operative Inc., 2016 ONCA 200

[Laskin, MacFarland and Roberts JJ.A.]


Rosalee Samuda, acting in person

Bruce D. Woodrow, for the responding party

Keywords: Extension of Time to Appeal, No Prospect of Success, Motion Dismissed

Criminal Decisions

R. v. Grizzle, 2016 ONCA 190

[Watt, Lauwers and Pardu JJ.A.]


Breana Vandebeek, for the appellant

David Finley, for the respondent

Keywords: Criminal Law, Possession of a Loaded Prohibited Firearm, Fault Element, Improper Crown Conduct, Corbett Ruling

R. v. Shepherd, 2016 ONCA 188

[Watt, Lauwers and Pardu JJ.A.]


James Lockyer and J. Thomas Wiley, for the appellant

Howard Leibovich, for the respondent

Keywords: Criminal Law, Manslaughter, Guilty Plea, Fresh Evidence, Acquittal

R. v. Webster, 2016 ONCA 189

[Watt, Lauwers and Pardu JJ.A.]


Robert Sheppard, for the appellant

Andrew Cappell, for the respondent

Keywords: Criminal Law, Preliminary Inquiry, Certiorari

R. v. Comtois, 2016 ONCA 185

[Watt, Lauwers and Pardu JJ.A.]


Julian Roy and Marc Gibson, for the appellant

Nicholas Devlin, for the respondent

Keywords: Criminal Law, Summary Conviction, Certiorari, Charter Relief

R. v. Balogun-Jubril, 2016 ONCA 199

[Cronk, Juriansz and Roberts JJ.A.]


Michael W. Caroline, for the appellant

Christopher Chorney, for the respondent

Keywords: Criminal Law, Summary Conviction, Criminal Code, ss. 253(1)(a) and (b), Realistic Risk of Danger to the Public

R. v. Clouthier, 2016 ONCA 197

[Gillese, Watt and Tulloch JJ.A.]


Hannah Freeman, for the appellant

Sean J. May, for the respondent

Keywords: Criminal Law, Intermittent Sentences, Criminal Code, s. 732(1), Impaired Operation Causing Bodily Harm, Dangerous Operation Causing Bodily Harm, Failure to Stop at the Scene of an Accident

R v. Emery, 2016 ONCA 204

[Feldman, Gillese and Huscroft JJ.A.]


Christopher Emery, acting in person

Zachary Kerbel, duty counsel

Matthew Asma, for the respondent

Keywords: Criminal Law, Unauthorized Possession of a Prohibited Weapon, Criminal Code, ss. 683(1)(g)

Ontario Review Board Decisions

 Petroniuk (Re), 2016 ONCA 186

[Watt, Lauwers and Pardu JJ.A.]


Daniel Moore, for the appellant Elizabeth Petroniuk

Grace Choi, for the respondent Crown

Keywords: General Forensic Unit Detention, NCRMD, Significant Threat

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.

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Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.