Canada: Ontario Court Of Appeal Summaries (May 24-27)

Last Updated: June 6 2016
Article by John Polyzogopoulos

Hello everyone,

Following are this week's summaries of civil decisions released by the Court of Appeal. Topics covered include: Family law (wardship), bankruptcy and insolvency (essential elements to obtain bankruptcy order and the treatment of after-acquired property of an undischarged bankrupt), stay of pending appeal to the Supreme Court (Livent), torts (proximity and the Anns test).

There were several decisions involving real estate. One of them was perhaps the most interesting decision of the week. In the Israel Estate decision, Justice Laskin discusses the difference between an option to purchase and a right of first refusal. This is an important distinction, because the former results in an interest in land whereas the latter only results in a personal right, but not an interest in land. In this case, if the clause in the contract in question was an option to purchase creating an interest in land, it would be void as violating the rule against perpetuities. The motion judge found that the clause in question did not create an interest in the land and therefore the rule against perpetuities did not apply. The clause could still be enforced. The Court of Appeal reversed this decision, finding that the clause in question was an option to purchase. In coming to its decision, the court also commented on the implied contractual obligation to exercise contractual discretion reasonably and in good faith. In addition, the court doubted that the deferential standard of review of contractual interpretation imposed by Sattva Capital v Creston Moly applied in this case because the application judge had not actually interpreted the agreement in question, but had erroneously applied the law on the degree of control necessary for a contractual right to rise to the level of an option to purchase creating an interest in land. Accordingly, the court applied the correctness standard. In the alternative, if the deferential standard of review applies, the court held that the application judge's interpretation was unreasonable.

Wishing you all the best for the upcoming weekend.

CIVIL DECISIONS

Carleton Condominium Corporation No. 396 v. Burdet, 2016 ONCA 394

[Rouleau, Pardu and Benotto JJ.A]

Counsel:

Claude-Alain Burdet, for the appellant

Christopher Rootham and Nancy Houle, for the respondent

Keywords: Real Property, Condominiums, Condominium Act, 1998, Statutory Interpretation, Common Expenses, Remedies, Liens, Collateral Attack, Standing

Facts:

The appellants owned several condominiums and failed to pay routine condominium fees to the respondent. When an action to recover the fees commenced in 2009, the respondent corporation was managed by a court-appointed administrator as a result of another proceeding commenced in 2002. Three days before trial, one of the appellants transferred ownership of all but one of the condominium units to the corporation ETRE. ETRE was added as a defendant in the original proceedings, and was represented by the same counsel as the other defendants. The trial judge awarded a remedy against ETRE.

The trial judge held that the appellants owed close to $300,000 in condominium fees to the respondent, and that liens and notices of sale relating to several of the appellant's units were valid.

Issues:

(1) Did the trial judge err in making his determinations?

Holding: Appeal dismissed with costs to the appellant fixed at $27,000, all inclusive.

Reasoning:

(1) No, the appeal should be dismissed. The appellant challenged the action on the basis that the respondent corporation was managed by a court-appointed administrator following an order that was improperly made. The court rejected this argument, citing the rule against collateral attacks, holding that final orders or judgments other than those under appeal cannot be challenged. For the same reasons, the court rejected the appellant's appeal against a trial management order, and an appeal against a partial summary judgment order. The court cited s.84(3)(b) of the Condominium Act, which provides that owners are not exempt from contributing to common expenses despite a claim being made against the condominium corporation.

The appellants challenged the trial judge's award against ETRE. The court held that although ETRE was a party by consent, ETRE had not appealed the judgment against it. The court ruled that the appellants had no standing to challenge the order against ETRE, despite the corporation being controlled by one of the appellants.

The appellants submitted that under the Condominium Act, 1998 corporations have no power to sue for unpaid common expenses and can only enforce a lien. The court held that s.136 of the Condominium Act, 1998 allows for the pursuit of other remedies unless restricted elsewhere in the Act. The court cited the principle from Bell ExpressVu Limited Partnership v Rex that courts must interpret statutes in their ordinary sense and in a manner consistent with the scheme of the Act, the object of the Act, and the intentions of the enacting legislature. The court held that the intention behind the Condominium Act, 1998 cannot have been to limit corporations to recovery by way of registering a lien, and that s.136 therefore allows corporations to sue as a means of recovery.

The appellants challenged many of the trial judge's findings. The court held that all of the disputed findings were reasonably open to the trial judge on the basis of the evidence.

Children's Aid Society of Toronto v. M.S,, 2016 ONCA 396

[J.C. McPherson J.A., P. Lauwers J.A. and C. W. Hourigan J.A.]

Counsel:

M.S., in person

Ian Ross, for the children E. and A.

Tammy Law, for the respondent the Children's Aid Society of Toronto

Marguarida Pacheco, as amicus

Keywords: Family Law, Crown Wardship, Status Review, Canadian Charter of Rights and Freedoms, Granting Leave, Hearsay

Facts:

The appellant and his ex-wife have two children, who were apprehended and placed in the care of the Children's Aid Society of Toronto. The appellant commenced a Status Review for a Crown ward and sought access to his children. He failed to attend court and, consequently, the motions judge dismissed the Status Review application. The judge also ordered that the appellant could not bring a further Status Review Application without leave of the court. The appellant brought multiple motions seeking leave, all of which were dismissed without prejudice. In May 2015, the appellant brought a further motion for leave which was dismissed by the motion judge. The appellant then appealed the dismissal of his leave motion of the Superior Court of Justice. His appeal was dismissed.

The appellant appeals the decision dismissing his appeal of the order of the motions judge denying him leave to bring a Status Review application.

Issues:

  1. Did the appeal judge make a reversible error when she referred in her reasons to the children as girls?
  2. Did the appeal judge misapprehend a letter from the Jamaican Canadian Association?
  3. Have the appellant's ss. 7, 15 and 28 rights of the Charter of rights been breached because he was denied a Legal Aid ("LAO") certificate for the purposes of this appeal?
  4. Did the appeal judge err in applying the test for granting leave to bring a Status Review application?

Holding: Appeal dismissed.

Reasoning:

(1)The Court acknowledged that the appeal judge referred to the children as "girls" in two parts of her endorsement, when, in fact, one child was a boy. However, the Court found that these were mere factual slips and did not warrant appellate intervention.

(2)Even if the motions judge had considered the letter, it would not have changed the outcome of the motion. The letter does not impact the analysis of whether the appellant has put forward a prima facie case. Furthermore, the appeal judge did not err in describing the letter as hearsay as it was an opinion by an author who was not qualified as an expert.

(3)There was no breach of the appellant's Charter rights, as the subject matter of the appeal was an application for leave to bring a Status Review application and not the Crown wardship order. It is within the purview of LAO to assess the appellant's eligibility for a certificate in these circumstances.

(4)The test for granting leave to bring a Status Review application has five parts, all of which must be met. The test is as follows (from Catholic Children's Aid Society of Metropolitan Toronto v B.A.F [1988] O.J. No. 2950 (OCJ)) :

  1. The status review application for which permission is sought must be made in good faith and not for some ulterior motive that would needlessly disrupt the stability of the child's foster placement.
  2. Permission should be refused where it is possible to get the relief sought by some less drastic way than a review of the whole Crown wardship order.
  3. There has to be some unusual circumstance to justify the court's intrusion into the continuous and long-term foster placement, especially from a child's perception of time.
  4. The applicant must convince the court that, after two or more years, a status review application now would likely promote the objectives set out in section 1 of the Child and Family Services Act.
  5. There has to be a prima facie case that, if permission was given, the applicant would probably get the relief sought.

The issue was whether an access order is even available to an appellant, given that the child had been placed for adoption. The assisting amicus to the appellant argued that the appellate judge erred by equating an open adoption order with access, when considering whether the relief sought could be obtained other than by reviewing the whole order. The Court was not satisfied that even if the appeal judge erred in considering this part of the test that the appellant can meet any of the other parts of the test.

Levesque (Re), 2016 ONCA 393

[Rouleau, Pardu and Benotto JJ.A.]

Counsel:

Raymond Colautti and Anita Landry, for the appellant

Stephen Schwartz, for the respondent

Keywords: Bankruptcy and Insolvency, Bankruptcy and Insolvency Act, s.42, Application for Bankruptcy Order

Facts:

The appellant is unable to recover on a judgment against Michael Levesque and Engineered Systems Inc., jointly and severally, for just over $600,000. The appellant appeals the dismissal of its application for an order that Mr. Levesque be adjudged bankrupt.

Issues:

Did the application judge err in dismissing the application?

Holding: Appeal dismissed.

Reasoning:

No. The petitioning creditor must establish three essential elements to obtain a bankruptcy order against a debtor: (1) there is a debt of at least $1,000 owing to the petitioning creditor; (2) the debtor has committed an act of bankruptcy within the preceding six months; and (3) there is an unsecured part of the secured creditor's claim that exceeds $1,000, after the creditor has estimated the value of its security.

Here, the appellant asserted that the debtor ceased "to meet his liabilities generally as they become due". The application judge correctly relied on the test in Re Ivany for determining when a debtor has failed "to meet his liabilities generally as they become due" in the absence of special circumstances: (1) proof of the outstanding debt owed to the applicant, and (2) evidence that the debtor has ceased to meet his liabilities to its creditors in general. The Court held that based on the evidence before her, the application judge was correct in finding that the debtor had not failed to meet his liabilities generally.

The Court also discussed Re Valente, which held that a bankruptcy order may be made in the case of a single debt, under s. 42(1)(j), where there are special circumstances: (1) where repeated demands for payment have been made within the six-month period; (2) where the debt is significantly large and there is fraud or suspicious circumstances in the way the debtor has handled its assets which require that the processes of the B.I.A. be set in motion; and (3) prior to the filing of the petition, the debtor has admitted its inability to pay creditors generally without identifying the creditors. The Court agreed with the application judge that special circumstances had not been established, particularly since there was no evidence of fraud or suspicious circumstances.

Livent Inc. v. Deloitte & Touche, 2016 ONCA 395

[Strathy C.J.O]

Counsel:

A.J. Lenczner and M. Fleming, for the appellants

P. Howard and A. Kreaden, for the respondents

Keywords: Torts, Negligence, Auditors, Stay Pending Appeal, Supreme Court Act, R.S.C. 1985, c. S-26, s 65.1, RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R 311

Facts:

After the Court of Appeal upheld the ruling of the trial judge, the appellants filed an application for leave to appeal to the Supreme Court of Canada. The appellants are now asking for a stay, on terms, of the judgment of the Superior Court of Justice and of the Court of Appeal's order pursuant to s. 65.1 of the Supreme Court Act, pending determination of the application.

Issues:

(1) Based on the considerations set out in RJR-MacDonald Inc. v. Canada (Attorney General), is it appropriate to grant the requested stay?

Holding: Stay of judgment of the Superior Court and order of the Court of Appeal granted pending the determination of the application for leave to appeal to the Supreme Court of Canada.

Reasoning:

(1) Yes. In determining whether it is in the interest of justice to grant this motion, RJR-MacDonald Inc. v. Canada (Attorney General) set out three considerations which this case meets.

i) Whether there is a serious question to be determined:

The duty of care owed by an auditor of a public company and the applicable standard of care can reasonably be considered issues of public importance.

ii) Whether the moving party will suffer irreparable harm if the stay is not granted:

The evidence for irreparable harm is weak. Nonetheless, permitting the respondent to immediately enforce its judgment, while the leave application is pending, would be sufficiently disruptive of the appellants' business to amount to irreparable harm.

iii) Whether the balance of convenience favours a stay:

The security for the judgment offered by the appellants is reasonable and provides the respondent with satisfactory assurance that the judgment will be promptly paid in full if the application for leave fails. The appellants' liability insurance covers the full amount. There is no evidence of issues regarding the solvency of the insurer. The insurer has been given direction to pay the funds directly to the respondents. The court adds that this direction must be irrevocable. The appellants have given evidence of their own solvency. For these reasons, the court finds that the respondent has all the protection it can reasonably require pending the disposition of the leave application and therefore the balance of convenience is in favour of a stay.

The court considered these three factors as interrelated and allowed the strength of the third factor to make up for the weakness of the second.

Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, Jeffrey Kerbel 2001251 Ontario Inc. and Frist Elgin Mills Developments Inc., 2016 ONCA 404

[Hourigan, Huscroft and Weiler JJ.A.]

Counsel:

Sarit E. Batner and Adam Goldberg, for the moving party Romandale Farms Limited

Robert Rueter and Janet Lunau, for the responding party Fram Elgin Mills 90 Inc.

John J. Longo, for the responding parties Jeffrey Kerbel, 2001251 Ontario Inc. and First Elgin Developments Inc.

Keywords: Contracts, Real Property, Motion to Quash Appeals, Jurisdiction, Interlocutory or Final Order, Res Judicata, Limitations Act 2002

Facts:

Fram and Romandale were co-owners of land that was subject to a co-owners agreement (COA). The COA gave Fram the right to acquire Romandale's entire share (95%) upon request. Romandale entered into a contract to sell its entire interest to Kerbel. Fram sought a declaration that the agreement was void, seeking specific performance of the COA, as well as damages against Kerbel. Fram eventually settled its action against Kerbel.

Fram was granted leave to amend its Statement of Claim against Romandale to conform with the settlement agreement reached with Kerbel. Romandale moved to amend its Statement of Defence, and to commence a crossclaim or third party claim against Fram and Kerbel. The motion was dismissed as Romandale's proposed amendments were found to be not tenable at law. Romandale appealed.

The appeal was dismissed on grounds that "it was plain and obvious that the proposed pleading would not survive rule 21 [entitling a party to strike out a pleading on the ground that it discloses no reasonable defence]..." Romandale did not appeal, but later brought a motion seeking leave to amend its defence once again. Fram and Kerbel submitted that Romandale could not amend on account of res judicata and that the proposed amendment was barred by the Limitations Act, 2002.

The motion's judge granted Romandale leave to amend its statement of defence and joined Kerbel as a defendant for certain limited purposes. Both Fram and Kerbel appealed the decision of the motion judge; Romandale brought this motion to quash those appeals.

Issues:

Should the motion to quash the appeals be granted?

Holding: Motion granted. Costs in favour of the moving party

Reasoning:

Yes. The motion to quash is allowed on the basis of lack of jurisdiction. An order granting leave to amend a pleading is an interlocutory order, and an order adding a party defendant is also an interlocutory order (neither are final orders). The court held that the rationale in both instances is that the litigation continues and the order made does not affect a party's substantive rights.

The motion judge did not make a final determination on the merits of Romandale's defence. In response to the appellants' other submissions concerning the Limitations Act, 2002 and res judicata that may make this order final for the purposes of appealing, the court found that neither applies here. Section 4 of the Limitations Act, 2002 bars claims, not defences, and therefore the low bar of a tenable defence had been met. Res judicata does not apply here because there was no examination of any of these issues on the merits. As noted in AGF Canadian Equity Fund et al. v. Transamerica Commerical Finance Corporation Canada et al., (1993) 14 O.R. (3d) 161 at para. 35, to hold otherwise would be "contrary to the policy that cases should be finally decided on their merits, not on technicalities arising from mispleading, and contrary to the liberal approach to pleading found in rule 26.01."

Rana v Ontario (Training Colleges and Universities), 2016 ONCA 398

[MacPherson, Lauwers and Hourigan JJ.A.]

Counsel:

Kris Rana, on her own behalf

Abel Fok, for the respondent

Keywords: Torts, Statutory Duty of Care, Private Career Colleges Act, 2005, S.O 2005, c. 28, Sched. L, Negligence, Negligent Investigation, Special Relationship, Proximity, Anns v Merton London Borough Council, Rules of Civil Procedure, Rule 21, No Reasonable Cause of Action

Facts:

Ms. Rana was enrolled in a private career college registered under the Private Career Colleges Act (the "PCCA"). The college found that Ms. Rana had plagiarized an assignment, but Ms. Rana denied having done so. She then launched a complaint in 2009 against the college with the Superintendent of Private Career Colleges (the "Superintendent"), alleging that the college discriminated against her. In 2009, she left the college, and then tried to return, but the college refused to allow her do so. Ms. Rana then brought her complaint to the Ministry of Training, Colleges and Universities (the "MTCU"). The MTCU informed her that they did not have jurisdiction to force the college to allow her back into the program and that there had not been a breach of the PCCA or its regulations.

Ms. Rana sued Ontario, claiming that the Superintendent and the MTCU staff were negligent in their investigation of and response to her complaint regarding the college`s finding of plagiarism, as well as the college`s refusal to let her back into the program. Ontario brought a motion to strike the claim for lack of a reasonable cause of action. The motion judge concluded that Ontario does not owe private law duty of care to an individual student of a private career college.

Issues:

(1) Did the motion judge err by concluding that Ontario does not owe a private law duty of care to an individual student of a private career college?

Holding: Appeal dismissed. No order made for costs.

Reasoning:

(1) No, the motion judge correctly applied the Anns v Merton London Borough Council test to find that the Superintendent cannot owe a private law duty of care toward an individual student complainant, as the PCCA does not expressly or by implication establish a relationship of proximity between the Superintendent and a student complainant.

Additionally, the appellant did not plead any material facts that would create a "special relationship" between her and the MTCU stafff or the Superintendent. The fact that the appellant wrote numerous letters to MTCU staff does not create a "close and direct" relationship. In any event, the MTCU did conduct an investigation pursuant to its powers, and determined that there was no basis to intervene.

2123201 Ontario Inc. v. Israel Estate, 2016 ONCA 409

[Laskin, Pardu and Roberts JJ.A]

Counsel:

Randell K. Thomson, for the appellant

Steven W. Pettipiere, for the respondent

Keywords: Contracts, Real Property, Options to Purchase, Rights of First Refusal, Implied Terms, Duty to Exercise Contractual Discretion Reasonably and in Good Faith, Rule Against Perpetuities, Contractual Interpretation, Intention of the Parties, Subsequent Conduct, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633

Facts:

Harold Israel sold land containing a gravel pit to D.M. Bowman and Seranus Martin. The purchase agreement stated that the land was sold explicitly for the purpose of removing gravel and sand from the land. The agreement contained a clause giving Israel the "first option to purchase" the land for $1 once the gravel removal was complete. Martin and Bowman were given discretion to determine when the removal was complete. The appellant, 2123201 Ontario Inc., purchased the land, and was still extracting gravel from it. Israel's estate registered two notices of claim against the land in question, demanding to purchase the land for $1. 2123201 sought an order declaring the purchase agreement void and deleting it from title.

The application judge dismissed 2123201's application, holding that the agreement was not an option agreement that created an interest in land. If it had been an option to purchase creating an interest in land, it would have been void under the rule against perpetuities. The application judge characterized the "first option to purchase" as similar to a right of first refusal, which created no interest in land. Accordingly, the rule of perpetuities had no application and Israel's estate could seek to enforce the right of first refusal.

Issues:

(1) Did the purchase agreement give Israel an interest in the land?

Holding: Appeal allowed, with $15,000 in costs awarded to the appellant for the appeal and $15,000 for the application at first instance.

Reasoning:

(1) Yes, the purchase agreement gave Israel an interest in the land. Options to purchase create an interest in land that is enforceable at any time within the perpetuity period. The purchase agreement gave Israel an immediate interest in the land, but the interest never vested within the perpetuity period, making the Agreement void and unenforceable for violating the rule against perpetuities.

The court found that the option did not fit neatly into either the category of option agreement or right of first refusal. Despite 2123201 retaining some control and discretion over when the option could be exercised, the court nonetheless determined that Israel still held an equitable interest in the land. The court relied on the ruling in Jain v. Nepean to establish that control over when an option is exercised is not always determinative of whether an interest in land was created.

The court focused on the intent of the parties when entering into the agreement, and determined that the parties intended to give Israel an interest in the land. The court considered that the land had originally been purchased for the purpose of removing gravel, and that although the purchasers had discretion over how fast to remove the gravel, they were obligated to do so within a reasonable timeframe, as the law implies that discretion conferred under an agreement must be excercised reasonably and in good faith. The court also considered that the right was termed a "first option to purchase", and that as part of the agreement, Israel had agreed to execute a quitclaim if necessary. The quitclaim was included because Israel was being given an equitable interest in the land. The court also assessed the conduct of the parties following the execution of the agreement. Israel joined Bowman and Martin as a grantor when a portion of the land was conveyed to the school board, and the court reasoned that he would not have done so if he merely had a right of refusal.

The rule in Sattva Capital Corp. v. Creston Moly Corp was found to not apply, as the trial judge did not interpret the agreement, and had instead only examined the question of control over the option to determine whether an interest in land had been created. The court stated that even if the rule applied, it was justified in intervening as the application judge's conclusion was unreasonable.

Auciello v. Mahadeo, 2016 ONCA 414

[Hourigan J.A.]

Counsel:

Vito Auciello, in person

Jeremy Opolsky, duty counsel

Leigh Youd, for the respondents Gail Mahadeo and Klein & Schonblum Associates

Joseph Juda, for the respondents Fred Godlberg, David Wagman, Jeffery Wagman, Ronni Fingold, Arnold Bobkin and Forest Hill Real Estate Inc.

Murray Stieber for the respondents Jan Perkins, McLarens Canada and Granite Claims Solutions

Keywords: Civil Procedure, Extension of Time

Facts:

The appellant's action arises out of his purchase of property in trust for Network Cash Mart Ltd., a company he owned. He argues that the real estate brokerage involved in the transaction, the Forest Hill Defendants, acted negligently in failing to insert a clause in the agreement of purchase and sale that required the property to be transferred as two separate lots.

In 2010, the appellant commenced an action in the Superior Court of Justice against the Forest Hill Defendants for breach of contract, negligence, and breach of fiduciary duty and against the vendor of the property for breach of contract. The parties entered into a settlement in relation to both proceedings.

In December 2013, the appellant commenced a new action against the Forest Hill Defendants, their lawyers and their Errors and Omissions insurer. The appellant sued the defendants in deceit, conspiracy, bad faith, fraudulent misrepresentation or, in the alternative, negligent misrepresentation. He alleges that the defendants conspired to deceive him and the court by negotiating a settlement that was not in his interest.

In March 2015, the defendants were successful in striking the new statement claim under Rule 21, without leave to amend. The appellant was ordered to perfect his appeal but his filing was rejected by staff at the Court of Appeal because his factum exceeded 30 pages in length. The appellant was not given consent to extend the time to perfect his appeal.

Issue:

Whether the merits of the appeal are so limited that the justice of the case does not favour a short extension.

Holding: Extension Granted.

Reasoning:

The following five factors are relevant on motions to extend the time limit that applies to perfecting an appeal:

  1. Whether the appellant formed an intention to appeal within the relevant period;
  2. Length of, and explanation for delay;
  3. Prejudice to respondent;
  4. Merits of the appeal; and
  5. Whether the "justice of the case" requires it.

The overarching principle is that an extension should be granted if the justice of the case requires it. The failure to meet any one factor is not necessarily fatal because consideration must be given to all the factors in deciding whether the overall justice of the case requires that leave be granted. When considering the merits of the appeal, it is only with the view of determining whether the appeal has so little merit that the court could reasonably deny the important right of appeal. The merits of a proposed appeal can be decisive on a motion to extend the time for filing and must be so significant as to justify extending time even if other factors militate against adjusting time. Even where it is difficult to see the merits of a proposed appeal, a party is entitled to appeal and should not be deprived of that entitlement where there is no real prejudice to the other side.

The Court found that while the appeal is very weak, it is not entirely devoid of merit. The appellant has an arguable position that he should have been granted leave to amend in order to assert his new claims arising out of the settlement. The appellant clearly had an intention to appeal, the very short delay has been adequately explained and that there is no prejudice to the respondents. The Court granted an extension of time to file a factum but held that there is no basis to make an order permitting the appellant to file a factum longer than 30 pages.

Lepage(Re), 2016 ONCA 403

[Sharpe, Juriansz, Roberts JJ.A.]

Counsel:

Stephanie Lauriault and Pierre-Paul Trottier, for the Attorney General of Canada

Alden Christian, for Raymond Lepage

Keith MacLaren, for the Trustee

Keywords: Bankruptcy and Insolvency, Bankruptcy and Insolvency Act, Promissory Estoppel

Facts:

In 2010, the Trustee appraised the residence of Raymond Lepage, the bankrupt, and determined that there was no equity in the home. The Trustee apparently made representations to LePage that it would disclaim the property, but it never did. Canada Revenue Agency, the sole unsecured creditor, did not dispute the valuation in 2010. However, in 2015, when the Trustee filed its report regarding LePage's application for discharge, CRA filed a report maintaining that there had been a significant increase to the equity in the property. The motion judge found that this after-acquired property vested in the estate, to the benefit of the creditors (ie. CRA). However, the motion judge also found that the representations made by the Trustee that it would disclaim the property, were relied upon by Lepage to pay his mortgage, property taxes, and insurance for several years, gave rise to promissory estoppel, thereby precluding the Trustee from claiming the entire increase in value of the equity. CRA appealed.

Issues:

Did Lepage detrimentally rely on the representations made by the Trustee, thereby giving rise to promissory estoppel?

Holding: Appeal allowed.

Reasoning:

No. The motion judge erred by failing to apply the provisions of ss. 67, 68 and 71 of the BIA to Lepage's surplus income, thereby allowing Lepage to retain the after-acquired equity in his house. During the period that Lepage was an undischarged bankrupt, he was not entitled to retain any assets acquired after his bankruptcy – those assets were vested in the Trustee for the benefit of Lepage's creditors. Under the BIA, Lepage was only entitled to keep the portion of his income that he used as reasonable living expenses. Having claimed his mortgage payments as reasonable living expenses in his monthly statements, Lepage was not entitled to be reimbursed for those payments or to have them treated as anything other than after-acquired property that vested in the trustee.

SHORT CIVIL ENDORSEMENTS

Northern Bruce Peninsula ( Municipality) v Kerry, 2016 ONCA 392

[ Rouleau, Brown and Huscroft JJ.A]

Counsel:

M. Miller, for the appellant

No one appearing for the respondents

Keywords: Appeal Book Endorsement, Service, Order for Payment

Business Development Bank of Canada v Aventura II Properties Inc., 2016 ONCA 408

[Feldman, Rouleau and Huscroft JJ. A.]

Counsel:

S. N. Zeitz, for the moving parties, R. Druckmann and J. Myara

C. Francis, for the respondent, Duca Financial Services Credit Union Ltd.

K. Preston, for the respondent, Receiver, Pollard & Associates Inc.

Keywords: Endorsement, Bankruptcy and Insolvency Act, s.193(e), Judicial Review, Courts of Justice Act, s.7(5)

ONTARIO REVIEW BOARD DECISIONS

Kalra (Re), 2016 ONCA 390

[Weiler, Simmons and Epstein JJ.A.]

Counsel:

M. McMahon, for the appellant

M. Fawcett, for the Attorney General of Ontario

Keywords: Endorsement, Ontario Review Board, Criminal Law, Not Criminally Responsible, Conditional Discharge, Significant Threat, Schizophrenia, Refusal of Treatment, Criminal Code s.627.55, R. v. Coles 2007 ONCA 806

CRIMINAL DECISIONS

R. v. Mills, 2016 ONCA 391

[ Feldman, Simmons and Pepall JJ.A.]

Counsel:

B. C. Mills, acting in person

B. Snell, duty counsel

H. Leibovich, for the respondent

Keywords: Endorsement, Criminal Law, Sentencing, Criminal Code s.109(3), Lifetime Weapons Ban, Definition of "Violence Against a Person...Threatened", Breaking and Entering

R. v. Pino, 2016 ONCA 389

[Laskin, Tulloch and Pardu JJ.A}

Counsel

H. L. Krongold, for the appellant

J. North, for the respondent

Keywords: Criminal Law, Trafficking in Marijuana, Charter of Rights and Freedoms, s.8, Unreasonable Search and Seizure, s.10(b), Right to Counsel, s.24(2), Exclusion of Evidence, Seriousness of Breach, Appeal Allowed

R. v. Cumor, 2016 ONCA 410

[Laskin, Gillese and Roberts JJ.A.]

Counsel:

D. Quayat and L. Rayner, for the appellant

B. Reitz, for the respondent

Keywords: Endorsement, Criminal Law, Trafficking in Cocaine, Confidential Informants, Production Order, Text Messages, Reasonable and Probable Grounds for Arrest

R v. Marton, 2016 ONCA 401

[Hoy A.C.J.O.]

Counsel:

K. Papadopoulos, for the applicant

No one appearing for the respondent

Keywords: Endorsement, Criminal Law, Dangerous Opereation of A Motor Vehicle Order Dispensing With Notice, Substituted Service, Extension of Time for Service, Criminal Code s.815(2), s.249(1)(a)

R. v. Mullins, 2016 ONCA 415

[Watt, Tulloch and Huscroft JJ.A.]

Counsel:

M. Mullins, acting in person

E. Chozik, duty counsel

K. Papadopoulos, for the respondent

Keywords: Endorsement, Criminal Law, Sexual Assault, Administering a Stupefying Drug, Sentencing, Gladue, Appeal Dismissed

R. v. Dyce, 2016 ONCA 397

[Watt J.A.]

Counsel:

W. Dyce, acting in person

Lorna Bolton, for the respondent

Keywords: Endorsement, Criminal Law, Sexual Assault, Sexual Assault with a Weapon, Application for Release, Material Change, R. v. Baltovich (2000), 144 C.C.C (3d) 233 (Ont. C.A.), Decision Tree, Jury Instruction, Application Dismissed

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Authors
John Polyzogopoulos
Events from this Firm
19 Jan 2017, Speaking Engagement, Toronto, Canada

Andrea Rush will be speaking at this year's 21st Annual Intellectual Property Law: The Year in Review. Her presentation is entitled, 'Ethical Considerations in the Management of a Global IP Practice'.

19 Jan 2017, Speaking Engagement, New Orleans, United States

Our Partner, Chris McKibbin, will be speaking at the ABA Fidelity and Surety Law Committee's Midwinter Meeting in New Orleans, Louisiana on January 19, 2017. This year’s Fidelity Program, Master Class: Enhancing The Fidelity Bond Professional’s Toolbox, acts as a “prequel” to the 2016 Midwinter Meeting’s presentation on the mediation of a fidelity claim.

8 Mar 2017, Speaking Engagement, Toronto, Canada

Bob Potts has been invited to present at the 2017 edition of the Osgoode Certificate in Fundamentals of Aboriginal Law.

 
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