Canada: Court Of Appeal Summaries (November 21-25, 2016)

Last Updated: November 29 2016
Article by John Polyzogopoulos

Good Afternoon.

Below are the summaries for this week's civil decisions of the Court of Appeal.

It was a fairly uneventful week, the most substantive decision being a family law case on the issue of variation of spousal support arising out of a material change in circumstances. The other cases mainly dealt with procedural issues (consolidation of applications under the Substitute Decisions Act, adjournments, summary judgment, and applications under Rule 14.05).

Enjoy the weekend.

CIVIL DECISIONS:

Berger v. Berger, 2016 ONCA 884

[Weiler, Watt and Huscroft JJ.A.]

Counsel:

S.M. Grant and E. S. Garbe, for the appellant
M. G. Michaels, P. J. Burman and L. C. A. Klassen, for the respondent

Keywords: Family Law, Divorce Act, Separation Agreement, Spousal Support, Variation, Material Change in Circumstances, Spousal Support Advisory Guidelines

Facts:

The appellant, Stanley, and the respondent, Sandra, were married for twelve years and had an adopted daughter. Sandra left her position as a legal assistant in the workforce to become a full time homemaker. During the marriage, Stanley gave Sandra an allowance of $3,800 a month in addition to paying ongoing expenses related to the home and other expenses.

In November 2009 the parties separated. In July 2011, the parties entered into a Partial Separation Agreement in which Stanley agreed to pay periodic spousal support of $4,000 per month which he did until November 2012. On October 22, 2012, Stanley's employment was terminated.

In January 2014, Sandra issued her application seeking retroactive spousal support to July 1, 2013, on the basis that Stanley's re-employment (he had found a new job) represented a material change under the Agreement. In addition, Sandra submitted that their daughter was no longer a child of the marriage for whom Stanley was obligated to pay support as she was over 18 and had dropped out of her hospitality course at George Brown College in December 2013.

THE TRIAL JUDGE'S SPOUSAL SUPPORT JUDGMENTS

(1) Judgment of February 5, 2015

The trial judge ultimately decided to issue a partial judgment on the issue of whether Sandra had proven a material change of circumstances so that the court could deal with entitlement and provide for support to flow until the required information was received. She also concluded that the termination of support was based on the factual situation at the time and that any spousal support claimed in the future "would have to be considered in accordance with the terms of the Agreement and those terms must be in keeping with the aims of the Divorce Act, section 15.2(6)."

The trial judge held that there was a material change in Sandra's circumstances on two bases: 1) Stanley's new employment and 2) the fact that their daughter was 19, had left college to pursue a volunteer placement abroad in Finland, and was no longer a child of the marriage. The trial judge addressed Stanley's submission that his new employment was not a change of circumstances under the terms of the Separation Agreement. The trial judge held that the paragraph did not mean that Stanley had to have a job minus any uncertainty before spousal support became payable. Having found a material change of circumstance both respecting Sandra's income and the fact the daughter was no longer a child of the marriage, the trial judge considered Sandra's claim for support.

Having found that Stanley had the ability to pay spousal support on the basis of "constant income" since obtaining his job in 2013, the trial judge found his annual income to be $152,000 based on his 2013 Notice of Assessment. In relation to quantum, the trial judge found no reason to depart from the Spousal Support Advisory Guidelines ("SSAGs"), and ordered support of $5,400 per month retroactive to July 1, 2013.

(2) Judgment of November 26, 2015

The trial judge held that the only issue the court had before it was the new quantum that would flow from Sandra's enhanced income and that Stanley's additional concerns were not part of the evidentiary base before the court from the trial. The trial judge continued that any future changes, other than the applicant/wife's income improvement as noted in the trial and clarified by affidavit evidence, cannot be a part of this court's decision as the evidence was not tested in the trial. Such concerns would be the subject of a Motion to Change.

Issue:

  1. Did the trial judge fail to consider all s. 15.2(4) factors of the Divorce Act?
  2. Did the trial judge err in interpreting the terms of the parties' Final Separation Agreement and in finding that there was a material change of circumstances?
  3. Did the trial judge err in considering only Sandra's affidavit evidence respecting her income after turning 65?
  4. Did the trial judge misapprehend evidence, otherwise err in her appreciation of Sandra's needs and means, or err in adhering to the SSAG quantum of spousal support?

Holding

Appeal dismissed.

Reasoning:

(1) No. The trial judge is an experienced judge and can be expected to know the law. As this was a lengthy marriage during which the wife assumed a traditional role of homemaker and mother for much of the time, the jurisprudence holds that she is likely, from that fact alone, to be economically disadvantaged.

Read as a whole, the trial judge's reasons do not disclose any palpable and overriding error respecting her approach. The reasons are responsive to the positions taken by the parties at trial, particularly Stanley's position, maintained on appeal, that Sandra is not entitled to any support under the terms of the Separation Agreement nor does Sandra need support. The basis for the trial judge's award of support was that Sandra needed support and Stanley had the ability to pay.

Stanley submits that the trial judge did not take into consideration Sandra's means and ability to earn income. The Court agreed that an income disparity post-separation does not mean that the payee spouse is automatically entitled to support. However, the submission that the trial judge did not take into consideration Sandra's means and ability to earn income or otherwise consider the requirements in the Divorce Act is not supported by a careful reading of the trial judge's reasons. The trial judge considered the requirement that support should recognize the economic advantages and disadvantages arising from the marriage breakdown. She held at para. 62 of her reasons that Sandra's financial situation stemmed from the breakup of the marriage. As required by s. 15.2(4), the trial judge considered the length of time the spouses cohabited; their functions during cohabitation; and the arrangements they had made in their Separation Agreement. She specifically considered the length of time the spouses were married, the fact Sandra was a stay-at-home mother over the years, the parties' Separation Agreement and Sandra's age at the time of separation. The trial judge listed the requirements of s. 15.2(6), recognized Sandra had been out of the workforce for 14 years at the time of separation, the efforts she had made to become re-employed since separation, the condition of her health and how these factors affected Sandra's ability to become self-sufficient.

In addition, in her February 2015 judgment, the trial judge recognized the deficiency in the information she had concerning Sandra's means once she turned 65 and ordered Sandra to provide that information before making an order for indefinite support in her November 2015 judgment. Stanley takes issue with a comment by the trial judge that she was primarily concerned with the needs and means of the parties and submits that she did not give adequate consideration to Sandra's ability to become self-sufficient.

The trial judge considered Stanley's ability to pay and rejected his submission that his income was uncertain within the meaning of the Separation Agreement. She also considered Stanley's submissions respecting the support he was paying for his daughter. The court rejected Stanley's argument, that in making her order for support, the trial judge erred by failing to consider the factors she was required to consider under the Divorce Act or by considering only certain factors in isolation.

(2) No. Having regard to the standard of review pertaining to a trial judge's interpretation of a negotiated Agreement in the Supreme Court's decision in Sattva, the Court rejected Stanley's submissions. Even reviewing the Agreement on a standard of correctness, the Court not hold that the trial judge erred in her interpretation.

The trial judge was entitled to conclude that the Separation Agreement was not a bar to Sandra's application for support based on a change of circumstances because the Agreement:

  • acknowledged that Stanley had lost his job and had no employment income;
  • effected an equalization of property;
  • stipulated that the cessation of spousal support was subject to a future material change;
  • required Stanley to notify Sandra in the event he obtained future employment;
  • set out relevant considerations in determining if a material change had occurred and how the parties would notify one another of an alleged material change; and
  • lacked extensive releases of spousal support, unlike typical separation agreements.

Similarly, Stanley's argument that his continuing support of his daughter means that he does not have to support Sandra, must be rejected. The daughter turned 18 on August 2, 2013. Although she was enrolled in a full-time program of education from September to December 31, 2013, prior to going to Finland, the criteria for transitional support after that time are not met. As of the time of trial in December 2014, there was no evidence the daughter had returned to school. The trial judge did not err in concluding that the daughter was no longer a child of the marriage and that Sandra had no continuing obligation to support her.

(3) No. The Court said that given this appeal was heard in September 2016, it was within Stanley's power to show that he was prejudiced by the trial judge's refusal to consider his March 2015 affidavit that his income for 2015 would be reduced by seeking to have his 2015 T4 slip showing his income from employment or income tax return and notice of assessment admitted as fresh evidence. He has chosen not to do so. Thus, even if Stanley's argument that it was an error in principle for the trial judge to refuse to consider Stanley's affidavit was accepted, Stanley has not shown any prejudice from the alleged error. The court dismissed this ground of appeal.

(4)(a) Misapprehension of the evidence

No. Stanley submits that, in dismissing his submission that Sandra had used her capital extravagantly for accommodation, the trial judge was under the erroneous impression Sandra had purchased a house when in fact she was renting one. The Court agreed that paying rent is not an "investment" in real estate. However, a casual observer would have realized from looking at Sandra's financial statement that she was renting a house. The trial judge's point was that she could not determine on the evidence if Sandra's housing expenditure was the best use of her capital, but she found on the whole of the evidence that it was not excessive. There was evidence on which the trial judge could come to the conclusion she did and the Court rejected this argument.

In relation to the basis for support, Stanley quarrels with the trial judge's comment in para. 12 of her reasons that, "The evidence that would ground a compensatory support claim was not fully developed in the trial." He points out that any claim for compensatory spousal support was specifically withdrawn at trial. Reading the reasons as a whole the Court said it is clear that the trial judge did not award compensatory spousal support but support based on need. The trial judge's comment did not affect the basis on which she awarded support and is therefore of no consequence. The trial judge did erroneously state that both parties were represented at trial. Sandra was represented by a lawyer. Stanley, a lawyer, was self-represented. When the post-trial affidavits were filed, both were represented. While the trial judge erred in saying both parties were unrepresented, her error in this regard is not material.

(b) Calculation of interest

No. Stanley submits the trial judge erred in not attributing income to Sandra from her LIRA in calculating the amount of support she awarded in her February 2015 judgment. The appellant submits that a more realistic rate of interest is 5%. Stanley's submission is based on the 26th Actuarial Report on the CPP as of December 31, 2012 and was attached as Exhibit A to his affidavit of March 20, 2015, which estimated overall rates of return for 2013 through 2018 at approximately 5%.

At para. 5 of her continuing reasons, the trial judge held in relation to Sandra's rate of income from the fund, "Mr. Berger speculated that the numbers should be higher but the best evidence of the LIRA yield is the information Ms. Berger has received from the fund."

On November 11, 2009, the date of separation, the amount in the LIRA was worth $786,151.72. On Feb 5, 2015, it was worth $839,500. The annual rate of interest over this period of time to produce this amount is 1.26%. The Court also noted that the preferred rate used in "DivorceMate" lump sum calculations is the Long-term Government of Canada Real Return Bond Rate, which sets out the risk free rate of return adjusted for inflation. At the time of trial, it was 0.66%. The trial judge did not err in attributing 1% income on the LIRA.

Messmer v. Pilz, 2016 ONCA 893

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

Counsel:

P. E. Hurley, for the appellant
L. M. Kotze, for the respondent Arnold J. Messmer
N. D. George and Z. Flemming-Gianotti, for the respondent Karl Pilz

Keywords: Estates, Substitute Decisions Act, Powers of Attorney, Validity, Undue Influence, Civil Procedure, Applications, Consolidation

Facts:

Peter is the son of Karl and Cacilie Pilz. Cacilie died in 1997, after which Peter became the sole beneficiary in Karl's will as it existed at the time.

Karl suffered a severe stroke in December 2006, after which Peter closed his business and went to Belleville from Toronto to care for his father. At that time, Peter began exercising the power of attorney his father had executed in 1993.

Peter discovered that, in the years following Karl's stroke in late 2006, Karl had executed various powers of attorney, including two in favour of the Messmers – who were Karl's sister and brother-in-law. These powers of attorney also named the Messmers' son, Arnold, and his wife as substitute attorneys, should the Messmers choose not to exercise their power of attorney.

As a result, Peter commenced an application under the Substitute Decisions Act, 1992, (the "SDA") to be appointed guardian of the person and property for Karl and for a declaration that the only valid power of attorney for property was the one granted to him in 1993. That application was brought in June 2009 and named Karl and the Messmers as respondents.

The application was converted to an action. Following the referral of that application to a trial of an action, Karl commenced an action in his own name against Peter and the CIBC, in which he sought an accounting from Peter of his exercise of the power of attorney for property and damages from the CIBC. On February 2, 2011, the court ordered that the action be consolidated with Peter's application (the "pending proceedings").

In October 2014, Arnold, the Messmers' son, commenced an application (the "current application") seeking a declaration that a power of attorney granted to him on April 16, 2014 was the only valid power of attorney and that all prior powers of attorney were revoked. He also sought an order appointing him guardian of property for Karl.

In response to Arnold's application, Peter brought a motion to consolidate that application with the pending proceedings.

The application judge allowed Arnold's application and dismissed Peter's motion for consolidation. The judge also ordered Peter to pay substantial indemnity costs fixed at $18,000 for Arnold and $13,500 for Karl.

Issue:

  • (1) Did the application judge err in dismissing the motion for consolidation?
  • (2) Did the application judge err in granting a final judgment in the application?
  • (3) Did the application judge err in awarding costs on a substantial indemnity basis?

Holding:

Appeal allowed.

Reasoning:

(1) The application judge's decision is based on two broad premises, both of which are incorrect. Specifically, in the application judge's view: (1) Arnold's application was separate and unrelated to the pending proceedings; and (2) The only issue to be determined was Karl's legal capacity which, on the record before him, was clearly established by a report from an assessor.

In regards to the first incorrect premise, the record filed discloses that Arnold is not, in fact, a stranger to the pending proceedings. Not only is he the son of the respondents in the pending proceedings, he is the substitute attorney in the two powers of attorney granted to the Messmers that are at the heart of those proceedings.

In regards to the second incorrect premise, it is clear from the materials Peter filed from the pending proceedings that Peter's concern with the current application is not, strictly speaking, Karl's capacity to grant a power of attorney. Rather, Peter raises the same issues as were raised in the pending proceedings, that is, whether the power of attorney and will executed by Karl and put before the court by Arnold have been the product of undue influence or were signed in suspicious circumstances. Additionally, Peter raises the issue of whether he and not Arnold should be appointed guardian of property and of the person of Karl.

Therefore, the same critical issues are raised in both proceedings, so there is clear overlap favoring consolidation. To have required Peter to, in effect, litigate these issues in parallel proceedings would risk inconsistent decisions by the court in the two matters. Further, it would be a terrible waste of the resources of both the parties and the court. Consolidating the proceedings, to be followed by the imposition by the court of timelines, was clearly the appropriate route to follow.

(2) The application judge erred in granting a final judgment in the application. Although the rules provide that Arnold had a prima facie right to proceed by application, this does not mean that he had a right to have the matter determined at the application hearing. On an application, the court may direct a trial of an issue or convert the proceeding to an action, especially where there are facts in dispute. In the present case there were clearly facts in dispute and the most efficient disposition would have been to consolidate Arnold's application with the pending proceedings. The application judge's decision was therefore set aside and substituted for an order converting the application to an action, directing a trial of the issues and consolidating it with the pending proceedings.

(3) The cost order is to be set aside and substituted for an award of costs to Peter in any event of the cause.

Berkley Insurance Company v. Rob Piroli Construction Inc., 2016 ONCA 885

[Feldman, Lauwers and Miller JJ.A.]

Counsel:

S. Ingram, for the respondent
M. Shulgan, for the respondent

Keywords: Endorsement, Civil Procedure, Applications, Rules of Civil Procedure, Rule 14.05

Facts:

At issue was an undertaking to pay money as part of security for bonds in a construction contract. When the time came for the company to live up to its undertaking, it failed to do so and was in breach of that contract.

The appellant brought an application under rule 14.05 of the Rules of Civil Procedure seeking a mandatory order for the payment of money pursuant to an undertaking to pay. The application judge accepted the argument of the respondent that the application had to be dismissed on the ground that the application was not properly brought under rule 14.05 because the request for a mandatory order was not ancillary to a claim for relief.

Issue:

Did the application judge err in holding that the application was not properly brought under Rule 14?

Holding:

Appeal allowed.

Reasoning:

Yes. The application had been properly founded under subrule 14.05(3)(h), no material facts in dispute, and under subrules 14.05(3)(d) and (g), the determination of rights following the interpretation of a contract and relief ancillary to those rights.

The interpretation of the contract had been conceded, which allowed the court to determine whether the right to a mandatory order flowed from the breach of contract.

Because the application was dismissed on procedural grounds, the application judge did not decide the substantive legal issue nor did he make the necessary findings of fact based on the record to do so. Hence, the Court set aside the decision and referred the matter back to the application judge for decision on the merits based on the record as it exists.

L'Image Enterprises v. 2255816 Ontario Inc. (Cucina Moda), 2016 ONCA 883

[Weiler, Rouleau and Roberts JJ.A.]

Counsel:

L. Hochberg, for the appellant
F. Poon, for the respondent

Keywords: Endorsement, Civil Procedure, Summary Judgment, Adjournments, Discretion

Facts:

The appellant argues that the motion judge erred in denying the request for a second adjournment of the respondent's motion for summary judgment.

On February 26, 2016, the matter had come to the court for hearing. Because the lawyer of record had advised that he was being removed as counsel of record, the motion was adjourned to April 11 and marked peremptory to the appellant Cucina Moda.

It was made clear to Mr. Sharqui, a director of the appellant who was present at the hearing, that by the return date he had to have either brought a motion for leave to represent the company himself or the corporation had to be represented by counsel. The motion judge also explained what peremptory to Cucina Moda meant in the circumstances.

When the matter returned for hearing on April 11, the judge refused the further request for an adjournment. He allowed Mr. Sharqui, however, to make submissions on the summary judgment motion. The appellant, through Mr. Sharqui, did not provide any evidence supporting its concerns about the amount claimed by the respondent. As a result, the motion judge granted summary judgment in favour of L'Image Enterprises for the amount claimed with

Issue:

Did the motion judge err in denying the request for a second adjournment of the respondent's motion for summary judgment?

Holding:

Appeal dismissed.

Reasoning:

The decision whether to grant an adjournment was discretionary and is owed deference on appeal. Here, despite being aware of the peremptory date, Cucina Moda did not take adequate steps to retain counsel before April 11. The case was not complex and, other than bald statements made in submissions by Mr. Sharqui, there was no evidence provided to contradict the allegations advanced in the statement of claim and the material filed on the motion.

There was no error in the way the motion judge exercised his discretion in denying the adjournment nor in his granting judgment given the absence of any material in support of Mr. Sharqui's submissions. There was no procedural or substantive unfairness.

Roy Wise Professional Corporation v. Colaco, 2016 ONCA 889

[Simmons, Pepall and Huscroft JJ.A.]

Counsel:

N. M. Colaco, in person
T. M. Gleason, B. Salsberg and J. R. S. Schachter, for the respondents

Keywords: Endorsement, Solicitor and Client, Unpaid Legal Fees, Solicitor Negligence

Facts:

This was an appeal from a judgment granting the respondent lawyer and respondent law firm ("the lawyers") judgment on a claim for unpaid legal fees and dismissing the appellant's counterclaim for solicitor negligence. The lawyers claimed $101,183.82 (the balance owing for legal fees).

The appellant's counterclaim for negligence related primarily to two matters. The first, an action against John Baranyai, was a claim that the lawyers failed to properly account for the proceeds of a settlement. The second was an action against Maroun and Cobra Hanna ("Hanna") in relation to which the appellant claimed that the lawyers failed to take proper steps to enforce a payment agreement relating to a prior judgment against Hanna and failed to advise the appellant of the requirement to make full and frank disclosure when applying for a Mareva injunction, leading to the appellant having to accept an improvident settlement.

The appellant disputed whether all the services performed were necessary to fulfill the terms of the retainer or of benefit to him and maintained that the lawyers had been negligent.

Concerning the main action, the trial judge reduced the lawyers' claim for legal fees, holding that some of the time spent was excessive, and applied a credit on account of fees charged at a higher hourly rate without the appellant's knowledge. The trial judge made findings of fact and credibility against the appellant and in favour of the lawyers, which led him to conclude that the services provided by the lawyers were necessary and of benefit to the appellant. The trial judge allowed the balance of the lawyers' claim.

With respect to the appellant's counterclaim for solicitors' negligence, the trial judge found that the lawyers had properly accounted for the disputed proceeds of the Baranyai settlement. The trial judge also found that the appellant settled the action underlying the Mareva injunction application for reasons unrelated to the lawyers.

Issue:

Whether the trial judge erred in his conclusions with respect to the claim for unpaid legal fees and counterclaim for negligence.

Holding:

Appeal dismissed.

Reasoning:

Based on the Court of Appeal's review of the record, the trial judge's findings of fact supported his conclusions and were fully supported by the evidence led at trial. There was no error in principle.

CIVIL ENDORSEMENTS:

1161267 Ontario Ltd. v. Mei, 2016 ONCA 881

[Feldman, Lauwers and Miller JJ.A.]

Counsel:

B. Salsberg, for the appellants
M. Woods, for the respondent

Keywords: Endorsement, Contracts, Interpretation, Summary Judgment

Carnevale v. Water Matrix Inc., 2016 ONCA 875

[Simmons, Pepall and Huscroft JJ.A]

Counsel:

D. Saverino, for the appellants
S. D. Thom, for the respondent

Keywords: Endorsement, Contracts, Settlements, Conditions

Parkhill Excavating Limited v. Royal & Sunalliance Insurance Company of Canada, 2016 ONCA 882

[LaForme, Hourigan and Pardu JJ.A.]

Counsel:

L. G. Theall and C. Dunbar, for the appellants, Parkhill Excavating Limited, Arthur Thomas Barker and Randy Arthur Barker Marcus
B. Snowden and S. A. Kamayah, for the respondent, Economical Mutual Insurance Company
M. M. O'Donnell, for the respondent, Royal & Sunalliance Insurance Company of Canada
E. Stock, for the respondent, Northbridge General Insurance Corporation

Keywords: Addendum, Insurance Law, Commercial General Liability, Defence Coverage

CRIMINAL AND CONSENT AND CAPACITY BOARD DECISIONS:

R. v. Kennedy, 2016 ONCA 879

[Feldman, Benotto and Miller JJ.A.]

Counsel:

P. Copeland, for the appellant, Joseph Kennedy
D. Stein, duty counsel for the appellant, Troy Wolfe
A. Baiasu, for the respondent

Keywords: Criminal Law, Robbery, Resisting a Peace Officer, Assault with an Imitation Handgun, Party Liability, Knowledge, Jury Instructions

R. v. Dawson (Publication Ban),2016 ONCA 880

[Feldman, Simmons, Pepall JJ.A.]

Counsel:

K. Dawson, acting in person
E. Chozik, appearing as duty counsel
L. Paine, for the respondent Crown

Keywords: Criminal Law, Sexual Interference, Sexual Assault, Unreasonable Verdict, Closing Address, Prejudice, Evidence, Propensity, Jury Instruction, Sentencing

R. v. Cesar, 2016 ONCA 890

[Blair, Tulloch and Pardu JJ.A.]

Counsel:

H. L. Krongold, for the appellant
T. Kozlowski, for the respondent

Keywords: Criminal Law, Murder, Manslaughter, Evidence, Hearsay, Out of Court Statements, Self-defence, Provocation

R. v. Charles, 2016 ONCA 892

[Gillese, Rouleau and Brown JJ.A.]

Counsel:

M. Dineen and G. Chan, for the appellant Carl Renous
C. F. Rippell, for the appellant Gregory Charles
J. Patton and K. Doherty, for the respondent

Keywords: Criminal Law, Attempted Murder, Unreasonable Verdict, Vetrovec Caution, Jury Charge

R. v. Morrell, 2016 ONCA 878

[MacPherson, Blair and Watt JJ.A.]

Counsel

R. C. Sheppard, for the appellant
L. Csele and M. Insanic, for the respondent

Keywords: Endorsement, Criminal Law, Possession of Drugs, Circumstantial Evidence, Knowledge, Primary Control

R. v. Wilson, 2016 ONCA 888

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

Counsel:

M. Salih, for the appellant
P. Cowle, for the respondent

Keywords: Endorsement, Criminal Law, DNA Order, Sentencing

R. v. Aharonov (Publicaton Ban), 2016 ONCA 894

[Sharpe, van Rensburg and Pardu JJ.A]

Counsel:

K. Bailey, for the appellant
H. Freeman, for the respondent

Keywords: Endorsement, Criminal Law, Child Pornography, Sentencing, Mitigating Factors

Moore (Re), 2016 ONCA 895

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

Counsel:

M. Conway, for the appellant
A. Cappell and J. Z. Balles, for the respondent

Keywords: Endorsement, Ontario Review Board, Detention Order, Threat to Public Safety

Coburn v. Wilkie, 2016 ONCA 876

[MacPherson, Blair and Watt JJ.A.]

Counsel:

A. Szigeti and J. Weiss, for the appellant
K. Naidoo, for the respondent

Keywords: Consent and Capacity Board, Health Care Consent Act 1996, Starson v. Swayze [2003] 1 S.C.R. 722

Wilson v. Ontario (Criminal Injuries Compensation Board), 2016 ONCA 886

[Strathy C.J.O.; Pardu and Brown JJ.A]

Counsel:

S. Gandhi, for the intervener

Keywords: Endorsement, Abandoned

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In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions