Canada: Ontario Court Of Appeal Summaries (June 26 – June 30, 2017)

Last Updated: July 13 2017
Article by John Polyzogopoulos

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

In Tracy v. Iran (Information and Security), the Court of Appeal upheld Ontario default judgments obtained against the State of Iran, which enforced judgments obtained in the US against Iran under that country's long-arm jurisdiction statute, the Foreign Sovereign Immunities Act. That Act permits claims to be brought in the US against foreign governments for state terrorist activities occurring outside US soil. The incident in question was the 1983 US marine barracks bombing in Beirut, Lebanon. The Justice for Victims of Terrorism Act, passed by our Parliament in 2012, was found to effectively do away with state immunity as provided for in the State Immunity Act for claims relating to terrorist activities. The Court held that the US court had jurisdiction to grant the judgments (ie. there was a real and substantial connection between the US court and subject matter of the dispute) because the US statute specifically conferred jurisdiction. It will be interesting to see if the Supreme Court hears the case.

There were a couple of condominium law decisions of note. In CIBC Mortgages Inc. v. York Condominium Corporation No. 385, the Court of Appeal emphasized the need to maintain the appropriate balance between the rights of the condominium corporations and mortgagees in respect of the preservation of condo liens. The court rejected the condominium corporation's interpretation of section 134(5) of the Condominium Act, 1998 which, if accepted, would have essentially allowed the corporation to indefinetly extend the three month time period within which to perfect liens for unpaid maintenance fees and costs payable pursuant to compliance orders. In York Region Standard Condominium Corporation No. 1253 v. Hashemi, the Court of Appeal increased the costs payable to the successful condominium corporation in a condominium dispute. Section 134(5) of the Act was found to provide a greater entitlement to costs than the regular costs regime under Rule 57 of the Rules of Civil Procedure.

Other topics covered include class proceedings, labour law, employment law, family law, adverse possession, agreements of purchase and sale of land, and stays pending appeal.

Table of Contents:

Civil Decisions

Heffernan v. Knights of Columbus, 2017 ONCA 534

  Keywords: Contracts, Settlements, Essential Terms

Pepper v. Brooker, 2017 ONCA 532

Keywords: Real Property, Adverse Possession, McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, Trespass

Weenen v. Biadi, 2017 ONCA 533

Keywords: Real Property, Nuisance, Strict Liability, Rylands v. Fletcher [1868] UKHL 1 (H.L.), (1868) L.R. 3 H.L. 330, Negligence, General Damages, Punitive Damages

Patel v. Harriott, 2017 ONCA 538

Keywords: Contracts, Agreements of Purchase and Sale of Land, Specific Performance

Cora Franchise Group Inc. v. Watters, 2017 ONCA 35

Keywords: Civil Procedure, Stay Pending Appeal, Supreme Court Act, R.S.C. 1985, c. S-26, s 65.1,  Iroquois Falls Power Corp. v Ontario Electricity Financial Corp., 2016 ONCA 616, Contracts, Guarantees, Franchise Law, Franchise Agreements

Nagribianko v. Select Wine Merchants Ltd., 2017 ONCA 540

Keywords: Employment Law, Wrongful Dismissal, Probationary Period, Mison v. Bank of Nova Scotia (1994), 6 C.C.E.L. (2d) 146 (Ont. Ct. (Gen. Div.)), Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Employment Standards Act, 2000, S.O. 2000, c. 41, Contracts, Interpretation, Salah v. Timothy's Coffees of the World Inc., 2010 ONCA 673, 2010 O.A.C. 279

Tisi v. St. Amand, 2017 ONCA 539

Keywords: Civil Procedure, Stay Pending Appeal, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Certificates of Pending Litigation, Contracts, Agreements of Purchase and Sale of Land, Specific Performance, Uniqueness

Velgakis v. Servings, 2017 ONCA 541

Keywords: Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Appropriateness of Proceedings, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, 407 ETR Concession Company Limited v. Day, 403 D.L.R. (4th) 485, Presidential MSH Corporation v. Marr Foster & Co. LL, 2017 ONCA 325

CIBC Mortgages Inc. v. York Condominium Corporation No. 385, 2017 ONCA 542

Keywords: Real Property, Condominiums, Compliance Orders, Common Expenses, Liens, Preservation, Condominium Act, 1998, S.O. 1998, c. 19, ss 85, 86, 134, Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc., [2005] 253 D.L.R. (4th) 656, Toronto Standard Condominium Corporation No. 1908 v. Stefco Plumbing & Mechanical Contracting Inc., 2014 ONCA 696, 377 D.L.R. (4th) 369

Barber v. Magee, 2017 ONCA 558

Keywords: Family Law, Presumption of Advancement, Gifts, Presumption of Resulting Trust, Pre-Judgment Interest

New Solutions Financial Corporation (Re), 2017 ONCA 553

Keywords: Bankruptcy and Insolvency, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, Leave to Appeal

Paradigm Quest Inc. v. McInroy, 2017 ONCA 547

Keywords: Civil Procedure, Appeals, Interlocutory or Final Orders, Jurisdiction

Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2017 ONCA 556

Keywords: Civil Procedure, Appeals, Security for Costs

Total Mechanical Systems Limited v. Sheet Metal Workers' International Association, Local 30, 2017 ONCA 559

Keywords: Labour Law, Collective Agreements, Voluntary Recognition Agreements, Bhaduria v. Toronto Board of Education, [1999] 173 D.L.R. (4th) 382 (Ont. C.A.), Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Abuse of Process, Rules of Civil Procedure, Rule 21

Yormak v. Arvai, 2017 ONCA 550

Keywords: Contracts, Solicitor and Client, Referral Fees, Rules of Professional Conduct, r. 2.08(7)

Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2017 ONCA 555

Keywords: Civil Procedure, Class Proceedings, Appeals, Motions to Quash, Jurisdiction, Interlocutory or Final Orders, Pleadings, Amendments

Bakshi v. Global Credit & Collection Inc., 2017 ONCA 0548

Keywords: Contracts, Employment Law, Class Proceedings, Summary Judgment

Tracy v. Iran (Information and Security), 2017 ONCA 549 

Keywords: Private International Law, Conflict of Laws, Enforcement of Foreign Judgments, Jurisdiction, Real and Substantial Connection, Beals v. Saldanha, 2003 SCC 72, [2003] 3 SCR 416, State Immunity, Justice for Victims of Terrorism Act, S.C. 2012, c. 1, s 4(5), State Immunity Act, R.S.C 1985, c. S-18, s. 6.1(2), 12

Vanier v. Vanier, 2017 ONCA 561

Keywords: Wills and Estates, Powers of Attorney for Property, Substitute Decisions Act, 1992, S.O. 1992, c. 30, New Issues on Appeal, Undue Influence,  Kaiman v. Graham, 2009 ONCA 77

York Region Standard Condominium Corporation No. 1253 v. Hashemi, 2017 ONCA 557

Keywords: Real Property, Condominiums, Damages, Mitigation, Full Indemnity Costs, Condominium Act, 1998, S.O. 1998, c.19, s. 134(5), Rules of Civil Procedure, r. 57, Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc. (2005), 253 D.L.R. (4th) 656 (Ont. C.A), Boucher v. Public Accountants Council (Ontario) (2004),71 O.R. (3d) 291 (C.A.)

Civil Decisions

Heffernan v. Knights of Columbus, 2017 ONCA 534

[Epstein, Hourigan and Paciocco JJ.A.]

Counsel:

P. Morgan, for the appellant

J. Lefebvre, for the respondents

Keywords: Contracts, Settlements, Essential Terms

Facts:

The appellant sued the Ontario respondents and two related American parties as a consequence of his suspension from a charitable fraternal benefits organization. The parties then engaged in settlement discussions. The motion judge found that the appellant and the respondent entered into a binding agreement to resolve the litigation. However, the appellant claimed there was only an agreement in principle and that the parties did not finalize said agreement by the agreed upon deadline.

As such, the appellant is appealing the motion judge's decision.

Issues:

(1) Did the motion judge err in finding that the parties entered into a binding agreement to resolve the litigation?

Holding: Appeal dismissed.

Reasoning:

(1) No. There was ample evidence supporting a conclusion that the parties had reached a settlement agreement. The parties agreed upon the agreement's essential particulars, and the Ontario respondents provided settlement monies to their lawyer. Furthermore, the form of the release that the appellant's counsel requested to be included in any agreement had already been executed by some of the Ontario respondents before the appellant purported to terminate the agreement.

There was no deadline for completion of the terms of the settlement in any of the settlement documents, or the correspondence among counsel. The appellant could have insisted on its inclusion in the terms of the agreement. However, the appellant did not do this. Accordingly, there was no basis for the appellant to resile from the agreement based on a failure to meet this artificial deadline.

Pepper v. Brooker, 2017 ONCA 532

[Epstein, Benotto and Trotter JJ.A.]

Counsel:

B. Yellin, for the appellant

P. Quinlan, for the respondent 

Keywords: Real Property, Adverse Possession, McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, Trespass

Facts:

This appeal arises from a boundary dispute between two cottage owners. The appellant sued the respondents for trespass because he believed that they had built part of a road on his property. The respondents then claimed title under adverse possession. Both actions were tried together. The appellant's claim was dismissed, and the respondents succeeded in obtaining title to roughly 3,400 square feet of the appellant's property.

The appellant now appeals on the basis that the claim for adverse possession ought to have failed because the respondents did not prove that they had excluded him from the disputed lands. Furthermore, the appellant argues that the trial judge erred in dismissing his action and that costs should not have been awarded on a substantial indemnity basis.

The trial judge found that both the appellant and respondents were mutually mistaken about the location of the property line. In his reasons, the trial judge relied heavily on the court in Teis v. Ancaster (Town), 1997 35 OR (3d) 216 (CA) to conclude that the mutual mistake meant that the respondents intended to occupy part of the appellant's property and to exclude the appellant from it.

Issues:

(1) Did the respondents establish that they effectively excluded the appellant from the disputed lands?

(2) Did the trial judge err in dismissing the appellant's claim in trespass?

(3) Did the trial judge err in awarding costs on a substantial indemnity basis?

Holding: Appeal allowed.

Reasoning:

(1) No. The elements of adverse possession were stated in McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, 333 OAC 381, and are as follows:

a) actual possession of the lands in question,
b) an intention of excluding the true owner from possession, and
c) effectively excluding the true owner from possession.

While the trial judge found that the respondents had intended to exclude the appellant, he did not find that they effectively excluded him. In this case, the evidence suggested that the respondents did not effectively exclude the appellant from the disputed part of his property. No one, including the appellant, was prevented from using the disputed lands, and this ought to have led the trial judge to conclude that the respondents failed to establish an intention to exclude.

Even if an intention to exclude was found, the respondents would have still failed in achieving an effective exclusion from the property, which is necessary if an adverse possession claim is to succeed. This is true even when the case is one of mutual mistake, as found by the court in Shennan v. Szewczyk, 2010 ONCA 679, 96 RPR (4th) 190.

Therefore, without a finding of effective exclusion, it was an error of law for the trial judge to allow the respondent's adverse possession claim.

(2) Yes. The trial judge dismissed the trespass action because of his findings on the adverse possession claim. In light of the above conclusion on how the trial judge's adverse possession ruling was an error in law, his findings on trespass cannot stand. However, there was no basis to interfere with the trial judge's conclusion that the appellant had suffered no damages as a result of any trespass and the appellant abandoned his claim to damages in any event. Accordingly, no damages for trespass were awarded.

(3) Yes. Since the appellant was successful on the appeal, the trial judge's cost award against the appellant must be set aside. Instead, the appellant is to be awarded costs of the proceeding below and the appeal.


Weenen v. Biadi, 2017 ONCA 533

[Epstein, Hourigan and Paciocco JJ.A.]

Counsel:

J. Montgomery, for the appellant

J. Lefebvre, for the respondents

Keywords: Real Property, Nuisance, Strict Liability, Rylands v. Fletcher [1868] UKHL 1 (H.L.), (1868) L.R. 3 H.L. 330, Negligence, General Damages, Punitive Damages

Facts:

The appellant and the respondent own neighbouring rural properties. Shortly after buying his property, the appellant began adding fill to his property, in order to permit it to be used for farming. The respondent claimed that the appellant's actions caused flooding on his land and brought this action for damages based on negligence, nuisance, and under the strict liability doctrine of Rylands v. Fletcher [1868] UKHL 1 (H.L.), (1868) L.R. 3 H.L. 330.

The trial judge held the appellant liable to the respondent for damages based on negligence, nuisance, and under the strict liability doctrine of Rylands v. Fletcher. In addition to making mandatory orders regarding the appellant's property, the trial judge ordered the appellant to pay the respondent damages totaling $390,000.

The appellant challenges only the trial judge's assessment of general damages ($250,000) and punitive damages ($125,000). The appellant argues that the award of general damages is out of proportion to the magnitude of the harm, and with the range of awards in other cases as to be "palpably incorrect". The appellant submits that the findings that informed the trial judge's decision to award punitive damages were not supported by the evidence. The appellant further contends that his conduct does not meet the test for punitive damages. Finally, even if warranted, the award of punitive damages is so far out of any reasonable range that it calls for appellate intervention.

Issues:

(1) Did the trial judge err in his assessment of general damages?

(2) Did the trial judge err in his assessment of punitive damages?

Holding: Appeal dismissed.

Reasoning:

(1) No. In considering the claim for general damages, the trial judge found that the appellant's conduct had caused the respondent "significant and prolonged harm including distress, frustration, anxiety, and loss of the reasonable use and enjoyment of his home for over 12 years". The Court of Appeal did not interfere with general damages because the appellant did not challenge the trial judge's findings.

(2) No. The trial record shows the appellant to have, for over a decade, repeatedly taken steps designed to increase the value of his property knowing the harm these steps were causing to the respondent's property and to the respondent, personally. The appellant's conduct could be described as "high-handed, malicious, arbitrary, and highly reprehensible that departs to a marked degree from the ordinary standards of decent behavior". In the circumstances of this case, particularly given the length of time that the appellant conducted himself in this fashion, an award that addresses the issue of deterrence was clearly warranted.


Patel v. Harriott, 2017 ONCA 538

[Hoy A.C.J.O., van Rensburg and Roberts JJ.A.]

Counsel:

L. Robinson, for the appellants

T. Courtis, for the respondents

Keywords: Contracts, Agreements of Purchase and Sale of Land, Specific Performance

Facts:

The application judge determined that there was a binding agreement for the purchase and sale of the appellants' Brampton home and ordered specific performance of the agreement.

Issues:

(1) Did the application judge err in concluding it was appropriate for this matter to be heard by way of application?

(2) Did the application judge err in finding there was a binding agreement?

(3) Did the application judge err in finding that the appellants' acceptance of the respondents' offer amounted to a counter-offer?

Holding: Appeal dismissed.

Reasoning:

(1) No. The Court held the application judge was correct in finding that although there was a dispute about when the appellants had accepted the respondents' offer, that dispute did not affect his ability to determine the application.

(2) No. The Court held the application judge was correct in finding that whether or not the appellants accepted the respondents' offer after the time of expiry, the appellants had expressly signified they were prepared to enter into an agreement to sell their home by signing and returning the respondents' offer. Moreover, the Court found the appellants had proceeded with a manner consistent with a binding agreement having been concluded.

(3) No.


Cora Franchise Group Inc. v. Watters, 2017 ONCA 35

[Brown J.A. (In Chambers)]

Counsel:

M. Kropp, for the moving party

D. Ronde and A. Murphy, for the responding party

Keywords: Civil Procedure, Stay Pending Appeal, Supreme Court Act, R.S.C. 1985, c. S-26, s 65.1,  Iroquois Falls Power Corp. v Ontario Electricity Financial Corp., 2016 ONCA 616, Contracts, Guarantees, Franchise Law, Franchise Agreements

Facts:

The moving party, William Watters, sought leave to appeal an order of the Ontario Court of Appeal to the Supreme Court of Canada. He moved under s. 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26 for an order staying the judgment of the motion judge and the order of the Court of Appeal pending the determination of his application for leave to appeal to the Supreme Court.

The action arose out of a personal guarantee given by the moving party with respect to a franchise agreement involving the responding party. The moving party was a director and shareholder of a numbered company that operated a restaurant franchise under a franchise agreement with the responding party, The Cora Franchise Group Inc ("Cora"). The moving party gave a personal guarantee of the franchisee's indebtedness to Cora.

The responding party sued the moving party on the guarantee, seeking payment of royalty fees, advertising contributions, and products and supplies owed by the franchisee. By way of defence, the moving party pleaded set-off because the responding party allegedly caused the loss of a potential sale of the franchise in 2013.

The responding party was successful on a motion for summary judgment on the guarantee and the moving party subsequently had his appeal to the Ontario Court of Appeal dismissed.

Issues:

(1) Is the moving party entitled to a stay pending an application for leave to appeal to the Supreme Court of Canada?

Holding: Motion dismissed.

Reasoning:

(1) No. The test for granting a stay pending an application for leave to appeal to the Supreme Court of Canada is well-established. The moving party must demonstrate that:

(i) there is a serious issue to be adjudicated on its proposed appeal, including that the appeal raises an issue of public or national importance;
(ii) it will suffer irreparable harm if the stay is not granted; and
(iii) the balance of convenience favours granting the stay.

There is no serious issue to be adjudicated on the proposed appeal. The moving party wants to argue three issues at the Supreme Court of Canada. Two of them are to do with whether his counterclaim was statute-barred, which is a largely fact-driven analysis under the Limitations Act, 2002, S.O. 2002, c. 24, Sch B. The final issue involves the interpretation and interplay of the guarantee and franchise agreement, and the effect of the respondent's conduct in respect to the potential sale of the franchise in 2013. The motion judge described the moving party's set-off defence as without merit, and the Ontario Court of Appeal agreed with the motion judge.

The moving party will not suffer irreparable harm if the stay is not granted. Only money is at stake for the moving party if the stay is not granted, and this generally does not constitute irreparable harm. Any assets that the moving party would need to use in order to satisfy the judgments ought to have been a foreseeable business risk when he signed up to be a personal guarantor.

The balance of convenience does not favour the moving party. The moving party, at the start of the litigation, admitted the debt owed to the respondent. The moving party even admitted that the franchisee made a deliberate decision to pay debt to other creditors over the responding party.

Accordingly, the moving party's motion for a stay pending leave to appeal to the Supreme Court of Canada was dismissed.

Nagribianko v. Select Wine Merchants Ltd., 2017 ONCA 540

[LaForme, Hourigan and Paciocco JJ.A.]

Counsel:

  H. Markowitz, for the appellant

G. MacKenzie and B. MacKenzie, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Probationary Period, Mison v. Bank of Nova Scotia (1994), 6 C.C.E.L. (2d) 146 (Ont. Ct. (Gen. Div.)), Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Employment Standards Act, 2000, S.O. 2000, c. 41, Contracts, Interpretation, Salah v. Timothy's Coffees of the World Inc., 2010 ONCA 673, 2010 O.A.C. 279

Facts:

The appellant appealed the decision of the Divisional Court, which had reversed the decision of a Small Claims Court judge who had held that the respondent had wrongfully terminated the appellant shortly before he had completed six months of work for the respondent.

The respondent agreed that it did not have just cause to terminate the appellant. The respondent's position was that it terminated the appellant as a probationary employee, having judged in good faith that the appellant was unsuitable for the job.

In finding that the termination was wrongful in the absence of just cause, the trial judge held that the respondent was not entitled to rely on the clause in the employment contract stating, "Probation...... Six months". The trial judge found that the probationary terms had not been spelled out as a result of the failure of the respondent to deliver a copy of the Employee Handbook that contained the terms the respondent intended to include.

The trial judge found that the appellant understood the term "probation" to mean no more than that he would be kept on as an employee if he performed well, and that he would not have taken the job had he known that he could be terminated without just cause and with only one week's pay in lieu of notice. The trial judge awarded the appellant damages equivalent to four months of salary and benefits in lieu of notice.

Issues:Did the trial judge err in failing to give effect to the probationary term of the contract?

(1) Did the trial judge err in failing to give effect to the probationary term of the contract?

(2) Did the trial judge err by interpreting the term "Probation...... Six months" according to the subjective understanding of the appellant?

Holding: Appeal dismissed.

Reasoning:

(1) Yes. The trial judge's decision to treat the term "Probation...... Six months" as having no meaning was wrong. The parties agreed to a probationary contract of employment, and the term "probation" was not ambiguous. The status of a probationary employee has acquired a clear meaning at common law. Unless the employment contract specifies otherwise, probationary status enables an employee to be terminated without notice during the probationary period if the employer makes a good faith determination that the employee is unsuitable for permanent employment, and provided the probationary employee was given a fair and reasonable opportunity to demonstrate their suitability: Mison v. Bank of Nova Scotia (1994), 6 C.C.E.L. (2d) 146 (Ont. Ct. (Gen. Div.)), at para. 43.

It is true that there is a presumption that an indefinite employment contract is terminable only on reasonable notice, however that presumption is overcome if the parties agree to a probationary period of employment: Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, at p. 999; Since it is not possible to contract out of the minimum notice standards provided for in the Employment Standards Act, 2000, S.O. 2000, c. 41 (the "ESA"), probationary employees are entitled to receive statutory notice, or pay in lieu of that notice. In this case, the required period of notice is one week, which the appellant received. Furthermore, the Court of Appeal noted that there was nothing in the appellant's employment contract purporting to oust the statutory notice requirements under the ESA.

(2) Yes. The Court of Appeal held that the Divisional Court was also correct in finding that the trial judge erred by interpreting the term "Probation...... Six months" according to the subjective understanding of the appellant, when contractual terms are to be interpreted based on an objective assessment of the intention of the parties: Salah v. Timothy's Coffees of the World Inc., 2010 ONCA 673, 2010 O.A.C. 279, at para 16.

Accordingly, the appeal was dismissed.

Tisi v. St. Amand, 2017 ONCA 539

[Brown J.A. (In Chambers)]

Counsel:

D. Schmuck, for the moving party

D. Macfarlane, for the responding party 

Keywords: Civil Procedure, Stay Pending Appeal, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Certificates of Pending Litigation, Contracts, Agreements of Purchase and Sale of Land, Specific Performance, Uniqueness

Facts:

The parties entered into an Agreement of Purchase and Sale (the "Agreement") for the purchase of a residential house by the appellant from the respondent. The parties disputed the validity and enforceability of the agreement and subsequently commenced applications as a result of their dispute. The applicant sought specific performance of the Agreement, with a claim for damages in lieu. The respondent sought a declaration the Agreement was null and void, together with an injunction prohibiting the appellant from encumbering title to the property. The appellant obtained and registered a certificate of pending litigation ("CPL") against the property prior to the hearing of the applications.

The application judge found the parties were not ad idem on the essential elements of the contract and declared that they did not enter into a valid agreement of purchase and sale. She ordered the respondent to return the $10,000 deposit to the appellant. The application judge also ordered the appellant to discharge the certificate of pending litigation ("CPL") she registered against the property, which the appellant did not do. Instead, the appellant filed a notice of appeal. She then moved for a stay pending appeal of para. 3 of the Judgment directing her to discharge the CPL.

Issues:

(1) Should there be a stay of proceedings?

Holding: Motion granted.

Reasoning:

(1) Yes. The over-arching principle established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 is that a court must decide whether the interests of justice call for a stay. The moving party must demonstrate that:

(i) there is a serious issue to be adjudicated on its proposed appeal;
(ii) it will suffer irreparable harm if the stay is not granted, and
(iii) the balance of convenience favours granting the stay.

Serious Question on Appeal

Although the grounds of appeal advanced by the appellant in her notice of appeal largely concerned questions of fact or mixed fact and law, the Court was satisfied that she met the low threshold for establishing a serious question for appeal.

Irreparable Harm

Generally, demonstrating irreparable harm requires the moving party to establish she will suffer a loss not quantifiable in monetary terms. The appellant sought specific performance of the Agreement or, in the alternative, damages in lieu thereof. Specific performance should not be granted as a matter of course absent evidence that the property is unique to the extent that its substitute would not be readily available. The house at issue was a custom-built one, making it unique. This satisfied this part of the test.

Balance of Convenience

The balance of convenience branch of the test requires a court to consider and balance the respective harm to each party from the grant or refusal of a stay.

The appellant filed evidence that the respondent was "wrapping things up" in Welland and moving further north in Ontario. She also filed the results of some title searches that disclose that the respondent sold three properties in the Niagara area during May 2017. This evidence may well support an inference that the respondent is wrapping up his business in the Niagara area, but it does not suggest he lacks assets in Ontario.

There was a lack of evidence about what prejudice, if any, the continued registration of the CPL caused the respondent. The respondent argued that the CPL placed an unfair burden on him by preventing the sale of the house and "accounting to his mortgagee and other creditors." While it was likely that the house would remain unsold as long as a CPL was registered against title, the respondent did not file any evidence about the current state of affairs regarding the house or the effect of the CPL on his business.

Accordingly, the appellant's motion for a stay pending appeal was granted.

Velgakis v. Servinis, 2017 ONCA 541

[LaForme, Hourigan and Paciocco JJ.A.]

Counsel:

M. Gibbs, for the appellants

B. Day, for the respondent

Keywords: Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Appropriateness of Proceedings, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, 407 ETR Concession Company Limited v. Day, 403 D.L.R. (4th) 485, Presidential MSH Corporation v. Marr Foster & Co. LL, 2017 ONCA 325

Facts:

The respondent felt his lower denture work was improperly done and needed to be fixed. He commenced an action in Small Claims Court for $25,000. The appellants filed a defence and issued a third party claim. The respondent then commenced this action for $100,000 for general damages and $50,000 for special damages in the Superior Court against the same parties, with the addition of one defendant.

The respondent moved to transfer the action from the Small Claims Court and/or consolidate the actions in the Superior Court. The appellants' motion for summary judgment on the basis the action was time-barred was dismissed. The appellants argued that the motion judge misinterpreted and misapplied the law relating to discoverability.

Issues:

(1) Did the motion judge err in concluding that the respondent's action was not time-barred?

Holding: Appeal dismissed.

Reasoning:

(1) No. Under s. 5 (1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the "Act"), a claim is discovered on the date the claimant knew, or ought to have known, the material facts giving rise to the claim, and that a proceeding would be an "appropriate" means to seek to remedy the claim. When an action is "appropriate" depends on the specific factual setting of each individual case: 407 ETR Concession Company Limited v. Day, 403 D.L.R. (4th) 485, at paras. 33-34.

Deciding whether legal action would be "appropriate" takes into account what a reasonable person with the abilities and in the circumstances of the plaintiff ought to have known — a modified objective test: Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325, at para. 18.

The Court of Appeal held that the motion judge correctly applied the modified objective test when it made three critical findings:

(i) It was appropriate for the respondent to make reasonable efforts to have his complaints regarding his dentures resolved on a consensual basis without quickly resorting to potential litigation.
(ii) It was appropriate for the respondent to rely on the appellants' agreement — indicating that repairs may be made at no additional fee — and pursue a consensual resolution of his complaints.
(iii) The first day on which a reasonable person in the respondent's circumstances ought to have known that a proceeding would be an appropriate means to seek to remedy this claim was the date the respondent's request to have his dentures repaired at no cost to him had been refused by the appellants.

The motion judge ultimately concluded the date of refusal by the appellants meant that the limitation period did not begin to run until then. The Court of Appeal found that the findings of the motion judge were amply supported by the evidence and were entirely reasonable.

Accordingly, the appeal was dismissed.

CIBC Mortgages Inc. v. York Condominium Corporation No. 385, 2017 ONCA 542

[Strathy C.J.O., Cronk and Pepall JJ.A.]

Counsel:

J. Fine and M. Dimakas, for the appellant

B. Frydenberg, for the respondents 

Keywords: Real Property, Condominiums, Compliance Orders, Common Expenses, Liens, Preservation, Condominium Act, 1998, S.O. 1998, c. 19, ss 85, 86, 134, Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc., [2005] 253 D.L.R. (4th) 656, Toronto Standard Condominium Corporation No. 1908 v. Stefco Plumbing & Mechanical Contracting Inc., 2014 ONCA 696, 377 D.L.R. (4th) 369

Facts:

The parties' primary dispute was whether the appellant's statutory lien under s. 85(1) of the Condominium Act, 1998, S.O. 1998, c. 19 (the "Act") against a particular unit in the condominium (the "Unit") regarding unpaid common expenses owing under s. 134(5) of the Act, lost priority over the respondent's first mortgage on the property because the appellant allegedly failed to register a lien certificate on time.

The Unit's owners granted a mortgage on the Unit to the respondent in January 2010. The appellant obtained a compliance order against one of the Unit's owners in February 2011. The order included a costs order, which the Unit owner did not pay. The appellant added these outstanding costs to the owner's existing outstanding costs. The appellant demanded payment from the owner in August 2011, which the owner did not pay. The appellant registered a certificate of lien in November 2011 and registered it in December 2011. The appellant commenced litigation seeking possession of the Unit against the Unit's owners in February 2013.

The appellant obtained possession of the Unit in November 2013. The Unit's owners defaulted on their mortgage in December 2013. The respondent commenced enforcement proceedings on the defaulted mortgage in May 2014. The Unit was sold in May 2014. The respondent and appellant agreed that the proceeds of the sale would be held in trust pending determination of entitlement to proceeds.

The appellant maintained that its statutory lien had priority over the respondent's first mortgage by reason of s. 85(1) of the Act, which reads:

If an owner defaults in the obligation to contribute to the common expenses, the corporation has a lien against the owner's unit and its appurtenant common interest for the unpaid amount together with all interest owing and all reasonable legal costs and reasonable expenses incurred by the corporation in connection with the collection or attempted collection of the unpaid amount.

Section 85(2) of the Act addresses the perfection of a lien arising under s. 85(1). It says:

The lien expires three months after the default that gave rise to the lien occurred unless the corporation within that time registers a certificate of lien in a form prescribed by the Minister.

Both parties applied for relief in the Superior Court of Justice. On its application, the appellant sought, among other things, declarations that its lien was "good and valid" and that the respondent was not entitled to any part of the Unit's sale proceeds. The respondent also claimed declaratory relief, including declarations that the appellant's lien was invalid and ought to be discharged and that the appellant's lien rights, if any, expired prior to registration of its lien certificate in December 2011. The respondent also sought an order requiring that the net sale proceeds, and certain other funds that it claimed had been wrongly deducted by the appellant's lawyers from the sale proceeds, be paid to it.

The application judge held that the respondent's lien expired prior to the registration of its lien certificate. In his view, the Unit's owner defaulted for the purpose of s. 85(2) of the Act on March 17, 2011, when the owner failed to comply with the Costs Order by March 16, 2011, as required. This default, he held, triggered the three-month perfection period under s. 85(2) of the Act. As the three-month period had run its course prior to the appellant's registration of its lien certificate on December 12, 2011, its lien lost its priority status, otherwise conferred by s. 86(1) of the Act, over the respondent's first mortgage.

The application judge dismissed the appellant's application and granted declarations that its certificate of lien was invalid and that its lien rights had expired prior to the registration of its lien certificate. He ordered that the appellant's lien certificate be discharged and that the funds held in trust by the appellant's lawyers from the Unit's sale, together with certain other funds described below, be paid to the respondent.

The appellant appealed the application judge's decision. It claimed that the application judge erred in his interpretation of s. 134(5) of the Act, leading him to further err in his determination of the commencement date for the three-month lien perfection period provided for under s. 85(2) of the Act. The appellant also sought leave to appeal from the application judge's costs ruling.

Section 134(5) of the Act provides for the recovery by a condominium corporation, as common expenses, of damages or costs awarded under a compliance order, plus any "additional actual costs to the corporation in obtaining the [compliance] order". The common expenses aggregated under s. 134(5) can trigger a s. 85(1) lien claim. It states:

If a corporation obtains an award of damages or costs in an order made against an owner or occupier of a unit, the damages or costs, together with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses for the unit and the corporation may specify a time for payment by the owner of the unit.

Issues:

(1) Did the appellant preserve the priority assigned to its statutory lien by s. 86(1) of the Act?

Holding: Appeal dismissed.

Reasoning:

(1) No. The Act does not seek to prefer the rights of a condominium corporation at the expense of the rights of an affected mortgagee. The purpose of the common expense provisions of the Act generally, and s. 134(5) specifically, is to provide a remedial mechanism for a condominium corporation to recover the damages or costs awarded in its favour under a compliance order, together with any Additional Actual Costs, directly from the unit owner whose conduct precipitated the compliance proceeding. However, this statutory objective must be achieved in a manner that balances the interests of all stakeholders, including those of non-defaulting unit owners and affected mortgagees.

Section 85(2) of the Act is concerned with the perfection of a statutory lien arising under s. 85(1). In order to preserve the priority of a s. 85(1) lien, s. 85(2) requires that a lien claimant must register a certificate of lien in prescribed form within three months after the unit owner's default that gave rise to the lien.

Default occurs when the payment is due but not made. In this case, default occurred for the purpose of s. 85(2) of the Act when payment was due under the Costs Order by March 16, 2011, and not made by March 17, 2011. The appellant did not register a certificate of its lien on title to the Unit until December 12, 2011, which is more than three months after the initial default. The appellant registered its lien too late.

Section 134(5) of the Act does not permit a condominium corporation to specify a time for payment of common expenses. This would effectively enlarge the lien perfection period after a default in payment has already occurred. Moreover, it would result in the condominium corporation having the unilateral ability to alter the deadline for perfecting its lien for a potentially unlimited amount of time.

Barber v. Magee, 2017 ONCA 558

[LaForme, Hourigan and Paciocco JJ.A.]

Counsel:

J. Bruggeman, for the appellant

M. Stangarone and S. Lein, for the respondent

Keywords: Family Law, Presumption of Advancement, Gifts, Presumption of Resulting Trust, Pre-Judgment Interest

Facts:

The appellant and the respondent agreed that the appellant's father advanced $90,414 and then $67,000 to the appellant, all of which was invested in the matrimonial home held in the appellant's name. If these advancements were loans, they are debts owed by the appellant, reducing his net family property. If they were gifts, they are included in the appellant's net family property. The appellant appeals the decision of the trial judge that these advancements were gifts.

Issues:

(1) Did the trial judge reverse the onus of proof and ignore the presumption of resulting trust?

(2) Did the trial judge err in finding that the advancements were gifts on the evidence before him?

(3) Did the trial judge err in awarding prejudgment interest during the period when the respondent occupied the home?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court found the trial judge had correctly stated the law of resulting trusts and had applied it correctly. The court found that the trial judge looked at the presence or absence of objective criteria that could help him characterize the payments. In doing so, he was not reversing the onus; the absence of indicia of a loan that one would reasonably expect to find suggested that the advancement was not a loan but a gift. The court held there was no error in the trial judge reasoning in this way.

(2) No. The court held the trial judge was entitled to accept the respondent's explanation for comments attributed to her, and her testimony, and to reject the evidence of the appellant and his father.

(3) No. The court held that prejudgment interest is "calculated from the date the cause of action arose," which in this case was the date of separation.

New Solutions Financial Corporation (Re), 2017 ONCA 553

[Sharpe, Lauwers and Miller JJ.A.]

Counsel:

C. Francis, for the appellants

N. Rabinovitch, for the respondents

Keywords: Bankruptcy and Insolvency, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, Leave to Appeal

Facts:

The responding parties, New Solutions Financial Corporation, New Solutions Financial (II) Corporation, New Solutions, New Solutions (III) Corporation, New Solutions (IV) Corporation and 2055596 Ontario Limited, sought and obtained protection under the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36  ("CCAA"). Their assets had been monetized and there was no intention to proceed with a restructuring plan.

The main remaining asset was a claim for professional negligence against the appellants, Feldstein & Associates LLP, and Warren Feldstein ("Feldstein"), the principal applicant's former auditor.

Feldstein sought leave to appeal the order of the CCAA judge, which had ordered the following:

i. extending the stay period from March 30, 2017 to June 30, 2017;
ii. approving the Monitor's 23rd report;
iii. declaring the litigation trustee, appointed by the court to pursue the litigation against the moving parties, is not in a conflict of interest; and
iv. staying the litigation against Feldstein until June 30, 2017.

Feldstein raises a number of proposed grounds of appeal:

1. that the pursuit of a lawsuit by an insolvent company on behalf of its
secured creditors does not fall within the purpose and scheme of the
CCAA;

2. that the CCAA judge ignored evidence of bad faith by the responding
parties and others involved in the proceeding;3. that it was inappropriate to make a declaratory order with respect to the

3. that it was inappropriate to make a declaratory order with respect to the
role of the litigation trustee.

Issues:

(1) Should leave to appeal the order of the CCAA judge be granted?

Holding: Appeal dismissed.

Reasoning:

(1) No. The Court of Appeal stated that the proposed appeal failed to meet the test for leave to appeal and leave to appeal must be denied. The Court stated that it is well-established that leave is granted sparingly in CCAA proceedings. The considerations on a leave application are whether:

i. The proposed appeal is prima facie meritorious or frivolous;
ii. The points on the proposed appeal are of significance to the practice;
iii. The points on the proposed appeal are of significance to the action; and
iv. The proposed appeal will unduly hinder the progress of the action.

The Court stated that the CCAA judge carefully considered all of the submissions made by Feldstein and provided cogent reasons for the order he made.

First, the Court stated that there is authority for the proposition that a CCAA stay may be extended for purposes other than effecting a restructuring and therefore, the CCAA judge did not err in granting a three-month extension of the stay in the circumstances of the case.  The Court also noted that the stay expired on June 30, 2017, so by the time an appeal could be heard on this issue, it would be moot.

Second, the Court stated that Feldstein raised objections to the conduct of the litigation trustee in response to the request for an extension of the stay and cannot complain that the CCAA judge ruled on that point.

Finally, the Court stated that the findings of the CCAA judge, including that the responding parties have acted in good faith and with due diligence and that the litigation trustee is acting in an appropriate manner, are essentially factual in nature and attract deference on appeal. Moreover, those findings do not have sufficient significance to the practice to warrant granting leave.

Paradigm Quest Inc. v. McInroy, 2017 ONCA 547

[Watt, Benotto and Roberts J.A.]

Counsel:

J.M. Butson and C. Internicola, for the appellant

T.P. McInroy, acting in person

Keywords: Civil Procedure, Appeals, Interlocutory or Final Orders, Jurisdiction

Facts:

This appeal is from summary judgment granting the appellants an order of possession of the respondent's property. The judgment was ordered to held in abeyance until September 15, 2017, on the condition that the respondent makes payments on his account of arrears owing to the appellant. If the respondent defaults, the order of possession in favour of the appellant is triggered.

The appellants appealed on the ground that the motion judge lacked jurisdiction to order that the judgment be held in abeyance and to impose terms.

Issues:

(1) Did the motion judge lack jurisdiction to order that the judgment be held in abeyance?

Holding: Appeal dismissed.

Reasoning:

(1) No. An order granting or refusing a stay of execution of a judgment is an interlocutory order from which there is no right of appeal to the Ontario Court of Appeal, as per the court in Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103, at para. 13. The appropriate court for this kind of appeal is the Divisional Court, with leave, under s. 19(1)(b) of the Courts of Justice Act.

Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2017 ONCA 556

[LaForme, Hourigan and Paciocco JJ.A.]

Counsel:

R.C. Harason, for the moving party

P.H. Griffin, for the responding party

Keywords: Civil Procedure, Appeals, Security for Costs

Facts:

Sharpe J.A., sitting as a chambers judge denied the moving party's request to order security for costs against the responding party. The security for costs sought was for the main action, the appeal in the main action and for the cross-appeal in the Divisional Court.  Sharpe J.A. declined to order security for costs because of: a) the delay in bringing the motion; b) the fact neither entitlement nor quantum of trial costs had been determined; c) the construction lien judgment in the responding party's favour; and d) the excessive amount claimed for the costs of the appeal. The moving party moved to have Sharpe J.A.'s order varied or set aside.

Issues:

(1) Should Sharpe J.A.'s judgment be varied or set aside?

Holding:

Motion dismissed.

Reasoning:

(1) No. A judge of the Court of Appeal has discretion to award security for costs of an appeal, as well as the costs of the underlying motion or trial.

Sharpe J.A. appreciated and applied the correct law and reached his conclusions on facts that were undisputed. Even if Sharpe J.A. had found that all the requirements had been met to satisfy an order of security for costs, he was still entitled to refuse it if he found the justice of the case required this. His decision that the justice of the case required a refusal of the order, and his reasons for it, were reasonable in all the circumstances.

Total Mechanical Systems Limited v. Sheet Metal Workers' International Association, Local 30, 2017 ONCA 559

[LaForme, Hourigan and Paciocco JJ.A.]

Counsel:

A. Rouben, for the appellant, Riccardo Lettieri
J. Heller, for the respondents

Keywords: Labour Law, Collective Agreements, Voluntary Recognition Agreements, Bhaduria v. Toronto Board of Education, [1999] 173 D.L.R. (4th) 382 (Ont. C.A.), Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Abuse of Process, Rules of Civil Procedure, Rule 21

Facts:

The appellant entered into a Voluntary Recognition Agreement (the VRA) on behalf of his wholly owned company with the respondent, Union. Since then, he has attempted to contest the validity of that agreement.

The first ground, asserted in response to a grievance by the Union before the Ontario Labour Relations Board (the OLRB) in October 2011, he was that the appelant was not of sound mind due to a health condition when he signed the VRA on behalf of his company. In April 2013, the Divisional Court denied a judicial review application of the Board's decision dismissing this ground.

Second, and while the OLRB proceedings were going on, the appellant launched an action in the Superior Court for damages in July 2011. Despite prior agreements to the contrary, the appellant noted the Union in default on February 28, 2012, which on consent, was set aside on May 25, 2012. On January 14, 2013, the Union was again noted in default. In December 2015, the corporate plaintiffs discontinued against the Union leaving only the appellant. Finally, on January 21, 2016, the appellant issued a Fresh as Amended Statement of Claim.

By order dated December 7, 2016, the Union was successful in obtaining an order that: (i) the default of January 13, 2013, was set aside; and (ii) the Fresh as Amended Statement of Claim dated January 21, 2016 was dismissed under r. 21.01 as disclosing no reasonable cause of action.

The motion judge concluded that, the "essential character of the issues in the matter was based on a determination of the validity of the VRA signed by the appellant on behalf of his corporations." The motion judge held that the OLRB, which had exclusive jurisdiction over the issue, made a judicial determination that the VRA was valid.

The appellant appealed the motion judge's order only in connection with the dismissal of his action. The essence of his complaint was that he was not personally a party to the collective agreement, and therefore he could attack the validity of it in a Superior Court action notwithstanding the OLRB's determinations. For that reason, he also claimed that the doctrines of res judicata and abuse of process did not apply.

Issues:

(1) Did the motion judge err in striking the Fresh as Amended Statement of Claim?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The motion judge correctly noted that all of the appellant's claims in the Fresh as Amended Statement of Claim were dependent on his assertion that he was not a party to the VRA because he had no capacity to execute the agreement and the Union representatives were aware of that.

In its October 2011 decision, the OLRB concluded that the VRA applied and there was no basis upon which the VRA should not be enforced as valid. This included a rejection of the appellant's assertion that he was unwell at the time of signing the agreement, and did not understand the nature and effect of what he was signing.

In its April 10, 2013 decision, the Divisional Court dismissed the application of the appellant for judicial review. In doing so, it found that the evidence before the Board was that at the time that the appellant signed the agreement, his brother was unaware of his incapacity; therefore, if his own brother was unaware of the problem, it stands to reason that the Union was not in a position to have either actual or constructive knowledge of the appellant's incapacity. Thus, the enforceability of the VRA and the effect of the appellant's health on its validity and enforceability have already been adjudicated upon.

The motion judge concluded that the OLRB properly had jurisdiction over the matter because the "essential character" of the claim arose from the VRA. The VRA is a collective agreement and its "interpretation, application, administration or violation is to be determined by an arbitrator": see Bhaduria v. Toronto Board of Education, [1999] 173 D.L.R. (4th) 382 (Ont. C.A.).

Furthermore, just as the motion judge held, the Court of Appeal agreed that the Fresh as Amended Statement of Claim amounted to an abuse of process. It very clearly read as simply another attempt to re-litigate decisions of the OLRB and the Divisional Court in another forum.

Accordingly, the appeal was dismissed.

Yormak v. Arvai, 2017 ONCA 550

[Watt, Benotto and Roberts J.J.A.]

Counsel:

S.R. Yormak, appearing in person

L.J. Crowley, for the respondents

Keywords: Contracts, Solicitor and Client, Referral Fees, Rules of Professional Conduct, r. 2.08(7)

Facts:

This appeal arose from a summary judgment that was granted in favour of the respondent dismissing the appellant's action. The appellant was seeking payment of a 15 percent referral fee in relation to a referral that the appellant gave to the respondent.

He submitted that the respondent breached his contractual obligations of good faith.

Issues:

(1) Did the motion judge err in granting summary judgement to the respondent?

Holding: Appeal dismissed.

Reasoning:

(1) No. As lawyers in good standing, the appellant and respondent are subject to the Rules of Professional Conduct (Rules). The Rules state under what was then r. 2.08(7), that a referral fee may only be paid by one lawyer to another if: (a) the fee is reasonable and does not increase the total amount of the fee charged to the client; and (b) the client is informed and consents.

The motion judge was correct in stating that the appellant`s requested referral fee did not comply with any of the requirements of r. 2.08(7). The client did not consent to the fee because it was unreasonable. There is no genuine issue requiring a trial with regards to determining the reasonableness of the referral fee.

Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2017 ONCA 555

[Hoy A.C.J.O., van Rensburg and Roberts JJ.A.]

Counsel:

R.B. Bell and B.N. Radnoff, for the appellants

B. van Niejenhuis and F. Schumann, for the respondents

Keywords: Civil Procedure, Class Proceedings, Appeals, Motions to Quash, Jurisdiction, Interlocutory or Final Orders, Pleadings, Amendments

Facts:

These appeals and motions to quash appeals arise in the context of related class actions being case managed by Patterson J. (the "case management judge"). The appellant charitable organizations seek remedies for what they characterize as unconstitutional or illegal taxation by the respondent municipalities. The appeals are from four orders of the case management judge.

Motion to quash appeals from the January 2017 orders: The proceedings were certified as class actions in 2015. The opt-out period ran from January 15 to May 15, 2016. The respondents organized a campaign to encourage class members to opt out. The case management judge determined the respondents

went "over the line" and created "undue influence", and consequently, in January 2017 ordered that those who had opted out be given a reconsideration period, which ran from August 11 to October 10, 2016.

The case management judge ordered the respondents not to communicate with class members during that period and protective orders were made that permitted the respondents' counsel to know the identities of opt-outs but prevented them from sharing this information with their clients. Once the reconsideration period ended, the respondents' counsel sought to lift the protective orders and asserted that they were interim. Class counsel sought conditions to protect the confidentiality of the information and a declaration that the implied and deemed undertaking rules applied to the information concerning the opt-outs. The case management judge ordered that the protective orders be lifted and held that for those orders to be continued, there would need to be "a serious risk to an important interest" and that there was insufficient evidence of a serious threat to the appellants in this case. The respondents brought a motion to quash the appeals from the orders lifting the protective orders because they are interlocutory and that the route to appeal is to the Divisional Court, with leave.

Appeal of the November 2016 orders: After the end of the opt-out period, the appellants sought to amend the statements of claim. The appellants sought declarations that the lottery licensing fees and lottery administration fees paid by the plaintiffs and the other class members to the defendant municipalities are taxes levied without legislative and constitutional authority and are ultra vires the defendant municipalities. They also sought an accounting of licensing and administration fees received by the municipalities found to be levied without authority or ultra vires, and disgorgement of such fees, with an alternative claim of restitution of fees charged to the plaintiffs and other class members in accordance with the accounting. The case management judge refused the proposed amendments on the basis that they would fundamentally change the nature of the actions that had been certified.

Issues:

(1)  Are the protective orders interlocutory?

(2) Did the case management judge err in refusing the proposed amendments to the statements of claim?

Holding: Appeals of January 2017 orders quashed and appeals of November 2016 orders dismissed.

Reasoning:

(1) Yes. The court held the question was whether the January 2017 orders were final and appealable to the Court of Appeal under s. 6(1)(b) or whether they were interlocutory and appealable to the Divisional Court with leave under s. 19(1)(b) of the Courts of Justice Act. The court found the orders were res judicata on the question of whether the identities and other information concerning opt-outs could be revealed, but were not res judicata and did not determine on any final basis any substantive issue or right that could be determinative of the action. The court held the orders were interim in nature and should not outlast the reconsideration period for which they were granted. The decision to lift them was a decision not to continue a protective order and, as such, was interlocutory.

(2) No. The court held the proposed amendments sought to recast the claim from one for the return of fees paid by class members to a claim for disgorgement of all allegedly illegal license and administrative fees for bingo operations paid to the respondent municipalities within the class period, including those not paid by members of the class. The court agreed with the case management judge that in these proceedings "each class member's claim is limited to the gain received by the defendants from the individual class member" and that "any refund would only allow the individual plaintiffs to recover the defendants' gain attributable to the wrong done to them".

Bakshi v. Global Credit & Collection Inc., 2017 ONCA

[LaForme, Hourigan and Paciocco JJ.A.]

Counsel:

J.E. Callaghan and K. Alexander, for the appellant

D. Milosevic and C. Garrod, for the respondent

Keywords: Contracts, Employment Law, Class Proceedings, Summary Judgment

Facts:

The appellant was one of several hundred debt collectors whom the respondent laid off when the respondent lost a contract with its largest client, Capital One. Following the lay-offs, Capital One and the respondent entered into a Settlement Agreement in which Capital One agreed to pay a sum of money for the broad mutual release of claims. The appellant became representative plaintiff in a class action in which the class of debt collectors sued the respondent. He alleged that the respondent had breached part of each class member's employment contract ("Commission Agreement") by failing to pay commissions on the payment made under the Settlement Agreement. After certification of the class, the respondent was awarded summary judgment dismissing the claim.

Issues:

(1) Did the motion judge err in interpreting the Commission Agreement as disentitling the appellants from receiving any commissions while laid-off?

(2) Did the motion judge err in interpreting the payment under the Settlement Agreement as reflecting a settlement of the respondent's potential damages claim for extraordinary expenses and defamation?

(3) Did the motion judge err in holding that a motion for summary judgment was an appropriate procedure for resolving the common issues in the class action?

Holding: Appeal dismissed.

Reasoning:

Since neither the Commission Agreement nor Settlement Agreement were standard form contracts, the standard of review from issues of contractual interpretation was palpable and overriding error.

(1) No. Under the Commission Agreement, a collector had to exceed a "breakeven" financial target set by the respondent to be entitled to a commission. In this case, a laid-off employee could not possibly be collecting monthly payments sufficient to exceed the monthly "breakeven" requirement.

(2) No. Even if the Settlement Agreement could be interpreted as including a payment for returned post-dated payments, the court's conclusion on the first issue, that the class members had not "earned" any commissions, precludes entitlement to receive any commissions on such a payment by Capital One.

(3) No. Not only did appellant's counsel write to the motion judge stating that the parties agreed the motion judge had sufficient evidence before him to decide the issues, but the appellant never argued in the court below that summary judgment was inappropriate. Moreover, the appellant brought his own motion for summary judgment of the common issues.

Tracy v. Iran (Information and Security), 2017 ONCA 549

[Hoy A.C.J.O., Blair and Hourigan JJ.A.]

Counsel:

C. Stevenson and J.D. McConville, for the appellants

J. Adair and G. McGuire, for the respondents

John B. Laskin, Sarah Whitmore, Eliot Che for the respondents, Marthaler, Holland and American Center for Civil Justice, Inc.

Jacqueline Dais-Visca, and Joseph Cheng for the intervener, the Attorney General of Canada

Keywords: Private International Law, Conflict of Laws, Enforcement of Foreign Judgments, Jurisidiction, Real and Substantial Connection, Beals v. Saldanha, 2003 SCC 72, [2003] 3 SCR 416, State Immunity, Justice for Victims of Terrorism Act, S.C. 2012, c. 1, s 4(5), State Immunity Act, R.S.C 1985, c. S-18, s. 6.1(2), 12

Facts:

This action arose out of judgments rendered against the respondents that were issued by courts in the United States against the appellants. The respondents sued in Ontario to enforce the United States judgments under the provisions of the The Justice for Victims of Terrorism Act, S.C. 2012, c. 1 ("JVTA"). The appellants did not defend these actions in Ontario and lost on appeal in front of a motions judge.

Two pieces of Canadian legislation are relevant to this appeal. The first is the JVTA, which grants victims of terrorism the ability to sue terrorists and foreign states that have materially contributed to terrorist attacks. The second is the State Immunity Act, R.S.C 1985, c. S-18 ("SIA"), which creates an exception to the general rule of state immunity from court jurisdiction and enforcement to countries that are listed under s. 6.1(2) as supporters of terrorism. Iran was added to the list under s. 6.1(2) on September 7, 2012.

The appellants appealed to the Ontario Court of Appeal alleging that the motion judge erred on every legal issue before him when denying their appeal.

Issues:

(1) Was the appellants' immunity from the jurisdiction of the Canadian courts removed by the JVTA or s. 6.1 of the SIA?

(2) Does the JVTA require or permit Canadian courts to recognize the American judgments?

(3) Did the motion judge err when he found that the appellants' immunity from enforcement or attachment was removed by s. 12(1)(d) of the SIA?

(4) Did the motion judge err when he found that the appellants' bank accounts and two real properties were not protected by diplomatic immunity?

(5) Did the motion judge err by failing to set aside the Recognition Order?

(6) Did the motion judge err in his application of the test for setting aside default judgments?

(7) Did the motion judge err in awarding costs to the respondents?

Holding: Appeal dismissed.

Reasoning:

(1) Yes. By virtue of the JVTA and the amendments to the SIA, the appellants' state immunity has been lifted with respect to its sponsorship of terrorist acts that occurred on or after January 1, 1985, but not for sponsorship of terrorist activities that occurred before that date.

The appellants argued that the JVTA cannot apply retroactively, and or that it goes against international law. Even if this were the case, Parliament has the power to make legislation retroactive and has the power to ignore international law through the use of clear statutory language.

A review of s. 4(5) of the JVTA makes clear that the appellant's state immunity is lifted only to the extent permitted by the SIA, which is any act that occurred on or after January 1, 1985. The law of state immunity in Canada is encompassed in s. 3(1) of the SIA, which states that "except as provided by the Act, a foreign state is immune from the jurisdiction of any court in Canada". The SIA was amended under Bill C-10, which carved out an exception for the JVTA, with the intention of the two statutes working in symmetry to permit the effective operation of the JVTA.

The appellants further argued that they were immune because the respondents did not prove that the appellants were a state supporter of terrorism. The only proof of the support of terrorism necessary to maintain an enforcement action under s. 4(5) of the JVTA is the listing of the state sought to be sued under s. 6.1(1) of the SIA.

Finally, the trial judge properly relied upon the facts found in the U.S. judgments, and the respondents were not required to prove the commission of a specific criminal offence beyond a reasonable doubt.

(2) Yes. Subsection 4(5) of the JVTA sets forth the process for recognition of the American judgments.

None of the arguments advanced by the appellants defeat recognition. There was ample evidence that the appellants' conduct would be punishable under the Criminal Code. The claims are not time-barred, as the cause of action did not begin to run until Iran was listed under s. 6.1(1) of the SIA.

The American courts had jurisdiction to grant the judgments. The court in Chevron stated that a foreign court will be found to have properly assumed jurisdiction where it had a real and substantial connection with the litigants or with the subject matter. The American courts properly assumed jurisdiction because the actions were commenced pursuant to an American statute that authorized them.

Finally, recognition of the judgments is not contrary to Canadian public policy. Once it is determined that a foreign court properly assumed jurisdiction, a foreign judgment is prima facie enforceable. The burden then shifts to the foreign defendant to establish the availability of a defence to the recognition of a foreign judgment, as per the Supreme Court's decision in Beals v. Saldanha, 2003 SCC 72, [2003] 3 SCR 416 at para 39. The threshold for such a defence is high, the judgment must violate "conceptions of essential justice and morality" (Beals at para 222). The appellants do not meet this threshold.

(3) No. State immunity from enforcement was stripped from the appellants.

Section 12(1)(d) of the SIA strips a state of execution immunity where:

the foreign state is set out on the list referred to in subsection 6.1(2) and the attachment or execution relates to a judgment rendered in an action brought against it for its support of terrorism or its terrorist activity and to property other than property that has cultural or historical value.

The underlying U.S. judgments were based on the appellants' support of terrorism, and the Iranian Assets do not have any cultural or historical value.

(4) No. The time for determination of the eligibility of the Iranian Assets is the time of the purported execution. The Minister determines the diplomatic status of the Iranian Assets. There was a solid evidentiary basis for the motion judge to conclude that the Iranian Assets were not protected by diplomatic immunity, and the motion judge's reasoning is entitled to deference.

Further, the issue of notice of the loss of diplomatic immunity is not relevant because, given the existence of international sanctions against the appellants, notice would have had no practical effect.

(5) No. The appellants missed the statutory deadline to move to set aside the Recognition Order. It is required that such motions be brought within one month after the judgment debtor has notice of registration, but the appellants did not move to set it aside until over a year later. It has not sought leave to extend the deadline, nor offered an explanation as to why the deadline was missed. The appellants' complaint about the manner of service of the Recognition Order is therefore without merit.

(6) No. The motion judge applied the correct test. The appellants did not meet their onus in establishing that even a single factor militated in favour of setting aside the default judgements. In addition, the interests of justice do not support such an order because the appellants were properly served and ultimately chose to take their chances with the court process by not responding to claims and waiting to have them set aside on a subsequent motion.

(7) No. The awarding of costs was consistent with the text of both the JVTA and the SIA. There is no principled reason why the appellants should be immune from a costs award. The suggestion otherwise is contrary to binding Supreme Court of Canada jurisprudence, specifically as set out in the decision of Kuwait Airways Corp. v. Iraq, 2010 SCC 40, [2010] 2 SCR 571 at para 36.

Vanier v. Vanier, 2017 ONCA 561

[Epstein, Benotto and Trotter JJ.A.]

Counsel:

L. J. Tupman and J. E. S. Poyser, for the appellant

J. Vanier, acting in person

D. N. Delagran, for the respondents

Keywords: Wills and Estates, Powers of Attorney for Property, Substitute Decisions Act, 1992, S.O. 1992, c. 30, New Issues on Appeal, Undue Influence,  Kaiman v. Graham, 2009 ONCA 77

Facts:

The respondent and her husband built a successful business during their marriage. The respondent's husband died in 2011 and left his entire estate to the respondent. The respondent's two sons and daughter have struggled in deciding who should be the respondent's power of attorney. The respondent designated her daughter as her attorney for property under a Continuing Power of Attorney for Property in 2011 (the "2011 CPOAP"). The respondent's daughter allegedly took advantage of her authority under the 2011 CPOAP and diverted several hundred thousand dollars from the respondent to herself, leading to litigation that has since settled. The respondent subsequently granted her two sons power of attorney for her property, jointly and severally, in 2013 (the "2013 CPOAP").

After the respondent and her daughter settled litigation, the respondent's two sons grew suspicious of each other with respect to how the other handled the respondent's property. This resulted in the Respondent executing a new CPOAP (the "2015 CPOAP"), removing one of her sons (Raymond) as co-attorney for property and appointing her other son (Pierre) as her sole attorney for property.

Raymond took issue with the 2015 CPOAP and brought an application under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the "SDA"), seeking several orders, including the removal of Pierre as attorney for property, and a declaration that the 2015 CPOAP was void. Raymond brought a motion, heard July 5, 2016, seeking an order removing Pierre as attorney for property on an interim basis pending determination of the application, an order appointing an interim guardian of property for the respondent, and an order requiring Pierre to pass accounts.

The motion judge ordered Pierre to pass his accounts, but dismissed the motion and declared the 2015 CPOAP to be valid. Raymond appealed the dismissal on several grounds.

Issues:

(1) Did the motion judge err in in applying the wrong test for undue influence?

(2) Did the motion judge err in finding that the evidence did not establish suspicious circumstances?

(3) Did the motion judge err in not considering relevant evidence?

(4) Did the motion judge err in granting costs against Raymond?

Holding: Appeal dismissed.

Reasoning:

(1) No. There is no indication that the application of the inter vivos equitable undue influence test was argued before the motion judge. As established in Kaiman v. Graham, 2009 ONCA 77, there is a general rule that appellate courts will not entertain entirely new issues on appeal. The burden is on the appellant to persuade the appellate court that "all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial".

The Court held that it did not need to decide whether it was in the interests of justice for this issue to be dealt with because the inter vivos equitable undue influence test has no application on the facts of this case. There are two prerequisites to the evidential shift in the burden of proof from the complainant to the other party. First, the complainant must have reposed trust and confidence in the other party. Second, the transaction must not be readily explicable by the parties' relationship.

This test could not be satisfied. With respect to first stage of the test, Pierre conceded to the first part of the test in oral argument. With respect to the second stage of the test, the record does not support that there was anything "immoderate or irrational" about the 2015 CPOAP. The respondent's decision to give power of attorney to one son over the other was a rational decision.

(2) No. The Court did not see it appropriate to consider the application of the doctrine of suspicious circumstances to powers of attorney as a whole. This was dealt with briefly in front of the motion judge and was ultimately found not to apply.

(3) No. A motion judge is not required to mention every single piece of evidence. The record demonstrates that the motion judge was aware of the evidence referred to by the appellant. The fact that the motion judge did not expressly mention a given piece of evidence in his reasons does not mean that he failed to consider them.

(4) No. The Court agreed with the motion judge's decision that the litigation reflected a "lack of judgement" on Raymond's part. Moreover, the Court was unable to assess Raymond's reasonable expectations as to costs, or the amount he would have sought if he won, because he did not submit a bill of costs.

York Region Standard Condominium Corporation No. 1253 v. Hashemi, 2017 ONCA 557

[Rouleau, Pepall and Roberts JJ.A.]

Counsel:

T. Duggan and S. Toole, for the appellant

W. Greenspoon-Soer and M. Unger-Peters, for the respondents

Keywords: Real Property, Condominiums, Damages, Mitigation, Full Indemnity Costs, Condominium Act, 1998, S.O. 1998, c.19, s. 134(5), Rules of Civil Procedure, r. 57, Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc. (2005), 253 D.L.R. (4th) 656 (Ont. C.A), Boucher v. Public Accountants Council (Ontario) (2004),71 O.R. (3d) 291 (C.A.)

Facts:

The appellant condominium corporation ("YRSCC") appealed from an award of $18,000 in damages made in its favour against the respondent condominium unit owners and also sought leave to appeal an award of $17,000 in full indemnity costs made under s. 134(5) of the Condominium Act, 1998, S.O. 1998, c.19 (the "Act")

The respondents leased their condominium to tenants who vandalized the common elements of YRSCC. YRSCC commenced an application against the respondents and their tenants claiming declaratory and injunctive relief, an eviction order, damages representing the cost of repairs, and costs. The respondents conceded liability and the only contested issues were damages and costs. YRSCC claimed $33,381.28 in damages and an award of costs of $52,637.56.

The application judge observed that under s. 17 of the Act, a condominium corporation is required to take reasonable steps to ensure compliance with the Act, and this includes incurring reasonable costs to remedy any transgressions by unit owners or their tenants. Although YRSCC was entitled to rectify the damage, it had a duty to do so proportionately – which the application judge found that it did not do.  He therefore awarded $18,000 in damages rather than $33,381.28 claimed by YRSCC. Turning to the issue of costs, heawarded YRSCC $17,000 rather than $52,637.56.

Issues:

(1) Did the application judge err in finding that YRSCC breached its duty to mitigate its damages?

(2) Did the application judge err in finding that the installation cost of security cameras was unreasonable?

(3) Did the application judge misapprehend and misapply the provisions of s. 134(5) of the Act in his assessment of costs.

Holding:

Appeal allowed, in part.

Reasoning:

(1) No. The appellant acknowledged that it had a duty pursuant to the Act to act reasonably in connection with repairing damage caused by vandalism. Based on the evidence before him, including the invoices which he reviewed, it was open to the application judge to determine that several of the expenditures that YRSCC made were disproportionate.

(2) Yes. The Court of Appeal found that the application judge erred in finding that the installation cost of security cameras was unreasonable. The affidavit evidence revealed that the contractor had split the total cost of his services between two invoices and did not charge twice for the same service.

(3) Yes. There were two dimensions to the request for costs advanced by YRSCC. First, it claimed the costs of the application based on r. 57 of the Rules of Civil Procedure. Second, it claimed its additional actual costs based on s. 134(5) of the Act. In Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc. (2005), 253 D.L.R. (4th) 656 (Ont. C.A), Doherty J.A. explained at para. 8 that "an award of costs" refers to the costs that the court orders one litigant to pay to another litigant whereas "additional actual costs" can encompass those legal costs owing as between the client and its own lawyer beyond the costs that the court has ordered paid by an opposing party.

In seeking additional actual costs under s. 134(5) of the Act, YRSCC advised the trial judge that the order requested had three components: damages, costs and s. 134(5) costs; and that the standard for r. 57 costs was that described in Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), whereas the standard for s. 134(5) costs was a solicitor and his own client assessment. The application judge considered an order of $12,000 to be an appropriate partial indemnity cost award under r. 57 and ultimately ordered an additional $5,000 under s. 134(5) of the Act for a total full indemnity cost award of $17,000.

The application judge considered YRSCC's "full indemnity" costs but appears to have focussed on the costs as between the parties without reference to the additional actual costs. Had he considered additional actual costs, then costs such as administrative and managerial costs that were associated with obtaining the order would have been eligible for assessment.

However, YRSCC did not file the necessary underlying evidentiary materials supporting the claim for all of its additional actual costs and did not seek an adjournment to address this deficiency in the record. Of the $52,637.56 claimed for costs, YRSCC established entitlement to approximately $34,000. In the result, the Court of Appeal varied the order on costs and increased costs from $17,000 to $34,000 so as to account for actual additional costs established by YRSCC.

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