Canada: Ontario Court of Appeal Summaries (December 11 – December 15, 2017)

Last Updated: December 19 2017
Article by John Polyzogopoulos

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

There were two decisions of note this week. The first was Willowbrook Nurseries Inc. v. Royal Bank of Canada. In this decision the Court of Appeal ruled on the extent of the duty of good faith in contracts established by the Supreme Court in Bhasin v. Hrynewas applied to the commercial lending context. Due to the seasonal nature of the debtor's business, the lender would allow the debtor to exceed its line of credit each winter. However, in 2007, the debtor failed to pay back the excess debt and the lender refused to allow the debtor to advance even further funds the following winter. The Court of Appeal ruled that in these circumstances, the lender was not required to lend more money than it wanted to or had previously agreed to lend.

The second was 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club). This decision involved a review of when a landlord is entitled to distrain (for arrears of rent but not after terminating a lease), and what a landlard may distrain (chattels, but not trade fixtures, unless those trade fixtures are severed from the land before the lease is terminated).

Other topics covered this week included testamentary capacity, negligent misrepresentation, WSIB collateral benefits in MVA context, a boundary dispute and exemption from seizure of property under the Indian Act in a repair and storage lien context.

Happy Chanukah to all who are celebrating.

Civil Decisions

WesternTroy Capital Resources Inc. v. Genivar Inc., 2017 ONCA 971

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

Counsel

J Erskine and K. Surko, for the appellant
H B Borlack and S. Barbier, for the respondent, Genivar Inc.

Keywords: Torts, Negligent Misrepresentation, Damages

Facts:

The appellant retained the respondent, an engineering consulting firm, to conduct a feasibility study to evaluate the amount of mineral resources and economic viability of developing a property at MacLeod Lake in Northern Quebec.

The trial judge found that but for the respondent's negligent misrepresentation to the appellant, the appellant would have terminated its project sooner and was thereby entitled to compensation for unnecessary expenses incurred.

The trial judge found that the resource estimate provided by the respondent should have been finalized at least one year and maybe as much as two years earlier than was actually done. The trial judge awarded $1.25 million to the appellant.

Issues:

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

Holding:

Appeal dismissed.

Reasoning:

(1) No. When the reasons of the trial judge are read as a whole, the trial judge provided an adequate explanation, firmly grounded in evidence, for why he rejected the approach advocated by the appellant and accepted the respondent's position that not all the expenses claimed by the appellant would have been avoided if a timely resources estimate had been provided. His assessment is therefore not vulnerable to review by the Court of Appeal on the applicable standard of review.

The trial judge noted that there were several matters bearing upon the damages assessment that were "speculative" when the evidence was considered as a whole. The first speculation was how much earlier the work could have been done. The second speculation was what expenses the appellant would have incurred regardless of the resource estimate having been completed in a timely manner. The third area of uncertainty was how the appellant would have acted upon receipt of a timely feasibility study.

The court accepted that based on the evidence there was a significant element of judgment required to assess damages in this case. The court rejected the appellant's submission that the calculation of damages could only have been accomplished on an invoice by invoice basis. The appellant failed to persuade the court that the trial judge ignored relevant evidence or that he made any palpable or overriding error of law that would justify intervention with his decision.

Wilken v. Sun Life Assurance Company, 2017 ONCA 975

[Strathy C.J.O., Juriansz and Huscroft JJ.A.]

Counsel:

Douglas M. Bryce, for the appellant

Stephen H. Shantz, for the respondent

Keywords: Torts, MVA, SABs, Collateral Benefits, WSIB

Facts:

The appellant is claiming payment of long-term disability ("LTD") benefits from the respondent. The appellant was injured in a motor vehicle accident while working and started collecting Workplace Safety and Insurance Board ("WSIB") benefits before retroactively re-electing to proceed with a tort action against the other driver involved in the accident. The appellant seeks to distinguish the court's decision in Richer v. Manulife Financial ("Richer").

Issues: Is the appellant's claim to payment of LTD benefits from the respondent distinguishable from Richer?

Holding: Appeal dismissed.

Reasoning:

No. The LTD policy in this case is different than that in Richer in that it provides that the insurer can subtract from the LTD payment any payment or benefit for which the insured is "eligible" under the Workers' Compensation Act or similar law. However, the motion judge on the respondent's summary judgment motion provided detailed reasons for finding "there are no meaningful or relevant distinctions between the Richer case and the situation before me". The Court of Appeal adopted the motion judge's reasons and conclusions.

Having concluded the insurer was entitled to an "offset", the motion judge dismissed the appellant's claim for benefits during the period November 26, 2012 to August 23, 2014, because the WSIB benefits for which the appellant was eligible exceeded the amount of the benefit that would have been payable under the LTD policy. The motion judge also dismissed the appellant's claim for the period August 23, 2014 to June 1, 2015. On the record, the motion judge was entitled to infer that the WSIB would have continued to pay the appellant benefits at the "for loss of earnings" level but for his noncompliance with the WT plan. The deduction of "full loss of earnings" benefits results in an LTD benefit of "nil" for this period as well.

Willowbrook Nurseries Inc. v. Royal Bank of Canada, 2017 ONCA 974

[Pardu, Trotter and Paciocco JJ.A.]

Counsel:

Paul J. Pape, for the appellant

Milton A. Davis and Rob Macdonald, for the respondent

Keywords: Contract Law, Breach of Contract, Banking Law, Commercial Lending, Duty of Good Faith, Thermo King Corp. v. Provincial Bank of Canada (1981), 34 O.R. (2d) 369 (C.A.), Bhasin v. Hrynew, 2014 SCC 71

Facts:

Willowbrook Nurseries Inc. ("Willowbrook") needed to borrow more money from its banker, Royal Bank of Canada ("RBC").  RBC began lending to Willowbrook through a line of credit, demand loan, various mortgages, and a corporate credit card in January 2005. To satisfy Willowbrook's seasonal financing needs, RBC would agree to a temporary accommodation request ("TAR") that allowed Willowbrook to temporarily exceed its $2.75 million line of credit each winter. However, through the spring and summer of 2008, Willowbrook did not fully repay the $1.25 million worth of TAR that RBC extended in the winter of 2007, despite three extensions of time to do so ("2007 TAR"). Nonetheless, Willowbrook submitted an additional $1.2 million TAR following the completion of its fiscal 2008 financial statements on October 14, 2008 ("2008 TAR") along with a debt restructuring and separate $500,000 term loan request. Approval of these requests would have meant that RBC would have been lending more than ever before to Willowbrook. Willowbrook was approaching the limits of its agreed upon credit, had no immediate prospect of significant revenue, and faced the expenses of planting for a new season.

On November 26, 2008, a RBC risk manager refused Willowbrook's 2008 TAR, restructuring request, and term loan request. Instead, the risk manager transferred Willowbrook's account into Special Loans and Advisory Services ("Special Loans") on December 5, 2008. RBC outlined its concerns and requirements by letter dated December 8, 2008. It expressed concern about Willowbrook's working capital, liquidity, and increased inventory levels. RBC noted the outstanding 2007 TAR and Willowbrook's forecast that it would need $500,000 more to carry it through to April of the following year. RBC said it would continue to provide interim financing to allow Willowbrook to revise its business plan and to address the bank's concerns.

RBC's refusal to immediately lend more money meant that Willowbrook could not pay its suppliers on time and had to lay off employees. RBC demanded more financial information from Willowbrook and proposed to increase banking fees and interest charges. It wanted up-to-date appraisals of the real property securing Willowbrook's debt. It proposed to engage an accounting consultant to review Willowbrook's financial position, at Willowbrook's expense. RBC asked for cash flow projections and indicated that "an appropriate temporary overdraft accommodation limit will be established upon our review and acceptance of your cash flow projections."

Willowbrook scrambled to provide the requested information. Willowbrook's accountant wrote to RBC requesting that Willowbrook be removed from the special loans program, or in the alternative, a reasonable period of time to seek alternative financing. RBC was not prepared to remove Willowbrook from Special Loans but agreed to Willowbrook's request for time to find alternative financing and provided 60 days to do so. Ultimately, all of Willowbrook's debt to RBC was discharged upon refinancing by another bank in April 2009.

Willowbrook brought an action against RBC for breach of its obligation to perform the lending agreement in good faith. Willowbrook argued at trial that RBC's refusal to lend new money and its decision to subject Willowbrook to Special Loans treatment amounted to a change in the prevailing course of lending conduct and required reasonable notice. It argued at trial that the Special Loans treatment amounted to a de facto demand for payment without notice. Willowbrook's action was dismissed. Willowbrook appealed.

Issues:

(1) Did the trial judge err in holding that RBC acted in bad faith by refusing to lend new money without notice?

(2) Did the trial judge err in holding that RBC acted in bad faith by moving Willowbrook's accounts into Special Loans?

(3) Did the trial judge err in holding that RBC exercised its contractual discretionary power in an objectively unreasonable manner and therefore acted in bad faith?

Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge's decision about whether RBC acted in bad faith is a question of mixed fact and law. It is owed deference absent an extricable error of law. As the Court of Appeal held in Thermo King Corp. v. Provincial Bank of Canada, a bank has a duty to give a customer reasonable notice of a change in the prevailing course of conduct with respect to overdraft lending. As discussed in Thermo King, a bank's duty to give reasonable notice of a change to a prevailing course of overdraft lending conduct existed at common law well before the Supreme Court's decision in Bhasin v Hrynew. There is no question that a prevailing course of lending conduct existed between the parties in this case. The conduct consisted of Willowbrook making a TAR each winter and paying it down the following year before presenting another TAR. It was Willowbrook that sought to change the prevailing course of lending conduct. It had not repaid the 2007 TAR, contrary to previous practice, and wanted an additional 2008 TAR. Willowbrook had exhausted its existing credit and it wanted more.

RBC was not obliged to accede to Willowbrook's requests, especially since Willowbrook's requests would have resulted in RBC lending $500,000 more than it had ever lent to Willowbrook before. RBC had little time to assess the request for more money after receiving the recent year-end financial statements. Willowbrook had run out of money by exhausting its credit limit at a time when it would have little revenue and substantial expenses. Bhasin does not require a lender in these circumstances to lend new money.

(2) No. The parties agreed that RBC's power to move an account into Special Loans was a discretionary power provided for by the lending contract. Willowbrook concedes that RBC did not violate any express term of the lending contracts in doing so. The principle of good faith performance of contractual obligations does not extend so far as to require RBC to subjugate its own financial interests by extending additional credit that it does not want to advance. There is no basis to hold that any other particular aspect of the Special Loans treatment was unreasonable or undertaken in bad faith, or that RBC had to give notice before reacting as it did to Willowbrook's changed circumstances and request for additional credit.

(3) No. RBC made a choice to refuse to lend Willowbrook more money beyond limits to which each had previously agreed. When Willowbrook suggested that the parties end their banking relationship, RBC gave Willowbrook more time than it asked for to make those arrangements. It is inapt to subject a bank's decision whether to lend substantial new credit to an existing customer who is at the end of their credit limit to an objective reasonableness analysis. The choice of whether to lend new money is at heart, a subjective business decision to be made by a bank. These decisions may be based on factors unrelated to a particular customer and should not be assessed by a court, after the fact, for objective fiscal prudence. The trial judge identified some reasons why RBC might have decided to exercise its discretion to move Willowbrook's accounts into Special Loans. He ultimately found that RBC's decision was neither arbitrary nor capricious and was not in bad faith. There was no palpable or overriding error in these factual findings.

Frohlich v. Ferraro, 2017 ONCA 978

[Hourigan and Brown JJ.A. and Himel J. (ad hoc)]

Counsel:

Edward Oldfield and Christian Ferraro, for the appellants

James Bennett and Christopher Clemmer, for the respondent

Keywords: Property Law, Boundary Dispute, Trespass, Easements, Riparian Rights, Fresh Evidence

Facts:

This appeal concerns a property dispute between two cottage owners. At trial, the court declared that the appellants, John and Diane Ferraro, had entered and trespassed onto the dry land portion of the respondent's water lot. A permanent injunction was issued restraining the appellants from entering upon any part of the respondent's property not covered by water. The appellants' counterclaim for an easement over that land was dismissed.

Issues:

(1) Did the trial judge err in failing to consider the issues of riparian rights and accretion, the high water mark, and the intentions of the original sub-dividers?

(2) Did the trial judge err in failing to provide sufficient reasons?

(3) Did the trial judge err in failing to find on the evidence that an easement had been established?

Holding: Appeal dismissed.

Reasoning:

(1) No. The issues of riparian rights (either the appellants' or the Crown's), accretion, the high water mark and the intentions of the original sub-dividers were not argued at trial. The Court declined to grant leave to admit the proposed fresh evidence as it was tendered in support of these new arguments.

(2) No. The court was not satisfied that the trial judge failed to provide sufficient reasons on any relevant issue

(3) No. The court found no error in the trial judge's analysis and held that he correctly applied the law to the facts he found and ruled against the appellants.

2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980

[MacPherson, Juriansz and Roberts JJ.A.]

Counsel:

A Landry, for the appellants

O Thomas, for the respondents

Keywords: Real Property, Commercial Leasing,  Distraint, Chattels, Trade Fixtures, Abandonment, Torts, Conversion, Damages, Waiver of Tort, Exemplary and Punitive Damages

Facts:

Hydeaway Golf Club, incorporated as 375445 Ontario Limited, and Nicholas Panasiuk Jr. (collectively, the appellant) leased land to Performance Plus Golf Academy and D & D Electric, incorporated as 2105582 Ontario Ltd. and 627496 Ontario Ltd. (collectively, the respondent), in fall 2006 under an oral agreement. The respondent constructed and operated a driving range on the leased land. The respondent fell into arrears of rent and the appellant terminated the lease on December 6, 2007. The respondent sought damages for the appellant's unlawful distraint and conversion of its trade fixtures and chattels. The trial judge held that all of the claimed assets were trade fixtures and that the appellant was liable to the respondent for compensatory and exemplary damages. On appeal, the appellant argues that the trial judge erred by finding liability for conversion, and in any event, the damage award was excessive.

Issues:

(1) Did the trial judge err by classifying certain assets as trade fixtures or chattels, as opposed to fixtures or leasehold improvements?

(2) Did the trial judge err by holding that the appellant unlawfully distrained the respondent's trade fixtures or chattels?

(3) Did the trial judge err by failing to consider whether the respondent had abandoned its chattels?

(4) Did the trial judge err by awarding exemplary damages in addition to compensatory damages?

Holding: Appeal allowed in part.

Reasons:

(1) No. This case concerns the fate of fixtures upon termination of a lease. The general rule is that fixtures remain with the land following the end of a tenancy; but not all fixtures fall within this rule. Trade fixtures are assets that are affixed to leased premises by a tenant for trade or commercial purposes. Courts have consistently held that tenants are presumptively allowed to remove trade fixtures at the end of a tenancy so long as the removal does not materially damage the premises: 859587 Ontario Ltd. v. Starmark Property Management Ltd. (1997), 34 O.R. (3d) 43, at p. 54 (Gen. Div.), 1997 CarswellOnt 2308, at para. 31, affirmed (1998), 40 O.R. (3d) 481 (C.A.).

Importantly, as the Court of Appeal held in Bank of Nova Scotia v. Mitz (1979), 106 D.L.R. (3d) 534, at p. 538 (Ont. C.A.), 1979 CarswellOnt 741, at para. 11, there is a distinction in the analysis depending on whether the attempted removal of the disputed asset occurs in the context of a lease versus the sale of real property. In the context of a lease, there appears to be a presumption that a tenant would not have an objective intent to affix an asset on a permanent basis such that it would become part of the real property at the end of the lease: Bank of Nova Scotia, at pp. 538-39. In other words, the object of annexation is presumptively not one of permanence. The determination of whether an asset is a fixture or trade fixture upon termination of a lease is highly fact specific.

In this case, the trial judge applied the three requisite elements of the legal test for a trade fixture: (i) whether the asset is affixed to the ground by the tenant; (ii) whether the asset is used for the purpose of a trade or commerce; and (iii) whether the asset can be removed without material damage to the premises. Only element (iii) was in question at trial. The trial judge found the Structural Assets could be removed without damage to the premises at para. 29 of his reasons. The trial judge was entitled to reject the appellant's evidence regarding material damage that might result if the Structural Assets were removed. Indeed, there was evidence the appellant removed the barrier poles and nets at a later date without material damage.

Moreover, the appellant's alternative argument that the Structural Assets were actually leasehold improvements has no merit. The Structural Assets cannot be simultaneously both trade fixtures and leasehold improvements. The test for whether an asset is a leasehold improvement is the same as the test for whether an asset is a fixture: Caledonia Service, at para. 14. There must be a sufficient degree and object of annexation such that the assets become part of the land. In this sense, a true "fixture" is the same as a leasehold improvement in the context of leases.

(2) No. Contemporary Canadian courts have held that s. 41 of the Commercial Tenancies Act ("CTA") allows a landlord to distrain an overholding tenant's chattels within six months following the end or determination of a lease. It does not change the common law rule that a landlord cannot distrain tenant chattels, regardless of timing, if the landlord terminates or forfeits the lease. In any event, the appellant cannot rely entirely on s. 41 of the CTA because this case involves trade fixtures. The Court of Appeal made clear that trade fixtures, while they remain affixed to the land, are never subject to the landlord's remedy of distress in 859587 Ontario Ltd. v. Starmark Property Management Ltd. (1998), 40 O.R. (3d) 481, at pp. 487-88 (C.A.), 1998 CarswellOnt 2937, at paras. 13-15, affirming (1997), 34 O.R. (3d) 43, at p. 54 (Gen. Div.), 1997 CarswellOnt 2308. Trade fixtures may only be distrained when they have been severed from the land and resume their nature as chattels.

(3) No. Abandonment is a defence to conversion. It occurs when there is a "giving up, a total desertion, and absolute relinquishment" of one's interest in chattels: Simpson v. Gowers (1981), 121 D.L.R. (3d) 709,  at p. 711 (Ont. C.A.). The party alleging abandonment bears the onus of proving, on a balance of probabilities, an objective intent to abandon the chattels. The determination of whether there is a sufficient intent to abandon is a question of fact governed by factors such as the length of time, nature of the chattels, conduct of the parties, and context of the case: 1083994 Ontario Inc. v. Kotsopoulos, 2012 ONCA 143, at paras. 17-18. Here, the respondent attempted to either negotiate a sale of his assets to the appellant or a time he could retrieve them. The respondent's lawyer sent letters shortly after the termination of the lease indicating the respondent intended to remove the chattels. The respondent attempted to retrieve the chattels multiple times, each time being thwarted by the appellant. Accordingly, there were no facts to suggest abandonment of chattels or trade fixtures in the instant case.

With respect to the trade fixtures, the appellant argued that a tenant may not remove them after a lease ends and the tenant has given up possession. However, there are exceptions to the appellant's otherwise correct articulation of the general time limit in which a tenant may remove trade fixtures. One such exception is where a lease is for an uncertain term or where the landlord's actions create the circumstance that the tenant had insufficient time to remove its trade fixtures. In this case, the appellant terminated the lease with 10 days' notice in this case. The appellant also prevented the respondent from removing the disputed assets on December 6, 2007 by calling the OPP. Accordingly, the respondent did not abandon its trade fixtures and was entitled to return to the premises to remove them within a reasonable time following the end of the lease and after it vacated the premises.

(4) Yes. Conversion is a strict liability tort. If established, a tortfeasor will be forced to purchase the converted asset from the plaintiff. The general measure of damages is the market value of the converted asset as of the date of conversion: Asamera Oil Corporation Ltd. v. Sea Oil & General Corporation et al. (1978), [1979] 1 S.C.R. 633, at p. 652. Nevertheless, the general measure of damages for intentional proprietary torts, such as conversion, may be substituted in certain circumstances. One such circumstance is known as "waiver of tort". Waiver of tort allows a plaintiff to claim disgorgement damages based on the tortfeasor's gain or benefit, instead of compensatory damages based on the loss suffered. However, a plaintiff cannot claim both.

The trial judge's reasons do not provide any basis for an award of punitive or disgorgement damages. The trial judge did not find that the conversion was malicious or high-handed in a manner constituting a marked departure from ordinary standards of decent behaviour. Rather, the record shows that the appellant had an honest belief that the Structural Assets did in fact become part of the land and should have remained with the land. The trial judge should not have awarded the additional $80,000 in "exemplary" damages, and that portion of the judgment was set aside.

Ontario (Provincial Police) v. Assessment Direct Inc., 2017 ONCA 986

[Juriansz J.A. (In Chambers)]

Counsel:

Richard H. Shekter, for the moving parties

John Patton, for the responding parties

Erin Dann, for the Special Referee

Keywords: Civil Procedure, Appeals, Jurisdiction, Criminal Law, Search Warrants, Solicitor-client privilege, Litigation privilege, Criminal Code, R.S.C. 1985, c. C-46, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 (1) (b)

Facts:

The motion is characterized as a motion for directions. The moving parties seek "an Order for directions with respect to the proper route of appeal in this matter". The moving parties filed their notice of appeal on October 25, 2017. Thereafter, a question arose as to whether the court had jurisdiction to hear the appeal. The appeal is from the decision of a judge of the Superior Court of Justice ruling on issues of solicitor-client privilege and litigation privilege over a variety of documents and audio files seized by the Ontario Provincial Police during the execution of Criminal Code search warrants. The moving parties' factum sets out a detailed argument as to why the Court of Appeal has jurisdiction over what they submit is an appeal from the decision of a single judge of the Superior Court in a civil matter. The factum concludes "...that the Court of Appeal has the jurisdiction to hear the appeal of this matter pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43."

However, the opposing view is that the proceeding before the Superior Court judge was criminal in nature. If that is the case there would be no statutory appeal to the Court of Appeal. The only appeal route available to the moving parties would appear to be pursuant to s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, with leave.

Issues:

(1) Does the Court of Appeal have jurisdiction to hear this appeal?

Holding: Motion adjourned.

Reasoning:

(1)  Questions of whether an appeal lies within the jurisdiction of the Court of Appeal must be decided by a three-judge panel of the court. The statutory and rules-based framework that defines the court's jurisdiction, along with the court's own practice directions, indicates that a single judge has no power to decide whether an appeal is within the jurisdiction of this court (citing RREF II BHB IV Portofino, LLC v. Portofino Corp., 2015 ONCA 906, at para. 6). The motion was adjourned to be heard by a panel.

Taylor's Towing v. Intact Insurance Company, 2017 ONCA 992

[Hourigan and Brown JJ.A. and Himel J.]

Keywords: Aboriginal Law, Property Law, Exemption from Seizure, Indian Act R.S.C., 1985, c. I-5, s. 89(1), Repair and Storage Liens Act, R.S.O. 1990, C. R.25

Facts:

Vehicles owned by Ontario residents and insured by the respondent were involved in accidents or stolen. After the accidents or thefts, ownership transferred to the respondent. The vehicles were towed and stored by the appellants, who are towing companies owned by members of the Six Nations of Grand River Indian Reserve, Brant County. All of the businesses are located within the boundaries of Six Nations. Most of the vehicles were towed and stored at the request of Six Nations police.

There was a dispute among the parties regarding towing and storage fees. The respondent brought applications under the Repair and Storage Liens Act (RSLA) in Small Claims Court to permit it to retrieve the vehicles in exchange for payment of money into court to the credit of any actions by the appellants for their fees. The appellants refused to release the vehicles. They brought an application seeking declaratory relief to the effect that ss. 23 and 24 of the RSLA are not available to the respondent. They argued that they acquired a property interest in the vehicles and, pursuant to s. 89(1) of the Indian Act, the vehicles are exempt from execution or seizure.

The application judge held that the RSLA is a provincial law of general application, and dismissed the appellants' application for exemption. He ordered the appellants to immediately release the vehicles to the respondent.

Issue: Does s. 89(1) of the Indian Act prevent the respondent from exercising its rights under the RSLA?

Holding: Appeal dismissed.

Reasoning: No. Section 89(1) of the Indian Act reads as follows:

89(1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.

The Court of Appeal determined that s. 89(1) of the Indian Act only protects against seizure from creditors or the Crown. In Mohawk Council of Akwesane v. Toews, the Federal Court notes that the purpose of the exemptions in s. 89 was to protect the entitlements of Indians to their reserve land and to ensure it was not eroded by the government's ability to tax or creditors to seize. In this case, the respondent is a debtor not a creditor. Therefore, the exemption does not apply.

Sweetnam v. Williamson Estate, 2017 ONCA 991

[Hourigan, Brown JJ.A. and Himel J. (ad hoc)]

Counsel

Cherniak, I. Hull and D. So, for the appellant, Dianne Lesage
S. Graham, for the respondent/cross-appellant, Terry Dooley
B. Donovan and G. Sidlofsky, for the respondent, Star Sweetnam

Keywords: Wills & Estates, Testamentary Capacity, Costs

Facts:

Following a seizure on July 20, 2010, the deceased was diagnosed with brain cancer. He made two wills on separate dates leaving different portions of his estate to different persons under each. The trial judge heard evidence of a number of witnesses and found that the testator lacked testamentary capacity at the time he made these two wills.

Issues:

(1) Did the trial judge err in holding that the testator lacked testamentary capacity?

(2) Should leave be granted to the estate trustee to appeal the award of costs?

Holding: Appeal dismissed. Motion for leave to appeal costs dismissed.

Reasoning:

(1) No. The trial judge applied the test for testamentary capacity as outlined in the leading jurisprudence. He concluded that the testator was not aware of the nature and extent of his assets at the time he made the wills, did not remember the person he might be expected to benefit under his will and did not understand the nature of the claims that may be made by persons he was excluding. He found that the dispositions were affected by delusions. He articulated those delusions in his reasons. There were no palpable errors of fact. The inferences drawn were reasonably supported by evidence. There was no error in the analysis or application of the law by the court below.

(2) No. In estate matters, a court may order an estate trustee to pay costs personally if the estate trustee has acted unreasonably or in substance for his or her own benefit rather than the benefit of the estate. The trial judge found that the estate trustees were adversarial and unreasonable in refusing to consider settlement offers that were less than the results obtained. They also took unreasonable positions, such as the hiring of a private investigator and claiming costs double those claimed by the respondent following trial. Both estate trustees were responsible in carrying the litigation forward. There was no reason to interfere with the exercise of discretion of the trial judge regarding costs.

Short Civil Decisions

McGregor v. Peel Children's Aid Society, 2017 ONCA 976

[Strathy C.J.O., Juriansz and Huscroft JJ.A]

Counsel:

M Tubie, for the appellant

F Fischer, for the respondents Robertson House, Christine Steele and Tracy Severiano
Keywords: Civil Procedure, Settlements, Enforcement

El-Khodr v. Lackie, 2017 ONCA 984

[Doherty, MacFarland and Rouleau JJ.A]

Counsel:

B A Percival and  J W Gibson, for the appellants

J Y Obagi and E A Quigley, for the respondent
Keywords: Torts, MVA, Collateral Benefits, Costs, Partial Indemnity

Calvise v. Tripemco Burlington Insurance Group Limited, 2017 ONCA 989

[Hourigan, Brown JJ.A., and Himel J. (ad hoc)]

Counsel:

R D Gregoria, for the appellant

S Gleave and S Sells, for the respondent
Keywords: Contracts, Restrictive Covenants, Non-Solicitation, Non-Interference, Summary Judgment

Toronto-Dominion Bank v. Tang, 2017 ONCA 990

[Simmons, Lauwers and Pardu JJ.A.]

Counsel:

No one appearing for the appellants

J Kukla, for the respondent

H Du, for Aping Co. Ltd
Keywords: Appeal book Endorsement

United Kingdom v. Elabd, 2017 ONCA 983

[Feldman, Fairburn and Nordheimer JJ.A]

Counsel:

L Ramchandran, for the applicant

H Graham, for the respondent
Keywords: Appeal book Endorsement

Criminal Decisions

 R v. Butters, 2017 ONCA 973

[Hoy A.C.J.O., Doherty and Feldman JJ.A]

Counsel:

J Shanmuganathan and E Dann, for the appellant

I Bell, for the respondent
Keywords: Criminal Law, Possession, Crack Cocaine, Sentencing, Immigration, R. v. Pham, 2013 SCC 15

R v. Jagga, 2017 ONCA 977

[Hoy A.C.J.O., Doherty and Feldman JJ.A]

Counsel:

G Zaman, for the appellant

A Jagga, as self-represented
Keywords: Criminal Law, Weapons Prohibition Order

R v. W.V., 2017 ONCA 979

[Pepall, Lauwers and Pardu JJ.A]

Counsel:

M J Venturi, for the appellant

N Dennison, for the respondent
Keywords: Publication Ban, Criminal Law, Sexual Interference, Evidence, Credibility

R v. McCartney, 2017 ONCA 981

[Hoy A.C.J.O., Doherty and Feldman JJ.A]

Counsel:

M Halfyard and B Vandebeek, for the appellant

M Bernstein, for the respondent
Keywords: Criminal Law, Second Degree Murder, Aggravated Assault, Self-Defence, Closing Address, Jury Trials, Misleading the Jury, Jury Instructions

R v. Adam, 2017 ONCA 988

[Hoy A.C.J.O., Doherty and Feldman JJ.A]

Counsel:

M Dineen, for the applicant

R Young, for the respondent
Keywords: Criminal Law, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan, 2016 SCC 27, Morin Analysis, Fraud

R v. Bentley, 2017 ONCA 982

[Feldman, Tulloch and Benotto JJ.A]

Counsel:

K Wilson, for the appellant

J Belton, for the respondent
Keywords: Criminal Law, Controlled Drug and Substances Act, S.C. 1996, c. 19, Marihuana Production, Sentencing, Mandatory Minimum

R v. R.O., 2017 ONCA 987 (Publication Ban)

[Hoy A.C.J.O., Doherty and Feldman JJ.A]

Counsel:

R Diniz, for the appellant

C Harper, for the respondent

Keywords: Criminal Law, Criminal Harassment, Sentencing, Reasonable Apprehension of Bias

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