Canada: Ontario Court Of Appeal Summaries (February 26 – March 2)

Good evening.

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

Topics covered this week included rectification of contracts (life insurance policy), third party assessments of lawyers' accounts, wrongful dismissal (calculation of damages, including bonuses), aboriginal law (authority to amend lease of band lands), wills and estates (payment of interest on late distributions), condominium law (oppression and restrictions on use of common elements) and family law (constructive trust, Crown wardship).

On Monday, my partner, Lea Nebel and I co-chaired our OBA CLE entitled "Top Appeals of 2017 at the Court of Appeal". We had about 70 participants and lively discussions about three important and interesting decisions. Lea and I would like to thank Justice Epstein, all of the panelists and most of all, everyone who attended. We hope everyone enjoyed the evening and look forward to seeing you all again next year. In order to assist us with making next year's program even better, we would kindly ask everyone to please complete the evaluations that were emailed to attendees.

Wishing everyone a nice weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Civil Decisions:

Cardillo v. Aird & Berlis LLP, 2018 ONCA 186

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

Counsel:

F S Turton, for the appellants

P Miehls and D Muise, for the respondent

Keywords: Contracts, Solicitor and Client, Legal Fees, Assessments, Releases, Solicitors Act, R.S.O. 1990 c. S.15, Jean Estate v. Wires Jolley LLP, 2009 ONCA 339, Plazavest Financial Corporation v. National Bank of Canada (2000), 47 O.R. (3d) 641 (C.A.)

Facts:

Sun Life Assurance Company of Canada ("Sun Life") entered into a loan agreement with Medcap Real Estate Holdings Inc. ("Medcap"), one of the appellants. The loan was secured by: (i) a mortgage over real property, (ii) a general security agreement; and (iii) a personal guarantee signed by John Cardillo, the other appellant. Ten years later, Sun Life retained the respondent law firm to take the necessary steps to enforce the security and to collect the amounts due. Ultimately, Sun Life and the appellants entered into a Forbearance Agreement in connection with Medcap's debt, which was then in excess of $1.5 million. The appellants, among other things, agreed that Medcap would reimburse Sun Life for all reasonable expenses, including legal fees, and that they were estopped from disputing the amount owing. Further, the appellants released Sun Life and its "attorneys, advisors and other representatives" from claims in connection with the Forbearance Agreement or the original loan agreement.

A Forbearance Extension Agreement which extended the time for payment contained an identical release. Contemporaneous with the payment of the amounts due, the parties entered into an Assignment Agreement, assigning the debt, loan agreement and underlying security to 2503866 Ontario Ltd. This agreement set out a summary of Medcap's indebtedness to Sun Life, which included specific amounts for legal fees and disbursements The Assignment Agreement also contained a comprehensive release in essentially the same terms as the first two releases. Sun Life paid each of the four accounts that were rendered by the respondent.

Subsequently, the appellants obtained a registrar's order for the delivery and assessment of the respondent's accounts. Eventually, the respondent moved for an order declaring that the three releases precluded the assessment of the various legal accounts rendered to Sun Life. The motion judge granted the motion and declared "that the Releases forever preclude the assessment of, or any other mater pertaining to, the [four accounts of Aird & Berlis LLP]". This order is the subject of this appeal.

Issues:

(1) Did the motions judge err in ruling that the releases precluded the assessment of the respondent's accounts?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The motion judge noted that in Jean Estate v. Wires Jolley LLP, 2009 ONCA 339, 96 O.R. (3d) 171, the Court of Appeal held that parties cannot contract out of the Solicitors Act, R.S.O. 1990 c. S.15 for public policy reasons. However, he held that the rationale in Jean Estate did not apply to the case at bar where the parties were sophisticated commercial parties acting with the benefit of legal advice. He concluded that the parties were not seeking to contract out of the Solicitors Act, but that they had agreed that the appellants would be precluded from challenging its payment to Sun Life, which included the legal fees. The Court of Appeal agreed with the motion judge's conclusion, but not with his reasons.

Because the accounts have already been paid by Sun Life and the appellant Medcap, who became liable for their payment and is not the client but a third party to the solicitor-client relationship, an order for assessment had to be obtained under s. 9(1) of the Solicitors Act, which required the appellant to demonstrate special circumstances justifying the assessment following payment pursuant to s. 11. Section 11 refers to "special circumstances", which "in the opinion of the court appear, to require the assessment." And, it contemplates that in doing so, the court has a broad discretion to be exercised on a case-by-case basis and with an eye to all of the relevant circumstances. Special circumstances will tend to either undermine the presumption that the account was accepted as proper or show that the account was excessive or unwarranted. This is the analytical approach the motion judge should have followed in this case. However, the Court of Appeal found that there were not special circumstances that would warrant an order directing the assessment of the accounts.

First, the appellants were at all material times represented by legal counsel. They were indebted to Sun Life, and they negotiated and concluded a commercial agreement to satisfy their debt. The appellants confirmed their obligation to pay the total indebtedness to Sun Life, including the respondent's fees and disbursements, which were disclosed at Schedule A to the Assignment Agreement, to which they were parties. Second, as per Plazavest Financial Corporation v. National Bank of Canada (2000), 47 O.R. (3d) 641 (C.A.), the terms of an agreement can figure prominently in the determination of whether special circumstances exist. Here, the appellants expressly acknowledged in the Assignment Agreement that they had had an adequate opportunity to read and consider it and to obtain independent legal advice before executing it. They knew that Sun Life was entitled to its "reasonable" expenses, including legal fees. They were fully informed of the legal fees and disbursements that were included in the amount paid to Sun Life. And, they signed three documents containing a comprehensive release that by its terms extended to Sun Life's legal counsel and their accounts. Therefore the appeal was dismissed.

Peters v. Swayze, 2018 ONCA 189

[Sharpe, Rouleau and Benotto JJ.A.]

Counsel:

L DeLong and E Abraham, for the appellant

G Smits, for the respondent

Keywords: Family Law, Cohabitation, Unjust Enrichment, Constructive Trust

Facts:

Peters and Swayze cohabited for 15 years from 2000 to 2015. When they began living together, Swayze took title to a home that he had owned with his former spouse. There was no equity in the home. Peters and Swayze lived for two years in Peters' apartment and then, in 2002, they moved to the home that Swayze had acquired from his former spouse.

By May 2005, the parties had acquired significant debt. They consolidated their combined debt with a loan with CitiFinancial for $57,290. Swayze was the borrower and Peters co-signed the loan. Swayze testified that the carrying costs of the loan became too much and he refinanced the debt with a mortgage on his home in the amount of $187,568. CitiFinancial was paid $57,000 and, after other legal expenses, Swayze was paid $19,000 from the proceeds of that mortgage. Peters was not liable for the mortgage.

At no time did the parties have joint bank accounts or joint savings. Peters was on Swayze's benefits from work and she and her daughter were on Swayze's car insurance as secondary drivers.

Peters submits that the trial judge erred in dismissing her claim to a constructive trust interest in the home. She claims that she is entitled to half the equity in the home on the basis of her contributions during cohabitation.

Issue: Did the trial judge err in dismissing the appellant's claim to a constructive trust interest in the home?

Holding: Appeal dismissed.

Reasoning:

No. The trial judge made no error in fact or law. The Supreme Court of Canada set out the law of unjust enrichment arising from a common law relationship in Kerr v. Baranow. Pursaunt to that decision, the court first determines if there has been an unjust enrichment by determining whether the defendant has been enriched and the claimant has suffered a corresponding deprivation. If so, then the court then determines if there a reason in law or the justice of the case for the defendant to keep the benefits conferred by the claimant.

If unjust enrichment has been established, the concept of joint family venture comes into play when considering remedy. The Kerr v. Baranow factors to be considered in determining whether a joint family venture exists are:

  • Mutual effort – did the parties pool their efforts and work towards a common goal?
  • Economic integration – how extensively were the parties' finances integrated?
  • Actual intent – did the parties intend to have their lives economically intertwined?
  • Priority of the family – to what extent did the parties give priority to the family in their decision making?

The determination of whether there has been unjust enrichment and a joint family venture are questions of fact, which Peters bears the onus of establishing.

The trial judge found that unjust enrichment had not been established. Peters was never on title to the home and never financially liable for the mortgage on the home. She did not pay for capital repairs, insurance, or property taxes. The $500 that Peters paid per month was essentially rent for herself and her daughter who lived in the home. Although she paid for the phone, internet and cable, she and her daughter were the primary users of these services. There was no evidence of how much the garden increased the value of the home and the trial judge found that gardening was really just a hobby for her.

Having not found unjust enrichment, the trial judge was not required to consider whether a joint family venture existed. He nonetheless did so and concluded that wealth of the parties was not created from the fruits of the domestic and financial relationship. The parties earned about the same income and kept their finances separate. They did not pool their resources, integrate their financial lives or demonstrate an intention to join their finances. They in fact lived separately in the home.

Sands v. Walpole Island First Nations Band, 2018 ONCA 188

[Sharpe, Rouleau and Benotto JJ.A.]

Counsel:

J Peters, for the appellant

L Lung and J Thomas, for the respondent

Keywords: Aboriginal Law, Contracts, Real Property, Leases, Aboriginal Lands, Leasehold Improvements, Rent Reduction, Indian Act, R.S.C. 1985, c. I-5, s 2(3), Band, Exercise of Powers

Facts:

This appeal arises from a series of leases granted to the respondent band member, Rocky Sands, by the appellant Walpole Island First Nations Band Council. Sands operated a hunting camp on the leased lands and made extensive improvements, constructing a lodge and performing other work. The central issue is whether Sands is entitled to credit against the outstanding rental payments on the leases for the cost of the improvements he made. The trial judge held that Sands was entitled to credit in the amount of $532,500 for the improvements, plus his deposit of $40,000, less rent owing in the amount of $430,000, and accordingly awarded Sands judgment for $142,500.

Section 2(3) of the Indian Act, R.S.C. 1985, c. I-5 provides that: (a) a power conferred on a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the electors of the band; and (b) a power conferred on the council of a band shall be deemed not to be exercised unless it is exercised pursuant to the consent of a majority of the councillors of the band present at a meeting of the council duly convened. The question raised on appeal is whether the trial judge erred by failing to appropriately apply section 2(3).

Issues:

(1) Did the trial judge err is failing to apply section 2(3) with respect to Sands' assertion that rent specified in the lease for 2000-2005 was reduced as a result of an oral commitment given to him by Chief Donna Day?

(2) Did the trial judge err is failing to apply section 2(3) with respect to Sands' claim that an arrangement had been made whereby he would be given a credit for improvements to the leased property against rent?

Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge accepted Sands' evidence that Chief Donna Day orally agreed to reduce the annual rent for the years 2001 to 2005 to $84,000. When Indigenous and Northern Affairs Canada ("INAC") wrote to Sands asking him to pay the rent specified in the lease, he responded with a letter explaining that he had spoken to Day, who assured him that the lease had been amended to reflect the reduced rent. INAC forwarded a copy of Sands' letter to the Band and the Band did not respond. When told of this arrangement, the Band made no response and, rather than insisting on the terms of the written lease, acquiesced to the amendment asserted by Sands. However one interprets s. 2(3) of the Act, there is no basis to interfere with the trial judge's finding that the Band was bound by Chief Donna Day's agreement to reduce the rent.

(2) No. There were "Action to File" memos supporting a finding that the Band Council had approved giving Sands credit for leasehold improvements. Following a procedure found by the trial judge to be "completely improper", the Council made the decision to evict Sands for nonpayment of rent.

It was open to the trial judge to find that the Band Council had undertaken to credit Sands for the leasehold improvements he made. The finding was supported by the two "Action to File" memos, the fact that Sands continued to make improvements in reliance on the position taken by the Band Council, and the evidence that other band members were given credit for the cost of leasehold improvements. As these findings rested on decisions made by the Band Council, the argument that Sands' claim is defeated by s. 2(3) of the Act cannot be sustained.

Rivard v. Morris, 2018 ONCA 181

[Rouleau, Trotter and Paciocco JJ.A.]

Counsel:

E Van Woudenberg, for the appellants

M W Shulgan, for the respondent

Keywords: Wills and Estates, Legacies, Payment of Interest, "Rule of Convenience", Rules of Civil Procedure, Rule 65.02(2)

Facts:

Alexander Rivard was survived by a son and two daughters. Since his death, the siblings have been fighting amongst themselves over his estate. First, the sisters, the appellants, unsuccessfully challenged their father's will that left most of his property to their brother, the respondent. Now, the siblings are litigating about whether the brother, as estate trustee, should be paying the sisters interest on the money they were left under that will. If the sisters are entitled to interest payments, the money for the interest would come out of the brother's share of the estate, since he is the residuary beneficiary.

The application judge recognized that there is a rule providing for the payment of interest on legacies in a will if those legacies are payable but payment has been delayed for more than a year. Yet the application judge decided not to apply that rule. He claimed, and exercised, discretion not to do so on the basis that the sisters had been estate trustees during the administration of the estate, and the delay in payment was caused by their challenge to the will. The sisters have appealed that decision.

Issues:

(1) Did the application judge err in holding that Rule 65.02 does not apply?

(2) Did the application judge err in exercising discretion to deny interest on the sisters' specific legacies?

Holding: Appeal allowed.

Reasoning:

(1) No. The common law rule providing for the payment of interest is often called the "rule of convenience." Rule 65.02(2) is a legislated provision to the same effect. It directs that interest is to be paid on legacies from the end of one year after the death of the deceased, unless the will directs another time for payment. However, the court stated that r. 65.02(2) applies where courts administer an estate, while the "rule of convenience" itself applies where personal representatives administer the estate. Thus, the court held that the application judge was correct in finding that r. 65.02(2) does not apply.

(2) Yes. The Court held that the "rule of convenience" applies in the instant case. The appellant sisters were provided with legacies of personal property, namely money in the amount of $530,000 each. These legacies were payable in the relevant sense; there were no conditions delaying payment or contingencies assigned by the testator. Since the testator had not provided for any other time of payment, it was presumed that the testator wanted the legacies to be distributed within a year. Yet payment was delayed beyond the executor's year. Further, none of the fixed exceptions to the "rule of convenience" were applicable. Nonetheless, the court held that it need not decide whether there is judicial discretion to deny the payment of interest provided for under the "rule of convenience". Even if such discretion exists, the application judge did not exercise that discretion according to proper principles.

The court explained that the payment of interest is not a reward. The "rule of convenience" provides it is an entitlement, based on the presumed intention of the testator. Furthermore, the sisters' status as estate trustees, twice mentioned by the application judge, was of no bearing here. They were not disentitled, as estate trustees of the will that was ultimately probated, to contest the validity of that will, and there was no suggestion that they misused their positions to advantage their challenge. Thus the court held that interest is payable. The court granted the specific relief requested by the sisters and ordered the payment of $53,000 in interest on each of their legacies.

Bain v. UBS Securities Canada Inc., 2018 ONCA 190

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

Counsel:

D J Shields and H Nieuwland, for the appellants

C G Paliare and T Lie, for the respondent

Keywords: Employment law, Wrongful Dismissal, Damages, Payment in Lieu of Notice, Deferred Bonuses, Stock Options, Vesting, Vacation Pay, Employment Standards Act, 2000, S.O. 2000, c. 41, Pre-Judgment Interest, Lump-Sum, Instalment Basis, Courts of Justice Act, R.S.O. 1990, c. C.4, s. 130, Costs, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Facts:

This is an appeal of a judgment following a trial in a wrongful dismissal action. The respondent David Bain ("Bain") was an investment banker employed by the appellant UBS Securities Canada Inc. ("UBS"). Bain was dismissed without cause on February 28, 2013, which UBS concedes, as a result of the closure of UBS's Canadian Mergers & Acquisitions arm, in which Bain held the position of Managing Director and Head. The trial judge fixed the reasonable notice period at 18 months, and awarded damages (inclusive of amounts for cash and deferred bonuses and an amount for vacation pay), prejudgment interest and costs.

From the time he was first employed by UBS's predecessor, Bain earned annual compensation consisting of salary and bonus. For the first eight years, Bain's bonus was paid entirely in cash. From 2008 onwards, UBS determined the amount of bonus for the year, and if the amount exceeded the equivalent of 250,000 Swiss Francs, 40% was paid in cash and the other 60% was placed into an account in the form of "notional shares" in UBS AG1, which would fluctuate over time as the value of global UBS's share price changed, and which would "vest" in equal amounts over a number of years. The deferred portion of the bonus was allocated and paid under UBS's Equity Ownership Plan (the "EOP").

On appeal, UBS does not dispute the bonus amounts the trial judge concluded that Bain would have earned. UBS contests the inclusion in those amounts of the deferred portion; that is, the amounts that Bain would have been allocated by way of notional shares, which would have vested in the future, after the expiry of the notice period. The amount in dispute is 60% of the bonus, approximately $1.2 million. There were also minor disputes over the calculation of vacation pay, the award of pre-judgment interest and of costs.

Issues:

(1) Did the trial judge err in awarding Bain damages that included amounts in respect of the loss of the deferred portions of his bonus?

(2) Did the trial judge err by including the bonuses earned as part of Bain's "wages" for the purposes calculating vacation pay under the Employment Standards Act?

(3) Did the trial judge err in her calculation of pre-judgment interest from the date of termination rather than from the dates he would have received payments had he been provided with working notice?

(4) Did the trial judge err in the amount of costs awarded to Bain?

Holding: Appeal dismissed.

Reasoning:

(1) No. Bain had a contractual right to receive compensation that included bonus in the event of his termination without cause. His letter of hire, which continued in force, provided that in the event of his termination, Bain would receive "not less than six (6) months' notice or compensation in lieu thereof", and that "for greater clarity, the amount of equivalent compensation [would] be determined by reference to salary and bonuses". His letter of termination offered to pay Bain the sum of $495,133 as the equivalent of 14 months' notice. The amount corresponds with the average of Bain's total compensation for the prior two years, calculated by UBS as including both the cash and deferred portions of the bonus. Consequently, the trial judge reasonably concluded that, had Bain been awarded a bonus in 2013 for his 2012 performance, which included stock options that would have vested in the future, such options would have continued to vest and would not have been forfeited (at para. 128).

(2) No. Under the Employment Standards Act, vacation pay is calculated on the basis of "wages". "Wages" is defined as "monetary remuneration payable by an employer to an employee under the terms of an employment contract" but does not include "sums paid as gifts or bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency". In this case, the bonuses were at least partly performance-based, therefore there was no error in including them within "wages" earned for the purpose of calculating vacation pay.

(3) No. The Court has previously endorsed both the lump-sum basis of calculating pre-judgment interest and the installment basis. So long as the calculation of pre-judgment interest had "a logical basis and [was] in general accord with similar but not identical dispositions in other unjust dismissal cases", an appellate court ought not to interfere, as the award of pre-judgment interest is discretionary. In this case, the trial judge considered the circumstances and attempted to put Bain in the position he would have been in had proper payments been made at the time of termination. This included a consideration of the fact that upon termination, Bain had been offered a lump-sum, not salary continuance.

(4) No. The court should only interfere with a costs order if the trial judge made an error in principle, or the award was plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9. There was no such error in this case.

White Snow and Sunshine Holdings Inc. v. Metropolitan Toronto Condominium Corporation No. 561, 2018 ONCA 196

[Doherty, MacFarland and Paciocco JJ.A.]

Counsel:

M Cooper, for the appellant

J Milgrom, for the respondent

Keywords: Real Property, Condominiums, Common Elements, Restrictions on Use, Condominium Act, S.O. 1998, c. 19, O.Reg. 48/1, Schedule F

Facts:

White Snow and Sunshine Holdings Inc. (together "White Snow") owns the only two commercial units in a residential condominium building. It wants the condominium corporation, Metropolitan Toronto Condominium Corporation No. 561, which owns the common elements of the building, to change its MTCC Declaration ("Declaration") so that the employees of White Snow will have permission to access the recreational common elements of the condominium. It made an application to the court to this effect. It argued that O.Reg. 48/1 of the Condominium Act, 1998, S.O. 1998, c. 19, requires all exclusive-use areas within the condominium to be contained in Schedule F to the Declaration. In this case, Schedule F did not specify that recreational common elements are for the exclusive use of dwelling unit holders, accordingly, this inconsistency with the Act should be rectified by amending the Declaration to permit White Snow's employees to use the recreational common elements. The application judge dismissed White Snow's application.

Issues:

(1) Did the application judge err in interpreting the relevant provisions of the Condominium Act, 1998?

(2) Did the application judge err by using a zoning by-law to interpret the Condominium Act, 1998?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The Court of Appeal agreed with the reasons of the application judge that restriction of recreational common elements to dwelling unit holders does not have to be listed in Schedule F. Exclusive use by dwelling unit holders of recreational facilities is provided for in s. 7(4)(b) and s. 7(4)(b) restrictions do not have to be specified in Schedule F. The Declaration is therefore not inconsistent with the Condominium Act, 1998, and does not require amendment.

(2) No. The application judge did not use a zoning by-law to interpret the Act. Rather, he used it to explain the proper interpretation of the impugned Declaration.

Dewan v. Burdet, 2018 ONCA 195

[Hourigan, Roberts and Fairburn JJ.A.]

Counsel:

C-A Burdet, for the appellants

K Radnoff, Q.C. and J Collings, for the respondents

G Boyd, for the defendant/respondent, Carleton Condominium Corporation No. 396

Keywords: Real Property, Condominiums, Oppression, Liability of Directors, Condominium Act, 1998, S.O. 1998, c. 19, s. 135, Wilson v. Alharayeri, 2017 SCC 39

Facts:

This case is one of a series of legal proceedings regarding the management of Carleton Condominium Corporation No. 396 ("CCC396"). Following a 35-day trial, the trial judge ordered the following relief:

  • (a) An order that the respondents/appellants in the cross-appeal (the "minority owners") owe CCC396 common expense arrears plus interest in the amounts specified in the reasons, which amounts shall be paid forthwith;
  • (b) A declaration that the appellant/respondent by cross-appeal, Claude-Alain Burdet, oppressed the minority owners;
  • (c) An order that CCC396 is terminated as a condominium corporation pursuant to s. 128 of the Condominium Act, 1998, or, alternatively, pursuant to s. 135 of that Act;
  • (d) An order that Mr. Burdet's claim for services rendered to CCC396 in 2001 is granted in the amount of $20,000, plus interest;
  • (e) An order granting the claims of the appellant/respondent by cross-appeal, Enterprises Ted Rubac Inc. ("ETRE"), against CCC396 for amounts owing under certain promissory notes in the total amount of $50,000, plus interest, and dismissing ETRE's claims under other promissory notes; and
  • (f) An order dismissing all other claims in the counterclaim.

Issues:

(1) Did the trial judge err in declaring that Mr. Burdet acted in a manner that was oppressive to the minority owners' interests?

(2) Did the trial judge erred in terminating CCC396?

(3) Were the oppression claims and other related relief statute-barred?

(4) Did the trial judge err in dismissing the counterclaim?

Holding: Appeal dismissed.

Reasoning:

(1) No. There is no merit in this submission. The evidence of oppressive conduct on the part of Mr. Burdet is detailed, effectively unchallenged, and overwhelmingly compelling. It includes a long history of self-dealing, lack of financial disclosure, charging CCC396 legal fees for personal matters, failing to declare conflicts, refusing to produce records despite being court-ordered to do so, and implementing an invalid by-law.

The very recent decision of the Supreme Court of Canada in Wilson v. Alharayeri is instructive. There the court found that determining a director's personal liability under an oppression remedy requires a two-pronged approach. First, the oppressive conduct must be properly attributable to the director because of his or her implication in the oppression. Second, imposing personal liability must be fit in all the circumstances.

The holding in Wilson is apt in the Condominium Act, 1998 context. Like the oppression remedy provision in s. 241(3) of the CBCA, s. 135(3) of the Condominium Act, 1998 grants a judge broad discretion in crafting an appropriate remedy. That subsection permits a judge to make "any order the judge deems proper" and lists two non-exhaustive examples.

In Wilson, the Supreme Court noted that one of the remedial examples listed in s. 241(3) of the CBCA contemplated "an order compensating an aggrieved person" without specifying against whom such an order may lie. Similarly, s. 135(3)(b) of the Condominium Act, 1998 contemplates "an order requiring the payment of compensation" without further specification. As the Condominium Act, 1998 itself does not indicate when it would be "proper" to hold a director personally liable for oppression, guidance can be sought from Wilson. Where, as here, it is clear that a director is the motivating force behind the oppressive conduct, he or she should be held personally liable. To hold otherwise in the present case would result in the oppressed minority owners being denied their costs or making CCC396 liable for those costs.

(2) No. The trial judge was well aware that a termination order was a remedy of last resort. However, there was an ample record to support that order in this case.

(3) No. This submission is based on the incorrect argument that these claims were raised for the first time in the statement of claim. That is incorrect. The impugned claims were asserted in an application in 2001 and were not statute-barred at that time. The application was later converted by court order to an action. The claims asserted in the statement of claim are essentially the same as those made in the application.

(4) No. The trial judge's decision to dismiss the balance of the counterclaim was well-grounded in the evidence and free of legal error.

Alguire v. The Manufacturers Life Insurance Company (Manulife Financial), 2018 ONCA 202

[Feldman, Cronk and Hourigan JJ.A.]

Counsel:

P Griffin, W Rapoport and A Ziaie, for the appellant

R Harrison and C Pilkington, for the respondent

Keywords: Contracts, Life Insurance, Equitable Remedies, Rectification, Canada (Attorney General) v. Fairmont Hotels, 2016 SCC 56, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5

Facts:

The appellant, William Alguire, appealed the decision of the trial judge dismissing his claim for declaratory and other relief related to a policy of insurance issued by the respondent, The Manufacturers Life Insurance Company ("Manulife").

On June 3, 1982, Mr. Alguire met with an insurance broker and Manulife agent, Alan Elias, about obtaining a $5,000,000 key man insurance policy with large up front premiums in the early years of the policy and greatly reduced premiums thereafter. Mr. Elias contacted Manulife who prepared a special actuarial quote (the "Quote") on June 14, 1982.

The Quote provided for the requested $5,000,000 in face amount coverage, with large premiums paid up front. It also contained a guaranteed paid-up value table that provided for insurance coverage in the event of default. The trial judge found that Mr. Elias accepted the Quote on behalf of Mr. Alguire, and a policy was issued on July 21, 1982 (the "Policy"). The figures in the table of non-forfeiture values on page 3 of the Policy were the same as the table of guaranteed paid-up values in the Quote, save for the fact that the values on page 3 were per $1,000 of the face amount coverage and the values from the Quote were per $5,000 of the face amount coverage.

Mr. Alguire's position at trial was that he had asked that the Policy be specifically designed to ensure that the value of the death benefit grew over the course of his life. He submitted that the Policy provided him with immediate $5,000,000 coverage together with inflation protection over the long term. According to him, the paid-up values on page 3 of the Policy reflected his request for inflation protection.

Mr. Alguire commenced an action seeking, among other things, an order requiring Manulife to honour the terms of the Policy as written – particularly on page 3. Manulife took the position that Mr. Alguire never made a request for inflation protection. It submitted that the values on page 3 of the Policy were clearly created in error. Manulife brought a cross-application seeking rectification of the Policy.

The trial judge dismissed the action after an 18-day trial. He found that the values on page 3 were set out in error, and reflected a common mistake, as the Policy did not accurately reflect the agreement of the parties. He specifically found that Mr. Alguire never requested inflation protection. He ordered that the Policy be rectified to reflect the agreement of the parties that the paid-up values on page 3 were per $5,000 of the face amount coverage. He also rejected Mr. Alguire's submission that Manulife's request for rectification was barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

Issues:

(1) Did the trial judge err in finding that rectification was an available remedy?

(2) If rectification was available, was it statute-barred?

Holding: Appeal dismissed.

Reasoning:

(1) No. Rectification is an equitable doctrine that is available when it is clear that the parties' written agreement does not accord with their actual agreement. In such circumstances, a court may rectify the agreement so that it gives effect to the parties' true intentions: Canada (Attorney General) v. Fairmont Hotels, 2016 SCC 56 at para. 12.

In this case, Manulife argued that rectification was necessary to correct a common mistake. To obtain an order for rectification in these circumstances, Manulife was required to show, "that the parties had reached a prior agreement whose terms are definite and ascertainable; that the agreement was still effective when the instrument was executed; that the instrument fails to record accurately that prior agreement; and that, if rectified as proposed, the instrument would carry out the agreement": Fairmont, at para. 14.

On appeal, Mr. Alguire's primary submission on this issue was that there was an insufficient evidentiary basis at trial for concluding that the parties had entered into an antecedent agreement. Accordingly, he argued that the remedy of rectification was not available.

The court held that there was ample evidence to ground the trial judge's conclusion that there was an antecedent agreement based on the Quote, which was for the issuance of a $5,000,000 key man insurance policy with no special provision for inflation protection. Since the trial judge found that the Quote was an antecedent agreement that contained the definite and ascertainable terms of the parties' bargain, it was open to him to rectify the Policy to reflect the parties' true intention.

(2) No. The court held that the rectification relief sought by Manulife was not statute-barred. The court stated that Manulife's internal discovery of the error in the Policy occurred in 2007. Manulife, however, did not seek to rectify the Policy until after Mr. Alguire filed his application in 2012. The question thus arose as to when the injury, loss, or damage for the rectification claim occurred.

The court explained that until Mr. Alguire instituted his claim and sought to change what the parties had actually agreed to, he had not committed an act or omission causing or contributing to Manulife's injury, loss, or damage for purposes of the rectification claim.

As Manulife only knew that injury, loss, or damage occurred when Mr. Alguire sought a declaration that the erroneous paid-up values were correct, the court held that the claim for rectification was not made after the expiry of the limitation period and was not statute-barred.

Valoris for Children and Adults of Prescott-Russell v. C.A.T. (Publication Ban), 2018 ONCA 182

[Feldman J.A. (Motion Judge)]

Counsel:

A Martel, for appellant

S Côté-Langlois, for the respondent

Keywords: Family Law, Crown Wardship, Adoption, Civil Procedure, Appeals, Extension of Time, Merits of Proposed Appeal, Rules of Civil Procedure, Rule 61.03.1(3)

Facts:

The applicant mother seeks an extension of time to file her notice of motion for leave to appeal the Order of the Divisional Court, dated November 24, 2017. That order dismissed her appeal from Justice Rogers's order dated June 29, 2016, making her child a Crown ward with no access for the purpose of adoption.

According to rule 61.03.1(3) of the Rules of Civil Procedure, the applicant's Notice of Motion for Leave to Appeal should have been filed and served 15 days after the Divisional Court's decision. Instead, she served and filed it 26 days after that decision. The applicant explains that the delay was attributable to attempts to secure financing for the appeal, her need to find appeal counsel and then appeal counsel's illness during the relevant time.

The respondent Children's Aid Society opposes the extension of time. It challenges the assertion that the applicant always intended to seek leave to appeal, as neither she nor her counsel contacted the Society before filing the late notice of motion for leave to appeal. However, its primary position is that the appeal has no chance of success. The child was apprehended four days after his birth in July 2013, and has been with his current foster family since December 2014. This is the only family that this young child (age 4) has known. He has bonded with the family and the family wants to adopt him.

Issues:

(1) Should the applicant mother be granted an extension of time to file her notice of motion for leave to appeal the Order of the Divisional Court?

Holding: Motion dismissed.

Reasoning:

(1) No. While the applicant sincerely wants to have her child or at least to have him in her community, following a full trial, a judge has found, upheld on appeal, that the child is in need of protection and that it is in his best interests to be made a Crown ward with no access so that he can be adopted by the family with whom he has lived for most of his life. There is no basis raised in the written material before the court that suggests that those courts erred in law or that the best interests of the child have been misapprehended. Extending timelines for an appeal that appears to have no chance of success benefits no one.

Short Civil Decisions:

Van WynGaarden v. Thumper Massager Inc. (Appeal Book Endorsement), 2018 ONCA 194

[Juriansz, Rouleau and Miller JJ.A.]

Counsel:

K W Fisher and D Hirbod, for the appellant

D S Mills and D Letto, for the respondent

Keywords: Appeal Book Endorsement

Benarroch v. Abitbol, 2018 ONCA 203

[Doherty, MacFarland and Paciocco JJ.A.]

Counsel:

J Moldaver and L Konkol, for the moving party, Monique Abitbol

D Gelgoot, for the responding party, Alberto Benarroch

Keywords: Family Law, Spousal Support, Child Support, Interlocutory Orders, Breach, J.K. v. Ontario, 2017 ONCA 332

Kashani v. Algonquin College, 2018 ONCA 206

[Juriansz, Rouleau and Miller JJ.A.]

Counsel:

S H Kashani, acting in person

C Dobson and I Bozinovic, for Algonquin College

E Durant, for Shaun Jaberolansar

Keywords: Contracts, Breach of Contract, Civil Procedure, Multiplicity of Proceedings, Abuse of Process

Law v. Cedar Ridge Waterfront Park Corporation, 2018 ONCA 204

[Doherty, MacFarland and Paciocco JJ.A.]

Counsel:

S R Fairley and J Valler, for the appellant

B Y. B. Wong and G Splawski, for the respondents

Keywords: Real Property, Contracts, Rights of Access, Easements, Easements by Estoppel

AMT Finance Inc. v. LaFontaine, 2018 ONCA 213

[Juriansz, Miller and Nordheimer JJ.A.]

Counsel:

E L D'Agostino, for the respondent

S LaFontaine, acting in person

A S L. Froom, acting in person (via videoconference)

Keywords: Civil Procedure, Representation by Lawyer, Rules of Civil Procedure, Rule 15

Froehlich-Fivey v. Fivey, 2018 ONCA 214

[Juriansz, Miller and Nordheimer JJ.A.]

Counsel:

D Williams, for the applicant

D A Thomson, for the respondent

Keywords: Family Law, Child Support, Variation, Fresh Evidence, Family Law Act, R.S.O. 1990, c. F.3, s. 37(2.1), Standard of Review, Slaughter v. Slaughter, 2013 ONCA 432

Meridian Credit Union Limited v. Bishara, 2018 ONCA 201

[Feldman, Benotto and Brown JJ.A.]

Counsel:

K Scullion, for the appellant

A Adams, for the respondent

Keywords: Contracts, Guarantees, Civil Procedure, Summary Judgement, No Genuine Issue Requiring Trial

Sturino v. Crown Capital Corporation, 2018 ONCA 207

[Feldman, Benotto and Brown JJ.A.]

Counsel:

R Quance, for the appellant Canada Investment Corporation

W Jaskiewicz, for the Court Appointed Receiver MNP Ltd.

M Marchoni, for the respondent Frank Sturino

Keywords: Bankruptcy and Insolvency, Receiverships, Distributions

Criminal Decisions:

R v. Bokhari, 2018 ONCA 183

[Feldman, Brown and Fairburn JJ.A.]

Counsel:

M McKee, for the appellant

D Krick, for the respondent

Keywords: Criminal Law, Unauthorized Possession of Firearms and Prohibited Devices, Burden of Proof, Testimonial Silence, Inference of Guilt, R v. Noble, [1997] 1 S.C.R. 874, Reasonableness of Verdict

R v. Diaz (Publication Ban), 2018 ONCA 191

[Sharpe, Pepall and Fairburn JJ.A.]

Counsel:

C Martell, for the appellant

J Witkin, for the respondent

Keywords: Criminal Law, Sexual Assault, Defence of Honest but Mistaken Belief in Consent

R v. Hall, 2018 ONCA 185

[Feldman, Tulloch and Benotto JJ.A.]

Counsel:

D Derstine and S Digiuseppe, for the appellant

R Cornaviera and P Fraser, for the respondent

Keywords: Criminal Law, First Degree Murder, Evidence, Instructions to Jury, Evidence, Consciousness of Guilt, R v. B. (C.R.), [1990] 1 S.C.R. 717, R v. Handy, 2002 SCC 56, Prejudicial Effect, Circular Reasoning, R v. Higginbottom (2001), 156 C.C.C. (3d) 178, R v. Portillo (2003), 176 C.C.C. (3d) 467

R v. Wabason, 2018 ONCA 187

[MacFarland, Pardu and Benotto JJ.A.]

Counsel:

A Furgiuele, for the appellant

M Lai, for the respondent

Keywords: Criminal Law, Manslaughter, Evidence, Statements, Voluntariness, Police Threats or Inducements, R v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, Standard of Review

R v. Kiss (Publication Ban), 2018 ONCA 184

[Epstein, Paciocco and Nordheimer JJ.A.]

Counsel:

K E Wright, Esq., for the appellant (C60993)/ respondent (C61286)

H Freeman, for the respondent (C60993)/ appellant (C61286)

Keywords: Criminal Law, Sexual Assault, Consent, Evidence, Credibility, Degree of Scrutiny, Burden of Proof, Preponderance of Probabilities, Right to Silence, R v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, R v. Poirier, [2000] O.J. No. 2292, 133 O.A.C. 352, R v. Rohde, 2009 ONCA 463, 246 C.C.C. (3d) 18, R v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1, Reply Witnesses, Canada Evidence Act, R.S.C. 1985, c. C-5, s. 9(2)

R v. Ramdhar (Appeal Book Endorsement), 2018 ONCA 180

[Watt, Brown and Huscroft JJ.A.]

Counsel:

M Gourlay, for the appellant

K Doherty, for the respondent

Keywords: Criminal Law, Appeal Book Endorsement

R v. Ticzon, 2018 ONCA 198

[Pepall, Benotto and Fairburn JJ.A.]

Counsel:

J Zita, for the appellant

S Shaikh, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Possession of a Weapon for a Purpose Dangerous to Public Safety, Credibility, Right to Remain Silent, Adverse Inference, Sentencing

R v. Josipovic, 2018 ONCA 199

[Nordheimer J.A. (In Chambers)]

Counsel:

D Doucette and D C Santoro, for the applicant

C Harper, for the respondent

Keywords: Criminal Law, Second Degree Murder, Appointment of Counsel, Insufficient Means to Retain Counsel, Criminal Code, R.S.C. 1985, c. C-46, s. 684(1), Denial of Legal Aid, Legal Aid Services Act, 1998, S.O. 1998, c. 26, s. 684

R v. Walia, 2018 ONCA 197

[Hoy A.C.J.O. Simmons and Pardu JJ.A.]

Counsel:

A D Gold and L Metcalfe for the respondent

C Webb for the appellant

Keywords: Criminal Law, Assault with a Weapon, Aggravated Assault, Unreasonable Verdict, Instructions to the Jury, Criminal Code, R.S.C. 1985, c. C-46, s. 267(a), s. 268, Sentencing

R v. Akenna (Publication Ban), 2018 ONCA 212

[Strathy C.J.O., Simmons and Hourigan JJ.A.]

Counsel:

A Gold, for the appellant

A Alyea, for the respondent

Keywords: Criminal Law, Possession of Child Pornography, Breach of Probation, Ineffective Assistance of Counsel

R v. Campbell, 2018 ONCA 205

[Feldman, Paciocco and Fairburn JJ.A.]

Counsel:

A Herscovitch, for the appellant

A Cappell, for the respondent

Keywords: Criminal Law, Possession of a Prohibited Firearm and Ammunition, Evidence, Recalling Witnesses, Expert Evidence, Unreasonable Verdict, Criminal Code, s. 686(1)(a)(i), s. 686(1)(a)(iii)

R v. McIntyre, 2018 ONCA 210

[Epstein J.A. (Motions Judge)]

Counsel:

B Vandebeek, for the applicant

C Elmasry, for the respondent

Keywords: Criminal Law, Sentencing, Extension of Time for Leave to Appeal, R v. Stirling, 2005 CarswellOnt 10611 (C.A., In Chambers), Criminal Code, s. 679(1)(b); Criminal Appeal Rules, SI/93-169, r. 31, Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario, 7.2.11 (March 1, 2017), Application for Release Pending Bail, R v. Hassan, 2017 ONCA 1008, Public Interest, Unnecessary Hardship, Constitutionality of Mandatory Minimum Sentences

R v. Rage, 2018 ONCA 211

[Strathy C.J.O., Simmons and Hourigan JJ.A.]

Counsel:

F Mirza, for the appellant

B Crackower, for the respondent

Keywords: Criminal Law, Possession and Trafficking of Controlled Substance, Evidence, Adverse Inferences, Rowbotham Applications, Sentencing, Conditional Sentences, R v. Peterson (2005), 201 C.C.C. (3d) 220 (Ont. C.A.)

Ontario Review Board Decisions:

Negash (Re), 2018 ONCA 179

[Hoy A.C.J.O., Simmons and Pardu JJ.A.]

Counsel:

A Szigeti, for the appellant

K Hunt, for the Person in Charge of the Centre for Addiction and Mental Health

J Sone, for the Attorney General of Ontario

Keywords: Ontario Review Board, Robbery, Not Criminally Responsible, Mental Disorder, Significant Threat to Public Safety, Detention Order, Conditional Discharge, Mental Health Act, R.S.O. 1990, c. M.7

Larose (Re), 2018 ONCA 208

[Strathy C.J.O, Simmons and Hourigan JJ.A.]

Counsel:

M Perez, for the appellant

A Alyea, for the respondent Attorney General of Ontario

J Blackburn, for the Person in charge of Waypoint Centre for Mental Health Care

Keywords: Ontario Review Board, Criminal Law, Murder, Dual-Status Offender, Not Criminally Responsible, Placement Review Hearings

Tolias (Re), 2018 ONCA 215

[Strathy C.J.O., Simmons and Hourigan JJ.A.]

Counsel:

C Hicks and KL Hennebury, for the appellant

D Bonnet, for Her Majesty the Queen (Ontario)

Keywords: Ontario Review Board, Not Criminally Responsible, Significant Threat to Public Safety, Criminal Code, s. 672.54.01, Conditional Discharge, Treatment Order

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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8 Nov 2018, Conference, Toronto, Canada

This year’s program is entitled “An Analysis of Fidelity Claims for the Modern World.” The program will address important substantive and practical issues germane to today’s fidelity claims handling.

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