Canada: Ontario Court Of Appeal Summaries (December 10 – 14, 2018)

Blaney's Appeals
Last Updated: December 20 2018
Article by John Polyzogopoulos

Following are our summaries of the civil decisions of the Court of Appeal for Ontario released this past week. The decisions dealt mainly with procedural issues.

Topics covered included another decision in the ongoing Residential School Settlement saga (procedural fairness), family law (unequal division of property and striking pleadings for failure to comply with disclosure order), estates (passing accounts by an attorney under a POA), real property (termination of APS of land and 99 year leases contravening the Planning Act), security for costs, appellate jurisdiction and stay pending appeal in the context of vexatious litigants. We also summarized two provincial offences matters this week, as they relate to workplace safety and environmental issues that civil lawyers practicing in those areas will want to be aware of.

Table of Contents

Civil Decisions

Brunning v. Canada (Attorney General), 2018 ONCA 1009

Keywords: Class Proceedings, Interlocutory vs. Final Orders, Jurisdiction, Procedural Fairness, Natural Justice, Courts of Justice Act, RSO 1990 c C43, s 6(1)(b), s 19(1)(b), Grand River Enterprises v. Burnham (2005), 10 C.P.C. (6th) 136 (Ont CA)

Bukshtynov v. McMaster University, 2018 ONCA 1006

Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rule 61.06 (1), Yaiguaje v. Chevron Corporation, 2017 ONCA 827

Canadian Imperial Bank of Commerce v. Cherrington, 2018 ONCA 1005

Keywords: Civil Procedure, Appeals, Extensions of Time, Default Judgments, Setting Aside, Real Property, Mortgages

Son v. Khan, 2018 ONCA 984

Keywords: Civil Procedure, Vexatious Litigants, Writs of Seizure and Sale, Courts of Justice Act, ss. 134(2) and 140, Attorney General of Ontario v. Reyes, 2017 ONCA 613

Al-Fadhly v. Al-Pachachi, 2018 ONCA 1013

Keywords: Family Law, Unequal Division of Family Property, Unconscionability, Compensatory Support, Striking Pleadings, Evidence, Fresh Evidence, Adverse Inferences, Family Law Rules, Rule 1(8)(e), Ward v. Ward, 2012 ONCA 462

Lacey v. Kakabeka Falls Flying Inc., 2018 ONCA 1007

Keywords: Real Property, Commercial Tenancies, Leases, Part Performance, Civil Procedure, Procedural Fairness, Planning Act, R.S.0.1960, c. 296 s. 26(2) & 26(3)(a), Planning Act, R.S.O. 1990, c. P.13 s. 50(3), Aeronautics Act, R.S.C. 1985, c. A-2, Rules of Civil Procedure, Rule 39.02(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109

Dzelme v. Dzelme, 2018 ONCA 1018

Keywords: Wills and Estates, Powers of Attorney, Passing of Accounts, Standing, Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 42(4), McAllister Estate v. Hudgin (2008), 42 ETR (3d) 313, Lacroix v Kalman, 2015 ONSC 19

Hosseinzadeh v. Pringle, 2018 ONCA 1020

Keywords: Contracts, Real Property, Agreements of Purchase of Sale of Land, Contractual Interpretation, Standard of Review, Bouskill v. Campea (1976), 12 O.R. (2d) 265 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] S.C.R. 633, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23

Burke v. Poitras, 2018 ONCA 1025

Keywords: Family Law, Civil Procedure, Orders, Enforcement, Striking Pleadings, Settlement Conferences, Disclosure, Custody and Access, Family Law Rules, O Reg 114/99, s 1(7.1), s 1(8), s 1(8.1), s 17(5), s 17(8)(b.1), Roberts v Roberts, 2015 ONCA 450, Manchanda v Thethi, 2016 ONCA 909, DD v HD, 2015 ONCA 409

Fontaine v. Canada, 2018 ONCA 1023

Keywords: Civil Procedure, Appeals, Jurisdiction, Class Proceedings, Residential School Settlement, Orders, Stay Pending Appeal, Functus Officio, Procedural Fairness, A.(L.L.) v. B.(A.), [1995] 4 SCR 536, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 6

Short Civil Decisions

1583881 Ontario Limited v. Genesis Express and Logistics Inc, 2018 ONCA 994

Keywords: Civil Procedure, Representation by Lawyer, Security for Costs, Small Claims Court, Divisional Court, Rules of Civil Procedure, Rules 15, 56.01(1)(d) and 61.06

Braga v. Huang, 2018 ONCA 1000

Keywords: Torts, Negligence, Motor Vehicle Accidents, Civil Procedure, Persons under Disability, Litigation Guardians, Public Guardian and Trustee, Appeals, Extension of Time, Rules of Civil Procedure, r. 1.03(1), Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 6, Braga v. Huang, 2016 ONSC 6306, Braga v. Huang, 2017 ONSC 3826 Braga v. Huang, 2017 ONCA 268, Denison Mines Ltd. v. Ontario Hydro, (2001) 56 O.R. (3d) 181 (C.A.)

Ford v. Windsor (City), 2018 ONCA 992

Keywords: Civil Procedure, Costs, Appeals, Leave to Appeal, Stay Pending Appeal, Judgment Debtor Examinations, Fraudulent Conveyances, Rules of Civil Procedure, Rule 63.01

Law Society of Ontario v. Leahy, 2018 ONCA 1010

Keywords: Administrative Law, Regulated Professions, Lawyer, Law Society of Ontario, Fresh Evidence, Abuse of Process, Permanent Injunctions, Law Society Act, R.S.O. 1990, c. L.8, ss. 26.1 and 26.3

Nguyen v. Tran, 2018 ONCA 985

Keywords: Family Law, Matrimonial Home, Civil Procedure, Appeals, Stay Pending Appeal, Irreparable Harm, Balance of Convenience, Rules of Civil Procedure, Rule 63.01, Family Law Rules, O. Reg. 114/99, Rule 38(33), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

Lee v. Ponte, 2018 ONCA 1021

Keywords: [Contracts, Interpretation, Debtor-Creditor, Wills and Estates, Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, s. 7, Papamonolopoulos v. Toronto (City) Board of Education, [1987] 75 O.R. (2d) 388 (C.A.)

Papp v. Papp ,2018 ONCA 1039

Keywords: Appeal Book Endorsement, Jurisdiction, Rules of Civil Procedure, Rule 31.10

York Region Standard Condominium Corporation No. 1279 v. 1806780 Ontario Inc., 2018 ONCA 1015

Keywords: Appeal Book Endorsement, Real Property, Condominium law, Disclosure, Condominium Act, 1998, S.O. 1998, c. 19, s. 133

Criminal Decisions

R v. Meloche, 2018 ONCA 987

Keywords: Criminal Law, Aggravated Assault, Bail Pending Appeal, Criminal Code, s. 679(3)(c), R. v. Oland, 2017 SCC 17

R. v. Johnson-Lee, 2018 ONCA 1012

Keywords: Criminal Law, Second Degree Murder, Attempted Murder, Jury Instructions, Evidence, Post-Offence Conduct, Probative Value, Identity, Fresh Evidence, Judicial Discretion, Criminal Code, s. 686(1)(a)(iii), R. v. Arcangioli, [1994] 1 S.C.R. 129, R. v. S.B.1, 2018 ONCA 807, R. v. Hall, 2010 ONCA 724, R. v. O'Connor (2002), 62 O.R. (3d) 263 (C.A.), Browne v. Dunn (1893), 6 R. 87 (H.L.), R. v. Khan, 2001 SCC 86

R. v. Ledinek, 2018 ONCA 1017

Keywords: Criminal Law, Possession of Prohibited Firearm, Breach of Order Prohibiting Possession of Firearm, Sentencing, Double Counting, Totality and Parity, Pretrial Custody, Criminal Code, s. 719(3.1), R. v. Duncan, 2016 ONCA 754

R. v. M.M., 2018 ONCA 1019

Keywords: Criminal Law, Sexual Assault, Ineffective Assistance, Evidence, Credibility, R. v. G.D.B., 2000 SCC 22

R. v. Ariaratnam, 2018 ONCA 1027

Keywords: Criminal Law, Second Degree Murder, Provocation, Jury Instructions, Evidence, Post-Offence Conduct, Criminal Code, ss. 229(a) and 232(1), Canadian Charter of Rights and Freedoms, ss. 24(1) and 7, R. v. Ariaratnam, 2012 ONSC 3800, R. v. Mayuran, 2012 SCC 31, R. v. Parent, [2001] 1 S.C.R. 761, R. v. Hales, [2005] EWCA Crim. 1118, R. v. White, 2011 SCC 13, R. v. Ariaratnam, 2012 ONSC 4070

R. v. McPhee, 2018 ONCA 1016

Keywords: Criminal Law, Aggravated Assault, Consent, Evidence, Credibility, Criminal Code, ss. 34, 267(b), 268 and 686(5), R. v. McGown, 2016 ONCA 575, R. v. Cunha, 2016 ONCA 491

R. v. Punia, 2018 ONCA 1022

Keywords: Criminal Law, Aggravated Manslaughter, Sentencing, R. v. Clarke (2003) 172 O.A.C. 133

R. v. Ivall, 2018 ONCA 1026

Keywords: Criminal Law, Second Degree Murder, Intoxication, Provocation, Vetrovech Witness, Evidence, Hearsay, Opinion Evidence, Jury Instructions, Sentencing, Criminal Code, s. 686(1)(b)(iii), Canada Evidence Act, R.S.C., 1985, c. C-5, s. 9(2), R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Vetrovec, [1982] 1 S.C.R. 811, R. v. Biscette, [1996] 3 S.C.R. 599, R. v. Chretien, 2014 ONCA 403, R. v. Youvarajah, 2013 SCC 41, R. v. Bradshaw, 2017 SCC 35

R. v. Jones, 2018 ONCA 1032

Keywords: Criminal Law, Fraud under $5,000, Sentencing

R. v. Martin, 2018 ONCA 1029

Keywords: Criminal Law, Dangerous Driving, Possession of a Stolen Vehicle, Attempted Robbery, Attempted Theft, Driving while Disqualified, Sentencing, Aboriginal Offenders, Gladue Factors, Criminal Code, s. 718.2(e), R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Ipeelee, 2012 SCC 13, R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.)

R. v. Veerasingam, 2018 ONCA 1031

Keywords: Criminal Law, Child Luring, Communication for the Purpose of Prostitution with a Person under 16, Bail Pending Appeal, Criminal Code, ss. 172.1(4) and 286.1, Canadian Charter of Rights and Freedoms, s. 7

R. v. Couvieau, 2018 ONCA 1036

Keywords: Appeal Book Endorsement, Criminal Law, Appeal Dismissed as Abandoned

R. v. Harlowe, 2018 ONCA 1037

Keywords: Appeal Book Endorsement, Criminal Law, Sentencing, Probation, No Contact Orders, Variation of Conditions

R. v. Pottinger, 2018 ONCA 1028

Keywords: Appeal Book Endorsement, Criminal Law, Dismissed as Abandoned

R. v. Barna, 2018 ONCA 1034

Keywords: Criminal Law, Laundering Proceeds of Crime, Actus Reus, Mens Rea, Sentencing, Delay, Criminal Code, ss. 462.31 and 730(1), Canadian Charter of Rights and Freedoms, s. 11(b), R v. Barna, 2014 ONSC 7558, R v. Barna, 2014 ONSC 3788, R v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, R v. Morin, [1992] 1 S.C.R. 771, R v. Daoust, 2004 SCC 6

Ontario Review Board

Ghawar (Re), 2018 ONCA 1008

Keywords: Ontario Review Board, Criminal Law, Aggravated Assault, Failure to Stop for the Police, Breach of Probation, Not Criminally Responsible, Sentencing, Conditional Discharges, Significant Threat to the Safety of the Community, Criminal Code, Part XX.1, Sokal (Re), 2018 ONCA 113, Wall (Re), 2017 ONCA 713

Medcof (Re), 2018 ONCA 1011

Keywords: Ontario Review Board, Criminal Law, Kidnapping, Assault, Sentencing, Conditional Discharges, Significant Threat to the Safety of the Public, Criminal Code, Part XX.1, Medcof (Re), 2018 ONCA 299

Leger (Re), 2018 ONCA 1035

Keywords: Ontario Review Board, Criminal Law, Detention Orders, Conditional Discharges, Risk to Public Safety, Mental Health Act, R.S.O. 1990, c. M. 7, s. 15(1.1)

Provincial/Regulatory Offences Decisions

Ontario (Labour) v. Nugent, 2018 ONCA 1014

Keywords: Provincial Offences, Regulatory Offences, Labour and Employment Law, Occupational Health and Safety, Appeals, Leave to Appeal, Dismissal for Charter Delay, Criminal Negligence Causing Death, Canadian Charter of Rights and Freedoms, s. 11(b), Occupational Health and Safety Act, R.S.O. 1990, c.0.1, Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131, R. v. Jordan, 2016 SCC 27, Ontario (Ministry of the Environment and Climate Change) v Sunrise Propane Energy Group Inc, 2018 ONCA 461, R. v. Picard, 2017 ONCA 692, R. v. Manasseri, 2016 ONCA 703, R. v. Jurkus, 2018 ONCA 489, R. v. Saikaley, 2017 ONCA 374

Ontario (Environment and Climate Change) v. Gei, 2018 ONCA 1030

Keywords: Environmental Law, Provincial Offences, Regulatory Offences, Statutory Interpretation, Warrantless Inspections Definition of "Reasonable Belief", Environmental Protection Act, RSO 1990, c E.19, s 1(1), 3(1), 6, 156(1), 156(2), 156.1, 157, 158, 159, 160, 161, 184(1), Provincial Offences Act, RSO 1990, c P.33, s 131, Legislation Act, 2006, SO 2006, c 21, Sched F, s 64(1), R v Debot, [1989] 2 SCR 1140, R v Kalsatos, 2016 ONCJ 252, Castonguay Blasting Ltd v Ontario (Environment), 2013 SCC 52, Dow Chemical Canada Inc (2000), 47 OR (3d) 577, Re Rockcliffe Park Realty Ltd and Director of the Ministry of the Environment et al (1976), 10 OR (2d) 1, R v Consolidated Mayburn Mines Ltd, [1998] 1 SCR 706, Ontario v Canadian Pacific Ltd, [1995] 2 SCR 1031, Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, Canada (Minister of Citizenship and Immigration v USA, 2014 FC 416, Ontario (Registrar of Alcohol and Gaming Commission) v 751809 Ontario Inc (Famous Flesh Gordon's), 2013 ONCA 157, leave to appeal refused, [2013] SCCA No 259, 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685, Platnick v Bent, 2018 ONCA 687, R v McKinlay Transport Ltd, [1990] 1 SCR 627, R v Nicol (1997), 114 CCC (3d) 570 (Ont CA)


CIVIL DECISIONS

Brunning v. Canada (Attorney General), 2018 ONCA 1009

[Doherty, Miller and Fairburn JJ.A.]

Counsel:

C.A. Coughlan and B. Thompson, for the moving party, The Attorney General of Canada

L. Greenspon, for the responding party

Keywords: Class Proceedings, Interlocutory vs. Final Orders, Jurisdiction, Procedural Fairness, Natural Justice, Courts of Justice Act, RSO 1990 c C43, s 6(1)(b), s 19(1)(b), Grand River Enterprises v. Burnham (2005), 10 C.P.C. (6th) 136 (Ont CA)

FACTS:

The appellant represented persons involved in proceedings conducted under the auspices of the Indian Residential Schools Settlement Agreement (the "IRSSA"). On January 4, 2018, the Eastern Administrative Judge for the IRSSA released reasons addressing various issues raised in a Request for Directions brought by the appellant on behalf of her clients. The decision went largely, but not entirely, against the appellant's clients.

The appellant subsequently sent several emails to court counsel in which she indicated that her client would not participate in the further scheduled proceedings before the Independent Assessment Process Adjudicator (the "IAP Adjudicator") unless appropriate disclosure was made before the scheduled hearing date. The appellant also complained about the conduct of the respondent and failures in the adjudicative process, and challenged the correctness of the Eastern Administrative Judge's reasons.

The Eastern Administrative Judge subsequently released a Direction of his own initiative, without requesting or receiving any input from counsel, in which he addressed the contents of the various emails. He made it clear that the appellant and her client could not unilaterally decide that they would not appear as scheduled before the IAP Adjudicator. He also he commented unfavourably and at some length about the appellant's conduct and statements.

The appellant accordingly appealed from this Direction, while the respondent moved to quash the appeal.

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