Canada: Ontario Court Of Appeal Summaries (December 24 – 28, 2018)

Blaney's Appeals
Last Updated: January 7 2019
Article by John Polyzogopoulos

I hope everyone celebrating had a Merry Christmas.

As expected at this time of year, it was a quiet week at the Court of Appeal for Ontario.

There was only one substantive civil decision, Lauzon v Fortier, a family law decision. The issue was whether a husband who was owed his share of the equity in the matrimonial home upon transferring it to his wife following separation should be required to receive that equity by way of set-off as against the equalization payment that he owed his wife. The main asset to be equalized was the husband's pension, which he would not vest for years. The Court refused to interfere with the trial judge's exercise of discretion that the husband be paid his equity by the wife immediately (even if that meant the wife might have to sell the matrimonial home), and that the husband make his equalization payment to his wife by way of a spousal rollover of his pension. It was open to the trial judge to conclude that it would be unfair to the husband to leave the marriage after 15 years with what amounted to a single asset – his pension – that he could not access for many years. The result was that the husband and the wife could both equally enjoy the fruits of their marriage in the present, as well as in the future.

Wishing everyone a Happy New Year and all the best for 2019!

Table of Contents

Civil Decisions

Lauzon v. Fortier, 2018 ONCA 1086

Keywords: Family Law, Matrimonial Home, Equalization of Net Family Property, Set-Off

Criminal Decisions

R. v. Bews, 2018 ONCA 1077

Keywords: Appeal Book Endorsement, Criminal Law, Canadian Charter of Rights and Freedoms

R. v. Dowser, 2018 ONCA 1079

Keywords: Appeal Book Endorsement, Criminal Law

R. v. Hersi, 2018 ONCA 1082

Keywords: Criminal Law, Possession of a Firearm, Trafficking a Firearm, Criminal Code, s. 99, R. v. Murdock (2003), 176 C.C.C. (3d) 232 (Ont. C.A.), R. v. Duncan, 2015 ONCA 928, 332 C.C.C. (3d) 347, Jurisdiction, Criminal Code, s. 478, Evidence, Admissibility, Hearsay, Criminal Code, s. 686(1)(b)(iii)

R. v. Othman, 2018 ONCA 1073

Keywords: Criminal Law, Second-Degree Murder, Defences, Self-Defence, Provocation, Evidence, Admissibility, Prior Statements, Voluntariness, R. v. Oickle, 2000 SCC 38, R. v. Wabason, 2018 ONCA 187, R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.J.)

R. v. Petroniuk, 2018 ONCA 1083

Keywords: Criminal Law, Assault, Criminal Code, s. 672.56, Canadian Charter of Rights and Freedoms, s. 7, Campbell (Re), 2018 ONCA 140

R. v. Dillon, 2018 ONCA 1085

Keywords: Criminal Law, Possession of a Firearm, R. v. Richards, 2001 CanLII 21219 (Ont. C.A.), R. v. Charbonneau, 2004 CanLII 9527 (Ont. C.A.), Evidence, Admissibility, Hearsay, Prior Inconsistent Statements, Vetrovec Witnesses

R. v. Jiang, 2018 ONCA 1081

Keywords: Criminal Law, Second Degree Murder, Mistrials, Non-Disclosure, Canadian Charter of Rights and Freedoms, s. 7, R. v. Dixon, [1998] 1 S.C.R. 244, R. v. Skinner, [1998] 1 S.C.R. 298, R. v. LAT (1993), 14 O.R. (3d) 378 (C.A.)

R. v. Albinowski, 2018 ONCA 1084

Keywords: Criminal Law, Sentencing, Delay, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan, 2016 SCC 27, Standard of Review, Correctness, R. v. Jurkus, 2018 ONCA 489, leave to appeal refused, [2018] S.C.C.A. No. 325, R. v. Godin, 2009 SCC 26, R. v. Gopie, 2017 ONCA 728

Ontario Review Board

Persaud (Re), 2018 ONCA 1080

Keywords: Ontario Review Board, Criminal Law, Attempted Murder, Aggravated Assault, Assault with a Weapon, Not Criminally Responsible, Mental Disorder, Community Treatment Order, Mental Health Act

Williams(Re), 2018 ONCA 1087

Keywords: Ontario Review Board, Criminal Law, Uttering Threats, Assault Causing Bodily Harm, Possession of Property Obtained by Crime, Disguise with Intent, Mental Health, Not Criminally Responsible


CIVIL DECISIONS

Lauzon v. Fortier, 2018 ONCA 1086

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

Counsel:

J. Summers, for the appellant

Y. Guilbault and J. Houle, for the respondent

Keywords: Family Law, Matrimonial Home, Equalization of Net Family Property, Set-Off

Facts:

The appellant and respondent separated in October 2014 after 15 years of marriage. The respondent commenced an application in April 2014, seeking various relief, including equalization of net family property and the immediate sale of the matrimonial home. The appellant asked for the equalization of net family property and exclusive possession of the matrimonial home and its contents.

On June 9, 2016, the parties signed interim minutes of settlement. The parties then agreed that the equity in the matrimonial home was $256,519 and that the respondent's share of said equity was $128,260. By the time the application proceeded to trial in September 2017, the parties had settled the issues of custody, access and support on a final basis, and the trial judge incorporated the terms of their settlement into his final order. The trial judge then calculated the equalization payment owed by the respondent to the appellant as $144,934.47. He observed that the question of how the equalization payment was to be made was disputed between the parties. The appellant submitted that the equalization payment should be satisfied by the respondent receiving a credit of $128,260, representing his equity in the matrimonial home, and that the balance be paid by a transfer from the respondent's pension plan grossed up by 15% for income tax. The respondent sought an order that he be paid the equity in the matrimonial home and that if the appellant was unable to make the payment, that the home be sold. The respondent proposed that the equalization be satisfied by a pension rollover.

The trial judge observed that, although the parties were represented by counsel at the time, the interim minutes of settlement did not address how the respondent was to be paid his equity or how equalization was to be determined. The parties did not agree on the effect of the transfer on the equalization calculation and payment or on how the equalization payment was to be made.

In the absence of an agreement, the trial judge determined the issue after considering the Family Law Act and various jurisprudence. After referring to the preamble of the Family Law Act, its primary goal as a division of assets that is fair to both spouses, the fact that the parties worked hard throughout their marriage, and that their largest asset, other than the respondent's pension, was the matrimonial home, the trial judge concluded that it would be unfair to the respondent to leave the marriage after 15 years with what amounted to a single asset – his pension – that he could not access for many years. He therefore ordered that the equalization payment be made by a pension rollover, a decision he observed was in keeping with the primary goal of the Family Law Act that the division of assets be fair to both spouses.

The trial judge held that the appellant owed the respondent the sum of $128,560 for his share in the matrimonial home. After reviewing the relevant statutory provisions, he concluded that he could not order the sale of the matrimonial home to enforce the payment of this post-separation adjustment as it was not related to the equalization payment which the respondent, not the appellant, was required to make. Accordingly, the final order required the respondent to pay an equalization payment of $166,674.64 (which included a 15% gross-up for income tax) by way of rollover of his pension, and the appellant to pay the respondent $128,560 for his share in the matrimonial home, with interest at 3% effective the date of the transfer.

Issues

(1) Did the trial judge err in refusing to address the respondent's entitlement as a set-off against the equalization payment he owed to the appellant?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The trial judge concluded that the parties were not in agreement as to how the equalization payment was to be made or as to how the respondent was to be compensated for transferring his interest in the matrimonial home to the appellant. The inclusion of the words "the equalization of the net family properties shall be addressed at a later date", without more, did not mean that the respondent would be entitled to payment for his share of the matrimonial home only by way of set-off against the equalization payment, once the amount was determined. As the trial judge noted, if the parties intended that result, the minutes should have said so. He concluded that the parties agreed to defer that issue to trial.

The agreement was silent as to how the respondent was to be compensated for the transfer of his equity in the home which had occurred between the date of separation and the trial. Since the appellant rightfully acknowledged that the respondent was entitled to some form of compensation for the transfer (whether by payment or by set-off), both parties effectively agreed that there was an issue beyond the value of the equalization payment – always calculated as at the date of separation – that was left to be resolved. That is, for the court to grant either party's request, an order was required that went beyond the value of the equalization payment owing at the time of separation and how it was to be paid. In the absence of an agreement between the parties to that effect, the trial judge was not obliged to order the payment to be made by way of set-off against the equalization payment owed to the appellant by the respondent.


CRIMINAL DECISIONS

R. v. Bews, 2018 ONCA 1077

[Juriansz, Brown and Roberts JJ.A.]

Counsel:

M. Peterson, for the appellant

D. Quayat, for the respondent

Keywords: Appeal Book Endorsement, Criminal Law, Canadian Charter of Rights and Freedoms

R. v. Dowser, 2018 ONCA 1079

[Juriansz, Brown and Roberts JJ.A]

Counsel:

M. Dineen, for the appellant

A. Cappell, for the respondent

Keywords: Appeal Book Endorsement, Criminal Law

R. v. Hersi, 2018 ONCA 1082

[Juriansz, Benotto and Trotter JJ.A.]

Counsel:

C. Verner, for the appellant H.

R. C. Bottomley, for the appellant M.

E. Nakelsky, for the respondent

Keywords: Criminal Law, Possession of a Firearm, Trafficking a Firearm, Criminal Code, s. 99, R. v. Murdock (2003), 176 C.C.C. (3d) 232 (Ont. C.A.), R. v. Duncan, 2015 ONCA 928, 332 C.C.C. (3d) 347, Jurisdiction, Criminal Code, s. 478, Evidence, Admissibility, Hearsay, Criminal Code, s. 686(1)(b)(iii)

R. v. Othman, 2018 ONCA 1073

[Simmons, Juriansz and Benotto JJ.A.]

Counsel:

F. Addario and S. Secter, for the appellant

C. Webb and D. Bonnet, for the respondent

Keywords: Criminal Law, Second-Degree Murder, Defences, Self-Defence, Provocation, Evidence, Admissibility, Prior Statements, Voluntariness, R. v. Oickle, 2000 SCC 38, R. v. Wabason, 2018 ONCA 187, R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.J.)

R. v. Petroniuk, 2018 ONCA 1083

[MacPherson, Pardu and Brown JJ.A.]

Counsel:

G. Jenner, for the appellant

C. Weiler, for the respondent, Her Majesty the Queen

G. MacKenzie, for the respondent, The Person in Charge of the Centre for Addiction and Mental Health

Keywords: Criminal Law, Assault, Criminal Code, s. 672.56, Canadian Charter of Rights and Freedoms, s. 7, Campbell (Re), 2018 ONCA 140

R. v. Dillon, 2018 ONCA 1085

[MacPherson, Pardu and Brown JJ.A.]

Counsel:

B. Vandebeek and M. Halfyard, for the appellant

C. Sharawy, for the respondent

Keywords: Criminal Law, Possession of a Firearm, R. v. Richards, 2001 CanLII 21219 (Ont. C.A.), R. v. Charbonneau, 2004 CanLII 9527 (Ont. C.A.), Evidence, Admissibility, Hearsay, Prior Inconsistent Statements, Vetrovec Witnesses

R. v. Jiang, 2018 ONCA 1081

[Hourigan, Pardu and Harvison Young JJ.A.]

Counsel:

D. Doucette, A. Furgiuele and Z. Shariff, for the appellant

M. Rupic and R. Schwartz, for the respondent

Keywords: Criminal Law, Second Degree Murder, Mistrials, Non-Disclosure, Canadian Charter of Rights and Freedoms, s. 7, R. v. Dixon, [1998] 1 S.C.R. 244, R. v. Skinner, [1998] 1 S.C.R. 298, R. v. LAT (1993), 14 O.R. (3d) 378 (C.A.)

R. v. Albinowski, 2018 ONCA 1084

[Sharpe, Juriansz and Roberts JJ.A. ]

Counsel:

A. Ratsoy, for the appellant

J. Hale, for the respondents

Keywords: Criminal Law, Sentencing, Delay, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan, 2016 SCC 27, Standard of Review, Correctness, R. v. Jurkus, 2018 ONCA 489, leave to appeal refused, [2018] S.C.C.A. No. 325, R. v. Godin, 2009 SCC 26, R. v. Gopie, 2017 ONCA 728


ONTARIO REVIEW BOARD

Persaud (Re), 2018 ONCA 1080

[Juriansz, Benotto and Trotter JJ.A.]

Counsel:

E. Dann, for the appellant

E. Haydon, for the respondent

Keywords: Ontario Review Board, Criminal Law, Attempted Murder, Aggravated Assault, Assault with a Weapon, Not Criminally Responsible, Mental Disorder, Community Treatment Order, Mental Health Act

Williams (Re), 2018 ONCA 1087

[Juriansz, Benotto and Trotter JJ.A]

Counsel:

A. Szigeti, for the appellant

A. Wheeler, for the Crown

Keywords: Ontario Review Board, Criminal Law, Uttering Threats, Assault Causing Bodily Harm, Possession of Property Obtained by Crime, Disguise with Intent, Mental Health, Not Criminally Responsible

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Authors
John Polyzogopoulos
Events from this Firm
6 Feb 2019, Other, Toronto, Canada

When it comes to class actions, costs regimes vary across Canada. Ontario follows the traditional two-way costs regime while other jurisdictions like British Columbia have adopted a no cost regime.

 
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