Canada: Ontario Court Of Appeal Summaries (September 9 – 13 2019)

Blaney's Appeals
Last Updated: September 23 2019
Article by John Polyzogopoulos

Good afternoon.

It was a fairly busy week at the Court of Appeal, with the Court releasing twelve civil decisions, nine criminal and provincial offences decisions, and one Ontario Review Board decision.

Areas of law covered this week included agreements of purchase of sale of land, limitation periods, automobile insurance, personal injury, family, estates, contracts, employment and vexatious litigants.

Perhaps the most noteworthy decision of the week was Langenfeld v. Toronto Police Services Board. In that case, the Court overturned the decision below and held that the security measures put in place by Chief Saunders at the entrance to Toronto Police headquarters, while violating freedom of expression, were reasonable limits and justified under the Oakes Test.

Aviva Insurance Company v. Wawanesa Mutual Insurance Company was a priority dispute between two automobile insurers. The accident involved a rental car. Priority hinged on whether the car was rented by an employee on his own behalf, or on behalf of an employer. The Court determined that the application judge had erred in determining that the car had been rented by the employee on his own behalf. To determine the identity of the true lessee, it was necessary to look at all the surrounding circumstances, and not just the face of the rental agreement.

Faiello v. Faiello involved an appeal from a decision to award spousal support in the face of a support waiver in the parties' Separation Agreement, while not disturbing the provisions of the Agreement relating to property.

Finally, congratulations to our very own Varoujan Arman for successfully acting for the respondent in Dorr Capital Corporation v. Kingwood River Walk Homes Limited (Kingwood Homes). The issue in the case involved fees earned and payable under a loan agreement.


CIVIL DECISIONS

Lin v. Brookfield Homes (Ontario) Limited, 2019 ONCA 706

[Strathy C.J.O., MacPherson and Tulloch JJ.A.]

Counsel:

Rebecca Huang and Zina Rita, for the appellant
Neil G. Wilson and Yolanda Song, for the respondents

FACTS:

The Appellant signed an Agreement of Purchase and Sale ("APS") to buy a pre-construction condominium detached house unit from the Respondent. On the closing date, the Appellant's solicitor wrote to the Respondent's solicitor reserving the right to rescind the agreement as a result of the material change to the disclosure documentation. The alleged material change was that construction of a number of common elements had not begun including the parkette and the entrance/exit gates. The Respondent's solicitor advised that there was no material change in the disclosure statement and that, as a result of the Appellant's failure to complete the transaction on the closing date, the Respondent was terminating the APS, forfeiting the Appellant's deposit, and reserving its right to exercise other remedies.

The Appellant commenced an application, seeking return of her deposit. The Respondent commenced an application, seeking, inter alia, a declaration that the Appellant breached the APS by failing to close, that the Appellant was not entitled to a return of her deposit, and that the Respondent was entitled to claim additional damages for that breach. The application judge dismissed the Appellant's application for return of her deposit, allowed the Respondent's application and ordered a trial of the issue of the quantum of damages.

ISSUES:

(1) Did the application judge err in her interpretation of the purchaser's right of rescission under the Condominium Act, 1998?

(2) Did the application judge err by finding that the entry and exit gates were "amenities", rather than essential features of the community?

(3) Did the application judge commit a palpable and overriding error in finding that the Respondent intended to build a gated community "as of the closing date"?

(4) Did the application judge err by relying on section 21 (Default) of the APS to allow the Respondent to retain the Appellant's deposit after she refused to close the transaction.

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The Court held that the non-construction, at that point, of the parkette and entry and exit gate was not a material change in circumstances within the meaning of s. 74 of the Condominium Act, 1998.

(2) No. The APS stated that "the Purchaser acknowledges that failure to complete [...] the common elements on or before the Occupancy Date shall not be deemed to be a failure to complete the unit." The Court concluded that the gates were common elements and the timing of the construction of the gates was not a material change.

(3) No. Given the relevant language of the APS, the Court held that time was not of the essence with respect to the gate construction.

(4) No. The Appellant based this ground of appeal on the argument that the Respondent did not plead section 21 of the APS. The Court held that the Respondent pleaded the APS, of which section 21 was an obvious provision in a residential property case.


1179 Hunt Club Inc. v. Ottawa Medical Square Inc, 2019 ONCA 700

[Hoy ACJO, Lauwers, and Zarnett JJ.A.]

Counsel:

Elliot Birnboim and Michael Crampton, for the appellant
Anne Tardif, for the respondents

FACTS:

The respondent agreed to buy commercial condominium units from the appellant vendor but the transaction did not close. The appellant applied for a declaration that the respondent had anticipatorily breached the agreement of purchase and sale and that it was entitled to retain the deposit, that the appellant was free to pursue damages and that AM was liable for any damages as guarantor of the respondent. The application judge ruled that the agreement came to an end when both parties were unable to close the transaction on the closing date and required that the appellant return the deposit to the respondent. The appellant vendor appealed.

ISSUES:

(1) Did the purchaser anticipatorily repudiate the agreement?

(2) If so, did such repudiation excuse the vendor from its obligation to be ready, willing, and able to close the transaction on the closing date?

(3) Did the guarantee clause in the agreement bind the signatory AM personally?

HOLDING:

Appeal dismissed.

REASONING:

(1) Yes. A mere request for an extension of time would not ordinarily amount to anticipatory repudiation. However, the request for an extension was tied to a lack of financing to complete the transaction. The respondent moved into the state of being in anticipatory breach of the agreement when it did not undertake to close on the appointed date upon learning of the appellant's refusal to extend the time. The application judge erred in concluding that the respondent did not anticipatorily repudiate the agreement.

(2) No. The application judge found that the respondent elected to insist on performance of the agreement in accordance with the decision in Domicile Developments Inc v MacTavish, (1990), 45 OR (3d) 302 (CA). This, she ruled, kept the agreement of purchase and sale alive for the time being. The application judge then found that the evidence failed to establish that the respondent was ready, willing, and able to close on the closing date. The decision in Kwon v Cooper (1996), 89 OAC 239 (CA) establishes that if a vendor insists on closing on a certain date and subsequently fails to be ready, willing, and able to close as scheduled, the contract comes to an end. The appellant vendor's failure to be able to close was fatal; "he who seeks equity must do equity." The agreement was terminated and the purchaser is entitled to a return of the deposit.

(3) The contra preferentem rule was correctly applied by the application judge in deciding that the agreement did not contain a personal guarantee by AM and even if it did, the agreement had come to an end and AM was not a party to the new agreement entered into by the parties after one at issue came to an end.


Aviva Insurance Company v. Wawanesa Mutual Insurance Company, 2019 ONCA 704

[Feldman, Paciocco and Fairburn JJ.A.]

Counsel:

Dennis Ong and Christopher Scotchmer, for the appellant
Steven Carlstrom and Genevieve Durigon, for the respondent

FACTS:

This is an appeal from the order of the application judge declaring Aviva the first loss insurer under s. 277 of the Insurance Act.

The plaintiff brought an action after being rear-ended by a rental vehicle, which the driver used to make deliveries for his employer. The plaintiff sued the driver, the rental company and the employer. The driver was uninsured but the rental company and his employer both had insurance. The insurers for the rental company and the employer, Aviva Insurance Company ("Aviva") and Wawanesa Mutual Insurance Company ("Wawanesa") respectively, could not agree upon their insurance obligations.

When the driver was first hired, he signed a subcontract agreement at the request of his employer which required him to arrange his own insurance. The driver signed the subcontract agreement but claimed he did not understand the terms. The driver also signed the car rental agreement wherein he was listed as both the renter and driver. The employer was not mentioned in the rental agreement. However, the employer had a standing agreement with the rental company under which the employer authorized the rental company to charge the cost of vehicle rentals directly to a card on file. Notably, the driver was not permitted to use the rental vehicles for any other purpose than to make deliveries for his employer.

Pursuant to s. 277 of the Insurance Act, when a rental vehicle is involved in a collision and there is overlapping liability coverage, the identity of the first loss insurer depends on the identity of the lessee. Specifically, s. 277 provides that any policy under which the lessee is entitled to indemnity must respond first, followed by that of the driver and then of the owner. Aviva argued that the employer leased the car and therefore the employer's insurer, Wawanesa, should be first to pay. Conversely, Wawanesa claimed the driver was the lessee, and thus the rental company's insurer, Aviva, should pay first.

The application judge found that the driver was the lessee but left the determination as to whether the driver was an employee or an independent contractor for trial in the main action. Since the driver did not have a motor vehicle liability policy of his own, the application judge made an order declaring Aviva, as the rental company's insurer, the first loss insurer. Aviva appealed.

ISSUES:

(1) Did the application judge err by failing to take into account all relevant circumstances when determining the identity of the lessee?

(2) In the alternative, did the application judge err in declaring that Aviva was the first loss insurer?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes. The application judge erred in law when he determined the identity of the lessee by restricting himself to the face of the two-page rental agreement. In doing so, the application judge failed to grapple with whether the driver was acting as an authorized representative or agent of his employer when he signed the rental agreement. Taking agency principles into account, the court found that the lessee was the employer. Accordingly, the court reversed the order of the application judge.

In making its determination, the court found that both cases relied on by the insurers supported the finding that the employer was the lessee. In Intact Insurance Company of Canada v American Home Assurance Company of Canada, 2013 ONSC 2372, the employee had signed the rental agreement and paid for the rental vehicle with a credit card provided to him by his employer. The employer ultimately reimbursed the employee for the cost. However, the credit card was in the employee's name alone and he was permitted to use this card for both business and personal expenses. In that case, Perell J rejected the argument that the employer was the "de facto lessee". Instead, he found that the identity of the lessee could be determined by asking who the lessor could sue to enforce the car rental agreement. In that case, the answer was the employee. Ultimately, the court found Intact was distinguishable from the instant case, because apart from its policy of reimbursing employees who rented vehicles for work-related purposes, there were no facts to suggest that the employer had authorized the employee to contract with the rental agency on its behalf.

The court noted that a similar dispute arose in The Insurance Corporation of British Columbia v Lloyds Underwriters, 2017 ONSC 670. While Penny J adopted the same test for determining the identity of a lessor as that set out in Intact, the facts before him required a more expansive approach based on agency. Penny J thus had to look beyond the four corners of the agreement for factors that would indicate whether the employee was acting as an agent of her employer when she signed the rental agreement. In concluding that the employee signed the agreement as a mere "authorized representative" of her employer, Penny J declared that the employer's insurer was the first loss insurer. In the instant case, the court found that like Lloyds, the surrounding circumstances indicated that the driver was signing the rental agreement and renting the car on behalf of the employer.

(2) Yes, in light of the answer to issue 1 above. However, given that the Wawanesa policy was not evidence, the nature of the relief sought on the motion, and the factual issues to be determined as to whether the driver was an employee or independent contractor, it was not appropriate to declare at this time that Wawanesa is the first loss insurer.


Faiello v. Faiello, 2019 ONCA 710

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

G.S. Joseph and K.A. Maurina, for the appellant/respondent by way of cross-appeal
Michael Freeman, for the respondent/appellant by way of cross-appeal

fACTS:

This appeal and cross-appeal arise from a decision to award spousal support in the face of a support waiver in the parties' Separation Agreement (the "Agreement"), but to honour the Agreement's provisions in relation to property.

The trial judge concluded that there was no basis to set aside the Agreement under s 56(4) of the Family Law Act ("FLA"). Applying Miglin, however, he found that it was nevertheless appropriate to order some support payable to the father because the spousal support waiver did not substantially comply with the objectives of the Divorce Act ("DA").

The father appeals from the trial judge's order that the Agreement's provisions in relation to property remain of full force and effect. The mother cross-appeals from his order awarding the father spousal support, arguing that the Agreement should be honoured in its entirety. The father also seeks leave to appeal from the trial judge's order on costs.

ISSUES:

(1) Did the trial judge err in not setting aside the Agreement in its entirety under s 56(4) of the FLA?

(2) Did the trial judge err in ordering spousal support in the face of the spousal support waiver?

(3) If spousal support were warranted, did the trial judge err in calculating the amount of spousal support?

(4) Should the father be granted leave to appeal the trial judge's costs order?

HOLDING:

Appeal and cross-appeal dismissed.

REASONING:

(1) No. The trial judge properly rejected the father's three arguments that the Agreement should be set aside under s 56(4) of the FLA, and furthermore declined to exercise his discretion re: LeVan v LeVan.

First, the trial judge correctly determined that the mother did not improperly fail to disclose certain assets to the father when the Agreement was made. The trial judge accepted the mother's evidence that she and the father discussed the "flow through" nature of her company that would ultimately be reflected in her taxable income as well as minor jewelry that the mother did not include in her financial statement.

Second, the trial judge did not err in law by failing to engage in the disjunctive analysis required by s 56(4)(b) of the FLA to consider whether the father did not understand either the nature or the consequences of the agreement. The trial judge explicitly articulated the separate definitions of "nature" and "consequences", despite using the terms conjunctively at other times.

Third, the trial judge's determination that the Agreement did not rise to the level of unconscionability was correct. The trial judge engaged in a contextual analysis of the circumstances and concluded, supported by the record, that the parties got "exactly what they both wanted" out of the Agreement.

(2) No. The trial judge correctly applied the two-stage Miglin test to determine that the spousal support waiver in the Agreement did not comply with the DA. The Court held that it is not an appellate court's role to interfere with such fact-driven conclusions.

The first stage of the Miglin inquiry requires the judge to (a) consider whether the circumstances in which the agreement was negotiated and executed warrant any reason to discount it, and (b) whether the substance of the agreement complies with the objectives of the DA. The trial judge was (a) persuaded that the circumstances under which the Agreement was negotiated and executed were satisfactory, but (b) the release of spousal support in the Agreement did not adhere to the objectives of the DA because it was improbable that the father would be able to support himself without the mother's help in the face of settling $600,000 in debts.

At the second stage of the Miglin inquiry, the trial judge correctly found that there was a change in the circumstances of the parties from the time of execution of the Agreement to the time of Application, namely that the father had not been able to become self-sufficient after being terminated by his employer and the associated hit to his reputation as a licenced investment dealer.

(3) No. An appellate court is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v Hickey at para 12. In this case, the Court saw no material error, serious misapprehension of the evidence, or error in law in the trial judge's approach to determining the quantum of support that would permit the Court to interfere with his decision. The trial judge was alive to the timing of the father's application, and there is no basis to interfere with the amount of income he imputed to the father.

The trial judge correctly found that the age of the parties, the father's need for support, and the mother's means to pay support made it clear to him that the father was entitled to a lump sum spousal support order of $143,933 based upon the Spousal Support Advisory Guidelines.

(4) No. Considerable deference should be given to a trial judge's discretion in awarding and fixing costs, and this case does not warrant interference re: Carroll v. McEwen.


Williams Distinctive Gems Inc. v. Advantex Dining Corporation, 2019 ONCA 702

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

Counsel:

Alec McLennan, for the appellant
William A. Chalmers, for the respondent

fACTS:

The appellant appealed from the dismissal of its action against the respondent, Canadian Imperial Bank of Commerce ("CIBC"), following CIBC's motion for summary judgment. The motion judge found that the appellant's claim against CIBC, its former bank, was discoverable no later than 2012. Proceedings were commenced in July 2017, and therefore statute-barred. The appellant also sought leave to appeal the costs order of $50,000 that the motion judge granted in favour of CIBC.

ISSUES:

(1) Did the motion judge err in finding that the action was statute-barred against CIBC?

(2) Did the motion judge err in dismissing the appellant's allegation of breach of fiduciary duty against CIBC?

(3) Did the motion judge err in awarding $50,000 in partial indemnity costs to CIBC?

HOLDING:

Appeal allowed in part.

REASONING:

(1) No. The Court found that the appellant's admissions amply supported the motion judge's conclusion that had the appellant acted reasonably, it would have discovered its claim against the CIBC by December 2012.

(2) No. The appellant's notice of application and statement of claim did not contain such a claim. The appellant did not seek to amend its claim either before or at CIBC's motion for summary judgment or ask to adjourn the motion in order to be able to do so.

(3) Yes. The Court was of the view that the motion judge failed to apply the principle of proportionality. The action was under the simplified procedure, which has a limited monetary ceiling that translated into reduced costs orders. The court found that CIBC should have contemplated that its costs, if successful, would be limited, and that it was therefore required to exercise restraint. The motion judge failed to advert to these factors. The court found that the amount of costs that would be fair, reasonable and proportionate in the circumstances of such a simplified procedure case to be $25,000.


AgriMarine Holdings Inc. v. Akvatech AS, 2019 ONCA 713

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

Counsel:

Adam D. H. Chisholm and Holly Sherlock, for the appellants
Jason W. J. Woycheshyn and Joseph N. Blinick, for the respondent

fACTS:

This is an appeal by AgriMarine Holdings Inc. ("AgriMarine") from an order dismissing an application for a declaration that Akvatech AS ("Akvatech") was in breach of contract and is not the holder of a license to fish-rearing technology owned by the appellants (the "Technology"). The proceedings engaged the parties' rights and obligations under a contract (the "Letter Agreement"), which set out the terms on which Akvatech would acquire ownership and licensing rights to the Technology. Akvatech paid AgriMarine the sum of $200,000 (the "Pre-payment Amount"). After some months, the transaction had not closed and Akvatech demanded repayment. At issue was whether either party was in breach of the Letter Agreement, whether, after AgriMarine failed to refund the payment, Akvatech had obtained a license under the Letter Agreement, and whether the appellants' claim was statute-barred. The application judge held that neither party breached the Letter Agreement, and that Akvatech was entitled to take the steps it did under the Letter Agreement. The application judge found that the essential terms of the license were defined with sufficient particularity and that the license was enforceable.

ISSUES:

(1) Did the application judge err in permitting Akvatech to take advantage of its own breach of contract?

(2) Did the application judge err in his interpretation of the Letter Agreement as entitling the respondent to a refund and to obtain a license to the technology upon default?

(3) Did the application judge err in concluding that the license was enforceable?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. Akvatech did not take advantage of its own breach of contract. It is a principle of law that a party should not be able to take advantage of its own contractual breach in order to claim a contractual benefit or remedy. The Court agreed with the application judge that this is not a case about the exercise of rights and remedies following a breach of contract. The application judge concluded that neither party was in breach of the Letter Agreement. Rather, he found that the parties, through their conduct, agreed to terminate the Letter Agreement.

(2) No. The parties had agreed that once the Letter Agreement was terminated, the Pre-payment Amount would be demanded, and a default notice would issue. The Court found no error in the application judge's conclusion that the terms of the Letter Agreement applied in the circumstances of its termination, and not just in the event of breach. The parties were obliged to use "commercially reasonable efforts to negotiate, execute and deliver the transaction documents"—and appear to have done so in this case, except that they were unable to complete the transaction and agreed to its termination. AgriMarine could have avoided the transfer of the license by repaying the Pre-payment Amount upon demand. The Court held it was a reasonable interpretation of the Letter Agreement that it was meant to provide security for the refund of the Pre-payment Amount.

(3) No. The Court saw no reason to interfere with the application judge's conclusion that the license granted to Akvatech was enforceable. The application judge considered all the relevant factors, including the terms of the license, and of the Letter Agreement as a whole, and the fact that the parties had agreed to this provision while represented by legal counsel. The Court did not find any reversible error on the application judge's interpretation of the Letter Agreement, including the right of Akvatech to the license it had bargained for on default of the refund of the Pre-payment Amount.


Childs v. Childs, 2019 ONCA 717

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

Counsel:

PC, self-represented
MC, AC and CC, self-represented
Debra Stephens, for WG

fACTS:

This case has a long history of litigation involving competing guardianship applications by two pairs of siblings in respect of the personal care and property of their mother, arising out of her incapacity. The appeals of these applications were dismissed by the Court in Childs v. Childs, 2017 ONCA 516 (the "Appeals").

The present issue involved a motion brought by PC pursuant to Rule 59.06(2) to vary or quash the Court's orders in the Appeals. PC and those he named as respondents to the motion were given notice of the proposed making of an order staying or dismissing the motion under as being frivolous, vexatious or an abuse of process under Rule 2.1.02 and were invited to make written submissions. The Court received Submissions from PC and CC opposing a Rule 2.1.02 order, and from MC and WG, supporting such an order.

In opposing the Rule 2.1.02 order, PC asserted that, after the disposition of the Appeals, new information became available that had been deliberately concealed by other parties to the litigation, which, if known, would reasonably have changed the decision of this Court in the Appeals. PC contended that the new information spoke to an inappropriate relationship between WG, counsel for the mother under s. 3 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, and BMO, guardian of property. PC also made a number of other allegations about an undisclosed and improper "litigation agreement" between BMO, WG and other parties to the litigation, including the fact that the parties communicated with one another in respect of the issue of costs.

ISSUES:

(1) Is the motion under Rule 59.06 to vary or quash the Court's order in the Appeals frivolous or vexatious or otherwise an abuse of the process of the Court?

HOLDING:

Motion dismissed.

REASONING:

(1) Yes. The Court held that the motion under Rule 59.06 to vary or quash the Appeals order was an abuse of the process of this court, and frivolous and vexatious. The Court determined that an order under Rule 2.1.02 was not only warranted, but essential in the circumstances of this case. PC was relying on information that was not new, and that could not conceivably have affected the Court's decision in the Appeals. The Court found the motion to be a transparent attempt to continue to wage war against WG.


Hosseinkhani v. QK Fitness Inc., 2019 ONCA 718

[Hoy A.C.J.O., Nordheimer and Jamal JJ.A.]

Counsel:

George Pappas and Matthew Wasserman, for the appellants
C. Michael J. Kealy, for the respondents

fACTS:

The appellants appeal the summary judgment dismissing their personal injury action arising injuries suffered by H during a fitness class.

ISSUES:

(1) Did the motion judge err in granting summary judgment?

(2) Did the judge err in failing to consider whether a duty to warn existed?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The motion judge found, based on the factual record before him, that the appellants could not establish that the respondents were negligent in any way. He also found that the risk of stepping on a dumbbell in a fitness class was not unusual.

(2) No. The judge considered the duty to warn and found no such duty.


Langenfeld v. Toronto Police Services Board, 2019 ONCA 716

[Doherty, Rouleau and Brown JJ.A.]

Counsel:

Earl A. Cherniak, Cynthia B. Kuehl, Christopher T. Shorey and Marianne Wright, for the appellant Toronto Police Chief Mark Saunders
Selwyn A. Pieters, for the respondent KL
Fred Fischer, Lauren E. Elliott, and Ryan Krahn, for the respondent Toronto Police Services Board
Daniel Guttman and Ravi Amarnath, for the intervener Attorney General of Ontario

fACTS:

The appellant, Chief of Toronto Police, instituted a security protocol at Police Headquarters in Toronto, which required all persons entering the building to pass through security. The process consisted of wanding persons with a metal detector and examining the contents of pursues and bags. The respondent, KL, regularly attended meetings of the Toronto Police Services Board ("TPSB"). Sometime after the security protocol was implemented, KL refused to pass through security. He was thus refused entry to the building and could not attend the meeting of the TPSB. In response, KL brought an application for an injunction ordering the appellant to discontinue the process on the basis that he had no authority to institute the screening measures, the measures infringed KL's right to freedom of expression under s. 2(b) of the Charter, and that they violated the TPSB's statutory obligation to hold its meetings in public. KL further argued that the appellant had no lawful authority to subject persons who wished to attend the public meetings of the TPSB to warrantless searches for which there were no reasonable and probable grounds.

Ultimately, the application judge held that the security measures, as applied to persons wishing to attend public meetings of the TPSB, infringed s. 2(b) of the Charter. She further held that the process was not prescribed by law and thus could not be justified under s. 1 of the Charter. Accordingly, the application judge granted the declaratory relief sought under s. 24(1) of the Charter.

The Chief of Toronto Police appealed, arguing that the screening process did not limit the respondent's s. 2(b) right. Alternatively, he submitted that if there was a limit of the s. 2(b) right, the limit was prescribed by law and was justified under s. 1 of the Charter as a reasonable limit. The TPSB supported the latter argument advanced by the appellant. The Attorney General for Ontario supported the appeal in its entirety.

ISSUES:

(1) Did the application judge err in finding that the security protocol limited KL's right to freedom of expression under s. 2(b) of the Charter?

(2) Did the application judge err in holding that the limit was not justified under s.1 of the Charter?

HOLDING:

Appeal allowed.

REASONING:

(1) No. The application judge did not err in finding that the security protocol limited KL's right to freedom of expression. Like the application judge, the court held that the security protocol was a prima facie infringement of KL's 2(b) right. In making its determination, the court found that the respondent's attendance at a public meeting of the TPSB to listen and potentially speak to the matters of public interest constituted expressive conduct. The court further held that there was no reason to exclude the expressive activity from the protection of s. 2(b) as the activity was not violent, did not threaten violence, and occurred in a place that typically permitted public access and uses which were compatible with the individual exercise of freedom of expression.

The court also agreed with the application judge that the security protocol was not put in place for the purpose of limiting freedom of expression, but rather, that it had this effect. The security protocol applied to all persons entering the building, many of whom were not engaged in any kind of expressive activity. Moreover, it did not target persons entering the building for the purposes of attending the public meeting or for any other expressive activity. However, the protocol imposed a condition precedent to the exercise of KL's freedom of expression. In other words, to exercise that freedom, the security protocol required KL to compromise his right to privacy and security of the person.

(2) Yes. The application judge erred in holding that the limit was not justified under s. 1 of the Charter. Unlike the application judge, the court found that the appellant's common law powers as an occupier authorized him to impose the security protocol as a precondition to KL entering Police Headquarters. The court noted that s. 3(1) of the Occupiers' Liability Act, R.S.O. 1990, c. 0.2 ("OLA") imposed a statutory duty on the appellant to take reasonable care to ensure that persons entering or using the property were "reasonably safe while on the premises". However, since the OLA does not authorize an occupier to take steps necessary to comply with the duty imposed, it was thus necessary to consider the common law powers of the appellant. Ultimately, the court was satisfied that if the security protocol was a reasonable measure, having regard to the appellant's duty to protect the safety of persons in Police Headquarters, it was an exercise of his common law powers as an occupier and was thus prescribed by law.

Having determined that the appellant had the legal authority to introduce the security protocol, it was necessary for the court to go on to decide whether the protocol constituted a reasonable limit under s. 1 of the Charter. Ultimately, the court was satisfied that it was. In making its determination, the court found that protecting the physical safety of persons using or working in Police Headquarters was a sufficiently important objective. The court found that the rational connection between the screening protocol and the safety of persons in Police Headquarters was self-evident. The court was further satisfied that the minimal impairment requirement was met. The court held that the screening process was tailored to its objective and did not prevent or meaningfully delay anyone from entering the building to exercise their right to freedom of expression by attending the TPSB meetings. Moreover, the protocol did not require individuals to identify themselves or provide any information to the authorities. The court noted that the ability of the public to view the TPSB proceedings on YouTube, and to make deputations in writing, also mitigated the limit on freedom of expression imposed by the screening protocol to some extent. Finally, the court was satisfied that the screening protocol met the test for proportionality. Specifically, the court found that protecting all persons entering Police Headquarters was an important objective and balanced against that important objective was a relatively minor limit on KL's s. 2(b) right.


Lawrence v. Lawrence, 2019 ONCA 721

[Strathy C.J.O., MacPherson and Tulloch JJ.A.]

Counsel:

Paul Marshall, for the appellant
Brent K. Harasym and Sarah J. Draper, for the respondent

FACTS:

When the appellant's father died, the assets of his estate consisted of an investment account worth approximately $80,000 after the payment of most debts and a $50,000 line of credit which he had taken out prior to his marriage to the respondent. The appellant contended that the $50,000 loan was a debt secured against the matrimonial home and therefore not a liability attributed to the estate. The respondent's position was that the loan was unsecured and therefore attached as a liability to the estate.

The motion judge found that the deceased was the principal and sole debtor, and his estate was liable for the loan following his death. The appellant appealed this ruling and alleged that the motion judge made remarks at the motion hearing that demonstrated a reasonable apprehension of bias towards the appellant. The appellant also argued that the motion judge improperly awarded to the respondent partial indemnity costs that were too high and practically amounted to full indemnity.

ISSUES:

(1) Did the motion judge make a palpable and overriding error in his finding of fact that the estate is liable for the debt owed?

(2) Did the motion judge demonstrate a reasonable apprehension of bias?

(3) Did the motion judge err in awarding costs to the Respondent?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The Court held that the motion judge made no palpable and overriding error in his factual finding, and accordingly, his decision was entitled to deference. The appellant referenced the Land Transfer Tax Act, R.S.O. 1990, c. L.6, Mortgages Act, R.S.O. 1990, c. M.40, and Execution Act, R.S.O. 1990, c. E.24, to advance the position that the respondent became liable for the separate debt because she now owned the matrimonial home. The Court found that those references did not to support that position.

(2) No. Although the motion judge's comments were sharp, the Court held that they did not demonstrate that the judge had closed his mind to the merits of the appellant's case. The Court also found that the motion judge's failure to grant an adjournment did not demonstrate bias or amount to a denial of natural justice by itself.

(3) No. There was no error in the exercise of the motion judge's discretion regarding costs.


SHORT CIVIL DECISIONS

Manastersky v. Royal Bank of Canada, 2019 ONCA 705

[Feldman, Brown and Miller JJ.A.]

Counsel:

Jeremy Devereux and Geoff Mens, for the appellant
Nancy Shapiro, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Civil Procedure, Appeals, Costs, Eastern Power Limited v. Ontario Electricity Financial Corporation, 2012 ONCA 366


Dorr Capital Corporation v. Kingwood River Walk Homes Limited (Kingwood Homes), 2019 ONCA 701

[Strathy C.J.O., MacPherson and Tulloch JJ.A.]

Counsel:

David T. Woodfield, for the appellants
Varoujan Arman, for the respondent

Keywords: Contracts, Interpretation, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53


CRIMINAL DECISIONS

Romania v. Soproni, 2019 ONCA 703

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

Counsel:

Christine Mainville, for the appellant
Adrienne Rice, for the respondent

Keywords: Criminal Law, Extradition, Extradition Act, S.C. 1999, c. 18, s. 3(3), s. 57


R. v. Dixon, 2019 ONCA 698

[Pardu, Brown and Trotter JJ.A]

Counsel:

JAD, in person
Andrew Hotke, for the respondent

Keywords: Criminal Law, Aggravated Assault, Evidence, Admissibility, Voice Identification Evidence, Criminal Code, R.S.C. 1985, c. C-46, s. 139(2), s. 753.3(1), Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31


R v. Adan , 2019 ONCA 709

[Watt, Lauwers and Hourigan JJ.A.]

Counsel:

Nathan Gorham, for the appellant
Philippe Cowle, for the respondent

Keywords: Criminal Law, Attempted Murder, Jury Charge, Sentencing, W(D) Principles, Criminal Code, s 686(1), s 687(1), s 724(2), R v Calnen, 2019 SCC 6, R v Araya, 2015 SCC 11, R v Jaw, 2009 SCC 42, R v Jacquard, [1997] 1 SCR 314, R v Daley, 2007 SCC 53, R v Royz, 2009 SCC 13, R v Luciano, 2011 ONCA 89, R v Smith, 2016 ONCA 25, R v Rodgerson, 2015 SCC 38, R v McLellan, 2018 ONCA 510, R v Adamson, 2018 ONCA 678, R v Moffit, 2015 ONCA 412, R v Campbell, 2018 ONCA 837, R v Lacasse, 2015 SCC 64


R v. Beseiso , 2019 ONCA 707

[Pardu, Brown and Trotter JJ.A.]

Counsel:

AB, acting in person
Andrew Hotke, for the respondent

Keywords: Criminal Law, Criminal Harassment, Uttering Threats, Causing a Disturbance, Sentencing, Criminal Code, s 175(1)(a), s 264(2)(d), s 264.1(1), s 839(1), R v R(R), 2008 ONCA 497


R v. Beseiso , 2019 ONCA 708

[Pardu, Brown and Trotter JJ.A.]

Counsel:

AB, acting in person
Andrew Hotke, for the respondent

Keywords: Criminal Law, Intimidation of a Justice System Participant, Sentencing, Victim Fine Surcharge, W(D) Principals, Sufficiency of Reasons, Criminal Code, s 423.1(1)(b), R v W(D), [1991] 1 SCR 742, R v Beseiso, 2018 ONSC 5042, R v Boudreault, 2018 SCC 58


R v. Tippett, 2019 ONCA 711

[Pardu, Brown and Trotter JJ.A.]

Counsel:

ST, acting in person
Breana Vandebeek, duty counsel
Michael Fawcett, for the respondent

Keywords: Criminal Law, Obstruction of Justice, Sentencing, Dangerous Offenders, Evidence, Burden of Proof, Credibility, Criminal Code, s 139(2), Vetrovec v R, [1982] 1 SCR 811, R v Bui, 2014 ONCA 614, R v Caporiccio, 2017 ONCA 742, R v Gowdy, 2016 ONCA 989


R v. Evans, 2019 ONCA 715

[Watt, van Rensburg and Brown JJ.A.]

Counsel:

Erin Dann, for the appellant, She.E
Marianne Salih, for the appellant, Sha.E
Janani Shanmuganathan, for the appellant, OF
Paul Alexander, for the appellant, RG
Randy Schwartz and Peter Scrutton, for the respondent

Keywords: Criminal Law, Organized Crime, Drug Trafficking, Conspiracy to Traffic, Firearms Offences, Evidence, Admissibility, Wiretap Evidence, Expert Witness, Expert Opinion Evidence, Jury Selection, Static Trier Procedure, Exclusionary Orders, Criminal Code, ss 91(2), 95(1), 99(1), 465(1)(c), 467.1(1), 467.12, 640(2.1), (2.2), 657.3(3), 657.3(3)(a), 686(1)(b)(iv), Controlled Drugs and Substances Act, ss 5(1), (2), CDSA: Regulations Prescribing Certain Offences to be Serious Offences, SOR/2010-161, s 2, R v Riley (2009), 247 CCC (3d) 517, R v Noureddine, 2015 ONCA 770, R v Grant, 2016 ONCA 639, R v Murray, 2017 ONCA 393, R v Husbands, 2017 ONCA 607, R v WV, 2007 ONCA 546, R v Lyttle, 2004 SCC 5, R v Seaboyer, [1991] 2 SCR 577, R v Osolin, [1993] 4 SCR 595, R v RV, 2019 SCC 41, Morris v The Queen, [1983] 2 SCR 190, R v Marquard, [1993] 4 SCR 223, R v Kimberley (2001), 157 CCC (3d) 129, R v Clancey, [2002] SCCA No 29, R v Bradbury (1973), 14 CCC (2d) 139, R v Hungwe, 2018 ONCA 456, White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, R v Abbey, 2009 ONCA 624, R v Johnson, 2019 ONCA 145, R v Mohan, [1994] 2 SCR 9, R v J-LJ, 2000 SCC 51, R v Luciano, 2011 ONCA 89, R v K (A) (1999), 137 CCC (3d) 225, R v DD, 2000 SCC 43, R v Kematch, 2010 MBCA, R v Bedford (2000), 143 CCC (3d) 311, R v Venneri, 2012 SCC 33, R v Handy, 2002 SCC 56, R v Hart, 2014 SCC 52, R v Shafia, 2016 ONCA 812, R v Baltovich (2004), 191 CCC (3d) 289, Cluett v The Queen, [1985] 2 SCR 216, R v Garofoli (1988), 41 CCC (3d) 97, R v Jacquard, [1997] 1 SCR 314, R v Royz, 2009 SCC 13, R v Daley, 2007 SCC 53, R v LM, 2008 SCC 31, R v Proulx, 2000 SCC 5, R v Clarke, 2014 SCC 28, R v Wust, 2000 SCC 18, R v R S, 2015 ONCA 291


R v. Morillo, 2019 ONCA 714

[Watt, Hourigan and Huscroft JJ.A.]

Counsel:

LM, acting in person
Mark Wiffen, amicus curiae
No one appearing for the respondent

Keywords: Provincial Offences, Speeding, Self-Represented Litigants, Evidence, Credibility, W(D) Principles, Amicus Curiae, Provincial Offences Act, s 139, Evidence Act, ss 10, 11, Canada Evidence Act, R v W(D), [1991] 1 SCR 742, R v AP, 2013 ONCA 344, R v Lifchus, [1997] 3 SCR 320, R v Mannion, [1986] 2 SCR 272, R v Ul-Rashid, 2014 ONCA 896


R v. Owusu, 2019 ONCA 712

[Pardu, Brown and Trotter JJ.A.]

Counsel:

Andrew Furgiuele, appearing as duty counsel
Benita Wassenaar, for the respondent

Keywords: Criminal Law, Robbery, Firearms Offences, Arbitrary Detention, Sentencing, Canadian Charter of Rights and Freedoms, s 9, Firearms Act, SC 1995, c 39, Youth Criminal Justice Act, SC 2002, c 1, R v Mann, 2004 SCC 52, R v KangBrown, 2008 SCC 18


ONTARIO REVIEW BOARD

Sim (Re), 2019 ONCA 719

[Pardu, Brown and Trotter JJ.A.]

Counsel:

Anita Szigeti, for the appellant
Megan Petrie, for the respondent, Attorney General of Ontario
Marie-Pierre T. Pilon, for the respondent, the Person in Charge of the Royal Ottawa Health Care Group

Keywords: Ontario Review Board, Not Criminally Responsible, Foreseeable and Substantial Risk of Harm, Threat to Public Safety, Conditional Discharge, Annual Review, Criminal Code, ss 672.5401 672.54, 672.78(1), R v Ferguson, 2010 ONCA 810, Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625, Kalra (Re), 2018 ONCA 833, Sheikh (Re), 2019 ONCA 692

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Authors
Events from this Firm
7 Nov 2019, Conference, Ontario, Canada

On November 7, David T. Ullmann will be a speaker at the CBA Insolvency Law Conference.

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