Following are this week's summaries of the Court of Appeal for Ontario for the week of March 21, 2022.
Areas of law covered in the cases this week included bankruptcy and insolvency (setting aside discharge from bankruptcy and after-acquired property), municipal liability for building inspections, two child protection decisions, guarantees and a partnership dispute.
Wishing everyone an enjoyable weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
The Catholic Children's Aid Society of Toronto v. S.K.S., 2022 ONCA 228
Keywords: Family Law, Child Protection, Best Interests of the Child, Immigration Law, Deportation, Civil Procedure, Publication Bans, Confidentiality, Privacy, Disclosure, Standard of Review, Procedural Fairness, Reasonable Apprehension of Bias, Child, Youth, and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 1(1), 1(2), 79(1), 87(4), 87(8), 113, Immigration and Refugee Protection Act, S.C. 2001, c.27, 36(1)(a), s. 50(a), Family Law Rules, O. Reg. 114/99, r. 20(5), Rule 1, 2, 7, 17(24), 19(11), 20(3), 20(5), 20(24-26), Canadian Charter of Rights and Freedoms, Convention on the Rights of the Child, Courts of Justice Act, R.S.O. 1990, c. C.43, Catholic Children's Aid Society of Toronto v. S.K.S., 2019 ONCJ 899, Housen v. Nikolaisen, 2002 SCC 33, Children's Lawyer v. N.N.D., [2014] O.J. No. 6396 (Ont. C.J.), M.W. v. E.B. (2003), 38 R.F.L. (5th) 443 (ON SC), Alexander v. Canada (Solicitor General), 2005 FC 1147, Perez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1317, J.H. v. F.A., 2009 ONCA 17, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
Clearflow Commercial Finance Corp. v. Gdak, 2022 ONCA 242
Keywords: Contracts, Guarantees, Interpretation, Contra Proferentem, Ejusdem Generis, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 134(1)-(2), 159(1), Manulife Bank of Canada v. Conlin, [1996] 3 S.C.R. 415, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Molly Corp., 2014 SCC 53
Keywords: Contracts, Oral Agreements, Essential Terms, Partnership
Keywords: Family Law, Child Protection, Indigenous Children, Customary Care, Children's Law Reform Act, R.S.O. 1990, c. C. 12, ss 21(2), 62(3), Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, ss 1, 2, 80, 103, 122, Family Law Rules, O. Reg. 114/99, rule 7, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, Kina Gbezhgomi Child and Family Services v. S.B.G., R.B.J., Wiikwemkoong Unceded Territory, and R.F. (3 March 2021), Gore Bay, K-16- 0028-3 (Ont. C.J.), Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, Ogwadeni:deo v. P.E., 2020 ONCJ 145, Children's Aid Society of Brant v. R.P., 2019 ONCJ 649, D.A. v. G.H. and Dilico Anishinabek Family Care, 2021 ONCJ 95, A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, C.G.W. v. M.J. et al (1981), 34 O.R. (2d) 44 (C.A.), J.E.O. v. M.D., 2020 ONSC 6106, Formal Customary Care: A Practice Guide to Principles, Processes and Best Practices (Queen's Printer for Ontario, 2013)
Karia Estate v. Karia, 2022 ONCA 256
Keywords: Bankruptcy and Insolvency, Discharge from Bankruptcy, Annulment, After-Acquired Property, Civil Procedure, Costs, Bankruptcy and Insolvency Act, R.S.C. 1985 c. B-3, ss 30(1)(d), 67(1)(c), 158(a), 180(1), Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s 118(1), Housen v. Nikolaisen, 2002 SCC 33, L. (H.) v. Canada (Attorney General), 2005 SCC 25, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Jaegli Enterprises Ltd. v. Taylor, [1981] 2 S.C.R. 2
Tokarz v. Selwyn (Township), 2022 ONCA 246
Keywords: Torts, Negligence, Duty of Care, Standard of Care, Civil Procedure, Settlements, Pierringer Agreement, Negligence Act, R.S.O. 1990, c. N.1, Building Code Act, 1992, O Reg 221/12, Division B, Part 5, s. 5.6.2.1, Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, White v. The Corporation of the Town of Bracebridge, 2020 ONSC 3060, Parent v. Janandee Management Inc., 2017 ONCA 922, Banihashem-Bakhtiari v. Axes Investments Inc. (2004), 69 O.R. (3d) 671 (C.A.), Breen v. The Corporation of the Township of Lake of Bays, 2021, 153 O.R. (3d) 514, Mortimer v. Cameron (1994), 9 M.P.L.R. (2d) 185 (Ont. Gen. Div.), Wood v. Hungerford (Township) (2004), 3 M.P.L.R. (4th) 38 (Ont. S.C.), Riverside Developments Bobcaygeon Ltd. v. Bobcaygeon (Village) (2004), 45 M.P.L.R. (3d) 107 (Ont. S.C.), Chapeskie v. Lake of Bays (1999), 3 M.P.L.R. (3d) 233 (Ont. S.C.), Athey v. Leonati, [1996] 3 SCR 458, de Montigny v. Brossard (Succession), 2010 SCC 51, Housen v. Nikolaisen, 2002 SCC 33, Van de Perre v. Edwards, 2001 SCC 60, Modern Cleaning Concept Inc. v. Comité paritaire de l'entretien d'édifices publics de la région de Québec, 2019 SCC 28, Marchand v. The Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.), TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1
Short Civil Decisions
Dunford v. Otonabee-South Monaghan (Township), 2022 ONCA 230
Keywords: Torts, Misfeasance in Public Office, Civil Procedure, Summary Judgment
Royal Bank of Canada v. Bedard, 2022 ONCA 227
Keywords: Breach of Contract, Torts, Fraud, Fraudulent Misrepresentation, Inducement, Bankruptcy and Insolvency, Bankruptcy and Insolvency Act R.S.C., 1985, c. B-3, s. 178, Burrows v. Burke (1984), 49 O.R. (2d) 76 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 139
Amikwabi v. Pope Francis, 2022 ONCA 236
Keywords: Civil Procedure, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1.01, Ahmed v. Ontario (Attorney General), 2021 ONCA 427
Keywords: Civil Procedure, Costs
Drive Auto Group Inc. v. David Hay Limited (Fix Auto Richmond Hill), 2022 ONCA 239
Keywords: Contracts, Debtor-Creditors, Bills of Exchange, Civil Procedure, Summary Judgement, Bills of Exchange Act, R.S.C. 1985, c. B-4 (the "BEA"), Business Names Act, R.S.O. 1990, c. B.17, s. 2(1), Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 10(5), K & S Plumbing & Heating Ltd. v. Troughton (c.o.b. T.F.D. 2000), [2003] O.J. No. 4564 (S.C.)
Keywords: Contracts, Real Property, Commercial Leases, Defences, Force Majeure, COVID-19
CIVIL DECISIONS
The Catholic Children's Aid Society of Toronto v. S.K.S., 2022 ONCA 228
[Huscroft, Sossin and Favreau JJ.A.]
Counsel:
J. Gagne, for the appellant (C69910)/ respondent (C69908 & C69919) S.K.S.
C. Tempesta and M. Sarick, for the appellant (C69908)/ respondent (C69910 & C69919) Office of the Children's Lawyer
F. Husain and M. Matias, for the appellant (C69919)/ respondent (C69908 & C69910) Catholic Children's Aid Society of Toronto
J. Espejo-Clarke and A. Kam, for the respondent (C69908, C69910 & C69919) Minister of Public Safety and Emergency Preparedness
C. Robinson and A. Basman, for the intervener (C69908, C69910 & C69919) Canadian Association of Refugee Lawyers
V. Naik, for the intervener (C69908, C69910 & C69919) Canadian Civil Liberties Association
Keywords: Family Law, Child Protection, Best Interests of the Child, Immigration Law, Deportation, Civil Procedure, Publication Bans, Confidentiality, Privacy, Disclosure, Standard of Review, Procedural Fairness, Reasonable Apprehension of Bias, Child, Youth, and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 1(1), 1(2), 79(1), 87(4), 87(8), 113, Immigration and Refugee Protection Act, S.C. 2001, c.27, 36(1)(a), s. 50(a), Family Law Rules, O. Reg. 114/99, r. 20(5), Rule 1, 2, 7, 17(24), 19(11), 20(3), 20(5), 20(24-26), Canadian Charter of Rights and Freedoms, Convention on the Rights of the Child, Courts of Justice Act, R.S.O. 1990, c. C.43, Catholic Children's Aid Society of Toronto v. S.K.S., 2019 ONCJ 899, Housen v. Nikolaisen, 2002 SCC 33, Children's Lawyer v. N.N.D., [2014] O.J. No. 6396 (Ont. C.J.), M.W. v. E.B. (2003), 38 R.F.L. (5th) 443 (ON SC), Alexander v. Canada (Solicitor General), 2005 FC 1147, Perez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1317, J.H. v. F.A., 2009 ONCA 17, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
facts:
This appeal concerned the interaction between a provincial legislative scheme governing child protection and a federal legislative scheme for removing those without citizenship or immigration status from Canada.
Specifically at issue was an order for disclosure by a judge of the Ontario Court of Justice ("OCJ") at a status hearing initiated by the Catholic Children's Aid Society of Toronto ("CCAS") pursuant to s. 113 of the Child, Youth, and Family Services Act, 2017 ("CYFSA").
The purpose of the status hearing was to consider extending a supervision order governing the CCAS's involvement in a family where child protection concerns had been established. The disclosure was sought by the federal Minister of Public Safety and Emergency Preparedness (the "Minister"), pursuant to s. 50(a) of the Immigration and Refugee Protection Act ("IRPA"). That section provides that an opportunity for the Minister to make submissions in another judicial proceeding is a precondition to that proceeding having the effect of staying a removal order.
The motion judge granted the disclosure order, subject to certain safeguards to protect the confidentiality of the record and prevent the disclosure from being used for any purpose outside the child protection proceedings.
Both the CCAS and Office of the Children's Lawyer ("OCL") appealed those orders to the Superior Court.
The Superior Court appeal judge dismissed the appeal from the motion judge's order. Ms. S, the CCAS and OCL appealed.
issues:
(1) Did the appeal judge err in affirming the motion judge's decision that she had jurisdiction to make a disclosure order to the Minister, a non-party to the child protection proceeding?
(2) Did the appeal judge err in prioritizing the Minister's interest in disclosure over the interests of the children, contrary to the CYFSA, the Charter, the Convention on the Rights of the Child, and binding appellate authority?
(3) Did the appeal judge err in interpreting s. 50(a) of the IRPA as conferring on the Minister a right to make submissions on the child protection lis?
(4) Did the appeal judge err in failing to find that the motion judge violated r. 17(24) of the Family Law Rules or that her comments on the interpretation of s. 50(a) of the IRPA gave rise to a reasonable apprehension of bias?
holding:
Appeal allowed.
reasoning:
(1) No.
Absent a provision of the CYFSA precluding a judge of the OCJ from making such a disclosure order, the broad discretion afforded to the judge under the FLRs conferred jurisdiction on the OCJ to make disclosure orders including, where warranted, to the Minister exercising his mandate under s. 50(a) of the IRPA.
The jurisdiction of the OCJ to make a disclosure order to a non-party in this context was also supported by the OCJ's case law. In Children's Lawyer v. N.N.D., for example, a limited disclosure order was made to the Minister responsible for a removal order in a proceeding under the FLRs.
(2) No.
The Court did not agree with the appellants that the disclosure of any information to the Minister, in any child protection case, under any circumstances constituted a breach of the protections inherent in the CYFSA.
It was important to note that the effect of engaging the stay of removal provided for by s. 50(a) was potentially in the children's best interests. In this way, giving effect to the condition of the stay that requires the Minister to have "the opportunity to make submissions" should not be viewed as inherently at odds with the CYFSA.
Further, the Court did not agree that restricted disclosure to the Minister was tantamount to making that information public. The CYFSA explicitly provides that the presence of two media representatives at a hearing is still, "a hearing that is held in the absence of public": at s. 87(5).
(3) Yes.
The Court discussed this ground of appeal in two parts: first, the significance of the genuine lis test in the context of s. 50(a) of the IRPA; and second, the appropriate scope of the Minister's submissions.
(i) Genuine lis
Section 50(a) of the IRPA has been interpreted and applied in the family law setting in a way that makes clear it is to function in concert with family law legislation to the extent possible.
This Court considered the interaction between a family law lis and s. 50(a) in J.H. v. F.A. This case law established that there are circumstances where a genuine lis is relevant and that the Minister may be entitled to make submissions on the issue. However, a distinction must be drawn between private family law disputes and child protection cases, where several of the parties are state actors and the proceedings are carefully supervised by the courts. The Court made the point that, given those circumstances, concerns over a genuine lis will rarely arise. However, there may be circumstances where information available to the Minister through the immigration file or the length or nature of the child protection proceedings raises legitimate concerns about a genuine lis.
(ii) Appropriate scope of disclosure and of Minister's submissions
The Court agreed with the appeal judge that the motion judge did not err in concluding that s. 50(a) provided for a meaningful opportunity to make submissions. This opportunity, however, was not without limits.
In the Court's view, before a judge in a child protection proceeding can decide on the scope of a Minister's submissions or any accompanying question of disclosure, the Minister must provide a basis for the proposed scope of submissions. That basis must be derived from the record before the Minister, or from the Minister's field of knowledge and expertise.
Once the Minister's position is set out, the judge can then consider the requested scope of submission/disclosure, together with the Minister's statutory obligation to pursue removal as soon as possible on the one hand, and the parties' duties under the CYFSA and the child's best interests on the other hand. This analysis will also inform the kind of restrictions that ought to be placed on disclosure, in terms of redacting documents, if necessary, protecting confidentiality to the extent possible, and restricting the use of the disclosure outside the specific purpose of making submissions.
Disclosure orders would be granted only where, and to the extent that the Minister's clearly defined need for disclosure is warranted, having regard to the competing interests and concerns of the affected parties. Ultimately, the decision requires the exercise of discretion; as long as the Minister first satisfies the motion judge that there is a prima facie basis for disclosure, absent an error in law or in principle, the motion judge's decision is entitled to deference.
In this case, the motion judge did not require the Minister to establish a prima facie basis for the scope of submissions he wished to make, and did not assess whether the disclosure sought by the Minister was justified in light of material in the removal record, or within the field of knowledge of the Minister. As a result, the Court concluded that the motion judge's decision on disclosure could not be upheld.
(4) No.
The Court was persuaded that the exchange that took place between the motion judge and the parties was not a settlement conference under the FLRs. Further, the comments of the motion judge could not reasonably be interpreted as a predetermination of the ultimate issue before her on the motion for disclosure giving rise to a reasonable apprehension of bias.
The appeal judge did not err in finding that these comments did not reflect a predetermination, but rather reflected an attempt to focus counsel's minds on what the motion judge perceived as the central issue in dispute. It was nothing more.
Clearflow Commercial Finance Corp. v. Gdak, 2022 ONCA 242
[Trotter, Coroza and Favreau JJ.A.]
Counsel:
B. G. Blay, for the appellant
J. J. Simpson, for the respondent
Keywords: Contracts, Guarantees, Interpretation, Contra Proferentem, Ejusdem Generis, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 134(1)-(2), 159(1), Manulife Bank of Canada v. Conlin, [1996] 3 S.C.R. 415, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Molly Corp., 2014 SCC 53
facts:
In April 2015, the respondent, Clearflow Commercial Finance Corp. ("Clearflow"), extended three separate credit facilities to Trigger Wholesale Inc. ("Trigger"), a corporation of which the appellant, Ms. G., and her husband Mr. G., were the sole shareholders, directors, and officers. As part of this arrangement, on April 30, 2015, Mr. and Ms. G jointly executed an unlimited and continuing Guarantee of the full amount of the indebtedness of Trigger in favour of Clearflow. The G.'s were also officers and directors of The En Cadre Group and they both signed similar guarantees on behalf of En Cadre.
When Ms. G executed her guarantee, the total maximum
indebtedness shown on the Credit Agreements was $1.4M. By 2020, the
actual debt had skyrocketed to $48M.
In 2019, Mr. G, on behalf of Trigger, approached Clearflow to
restructure the then-existing credit facilities that would soon
expire. He sought to renegotiate the Credit Agreements and have Ms.
G released from the Guarantee. As a result of the negotiations,
Clearflow issued a proposal that would see Ms. G released from the
Guarantee, contingent on the provision of current financial
statements. The statements that were produced were not acceptable
to Clearflow. Further, a field audit conducted on behalf of
Clearflow uncovered fraudulent activities, and the deal fell apart.
Clearflow issued a written demand for all amounts owing.
Ultimately, Clearflow never signed a document confirming that Ms.
G's Guarantee had been cancelled or released.
Clearflow successfully brought a motion to enforce the Guarantee against Ms. G. Ms. G appeals from the motion judge's decision.
issues:
(1) Did the motion judge err by casting the onus of proof on Ms. G. to establish that she did not receive independent legal advice?
(2) Did the motion judge err in failing to find that the appellant lacked sophistication and that this resulted in a serious inequality of bargaining power in relation to Clearflow?
(3) Did the motion judge err in paying no attention to the "inscrutability" of the Guarantee, in that the print on the document was to small?
(4) Did the motion judge err in making the following statement: "[a]s a director, Ms. G. would have been required to sign off on the financial statements for these companies. The annual financial statements would have reflected the indebtedness to the applicant, which would have been easy for her to track year over year."?
(5) Were the reasons of the motion judge insufficient in that they failed to explain why the evidence of Clearflow was preferred over that of Ms. G.?
(6) Did the motion judge err in how she addressed the argument that the Guarantee was unenforceable against her because Clearflow breached the agreement?
(7) Did the motion judge err by not releasing Ms. G. from her liability by virtue of the ejusdem generis principle?
holding:
Appeal dismissed.
reasoning:
(1) No.
The appellant sought to resist the enforcement of the Guarantee based on a number of putative defences, one being her failure to receive independent legal advice. Clearly, she carried the onus on this issue.
(2) No.
The motion judge considered a number of circumstances in rejecting the submission that Ms. G. lacked sophistication, including evidence that demonstrated the extensive and important roles she played in the day-to-day operation of the business. Although M. R. (the partner of Clearflow with whom the G.'s were dealing) may have had considerable experience in commercial transactions, this did not render Ms. G. unsophisticated.
(3) No.
In the Court's view, this was not a legitimate basis to render the document unenforceable. Although the print was small, it was readable.
(4) No.
Mr. and Ms. G were the sole directors of the company. Whether or not Ms. G provided the signature evidencing the approval of the board, she was obliged by the OBCA to exercise "the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances" (s. 134(1)) and she was required to comply with all provisions of that act (s. 134(2)).
(5) No.
The motion judge provided comprehensive reasons that were more than sufficient to permit appellate review. The appellant's complaint was more in the nature of a disagreement with the motion judge's credibility assessments, rather than the manner in which she explained the conclusions that she reached.
(6) No.
The motion judge found that Ms. G had contracted out of any protection to which she may have been entitled at common law. By its very terms, the Guarantee was a "continuing guarantee" for all obligations and indebtedness in favour of Clearflow. The terms and conditions of the credit facilities extended to Trigger never changed in a way that was not contemplated by the Guarantee.
(7) No.
The appellant argued that the debts arising from the credit facilities extended to Trigger, especially the factoring of accounts receivable, were of a different nature than the specific "Obligations" described in the Guarantee. As the reasoning goes, she argued she should not be liable under the Guarantee for these debts.
In rejecting the appellant's argument, the Court adopted the reasoning of the motion judge and held that the factoring of accounts receivable was at the core of the financing relationship between Clearflow and Trigger, and it accounted for the lion's share of Trigger's indebtedness to Clearflow, of which all parties, including the appellant, were well aware.
[Feldman, Tulloch and Miller JJ.A.]
Counsel:
S. J. Erskine and A. Zaya, for the appellant
R. He and C. Tan, for the respondent
Keywords: Contracts, Oral Agreements, Essential Terms, Partnership
facts:
The parties were two young men who agreed to enter into a joint venture partnership where they would purchase a residential property in Toronto for $1.2 million plus closing costs, knock down the home on the property, build a new home, and sell it. The financial terms were that each partner would contribute half the purchase price, which amounted to $612,203.01 including closing costs, and then share the profits 50/50.
At trial and on appeal, the appellant disputed that an agreement had been reached. The trial judge found the essential terms of the agreement were as described above, and were sufficient to form a binding partnership agreement. The parties met through the respondent's car detailing business that also sourced high-end cars for purchase. The appellant was a university student from China who had paid the respondent a $40,000 deposit for a Lamborghini sports car the respondent agreed to locate for him to purchase.
issues:
(1) Did the trial judge err in fact and in law in her finding regarding the measure of damages?
holding:
Appeal allowed.
reasoning:
(1) Yes.
While it was true that the respondent was required to contribute an extra $211,203.01 to purchase the property, that amount was not a payment that he lost, but rather, it was part of the investment that he will recover when the property is sold.
The trial judge erred in fact and law in concluding that the respondent suffered damages in the amount of the extra capital he became responsible for investing in the project.
[Huscroft, Trotter and Coroza JJ.A.]
Counsel:
J. Gagné, for appellants
No one appearing for the respondents B.T. and D.C.
K. Hensel and K. Tsang, for the respondent Dilico Anishinabek Family Care
C. Temesta, I. Ross, M. Burbrook and L. Conti for the Office of the Children's Lawyer
S. Clarke and A. Catalano for the intervener Association of Native Child and Family Services Agencies of Ontario
A. James and A. Micallef for the intervener Nishnawbe Aski Nation
Keywords: Family Law, Child Protection, Indigenous Children, Customary Care, Children's Law Reform Act, R.S.O. 1990, c. C. 12, ss 21(2), 62(3), Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, ss 1, 2, 80, 103, 122, Family Law Rules, O. Reg. 114/99, rule 7, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, Kina Gbezhgomi Child and Family Services v. S.B.G., R.B.J., Wiikwemkoong Unceded Territory, and R.F. (3 March 2021), Gore Bay, K-16- 0028-3 (Ont. C.J.), Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, Ogwadeni:deo v. P.E., 2020 ONCJ 145, Children's Aid Society of Brant v. R.P., 2019 ONCJ 649, D.A. v. G.H. and Dilico Anishinabek Family Care, 2021 ONCJ 95, A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, C.G.W. v. M.J. et al (1981), 34 O.R. (2d) 44 (C.A.), J.E.O. v. M.D., 2020 ONSC 6106, Formal Customary Care: A Practice Guide to Principles, Processes and Best Practices (Queen's Printer for Ontario, 2013)
facts:
J.T. is a six-year-old Indigenous child and a member of the Berens River First Nation in Manitoba but resides in Thunder Bay. She has been cared for by the appellants, M.L. and D.L., in Thunder Bay since she was eight days old. She considers them to be her parents. D.L. is a status member of the Couchiching First Nation, which, he says, is an Ojibway community like Berens River First Nation. M.L. is not Indigenous. When J.T. was born, the hospital made a referral to Dilico, which apprehended J.T., executed a Temporary Care Agreement with her biological parents D.C. and B.T., and placed her in the care of the appellants. This agreement expired on February 20, 2016.
In June 2017, the appellants started an application under the Children's Law Reform Act ("CLRA") for a parenting order for J.T., with reasonable parenting time on reasonable notice for D.C. and B.T. Dilico responded by starting a protection application under the Child, Youth and Family Services Act (the "CYFSA"), which had the effect of automatically staying the appellants' CLRA application pursuant to s. 103 of the CYFSA. The appellants brought a motion to be added as parties to Dilico's protection application, but Dilico was granted leave to withdraw that application and it did not proceed. J.T. remained with the appellants and they revived their CLRA application.
The appellants attempted to continue with their application for a parenting order under the CLRA. In November 2018, Dilico brought a motion to strike their application, arguing that the appellants were "foster parents" and, as such, were precluded from party status on any parenting application for J.T.
The question raised by this case was whether the appellants were entitled to bring an application under the CLRA for parenting orders for J.T.
issues:
(1) Did the appeal judge err in concluding that the care agreements provide Dilico and Berens First Nation with the authority to make legal decisions as to J.T.'s best interests without review by a court of law?
(2) Did the appeal judge err in determining that the appellants were "foster parents" and therefore barred from party status on any application regarding parenting orders for J.T.?
holding:
Appeal allowed.
reasoning:
(1) Yes.
Court oversight is appropriate.
The agreement in this case was not a typical customary care agreement. In essence, Dilico sought to rely on the legislative preference for customary care agreements to urge non-interference by the court, despite having failed to provide care that satisfies the definition of customary care under the CYFSA. CYFSA defines "customary care" at s. 2(1) as "the care and supervision of a First Nations, Inuk or Métis child by a person" (note the word "person" and not a child welfare "agency" like Dilico). Dilico acknowledged that J.T. had been with a family for the past six years who could not and did not provide her with care and supervision according to the customs of the Berens River First Nation. On Dilico's own account, then, it appeared not to have complied with the requirement in s. 80 of the CYFSA to "make all reasonable efforts to pursue a plan for customary care" for J.T.
In this case, Dilico acted without statutory authority, without the legal parents' consent, and without the timely involvement of Berens River First Nation. The child's legal parents (in most cases the biological parents), the proposed alternative caregivers, the child welfare agency, and a representative of the First Nation must all agree that the child is in need of protection, and they must all agree to the terms and conditions of the proposed plan for care. The care agreements entered into subsequently, on which Dilico relied, failed to meet these requirements, and therefore were not valid customary care agreements.
The Court went on to state that section 80 of the CYFSA contemplates continued court oversight to promote the goals of customary care and the child's best interests, and the Court stated that customary care does not operate outside of judicial oversight.
(2) Yes.
The appeal judge erred in concluding that r. 7 of the FLRs precluded the appellants, as "foster parents", from applying for parenting orders for J.T. under the CLRA. Rule 7(4) does not limit who may be named as parties in the types of cases listed. It specifies who must be named. Rule 7(5) permits the court to add appropriate people as parties. In any event, the Court stated that nothing turned on this distinction. The appellants were necessary parties under either the CYFSA or CLRA regardless of how they were characterized. Both foster parents and customary caregivers can be made parties to a proceeding under the CYFSA, and both can also bring a CLRA application in the absence of any ongoing child protection proceeding or valid customary care agreement. The court has the discretion to add these individuals as parties to a child protection proceeding or determine whether their CLRA application may proceed.
Karia Estate v. Karia, 2022 ONCA 256
[Pardu, Paciocco and Thorburn JJ.A.]
Counsel:
M.R. Harris, for the appellant
C. Linthwaite, for the respondent
Keywords: Bankruptcy and Insolvency, Discharge from Bankruptcy, Annulment, After-Acquired Property, Civil Procedure, Costs, Bankruptcy and Insolvency Act, R.S.C. 1985 c. B-3, ss 30(1)(d), 67(1)(c), 158(a), 180(1), Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s 118(1), Housen v. Nikolaisen, 2002 SCC 33, L. (H.) v. Canada (Attorney General), 2005 SCC 25, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Jaegli Enterprises Ltd. v. Taylor, [1981] 2 S.C.R. 2
facts:
The appellant appealed the motion judge's order (i) setting aside the appellant's discharge from bankruptcy and (ii) declaring that all issued and outstanding shares of 2397043 Ontario Ltd., operating as Bindaas Capital ("Bindaas"), be vested in the Trustee in bankruptcy.
The hearing below centered on the question of the appellant's involvement with Bindaas. The motion judge held that Bindaas was owned by the appellant, the shares were after-acquired property of the appellant's estate, and the appellant breached his duty under s. 158(a) of the Bankruptcy and Insolvency Act ("BIA") by failing to deliver the shares to the trustee after his discharge from bankruptcy. The court annulled the appellant's discharge from bankruptcy pursuant to s. 180(1) of the BIA.
issues:
(1) Whether the Trustee had legal authority to bring the application before the motion judge.
(2) Whether the motion judge considered his legal authority not to annul the discharge.
(3) Whether the motion judge gave too much weight to the endorsements of other judges.
(4) Whether the motion judge imputed a finding of fraud when material facts were in dispute and a trial of the issues should have been ordered.
(5) Whether the motion judge failed to consider prejudice to the appellant.
holding:
Appeal dismissed.
reasoning:
(1) Yes.
The Trustee was never discharged and could properly bring the motion. As there were no inspectors appointed, the Trustee could institute or defend a legal proceeding relating to the appellant's property: BIA, ss. 30(1)(d).
(2) Yes.
The motion judge did not believe that he was required to annul the appellant's discharge from bankruptcy after finding that the shares were after-acquired property. He noted that the decision was discretionary by writing: "the court may annul a discharge where a bankrupt fails to perform the duties imposed on him under the BIA after the discharge," pursuant to s. 180(1) of the BIA. He elected to exercise his discretion to do so, given his conclusion that the appellant had fabricated documents to suggest he did not have an ownership interest in Bindaas when he did. The Court found there was no basis on which to interfere with the motion judge's exercise of discretion, as he neither misdirected himself nor did he render a decision that was clearly wrong: Sattva, at para. 95.
(3) No.
The motion judge did not allow the endorsements in prior orders to "colour his decision". He properly outlined the history of this matter, and in so doing, set out the prior orders leading to the motion before him. Importantly, the issue of fraud was not addressed in any of the prior orders.
(4) No.
The appellant did not directly challenge any of the findings of fact. The appellant simply suggested that the motion judge should have weighed the evidence differently, or that the matter should have proceeded to trial. Moreover, the appellant's assertion that he did not breach his duty to the Trustee to deliver all property under his possession and control as the shares belonged to his wife, was belied by the fact that the motion judge found that the only documents he relied on to support his assertion, were "altered or created after the fact by [the appellant]". Therefore, the Court found that the motion judge annulled the appellant's discharge on the basis that the appellant failed to perform his duties pursuant to s. 180(1), not on the basis that he committed fraud. There was no palpable and overriding error in the motion judge's reasoning; the only point at issue was the interpretation of the evidence as a whole. There was therefore no basis to set aside the order.
(5) No.
The appellant's discharge was annulled pursuant to s.180(1) of the BIA after the appellant was found to have failed to perform the duties imposed on him by the Act. There was no legal requirement that prejudice caused by the annulment be "a major consideration", as the appellant suggested.
Tokarz v. Selwyn (Township), 2022 ONCA 246
[Pepall, Thorburn and Coroza JJ.A]
Counsel:
L. Albert and M. Connolly, for the appellant The Corporation of the Township of Selwyn
D. A. Morin and P. Reinitzer, for the Respondents, E.T. and J. T.
Keywords: Torts, Negligence, Duty of Care, Standard of Care, Civil Procedure, Settlements, Pierringer Agreement, Negligence Act, R.S.O. 1990, c. N.1, Building Code Act, 1992, O Reg 221/12, Division B, Part 5, s. 5.6.2.1, Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, White v. The Corporation of the Town of Bracebridge, 2020 ONSC 3060, Parent v. Janandee Management Inc., 2017 ONCA 922, Banihashem-Bakhtiari v. Axes Investments Inc. (2004), 69 O.R. (3d) 671 (C.A.), Breen v. The Corporation of the Township of Lake of Bays, 2021, 153 O.R. (3d) 514, Mortimer v. Cameron (1994), 9 M.P.L.R. (2d) 185 (Ont. Gen. Div.), Wood v. Hungerford (Township) (2004), 3 M.P.L.R. (4th) 38 (Ont. S.C.), Riverside Developments Bobcaygeon Ltd. v. Bobcaygeon (Village) (2004), 45 M.P.L.R. (3d) 107 (Ont. S.C.), Chapeskie v. Lake of Bays (1999), 3 M.P.L.R. (3d) 233 (Ont. S.C.), Athey v. Leonati, [1996] 3 SCR 458, de Montigny v. Brossard (Succession), 2010 SCC 51, Housen v. Nikolaisen, 2002 SCC 33, Van de Perre v. Edwards, 2001 SCC 60, Modern Cleaning Concept Inc. v. Comité paritaire de l'entretien d'édifices publics de la région de Québec, 2019 SCC 28, Marchand v. The Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.), TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1
facts:
The appellant, The Corporation of the Township of Selwyn ("the Township") issued a building permit that allowed Cleave Energy Inc. ("Cleave") to install a metal roof and solar panels on the barn of the respondents E.T. and J.T. Cleave installed the solar system on the respondents' farm in July 2011, and the installation passed final building inspection by the Township's municipal inspector on July 28, 2011, and the permit to construct was granted on that date. The solar panel installation was "botched" in several ways. The respondents commenced an action in negligence against their contractor, Cleave and the Township. Cleave entered a Pierringer Agreement with the respondents such that the respondents' claim against Cleave was settled before the trial began. The claim against the Township proceeded but Cleave did not participate at trial. The Township did not call its engineer to testify at trial. Instead it provided a $428,834.45 total repair estimate prepared by its expert Mr. Peter Ewald, who was a solar panel system installer. He provided expert costing opinion evidence based on the scope of repair of the respondents' engineer.
The Township admitted that its actions fell below the requisite standard of care. The trial judge held that the Township was liable for 45% of the respondents' total damages of $918,084.30. The Township challenged both the apportionment of damages as between the Township and Cleave, and the damage award.
issues:
(1) Did the trial judge apply an incorrect scope of duty and standard of care to the Township for failure to comply with the inspection provision in the Building Code which caused him to err in his apportionment analysis?
(2) Did the trial judge err in his apportionment of liability?
(3) Did he err in assessing the quantum of damages?
holding:
Appeal allowed in part.
reasoning:
(1) No
The trial judge was clearly alive to the purpose of the Building Code, and held that, "Water and panels that are not installed properly are anathema to safety in this paradigm". He found as a fact that, "This barn is not a safe haven with these defects." In addition, the respondents' expert, Mr. K. testified that he had concerns about the risk of fire. The trial judge did not misapprehend the scope of the appellant's duty of care.
(2) No.
The trial judge's apportionment of liability was not based on a palpable and overriding error of fact or incorrect interpretation of the law. Nor was there a flawed assessment of the Township's conduct.
(3) Yes.
There were serious concerns with both the Township's and the respondents' assessment of damages and the Court was not in possession of all information to enable it to quantify the damages. Further analysis and further evidence was required to assess the quantification of damages and address the concerns. The evidence before the Court was not such that it could substitute its award for that of the trial judge. The damages award was set aside and the matter was remanded to another judge of the Superior Court to assess damages.
SHORT CIVIL DECISIONS
Dunford v. Otonabee-South Monaghan (Township), 2022 ONCA 230
[Feldman, Roberts and Favreau JJ.A.]
Counsel:
A. D., acting in person
M. F. Sirdevan, for the respondent
Keywords: Torts, Misfeasance in Public Office, Civil Procedure, Summary Judgment
Royal Bank of Canada v. Bedard, 2022 ONCA 227
[Rouleau, Nordheimer and George JJ.A.]
Counsel:
N. Mizobuchi, for the appellant
C. Francis, for the respondent
Keywords: Breach of contract, Torts, Fraud, Fraudulent misrepresentation, Inducement, Bankruptcy and Insolvency, Bankruptcy and Insolvency Act R.S.C., 1985, c. B-3, s. 178, Burrows v. Burke (1984), 49 O.R. (2d) 76 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 139.
Amikwabi v. Pope Francis, 2022 ONCA 236
[Fairburn A.C.J.O., Paciocco and Sossin JJ.A.]
Counsel:
N. Swinwood, for the appellants
M. Jeske, for the respondent Attorney General of Canada
R. Amarnath, for the respondent Attorney General of Ontario, Premier Doug Ford and Christine Elliott
S. Huxley, for the respondent Mayor Jim Watson
Keywords: Civil Procedure, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1.01, Ahmed v. Ontario (Attorney General), 2021 ONCA 427.
Crosslinx Transit Solutions General Partnership v. Ontario (Economic Development, Employment and Infrastructure), 2022 ONCA 250
[Rouleau, van Rensburg and Roberts JJ.A.]
Counsel:
S. Vogel, P. Wardle, J. Gardner and C. Labiris, for the appellants
M. Sammon, A. Wheeler and J. Chan, for the respondents
Keywords: Civil Procedure, Costs
Drive Auto Group Inc. v. David Hay Limited (Fix Auto Richmond Hill), 2022 ONCA 239
[Strathy C.J.O., Coroza and George JJ.A.]
Counsel:
R. Quance and K. Lee, for the appellant
P. Feldman, for the respondent
Keywords: Contracts, Debtor-Creditors, Bills of Exchange, Civil Procedure, Summary Judgement, Bills of Exchange Act, R.S.C. 1985, c. B-4 (the "BEA"), Business Names Act, R.S.O. 1990, c. B.17, s. 2(1), Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 10(5), K & S Plumbing & Heating Ltd. v. Troughton (c.o.b. T.F.D. 2000), [2003] O.J. No. 4564 (S.C.)
Windsor-Essex Catholic District School Board v. 2313846 Ontario Limited o/a Central Park Athletics, 2022 ONCA 235
[Fairburn A.C.J.O., Paciocco and Sossin JJ.A.]
Counsel:
P. J. Pape and Cristina Senese, for the appellants
J. A. Koper and Sandra Dawe, for the respondents
Keywords: Contracts, Real Property, Commercial Leases, Defences, Force Majeure, COVID-19
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