ARTICLE
30 May 2023

Court Of Appeal Summaries (May 15, 2023 – May 19, 2023)

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Following are this week's summaries of the Court of Appeal for Ontario for the week of May 15, 2023.
Canada Litigation, Mediation & Arbitration

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of May 15, 2023.

In Hydro One Networks Inc. v. Shiner, Hydro sought a declaration that it had a prescriptive easement to an access road on the respondent's private property where it was required to maintain transmission lines and towers. The application judge held that Hydro had not established that the use of the access road was continuous or "as of right", finding that Hydro's use was "occasional at best". Blaneys' own Reeva Finkel, Brendan Jones and Ines Ferreira successfully appealed the decision of the application judge. The Court found that Hydro had provided uncontroverted evidence establishing that Hydro's use of the access road was continuous and without express permission for more than 40 years. The Court noted that the meaning of 'continuous' must be viewed in the context of the right being claimed and concluded that Hydro had established a prescriptive easement.

In Moffitt v. TD Canada Trust, the appellant suffered a vicious assault when using an ATM machine located in a vestibule of one of the branches of the respondent, TD. The motion judge granted TD's motion for summary judgment and dismissed the action against it. The appeal was dismissed.

In Catholic Children's Aid Society of Toronto v. V.O., the Court clarified the flexible application of the test for leave for a status review application in child protection cases as set out in Children's Aid Society of Metro Toronto v. B.A.F., noting that a strict application of the criteria would fetter judicial discretion under s. 115(5) of the Child, Youth and Family Services Act, 2017. The Court found that the B.A.F. criteria was applied correctly by the motion judge, and was correctly upheld by the appeal judge. The appeal was dismissed.

Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc. considered the legal principle applicable to the application of res judicata. The Court, in considering cause of action estoppel and issue estoppel, dismissed the appellant's appeal on the basis that the requested vesting order and declaration could not extinguish other claims or insulate an option to purchase property from challenge, and that such claims were not barred by the application judge's earlier orders. The Court also considered declaratory relief available on an application. The Court found that there was no basis to interfere with the application judge's exercise of discretion not to grant a declaration foreclosing and dismissing challenges to the option to purchase.

Other topics covered this week included the enforcement of a settlement, reasonable apprehension of bias in a family law case involving self-represented litigants and extension of time to appeal.

Wishing everyone an enjoyable weekend.

Civil Decisions

Hydro One Networks Inc. v. Shiner, 2023 ONCA 346

Keywords: Real Property, Prescriptive Easements, Continuous Use, Consent, Civil Procedure, Evidence, Affidavits, Admissibility, Land Titles Act, R.S.O. 1990, c. L.5, Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Sch. B, Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 31, Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266, Carpenter v. Doull-MacDonald, 2017 ONSC 7560, aff'd 2018 ONCA 521, Balogh v. R.C. Yantha Electric Ltd., 2019 ONSC 6748, Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, Axler et al. v. Chisholm (1977), 16 O.R. (2d) 665, Creeggan v. Fijalkowski, 1990 CarswellOnt 5116 (Ont. Dist. Ct,), L.M.U. v. R.L.U., 2004 BCSC 95, Vivekanandan v. Terzian, 2020 ONCA 110, Caldwell v. Elia (2000), 30 R.P.R. (3d) 295 (Ont. C.A.), Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448 (C.A.), J. Gaunt QC and the Honourable P. Morgan, Gale on Easements, 19th ed. (London, England: Sweet & Maxwell, 2012)

Moffitt v. TD Canada Trust , 2023 ONCA 349

Keywords: Torts, Negligence, Occupier's Liability, Civil Procedure, Summary Judgment, Jury Notice, Expert Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(1), Occupier's Liability Act, R.S.O. 1990, c. O.2., Family Law Act, R.S.O. 1990, c. F.3, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248(1), Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, s. 20, Rules of Civil Procedure, rr. 1.04(1), 14.05(3), 20.04(2)(a), 20.04(2)(b), 20.04(2.1), 20.04(2.2), 21.01(1)(a)), 21.01(1)(b), 22.01, 53.03(2.1), 53.03(3), 53.08(1), 76, R. v. Pangan, 2014 ONCJ 229, Cowles v. Balac, (2006), 83 O.R. (3d) 660 (C.A.), Louis v. Poitras, 2021 ONCA 49, Moffitt v. TD Canada Trust, 2019 ONSC 5208, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 Roy v. Ottawa Capital Area Crime Stoppers, 2018 ONSC 4207, Hryniak v. Mauldin, 2014 SCC 7, R. v. Mohan, [1994] 2 S.C.R. 9

Haider v. Rizvi , 2023 ONCA 354

Keywords: Contracts, Civil Procedure, Settlements, Enforcement, Limitations Act, 2002,S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure,, R. 49.09, Terranata Winston Churchill Inc. v. Teti Transport Ltd., et al., 2020 ONSC 7577, Donaghy v. Scotia Capital Inc./Scotia Capitaux Inc., 2009 ONCA 40, Gianopoulos v. Olga Management Ltd. (2006), 207 O.A.C. 58 (C.A.), Vanderkop v. Manufacturers Life Insurance Company (2005), 78 O.R. (3d) 276 (S.C.), aff'd (2006), 40 C.C.L.I. (4th) 180 (Ont. C.A.). 1504641 Ontario Inc. et al. v. 2225902 Ontario Inc. et al., 2021 ONSC 2917, aff'd 2022 ONCA 175, Dodla v. Dodla, 2022 ONSC 5648, GMBR Capital Corp.v.Parmar, 2021 ONSC 7798, Fieguth v. Acklands Ltd. (1989), 59 D.L.R. (4th) 114 (B.C.C.A.), Hodaie v. RBC Dominion Securities,2012 ONCA 796, Umholtz v. Umholtz (2004), 238 D.L.R. (4th) 736 (Ont. S.C.), Gedco Excavating Ltd. v. Aqua-Tech Dewatering Co., [2014] O.J. No. 2513 (S.C.), Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721 (Gen. Div.), aff'd [1995] O.J. No. 3773 (C.A.), Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 4th ed. (Toronto: LexisNexis, 2020)

Stanley v. Lucchese, 2023 ONCA 357

Keywords:Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 123, Rules of Civil Procedure, r. 61.04, Echelon Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Malik v. Attia, 2020 ONCA 787

Kim v. McIntosh , 2023 ONCA 356

Keywords: Family Law, Parenting Time, Decision Making Authority, Child Support, Civil Procedure, Uncontested Trials, Appeals, Stay Pending Appeal, Reasonable Apprehension of Bias, Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2), s.24(3), s.37, Family Law Act, R.S.O. 1990, c. F.3, s. 31, Child Support Guidelines, O. Reg. 391/97, s.19(1)(a), Family Law Rules, O. Reg. 114/99, rr. 2(2)(3)(5), r. 25(19), Kim v. McIntosh, 2020 ONSC 719, Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), Dickie v. Dickie, 2007 SCC 8, Lamothe v. Ellis, 2022 ONCA 789, Gray v. Gray, 2017 ONCA 100, Wewaykum Indian Band v. Canada, 2003 SCC 45, R. v. S. (R.D.), [1997] 3 S.C.R. 484, Bailey v. Barbour, 2012 ONCA 325

Catholic Children's Aid Society of Toronto v. V.O., 2023 ONCA 355

Keywords: Family Law, Child Protection, Best Interests of the Child, Status Review, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 112, s. 115(5), s. 115(7), s. 115(9), s. 122(1), Family Law Rules, O. Reg. 114/99, r. 2, Children's Aid Society of Metro Toronto v. B.A.F., [1988] O.J. No. 2950 (Prov. Ct. (Fam. Div.)), Children's Aid Society of Haldimand and Norfolk v. J.A.M.-F., 2011 ONCJ 53, Titova v. Titov, 2012 ONCA 864, Children's Aid Society of Hamilton v. M.W., 2011 ONSC 1382, Children's Aid Society of Waterloo Region v. L.M., 2015 ONCJ 103, Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), The Children's Aid Society of Toronto v. S.C., 2017 ONCJ 240, S.R. v. Catholic Children's Aid Society of Toronto, 2011 ONCJ 11, Children's Aid Society of Brant v. A.C., 2015 ONCJ 436, M.P. v. Windsor-Essex Children's Aid Society and S.G., 2022 ONCJ 298

Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363

Keywords:Bankruptcy and Insolvency, Contracts, Real Property, Option to Purchase, Civil Procedure, Vesting Orders, Res Judicata, Cause of Action Estoppel, Issue Estoppel, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Assignments and Preferences Act, R.S.O. 1990, c. A.33, Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 241, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 65.11, ss. 95, ss. 96, Interest Act, R.S.C. 1985, c. I-15, s. 8(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 97, Rules of Civil Procedure, r. 14.02, r. 14.05, In the Matter of the Notice of Intention to make a Proposal of CIM Bayview Creek Inc., 2021 ONSC 220, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, Nortel Networks Corporation (Re), 2013 ONCA 518, Solosky v. The Queen, [1980] 1 S.C.R. 821, Grain Farmers of Ontario v. Ontario (Ministry of the Environment and Climate Change), 2016 ONCA 283, J.N. v. Durham Regional Police Service, 2012 ONCA 428, Harrison v. Antonopoulos (2002), 62 O.R. (3d) 463 (S.C.), S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, Gook Country Estates Ltd. v. Quesnel (City of), 2008 BCCA 407, T1T2 Limited Partnership v. Canada (1995), 23 O.R. (3d) 81 (Gen. Div.), aff'd (1995), 24 O.R. (3d) 546 (C.A.), Harry Woolf & Jeremy Woolf, Zamir & Woolf: The Declaratory Judgment, 3rd ed. (London: Sweet & Maxwell, 2002), Lazar Sarna, The Law of Declaratory Judgments, 4th ed. (Toronto: Thomson Reuters, 2016)

Short Civil Decisions

Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 353

Keywords: Civil Procedure, Costs, Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245

RCML Corp. v. 2524258 Ontario Inc., 2023 ONCA 352

Keywords: Contracts, Real Property, Mortgages, Enforcement, Power of Sale, Damages, Deficiency, Improvident Sale, Civil Procedure, Summary Judgment, No Genuine Issue Requiring Trial, Manufacturers Life Insurance Co. v. Granada Investments Ltd., 2001 150 O.A.C. 253, Oak Orchard Developments Ltd. v. Iseman, [1987] O.J. No. 361, aff'd [1989] O.J. No. 2394 (C.A.)

K.K. v. M.M., 2023 ONCA 366

Keywords: Family Law, Child Support, Spousal Support, Civil Procedure, Appeals, Stay Pending Appeal, Costs, Security for Costs, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

Truscott v. Co-Operators General Insurance Company, 2023 ONCA 372

Keywords: Civil Procedure, Costs, Rules of Civil Procedure, r. 21.01(1)(b)

Plewes v. Chaudhry, 2023 ONCA 371

Keywords: Real Property, Agreements of Purchase and Sale of Land, Tax Allocation, Excise Tax Act, R.S.C., 1985, c. E-15., s. 224.1

CIVIL DECISIONS

Hydro One Networks Inc. v. Shiner, 2023 ONCA 346

[Doherty, Feldman and Trotter JJ.A.]

COUNSEL:

Reeva M. Finkel, Brendan Jones, and Ines Ferreira, for the appellant

M. Kemerer, for the respondent

Keywords: Real Property, Prescriptive Easements, Continuous Use, Consent, Civil Procedure, Evidence, Affidavits, Admissibility, Land Titles Act, R.S.O. 1990, c. L.5, Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Sch. B, Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 31, Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266, Carpenter v. Doull-MacDonald, 2017 ONSC 7560, aff'd 2018 ONCA 521, Balogh v. R.C. Yantha Electric Ltd., 2019 ONSC 6748, Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, Axler et al. v. Chisholm (1977), 16 O.R. (2d) 665, Creeggan v. Fijalkowski, 1990 CarswellOnt 5116 (Ont. Dist. Ct,), L.M.U. v. R.L.U., 2004 BCSC 95, Vivekanandan v. Terzian, 2020 ONCA 110, Caldwell v. Elia (2000), 30 R.P.R. (3d) 295 (Ont. C.A.), Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448 (C.A.), J. Gaunt QC and the Honourable P. Morgan, Gale on Easements, 19th ed. (London, England: Sweet & Maxwell, 2012)

FACTS:

The appellant, Hydro One Networks Inc. ("Hydro"), built transmission lines and towers in the 1930's that passed through several properties in Cloyne, Ontario, including that of the respondent. An easement over the land was granted in 1948 (the "Hydro Easement"). Hydro employees required access to the Hydro Easement in order to service and maintain the transmission towers and trim the vegetation around the transmission lines. The Hydro Easement was accessed by Hydro through a private road (referred to as the "Hydro Road") that is, in part, on the respondent's land. The respondent purchased the property in 2017 and subsequently objected to Hydro's use of the portion of the road that was on his property. The respondent then locked two gates at either end of the road, preventing access to Hydro.

Hydro's position was that it had continuous, uninterrupted, open and peaceful use of the road without the owner's permission for more than 40 years, giving it a prescriptive easement either under the doctrine of lost modern grant, or by s. 31 of the Real Property Limitations Act ("RPLA"). The respondent's position was that Hydro had not met its onus of proof, that its use was not continuous, uninterrupted, open and peaceful, that there are several good alternative routes that Hydro One can use to access the Hydro Easement, and that it had sought the owner's permission to use the access road and offered to pay him compensation for that use.

The respondent submitted an affidavit attaching a letter as an exhibit from a previous employee of Hydro which stated that he did not frequently use the easement in question. This letter was unsworn and this previous employee did not provide affidavit evidence. Hydro submitted affidavit evidence from current and former Hydro employees that set out the historic use of the Hydro Road to access the Hydro Easement. The Hydro affiants also stated that Hydro never sought permission from the respondent or the former owners of the land to use the Hydro Road. The respondent argued that an agreement between the parties from 2018 (the "2018 Agreement") was evidence that Hydro was using the Hydro Easement with the respondent's permission, and therefore, Hydro was not using it "as of right." Hydro argued that the 2018 Agreement was in response to complaints by the respondent with respect to property damage. Specifically, Hydro agreed to install fences across the right of way with locked gates in satisfaction of any claim for damages. The Hydro employees stated that the 2018 Agreement did not provide that permission was being sought to use the Hydro Road.

The application judge agreed with the respondent and concluded that there was evidence that Hydro had sought the respondent's permission to use the Hydro Road. Further, she found that the historic use of the Hydro Road was "occasional at best" and dismissed the application.

ISSUES:

  1. Did the application judge err by misinterpreting the meaning of the requirement that the prescriptive use must be "continuous"?
  2. Did the application judge err by finding that Hydro had sought permission to use the Hydro Road in 2018, and therefore, its use of the road before 2008 was not "as of right"?

HOLDING:

Appeal allowed.

REASONING:

  1. Yes.

The Court stated that, under the doctrine of lost modern grant, an easement by prescription can be established by the owners of the dominant tenement over the affected portion of the servient tenement based on 20 years of continuous, uninterrupted, open and peaceful use of the land without objection by the owner of the servient tenement. The use must be "as of right" meaning that the owner of the servient tenement must have knowingly acquiesced to the establishment of the easement, not just granted permission or a license to use the land. However, under the RPLA, after 40 years, the right is absolute unless permission to use the land was given in writing during the 40 years.

The Court held that the evidence clearly showed that Hydro used the Hydro Road to access the Hydro Easement for more than 40 years. The only issues were whether this use was continuous or as of right. The Court noted that in order to establish an easement by prescription, Hydro's use of the property over the 20-year period must be "continuous, uninterrupted, open and peaceful" and without objection by the respondent. All of these requirements work together to indicate a pattern of behaviour that was accepted by the owner of the servient tenement over a long period so that the user would come to rely on the right to that use. Whether the use is "continuous" is viewed in that context.

The application judge found that there was no evidence that Hydro used the road continuously within the meaning of the caselaw. Specifically, she stated that it was conceded by Hydro that its workers accessed the easement approximately every one to three years for a foot patrol and every six to eight years for brush clearing. The Court found that the application judge misapprehended the evidence. The evidence of Hydro's affiants was that when Hydro was undertaking spraying operations from about 1997 to early 2008, spraying would occur daily during the spring and the summer. Furthermore, the evidence of the owner of the neighbouring property to the respondent was that he observed Hydro vehicles accessing the right of way twice a year since 1966.

The Court found that the weight of the evidence before the application judge was of a pattern of use of the Hydro Road by Hydro which was open, peaceful and uninterrupted from 1966 to 2018. It held that, in the circumstances, the frequency and nature of the access was sufficient to satisfy the "continuous" criterion.

  1. Yes.

The Court noted that the affidavit evidence adduced by Hydro was not challenged on cross-examination. In that evidence, the Hydro employees consistently testified that they were seeking to accommodate and appease the respondent's concerns regarding the use of the Hydro Road in order to have a good relationship. Without cross-examination challenging that evidence, it was not open to the application judge to reject all of the evidence without explanation.

Furthermore, there was nothing in the written correspondence or 2018 Agreement that indicated that the installation of the gates, fencing and gravel was in exchange for the respondent's permission to use the Hydro Road. In addition, no evidence was adduced of permission given to Hydro by the predecessor land owner to use the Hydro Road at any point in their ownership between 1925 to 2017. Therefore, the Court held that the application judge erred in law by failing to find that Hydro's use of the Hydro Road over the prescriptive period was as of right. As a result, the prescriptive easement was established on the record before the court.

Moffitt v. TD Canada Trust, 2023 ONCA 349

[Brown, Sossin and Copeland JJ.A.]

COUNSEL:

C.I.R. Morrison and S. Pickering, for the appellants

D. Zuber and J. Tausendfreund, for the respondent

Keywords: Torts, Negligence, Occupier's Liability, Civil Procedure, Summary Judgment, Jury Notice, Expert Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(1), Occupier's Liability Act, R.S.O. 1990, c. O.2., Family Law Act, R.S.O. 1990, c. F.3, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248(1), Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, s. 20, Rules of Civil Procedure, rr. 1.04(1), 14.05(3), 20.04(2)(a), 20.04(2)(b), 20.04(2.1), 20.04(2.2), 21.01(1)(a)), 21.01(1)(b), 22.01, 53.03(2.1), 53.03(3), 53.08(1), 76, R. v. Pangan, 2014 ONCJ 229, Cowles v. Balac, (2006), 83 O.R. (3d) 660 (C.A.), Louis v. Poitras, 2021 ONCA 49, Moffitt v. TD Canada Trust, 2019 ONSC 5208, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 Roy v. Ottawa Capital Area Crime Stoppers, 2018 ONSC 4207, Hryniak v. Mauldin, 2014 SCC 7, R. v. Mohan, [1994] 2 S.C.R. 9

FACTS:

The appellant, BM, suffered a vicious assault when was using an ATM machine located in the vestibule of one of the Toronto branches of the respondent, TD Canada Trust ("TD"). The assault was captured by video cameras at the ATM.

BM and the other appellants sued his assailant, the respondent FP, and the person who accompanied FP at the ATM, JG. They also sued TD for damages based on occupier's liability and negligence.

The appellants served a jury notice which, pursuant to s. 108(1) of the Courts of Justice Act, requires that "the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided." TD moved for summary judgment dismissing the action against it on the basis that there was no genuine issue requiring a trial regarding its liability. The motion judge granted the motion. On appeal, the appellants sought to set aside the summary judgment and restore the action to be tried by a civil jury.

ISSUES:

  1. Did the motion judge err in law by granting summary judgment in the face of their jury notice that required a jury to make the findings of fact?
  2. Did the motion judge improperly exclude the opinion evidence of an expert, Mr. LF, a security consultant, filed by the appellants on the motion?
  3. Did the motion judge conduct the pre-motion case management process and the summary judgment motion in a procedurally unfair manner?

HOLDING:

Appeal dismissed.

REASONING:

  1. No.

The Court held that it was open to the motion judge to grant summary judgment in an action in which the plaintiffs had served a jury notice and the Court saw no error in the test that the motion judge applied. The Court did not accept the appellants' submission that summary judgment motions in a civil jury action should apply the special test spelled out in Roy v. Ottawa Capital Area Crime Stoppers ("Roy").

The Court rejected the appellant's submissions for several reasons: (1) adopting a special summary judgment test for civil jury actions would create two categories of summary judgment motions – those brought in civil jury actions and those brought in all others – a distinction that is not supported in the language of r. 20 of the Rules of Civil Procedure; (2) the creation of two categories of summary judgment motions would undermine the needed culture shift directed in Hryniak v. Mauldin ("Hryniak") by impeding the development of adjudication models that offer timely and cost-effective alternatives to conventional trials; (3) the appellants' proposed special test essentially would replace the Hryniak test and methodology with the much narrower test used for a directed verdict in a civil trial. The Court concluded that the Hryniak test and methodology applied to summary judgment motions brought in civil jury actions. Absent an error of law, the exercise of powers under r. 20 attracts deference.

2. No.

The Court found that the motion judge properly exercised his duty as gate-keeper in excluding the evidence of Mr. LF. In oral submissions, the appellants conceded that the motion judge applied the correct legal principles to his assessment of the expert evidence. The record showed the motion judge's decision was not based on an error in principle or misapprehension of the evidence. Further, as the motion judge explained, the deficiencies in Mr. LF's report went to the heart of his opinion, not some peripheral matter.

3. No.

The Court found that the motion judge conducted the motion in a procedurally fair manner. The appellants broke down their complaint into four parts: (1) by bringing a summary judgment motion, TD accelerated what the appellants' thought would have been the normal timetable for the delivery of expert reports; (2) the appellants complained that the motion judge improperly criticized their conduct regarding the delivery of expert reports; (3) the appellants complained that the motion judge applied uneven scrutiny to their evidence as compared to his treatment of the respondent's evidence; and, (4) the appellants took issue with the motion judge "blaming" BM for initiating the physical confrontation in the ATM lobby.

The Court found no merit to these complaints,. T, and addressed each as follows (1) the first complaint spoke to a culture of delay that surrounds Ontario civil jury actions rather than offering any insight into the fairness of the process employed by the motion judge; (2) a review of the case management endorsements released by the motion judge belied the criticism of improper conduct; (3) the complaint lacked the particularity that would enable the Court to begin a serious analysis of uneven scrutiny by the motion judge; and, (4) although the appellants may disagree with the comments by the motion judge, it was not a sufficient basis for a complaint that the summary judgment process was unfair.

Haider v. Rizvi , 2023 ONCA 354

[van Rensburg, Huscroft and George JJ.A.]

COUNSEL:

R. Trifts, for the appellant

S. Zakaryan, for the respondent

Keywords: Contracts, Civil Procedure, Settlements, Enforcement, Limitations Act, 2002,S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure,, R. 49.09, Terranata Winston Churchill Inc. v. Teti Transport Ltd., et al., 2020 ONSC 7577, Donaghy v. Scotia Capital Inc./Scotia Capitaux Inc., 2009 ONCA 40, Gianopoulos v. Olga Management Ltd. (2006), 207 O.A.C. 58 (C.A.), Vanderkop v. Manufacturers Life Insurance Company (2005), 78 O.R. (3d) 276 (S.C.), aff'd (2006), 40 C.C.L.I. (4th) 180 (Ont. C.A.). 1504641 Ontario Inc. et al. v. 2225902 Ontario Inc. et al., 2021 ONSC 2917, aff'd 2022 ONCA 175, Dodla v. Dodla, 2022 ONSC 5648, GMBR Capital Corp.v.Parmar, 2021 ONSC 7798, Fieguth v. Acklands Ltd. (1989), 59 D.L.R. (4th) 114 (B.C.C.A.), Hodaie v. RBC Dominion Securities,2012 ONCA 796, Umholtz v. Umholtz (2004), 238 D.L.R. (4th) 736 (Ont. S.C.), Gedco Excavating Ltd. v. Aqua-Tech Dewatering Co., [2014] O.J. No. 2513 (S.C.), Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721 (Gen. Div.), aff'd [1995] O.J. No. 3773 (C.A.), Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 4th ed. (Toronto: LexisNexis, 2020)

FACTS:

The appellant and the respondent and his wife entered into Minutes of Settlement dated December 11, 2017, that were signed after two actions CV-13-480703 and CV-16-547391 in the Superior Court (the "Actions") were settled at a pretrial conference.In January 2019, counsel for the parties exchanged emails about the content of a Full and Final Mutual Release, and the respondent's counsel provided a draft form of release. The appellant's counsel objected to the release of unknown claims, and a clause prohibiting the parties from taking proceedings against any other person who could claim over for contribution or indemnity against a releasee (a "no claims over clause"). The appellant's counsel advised that the appellant was contemplating an action against other parties who could third party the respondent. Unfortunately, counsel for the respondent became ill in 2019 and passed away in 2020, without the terms of the release having been finalized.

In November 2021, the respondent brought a motion in Action No. CV-13-480703 seeking: (1) a declaration that the parties had reached a settlement of the Actions; (2) an order requiring the appellant to enter into a Full and Final Mutual Release as contemplated by the Minutes of Settlement; and (3) an order and declaration that the form of release sent to the appellant's counsel on January 25, 2019 met the requirements of a Full and Final Mutual Release contemplated by the Minutes of Settlement.

The appellant opposed the motion, asserting that r. 49 of the Rules of Civil Procedure, which was referred to in the respondent's notice of motion, was not applicable; that the respondent was precluded from obtaining a release because a limitation period had expired; and that if the parties were required to sign a Full and Final Mutual Release, it should not contain certain wording that the respondent had included in the draft provided by his counsel, including the release of unknown claims and a no claims over clause.

The motion judge agreed with the respondent that he was entitled to move to enforce the settlement under r. 49 because the action in which the settlement was reached had not yet been dismissed. She also rejected the appellant's limitation period argument, stating that the Limitations Act, 2002,did not apply to motions under r. 49, but that if it did, the two-year limitation period did not begin to run until January 19, 2022, when the appellant indicated for the first time that he was not prepared to sign any release.

As for the content of the Full and Final Mutual Release, the motion judge concluded that, because the parties had not provided otherwise in their Minutes of Settlement, they should be required to sign a "standard form" release releasing all claims arising out of the subject matter of the Actions and containing a provision barring claims over. The appellant appealed the order of the motion judge requiring him to "execute a standard form Full and Final Mutual Release, which released all claims arising out of the subject matter" of the Actions "and containing a clause, barring claims-over".

ISSUES:

  1. Did the motion judge procedurally err in determining the issues on a r. 49 motion?
  2. Did the motion judge err in failing to find that the respondent's claim for delivery of a Full and Final Mutual Release was statute-barred under the Limitations Act, 2002?
  3. Did the motion judge err in requiring the delivery of a Full and Final Mutual Release in a "standard form" and including a no claims over provision?

HOLDING:

Appeal allowed in part.

REASONING:

  1. No.

The appellant had demonstrated no reversible error in the motion judge's conclusion that the issue could be determined on the motion before her. R. 49 applies to offers to settle and provides that where a party to an accepted offer to settle fails to comply with the terms of the offer, the other party may (a) make a motion to a judge for judgment in the terms of the accepted offer, and the judge may grant judgment accordingly; or (b) continue the proceeding as if there had been no accepted offer to settle.

Although the notice of motion relied on r. 49 and the motion judge described the motion as having been brought under that rule, the Court found that r. 49 was not applicable. The settlement did not arise out of an exchange of offers made under r. 49. However, it was appropriate for the respondent to bring the matter before the Court by way of motion, when the Minutes of Settlement arose out of a settlement entered into after a pretrial conference, and the Actions had not yet been dismissed. The commencement of a fresh proceeding to enforce the settlement was unnecessary and would have been inappropriate.

The Court found the motion judge had jurisdiction to determine the motion and therefore did not err in hearing and deciding it. Although she stated that she was deciding the motion under r. 49.09, in essence she was deciding a motion to enforce a settlement that was reached in an action that had not yet been dismissed.

  1. No.

The appellant argued that the motion judge erred in refusing to dismiss the motion on the basis that the respondent's claim for a Full and Final Mutual Release was statute-barred. He contended that the claim for performance of the Minutes of Settlement was a new cause of action that required the commencement of a new proceeding, or at least the amendment of pleadings in the existing action, which could not occur more than two years after the date of the settlement agreement.

The Court noted that the appellant had identified no error in the motion judge's conclusion that the respondent's claim arose only at the time that the appellant refused to deliver any release at all, and not at the time the Minutes of Settlement were signed or while the parties were in negotiations about the content of the release. On that factual finding, there was no question of the expiry of a limitation period.

The Court also saw no basis for the appellant to rely on the expiry of a limitation period. It was unnecessary to address whether and in what circumstances a limitation period might bar subsequent proceedings or claims to enforce aspects of a settlement agreement since the issue before the Court was only the delivery of a release. The delivery of a release was properly sought in the context of a motion in an ongoing action. The respondent was not required to start a new action or to amend his pleadings to seek an order for an exchange of releases as part of the completion of the settlement. Even if no Full and Final Mutual Release had been delivered, the respondent was released by the terms of the Minutes of Settlement, subject only to the Undertaking.

  1. Yes.

The task confronting the motion judge was to determine what type of release should be signed. In this case, the form of release was not prescribed in the settlement agreement, the content and scope of the release depended on an interpretation of the settlement. Although the motion judge referred to Terranata as authority for the order she made, she did not apply the appropriate interpretive analysis.The motion judge referred to two passages from Terranata to conclude that the appellant should be ordered to sign a "standard form Release" releasing all claims arising out of the subject matter of the Actions and containing a no claims over provision. By contrast, it was clear from Vella J.'s examination of the circumstances before her, including the settlement agreement and the actions that were settled, that her intention was not to default to a standard form of release, but to determine the objective intentions of the parties based on the settlement they had concluded.

The appellant objected to the respondent's proposed form of release, arguing that the scope of the release was overbroad, because it would apply to claims he might have in the future against the respondent arising out of anything that was raised or could have been raised in the Actions, including damage and loss not now known or anticipated. He also objected to the inclusion in the release of a no claims over clause.

Following the approach in Terranata, the Court found the motion judge ought to have considered these arguments in the context of the specific terms of the settlement the parties had reached, including the Actions that had been settled and the Undertaking that would survive the settlement. In the interest of clarity, it would have been helpful if she had reviewed and approved a particular version of a release (there were at least two in the materials), with any changes that were appropriate to reflect her interpretation of the Minutes of Settlement and its surrounding circumstances.

The Court asked the parties to provide the form of release that they believed the motion judge had approved, and the form of release that they were asking the Court to approve. The parties did not agree on what the "standard form" ordered by the motion judge should include; and they now agreed on all of the terms of a Full and Final Mutual Release, except for whether there should be a no claims over clause, and whether such a clause should include an indemnity. The Court reviewed the terms of the Minutes of Settlement, including the Undertaking that was to specifically survive the settlement and the pleadings in the Actions, and concluded that it was appropriate that the Full and Final Mutual Release to include a no claims over clause.

The Court found that the intention of the parties was that, in consideration of the payment of the settlement funds and the survival of the respondent's indemnities of the appellant for various matters provided by the Undertaking, the matters raised in the Actions could not be raised again. The settlement would be incomplete and ineffective if the appellant were to commence proceedings against a third party arising out of matters covered by the release.

The wording and circumstances of the Minutes of Settlement made clear that, subject only to the various matters carved out of the release by the Undertaking, the parties were agreeing to extinguish each other's full underlying liability in relation to the subject-matter of the settlement. A no claims over clause was a natural extension of their agreement and was consistent with the parties' goal of providing a full and final release.

However, the Court saw no basis for the inclusion of an indemnity for breach of the no claims over clause. While this would aid in the enforcement of the no claims over clause and an indemnity to support and enforce a no claims over clause is frequently included without objection in releases in completion of settlements, the parties had bargained for certain indemnities to survive the settlement – those that were included specifically in the Undertaking. The Court found the indemnity wording proposed by the respondent to reinforce the no claims over clause went beyond what the parties reasonably bargained for. The Court approved the version of the Full and Final Release that contained a no claims over clause, and attached a copy of the Undertaking, in the form submitted to the Court by the appellant and directed the appellant to sign and deliver to the respondent a copy of that release.

Stanley v. Lucchese, 2023 ONCA 357

[Simmons J.A. (Motions Judge)]

COUNSEL:

Y. Lipetz, for the moving party

J. Thomas, for the responding party

Keywords: Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 123, Rules of Civil Procedure, r. 61.04, Echelon Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Malik v. Attia, 2020 ONCA 787

FACTS:

The respondent obtained partial summary judgment against the moving party on a $1.8 million loan by way of an endorsement typed on the back of a motion record (the "Endorsement"). The Endorsement was dated August 4, 2021. Counsel for the respondent first obtained a copy of the Endorsement on March 2, 2023, more than 18 months after it was made. Counsel for the respondent then forwarded the Endorsement to the moving party.

On March 30, 2023, newly retained counsel for the moving party requested the respondent's consent to an extension of time to appeal the partial summary judgment. The respondent's counsel responded by stating that they would seek instructions, but the notice of appeal should be served without delay. On April 11, 2023, counsel for the moving party sent a notice of appeal to counsel for the respondent and asked for their position on consent to an extension of the time for appealing. Consent was not given and a motion was brought on May 2, 2023.

ISSUES:

Should the moving party be granted an extension of time to appeal?

HOLDING:

Motion granted.

REASONING:

The Court noted that there are five factors to consider when exercising discretion to grant or deny an extension of time to appeal, which are: (a) whether the appellant formed an intention to appeal within the relevant time period, (b) the length of and explanation for the delay, (c) prejudice to the respondent, (d) the merits of the appeal, and (e) whether "the justice of the case" supported an extension.

First, the respondent argued that the moving party did not form an intention to appeal within the relevant period because they failed to serve the notice of appeal within the 30-day period from receipt of the Endorsement, after being notified to serve his notice of appeal "without delay". The Court rejected this argument, stating that the March 30, 2023 email showed an intention to appeal on time. In addition, the significant delay in receiving the Endorsement was an obvious potential challenge to filing a notice of appeal on time. In the circumstances, the respondent should have explicitly warned the moving party if she expected him to comply with a specific timeline.

Second, the Court noted that, while the moving party's delay was not well-explained, it viewed it as a neutral factor, or even a factor slightly favouring the moving party given the brevity of the delay and the fact that the respondent acquiesced in the delay. This was because, while neither party is responsible for the court's delay in providing the Endorsement, the record was silent on efforts made by the respondent, who was the lender, to obtain the Endorsement prior to March 2, 2023. Furthermore, the respondent should have put the moving party on notice had they intended to rely strictly on a 30-day timeline from receipt of the Endorsement to serve a notice of appeal. Rather, they did not respond to the email until immediately after the notice of appeal was served.

Third, the Endorsement awarded the respondent $1.8 million, but nothing had been paid. Given that the respondent acquiesced in the court's delay in delivering the Endorsement, the comparably brief delay at issue will not prejudice her.

Next, with respect to the merits of the appeal, the Court noted that the moving party admitted that he was loaned the money and guaranteed the loan, and did not attack any of the reasons provided by the motion judge. Rather, the moving party argued that granting partial summary judgment did not serve the objectives of achieving proportionate, timely and affordable justice. The Court stated that the moving party's chances of success on appeal were remote. In addition, assuming that bringing the partial summary judgment motion added to the cost and length of the overall proceedings, that was not a defence to the claim on the loan and did not justify appellate intervention. This factor weighed in favour of the respondent.

Lastly, although the moving party's chances of success on appeal are remote, the Court was not satisfied that the interests of justice favoured depriving him of his right to have an appeal heard by three judges because a litigant's absolute right of appeal is an important right not to be interfered with lightly. Therefore, the extension of time to appeal was granted.

Kim v. McIntosh, 2023 ONCA 356

[Doherty, Zarnett and Sossin JJ.A.]

COUNSEL:

A.M., acting in person

A.K., acting in person

Keywords: Family Law, Parenting Time, Decision Making Authority, Child Support, Civil Procedure, Uncontested Trials, Appeals, Stay Pending Appeal, Reasonable Apprehension of Bias, Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2), s.24(3), s.37, Family Law Act, R.S.O. 1990, c. F.3, s. 31, Child Support Guidelines, O. Reg. 391/97, s.19(1)(a), Family Law Rules, O. Reg. 114/99, rr. 2(2)(3)(5), r. 25(19), Kim v. McIntosh, 2020 ONSC 719, Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), Dickie v. Dickie, 2007 SCC 8, Lamothe v. Ellis, 2022 ONCA 789, Gray v. Gray, 2017 ONCA 100, Wewaykum Indian Band v. Canada, 2003 SCC 45, R. v. S. (R.D.), [1997] 3 S.C.R. 484, Bailey v. Barbour, 2012 ONCA 325

FACTS:

There were three matters before the court. In all three, A.M. was the appellant/moving party and his former partner, A.K., was the respondent.

The appellant and the respondent met in 2005. They had four children together between September 2008 and July 2017. The parties did not marry and eventually separated in August 2019. In September 2019, the respondent commenced an application seeking sole decision-making authority for the children, child support, and other relief. The children have always lived in Ontario with the respondent. Since the separation, she has been their sole provider. The appellant is an Australian national and returned to live in Australia shortly after the separation. The appellant has not paid any child support since the proceedings began.

The proceedings were marked by the appellant's repeated non-compliance with numerous court orders and a stream of motions and appeals brought by the appellant at various court levels. He appeared on his own behalf in all these proceedings.

The appellant appealed from the order of Steele J. of the Superior Court of Justice, made after an uncontested trial. The appellant further sought an order vacating the order of Nordheimer J.A. In that order, Nordheimer J.A. refused to stay the order of Steele J. pending appeal. In addition, the appellant brings what the Court described as an omnibus motion, seeking a wide variety of orders. On that motion, the appellant challenged various orders. He also sought an order directing the recusal on all matters pertaining to these proceedings of any judge who received or saw a certain case note made by Shore J. of the Superior Court of Justice. In addition, he asked the Court to set aside any order made by any judge of the Toronto Superior Court who may have seen or read Shore J.'s case note before he or she made an order in this proceeding.

ISSUES:

  1. Should the motion to set aside the order of Nordheimer J.A. be granted?
  2. Did Steele J. err in proceeding with an uncontested trial?

The Omnibus Motion

  1. Did Rouleau J.A. err in refusing to remit the proceeding to the trial court?
  2. Should the Court order the preparation of the Voice of the Child Report?
  3. Were the motions brought by the appellant not heard in a timely fashion?
  4. Did Steele J. err in ordering an uncontested trial?
  5. Was there a reasonable apprehension of bias in the proceedings against the appellant?

HOLDING:

Appeal and motions dismissed.

REASONING:

  1. No.

Nordheimer J.A. declined to stay the order of Steele J. pending the hearing of the appeal from that order. The Court found that, as they had heard the appeal from Steele J.'s order, the impugned orders of Nordeimer J.A. had been spent. Accordingly, the Court found no purpose in reviewing those orders.

  1. No.

Shore J. had ordered that if the appellant did not comply with the terms on which the further extension allowing him to file his response to the application brought by the respondent had been granted, the respondent could seek to proceed by way of an uncontested trial. Nine months later in September 2021, the matter came before Steele J. The appellant had filed an answer to the respondent's application, but had not complied with the terms of the order of Shore J., on which he was granted the further extension of time to file his answer. Specifically, the appellant had not paid the various costs orders and had not posted security for costs.

Shore J. cited the appellant's failure to pay many costs orders, his breach of a restraining order, and his failure to post the required security for costs, as reasons to allow the respondent to proceed with an uncontested trial.

The Court agreed with Steele J.'s consideration of the merits of the respondent's claim. The Court held that Steele J. had applied the correct test, the best interest of the child, in determining decision-making authority, parenting time, and whether to grant a non-removal order. The appellant was also ordered to pay their proportionate share of child support, despite their claim of impecuniosity.

The Court held that the appellant's complete non-compliance with the conditions imposed by Shore J. provided ample justification for Steele J.'s order to proceed by way of uncontested trial. The Court further found that the appellant could not escape his obligation to comply with court orders by pleading impecuniosity. The Court accordingly upheld Steele J.'s finding that the appellant was intentionally unemployed and capable of earning a good income.

As the appellant's failure to comply with any of the costs orders, or the security for costs order, even in part, was viewed as intentional by the Court, the Court found no error in the decision to proceed with an uncontested trial.

Having determined that Steele J. did not err in proceeding with an uncontested trial, it was doubtful that the appellant had standing to challenge the merits of the order made in the uncontested trial. The Court found that it did not need to decide that issue as it found no error in the order made by Steele J.

The Omnibus Motion

  1. No.

Rouleau J.A. heard a motion brought by the appellant to de-list the appeal so that he could bring a proceeding under r. 25(19) of the Family Law Rules ("FLRs") in the trial court to set aside the decision of Steele J. Rouleau J.A. dismissed the motion, holding that the order of Steele J. was a final order, appealable to the Court.

The Court agreed with the reasons on Rouleau J.A. The Court found that the order of Steele J. clearly determined the substantive rights in the proceedings and stood as a final order.

  1. No.

The Court rejected the appellant's submission that the Court should make an order requesting the preparation of a Voice of the Child Report. The Court found that there was nothing in the appeal record that would warrant the reception of such evidence on appeal. The Court found that the appellant's request was an attempt to alter the evidentiary record on which the order of Steele J. was made.

  1. No.

The Court held that there was nothing in the material to support the claim that the two motions brought by the appellant were not heard in a timely fashion.

  1. No.

The Court found that this submission was a restatement of the appeal from Steele J.'s order. The Court restated that there was no error in that order.

  1. No.

The Court found that there were two questions that had to be resolved on a reasonable apprehension of bias claim: what material should the court look at in determining the claim, and, should the claim succeed?

The appellant's reasonable apprehension of bias claim originated with a case note made by Shore J. on January 12, 2021 (the "case note"). Certain language in the case note precipitated a motion by the appellant in the Superior Court for an order recusing any judge who had seen the case note from further participation in any aspect of the proceeding. In response to the recusal motion, in February 2022, the Associate Chief Justice of the Superior Court, in her capacity as head of the Divisional Court, directed that all Divisional Court proceedings relating to any of the appellant's matters be heard by judges from outside of the Toronto Region. She further ordered that the case note in question be removed from the Case History Report.

The Court held that the order of the Associate Chief Justice, and the Regional Senior Justice, supported only the conclusion that they determined that the safest and most efficient way to proceed, in the face of the appellant's recusal application, was to bring in a judge from outside of the region. The Court found that the administrative decision to avoid the risk of a proceeding tainted by a reasonable apprehension of bias is not a finding that there was, in fact, a reasonable apprehension of bias.

The Court agreed with the respondent's submission that, were the Court to consider the reasonable apprehension of bias without looking at the contents of the case note, there would be no evidentiary basis upon which the Court could conclude that the contents of the case note created a reasonable apprehension of bias.

The Court, in considering the case note, held that Shore J. was concerned with the appellant's conduct of the litigation, including the multiplicity of proceedings, presented a danger to the timely and fair adjudication of the merits of the dispute. In her case management function, Shore J. determined to take control of the progress of the litigation on a go-forward basis.

The Court held that the actions of Shore J. were consistent with the philosophy of the FLRs and the exercise of her case management function.

The focus of the reasonable apprehension of bias claim was Shore J.'s description of the appellant as "a dangerous individual". The Court held that the reasonable apprehension of bias inquiry required an assessment of the relevant facts as those facts would be viewed by a reasonable informed person, looking at the matter realistically.

The Court held that the reasonable informed person, conversant with the case management practices and responsibilities in family law matters, and viewing the case note realistically and practically, would appreciate that the comments were made in reference to the conduct of the litigation by the appellant, and not in reference to the ultimate substantive merits of any facet of the litigation. The Court found that the order of Steele J. was inconsistent with any suggestion that she regarded the appellant's "dangerousness" as relevant to any order she would make on any of the issues raised at the uncontested trial.

The Court held that an informed person, looking at the matter realistically and practically, and having regard to the context in which the comment was made, would take the comment as a reference to the appellant's conduct in the litigation. Accordingly, the Court found that there was no reasonable apprehension of bias.

Catholic Children's Aid Society of Toronto v. V.O., 2023 ONCA 355

[Feldman, Gillese and Huscroft JJ.A.]

COUNSEL:

A. Burgess and J. Gagné, for the appellants

F. Husain, for the respondent

Keywords:Family Law, Child Protection, Best Interests of the Child, Status Review, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 112, s. 115(5), s. 115(7), s. 115(9), s. 122(1), Family Law Rules, O. Reg. 114/99, r. 2, Children's Aid Society of Metro Toronto v. B.A.F., [1988] O.J. No. 2950 (Prov. Ct. (Fam. Div.)), Children's Aid Society of Haldimand and Norfolk v. J.A.M.-F., 2011 ONCJ 53, Titova v. Titov, 2012 ONCA 864, Children's Aid Society of Hamilton v. M.W., 2011 ONSC 1382, Children's Aid Society of Waterloo Region v. L.M., 2015 ONCJ 103, Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), The Children's Aid Society of Toronto v. S.C., 2017 ONCJ 240, S.R. v. Catholic Children's Aid Society of Toronto, 2011 ONCJ 11, Children's Aid Society of Brant v. A.C., 2015 ONCJ 436, M.P. v. Windsor-Essex Children's Aid Society and S.G., 2022 ONCJ 298

FACTS:

The appellants are L's biological parents. The respondent Catholic Children's Aid Society of Toronto ("CCAS") apprehended L in March 2019 when she was one year old following her hospitalization as a result of serious concerns about her growth. L at one years old was severely underweight. She weighed only 4.2 kg – a weight expected for a one-month-old. She was developmentally delayed, unable to walk, stand, or roll over, and could barely hold her head up. A pediatrician concluded that L required immediate medical treatment. She was taken to Humber River Hospital on March 4, 2019, and shortly afterwards transferred to the Hospital for Sick Children. L was placed into foster care by the CCAS following her discharge from the hospital on March 28, 2019. She gained weight steadily while in foster care. The appellant mother gave birth to another child on April 16, 2019, and the CCAS placed that child in the same foster home as L the next day. Both children thrived in foster care. The appellants had supervised in-person parenting time as well as virtual parenting time during the COVID-19 pandemic.

Protection applications for both children were set for trial. However, in November 2020, the appellants consented to an order placing L into extended CCAS care. In the agreed statement of facts, the appellants agreed that there was a risk that L was "likely to suffer physical harm" if she remained in their care due to a "pattern of neglect in caring for, providing for, supervising or protecting the child". The consent order permitted the appellants monthly visits with L at the CCAS office, which were later extended to unsupervised visits. L's younger sister was placed in the appellants' care pursuant to a 12-month supervision order. The supervision order was subsequently terminated on consent. More than a year later, in January 2022, and after the CCAS advised it was seeking an adoption placement for L, the appellants applied to the court for a status review, asking for L to be returned to their care.

The motion judge held that leave was required to apply for a status review and denied the appellants leave to bring an application. The motion judge concluded that the appellants' choice not to go to trial and to consent to extended CCAS care for L was not a circumstance justifying leave. Nor was the fact that they had been able to care for L's younger sister, who has no special needs. The motion judge concluded that the appellants were seeking to relitigate whether L should have been placed in extended CCAS care in the first place. Her decision was affirmed by the appeal judge.

The appellants appealed on the basis that they were entitled to bring a status review application as of right. In the alternative, they argued that they should have been granted leave to bring their application.

ISSUES:

  1. Did the appeal judge err in refusing to decide if leave was required to bring a status review application?
  2. Was leave required for the parents to bring a status review application in this case?
  3. If leave was required to bring a status review application, does the Court have jurisdiction to hear an appeal from a refusal of leave?
  4. What is the proper framework for leave under s. 115(5) of the Child, Youth and Family Services Act, 2017?
  5. Did the motion judge err in the exercise of her discretion?

HOLDING:

Appeal dismissed.

REASONING:

  1. Yes.

The Court found that the appeal judge erred in failing to decide whether leave was required because the appeal judge had the discretion to hear a new argument and should have exercised it to hear the appellants' leave argument. The appellants' failure to object to the leave requirement at the time of the motion should not have precluded them from raising the issue on appeal. The appeal judge erred in concluding otherwise.

  1. Yes.

The Court held that leave was required for the parents to bring a status review application and that the appeal judge's error in failing to decide whether leave was required did not assist the appellants because leave was required.

On a plain reading of s. 115(5), leave was required because L, a child in extended CCAS care, received continuous care from the same foster parent for over two years. The Court rejected the appellants' argument that leave to bring a status review application was not required because L's situation is not one that was intended to be captured by s. 115(5) because the "continuous care" from the same foster parent was set to be interrupted by the adoption anyway and the status quo would not have been maintained. The appellants further argued that the leave requirement could not be said to be in the child's best interests where the CCAS plans to move the child and instead that it would be in the child's best interests to give her biological parents a full opportunity at a status review hearing. The Court rejected this interpretation, holding that s. 115(5) clearly indicates that a parent may not make a status review application without leave once a child has received continuous care for at least two years from the same foster parent or from the same person under a custody order.

In the alternative, the appellants argued that the two-year period set out in s. 115(5) begins after an extended CCAS care order has been made and it had only been one year since the extended care order was made. The Court held that there was no textual or case law support for this interpretation.

The motion judge did not err in counting time with the foster family prior to the extended CCAS care order in the two-year period referred to in s. 115(5). Time is of the essence in child protection cases and the effect of the delay is plain: but for the appellants' status review application and two appeals, L would be in her adoptive home. The Court held that the appellants required leave to proceed with their status review application.

  1. Yes.

The Court held that it had jurisdiction to hear an appeal from a refusal of leave and in particular, as in this case, an order refusing leave which is final.

The Court held that the motion judge did not err in articulating the burden of proof and articulated that the proper framework for leave under s. 115(5) of the CYFSA, stating that it does not amount to a "test for leave" but rather established a discretion to grant leave without enumerating any relevant considerations. Had the motion judge applied the five criteria set out in Children's Aid Society of Metro Toronto v. B.A.F. strictly, the motion judge would have fettered her discretion under s. 115(5). However, the Court found that the motion judge did not apply the criteria strictly, instead citing the line of cases confirming that the court's discretion should not be fettered and that a flexible approach should be taken.

The Court saw no error in this approach and held that discretionary authority should not be reduced to a set of criteria that apply in a rule-like fashion, as doing so would undermine the nature and purpose of discretionary authority. Different considerations may be of greater or lesser significance in different cases, and, as a result, the Court held that the motion judge correctly applied a flexible approach to the B.A.F. criteria.

  1. No.

The Court found that the motion judge exercised her discretion reasonably and did not err in so doing, in particular, the motion judge did not err in considering inadmissible evidence, as the appellants contended. The Court stated that reliance on two doctor's opinions as expert evidence would have been inappropriate, given that the reports did not meet the test for filing expert reports, and neither doctor had examined L. However, the Court found that the motion judge did not rely on the doctor's opinions as expert evidence, instead the motion judge specifically declined to rely on the report, stating that it was unnecessary to rely on the report to conclude that the parents continued to refuse to accept responsibility for their role in the severe neglect of L. It was reasonable for the motion judge to conclude that the parents' lack of care in the first year of L's life must have played a role, and reasonable to note the parents' failure to take any responsibility for L's condition when she was apprehended by the CCAS.

Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363

[van Rensburg, Sossin and Copeland JJ.A.]

COUNSEL:

R. Choi, H. Trbizan, and J. Gross, for the appellants

A.M. Slavens, J. Silver, M. Noel, and J.J. Barr, for the respondents T.H and J.H (The Enforcement Committee of the Debentureholders)

J.N. Birch, for the respondent Grant Thornton Limited in its capacity as former Proposal Trustee and current Bankruptcy Trustee of CIM Bayview Creek Inc.

E. P. Shea, for the respondents GR (CAN) Investment Co. Ltd. and Monest Financial Inc.

Keywords: Bankruptcy and Insolvency, Contracts, Real Property, Option to Purchase, Civil Procedure, Vesting Orders, Res Judicata, Cause of Action Estoppel, Issue Estoppel, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Assignments and Preferences Act, R.S.O. 1990, c. A.33, Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 241, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 65.11, ss. 95, ss. 96, Interest Act, R.S.C. 1985, c. I-15, s. 8(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 97, Rules of Civil Procedure, r. 14.02, r. 14.05, In the Matter of the Notice of Intention to make a Proposal of CIM Bayview Creek Inc., 2021 ONSC 220, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, Nortel Networks Corporation (Re), 2013 ONCA 518, Solosky v. The Queen, [1980] 1 S.C.R. 821, Grain Farmers of Ontario v. Ontario (Ministry of the Environment and Climate Change), 2016 ONCA 283, J.N. v. Durham Regional Police Service, 2012 ONCA 428, Harrison v. Antonopoulos (2002), 62 O.R. (3d) 463 (S.C.), S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, Gook Country Estates Ltd. v. Quesnel (City of), 2008 BCCA 407, T1T2 Limited Partnership v. Canada (1995), 23 O.R. (3d) 81 (Gen. Div.), aff'd (1995), 24 O.R. (3d) 546 (C.A.), Harry Woolf & Jeremy Woolf, Zamir & Woolf: The Declaratory Judgment, 3rd ed. (London: Sweet & Maxwell, 2002), Lazar Sarna, The Law of Declaratory Judgments, 4th ed. (Toronto: Thomson Reuters, 2016)

FACTS:

CIM Bayview, the registered owner of a residential development property in Richmond Hill, Ontario (the "Property"), granted an option to purchase the Property (the "Option") to Bayview Creek Residences Inc. (formerly Bryton Creek Residences Inc.), as part of a transaction with its second mortgagee Bryton Capital Corp. GP Ltd. (together, the "appellant"). The appellant sought to exercise the Option and was opposed by other creditors of CIM Bayview, who stand to recover nothing if the appellant acquires the Property under the Option. A sale under the Option was also opposed by Grant Thornton Limited, CIM Bayview's trustee in bankruptcy.

In earlier proceedings, while CIM Bayview was seeking to make a bankruptcy proposal, the application judge dismissed certain challenges to the Option, refused an order vesting the Option from title to the Property, and declared that the appellant was entitled to exercise the Option.

The appellant subsequently brought an application in CIM Bayview's bankruptcy proceedings for an order: (1) directing and approving the sale of the Property by its private receiver; (2) vesting title to the Property free and clear of all encumbrances; (3) declaring that any proceedings related to the validity of the Option were res judicata; (4) in the alternative, declaring that the Option could not be challenged in proceedings under the Fraudulent Conveyances Act (the "FCA"), the Assignments and Preferences Act (the "APA"), s. 241 of the Canada Business Corporations Act (the "CBCA oppression remedy"), and ss. 95 and 96 of the Bankruptcy and Insolvency Act (the "BIA"), together with an order dismissing those claims.

The application judge dismissed the appellant's application on the basis that the requested vesting order and declaration could not extinguish other claims or insulate the Option from challenge, and that such claims were not barred by his earlier orders.

ISSUES:

  1. Did the application judge err in his approach to the principle of res judicata?
  2. Did the application judge err by refusing to grant the declaration sought by the appellant?

HOLDING:

Appeal dismissed.

REASONING:

  1. No.

The Court began with an overview of the doctrine of res judicata, noting that the underlying principle is that ""[a]n issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner", and that "[d]uplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided". The Court noted that res judicata has two main branches: cause of action estoppel and issue estoppel. Cause of action estoppel prohibits a litigant from bringing an action against another party when that same cause of action has been determined in earlier proceedings by a court of competent jurisdiction, and also prevents a party from re-litigating a claim that could have been raised in an earlier proceeding. The Court noted that issue estoppel is narrower than cause of action estoppel as "[i]t applies to prohibit the re-litigation of an issue that has already been decided in an earlier proceeding, even where the cause of action is different in the two proceedings".

The Court noted that an appellate court owes deference to a judge's application of the tests for cause of action and issue estoppel. Intervention is only warranted if the judge "misdirected himself, came to a decision that is so clearly wrong as to be an injustice, or gave no or insufficient weight to relevant considerations".

The Court found no error in the application judge's approach to cause of action estoppel or his conclusions. First, the Court held that there was no question that the application judge's January 2021 decision made no determination of the merits of any ss. 95 and 96 BIA claims. The Court found that the application judge had accepted the appellant's argument in his January 2021 decision that the Notice of Intention Trustee lacked the statutory authority to bring such claims. The Court noted that the application judge also expressly refused to make any substantive determination regarding the claims.

Second, the Court found that the appellant's arguments about the application of cause of action estoppel to the Creditor Claims that the Third Mortgagees sought to bring on behalf of other creditors failed for a similar reason. As the application judge had found that the creditors could not have acquired the right to bring these causes of action via a s. 38 motion until the debtors were bankrupt, the Court found that these claims would have been premature in the prior proceeding.

Third, with respect to the Third Mortgagees' direct claims, the Court found that the application judge was entitled to reject the meaning that the appellant attributed to his Scheduling Order. The Court agreed with the application judge that the direct claims were related to the claims requiring a s. 38 motion and would be properly brought by way of an application or an action. The Court found that the intention was not to require all challenges to the Option to be brought forward at that time. The Court held that this interpretation was supported by the fact that some claims could only be brought after the debtors were bankrupt. The Court found that, the extent the application judge was interpreting his own orders, the application judge's determinations were entitled to deference.

The Court then considered the appellant's argument of issue estoppel – that the application judge erred in failing to give effect to specific findings that he made in his January 2021 decision.

The Court found that the application judge had made no error. His findings did not determine that the Option was valid in every context. The Court found that he had specifically provided for the ss. 95 and 96 BIA claims to be made in the future, and that he did not say anything that would suggest that such findings would affect the merits of any future challenge to the Option. The Court agreed with the application judge's conclusion that, until such claims were made, it would not be proper to determine whether issue estoppel applied to preclude the re-litigation of any issues decided in his January 2021 decision.

The Court concluded that there was no error in the application judge's approach to the principle of res judicata, and there was nothing to suggest that the assertion of these claims in the normal course of the insolvency proceedings, while under the supervision of the Commercial List, would be an abuse of process.

  1. No.

The Court noted that r.14.05 was procedural in nature. The rule does not create jurisdiction, but assumes it, and provides a means by which to engage that jurisdiction. The Court held that a court must have jurisdiction independent of r. 14.05 before it can consider the appropriate vehicle for bringing the matter forward, whether by application or action.

The Court also noted that a declaratory judgment is "a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs". The Court held that declaratory relief, being restricted to a declaration of the parties' rights, "is mainly sought in commercial matters to help parties define their rights" and contains no provision ordering any party to do anything or any form of sanction. The Court found that such relief was discretionary.

The appellant submitted that it met all the requirements for a declaration under Solosky v. The Queen and that it had properly brought the application under r. 14.05(3)(e) because the relief claimed was the settling of the priority of interests or charges, and it relied on the court's jurisdiction under s. 97 of the Courts of Justice Act to "make binding declarations of right, whether or not any consequential relief is or could be claimed". The appellant argued that, in the absence of evidence by the respondents to support their claims, the application for declaratory relief should be granted.

The Court found no merit to this ground of appeal and noted that the appellant's attempt to obtain declaratory relief was defective on two bases: (1) it was not a proper use of the application procedure, and (2) it went beyond the proper scope of declaratory relief. The Court further found that the application judge's refusal to exercise his discretion to grant declaratory relief was entitled to deference.

The Court found that the appellant had erred in its reliance on r. 14.05(3)(e) to initiate its application for declaratory relief. The appellant was not simply seeking a declaration of its rights; it was seeking a dismissal of the Creditor Claims and of ss. 95 and 96 BIA claims, whether on their merits or on default of the respondents bringing forward evidence to support the claims.

The Court also found that it was obvious from the scope of relief sought by the appellant that it was seeking relief that extended far beyond a declaration of its rights: it sought to dismiss proceedings that were already underway and to bar any further proceedings to challenge the Option.

Finally, the Court held that the application judge did not consider an irrelevant factor when he referred to the existence of other proceedings to challenge the Option. The Court noted that declaratory relief is discretionary and can be refused based on a variety of considerations, including whether other available recourse is appropriate. The Court held that declaratory relief should not be entertained if it results in "an abuse of process, an unwarranted side-stepping of delays and costs attached to other recourses, or a procedural or evidentiary prejudice against the other parties to the action".

The Court concluded that the argument that any delay in its ability to exercise the Option would only increase the appellant's costs in relation to the exercise of the Option was insufficient to justify the use of the application procedure to bar or dismiss the creditors' claims.

SHORT CIVIL DECISIONS

Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 353

[Zarnett, Thorburn and Copeland JJ.A.]

COUNSEL:

K. Thomson, S. Campbell, A. Hassan, M. Littlejohn, A. Alexander and T. May, for the appellants

I. Nishisato, H. Meighen, E. Peters and S. Gagné, for the respondent

Keywords: Civil Procedure, Costs, Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245

RCML Corp. v. 2524258 Ontario Inc., 2023 ONCA 352

[Pepall, van Rensburg and Harvison Young JJ.A.]

COUNSEL:

B. Cozzi, for the appellants

Davis and N. Sidlar, for the respondent

Keywords: Contracts, Real Property, Mortgages, Enforcement, Power of Sale, Damages, Deficiency, Improvident Sale, Civil Procedure, Summary Judgment, No Genuine Issue Requiring Trial, Manufacturers Life Insurance Co. v. Granada Investments Ltd., 2001 150 O.A.C. 253, Oak Orchard Developments Ltd. v. Iseman, [1987] O.J. No. 361, aff'd [1989] O.J. No. 2394 (C.A.)

K.K. v. M.M., 2023 ONCA 366

[Huscroft J.A. (Motion Judge)]

COUNSEL:

G. Pop-Lazic, for the appellant

A. Pasha, for the respondent

Keywords:Family Law, Child Support, Spousal Support, Civil Procedure, Appeals, Stay Pending Appeal, Costs, Security for Costs, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

Truscott v. Co-Operators General Insurance Company, 2023 ONCA 372

[Gillese, Tulloch and Roberts JJ.A.]

COUNSEL:

J.A. Scarfone and J. Sazio, for the appellants

R. Dowhan and M. McMahon, for the respondents

Keywords:Civil Procedure, Costs, Rules of Civil Procedure, r. 21.01(1)(b)

Plewes v. Chaudhry, 2023 ONCA 371

[Trotter, Sossin and Copeland JJ.A.]

COUNSEL:

M. Morden, for the appellants

D. Winer and P. Casuccio, for the respondent

Keywords: Real Property, Agreements of Purchase and Sale of Land, Tax Allocation, Excise Tax Act, R.S.C., 1985, c. E-15., s. 224.1

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