Court Of Appeal Summaries (December 9 – December 13, 2019) - Trials & Appeals & Compensation

Good afternoon.

Below are the summaries for this week's civil decisions of the Court of Appeal for Ontario.

In Trezzi v Trezzi the court confirmed that a testator can bequeath not only his or her assets owned in their personal name, but also those they own indirectly through a corporation of which they are the sole shareholder. The effect of the Will in this case stripped the corporation of all of its assets, and effectively represented the intention on the part of the testator to wind-up the corporation. His estate trustees had the power to do that under ss 193(1) of the Ontarion Business Corporations Act.

Other topics covered this week included several family law decisions, Anti-SLAPP, two reasonable apprehension of bias decisions (one in the custody and access context), stays in favour of arbitration and the exclusive jurisdiction of the Labour Board in matters covered by a collective agreement.

As many of our readers may know, my partner, Lea Nebel and I have been chairing the last few years a CLE at the OBA of "Top Appeals" from the Court of Appeal over the past year. The program will be a dinner program to take place at the OBA on Thursday, February 27, 2020, so please mark your calendars! Two of the cases we will be featuring this year are Darmar Farms v Sygenta, which deals with the potential new tort of "premature commercialization" and pure economic loss in product liability context, and The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. We have not yet decided whether to feature a third decision. If any of our readers have any suggestions, please let me or Lea know.

Have a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Eggiman v. Martin , 2019 ONCA 974

Keywords: Contracts, Franchise Agreements, Arbitration Clauses, Appeals, Jurisdiction, Arbitration Act, 1991, S.O. 1991, c. 17 s. 7(1), (2) and (5), Brown v. Murphy, (2002), 59 OR (3d) 404 (C.A.)

Health Genetic Centre Corp. (Health Genetic Center) v. New Scientist Magazine , 2019 ONCA 977

Keywords: Torts, Defamation, Procedural and Natural Justice, Reasonable Apprehension of Bias, Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60, 129 O.R. (3d) 37, R. v. Curragh Inc., [1997] 1 S.C.R. 537, Eckervogt v. British Columbia, 2004 BCCA 398

Hutton v. The Manufacturers Life Insurance Company (Manulife Financial) , 2019 ONCA 975

Keywords: Labour Law, Jurisdiction, Collective Agreements, Arbitration, Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 48(1), Canadian Labour Arbitration, 3rd ed., Rules of Civil Procedure, rr. 20.01, 21.01(3)(a), Barber v. Manufacturer's Life Insurance Company (Manulife Financial), 2017 ONCA 164, 136 O.R. (3d) 198, leave to appeal refused, [2017] S.C.C.A. No. 150, London Life Insurance Co. v. Dubreuil Brothers Employees Assn. (2000), 49 O.R. (3d) 766, leave to appeal refused, [2000] S.C.C.A. No. 496, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929

Raymond J. Pilon Enterprises Ltd. v. Village Media Inc. , 2019 ONCA 981

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(3), 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, New Dermamed Inc. v. Sulaiman, 2019 ONCA 141, Grant v. Torstar Corp., 2009 SCC 61

Leeds Standard Condominium Corporation No. 41 v. Fuller , 2019 ONCA 987

Keywords: Contracts, Arbitration Agreements, Jurisdiction, Real Property, Condominiums, Oppression Remedy, Condominium Act, 1998, S.O. 1998, c. 19, Arbitration Act, 1991, S.O. 1991, c. 17., Haas v Gunasekaram, 2016 ONCA 744, 62 B.L.R. (5th) 1

Mullings v. Robertson , 2019 ONCA 979

Keywords: Family Law, Spousal Support, Child Support, Property Division

Richardson v. Richardson , 2019 ONCA 983

Keywords: Family Law, Custody and Access, Procedural and Natural Justice, Reasonable Apprehension of Bias, Civil Procedure, Settlements, Approval, Canadian Charter of Rights and Freedoms, s. 7, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Family Law Rules, O. Reg. 114/99, r. 2(5)(c), Martin v. Martin, 1981 CarswellBC 773 (C.A.), C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, Harper v. Harper (1991), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), F.J.V. v. W.K.S., 2019 BCCA 67, McKitty v. Hayani, 2019 ONCA 805, Family Law Rules, r. 17(24), Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, Van de Perre v. Edwards, 2001 SCC 60, Perron v. Perron, 2012 ONCA 811

Savage v. Savage , 2019 ONCA 984

Keywords: Family Law, Spousal Support, Variation, Material Change in Circumstances

Traders General Insurance Company v. Gibson ,
2019 ONCA 985

Keywords: Torts, Occupier's Liability, Contracts, Insurance, Home Insurance, Interpretation, Coverage, Exclusions, Wawanesa Mutual Insurance Co. v. Hewson, 2003 SKQB 116, Wright v. Canadian Group Underwriters Insurance Co., 2002 BCCA 254, Allstate Insurance Co. of Canada v. Aftab, 2015 ONCA 349

Trezzi v. Trezzi , 2019 ONCA 978

Keywords: Wills and Estates, Wills, Interpretation, Bequests, Surviving Spousal Election, Extension of Time, Corporations, Winding Up, Family Law Act, RSO 1990, C F3, s 2(8), s 5(2), s 6(1), s 6(10), Business Corporations Act, RSO 1990, c B16, s 193(1), s 141(1), Re Burke, [1960] OR 26 (CA), Katz v Nimelman, 2009 ONCA 445

Short Civil Decisions

Curtis v. Pinto , 2019 ONCA 982

Keywords: Civil Procedure, Striking Pleadings, Abuse of Process, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (CA)

Criminal Decisions

R. v. N., 2019 ONCA 966

Keywords: Criminal Law, Uttering Death Threatens, Criminal Harassment, Intimidation, Obstruction of Justice, Evidence, Admissibility, Cross-Count Prior Discreditable Conduct, Sentencing, Criminal Code, s. 683(1)(g), 742.1(a), R v. Tsigirlash, 2019 ONCA 650, R v. T.C., 2019 ONCA 898

R. v. B., 2019 ONCA 970

Keywords: Criminal Law, Evidence, Admissibility, Search Warrants, DNA Evidence, Charter, s. 8, 24(2), R. v. Morelli, 2010 SCC 8, R. v. Araujo, 2000 SCC 65, R. v. Grant, 2009 SCC 32

R. v. R., 2019 ONCA 971

Keywords: Criminal Law, First Degree Murder, Second Degree Murder, Jury Instructions, Criminal Code, s. 686(1)(b)(iii), R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074

R. v. C.W. (Publication Ban), 2019 ONCA 976

Keywords:Criminal Law, Domestic Abuse, Sentencing, Criminal Code, s. 753(1)(a)(i), 753(4.1)

R. v. C., 2019 ONCA 972

Keywords: Criminal Law, Child Luring, Sentencing, Mandatory Minimum Sentence, Constitutional Law, Criminal Code, s. 172.1(2)(a), 212(4), 737, Canadian Charter of Rights and Freedoms, s. 12, 11(b), R. v. Morrison, 2019 SCC 15, R. v. Morin, [1992] 1 S.C.R. 771, R. v. Jordan, 2016 SCC 27, R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Nur, 2015 SCC 15

E. v. Canada (Attorney General), 2019 ONCA 980

Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Evidence, Hearsay, Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, Re Conway, 2016 ONCA 918, Re Ranieri, 2015 ONCA 444

Ontario Review Board Decisions

C.(Re), 2019 ONCA 973

CIVIL DECISIONS

Eggiman v. Martin, 2019 ONCA 974

[Simmons, Pardu and Nordheimer JJ.A.]

Counsel:

Andy Seretis, for the appellants
Todd D. Storms and Zach Flemming-Giannotti, for the respondents

facts:

Appellants and respondents are parties to an arbitration provision that is part of the contractual arrangements by which the appellants operate two "Tim Hortons" franchises on behalf of the respondents. The respondents purported to terminate the Operating Agreements after becoming aware of certain conduct of the appellant. The respondents then commenced an action against the appellants and the other defendant in which they sought damages for breach of contract, intentional interference with economic relations, and conversion. In response, the appellants brought their motion to stay the action in favour of the arbitration process. The motion judge dismissed their motion.

issues:

(1) Did the motion judge err in his decision to dismiss the motion on the basis that s. 7(1) of the Arbitration Act, 1991 requires that the action be stayed and that none of the exceptions to that mandatory stay in s. 7(2) apply?

(2) Did the motion judge err in finding that s. 7(5) of the Arbitration Act, 1991 permitted him to refuse to grant a stay on the ground that it would lead to a multiplicity of proceedings?

holding:

Appeal dismissed.

reasoning:

(1) and (2). No analysis completed on motion judge's reasons. It was found that there was no appeal to the court from the order of the motion judge. Section 7(6) of the Arbitration Act, 1991 precludes any appeal from the decision rendered respecting the motion to stay, whether the order grants or refused the stay. The court clarified that this dismissal was not seen as the Court agreeing with the analysis of the motion judge.

Health Genetic Centre Corp. (Health Genetic Center) v. New Scientist Magazine, 2019 ONCA 977

[Juriansz, Pepall and Miller JJ.A.]

Counsel:

Gil Zvulony, for the appellants
Sandra Barton and Erin Farrell, for the respondents

facts:

Since 2001, Dr. M has been selling a "non-invasive" prenatal paternity test to the public. Dr. M claimed that he and his corporation were defamed by the publication of an article in New Scientist magazine in December 2010. The article, based on an 18-month investigation by the respondents, criticized Dr. M and the test for yielding unreliable results.

At trial, the respondents led evidence that Dr. M lacked the expertise to develop the test, that Dr. M did not validate the test before putting it on the market, that the test ran on flawed methodology, and that the test reported incorrect results. The trial judge rejected Dr. M's unsupported assertions that the test was scientifically sound and that the respondents were motivated by malice. He concluded that the respondents had established the defences of justification, fair comment, responsible communication, and qualified privilege and dismissed the action.

Dr. M and his corporation appealed the trial decision. On appeal, the appellants relied on numerous instances of alleged bias in the trial judge's conduct of the hearing and his interaction with counsel.

issues:

(1) Did the trial judge demonstrate a reasonable apprehension of bias?

holding:

Appeal dismissed.

reasoning:

(1) No, there was no reasonable apprehension of bias. An apprehension of bias should be raised as soon as it is reasonably possible to do so. This principle protects the integrity of the court's authority. It also ensures a full record, and prevents counsel from keeping allegations of bias in reserve and deploying them tactically upon receipt of an unfavourable decision. Each of the instances of alleged bias, considered individually, seemed petty to the Court. However, the appellants asserted that the cumulative effect of each instance must be considered in light of the trial judge's decision and reasons.

One instance involved the trial judge's acceptance of cough drops from the respondents' counsel, which the appellants alleged prompted him to show her extra courtesy the next day of trial. The appellants' counsel advanced the alternative argument that the trial judge's acceptance of the cough drops, which he described as a gratuity, was on its own sufficient to establish a reasonable apprehension of bias. The Court had no hesitation in concluding that any apprehension of bias flowing from the acceptance of the cough drops was unreasonable.

The second instance involved the trial judge's comment that the appellants' trial counsel was too young to know the "usual practice" with respect to sealing orders. The transcript made it clear that the trial judge was considering the breadth of the proposed sealing order and wished to see case law. The Court found that while it would have been preferable for the trial judge to have avoided any reference to counsel's age, this exchange did not contribute to the allegation of reasonable apprehension of bias.

The Court noted, in a trial of any length, it is all too easy to cherry-pick individual off-handed remarks by the trial judge. The Court held that the trial judge's comments to counsel during the trial may have been informal, sometimes unnecessary, and occasionally inadvisable (such as his comment on counsel's youth). However, the Court considered these comments cumulatively and in full context, and was not persuaded that his comments were evidence of partiality or differential treatment toward the respondents' counsel.

Hutton v. The Manufacturers Life Insurance Company (Manulife Financial), 2019 ONCA 975

[Strathy C.J.O., Sharpe and Roberts JJ.A.]

Counsel:

John Philp and Aron Zaltz, for the appellant
Amir Tamari and Sophia Zaidi, for the respondent

facts:

The appellant was an employee of the Quinte Healthcare Corporation ("QHC") and a member of the Ontario Public Service Employees Union ("OPSEU"). QHC contracted with the respondent to provide group benefits, including life insurance and long-term disability ("LTD") benefits, to eligible employees. The appellant was injured in an accident and sought LTD benefits under the terms of the collective agreement, which she received for a period of seventeen months until the respondent determined she was no longer eligible. The appellant filed a grievance against QHC and before it settled, the appellant commenced the within action. The respondent brought a successful summary judgement motion arguing that the appellant's entitlement to LTD benefits fell within the exclusive grievance and arbitration provisions of the collective agreement. The motion judge, in granting the motion, found that the collective agreement stipulated that the employer is obliged to provide certain medical or sick-pay benefits but did not incorporate the plan into the agreement or make specific reference to it. By reference, he incorporated the Hospitals of Ontario Disability Income Plan ("HOODIP") into the collective agreement and concluded that "any dispute as to [LTD] entitlements under the collective agreement was properly within the jurisdiction of an arbitrator to determine."

issues:

(1) What is the standard of review?

(2) Did the motion judge err in finding that the appellant's claim was subject to exclusive arbitral jurisdiction?

holding:

Appeal dismissed.

reasoning:

(1) Declined to answer. In Barber v. Manufacturer's Life Insurance Company (Manulife Financial), 2017 ONCA 164, 136 O.R. (3d) 198, leave to appeal refused, [2017] S.C.C.A. No. 150, the court observed that since the resolution of the appeal turned on the interpretation of the collective agreement, the question was one of mixed fact and law and the "palpable and overriding error" standard of review applied. However, determinations of jurisdiction under rule 21.01(3)(a) of the Rules of Civil Procedure are legal determinations subject to a correctness standard of review (London Life Insurance Co. v. Dubreuil Brothers Employees Assn. (2000), 49 O.R. (3d) 766, leave to appeal refused, [2000] S.C.C.A. No. 496). The court declined to determine the appropriate standard of review because it found the decision of the motions judge to be correct.

(2) No. Disputes arising from a collective agreement are to be resolved through binding arbitration (Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 48(1)). Mandatory arbitration clauses tend to confer exclusive jurisdiction on labour tribunals (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929). The key question is "whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement" (Weber). The motion judge correctly determined that the employer's obligations under the HOODIP plan formed part of the collective agreement. The language of the dispute resolution clause in the collective agreement expressly provides that any dispute "concerning an employee's entitlement to short-term or long-term benefits under HOODIP may be subject to grievance and arbitration under the provisions of this Agreement." While the appellant phrases her claim as a disagreement over whether she meets the definition of "total disability" under the Manulife plan, the true substance of her dispute is a disagreement with her employer over her entitlement to LTD benefits as outlined in the collective agreement. This clearly arises from the collective agreement and falls within the purview of an arbitrator to decide.

Raymond J. Pilon Enterprises Ltd. v. Village Media Inc., 2019 ONCA 981

[Juriansz, Brown and Miller JJ.A.]

Counsel:

Peter J. Doucet, for the appellant
Paul Bragagnolo, for the respondents S.V.D. and J.V.D.
Brendan Hughes, for the respondents Village Media Inc. and A.A.

facts:

The respondents were successful on a motion under the Anti-SLAPP provisions in s. 137.1(3) of the Courts of Justice Act dismissing the claim against them on a preliminary basis. The motion judge rejected the Appellant's submission that expressions contained in a Facebook post and media article related to nothing more than a private dispute between a customer and staff at its Canadian Tire store. Describing the post as "a customer's account of an incident of poor customer service at the local Canadian Tire store", the motion judge concluded that it related "to the issues of customer service and shopping experience at a major retail store" and raised "the question of the appropriateness of a store manager involving the police in such a matter". The motion judge read the post "as cautioning potential customers about the treatment they may receive at that store". The appellants appealed the motion judge's finding that the proceeding arose "from an expression made by the person that relates to a matter of public interest."

issues:

(1) Did the motion judge err in finding that the proceeding arose "from an expression made by the person that relates to a matter of public interest"?

holding:

Appeal dismissed.

reasoning:

(1) No. Whether an expression relates to a matter of public interest involves a question of mixed fact and law that attracts a deferential standard of review. Absent the identification of an extricable error of law or a palpable and overriding factual error, an appellate court will defer to the motion judge's assessment: 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685. The Court saw no basis on which to interfere with the motion judge's analysis and conclusion. The appellant did not identify any extricable error of law or palpable and overriding error in the motion judge's assessment of the nature of the expression. The appellant simply quarreled with the motion judge's application of the factors involved in a Grant v. Torstar Corp. analysis: 2009 SCC 61, [2009] 3 S.C.R. 640. That was not a sufficient basis to attract appellate intervention.

Leeds Standard Condominium Corporation No. 41 v. Fuller, 2019 ONCA 987

[Pepall, Tulloch and Benotto JJ.A.]

Counsel:

Nadia J. Authier, for the moving parties
Antoni Casalinuovo, for the responding party

facts:

This is a motion to quash an appeal. The appeal arose from a decision of the motion judge, staying the appellant's action in favor of arbitration. The underlying dispute is an action by the appellant, Leeds Standard Condominium Corporation No. 41 ("Leeds"), claiming oppression and breach of contract against the respondents. The parties entered into two agreements relating to a condominium development in Brockville: a Shared Amenities Agreement ("SAA") and a Shared Facilities Agreement ("SFA"). Both agreements relate to the joint use and sharing of costs of certain facilities, improvements and amenities around the development, and contained identical arbitration clauses. The appellant, Leeds, sought to appeal this decision, and the respondents, Tall Ships and Simon Fuller, moved to quash the appeal on the basis that it is barred by s. 7(6) of the Arbitration Act, 1991.

issues:

(1) Was the appellant denied natural justice in the proceedings below because it was not given proper notice that the respondents would move to stay under the Arbitration Act, 1991?

(2) Did the motion judge err in giving effect to an arbitration clause while the pith and substance of its claim is oppression under the Condominium Act, 1998, S.O. 1998, c. 19?

holding:

Motion granted.

reasoning:

(1) No. There was no denial of natural justice in this case. In their notice of motion, the respondents relied on Rule 21.01(3)(a). That Rule provides that an action may be stayed for lack of jurisdiction.

(2) No. The motion judge considered this argument and determined that Leeds' claims were arguably within the scope of the arbitration clauses. She considered Leeds' argument that its claims were, in pith and substance, oppression, and notwithstanding, determined that the claim arguably fell within the scope of the arbitration clause.

Mullings v. Robertson, 2019 ONCA 979

[Lauwers, Paciocco and Fairburn JJ.A.]

Counsel:

O.C.W., appearing in person
Lauri Daitchman, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Property Division

facts:

Appellant challenges factual decisions made by the trial judge relating to the financial contributions that he and the respondent made to the relationship. He contended that, in addition to the factual errors, the trial judge erred in: establishing the separation date, calculating joint family expenditures, and evaluating his contribution to his dependant, adult daughter's education expenses. The appellant stated that these factual errors thus lead to incorrect rulings by the trial judge on numerous financial issues.

issues:

(1) Did the trial judge err in his decision on the financial issues?

(2) Did the trial judge err in his decision on the property-related claims?

holding:

Appeal dismissed.

reasoning:

(1) No. Appellant attempting to reargue the underlying factual determinations. Appellant had not demonstrated the trial judge committed any legal errors, or palpable and overriding errors of fact. The trial judge entitled to come to the findings based on the evidence before him. Nothing proposed in the fresh evidence would have affected the result on any of these determinations.

(2) No. There were two property claims: Shirrick Property and Magdalen Property.

It was not contested that the Shirrick property was jointly owned at the time of separation. Given this fact, the more remote history of how the respondent came to be the sole owner of the Shirrick property is immaterial. The respondent argued that the trial judge misapprehended the evidence by failing to note that the joint tenancy was severed after separation but before the trial, and that thereafter the property was held as tenants-in-common. However, whether title was held as joint tenants or as tenants-in-common was also immaterial. What matters is that at the time of separation, the Shirrick property was jointly owned.

With respect to the "Magdalan property" the appellant stated he sustained damages as a result of the respondent's refusal to close the transaction in which the Magdalan property was acquired. The trial judge did not accept his evidence that the loss was caused by the respondent's failure to participate in the purchase, and there was a limitation period issue. The appellant contended that the judge erred in his factual findings. The Court held they had no basis for interfering with trial judge's factual findings.

Richardson v. Richardson, 2019 ONCA 983

[Rouleau, Huscroft and Nordheimer JJ.A.]

Counsel:

Jenna Beaton and Deborah Perkins-Leitman, for the appellant
Michael Zalev and Samantha Eisen, for the respondent

facts:

This is an appeal from the orders of the trial judge varying the terms of a previous custody and access order, and awarding costs to the respondent. The trial judge ordered that the children's primary residence remain in the Niagara region with the respondent and gave him final decision-making responsibility.

This appeal concerns not only the trial judge's ultimate decision, but also his decision to hear and decide the case at all since, during the course of the trial, the parties negotiated Minutes of Settlement (the "proposed settlement") which, if accepted by the court, would have resolved their dispute. The trial judge, however, refused to accept the parties' proposed settlement and gave no reasons for doing so. The parties went on to complete the trial, and the trial judge found that it was in the best interests of the children for their primary residence to remain with the respondent in the Niagara region, and varied the terms of the order in his favour accordingly.

issues:

(1) Did the trial judge err in rejecting the proposed settlement?

(2) Did the trial judge err by continuing with the trial after rejecting the proposed settlement?

(3) Did the trial judge demonstrate a reasonable apprehension of bias?

(4) Did the trial judge err in his decision on the merits that would permit the Court to intervene?

holding:

Appeal dismissed.

reasoning:

[Rouleau, Huscroft]

(1) No, the trial judge did not err in rejecting the proposed settlement. It is well established that judges have the authority to review settlements and to reject them if they are not in the best interests of the children. If a judge rejects a settlement, the reasons for rejecting the settlement should be provided. Moreover, if the judge does not take any steps to facilitate settlement, the reason for this should also be provided.

The Court, however, found that this case was exceptional. The proposed settlement was reached and rejected in the midst of a short four-day trial. In such circumstances, reasons need to be carefully crafted, and could be very brief. This is to avoid the appearance that the judge prejudged the case, which would preclude the judge from continuing to hear the case. Depending on the judge's concerns, the reasons may do little more than advise the parties that, at that stage of the proceeding, and without hearing the balance of the trial, he or she is not prepared to find that the settlement is in the best interests of the children. More complete reasons could then be provided at the end of the trial.

The trial judge's decision to continue the trial without providing reasons for rejecting the proposed settlement undermined the settlement process and the court's duty to help the parties settle their case. However, the findings of the trial judge, which were made after a full hearing on the merits and were not contested on appeal, made clear that sound bases existed for rejecting the proposed settlement.

The appellant also argued that the trial judge acted contrary to Charter values in rejecting the proposed settlement and that the rejection of the proposed settlement constituted an infringement of the parties' liberty that engaged s. 7 of the Canadian Charter of Rights and Freedoms. In the Court's view, these submissions were fundamentally misconceived and without merit. Charter values and Charter rights are distinct juridical concepts that are subject to different rules governing their use in different contexts: McKitty v. Hayani, 2019 ONCA 805. The analysis required in this case depends on the best interests of the children, not Charter values or Charter rights.

(2) No, the trial judge was not disqualified from continuing with the trial after he rejected the proposed settlement. Since the trial judge did not conduct a settlement conference nor was he privy to any case conference briefs, Rules 17(22) and (24) did not apply. Accordingly, nothing in the Family Law Rules precluded the trial judge from hearing the matter. Nor did his knowledge of the proposed settlement require him to recuse himself of his own motion.

In the Court's view, the parties at trial must be taken to have come to the same conclusion. Both parties were represented by counsel, and neither party objected to the trial judge proceeding with the trial after he rejected the proposed settlement. Counsel had several options once the trial judge rejected the proposed settlement: they could have sought an adjournment; asked for reasons for his rejection of the proposed settlement; asked him to recuse himself; advised him that they wished to appeal the rejection; or asked for an adjournment until after the appeal. The only conclusion possible in these circumstances is that counsel for both parties were content to proceed to trial, or at least willing to acquiesce in the trial judge's decision to do so, after he rejected the proposed settlement. The trial judge's decision to continue to hear the trial cannot now be impugned.

In any event, the Court found no basis for concluding that the trial judge's review of the proposed settlement compromised his ability to determine the matter at trial. The trial judge is presumed to be impartial and that presumption had not been rebutted. Regardless of what he learned from reading the proposed settlement, the trial judge was required to reach a decision following trial as to the best interests of the children. The Court was satisfied that he did so, and emphasized that his reasons for so concluding were not directly challenged by the appellant.

(3) No, there was no reasonable apprehension of bias. The appellant argues that the trial judge's rejection of the proposed settlement demonstrates that he prejudged the central issue of where the children should reside. The Court disagreed. The trial judge was required to review the proposed settlement and to reject it if he concluded that it was not in the best interests of the children. His error was in failing to provide reasons for rejecting the proposed settlement, but that error did not raise a reasonable apprehension of bias.

The Court found that the appellant had not met her burden of establishing a reasonable apprehension of bias. In any event, it was far too late in the day to claim a reasonable apprehension of bias. It is well established that bias claims must be raised at the earliest practicable opportunity. The appellant's counsel was content to continue the trial after the trial judge rejected the proposed settlement. If the appellant wanted to raise a bias concern about the trial judge hearing the case, she had to raise it before the trial resumed and ran until its conclusion – long before an unfavourable judgment was rendered.

(4) No, the trial judge made no errors in his decision on the merits that would permit the Court to intervene.

It is well established that the key consideration that should determine the outcome of this appeal is the best interests of the children, as the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) makes plain. The best interests of the children is the only consideration relevant to deciding custody and access or their variation. In thorough reasons, the trial judge explained why it was in the children's best interest that they continue to reside in the Niagara region. His decision is owed considerable deference on appeal and cannot be interfered with absent a material error, a serious misapprehension of the evidence, or an error of law. As noted above, the appellant did not directly address the merits of the trial judge's reasons. No error in the trial judge's findings and conclusions regarding the children's best interests was identified.

The trial judge heard evidence from the parties and made findings of fact and credibility. The trial judge concluded that it was in the children's best interest that they remain in the community where they were born and raised, and enrolled in the schools they currently attend. The trial judge made no error in doing so.

DISSENT:

[Nordheimer J.A.]

The conduct of the trial judge with respect to his rejection of the parties' settlement, without reasons, so tainted the conduct of the proceeding that his disposition could not be allowed to stand. To do otherwise would fundamentally undermine the need for court proceedings not only to be fairly conducted but, as importantly, be seen to have been fairly conducted.

Savage v. Savage, 2019 ONCA 984

[Rouleau, Roberts and Harvison Young JJ.A.]

Counsel:

Josh Glieberman, for the appellant
Michael H. Tweyman, for the respondent

Keywords: Family Law, Spousal Support, Variation, Material Change in Circumstances

facts:

The parties separated after twenty-five years of marriage. Shortly before a scheduled trial, the parties settled the outstanding issues between them by way of a consent order (the "Order"). The Order equalized the parties' assets and provided for the payment of indefinite spousal support. The Order also permitted either party to seek a change in spousal support based on a material change. The respondent brought a motion on the basis that he intended to retire. The trial judge found that the respondent's retirement constituted a material change, considered the means and needs of the parties pursuant to s. 17 of the Divorce Act, RSC 1985, c. 3 (2^nd Supp.), and terminated the support obligation.

issues:

(1) Did the trial judge err in finding that a material change had occurred?

(2) Did the trial judge err in terminating the support obligation?

holding:

Appeal dismissed.

reasoning:

(1) No. The trial judge considered all the evidence before her on this issue which was fully argued. She observed that the Order did not reference retirement at all. She noted, however, that the Order did provide that either party could request a review or change to spousal support in the event of a material change, whether "foreseen or foreseeable, unforeseen or unforeseeable". She found that in the circumstances of this case, the respondent's retirement constituted a material change. The trial judge also declined to find that the respondent had opted for early retirement at age 57 to avoid paying spousal support, given the drain inherent in twenty-seven years of teaching. It is not unreasonable to retire upon becoming eligible for a full pension.

(2) No. The trial judge made no error in the consideration of the parties' assets or in finding that income from capital should be imputed to the appellant. It is clear from the percentage figures to which she refers that the result of the application of a reasonable return rate on the appellant's investments would effectively equalize the parties' pension incomes. In addition, the trial judge made no error in considering the financial benefit of living with a new partner in assessing the parties' means and needs.

Traders General Insurance Company v. Gibson, 2019 ONCA 985

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

Counsel:

Alan L. Rachlin, for the appellant
Nancy J. Tourgis and Rajiv Joshi, for the respondent

facts:

E had a homeowner's insurance policy with Traders which contained an exclusion of coverage for claims made against E arising from "bodily injury to ... any person residing in your household other than a residence employee." B commenced an action against her mother, E, for damages resulting from injuries after B fell from the porch of E's house and the railing came down with her. The issue was whether E was entitled to a defence and indemnity against her daughter B's claim, either as a residence employee or as a tenant. The application judge held that E was entitled to coverage for B's claim because B was a tenant.

Traders appealed the decision that E was entitled to a defence and indemnity because she was a tenant. E cross-appeals the decision that she was not entitled to a defence and indemnity on the basis that B was not a residence employee within the meaning of the policy.

issues:

(1) Did the application judge err in her interpretation of the words "person residing in your household" in the policy exclusion?

(2) Did the application judge err in her interpretation of the words "residence employee" contained in the exemption from the policy exclusion?

(3) Did the application judge err in concluding that B was covered under the policy as a tenant?

holding:

Appeal allowed. Cross-appeal dismissed.

reasoning:

(1) No. The Court found it clear that the application judge invoked the correct definition of "person residing in your household" and therefore concluded that B was a member of the household who shared the common purpose of contributing to the wellbeing of the members of the household, sharing space, and motivated by an interest in her and her mother.

(2) No. The interpretation of the words "residence employee" within the meaning of the policy is a question of law to which the correctness test applies. Under the policy, a "Residence Employee" was "a person employed by you to perform duties in connection with the maintenance or use of the premises ... who perform household or domestic services or duties of a similar nature for you [the homeowner]." The Court emphasized that the "residence employee must be performing duties "for you", referring to the insured person.

B regularly performed domestic services in the house she shared with E, but she did not perform the services for E. As noted by the court in Wawanesa Mutual Insurance Co. v. Hewson, 2003 SKQB 116, aff'd 2004 SKCA 112, doing routine chores for the benefit of the household, as B did, was not enough to be considered an "employee". The duties must extend beyond chores to constitute a workplace arrangement. For these reasons, the Court held that the application judge correctly interpreted the words "residence employee" in the policy.

(3) Yes. The Court held that the application judge erred in concluding that E was entitled to a defence and indemnity against her daughter B's claim on the basis that she found B was a tenant. The application judge erred by considering the "reasonable expectations" of the parties to the insurance policy and concluding that E would be entitled to coverage as a "tenant". The "primary interpretative principle in the construction of insurance policies is that, where the policy is unambiguous, the court should give effect to its clear language, reading the policy as a whole": Allstate Insurance Co. of Canada v. Aftab, 2015 ONCA 349. The clear language of the policy excluded all claims for bodily injury to anyone residing in the household except a residence employee, regardless of whether they pay rent. There was no exception to the exclusion for members of the household who are also tenants. The absence of a specific exclusion does not create coverage where an exclusion applies.

The Court noted that if the essence of the relationship between E and B had been that of landlord and tenant, rather than member of the household sharing the intimacy, stability, and common purpose of the household, then B's claim would have been entitled to succeed. This was the case in Wright v. Canadian Group Underwriters Insurance Co., 2002 BCCA 254, relied on by the application judge. The essence of the relationship in Wright was that of landlord and tenant. By contrast, the essence of the relationship between B and E was as a member of the household, contributing to and enjoying the fruits of membership in the household.

Trezzi v. Trezzi, 2019 ONCA 978

[Sharpe, Hourigan and Jamal JJ.A.]

Counsel:

Craig Ross and Krystyne Rusek, for E.T. and B.T.
Danielle R. Joel and Ewa Krajewska, for A.G.T.
Symon Zucker and Laney Paddock, for A.T.

facts:

These three related appeals arose in connection with the Will of the late PT who died on January 8, 2016. PT operated a construction business through two corporations, ACC and T Construction. PT was the sole shareholder of TC, but there was a dispute as to whether his surviving wife, GT, owned half of the shares of ACC. Under the Will, PT's son from his first marriage, AT, was gifted: (i) all of PT's interest in ACC; (ii) real property (which was owned by T Construction); and (iii) all the equipment and chattels owned by T Construction. GT, AT, and PT's daughters with GT, ET and BT, were each gifted equal shares of: (i) all other real property owned by PT; (ii) all other assets owned by T Construction; and (iii) the residue of PT's estate.

In two comprehensive endorsements, the application judge concluded that:

(1) PT could bequeath assets held by T Construction to AT. GT, BT, and ET had challenged these bequests on the basis that PT did not own those assets, as they were owned by T Construction.

(2) GT had not established that she owned 50% of the shares of ACC. The application judge left for a future determination whether PT owned any shares of ACC.

(3) GT was entitled to an extension of time to file a surviving spouse's election under s 6(1) of the Family Law Act ("FLA") in order to choose whether to receive her bequests under the Will or under her statutory entitlement as a surviving spouse pursuant to s. 5(2) of the FLA because of the ongoing litigation.

BT and ET, with GT's support, now appeal the first conclusion; GT appeals the second conclusion; and AT appeals the third conclusion.

issues:

(1) Did the application judge err in concluding that PT could bequeath corporate assets held by his construction company, T Construction?

(2) Did the application judge err in finding that GT did not own 50% of the shares of ACC?

(3) Did the application judge err in exercising his discretion to provide GT an extension of time to file a surviving spouse's election under s 6(1) of the FLA?

holding:

Appeal dismissed.

reasoning:

(1) No. There was no palpable and overriding error in the findings of the application judge to justify the Court's intervention. The application judge's task in interpreting a will is to determine the testator's actual or subjective intention as to how he intended to dispose of his property. This involves construing the will in light of all the surrounding circumstances to determine the testator's true intention and the court placing itself in the position of the testator at the time that the will was made: see Re Burke. The application judge concluded that PT's actual or subjective intention was to give all of the assets owned by T Construction to GT, AT, ET, and BT, such that T Construction would be left without assets of any kind, and that this in turn indicated that PT intended T Construction to be wound-up. The application judge correctly held that the executors of PT's will have two independent sources of authority to implement his intention to wind-up T Construction: (a) their general powers under s 193(1) of the Business Corporations Act that allows an executor of a deceased security holder to exercise all rights that the deceased had before their death; and (b) clause 3(a) of the will that provided the executors the necessary powers to implement PT's wishes to convert assets into money. While PT did not directly own the corporation's assets, the executors had the power to effectively deal with the assets of the corporation as they saw fit. The Court acknowledged that it would have been preferable had PT's will been more explicit in referring to the executor's authority to deal with the corporation's property.

(2) No. The application judge's conclusions of fact and mixed fact and law were owed substantial deference absent palpable and overriding error. The application judge correctly concluded that GT had not met her onus of showing that she owned 50% of ACC's shares. The pivotal evidence for the application judge was the unsigned documentation in the ACC minute book that would have constituted each of GT and PT holding 50 common shares of ACC each. However, because it was never executed and no consideration was paid by GT for her purported 50 shares, the application judge held GT held no shares. The Court also concluded that, contrary to GT's assertions, the application judge did not decide an issue that was never pleaded; did not improperly bifurcate the proceedings by declining to rule on whether any shares of ACC were ever legally issued to PT; and properly categorized the "Shareholders' Registry" that GT presented as evidence as not complying with the statutory conditions under s 141(1) of the Business Corporations Act.

(3) No. The application judge's discretionary decision to grant GT an extension of time under s 2(8) of the FLA in order to elect whether to file a surviving spouse's election was entitled to substantial deference: Katz v Nimelman. The application judge readily granted GT an extension because he found that she met the statutory test: (a) GT has a right to elect for an equalization payment (not the right to receive an equalization payment of net family property) under the FLA, but it was not possible to determine the amount (if any) of that payment until the court determined the entitlement and valuation issues under the will; (b) the delay had been incurred by GT in good faith while she consulted with a lawyer; and (c) nobody would be prejudiced by the delay.

SHORT CIVIL DECISIONS

Curtis v. Pinto, 2019 ONCA 982

[Hoy A.C.J.O., Simmons and Lauwers JJ.A.]

Counsel:

Gary Curtis, acting in person
Tim Gleason and Adrienne Lei, for the respondents

Keywords: Civil Procedure, Striking Pleadings, Abuse of Process, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (CA)

CRIMINAL DECISIONS

R. v. N., 2019 ONCA 969

[Feldman, Gillese and Miller JJ.A.]

Counsel:

Ravin Pillay, for W.N.
Caitlin Sharawy, for the Crown

R. v. B., 2019 ONCA 970

[Hourigan, Brown and Paciocco JJ.A.]

Counsel:

Brian Snell, for the appellant
Jerry Brienza, for the respondent

Keywords: Criminal Law, Evidence, Admissibility, Search Warrants, DNA Evidence, Charter, s. 8, 24(2), R. v. Morelli, 2010 SCC 8, R. v. Araujo, 2000 SCC 65, R. v. Grant, 2009 SCC 32

R. v. R., 2019 ONCA 971

[Hoy A.C.J.O., Doherty and Zarnett JJ.A.]

Counsel:

Catriona Verner and Lance Beechener, for the appellant, G.R.
James Harbic and Robert Harbic, for the appellant, B.G.
Christine Bartlett-Hughes and Michael S. Dunn, for the respondent

Keywords: Criminal Law, First Degree Murder, Second Degree Murder, Jury Instructions, Criminal Code, s. 686(1)(b)(iii), R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074

R. v. C.W. (Publication Ban), 2019 ONCA 976

[Fairburn, Harvison Young and Thorburn JJ.A.]

Counsel:

Geoff Haskell, for the appellant
Jennifer Epstein, for the respondent

Keywords: Criminal Law, Domestic Abuse, Sentencing, Criminal Code, s. 753(1)(a)(i), 753(4.1)

R. v. C., 2019 ONCA 972

[Benotto, Miller and Trotter JJ.A.]

Counsel:

Melanie J. Webb, for the appellant
Jennifer A.Y. Trehearne, for the respondent

E. v. Canada (Attorney General), 2019 ONCA 980

[Hourigan, Brown and Paciocco JJ.A.]

Counsel:

Ian B. Kasper, for the appellant
Derek Edwards, for the respondent

Keywords: [KEYWORDS]

ONTARIO REVIEW BOARD DECISIONS

C. (Re), 2019 ONCA 973

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

Counsel:

Meaghan McMahon, for the appellant
Amy Alyea, for the respondent, the Attorney General of Ontario
Marie-Pierre T. Pilon, for the respondent, the Person-in-Charge for the Royal Ottawa Mental Health Centre

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.

Canada: Court Of Appeal Summaries (December 9 – December 13, 2019) Blaney's Appeals

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

CIVIL DECISIONS

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SHORT CIVIL DECISIONS

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CRIMINAL DECISIONS

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ONTARIO REVIEW BOARD DECISIONS

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Canada: Court Of Appeal Summaries (December 9 – December 13, 2019)
Blaney's Appeals

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email