Hello everyone,

The following are this week’s summaries of civil decisions released by the Court of Appeal. Topics covered include: defamation (sufficiency of notice under s.5(1) of the Libel and Slander Act), contempt (in a custody case), breach of contract (in a real estate transaction), tort of conversion, assessment of solicitor accounts, and the principles of adequate vs. insufficient reasons.

Wishing everyone a safe and enjoyable long weekend.

Civil Decisions

Andrade v. Andrade, 2016 ONCA 368

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

Counsel:

Gavin MacKenzie and Patrick T. Summers, for the appellant

John J. Longo and Pamela Miehls, for the respondent

Facts:

At issue in this appeal is the beneficial ownership of a house that has been in the Andrade family for over 40 years. The house was purchased in 1974. Luisa Andrade lived there until her death in 2014. Legal title was originally taken in the names of two of Luisa’s children, Henrique (Henry) and Maria Jesus. Five years later, title was transferred to Henry and his brother Joseph. Henry and Joseph remained on title thereafter as the legal owners of the house. Joseph died in March 2007. In May 2007, Joseph’s widow, Manuela Andrade, transferred his half interest in the house into her own name. In 2009, she brought an action against Henry and Luisa seeking a declaration that she was the beneficial owner of a half interest in the house, and an order for partition and sale. Luisa counterclaimed for a declaration that she was the beneficial owner of the house and an order that Manuela and Henry transfer all of their right, title and interest in the house to her. In 2011, Henry transferred his half interest to Luisa. In 2014, a few months before the trial commenced, Luisa died. The action continued against her estate and Henry. Manuela was successful at trial. Luisa’s estate appealed.

Issues:

(1) Did the trial judge make a palpable and overriding error in concluding that Luisa had no money of her own, and in holding that, without a financial or other legally cognizable contribution of her own, there was no equity in favour of Luisa?

(2) Did the trial judge err in failing to find that Luisa, at the time of her death, was the beneficial owner of the house by way of resulting trust?

(3) Did the trial judge err in invoking public policy as a further reason to reject Luisa’s ownership claim?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The trial judge made a palpable and overriding error of fact when he concluded that, at the time of the purchase and until she died, “Luisa had no money of her own”. In reaching this conclusion the trial judge made a number of errors. First, the trial judge erred in characterizing the money given to Luisa by her children and used by Luisa to pay for the house as the children’s money. The money her children earned, once given to Luisa, became her money, even if it was expected to be used for the support of the family, including to pay the mortgages. In finding that Luisa had no money of her own, the trial judge conflated “income from paid employment” and “money”. He confused the question of whether Luisa had money with the source of her money, which at least in the early years was the paid employment of her adult children. The trial judge referred to the fact that expenses in relation to the house were paid from rent generated by the house. Implicit in his decision is that the rent did not belong to Luisa, yet the evidence shows that Luisa was the only person who advertised for and negotiated with tenants, and collected their rent which was deposited into her bank account. In all of these circumstances, the rent generated by the house was also Luisa’s money. In addition to rent, Luisa received old age security benefits commencing in 1990 and, in 2003, she received a settlement. The trial judge did not consider these sources of Luisa’s money. Accordingly, the trial judge erred in concluding that Luisa had no money of her own and that she had not contributed to the purchase of the house. His rejection of the resulting trust claim was explained on the basis that Luisa never owned the house and never paid for it in the first place, and the fact that “Luisa had no money of her own”.

(2) Yes. The trial judge erred in failing to find a resulting trust in favour of Luisa. “A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner”: Pecore v. Pecore, 2007 SCC 17. Once it is accepted that Luisa had money of her own, and that it was her money that was used to purchase the house and to pay down the mortgages, then a purchase money resulting trust could arise. Luisa borrowed the deposit and paid it back, and she serviced the mortgages using money from her own bank account. Although they signed the mortgages, there was no evidence that the legal title holders considered themselves responsible for making any of the payments. Luisa borrowed their “names”, not their money. All of this is consistent with Luisa having advanced the purchase price of the property.

The trial judge mischaracterized the claim. The relevant time for ascertaining intention is the time of the acquisition of the property, when the funds were advanced. The question was not whether the legal title holders intended to create a trust for Luisa. Rather, the question was Luisa’s intention. Evidence of Luisa’s intention at two points is important – in 1974 when the property was first acquired, and in 1979, when Joseph went on title. It was Luisa who, in 1974, decided to buy a house where she and her children would live. As the trial judge noted, both Maria Jesus and Henry testified that the reason title was taken in their names was that, with the exception of Maria Luisa who was already married, they were the only two family members of age who had sufficient income to potentially qualify for a mortgage. There was no evidence at all that Luisa intended to confer beneficial ownership on any of her children. As for the circumstances in 1979, there is no dispute that Joseph went on title at the time of a mortgage renewal, and at his mother’s direction. There was no evidence to suggest a change in Luisa’s intention – that is, to give Joseph a beneficial interest in the property. All of the circumstances are consistent with a change in legal title, but not with a gift of half the property to Joseph. Although the house was in her children’s names, Luisa’s intention was not to benefit the title holders to the exclusion of her other children by giving them a property interest in the house. While the parties’ income tax returns treated the house in a way that was consistent with legal title, they did not reflect the reality of how the property was handled – Luisa collected and kept the rents, paid the expenses in relation to the house, and treated the house as its owner. Therefore, Luisa was the beneficial owner of the house by way of resulting trust.

(3) Yes. The trial judge cast the net too broadly in concluding that it would be against public policy to recognize Luisa’s estate as the beneficial owner of the house when she had received tax credits on the basis that she was not the beneficial owner. There was no evidence that Luisa put the property into the names of her children so as to avoid taxes or to obtain a tax benefit. The evidence was to the contrary – the children took legal title because Luisa did not have paid employment and could not qualify for a mortgage. In the present case, Luisa’s estate does not seek to profit from the manner in which her tax filings were arranged. Rather, it seeks equitable relief in relation to Luisa’s interest in the family home. Her tax filings are not fundamental to that cause of action. They are relevant evidence, but are not in any way dispositive of her claim. The trial judge erred in treating the fact that Luisa claimed tax credits as dispositive of her trust claim for public policy reasons alone. While her tax treatment of the property, considered in isolation, was evidence inconsistent with her beneficial ownership, her actual intention in relation to the property was a question of fact to be determined based on the whole of the evidence.

Campbell v. Bruce (County), 2016 ONCA 371

[Doherty, MacPherson and Miller JJ.A.]

Counsel:

T.R. Shillington and Jonathan de Vries, for the appellant

Peter W. Kryworuk and Alysia M. Christiaen, for the respondents

Facts:

The appellant, the Municipal Corporation of the County of Bruce, constructed a public park for people to ride on trails with their mountain bikes. The respondent, Campbell, fell while attempting to cross a constructed obstacle near the entrance of the park. He suffered severe injuries and was rendered quadriplegic. Following trial, the judge found the municipality liable for his injuries. The judge also found that Campbell was not contributorily negligent with respect to the accident. The municipality appeals the trial judge’s decision.

Issues:

(1) Did the trial judge impose an incorrect and overly onerous duty of care?

(2) Did the trial judge err in assessing the question of inherent risk?

(3) Did the trial judge err in his analysis of the standard of care?

(4) Did the trial judge err in his analysis of causation?

(5) Did the trial judge err in his assessment of contributory negligence?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court held that the trial judge correctly adjudicated on the duty of care aspect under the OLA. The court followed the principal in Waldick v. Malcolm, and held that the trial judge’s reasons were consistent with his ruling.

(2) No. The court held that an experienced mountain biker assumed the risk of riding on the bicycle trails in the park. The court held that the trial judge properly delineated the meaning of inherent risk.

(3) No. The court held that the trial judge clearly identified the nature of the problems posed by Free Fall (a wooden teeter-totter structure), including: (1) riding too slow and losing momentum; (2) riding too fast and being launched off the end of the structure; and (3) failing to appreciate that, in the case of a fall on Free Fall, the rider must, contrary to one’s natural instincts, immediately release one’s grip on the bike and jump clear of the falling bike.

The appellant also challenges the trial judge’s four individual findings that it breached the reasonable standard of care of an occupier. These four breaches are in relation to the municipality’s (1) failure to post proper warning signs; (2) negligent promotion of the Park; (3) failure to adequately monitor risks and injuries in the Park; and (4) failure to provide an “adequate progression of qualifiers” in the Trials Area. The court was not persuaded by any of these submissions.

(4) No. The court held that the test for causation in a negligence action is the ‘but for’ test – the plaintiff must show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred”. The court held that the trial judge applied this test and found that the appellant caused the respondent’s injury with respect to the four breaches of the standard of care addressed above. The court saw no palpable and overriding error in the trial judge’s findings that would warrant appellate intervention.

(5) No. The court held that the trial judge simply observed that the respondent did not have the skill to successfully navigate Free Fall. The court saw no palpable and overriding error in the trial judge’s appreciation of the evidence and conclusion on the issue of contributory negligence.

J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily), 2016 ONCA 375

[Laskin, Hourigan and Brown JJ.A.]

Counsel:

Peter Downard and Fida S. Hindi, for the appellants

Bruce McEachern, for the respondents

Facts:

The appellants are two young Korean women who while studying in Canada made complaints to the police that they were victims of repeated sexual and physical assaults and other crimes by members of their church group. As a result of the complaints, the police laid charges which the Korean press in both Canada and Korea reported on. Prior to the conclusion of the preliminary hearing, on the basis that there was no reasonable prospect of conviction, the Crown withdrew the charges.

The withdrawal of the charges was the front page news article authored by the respondent. In the article, the appellants were identified by name as complainants in the criminal proceedings and it was alleged that the appellants’ criminal complaint was “a fabricated case”. Another two articles were written alleging that appellants had fabricated the complaints. All of the articles were written in Korean.

In response to the articles, the appellants’ counsel wrote to the outlets that had written the articles and alleged a breach of the publication ban made in the criminal proceedings because there were specific references identifying the appellants in the articles. The letter also purported to provide notice of the appellants’ defamation claim. The respondents did not apologize or publish a retraction or correction. The appellants issued a statement of claim seeking damages for defamation and for breach of the publication ban. The respondents in their defence to the action pleaded that the notice provided on behalf of the appellants did not sufficiently specify the matters complained of and are statute-barred under s. 5(1) of the Libel and Slander Act (the “Act”).

The case continued through discovery and pre-trial proceedings and was set down for a jury trial. Before the trial began, the respondents served a notice of motion to the trial judge seeking, among other things, an order dismissing the appellants’ defamation claims for failure to comply with s. 5(1) of the Act. The motion judge held that the notice was deficient because it put the respondents in a position where they would have to guess at what statements were alleged to be defamatory and dismissed the appellants’ defamation claims.

Issue:

Did the motion judge err in dismissing the defamation claims for failure to comply with the notice provision contained in s. 5(1) of the Libel and Slander Act?

Holding: Appeal allowed.

Reasoning:

Yes. Section 5(1) of the Act states that “[n]o action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of”.

The Court reviewed the authorities relevant to s. 5(1) and held the following as the appropriate legal principles when considering if proper notice has been provided: there is no prescribed form of notice required; the notice need not contain the same level of particularity as a statement of claim; adequacy of the notice must be assessed in the light of its purpose; the purpose of the notice is to call attention to the alleged libellous matter so that action can be taken to reduce damages if required; and the test for the sufficiency of notice is “whether the notice fairly brings home to the publisher the matter complained of to permit the publisher to review the matter and decide how to respond”. As well, a court should asses the adequacy of the notice in light of the surrounding circumstances and there is preference for matters to be determined on their merits rather than terminating them on technical grounds.

The Court held that the motion judge erred in her application of these legal principles. She repeatedly referred to the fact that the notice failed to specify the impugned phrases. The appellants were not obligated to cite the specific statements complained of in the notice. The fact that the statement of claim provided more detail than the notice was not a deficiency as the motion judge contended. These errors alone are not always fatal but they demonstrate a narrow approach which is inconsistent with the case law that shows a preference for cases to be determined on their merits and not to be dismissed for technical reasons.

The motion judge also did not consider all of the surrounding circumstances and instead focused on the text of the notice compared to what was pleaded. The motion judge also erred in applying Siddiqui v. Canadian Broadcasting Corp. (2000), 50 O.R. (3d) 607 (C.A.) because Siddiqui involved multiple distinct defamatory stings whereas this case conveyed a single defamatory sting which was plain on the face of the articles. The effect of these errors when taken together is that the motion judge erred in law in her analysis of the sufficiency of the notice.

The Court concluded that the appellants had met the requirements of s. 5(1) of the Act. First, the nature of the alleged libel was that the appellants falsified complaints to the police. The sting of the libel is plain on the face of the articles. Second, the respondents made only a limited objection to the notice in their statement of defence. They did not allege that the notice was invalid because it failed to specify the matter complained of but only that it goes “beyond the matters complained of” in the notice. Third, the timing of the motion suggests that the respondents were not genuinely confused about the nature of the matter complained of. Fourth, in the opinion column on the matter, the editor acknowledges that in proclaiming the innocence of the accused, the newspaper could be exposed to a defamation claim. It is not credible that in light of this column, the editors would be confused as to the matter of the appellants’ complaint. Finally, in oral argument, the respondents submitted that the articles were not defamatory because the real criticism was directed at a third party who is alleged to have instigated and encouraged the false statements. This is not argument relevant to this appeal but rather may form the basis of defence on the merits of the claim.

Balice v. Serkeyn, 2016 ONCA 372

[Rouleau, Pardu and Benotto JJ.A.]

Counsel:

Stanley P. Jaskot, for the appellant

Mitchell B. Rosenblatt, for the respondent

Facts:

The parties are the parents of two children. They had parenting arrangements that were the subject of an order by Justice McLaren. The respondent moved successfully for a finding of contempt against the appellant for not complying with the order.

A further hearing was set, the disposition of which was the subject of the appeal. The parties disagreed whether the hearing should be characterized as one in which the appellant’s purging of her contempt was considered or instead as a penalty hearing. The motion judge found that the appellant had not purged her contempt and accepted the respondent’s submission that the respondent had missed 122 days of access. The motion judge concluded that an order requiring the appellant to purge her contempt by transferring time with the children from the appellant to the respondent was in the children’s best interests.

Issue:

Did the motion judge err in finding for the respondent?

Holding: Appeal allowed.

Reasoning:

The Court held that it was unclear from the motion judge’s reasons and the terms of the order whether that order was intended as a penalty for the appellant’s contempt, for a variation of the custody order, or for a stand-alone order delaying the penalty phase and specifying what the appellant must do to purge her contempt. The order effected substantial changes to the custodial arrangements of the children, and ought not to have been made without evidence of the children’s circumstances and a careful consideration of that evidence.

The Court also held that the amount of make-up ordered was well beyond what could have been reasonably contemplated by the McLaren order. The motion judge’s reasons in this regard contained only two references explaining why the change was in the best interests of the children, and the decision appeared to be based simply on the premise that each day missed by the respondent must be made up within the following 24 months, without considering the impact such a large shift would have on the children. Instead, the decision should have been made based on a determination of the best interests of the children.

The Court also held that, because it was allowing the appeal and directing a new hearing, it would not address the other grounds of appeal.

Philp v. Brunelle, 2016 ONCA 385

[Rouleau, Pardu and Benotto JJ.A.]

Counsel:

Gregory Sidlofsky, for the appellant

Ewa Krajewska, for the respondent

Facts:

The appellant purchased a residential building from the respondent. The parties had an agreement with promises regarding the state of the property. The appellant alleges the respondent breached various terms of the agreement.

The agreement stipulated that on the date of closing, there would be 21 paying residents in the home and that the septic system operated satisfactorily for a home for special care and domiciliary hostel. The agreement also stipulated that there was a written agreement with the neighbouring church for shared use of the driveway, and that the driveway “must be maintained”. There were other covenants, representations and warranties in full force and effect for 30 days after closing.

The trial judge dismissed the claim.

Issue:

Did the trial judge err in his findings to dismiss the claim?

Holding: Appeal dismissed.

Reasoning:

No. The appellant did not prove any error to justify appellate intervention. The trial judge is entitled to deference.

The trial judge made important findings of fact with regards to the agreement. The trial judge found that the appellant did not prove that the septic system was not in good working order at the time. The trial judge also rejected the appellant’s argument that the contractual provision about the driveway agreement meant that the appellant would have a right in perpetuity to use the driveway. The agreement’s reference to “maintenance” meant that the home had to physically maintain the driveway, so long as the church allowed its use. The appellant closed the transaction knowing there were 18 residents, fewer than the agreement and subsequent statutory declaration provided for. The appellant accepted an abatement of the purchase price. The number of residents was a condition to close the deal but the appellant chose to accept the abatement and close the transaction rather than exercise her rights under the agreement. The clause merged upon closing.

The trial judge appropriately concluded that the parties intended the clause regarding the number of residents to merge upon closing. The rule from Fraser-Reid v Droumtsekas states that “there is no presumption of merger.” The proper inquiry is whether the facts disclose a common intention to merge the warranty in the deed.

Tran v. Chung, 2016 ONCA 378

[Simmons, LaForme and Huscroft JJ.A.]

Counsel:

James H. Chow, for the appellant

Allyson Fox, for the respondent

Facts:

Appellant Tran claimed she was fraudulently induced to provide a bank draft payable to BMO by a group of alleged fraudsters. Unbeknownst to her, the alleged fraudsters gave the bank draft to a third party, whom the appellant did not know. The third party then took the bank draft to BMO. Following the third party’s instructions, BMO accepted the bank draft and deposited it into Tran’s line of credit. The third party then instructed BMO to provide her with funds equal to the amount of the bank draft and gave those funds to one of the alleged fraudsters. The motion judge found that BMO did not commit the tort of conversion and dismissed the appellant’s claim on a motion for summary judgment.

Issue:

Did the motion judge err in finding that the BMO did not commit the tort of conversion?

Holding: Appeal allowed.

Reasoning:

Tran argued that this scenario was a classic case of conversion. The Court reviewed that the tort of conversion involves “a wrongful interference with the goods of another, such as taking, using or destroying these goods in a manner inconsistent with the owner’s right of possession”.

BMO accepted that it was possible to sue in conversion on a bank draft, but argued that Tran was unable to bring such an action because she was not the drawer, payee or endorsee of the bank draft. The Court reasoned that this argument was predicated on differences between a cheque and bank draft, and that the limited case law on the conversion of bank drafts available supported the view that a claim for conversion was available where it involves a bank draft.

The Court rejected BMO’s argument that Tran could not bring an action for conversion and that the motion judge’s analysis in this regard overlooked four important points. Notably, it found that Tran was entitled to demand immediate possession of the bank draft; was also entitled to immediate possession as against respondent DaCosta as, on the evidence before this court, Ms. Da Costa had no legal entitlement to the bank draft; and also had a right to demand immediate possession of the proceeds from BMO in the circumstances of this case. The Court also noted that wrongful interference in the conversion context does not involve any moral wrongdoing.

Finally, BMO raised an alternative argument that if BMO’s actions amounted to conversion, it was a “holder in due course” and as such can rely on s. 55 of the Bills of Exchange Act to absolve itself of liability. The Court rejected this argument in holding that, while certain provisions in the Bills of Exchange Act may afford a defence to an action in conversion, because BMO did not plead a statutory defence or raise any such defence before the motion judge, the Court would not consider this ground of appeal.

Clatney v. Quinn Thiele Mineault Grodski LLP, 2016 ONCA 377

[Cronk, Epstein and Huscroft JJ.A.]

Counsel:

Paul Auerbach, for the appellant

William R. Hunter, for the respondent Quinn Thiele Mineault Grodzki

Cheryl Letourneau, for the respondent Bertschi Orth Solicitors and Barristers

Facts:

In March 2008, the appellant was seriously injured in a motor vehicle accident. The respondents are the law firms that represented him in his tort claim. In January 2009, the appellant retained Bertschi Orth Solicitors and Barristers LLP (“Bertschi Orth”), to represent him in his tort and accident benefits claims, entering into a contingency retainer agreement with a provision stating that, if the appellant terminated the retainer prior to the resolution of his claim, he would pay Bertschi Orth all fees, disbursements and charges for services rendered by it to the date of termination. In November 2012, the appellant terminated Bertschi Orth’s retainer and hired the respondent, Quinn Thiele Mineault Grodzki LLP (“Quinn Thiele”). The appellant entered into a contingency fee agreement with Quinn Thiele that provided for payment of fees equal to 30% of damages recovered, plus disbursements incurred, plus HST.

This claim was settled in July 2013 for $800,000, an amount that included Family Law Act (“FLA”) claims advanced by the appellant’s wife and two teenaged sons. Under a court order dated August 21, 2013, the settlement monies that then remained, approximately $655,000, were held under a charging order pending resolution of the accounts of the respondent, Bertschi Orth, for fees rendered and disbursements incurred in representing the appellant in the initial stages of his tort action. In November 2013, $70,000 of that $655,000 was paid into court on behalf of the appellant’s sons. On December 3, 2013, an order was issued on consent (the “Consent Order”) that provided for the release of the remaining monies, approximately $585,000. The Consent Order specified payment to the respondents of amounts in full satisfaction of their fees and disbursements, with the remainder to the appellant. As a result of this order, the appellant realized a net amount of $274,142.47. The respondents received $310,000, in total. On November 25, 2014, the appellant brought an application for an order referring the respondents’ accounts to assessment pursuant to the provisions of the Solicitors Act. The application judge dismissed the application on the basis that, in the light of the Consent Order, he lacked jurisdiction to hear the matter. The appellant appeals.

Issues:

(1) Did the application judge err in concluding that he was unable to consider the application for want of jurisdiction?

(2) If the application judge had jurisdiction to consider the matter, should this court order an assessment of the respondents’ accounts?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The application judge erred in finding that he lacked jurisdiction to consider the appellant’s request for an order directing the respondents’ accounts be assessed. The Consent Order, as it stood, was a bar to the application judge assuming jurisdiction to consider the request that the Fee Agreements be assessed. However, the appellant specifically requested that the application judge set the Consent Order aside, removing any collateral attack concerns. The application judge should have considered this request and his failure to do so constituted an error in law. In Aristocrat v. Aristocrat (2004), 73 O.R. (3d) 275, this court held that r. 59.06 does not confer jurisdiction to hear a motion to set aside an order, at first instance. Here, however, a request to set aside the Consent Order was brought before the application judge. And the application judge considered this request in the face of a complete record and arguments by the parties. Courts are, with good reason, cautious about setting aside orders, particularly those made on consent. Finality is important in litigation. And, when dealing with a consent order, the objective that parties be held to their agreements is also an important consideration. However, as this court remarked in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257, at p. 272, there are two ways by which an individual who would otherwise be bound by a previous order can seek to have that order set aside. First, the party can move in the original proceedings under r. 59.06(2)(a) in cases of “fraud or facts arising or discovered after [the order] was made”. Or, the party can bring a separate action to set aside the order. In this case, setting aside the Consent Order is necessary to achieve justice between the appellant and the respondents relating to the legal costs associated with the tort action, due to the desperate financial straits of the appellant.

(2) Yes, the court orders the respondents’ accounts to be assessed. The courts have inherent jurisdiction as well as jurisdiction under the Solicitors Act to order lawyers’ accounts to be assessed. Both sources of jurisdiction respond to the public interest component of the rendering of legal services and lawyers’ compensation, and the importance of maintaining public confidence in the administration of justice. This requires the court to intervene where necessary to protect the client’s right to a fair procedure for the assessment of a solicitor’s bill. Because the amounts agreed upon in the Fee Agreements have been paid, the operative provision for the purposes of reopening the agreements and ordering an assessment is s. 25 of the Solicitors Act which provides that if it appears to the court that the special circumstances of the case require the agreement to be reopened, they may reopen it and order the costs, fees, charges and disbursements to be assessed, and may also order the whole or any part of the amount received by the solicitor to be repaid by him or her on such terms and conditions as to the court seems just. “Special circumstances” are those in which the importance of protecting the interests of the client and/or public confidence in the administration of justice, demand an assessment. These are such special circumstances. The appellant is not unsophisticated but was, at the time he entered into the Fee Agreements, vulnerable. He was permanently impaired by the brain injury he suffered in the car accident. He was under intense financial pressure. The appellant did not have independent legal advice when such was clearly called for. He expressed his dissatisfaction with the legal services rendered by both firms. He terminated his retainer with Bertschi Orth and, when it came to resolving the firms’ fees and disbursements, the appellant expressed his frustration with Quinn Thiele. Finally, at the time the Fee Agreements were entered into, detailed accounts had not been rendered by Quinn Thiele. Furthermore, of particular importance is Quinn Thiele’s representation of the appellant which included conduct that; 1) contributed to the need for Bertschi Orth to obtain the Charging Order, 2) resulted in an order that reflected no effort on Quinn Thiele’s part to represent the appellant’s interests by ensuring that the Charging Order affected him only to the extent necessary, 3) misled the appellant by providing erroneous legal advice and 4) exerted pressure on the appellant to settle – all of which put the appellant in a position in which he had little choice but to enter into the Fee Agreements. In these circumstances, considered cumulatively, the protection of the appellant’s interests and the public’s confidence in the administration of justice demand that the Fee Agreements be reopened and an assessment be ordered.

Dovbush v. Mouzitchka, 2016 ONCA 381

[Hoy A.C.J.O., Blair and Roberts JJ.A.]

Counsel:

Sergiy Timokhov, for the appellants

Stephen M. Werbowyj, for the respondents

Facts:

Vitaliy Dovbush and his brother, Alexander Faltschuk, entered into negotiations with Bogdan and Alexandra Mouzitchka regarding the purchase of a certain percentage of IMB +Records Inc. Dovbush made several payments to the Mouzitchkas totalling $600,000. When the relationship fell apart, Dovbush and Faltschuk sued to recover those payments.

The trial judge held the payments were a non-refundable down payment on the brothers’ investment and dismissed their action. The brothers seek to set aside that decision, although only Dovbush is actively pursuing the appeal.

Issue:

Did the trial judge mischaracterize the central issue between the parties?

Holding: Appeal allowed.

Yes. The court held that the trial judge may have mischaracterized the central issue that he was to determine and the court held that this mischaracterization may have undermined his ultimate determination.

The court held that they cannot tell on the record, however, because the reasons provided do not show the court the pathway taken through the conflicting evidence to arrive at his result or provide an adequate explanation for the “why” of the result. The court reluctantly concluded that the trial judge’s reasons were insufficient to permit appellate review.

The trial judge concluded that the main issue was the characterization of the transaction. The court held that the central issue was actually the correct characterization of the monies advanced by the appellants during the party’s dealings in connection with the transaction.

Criminal Law Decisions

R. v. Kreko, 2016 ONCA 367

[Strathy C.J.O., Gillese and Pardu JJ.A.]

Counsel:

David E. Harris, for the appellant

Eric Siebenmorgen, for the respondent

Emily Hill and Caitlyn Kasper, for the intervener Aboriginal Legal Services of Toronto

Keywords: Criminal Law, Sentencing, Aboriginal Heritage, Criminal Code, Section 718.2(e), Principles of Sentencing, Causal Link, Appeal Allowed

R. v. McIntosh, 2016 ONCA 370

[Epstein, Pepall and van Rensburg JJ.A.]

Counsel:

Eva Taché-Green, for the appellant

Katie Doherty, for the respondent

Keywords: Criminal Law, Convictions, Assault, Uttering Death Threats, Firearm Offences, Assessment of Witnesses’ Evidence, Sentencing, Pre-Trial Custody Credit, Appeal Allowed in Part

R. v. Kift, 2016 ONCA 374

[Laskin, Gillese and Roberts JJ.A.]

Counsel:

Michael A. Johnston, for the appellant

Scott Latimer, for the respondent

Keywords: Criminal, Sentencing, Convictions, Firearm Offences, Stay of Proceedings, Appeal Dismissed

R. v. Mac, 2016 ONCA 379

[Watt, Lauwers and Miller JJ.A.]

Counsel:

Kim Schofield and Melina Macchia, for the appellant, Mr. Mac

Anya Weiler, Geoffrey Roy and Kelvin Ramchand, for the respondent, the Crown

Keywords: Criminal, Sentencing, Convictions, Conspiracy to Traffic Methamphetamine, Admission of Wiretap Evidence, Garofoli Application, Appeal Dismissed

R. v. Siddiqui, 2016 ONCA 376

[Epstein, Pepall and van Rensburg JJ.A.]

Counsel:

Richard Litkowski, for the appellant

Nadia Thomas, for the respondent

Keywords: Criminal, Sentencing, Convictions, Dangerous Driving Causing Bodily Harm, Causation, Inconsistent Verdicts, Appeal Dismissed

R. v. Allen, 2016 ONCA 387

[Laskin, Gillese and Roberts JJ.A.]

Counsel:

Julie Santarossa, for the appellant

A. Cappell, for the respondent

Keywords: Criminal Law, Conviction, Aggravated Assault, Evidence, Appeal Dismissed

R. v. Boyd, 2016 ONCA 380

[MacPherson, Lauwers and Hourigan JJ.A.]

Counsel:

Angela Ruffo, for the appellant

Katie Doherty, for the respondent

Keywords: Criminal Law, Sentencing, Serious Offences, Consecutive Sentences, Appeal Dismissed

R. v. Frater, 2016 ONCA 386

[MacPherson, Lauwers and Hourigan JJ.A.]

Counsel:

Samuel Walker, for the appellant

Nadia Thomas, for the respondent

Keywords: Criminal Law, Sentencing, Immigration Consequences, Appeal Allowed

R. v. Marini, 2016 ONCA 383

[MacPherson, Lauwers and Hourigan JJ.A.]

Counsel:

Melanie Webb, for the appellant

Katie Doherty, for the respondent

Keywords: Criminal Law, Conviction, Sentencing, Unreasonable Verdict, Appeal Dismissed

R. v. McNeil, 2016 ONCA 384

[MacPherson, Lauwers and Hourigan JJ.A.]

Counsel:

Joseph McNeil, acting in person (via videoconference)

Amy J. Ohler, duty counsel

Jessica Smith Joy, for the respondent

Keywords: Criminal Law, Sentencing, Pre-Trial Custody Credit, Non-Communication Order, Appeal Allowed