Hello everyone,

There were four civil decisions released by the Court of Appeal this week.  Areas covered include condo law, administrative dismissals for delay, and two custody and access decisions in high conflict cases (one very high conflict).

I hope everyone has a great Labour Day Long Weekend.

John Polyzogopoulos

Blaney McMurtry LLP

JPolyzogopoulos@blaney.com

Tel: 416.593.2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents

Civil Cases

Durham Condominium Corporation No. 45 v. Swan (click on the case name to read the summary)

Keywords: Real Estate, Condominium Law, Condominium Act, 1998, s. 37(1) and s.38(1), Vexatious Litigant

Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited (click on the case name to read the summary)

Keywords: Civil Procedure, Rules of Civil Procedure, Rule 48.11, Administrative Dismissal For Delay, Motion to Restore Action Refused, Standard of Review of Discretionary Order on Appeal

Clayson-Martin v. Martin (click on the case name to read the summary)

Keywords: Family Law, Custody and Access, Evidence, Hearsay, Expert Evidence, Admissibility, Principled Approach, R. v. Khelawon, R. v. Hawkins, Reasonable Apprehension of Bias, Best Interests of the Child, Children’s Law Reform Act, s. 24

De Melo v. De Melo (click on the case name to read the summary)

Keywords: Family Law, Custody and Access, Summary Judgment, Family Law Rules, Subrules 16(1), 16(4) – (4.1), Genuine Issue Requiring Trial, Best Interests of the Child,  Children’s Law Reform Act, ss. 24(2)

For a list of Short Endorsementsclick here

For a list of Criminal Law decisions, click here

Civil Case Decisions

Durham Condominium Corporation No. 45 v. Swan

Counsel:

Howard Wright, for the appellant

Timothy Duggan, for the respondent

Keywords: Real Estate, Condominium Law, Condominium Act, 1998, s. 37(1) and s.38(1), Vexatious Litigant

Facts:

The appellant is a former director and a unit owner of the respondent condominium corporation. The appellant appeals with leave from a costs order made against him in the from an application brought against him by the respondent.

The respondent sought costs on a full indemnity basis in the amount of $198,880.92 or on a partial indemnity basis in the amount of $126,855.22.  The appellant claimed he was indemnified against costs under the By-laws of the condominium corporation and ss. 38(1) of the Condominium Act, 1998.  The application judge ordered appellant to pay costs of $45,000 to the respondent on partial indemnity scale.  The respondent brought an application seeking the following orders under the Courts of Justice Act:

  • A declaration that the appellant is a vexatious litigant;
  • A declaration that the respondent’s Board of Directors has the authority to enter into contracts for third party management of the condominium;
  • A declaration that the present property management company contract with MCD Enterprises (MCD) is binding; and
  • An injunction prohibiting the appellant from having any contact with the respondent’s Board of Directors, MCD, and its principal, Catherine Debbert.

Additionally, the respondent also sought further relief under the Condominium Act, 1998: (i) a declaration finding that the appellant, as a Director with the condo corporation, failed to carry out his duties and exercise the care and diligence required in that office according to subsection 37(1) of the Act; and (ii) an order that the appellant remove, at his expense, the satellite dish installed on the common elements.

The Appellant brought a cross application.  The application judge dismissed the respondent’s application that the appellant be declared a vexatious litigant and denied its application for an injunction to bar the appellant from contacting the board of directors. The judge made several findings against the appellant.  Specifically, the application judge found that the appellant failed to exercise the care, and diligence and skill that a reasonably prudent person would exercise in carrying out his duties as director of the condominium.  The appellant’s cross application was dismissed in its entirety and the application judge found that the appellant’s actions put the proper management of the condominium at risk.

Issues:

Is the appellant entitled to be indemnified for the costs and expenses he incurred in the litigation?

Holding:

Appeal Allowed.  Costs order set aside, and matter is remitted to the application judge.

Reasoning:

The Court held that it is at a significant disadvantage in dealing with this matter.  Neither party in this case took out a judgment following the application judge’s decision.  There was considerable uncertainty during oral argument as to the nature of the judgment that would have been issued.  The court also ruled that it was unclear how the application judge came to the amount of $45,000, or what that amount covers.

The court stated that the main difficulty is that the application judge’s decision on the applicability of the indemnity provided by the respondent’s by-law is ambiguous.  The court remitted the matter back to the application judge to determine the following:

  1. applicability of ss.37(1)(a) and (b) of the Condominium Act, 1998 and the by-law to the facts of the case;
  2. whether, and the extent to which, the indemnity applies;
  3. the quantum of costs and expenses, if any, covered by the indemnity; and
  4. the breakdown of the costs as between the application and the cross-application.

Subsequently, the court found that the appellant is entitled to costs on this appeal of $6,000

Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited

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

Counsel:

Robin B. Cumine, Q.C. and Kirryn G. Hashmi, for the appellant

Christopher J. Rae, for the respondent

Keywords:   Civil Procedure, Rules of Civil Procedure, Rule 48.11, Administrative Dismissal For Delay, Motion to Restore Action Refused, Standard of Review of Discretionary Order on Appeal

Facts:

The Appellant brings this appeal to restore the action to the trial list under Rule 48.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Appellant commenced this action seven years ago in March, 2007. The Appellant’s claim is for $125,000 for negligence respecting a fire that took place in August, 2006 on railway lands owned by the Respondent which spread to the Appellant’s business. The Respondent defended the action and commenced third party proceedings against the Appellant’s landlords, which was ultimately dismissed in August, 2009.

On October 27, 2010 the case was struck from the trial list. Counsel for the Respondent had refused to sign the Trial Certification form on the grounds that the Appellant had not fulfilled all of its undertakings on discovery. Oral discovery had been complete in the summer of 2008. The Appellant submitted that the refusal to sign the Trial Certification form based upon outstanding productions was a pretext to allow the Respondent to delay the case. By late 2010, the Appellant sought the Respondent’s consent to restore the action to the trial list, to which the Respondent’s counsel advised “full answers to undertakings” would be required before providing consent. In January, 2012 on an unopposed motion, the action was restored to the trial list.

In October, 2012, during discussions to schedule pre-trial and trial dates, the Respondent’s new counsel requested answers to three outstanding undertakings. During the next six months, Respondent’s counsel wrote each month to inquire about the status of the undertakings and received updates from the Appellant’s counsel explaining the delay.

In June, 2013, the Respondent’s counsel indicated that the trial would need to be adjourned as outstanding records were required for their expert’s review. In July, 2013, the Appellant’s counsel advised that the majority of the documents were available but there were still tax records outstanding, and agreed to adjourn the pre-trial and trial dates to facilitate the preparation of expert reports. In October, 2013, the presiding judge struck the action from the trial list when the Appellant’s counsel requested new dates on consent. Between December, 2013 and early, 2014, the remaining documents were exchanged and the Appellant advised their expert report would be delivered by October, 2014.

On May 5, 2014, the Appellant served a motion to restore the action to the trial list. A status notice was issued by the court shortly after under Rule 48.14(2) indicating more than 180 days had passed without the action being restored to the list.[1] The notice stated the action would be dismissed within 90 days unless restored to the list, terminated, documents filed providing a consent timetable, or a judge or master ordered otherwise. The motion to restore was heard August 14, 2014 and dismissed. The action was then administratively dismissed with costs on September 9, 2014.

Issue:

Did the motion judge make this decision on an erroneous legal principle or infected by a palpable and overriding error of fact on each branch of the test for Rule 48.14 dismissals, as set out in Nissar v Toronto Transit Commission, 2013 ONCA 361?

Holding:

Appeal allowed. The appellant has provided an acceptable explanation for the delay, and the respondent will not suffer non-compensable prejudice if the action is restored to the trial list.

Reasoning:

The motion judge committed reversible errors in exercising his discretion not to restore the Appellant’s action to the trial list. Although the motion judge applied the correct legal test, his analysis revealed errors in legal principle at both stages of the test. The conjunctive test recently set out in Nissar at paras. 30-31 is whether, 1) the plaintiff has demonstrated that there is an acceptable explanation for the delay in the litigation; and, 2) if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice.

To satisfy the first part of the Nissar test, the context of the action and any other relevant factors that are specific to the case must be considered to determine whether an “acceptable explanation” has been provided. While the burden of proof on the motion is on the plaintiff, this includes the conduct of all parties in relation to the litigation. The court held that the motion judge erred in deciding the delay issue based on an allocation of blame for delay rather than whether there was a reasonable explanation for it. The court also noted that applying too exacting a standard for restoring an action to the trial list may hinder the objective of an efficient justice system.

The second part of the test requires the motion judge to consider the evidence in deciding the prejudice issue, to determine the defendant’s ability to defend the action as a result of the plaintiff’s delay, as opposed to the sheer passage of time. However, some apportionment of responsibility for the delay is required in the analysis. The court held that the motion judge erred by deciding the prejudice issue by a mechanical application of a presumption based on the passage of time, rather than considering prejudice as a question of fact in the particular circumstances of this case.

The court went on to reweigh the evidence given the motion judge’s decision was based on erroneous legal principles, which justified appellate intervention. On the issue of delay, the Appellant made slow but steady progress in fulfilling the undertakings. In addition, the expert reports were delayed due to the Appellant’s financial restrictions and the Respondent initially consented to an adjournment but later changed its position on the motion to restore the action. This context weighed in favour of restoring the action to the trial list.

On the issue of prejudice, the court did not accept the Respondent’s speculation that the case may depend in part on oral evidence, coupled with the assumption that witnesses’ memories generally fade over time. Without more evidence of actual prejudice, this was insufficient to prevent the Appellant from satisfying the prejudice prong of the test. Further, the Appellant demonstrated that there was no non-compensable prejudice as a result of the action being restored to the trial list, by adducing evidence that its witnesses and experts as well as transcripts of examinations for discovery were available.

The court concluded that while the decision to restore an action to the trial list is discretionary, a motion judge must strike a balance between the need for efficiency and the need for flexibility, such that cases can be tried on the merits where there is a reasonable explanation for non-compliance with the rules. When a motion judge fails to do so, the errors will rise to a level warranting appellate intervention, notwithstanding the appropriate deference due.

N.B. The relevant events in this case took place prior to the changes to rule 48.14, which came into force on January 1, 2015: O. Reg. 170/14. Actions will now be automatically dismissed for delay without notice the later of January 1, 2017 and the fifth anniversary of the commencement of the action, unless they have been listed for trial, terminated by any means or the court orders otherwise. Any action struck from the trial list after January 1, 2015, and not restored by the later of January 1, 2017 and the second anniversary of being struck off, will be dismissed on that date, without notice to parties or their counsel, unless the court orders otherwise.

Clayson-Martin v. Martin

[MacFarland, Rouleau and Lauwers JJ.A.]

Counsel:

Marie Henein, Martha McCarthy, Danielle Robitaille and Jenna Beaton, for the appellant

Dani Z. Frodis and Robyn Switzer, for the respondent

Keywords: Family Law, Custody and Access, Evidence, Hearsay, Expert Evidence, Admissibility, Principled Approach, R. v. Khelawon, R. v. Hawkins, Reasonable Apprehension of Bias, Best Interests of the Child, Children’s Law Reform Act, s. 24

Facts:

This appeal arises out of a custody dispute over a 10-year old boy and a 7-year old girl. The wife appeals the trial decision to grant sole custody of the children to her, with extensive access for the father.

The wife’s position is that access should have been terminated on the basis that her husband tried to kill her by slitting her throat on vacation in Jamaica. The husband argued that his wife was the aggressor and that she attacked him with a knife. The husband was initially charged with attempted murder in Jamaica. He was acquitted at trial of the reduced charge of wounding with intent.

Issues:

  1. Did the trial judge err in law by admitting a transcript of the evidence of the blood expert Sherron Brydson given at her husband’s criminal trial in Jamaica?
  2. Did the trial judge’s conduct during the trial raise a reasonable apprehension of bias?
  3. Did the trial judge fail to properly assess the best interests of the children and in particular to consider domestic violence as is required by s. 24 of the Children’s Law Reform Act?

Holding:

Appeal allowed and judgment set aside. A new trial was ordered on the issues of custody and access as set out in accordance with the decision.

Reasoning:

(1) Yes.  At the trial, the husband was able to introduce evidence that disputed the wife’s version of events through a transcript of a blood expert’s evidence from the Jamaican criminal trial. The blood evidence was central to the trial judge’s assessment of the wife’s credibility.  The wife objected to this evidence being admitted on the basis that it was hearsay.

The trial judge admitted the blood evidence under the principled exception to the hearsay rule found in R. v. Khelawon.  The principled exception allows hearsay statements to be admitted if two conditions are fulfilled: necessity and reliability.

The trial judge relied on the decision R. v. Hawkins and decided that the evidence should be admitted based on the principled approach.  Necessity was found because the husband claimed that the blood expert was not available to give evidence in person or by video link. Reliability was satisfied on the basis that the blood expert was under oath at the time she gave the testimony.

The court found that this evidence given under oath only addressed her veracity and credibility as a witness and not her reliability. The issue in this case was not if the blood expert was lying but if she was mistaken and an oath does not help with that issue. The trial judge erred in not considering that the wife was not a part of the criminal proceedings and so she could not cross-examine the blood expert.

The court found that Hawkins was not an appropriate authority upon which to rely. It involved evidence given at a preliminary inquiry in the same proceeding. In this case, the blood expert’s evidence was given in a proceeding to which the wife was not a party. There was no opportunity for “meaningful contemporaneous cross-examination” conducted with the wife’s interest in mind.

The trial judge also erred in relying to some extent on the fact that the blood expert’s evidence was provided to other experts for the preparation of their reports. This should not have been considered when determining the admissibility of the evidence.

In addition, the court stated that the trial judge should have examined the evidence against the four Mohan factors of relevance, necessity, absence of an exclusionary rule, and a properly qualified expert and weighed the probative value of the evidence against its prejudicial effect.

The blood expert’s evidence was essential to the trial judge’s assessment of the wife’s credibility, resulting in a miscarriage of justice that requires the decision to be set aside.

The court also found the trial judge’s rejection of the evidence provided by the wife’s own expert to be inappropriate. The wife’s expert evidence called in response to the blood expert’s evidence was dismissed by the trial judge as “conjectural”. The court stated that the trial judge should have at least considered this evidence.

(2) Yes.  The test for reasonable apprehension of bias is: would a reasonable and informed person viewing the matter realistically and practically and having thought it through, conclude that the judge, consciously or unconsciously would not decide fairly? In a custody and access situation, the fairness owed by the judge is mostly to the child and not the parties. However, in situations that involve a factual dispute between the parents, fairness to the child and parties will overlap.

Overall, the court agreed because the trial judge treated the evidence of the wife and husband unevenly, this gave rise to a reasonable apprehension of bias. The court found the trial judge’s treatment of the wife’s evidence troubling compared to his treatment of the husband’s evidence and that this amounted to an error in law. The wife argued the trial judged acted more as an advocate of the husband rather than a neutral trier-of-fact. The court was reluctant to criticize his behavior on this issue because of his obligation to determine the best interests of the child and the fact the father was self-represented.

The wife submitted that the treatment of counsel gave rise to an apprehension of bias. The court agreed that relationships were tense in the courtroom but that this did not result in a reasonable apprehension of bias. Finally, the court disagreed with the wife’s assertion that the judge’s interim access ruling showed a bias in favour of the husband.

(3) Yes.  The court agreed with the wife that the trial judge erred in failing to keep the inquiry’s focus on the best interests of the child. The trial judge failed to address the factors required by ss. 24(2) of the CLRA and did not discuss the issue of domestic violence that arose out of both the wife and husband’s accounts of what occurred in Jamaica.

De Melo v. De Melo

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

Counsel:

Donny De Melo, in person

Walter Drescher, for the respondent

Linda Feldman, for the Office of the Children’s Lawyer

Keywords: Family Law, Custody and Access, Summary Judgment, Family Law Rules, Subrules 16(1), 16(4) – (4.1), Genuine Issue Requiring Trial, Best Interests of the Child,  Children’s Law Reform Act, ss. 24(2)

Facts:

The parties married in 1999 and separated in 2011.  There are two children of the marriage, now 15 and 13 years of age. By summary judgment dated October 24, 2014, H. Arrell J. of the Superior Court of Justice granted sole custody of the two children of the marriage to the respondent mother and access to the appellant father at the discretion of the children, based on their initiation.  By further order dated December 2, 2014, the motion judge also awarded costs to the mother. The father, a self-represented litigant, appealed the rulings on custody and access.

Issues:

  1. Did the motion judge err in allowing the mother’s summary judgment motion to proceed given that when the motion was brought in September 2014, the matrimonial proceeding between the parties had already been placed on the trial list and was scheduled for hearing in January 2015?
  2. Did the motion judge err in law by placing the onus on the father to demonstrate that there was a genuine issue requiring a trial?
  3. Did the motion judge err by failing to address the applicable criteria for determining the best interests of the children?
  4. Did the motion judge err by making a costs award in favour of the mother?

Holding:

Appeal dismissed, with costs to the respondent mother.

Reasoning:

  1. No. Under subrule 16(1) of the Family Law Rules, a motion for summary judgment may be brought in an action at any time after the respondent has served an answer or the time for serving an answer has expired.  That is what occurred here. In this case, the mother had served an answer and, by consent order of the motion judge, the divorce claim was severed from the action. Further, there is no strict legal requirement that a motion for summary judgment be brought only before the conduct of a settlement or trial management conference.  Nor did the mother’s motion seek to alter the existing status quo regarding custody and access. The children had resided with their mother on a full-time basis and had elected not to exercise their right of access to their father since the date of separation – a period of approximately three years.
  2. No. The mother had met her obligation under subrule 16(4) to demonstrate that there was no genuine issue requiring a trial in respect of custody or access.  The father was obliged to respond to the mother’s motion by providing evidence of specific facts showing that there was a genuine issue for trial.  The motion judge concluded that the father failed to meet his evidentiary burden. This conclusion was open to the motion judge on the evidence, including the mother’s affidavit evidence, the affidavit evidence of John Butt – a clinical investigator with the Office of the Children’s Lawyer – and reports authored by Lourdes Geraldo – a reconciliation therapist – regarding the children’s circumstances, needs and preferences.  Relying on this evidence, the motion judge concluded that he was able to make a fair and just determination of the custody and access issues without resort to a trial.
  3. No. The the motion judge considered the evidence of the needs and circumstances of the children in accordance with the factors described in ss. 24(2) of the Children’s Law Reform Act.  He took into account evidence regarding: the mother’s primary parenting role since separation; the children’s current circumstances, needs, progress and emotional well-being; the children’s wishes and preferences; the need to accord considerable weight to the wishes of these teenaged children; and the father’s claim that the mother had alienated the children from him and the children’s advice to the contrary. The motion judge recognized that this is a high conflict matrimonial case; that joint custody is not appropriate in such cases except in exceptional circumstances; and that such exceptional circumstances did not exist here. Having considered the relevant evidence, the motion judge correctly concluded that it was in the best interests of the children that sole custody be granted to the mother and that forcing access with the father against the wishes of the children would be detrimental to their well-being.
  4. No. The motion judge’s assessment of costs is a highly discretionary decision that attracts considerable deference.  As the costs award was not plainly wrong or tainted by an error in principle, there is no basis for appellate interference with it.

Short Endorsements

Azar v. Tecumseh (Town), 2015

[Feldman, Simmons and Miller JJ.A.]

Counsel:

Matthew R. Todd, for the appellant

Steven Pickard and Anita Landry, for the respondent

Keywords: Interpretation, Development Agreement, Costs

El Ghafari v. Treehuba, 2015

[Feldman, Simmons and Miller JJ.A.]

Counsel:

Karl Arvai, for the appellant

Robert W. Weisser, for the respondent

Keywords: Jury Verdict, Apportioning Liability, Review, F.C. (Guardian) v 511825 Ontario Inc

Criminal Law Decisions

R. v. Beckwith

[Laskin, Hourigan and Pardu JJ.A.]

Counsel:

Brian Weingarten and Michael Dineen, for the appellant

Mabel Lai, for the respondent

Keywords: Pre-Sentence Credit, R. v. Summers, Demonstrably Unfit

R. v. Harp

[Laskin, Hourigan and Pardu JJ.A.]

Counsel:

Robert Sheppard, for the appellant

Randy Schwartz, for the respondent

Keywords: Sentencing, Demonstrably Unfit, R. v. Gladue, Aboriginal Sentencing

R. v. MacIsaac

[Laskin, Lauwers and Hourigan JJ.A.]

Counsel:

Frank Addario and Andrew Burgess, for the appellant

Kevin Rawluk, for the respondent

Keywords: Aggravated Assault, Credibility, R. v. W.(D.), Speculation, R. v. Morrissey, Judicial Notice

R. v. Menzies

[Laskin, Hourigan and Pardu JJ.A.]

Counsel:

Lance Beechener and Eva Taché-Green, for the appellant

Kathleen Healey, for the respondent

Keywords: Trafficking, Breaking and Entering, Exculpatory evidence

R. v. Michaud

[Watt, Lauwers and Hourigan JJ.A.]

Counsel:

David Crocker and Laura K. Bisset, for the appellant

Joshua Hunter and Padraic Ryan, for the respondent

Keywords: Test Case, Highway Traffic Act, Principles of Fundamental Justice, Proportionality, Canadian Charter of Rights and Freedoms, s.7, s.1, s. 139 Provincial Offences Act, Bedford v. Canada (Attorney. General), Carter v. Canada (Attorney General), R. v. Oakes

R. v. Waldron

[Laskin, Hourigan and Pardu JJ.A.]

Counsel:

Vanessa Carew, for the appellant

Randy Schwartz, for the respondent

Keywords: Pre-Sentence Credit, Trafficking, Minimum Sentence

R. v. Batson

[Laskin, Feldman and Simmons JJ.A.]

Counsel:

Howard L. Krongold, for the appellant

Grace Choi, for the respondent

Keywords: First-Degree Murder, Second-Degree Murder, Criminal Code of Canada, s.34, Self-Defence, s.35

R. v. Akintunde

[Blair, Tulloch and Hourigan JJ.A.]

Counsel:

George Akintude, in person

Matthew Gourlay, duty counsel

Vanita Goela, for the respondent

Keywords: Pre-Sentence Credit, Custody, Criminal Code of Canada, s.524, s.719, Trafficking, Truth in Sentencing Act, R. v. Summers, Canadian Charter of Rights and Freedoms

R. v. Humoud

[Laskin, Hourigan and Pardu JJ.A.]

Counsel:

Diane Condo, for the appellant

Xenia Proestos, for the respondent

Keywords: Trafficking, Identification, Proceeds of Crime