Hello everyone.  Below are summaries of this week’s Ontario Court of Appeal decisions. As usual, there are full summaries for the substantive civil decisions.  Topics include contract interpretation, breach of contract, standard of review, implied terms, fresh evidence on appeal, fraud, unjust enrichment, defamation, family law and the wrongful retention of a child.

At the end of our post you will find a list of all short endorsements and criminal decisions released this week, with keywords and links to the decisions themselves.

Please feel free to share this blog with friends and colleagues.  As always, we welcome your comments and feedback.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Table of Contents:

Civil Cases:

Energy Fundamentals Group Inc. v. Veresen Inc. (click on case name to read the summary)

Keywords: Contract Law, Commercial Contracts, Intention of Parties, Implied Terms, Business Efficacy Test

Hybridyne Power Generation Corp. v. SAS Company Global (click on case name to read the summary)

Keywords: Contracts, Contract Interpretation, Rules of Civil Procedure, Summary Judgement, Hryniak v. Mauldin, Fresh Evidence on Appeal, R. v. Palmer, New Issues on Appeal, Kaiman v. Graham

Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, (click on case name to read the summary)

Keywords: Contract Law, Breach of Contract, Standard of Review, Deference, Sufficiency of Reasons, R. v. Sheppard, Small Claims Court, Access to Justice, Powers of Appellate Court, Courts of Justice Act, s. 134

Healthy Body Services Inc. v. 1261679 Ontario Ltd. (Raytek Communications) (click on case name to read the summary)

Keywords: Torts, Fraud, Tracing, Constructive Trust, Knowing Receipt, Unjust Enrichment, Change in Position, Standard of Review, Palpable and Overriding Error, Housen v. Nikolaisen

St. Lewis v. Rancourt  (click on case name to read the summary)

Keywords: Defamation, Libel and Slander Act, Blogging, Fair Comment, Limitation Period, Injunction, Astley v. Verdun test, Reasonable Apprehension of Bias

Roberts v. Miller (click on case name to read the summary)

Keywords: Family Law, Adjournments, Discretion, When Appellate Intervention Appropriate

Bazargani v. Mizael (click on case name to read the summary)

Keywords: Family Law, Wrongful Retention of Child, Hague Convention on the Civil Aspects of International Child Abduction, Articles 12 and 13

Endorsements:

Bomberry v. Coseco Insurance Company (click on case name for more information)

Keywords: Endorsement, Costs

Foley (Re) (click on case name for more information)

Keywords: Costs Endorsement

Proulx v. Canadian Cove Inc. (click on case name for more information)

Keywords: Endorsement, Appeal Withdrawn, Costs

Sirdi Sai Sweets Inc. v. Indian Spice & Curry Ltd.,(click on case name for more information)

Keywords: Endorsement, Guarantees, Tampering with Documents, Exclusivity Provision, Lease

Smith v. Loblaw Companies Limited (Real Canadian Superstore), (click on case name for more information)

Keywords: Endorsement, Duty of Care, Causation, Reasonableness of Jury Verdict, Costs

Bui v. Tran (click on case name for more information)

Keywords: Endorsement

1793670 Ontario Ltd. v. Chan, (click on case name for more information)

Keywords: Endorsement, Appeal, Interlocutory Order

Glasford v. Canadian Imperial Bank of Commerce (click on case name for more information)

Keywords: Endorsement, Torts, Fraudulent Misrepresentation, Jurisdiction

Criminal Cases:

R. v. Ohenhen (click on case name for more information)

Keywords: Criminal Law, Endorsement, Evidence, Voir Dire, Credibility Assessment, Canadian Charter of Rights and Freedoms, ss. 8,9,10 and 24(2)

R. v. McIlmoyle(click on case name for more information)

Keywords: Criminal Law, Endorsement, Mischief, Lawful Operation of Motor Vehicle, Criminal Code, s. 217, Sentencing, Custodial Term, Sexual Exploitation

R. v. Andrade (click on case name for more information)

Keywords: Criminal Law, Possession of an Imitation Weapon, Criminal Code, s. 85(2), S. 88(1) Specific Intent Offence, Predicate Offense, Indictable Offense, Scrutiny of Evidence

R. v. Hartman (click on case name for more information)

Keywords: Criminal Law, Sexual Assault, Imprisonment, Admissibility of Evidence, Order for Appeal from Conviction, New Trial

R. v. White (click on case name for more information)

Keywords: Criminal Law, Reasonable Expectation of Privacy, Common Areas, Charter of Rights and Freedoms, ss. 8 and 24(2), Possession for the Purpose of Trafficking, Investigation, R. v. Edwards [1996] 1 S.C.R. 128, Trespass to Property Act

R. v. Degraw (click on case name for more information)

Keywords: Criminal Law, Endorsement, Identification Evidence, R. v. Lincoln 2012 ONCA 542, Presumption of Possession of Items in Car

R. v. Menard (click on case name for more information)

Keywords: Criminal Law, Criminal Code, s. 732.1(3)(h), Motor Vehicle Accident, Dangerous Driving, Requisite Mens Rea, R. v. Beatty 2008 CSC 5,  Condition of Banishment

R. v. Provencher (click on case name for more information)

Keywords: Criminal Law, Sexual Assault, Violation of Probation, Reasonable Apprehension of Bias, Presumption of Innocence, Similar Fact Evidence

R. v. Laine (click on case name for more information)

Keywords: Criminal Law, Criminal Negligence Causing Death, Criminal Negligence Causing Bodily Harm, Conviction, Sentencing, Evidence, Standard of Scrutiny, Re-Open Trial, Unreasonable Verdict

R. v. Marshall (click on case name for more information)

Keywords: Criminal Law, Endorsement, Sexual Assault, Imprisonment, R. v. Palmer, [1980] 1 S.C.R. 759, Fresh Evidence, R. v. W. (D.) Analysis

R. v. Adu (click on case name for more information)

Keywords: Criminal Law, Endorsement, Sexual Assault, Conviction Appealed, Credibility of Complainant, Evidence of Complainant, R. v. Rhayel, [2015] O.J. No. 2675

R. v. Perkins (click on case name for more information)

Keywords: Criminal Law, Endorsement, Sexual Assault, Voyeurism, Breach of Probation, Misapprehension of Evidence, “Stringent Standard”:  R. v. Bains, 2012 ONCA 305, Sentencing

R. v. Peters (click on case name for more information)

Keywords: Criminal Law, Endorsement, Criminal Code s. 21(2), Assault, Assault with a Weapon, Breach of Recognizance

R. v. Y.M. (click on case name for more information)

Keywords: Criminal Law, Endorsement, Robbery, Weapons Dangerous, Possession of Stolen Property, Unreasonable Verdict, Kienapple Principle

Civil Cases:

Energy Fundamentals Group Inc. v. Veresen Inc., 2015 ONCA 514

[Simmons, Epstein and Pardu JJ.A.]

Counsel:

M. A. Gelowitz and E. Morgan, for the appellant

O. Paskarakis, R. P. Agarwal, and S. Taylor, for the respondent

Keywords: Contract Law, Commercial Contracts, Intention of Parties, Implied Terms, Business Efficacy Test

Facts:

Energy Fundamentals Group Inc. (“EFG”) introduced Veresen to a project. EFG provided investment banking services pursuant to a “non-binding letter agreement”. Veresen and EFG executed a limited partnership agreement (“LPA”) through which it controlled the project. Veresen and EFG later executed a two-and-a-half page letter agreement. The letter agreement was not comprehensive and reference had to be made to the LPA to understand the scope of the letter agreement.

The letter agreement gave EFG an option to acquire up to a 20% interest in the project, contingent on successful financing. In order to exercise the option, EFG had to pay a proportionate share of all development equity contributed by Veresen, plus a return on Veresen’s development equity, as that return was defined in the LPA. If EFG became a partner, it would also be obliged to pay a proportionate share of future project costs. EFG would be required to contribute several hundred million dollars in order to exercise the option.

Prior to litigation, Veresen represented to EFG that the cost of exercising the option would far outweigh the economic benefit of doing so. Despite making these express representations, Veresen refused to provide EFG with the documentation to verify either the pricing of the option or its likely economic value.

The application judge ordered Veresen to provide sufficient information to enable EFG: (i) to confirm Veresen’s calculation of the Option exercise price; and (ii) to make a reasonable determination of what an equity stake of up to 20% in the Project is currently worth. Veresen Inc. appeals from the decision of an application judge implying a contractual obligation on its part to disclose information to enable EFG to determine whether to exercise an option to acquire up to 20% of a limited partnership.

Issues:

  1. Did the application judge err in implying the term?
  2. Did the application judge depart from the correct test by determining the intentions of reasonable parties rather than the actual parties?
  3. Did the application judge err by confounding the requirement of good faith performance of a contract with the test for implying contractual terms?

Held:

Appeal dismissed, with costs to EFG in the agreed sum of $50,000, inclusive of disbursements and applicable taxes.

Reasoning:

  1. No. The conclusions drawn by the application judge were reasonably available to him on the evidence. It is apparent that the letter agreement was not intended to comprehensively define the relationship between the parties. In a commercial setting, there may be contracts “where the parties to a contract may have been content to express only the most important terms of their agreement, leaving the remaining details to be understood”. The implication of the terms requiring disclosure is not rendered unnecessary because EFG could blindly exercise the option without knowing whether it would make economic sense to do so. Such an interpretation would frustrate the business purpose of the agreements.
  2. No. The application judge did not depart from the proper test cited by him. His analysis is in no way abstracted from an analysis of the specific relationship between these parties. The finding that no reasonable person would have embarked on an exercise of the option without disclosure supports a finding of the necessity of the implied term for purposes of business efficacy.
  3. No. The application judge’s references to good faith do not undermine his earlier factual conclusions as to necessity and business efficacy. Reference to a common doctrinal underpinning, after concluding that implication of the term was necessary to give business efficacy to the contract, does not amount to error.

Hybridyne Power Generation Corp. v. SAS Company Global, 2015 ONCA 496

[Laskin, Pardu and Brown JJ.A.]

Counsel:

R. Hettiarachchi, for the appellant

G. Roberts, for the respondent

Keywords: Contracts, Contract Interpretation, Rules of Civil Procedure, Summary Judgement, Hryniak v. Mauldin, Fresh Evidence on Appeal, R. v. Palmer, New Issues on Appeal, Kaiman v. Graham

Facts:

The parties, SAS Company Global Investments Inc. (“SAS”) and  Hybridyne Power Generation Corp. (“Hybridyne”), entered into a Master Agreement and three related agreements for the development of a Project: a Share Purchase Agreement, a Fixed Price Services Agreement, and a Buy/Sell Agreement.

Under the Fixed Price Services Agreement (“FPSA”), SAS retained Hybridyne to perform all services necessary to obtain a Notice to Proceed for the Project under its Contract with the Ontario Power Authority. Hybridyne took the position that SAS had failed to make all of the required payments under the FPSA. Section 8 of the FPSA provided that in the event SAS failed to pay any amount due under the agreement and failed to cure its default within 30 days of receipt of notice from Hybridyne, the latter could terminate the FPSA provided that Hybridyne had never defaulted on any of its own obligations under the FPSA and related agreements.

Hybridyne commenced this action seeking a declaration confirming its termination of the FPSA, a declaration of the amount of the termination fee it owed to SAS, and a declaration that all of the Shares “belong to or vest in the name of the plaintiff upon the payment” of the termination fee. In defending the action, SAS pleaded that it had made all payments to Hybridyne required by the FPSA and it denied that Hybridyne was entitled to purchase the Shares. Hybridyne was successful at the motion for summary judgment. SAS (the “appellant”) now appeals from the judgment granting summary judgment in favour of Hybridyne (the “respondent”).

Issue:

  1. Should SAS be permitted to introduce fresh evidence on the appeal?
  2. Should SAS be permitted to make new arguments on appeal that were not made before the motions judge?
  3. Did the motion judge err in granting summary judgment because Hybridyne failed to prove its claim as pleaded?
  4. Did the motion judge err by ignoring the effect of s. 7.5 of the Buy/Sell Agreement which provides that if Hybridyne is entitled to purchase the Shares because of an event of default by SAS under the FPSA, the closing of the Share purchase transaction shall take place “30 days after the date of the Event of Default is deemed to have occurred”?
  5. Did Hybridyne default on its obligation under the FPSA?

Holding: Appeal is dismissed.

Reasons:

  1. No.  SAS’s motion for leave to file fresh evidence was denied because it failed to satisfy the requirement to adduce fresh evidence as per the test set out in R. v. Palmer, [1980] 1 S.C.R. 759.
  2. No.  The three issues raised by SAS on the appeal were not argued before the motion judge.  In Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, this court stated, at para. 18, that:

The general rule is that appellate courts will not entertain entirely new issues on appeal… The burden is on the appellant to persuade the appellate court that “all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”… In the end, however, the decision of whether to grant leave to allow a new argument is a discretionary decision to be guided by the balancing of the interests of justice as they affect all parties…

The new issues raised by SAS on this appeal essentially involve either the interpretation of the Master Agreement, FPSA, and Buy/Sell Agreement, or the state of the evidentiary record on the motion in respect of the SAS counterclaim. Accordingly, all the facts necessary to address the new issues are before the court and the panel was therefore prepared to entertain these new arguments.

  1. No. A pleading must be read as a whole. In the Amended Statement of Claim, Hybridyne specifically pleaded its rights under FPSA ss. 8 and 9, including its right to purchase the Shares in the event of a default by SAS. Hybridyne’s right to purchase the Shares obviously survived the termination of the FPSA. By its terms, the FPSA made that remedy available to Hybridyne in the event the agreement terminated by reason of SAS’ default.
  2. No. When Hybridyne gave notice terminating the FPSA on the basis that SAS had failed to pay all amounts owing, SAS took the position that it had made all required payments, so therefore Hybridyne was not entitled to terminate the agreement or acquire the Shares. As a result of SAS’ position, Hybridyne was not able to proceed with the Share purchase until the disposition of this lawsuit. SAS cannot rely on the delay caused by the legal position it took to deprive Hybridyne of its right to purchase the Shares. Therefore, no practical consequence flows from the apparent conflict between the 30-day closing language contained in section 7.5 of the Buy/Sell Agreement and s. 9(b) of the FPSA, which affords Hybridyne the option to repay the termination fee over three years.
  3. No. On the motion for summary judgment, it was clear Hybridyne was taking the position that it was entitled to terminate the FPSA under s. 8 of that agreement. Consequently, in order for SAS to demonstrate that a genuine issue requiring a trial existed on that claim, SAS was obliged to adduce evidence addressing its allegations that Hybridyne had breached its obligations under the agreements and, therefore, was not entitled to terminate under s. 8 of the FPSA. SAS was not entitled to rely simply on the allegations in its pleading. SAS failed to adduce such evidence.

Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520

[Laskin, Lauwers and Hourigan JJ.A.]

Counsel:

M. A. Spears, for the appellant

T. Duggan, for the respondent

Keywords: Contract Law, Breach of Contract, Standard of Review, Deference, Sufficiency of Reasons, R. v. Sheppard, Small Claims Court, Access to Justice, Powers of Appellate Court, Courts of Justice Act, s. 134

Facts:

The appellant, Peel Condominium Corporation No. 231 (“PCC 231”), and the respondent, Maple Ridge Community Management Ltd., entered into a condominium management agreement. Under its terms, either party could terminate the agreement on 60 days’ notice or pay in lieu of notice (art. 16.1) or, alternatively, immediately for cause (art. 16.5(c)).

The PCC 231 board of directors then terminated the agreement with Maple Ridge pursuant to art. 16.5(c), which permits immediate termination where “[t]he Manager is insubordinate, reckless, or grossly negligent in performing its duties”. PCC 231 relied on seven grounds to justify termination for cause. In response to the termination, Maple Ridge commenced an action in Small Claims Court. Maple Ridge argued it had not been insubordinate, reckless or grossly negligent and was, therefore, entitled to 60 days’ notice or pay in lieu of notice. Maple Ridge sought $8,303.24 in damages for breach of contract.

Based on the evidence, the trial judge dismissed Maple Ridge’s claim, holding that PCC 231 was entitled to terminate the agreement for cause.

On appeal, the Divisional Court found that the trial judge’s reasons were insufficient to allow for meaningful appellate review as required by the test set out in R. v. R.E.M. According to the Divisional Court, the trial judge also failed to explain “why” he reached his conclusion. He did not specify why acts and omissions that were individually insufficient to constitute insubordination, recklessness or gross negligence collectively amounted to the same. The Divisional Court set aside the judgment of the trial judge and returned the matter to the Small Claims Court for a new trial before a different deputy judge. A costs award was made in favour of Maple Ridge in the amount of $10,000. PCC 231 appeals the decision of the Divisional Court.

Issues:

  1. Did the Divisional Court err by concluding that the “what” and “why” of the trial judge’s reasons were unclear?
  2. Did the Divisional Court err by failing to consider or reference the extensive trial record while assessing the adequacy of the trial judge’s reasons?
  3. Did the Divisional Court err by failing to apply a reasonableness standard in reviewing the trial judge’s decision?
  4. Did the Divisional Court err by overlooking the nature of the claim and the Small Claims Court context by ordering a new trial without taking into account whether a substantial wrong or miscarriage of justice had occurred?
  5. If the Court of Appeal finds the Divisional Court erred in granting the appeal, must the case be remitted back to the Divisional Court?

Held:

Appeal allowed. The order of the Divisional Court is set aside and the judgment of the Small Claims Court is reinstated. The order of the Divisional Court and $10,000 award is reversed in favour of PCC 231 as the successful party. PCC 231 is also entitled to its costs at the Court of Appeal, which is fixed at $7,500.

Reasoning:

  1. Yes. The reasons of the trial judge clearly met the R. v. R.E.M. standard. After several pages of analysis, the trial judge concluded that although the grounds relied on by PCC 231 may not have been sufficient to constitute insubordination, recklessness and/or gross negligence when considered on an individual basis, collectively they were sufficient. The “what” and “why” are clear in the trial judge’s seven pages of reasons, which comprised of a thorough analysis of the relevant evidence, legal definitions, and legal authorities. In terms of the “what”, the trial judge found that the grounds relied on by PCC 231 cumulatively constituted insubordination, recklessness or gross negligence. In terms of the “why”, notwithstanding that it is self-explanatory why two or more grounds that may not be individually sufficient may cumulatively be so, the trial judge cited supportive legal commentary requiring him to consider the aggregate effect of all the factors or conduct and not fall into the error of only considering them individually.
  2. Yes. There was ample evidence in the trial record that established that Maple Ridge was insubordinate, grossly negligent and/or reckless. The Divisional Court was required to consider that evidence before concluding that the reasons of the trial judge were inadequate. He did not do so. Instead, he restricted his analysis to a review of the text of the reasons without regard to the trial record. In my view, in failing to conduct a contextual analysis, the Divisional Court erred in law.
  3. No. The Divisional Court was not required to consider the reasons of the trial judge on a reasonableness standard. That standard, as described by the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) applies to a review of the reasons of an expert tribunal, not a court such as the Small Claims Court. The leading case on sufficiency of judicial reasons, R. v. Sheppard, treats insufficient reasons as an error of law, reviewable on a correctness standard, and makes no mention of a deferential standard of review.
  4. Yes. The Supreme Court of Canada has recognized that access to justice is a significant and ongoing challenge to the justice system with the potential to threaten the rule of law. The Small Claims Court plays a vital role in the administration of justice in the province by ensuring meaningful and cost effective access to justice for cases involving relatively modest claims for damages. In order to meet its mandate, the Small Claims Court’s process and procedures are designed to ensure that it can handle a large volume of cases in an efficient and economical manner. The Divisional Court decision overlooks the clear reasoning in the trial judge’s judgment and demands a level of detail that is significantly higher than generally required, particularly in Small Claims Court decisions.
  5. No. Pursuant to s.134 of the Courts of Justice Act, the Court of Appeal may make any order or decision that ought to or could have been made by the court or tribunal appealed from and may make any other order or decision that is just. If Maple Ridge wanted to uphold the judgment of the Divisional Court on grounds other than the inadequacy of the reasons, it should have made those arguments. Further, there is nothing on the record that suggests that the trial judge made any palpable and overriding error in any of the findings. The factual determinations are supported by legal conclusion that the actions of Maple Ridge constituted insubordination, recklessness and/or gross negligence. Accordingly, the case will not be remitted back to Divisional Court.

Healthy Body Services Inc. v. 1261679 Ontario Ltd. (Raytek Communications), 2015 ONCA 516

[Juriansz, MacFarland and Lauwers JJ.A.]

Counsel:

J. Curry and B. Kolenda, for the appellant

S. Schneiderman, for the respondents

Keywords: Torts, Fraud, Tracing, Constructive Trust, Knowing Receipt, Unjust Enrichment, Change in Position, Standard of Review, Palpable and Overriding Error, Housen v. Nikolaisen

Facts:

Healthy Body Services Inc. (“HBS”) appealed from the dismissal of its action in which it sought to recover monies of which it was defrauded. It sought to recover those monies from the fraudster, Patel, as well as from an earlier victim of Patel, 1261679 Ontario Ltd. (“Raytek”), and from Mr. Ramsawak, a Raytek shareholder/director. Patel pleaded guilty to stealing C$670,000 from Raytek. Patel was deported prior to trial and Raytek was no longer in operation.

Pursuant to an arrangement made on his sentencing, Patel made restitutionary payments to Raytek. On October 6, 2008, Mr. Ramsawak, was advised that the restitutionary funds received from Patel had been fraudulently obtained and that no more funds would be forthcoming. The next day, Mr. Ramsawak caused Raytek to pay $40,000 to the CRA towards its outstanding tax liability. In its action, HBS claimed Patel made the restitutionary payments with funds he stole from it.

The trial judge found that the money that Patel stole from HBS could not be traced to the money received by Raytek. In a continued analysis that presumed the funds could be traced, she found that Raytek and Mr. Ramsawak were not in “knowing receipt” of the funds, and that Mr. Ramsawak was not unjustly enriched because there was a juristic reason for any enrichment.  She therefore dismissed HBS’ claim.

On appeal, the appellant limited its claim to two payments of C$150,000 and C$40,000.

Issues:

  1. Did the trial judge err by excluding Patel’s statements?
  2. Did the trial judge err regarding the $150,000 payment?
  3. Did the trial judge err regarding the $40,000 payment?

Holding: The appeal is dismissed with costs fixed in the amount of $25,000 as agreed by counsel, Lauwers J.A. dissenting.

Reasoning of the Majority (Juriansz J.A. and MacFarland J.A.)

  1. Did the trial judge err by excluding Patel statements?

Patel was not available at trial because he had been deported. HBS submited the trial judge erred by excluding Patel’s statements that he used HBS’ money to make the restitutionary payments to Raytek.

The trial judge considered whether Patel’s statements were made against interest and carefully reviewed all the circumstances in which they were made. She noted Patel’s abundant dishonest and contradictory evidence. The Court concluded that the trial judge had not erred by admitting only Patel’s guilty pleas and nothing more.

  1. Did the trial judge err regarding the $150,000 payment?

The appellant submitted that the trial judge made a palpable error and overriding error  in failing to infer that the restitutionary payment of C$150,000 had come from funds stolen by HBS. In doing so, it relied on the approach put forward by Bastarache J. in dissent in Housen v. Nikolaisen.

In reviewing the making of an inference, the appeal court will verify whether it can reasonably be supported by the findings of fact that the trial judge reached and whether the judge proceeded on proper legal principles.

The Court cited the majority in Housen regarding two criticisms of the dissent’s approach. First, the standard of review is not whether an inference can be “reasonably supported” but whether the trial judge made a palpable and overriding error in coming to a factual conclusion. Second, the majority stated:

Although we agree that it is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, we would add the caution that where evidence exists to support this inference, an appellate court will be hard pressed to find a palpable and overriding error…Thus, where evidence exists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence.

The Court stated there was no evidence connecting the ICICI bank paid in restitution and Patel’s ICICI account, into which he deposited the forged HBS cheque for US$175,198.13. The bank statement of his account showed a withdrawal for US$165,000, but did not show what happened to it. There was no evidence of how Patel paid for the bank draft. The amounts of the withdrawal and the bank draft do not match, though the withdrawal is sufficient to cover the bank draft. Different inferences may reasonably be drawn from these facts. The trial judge could reasonably decline to make the inference the C$150,000 came from HBS’s funds.

  1. Did the trial judge err regarding the $40,000 payment?

The direct evidence showed that stolen HBS funds could be traced into Patel’s bank account where it was mixed with other funds. The Court accepted HBS’ argument that trust funds may be traced into mixed accounts. Nevertheless, the Court still found it unnecessary to address HBS’ arguments about “knowing receipt” and about unjust enrichment in relation to the C$40,000. Assuming the $40,000 were traced into Raytek’s account, there was no basis for finding liability on the part of Mr. Ramsawak personally. At the time Raytek paid out those funds towards its own tax indebtedness, Mr. Ramsawak was not liable for that indebtedness.

Reasoning of Lauwers J.A., Dissenting

  1. Did the trial judge err regarding the $150,000 payment?

Tracing

The trial judge erred by stating that it is impermissible to trace funds into a mixed account. The Supreme Court made it clear in BMP Global Distribution Inc. v. Bank of Nova Scotia that mixing of funds is not a bar to recovery if it is possible to identify the funds, as it was in this case.

Lauwers J.A. found the trial judge had made three other errors regarding tracing. First, the trial judge took the evidence on cross-examination of the appellant’s expert witness out of context. He had answered honestly about not knowing with certainty the source of funds for the $150,000 payment, but that does not undermine the expert tracing evidence he put forward. Second, she imposed a higher standard of proof on the appellant than the civil standard of the balance of probabilities. By relying so heavily on a small snippet of the expert’s cross-examination, she effectively imposed on the appellant the requirement of certainty. Third, she took into account information that was not evidence. For example, the existence of Patel’s secret fund. The existence of this fund and its accessibility to Patel was a matter of speculation. There was no evidence that such a fund exists, only a surmise based on the fact that so little of the money he stole was actually recovered. This was not sufficient to clothe the fund with status as actual countervailing evidence.

Lauwers J.A. found that the appellant had proved on a balance of probabilities, through conventional expert tracing evidence, that the $150,000 paid by Patel came from funds stolen from HBS. There was no evidence to the contrary.

Knowing Receipt

Pursuant to the decisions in Holmes v. Amlez International Inc. and Citadel General Assurance Co. v. Lloyds Bank Canada, the first element of knowing receipt is that “strangers to the trust receive or apply trust property for their own use and benefit.”

When Mr. Ramsawak got the money in April, and used it to pay down his personal debt in May, he did not know that the money was tainted. But when he made the payments to CRA in October, he was fully aware that it was tainted. Therefore, the knowledge requirement of knowing receipt was clearly made out.

The second element of knowing receipt is knowledge, by the defendant, of facts that would have put a reasonable person on notice or inquiry as to the source of the funds. When Raytek paid its CRA debt, Mr. Ramsawak was aware that the $150,000 was obtained by fraud. Therefore, the ‘use and benefit’ element of knowing receipt was met. This had nothing to do with his wife’s liability on the joint line of credit.

Unjust Enrichment

Garland v. Consumers’ Gas Co., set out a three-part test for unjust enrichment, which was made out in the present case. First, Mr. Ramsawak and Raytek were enriched by reducing Raytek’s debt to CRA, which Mr. Ramsawak admitted also reduced his personal exposure. Second, this enrichment corresponds with an equivalent deprivation to HBS, from whom the $150,000 was stolen. Third, and finally, there can be no juristic reason for the enrichment, since Mr. Ramsawak was fully aware that the $150,000 he received was obtained by fraud at the time he paid it to CRA.

Change in Position

Lauwers J.A. relied on Mitchell McInnes’, The Canadian Law of Unjust Enrichment and Restitution which stated that the defence of change of position does not apply where the funds are used to defray debt. Mr. Ramsawak cannot claim to be an innocent party acting in good faith in paying down the CRA debt when he knew the money he used to do so was stolen. Further, the debt to CRA would have been due regardless of his receipt of the $150,000 from Mr. Patel; his position was not meaningfully changed by his receipt of the stolen funds.

  1. Did the trial judge err regarding the $40,000 payment?

Tracing

Again relying on BMP Global Distribution, Lauwers J.A. felt that the tracing evidence proved the $40,000 restitutionary payment was stolen from HBS and was used by Mr. Ramsawak to pay down Raytek’s tax liabilities.

Knowing Receipt

The first element of knowing receipt was made out with respect to the $40,000. Since that money was obtained by fraud, a constructive trust was imposed. Although the trial judge assumed the $40,000 constituted trust funds, she found that Mr. Ramsawak did not apply them for his own use and benefit. However, Mr. Ramsawak testified that in reducing Raytek’s indebtedness, he was also reducing his personal exposure.

Regarding the second element, the trial judge stated that Mr. Ramsawak did not have constructive knowledge of any facts that would have put a reasonable person on notice or inquiry prior to October 6, 2008. But subsequently there was evidence that Mr. Ramsawak did in fact have constructive knowledge. On cross examination, Mr. Ramsawak plainly admitted knowing by October 6, the day before he caused the funds to be paid to CRA, that the restitutionary money paid to him were the proceeds of a fraud. Lauwers J.A. found that the trial judge had made a palpable and overriding error in this regard.

Unjust Enrichment

First, Raytek was enriched by that sum, which it expended for its own purposes. Second, HBS was correspondingly deprived. Third, once Mr. Ramsawak, Raytek’s directing mind, was told by Mr. Title that the money was tainted by fraud, any juristic reason for Raytek’s enrichment instantly vanished. The finding of the trial judge that the factors she listed combined to constitute a valid juristic reason, was simply wrong in law. Mr. Ramsawak knew the money belonged to someone else, making him a constructive trustee over it.

Change in Position

Mr. Ramsawak’s claim to have acted in good faith evaporates once he is found to be in knowing receipt. Neither Raytek nor Mr. Ramsawak could escape their obligation, as constructive trustees in knowing receipt, to repay the $40,000 by which they were unjustly enriched to the appellant.

Lauwers J.A. would have granted judgment to the appellant in the amount of $190,000 plus interest and costs.

St. Lewis v. Rancourt, 2015 ONCA 513

[Hoy A.C.J.O., Sharpe and Benotto JJ.A.]

Counsel: Denis Rancourt, acting in person R. G. Dearden and A. Semenova, for the respondent

Keywords: Defamation, Libel and Slander Act, Blogging, Fair Comment, Limitation Period, Injunction, Astley v. Verdun test, Reasonable Apprehension of Bias

Facts: The appellant was a tenured professor at the University of Ottawa. In a personal blog post, he referred to the respondent, another professor at the university, as the “house negro” of the university president. The respondent sued for defamation. On the second day of trial, the appellant indicated that he would not participate in the trial any further.  Consequently, he did not call any evidence in his defence.  He left the trial and only returned to hear the jury verdict.  The jury found that the impugned blog posts were defamatory and that there was actual malice on the part of the appellant. The jury awarded general damages of $100,000 and aggravated damages of $250,000. The trial judge endorsed the verdict and ordered substantial indemnity costs of $444,895, all inclusive, against the appellant. The appellant subsequently appealed and argues a new trial should be ordered.

Issues:

  1. Did the trial judge err in failing to instruct the jury about “fair comment”;
  2. Did the trial judge err by not considering that the respondent’s claim was statute barred;
  3. Did the trial judge err by not instructing the jury to watch a video of Malcolm X speaking, which was embedded in the first impugned blog post;
  4. Did the trial judge err in granting the injunction and costs;
  5. Did the trial judge’s finding of defamation violate the appellant’s right to freedom of expression? and
  6. Was there a reasonable apprehension of bias on the part of the trial judge?

Holding:  Appeal dismissed with costs payable to the respondent in the amount of $30,000, inclusive of disbursements and HST.

Reasoning:  The trial judge did not err in any of these respects.

  1. The appellant did not call evidence. Without evidence, he could not establish the five criteria required to prove the defence of fair comment, which are that the impugned statement was (a) a comment and not a statement of fact; (b) based upon true facts; (c) on a matter of public interest; (d) able to satisfy an objective test of fairness; and (e) made without malice.
  2. The appellant had the burden of proof to establish that the blog posts falls within the limitation period for libel as defined under the Libel and Slander Act, R.S.O. 1990, C. L.12.  The appellant did not call any evidence to establish this.
  3. The full transcript of the video was put before the jury by one of the respondent’s expert witnesses. The expert witness testified about the video but was not cross-examined because the appellant was not present.  The appellant did not request that the jury be told to watch the video. (4) Since the jury found there was liability grounded in malice, there is no reason to interfere with the trial judge’s discretion in connection with costs. The appellant was permitted to participate in the motion for the injunction.  The trial judge concluded that the respondent had demonstrated the need for a permanent injunction on either branch of the Astley v. Verdun test. That test is as follows: (1) there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is a real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible. Further, the injunction was broad and did not require the appellant to stop blogging altogether.  There is authority for the injunction as there has been a campaign of defamation and a likelihood that it will continue.
  4. The appellant has led no evidence that the respondent’s legal proceeding is a government action that would engage the Charter of Rights and Freedoms. The appellant has failed to bring himself within any Charter-based defence.  The appellant has not attempt to prove that his right to freedom of expression should, at law, overcome the respondent’s right to protect her reputation.
  5. There is a heavy burden on a party who seeks to rebut the presumption of judicial impartiality.  There is nothing on the record from the appellant that would satisfy that burden.

Roberts v. Miller, 2015 ONCA 500

[Laskin, Feldman and Simmons JJ.A.]

Counsel:

C. Roberts and H. E. Vukotic, for the appellant

R. A. Wellenreiter, for the respondent

Keywords: Family Law, Adjournments, Discretion, When Appellate Intervention Appropriate

Facts:

The parties are former common law spouses. In 2012, the father moved to reduce the child support and eliminate the spousal support payable under the 2006 order. In a financial statement filed on the motion to change, the father revealed that he had received a significant pension payout when he lost his job earlier that year. In the mother’s initial response, she asked that the motion be dismissed. Later, she filed an amended response asking that income be imputed to the father and custody arrangements changed. In September 2013, the father brought a motion to enforce an alleged settlement of the motion to change. In November 2013, the parties consented to an order permitting the mother to amend her response to the motion to change by adding a claim for a constructive trust over the father’s assets acquired during cohabitation. The order also permitted questioning and the filing of updated facta, with both steps to be completed by December 31, 2013.

When the matter was called for hearing on January 14, 2014, the mother’s counsel asked for an adjournment because the contemplated questioning had not been conducted and updated facta had not been filed, through no fault of the mother or counsel. The motion judge refused the request, ruling that it was unnecessary to address the father’s motions, and that the mother’s motion could be bifurcated because the legal issue of whether the mother was entitled to pursue a constructive trust claim could be addressed without the need for questioning. Ultimately, the motion judge reduced the child and spousal support payable by the father and dismissed all other claims that were before her.

Issues: Did the motion judge err in failing to grant the requested adjournment?

Holding: Yes. Appeal allowed.

Reasoning:

The decision to grant an adjournment is highly discretionary.  However, where a presiding judge fails to take account of relevant considerations in balancing the interests of the applicant, the respondent and of the administration of justice in the orderly processing of cases on their merits, a trial judge may exercise that discretion unreasonably and in a manner the justifies appellate intervention per Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.).

The judge erred in failing to grant an adjournment because she jumped to the erroneous conclusion that questioning and updated facta were unnecessary to permit a proper consideration of the issues she identified could proceed, and she did so without allowing the mother’s counsel to make full submissions on the question of whether the motions could proceed without questioning. The motion judge found no evidentiary basis to support her conclusion because the mother had been deprived of the opportunity to establish this evidentiary basis. The trial judge also deprived the mother unfairly of the opportunity to complete questioning that had been previously ordered, and denied the mother the ability to make proper submissions on issues that posed significant complexity. For these reasons, the Court of Appeal concluded that the motion judge denied the mother a fair hearing in failing to grant her adjournment request.

Bazargani v. Mizael, 2015 ONCA 517

[Doherty, Pepall and Huscroft JJ.A.]

Counsel:

S. Sarbazevatan, for the appellant.

J. S. Marks, for the respondent

Keywords: Family Law, Wrongful Retention of Child, Hague Convention on the Civil Aspects of International Child Abduction, Articles 12 and 13

Facts:

The parties were married and lived in Australia. Their child was born on August 17, 2010. The appellant was experiencing stress and expressed that she desired to travel to her parents’ home in Toronto to convalesce. The respondent agreed that their child would travel with her. The appellant and the child left Australia on August 27, 2012. The appellant’s actions did not indicate a settled intention to move permanently. The respondent also never abandoned his parental rights and continued to support the appellant financially.

Approximately eight months after she left Australia, the appellant sent a custody agreement, which had been drafted by an Australian lawyer, to a friend in Australia. The agreement provided that the appellant would enjoy sole custody of the child and would also have the unrestricted right to choose the child’s residence. The agreement made no mention of access, separation, or divorce. The appellant asked her friend to arrange for the respondent to sign the agreement and to encourage him not to consult with a lawyer. She wrote: “[D]on’t let him know why you are meeting with him in advance so that he just signs the document.”

Without obtaining any legal advice, the respondent signed the agreement. As found by the application judge, the respondent believed that signing the agreement would speed the return of the child to Australia.

In September 2013, when the respondent realized that the appellant was not going to bring the child back to Australia, the respondent demanded the child’s return. The appellant refused and in October 2013, she brought an application for divorce in the Superior Court. The respondent responded with a Hague Convention application in Australia followed by one in the Superior Court in June 2013.

The application judge found that the child had been wrongfully retained in Toronto by her mother since the Fall of 2013 when the respondent demanded the child’s return to Australia and the appellant refused. He did not accept the appellant’s submission that the respondent had abandoned his rights to custody or had consented to the child’s retention by the appellant when he signed the custody agreement.  The application judge ordered that the parties’ four year old child be returned to Australia. The child was to reside with the appellant but be in the parties’ joint custody pending further order of an Australian court. The mother appealed this order.

Issues:

  1. Did the application judge err in concluding that the respondent had not consented or acquiesced to the child remaining in Canada as described in Article 13(a) of the Hague Convention?
  2. Was the application judge correct in not considering the “grave risk” of harm defence in Article 13(b) of the Hague Convention?
  3. Was the application judge correct in not considering the “settled in environment” defence in Article 12 of the Hague Convention?

Holding: The appeal is dismissed.

Paragraph 11 of the March 19, 2015 order of the application judge is varied to substitute the expiry date of July 16, 2015 with Monday, August 17, 2015.

Reasoning:

  1. No, the application judge did not err in concluding that the respondent had not consented or acquiesced to the child remaining in Canada as described in Article 13(a) of the Hague Convention. There was ample evidence to support the application judge’s conclusion that the custody agreement did not constitute consent. Before the respondent signed the custody agreement, the respondent did not know that the appellant planned to separate, divorce, or keep their child in Canada. Further, the circumstances surrounding the execution of the custody agreement, such as the conversation with the appellant’s friend, support the absence of consent.
  2. Yes, the application judge was correct in not considering the “grave risk” of harm defence in Article 13(b) of the Hague Convention. The application judge noted in his reasons that the appellant did not raise any defences that may arise under the Hague Convention, but that even if she did, the facts did not support the application of any of the defences in this case. The threshold under Article 13(b) is high. The evidence given before the application judge was not sufficient to meet this threshold as there was a lack of evidence in some areas and conflicting evidence in others. As decided by the application judge, the issues of custody and access would be properly addressed in Australia.
  3. Yes, the application judge was correct in not considering the “settled in environment” defence in Article 12 of the Hague Convention. The “settled in environment” defence in Article 12 was unavailable to the appellant because the respondent brought his application within one year of the child’s wrongful retention.

Short Endorsements:

Bomberry v. Coseco Insurance Company, 2015 ONCA 501

[Doherty, Lauwers and Huscroft JJ.A.]

Counsel:

Oostdyk, for the plaintiff (appellant)

No one appearing for the defendant (respondent)

Keywords: Endorsement, Costs

Foley (Re), 2015 ONCA 507

[Doherty, Juriansz and Huscroft JJ.A.]

Counsel:

M. Sidlofsky and B. Donovan, for the appellant

L. Evans, for the respondent

Keywords: Costs Endorsement

Proulx v. Canadian Cove Inc., 2015 ONCA 509

[Hoy A.C.J.O., Sharpe and Benotto JJ.A.]

Counsel:

James Parker Earle a.k.a. Jim Earle, appearing in person

Champagne and J. Paquette, for the plaintiff (respondent) François Proulx

Keywords: Endoresment, Appeal Withdrawn, Costs

Sirdi Sai Sweets Inc. v. Indian Spice & Curry Ltd., 2015 ONCA 502

[Doherty, Pepall and Huscroft JJ.A.]

Counsel:

Ramesh Mehta, appearing in person

Title, for the respondents, Indian Spice and Curry Ltd. and Rakesh Uppal

Keywords: Endorsement, Guarantees, Tampering with Documents, Exclusivity Provision, Lease

Smith v. Loblaw Companies Limited (Real Canadian Superstore), 2015 ONCA 504

[Doherty, Pepall and Huscroft JJ.A.]

Counsel:

J. Fife and M. A. Cameron, for the defendant (appellant)

Dallal and L. Parsons, for the plaintiff (respondent) Makenzie Smith

Keywords: Endorsement, Duty of Care, Causation, Reasonableness of Jury Verdict, Costs

Bui v. Tran, 2015 ONCA 511

[Hoy, Sharpe and Benotto JJ.A.]

Counsel:

Bui Dinh Thinh, Metrasse Monique, Bui Metrasse Alexander and SCP Metrasse, Bui and Associés in person

C. Yehia, for the respondents

Keywords: Endorsement

1793670 Ontario Ltd. v. Chan, 2015 ONCA 522

[Doherty, Pepall and Huscroft JJ.A.]

Counsel:

J. M. Butson, for the plaintiff and responding party (appellant)

O. N. Niedzviecki, for the defendant and moving party (respondent)

Keywords: Endorsement, Appeal, Interlocutory Order

Glasford v. Canadian Imperial Bank of Commerce, 2015 ONCA 523

[Doherty, Pepall and Huscroft JJ.A.]

Counsel:

K. O. Glasford (n/k/a K. O. Vinton), appearing in person

B. Shaw, appearing for the respondents (defendants) CIBC and FirstCaribbean International Bank (Barbados) Limited

Keywords: Endorsement, Torts, Fraudulent Misrepresentation, Jurisdiction

Criminal Cases:

R. v. Ohenhen, 2015 ONCA 506

[Watt, Brown and Roberts JJ.A.]

Counsel:

Moustacalis, for the appellant

Papadopoulos, for the respondent

Keywords: Criminal Law, Endorsement, Evidence, Voir Dire, Credibility Assessment, Canadian Charter of Rights and Freedoms, ss. 8,9,10 and 24(2)

R. v. McIlmoyle, 2015 ONCA 505

[Watt, Brown and Roberts JJ.A.]

Counsel:

Halfyard and B.Vandebeek, for the appellant

Siebenmorgen, for the respondent

Keywords: Criminal Law, Endorsement, Mischief, Lawful Operation of Motor Vehicle, Criminal Code, s. 217, Sentencing, Custodial Term, Sexual Exploitation

R. v. Andrade, 2015 ONCA 499

[Juriansz, Rouleau and Hourigan JJ.A.]

Counsel:

Di Luca, for the appellant

Au, for the respondent

Keywords: Criminal Law, Possession of an Imitation Weapon, Criminal Code, s. 85(2), S. 88(1) Specific Intent Offence, Predicate Offense, Indictable Offense, Scrutiny of Evidence

R. v. Hartman, 2015 ONCA 498

[Doherty, Cronk and LaForme JJ.A.]

Counsel:

Robitaille, for the appellant

Bartlett-Hughes, for the respondent

Keywords: Criminal Law, Sexual Assault, Imprisonment, Admissibility of Evidence, Order for Appeal from Conviction, New Trial

R. v. White, 2015 ONCA 508

[Simmons, Brown and Huscroft JJ.A.]

Counsel:

E. Taman. and J. Marshall, for the appellant

A. Burgess, for the respondent

Keywords: Criminal Law, Reasonable Expectation of Privacy, Common Areas, Charter of Rights and Freedoms, ss. 8 and 24(2), Possession for the Purpose of Trafficking, Investigation, R. v. Edwards [1996] 1 S.C.R. 128, Trespass to Property Act

R. v. Degraw, 2015 ONCA 515

[Strathy C.J.O., MacPherson and Benotto JJ.A.]

Counsel:

G. Gross-Stein, for the appellant

J. K. Stuart, for the respondent

Keywords: Criminal Law, Endorsement, Identification Evidence, R. v. Lincoln 2012 ONCA 542, Presumption of Possession of Items in Car

R. v. Menard, 2015 ONCA 512

[Hoy, Sharpe and Benotto JJ.A.]

Counsel:

E. Menard, in person

R. Silverstein, duty counsel

M. Kelly, for the respondent

Keywords: Criminal Law, Criminal Code, s. 732.1(3)(h), Motor Vehicle Accident, Dangerous Driving, Requisite Mens Rea, R. v. Beatty 2008 CSC 5,  Condition of Banishment

R. v. Provencher, 2015 ONCA 510

[Hoy, Blair, Benotto JJ.A.]

Counsel:

N. St-Pierre, for the appellant

K. Kelly and G. Choi, for the respondent

Keywords: Criminal Law, Sexual Assault, Violation of Probation, Reasonable Apprehension of Bias, Presumption of Innocence, Similar Fact Evidence

R. v. Laine, 2015 ONCA 519

[Laskin, MacFarland and Rouleau JJ.A.]

Counsel:

J. Di Luca and E. Dann, for the appellant

G. Skerkowski, for the respondent

Keywords: Criminal Law, Criminal Negligence Causing Death, Criminal Negligence Causing Bodily Harm, Conviction, Sentencing, Evidence, Standard of Scrutiny, Re-Open Trial, Unreasonable Verdict

R. v. Marshall, 2015 ONCA 518

[Strathy C.J.O., MacPherson and Benotto JJ.A.]

Counsel:

A. D. Gold and M. Webb, for the appellant

D. Finley, for the respondent

Keywords: Criminal Law, Endorsement, Sexual Assault, Imprisonment, R. v. Palmer, [1980] 1 S.C.R. 759, Fresh Evidence, R. v. W. (D.) Analysis

R. v. Adu, 2015 ONCA 525

[Weiler, Tulloch and van Rensburg JJ.A.]

Counsel:

N. Jamaldinand P. Genua, for the appellant

A. Rubaszek, for the respondent

Keywords: Criminal Law, Endorsement, Sexual Assault, Conviction Appealed, Credibility of Complainant, Evidence of Complainant, R. v. Rhayel, [2015] O.J. No. 2675

R. v. Perkins, 2015 ONCA 521

[Strathy C.J.O., MacPherson and Benotto JJ.A.]

Counsel:

D. Derstine and A. Herscovitch, for the appellant

C. Bartlett-Hughes, for the respondent

Keywords: Criminal Law, Endorsement, Sexual Assault, Voyeurism, Breach of Probation, Misapprehension of Evidence, “Stringent Standard”:  R. v. Bains, 2012 ONCA 305, Sentencing

R. v. Peters, 2015 ONCA 529

[Strathy C.J.O., MacPherson and Benotto JJ.A.]

Counsel:

R. C. Sheppard, for the appellant

M. Perlin, for the respondent

Keywords: Criminal Law, Endorsement, Criminal Code s. 21(2), Assault, Assault with a Weapon, Breach of Recognizance

R. v. Y.M., 2015 ONCA 528

[Hoy A.C.J.O., Weiler and Benotto JJ.A.]

Counsel:

A. L. Chiodo, for the appellant

H. Freeman, for the respondent

Keywords: Criminal Law, Endorsement, Robbery, Weapons Dangerous, Possession of Stolen Property, Unreasonable Verdict, Kienapple Principle