Hello everyone. Below are the summaries of this week’s Ontario Court of Appeal decisions.  Topics covered include the duty to defend in insurance law; custody; summary judgment; section 7 of the Charter and the Building Code Act; and contractor fraud/theft charges in a home renovation case.    

Please feel free to share this blog with anyone whom you think would be interested. As always, we welcome your comments and feedback.

Lea Nebel

Blaney McMurtry LLP

lnebel@blaney.com

Tel: 416. 593.3914

http://www.blaney.com/lawyers/lea-nebel

Unifund Assurance Company v. D.E., 2015 ONCA 423

[MacPherson, Cronk and Gillese JJ.A.]

Counsel:

M. O’Donnell and M. Barrett, for the appellant.

V. Msi, for the respondents.

Keywords: Insurance Law, Insurance Policy Interpretation, Duty to Defend, Duty to Indemnify, Exclusion Clauses, Contra Proferentem

Facts:

The respondents, D.E. and L.E., have a homeowners’ insurance policy with Unifund Assurance Company (“Unifund”), which includes liability coverage if their personal actions cause unintentional bodily injury or property damage. D.E. and L.E. are defendants in a lawsuit where the anchor claim is that their daughter bullied a fellow student, resulting in physical and psychological injuries. The claim against D.E. and L.E. sounds in negligence: failure to control their daughter.

Unifund refused to defend and indemnify them in the underlying lawsuit, relying on two exclusion clauses in the insurance policy. D.E. and L.E. brought a successful application for  a declaration that Unifund had a duty to defend and duty to indemnify.  Unifund appeals the application judge’s decision.

Issues:  Can Unifund rely on the exclusion clauses in the insurance policy to preclude their duty to defend and indemnify D.E. and L.E. in the underlying action?

Held: Appeal allowed. The exclusion clauses preclude the duty to defend and duty to indemnify. Unifund is entitled to costs of the appeal.

Reasoning:

  • The Court applied the three-part test for interpreting insurance policies in the context of the duty to defend and duty to indemnify, as established in Non-Marine Underwriter, Lloyd’s of London v Scalera, 2000 SCC 24. First, a court should determine which of the plaintiff’s legal allegations are properly pleaded. Second, the court should determine if any claims are entirely derivative. Finally, the court must decide whether any of the properly pleaded, non-derivative claims could potentially trigger the insurer’s duty to defend.
  • At the first and second steps, the plaintiff’s claims are properly pleaded, and are not derivative of the intentional tort claim against the respondents’ daughter.
  • Finally, the non-derivative claims do not trigger the duty to defend, as a result of the exclusion clauses. Contrary to the application judge, the Court of Appeal found that the exclusion clauses were clearly worded, and rejected the application judge’s reliance on the contra proferentem The negligence alleged against the respondents in the Statement of Claim falls within the wording of the exclusion clauses.

C.S. v. TD Home and Auto Insurance Company, 2015 ONCA 424

 [MacPherson, Cronk and Gillese  JJ.A.]

Counsel:

M. D. Isaacs and C. A. Grant for the appellants

E. Mehrabi for the respondents

Keywords: Civil litigation; Insurance defence and indemnification; Minors; Verbal threats; Physical abuse

Facts:  This is a companion appeal to Unifund Assurance Company v D.E. and L.E., also released today, in which the Court of Appeal set aside the order of the application judge and held that the appellant insurance company did not have a duty to defend and indemnify the respondent parents in the underlying action which related to alleged bullying and harassment by several defendants’ minor daughters.  The principal parties (parents), underlying actions and relevant insurance policies in both cases are identical. In the case at bar, the application judge adopted the reasons at first instance in Unifund and held that TD Home and Auto Insurance Company (“TD Home”) had a duty to defend and indemnify the parents, C.S. and J.G., in the underlying action.

Issues:

  1. Can TD Home rely on the exclusion clauses in the insurance policy to preclude their duty to defend and indemnify C.S. and J.G. in the underlying action?
  2. If yes, what happens to the respondents’ minor daughter, M.G., who is a party to the underlying action?
  3. What is the correct award of costs?

Holding: TD  does not have a duty to defend or indemnify C.S., J.G. and M.G. in the underlying action. On consent of the parties, application costs are fixed at $11,300  and appeal costs at $10,500, both payable to the appellant.

Reasoning: 

  1. The application judge erred in his interpretation of the exclusion clause in the insurance policy.  The appellant does not have a duty to defend and indemnify the respondent parents in the underlying action.
  2. The style of cause before this Court and in the underlying action includes M.G. as a party. The application judge gave no consideration to the position of M.G. The minor daughter in Unifund was not a party. The underlying action claims that the three minor defendants, including M.G., verbally threatened and physically assaulted K.S. at school, in the community, and also verbally threatened her via telecommunications.  By parity of reasoning, exclusion 6(a) in the TD Home policy applies just as it did in Meadows v Meloche Monnex Insurance Brokers Inc., 2010 ONCA 394, and there is no duty to defend or indemnify M.G. in the underlying action.
  3. The application judge awarded the respondents costs of $13,000 “on consent”.  The parties all state that they agreed on $11,300 to the successful party. The appellant is also entitled to its costs of the appeal, fixed on consent at $10,500.

D.D. v. H.D., 2015 ONCA 409

 [Cronk, Gillese and Brown JJ.A.]

Counsel:

C. Murray and S. Wozny, for the appellant.

A. Fazari and A. Iler, for the respondent.

Keywords: Family Law, Custody, Interaction between Child Protection Proceedings and Custody Proceedings, Divorce Act, Children’s Best Interests, Domestic Violence, Child Support, Spousal Support, Evidence for Custody

Facts: The mother, H.D. (the “appellant”) and the father, D.D. (the “respondent) have two children. In June 2009, the Children’s Aid Society (“CAS”) became involved with the family due to concerns about domestic violence. Various incidents of violence occurred, resulting in multiple criminal charges against D.D. He later pled guilty to criminal harassment.

H.D. and D.D. reached an agreement on custody, access, and child and spousal support (the “Consent Order”). Subsequent incidents of domestic violence resulted in further criminal charges against D.D. The CAS recommended that D.D. exercise only supervised access, and later apprehended the children from H.D. because she was transient, appeared unstable, and was overwhelmed and homeless. The children were returned to H.D. after 4 days in CAS care.

After H.D. and the children were involved in a car accident en route to Alberta, D.D. brought a motion to vary the Consent Order, gain custody of the children, and end his child and spousal support obligations (the “Motion to Vary”). A hearing was held, where H.D. was ordered to return the children to Ontario and provide the children’s address. H.D. did not comply, and was later held in contempt of court.

When the Motion to Vary was returned, H.D. and her counsel were prohibited from participating or filing any materials. By orders dated July 31, 2013 and August 2, 2013 (the “Orders”), D.D. was given custody of the children; H.D. was given supervised access, subject to her providing D.D. with a satisfactory psychiatric report; D.D.’s child and spousal support obligations were terminated; and H.D. was ordered to pay D.D. child support based on imputed annual income of $20,000.

H.D. appealed to the Court of Appeal, and asked that the Orders be set aside and the Motion to Vary remitted for a new hearing before a different judge.

Issues:

  1. Did the motion judge err in giving the respondent custody without considering the children’s best interests and without affording the appellant procedural fairness?
  2. Did the motion judge err in making the appellant’s access to the children conditional on the respondent’s approval?
  3. Did the motions judge err in her determination of the child and spousal support issues?

Holding: Appeal allowed. The motion judge erred on all three determinations. Orders set aside. Motion to Vary to be heard anew before a different judge.

Reasoning: Custody is to be decided based only on the best interests of the children.

  1. A full evidentiary record, including evidence from both parents, is generally required in order to determine the child’s best interests (King v. Mongrain, 2009 ONCA 486). The motion judge awarded custody on an inadequate evidentiary basis. The evidence was solely that of the respondent. Moreover, the motion judge seems to have given no consideration to important factors such as the history of domestic violence and the father’s limited time spent with the children.
  2. In M.(C.A.) v. M.(D.) (2003), 67 O.R. (3d) 181 (C.A.), the Court emphasized that courts cannot delegate to a third party the power to determine access. The order purporting to give the appellant supervised access to the children only if she provides a psychiatric report satisfactory to the respondent was an improper delegation.
  3. No reasons were given for the orders made in regard to child and spousal support. Given the virtual absence of evidence and inquiry on those issues, the orders cannot stand.

Fritz Marketing Inc. v. Metz, 2015 ONCA 410

[Feldman, Hourigan and Pardu JJ.A.]

Counsel:

W. W. Sarasin, for the appellants

J. R. Smith, for the respondents

Keywords: Summary judgment, Rule 20, genuine issue, counterclaim

Facts: The appellant, Metz,  appealed from  an order granting summary judgment against him personally for amounts owing on invoices for bags supplied by the respondent to Mr. Metz’s two companies. He submitted that the motion judge erred by making findings of fact that determined liability based only on the motion record, which included cross-examinations on the affidavits filed, and without resorting to the powers under Rule 20 to order the trial of an issue or to hold a mini-trial on genuine issues for trial. The appellant submitted that there were two genuine issues that required a trial: 1) whether the appellant had agreed to be personally liable for the debts of his companies; and 2) whether he agreed that the monies paid for new purchases were to be credited first to an old debt of Ontario Bag Company Ltd., which he acknowledged a direct connection to on cross-examination.

Issues: Did the motion judge err in granting  summary judgment?

Holding: The appeal is dismissed, with costs fixed in the agreed amount of $19,000, inclusive of disbursements and HST.

Reasoning: The motion judge made no error either in the procedure he followed or in his conclusions based on the record. His reasons were amply supported by the evidence that the appellant agreed to be personally liable for the past and future debts of his companies. Moreover, the record was clear that the appellant understood that the outstanding Ontario Bag Company Ltd. debt was being paid down before the new invoices.

The Court also rejected the appellants’ argument that the motion judge had not disposed of their  counterclaim for damages arising from defective bags. Although the motion judge did not make final orders dismissing both the appellants’ counterclaim and the respondent’s claims, it was clear from his reasons that the summary judgement order would determine and deal with all issues raised by the parties.

R. v. Goebel, 2015 ONCA 411

[Weiler, Watt and Epstein JJ.A.]

Counsel:

K. J. Berger, for the appellant

D. Guttman, for the respondent Attorney General of Ontario

A. Ross, for the respondent City of Toronto

Keywords: The Canadian Charter of Rights and Freedoms, ss. 7, 15 and 2(b), Building Code Act, Provincial Offences Act, Jurisdiction, Advanced Funding, British Columbia (Minister of Forests) v. Okanagan Indian Band, Prerogative relief

Facts: 

The appellant is a man with a disability. He suffers from a serious mental illness. He owns and occupies a house on property in the City of Toronto. As a result of complaints relating to the maintenance of the appellant’s property, the City performed a number of inspections and made various compliance orders under the Business Code Act (“BCA”). The appellant failed to comply. Faced with continued non-compliance, the City charged the appellant under the Provincial Offences Act for failing to comply with the BCA and the appellant challenged the constitutional validity of the BCA. He argued that the BCA violates his security of the person under s. 7 of the Charter asthe enforcement of the BCA allows the City to seize his home. He also argued that the BCA discriminates against him contrary to s. 15 of the Charter, and curtails his freedom of expression contrary to s. 2(b) of the Charter. However, the crux of his argument rests with s. 7 of the Charter.

The appellant submitted that, without government funding, he does not have the financial wherewithal to defend the charge against him, that his constitutional challenge has merit, and that the issues his case raises are of public importance. He therefore argues that the criteria for advanced funding are met and the application judge erred in concluding otherwise.

Finally, the appellant seeks prerogative relief in  light of what he characterizes as the City’s manifestly unfair and oppressive prosecution of him.

Issues: 

  1. Is the order under appeal  interlocutory?
  2. Does the appellant meet the criteria for advanced funding?
  3. Is the appellant entitled to prerogative relief?

Holding:

Appeal dismissed.

Reasoning: 

  1. Unresolved. Having considered the submissions, the panel decided that, given the state of this record, it is preferable to leave the issue of jurisdiction to another day.
  2. No. The appellant did not satisfy the three-part test set out for advanced funding in British Columbia (Minister of Forests) v. Okanagan Indian Band. Namely, pursuant to part two of the test, the appellant did not show that his claim has sufficient merit since the appellant’s primary challenge is premised on the argument that the BCA gives the City the right to take his shelter, and section 7 of the Charter has not been interpreted to protect a right to property. Second, the appellant’s assertion that the operation of the BCA puts his interest in his property in jeopardy is factually incorrect. There is no provision in either statute that would allow the City to deprive the appellant of his shelter. Finally, due to the statutory framework designed to further the City’s objectives to keep property maintained to certain minimum standards, the appellant’s constitutional challenge to the BCA cannot succeed. Specifically, the impugned legislation, the BCA, does not operate so as to deprive the appellant of any Charter-protected interests.
  3. No. The prerogative relief request is also devoid of merit. The City has, within the context of the avenues available to it, dealt with the appellant fairly and reasonably by attempting to assist him, where possible.

Orr v Metropolitan Toronto Condominium Corporation No. 1056, 2015 ONCA 407

[Feldman, Tulloch and Lauwers JJ.A.]

Counsel:

G. D. E. Adair, Q.C. for appellant Orr

B. A. Percival, Q.C. and T. B. Rotenberg for respondent Metropolitan Toronto Condominium Corporation No. 1056,and  respondents Ward, Boland and Dorman

R. J. Clayton, for respondent Brookfield LePage Residential Management Services, and respondents Post and Cawthorn

D. Gadsden, J. B. Casey, and M. Saunders, for respondent Gowling, Strathy & Henderson

T. W. Arndt for third party respondent and appellant Weldon

Keywords: Implementation of an Appeal Decision; Costs; Valuation; Prejudgment and Post Judgment interest; Sanderson order; References

Facts:  This decision addresses (1) the implementation of a previous decision released by this court on December 2, 2014 and (2) the costs related to same.

Issues:

  1. How should the decision be implemented (e.g.valuation of a two-story townhouse; prejudgment and post judgment interest; changes to trial judge’s order referring some matters to references by a Master)?
  2. Which party should pay which appeal and trial costs, and in what amounts?

Holding:

  1. The valuation difference between a two-story and three-storey townhouse should be determined by way of the trial of an issue before the trial judge. The Plaintiff is not entitled to prejudgment interest on damages relating to the valuation of the unit. Prejudgment interest on the damages for common element repairs ends on Aug. 18, 2011.  The appellant is not awarded interest on close-up costs. References are no longer necessary.
  2. Costs are awarded as follows. Appeal costs: MTCC 1056 and Gowlings will each pay $44,170.81 to the appellant and also $11,325.62 to Brookfield; Gowlings will pay $42,490.60 to MTCC 1056; appellant will pay $22,651.25 to Brookfield. Trial costs: MTCC 1056 and Gowlings will each pay $150,000 to the appellant and also $50,000 to Brookfield; appellant will pay $100,000 to Brookfield.

Reasoning: 

  1. The plaintiff is not entitled to prejudgment interest on the townhouse valuation because it is to be calculated in the manner set out by the trial judge, per para. 148 of the appeal reasons. The plaintiff is fully compensated because the valuation date was moved from the date of closing in 1998 to the date of the decision in 2014. The plaintiff’s prejudgment interest on the damages for common element repairs ends on the date of the trial judge’s order awarding such damages. Interest on close up costs is not awarded because the appellant had no obligation to close up the third floor and was not awarded close-up costs.
  2. The appellant is responsible for only 50% of Brookfield’s appeal costs under a modified Sanderson order to mitigate the unfairness that would result from ordering the appellant to pay the entirety of Brookfield’s costs.  MTCC 1056 is responsible for one quarter of the costs because they were unsuccessful in defending against the appellant’s misrepresentation claim at appeal.  Certain issues relating to costs (e.g.whether some indemnification obligations extend to costs) should be remitted to the trial judge.

Meisels v. Lawyers Professional Indemnity Company, 2015 ONCA

[Weiler, Cronk and Pepall JJ.A.]

Counsel:

J. S. Cavanagh, for the appellant.

M. Simaan and A. Minkin, for the respondent.

Keywords: 

Facts:

The respondent, Meisels, is a lawyer licensed to practice law in Ontario. He is an undischarged bankrupt. He is being sued for professional negligence in a class action in Colorado. He brought an application pursuant to rule 14.05(3) of the Rules of Civil Procedure seeking a declaration that the appellant, his professional liability insurer, is required to indemnify him for all sums that he may be liable to pay, plus defence costs, in relation to the Colorado class action. The trustee in bankruptcy is not defending the class action on behalf of Meisels and did not oppose the application.

The appellant took the position that Meisels lacked the legal capacity to bring the application and brought a motion to strike his application pursuant to rule 21.01(3)(b). The motion judge dismissed the appellant’s motion and her order contained a declaration that the respondent “has status to bring the Application against LawPro.”

Issues:

  1. Is the motion judge’s order interlocutory or final?
  2. Did the motion judge err in holding that the respondent has the capacity to bring this application?

Holding:

The appeal is allowed and the motion judge’s decision is set aside. The respondent’s application is dismissed with costs below and in this court. By agreement of counsel, the costs of the appeal are fixed in the amount of $10,000, inclusive of disbursements and all applicable taxes.

Reasoning:

  1. The order is a final order and the appeal is properly before this court. The motion judge’s order contained a declaration that the respondent had a substantive right to bring the application. This declaration deprives the appellant of the substantive defence that the application is a nullity. That defence, if successful, would be determinative of the entire action. Thus, although the order does not finally dispose of the rights of the parties to the action, it disposes of a substantive right that is determinative of the entire action.
  2. Yes, the motion judge erred in holding that the respondent has the capacity to pursue the appeal. Section 71 of the Bankruptcy and Insolvency Act (BIA) provides that once a bankruptcy order is made, subject to the Act and the rights of secured creditors, the bankrupt’s property passes to the trustee named in the bankruptcy order. The bankrupt ceases to have any capacity to deal with his property and an action commenced by an undischarged bankrupt is a nullity. However, there is a common law exception to s. 71 of the BIA where the claim or loss is personal in nature rather than proprietary. The respondent’s claim against the appellant does not fit within this exception because it is not a personal claim as defined in the jurisprudence. His application for a declaration that the appellant must indemnify him under his insurance policy is a claim in breach of contract that is solely about money and vests in the trustee.

The right to claim an indemnity and to enforce this claim by bringing an action is the right of the trustee in bankruptcy, and this right belongs to the trustee whether the indemnity is payable directly to the insured bankrupt or to a third party. This is so because, even though the proceeds do not form part of the bankrupt’s estate, if the claim is successful, all the creditors of the bankrupt may benefit from the reduction of another creditor’s claim.

Additionally, similar to Re Adler, the right to bring an action to enforce the terms of the insurance policy do vest in the trustee and can be assigned by the trustee.

Vacca v. Golf North Properties Inc, 2015 ONCA 418

[Weiler, Cronk and Pepall JJ.A.]

Counsel:

V. Vacca, for the appellants

S. Adler, for the respondents

Keywords: Summary judgment, Rules 20, 21 and 25.06 Rules of Civil Procedure, purchase and sale, satisfied or waived, limitation period, s. 4 Real Property Limitations Act

Facts: The appeal involved two separate properties: one in Fergus and the other in Erin, Ontario. Regarding the Fergus property, the action arose with respect to the enforceability of a purchase and sale agreement. Absent prior written consent by both parties, the closing would not take place after September 30, 2006. The respondents moved for summary judgment and to strike the appellant’s claim under Rules 20, 21 and 25.06 of the Rules of Civil Procedure. The respondent argued that the agreement was null and void because the conditions in the agreement were not satisfied or waived before the last possible closing date.

The motion judge agreed and struck the appellant’s statement of claim and dismissed the action. She concluded that no viable cause of action had been demonstrated before her; the appellant had failed to provide any written evidence that the conditions under the agreement had been satisfied or waived. She also concluded that the appellant’s action was barred by the two-year limitation period.

Regarding the Erin property, the appellant’s action alleged claims for money due under a vendor take-back mortgage. In a prior action, Lemon J. of the Superior Court of Justice interpreted the terms of the disputed agreement in the respondent’s favour. The appellant and his daughter appealed but both appeals were dismissed. The appellant then commenced the  within action. The respondents moved to strike his statement of claim. The motion judge concluded that the appellant was seeking to relitigate the issues that were, or could have been, before Lemon J.

Issues:

  1. Did the motion judge err in concluding that no viable cause of action had been demonstrated?
  2. Did the motion judge err with respect to the application of the two-year limitation period?
  3. Did the motion judge err in concluding that the appellant was seeking to relitigate a decided action?

Holding: The appeal relating to the Fergus property is allowed. The appeal relating to the Erin property is dismissed.

Reasoning:

  1. The President of the respondent corporation filed an affidavit that made unqualified assertions that the conditions under the agreement “were never satisfied and were never waived” and that “there had never been an extension” of the closing date. However, the appellant directed the Court to documents that supported his claims of waiver and an agreed extension of the closing date. Thus, the critical assertions in the respondent’s affidavit were directly contradicted by the documents available to the Court. The record did not clearly establish what transpired before the motion judge. It is possible that the motion judge was misinformed about both matters. The Court concluded that it was not plain and obvious that the appellant’s statement of claim disclosed no reasonable cause of action. Nor was it clear that there is no genuine issue requiring a trial in respect of the Fergus property.
  2. With respect to the relevant limitation period, the Court stated that to the extent that the appellant’s action could be characterized as “an action to recover any land” the ten-year limitation period in s. 4 of the Real Property Limitations Act may apply.
  3. Regarding the Erin property, the Court stated that the allegations in the statement of claim were already resolved by Lemon J. or should have been raised before him. The motion judge had correctly struck out the appellant’s pleading and dismissed his action.

Golfnorth Properties Inc. v. 457351 Ontario Inc., 2015 ONCA 419

[Weiler, Cronk and Pepall JJ.A.]

Counsel:

V. Vacca, as agent for the appellant 457351 Ontario Inc.

S. Adler, for the respondent

Keywords: Endorsement, Mortgage Discharge

Facts: This appeal arises from the respondent’s application for an order discharging the $800,000 mortgage registered on the Erin property, which it brought against 457351 Ontario Inc. and Diana Vacca. In a prior proceeding, Lemon J. of the Superior Court of Justice interpreted the disputed agreement in the respondent’s favour. Under the interpretation Lemon J. adopted, the respondent could decline to pay an $800,000 mortgage, which was registered against title to the Erin property. If it did, the appellant had the option to repurchase the property from the respondent for $1.2 million. The respondent did decline to pay the mortgage but the appellant did not proceed to repurchase the property pursuant to its option. The respondent therefore applied to have the mortgage discharged.

Issues: Should the mortgage be discharged?

Holding: Appeal dismissed.  The court agreed with the motion judge that the mortgage should be discharged.

Reasoning: The motion judge noted that the terms of the parties’ agreement were clear. The motion judge concluded that the relief requested by the respondent should be granted as it logically flowed from the reasons of Lemon J.

The agreement expressly provided that if the transaction failed to close for any reason not directly attributable to the fault of the respondent, the mortgage was deemed to be satisfied in full.

The order for discharge of the mortgage flowed from Lemon J.’s resolution of the parties’ dispute and the appellant’s failure to repurchase the property for the purchase price of $1.2 million. On the findings of Lemon J., that failure did not arise from any fault of the respondent.

R. v. Singer, 2015 ONCA 415

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

Counsel:

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

S. G. Ficek, for the respondent.

Keywords: Endorsement, Criminal Law, Fraud Over $5000, Theft, R v Zlatic, Other Fraudulent Means, Overcharging, R v Lake, Expert Witness

Facts:

Mrs. Heath, a 76 year old woman at the time of these events in 2008, lived alone in a house she had owned for 30 years. She had a mental illness, and her financial advisor restricted her to withdrawing $1,000 per month. Mrs. Heath called the appellant after receiving his brochure for his home renovation business “Stay in Place Renovations”. Upon meeting the appellant, the complainant signed a contract for various items of renovation work. The contract price was $5,617.50. On August 15, she signed another contract for $122,010, for further renovation work. On September 12, she signed a third contract for $195,300. The contracts were all signed by the appellant. In total, Mrs. Heath paid out $301,000 to the appellant. She withdrew some of the money from her savings, and some from RRSPs and RRIFs, resulting in an income tax liability of almost $80,000.

After November 5, 2008, Mrs. Heath’s mental health began to deteriorate and she had a psychiatric admission to the hospital. She never returned to her home and moved to a nursing home. On November 19, 2008, the appellant left a note on her fridge saying that “because of your present health condition all work will be stopped on Nov. 20/08. Please call when your health improves.” At the time, none of the work had been completed, much of the work that was performed was deficient, and the house was uninhabitable. Despite attempts by Ms. Heath’s son to have the appellant do the contracted work, the appellant never did any more work and did not refund any of the money the appellant had paid.

The trial judge convicted the appellant of fraud over $5,000 because in comparison to industry standards, the appellant grossly overcharged the complainant for an amount between $85,000 and $200,000.  The trial judge was satisfied beyond a reasonable doubt the overcharge was dishonest conduct by the ordinary standards of reasonable and honest people.

The finding of guilt in relation to theft was based on the fact that after Mr. Heath spoke to the appellant he kept the money that the complainant had paid although he had terminated work on the house, leaving the house uninhabitable, when the complainant went into hospital.

Issues:

  1. Did the trial judge err by finding that overcharging amounted to fraud?
  2. Did the trial judge err by qualifying one of the Crown witnesses, Rudy Mulder, as an expert, despite his being an acquaintance of the complainant’s son?
  3. Did the trial judge err in finding the appellant guilty of theft in addition to fraud?

Holding:

The appeal is allowed to the extent of setting aside the finding of guilt in relation to the count of theft. In relation to the count of fraud, the appeal is dismissed and the conviction upheld.

Reasoning:

  1. No, the trial judge did not err in finding that overcharging amounted to fraud. The Supreme Court in R. v. Zlatic, [1993] 2 S.C.R. 29 observed that “other fraudulent means” is “conduct which reasonable and decent persons would consider dishonest and unscrupulous”. In this case, the appellant did more than overcharging the respondent. The appellant persuaded the respondent to enter into two further contracts for a total of $300,000 on a house with a market value in the mid $400,000 range. Further, the appellant knew he was taking advantage of the complainant.

While the trial judge did not quantify the exact amount of the overcharging in his reasons for conviction, he concluded that there was overcharging by at least $85,000. He was not required to specifically quantify the amount over $5,000 in finding the appellant guilty.

  1. No, the trial judge did not err in  permitting Mr. Mulder to testify as an expert witness. The trial judge conducted a voir dire into Mr. Mulder’s evidence. He properly considered the witness’ education and experience and limited the scope of his expert testimony. The question of whether Mr. Mulder was impartial and independent was not pursued by defence counsel at the voir dire or in argument at trial.
  2. Yes, the appellant should not have been found guilty for theft. In R. v. Lake, [1953] O.R. 1009 (C.A.), the court distinguished fraud and theft. Based on the facts of the current case, the appellant’s actions fit within fraud, but not theft. Mrs. Heath intended to part with her money; she was induced to do so “by other fraudulent means”; she was induced to act to her detriment by giving the appellant money in circumstances where she would not have done so but for the course of action he followed.

Law Society of Upper Canada v. Fuerst Estate, 2015 ONCA 430

[MacPherson, Huscroft, and Roberts JJ.A]

Counsel:

W. Rallis, acting in person

N. Musclow, for the respondent

Keywords: Endorsement, ss. 49.45, 49.47 and 49.52 of the  Law Society Act, deceased lawyer’s professional material

Rojas v. Unilever Canada Inc., 2015 ONCA 428

[Juriansz, Rouleau, and Lauwers JJ.A.]

Counsel:

C. Guerette and J. Rajagopalan, for the appellant

A. Wood, for the respondent

Keywords: Endorsement, Adding Defendant as a Party

Skypower CL 1 LP v. Ontario Power Authority, 2015 ONCA 427

[Juriansz, Rouleau, and Lauwers JJ.A]

Counsel:

T. Gilbert, M. Diskin, and A. Moser, for the appellants

L. Favreau, A. Leamen, H. Borlack, and D. Elmaleh, for the respondents

Keywords: Endorsement, Judicial Review, Abuse of Process Doctrine

Farid v. Porteous, 2015 ONCA 413

[Feldman, Hourigan, and Benotto JJ.A]

Counsel:

M. Farid, acting in person

G. Elliot, for the respondent

Keywords: Endorsement, Damages, Failed Real Estate Transaction

Waye v. Cook, 2015 ONCA 425

[Simmons, Cronk, and Blair JJ.A.]

M. Tweyman, for the appellant

D. Smith, for the respondent

Keywords: Endorsement, Jurisdiction

The Canada Trust Company v. Potomski, 2015 ONCA 420

[Pardu J.A. (In Chambers)]

Counsel:

R. J. Potomski, acting in person

J. Kukla, for the respondent

Keywords: Endorsement, Mortgage Terms, Costs

R. v. Bengy, 2015 ONCA 409

[Strathy C.J.O., Tulloch, and Hourigan JJ.A]

Counsel:

R. Litkowski, for the appellant

M. Bernstein and R. Gattrell, for the respondent

Keywords: Criminal Law, New Self Defence Provisions, Defence of Provocation, R. v. W. (D.), [1991] 1 S.C.R. 742

R. v. Modeste, 2015 ONCA 398

[Strathy C.J.O., Tulloch, and Hourigan JJ.A]

Counsel:

D. Doucette, for the appellant

R. Shallow and M. Bernstein, for the respondent

Keywords: Criminal Law, s. 21(2) Criminal Code, Self Defence, Prior Statement of a Witness

R. v. Rogers, 2015 ONCA 399

[Strathy C.J.O., Tulloch, and Hourigan JJ.A]

Counsel:

D. Doucette, for the appellant

M. Bernstein, for the respondent

Keywords: Criminal Law, Self Defence, R. v. W. (D.), [1991] 1 S.C.R. 742, After-the-Fact Conduct

R. v. Liard, 2015 ONCA 414

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

Counsel:

E. Nakelsky and M Fawcett, for the appellant

J. Lockyer, L Beechener, D. Brodsky, for the respondent

Keywords: Criminal Law, First Degree Murder, R. v. Edgar, 2010 ONCA 529, spontaneous statement

R. v. Moffit, 2015 ONCA 412

[Doherty, Pepall, and Tulloch JJ.A]

Counsel:

I. Smith, for the appellant

C. Tier, for the respondent

Keywords: Criminal Law, Second Degree Murder, irrelevant and prejudicial evidence

R. v. Trudel, 2015 ONCA 422

[Blair, Tulloch, and Hourigan JJ.A]

Counsel:

C. Trudel, acting in person

J. Presser, Amicus Curiae

D. Calderwood, for the respondent

Keywords: Criminal Law, Not Criminally Responsible by Reason of Mental Disorder, Aggravated Assault

R. v. Dufour, 2015 ONCA 426

[Feldman, Hourigan, and Pardu, JJ.A.]

Counsel:

K. Doherty, for the appellant

B. Chase, for the respondent

Keywords: Criminal Law, Sentencing, Break and Enter, Staying of a Sentence

R. v. Hockey, 2015 ONCA 421

[Laskin, MacFarland, and Rouleau JJ.A]

Counsel:

R. Litkowski, for the appellant

J. McInnes, for the respondent

Keywords: Endorsement, Criminal Law, Aggravated Assault, Assault with a Weapon, Witness Testimony, R. v. W. (D.), [1991] 1 S.C.R. 742

R. v. Remey, 2015 ONCA 416

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

Counsel:

Z. Kerbel, for the appellant

M. Adams, for the respondent

Keywords: Endorsement, Criminal Law, Section 8 Charter, Possession of a Firearm Without a License, Possession of Cocaine for the Purpose of Trafficking, Obstructing a Police Officer