Hello again everyone and Happy New Year!  I hope you all enjoyed the holidays and I wish you all the best for 2016.

Today we are posting the Ontario Court of Appeal Summaries for the three weeks of December 21 to 25, 2015, December 28, 2015, to January 1, 2016, and January 4 to 8, 2016.  While there was more activity in terms of decisions released in these last three weeks than we anticipated, the Court saved its best and most noteworthy decision for last.  Today, the Court released its decision in the well-known case of Livent Inc. v. Deloitte & Touche.  Those familiar with the case will all recall that at trial, Justice Gans found Deloitte liable to Livent for almost $120 million in losses arising out of negligently performed audits of Livent’s books and records due to the failure of the auditors to detect the Livent fraud.  Deloitte appealed and Livent cross-appealed.  The Court dismissed both appeals and upheld Justice Gans’ judgment.  Issues discussed in the decision include the purpose of audits of public companies, whether the fraud should be attributed to Livent itself, thereby exonerating the auditors as a result of the defence of illegality (ex turpi causa), causation and damages.

Other topics covered these last three weeks include family law, real estate, bankruptcy and insolvency, class actions, insurance, negligence, fraudulent conveyances, summary judgment, regulated professions, and forum non conveniens.  There were also many criminal law decisions released.

Have a great weekend.

John Polyzogopoulos Blaney McMurtry LLP JPolyzogopoulos@blaney.com Tel: 416.593.2953 http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents

Civil Decisions

Livent Inc. v. Deloitte & Touche, 2016 ONCA 11

Keywords: Torts,  Negligence, Auditors, Duty of Care, Hercules Management Ltd. v. Ernst & Young, Standard of Care, Generally Accepted Auditing Standards (GAAS), Defences, Contributory Negligence, Corporate Identification (Attribution) Doctrine, Doctrine of Illegality (Ex Turpi Causa), Causation, “But For” Test, Damages, Bar Orders

Carneiro v. Durham (Regional Municipality), 2015 ONCA 909

Keywords:   Insurance Law, Duty to Defend, Additional Insured, Torts, Motor Vehicle Accident, Failure to Maintain Road

State Farm Mutual Automobile Insurance Company v. Aviva Canada Inc., 2015 ONCA 920

Keywords: Insurance Law, Motor Vehicle Accident, Statutory Accident Benefits, Indemnification, Insurance Act, Loss Transfer Provisions, Highway Traffic Act, Fault Determination Rules, Rule 5(1), Rule 3

Berta v. Berta, 2015 ONCA 918

Keywords: Family Law, Divorce, Spousal Support, Calculation of Income, Imputed Income, Equalization of Net Family Property, Valuation Date, Disposition Costs, Family Law Act, s.4,  Costs, Family Law Rules, Rule 24

8527504 Canada Inc. v. Sun Pac Foods Limited, 2015 ONCA 916

Keywords: Bankruptcy and Insolvency, Receiverships, Bankruptcy and Insolvency Act, s.193(e), Motion for Leave to Appeal

D.D. v. Children’s Aid Society of Toronto, 2015 ONCA 903

Keywords: Family Law, Crown Wardship, Office of the Children’s Lawyer, Access, Visitation, Summary Judgment, Temporary Care Agreement, Child and Family Services Act, s.50, s. 59(2.1), Evidence, Hearsay

Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921

Keywords: Class Actions, Negligent Misrepresentation, Breach of Contract, Aggregate Damages, Certification of Class, Class Proceedings Act, Consumer Protection Act, s.18(2)

RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906

Keywords: Civil Litigation, Security for Costs, Appellate Jurisdiction, Interlocutory Orders, Courts of Justice Act, s. 19(1)(b), Leave to Appeal, Bankruptcy and Insolvency Act

Hoggarth v. MGM Farms and Fingers Limited, 2015 ONCA 908

Keywords: Real Estate, Subdivision, Lots, Right of User in Common, Civil Procedure, Evidence by Affidavit, Information and Belief

Monk v. Farmer’s Mutual Insurance Company (Lindsay), 2015 ONCA 911

Keywords:   Insurance Law, Coverage, Policy Interpretation, Ambiguity, Exclusion Clauses, Faulty Workmanship, Resulting Damage, MacDonald v. Chicago Title Insurance Company of Canada

Daverne v. John Switzer Fuels Ltd., 2015 ONCA 919

Keywords: Contracts, Insurance, Property Damage, Coverage, Duty to Defend, Duty to Indemnify, Limitation Periods, Limitations Act, 2002, section 22, Abridgment of Limitation Period, Business Agreements

2057552 Ontario Inc. v. Dick, 2016 ONCA 7

Keywords: Contracts, Debtor-Creditor, Mortgages, Fraudulent Conveyances Act, Assignments and Preferences Act, Summary Judgment

Klein v. Dick, 2016 ONCA 8

Keywords: Contracts, Debtor-Creditor, Promissory Notes, Summary Judgment, Fraudulent Conveyances Act

College of Chiropractors of Ontario v. Dies, 2016 ONCA 2

Keywords: Administrative Law, Regulation of Professions, Chiropractors, Orders, Enforcement, Contempt

Dams v. TD Home and Auto Insurance Company, 2016 ONCA 4

Keywords: Torts, Negligence, Motor Vehicle Accident, Apportionment of Liability, Insurance Law, Relief from Forfeiture, Insurance Act, Section 129

Hawthorne v. Markham Stouffville Hospital, 2016 ONCA 10

Keywords: Torts, Negligence, Medical Malpractice, Summary Judgment, Evidence, Medical Records, Limitation Periods, Limitations Act, 2002, Discoverability

Schnier v. Canada (Attorney General), 2016 ONCA 5

Keywords: Bankruptcy and Insolvency, Discharge from Bankruptcy, Bankruptcy and Insolvency Act, Section 172.1, Statutory Interpretation, Tax Shelters, Income Tax Act

Packall Packaging Inc. v. Ciszewski, 2016 ONCA 6

Keywords: Corporations, Family Law, Contracts, Separation Agreements, Implied Terms, Business Efficacy, Officious Bystander Test, Sale of Shares, Consent, Injunction, Financial Disclosure, Audited Financial Statements, Ontario Business Corporations Act, Section 148, Summary Judgment

Khosa v. Homelife/United Realty Inc., 2016 ONCA 3

Keywords: Debtor-Creditor, Summary Judgment, Limitation Period

Tyoga Investments Ltd. v. Service Alimentaire Desco Inc., 2016 ONCA 15

Keywords: Contracts, Jurisdiction, Forum Non Conveniens, Real and Substantial Connection, Stay of Proceedings

For a list of Civil Law Endorsements, click here

For a list of Criminal and Capacity decisions, click here

Civil Decisions  

Livent Inc. v. Deloitte & Touche, 2016 ONCA 11

[Strathy C.J.O, Blair and Lauwers JJ.A.]

Counsel:

Peter Griffin, Jamie Spotswood and Matthew Fleming, for the appellant/respondent by cross-appeal

Peter F.C. Howard, Patrick O’Kelly, Aaron Kreaden and David Spence, for the respondent/appellant by cross-appeal

Keywords: Torts,  Negligence, Auditors, Duty of Care, Hercules Management Ltd. v. Ernst & Young, Standard of Care, Generally Accepted Auditing Standards (GAAS), Defences, Contributory Negligence, Corporate Identification (Attribution) Doctrine, Doctrine of Illegality (Ex Turpi Causa), Causation, “But For” Test, Damages, Bar Orders

Facts:

Garth Drabinsky and Myron Gottlieb were entertainment impresarios who, in the 1990s, created and developed a live entertainment empire known as Live Entertainment Corporation of Canada Inc. (“Livent”), which had the appearance of a healthy, dynamic, and successful business enterprise.  Financially, however, it was not.  In 1998, new management discovered that Drabinsky and Gottlieb had been fraudulently manipulating the company’s financial books and records in order to inflate their earnings and profitability.  Livent filed for insolvency protection in Canada and the United States and was placed in receivership.  Its assets were subsequently sold.  Drabinsky and Gottlieb were ultimately convicted of fraud and forgery and served prison sentences.  Deloitte & Touche (“Deloitte”) was the auditor for Livent and its predecessor from 1989 through to 1998, when the fraud was discovered.  It issued clean audited financial statements throughout this period.

In this action, Livent – through a Special Receiver appointed in the insolvency proceedings for various purposes, including bringing this claim – sued Deloitte for damages sustained by Livent in contract and negligence arising out of Deloitte’s failure to follow generally accepted auditing standards (“GAAS”) and thereby discover material misstatements in Livent’s books, records and financial reporting attributable to the Drabinsky and Gottlieb fraud.

At trial, Gans J. found that Deloitte was not negligent in respect of the pre-1996 audits.  Nor was Deloitte found liable in respect of the 1996 audit.  Deloitte was, however, found liable for damages arising from negligence in 1997 and 1998.  The trial judge awarded Livent damages in the amount of $84,750,000 plus interest, totalling $118,035,770.  Deloitte appeals that judgment, alleging the trial judge made multiple legal errors.  It argues that it should not be responsible for fraud committed by Livent.  It seeks to attribute wrongs committed by Livent officers and employees to the corporation and to rely on the defence of ex turpi causa, sometimes referred to as the defence of illegality.  Deloitte also argues that its negligence was not the factual or proximate cause of damages to Livent.  While Livent became insolvent, it was in a money-losing business.  Since Livent is insolvent, it is Livent’s creditors that were injured, not the company itself.  Livent rejects these arguments.  In its cross-appeal, it submits that the trial judge erred in failing to hold Deloitte liable for negligence in respect of the 1996 audit and also in reducing the award of damages by 25 per cent to account for what he called “contingencies”.

Issues:

  1. Were the losses sustained the losses Livent or, instead, the losses of its creditors and other stakeholders?
  2. Is Livent’s claim defeated by the doctrines of corporate identification (attribution) or ex turpi causa, or by the effect of the U.S. bar orders?
  3. Did the trial judge extend the duty of care beyond the duty owed to Livent?
  4. What are the purposes of an audit of a publicly-traded company and what is the standard of care to be applied in determining whether Deloitte was negligent?
  5. Did Deloitte breach the standard of care?
  6. If Deloitte did breach the standard of care, were Livent’s losses caused by Deloitte’s negligence? This involves a consideration of (i) the application of the “but for” test, and (ii) issues of remoteness and proximity, including what the trial judge referred to as “contingencies”.
  7. If Livent’s losses were caused by Deloitte’s negligence, what are those damages and should they be limited or minimized by operation of the doctrine of contributory negligence?
  8. Did the trial judge err in failing to hold Deloitte liable for its breaches of the standard of care in relation to the 1996 audit (the cross-appeal)?

Holding: Appeal and cross-appeal dismissed.

Reasoning:

  1. The losses in question were Livent’s losses.  It is clear and beyond doubt that Livent cannot advance a claim on behalf of stakeholders, such as shareholders and noteholders.  The claim for breach of contract and for negligence is that of the corporation and no such cause of action rests with the shareholders or creditors.  The fact that some stakeholders might benefit from any recovery in this action does not alter this conclusion.
  2. No.  For legal and policy reasons, neither the corporate identification nor the ex turpi causa doctrines should apply.  It was not necessary to attribute the frauds to Livent in order to prevent the wrongdoers from profiting from their frauds or to protect the integrity of the legal system.  None of the damages to be paid by Deloitte would directly or indirectly benefit a participant in the frauds.  Attributing the frauds to Livent would not serve the public policy objectives of either doctrine.  In the end result, there is no reason to interfere with the trial judge’s conclusion that Deloitte cannot rely on the corporate identification doctrine for the purposes of invoking the ex turpi causa defence to escape liability for its negligence.  Furthermore, the U.S. bar orders do not preclude Livent from advancing its claim.  First, the U.S. class action litigation was entirely different from this proceeding.  Secondly, Deloitte’s submission was contrary to Livent’s plan of reorganization, which courts in Canada and the U.S. approved and to which Deloitte is deemed to have consented.
  3. No.  The trial judge found that in the wake of the Supreme Court’s decision in Hercules Management, there can be little doubt that auditors owe a duty of care to the company for the benefit of the corporate collective, the shareholders.  There can be no real dispute that Deloitte owed a duty of care to its client, Livent, to conduct the audit in accordance with the applicable standard of care.
  4. Courts, including the trial judge in this case, have recognized that audits fulfil two key objectives:  (i) to ensure that the financial information presented by management provides a fair and accurate picture of the financial affairs of the corporation and of any changes in the financial position of the corporation; and (ii) to provide shareholders with information for the purpose of overseeing the management and affairs of the corporation (including the ability to measure the level of honesty with which management performs its duties).  The Supreme Court of Canada adopted this statement of the objectives of an audit in the Canadian context in Hercules Management.  In the case of publicly-traded corporations, however, an audit has a third important and broader objective involving the responsibilities of securities regulators and the interests of the investing public.  It is not only the corporation and its existing shareholders who need and rely on the auditors’ reports.  Securities regulators and members of the investing public also rely on them for disclosure of a fair and accurate picture of the financial position of the corporation.  The auditors’ standard of care in such circumstances must reflect this reality as well.  In regards to the standard of care, it is the duty of an auditor to bring to bear on the work he or she has to perform that skill, care, and caution which a reasonably competent, careful, and cautious auditor would use.  What is reasonable skill, care, and caution must depend on the particular circumstances of each case.
  5. Yes.  The record amply supports the trial judge’s findings that Deloitte was negligent in its conduct of the 1997 audit and the Q2 and Q3 1997 engagement.  Indeed, the evidence to that effect is overwhelming.
  6. The trial judge found that Deloitte had not fallen below the requisite standard of care in relation to the 1995 or earlier audits.  He concluded that Deloitte had failed to meet the standard of care with respect to:  (i) certain aspects of the 1996 audit; (ii) the work performed regarding the interim unaudited six-month Q2 and Q3 1997 financial statements; and (iii) the 1997 audit.  He found, however, that even if Deloitte had fulfilled its duty of care with respect to the 1996 audit year, it would not have resulted in Livent being denied access to the capital markets at that time, thereby triggering the “but for” test for causation for that period.  With respect to 1997, however, he found that the “but for” test was met:  if Deloitte had fulfilled its duty with respect to the Q2 and Q3 1997 engagement and the 1997 audit, Livent would no longer have been able to access the markets.  In regards to remoteness/proximate cause, the trial judge found that most, but not all, of Livent’s losses were attributable to the improper increase in liabilities caused by Deloitte’s negligence.  The trial judge recognized, however, that not all of Livent’s losses ought to be visited on Deloitte, and that the auditors ought not to be liable for the losses attributable to Livent’s legitimate but unsuccessful ventures.  Accordingly, he reduced the net economic loss number by 25 per cent to reflect that.  In reaching that number, he relied on expert evidence regarding “contingencies”, which related to the “vagaries” of the business Livent was in.  To conclude, Deloitte’s negligence caused Livent to continue to operate in circumstances in which it was reasonably foreseeable both that the company would continue to accumulate increased liabilities through its access to the capital markets, but also that it would have no means of paying down those liabilities because of the cash-burn nature of Livent’s money-losing business.  Deloitte’s negligence created the opportunity for Livent to stay in business and for the fraudsters to continue to take Livent to the capital markets.  The enhanced liabilities resulted from Deloitte’s negligence.
  7. The trial judge found that neither of the experts’ approaches was unassailable and, accordingly, that their respective damages figures could not be accepted without modification.  Therefore, he split the difference between them.  It was open to the trial judge to fix the quantum of damages by simply choosing the mid-point between the experts’ figures.  In regards to contributory negligence, the trial judge observed that the purpose of an audited statement, namely to ensure that the interests of shareholders are safeguarded by giving them the means to supervise management, would be undermined if an auditor’s responsibility were reduced in proportion to the egregiousness of the misconduct which it failed to detect.  The application of the doctrine of contributory negligence in the circumstances here would amount to a back-door application of the doctrine of corporate identification.
  8. No.  In respect of the judge’s dismissal of the claim with respect to the 1996 audit, there was no reason to revisit and reweigh the trial judge’s findings of fact, the inferences he drew from those facts, and the conclusions of mixed fact and law to which he came based on those findings and inferences.  Livent has not shown any palpable and overriding error with respect to the trial judge’s factual findings, the inferences he drew from those findings, or the conclusions reached as a result of those findings and inferences.

Carneiro v. Durham (Regional Municipality), 2015 ONCA 909

[Strathy C.J.O., LaForme and Huscroft JJ.A.]

Counsel:

David G. Boghosian and Laura M. Day, for the appellant

Van Krkachovski, for the respondent

Keywords:   Insurance Law, Duty to Defend, Additional Insured, Torts, Motor Vehicle Accident, Failure to Maintain Road

Facts:

The defendant municipality (“Durham”) contracted with the defendant maintenance company, Miller Maintenance Limited (“Miller”), for snow removal.  The contract required Miller to obtain liability insurance with Durham as an additional insured.  Later the plaintiffs’ family member died in a motor vehicle accident during a snowstorm and brought an action against the defendants for negligence in road design and maintenance, as well as failing to close the road or warn the public of danger.

Durham brought a motion for a declaration that Miller’s insurer (“Zurich”) had a duty to defend it against all of the plaintiffs’ claims.  The motion was dismissed, and the motion judge held that the insurer was only required to defend Durham with respect to claims as insured by Miller.  The motion judge found that some causes of action pre-dated Miller’s involvement and the insurer was not required to defend where claims overlapped and it would not be in its best interests to do so.  Durham appealed.

Issue:  

Did the motion judge err in dismissing Durham’s motion that Zurich had a duty to defend it in the action?

Holding: Appeal allowed.

Reasoning: 

Yes. Zurich was obligated to pay the reasonable costs of Durham’s defence of covered claims, even if the defence furthered the defence of uncovered claims.  The court held that the policy contained an unqualified promise to defend the insured for covered actions and Durham was an additional insured under the Zurich policy.

First, the allegations in the statement of claim triggered Zurich’s duty to defend Durham because when pleadings allege facts that, if true, require the insurer to indemnify the insured, the insurer is obliged to defend the claim.  The court also noted that while the trial judge correctly identified the test as set out in Progressive Homes Ltd v Lombard General Insurance Co of Canada, 2010 SCC 33, he failed to correctly apply it to the case.

Second, the policy did not qualify Zurich’s duty to defend and it was required to defend the action, not just the covered claims.  The policy imposed on Zurich a duty to defend its insured, including an added insured, against “any action” seeking damage to which the insurance applied.

Third, Zurich did not satisfy its duty to defend by defending Miller, as that would make Durham’s status as an additional insured meaningless.  Counsel for the respondent acknowledged that there was no authority for this position taken by Zurich.

Fourth, Zurich’s best interests do not negate its obligation to defend and the motion judge erred in giving preference to Zurich’s interests over those of the insured, ignoring Zurich’s contractual duty to defend.

Fifth, the duty to defend is a separate contractual obligation that could not be met simply by Zurich indemnifying Durham at the end of the day.  The potential outcome of the trial is irrelevant to Zurich’s duty to defend.

The court concluded that the motion judge should have ordered Zurich to provide Durham with independent counsel, at Zurich’s expense, to defend the action in its entirety.  The appeal was allowed and Zurich was directed to defend Durham and provide it with independent counsel at Zurich’s expense and to reimburse Durham for reasonable defence costs incurred to date.

Tags: Insurance Law, Duty to Defend, Additional Insured, Torts, Motor Vehicle Accident, Failure to Maintain Road

State Farm Mutual Automobile Insurance Company v. Aviva Canada Inc., 2015 ONCA 920

[Gillese, Epstein and Roberts JJ.A.]

Counsel:

Daniel Strigberger and Monika Bolejszo, for the appellant

Charlia von Buchwald, for the respondent

Keywords: Insurance Law, Motor Vehicle Accident, Statutory Accident Benefits, Indemnification, Insurance Act, Loss Transfer Provisions, Highway Traffic Act, Fault Determination Rules, Rule 5(1), Rule 3

Facts:

This appeal arises out of an accident that involved Ali Shalforoushzadeh (“Ali”), who was driving his motorcycle southbound through an intersection when he had to swerve, lost control of his motorcycle, fell to the ground and was injured after Eric Basciano (“Eric”), who was driving northbound, made a left turn.  Ali applied to his insurer for accident benefits payments, State Farm Mutual Automobile Insurance Company (“State Farm”).  State Farm paid him the benefits and then sought indemnification from Eric’s insurer, Aviva Canada Inc. (“Aviva”), under the loss transfer provisions of the Insurance Act.

State Farm and Aviva did not agree on indemnification and took the matter to arbitration.  The arbitrator determined that Eric was 100% at fault for the accident.  Aviva brought an application in which it appealed the arbitration award.  The application judge set aside the award and declared that Ali was 50% at fault for the accident,  relying  on Nash v. Sullivan (“Nash”).

Issues:  

Did the application judge err by:

  1. Making a finding of fact that the arbitrator did not make?
  2. Failing to give deference to the arbitrator’s findings of fact and negligence under the ordinary rules of law?
  3. Applying Nash to the facts of this case?
  4. Finding that the arbitrator incorrectly interpreted rule 5(1) of the Fault Determination Rules (FDRs) of the Highway Traffic Act (HTA)?

Holding: Appeal allowed. Arbitration award restored.

Reasoning:

  1. Yes, it was an error for the application judge to have made a finding of fact.  The arbitrator heard the oral evidence and made no finding that Ali failed to be alert.  The arbitrator had the advantage of seeing and hearing the testimony first-hand.  There was nothing in the record to support the application judge’s finding that Ali failed to be alert when approaching the intersection.
  2. This submission was misguided.  The application judge set aside the arbitrator’s finding of fault because he viewed the arbitrator as having erred in law.  Thus, the question is whether the arbitrator applied the correct legal principles in making that determination.
  3. Yes, the application judge erred in applying Nash and apportioning liability.  Although there were a number of common features between this case and Nash, there was one significant factual difference.  In Nash, as the motorcyclist approached the intersection, he was hidden from the view of the oncoming left-turning drivers.  In this case, not only was there no finding that Ali was hidden from the view of motorists intending to make a left turn into the intersection, the arbitrator expressly found that Ali was “there to be seen”.
  4. Yes, there was no basis for the application judge to set aside the arbitrator’s award and substitute his own determinations as to fault.  The arbitrator proceeded on the basis that fault determination under rule 5(1) must be informed by the instruction given in rule 3 of the FDRs.  Because rule 3 requires the degree of fault to be determined without reference to the circumstances in which the incident occurs, in the arbitrator’s view, rule 5(1) calls for an approach distinct from a pure tort law analysis.  To determine the degree of fault, the arbitrator looked at rule 12(5) of the FDRs – which governs situations similar to this case except that they involve a collision – and s. 141(5) of the HTA.  She did not use tort law to determine fault.  The Court of Appeal held that the arbitrator correctly interpreted and applied rule 5(1), having regard to the purpose and scheme of the loss transfer provisions as a whole.

Berta v. Berta, 2015 ONCA 918

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

Counsel:

Douglas A. Quirt, for the appellant

Peter M. Callahan, for the respondent

Keywords: Family Law, Divorce, Spousal Support, Calculation of Income, Imputed Income, Equalization of Net Family Property, Valuation Date, Disposition Costs, Family Law Act, s.4,  Costs, Family Law Rules, Rule 24

Facts:

The parties, Delia Berta (the “Wife”) and Raymond Berta (the “Husband”) were married in 1982 and separated in 2010.  The Wife held senior management positions until she retired and the Husband started the business ACCE Inc. (“ACCE”), shares of which were owned equally by the parties.

The trial judge found that both parties contributed to the establishment of ACCE, although the Husband operated the company for most of the period they were married.  In 2010, the parties separated with their principal assets being their matrimonial home and their shares in ACCE.  The matrimonial home was sold and the proceeds were equally divided between the parties.  In 2012, the Husband bought the Wife’s ACCE shares for $2.2 million.

In 2010, the Wife commenced proceedings under the Divorce Act and the FLA for equalization of the parties’ net family property (“NFP”), spousal support and a divorce.  A trial was held and the judge ordered that the Wife make an equalization payment to the husband and that the husband pay indefinite periodic spousal support to the wife based on imputed incomes for the parties.  The trial judge granted the divorce and awarded full indemnity costs to the Husband.

Issues:  

  1. Did the trial judge err in determining the parties’ annual incomes for the purpose of spousal support?
  2. Did the trial judge err in equalizing the parties’ NFPs by valuing the notional costs of the Wife’s disposition of her ACCE shares at $0.00?
  3. Did the trial judge err in awarding costs to the Husband on a full indemnity basis?

Holding: Appeal allowed in part.  The trial judge’s spousal support award is set aside and is remitted to the trial judge for reconsideration, together with the question of costs.

Reasoning: 

(1) Yes.  The trial judge erred in determining the Wife’s income but the court dismissed the Wife’s argument that he erred with respect to the Husband’s annual income.  The Wife argued that her periodic support award was based on flawed calculations of the parties’ respective annual incomes.  The Wife argued the trial judge miscalculated her income on a number of grounds.  However, the court only addressed the issue of whether the trial judge failed to reveal the basis for his imputation of annual income to her.

The trial judge failed to indicate the amounts of the Wife’s pension and investment income upon which he based his income imputation analysis.  He also did not provide any other explanation for the basis for the quantum of income imputed to the Wife or why it was the appropriate amount in the circumstances.  The court held that the award of periodic support without any explanation for the imputation constituted a reversible error.  The absence of reasons on the important issue of spousal support precluded meaningful appellate review.

The Wife argued that the trial judge erred by understating the Husband’s average annual income.  It was open to the trial judge to accept and rely on the calculation of the Husband’s annual income by his expert.  The Wife’s position was that the trial judge did not take a tax error made during the period in question into account when making his calculations.  While the court found the evidentiary record on this issue unsatisfying, the Wife bore the onus at trial to establish an evidentiary foundation for the imputation of income that she requested and that she had not demonstrated a palpable and overriding error in the trial judge’s calculations.

(2) No.  The trial judge assigned a value of zero dollars ($0.00) to the notional costs of disposition of each of the Wife’s and Husband’s ACCE shares (the “Share Disposition Costs”).  The court disagreed with the Wife’s argument that as of date of separation (“V-Day”), the sale of her ACCE shares was sufficient evidence to support a $364,884 valuation of her Share Disposition Costs.

The Wife relied on evidence of the accountant originally hired by the Husband (the “Accountant”) to assist in the Husband’s purchase of the Wife’s ACCE shares following separation. The Accountant explained that difference between the assumed purchase price for the ACCE shares and the after-tax proceeds represented the Wife’s Share Disposition Costs of $364,884. The Wife submitted this amount should have been deducted from the value of her property in accordance with ss. 4(1) and 4(1.1) of the Family Law Act.

The trial judge correctly applied the test set out Zavarella v. Zavarella, 2013 ONCA 720 to determine “what is the reasonable likelihood that the debt will be incurred and what is the reasonable estimate of value?” The appropriate inquiry was not what notional Share Disposition Costs should be assigned to the Wife’s ACCE shares at the time of the 2012 share transaction but, rather, whether there was a reasonable likelihood, as of V-Day, that the Wife would sell her shares and, if so, at what reasonably estimated value. The Accountant did not provide evidence about the Share Disposition Costs as of V-Day. There was no direct evidence at trial from any source concerning such costs, as of V-Day. Also, the finding was open to the trial judge based on the evidence to determine whether the Wife had a clear intention to sell her ACCE shares as of V-day. The trial judge was entitled to conclude that the only reliable evidence before him was that if the parties ACCE shares were sold, they would incur similar Share Disposition Costs.

(3) Yes.  The wife submitted that the trial judge erred in awarding full indemnity  costs on the basis that the results of the trial were “as favourable as or more favourable” than the Husband’s pre-trial settlement offers, because the Wife had made unproven allegations of fraud, and by imposing a costs award that was disproportionate in the circumstances and unsupported by the evidence.

Unless a costs award is plainly wrong or there is an error in principle, intervention with a trial judge’s discretionary costs ruling is precluded.  Rule 24(1) of the Family Law Rules creates a presumption that a successful party is entitled to costs.  However, Rule 24(4) states that a successful party who behaves “unreasonably” may be deprived of their costs and can be ordered to pay the unsuccessful party’s costs.  Rule 24(11) outlines the factors to be considered.

The trial judge erred in finding that the offer to settle was “as favourable as or more favourable” than the outcome achieved at trial by the Husband.  The lump sum support amount calculated after-tax was the equivalent of approximately 56 months’ (4.8 years) of spousal support at the monthly rate awarded by the trial judge.  However, the trial judge awarded the Wife indefinite periodic spousal support and her anticipated life expectancy was close to 13 years.

Second, the trial judge incorrectly held that the Husband had been successful at trial “on all material issues” because the Husband had argued that the Wife was not entitled to spousal support.  The Wife was successful in achieving an order for indefinite periodic spousal support.  While the trial judge was permitted under Rule 24(4) to deprive the Wife of costs on the basis that she had acted unreasonably and had made unsupported allegations of fraud, the court found that because of significant misapprehensions of evidence it was unclear how much weight the trial judge attached to these in his costs order.  The issue was remitted back to the trial judge to consider.

8527504 Canada Inc. v. Sun Pac Foods Limited, 2015 ONCA 916

[van Rensburg J.A. (In Chambers)]

Counsel:

David E. Wires and Krista Bulmer, for the moving party, Csaba Reider.

Harvey Chaiton, for the responding party, 8527504 Canada Inc.

Anthony J. O’Brien, for the responding party, BDO Canada Limited, court-appointed receiver of Sun Pac Foods Limited and Liquibrands Inc.

Keywords: Bankruptcy and Insolvency, Receiverships, Bankruptcy and Insolvency Act, s.193(e), Motion for Leave to Appeal

Facts:

This was a motion for leave to appeal two orders in two related receiverships.  Sun Pac was a food and beverage manufacturer that was acquired by Liquibrands Inc., which was owned by Mr. Reider.  8527504 Canada Inc. was Sun Pac’s senior secured lender and was owed approximately $4 million when the receivership proceedings were commenced.  This debt was guaranteed up to the amount of $1 million by Liquibrands, who was also a secured creditor of Sun Pac and was owed approximately $2.6 million.

BDO Canada Limited was appointed as receiver over the assets and undertaking of Sun Pac.  The same day, Sun Pac and Liquibrands commenced the initial action in the Superior Court of Justice against 8527504 (“852”) and Bridging Capital Inc on the basis that they were in breach of their obligations to Sun Pac and Liquibrands under a forbearance agreement and caused the failure of Sun Pac and its inability to pay the lender defendants and other creditors.

Newbould J. made three subsequent orders, from which Liquibrands’ unsuccessfully sought leave to appeal.  The receiver then marketed the Action for sale and two offers were received: one cash offer from Liquid Brands Inc. signed by Mr. Reider and a credit bid from 852 for $1 million.  After making his offer, but before the bids were opened, Mr. Reider served a notice of motion seeking an order permitting him to advance the Action under the “residual authority” of the directors of the companies.  The receiver accepted the latter, subject to court approval.

The receiver then moved for court approval.  In September 2015, the motions judge dismissed Mr. Reider’s motion and approved the sale of the Action to 852.

The applicant’s appeal raised two important issues.  The first concerned a director’s “residual right” to pursue an action that belongs to a company in receivership, and the second was whether a court-appointed receiver could sell an action of a company in receivership to a defendant to that action.

Issue:

Did the Applicant satisfy the test for leave to appeal?

Holding: Motion for Leave to Appeal Dismissed.

Reasoning:

No. Leave to appeal is discretionary and the court pursuant to s.193(e) of the BIA must take a flexible and contextual approach. Specifically, the court must consider the following factors:

  1. the general importance of the issues for appeal to the practice in bankruptcy and insolvency matters or to the administration of justice as a whole;
  2. whether the proposed appeal is prima facie meritorious; and
  3. whether proceeding with the proposed appeal would unduly hinder the progress of the bankruptcy or insolvency proceedings.

The main issue in the present case that the moving party sought to put before the court had already been determined by a previous order, and the Ontario Court of Appeal had previously denied leave to appeal that earlier order.

Moreover, that Mr. Reider, director of Liquibrands and former director of Sun Pac, and not the corporate entity itself, raised new arguments was immaterial.  Mr. Reider was privy to the receivership proceedings and was bound by the determination that the receiver was able to deal with, market and sell the Action.

The court concluded that, to the extent that Mr. Reider raised a new issue that had not been decided by the earlier orders, he failed to satisfy the test for leave to appeal.

D.D. v. Children’s Aid Society of Toronto, 2015 ONCA 903

[Laskin, Pardu and Roberts JJ.A.]

Counsel:

Natasha Razack, for the appellant

Anthony Macri, for the Children’s Aid Society of Toronto

Elizabeth McCarty, for the Office of the Children’s Lawyer

Keywords: Family Law, Crown Wardship, Office of the Children’s Lawyer, Access, Visitation, Summary Judgment, Temporary Care Agreement, Child and Family Services Act, s.50, s. 59(2.1), Evidence, Hearsay

Facts:

In 2011, D.D. voluntarily placed her son S.S. in care under a Temporary Care Agreement as she was experiencing mental health issues.  In June 2012, the Society commenced a protection application and in December 2012, the parties consented to a finding that the child was in need of protection pursuant to the Child and Family Services Act.  The child was made a Society ward but access visits continued until April 2013 when, at the child’s request, visits occurred only at the Society’s office.

The child did not wish to be returned to D.D. and demonstrated troubling behaviour after some visits.  He eventually disclosed that he was regularly abused by his mother.  D.D.’s access was eventually resumed, but visits were again suspended after S.S. alleged he had been sexually abused with his mother’s knowledge.  D.D. has not seen S.S. since February 2014.  The child continued to express that he no longer wished to be visited by his mother.

In February 2014, the Society brought an application to make S.S. a Crown ward.  The Society then brought a motion for summary judgment.  The motion judge reviewed the history of the mother’s access with her son and ordered Crown wardship with no access. The appeal judge agreed with the motion judge’s conclusions.

D.D. submitted that the appeal judge erred in failing to identify reversible errors made by the motion judge.  She submitted that the motion judge erred by not considering how the interruption of the parent-child relationship affected the beneficial and meaningful bond between her and her son.  Second, D.D. contended that the motion judge erred in not considering that S.S. continued to request access to D.D. up to March 2014.  Third, she argued that it was an error not to recognize the positive steps D.D. has taken to improve her parenting skills.  Finally, D.D. submitted that the motion judge gave too much weight to hearsay evidence of professionals and to the child’s report of abuse.

The Society and the OCL submitted that the appeal should be dismissed as, given the child’s consistent fear and anxiety over any contact with his mother, there was no triable issue as to whether any access order would have been beneficial and meaningful to him.

Issues:

  1. What is the standard of review for cases involving child custody?
  2. What is the focus for the test for access?
  3. Did the motion judge rely inappropriately on hearsay evidence?

Holding: Appeal Dismissed.

Reasoning:

  1. The Supreme Court of Canada in Van de Perre v. Edwards provided for a high standard of review for cases involving child custody.  Moreover, deference is particularly compelling in child protection cases.
  2. Section 59(2.1) of the CFSA clearly places the focus of the test for access from the child’s perspective.  D.D.’s arguments focussed on the reasons for the current state of affairs and on the mother’s efforts and did not speak directly to whether access would be meaningful and beneficial to the child.  The motion judge was correct to focus on the child’s present best interests.
  3. Not all hearsay evidence is inadmissible, and the motion judge did not rely inappropriately on hearsay evidence.  The Family Law Rules expressly contemplate the use of hearsay evidence on a motion for summary judgement and s. 50 of the CFSA expressly contemplates the admission of written reports of therapists and other persons involved in the child’s care.  Finally, while in some cases an admission of hearsay might be unfair, D.D. did not point to any particular unfairness resulting from the admission of the evidence presented on the motion.

Thus, the appeal judge did not err in determining that the motion judge appropriately focused on the present best interests of the child and did not over-emphasize the hearsay reports of what the child and his therapist said.  The court also noted that the prospect of further litigation may deter prospective adoptive parents.

Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921

[Feldman, Cronk and Huscroft JJ.A.]

Counsel:

Won J. Kim and Aris Gyamfi, for the appellants/respondents by way of cross-appeal

Robert B. Bell, Michael C. Smith and Jonathan Chen, for the respondent/appellant by way of cross-appeal

Keywords: Class Actions, Negligent Misrepresentation, Breach of Contract, Aggregate Damages, Certification of Class, Class Proceedings Act, Consumer Protection Act, s.18(2)

Facts:

The appellants were students who enrolled at George Brown College (“GBC”) in 2007 and 2008.  They commenced a class action against GBC for negligent misrepresentation, breach of contract and unfair business practices under the Consumer Protection Act.  The basis of the action was a misleading statement in GBC’s course calendar that graduates would have “the opportunity to complete three industry designations/certifications” in addition to a graduate certificate.  In fact, students were required to complete additional courses, work experience and exams at their own expense to fulfill the requirements for the industry designations.

The class action was certified and a common issues trial was held, where the court found that the course calendar statement was a negligent misrepresentation and a breach of the unfair business practices provisions of the Consumer Protection Act.  That decision was upheld on appeal by the Court of Appeal.  At a subsequent damages trial, aggregate damages were awarded for the statutory cause of action, although one cohort of students was removed from the class.  The appellants appealed the change to the class composition and the respondent cross-appealed the aggregate damages award.

Issues:

  1. Did the trial judge err by excluding the third cohort from the certified class?
  2. Did the trial judge err in his award of aggregate damages?

Holding: Appeal allowed and cross-appeal dismissed.  The assessment of damages in relation to the third cohort was referred back to the trial judge.

Reasoning:

(1) Yes.  The trial judge made several errors of law and a palpable and overriding error of fact which undermined his analysis of this issue.

The trial judge sought to determine whether the certification judge’s assumption that some of the students in the third cohort relied on the uncorrected print version of the calendar was valid.  The court found that this assumption was irrelevant to the damages trial.  It reasoned that it is not necessary to prove reliance to establish an unfair practice claim under the Consumer Protection Act.  Thus, once the plaintiffs elected to pursue their Consumer Protection Act claim at the damages trial, reliance on the misrepresentation was not at issue.

All but four of the student applicants applied while the original website representation was in place and there was no suggestion that any student who commenced the program in September 2008 had not entered into an agreement with GBC and made a payment toward tuition.  Thus, each student in the third cohort was subject to the unfair practice and entitled to a remedy under the Consumer Protection Act.

(2) No.  GBC raised five issues on its cross-appeal, the effect of which was to challenge the basis on which the trial judge proceeded to assess damages on an aggregate basis.

The court held that the trial judge was not precluded from invoking the aggregate damages provision (s.24(1)) of the Class Proceedings Act after making a finding of liability.  The trial judge’s finding that all class members were attracted to the GBC program not by the graduate certificate they would receive, but by the opportunity to obtain the three industry designations, was held to be an error, but one that ultimately did not affect the result.  The trial judge also made two analytical errors concerning causation, but because the award of aggregate damages was based on entering into the agreement and not on reliance, these errors did not affect the outcome.

Moreover, it was open to the trial judge to accept the parties’ agreement to use a tort measure of damage and to apply an agreed upon formula.  The court then analyzed and dismissed various issues raised by GBC in its factum.

RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906

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

Counsel:

Tony Van Klink, for the appellant, BDO Canada Limited, Receiver of Portofino Corporation

Gino Morga, Q.C., for the respondent, Remo Valente Real Estate (1990) Limited

David A. Taub, for RREF II BHB IV Portofino, LLC

Keywords: Civil Litigation, Security for Costs, Appellate Jurisdiction, Interlocutory Orders, Courts of Justice Act, s. 19(1)(b), Leave to Appeal, Bankruptcy and Insolvency Act

Facts:

The respondent, Remo Valente Real Estate (1990) Limited (“Valente”) is the plaintiff in a pending civil action.  Valente obtained a pre-trial order requiring the defendant, Portofino Corporation (“Portofino”), to post security for its claim of oppression and breach of contract.  Valente succeeded at trial on the oppression claim but that judgment was reversed on appeal and the contract claim was remitted for trial.  A further order was made in the civil action that the security, consisting of a letter of credit, continue in place.  Before the contract claim was tried, the appellant was appointed by the court as Portofino’s receiver pursuant to s. 243 of the Bankruptcy and Insolvency Act (the “BIA”) at the request of a secured creditor, Bank of Montreal.  The bank’s security in Portofino was assigned to RREF II BHB IV Portofino, LLC.  The receivership order expressly provided that the civil action was not stayed.  The appellant receiver then moved for an order to release the security.  The motion was brought in two proceedings: for advice and directions in the receivership proceedings and for the variation of the order in the civil action, so that the letter of credit could be cancelled.  The motion judge declined to cancel the letter of credit.  The appellant appealed that order.  The order is a single order, styled in both the civil action and the receivership proceedings.

Issue:  

Does an appeal lie to the Court of Appeal?

Holding: Appeal quashed.

Reasoning: 

No, the Court of Appeal had no jurisdiction to entertain the appeal.  The order appealed from is interlocutory.  Under s. 19(1)(b) of the Courts of Justice Act, the appeal of an interlocutory order is to the Divisional Court, with leave.  Bringing the motion in the receivership as well as the civil action did not give the appellant automatic access to the appeal routes under the BIA.  The jurisdiction of the court is governed by the substance of the order made.  The order dismissed a motion to vary an order made in a civil action, and required the continued posting of security in that action.  This was not an order in proceedings authorized by the BIA.  As such, the proper route of appeal is to the Divisional Court, with leave.

Hoggarth v. MGM Farms and Fingers Limited, 2015 ONCA 908

[Doherty, van Rensburg and Miller JJ.A.]

Counsel:

David E. Lederman and Joseph Hoffman, for the appellants

Christopher J. Williams and David P. Neligan, for the respondents Ronald Hoggarth, Colin Taylor and Jim Sarjeant

Marshall Green and William M. Thomson, for the respondent Corporation of the Township of Oro-Medonte

Keywords: Real Estate, Subdivision, Lots, Right of User in Common, Civil Procedure, Evidence by Affidavit, Information and Belief

Facts:

In 2012, the appellants acquired certain lots in a subdivision on Lake Simcoe in the Township of Oro-Medonte (the “Slivers”). The respondents (excluding the Township) are owners of other lots located in the same subdivision but claim user rights in the Slivers.  The Slivers are narrow parcels of land that front the lake. The application judge determined that the applicants have the rights to the lots and enjoined the action that would interfere with or derogate from the owners’ rights.  The applicants appealed.

Holding: Appeal dismissed.

Issue:

Did the application judge err in failing to consider evidence?

Reasoning:

No.  The appellants argue the sufficiency of the evidence upon which the application judge relied.  The affidavit evidence was based on information and belief but did not disclose the source of the information.  However, some of the affidavit evidence was personal observation.

The application judge was aware of the key dates and they formed the basis for his decision, especially since the evidence was related to the key dates.  The appellants failed to challenge some of the evidence in cross-examination.  There is no reason to interfere with the application judge’s assessment of the evidence.

The respondents do not have rights to the use of the lots as a result of a notation on the subdivision plan.  The notation referred to the lots as “an area of user common to each property owner in the subdivision.”  There was no qualification or restriction as to the way in which the lots could be used.  It would be wrong to read in a restriction on the use of those lots by the owners based on an archived letter.

Monk v. Farmer’s Mutual Insurance Company (Lindsay), 2015 ONCA 911

[Feldman, Cronk and Huscroft JJ.A.]

Counsel:

David A. Morin, for the appellant

Martin P. Forget, for the respondent Farmers’ Mutual Insurance Company (Lindsay)

Demetrios Yiokaris, for the respondent Muskoka Insurance Brokers Ltd.

Keywords:   Insurance Law, Coverage, Policy Interpretation, Ambiguity, Exclusion Clauses, Faulty Workmanship, Resulting Damage, MacDonald v. Chicago Title Insurance Company of Canada

Facts:

The appellant contracted with Pleasantview Log Restoration Systems Inc. (“Pleasantview”) to restore the exterior of her home in Bracebridge.  The process involved the use of water, and Pleasantview was required under the terms of the contract to inspect and temporarily seal all areas where water might enter prior to commencing the restoration process.  After Pleasantview concluded work, the appellant discovered damage to her carpeting, bedroom wall, and light fixtures at that time, and noticed additional damage in subsequent years, including scratches and pockmarks on her windows and condensation inside the panes of her windows.

The appellant’s home was insured by the respondent, Farmers Mutual Insurance Company (Lindsay) (“Farmers”).  She purchased an all-risks “Security Plus” homeowner’s insurance policy through the respondent, Muskoka Insurance Brokers Ltd. (“Muskoka”).  The policy covered perils subject to specified exclusions.  This included a “faulty workmanship” exclusion and a “property being worked on” exclusion.  The appellant claimed for the damage caused by the contractor under the insurance policy.  The insurer relied on the “faulty workmanship” and “property being worked on” exclusions in the policy to deny coverage.  The appellant commenced an action against the respondents.  On the respondents’ motion for summary judgment, the motion judge concluded that the “faulty workmanship” exclusion precludes claims for damage to the home caused both directly and indirectly by the contractor.  Although the “property being worked on” exclusion specifically preserves coverage for indirect “resulting damage”, the motion judge concluded that it was “trumped” by the general “faulty workmanship” provision.  The motion judge granted summary judgment to the respondents and dismissed the appellant’s claim.

Issue:  

Did the motion judge err in concluding that the “faulty workmanship” exclusion also excludes resulting damage, even though it does not specifically so state?

Holding: Appeal allowed.

Reasoning: 

Yes, the Court of Appeal interpreted the “faulty workmanship” provision as excluding from coverage only direct damage and not the resulting damage flowing from faulty workmanship.  According to the Court of Appeal in MacDonald v. Chicago Title Insurance Company of Canada, clauses that exclude coverage are to be interpreted narrowly.  Following this approach, it was not obvious that the “faulty workmanship” exclusion precluded coverage for resulting damage.  The “faulty workmanship” exclusion of liability should not be interpreted broadly to deny coverage that the all-risks policy would otherwise provide.  Insurers draft insurance policies knowing that exclusions of coverage will be interpreted narrowly and that ambiguity will be resolved in favour of the insured party.  If an insurer wants to exclude particular coverage, especially for something as well-known as resulting damage, it should do so specifically rather than by implication.  An interpretation of “faulty workmanship” that denies coverage for resulting damage is an overly broad interpretation of the exclusion clause.

Daverne v. John Switzer Fuels Ltd., 2015 ONCA 919

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

Counsel:

Andrew A. Evangelista and Avi Cole, for the appellant

John A. Ryder-Burbidge, for the respondent

Keywords: Contracts, Insurance, Property Damage, Coverage, Duty to Defend, Duty to Indemnify, Limitation Periods, Limitations Act, 2002, section 22, Abridgment of Limitation Period, Business Agreements

Facts:

In 2008, the Davernes’ fuel tank began to leak fuel oil and it eventually damaged their property. The Davernes’ noticed the leak in late January, and started an action against the company that sold the fuel tank, McKeown & Wood, and others in December 2009.

Federated Insurance Company of Canada (“Federated”) insured McKeown & Wood from 1999 until the last policy expired in October 2007, just before the leak. In February 2010, McKeown & Wood advised Federated about the Davernes’ claim, but Federated denied coverage because they were not insured on the date of the loss.

McKeown & Wood defended the main action and brought a third party claim against other insurers, including Federated in March 2012.

The motion judge found that the contractual limitation period under the policy was unenforceable and therefore Federated had a duty to respond to the claim. The motion judge also determined that because of the corrosion to the oil tank, the property damage was covered by the insurance policy. The motion judge rejected the “your product” exclusion.

Holding: Appeal allowed.

Issues:

  1. What is the standard of review applicable to the motion judge’s interpretation of the policy?
  2. Did the motion judge err in finding that the one-year limitation period set out in Federated’s insurance policy was not enforceable against the insured McKeown & Wood?
  3. If the one-year limitation period is not enforceable, did the motion judge err in his approach to ascertaining whether Federated owed McKeown & Wood a duty to defend the main action under the insurance policy?

Reasoning:

Appeal allowed because the motion judge erred in finding that the one-year limitation period in Clause 14 of the Policy did not apply. The provision does apply and as a result Federated is relieved of its duty to defend McKeown & Wood in the main action.

  1. The standard of review is correctness for standard for insurance contracts.
  2. The contractual limitation period is enforceable and McKeown & Wood’s third party claim for Federated’s duty to defend should be dismissed. The one-year limitation period began to run when Federated refused to provide McKeown & Wood a defence in the main action, as is its legal obligation under the policy.

Certain statutory conditions are part of every fire insurance contract in Ontario. Statutory condition 14 is included in Federated’s policy as clause 14. Clause 14 states that every action proceeding against the insurer is barred unless it is commenced within one year after the loss or damage occurs.

The Limitations Act, 2002 has a two year limitation period which cannot be contracted out of, except for “business agreements” entered into on or after that date. The parties are business entities.

The motion judge did not apply the proper jurisprudence, so his interpretation was wrong. The motion judge failed to give effect to certain clauses. The motion judge cited several cases but they were either irrelevant or stood for a principle other than what he stated.

The motion judge should have applied the basic principle that the insured “suffers a loss from the moment [the insurer] can be said to have failed to satisfy its legal obligation [under the policy of the insurance].”

Clause 8 is clear and unambiguous. The clause explicitly states that the statutory conditions apply to the liability coverage under the policy. In this case, the insurance policy is a business agreement and is captured by s. 22 of the Limitations Act, 2002.

  1. Federated does not have a duty to defend the insured. But this does not dispose of Federated’s obligation of indemnification.

Under the insurance policy, Federated has two obligations: (1) to defend the insured in any action for damages to which insurance would attach is liability is found, and (2) indemnification for damages which the insured becomes legally obligated to pay for bodily injury or property damage.

2057552 Ontario Inc. v. Dick, 2016 ONCA 7

[Doherty, MacPherson and van Rensburg JJ.A.]

Counsel:

Eliezer Karp, for the appellant

Fred Tayar and Colby Linthwaite, for the respondents

Keywords: Contracts, Debtor-Creditor, Mortgages, Fraudulent Conveyances Act, Assignments and Preferences Act, Summary Judgment

Facts:

The respondents, Jacqueline Milevsky and Joel Dick (the “Children”) lent money to their parent’s (the “Dicks”) ATM business in exchange for third and fourth mortgages on the Dicks’ home. The appellant, 2057552 Ontario Inc., was a partner in a second ATM business with the Dicks and alleged that the Dicks misappropriated funds from the partnership business. The appellant moved for summary judgment against the Children on the basis that the mortgages received from the Dicks were fraudulent conveyances under the Fraudulent Conveyances Act (“FCA”).

The motion judge dismissed the appellant’s motion and granted summary judgment in favour of the Children, leaving intact the action against the Dicks.

Issues:

  1. Did the motion judge err by dismissing the fraudulent conveyance summary judgment motion?
  2. Did the motion judge err in dismissing the entire action against the Children because there were still outstanding claims not dealt with at the summary judgment motion?
  3. Are the challenged mortgages void against unsecured creditors?

Holding: Appeal dismissed.

Reasoning:

  1. No. The court rejected the appellant’s argument that where there are suspicious transactions between family members, the burden shifts to the party seeking to justify the transaction and that the Children did not rebut this burden. The motion judge found that there was good consideration for the mortgages and no intent to defraud the creditors and that there was documentation to support these conclusions.
  2. No. The appellant’s notice of motion clearly stated that the only claim against the Children was under the FCA. The appellant made claims against the Dicks of conversion, misappropriation, and unjust enrichments but did not make these against the Children. The appellant cannot now attempt to add new claims.
  3. No. The court rejected the appellant’s attempt to rely on the Assignments and Preferences Act (“APA”) in support of the contention that the challenged mortgages are void against unsecured creditors. The appellant proceeded on the basis of the FCA only and cannot introduce the APA at this point in the proceedings.

Klein v. Dick, 2016 ONCA 8 

[Doherty, MacPherson and van Rensburg JJ.A.]

Counsel:

Michael Title and Patricia Virc, for the appellants/respondents by way of cross-appeal

Fred Tayar and Colby Linthwaite, for the respondents Joel Dick and 8800383 Canada Inc.

James Clark, for the respondents/appellants by way of cross-appeal Charles Dick, Esther Dick, ABC Variety Services, ABC Variety and Jamarmy Financial Services

Keywords: Contracts, Debtor-Creditor, Promissory Notes, Summary Judgment, Fraudulent Conveyances Act

Facts:

The appellants, Ester and Willy Klein, lent Charles and Esther Dick money for their ATM business through a series of promissory notes valued at $710,000. The Dick’s business partners in the ATM business later brought an action for misappropriation of funds, after which the appellants brought an action to enforce the promissory notes. The appellants also brought an action for a declaration that mortgages received by the respondents, Joel Dick and 8800383 Canada Inc., were fraudulent conveyances under the Fraudulent Conveyances Act.

The motion judge dismissed the fraudulent conveyance claim against the respondents and also granted summary judgement to the appellants on the promissory note claims for the full value of the notes in the amount of $710,000. The appellants appealed and the respondents cross-appealed the award.

Issues:

  1. On appeal, did the motion judge fail to properly assess the advisability of the summary judgment process in dismissing the appellants’ fraudulent conveyance claim when those defendants had not moved for summary judgment?
  2. Did the motion judge err by fixing the quantum of damages and not staying the remainder of the action to allow for arbitration?

Holding: Appeal dismissed, cross-appeal allowed.

Reasoning:

  1. No. The appellants brought a summary judgment motion, asserting that there was no genuine issue requiring a trial in respect of their fraudulent conveyance claim, among other things. The court stated that case law is clear that summary judgment may be granted against the moving party in the absence of a motion from the responding party. It was inevitable that the motion judge would dismiss the claim based on his findings of fact that there was no fraud and no intent to defeat creditors.
  2. There was no reason for the motion judge not to fix the quantum of damages relating to the promissory notes. However, the court accepted the respondents’ concession that the proper amount of damages was $650,000 as opposed to $710,000. The court allowed the cross-appeal to the extent of changing the damages to $650,000 from $710,000.

College of Chiropractors of Ontario v. Dies, 2016 ONCA 2 

[Simmons, Pepall and Pardu JJ.A.]

Counsel:

Alex Minkin, for the appellant

Chris G. Paliare and Karen Jones, for the respondent

Keywords: Administrative Law, Regulation of Professions, Chiropractors, Orders, Enforcement, Contempt

Facts:

Pursuant to an order of Smith J dated May 19, 2006 (the “Order”), the appellant was prohibited from using the titles “doctor” or “chiropractor”, as well as holding himself out as a chiropractor, and performing any controlled acts of chiropractors. Proceedings relating to a motion for a contempt order were brought by the College of Chiropractors of Ontario (the “College”) and settled on terms, one of the terms being that the appellant would fully comply with the contempt order. Based on evidence that the appellant continued to breach the Order and settlement terms, the College successfully brought a motion for an order that the appellant be found in contempt. The motion judge found that there was evidence beyond a reasonable doubt that the appellant continued to hold himself out as a chiropractor and to provide chiropractic services. The appellant was also sentenced to house arrest for a period of six months. The appellant appealed the order finding him in contempt and also sought leave to appeal sentence.

Issues:

  1. Did the motion judge err in assessing credibility and making a finding of contempt in the absence of viva voce evidence?
  2. Did the motion judge err in failing to impose the least restrictive sanction to ensure compliance and accord with the principles of fundamental justice?

Holding: Appeal dismissed.

Reasoning:

  1. No. The appellant, with a legal representative, agreed to a timetable for the contempt hearing that provided for no viva voce evidence and confirmed at the motion that he did not want to call viva voce evidence. Having made the decision to proceed with the motion based on affidavit evidence and cross-examinations, the appellant was not entitled to rely on such an argument after losing the motion.
  2. No. The motion judge considered the principle of the least restrictive sanction and noted that the appellant’s defiance of the Order was obvious, unrepentant and ongoing up to days before his sentencing hearing. The motion judge found there was a significant element of public protection involved in the fashioning of a consequence fit for this case and the court fully supported the motion judge’s reasoning.

Dams v. TD Home and Auto Insurance Company, 2016 ONCA 4

[Blair, Hourigan and Brown JJ.A.]

Counsel:

Dwain C. Burns, for the appellant/respondent on cross-appeal

Matthew A. Caldwell and Christopher J. Haber, for the respondents/appellants on cross-appeal

Keywords: Torts, Negligence, Motor Vehicle Accident, Apportionment of Liability, Insurance Law, Relief from Forfeiture, Insurance Act, section 129

Facts:

In 2009, the respondent, Wolfgang Dams (“Dams”) and his friend were riding their motorcycles. Dams stopped at a four-lane divided highway intersection and prepared to turn right. Dams’ friend stopped behind him. Dams looked left and saw a cube van and another vehicle. He turned his bike’s wheel slightly and slowly pulled out, but when he looked again he saw another vehicle approaching in the curb lane which would have hit him had he proceeded with the turn. Dams braked, but because of the angle of the wheel and forward momentum, the bike fell on him and he hurt his ankle.

Dams was insured under an automobile policy issued by TD Home and Auto Insurance Company (“TD”.) In 2009 Dams received accident benefits and commenced a tort action against TD in 2010 seeking damages under the Uninsured Automobile Coverage provisions of his policy.

TD appeals the trial decision to grant Dams relief from forfeiture despite non-compliance and apportioning liability at 60% for Dams and 40% the unidentified vehicle. TD argues the trial judge erred in finding negligence on the part of the unidentified driver. Dams cross-appeals on the issue of liability and argues that the trial judge erred by finding liability against him.

Issues:

  1. Did the trial judge err in granting Dams forfeiture relating to his failure to comply?
  2. Did the trial judge err by apportioning liability?

Holding: Appeal and cross-appeal dismissed.

Reasoning:

(1) No. The trial judge had jurisdiction under s. 129 of the Insurance Act to grant Dams relief from forfeiture related to his failure to comply in a timely manner with certain reporting requirements concerning uninsured automobile coverage.

Dams failed to comply with the police report and accident statement information requirements within the time frame. Dams did not notify TD about the accident until approximately 2.5 months after the accident. TD treated it as an accidents benefits case and did not conduct any investigation. Dams had no idea he could bring an action for pain and suffering until he met with a lawyer. He tried to file a report with the police but they said it would be useless.

The courts have continually held that the court’s discretion under s. 129 of the Insurance Act is limited only to policy conditions that relate to proof of loss. It relates to things or matters required to be done in relation to the loss, like imperfect compliance.

To seek availability of relief under s. 129 of the Insurance Act, the Schedule must be read in its entirety.

(2) No.  The trial judge was able to make findings on the evidence before him to make the findings he did and to apportion liability accordingly. There was nothing unreasonable in the trial judge’s allocation of liability. Dams was required to yield the right of way to the unidentified vehicle which is considered an “immediate hazard.”

Both Dams and the unidentified driver had several obligations. Dams was required to stop his motorcycle at the stop line before continuing the turn. The unidentified driver was required to maintain a proper lookout and pass in the passing lane if it was safe to do so. The trial judge weighed testimony regarding these obligations and the events. From this, he made several findings of fact related to this which he was open to make.

Hawthorne v. Markham Stouffville Hospital, 2016 ONCA 10

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

Counsel:

Prakash Pooran, for the appellants

Meredith E. Jones, for the respondents

Keywords: Torts, Negligence, Medical Malpractice, Summary Judgment, Evidence, Medical Records, Limitation Periods, Limitations Act, 2002, Discoverability

Facts:

The appellants claimed damages for medical malpractice resulting from Ms. Hawthorne’s treatment for a urinary tract infection. She asserted that high doses of steroids were administered to her without consent, which caused her to slip into a coma and suffer loss of memory and vision and paralysis. Ms. Hawthorne had commenced three actions in respect of the alleged medical malpractice. Only the third action progressed. In the relevant statement of claim, the appellants pleaded that Ms. Hawthorne became aware of the malpractice when she retrieved her medical records from two of the defendant hospitals in October and November 2011. The respondents successfully brought a motion to dismiss the action as statute-barred.

The appellants appealed this order and asserted that the motion judge erred by failing to give effect to evidence that was available in the motion record but that was not referred to in argument.

Issue:

Did the motion judge err in failing to give effect to evidence that was available in the motion record but that was not referred to in argument?

Holding: Appeal dismissed.

Reasoning:

No. The court reasoned that the failure of the appellants to respond to the summary judgment motion with evidence to rebut the presumption relating to discoverability under the Limitations Act, 2002 was fatal. Pleadings are not evidence, and thus the appellants were unable to rely on the pleading of a timely discovery date in their third action.

Specifically, the two receipts that were in the record could not have affected the result as they were insufficient to overcome the statutory presumption in the Limitations Act, 2002. The receipts did not advance the appellants’ discoverability argument in the absence of any explanation by Ms. Hawthorne connecting what was in the records and the discovery of her claim.

Schnier v. Canada (Attorney General), 2016 ONCA 5

[Gillese, Blair and Brown JJ.A.]

Counsel:

Kevin Dias and Maria Vujnovic, for the appellant

Fred Tayar, for the respondent

Keywords: Bankruptcy and Insolvency, Discharge from Bankruptcy, Bankruptcy and Insolvency Act, section. 172.1, Statutory Interpretation, Tax Shelters, Income Tax Act

Facts:

The respondent bankrupt is a tax lawyer. His bankruptcy arose out of investments he made in two types of tax shelters that he believed at the time were permitted under the Income Tax Act (“ITA”). At the time of his discharge hearing, the respondent had unpaid income tax assessments totaling approximately $4.478 million. About $4.424 million of that amount was subject to outstanding appeals he had filed in the Tax Court of Canada. If the full assessed amount was considered part of his personal income tax debt, ss. 172.1 of the Bankruptcy and Insolvency Act (the “BIA”) would apply to his bankruptcy; if the appealed amounts were excluded, ss. 172.1 would not apply. The Registrar in Bankruptcy held that ss. 172.1 of the BIA did not apply to the respondent’s application for discharge. The Registrar ordered the discharge of the bankrupt from bankruptcy, subject to the condition that he remit to the trustee the remaining surplus income payable, up to a maximum of $10,000. The motion judge dismissed the Attorney General’s motion by way of appeal from the discharge order. The Attorney General further appealed. The relief sought by the Attorney General on this appeal was limited to a determination that ss. 172.1 of the BIA applied at the discharge.

Issue:

In calculating the respondent’s personal income tax debt under BIA ss. 172.1(1), should the assessed amounts of personal income tax that were under appeal at the time of his discharge hearing be included?

Holding: Appeal dismissed.

Reasoning:

No.  Special rules govern discharge hearings in income tax-driven personal bankruptcies. Section 172.1 of the BIA provides that where the bankrupt has $200,000 or more of personal income tax debt and that personal income tax debt represents 75% or more of the bankrupt’s total unsecured proven claims, the timing of the discharge hearing, the discharge orders available to the court to make, and the factors the court must take into account in deciding the discharge application differ from those applied in a standard bankruptcy. Applying the basic principle of statutory interpretation, the words “personal income tax debt” in BIA s. 172.1(1) must be read in their entire context. The Attorney-General’s arguments took too narrow a view. Both the motion judge and the Registrar were correct in concluding that until the Tax Court of Canada disposed of the respondent’s appeals of the CRA’s assessments, the CRA’s claim in the bankruptcy for the assessed amount under appeal was a contingent one which the trustee could refuse to admit as a proven claim. Consequently, the motion judge and the Registrar correctly concluded that ss. 172.1 of the BIA did not apply at the discharge hearing.

Packall Packaging Inc. v. Ciszewski, 2016 ONCA 6

[Doherty, Brown and Miller JJ.A.]

Counsel:

Peter W.G. Carey, for the appellants

Geoffrey D.E. Adair, Q.C., for the respondents

Keywords: Corporations, Family Law, Contracts, Separation Agreements, Implied Terms, Business Efficacy, Officious Bystander Test, Sale of Shares, Consent, Injunction, Financial Disclosure, Audited Financial Statements, Ontario Business Corporations Act, Section 148, Summary Judgment

Facts:

Anita Ciszewski (“Anita”) and the respondent, Henry Ciszewski (“Henry”) divorced in 2010.  Henry founded and operates Packall Packaging Inc. (“PPI”) with ownership split between the parties. Anita holds her interest in PPI through a complex structure of holding companies and a family trust (“Anita Co.”). The respondent companies associated with PPI are referred to as the “Packall Group of Companies”. The parties entered into a written separation agreement (the “Separation Agreement”) that allows for Henry and Anita to transfer their shares of PPI to a holding company they control individually, provided there are no adverse tax consequences and the holding company will be the recipient of the dividend payments provided for in the Separation Agreement.

A year after the parties signed the Separation Agreement, Anita approached Henry to create a succession plan to cover potential tax liabilities in the event of the sale or deemed disposition of their shares, however, no agreement was reached. In response, Anita threatened to sell her shares and began to solicit interest from third parties in buying the shares, including competitors of PPI.

Henry moved for an injunction to prevent Anita Co. from selling its shares without his consent. Anita brought a cross-motion for; summary judgment, a variety of relief regarding the corporate governance of the Packall Group of Companies, financial disclosure by Henry of monies he has received from Packall Group of Companies, and a declaration that she was free to sell her shares in Anita Co.

The motion judge granted the injunction order sought by Henry that prohibits Anita from selling her shares without Henry’s consent. He granted some of the corporate governance relief sought by Anita but did not grant the order for financial disclosure from the Packall Group of Companies.

Issues:

  1. Did the motion judge err in implying a term in the Separation Agreement?
  2. Did the motion judge err in refusing to require the delivery of audited financial statements?
  3. Did the motion judge err in not requiring Henry to disclose all monies received from the Packall Group of Companies since 2010?

Holding: Appeal allowed in part.

Reasoning:

(1) No.  Anita argued that the motion judge erred in finding that there was an implied term in the Separation Agreement that prevented either party from disposing of their shares without the consent of the other.  Anita acknowledged that the motion judge was correct that a court may imply a term in a contract where it is necessary to give business efficacy to the contract or apply the “officious bystander” test to determine if it is a term which the parties would obviously have assumed. Specifically, Anita submitted that the motion judge erred in finding that the implication of a term was necessary to give business efficacy to the Separation Agreement.

The court agreed with the motions judge that allowing Anita to freely sell her shares could result in her no longer receiving dividend payments from the Packall Group of Companies. These dividend payments are a main component of the Settlement Agreement and this was not what the Separation Agreement intended. Anita was required to remain a shareholder of her holding company so that the dividends could flow to her.

The court also rejected Anita’s submission that the motion judge erred in failing to find that the express terms of the Separation Agreement prevented the finding of an implied term.

(2) Yes. Anita argued that the motion judge erred because s. 148 of the Ontario Business Corporations Act requires audited financial statements unless all shareholders consent to an exemption from that requirement. The court agreed with Anita but only with respect to the one company where Anita Co. is a shareholder. Section 148 does not authorize a court to exempt a corporation from complying with the mandatory requirement to provide shareholders with annual audited statements.

The court rejected Anita’s argument that as one of the three co-trustees of the Ciszewski family trust, she is “a direct shareholder” of 835474 Ontario Limited and is entitled to audited financial statements from them. The records did not show whether the share register of 835474 Ontario Limited recorded its shareholder as the Ciszewski family trust or the three individual co-trustees. As well, a provision of the trust agreement provided that questions requiring action by the trustees need the consent of a majority of the trustees.

(3) No. The motion judge did not err in his decision to dismiss Anita’s request for an order compelling Henry to provide a complete accounting of all monies received by him by the Packall Group of Companies. Anita failed to demonstrate that the motion judge erred in principle or law, that he did not consider a relevant factor or made a palpable and overriding error in respect of any finding of fact.

Khosa v. Homelife/United Realty Inc., 2016 ONCA 3

[Pepall, Pardu and Roberts JJ.A.]

Counsel:

Douglas G. Edward, for the appellant

Pathik Baxi, for the respondents

Keywords: Debtor-Creditor, Summary Judgment, Limitation Period

Facts:

Appellant appeals a summary judgment in which the judge dismissed the appellant’s action against the respondents.  The action was dismissed based on a finding that the limitation period had expired.  The appellant claims that he received a cash payment of $5,000 from the respondent which part payment served to extend the limitation period.  The respondents denied making any payment.

Issue:

Did the motion judge err in granting summary judgment in the absence of failing to resolve the material contradictions in the evidence, including the payment?

Holding: Appeal Allowed

Reasoning:

The court held that the appeal must be allowed and the summary judgment set aside and the motion dismissed because the motion judge failed to settle the competing and contradictory evidence.  The motion judge failed to make any findings on this issue.  Further, the court ruled that the motion judge still had to be satisfied that there was no genuine issue requiring trial, which the motion judge did not do.

Tyoga Investments Ltd. v. Service Alimentaire Desco Inc., 2016 ONCA 15

[Juriansz, Hourigan and Brown JJ.A.]

Counsel:

John M. Picone and Pamela Sidey, for the appellant

Colleen Butler and Peter McKenna, for the respondent

Keywords: Contracts, Jurisdiction, Forum Non Conveniens, Real and Substantial Connection, Stay of Proceedings

Facts:

The appellant is a Québec corporation and the respondent is an Ontario corporation.  They had a contractual relationship whereby the respondent imported chicken from the United States under a federally granted quota and sold that chicken to the appellant.  The appellant processed the product with product from other sources and sold the processed product throughout Canada, directly and through distributors.  A dispute arose and the respondent sued the appellant in Ontario.

The appellant brought a motion for a stay of proceedings on the basis that the Ontario courts lacked jurisdiction over the dispute between the parties, or alternatively, that Ontario was forum non conveniens.  The motion judge dismissed the motion.  Specifically, the motion judge found that the parties entered into a contract made in Ontario in 2009 that was renewed annually on the same terms subject to a change in the respondent’s fees.  The motion judge also found that the contract was connected with the dispute.  The motion judge also found that the appellant carried on business in Ontario, that the appellant had not satisfied its onus of rebutting the presumption of a real and substantial connection between the claim and Ontario and finally, that the appellant had not established that Québec was a clearly more appropriate jurisdiction to try the action.

On appeal, the appellant submitted that the contract that governs the dispute was made in 2013 and that the 2013 contract and the 2009 contract were both made in Québec, not Ontario and that, in any event, its business of selling product in Ontario is not related to the contract.

Issue:

Is Quebec clearly the more appropriate forum to try this action?

Holding: Appeal Dismissed

Reasoning:

No.  The court found that the motion judge did not make any palpable and overriding errors.  Moreover, the appellant’s argument that Québec was the clearly more appropriate forum failed, as it was premised on the same alleged errors that the appellant advanced on its jurisdictional argument.

Civil Endorsements

Nine-North Logistics Inc. v. Atkinson, 2015 ONCA 913

[Simmons, LaForme and Huscroft JJ.A]

Counsel:

Joseph J. Neal, for the appellant

Ashley H. McInnis, for the respondent

Keywords: Non-Competition Covenants, Director, Supplier, Appeal Dismissed

Eustace v. Eustace, 2016 ONCA 9

[Juriansz, Hourigan and Brown JJ.A.]

Counsel:

Ajay Duggal, for the appellant

No one appearing for the respondent

Keywords: Family Law, Trial, Trial Management Conference, Disclosure, Procedural Unfairness, Submissions

Children’s Aid Society of Toronto v. S.C., 2016 ONCA 16

Counsel:

I.K., acting in person

Katie Skinner and Mae-Tuin Seto, for the respondent

Keywords:  Family Law, Custody and Access, Evidence, Appeal Dismissed

Criminal Decisions

R. v. F.T., 2015 ONCA 904

[Strathy C.J.O., Lauwers J.A. and Speyer J. (ad hoc)]

Counsel:

Timothy Breen, for the appellant

Melissa Adams, for the respondent

Keywords: Criminal Law, Physical and Sexual Abuse against a Minor, Assault Causing Bodily Harm, Bad Character Evidence, Mental Health Issues, Appeal Allowed

 Ernest v. France, 2015 ONCA 907 

[Weiler, Pardu and Benotto JJ.A.]

Counsel:

Christine Mainville, for the applicant

Heather J. Graham, for the respondent

Keywords: Criminal Law, Extradition, Judicial Review, Criminal Code, Aggravated Assault, Attempted Murder, Authority to Proceed, Surrender Order, Abuse of Process, Disclosure

 R. v. Armacki, 2015 ONCA 910

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

Counsel:

Paul Calarco, for the appellant

Chris Chorney, for the respondent

Keywords: Criminal Law, Break and Enter, Theft under $5,000, Admissibility of Eye Witness Evidence, Appeal Dismissed

 R. v. H.A.K., 2015 ONCA 905

[Feldman, Gillese and Watt JJ.A.]

Counsel:

Catriona Verner, for the appellant

Michael Medeiros, for the respondent

Keywords: Criminal Law, Sexual Assault, Unlawful Confinement, Credibility, Failure to Instruct Jury on s.27 of Criminal Code, Appeal Dismissed

R. v. Budhoo, 2015 ONCA 912

[Feldman, Benotto and Roberts JJ.A.]

Counsel:

Michael W. Lacy and Brad Greenshields, for the appellant

Michael Bernstein, for the respondent

Keywords: Criminal Law, Group Brawl, Aggravated Assault, Possession of a Weapon, Assault, Self Defence, Appeal Allowed

R. v. Lavigne, 2015 ONCA 915

[Juriansz, Watt and Roberts JJ.A. ]

Counsel:

Kashmeel McKöena, for the appellant

Greg Skerkowski, for the respondent

Keywords: Criminal Law, Sexual Exploitation, Sexual Intercourse with a Minor, Reliability of Witnesses, Appeal Dismissed

R. v. Shipley, 2015 ONCA 914

[Juriansz, Watt and Roberts JJ.A]

Counsel:

Andrew Furgiuele, for the appellant

Marie Comiskey, for the respondent

Keywords:  Criminal Law, Possession of Cocaine for Purpose of Trafficking, Possession of Property Obtained by Crime, Appeal Dismissed

R. v. McKenzie, 2015 ONCA 917

[Juriansz, Watt and Roberts JJ.A]

Counsel:

James Carlisle, for the appellant

Matthew Asma, for the respondent

Keywords: Criminal Law, Attempted Murder, Robbery, Possession of a Weapon Dangerous to Public Peace, Dangerous Offender, Appeal Dismissed

R. v. Porta, 2015 ONCA 924

[Juriansz, Watt and Miller JJ.A.]

Counsel:

Robert Sheppard, for the appellant

Lorna Bolton, for the respondent

Keywords: Criminal Law, Leave to Appeal, Summary Conviction, Evidence, s. 839(1)(a) of the Criminal Code, Appeal Dismissed

R. v. Meldrum, 2015 ONCA 925

[Juriansz, Watt and Roberts JJ.A. ]

Counsel:

James Foord, for the appellant

Craig Harper, for the respondent

Keywords: Criminal Law, Dangerous Driving Causing Bodily Harm, Misapprehension of Evidence, Appeal Dismissed

R. v. Young, 2015 ONCA 926

[Juriansz, Watt and Roberts JJ.A]

Counsel:

Brian G. Puddington, for the appellant

Robert Sheppard, for the respondent

Keywords: Criminal Law, Possession for Purposes of Trafficking, Stay of Charges, Crown Counsel Failed to Appear on Time, Appeal Allowed

R. v. Gilbert, 2015 ONCA 927

[Laskin, MacFarland and Rouleau JJ.A]

Counsel:

Frank Addario and Andrew Burgess, for the appellant

Hannah Freeman, for the respondent

Keywords: Criminal Law, Sexual Exploitation, Criminal Code, s.153(1), Evidence, Inconsistent Allegations, Appeal Dismissed

R. v. Duncan, 2015 ONCA 928

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

Counsel:

Ingrid Grant, for the appellant Duncan

Richard Litkowski, for the appellant Stevenson

Milica Potrebic, for the respondent

Keywords: Criminal Law, Trafficking Drugs and Firearms, Conspiracy to Possess Proceeds of Crime, Evidence, Admissibility, Intercepted Calls, Canadian Charter of Rights and Freedoms, Appeal Allowed in Part

Reisher (Re), 2015 ONCA 929

[Laskin, Hourigan and Pardu JJ.A]

Counsel:

Anita Szigeti, for the appellant

Katherine Stewart, for the respondent Crown

Gavin S. MacKenzie, for the respondent Person in Charge of the Centre for Addiction and Mental Health

Keywords: Criminal Law, Ontario Review Board, Absolute Discharge, Threat to Safety of the Public, Not Criminally Responsible by Reason of Mental Disorder, Carrying Dangerous Weapon, Appeal Dismissed

R v. Vivares, 2016 ONCA 1

Counsel:

Malaquias Vivares, acting in person

Rebecca Huang, appearing as amicus curiae

Shain Widdifield, for the respondent

Keywords:  Criminal Law, Firearms Act, Handgun Registration, Grandfathering Provisions, Appeal Dismissed

R v. Barrett, 2016 ONCA 12

Counsel:

Richard Litkowski, for the appellant

Karen Papadopoulos, for the respondent

Keywords: Criminal Law, Second Degree Murder, Provocation, Jury Instructions, Exculpatory Statements, Parole Ineligibility, Appeal Dismissed

R v. Hall, 2016 ONCA 13

Counsel:

Amanda Rubaszek, for the appellant

Dirk Derstine and Stephanie DiGiuseppe, for the respondent

Keywords:  Criminal Law, Counselling Murder, Acquittal, Admissibility of Statements, Intercepted Communications, Appeal Dismissed