Hello everyone,

There was one substantial civil law decision from the Court of Appeal this week, along with a number of shorter endorsements. The more substantive decision was an insurance case where a home insurer tried to bring a subrogated claim against its own insured in order to access the insured’s auto policy.  The court confirmed that an insurer cannot sue its insured for the very loss covered. Other topics covered this week included default judgments, summary judgment, equitable set-off, fraudulent conveyances, vexatious litigants, family law, and the Repair and Storage Liens Act.

Enjoy your weekend.

John Polyzogopoulos

Blaney McMurtry LLP

JPolyzogopoulos@blaney.com

Tel: 416.593.2953

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

Table of Contents

Civil Cases

Rochon v. Rochon, 2015 ONCA 746 (click on the case to read the summary)

Keywords: Insurance Law, Fire Loss, Interpretation, Unnamed Insured, Insurable Interest, Factual Expectancy Test, Kosmopoulos v. Constitution Insurance Co. of CanadaScott v. Wawanesa Mutual Insurance Co., Subrogation, Whether Home Insurer Could Bring Subrogated Claim Against Negligent Unnamed Insured

Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 (click on the case name to read the summary)

Keywords: Vexatious Litigants, Motion to Dismiss, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1

Frankie Tomatto’s Woodbine Inc. v. De Groot, 2015 ONCA 739 (click on the case name to read the summary)

Keywords: Civil Procedure, Noting in Default, Default Judgment, Setting Aside

Todd Brothers Contracting Limited v. Algonquin Highlands (Township), 2015 ONCA 737 (click on the case name to read the summary)

Keywords: Contract Law, Summary Judgment

Correia v. Smith, 2015 ONCA 743 (click on the case name to read the summary)

Keywords: Personal Property, Liens, Repair and Storage Liens Act, s. 15, Vehicle Lease, Notice of Sale, Improper Notice, Damages

Tribecca Finance Corporation v. Tabrizi, 2015 ONCA 748 (click on the case name to read the summary)

Keywords: Contract Law, Mortgages, Default, Equitable Set-Off, Duress, Bad Faith, Breach of Fiduciary Duty, Consolidation of Proceedings, Civil Procedure, Summary Judgment

Indcondo Building Corporation v. Sloan, 2015 ONCA 752 (click on the case name to read the summary)

Keywords: Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Fraudulent Conveyances,Fraudulent Conveyances ActAssignments and Preferences Act, Setting Aside Transfers, Piercing the Corporate Veil, Laches, Delay

Cortina v. Cortina, 2015 ONCA 750 (click on the case name to read the summary)

Keywords:   Family Law, Equalization of Property, Exclusion of Gifts, Inter Vivos Gifts, Child Support, Custody, Costs Consequences, Family Law Act, s. 4(2), Family Law Rules, R. 18(14)

For a list of Civil Law Endorsements, click here

For a list of Criminal Law decisions, click here

Civil Cases

Rochon v. Rochon, 2015 ONCA 746

[Simmons, Epstein, and Pardue JJ.A.]

Counsel:

Steve Baldwin and Daniel Baldwin, for the appellants

Alan L. Rachlin, for the respondent

Keywords: Insurance Law, Fire Loss, Interpretation, Unnamed Insured, Insurable Interest, Factual Expectancy Test, Kosmopoulos v. Constitution Insurance Co. of CanadaScott v. Wawanesa Mutual Insurance Co., Subrogation, Whether Home Insurer Could Bring Subrogated Claim Against Negligent Unnamed Insured,

Facts:

There was a fire in the garage of Paulette and Marcel Rochon’s home when their son, Francois Rochon was working on his car in the garage. Francois Rochon entered the home for a brief period of time, and upon his return to the garage he noticed the garage and his car were engulfed in flames. The fire spread causing extensive damage. The house was insured under a residential homeowner’s insurance policy (the “Policy”) issued by Grenville Mutual Insurance (“Grenville”). Paulette and Marcel Rochon were the named insureds and Francois Rochon was an unnamed insured. The definition of who is insured under the Policy read as follows:

“You” or “your” means the person(s) named as Insured on the Declaration Page and, while living in the same household, his or her spouse, the relatives of either or any person under the age of 21 in their care. “Spouse” includes either of two persons who are not married to each other and have lived together continuously for a period of not less than three years or, in a relationship of some permanence where there is a child born of whom they are the natural or adoptive parents, and have cohabited within the preceding year. Only the person named on the Declaration Page may take legal action against us. [Emphasis added by the Court of Appeal]

Grenville paid Paulette and Marcel $148,581.65 for property damage caused by the fire. Francois Rochon had third party liability coverage for loss caused by his negligence in the use and operation of a motor vehicle under an insurance policy with Economical Insurance (“Economical”). Grenville sought to recover from Economical in a subrogated claim alleging that the fire resulted from Francois Rochon’s negligent use and operation of the vehicle.

The trial judge concluded that Francois Rochon was negligent in using equipment to fix his vehicle. However, despite Francois Rochon’s negligence, Grenville was not entitled to subrogate its claim against Economical because an insurer cannot subrogate against its own insured. The language used in the Grenville Policy clearly and unambiguously established Francois Rochon as an insured. Furthermore, Conditions 5, 6 and 11 also supported Francois Rochon was an insured. The trial judge also ruled that Francois Rochon had an insurable interest in the loss. Grenville appealed the decision.

Issues:

  1. Did the trial judge err in concluding that Francois Rochon was an insured under the Policy for the purposes of the claim?
  2. Did the trial judge err in finding that Francois Rochon had an insurable interest in the loss?
  3. Did the trial judge err in not giving effect to the policy argument for allowing subrogation in the circumstances of this case?

Holding: Appeal Dismissed.

Reasoning:

  1. No, the language in the Policy was clear and the trial judge gave effect to it. The Policy unambiguously defined Francois Rochon as an insured under Section 1. He fell under the definition of “you” and “your”, which applied to all sections of the Policy.  Furthermore, there was no inconsistent use of “you” and “your” throughout the Policy. The definition of “you” and “your” and its applicability to Section 1 was unambiguous. The Court of Appeal also recognized that even if it were to hold otherwise, the Supreme Court in Non-Marine Underwriters, Lloyds of London v. Scalera held that in interpreting insurance contracts, standard practice is to construe ambiguities against the insurer. Thus, the definition of “you” and “your” must be interpreted broadly and any ambiguity must be construed against Grenville. If Grenville wished to preclude coverage of Francois Rochon, it was incumbent on Grenville to clearly provide this in the wording of its contract of insurance. The Court of Appeal also rejected Grenville’s privity argument. Thus, the Court of Appeal saw no reason to interfere with the trial judge’s finding that Francois Rochon was an unnamed insured under Section 1 of the Policy.
  2. No. The Court of Appeal relied on the Supreme Court’s decision in Kosmopoulos v. Constitution Insurance Co. of Canada which defined insurable interest in terms of the factual expectancy test. This means “To ‘have a moral certainty of advantage or benefit, but for those risks or dangers’ or ‘to be so circumstanced with respect to [the subject matter of insurance] as to have benefit from its existence, prejudice from its destruction’ is to have an insurable interest in it.” Thus, an insurable interest exists if, apart from the insurance contract itself, the insured would benefit or suffer from the continued existence or destruction of the subject-matter of insurance or from the occurrence of the insured-against risk. In Scott v. Wawanesa Mutual Insurance Co., the Supreme Court applied the factual expectancy test from Kosmopoulos and concluded that an insurable interest in a residence can exist absent legal ownership.

The Court of Appeal held that there were two areas that Francois Rochon had an insurable interest in the loss. First, Section 1 of the Policy stated that the contents of the dwelling and any other personal property owned, worn, or used while on the premises was insured. The trial judge found as fact that Francois Rochon had contents and tools on the premises and therefore he had an insurable interest in the loss. Second, Scott shows that the rights and interests of parents and their children are highly interrelated when they are living together. A loss or gain in relation to the property necessarily affects them both. Thus, by applying the analysis in Kosmopoulos and Scott, Francois Rochon had an insurable interest in the garage as he was a dependent living with his parents, which made his interests “inseparably connected” to that of his parents. The garage formed part of the residence that he enjoyed with his parents. He received a “benefit” from the family garage and its contents, and suffered “direct prejudice” when it was destroyed by the fire. The Court of Appeal held that Scott was dispositive of whether Francis Rochon had an insurable interest in the loss.

  1. No, there are multiple policy reasons for dismissing Grenville’s subrogation claim against Economical. Insurers should not be permitted to subrogate against their own insured. It is irrelevant that an insured may have other insurance. The aim of subrogation is to avoid overpayment of the insured, so a lawsuit by an insurer against its insured would not fulfill this aim.  Further, the insurer contracted to take onto itself the very risk at issue, which takes it away from the insured. The Court of Appeal also agreed that Conditions 5, 6 and 11 would be contrary to Francois Rochon’s interest if his own insurer could sue him under the Policy.

Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 

[Blair, Hourigan and Brown JJ.A.]

Counsel:

Giuliano Scaduto, acting in person

Antonios T. Antoniou and Frank Caruso, for the respondent Law Society of Upper Canada

Jeremy Glick and Heather Burnett, for the respondent Attorney General for Ontario

Keywords: Vexatious Litigants, Motion to Dismiss, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1

Facts:

Mr. Scaduto was an employee at a Swiss Chalet restaurant between 1993 and 2004. He brought a claim before the Workplace Safety and Insurance Board (the “WSIB”) for work-related injuries. He was unsuccessful in this claim all the way up to the Supreme Court of Canada, which denied his application for leave to appeal in 2013.

In 2015, Mr. Scaduto commenced an application against the Attorney General and the Law Society. He sought damages based on the Law Society’s alleged failure to fulfil its statutory duties insofar as it did not investigate his complaints about various lawyers, including the Registrar of the Supreme Court of Canada, who had refused Mr. Scaduto’s request for reconsideration of the Court’s dismissal of his leave to appeal application. He also sought an order compelling the Law Society to bar a convicted criminal from lecturing before the Ontario Bar.

The Attorney General brought a motion to dismiss the application as frivolous or vexatious under Rule 2.1.01(6). The motion judge reviewed Mr. Scaduto’s written submissions and dismissed his application as being frivolous and vexatious on its face. The motion judge also found that Mr. Scaduto’s complaints were an attempt to re-litigate the issues at play in his failed WSIB claim. Mr. Scaduto appealed.

Issues:

  1. Did the motion judge err in law by not reviewing the large volume of evidence filed in the Applicant’s amended application record before striking his application?

Holding: Appeal dismissed. Motion judge did not err in law or in fact in the approach he took or in the conclusion he reached.

Reasoning:

The court acknowledged that, while a relatively new rule, Rule 2.1 should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process. However, the rule should only be used in clear cases where the abusive nature is apparent on its face.

The court fully endorsed the case law and the guidance provided by the motion judge in the interpretation and operation of Rule 2.1

  1. No. Rule 2.1 is designed to permit the court to dismiss frivolous or vexatious proceedings in a summary manner. Resorting to evidence defeats the purpose of the rule and leads to the danger that the Rule 2.1 process will itself become “a vehicle for a party who might be inclined to inflict the harms of frivolous proceedings on the opposing parties and the civil justice system” (Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6100).

The motion judge did not err in restricting his analysis to a review of the notice of application and Scaduto’s written submissions. Based on this material, he was able to conclude that the pleading was, on its face, frivolous and vexatious, and incapable of success. The court concluded the application judge did not err in law or fact in the approach he took or in the conclusion he reached.

Frankie Tomatto’s Woodbine Inc. v. De Groot, 2015 ONCA 739

[Blair, Hourigan and Brown JJ.A.]

Counsel:

Amandeep Sidhu, for the appellant

Alex Minkin, for the respondent

Keywords: Civil Procedure, Noting in Default, Default Judgment, Setting Aside

Facts:

The appellant appeals from the order of Diamond J. dismissing his motion to set aside the noting of default and default judgment against him.

Issues:

  1. Did the motion judge err in finding that the appellant did not bring his motion to set aside the default judgment without undue delay?
  2. Did the motion judge fail to consider the potential prejudice to the appellant or the respondent in the event the motion to set aside was dismissed or granted?

Holding: Appeal dismissed

Reasoning:

  1. No, the motion judge was correct in deciding that the appellant did not move expeditiously enough to set aside the default judgment.  The appellant responded to the default judgment more than 5 months after he was noted in default.  The court ruled that this was unacceptable, and the appellant had no reason for the undue delay.
  2. No, the court relied on the test in Mountain View Farms, and considered the potential prejudice to the moving party should the motion be dismissed and the potential prejudice to the responding plaintiff should the motion be allowed, as well as the effect of any order the court might make on the overall integrity of the administration of justice.  The Court of Appeal agreed with the motion judge, and stated that the motion judge understood that by dismissing the appellant’s motion to set aside the default judgment, the appellant would not be able to defend the claim. Further, the appellant continued to breach several court orders relating to the respondent’s efforts to enforce the default judgment. The court saw no error by the motion judge in his application of this part of the test.

Todd Brothers Contracting Limited v. Algonquin Highlands (Township), 2015 ONCA 737

[Feldman, Lauwers and Benotto JJ.A.]

Counsel:

Leo Klug, for the appellant

Todd Robinson, for the respondent

Keywords: Contract Law, Summary Judgment

Facts:

The motion judge had granted summary judgment to the respondent Township in dismissing the appellant’s claim on a construction contract for the refurbishment and extension of a small airport.

The motion judge relied heavily on a waiver clause signed by the appellant. Two issues in the waiver were in dispute: the parties agreeing to not seek compensation for damages caused “(c) as a result of any other public issues/concerns” or “(d) as the result of the withdrawal of funding from applicable sources.”

While the motion judge found that the respondent was entitled to rely upon the written waiver, the appellant argued that there was no evidence to support reliance on the “other public issues/concerns” provision. The respondent argued that there was public outcry about the project so as to trigger the clause.

Issues: Did the motion judge err in relying on the waiver in his ruling?

Holding: Appeal Dismissed.

Reasoning:

No, the court held that the evidence supported the motion judge’s decision that the respondent was obliged to consider the joint development and that failing to pursue the joint project “risked withdrawal of provincial funding.” There was ample support for the finding that the respondent was entitled to rely upon the written waiver.

Counsel for the appellant also argued that it was unable to get a clear explanation as to why the respondent failed to proceed with the original project submitted and thus the motion judge should have refused summary judgment. The court rejected this argument as well and found that the original project was superseded by the joint project. The appellant could have used other avenues under the Rules of Civil Procedure open to a party to a pending motion to obtain information from other parties as to why the appellant did not participate in the joint project, but did not avail itself of those procedural tools.

Finally, the court held that the appellant failed to identify any error of law or a palpable and overriding error of fact in the motion judge’s application of the waiver clause in granting summary judgment.

Correia v. Smith, 2015 ONCA 743

[Feldman, Lauwers and Benotto JJ.A.]

Counsel:

Matthew R. Todd, for the appellant 6395287 Canada Incorporated c.o.b.a. Canadian Diesel Services

Kowlasar Misir, for the respondents

Keywords: Personal Property, Liens, Repair and Storage Liens Act, s. 15, Vehicle Lease, Notice of Sale, Improper Notice, Damages

Facts:

The application judge awarded the respondent damages for breach of a vehicle lease agreement and improper sale of the respondent’s vehicle by the appellant, Canadian Diesel, under the Repair and Storage Liens Act (the “Act”.) The application judge found that Canadian Diesel’s notice was improper because: it lacked a statement about redemption; it did not mention to whom payment was to be made, as required by ss. 15(3)(e) of the Act; and it provided no particulars of the private or public sale required by ss. 15(3)(f).

Issue:  Did the application judge err in deciding that the notice did not comply with the Act?

Holding: The appeal is allowed and the application is dismissed with costs. The appellant is entitled to $6,000 for the costs of the appeal and $7,000 for the costs of the underlying application.

Reasoning:

The requirements for a notice of intention to sell an article are contained in s. 15 of the Act. TheAct does not prescribe the form of the notice.

The application judge thought the notice did not contain the proper information regarding redemption. However, the notice did contain a statement about redemption. The Act requires the notice contain a statement of “the name of the person to whom payment may be paid”. The notice was on Canadian Diesel Services’ letterhead, and Canadian Diesel was the “person to whom payment may be made.” The notice was sent by a named representative. Therefore, the notice did comply with ss. 15(3)(e) of the Act.

Subsection 15(3)(f) requires the notice contain “a statement of the date, time and place of any public sale…” The application judge thought the notice was deficient because it did not contain this information. However the Panel held that the notice did contain the appropriate information because it said there would be a private sale after 25 days. The notice therefore complied with the statute.

The application judge also held that the notice was not properly served on the respondents. However, there was clear evidence that the notice was properly served by registered mail. The notice was returned by Canada Post, but regardless, the Act deemed notice to be effective. In any event, a Canadian Diesel representative attended the respondents’ house (the same address to which the letter was addressed) The representative told Correia the situation.

The application judge found that the original notice had been nullified by the entering into of agreement settlement that never went ahead. However, because this compromise was not completed and did not amount to a nullification of the original notice requiring Canadian Diesel to start the notice of sale process over again.

Tribecca Finance Corporation v. Tabrizi, 2015 ONCA 748

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

Counsel:

Adam Wainstock, for the appellants

Maureen Whelton and Neil G. Wilson, for the respondent

Keywords: Contract Law, Mortgages, Default, Equitable Set-Off, Duress, Bad Faith, Breach of Fiduciary Duty, Consolidation of Proceedings, Civil Procedure, Summary Judgment

Facts:

The appellants, Ani Tabrizi and Haroutioun Tabrizi (“Tabrizi”) entered into a contract with the respondent, Tribecca Finance Corporation (“Tribecca”) for the construction of their home. Tabrizi alleges that Tribecca’s principal, Rajan Kaushal, wrongly took over control of construction of the project and increased the costs unnecessarily. This delayed Tabrizi from selling the home and repaying the mortgage at an earlier date, which forced Tabrizi to obtain financing from Tribecca on unfavourable terms.

The terms of the financing reduced Tabrizi’s equity in the property resulting in its sale by the first mortgage at substantial loss. Tabrizi argued that the mortgage agreement was entered into under duress and that Tribecca’s actions amounted to fraud, bad faith, and breach of its fiduciary duty. Tabrizi argued that they are entitled to an equitable set-off against the mortgage debt.

After the default judgment in the mortgage enforcement action was set aside, Tabrizi commenced a second set of proceedings against Tribecca in Toronto (the “Toronto action”). In response to Tribecca’s summary judgement motion, Tabrizi also brought a cross-motion for consolidation of the two proceedings. Tribecca was successful on its motion for summary judgment under the mortgage action. The motion judge also refused to consolidate the two actions.

Issues:

The appellants submitted that the motions judge erred in:

  1. finding that the appellants were not entitled to equitable set-off against the mortgage due to bad faith;
  2. refusing to consolidate the mortgage action with the Toronto action;
  3. refusing to stay the judgment in the mortgage action pending the Toronto action; and
  4. the quantum of costs ordered.

Holding: Appeal dismissed with costs to the respondent.

Reasoning:

The court rejected the first three submissions by Tabrizi and declined to grant leave to appeal the costs order. The motion judge made findings of fact that were fully supported by the record before her. She noted that the Tabrizis were a sophisticated couple and had the benefit of independent legal advice. The motion judge accepted Tribecca’s evidence for the circumstances of the second mortgage granted to Tribecca and that the construction was done within budget.

Importantly, Tabrizi failed to take advantage of the termination or arbitration clauses available to them and only complained about Tribecca’s conduct late in the process. All of these findings together support the motion judge’s rejection of the claim of bad faith, duress and that Tribecca did not owe a fiduciary duty.  These findings disposed of the set-off claim against the mortgage debt.

The judge made no error in declining to consolidate the claims. This judgment does not affect Tabrizi’s ability to pursue the Toronto action and there is no basis for a stay of execution of this judgment pending the disposition of the other action.

Indcondo Building Corporation v. Sloan, 2015 ONCA 752

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

Counsel:

Trung Nguyen, for the appellant

Philip Healey, for the respondents

Keywords: Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Fraudulent Conveyances,Fraudulent Conveyances ActAssignments and Preferences Act, Setting Aside Transfers, Piercing the Corporate Veil, Laches, Delay

Facts:

The appellant sought to set aside four transfers of property pursuant to the Fraudulent Conveyances Act, R.S.O. 1990, c. F-29, in order to satisfy a judgment it obtained against the respondents in 2001. The trial judge found that the respondent Sloan’s conveyances in 1987 and 1988 to his wife and her company were not made with intent to defraud his creditors. He found, however, that transfers of the matrimonial home and a Florida property between 1992 and 1994 were made for that purpose, and set them aside. The trial judge found the conveyances in 1987 and 1988 occurred at a time when Sloan could not reasonably have known that they would impair his ability to discharge his financial obligations. By 1992, however, he knew that he was in significant financial jeopardy and those transactions pointed to a fraudulent intent. The trial judge concluded that the entire proceeds of sale were available to Sloan’s creditors. The trial judge also dismissed the appellant’s claim to pierce the corporate veil of the wife’s company and dismissed the respondents’ defence that the action should be dismissed on the basis of the doctrine of laches.

Issues:

  1. Did the trial judge err in any of his findings of fact?
  2. Did the trial judge err in not finding that the trust arrangements were a “sham”?
  3. Did the trial judge err in dismissing the claim to pierce the corporate veil?
  4. Did the trial judge err in not giving full effect to the doctrine of laches?
  5. Did the trial judge err in failing to give effect to ss. 5(1) of the Assignments and Preferences Act?

Holding: Appeal and cross-appeal dismissed.

Reasoning:

  1. No. The trial judge was in the best position to consider and weigh all the evidence, recognizing the challenges faced by both parties. His findings were based on inferences he drew from the evidence, and from the lack of evidence, and on his assessment of the credibility of the witnesses.
  2. No. The trial judge addressed the argument that the transactions were shams and found otherwise. Indeed, based on Sloan’s evidence and that of his lawyer, the trial judge found that the appellant had failed to establish that the trust arrangements were made with fraudulent intent. The trial judge recognized that the documentation was not as complete as it might have been, but observed that this did not mean the transaction was lacking in good faith.
  3. No. The trial judge concluded that the corporate veil argument could not succeed separate and apart from the issue of the fraudulent conveyances. He was willing to accept that Sloan dominated the affairs of his wife’s company to bring it under his complete control. He noted, however, that conduct akin to fraud that would otherwise unjustly deprive claimants of their rights was not present. The conduct upon which the appellant relied was the same conduct it relied upon to set aside the transactions as fraudulent conveyances.
  4. No. Having presided at the trial, the trial judge was in the best position to determine whether the respondents’ defence was prejudiced by the 23-year delay in bringing the matter to trial. Laches is an equitable doctrine. The party relying on the defence must establish both delay and prejudice resulting from the delay. Although the appellant had been guilty of inordinate delay in the prosecution of the claims, the defendants had not established actual prejudice as a result.
  5. No. The wording of ss. 5(1) of the Assignments and Preferences Act suggests that it does not refer to payments for pre-existing debts but rather to present payments, advances, sales or deliveries. Furthermore, the court did not find it necessary to resolve the issue because this provision was not pleaded and the submission was not made to the trial judge.

Cortina v. Cortina, 2015 ONCA 750 

[Blair, Hourigan and Brown JJ.A.]

Counsel:

Tony Sferruzzi, for the appellant

Deborah Ditchfield, for the respondent

Keywords:   Family Law, Equalization of Property, Exclusion of Gifts, Inter Vivos Gifts, Child Support, Custody, Costs Consequences, Family Law Act, s. 4(2), Family Law Rules, R. 18(14)

Facts:

Ms. Cortina (the “appellant”) appealed from the judgment of Lafreniere J. providing for the custody of her children with Mr. Cortina (the “respondent”), the payment of child support and the equalization of property.

Issues:

  1. Did the trial judge err by awarding sole custody of the children to the respondent?
  2. Did the trial judge err by assessing child support based on the respondent’s 2012 income rather than his 2013 income?
  3. Did the trial judge err by finding that certain inter vivos payments and testamentary bequests received by the Respondent from his mother and his mother’s estate were to be excluded from his net family property calculation?
  4. Did the trial judge err in her decision awarding costs of the trial to the respondent in the amount of $95,498.39?

Holding: Appeal dismissed. Costs varied to the amount of $76,000 inclusive of disbursements and HST.

Reasoning:

  1. No. The custody decision is supported on the evidence and properly reflects the trial judge’s finding on the conduct of the appellant as it pertained to the children and as it would impact the likelihood of a successful shared custody situation. The trial judge was justified in granting full legal custody to the respondent in the circumstances.
  2. No. The child support order was based on the shared custody arrangement and reflected the fact that the respondent has the children for more than 40% of the time. There is no fixed formula for such a determination and it is a matter of judicial discretion to which deference is owed. Further, the trial occurred in October 2013, and there was no error in relying on the Respondent’s 2012 income for the purposes of this calculation. The difference between his 2012 and 2013 income is de minimus in the overall context of the support issues.
  3. No. The monies excluded from the calculation of the respondent’s net family property were validly excluded under s. 4(2) of the Family Law Act as property acquired by gift or inheritance from a third party after the date of marriage. First, there was ample evidence to support the trial judge’s finding that the respondent’s mother intended the monies to go to him alone and not to his spouse. It was for the trial judge to weigh and assess the evidence. The court saw no basis for interfering with her findings or the inferences that she drew on this issue.

Second, the trial judge did not err, in fact or in law, in finding that the monies did not lose their character as gifts or an inheritance by virtue of their having been deposited first into the parties’ joint account. The trial judge accepted the evidence favouring the finding that the respondent had rebutted the presumption that the inter vivos gift monies and the inheritance monies were intended to be owned jointly by the parties simply because the respondent had “parked” them in the joint account prior to transferring them to his wholly-owned investment account more than five years before the breakdown of the marriage.

Third, the property acquired by gift or inheritance (and the income thereon) could be traced back to the inter vivos payments and the inheritance made to the respondent alone.

  1. Yes. Costs ordered were varied because the trial judge erred in awarding costs pursuant to the costs consequences provision of R. 18(14) of the Family Law Rules, O. Reg. 114/99. The trial judge concluded that the respondent’s offer to settle was open for acceptance until the commencement of the trial, therefore meeting the criteria of R. 18(14). However, the offer expired three days before trial and did not meet the R. 18(14) criteria.

The court awarded the costs initially sought by the respondent at trial, on a partial indemnity basis, in the amount of $76,000 all-inclusive. However, as the respondent was substantially successful on appeal, he was entitled to costs of the appeal fixed in the amount of $17,500 all-inclusive.

Civil Law Endorsements

Laurentian Bank of Canada v. Deslandes, 2015 ONCA 742

[Blair, Hourigan and Brown JJ.A.]

Counsel:

Danna Deslandes, acting in person

James M. Butston, for the respondent

Keywords: Summary Judgment, Mortgage Default

Zanewycz v. Manryk, 2015 ONCA 749

[Feldman, Lauwers, Benotto JJ.A.]

Counsel:

Aaron Franks and Michael Zalev, for the respondent

Walter Zanewycz, appellant in person

Keywords: Extension of Time to Perfect Appeal, Costs

Labelle (Re), 2015 ONCA 736

[Hoy A.C.J.O., Laskin and Pardu JJ.A.]

Counsel:

Anna Cooper, for the appellant

Dena Bonnet, for the respondent Crown

Janice Blackburn, for the Person in Charge, Waypoint Centre for Mental Health Care

Keywords: Mental Health, Detention Orders, Protection of the Public

Criminal Law Decisions

R v. C.K., 2015 ONCA 747

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

Counsel: 

John K. Lefurgey, for the appellant

Gavin McDonald, for the respondent

Keywords: Criminal Law, Sexual Assault, Sentencing, Similar Fact Evidence, Bad Character Evidence

R v. Liew, 2015 ONCA 734

[Simmons, Tulloch and Huscroft JJ.A.]

Counsel:

Kevin Wilson, for the appellant

Alan D. Gold and Melanie J. Webb, for the respondent Yu

Keywords: Criminal Law, Admissibility of Evidence, Charter of Rights and Freedoms, s. 8, Unreasonable Search and Seizure

R v. Sinasac, 2015 ONCA 735

[Laskin, Pardu and Roberts JJ.A.]

Counsel:

Paolo Giancaterino and Marco Sciarra, for the appellant

Katherine Zanutto, for the respondent

Keywords: Criminal Law, Sentencing, Sentence Imposed Greater than Requested, Aggravating Factors

R v. Bradey, 2015 ONCA 738

[Weiler, Watt and Epstein JJ.A.]

Counsel:

John Norris and Meara Conway, for the appellant

Roger A. Pinnock and Sean Doyle, for the respondent

Keywords: Criminal Law, First Degree Murder, Arson, Application for Third Party Records, Jury Charge

R v. Ahmed, 2015 ONCA 751

[Feldman, MacPherson and Miller JJ.A.]

Counsel:

Russell Silverstein and A. Cooper, for the appellant

John Patton, for the respondent

Keywords: Criminal Law, Attempted Murder, Possession of a Loaded Restricted Firearm, Prejudicial Cross-Examination

R v. J.A., 2015 ONCA 754

[Cronk, Epstein and Brown JJ.A.]

Counsel: 

Jill Makepeace, for the appellant

Deborah Calderwood, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Interference, Invitation to Sexual Touching, Indecent Act (Exposure), Dismissal of Mistrial Motion, Credibility Assessments

R v. Luceno, 2015 ONCA 759

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

Counsel:

Phillip Norton, for the appellant

Sustan Ficek, for the respondent

Keywords: Criminal Law, Sexual Assault, Credibility Assessments

R v. Nguyen, 2015 ONCA 753

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

Counsel: 

Kim Schofield, for the appellant

Peter Campbell, for the respondent

Keywords: Criminal Law, Drug Possession for the Purpose of Trafficking, Reasonable Grounds for Arrest, Charter of Rights and Freedoms s. 8

R v. Mastromattei, 2015 ONCA 745

[Laskin, Pardu and Roberts JJ.A.]

Counsel:

Howard Cohen, for the appellant

Jennifer Mannen, for the respondent

Keywords: Criminal Law, Sentencing, Assault

R v. Romero-Araya, 2015 ONCA 744 

[Lasking, Pardu and Roberts JJ.A.]

Counsel: 

Anthony De Marco, for the appellant

Hannah Freeman, for the respondent

Keywords: Criminal Law, Sexual Interference, Sexual Assault, Fresh Evidence, Ineffective Counsel

R v. C.K., 2015 ONCA 747

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

Counsel: 

John K. Lefurgey, for the appellant

Gavin McDonald, for the respondent

Keywords: Criminal Law, Sexual Assault, Sentencing, Similar Fact Evidence, Bad Character Evidence