Good afternoon everyone.
Following are this week’s summaries of civil decisions released by the Court of Appeal. Topics covered included insurance, settlements, construction, debtor-creditor, contracts, real property, MVA and medical malpractice.
Wishing everyone a nice weekend and a Happy Easter to those of the Eastern Orthodox faith.
[van Rensburg J.A. (In Chambers)]
Sean N. Zeitz, for Revital Druckmann and Jean-Jacques Myara
Kelli Preston, for the receiver Pollard & Associates Inc.
Catherine Francis, for DUCA Financial Services Credit Union Ltd.
Keywords: Debtor-Creditor, Bankruptcy and Insolvency, Receiverships, Mareva Injunctions, Leave to Appeal, Bankruptcy and Insolvency Act, s.193(e), Security for Costs of Appeal, Rules of Civil Procedure, 61.06(1)(a), 40.04(1)
Pollard was the court-appointed receiver of the debtor companies. The Order at issue had extended a Mareva injunction against Revital, who was the spouse of the principal of the Debtors. The Order also directed that Pollard was entitled to immediate possession (“repatriation”) of certain monies, being the proceeds of an HST refund paid to one of the Debtors and diverted in contravention of a prior Receivership Order. The Order also dismissed a claim by Myara seeking an interest in the monies.
Revital sought leave to appeal the Order under s. 193(e) of the Bankruptcy and Insolvency Act. Revital made no claim of her own to the impugned monies and did not oppose the repatriation of the funds. Instead, she challenged the procedure followed by Pollard in obtaining, ex parte, the original interim Mareva injunction against her. Myara appealed as of right, claiming that the monies were his and thus objected to any repatriation of the funds. Pollard and the secured creditor, DUCA, each moved for security for costs of Myara’s appeal.
(1) Should Revital be granted leave to appeal the Order pursuant to s.193(e) of the Bankruptcy and Insolvency Act?
(2) Should the Receiver and Debtor’s motions for security for costs be granted?
Holding: (1) No. (2) Yes. Motion for leave to appeal dismissed and motions for security for costs granted.
(1) Leave under s.193(e) of the BIA is discretionary and the court must consider whether the proposed appeal (a) raises an issue that is of general importance to the practice in bankruptcy and insolvency matters or to the administration of justice as a whole; (b) is prima facie meritorious; and (c) would unduly hinder the progress of the bankruptcy or insolvency proceedings. The Court found that there was no arguable merit to Revital’s proposed appeal as Revital did not claim any interest in the HST Refund and did not challenge the substantive grounds on which the Mareva Order was made and extended; her concerns were strictly procedural.
Revital argued that the motions judge erred in granting the Order because (a) Pollard had not made full and frank disclosure on the original ex parte motion; (b) the court did not require an undertaking for damages from the moving party or grant an order dispensing with that requirement; and (c) the Order could not be made against her as a “third party” where there was no pending or intended proceeding against her.
The Court rejected these arguments. While Pollard was required to make full and frank disclosure of material facts, Pollard was not required to file a factum pursuant to Rule 40.04(1). The obligation on a moving party to file a factum in an injunction motion applies in contested, but not ex parte, motions. Second, the motion judge’s granting of the Mareva Order was based on the application of settled principles and entirely justified by the evidence placed before him.
Moreover, Pollard was not required to provide an undertaking as to damages as the order was made in a court-appointed receivership; Pollard had a duty to recover the property of the Debtors and the order sought was in aid of powers granted to the Receiver by court order. The motion judge was thus entitled to grant the Mareva Order without requiring an undertaking as to damages. Revital’s argument that the Mareva Order should not have been issued against her because there was no existing or proposed action in which she was a defendant was also rejected as the Order was granted on the basis of overwhelming evidence.
(2) Pollard and DUCA moved for security for costs of Myara’s appeal under r. 61.06(1)(a) and, in doing so, were required to establish that there was “good reason to believe that the appeal [was] frivolous and vexatious and that the appellant ha[d] insufficient assets in Ontario to pay the costs of the appeal.” The first part of the test involved a consideration of “[t]he apparent merits of the appeal, the presence or absence of an oblique motive for the launching of the appeal, and the appellant’s conduct in the prosecution of the appeal” as well as other factors that may be specific to the case. The latter aspect was not in dispute. The Court was satisfied that both parties were entitled to security for costs given that the appeal appeared to have little chance of success.
[Sharpe, LaForme and van Rensburg JJ.A.]
David G. Boghosian and Shaneka M. Taylor, for the appellant
Sean R. Chambers, for the respondent
Keywords: Insurance, Duty to Defend, Duty to Indemnify, Settlement, Motion to Enforce, Rules of Civil Procedure, Rule 49
The appellant Town of Markham (“Markham”) and the respondent Intact Insurance Company of Canada (“Intact”), were in dispute with respect to the interpretation of what both parties referred to as an “agreement”. The plaintiff had sued for damages after alleging a slip and fall on Markham’s property that occurred on March 6, 2011. Markham had a winter maintenance contract with V.T.A. Construction Ltd (“V.T.A.”) and was named as an additional insured on VTA’s policy with Intact, as required by the contract. Markham retained counsel, Mr. Persaud, and served a statement of defence and issued a third party claim against V.T.A. and Intact. The third party claim claimed contribution and indemnity from V.T.A. and a declaration that Intact owed a duty to defend and indemnify Markham in respect of the plaintiff’s claims.
In May 2012, the plaintiff added V.T.A. as a defendant to the action and amended the statement of claim to plead that the accident occurred on March 5, 2011. In the fall of 2012 and early 2013, there were a series of communications between Mr. Persaud, Intact and Mr. Lipetz at Benson Percival Brown LLP (“BPB”), the law firm appointed to defend V.T.A. in the action, about the defence of the action and the third party claim. Mr. Persaud prepared an Assumption of Defence Agreement that specifically provided for Intact to assume Markham’s defence and to indemnify Markham in respect of any damages in the action. Mr. Lipetz advised that Intact would not be executing the agreement but that his office would serve a Notice of Change of Lawyers. Mr. Persaud replied that he did not have to sign the agreement so long as it was understood that Markham would be covered for any amounts arising from a finding of liability against it. The next day, Mr. Lipetz delivered the Notice of Change of Lawyers, with the effect that BPB represented both V.T.A. and Markham in the defence of the action. BPB was the only firm representing Markham in the proceedings for 16.5 months, including attendance at examinations for discovery.
In December 2013, BPB notified Mr. Persaud that it was bringing a motion to remove itself from the record. Six months later new counsel was appointed for V.T.A. but not Markham. Markham brought a motion under Rule 49 to enforce the “settlement agreement”. The motion judge dismissed Markham’s motion that sought to enforce Intact’s obligation to both defend and indemnify Markham in the action. He concluded that there had not been a “meeting of the minds” between the parties on the question of indemnification and that the agreement was not in clear enough terms to require Intact to indemnify Markham for any loss suffered as a result of V.T.A.’s negligence.
(1) Did the motion judge err in concluding there was no agreement?
(2) Did the motion judge err in concluding that Intact could not have agreed to indemnify Markham for liability in the action, except as resulted from V.T.A.’s negligence?
Holding: Appeal allowed. Intact was ordered to appoint counsel to defend Markham at its expense and to indemnify Markham for any damages and costs awarded against Markham in the main action.
(1) Yes. The parties both agreed that they entered into an agreement resulting in the appointment of the same counsel to represent V.T.A. and Markham in the defence of the action. The issue was not whether an agreement existed, but its interpretation.
(2) Yes. The court stated that in its third party claim, Markham claimed both a defence and indemnification from Intact. Intact could have: 1) denied both obligations, in which case Markham would have been on its own in the action; 2) resisted the claim for indemnification but accepted the obligation to defend, assuming the cost of Markham’s defence by different counsel; or 3) accepted the obligation to defend and indemnify. The first two options would recognize that Markham and V.T.A. continued to be adverse in interest in the main and third party action. The third would mean that their interests were aligned or the same.
By appointing one firm to represent both parties, and the fact that BPB represented Markham and V.T.A. in litigation until discoveries had been completed, Intact had agreed to both defend and indemnify Markham. The court found the agreement to indemnify sufficiently clear, because without such an agreement, counsel appointed by Intact to act for both V.T.A. and Markham would have been in a conflict of interest.
The court also noted that although Intact and its counsel may have failed to appreciate the significance of the change in the plaintiff’s pleading of the accident date until later, this did not permit Intact to resile from the agreement the parties had reached, after discoveries had been conducted and after BPB had acted as Markham’s counsel for more than 16 months.
[Weiler, Hourigan and Huscroft JJ.A.]
Lorne S. Silver, for the appellants
David Freedman and Suzana Popovic-Montag, for the respondent
Keywords: Wills and Estates, Real Property, Agreement to Convey Land, Whether Enforceable, Gifts, Part Performance, Consideration, Statute of Frauds, Civil Procedure, Motion to Strike, No Reasonable Cause of Action, Leave to Amend, Rules of Civil Procedure, Rule 26.01, Power of Attorney, Estate Trustees, Passing of Accounts, Standing, Beneficiaries, Powers of Attorney Act, Substitute Decisions Act, s. 42
The appellants, Craig and Wendy Glynn allege that their parents, Edward and Wanda, promised them a piece of property (the “Property”) upon Edward’s death which occurred in February 2014. The Property serves as the main roadway access to their business, Spar Roofing & Metal Supplies Limited (“Spar Roofing”), a company founded by Edward and now operated by Craig and Wendy in which they own all of the common shares. Craig and Wendy allege that the Property would form part of the corporate assets of Spar Roofing and they seek to set aside the transfer of the Property to their brother, the respondent Grant Glynn, who now owns the property as joint tenants with his parents. Grant claims it was a gift from his parents based on wills made in 2009. He arranged for the transfer of the Property as their power of attorney for personal and property care in 2012.
The motion judge described the appellants’ pleadings as an attempt to enforce a promise made by Edward to gift the Property to Craig and Wendy in the future. He struck the appellants’ claim as disclosing no reasonable cause of action and held that the appellants lacked standing to “bring a claim to divest the defendant of his interests in the property.”
(1) Are the motion judge’s reasons sufficient to permit appellate review?
(2)Did the motion judge err in characterizing the claim as a being about a promise to gift the Property?
(3) Did the motion judge err in not granting leave to amend?
(4) Do the plaintiffs have standing to question the transfer of the Property to Grant on the basis of alleged undue influence and breach of fiduciary duty?
Holding: Appeal allowed.
(1) Yes. An appellate court cannot simply intervene on the basis that it feels the judge did a poor job of expressing himself. The failure to give adequate reasons is not a free-standing basis for appeal. The court agreed that the judge’s reasons were difficult to understand. However, by reading them as whole and giving them a purposeful interpretation, they show the basis for the motion judge’s decision to strike the pleading, why he refused to grant an adjournment to file a reply and how he arrived at his conclusion.
(2) No. The appellants’ argued that they plead that there was an agreement to convey property and that the judge erred in characterizing Edward’s promise as a gift. They submitted that as part performance of the agreement, this was a long-term lease with no provision for a rent increase. They argued that the omission of specifically pleading part performance of the agreement or to plead consideration could have been corrected by an amendment to the pleading. The appellant’s also argued that under the agreement to convey the Property, they had an equitable interest in the Property and standing to challenge the transfer to Grant. They allege that Grant attempted to frustrate through the exercise of undue influence or in breach of his fiduciary duty when he controlled his parents’ affairs, and that the court should give effect to the pleading that Wanda lacks capacity.
The appellants’ argument ignored the fact that a paragraph in the pleadings explicitly stated “it was always Edward’s intention to gift the Company Assets (including the Property) to Craig and Wendy”. The characterization of the arrangement as a promised gift is consistent with the pleadings when they are read as a whole. Interpreting the pleading of the lease agreement as actually pleading part performance of a contract is equally consistent as interpreting it as pleading with the favorable terms of the lease agreement being a gift. The pleadings do not allege that Edward and Wanda breached any agreement or that Grant induced the breach of this agreement.
(3) Yes. Rule 26.01 of the Rules of Civil Procedure provides that a court shall grant leave to amend a pleading “unless prejudice would result that could not be compensated for by costs or an adjournment”. The motion judge found that an adjournment to file a reply respecting the Statute of Frauds was unnecessary. However, the appellants request for an adjournment of the motion to file a reply was in effect a request to amend. Rule 26.01 required that the motion judge consider whether leave to amend should be granted and provide reasons if it should not be.
The appellants’ proposed amendment would allege that there was an agreement between Edward and Wanda to convey the Property to the appellants in exchange for performance of services and money expended on the Property. The transfer would occur upon Edward’s death or at the latest when Wanda died.
The respondent argued that an oral promise to gift land is unenforceable as a matter of established law and that the judge did not err in holding that the appellants’ lacked standing to bring their action. The court acknowledged the strength of these submissions but stated that they do not address the issue of whether leave to amend should now be granted. Among other arguments, the respondent submitted that the appellants’ proposed amendment is unenforceable because it does not bring them within the exception to the Statute of Frauds.
The respondent’s submission was in effect an argument that the court should consider the merits of the factual and legal basis of the proposed amendment at the pleading stage, which is not the law under r. 26.01. The amendment is to be granted, unless if originally pleaded, it would have been struck under r. 21.01(1)(b). The proposed amendment to the pleading discloses a cause of action and the respondent does not allege prejudice that cannot be compensated for in costs.
(4) As a result of the leave to amend the pleadings being granted, it was unnecessary to decide if the appellants have standing to question the transfer of the property on the basis of alleged undue influence and a breach of fiduciary duty. The court did however make a number of observations on the issue.
The Powers of Attorney Act and the Substitute Decisions Act (“SDA”) have supplanted the common law relating to powers of attorney. The SDA governs all aspects of continuing powers of attorney for property and powers of attorney for personal care. Section 42(1) of the SDA provides that any person with leave of the court can bring an application for a passing of accounts. There is case law interpreting the SDA that has found that if the attorney and estate trustee are the same person, there can be no true accounting as between the attorney and estate trustee. This has resulted in the courts giving leave to beneficiaries as “any other person” under s. 42(4) to apply to the court for a passing of the attorney’s accounts for the period the attorney acted prior to the grantor’s death. The SDA provides a mechanism for a third party to compel an attorney to account.
Hoy A.C.J.O., Pardu and Roberts JJ.A.
Jason Arcuri , for the appellant Ben Pezik
Keegan Boyd and Jessica Laham, for the appellant Huronia Eye Clinic
Asha James and Marc Gibson, for the respondent
Keywords: Torts, Professional Negligence, Medical Malpractice, Expert Reports, Standard of Care, Causation, Small Claims Court, Summary Dismissal, Summary Judgment, Small Claims Court Rules, Rule 12.02, Denial of Natural Justice
The appellants appeal from the order of the Divisional Court that allowed the respondent’s appeal from the dismissal of his action, and remitted his claim back to the Small Claims Court for a hearing.
The respondent failed to produce expert reports in accordance with orders made during settlement conferences. The appellants brought a motion under r. 12.02 of the Rules of the Small Claims Court to dismiss the respondent’s claim.
The deputy judge allowed the appellants motion and dismissed the respondents claim because of the respondent’s failure to file expert evidence supporting his claim on the issues of the standard of care and causation.
Later, the appeal judge allowed the respondent’s appeal on the basis that the deputy judge had made an error of law and exceeded his jurisdiction in treating the appellants’ motion as a motion for summary judgment and dismissing the respondent’s claim under rule 12.02(1) because the claim was not inflammatory, a waste of time, a nuisance or an abuse of the court’s process.
Did the appeal judge err in setting aside the deputy judge’s decision to summarily dismissed the claim?
Holding: Appeal Dismissed.
No. The court held that the deputy judge had the jurisdiction to alter the time deadlines otherwise provided under the Small Claims Rules and even to dismiss an action. The court agreed with the appeal judge that the deputy judge erred by concluding that the respondent’s claim was a waste of time under r. 12.02 based on his finding that there was no prospect of the respondent providing independent expert evidence. The court held that there was ample evidence before the deputy judge that the respondent could provide expert evidence of his treating physicians in support of his claim and the court agreed with the appeal judge’s determination that the deputy judge’s dismissal of the respondent’s claim was an error and a breach of natural justice.
[Doherty, MacPherson and Miller JJ.A.]
Andrew J. MacDonald, for the appellants
Greg Frenette and Jessica Lam, for the respondent
Keywords: Solicitor and Client, Dispute Retainer Agreement, Pro Bono, Assessment of Accounts, Reasonable Apprehension of Bias
Facts: The appellants represented the respondent in an action against the respondent’s veterinarian, arising out of the death of the respondent’s service dog while under the veterinarian’s care. The appeal is from a judgment finding that the appellants’ services were rendered on a pro bono basis, and ordering the appellants to repay funds from the respondent that were improperly applied to legal fees instead of disbursements. This appeal turns mainly on the terms of the respondent’s retainer with the appellants.
After the settlement of the respondent’s action, the appellants rendered their account to the respondent, who had understood that the appellants were acting pro bono. The respondent objected to the account and brought it for assessment before an Assessment Officer. The Assessment Officer adjourned the proceeding sine die, on the basis that the retainer itself was disputed, and not simply the reasonableness of the account. The respondent then brought an application in the Superior Court seeking a declaration that the appellants had agreed to act pro bono, without charging legal fees.
(1) Is the order for assessment initiated by the respondent an impediment to the application?
(2) Did the application judge err in allowing the proceeding to be brought by way of application or in not ordering a trial of an issue?
(3) Did the application judge err in law in defining the scope of a pro bono retainer?
(4) Did the application judge’s conduct raised a reasonable apprehension of bias?
Holding: Appeal Dismissed.
(1) No. It was not necessary for the respondent to move to set aside the assessment order before proceeding in the Superior Court. The assessment was adjourned by the Assessment Officer precisely to enable the respondent to bring the matter for adjudication in the Superior Court, which is the appropriate venue where the nature of a retainer is in dispute.
(2) No. It was appropriate to proceed by way of application in this matter. There were no factual issues essential to evaluating the claim that could not be determined through the evidence provided.
(3) No. The application judge made no error of law with respect to the issue of whether the appellants agreed to act for the respondent on a pro bono basis. The issue was not, as the appellants would have it, that the application judge erred by holding that pro bono counsel may never receive fees. The application judge made no such error. The issue, rather, is a factual one: did the appellants make fee arrangements with the respondent that required the respondent to pay legal fees? The application judge found that they did not. This finding was amply supported by the record, is entitled to deference, and should not be interfered with.
(4) No. A review of the transcript does not provide support to the appellants’ argument that the conduct of the application judge raised a reasonable apprehension of bias against the appellants.
[Gillese, van Rensburg and Miller JJ.A.]
Chris G. Paliare, Megan E. Shortreed and Jean-Claude Killey, for the appellant Edie Neuberger
Kimberley A. Whaley, Benjamin Arkin and Arieh A. Bloom, for the appellant Adam Jesin-Neuberger
Guy Pratte, Aaron Blumenfeld and Ewa Krajewska, for the respondent Myra York in all capacities
Clare E. Burns and Bianca La Neve, for the respondents Sonny York, Laura York and Spencer York
Keywords: Civil Procedure, Costs, Reasonable Expectations
The Appellant Edie Neuberger asked for costs of the motion below in the amount of $209,066.65, which included almost $24,000 of disbursements and HST. The Appellant Adam Jesin-Neuberger asked for costs of the motion in the amount of $110,424.55, all inclusive. Fees were calculated on a partial indemnity basis. The Respondents, The York Parties, submitted that the Appellants should be awarded costs of the motion in the amount of $300,000, all inclusive. They claimed they did not have the benefit of scrutinizing the Appellants’ dockets and asked that the court infer that some of the time spent on the motion was unreasonable. The Appellants also sought costs of the appeal on a partial indemnity basis in the amounts of $148,903.78 and $197,297.23 respectively.
What is the appropriate quantum of costs?
Holding: The Appellants were entitled to their costs of the motion below in the amounts sought. Costs of the appeals were fixed at $100,000 and $75,000 all inclusive, in favour of the Appellants.
In deciding the quantum of costs, the award must be fair and reasonable in all the circumstances, with due consideration for the parties’ reasonable expectations. Comparing the parties’ respective costs of appeal is useful when considering the parties’ reasonable expectations. The York Parties’ combined partial indemnity costs of the appeal was approximately $353,000, which was similar to the Appellants’ combined partial indemnity costs of approximately $346,000. Reasonable expectations are also informed by past costs orders of this court. The York Parties’ submission that the amounts claimed by the Appellants were larger than many of the costs awards made by this court in typical appeals was accepted by the Court of Appeal. However, costs in any appeal must also be decided based on the particular circumstances of the case before the court. This appeal was not typical and raised legally complex issues arising from a factually complex record.
[Strathy C.J.O., Lauwers and Benotto JJ.A.]
Michael N. Freeman, for the appellants/respondents by cross-appeal
Albert Campea, for the respondent/appellant by cross-appeal
Keywords: Contracts, Breach, Share Purchase and Sale Agreements, Share Pledge Agreements, , Enforcement, Acceleration Clauses
Facts: The parties were brothers who operated several businesses together. They encountered difficulties that they resolved by entering into a Share Purchase and Sale Agreement. The agreement provided for the payment of monthly sums by the appellants, Albert and Felix Scamurra, to the respondent, Sandy Scamurra, in exchange for his shares in the companies. The agreement was secured by a Share Pledge Agreement. The appellants defaulted on the required payments. The parties tried to resolve the matter. Their lawyers exchanged offers in November 2014. When the appellants remained in default, the respondent brought a motion for summary judgment requesting either: enforcement of the Share Purchase and Sale Agreement, including the Share Pledge Agreement; or, in the alternative, enforcement of the settlement he claimed was reached by letter dated November 28, 2014. The motion judge found that there was no binding settlement in November 2014. However, he awarded judgment to the respondent for both past and future amounts owing under the Share Purchase and Sale Agreement.
In the absence of an acceleration clause, did the motion judge err in ordering the Appellants to pay the full amount – past and future – owing on the Share Purchase and Sale Agreement?
Holding: Appeal allowed. Cross-appeal dismissed.
Yes. The terms of the agreements were clear. The motion judge erred by collapsing the outstanding payments into the amount owing in the absence of an acceleration clause and in the face of terms agreed to by the parties setting out their responsibilities in case of default. Paragraph 6 of the Share Purchase and Sale Agreement provided that, in the event of a late payment, interest accrued at the rate of 10% per year. Paragraph 14 explained that the reasonable expenses incurred by the respondent in recovering payment in case of a default were to be paid by the appellants. Further, the Share Pledge Agreement provided security for the payments. It contemplated that the respondent’s shares would be held in escrow until the whole of the purchase price was paid to him by the appellants.
[Feldman, Juriansz and Brown JJ.A.]
John Lo Faso and W.A. McLauchlin, for the appellant
Theodore B. Rotenberg, for the respondent, Intracorp Projects (Milton on the Escarpment) Ltd.
Karey Dhirani, for the respondents, Burl 9 Developments Limited and Sundial Homes (Burl 7) Limited
Keywords: Construction Law, Construction Liens, Quantum Meruit, Unjust Enrichment, Construction Lien Act, s.6, s.20(1), s.20(2), s.35, s.55, Leo P. Abrams & Sons Ltd. v. MacDonald Homes Inc. (Trustee of), Gillies Lumber v. Kubassek Holdings Ltd.
Appellant Yorkwest was a plumbing supply subcontractor of Nortown on two projects, one owned by respondent Intracorp and one by respondent Burl 9. As Nortown’s owners had failed in the past to pay suppliers and tradespeople, Yorkwest refused to extend credit to Nortown. However, Nortown went bankrupt and Yorkwest was owed over $490,000 on various projects, including these two. For both, Nortown’s contract with each development owner provided that any liens would both arise and expire on a lot-by-lot basis.
After its final supply to the projects, Yorkwest filed a general lien against each project for the total amount owed for what it had supplied to the various lots in each subdivision. These liens were discharged on summary judgment motions and the decision to discharge them was upheld by the Divisional Court on the basis that, pursuant to s. 20(2) of the Construction Lien Act (“CLA”), a subcontractor is not able to claim a general lien on a project where the contractor and owner agreed that liens would arise and expire on a lot-by-lot basis, as was the present case. Yorkwest appealed that result.
As Yorktwest’s liens were invalidated, it did not receive any payment for the plumbing materials it supplied. Yorkwest also sought a remedy because of an unfair result: based on a settlement reached between Intracorp and Nortown’s trustee and receiver, Nortown’s secured creditors would receive proceeds of the security paid to vacate Yorkwest’s general lien against the lots of the Intracorp subdivision.
(1) Did the Divisional Court err in interpreting s. 20(2) of the CLA to apply to “subcontracts”, when that term is not used in the subsection?
(2) If the appellant was not precluded under s. 20(2) from filing a general lien, was it entitled to do so in this case?
(3) If the appellant was precluded from filing a general lien, is it entitled to any other relief?
Holding: Appeal Dismissed.
(1) No. The Court reasoned that s. 20(2) of the CLA was a contracting out provision under which, where a contract has provided that liens will arise and expire on a lot-by-lot basis, “no general lien arises under or in respect of” that contract. Yorkwest argued that because s. 20(2) did not refer to any “subcontract”, regardless of whether an owner and contractor agreed that liens would arise and expire lot-by-lot, a subcontractor could still register a general lien pursuant to s. 20(1). The Court did not agree with this argument and instead agreed with the decisions of the motion judge and Divisional Court.
The intent of adding s. 20(2) to the CLA was to allow an owner and a contractor to contract out of their right to file a general lien to prevent problems that had been arising with respect to mortgage financing. As observed by the Divisional Court, giving effect to Yorkwest’s interpretation would simply re-create the trouble that s. 20(2) addressed.
Yorkwest’s argument that the omission of “subcontract” from s. 20(2) meant that the section was not applicable to subcontracts was similarly rejected. The Court reasoned that, because all subcontracts are derived from a main contract, the general lien of a subcontractor can only arise “in respect of” that main contract. Thus, because the right to a general lien can only arise pursuant to s. 20(1) in the contract between the contractor and owner, a subcontract cannot then create that right. Moreover, the Court stated that Yorkwest’s interpretation would undermine the ability of contractors and owners to create provisions in their contracts that allow the owner to release a holdback on a lot-by-lot basis, which would considerably undermine the benefit of contracting out pursuant to s. 20(2).
(2) No. Because Yorkwest was not entitled to register a general lien, this issue was moot.
(3) No. Yorkwest sought three alternative remedies, all of which were denied:
Initially, Yorkwest asked the Court to cure its defective general liens by applying s. 6 of the CLA. The Court found no basis to do so given the decision in Leo P. Abrams & Sons Ltd. v. MacDonald Homes Inc. (Trustee of), which provided that to allow a claimant to preserve its general lien in this regard “would be to ignore the scheme of s. 20 and would encourage the improper registration of liens”. Moreover, Gillies Lumber v. Kubassek Holdings Ltd. also provided that s. 6 could not be used to cure the impugned improper liens.
Yorkwest sought, in the alternative, for the Court to treat the claims for general liens as excessive liens pursuant to s. 35 of the CLA. The Court rejected this and held instead that to treat the impugned liens as proper specific liens that were registered for excessive amounts would be to fail to give effect to s. 20(2) of the Act. Instead, it would undermine the fair and efficient operation of the CLA.
The final requested alternative remedy was to allow Yorkwest’s claims for quantum meruit and unjust enrichment against the respondent owners to proceed. The Court noted that Yorkwest did not plead breach of contract against the respondents, and that to allow claims not referred to in s. 55 of the CLA to be joined in the action, such as those for quantum meruit or unjust enrichment, would be tantamount to a refusal to apply s. 55, as found by the Divisional Court.
[van Rensburg J.A.]
Gordon S. Campbell, for the moving party
Jamie Lee Carpenter, acting in person
Kenneth Younie, duty counsel for the respondent
Keywords: Family Law, Extension of Time to Appeal, Rizzi v. Marvos, Self-Represented Litigants, Family Law Rules, O. Reg. 114/99
Facts: The parties were involved in high-conflict matrimonial proceedings. This was a motion for an extension of time to appeal two orders made in a matrimonial proceeding. The first was dated November 13, 2013, and provided for the striking of the moving party’s pleadings in the event that he did not pay $2,000 in costs within ten days. The second was dated April 17, 2014, and was a final order in an uncontested trial.
(1) Should the motion for extension of time be granted for the moving party to appeal the subject orders?
Holding: Motion dismissed.
(1). No. Whether to extend time to appeal is in the discretion of the court. According to Rizzi v. Marvos, 2007 ONCA 350, the relevant factors are (a) whether the appellant formed an intention to appeal within the relevant period; (b) the length of the delay and the explanation for the delay; (c) any prejudice to the respondent; (d) the merits of the appeal; and (e) whether the “justice of the case” requires the extension.
Mr. Carpenter contends that he always intended to appeal the orders and that he has a reasonable explanation for his delay. To a significant extent he relies on the fact that he has been self-represented. The fact that Mr. Carpenter was self-represented does not excuse his failure to comply with the necessary time limit or to move promptly for an extension of time to appeal the two orders in question. Any participant in litigation, including a self-represented party, has a responsibility to familiarize himself or herself with the procedures relevant to the case.
In regards to the justice of the case, the Family Law Rules, O. Reg. 114/99 allow pleadings to be struck where there has been a repeated failure to comply with court orders, especially for disclosure. It was impossible to tell from the record before this court whether in all the circumstances it would have been appropriate for the motion judge to strike Mr. Carpenter’s pleadings for failure to comply. However, permitting an appeal at this stage would prejudice the respondent. She took the necessary steps to bring the litigation to a close, and she has no financial resources to retain counsel to respond to an appeal. More importantly, the court was not satisfied that the Final Order has unfairly benefited Ms. Carpenter or resulted in any real injustice to Mr. Carpenter. A review of the transcript discloses that the trial judge carefully considered all relevant evidence, including evidence favourable to Mr. Carpenter.
[Hoy A.C.J.O., Benotto and Roberts JJ.A.]
Jared Brown and Lauren Findlay, for the appellant
Jordan D. Winch and Julia Bassett, for the respondent
Keywords: Employment Law, Wrongful Dismissal, Termination for Cause, Findings of Fact, Standard of Review, Palpable and Overriding Error
Wasinski worked as an electrician for Norampac for 21 years before being dismissed. Norampac used a “Smart Cart” machine to transport material, which could operate in manual or automatic mode. On November 3, 2010, the Smart Cart malfunctioned and Wasinski contacted the appropriate maintenance company. Konczyk, a representative of that company, attended at Norampac’s premises. Konczyk told Wasinski that the safety encoders on the Smart Cart were faulty and agreed to Wasinski’s suggestion to re-install software to permit the Smart Cart to operate in automatic mode without the encoders.
Konczyk suggested that Wasinski speak to a supervisor regarding this change, although it is not clear whether he did. On November 5, 2010, Wasinski’s supervisor Chopin learned that the Smart Cart was running in “semi-safe” condition and immediately inspected the Smart Cart and disabled it from operating in automatic mode. Norampac’s safety rules specifically prohibited any tampering with any safety devices.
Norampac dismissed Wasinski and asserted that his disciplinary record and decision to knowingly by-pass a safety device gave it cause to dismiss the appellant. The trial judge found that Wasinski had received extensive and ongoing health and safety training and that he was aware of these rules. The trial judge agreed with the respondent and accepted Norampac’s evidence evincing Wasinski’s progressive disciplinary record and found that his cumulative misconduct gave Norampac cause to dismiss him.
(1) Did the trial judge err in relying on a ground for dismissal not pleaded by the respondent in its Statement of Defence or argued at trial?
(2) Did the trial judge make a palpable and overriding error of fact?
(3) Did the trial judge err in law by failing to resolve contradictions in the evidence.
Holding: Appeal dismissed.
(1) No. Wasinski argued that, in finding that Norampac had cause to terminate his employment, the trial judge relied on grounds that Norampac had not pleaded, including that (1) he failed to clearly report his actions to a person in charge of the Norampac plant and (2) he did not have the authority to change Norampac’s safety standards without its consent.
The Court rejected these arguments, finding that the trial judge’s reasons referred to grounds that were pleaded by Norampac and that the transcripts of the closing arguments revealed that the trial judge was “clearly alive to the need for the respondent to rely only on grounds for dismissal pleaded in its Statement of Defence.” The Court also found that it was clearly implicit in the respondent’s Statement of Defence that it was taking the position that Wasinski did not have the authority to make changes to its safety standards without its consent.
(2) No. Wasinski argued that the trial judge’s finding that the Smart Cart was only run in manual mode until December 2009 was a palpable and overriding error. The Court also rejected this argument and held that because of Konczyk’s evidence and Wasinski’s concessions, the trial judge’s finding was not a palpable factual error. The Court further held that, in any event, it would not have been an overriding error.
(3) No. Finally, Wasinski argued that the trial judge committed an error by failing to resolve the conflicting evidence between him and Konczyk regarding what mode the Smart Cart was left in when Konczyk left the plant on the evening of November 3, 2010. The Court held that the trial judge was not required to resolve every conflict in the evidence. This particular conflict was not material to her final determination and even if Konczyk had left the plant aware that the Smart Cart had been left in automatic mode, this finding would not have exonerated Wasinski.
[Gillese, MacFarland and van Rensburg JJ.A.]
Scott C. Hutchison and Matthew R. Gourlay, for the appellant/respondent by way of cross-appeal
Ian D. Kirby, for the respondents/appellants by way of cross-appeal
Keywords: Torts, Negligence, Motor Vehicle Accidents, Damages, Jury Instructions, Experts, Assignment of Collateral Benefits, Offers to Settle, Costs Consequences, Rules of Civil Procedure, Rule 49.10, Pre- and Post-Judgment Interest, Courts of Justice Act, ss. 127 and 128
The appellant was involved in a motor vehicle collision on March 20, 2008 in Mississauga, Ontario. She was stopped at a red light at an intersection when her vehicle was hit from behind by a transport truck. At the time, the appellant was enrolled in a dentistry general practice residency in Vancouver, B.C. She was visiting her family for the Easter long weekend when she was involved in the collision. She suffered injuries as the result of the accident which she claimed prevented her from maintaining a full time clinical dentistry practice.
The respondents admitted liability shortly before the commencement of the trial and accordingly the contest was confined to the assessment of damages.
The respondents took the position that the appellant had recovered from her injuries sufficiently by August 2011 to resume a full time clinical practice. The appellant’s position was that she was only able to work 15 to 20 hours per week in a clinical setting and that her condition was likely to be permanent. Her economic expert, Dr. House, opined that her future income loss would be between approximately $6,000,000 and $18,000,000 depending on the career path she would have followed in the absence of the accident.
The jury awarded damages to the appellant as follows:
1) General Damages - $104,000
2) Past Income Loss - $584,187
3) Future Income Loss - $112,496
4) Other Special Damages - $ 44,412
5) Future Health Care Costs - $ 27,450
She appealed the damage award. The respondents cross-appealed on the issue of costs, the assignment of collateral benefits and interest awarded.
(1) Is the jury’s award of $112,496 for future income loss fundamentally inconsistent with the other damages awarded or so low as to amount to an injustice?
(2) Did the trial judge err by failing to instruct the jury that pre-trial communication between [the appellant’s] counsel and an expert witness was not a proper basis upon which to reject the expert’s testimony?
(1) Did the trial judge err by failing to award the appellant her costs only to the date of the respondents’ offer to settle and the respondents their costs after that date in accordance with rule 49.10 of the Rules of Civil Procedure?
(2) Did the trial judge err in determining that the respondents’ entitlement to an assignment of collateral and statutory accident benefits should be limited in the manner specified in her judgment?
(3) Did the trial judge err in awarding interest on the awards for past income loss and special damages at a blended rate rather than at the rate prescribed by ss. 127 and 128 of the Courts of Justice Act?
Holding: Appeal and cross-appeal dismissed.
(1) No. The court found there was conflicting evidence. It reasoned that deference will be accorded in cases where there is some evidence to support the jury’s verdict, and a verdict will not be set aside even if another conclusion is available on the evidence.
The court found on the whole of the evidence that there was a divide in the medical opinions. Some of the medical professionals were of the view that the appellant’s condition was unlikely to improve in the future and it was unlikely that she would be able to resume a full time clinical practice. Others were of the view that soft tissue injuries improve over time and that there was nothing preventing the appellant from resuming a full time clinical practice provided that she maximized her “ergonomic IQ” and worked in an “optimized clinical setting”. It was open to the jury to accept the evidence on that point.
In addition, the court was not persuaded that there was any inconsistency in the amount the jury in the present case awarded for future income loss when compared with the amounts it awarded under the other heads of damage.
(2) No. The court was sympathetic to the appellant’s position, and acknowledged that the respondent’s line of questioning regarding this issue was improper. However, it was clear from the record that counsel for both parties ultimately agreed to the contents of the trial judge’s charge on this issue.
The court recognized that a request from counsel to speak to the expert witness either before the expert sees the client or writes a report does not alone meet the threshold for an allegation of improper influence – which was exactly the impression counsel for the respondents attempted to make with the jury. However, it was not dispositive of this ground of appeal because the trial judge did exactly what counsel agreed she should do in her charge to the jury. The court found it inappropriate for counsel to take a position below, make an agreement with the court and then to resile from that position on appeal.
(1) No. the trial judge committed no error when she concluded that rule 49.10(2) was of no application in the circumstances. The respondents’ offer had expired before the second trial began. The court found the respondents failed to demonstrate that there were strong grounds upon which it could find that the trial judge erred in exercising her discretion with regard to costs.
(2) No. A defendant’s right to an assignment of future collateral benefits received by a plaintiff is available only if they cover the same expenses for which the defendant has been ordered to pay damages to the plaintiff. The court relied on Gilbert v South, 2014 ONSC 3485 for the proposition that uncertainty about the extent of overlap between the plaintiff’s entitlement to accident benefits and the jury’s global award for future care costs meant that the defendant had not met its onus to establish entitlement to an assignment. It found this was the same reason that the trial judge declined to extend the assignment and trust to future health care costs not enumerated in her charge to the jury. To do otherwise would be to engage in speculation.
(3) No. The court saw no error in the trial judge’s discretionary order as she set out in her reasons why she departed from s. 127 of the Courts of Justice Act. It accepted the trial judge’s reasoning that because the appellant’s past income losses and special damages were incurred over several years and not at a single point in 2009 (when her statement of claim was issued), it would work an unfairness to apply the record-low interest rate from the third quarter of 2009 to the entire damage award.
[Hoy A.C.J.O., Blair and Roberts JJ.A.]
Trent Falldien, for the appellant
Sara Weinrib and Josh Hunter, for the respondent
Keywords: Canadian Charter of Rights and Freedoms, Appeal Without Merit
[Sharpe, van Rensburg and Benotto JJ.A.]
Meghan E.W. O’Halloran, for the respondent
Keywords: Debtor-Creditor, Student Loan
[Sharpe, Brown and Miller JJ.A.]
Cheryl Goldhart and Maneesha Mehra, for the appellant/ respondent by way of cross-appeal
Peter B. Cozzi, for the respondent/appellant by way of cross-appeal
Keywords: Family Law, Child Support, Spousal Support, Arrears, Variation
[Doherty, MacPherson and Miller JJ.A.]
Andrea M. Habas, for the appellant
Craig Losell, for the respondent
Keywords: Minutes of Settlement, Failure to Pay, Damage to Property
[Laskin, Pepall and Brown JJ.A.]
Alexander Nicholas Zivkov, for the appellants
Jordan D. Sobel, for the respondent
Keywords: Civil Procedure, Affidavits of Documents, Failure to Deliver, Rule 76, Striking Statement of Defence
[Doherty, MacPherson and Benotto JJ.A.]
Ade Olumide, acting in person (via teleconference)
Mark Wiffen, appearing as duty counsel
Paul D’Angelo, for the respondents (via teleconference)
Keywords: Civil Procedure, Extension of Time to Appeal, Interlocutory Order
Ontario Review Board Decision
[Weiler, Simmons and Epstein JJ.A.]
Mercedes Perez, for the appellant
Carmen Elmasry, for the Attorney General of Ontario
Kathryn Hunt, for the Centre for Addiction and Mental Health
Keywords: Capacity Review Board, Mental Capacity, Schizophrenia, Not Criminally Responsible, Harassment, CAMH, Absolute Discharge, Appeal Allowed
[Feldman, Simmons and Pepall JJ.A.]
Leslie Paine, for the respondent
Keywords: Criminal Law, Sentencing, Appeal Allowed
[Doherty, Watt and Miller JJ.A.]
Joseph Di Luca and Michael Wendl, for the appellant
Davin M. Garg, for the respondent
Keywords: Criminal Law, Robbery, Sentencing, R. v. Lacasse, Aggravating and Mitigating Factors, Appeal Dismissed
[Strathy C.J.O., Pardu and Benotto JJ.A.]
Frank Miller, for the applicant
Matthew Asma, for the respondent
Keywords: Criminal Law, Criminal Code s. 253(1)(a) & (b), R. v. Boudreault, Motion for Leave to Appeal Dismissed
[Cronk, Tulloch and van Rensburg JJ.A.]
Christine Bartlett-Hughes and Hannah Freeman, for the appellant
Brian H. Greenspan and Naomi M. Lutes, for the respondent
Keywords: Criminal Law, Sexual Offences, Appeal Dismissed
[Cronk, Tulloch and van Rensburg JJ.A.]
Rick Visca, for the appellant
Alan D. Gold and Melanie J. Webb, for the respondent
Keywords: Criminal Law, Possession of Drugs for the Purposes of Trafficking, Sufficiency of Grounds for Arrest, Appeal Allowed