Hello everyone,

The Court of Appeal released a number of civil decisions this week. Topics include whether an assessment officer has the jurisdiction to rule on the enforceability of a contingency fee agreement between a lawyer and client, personal injury, summary judgment, the waiver of conditions of closing on a real estate transaction, wrongful dismissal and claims between insurers in the statutory accident benefits context.

Have a great weekend.

John Polyzogopoulos

Evans Sweeny Bordin LLP v. Zawadzki, 2015 ONCA 756

[Gillese, Lauwers and Brown JJ.A.]

Counsel:

William L. Roland, for the appellants

Michael Bordin, for the respondents

Keywords: Solicitor and Client, Assessment of Accounts, Contingency Fee Agreements, Whether Fair and Reasonable, Jurisdiction to Determine, Rules of Civil Procedure, Rule 54, References

Facts:

The appellants were owners and developers of lands that were valued at approximately $20 million and subject to two mortgages. They defaulted on the mortgages and later reached a settlement whereby they consented to foreclosure in the event they did not perform the terms of the settlement. In 2006, the mortgagee obtained ex parte final orders of foreclosure against the properties, and the appellants unsuccessfully pursued relief from foreclosure.

The appellants retained the respondent solicitors to appeal the judgment denying them relief. The parties negotiated a contingency fee agreement (the “Agreement”) whereby the appellants agreed to pay the respondents for incurred legal fees as well as well as a bonus in the event the appeal was granted. The appeal was granted and the respondents rendered an account for the bonus (2.5% of the value of the property, being $500,000). The appellants obtained an order to assess that account and two other accounts before an assessment officer.

The assessment officer decided that the Agreement was neither fair nor reasonable and reduced the respondents’ accounts by $44,179.78 and disallowed the bonus completely. Both parties moved to oppose this confirmation, with the appellants seeking a further reduction of the invoiced amounts and the respondents seeking payment of the $500,000 bonus.

The motions judge dismissed the appellants’ motion to reduce the amount payable and granted the respondents’ claim to the bonus. The motions judge found that the assessment officer lacked the jurisdiction to consider the fairness and reasonableness of the Agreement and, in any event, he would have set aside the assessment officer’s conclusion that the Agreement was not fair and reasonable.

The appellants then appealed that order. Specifically, they sought to restore the decision of the assessment officer or in the alternative sought an order directing the assessment of the Agreement before a judge of the Superior Court of Justice.

Issues:            

  1. Did the motions judge err in holding that the assessment officer had no jurisdiction to consider the enforceability of the Agreement?
  2. Did the motions judge err in holding that the Agreement was fair and reasonable?

Holding: No to both. Appeal Dismissed.

Reasoning:

(1) No.  The motions judge correctly applied the principles in Cookish v Paul Lee Associates Professional Corporation to conclude that the assessment officer lacked jurisdiction to consider the enforceability of the Agreement. Issues involving the enforceability of contingency fee agreements are to be resolved by judges. While a judge can refer issues to an assessment officer for determination pursuant to the reference procedure in Rule 54 of the Rules of Civil Procedure, a judge should not refer issues concerning the enforceability of a contingency fee agreement. At the very most, a judge may refer to an assessment officer the calculation of the quantum of a contingency fee under a valid contingency fee agreement. Finally, where a judge orders a reference to an assessment officer, the assessment order must contain clear language of delegation.

The motions judge correctly held that the assessment officer lacked the jurisdiction to decide whether the Agreement was fair and reasonable, as it did not refer to him any issue concerning the enforceability of the Agreement.

(2) The motions judge was entitled to consider the fairness and reasonableness of the Agreement. Rule 54.09(5) provides that a judge hearing a motion to oppose confirmation of a report “may confirm the report in whole or in part or make such other order as is just.” Moreover, pursuant to Bales Beall LLP v. Fingrut, if a judge hearing a motion to oppose finds that an assessment officer committed an error in principle, the judge may either correct the error or refer the matter back for correction.

The record before the motions judge was adequate. The appellants knew that the issue of the fairness and reasonableness of the Agreement would be argued as the respondents specifically sought an order that they were entitled to be paid the bonus pursuant to the Agreement. Moreover, the parties agreed that it was open to each to file whatever evidence it considered relevant. The motions judge was thus able to review all pertinent documentation.

While the appellants submitted that the motions judge failed to accord proper deference to the findings of fact made by the assessment officer, the court found that the motions judge extensively canvassed the officer’s key findings and provided detailed reasons.

Finally, the motions judge properly informed himself of the factors relevant to determining the reasonableness of the Agreement as of the date of the assessment hearing. He reviewed them in detail and placed the greatest weight on the value of the property in question and the risk of the solicitors not getting paid. He thus did not commit an error of law, misapprehend any evidence, or make a palpable and overriding error on a factual matter which would justify appellate intervention. His allowance of the $500,000 bonus was not so unreasonable as to constitute an error in principle; under the circumstances, a bonus equivalent to 2.5% of the value of the property in issue was not unreasonable.

McDowell v. St. Lawrence Parks Commission, 2015 ONCA 755

[Feldman, Lauwers and Benotto JJ.A.]

Counsel:

E. Lilles, for the appellant

Santini, for the respondent

Key Words: Torts, Negligence, Personal Injury, Slip and Fall, Third Party Claim, Indemnity

Facts: The appellant (the “Appellant”) was the defendant and the respondent (the “Respondent”) was the third party. The trial judge found the Appellant did not prove its claim for indemnity or negligence against the Respondent in the third party action.

The Appellant operates Fort Henry and the Respondent runs the Garrison Restaurant at the Fort Henry. The plaintiff went to an off-hours banquet at the Garrison Restaurant. She went to the washroom but did not return; she fell into a moat and injured herself.

The Appellant had a service agreement with the Respondent that set out the Respondent’s obligations at Fort Henry. Its primary obligation was to operate the restaurant during Fort Henry’s regular hours of operation and during off-hours for banquets and special events. A clause in the agreement provided that the Respondent was required “to promote a safe working environment and assure that health and safety needs of staff and customers are met following relative guidelines, policies & procedures at all times.” There was also an indemnity provision. The Appellant argues that the Respondent breached its obligation because it did not escort the plaintiff to the bus at the end of the banquet, or in the alternative, was negligent in doing so.

Issue: Did the trial judge err by finding the Appellant did not prove its claim for indemnity or negligence against the Respondent?

Holding: Appeal dismissed. Costs were awarded in the agreed amount of $15,000 inclusive of disbursements and HST.

Reasoning:

No. The trial judge did not err in his finding or analysis.

The trial judge found that regardless of whether the Respondent had a duty to escort patrons, the Appellant did not prove that the plaintiff’s fall happened when the other guests left the restaurant. He did not find a nexus between the Respondent’s failure to get patrons safely to the bus and the plaintiff who fell into the moat.

The only indication of the timing of when the plaintiff went to the washroom was in the pleading that she went after dinner. There was no actual evidence in the record to that effect. The only witness was the restaurant manager who saw the plaintiff after she fell in the moat. The trial judge did not cut off any cross-examination on the issue.

The trial judge did not err in his discretionary decision that allowed the Respondent to withdraw its jury notice. There is no basis to conclude a jury would have come to a different decision than the trial judge.

Miaskowski v. Persaud, 2015 ONCA 758

[Cronk, Pepall and Lauwers JJ.A.]

Counsel:

Robin Moodie and Bronwyn M. Martin, for the appellants

Jonathan Kulathungam, for the respondent Terrence Catney

David Zarek, for the respondent Dustaff Persaud

Keywords: Torts, Occupier’s Liability, Negligence, Slip and Fall, Limitation Period, Limitations Act, 2002, s. 5, Occupiers’ Liability Act, Residential Tenancies Act, Summary Judgment, Genuine Issue for Trial, Hryniak v. MauldinRules of Civil Procedure,  Rule 20.04(2.1)

Facts:

The appellant, Phil Miaskowski, slipped and fell on ice and snow on the driveway of a residential property located in Brampton (the “Property”). Mr. Miaskowski was going to work at the Property where he was a caregiver for a young boy. He was employed by Alliance Youth Services In. (“Alliance”) which is owned by Steven Catney (“Mr. Catney Jr.”) and the respondent, Terrence Catney (“Mr. Catney Sr.”).

The respondent, Dustaff Persaud, owned the Property with Alliance as his tenant. The lease between the parties contained no express provision for the removal of snow and ice from the Property.

Mr. Miaskowski commenced an action against Persaud for damages relating to the accident but did not sue Alliance or the Catneys. He claimed Persaud had breached his duty of care as occupier or owner under the Occupiers’ Liability Act (“OLA”) and his common law duty of care by not taking steps to ensure the Property was safe.  Persaud’s lawyer wrote and informed Mr. Miaskowski that Mr. Catney Sr. should be added as a co-defendant in the action. Approximately five months after the letter and three years after the accident, Mr. Miaskowski amended his statement of claim adding Mr. Catney Sr. At discovery, Mr. Miaskowski admitted he knew Alliance occupied the Property and did not own it at the time of the accident. Persaud commenced third party proceedings against Mr. Catney Jr. and Alliance on the basis they were liable as occupiers of the Property.

Persaud and Mr. Catney Sr. both moved for summary judgment to dismiss the plaintiff’s claims against them and Mr. Catney Jr. and Alliance moved for summary judgment to dismiss the third party claim brought against them by Persaud.  The motions were heard together and the motion judge granted all three motions. The third party claim dismissal is not at issue on this appeal.

Issues:  

  1. Did the motion judge err in granting summary judgment dismissing the plaintiff’s claim against Catney?
  2. Did the motion judge err in granting summary judgment in the Persaud Appeal?

Holding:

The Catney appeal is dismissed and the Persaud appeal is allowed.

Reasoning: 

1) No. The motion judge was correct in granting summary judgment in favour of Mr. Catney Sr.

The motion judge held that at the time of the accident, Mr. Miaskowski was aware that the property was rented and that he had a “certain claim” against the tenant of the Property. By operation of ss. 5(2) of the Limitations Act, 2002, he was presumed to have known he had a claim against the tenant. Mr. Miaskowski provided no evidence that he or his lawyers were reasonably diligent in attempting to determine the proper defendants in this claim. The expiration of the limitation period was well before the commencement of the action against Mr. Catney Sr.

The motion judge correctly considered the governing principles for summary judgment set out in Hryniak v. Mauldin, 2014 SCC 7. The motion judge was in position to fairly and justly adjudicate the limitation period dispute and did not require the expanded powers available under Rule 20.04(2.1) of the Rules of Civil Procedure. There were no serious credibility issues regarding the limitation period issue on the record. When opposing a summary judgment motion, a party must put his or her ‘best foot’ forward and Mr. Miaskowski failed to adduce any evidence explaining why Alliance and Mr. Catney Sr. were not named as parties within the limitation period.

Finally, even after Mr. Miaskowski was informed by Persaud’s lawyer that Mr. Catney Sr. should be added as a party, it took over five months for it to be done. This further supports the conclusion that the appellants were not reasonably due diligent in these circumstances.

2) Yes. The motion judge erred in granting summary judgment in favour of Persaud. The motion judge erred in concluding that Mr. Miaskowski’s claims against Mr. Persaud were appropriate for resolution by way of summary judgment. He held that there were no genuine issues for trial because Persaud was not an “occupier” within the meaning of the OLA; no provision of the Residential Tenancies Act (“RTA”) was inconsistent with the lease; no other breach of the RTA was demonstrated; and because the OLA supersedes the common law liability for occupiers, there was no basis for a finding of liability in negligence against Mr. Persaud.

The motion judge erred in considering the interrelationship between the RTA and the OLA. It is unclear whether the motion judge determined that maintenance standards imposed by ss. 26(1) of the RTA’s regulations applied in this case and whether the maintenance obligation under ss. 20(1) of the RTA could be removed by the lease.

The motion judge failed to address the language found in Schedule A of the lease which did not refer to hazards on the driveway where the accident occurred. Whether the tenant is responsible under the lease for snow and ice on the driveway is central to the issue of the landlord’s liability under s. 8 of the OLA and is a genuine issue that requires a trial.

Neither the parties nor the motion judge addressed the possibility that provisions in the RTA applied when dealing with tenants’ responsibilities in light of terms of a lease and in relation to the intention of the parties. This is a genuine issue requiring a trial.

Starport Landing Inc. v. Laurel Springs Water Corp., 2015 ONCA 772 (Endorsement)

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

Counsel:

Bakos, for the appellant, Starport Landing Inc.

Gadbois, for the respondent, Laurel Springs Water Corp.

Keywords: Real Estate, Agreements of Purchase and Sale, Waiver of Conditions, No Genuine Issue Requiring Trial, Rules of Civil Procedure, Rule 20.02(2)

Facts:

The litigation involved an abortive sale of an industrial property that had a Ministry of the Environment (the “MOE”) Prohibition Order (the “Order”) registered against title. The respondent offered the property for sale through a tendering process. The tender package disclosed the Order, which required investigation and a remedial work plan with respect to the property, and in which the respondent offered to give any interested party a copy of the Order.

The respondent entered into an agreement of purchase and sale (the “Agreement”) which was conditional on the buyer being satisfied with the environmental condition of the property. If the buyer did not waive the environmental condition within the prescribed period, the Agreement would become null and void. The buyer then assigned the Agreement to the appellant and notified the respondent of the assignment. The appellant waived the environmental condition and paid the deposit pursuant to the Agreement. Prior to the scheduled closing, the respondent did not remove the Order from title.

The appellant asserted that in waiving the environmental condition, it did not waive the title condition that the property be free from all registered restrictions, charges, liens and encumbrances. It also asserted it was not given a copy of the Order and accordingly was entitled to void the Agreement pursuant to s.197(4) of the Environmental Protection Act (EPA).

The appellant sued for the return of the deposit it paid and the respondent vendor successfully brought a motion for summary judgment dismissing the appellant’s claim.

Issues:  

Did the motion judge err by:

  1. finding that the waiver of the environmental condition also constituted a waiver of the registration of the Certificate of Prohibition on title; and
  2. requiring the appellant to adduce evidence that it had not been given a copy of the Order and finding that there was no genuine issue requiring a trial?

Holding: No. Appeal dismissed.

Reasoning: 

  1. No. Having waived the environmental condition, the appellant could not demand that the respondent remove the Order from title. The title condition must be construed with regard to the specifically negotiated environmental condition, and the underlying factual matrix, being that the Order was disclosed to the first buyer and appellant as assignee of the Agreement. The motion judge correctly concluded that a waiver of the environmental condition effectively constituted a waiver of the appellant’s ability to object to the registration of the Order on title.
  2. The respondent was not required to prove that the appellant had not been given a copy of the Order. In response to the respondent’s summary judgment motion seeking the dismissal of the appellant’s claim, the appellant was required to set out, in affidavit material or other evidence, specific facts showing that there was a genuine issue requiring a trial. The appellant failed to adduce evidence that it was not given the Order. In absence of evidence from the appellant, there was no genuine issue requiring a trial with respect to the appellant’s claim that it could void the Agreement. Further, there was no basis for the motion judge to have ordered that oral evidence be presented.

Holland v. Hostopia. Com. Inc., 2015 ONCA 762

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

Counsel:

Colraine and C. Kalantzis, for the appellant

Avraam and J. Hann, for the respondent

Keywords:  Employment Law, Contract of Employment, Whether Enforceable, Consideration, Wrongful Dismissal, Termination Without Cause, Reasonable Notice, Employment Standards Act, Contract Interpretation, Unjust Enrichment, Standard of Review, Sattva Capital Corp v Creston Moly Corp, Housen v Nikolaisen

Facts:

The appellant was hired by the respondent in a sales position pursuant to an employment offer (the “Offer Letter”) signed by the appellant on June 9, 2003. The Offer Letter described the essential terms of employment, but did not include details on notice of termination or his commissions. The appellant also signed a document providing for a six-month non-competition provision and 12-month non-solicitation provision.

Nine months later, the appellant was presented with a six-page Employment Agreement which he signed on March 8, 2004. Much of the Employment Agreement was boilerplate and included a clause that allowed termination without cause or notice provided the appellant was paid in lieu of notice in accordance with the minimum standards of the Employment Standards Act (the “ESA”). The Employment Agreement also doubled the non-competition and non-solicitation periods to one year and two years respectively. In addition to the Offer Letter and the Employment Agreement, the appellant signed a series of annual commission plans.

The respondent terminated the appellant’s employment on February 28, 2010. On termination the appellant was paid accrued vacation pay, commissions for the months of January through March 2010, and the sum of $40,756.81 for “payments in lieu of notice” which amounted to at least the amount of his ESA entitlement to severance and termination pay. The appellant obtained new employment three months after his termination with similar terms of employment, including the same salary and commission program.

The appellant sued the respondent for wrongful dismissal, including the loss of commissions he claimed to be owed as a result of a prospective contract that was signed in October, 2010, after his termination. The trial judge dismissed the action, finding that the termination provision was enforceable, and that the appellant was paid at least the minimum entitlement.

Issues:  

  1. Whether the termination provision in the Employment Agreement was enforceable, given that it was signed nine months after the appellant commenced employment pursuant to the Offer Letter, which said nothing about notice of termination.
  2. Whether the trial judge erred in principle by failing to give consideration to the non-competition and non-solicitation provisions of the appellant’s employment contract when determining reasonable notice.
  3. Whether the trial judge’s interpretation of the Commission Plan and the appellant’s entitlement to commissions contained an extricable error of law.
  4. Whether the trial judge erred in finding there was no right to equitable compensation on unjust enrichment principles.
  5. Whether the appellant was entitled to compensation for the commissions he would have been paid in the ordinary course during the reasonable notice period.

Holding: Appeal allowed in part. The Appellant’s damages were not confined to the ESA amounts and he was entitled to common law reasonable notice or damages in lieu. However, the trial judge did not err in rejecting some of the Appellant’s claims for commissions.

Reasoning: 

Standard of Review

The court first considered the applicable standards of review of the appellant’s issues on appeal, particularly because the trial judge made significant findings of fact and was responsible for interpreting the relevant contracts. The court identified three standards of review.

First, the issue of enforceability of the Employment Agreement was reviewed on a standard of correctness as to questions of law and “palpable and overriding error” for questions of fact (per Sattva Capital Corp v Creston Moly Corp and Housen v Nikolaisen).

Second, the appellant’s entitlement to commissions was a question of contract interpretation, which is reviewed as a mixed question of fact and law (Sattva, Housen). Absent an extricable error of law, a trial judge’s interpretation of a contract attracts deference, as it requires a court to apply the principles of contractual interpretation to the words of the contract, in the context of the factual matrix.

Third, the trial judge’s determination of reasonable notice in the wrongful dismissal case was entitled to deference. Deference is given to trial judges in these circumstances unless the trial judge erred in principle or made an unreasonable finding of fact (Minott v Tam O’Shanter Development Co).

Issues

  1. No. The Employment Agreement contained an inconsistent term (that entitlement to notice would be limited to the minimum set out in the ESA) which was not discussed prior to the appellant’s acceptance of the Offer Letter, a term the appellant had not previously consented to and for which he received no consideration. As such, fresh consideration was required, since a promise to perform an existing contract is not consideration, and the Employment Agreement could not displace the implied term of reasonable notice contained in the Offer Letter. The appellant was entitled to reasonable notice of termination at common law.
  2. No, the trial judge did not err. There was no evidence that the non-competition provisions were likely to make it more difficult for the appellant to find comparable employment. The court did agree that the trial judge should not have considered how quickly the appellant found new employment in determining the period of reasonable notice. The court stated that notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment. However, it was not evident that the trial judge’s consideration of this factor had a significant impact on his conclusion concerning the proper notice period.
  3. No. The trial judge’s interpretation was given deference by the court. The trial judge had the benefit of hearing evidence about how the Commission Plan worked in practice. His detailed analysis and interpretation of the Commission Plan was informed by the factual matrix developed by the witnesses on both sides and the historical application of the plan in the course of the appellant’s employment. The court found in its analysis of three commissions relevant to the EarthLink account in question, that the trial judge’s interpretation of the Commission Plan contained no extricable error of law.
  4. No. To establish a claim for unjust enrichment, the appellant must demonstrate: (1) an enrichment of the defendant; (2) a corresponding deprivation of the plaintiff; and (3) an absence of juristic reason for the enrichment (Garland v Consumers’ Gas Co), which the appellant was unable to establish.

The appellant’s submissions on this issue impugned the trial judge’s findings of fact concerning his contribution to the ultimate securing of the EarthLink contract. The appellant requested that the court re-evaluate the evidence, and the credibility of the witnesses and to substitute their opinion for the trial judge’s. However, the court did not find any reason to interfere with the trial judge’s finding of fact. The appellant did not demonstrate any palpable or overriding error in the trial judge’s assessment of the evidence on the issue.

Further, the court agreed with the trial judge’s finding that the appellant received compensation for his work on the EarthLink account through his base salary and had contractually agreed he would not receive further compensation for his work until revenues had been booked. Thus, the appellant suffered no deprivation and there was a juristic reason for the enrichment of the respondent.

  1. Yes. As the appellant was entitled to reasonable notice per the Offer Letter, the court varied the judgment below by awarding damages assessed in the manner identified by the trial judge. Specifically, damages based on eight months’ notice were to be calculated as the salary, commissions and bonuses the appellant would have received in that time, less the amounts paid by the respondent on termination and the earnings from his new employer during that period.

Intact Insurance Company of Canada v. Lombard General Insurance Company of Canada, 2015 ONCA 764

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

Counsel:

Bailey, for the appellant, Lombard General Insurance Company of Canada

Lin and M. Stepura, for the respondent, Intact Insurance Company of Canada

G. Woodward and I. C. Ross, for the appellant, TD General Insurance Company

K. Grossman, for the respondent, Zurich Insurance Company

Keywords: Insurance Law, Statutory Accident Benefits, Loss-Transfer Claims Between Insurers, Insurance Act, s.275, s.268, Laches, Limitation Periods, Limitations Act, 2002

Facts:

Section 268 of the Insurance Act provides that an insurer must pay statutory accident benefits (“SABS”) to its insured when the insured is injured in a motor vehicle accident, regardless of fault. Section 275 permits first party insurers of a vehicle other than a heavy commercial vehicle to claim indemnification for SABS from the insurer of a heavy commercial vehicle involved in the accident. Section 275 does not specify when a first party insurer must make its indemnification request. In the two instances before the court, the first party insurers requested indemnification, triggering the commencement of the two-year limitation period to sue on such claims, several years after the underlying accident occurred.

Arbitration ensued, and each arbitrator determined whether the first party insurer’s delay in making its loss-transfer claim precluded recovery. One arbitrator held that the doctrine of laches can have no application to these loss-transfer claims, while the other held that it could.

Lombard and TD appealed their respective arbitration orders. The second party insurers argued that Ontario’s loss-transfer regime has an “equitable flavour” and that the fusion of law and equity should permit the application of laches to prevent injustice. The first party insurers argued that the doctrine cannot apply to these claims, as they are purely statutory.

Issues: Can the equitable doctrine of laches defeat loss-transfer claims made under s. 275 of the Insurance Act?

Holding: No.  Lombard appeal dismissed and TD appeal allowed.

Reasoning:

The court held that the defence of laches cannot be invoked in response to a loss-transfer claim under s. 275. A loss-transfer claim is clearly a statutorily-provided legal right to indemnity and not an equitable claim or a claim for equitable relief. Moreover, the limitation periods prescribed under the Limitations Act, 2002 apply to all claims – whether legal or equitable, arising under statute or common law – unless they are specifically exempted from its application. The absence of a laches-saving provision from the Limitations Act, 2002 also suggests that the equitable defence of laches is not available to bar a claim that is brought within the basic limitation period prescribed under that statute. Finally, the deletion of the laches-saving provision from the Limitations Act, 2002 coincided with a major reform of the existing limitations law in Ontario and a shift toward a more comprehensive scheme that seeks to provide certainty and clarity to litigants.

Moreover, even if the doctrine was available, it would not have defeated the first party insurers’ claims in this case for indemnification in these cases.

The court noted that its decision did not address the availability of equitable defences to the extent that they are not founded solely on a plaintiff’s delay in initiating its claim.

Akagi v Synergy Group (2000) Inc., 2015 ONCA 771

[Simmons, Blair and Juriansz JJ.A.]

Counsel:

Jonathan C. Lisus and James Renihan, for the appellants, Student Housing Canada Inc. and RV Inc.

William C. McDowell and Brian Kolenda, for the appellants, Integrated Business Concepts Inc. and Vincent Villanti

Shannon M. Puddister, for the appellant, Ravendra Chaudhary

Joseph M. Sereda, for the appellants, Synergy Group (2000) Inc., Shane Davidson Smith, Nadine Theresa Smith, Jean Breau, David Prentice, and 1893700 Ontario Limited

Jeffrey S. Leon and Ruth Promislow, for the respondent, J.P. Graci & Associates Ltd. in its capacity as Court-Appointed Receiver

Terry Corsianos, for the respondent, Trent Akagi

Keywords:  Costs Endorsement, Receiverships, Investigative Receiverships, Liability for Costs, Receiver Personally Liable, Substantial Indemnity Costs, Plaintiff Liable, Partial Indemnity Costs

Facts:

The Court of Appeal previously released a decision setting aside a series of increasingly expansive ex parte receivership orders and a subsequent order maintaining those orders, arising out of an action where the plaintiff, Mr. Akagi, sued Synergy for fraud and obtained a default judgment. The plaintiff obtained an ex parte order appointing a receiver over all assets, undertakings and property of Synergy and another company. Based on further ex parte applications, the receivership evolved into a wide-ranging “investigative receivership”, freezing and reaching assets of 43 additional individuals and entities, including authorizing registration of certificates of pending litigation against their properties. None of the additional targets was party to the receivership proceeding. Only three were connected to the underlying Akagi action. Only two were actually judgment debtors. The respondent’s claim also purported to protect the interests of some 3800 unnamed investors affected by the scheme. After setting aside the receivership orders, the Court of Appeal reviewed the costs submissions from the parties involved and came to the following decision regarding costs.

Issue:  

Are the plaintiff and the receiver liable for costs?

Holding: Yes. The Receiver is liable for costs on a substantial indemnity scale and the plaintiff is liable for costs on a partial indemnity scale.

Reasoning: 

The plaintiff is liable for costs since he tenaciously defended the ex parte orders and the order appointing a Receiver once the appellants received notice of them and took steps to set them aside. The Receiver is liable since it was not acting in its capacity as a receiver in the course of receivership. It should have taken a neutral position as an officer of the court, but instead turned itself into a litigant for the cause. This was a non-bankruptcy situation, and the law is clear that a receiver or trustee assuming the role of a “real litigator” runs the risk of being personally liable for costs.

Civil Law Endorsements

Metropolitan Toronto Condominium Corporation No. 897 v. Bhanji, 2015 ONCA 765

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

Counsel:

Shahzad Siddiqui, for the appellants

Megan Mackey, for the respondents

Keywords: Real Estate, Condominium Law, Condominium Act, 1998, s. 135(1), Oppression, Appeal Dismissed

Criminal Law Cases

R. v. J.S., 2015 ONCA 767

[Doherty, Pepall and Brown JJ.A.]

Counsel:

Vincenzo Rondinelli, for the appellant

Andreea Baiasu, for the respondent

Keywords: Criminal Law, Sexual Assault, Unlawful Confinement, Aiding and Abetting

R. v. Filipovic, 2015 ONCA 761

[Gillese, Watt and Pardu JJ.A.]

Counsel:

Otto Mok, for the appellant

Brock Jones, for the respondent

Keywords: Criminal Law, Unlawful Entry, Theft, Prior Inconsistent Statement, Hearsay Exception, Appeal Allowed

R v. Ghadban, 2015 ONCA 760

[Sharpe, Hourigan, Benotto JJ.A.]

Counsel:

Jill Presser, duty counsel

John Neander, for the respondent

Keywords: Criminal Law, Robbery, Conspiracy, Sentencing, Concurrent Sentences, Probation, Fresh Evidence, Rehabilitation, Appeal Allowed

R. v. Cox, 2015 ONCA 769

[Doherty, Pepall and Brown JJ.A.]

Counsel:

Richard A. Fediriwicz, for the appellant

Craig Harper, for the respondent

Keywords: Criminal Law, Robbery, Firearm, Shooting, Error of Fact, Sentencing, Aggravating and Mitigating Factors, Credit for Pre-Sentence Custody, Leave to Appeal Granted

R. v. Hall, 2015 ONCA 766

[Doherty, Pepall and Brown JJ.A.]

Counsel:

Michael Hall, appearing in person

Erika Chozik, appearing as duty counsel

Mabel Lai, for the respondent

Keywords: Criminal Law, Second Degree Murder, Mens Rea, Intoxication, Appeal Dismissed

XY v. United States, 2015 ONCA 773

[Doherty, Pepall and Brown JJ.A.]

Counsel:

Daniel F. Moore, for the applicant

Nancy Dennison, for the respondent

Keywords: Criminal Law, Extradition, Decision of Minister, Judicial Review, Reasonableness Standard, Canadian Charter of Rights and Freedoms, Application for Judicial Review Dismissed

R. v. Gomes, 2015 ONCA 763

[Doherty, Laskin and Tulloch JJ.A.]

Counsel:

Jason Rabinovitch, for the appellant

Brock Jones, for the respondent

Keywords: Criminal Law, Possession of Deadly Prohibited Weapon, Denunciatory Sentence, Appeal Allowed

R. v. Noureddine, 2015 ONCA 770

[Doherty, Laskin and Lauwers JJ.A.]

Counsel:

Victor Giourgas and Marco Sciarra, for the appellant Noureddine

Michael Lacy and Sam Scratch, for the appellant

Sheridan Roger Pinnock and Amy Alyea, for the respondent

Keywords: Criminal Law, Murder, Jury Selection,  Appeal Allowed

R. v. Gravesande, 2015 ONCA 774

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

Counsel:

Marie Henein, Scott Hutchison and Matthew Gourlay, for the appellant

Luc Boucher and Jim Marshall, for the respondent

Keywords: Criminal Law, Trafficking, Production of Third Party Records, Appeal Allowed

R. v. McNulty, 2015 ONCA 776

[Gillese, Watt and Pardue JJ.A.]

Counsel:

Jonathan Bliss, for the appellant

Eric Siebenmorgen, for the respondent

Keywords: Criminal Law, Assault, Break and Enter, Indictable Offence, Sentencing, Appeal Dismissed

R. v. Menzies, 2015 ONCA 775

[Laskin, Hourgian and Pardu JJ.A.]

Counsel:

Lance Beechener and Eva Taché-Green, for the appellant

Kathleen Healey, for the respondent

Keywords: Criminal Law, Possession of Controlled Substance, Trafficking, Possession of Property obtained by Crime, Unreasonable Verdict, Appeal Dismissed

R. v. Rafiq, 2015 ONCA 768

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

Counsel: 

Lisa Henderson, for the appellant

Nathan Gorham and B. Vandebeek, for the respondent

Keywords: Criminal Law, Child Luring, Child Pornography, Denunciation and Deterrence, Leave to Appeal Granted.