Good afternoon.

For the end of July, this was a fairly busy week for the Court of Appeal. Topics covered included family law, professional negligence, professional misconduct, vexatious litigants, dismissal for delay, unjust enrichment (office pool lottery winnings), breach of contract and construction law. The Kaynes v BP decision is perhaps the most noteworthy, as it is the first time I can recall seeing a court lift a stay of proceedings granted for want of jurisdiction/forum non conveniens as a result of the foreign court refusing to hear the case that had been stayed in Ontario in favour of that foreign court. Of further note is the court’s decision to grant Constable Forcillo bail pending the appeal from his conviction.

Have a great long weekend.

Civil Decisions

Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., 2016 ONCA 590

[Hoy A.C.J.O., Brown and Huscroft JJ.A]

Counsel:
J. Cooke, for the appellant
G. Morga, for the respondent

Keywords: Construction Law, Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, Rule 48.14(7), Setting Aside, Status Hearings, Faris v. Eftimovski

Facts:

In December 2000, the appellant registered six claims for lien against properties owned by the respondents. To obtain an order vacating the claims for lien, the respondents paid into court approximately $330,000. In January 2001, the appellant commenced six lien actions on its lien claims. In January 2003, the appellant filed its trial record. However, it then commenced the breach of trust action. Periods of activity were followed by long periods of inactivity. Status hearings were scheduled, only to be adjourned by the appellant or to have the appellant fail to meet the deadlines set. The trial was set for September 2009, but did not proceed. In 2012, the actions were struck from the trial list. More status hearings were scheduled, only to be adjourned at the appellant’s request. Throughout, the appellant was represented by counsel.

Eventually a status hearing was scheduled for October 6, 2014, peremptory to the appellant. No one appeared for the appellant; the actions were dismissed by

Master Pope. It transpired that counsel for the appellant had surrendered his licence to the Law Society of Upper Canada about two months before the October 2014 status hearing.

The respondents then secured payment of the monies out of court. When the respondents sought to garnish the appellant’s bank account to satisfy unpaid cost orders, that galvanized the appellant and it sprang into action. It retained new counsel, and there is no dispute new counsel moved expeditiously to set aside the dismissal order of Master Pope. The motion judge dismissed the appellant’s motion.

Issues:

1) Did the motion judge apply the wrong test for a motion to set aside a dismissal order made at a status hearing pursuant to rule 48.14(7)?

2) Did the motion judge err in failing to accept the appellant’s explanation for its delay?

Holding:

Appeal dismissed.

Reasoning:

  1. No. Although the motion judge did not cite the case that sets out the applicable test, Faris v. Eftimovski, 2013 ONCA 360, her reasons disclose her analysis focused on and applied the correct legal principles. Under the Faris test, a plaintiff seeking to set aside a dismissal order made at a status hearing must demonstrate two things: (i) there was an acceptable explanation for its delay and (ii) if the action were allowed to proceed, the defendant will suffer no non-compensable prejudice. The analysis of the motion judge addressed both these matters; she did not fail to apply the proper legal principles.

2. No. The motion judge was correct to conclude that the appellant had not provided a reasonable explanation for its delay. A lien claim and breach of trust claim are onerous for defendants and it causes the defendants prejudice if there is lengthy delay. The fact that the (i) the appellant did not know about the status hearing; (ii) its former counsel represented the respondents were delaying the actions or the matter was progressing or it would soon settle; and (iii) it did not know its counsel had surrendered his licence to practice law, is not sufficient to amount to an adequate explanation for the delay as they raise more questions than they answer. Also, being misled by counsel about the status of the action is not an excuse for such delay, especially where the party is a commercial entity. The appellant bore primary responsibility for the progress of the actions they commenced. Retaining a lawyer to represent it in the actions does not lessen this obligation. This obligation requires a party to take reasonable steps to supervise its counsel’s work to ensure there would be an expeditious determination of the actions on their merits. Also, the appellant failed to meet the expectation that a commercial plaintiff would produce concrete evidence describing the steps it had taken to supervise its counsel’s handling of its actions.

Spiro v Koc, 2016 ONCA 592

[Hoy A.C.J.O., Brown and Huscroft JJ.A.]

Counsel:

Marek Z. Tufman and Eleonora Izmaylov, for the appellant, Tania Cam

Saul I. Glober, Q.C., for the respondent, Paul Spiro

Robert L. Jerkins, for the respondents, Elizabeth Koc, Bonnie Strapp, Valentine Skribane and Marija Cavdamova

Keywords: Endorsement, Unjust Enrichment, Lottery Winnings, Partnerships, Partnerships Act, R.S.O. 1990, C. P-5, Co-Ownership

Facts: Tania Cam appeals the trial judge’s determination that she was unjustly enriched by receiving $200,000 (a one-fifth share of the proceeds of a winning lottery ticket) and that Paul Spiro, a respondent, was entitled to this amount instead. Spiro worked at a bank in Milton. Spiro and other employees would contribute money to a lottery pool. Spiro contributed to a ticket purchased on June 25th 2010, but left his job at the bank on July 16th of that same year. Cam started working on July 19th. On August 25th she took 25 tickets to a local vendor. She discovered that the June 25th ticket had resulted in a “free play.” That free play ticket won $1,000,000. Cam and the other employees split the proceeds five ways, but Spiro was not given any proceeds nor was he notified about the winning ticket. Trial judge found that Spiro and the other employees were entitled to a share of the winnings and Cam had been unjustly enriched. On appeal Cam argues that the lottery pool was a partnership governed by the Partnerships Act and that the winning ticket was an asset of the partnership to which she was entitled.

Issues:

  1. Was Cam entitled to the proceeds of the June 25 ticket?

Holding: Appeal Dismissed.

Reasoning:

  1. The trial judge properly categorized Spiro and the other employees as co-owners of the June 25 ticket; as such Cam was not entitled to a share of the winning. Even if the lottery pool was a partnership, Cam would still not be entitled to a share of the winnings, as it would have been a partnership comprised of Spiro and the other employees only for the limited purpose of purchasing the June 25 ticket, and not an ongoing partnership.

Zenex Enterprises Limited v. Pioneer Balloon Canada Limited, 2016 ONCA 594

[Hoy A.C.J.O., Brown and Huscroft JJ.A]

Counsel:
D. Collins, for the appellant
M. S. Deverett, for the respondent

Keywords: Endorsement, Breach of Contract, Commissions, Costs in the Cause, Costs in Any Event of the Cause

Facts:

The appellant, Pioneer Balloon Canada Ltd. is a balloon manufacturer. Zenex Enterprises is a wholesaler and distributor of consumer goods. Dollarama, a retail chain store, was a customer of Zenex for several years, during which it purchased various goods including balloons Zenex had purchased from Pioneer.

In 2005, Pioneer entered into an agreement to sell balloons to Dollarama directly. Several million dollars in balloons were sold by Pioneer to Dollarama over the next five years. Zenex claimed that it was entitled to a 5% commission on Pioneer’s sales to Dollarama, pursuant to an agreement it made to introduce Pioneer to Dollarama and to assist in obtaining Dollarama’s business. Pioneer contended that it secured the Dollarama business on its own and that it owed only $5,000 as a fee for Zenex president Howard Starr’s services.

Pioneer appeals the trial judge’s determination that it owes Zenex $266,725.08 for breaching an oral contract to pay a commission on its balloon sales to Dollarama. Zenex cross-appeals the trial judge’s decision that it pay Pioneer $5,000 in costs for an unsuccessful motion it brought in the course of the proceedings.

Issues:

  1. Did the trial judge commit a palpable and overriding error when she found that Zenex introduced Marylynn Borondy (salesperson for Pioneer) to the principal buyer at Dollarama?
  2. Did the trial judge err in failing to give effect to the pre-trial costs decision of the motion judge?

Holding:

The appeal is dismissed. Leave to cross-appeal is granted, and the cross-appeal is allowed.

Reasoning:

  1. The agreement between Zenex and Pioneer contemplated a commercial introduction – an opening of doors by Mr. Starr (President of Zenex), offering Pioneer the chance to do business directly with one of Zenex’s longstanding clients. Mr. Starr could not attend the meeting because his wife was ill, but sent a sales representative familiar with the business in his place. Pioneer does not dispute that the sales representative attended the meeting in the place of Mr. Starr. Pioneer had no prior relationship with Dollarama and the trial judge found that “but for the introduction through Zenex, the meeting and consequent sales by Pioneer to Dollarama would likely never have occurred. The introduction in itself was, I find, significant.”
  2. The motion judge dismissed Zenex’s motion, but, in accordance with the agreement of the parties, ordered that costs on the motion were to be “in the cause”. That is, regardless of the outcome of the motion, the winner of the trial would be awarded costs for the motion in addition to costs for the trial.

The trial judge concluded that a more appropriate order would have been to order costs to Pioneer in any event of the cause. Accordingly, she fixed the amount of $5,000 to be paid to Pioneer. The trial judge erred in doing so. Given the order of the motion judge, the trial judge was required only to set the quantum costs for the motion; she did so, at $5,000, but that should have exhausted her authority. The trial judge had no authority to alter the motion judge’s order that costs were to be awarded to the winner of the trial.

Delco Automation Inc. v. Carlo’s Electric Limited, 2015 ONCA 591 

[Feldman, Gillese and Brown JJ.A.]

Counsel:
Stephen Schwartz, for the appellants/respondents by way of cross-appeal
James L. MacGillivray, for the respondent/appellant by way of cross-appeal

Keywords: Contracts, Construction, Breach of Trust, Personal Liability, Construction Lien Act, ss 8 & 13

Facts:

These appeals concern a dispute over the scope of work the parties agreed to in their contracts for construction projects at two correctional institutions and issues relating to the performance of those contracts. Correctional facilities require integrated security systems (“ISS”) that allow security officers to control an entire security system from one or more touch screens located throughout the facility. The disputes between the parties concern ISS work at two correctional facilities: the “Brampton Project” and the “Collins Bay Project”. The appellant, Carlo’s Electric Limited (“CEL”), is an electrical contracting company whose principal is the individual appellant, Carlo Fornasier. The respondent, Delco Automation Inc. (“Delco”), is an engineering firm specializing in systems integration.

The issues in both actions were similar as they involved a determination of the scope of work agreed to by the parties under their contracts for each project.

Regarding the Brampton Project, the trial judge found that CEL had breached its contract and awarded Delco damages. The trial judge dismissed CEL’s counterclaim.

The trial judge found CEL breached the Collins Bay Project contract by refusing to perform the termination work. The trial judge awarded damages against CEL and against Mr. Fornasier on the basis that he had assented to CEL’s breach of the trust under ss. 8 and 13 of the Construction Lien Act. However, the trial judge refused Delco’s request to declare that the judgment against Mr. Fornasier survived bankruptcy pursuant to s. 178(d) of the Bankruptcy and Insolvency Act.

Regarding the Brampton Project, CEL appeals the trial judge’s award of damages, the quantum of damages, and the dismissal of its counterclaim. CEL appeals the award of damages with respect to the Collins Bay Project, Mr. Fornasier appeals the trial judge’s order in relation to his liability under the trust provisions of the Construction Lien Act.

Issue:

  1. Did the trial judge err in awarding damages against CEL and dismissing the counterclaim regarding the Brampton Project?
  2. Did the trial judge err in awarding damages against CEL regarding the Collins Bay Project?
  3. Did the trial judge err in finding Mr. Fornasier liable under the Contruction Lien Act?

Held: Brampton Project and Collins Bay Project appeals dismissed. Mr. Fornasier’s appeal allowed.

Reasoning:

  1. It is clear that the trial judge accepted Delco’s evidence that the contract’s scope of work required CEL to supply and install the wiring and perform outside the perimeter work.

In reaching that conclusion, the trial judge rejected the evidence of CEL witnesses that had sent other quotes to Delco which excluded the supply and installation of wiring. One finding made by the trial judge was that “CEL deliberately destroyed hard copy files and/or concealed documentation that was unfavourable to their case”. CEL submits the trial judge erred in reaching that conclusion because Delco did not plead the spoliation of documents and only raised the issue at trial. The Court of Appeal rejected CEL’s submission and held that when the trial judge’s reasoning is read as a whole, it is apparent that he gave several reasons for preferring the evidence adduced by Delco.

  1. The parties did not sign any documents setting out the terms of their agreement. As such, the trial judge was required to review all the evidence – both documentary and testimonial – to determine, on a balance of probabilities, whether the parties reached an agreement on the scope of work and, if they did, the terms of that agreement.

The trial judge considered the relevant evidence, made findings of credibility, and explained why he preferred Delco’s evidence over that of CEL. The Court of Appeal found no basis upon which to interfere with that finding.

  1. The trial judge’s reasons do not explain the basis for his findings of a breach of trust under s. 8(2) of the Construction Lien Act or Mr. Fornasier’s personal liability under s. 13(1). The Court of Appeal held that the evidence did not amount to Delco demonstrating, on a balance of probabilities, that Mr. Fornasier had assented to, or acquiesced in, conduct that he knew, or reasonably ought to have known, amounted to a breach of trust by CEL. As such, the court allowed Mr. Fornasier’s appeal in respect of his personal liability under s. 13 of the Construction Lien Act.

Damallie v. Ping, 2016 ONCA 603

[Gillese J.A. (In Chambers)]

Counsel:
Clifton Damallie, acting in person
Jeremy Opolsky, appearing as amicus
Julia Lauwers, for the responding party/moving party by way of cross motion

Keywords: Endorsement, Civil Procedure, Vexatious Litigants, Frivolous and Vexatious Proceedings, Abuse of Process, Rules of Civil Procedure, Rule 2.1

Facts:

On September 17, 2012, Mr. Damallie began an action against Dr. Ping in the Small Claims Court. Deputy Judge Shapiro dismissed Mr. Damallie’s claim (the “Dismissal”). Mr. Damallie then brought a motion in the Divisional Court, in which he sought an extension of time to file a notice of appeal against the Dismissal. By order dated January 8, 2014, a single judge of the Divisional Court dismissed the motion (the “First Divisional Court order”). In thoughtful and thorough reasons, the court explained that the proposed appeal had no merit. When Mr. Damallie moved to set aside the First Divisional Court order, a three-judge panel of the Divisional Court dismissed the motion and upheld the First Divisional Court order (the “Second Divisional Court order”). By notice of motion, Mr. Damallie indicated that he would make a motion in this court seeking leave to appeal the Second Divisional Court order (the “Originating CA Motion”). The Registrar notified Mr. Damallie that she would dismiss the Originating CA Motion for delay unless he filed his motion record and factum in accordance with the Rules by December 30, 2014. Mr. Damallie did not file the requisite materials. Instead, he brought a motion for an extension of time to file the requisite materials. That motion was dismissed by court order. The pattern has continued for the past eighteen months, with Mr. Damallie filing notice of motion after notice of motion, each one challenging a decision this court has rendered in this matter but failing to provide the requisite documentation. By order dated April 14, 2016, the Registrar dismissed the Originating CA Motion for delay (the “Order”). This had the effect of dismissing the underlying motion for leave to appeal to this court. Nonetheless, Mr. Damallie continues to bring motions in this proceeding. He frequently fails to serve Dr. Ping with the motion materials and fails to inform her of the dates on which the motions are scheduled to be heard.

Dr. Ping brings a cross-motion asking that this proceeding be referred to a panel of the Court of Appeal (the “Panel”) for a determination under rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that the proceeding is, on its face, frivolous, vexatious and an abuse of process.

Issues:

  1. Should this proceeding be referred to a panel of the Court of Appeal for a determination under rule 2.1 of the Rules of Civil Procedure that the proceeding is on its face, frivolous, vexatious, and an abuse of process?

Holding: Cross-motion granted.

Reasons:

  1. Yes. I see no reason why the cross-motion should not be entertained by this court. There are very few reported decisions in which this court has stayed or dismissed a proceeding under rule 2.1. I see nothing in those decisions to suggest that the matter cannot be brought to the court’s attention by means of a motion such as that brought by Dr. Ping. It has been many months since counsel for Dr. Ping sent a written request to the Registrar and there have been countless motions since that time, many of which, in my view, were moot. There must be some method by which a responding party can enlist the court’s aid in coming to grips with the situation. A motion of this sort provides such an avenue. On the face of the notices of motion, they appear to be frivolous, vexatious and an abuse of process.

Abi-Mansour v. Ontario College of Teachers, 2016 ONCA 602

[Gillese J.A. (In Chambers)]

Counsel:
Paul Abi-Mansour, acting in person
Christine Lonsdale and Shane C. D’Souza, for the responding party Ontario College of Teachers

Keywords: Endorsement, Administrative Law, Regulation of Professions, Teachers, Professional Misconduct

Facts: In 2008 the Ontario College of Teachers’ Discipline Committee found that Mr. Abi-Mansour had committed numerous acts of professional misconduct. His appeal to the Divisional Court was dismissed on October 30, 2014. He failed to file an appeal within the 15 day period. The College granted a ten day extension. No appeal was brought. Mr. Abi-Mansour brought a motion seeking a further extension in January 2016. This motion was dismissed. Mr. Abi-Mansour brought a motion in March asking for this dismissal to be reviewed. This Review Motion was dismissed in June by Justice Feldman for failure to file the necessary documents. Mr. Abi-Mansour brings a motion requesting that his Review Motion be restored.

Issues:

  1. Should the Review Motion be restored?

Holding: Motion dismissed

Reasoning:

No. Feldman J gave clear and compelling reasons for rejecting the extension motion. It would be contrary to the interests of justice to prolong this matter given the significant delays that have occurred due to Mr. Abi-Mansour’s conduct. There is also no merit to the appeal underlying the extension, as the findings of fact made by the Ontario College of Teachers’ Discipline Committee will be extremely difficult to challenge.

Easson v. Blase, 2016 ONCA 604

[Hoy A.C.J.O., Brown and Huscroft JJ.A.]

Counsel:
Stephen Grant and Jenna Preston, for the appellant
Larissa Easson, appearing in person

Keywords: Family Law, Child Time-Share Arrangement, Material Change in Circumstances, Fresh Evidence

Facts:

This appeal arises out of a high-conflict dispute between parents regarding the residential schedule and parenting of their two children, now 12 and 7 years old.

The parties separated on May 15, 2009. On May 14, 2012, on the eve of trial, the parents agreed on a comprehensive, final order (the “Order”) regarding the residential schedule and parenting of their children. Less than two years later, the father sought to vary the Order, among other things, to provide that the children would reside with each parent on an alternate weeks basis and to remove the mother’s decision-making authority.

The trial judge heard the father’s motion over 12 days in 2015. She concluded that there had not been a material change in circumstances since the making of the Order and that she was therefore without jurisdiction to vary it. She found that the father “holds unbridled hostility towards” the mother and that the children have flourished in the mother’s stable and continuous care.

The father appeals the trial judge’s order dismissing his motion to vary the Order. He argues that the trial judge erred in finding that there had not been a material change in circumstances and that a week-about time sharing arrangement is not in the children’s best interests.

The mother seeks leave to adduce fresh evidence that the father has willfully not complied with the terms of the Order since the trial judge dismissed his motion, and argues that this court should dismiss his appeal on the basis of that non-compliance. In response, the father has filed an affidavit denying that he has not complied with the terms of the Order.

Issues:

  1. Did the motion judge err in finding that there was no material change in circumstances since the Order?
  2. Should leave be granted so that the Mother can adduce fresh evidence?

Holding:

Father’s appeal dismissed. Mother’s motion for leave to admit fresh evidence also dismissed.

Reasoning:

  1. the trial judge considered the father’s work arrangements and determined that there was no evidence that the father’s ability to meet the needs of the children had materially changed since the date of the Order as a result of a change of his employment. She found that the father controlled his own travel schedule at the time of the Order and that his two jobs, old and new, were very similar.

The court rejected the father’s other broad submission as well, that being: once a parent makes a concession, the other parent may be relieved of demonstrating a material change in circumstances. This submission was rejected because the court found that the change (alleged ‘concession’) agreed to by the mother was a change of the type contemplated by the original Order, and therefore was not an acknowledgment of material change in circumstances.

2. While the mother’s proposed fresh evidence is seemingly credible, it is untested and the father denies non-compliance. His affidavit consists of a short, blanket denial of his non-compliance with the Order, but he only received the mother’s materials a few days before the hearing of the appeal, on return from a vacation with the children. It is not the role of this court to make credibility findings. In the circumstances, the mother’s proposed fresh evidence, disputed as it is by the father, could not ground the dismissal of his appeal.

Hollowcore Incorporated v. Visocchi, 2016 ONCA 600

[Weiler, Cronk and Benotto JJ.A.]

Counsel:
Alan J. Lenczner, Q.C., and Ren Bucholz, for the appellants/respondents by way of cross-appeal, Michael Visocchi and Visco Engineering Inc.
Peter W. Kryworuk, Jasmine T. Akbarali and D. Stephen Jovanovic, for the respondents/respondents by way of cross-appeal, Hollowcore Incorporated and Prestressed Systems Inc.
Morris A. Chochla and Mark A.D. Coleman, for the respondents/appellants by way of cross-appeal, The Royal Insurance Company of Canada, Continental Casualty Company and Certain Underwriters at Lloyd’s Under Contract No.ENC5-98

Keywords: Breach of Contract, Negligence, Negligent Misrepresentation, Insurance Coverage, Exclusion, Onus of Proof, Damages, Foreign Currency, Timing of Currency Conversion, Court of Justice Act, ss.121(1), (3)

Facts:

Visocchi and his corporation Visco (the Appellants) are engineers. The Respondent, Hollowcore is in the business of designing, manufacturing and installing concrete. Hollowcore hired Visco to prepare drawings for a commercial parking garage. The drawings had to be resubmitted many times. This delayed completion of the project. Ultimately, Visco withdrew from the project without completion. Hollowcore brought an action for breach of contract, negligent performance of a service, and negligent misrepresentation. The trial judge found that Visocchi was not personally liable in contract, but that both Visco and Vissochi were liable in negligence. The trial judge also examined the Insurers’ liability to indemnify the Appellants under the insurance contract; the Insurers were liable for damages arising from negligence but not from delay. The damages were split 55/45%, with the Insurers owing the larger amount. Some of the damages were in U.S. dollars and the trial judge determined that the appropriate date to assess the exchange rate was the date the claim was issued. The Appellants appeal the apportionment of liability, the Insurers cross-appeal the assessment of damages and the exchange rate used by the trial judge.

Issue:

  1. Did the trial judge err in allocating responsibility for the damages between the Appellants and the insurers?
  2. Did the trial Judge err in her assessment of damages?
  3. Did the trial judge use the correct date for determining the exchange rate?

Holding: Appellants’ appeal granted. Insurers’ cross-appeal dismissed.

Reasoning:

  1. The appellants submit that all the damages awarded against them, including for the delay, are covered as they ultimately resulted from negligence. The Insurers argue that the delay was as a result of a failure to provide professional services in a timely manner, which is not covered by the policy. There is an exclusion clause that specifically indicates that claims arising out of failure to complete drawings on time are not covered unless the delay is a result of an error or inaccuracy in preparation of the documents.

The Court in Cabell v Personal Insurance Co. re-iterated the well-established principle that insurance policies are to be interpreted to favour the insured. The onus was on the Insurers to establish that the damages arose out of a lack of timeliness and not from delay caused by the appellants having to correct errors and omissions. The Insurers have not discharged this burden. A reading of the trial judge’s decision indicates that no damages arose from “pure delay,” but rather by negligence.

2. The trial judge’s assessment of damages is entitled to deference as per TMS Lighting Ltd v KJS Transport Inc.. The trial judge directed herself to the governing principles of damages. The approach adopted by the trial judge is consistent with the decisions of Martin v. Goldfarb and TMS Lighting Ltd v KJS Transport Inc, in that when damages, by their nature, are difficult to assess, the court must do the best it can in the circumstances. The Plaintiff bears the onus of establishing quantum of damages. The trial judge examined the evidence and came to an assessment of damages. Her approach was correct.

3. Section 121(1) of the Courts of Justice Act provides that, generally, the exchange rate will be determined as at the date of judgment. However, an exception is provided in section 121(3) that if the amount determined with reference to section 121(1) would be inequitable to either party, the appropriate date can be on such date as the court considers equitable. In departing from the general rule, the trial judge adopted the reasoning from Zesta Engineering v Cloutier in that the position that the parties would have been in but for the wrong should be considered when deciding whether to apply 121(3). Here, the trial judge found that in order to place the respondents in the position they would have been in, the damages should have been converted to US dollars on the earlier date. This was her call to make and there is no reason for appellate interference

Kaynes v. BP P.L.C., 2016 ONCA 601

[Sharpe, Simmons and Benotto JJ.A.]

Counsel:
Joseph Groia, Martin Mendelzon, and Matthew Stroh, for the Moving Party
Laura K. Fric, Kevin O’Brien, and Karin Sachar, for the Responding Party

Keywords: Torts, Misrepresentation, Securities Law, Class Actions, , Conflict of Laws, Jurisdiction, Forum Non Conveniens, Civil Procedure, Setting Aside or Varying Orders, New Facts Arising, Rules of Civil Procedure, Rule 59.06(2)(a)

Facts:

The moving party, Peter Kaynes, seeks an order lifting the stay of proceedings granted by the Court of Appeal on August 14, 2014.

That stay was based upon the court’s conclusion that Ontario should decline to exercise jurisdiction over a claim relating to securities of BP purchased on foreign stock exchanges on the ground of forum non conveniens. The moving party submits that new circumstances have arisen that make it unjust to maintain the stay and that accordingly, it should be lifted.

The new circumstances: After the stay decision, the moving party commenced a class proceeding in the U.S. District Court asserting a claim for pre-explosion (the one in the Gulf of Mexico in 2010 that led to the massive oil spill) representations based upon the Ontario Securities Act. BP successfully moved to have that proceeding dismissed on two grounds. First, the U.S. District Court judge ruled that pursuant to an order made in December 2010, the Court had appointed lead plaintiffs to represent the class, thereby vesting “the lead plaintiff[s] with authority to exercise control over the litigation as a whole” and granting them “sole authority to determine what claims to pursue on behalf of the class”. The lead plaintiffs had not brought a pre-explosion claim based upon Ontario securities law. The U.S. District Court judge ruled that as the moving party and his proposed Canadian class were members of the class represented by the lead plaintiffs, he was not entitled to now assert a separate class action based upon a claim that the lead plaintiffs had not pursued. Second, the U.S. District Court judge ruled that the moving party’s claim was time-barred under the Ontario Securities Act.

Issues:

  1. Do the facts surrounding the moving party’s unsuccessful attempt to pursue a class action for pre-explosion misrepresentations in the U.S. District Court justify or require the court to set aside the prior stay decision here in Ontario (to avoid an injustice)?

Holding:

Motion granted. Stay is lifted to permit the moving party to proceed with a claim based upon the alleged pre-explosion misrepresentations.

Reasoning:

  1. It is common ground that the court has jurisdiction to set aside or vary an order on the basis of “facts arising or discovered after” the order was made: see Rule 59.06(2)(a). A stay granted on grounds of forum non conveniens is not necessarily permanent and the court has inherent jurisdiction to lift the stay where circumstances later develop that make it unjust to continue the stay: Quadrangle Holdings Ltd. v. Coady, 2013 NSSC 416, 339 N.S.R. (2d) 85, at para. 49, aff’d 2015 NSCA 13, 355 N.S.R. (2d) 324.

When the appeal was argued in August, 2014, BP took the position that the claim the moving party sought to advance was governed by U.S. law. BP argued that the tort was not committed in Ontario and that the court should decline jurisdiction in order to have the claim adjudicated in a U.S. court under U.S. law.

However, before the U.S. District Court on the motion to dismiss the moving party’s proposed class action, BP accepted the moving party’s position that the moving party’s pre-explosion claim was based upon Ontario law. BP’s position before the U.S. District Court was that as the claim was based on foreign law, it was not one over which U.S. law claimed exclusive jurisdiction.

These developments, taken as a whole, are sufficient to justify lifting the stay. It was certainly not brought to the court’s attention, nor was it in the court’s contemplation that the moving party’s claim would be dismissed in the U.S. District Court simply because it had not been advanced by the lead plaintiffs in the U.S. class action. That is a purely procedural barrier that prevents the moving party from having his claim heard on the merits.

Windsor-Essex Children’s Aid Society v. R.H.C., 2016 ONCA 595

[Hoy A.C.J.O., Brown and Huscroft JJ.A.]

Counsel:
Michelle Meighoo, duty counsel on behalf of the appellant
Frank Philcox, for the Windsor-Essex Children’s Aid Society
Annemarie Carere, for the Office of the Children’s Lawyer
David B. Williams, for the intervener Christina Sweet

Keywords: Endorsement, Family Law, Crown Wardship, Ineffective Counsel, Fresh Evidence

Facts:

The appellant is the mother of two young girls who are nine and twelve years old. Both girls were apprehended by the Windsor-Essex Children’s Aid Society on May 16, 2012. The appellant has not had access to her children since October 22, 2014. The Society brought a summary judgment motion seeking a Crown wardship order with no access for the mother, which was granted by the motion judge on December 23, 2014. The appellant appealed to the Superior Court of Justice and, on the appeal, alleged ineffective assistance from counsel on the summary judgment motion. The Superior Court appeal judge dismissed the appeal. The appellant appeals from that order.

Issue:

  1. Did the appellant receive ineffective counsel on the summary judgment motion?
  2. Does the appellant have grounds to admit fresh evidence?

Held: Appeal dismissed.

Reasoning:

  1. The appeal judge extensively reviewed and considered the chronology of the litigation and the specific allegations of ineffective assistance advanced by the appellant. The Court found that motion counsel was competent throughout the proceedings and the appellant was not able to demonstrate any error in the appeal judge’s understanding of the evidence, findings of fact, or analysis that would justify interfering with his conclusion.
  1. The fresh evidence consists of documents from the Children’s Aid Society files and Family Visitation Program case notes. The appellant seeks to re-file essentially the same evidence considered by the appeal judge. The Court of Appeal held that this was not a proper function of this court. An appeal to this court involves a review of the decisions made by the judges below to ascertain whether they made a material error that affected the outcome of those hearings. The court found no error in the appeal judge’s determination of the admissibility and use of the fresh evidence filed by the appellant. The court also found no reason to review the motion judge’s order.

Criminal Decisions

R. v. M. K. (Publication Ban) 2016 ONCA 589

[Watt, Pepall and Tulloch JJ.A. ]

Counsel:
M. K., acting in person
Diana Lumba, for the appellant
Michael Bernstein, for the respondent

Keywords: Endorsement, Criminal Law, Sexual Assault, R. v. W.(D.), Evidence, Testimony, Credibility, Sentencing

R. v. Perkins 2016 ONCA

[Cronk, Juriansz and Roberts JJ.A.]

Counsel:
Jennifer Penman, for the appellant
Brock Jones, for the respondent

Keywords: Criminal Law, Evidence, Exculpatory Statements, Curative Proviso

R. v. Cornish, 2016 ONCA 578

[Watt, Pepall and Tulloch JJ.A.]

Counsel:
Jay Cornish, acting in person
Ingrid Grant, duty counsel
Lorna Bolton, for the respondent

Keywords: Endorsement, Criminal Law, Criminal Harassment, Assault, Sentencing, Proportionality

R. v. J.L. (Publication Ban), 2016 ONCA 593

[Watt, Pepall and Tulloch JJ.A.]

Counsel:
J.L., acting in person
Ingrid Grant, duty counsel
Michael Bernstein, for the respondent

Keywords: Publication Ban, Endorsement, Criminal Law, Sexual Offences, Evidence, Sentencing

R. v. Lessard, 2016 ONCA 596

[Watt, Pepall and Tulloch JJ.A.]

Counsel: Russell Silverstein, duty counsel
Lorna Bolton, for the respondent

Keywords: Endorsement, Criminal Law, Abatement of Appeal Upon Death of Appellant, R. v. Smith, [2004] 1 SCR 385

R. v. Caesar, 2016 ONCA 599

[Blair, Tulloch and Pardu JJ.A.]

Counsel:
Brian Eberdt, for the appellant
Maria Gaspar, for the respondent

Keywords: Criminal Law, Drug Importation, Evidence, Sentencing

R. v. Forcillo, 2016 ONCA 606

[Gillese J.A.]

Counsel:
Michael Lacy and Bryan Badali, for the appellant
Susan Reid, for the respondent

Keywords: Endorsement, Criminal Law, Attempted Murder, Bail Pending Appeal, Criminal Code, Section 679(3)