Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario.

In Bancroft-Snell v. Visa Canada Corporation, a five-member panel of the Court of appeal upheld its previous decision in Dabbs v. Sun Life Assurance Company of Canada (1998), 41 OR (3d) 92 (CA), confirming that class members who did not opt out of a class proceeding do not have standing to appeal from an approved settlement. Walmart and Home Depot’s appeals from the settlement in this class action against the banks and credit cards companies was therefore quashed..

Other topics covered this week included agreements of purchase of sale of land (forfeited deposit is applied to damages), rectification of the register when setting aside a fraudulently registered transfer of land, res judicata, abuse of process and collateral attack in the context of a challenge to the validity of a family trust, and the recognition of a foreign divorce.

I hope everyone is enjoying the weekend.

Table of Contents

Civil Decisions

Azzarello v Shawqi, 2019 ONCA 820

Keywords: Contracts, Real Property, Agreements of Purchase of Sale of Land, Damages, Deposits, Mitigation,Goldstein v Goldar, 2018 ONSC 608, Di Millo v 2099232 Ontario Inc., 2018 ONCA 1051, 1179 Hunt Club Inc. v Ottawa Medical Square Inc., 2018 ONSC 6200, Benedetto v 2453912 Ontario Inc., 2019 ONCA 149

Beaucage v Storr, 2019 ONCA 818

Keywords: Real Property, Transfers, Validity, Fraud, Rectification of Parcel Register

Novikova v Lyzo, 2019 ONCA 821

Keywords: Family Law, Divorce, Foreign Divorce, Recognition, Jurisdiction, Real and Substantial Connection, Child Support, Spousal Support, Interim Support, Summary Judgment, Divorce Act, RSC, 1985, c 3, s 22, Powell v Cockburn, [1977] 2 SCR 218

Bancroft-Snell v Visa Canada Corporation, 2019 ONCA 822

Keywords: Civil Procedure, Class Proceedings, Settlements, Appeals, Standing, Class Members, Class Proceedings Act,1992, SO 1992, c. 6, ss. 30(3), 30(5), Courts of Justice Act, RSO 1990 c C.43, s. 6(1)(b), Dabbs v Sun Life Assurance Company of Canada(1998), 41 OR (3d) 92 (CA), leave to appeal refused, [1998] SCCA No 372

Wright v Urbanek, 2019 ONCA 823

Keywords: Trusts,Civil Procedure, Striking Pleadings, Res Judicata, Abuse of Process, Collateral Attack, Toronto (City) v CUPE, Local 79, 2003 SCC 63, Behn v. Moulton Contracting Ltd., 2013 SCC 26

Short Civil Decisions

Furr v Duhamel, 2019 ONCA 824

Keywords: Contracts, Real Property, Co-Ownership

Caja Paraguay de Jubilaciones y Pensiones del Personal de Itaipu Binacional v Obregon, 2019 ONCA 803

Keywords: Civil Procedure, Orders, Enforcement, Contempt, Sentencing

Lee v Yeung, 2019 ONCA 825

Keywords: Torts, Intentional Interference with Economic Relations, Conspiracy

Singh v Paduraru, 2019 ONCA 817

Keywords: Appeal Abandoned

Criminal Decisions

R v S, 2019 ONCA 819

Keywords: Criminal Law, First Degree Murder, Kidnapping, Aiding and Abetting, Evidence, Hearsay, Jury Instructions, Criminal Code, ss 21(1)(b) & (c), 231(5)(e), 686(1)(b)(iii), Vetrovec v The Queen, [1982] 1 SCR 811, R v Esrabian, 2013 ONCA 761, R v Figueroa, 2008 ONCA 106, R v Pomeroy, 2008 ONCA 521, R v Walker (1994), 18 OR (3d) 184 (CA), R v Pickton, 2010 SCC 32, R v Farrant, [1983] 1 SCR 124, R v Largie, 2010 ONCA 548, R v Morrissey (1995), 22 OR (3d) 514 (CA), R v Almarales, 2008 ONCA 692, R v Briscoe, 2010 SCC 13, R v Maciel, 2007 ONCA 196, R v Josipovic, 2019 ONCA 633, R v Mendez, 2018 ONCA 354, R v Kelsie, 2017 NSCA 89, R v Chambers, 2016 ONCA 684, R v Phillips, 2017 ONCA 752, R v Zoldi, 2018 ONCA 384, R v McGregor, 2019 ONCA 307, R v Vu, 2012 SCC 40, R v Rowe, 2011 ONCA 753, R v Bradshaw, 2017 SCC 35, R v Archer (2005), 202 CCC (3d) 60 (Ont CA), R v Kehler, 2004 SCC 14, R v Magno, 2015 ONCA 111, R v Moo, 2009 ONCA 645, R v Van, 2009 SCC 22, R v Adams (1989), 49 CCC (3d) 100 (Ont CA)

R v C, 2019 ONCA 829

Keywords: Publication Ban, Criminal Law, Sexual Interference

CIVIL DECISIONS

Azzarello v Shawqi, 2019 ONCA 820

[Feldman, Paciocco and Fairburn JJ.A.]

Counsel:

Shahzad Siddiqui, for the appellant

Peter D. Woloshyn, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase of Sale of Land, Damages, Deposits, Mitigation,Goldstein v Goldar, 2018 ONSC 608, Di Millo v 2099232 Ontario Inc., 2018 ONCA 1051, 1179 Hunt Club Inc. v Ottawa Medical Square Inc., 2018 ONSC 6200, Benedetto v 2453912 Ontario Inc., 2019 ONCA 149

facts:

The appellant was the purchaser under an agreement of purchase and sale of a residence in Mississauga. He failed to close on the date set for closing, received a number of extensions, but failed to close on any of the extended dates. The respondent vendors relisted the property and ultimately sold it for less than the price that the appellant had agreed to pay. In the action by the respondents for damages for breach of the agreement, the summary judgment motion judge awarded the difference in price to the respondent vendors, together with a number of consequential loss items. She also ordered that the deposit of $75,000 paid by the appellant purchaser be forfeited and not credited toward the damage award

issues:

(1) Did the motion judge err in the application of the law of tender? (2) Did the motion judge err in the application of the duty to mitigate? (3) Did the motion judge err by failing to credit the deposit toward the damages?

holding:

Appeal allowed in part.

reasoning:

(1) No. The court found that the motion judge made no error in finding that the reason the transaction did not close was not from any inadequate documents from the seller, but because the appellant did not have the funds to complete the purchase. (2) No. The court found that even if the appellant had made an offer to pay 10% less for the property and not be released from his obligation under the agreement of purchase and sale, the duty to mitigate does not oblige a vendor to accept an offer from the defaulting purchaser for less than the agreed price and then to have to sue the purchaser for the difference from the original agreed price. (3) Yes. The measure of damages is based on the difference between the purchase price and the lesser amount that the property sold for after the purchaser’s default. In other words, it is based on the vendor receiving the purchase price that was bargained for. One can infer that the intent of the parties was that the deposit be applied to the purchase price whether received on completion or as damages. The motion judge in the instant appeal erred in law by holding that the deposit be forfeited and not credited to the vendor’s damages.

Beaucage v Storr, 2019 ONCA 818

[Lauwers, Fairburn and Zarnett JJ.A.]

Counsel:

Edward Rae, for the appellants

Jason Herbert, for the respondent

Keywords: Real Property, Transfers, Validity, Fraud, Rectification of Parcel Register

Facts:

In 2015, the parties registered a transfer of property. The transferor named was “ATP”. The transferees named were “NB”, with a date of birth of September 1, 1984, and “TL”, with a date of birth of October 23, 1973, as joint tenants.The parties disagreed about the validity and effect of this transfer because the birthdate for NB on the transfer was not NB’s actual date of birth, and the spelling of TL’s name on the transfer was incorrect. However, the parties agreed before the Court that the validity and effect of the 2015 transfer remained to be determined in litigation among them, and was not intended to be determined by the order the application judge was asked to make.

What was intended to be dealt with by the order of the application judge was the effect of a purported transfer of the property registered in 2017. In that document the transferors named were “NB” and “TL”, and the transferees named were “TL” and “AP”, as joint tenants. All parties agreed that the 2017 transfer was fraudulent. The application judge’s order provided that title to the property was vested in NB and TL, as joint tenants, and was to reflect the correct spelling and birthdates of both (para. 1). He ordered that any right, title or interest in the property held by AP was extinguished (para. 2). He ordered the Land Registrar at Kitchener to amend the register to show title in accordance with his order (para. 3).

The appellants argued that this order not only set aside the effect of the 2017 transfer, but also affected the parties’ positions regarding the validity and effect of the 2015 transfer, which had been left to be determined at a later date. Specifically, they submitted that the order may foreclose an argument that the 2015 transfer was ineffective, and that it may foreclose arguments arising from the description of the transferees as they appeared in the 2015 transfer.

Issues:

(1) Did the application judge’s order go beyond the determinations properly flowing from the admitted invalidity of the 2017 transfer, in light of the fact that the validity and effect of the 2015 transfer were still to be determined?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The Court held that portions of the order went beyond what was required to deal with the effect of the 2017 transfer, and to restore title to its state prior to that transfer. Given the parties’ acknowledgment that the issues of the validity and effect of the 2015 transfer were to be determined, the Court held that the order should be varied to avoid any uncertainty as to its effect.

The Court varied the application judge’s order by replacing paragraphs 1, 2 and 3 with an order declaring the 2017 transfer to be void and directing the Land Registrar to delete the 2017 transfer from the parcel register for the property. The Court further held that the application judge’s findings of fact, to the extent they bear on issues relating to the validity and effect of the 2015 transfer, should not be treated as binding in the ongoing proceeding.

Novikova v Lyzo, 2019 ONCA 821

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

Counsel:

Rupa Murthi, for the appellant

Ruslana Korytko, for the respondent

Keywords: Family Law, Divorce, Foreign Divorce, Recognition, Jurisdiction, Real and Substantial Connection, Child Support, Spousal Support, Interim Support, Summary Judgment, Divorce Act, RSC, 1985, c 3, s 22, Powell v Cockburn, [1977] 2 SCR 218

Facts:

The parties were involved in family law proceedings initiated by the respondent, Ms. N, in October 2016 in the Ontario Superior Court of Justice. A consent order for interim child and spousal support was made on January 30, 2018.

In July 2018, the appellant, Mr. L, brought a motion for summary judgment seeking to validate a divorce obtained in the Russian Federation (the “Russian Divorce”) and to terminate the respondent’s right to spousal support. Ms. N brought her own motion for summary judgment, seeking to have the Russian Divorce declared invalid, and an increase in temporary spousal and child support. The motion judge dismissed Mr. L’s motion. She granted Ms. N’s motion in respect of the Russian Divorce and concluded that the issue of support was best left for trial.

Mr. L appealed the motion judge’s order declaring the Russian Divorce invalid. He sought a new hearing of the summary judgment motions before a different judge, or alternatively, that the issue of the validity of the Russian Divorce proceed to trial.

Issues:

(1) Did the motion judge err by refusing to recognize the Russian Divorce?

(2) Did the motion judge err in declaring the Russian Divorce invalid for lack of notice without first determining whether the parties had a real and substantial connection to the Russian Federation?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The motion judge did not err by failing to recognize the Russian Divorce. However, the Court did not adopt her entire analysis. A court may refuse to recognize a foreign divorce that would otherwise be valid, on the grounds of fraud, the denial of natural justice (including the absence of notice) or public policy. The Court found that the motion judge did not need to concern herself with the deficiencies in the evidence as to whether the divorce was obtained in compliance with Russian law. The Court held it is not typically appropriate or necessary for Canadian courts to inquire into the substantive grounds upon which a foreign divorce decree is granted. The motion judge appropriately focussed on the lack of notice to Ms. N, which was a denial of natural justice. This was the reason for the refusal to recognize the Russian Divorce.

(2) No. The Court disagreed with the appellant’s main argument on appeal: that the motion judge erred in law in failing to determine the “real and substantial connection” issue, before considering whether to refuse recognition of the Russian Divorce because of fraud, natural justice or public policy concerns. As in Powell, where there was evidence of fraud (rather than lack of notice, as in the case at bar), it was appropriate to address whether to recognize the divorce before (or without) engaging in an analysis of “real and substantial connection”.

Bancroft-Snell v Visa Canada Corporation, 2019 ONCA 822

[Strathy C.J.O., MacPherson, Sharpe, Tulloch and Benotto JJ.A.]

Counsel:

Reider Mogerman and Katie Duke, for JBS and 1739793 Ontario Inc. (“173”), the moving parties to Motion M50130 (“Motion 1”) and responding parties to Motions M49808 and M50041 (“Motion 2” and “Motion3” respectively)

Robert E. Kwinter for Visa Canada Corporation, the moving party to Motion 1 and responding party to Motions 2 and 3

Jeffrey B. Simpson and James B. Musgrove, for Mastercard International Incorporated, moving party to Motion 1 and responding party to Motions 2 and 3

Katherine L. Kay, for Bank of Montreal, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Royal Bank of Canada, and Toronto-Dominion Bank, moving parties to Motion 1 and responding parties to Motions 2 and 3

Sean Griffin and Antoine Brylowski, for National Bank of Canada Inc., moving party to Motion 1 and responding party to Motions 2 and 3

James C. Orr and Kyle R. Taylor, for Home Depot of Canada Inc. (“Home Depot”), moving party to Motion 2, responding party to Motion 1, and proposed appellants

Edward Babin, Cynthia L. Spry, and Michael Bookman, for Wal-Mart Canada Corp (“Wal-Mart”), moving party to Motion 3 and responding party to Motion 1, and proposed appellants

Keywords: Civil Procedure, Class Proceedings, Settlements, Appeals, Standing, Class Members, Class Proceedings Act,1992, SO 1992, c. 6, ss. 30(3), 30(5), Courts of Justice Act, RSO 1990 c C.43, s. 6(1)(b), Dabbs v Sun Life Assurance Company of Canada(1998), 41 OR (3d) 92 (CA), leave to appeal refused, [1998] SCCA No 372

Facts:

Wal-Mart and Home Depot (collectively the “Responding Parties”), neither of which is a representative plaintiff, appeal an order approving a partial settlement of a certified class action which they did not opt out of. The moving parties to Motion 1 moved to quash the appeal on the grounds that the responding parties have no standing to appeal. Home Depot brought Motion 2 for an order granting leave to act as the representative plaintiff in the event that Motion 1 was granted. Wal-Mart brought Motion 3 seeking leave to act as the representative plaintiff for the purpose of the appeal. The Responding Parties requested a five-judge panel to enable them to advance the submission that the decision in Dabbs v Sun Life Assurance Company of Canada(1998), 41 OR (3d) 92 (CA), leave to appeal refused, [1998] SCCA No 372 (“Dabbs”) should be overruled.

Issues:

(1) Is Dabbsgood law that has not been overtaken by other decisions?

(2) Is a settlement approval a judgment on common issues or a determination of aggregate damages?

(3) Is it permissible to give individual class members the right to appeal the settlement of a class action?

Holding:

Motion 1 granted. Motions 2 and 3 dismissed. Appeal quashed.

Reasoning:

(1) Yes. Dabbs held that class members’ rights of appeal in class proceedings are found in the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”) and are not supplemented by the general appeal rights in s. 6(1)(b) of the Courts of Justice Act, RSO 1990 c C.43. Dabbs has been consistently applied in Ontario, its logic and authority have never been questioned, and all of the cases raised by the Responding Parties are readily distinguishable.

(2) No. Were a settlement approval to be so, a class member may appeal the disposition with leave if the representative plaintiff fails to pursue an appeal, pursuant to ss. 30(3) and 30(5) of the CPA. There is nothing in the settlement agreement, the order approving the agreement, or the reasons to indicate that the court was pronouncing judgment on a common issue or making an aggregate assessment of damages. It was simply a determination that the settlement was fair and reasonable.

(3) No. Giving individual class members a right of appeal would lead to uncertainty and inefficiency, undermine the authority of the representative plaintiff and class counsel, and impede settlement.

Wright v Urbanek, 2019 ONCA 823

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

Counsel:

Gregory M. Sidlofsky and Matthew M.A. Stroh, for the appellant

Andrew Finkelstein, for the respondents

Keywords: Trusts,Civil Procedure, Striking Pleadings, Res Judicata, Abuse of Process, Collateral Attack, Toronto (City) v CUPE, Local 79, 2003 SCC 63, Behn v. Moulton Contracting Ltd., 2013 SCC 26

facts:

JW sought to challenge the validity of a family trust. On a motion, his statement of claim was struck and the action was dismissed against only the respondents. JW appealed the order of the motion judge on the basis that the order was res judicata, a collateral attack on the earlier order of Conway J., and an abuse of process.

issues:

(1) Did the motion judge err in law and unreasonably extend the application of the principles of res judicata, collateral attack, and abuse of process by considering that the appellant could have raised the issue of the validity of the family trust in response to his daughters’ oppression application?

(2) In the alternative, did the motion judge err in principle in refusing to exercise his discretion to nonetheless allow his claim to proceed because the appellant “has lost substantially all of his assets as a result of an estate freeze that he never understood or agreed to”?

holding:

Appeal dismissed.

reasoning:

(1) No. The doctrine of abuse of process arises out of the court’s inherent jurisdiction to prevent misuse of the court’s procedure in a way that could bring the administration of justice into disrepute (Toronto (City) v CUPE, Local 79, 2003 SCC 63). The appellant lost his daughters’ oppression application. Four days later he commenced the within action. In so doing, he advanced a new and inconsistent theory, that the family trust was invalid, which was entirely open to be advanced in the oppression application. A challenge to the validity of the family trust would interfere with the implementation of Conway J.’s order and raising the issue after that order was tantamount to re-litigating the daughters’ oppression application. Abuse of process is properly applied to strike out an action which is an attempt to re-litigate a matter (Behn v. Moulton Contracting Ltd., 2013 SCC 26).

(2) No. There is no basis to interfere with the motion judge’s decision not to exercise his residual discretion to allow the appellant’s action to proceed against the respondents. The motion judge did not strike the action against the various professional advisers retained to implement the underlying transaction.

SHORT CIVIL DECISIONS

Furr v Duhamel, 2019 ONCA 824

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

Counsel:

Bruce F. Simpson, for the appellant

Eric Appotive and Allison Russell, for the respondents

Keywords: Contracts, Real Property, Co-Ownership

Caja Paraguay de Jubilaciones y Pensiones del Personal de Itaipu Binacional v Obregon, 2019 ONCA 803

[Rouleau, Trotter and Harvison Young JJ.A.]

Counsel:

AD, in person

Fredrick Schumann, duty counsel for the appellant

John De Vellis, for the plaintiff (respondent)

Andrew Hotke, for the Crown

Keywords: Civil Procedure, Orders, Enforcement, Contempt, Sentencing

Lee v Yeung, 2019 ONCA 825

[Rouleau, Huscroft and Nordheimer JJ.A.]

Counsel:

HL, in person

Michael Crystal and Alejandro Jaramillo, for the respondents

Keywords: Torts, Intentional Interference with Economic Relations, Conspiracy

Singh v Paduraru, 2019 ONCA 817

[Watt, Lauwers and Paciocco JJ.A.]

Counsel:

AP and EC, acting in person

Pathik Baxi, for the respondent

Keywords: Appeal Abandoned

CRIMINAL DECISIONS

R v S, 2019 ONCA 819

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

Marie Henein and Kenneth Grad, for the appellant

Michael Bernstein, for the respondent

Keywords:

Criminal Law, First Degree Murder, Kidnapping, Aiding and Abetting, Evidence, Hearsay, Jury Instructions, Criminal Code, ss 21(1)(b) & (c), 231(5)(e), 686(1)(b)(iii), Vetrovec v The Queen, [1982] 1 SCR 811, R v Esrabian, 2013 ONCA 761, R v Figueroa, 2008 ONCA 106, R v Pomeroy, 2008 ONCA 521, R v Walker (1994), 18 OR (3d) 184 (CA), R v Pickton, 2010 SCC 32, R v Farrant, [1983] 1 SCR 124, R v Largie, 2010 ONCA 548, R v Morrissey (1995), 22 OR (3d) 514 (CA), R v Almarales, 2008 ONCA 692, R v Briscoe, 2010 SCC 13, R v Maciel, 2007 ONCA 196, R v Josipovic, 2019 ONCA 633, R v Mendez, 2018 ONCA 354, R v Kelsie, 2017 NSCA 89, R v Chambers, 2016 ONCA 684, R v Phillips, 2017 ONCA 752, R v Zoldi, 2018 ONCA 384, R v McGregor, 2019 ONCA 307, R v Vu, 2012 SCC 40, R v Rowe, 2011 ONCA 753, R v Bradshaw, 2017 SCC 35, R v Archer (2005), 202 CCC (3d) 60 (Ont CA), R v Kehler, 2004 SCC 14, R v Magno, 2015 ONCA 111, R v Moo, 2009 ONCA 645, R v Van, 2009 SCC 22, R v Adams (1989), 49 CCC (3d) 100 (Ont CA)

R v C, 2019 ONCA 829

[Watt, Lauwers and Paciocco JJ.A.]

Counsel:

Paul J.I. Alexander, for the appellant

Erica Whitford, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Interference