Good afternoon.

These are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of June 13, 2022.

In Ontario (Health) v Association of Ontario Midwives the Human Rights Tribunal of Ontario found that the Ministry of Health and Long-Term Care (the MOH) failed to fairly compensate midwives due to systemic gender discrimination. The Divisional Court upheld the Adjudicator’s decision on judicial review. The Court of Appeal dismissed an appeal from the Divisional Court’s decision.

In CHU de Québec-Université Laval v Tree of Knowledge International the Court released yet another decision on the application of the rule Handley Estate requiring parties to immediately disclose partial settlement agreements that change the landscape of the litigation, or risk having their claim against the non-settling defendants dismissed.

The Court set out the following principles drawn from its previous decisions on the abuse of process that arises from a failure to immediately disclose an agreement which changes the litigation landscape:

a) There is a “clear and unequivocal” obligation of immediate disclosure of agreements that “change entirely the landscape of the litigation”. They must be produced immediately upon their completion.

b) The disclosure obligation is not limited to pure Mary Carter or Pierringer agreements. The obligation extends to any agreement between or amongst the parties “that has the effect of changing the adversarial position of the parties into a co-operative one” and thus changes the litigation landscape.

c) The obligation is to immediately disclose information about the agreement, not simply to provide notice of the agreement, or “functional disclosure”.

d) Both the existence of the settlement and the terms of the settlement that change the adversarial orientation of the proceeding must be disclosed.

e) Confidentiality clauses in the agreements in no way derogate from the requirement of immediate disclosure.

f) The standard is “immediate”, not “eventually” or “when it is convenient”.

g) The absence of prejudice does not excuse a breach of the obligation of immediate disclosure.

In this particular case, the Court concluded that the motion judge did not err in refusing to dismiss the action for non-disclosure. Adequate and timely disclosure of the settlement had been made.

Other topics covered this week included summary judgment on a claim for breach of an agreement of purchase and sale of land, equalization of net family property (pensions), assessment of solicitors’ accounts and stay pending appeal to the Supreme Court.

Table of Contents

Civil Decisions

Ilic v Ducharme Fox LLP (Ducharme Weber LLP) , 2022 ONCA 463

Keywords: Contracts, Solicitor and Client, Civil Procedure, Assessment of Solicitor’s Accounts, Solicitors Act, RSO 1990, c S15, s. 3(b) and s. 4(1), Rules of Civil Procedure, Rule 2.02(b), Davies, Ward & Beck v Union Industries Inc (2000), 48 OR (3d) 794 (CA), Price v Sonsini, 60 OR (3d) 257 (2002) (CA), Clatney v Quinn Thiele Mineault Grodzki LLP, 2016 ONCA 377, Lawrence v International Brotherhood of Electrical Workers (IBEW) Local 773, 2017 ONCA 321, Bridgeland Riverside Community Assn v Calgary (City), 1982 ABCA 138, Speciale Law Professional Corp v Shrader Canada Ltd, 2015 ONCA 856

Tsui v Zhuoqi, 2022 ONCA 464

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Bad Faith, Damages, Summary Judgment, Bilotta v Booth, 2020 ONCA 522

CHU de Québec-Université Laval v Tree of Knowledge International Corp, 2022 ONCA 467

Keywords: Civil Procedure, Settlement Agreements, Disclosure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, RSO 1990, c C 43, ss 6(1)(b), 19(1)(b), Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Poirier v. Logan, 2021 ONSC 163, Truck Centre Limited v. K.S.P. Holdings Inc., 2021 ONSC 984, Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, Stamatopoulos v. Harris, 2014 ONSC 6313, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Johnson v. Ontario, 2021 ONCA 650, McClintock v. Karam, 2017 ONCA 277, Ontario v. Nanji, 2020 ONCA 591, Aecon Buildings v. Brampton (City), 2010 ONCA 773, Ontario v. Lipsitz, 2011 ONCA 466, Housen v. Nikolaisen, 2002 SCC 33, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Waxman v. Waxman, 2022 ONCA 311, Poirier v. Logan, 2022 ONCA 350, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, Stamatopoulos v. Regional Municipality of Durham, 2014 ONSC 6313, K.J. v. The Regional Municipality of Halton, 2022 ONSC 2199, Endean v. St. Joseph’s General Hospital, 2019 ONCA 181, Aecon Buildings v. Stephenson Engineering Ltd., 2011 SCC 33, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Laudon v. Roberts, 2009 ONCA 383

Talotta v Talotta, 2022 ONCA 474

Keywords: Family Law, Marriage Contracts, Separation Agreements, Equalization of Net Family Property, Pensions, Family Law Act, RSO 1990, c F3s. 5, Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, Housen v Nikolaisen, 2002 SCC 33

Ontario (Health) v Association of Ontario Midwives, 2022 ONCA 458

Keywords: Labour and Employment, Administrative Law, Judicial Review, Standard of Review, Human Rights, Systemic Discrimination, Gender Discrimination, Compensation, Civil Procedure, Appeals, Human Rights Code, RSO 1990, c H.19, Human Rights Code Amendment Act, 2006, SO 2006, c. 30, s. 5, s. 45, Fraser v Canada (Attorney General), 2020 SCC 28, Canadian National Railway Co v Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114, Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18, Shaw v Phipps, 2010 ONSC 3884, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, R v Owen, 2003 SCC 33, Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, Dunsmuir v New Brunswick, 2008 SCC 9

Ernst & Young Inc v Aquino, 2022 ONCA 472

Keywords:Bankruptcy and Insolvency, Transfers Under Value, Civil Procedure, Appeals, Stay Pending Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 269, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1(1), Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, Rules of Civil Procedure, Rule 63.01(1), Ting (Re), 2019 ONCA 768, Canadian Dredge & Dock Co v The Queen, [1985] 1 S.C.R. 662, Deloitte & Touche v Livent Inc (Receiver of), 2017 SCC 63

Short Civil Decisions

ALB v Durham Children’s Aid Society, 2022 ONCA 466

Keywords: Family Law, Child Protection, Civil Procedure, Frivolous, Vexatious and Abuse of Process, Child, Youth and Family Services Act, 2017, ss. 87(8) and 87(9) and 142(3), Scaduto v The Law Society of Upper Canada, 2015 ONCA 733, Lochner v Ontario Civilian Police Commission, 2020 ONCA 720

Anderson Learning Inc (Bond International College) v Birchmount Howden Property Holdings Inc, 2022 ONCA 469

Keywords: Contracts, Real Property, Commercial Leases, Options to Renew, 120 Adelaide Leaseholds Inc v Oxford Properties Canada Ltd, [1993] OJ No 2801 (CA), Housen v Nikolaisen, 2002 SCC 33


CIVIL DECISIONS

Ilic v Ducharme Fox LLP (Ducharme Weber LLP), 2022 ONCA 463

[Lauwers J.A.]

COUNSEL:

S. Dewart and M. Bélanger, for the appellant

P. J. Ducharme, for the respondents

Keywords: Contracts, Solicitor and Client, Civil Procedure, Assessment of Solicitor’s Accounts, Solicitors Act, RSO 1990, c S15, s. 3(b) and s. 4(1), Rules of Civil Procedure, Rule 2.02(b), Davies, Ward & Beck v Union Industries Inc (2000), 48 OR (3d) 794 (CA), Price v Sonsini, 60 OR (3d) 257 (2002) (CA), Clatney v Quinn Thiele Mineault Grodzki LLP, 2016 ONCA 377, Lawrence v International Brotherhood of Electrical Workers (IBEW) Local 773, 2017 ONCA 321, Bridgeland Riverside Community Assn v Calgary (City), 1982 ABCA 138, Speciale Law Professional Corp v Shrader Canada Ltd, 2015 ONCA 856

FACTS:

The application judge dismissed the appellant’s application for an order allowing the assessment of the respondent solicitor’s accounts to continue before an Assessment Officer.

The appellant retained P. Ducharme to represent him on criminal charges. The nature of the retainer, that is, whether the parties had agreed to a block fee or an hourly fee, was disputed. The appellant entered a guilty plea in accordance with a plea bargain. The respondents delivered interim accounts and a final account to the appellant.

The appellant took out an order for assessment of the final account and another for the assessment of the interim accounts. An Assessment Officer heard the evidence on the assessment and then a year later, the Assessment Officer asked the parties for submissions on the issue of his jurisdiction because the order for assessment had been issued by the registrar after the 30-day statutory window. The respondents argued that the Assessment Officer was without jurisdiction and that the assessment order was accordingly a nullity.

More than a year later, the Assessment Officer accepted the respondents’ argument and found that he did not have jurisdiction to conduct the assessment. He then stayed the matter, pending direction from the Superior Court.

The appellant applied to the Superior Court for an order allowing the assessment proceeding before the Assessment Officer to continue and for directions. In the alternative, the appellant sought an order nunc pro tunc referring the respondents’ bills to a new assessment under s. 4(1) of the Solicitors Act.

The application judge declined to exercise his jurisdiction to allow the assessment to proceed. He found that the appellant was not caught off guard by the requisition deadline of 30 days, because he had been represented by counsel who was alerted to the jurisdictional issue by the first Assessment Officer in 2010. The appellant’s failure to cure the procedural defect in the manner proposed by Assessment Officer weighed against granting the appellant the remedy he sought.

The application judge held that even if the respondents could be taken as having consented to proceeding by assessment hearing, consent could not confer jurisdiction where there was none. He held that no Assessment Officer had jurisdiction to proceed in this matter. The protracted assessment procedure in which the parties had engaged was a nullity. This left the respondents’ three accounts unchanged and enforceable as originally rendered.

ISSUES:

(1) Did the judge err in failing to consider that the assessment proceeded on consent of both parties and had been completed before the jurisdiction issue arose?

(2) Did the judge err in finding that the respondents were prejudiced by the failure to commence the assessment proceeding within the time required under the Solicitors Act, in the absence of any evidence of prejudice?

(3) Did the judge err in failing to consider binding authority on the proper approach to the assessment of solicitor accounts and to nullity in a civil procedure context?

(4) Did the judge err in failing to consider the appellant’s alternative claim for an order for assessment nunc pro tunc in the particular circumstances of this case?

HOLDING:

Appeal allowed.

REASONING:

(1), (2) and (3). Yes. The application judge made the first three errors.

The decision of the application judge did not accord with the principle in Price v Sonsini that “[p]ublic confidence in the administration of justice requires the court to intervene where necessary to protect the client’s right to a fair procedure for the assessment of a solicitor’s bill.”

The application judge focused on the fact that the appellant had been told by the first Assessment Officer to remedy the jurisdictional issue. He found the appellant’s subsequent actions to be “many steps over the course of many years” taken with the knowledge of the jurisdictional problem, in direct contradiction of Rule 2.02(b) of the Rules of Civil Procedure. In doing so he invoked the ruling in Price.

Rather than use the Price ruling to facilitate the assessment, the application judge used it to frustrate the assessment. Although he accepted that the provisions of the Solicitors Act “are to be read generously in favour of the client party seeking fairness in challenging his or her solicitor’s account”, he held that fairness also “defines the limits of this generosity.” He relied on Price in order to make this point, quoting that Rule 2.02(b) “limits the right of a party to attack a proceeding or a step, document or order in a proceeding for irregularity if the party has taken a further step in the proceeding after obtaining knowledge of the irregularity.”

The respondents agreed to the assessment procedure despite knowing of the jurisdictional defect. They participated in the assessment process for the next five years before seizing on the jurisdiction issue as an exit. There was no basis on which fairness, as invoked by the application judge, could justify bringing the assessment proceedings to an end in the utter absence of any evidence of prejudice to the respondents.

(4) Yes. The application judge had the authority to authorize the Assessment Officer to complete the assessment and to issue a decision on the merits. His failure to do so was an error.

A new assessment was not ordered. Rather, the Assessment Officer who heard the evidence and the arguments must now issue his decisions on the merits without delay.


Tsui v Zhuoqi, 2022 ONCA 464

[Doherty, Tulloch and Miller JJ.A.]

COUNSEL:

P.H. Starkman and C. Zhang, for the appellant

N.J. Kasozi and M. Dvorkina, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Bad Faith, Damages, Summary Judgment, Bilotta v Booth, 2020 ONCA 522

FACTS:

The appellants (“vendors”) had agreed to sell a residential property to the respondents (“purchasers”). The transaction had not closed as a result of problems associated with water damage to the property that occurred shortly before closing. The water damage was discovered by the purchasers one day before closing. The parties had attempted to resolve those problems by negotiation but failed.

The purchasers sued the vendors and sought a declaration that the vendors had breached the agreement of purchase and sale, an order directing the return of the deposit and damages associated with the failure to close the transaction.

The vendors counterclaimed and sought a declaration that the purchasers had repudiated the agreement of purchase and sale. The vendors also sought an order forfeiting the deposit.

Both sides moved for summary judgment. With one exception, the outcome of the motions turned entirely on the factual findings made by the motion judge. The factual findings related to the seriousness of the damage to the property and the claims by both sides that the other side had not made good faith efforts to salvage the agreement after the damage occurred. The one exception arose out of the vendors’ claim that the motion judge’s reliance on the terms of s. 18 of the Agreement of Purchase and Sale (“APS”) resulted in procedural unfairness.

Section 18 provided that if there was substantial damage to the property after the parties entered into the APS, but before the closing date, the purchaser had the option to terminate the agreement and was entitled to the return of the deposit.

The motion judge rejected the argument that s. 18 was not properly pleaded and made findings of fact in favour of the purchasers. He dismissed the vendors’ motion for summary judgment and granted the purchasers’ cross-motion. The motion judge awarded damages in the amount of $33,110.32 and ordered the return of the deposit. The vendors appealed.

ISSUES:

Did the motion judge err in dismissing the vendors’ motion for summary judgment and granting the purchasers’ cross-motion for summary judgment?

HOLDING:

Appeal dismissed.

REASONING:

No. The Court restated that despite any shortcoming in the pleadings, the question whether the damages to the property should be characterized as “substantial”, thereby triggering s. 18, was at the centre of the dispute.

The Court emphasized that the motion judge’s conclusions of the factual questions of the case were entitled to deference. The Court noted that the factual findings were not unreasonable or based on a palpable and overriding error. In considering whether the damage was “substantial”, the key factual finding, the motion judge was entitled to consider all of the evidence, which included that the evidence of the expert that the full extent of the water damage was likely not apparent from the limited inspections conducted on behalf of the vendors. It was open to the motion judge to conclude, based on all of the evidence, that the damage had met the “substantial” standard. The Court further noted that the vendors’ reliance on different findings made in another case based on different evidence did not advance their argument.

The vendor’s argument of good faith was rejected based on the evidence available to the court. The Court was not convinced that the motion judge made a clear and palpable error or came to an unreasonable finding in rejecting the vendors’ argument that the purchasers had acted in bad faith.

Regarding the extensive water damage discovered, the Court noted that in the circumstances of this case, the vendors were required to afford the purchasers a reasonable opportunity to inspect the property and assess the damage: Bilotta v Booth at para. 20. The Court noted the motion judge properly held that the purchasers were not obliged to close the transaction on January 10. Instead, they were entitled to a reasonable opportunity to inspect the property.

The vendors made two submissions regarding damages. First, they argued that the rental costs awarded to the purchasers ($25,800) failed to offset the savings associated with not having to pay the costs of a mortgage. The Court stated that there was merit to the submission that at least some of the rental costs may have been offset by the absence of any mortgage-related costs, but concluded that there was no evidence that the purchasers had a mortgage or what the costs were associated with that mortgage.

Second, the vendors submitted that the costs of the engineering report commissioned by the purchasers to assess the nature and extent of the water damage should not have been treated as damages by the motion judge. The Court agreed on this point and noted that the information was essential to the purchasers’ exercise of rights and obligations under the APS. Further, the cost of the report was not a consequence of bad faith conduct of the vendors. The Court concluded that damages previously awarded regarding the engineering report should be reduced by $4,978.89, leaving a damage award of $29,131.13.


CHU de Québec-Université Laval v Tree of Knowledge International Corp, 2022 ONCA 467

[Strathy C.J.O., Sossin and Favreau JJ.A]

COUNSEL:

R. Stellick, for the appellant

S. Dewart and B. Hughes, for the respondent

Keywords: Civil Procedure, Settlement Agreements, Disclosure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, RSO 1990, c C 43, ss 6(1)(b), 19(1)(b), Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Poirier v. Logan, 2021 ONSC 163, Truck Centre Limited v. K.S.P. Holdings Inc., 2021 ONSC 984, Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, Stamatopoulos v. Harris, 2014 ONSC 6313, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Johnson v. Ontario, 2021 ONCA 650, McClintock v. Karam, 2017 ONCA 277, Ontario v. Nanji, 2020 ONCA 591, Aecon Buildings v. Brampton (City), 2010 ONCA 773, Ontario v. Lipsitz, 2011 ONCA 466, Housen v. Nikolaisen, 2002 SCC 33, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Waxman v. Waxman, 2022 ONCA 311, Poirier v. Logan, 2022 ONCA 350, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, Stamatopoulos v. Regional Municipality of Durham, 2014 ONSC 6313, K.J. v. The Regional Municipality of Halton, 2022 ONSC 2199, Endean v. St. Joseph’s General Hospital, 2019 ONCA 181, Aecon Buildings v. Stephenson Engineering Ltd., 2011 SCC 33, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Laudon v. Roberts, 2009 ONCA 383

FACTS:

This appeal raised the issue of the scope and application of the rule from Handley Estate v. DTE Industries Limited, that parties entering into agreements which entirely change the adversarial landscape of the litigation must immediately disclose those agreements to the noncontracting parties.

The appeal was from the order of the motion judge dismissing the motion of the appellant M.C and the motion of Blu Stella Consulting Group Inc. (“Blu Stella”) and F.G to stay or dismiss the action of the respondent, CHU de Québec-Université Laval, based on the respondent’s failure to immediately disclose the terms of a Pierringer agreement between it and two other defendants in this action, Tree of Knowledge International Corp. (“TOKI”), and Tree of Knowledge Inc. (“TOK US”).

The dispute leading to the action arose out of a contract between the respondent and TOKI and/or TOK US for the supply of three million certified N95 masks. The respondent advanced the full amount of the purchase price to TOK US, per wire instructions from M.C, for “certified N95 masks for medical use.” The masks were never delivered, although lesser quantities of non-certified masks for non-medical use were delivered to the respondent.

On August 6, 2020, the respondent commenced the within action against all the defendants to recover the funds it advanced, alleging fraudulent or negligent misrepresentation. On May 26, 2021, the respondent signed the Settlement Agreement, a Pierringer agreement, with TOKI and TOK US. The Settlement Agreement provided that the respondent’s claims against TOKI and TOK US were dismissed without costs.

On June 4, 2021, in response to a demand by counsel to the Blu Stella defendants for a copy of the Settlement Agreement and the assignment agreement mentioned in the amended claim, counsel to the respondent provided a copy of the assignment agreement between TOKI and the respondent to the non-settling defendants. Counsel to the respondent confirmed that his instructions were to not provide a copy of the Settlement Agreement to the non-settling defendants.

ISSUES:

(1) Did the Court have jurisdiction over the appeal?

(2) Did the motion judge err in in interpreting and applying the rule from Handley Estate?

HOLDING:

Appeal dismissed.

REASONING:

(1) Yes.

Sections 6(1)(b) and 19(1)(b) of the Courts of Justice Act make clear that only final orders are appealable to the Court. The respondent submitted that a decision granting a stay or dismissal is final, but a decision denying such relief is interlocutory. The Court has held that an order denying a stay of an action on the basis of an abuse of process, because it was based on a champertous agreement and the agreement was not disclosed as soon as it was completed, was final. Given the Court’s decision in Aecon, the Court was satisfied that it had jurisdiction over the dispute.

(2) No.

The rule set out in Handley Estate has been the subject of three recent decisions of the Court: Tallman Truck Centre Limited v KSP Holdings Inc, Waxman v Waxman and Poirier v Logan.

The following principles were drawn from the Court’s decisions on the abuse of process that arises from a failure to immediately disclose an agreement which changes the litigation landscape:

a) There is a “clear and unequivocal” obligation of immediate disclosure of agreements that “change entirely the landscape of the litigation”. They must be produced immediately upon their completion.

b) The disclosure obligation is not limited to pure Mary Carter or Pierringer agreements. The obligation extends to any agreement between or amongst the parties “that has the effect of changing the adversarial position of the parties into a co-operative one” and thus changes the litigation landscape.

c) The obligation is to immediately disclose information about the agreement, not simply to provide notice of the agreement, or “functional disclosure”.

d) Both the existence of the settlement and the terms of the settlement that change the adversarial orientation of the proceeding must be disclosed.

e) Confidentiality clauses in the agreements in no way derogate from the requirement of immediate disclosure.

f) The standard is “immediate”, not “eventually” or “when it is convenient”.

g) The absence of prejudice does not excuse a breach of the obligation of immediate disclosure.

h) Failure to comply with the obligation of immediate disclosure amounts to abuse of process and results in serious consequences. The only remedy to redress the abuse of process is to stay the claim brought by the defaulting, non-disclosing party. This remedy is necessary to ensure the court is able to enforce and control its own processes and ensure justice is done.

From the outset, the respondent advised the non-settling defendants of the existence of the Settlement Agreement and committed to put the Settlement Agreement before the court. This aspect of the factual dynamics distinguished the present case from Handley Estate, Tallman, Waxman, and Poirier, and failed to give rise to the rationale underlying the rule that failure to disclose is an abuse of process.

Disclosure must go beyond the “functional disclosure”. In this case, the respondent did not merely provide functional disclosure. The respondent immediately disclosed those aspects of the Settlement Agreement that changed the litigation landscape.

Whether or not cooperation is an inherent feature of Pierringer agreements, the cooperation in this case was disclosed soon after the initial disclosure and formed part of the factual dynamics leading to the approval motion. Therefore, the failure to disclose the cooperation immediately was not fatal. Given the factual dynamics in this case, the Court saw no error in the motion judge’s conclusion that the essential terms of the Settlement Agreement were immediately disclosed.


Talotta v Talotta, 2022 ONCA 474

[Brown, Roberts, and Pacioco JJ.A.]

COUNSEL:

A. Perruccio and V. Di Vito, for the appellant

L. Kadoory, for the respondent

Keywords: Family Law, Marriage Contracts, Separation Agreements, Equalization of Net Family Property, Pensions, Family Law Act, RSO 1990, c F3s. 5, Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, Housen v Nikolaisen, 2002 SCC 33

FACTS:

After 16 years of marriage, the respondent and appellant separated and entered into a separation agreement in 1997 that required the respondent to receive one-half of the husband’s Metro Toronto News newspapers pension valued from the date of separation in the amount of $10,372.59. The separation agreement also required the appellant to provide the respondent with an actuarial valuation of his pension. The appellant breached this obligation.

The appellant retired and did not pay the respondent her share of the pension benefits earned during their marriage. He further refused to provide any information about his pension and evaded service of the respondent’s application for payment of her share of his pension, requiring her to obtain an order for substituted service.

At an uncontested trial at which the appellant did appear, the respondent put forward uncontested expert actuarial valuation evidence that the amount of $20,372.59 stated in the separation agreement only represented half of the appellant’s contributions with interest to a defined-benefit pension plan as of December 1995.

The trial judge ordered that the appellant roll over from his pension the amount of $76,966 and awarded full indemnity costs. The appellant appealed the decision of the trial judge.

ISSUES:

Did the trial judge err in his interpretation of the plain language of the parties’ separation agreement and effectively rewrite the agreement by awarding the current value of the respondent’s share of his pension instead of the stated $10,372.59 amount?

HOLDING:

Appeal dismissed.

REASONING:

No.

The trial judge’s interpretation of the separation agreement was open to him and was entitled to deference on appellate review. The trial judge did not rewrite the parties’ agreement, but rather he interpreted the separation agreement in accordance with the equalization entitlements under the Family law Act. The trial judge accepted the respondent’s entitlement to a pro-rata share of the actual present value of the appellant’s pension benefit accumulation during marriage in the amount of $76,966.

The Court concluded that the interpretation that made the most sense was that the parties’ objective intention was for the respondent to receive her entitlement to half of the value of the portion of the pension attributable to the period of the marriage. The agreement specifically said she was to receive one-half of the husband’s Metro Toronto News and Ontario Newspapers pension valued from the date of marriage up to the date of separation, and not simply half of the appellant’s contributions.

The Court found that the trial judge’s determination of the respondent’s proportionate share of the current value of the appellant’s pension was reasonably anchored in uncontested expert evidence, which the trial judge was entitled to accept.

Finally, the Court did not accept the respondent’s proferred affidavit evidence, as it amounted to an abuse of process, given his attempts to evade service and failure to participate at the trial.


Ontario (Health) v Association of Ontario Midwives, 2022 ONCA 458

[Fairburn A.C.J.O., Roberts J.A. and Van Melle J.]

COUNSEL:

S. Z Green and Y. Ranganathan, for the appellant

M. Cornish, A. Telford, L. Koerner-Yeo and J. Esmonde, for the respondent Association of Ontario Midwives

J. Tam and B. A. Blumenthal, for the respondent Human Rights Tribunal of Ontario

R. Khawja and R. Dhir, for the intervener Ontario Human Rights Commission

Keywords: Labour and Employment, Administrative Law, Judicial Review, Standard of Review, Human Rights, Systemic Discrimination, Gender Discrimination, Compensation, Civil Procedure, Appeals, Human Rights Code, RSO 1990, c H.19, Human Rights Code Amendment Act, 2006, SO 2006, c. 30, s. 5, s. 45, Fraser v Canada (Attorney General), 2020 SCC 28, Canadian National Railway Co v Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114, Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18, Shaw v Phipps, 2010 ONSC 3884, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, R v Owen, 2003 SCC 33, Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, Dunsmuir v New Brunswick, 2008 SCC 9

FACTS:

Ontario midwives are almost exclusively women. In 2013, the Association of Ontario Midwives (the “AOM”) brought a human rights complaint on behalf of more than 800 midwives, alleging systemic gender discrimination by the Ministry of Health and Long-Term Care (the “MOH”), which funds Ontario’s midwifery program. The AOM challenged the MOH’s compensation practices back to 1994, when Ontario midwives were regulated, and sought compensation back to 1997.

The Human Rights Tribunal of Ontario (the “Tribunal”) Adjudicator divided the decision into two periods: 1993 to 2005, and 2005 to 2013. The adjudicator found that, in 1993, the parties agreed to equitable compensation principles that were designed to ensure that midwives’ compensation was not affected by harmful assumptions and stereotypes concerning the value of women’s work. The adjudicator was satisfied that the parties maintained a connection to the principles until 2005, and there was insufficient evidence of discrimination for the period from 1994 to 2005.

However, the Adjudicator found that after 2005, the MOH gradually withdrew from the principles it had agreed to in 1993. The Adjudicator concluded that midwives were subjected to systematic gender discrimination after 2005, having the effect of perpetuating the historic disadvantage midwives have experienced as sex-segregated workers. There was a significant compensation gap that developed between midwives and certain family physicians, who the Adjudicator found served as a male comparator. In a separate decision, the Adjudicator made remedial orders arising from their finding of liability, including orders granting a compensation adjustment of 20% back to 2011 and compensation for injury to dignity, feelings, and self-respect in the amount of $7,500 per eligible midwife, plus orders to promote ongoing compliance with the Code.

The MOH applied to the Divisional Court for judicial review of both decisions. Its application was dismissed. The MOH appealed to the Ontario Court of Appeal.

ISSUES:

(1) What is the standard of review of the Tribunal’s decision post-Vavilov?

(2) Is the Adjudicator’s liability decision unreasonable? In particular:

a. Did the Adjudicator’s reasons fail to reveal a rational chain of analysis? b. Was it unreasonable for the Adjudicator to find that gender was a factor in the compensation of midwives? c. Did the Adjudicator reverse the burden of proof? d. Did the Adjudicator unreasonably ignore the MOH’s expert evidence tendered to prove that gender was not a factor in midwives’ compensation? e. Did the Adjudicator unreasonably find that community health clinic (“CHC”) physicians remained appropriate comparators after they became predominantly female? f. Did the Adjudicator unreasonably impose a positive obligation on the MOH?

(3) Is the Adjudicator’s remedy decision unreasonable?

HOLDING:

Appeal dismissed.

REASONING: 

(1) Vavilov does not undermine the reasoning in Shaw v Phipps, which adopted a reasonableness standard of review for determinations of fact, the interpretation and application of human rights law, and remedial decisions.

The Divisional Court accepted the MOH’s submission, concluding that Vavilov did not overrule Shaw v Phipps. Accordingly, it applied a reasonableness standard. The Divisional Court correctly interpreted s. 45.8 of the Code, and: (1) recognized that the reviewing court should apply the legislated standard; (2) purposively interpreted s. 45.8 of the Code; (3) considered the content of the standard in light of general principles of administrative law; and (4) addressed rule of law concerns that had weaved their way into the jurisprudence surrounding the difference between patent unreasonableness and unreasonableness.

(2) No.

MOH argued that the Adjudicator engaged in illogical reasoning, failed to articulate a rational chain of analysis, made unreasonable factual findings, gave some evidence too much weight or too little weight, drew ungrounded inferences, ignored important expert and other evidence, reversed the burden of proof, and misinterpreted and misapplied the Code in imposing a positive obligation on the MOH. The question for the Court was whether the Adjudicator’s decision as a whole was reasonable.

In assessing the reasonableness of the Tribunal’s liability decision, and bearing in mind the multitude of complaints raised by the MOH, the Court structured its analysis around the following key issues raised by the MOH:

(a) Do the Adjudicator’s reasons fail to reveal a rational chain of analysis?

(b) Was it unreasonable for the Adjudicator to find that gender was a factor in the compensation of midwives?

(c) Did the Adjudicator reverse the burden of proof?

(d) Did the Adjudicator unreasonably ignore the MOH’s expert evidence tendered to prove that gender was not a factor in midwives’ compensation?

(e) Did the Adjudicator unreasonably find that CHC physicians remained appropriate comparators after they became predominantly female?

(f) Did the Adjudicator unreasonably impose a positive obligation on the MOH?

(a) Do the Adjudicator’s reasons fail to reveal a rational chain of analysis?

No. A decision will be unreasonable if its reasons, “read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis”, or where “the conclusion reached cannot follow from the analysis undertaken … or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point”: Vavilov, at para. 103. At the end of the day, the reasoning must “add up”: Vavilov, at para. 104.

The Court found the Adjudicator’s reasoning did “add up”. The Adjudicator’s reasons revealed a logical chain of analysis grounded in the record and the relevant jurisprudence in support of their key conclusion that sex was a factor in the adverse treatment that midwives experienced and the compensation gap that developed between midwives and CHC physicians after 2005.

The Adjudicator concluded that gender was a factor in the adverse treatment of midwives for a number of reasons, including that the MOH abandoned the principles designed to safeguard against gender discrimination, after receiving a report confirming the ongoing relevance of the principles, and without a credible explanation for doing so or a new methodology to ensure that midwives were being paid appropriately.

(b) Was it unreasonable for the Adjudicator to find that gender was a factor in the compensation of midwives?

No. The Court held it was not unreasonable for the Adjudicator to find that gender was a factor in compensation of midwives. The 1993 principles were connected, if not imbued, with gender, and it was open to the Adjudicator to find that the Courtyard Report, which affirmed those principles, indicates “that gender discrimination may be an operative factor in the compensation of midwives”. It was also open to the Adjudicator to reasonably find that the Courtyard Report was “sufficiently compelling for the MOH to realize that the AOM’s claim of gender discrimination may have some validity.”

(c) Did the Adjudicator reverse the burden of proof?

No. There was no reversal of the burden of proof in this case. All that was shifted to the MOH was the evidential burden, which the Adjudicator found was not met.

On multiple occasions, the Adjudicator made clear that they understood who held the ultimate onus in this case. For instance, stating that the onus of proving discrimination “lies with the AOM and that the standard of proof is the balance of probabilities”. The Adjudicator later reinforced their clear understanding that in a human rights case, “the burden of proof remains on the applicant throughout”, including quoting from the Pieters decision: “The question to be decided is whether the applicant has satisfied the legal burden of proof of establishing on a balance of probabilities that the discrimination has occurred”: Pieters, at para. 83.

(d) Did the Adjudicator unreasonably ignore the MOH’s expert evidence that was tendered to prove that gender was not a factor in midwives’ compensation?

No. The Adjudicator did not ignore the evidence that the MOH said demonstrated non-discriminatory reasons for the gap in compensation between CHC physicians and midwives. The Adjudicator recognized several factors, but did not accept that gender was not also a factor, alongside the explanation provided by the MOH, in the adverse treatment of midwives. The MOH did not point to any expert evidence that could explain the central findings of fact that drove the conclusion of discrimination.

(e) Did the Adjudicator unreasonably find that CHC physicians remained an appropriate comparator after they became predominantly female?

No. The Adjudicator correctly recognized that the Code does not prescribe rules to determine the sex of an occupational group or any methodology for developing a compensation model that is Code-compliant. In this case, the parties chose CHC physicians as a male comparator and the Adjudicator reasonably found that they remained a male comparator until 2013, even though they were predominately women, because their pay had been aligned with a male dominated group.

(f) Did the Adjudicator unreasonably impose a positive obligation on the MOH?

No. The Divisional Court correctly addressed the thrust of these arguments and concluded that the Adjudicator’s decision was reasonable.

(3) No

The Adjudicator concluded that the best evidence of the consequences of the move away from the 1993 principles was the jointly commissioned Courtyard Report. According to the Adjudicator, implementing Courtyard would “[bring] the parties as close as possible” to the “place they would have been but for the discrimination”.

The Code provides the Tribunal with broad remedial discretion to order remedies that are fair, effective and responsive to the circumstances of the particular case. In exercising their remedial discretion, the Adjudicator fashioned a remedy based on the evidence that was before them. The MOH did not point to any legitimate basis for interfering with the Tribunal’s discretionary remedial decision.


Ernst & Young Inc v Aquino, 2022 ONCA 472

[van Rensburg J.A. (Motion Judge)]

COUNSEL:

T. Corsianos and G. Corsianos, for the moving parties J.A., 2304288 Ontario Inc., M.C., G.A., and L.C.

A. Merskey, E. Cobb and S. Taylor, for the responding party Ernst & Young Inc., in its capacity as Court Appointed Monitor of Bondfield Construction Company Limited

J. Opolsky and C. Gilchrist, for the responding party KSV Restructuring Inc. in its capacity as Trustee in Bankruptcy of 1033803 Ontario Inc. and 1087507 Ontario Limited

Keywords: Bankruptcy and Insolvency, Transfers Under Value, Civil Procedure, Appeals, Stay Pending Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 269, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1(1), Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, Rules of Civil Procedure, Rule 63.01(1), Ting (Re), 2019 ONCA 768, Canadian Dredge & Dock Co v The Queen, [1985] 1 S.C.R. 662, Deloitte & Touche v Livent Inc (Receiver of), 2017 SCC 63

FACTS:

This was a motion for a stay of execution of the judgments of Dietrich J. dated March 19, 2021, obtained in the context of proceedings involving Bondfield Construction Company Limited and certain of its affiliates under the Companies’ Creditors Arrangement Act (the “CCAA”) and the Bankruptcy and Insolvency Act (the “BIA”). The judgments resulted from applications by the Monitor and the Trustee under s. 96 of the BIA (and, in the case of the Monitor, under s. 36.1 of the CCAA) for declarations that various payments from Bondfield to the moving parties were transfers at undervalue made with the intent to “defraud, defeat or delay” Bondfield’s creditors, and for compensation for those transfers.

ISSUES:

Has the appellant met the test for granting a stay pending an application for leave to appeal to the Supreme Court?

HOLDING:

Motion dismissed.

REASONING:

No.

The Court applied the well-established testfor a stay pending appeal to the Supreme Court: (i) there is a serious issue to be adjudicated on its proposed appeal, including that the appeal raises an issue of public or national importance; (ii) it will suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours granting the stay.

The Court agreed with the respondents that the determinative factor on the motion was the inability of the moving parties to prove irreparable harm if the stay was refused. The moving parties’ argument about irreparable harm at this stage was that without a stay, J.A. would be prevented from negotiating a sale of his 8.3% interest in the “Anderson property” to a third party (should an interested third party come forward), a sale that he acknowledged would be subject to the Monitor’s prior approval and would generate proceeds for the Monitor. This was a property that J.A. claimed was of “no value”. The inability to sell it therefore did not constitute irreparable harm.

The balance of convenience did not favour the moving parties. No security had been offered in this case, and the judge concluded that the assets in the Monitor’s hands were insufficient to satisfy the judgments.



SHORT CIVIL DECISIONS

ALB v Durham Children’s Aid Society, 2022 ONCA 466

[Benotto, Zarnett and Sossin JJ.A.]

COUNSEL:

A.L.B., acting in person

C. Deyarmond, for the respondent Durham Children’s Aid Society

J. Long and R.J.M. Snell, for the respondent Office of the Children’s Lawyer

Keywords: Family Law, Child Protection, Civil Procedure, Frivolous, Vexatious and Abuse of Process, Child, Youth and Family Services Act, 2017, ss. 87(8) and 87(9) and 142(3), Scaduto v The Law Society of Upper Canada, 2015 ONCA 733, Lochner v Ontario Civilian Police Commission, 2020 ONCA 720

Anderson Learning Inc (Bond International College) v Birchmount Howden Property Holdings Inc, 2022 ONCA 469

[Benotto, Zarnett and Sossin JJ.A.]

COUNSEL:

R. Quance and A. Thakkar, for the appellant

R.B. Macdonald and M. Petrovic, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Options to Renew, 120 Adelaide Leaseholds Inc v Oxford Properties Canada Ltd, [1993] OJ No 2801 (CA), Housen v Nikolaisen, 2002 SCC 33