Below are this week’s summaries of the civil decisions of the Ontario Court of Appeal.

Topics this week include family law (imputing income and calculating spousal support under the SSAGs), a contractual issue involving real property, wrongful dismissal and the limitation period for reassessments under the Ontario Income Tax Act.

Have a nice weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents:

Baur Investments Limited v. Tangredi, 2017 ONCA 871

Keywords: Real Property Law, Contracts, Interpretation

Berta v. Berta, 2017 ONCA 874

Keywords: Family Law, Spousal Support, Spousal Support Advisory Guidelines, Imputing Income, Costs, Bad Faith Conduct

Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873

Keywords: Employment Law, Wrongful Dismissal, Employment Agreement, Lack of Consideration, Employment Standards Act, 2000, S.O. 2000, c. 41, Addison v. M. Loeb Ltd. (1986)Hobbs v. TDI Canada Ltd. and Francis v. Canadian Imperial Bank of Commerce (1994)

Aubrey Dan Family Trust v. Ontario (Finance), 2017 ONCA 875

Keywords: Tax Law, Statutory Interpretation, Ontario Income Tax Act R.S.O. 1990, c. I.2, Federal Income Tax Act R.S.C. 1985, c. 1 (5th Supp.), Reassessment

For short civil decisions click here.

For criminal decisions click here.

Civil Decisions

Baur Investments Limited v. Tangredi, 2017 ONCA 871

[MacFarland, Watt and Brown JJ.A.]

Counsel:

Harvin D. Pitch, for the appellant

Brendan Clancy, for the respondent

Keywords: Real Property Law, Contracts, Interpretation

Facts:

This appeal concerns a dispute between the owners of adjacent properties on Hawthorne Gardens in the City of Toronto. The appellant and respondent jointly own this private roadway that runs east to a dead end at numbers 5 and 6 Hawthorne, and west to Castle Frank Road. The respondent has owned 4 and 6 Hawthorne since about 1980. The appellant acquired 5 Hawthorne in 2015 but did not move in, pending renovations to the property, until the fall of 2016.

As part of his purchase of the property at 5 Hawthorne, the appellant took an assignment of, and agreed to be bound by, the agreement between the respondent and the appellant’s predecessor in title, Ms. Handeles, that governs the use and care of the private roadway. And, having signed that agreement in 2015, any conduct from 1990-2015 becomes irrelevant. The material part of that agreement, for present purposes, provides “Hawthorne Gardens shall be used only for pedestrian and vehicular access by each of the parties hereto and none of them shall use or permit any act upon Hawthorne Gardens in such a manner as to unreasonably interfere with or obstruct the reasonable use thereof by any of the other parties, their tenants, agents, employees, invitees, tradesmen and contractors.”

The appellant, his tradesmen and contractors parked on the roadway during the renovations after he acquired the property. This resulted in complaints to the respondent, who rented out his property to tenants. Before the motion judge, the appellant took the position that he was entitled to park his vehicles on the roadway provided he did not block egress or ingress. The motion judge held that the agreement clearly prohibited parking on the roadway.

Issues:

(1) Did the motion judge err in finding that the agreement clearly prohibited parking on the roadway?

Holding: Appeal dismissed.

Reasoning:

(1) No. The agreement is clear on its face, as the motion judge found. Parking is not permitted on the road, including that portion covered by the brick pad. The site plan application was a necessary and incidental part of the injunction order. It was fully canvassed before the motion judge, and the appellant had a full opportunity to advance his position at that time. The motion judge made no error in requiring the appellant to sign the application.

Berta v. Berta, 2017 ONCA 874

[MacPherson, Juriansz and Roberts JJ.A.]

Counsel:

A Franks and M Zalev, for the appellant

P Callahan, for the respondent

Keywords: Family Law, Spousal Support, Spousal Support Advisory Guidelines, Imputing Income, Costs, Bad Faith Conduct

Facts:

The appellant, Delia Joan Berta (“Joan”), and the respondent, Raymond Louis Berta (“Ray”), were married for 27 years. In 1986, Ray decided to start a clinical research business. He called it Applied Consumer Clinical Evaluations Inc. (“ACCE”). Joan and Ray were equal shareholders in ACCE, and both were directors of the company. Both contributed labour and funds to the growth of ACCE, but Ray operated the company on a daily basis. In 1993, Joan took early retirement from Stelco and set up a consulting business. Both businesses flourished, especially ACCE, which became very successful and profitable.

The marriage ended in March 2010. Joan and Ray sold their matrimonial home, divided the net proceeds of sale equally, and purchased separate homes in Ontario. Joan also bought a small condominium in Florida. Ray purchased Joan’s ACCE shares for $2.2 million, payable in part on closing with the balance of $1.85 million to be paid over time. The parties, however, could not resolve several financial issues. After a nine day trial in 2013, Harper J. ordered Joan to make an equalization payment to Ray, and ordered Ray to pay Joan indefinite spousal support on the low end of the Spousal Support Advisory Guidelines (“SSAGs”) in the amount of $5,380 per month. Joan was also ordered to pay Ray’s costs of $460,179.57 on a full indemnity basis due to, inter alia, Joan’s unreasonable behaviour throughout the litigation, including her repeated unproven allegations of fraud against Ray.

Joan appealed from the trial judge’s decision on three grounds: the quantum of spousal support, the equalization payment, and the costs award. In a prior decision, the Court of Appeal allowed the appeal: Berta v. Berta, 2015 ONCA 918. The court returned the case to the trial judge to reconsider the spousal support and costs issues “in accordance with the reasons of this Court”. At the rehearing, on the crucial issue of Joan’s sale of her shares in ACCE to Ray, the trial judge concluded that the capital receipts they generated “should only be considered for what they can reasonably yield as income if invested in a reasonable manner.” He then considered that income – using a “generous” six per cent return – and her various pension incomes, and arrived at an average annual income for Joan of $282,119. On this basis, the trial judge awarded Joan indefinite spousal support of $8,000 per month. The trial judge awarded Ray costs of $322,125.70, even though Joan served and filed an offer to settle that was better than the judgment granted to Ray, becauase he found that she had fueled the fire of litigation and engaged in conduct that amounted to bad faith.

Joan appeals both the new spousal support and costs awards.

Issues:

  • Did the trial judge err by awarding Joan spousal support of $8,000 per month?
  • Did the trial judge err in calculating Joan’s income for support purposes?
  • Did the trial judge err in applying the low range of the SSAGs?
  • Did the trial judge make a mathematical error when applying the SSAGs?
  • Was the trial judge’s costs award of $322,125.70 in favour of Ray unfair, unreasonable or clearly wrong?

Holding:

Appeal allowed in part.

Reasoning:

  • Joan was entitled to $13,759 per month in spousal support.

Joan contends that the trial judge erred by fixing indefinite spousal support at $8,000 per month. She says that this amount is too low. She submits that the trial judge made three errors in arriving at this number – (a) he erred in calculating Joan’s income for support purposes; (b) he erred in applying the low range of the SSAGs; and (c) he made a mathematical error when he applied the SSAGs.

  • Joan asserts that the trial judge failed to take account of the tax implications of her receipt of $2.2 million for the sale of her ACCE shares to Ray. The cumulative cash Joan would retain after 2016 from the sale of the shares was $1,685,923. The Court of Appeal agreed with this figure. Second, Joan submits that the trial judge erred by in effect ‘double counting’ certain items in both the ‘imputed income’ and ‘other sources’ categories of income. The trial judge improperly added to Joan’s asset portfolio the value of a RIFF, the income from which is already accounted for in her line 150 income. He also incorrectly included the proceeds from the sale of her matrimonial home, which she used to buy a new home and which were not available to invest, as well as amounts for personal property like a car and jewellery, none of which could not generate income. Third, Joan contends that the trial judge erred by determining that she should be earning six per cent a year on her capital. The Court of Appeal rejected this submission. In its prior decision, the Court of Appeal used a six per cent figure, which it described as “generous”, in calculating Joan’s potential annual income. In addition, the record established that Joan’s RIFF return from 2010 to 2013 was around six per cent. Combining the foregoing, the Court of Appeal concluded that it was appropriate to impute an asset portfolio of $1,685,923. If invested so as to generate an annual return of six per cent, the annual income in this category would be $101,155. If this is added to the other income sources totalling $102,719, Joan’s total annual income would be $203,874.
  • Absent an error in principle, a significant misapprehension of the evidence, or an award that is clearly wrong, the trial judge’s conclusion on spousal support awards should be affirmed. This deference is augmented for payor incomes over $350,000 where the SSAGs themselves suggest “pure discretion” as one of two possible approaches.
  • The trial judge’s ultimate conclusion on the spousal support issue was: “Based on the income ranges set out above, Raymond should pay the low end of the SSAG calculations. This amounts to $8,000 per month in spousal support. That level of support results in Joan retaining 40% of the Net Disposable Income and Raymond retaining 60%.” Joan contends that the trial judge’s intent here was to order support at the low end of the SSAGs range, the order of $8,000 per month was simply a mathematical error in applying this intent. The Court of Appeal agreed with this submission and applied the low end of the SSAGs to the corrected income figure of $203,874, which resulted in $13,759 per month payable in spousal support.
  • At the first trial, the trial judge awarded Ray full indemnity costs fixed at $460,179.57. At the rehearing, the trial judge made a specific finding that Joan acted in bad faith at the original trial. However, he heeded the comments of the Court of Appeal, and concluded that Ray should recover “a substantial portion of his costs”, not full indemnity. He reduced the full indemnity costs by 30 per cent and awarded Ray costs of $322,125.70. Joan submits that this costs award is unreasonable, especially since she was ‘successful’ on the spousal support issue. The Court of Appeal did not accept this submission. The trial judge was in the best position to assess the parties’ conduct before and during a nine day trial. In both his trial and rehearing reasons, he made explicit negative findings about Joan’s conduct. In his rehearing reasons, the trial judge specifically stated that his findings at the trial “describe conduct that amounts to bad faith”. The cost award was not unreasonable.

Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873

[Strathy C.J.O., Cronk and Pepall JJ.A.]

Counsel:

George Avraam and Jeremy Hann, for the appellant

Matthew Fisher and Ian Hurley, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Employment Agreement, Lack of Consideration, Employment Standards Act, 2000, S.O. 2000, c. 41, Addison v. M. Loeb Ltd. (1986)Hobbs v. TDI Canada Ltd. and Francis v. Canadian Imperial Bank of Commerce (1994)

Facts:

The appellant employer, Olympus Canada Inc. (“Olympus”), appeals from a summary judgment award of damages in favour of its former employee, the respondent Nadesan Krishnamoorthy (“Krishnamoorthy”). Olympus carries on an optical sciences business in the United States. Carsen Group Inc. (“Carsen”), an unrelated company, carried on business as an exclusive distributor for Olympus America’s products in Canada. In May 2000, Krishnamoorthy commenced employment with Carsen as a senior financial analyst. By 2005, he had been promoted to Director of Finance.

In 2005, Olympus decided to terminate its distribution agreement with Carsen. Olympus terminated its distribution agreement with Carsen effective July 31, 2006. Olympus purchased some, but not all, of Carsen’s assets. Olympus offered employment to 122 of Carsen’s 125 employees, one of whom was Krishnamoorthy. In November 2005, Olympus Canada provided an offer of employment to Krishnamoorthy under the terms of a written employment agreement. The terms of the agreement were substantially similar to those he had with Carsen with certain exceptions:

1) A termination clause limited the compensation Krishnamoorthy would receive in the event of termination without cause to the greater of (1) notice or pay in lieu of notice and severance pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), or (2) four weeks’ pay      per year of service with Olympus Canada or Carsen, up to a maximum of 10 months, if Krishnamoorthy signed a release.

2) In addition, the agreement provided that Krishnamoorthy would be treated as a new employee and, except as otherwise provided in the agreement or as required by applicable legislation, his service with any other employer would not be recognized.

The agreement also included a clause that released Olympus and its affiliates from any claims that Krishnamoorthy might have in respect of his employment with and/or termination from Carsen or any other employer that had employed him.

Krishnamoorthy signed the employment agreement on December 16, 2005. He did not receive a signing bonus or any other additional compensation for entering into an employment agreement with Olympus Canada. Nor did he receive any pay in lieu of notice or severance pay from Carsen. His employment was to start on August 1, 2006. On April 10, 2006, Carsen wrote to Krishnamoorthy confirming that his employment with Carsen would terminate on July 31, 2006 and that Krishnamoorthy had accepted an offer of employment with Canada. Krishnamoorthy subsequently commenced his employment with Olympus. On May 19, 2015, Olympus Canada dismissed Krishnamoorthy without cause. Olympus offered him compensation in accordance with the 2005 employment agreement. Krishnamoorthy refused the offer, commenced an action against Olympus for damages for wrongful dismissal, and subsequently moved for summary judgment.

Krishnamoorthy took the position that, pursuant to s. 9(1) of the ESA, his employment with Carsen and Olympus was continuous. He argued that the termination clause in his 2005 employment agreement was unenforceable because Olympus had failed to provide him with consideration for amending his employment agreement to include that clause. Olympus argued that its offer of employment constituted sufficient consideration and, as such, the termination clause was binding.

The motion judge accepted Krishnamoorthy’s position. He implicitly concluded that Olympus’s offer of employment did not amount to sufficient consideration and so the termination clause was invalid. Damages awarded to Krishnamoorthy were in the amount of $310,040.88, which represents 19 months’ pay in lieu of notice, plus prejudgment interest and costs.

In reaching that conclusion, the motion judge found that, upon the sale, Krishnamoorthy’s remuneration and duties, and the substance and nature of the business, all remained the same. Insofar as s. 9(1) of the ESA was concerned, he noted that Olympus Canada “did recognize this issue in the employment agreement but limited it to (10 years or 10 months’ notice).”

Olympus appeals this decision on the ground that the judge erred in concluding that the termination clause in the parties’ employment agreement was unenforceable due to a lack of consideration. Krishnamoorthy did not cross-appeal but raises other issues that the motion judge declined to address given his finding that Olympus Canada had failed to provide Krishnamoorthy with valid consideration. Krishnamoorthy also asks this court to admit fresh evidence.

Issue:

(1) Did the motion judge err in concluding that the termination clause in the parties’ employment agreement was unenforceable due to a lack of consideration?

(2) Could Krishnamoorthy rely on fresh evidence on appeal?

(3) Is it appropriate to address the alternative arguments Krishnamoorthy made before the motion judge and raises again on appeal?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The motion judge erred in concluding that there was no consideration for the termination clause and that therefore the clause was invalid. In Addison v. M. Loeb Ltd. (1986), Dubin J.A. explained that “since a contract of personal services cannot be assigned to a new employer without the consent of the parties, the sale of a business, if it results in the change of the legal identity of the employer, constitutes a constructive termination of the employment.” If the employee accepts an offer from his new employer, a new contract of employment is entered into. Therefore, Krishnamoorthy’s employment with Carsen was terminated and he entered into a new contract with Olympus upon the sale of the business. At issue is whether there was consideration for that new contract.

It is well established that a promise to perform an existing contract is not consideration: Holland v. Hostopia.com Inc. In other words, new or additional consideration is required to support a variation of an existing contract: Hobbs v. TDI Canada Ltd. and Francis v. Canadian Imperial Bank of Commerce (1994). In this case, the motion judge, relying on Hobbs and Francis, found that Olympus’ offer of employment did not constitute consideration and further concluded that Hobbswas indistinguishable.

However, that is not this case. Hobbs and Francis both involved employment with a single employer and not two different employers as is the case here. The motion judge erred in disregarding the new contract of employment with Olympus, who was a new employer upon its purchase of some of Carsen’s assets. That Mr. Krishnamoorthy’s day-to-day job did not materially change after the sale does not change that fact.

Although s. 9 of the ESA deems there to be continuity of employment if certain requirements are met, it does not deem there to be continuity for all purposes. If the purpose of s. 9(1) of the ESAhad been to deem there to be continuity of employment for all purposes, there would have been no reason to include the words “for the purposes of this Act” in the section. These words make clear that s. 9(1) cannot be used to claim rights or entitlements on which the ESA is silent.

Section 9(1) of the ESA does not deem the employment contract between an employee and an employer to bind a subsequent purchaser of some of that employer’s assets, as was the case here. Nor does s. 9(1) of the ESA require the purchaser of a business’ assets to offer employment to employees of that business on the same terms as their original contracts, as claimed by Krishnamoorthy. He cannot rely on s. 9(1) to achieve either of these effects. He can only rely on s. 9(1) to claim those entitlements that are set out in the ESA itself. In short, Olympus Canada’s offer of employment amounted to consideration for the termination clause.

(2) No. The test for the admission of fresh evidence on appeal, described in Sengmueller v. Sengmueller (1994) encompasses three components: (a) is the evidence credible; (b) could the evidence not have been obtained, by the exercise of reasonable diligence, prior to trial; and (c) will the evidence, if admitted, likely be conclusive of an issue in the appeal?

The test for the admission of fresh evidence is not met. The record of employment was available to Krishnamoorthy, through the reasonable exercise of due diligence, before the summary judgment motion was heard. Furthermore, the record of employment would not have been conclusive of the issue of consideration engaged by this appeal.

(3) No. Although Krishnamoorthy did not bring a cross-appeal, he argued in his factum and in oral submissions that if Olympus Canada were successful on the consideration point, the Court could consider whether the termination clause is invalid because it violates ESA requirements and whether the “substratum of the contract was lost” over the years.

As the Court has stated on more than one occasion, termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA. In other words, courts will scrutinize termination clauses closely for compliance with the ESA. However, the Court does not have the benefit of any factual findings beyond those relating to the narrow issue addressed by the motion judge. The Court therefore orders that the action proceed to a trial of the remaining issues in dispute between the parties.

Aubrey Dan Family Trust v. Ontario (Finance), 2017 ONCA 875

[Simmons, Rouleau and Brown JJ.A.]

Counsel:

Tankovich and J. Bernier, for the appellant A. Jackett, for the respondent

Keywords: Tax Law, Statutory Interpretation, Ontario Income Tax Act R.S.O. 1990, c. I.2, Federal Income Tax Act R.S.C. 1985, c. 1 (5th Supp.), Reassessment

Facts:

The appellant moved for summary judgment allowing its appeal from a reassessment of provincial income tax issued under the Ontario Income Tax Act (the “Ontario Act”). The appellant asserted that the reassessment occurred after the limitation period for reassessing Ontario income tax had passed and argued that the limitation waiver form, T2029, which it had submitted for the 2007 taxation year, is a prescribed form under the federal Income Tax Act (the “Federal Act”), but did not operate to waive the limitation period for reassessing income tax under the Ontario Act.

The motion judge found that the relevant limitation period had expired but rejected the argument that no valid waiver was submitted.

Issues:

(1) Did the motion judge err in concluding that the waiver form T2029 was deemed, by s. 48(15) of the Ontario Act, “to be a form prescribed by order of the Provincial Minister” under the Ontario Act?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The combined operation of s. 10 of the Ontario Act, which adopts certain provisions of the Federal Act, and s. 152(4) of the Federal Act permit reassessment of Ontario tax after a normal reassessment period where the taxpayer “has filed with the Minister a waiver in prescribed form within the normal reassessment period for the taxpayer in respect of the year”.

Section 48(15) of the Ontario Act states that “[e]very form purporting to be a form prescribed… by the Provincial Minister shall be deemed to be a form prescribed by order of the Provincial Minister under … [the Ontario] Act…” The existence of a long-standing collection agreement between the Ontario government and the Federal government, by operation of s. 1(1) of the Ontario Act, “Provincial Minister” in s. 48(15) of the Ontario Act means the Minister of National Revenue for Canada.

Further, waiver form T2029 “bears the insigna of the … [Canada Revenue Agency (“CRA”)] and the Government of Canada and … is regularly used by the CRA.” Explicit wording on the form that it purports to be a form prescribed under the Ontario Act is not required for subsection 48(15) to apply.

The scope of s. 48(15) is to be determined based on a proper interpretation of the Ontario Act. While “all statutes … must be interpreted in a textual, contextual and purposive way”, the context of an income tax statute may lead to “an emphasis on textual interpretation”: Canada Trustco Mortgage Co. v. R., 2005 SCC 54 at para 11. Section 48(15) deems waiver form T2029 to be a prescribed form.

Section 48(15) avoids the necessity of formal proof of an order of the Minister of National Revenue. The prescription imposed by the Minister of National Revenue is sufficiently evidenced by the indicia on the form.

Accordingly, T2029 clearly purports to be a form prescribed or authorized by the Minister of National Revenue under the Ontario Act.

Short Civil Endorsements

Surighin v. Surighina, 2017 ONCA 877

[Cronk, Huscroft and Nordheimer JJ.A.]

Counsel:

No one appearing for Serghei Surighin

Galina Surighina, in person

Keywords: Family Law, Child Support, Extraordinary Expenses, Jurisdiction, Family Law Act, ss. 48, Appeal Dismissed

Tree-Techol Tree Technology v. VIA Rail Canada Inc., 2017 ONCA 876

[MacFarland, Hourigan and Benotto JJ.A.]

Counsel:

Bronwyn N. Martin and B. Robin Moodie, for the appellant Intact Insurance Company

Tom Hanran, for the respondents VIA Rail Canada Inc. and Canadian National Railway Company

E. Savas, for the respondents Tree-Techol Tree Technology and Research Company Inc., 1374007 Ontario Ltd. And Bryan M. McNair

Keywords: Insurance Law, Subrogation, Limitation Periods, Interveners, Appeal Dismissed

Criminal Decisions

R. v. Boghossian, 2017 ONCA 870

[Strathy C.J.O., Doherty J.A. and McCombs J. (ad hoc)]

Counsel:

Erin Dann, for the appellant

David Friesen, for the respondent

Keywords: Criminal Law, Fraud, Evidence, Burden of Proof, Sentencing, Appeal Dismissed

R. v. Shah (Publication Ban), 2017 ONCA 872

[Watt, Brown and Roberts JJ. A.]

Counsel:

Michael Dineen, for the appellant

Lorna Bolton, for the respondent

Keywords: Criminal Law, Robbery, Assault, Sexual Assault, Sentencing, Guilty Plea, Credit for Pre-disposition Custody, Appeal Allowed In Part