Good evening.

Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 2nd, 2022.

In Poirier v. Logan, the Court upheld the permanent stay of an action for failure to disclose a partial settlement agreement with some of the defendants.

Other topics included specific performance relating to an agreement of purchase and sale of land, family law (equalization of NFP relating to pensions), charging orders in the family law context, conditional discharges from bankruptcy and mootness in relation to an appeal on the issue of standing to challenge COVID-19 restrictions that had already been lifted.

Wishing everyone an enjoyable weekend.

Table of Contents

Civil Decisions

Chang (Re), 2022 ONCA 346

Keywords: Bankruptcy and Insolvency, Conditional Discharges, Disclosure Obligations, Civil Procedure, Fresh Evidence, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3 ss. 68,158, 170, 172(2)(c) and 173

Baber v. Ontario (Attorney General), 2022 ONCA 345

Keywords: Health Law, COVID-19, Constitutional Law, Civil Procedure, Standing, Private Interest Standing, Public Interest Standing, Mootness, Canadian Charter of Rights and Freedoms, ss. 2 and 15, Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

Van Delst v. Hronowsky, 2022 ONCA 349

Keywords: Family Law, Equalization of Net Family Property, Pensions, Civil Procedure, Appeals, Orders, Amending or Varying, Family Law Act, R.S.O. 1990, c. F.3, s. 9, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1), Van Delst v. Hronowsky, 2019 ONSC 2569, Van Delst v. Hronowsky, 2020 ONCA 329, Van Delst v. Hronowsky, 2020 ONCA 402

Poirier v. Logan, 2022 ONCA 350

Keywords: Civil Procedure, Partial Settlement Agreements, Abuse of Process, Failure to Disclose, Stay of Proceedings, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, leave to appeal refused, [2011] S.C.C.A. No. 84, Laudon v. Roberts, 2009 ONCA 383, leave to appeal refused, [2009] S.C.C.A. No. 304, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Waxman v. Waxman, 2022 ONCA 311, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Aviaco International Leasing Inc. v. Boeing Canada Inc. (2000), 48 C.P.C. (4th) 44 (S.C.J.)

M & M Homes Inc. v. 2088556 Ontario Inc., 2022 ONCA 364

Keywords: Contracts, Real Property, Agreements of Purchase of Sale of Land, Remedies, Specific Performance, Purchase Price Abatements, Civil Procedure, Amending Pleadings

Foulidis v. Foulidis, 2022 ONCA 362

Keywords: Family Law, Contracts, Solicitor and Client, Charging Orders, Civil Procedure, Costs, Solicitors Act, R.S.O. 1990, c. S.15, sections 34(1), 34(2), Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Family Law Rules, O. Reg. 114/99, rule 2(2), Weenen v. Biadi, 2018 ONCA 288, Thomas Gold Pettinghill LLP v. Ani-Wall Concrete Forming Inc., 2012 ONSC 2182, Fancy Barristers P.C. v. Morse Shannon LLP, 2017 ONCA 82, Mpampas v. Steamatic Toronto Inc. (2009), 84 C.P.C. (6th) 85, Pino v. Van Roon (1998), 28 C.P.C. (4th) 274, Michael Dervin v. Manuel Suarez and Anatoie Koniouchine, 2021 ONSC 1339, Patton v. Patton, 54 R.F.L. (6th) 446, Booth (Re) (1985), 56 C.B.R. (N.S.) 289, Morton (Re), 2014 ONSC 5438, Guergis v. Hamilton, 2016 ONSC 4428

Short Civil Decisions

Sasso v. Sasso, 2022 ONCA 339

Keywords: Wills and Estates, Estate Trustees, Compensation

Madison Homes Cornell Rouge Limited v. Jiang, 2022 ONCA 351

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Misrepresentation, Damages, Civil Procedure, Summary Judgment, Hembruff v. Ontario Municipal Employees Retirement Board (2005), 78 O.R. (3d) 561 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 549 and [2006] S.C.C.A. No. 3

Curnew v. Loo, 2022 ONCA 341

Keywords: Civil Procedure, Striking Pleadings, Substantial Indemnity Costs

Flex Park Inc. v. Covello, 2022 ONCA 347

Keywords: Contracts, Real Property, Mortgages, Fraud, Civil Procedure, Default Judgements, Adjournment, Unconscionable Transactions Relief Act, R.S.O. 1990, c. U.2, Palmer v. The Queen, [1980] 1 S.C.R. 759

Scarlato v. Buzbuzian, 2022 ONCA 352

Keywords: Breach of Contract, Settlement Agreements, Estoppel, Civil Procedure, Summary Judgment, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273

Hume v. 11534599 Canada Corp., 2022 ONCA 360

Keywords: Civil Procedure, Appeals, Quashing Appeals, Removal of Lawyer of Record

Fazl v. Home Trust Company, 2022 ONCA 356

Keywords: Civil Procedure, Litigation Guardians, Summary Judgment, Adjournments, Substitute Decisions Act, 1992, S.O. 1992, c. 30

Anthony v. Cundari, 2022 ONCA 363

Keywords: Real Property, Adverse Possession, Civil Procedure, Issue Estoppel, Res Judicata

Public Guardian and Trustee v. Zammit, 2022 ONCA 371

Keywords: Civil Procedure, Appeals, Mootness, Transmission of Interest, Rules of Civil Procedure, Rule 11


CIVIL DECISIONS

Chang (Re), 2022 ONCA 346

[Benotto, Miller and Copeland JJ.A.]

COUNSEL:

P. Masic, for the appellant

A. Ferguson, for the respondent J. Webb & Associates

R. Schliemann, for the respondent Bank of Montreal

Keywords: Bankruptcy and Insolvency, Conditional Discharges, Disclosure Obligations, Civil Procedure, Fresh Evidence, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3 ss. 68,158, 170, 172(2)(c) and 173

FACTS:

The appellant sought to set aside the application judge’s conditional discharge order which required him to pay $325,000 to the Trustee in specified monthly installments until paid in full. The appellant is a professional chartered accountant and chartered management accountant. The subject matter of the proceedings was his second bankruptcy.

The appellant was unemployed and married. His spouse filed for bankruptcy at the same time as the appellant and has since been discharged. According to the Official Receiver Report, his wife found employment and is earning $3,000 gross per month. The appellant contended that although he and his spouse lived together, they were separated. The couple lived beyond their means and relied on the appellant’s mother for loans to cover their expenses. The appellant’s mother passed away and the appellant stated his share of the estate was worth $300,000 but contested by siblings.

The application judge made credibility findings that the appellant was untruthful, evasive, and a sophisticated debtor who was not merely “unfortunate”. The application judge found a breach of the disclosure obligations under section 158 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3. The trial judge’s findings under s. 173 resulted in a conditional discharge under s.172(2)(c) on payment in full of $325,000 to made in monthly installments. During the course of the proceedings, the Trustee wrote five letters directly to the application judge without copying the appellant or his counsel.

ISSUES:

(1) Did the application judge err in granting a conditional discharge with a payment condition because the provisions of section 68 were not complied with?

(2) Did the application judge err in the amount of payment ordered?

(3) Can the appellant submit fresh evidence on appeal on consent of the respondent?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The appellant submitted that it was an error because the Trustee did not raise surplus income in the Report and that it was unfair that the appellant did not have an opportunity to respond to the assertion that he had surplus income.

Section 68 provides that a trustee is to determine if the bankrupt has surplus income and note it in the Report required under s. 170. The Court of Appeal found that s. 68 was not engaged. The application judge did not base his finding with respect to payment on surplus income but rather on the findings of fact and the appellant’s conduct in breaching his obligations of disclosure under s. 158.

There was no unfairness because the appellant had ample opportunity to address the issue of his income. It was improper for the Trustee to send letters to the application judge on an ex parte communication. However, here there was no miscarriage of justice or prejudice. The information and documentation contained in the correspondence were already known to the appellant and in his possession.

(2) No.

The appellant submitted that the amount was based on the possibility of the $300,000 inheritance. The application judge did not make a statement to this effect.

(3) No.

The respondent wanted to submit fresh evidence on the validity of the second mortgage on the appellant’s home. There was no relevance to the evidence and would not have affected the result.


Baber v. Ontario (Attorney General), 2022 ONCA 345

[Benotto, Miller and Copeland JJ.A]

COUNSEL:

S. Presvelos and E. Presvelos, for the appellants

J. Hunter, R. Cookson, and M. Stevenson, for the respondent

Keywords: Health Law, COVID-19, Constitutional Law, Civil Procedure, Standing, Private Interest Standing, Public Interest Standing, Mootness, Canadian Charter of Rights and Freedoms, ss. 2 and 15, Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

FACTS:

The underlying application involved a challenge by the appellants to outdoor gathering restrictions imposed as a public health measure by regulations under the Emergency Management and Civil Protection Act and the Reopening Ontario (A Flexible Response to COVID-19) Act. The appellants pleaded in their application that the restrictions infringe their rights under ss. 2 and 15 of the Canadian Charter of Rights and Freedoms, and are not reasonable and demonstrably justified limits on their rights. The application judge dismissed their application on the basis that they did not have public interest standing. The appellants conceded that the underlying application was moot, as the regulations challenged were no longer in force. However, the appellant, R.B, submitted that the issue of his private interest standing to bring the application was not moot.

ISSUES:

(1) Is the issue of the appellant’s, R.B, private interest standing to bring the application moot?

(2) If the issue of the appellant’s, R.B, private interest standing is moot, should the court exercise its discretion to hear and decide the issue of his private interest standing to bring the application?

HOLDING:

Appeal dismissed as moot.

REASONING:

(1) Yes.

The appellant submitted that while the regulations were no longer in effect, the pandemic is not over and it is possible that the provincial government may impose similar public health restrictions in the future. In such a case, and if he seeks to bring a Charter challenge to any future restrictions, he argues that he may be prejudiced by the application judge’s decision that he did not have standing to bring the application in this matter.

The court concluded that the issue of private interest standing to bring the application was moot in the sense described in Borowski because the underlying application was moot. Further, a decision by the Court on whether he has private interest standing to bring this particular application would not resolve any controversy that affects R.B.’s rights: 1) Private interest standing to bring a hypothetical future application would be decided based on the circumstances and evidentiary record in a future application. The application judge’s reasons would not be binding in such a hypothetical future application based on new legislation/regulations; 2) The application judge considered public interest standing, but did not consider whether the appellant had private interest standing to bring the application.

(2) No.

Considering the three factors set out in Borowski, the Court determined that it was not appropriate to exercise its discretion to hear the appeal regarding the appellant’s private interest standing. The Court stated that the first and third factors did not raise an issue, but that it would not exercise its discretion to hear the appeal based on the second factor. Concern for judicial economy supported the conclusion that the Court should not expend scarce judicial resources to hear and decide the issue of the applicant’s private interest standing to bring a moot application, when his standing to bring this application will not govern his standing to bring a hypothetical future application.


Van Delst v. Hronowsky, 2022 ONCA 349

[Gillese, Harvison Young and Coroza JJ.A.]

COUNSEL:

T. J. H., acting in person

K. Shadbolt and D. Migicovsky, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Pensions, Civil Procedure, Appeals, Orders, Amending or Varying, Family Law Act, R.S.O. 1990, c. F.3, s. 9, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1), Van Delst v. Hronowsky, 2019 ONSC 2569, Van Delst v. Hronowsky, 2020 ONCA 329, Van Delst v. Hronowsky, 2020 ONCA 402

FACTS:

In 2017 the respondent wife brought an application against the appellant husband seeking a divorce, child and spousal support orders, and the equalization of net family property. All issues were resolved except for equalization of net family property, which went to trial in January of 2019.

The trial judge concluded that the appellant’s pension should be valued based on a normal age of retirement of 60, while the respondent’s pension should be valued based on a reasonable age of retirement of 65. The appellant appealed to the Court of Appeal and the appeal was allowed in part: the Court concluded that the value of both parties’ pensions should have been based on a normal age of retirement of 60 for both parties. Accordingly, the Court remitted the matter to the trial judge to determine the correct family law value of the respondent’s pension, to adjust the equalization payment accordingly, and to adjust the original costs order if necessary.

After a subsequent three-day trial, the trial judge made a new order dated March 29, 2021 (the “Order”) after having determined the correct family law value of the respondent’s pension as per the Court’s direction.

The appellant appealed the Order, seeking leave to appeal the trial judge’s costs award, and also appealed from a dismissed motion to stay the Order pending appeal (which the appellant was advised was unnecessary because the Order was automatically stayed pending appeal).

Additionally, the respondent sought two amendments to the Order.

ISSUES:

(1) Did the trial judge err in her determination of the family law value of the respondent’s pension?

(2) Did the trial judge err in making an unjust and inoperable payment order in the Order?

(3) Did the trial judge err in deviating from the direction of the Court of Appeal, rendering the trial unfair?

(4) Should the appellant be granted leave to appeal the costs order of the trial judge?

(5) Should the appellant’s appeal of the motion judge’s order refusing to stay the order pending appeal be granted?

(6) Should the respondent’s request to amend the Order be granted?

HOLDING:

Appeal dismissed.

REASONING:

Eight days prior the hearing of the appeal, the appellant requested a 60-day adjournment. The appellant was advised that, due to the proximity to the scheduled hearing of the appeal, he would be required to make his adjournment request to the panel on the hearing date, but had to be prepared to proceed that day regardless. At the oral hearing of the appeal, the Court dismissed the appellant’s adjournment request because the matters he sought to raise were outside the scope of the appeal.

(1) No.

The trial judge considered the evidence of experts who were called by the parties. Significantly, both experts arrived at valuations that were just shy of $1,000 apart, before tax. The appellant did not point to any error in the trial judge’s assessment. Further, some of the arguments advanced by the appellant sought to revisit what happened during the first trial, which did not disclose a basis for appellate intervention.

(2) No.

In the Court’s view, it was open to the trial judge to craft the Order under s. 9 of the Family Law Act, as the appellant had not complied with previous orders to provide proof of his annual income and sign a direction/authorization in a form acceptable to the bank; had not settled outstanding costs orders; and had delayed the resolution of the within matter by disputing garnishment proceedings initiated by the respondent in order to satisfy the outstanding costs orders.

(3) No.

The trial judge clearly stated that the scope of the matter before her had been narrowly circumscribed by the Court’s decision and all that remained was a recalculation of the equalization payment based on a normal retirement date of age 60 for both parties. There was no basis to conclude that the trial judge did not follow the direction of the Court or that the appellant was not afforded a fair hearing.

(4) No.

The Court saw no merit to the appellant’s submissions and found no basis to disturb the trial judge’s discretionary costs order.

(5) No.

The appellant’s motion before the motion judge was unnecessary because the Order was automatically stayed pending appeal. The motion judge informed the appellant of this fact, yet he persisted in requiring a full hearing to be held. Accordingly, the appeal from that decision was dismissed.

(6) Yes.

The respondent requested that the Court make two amendments to the Order by exercising the Court’s powers under s. 134(1) of the Courts of Justice Act. First, the respondent requested that the Court broaden the enforcement provision of the Order beyond the two bank accounts in the appellant’s name. The Court declined to grant the first amendment.

Second, the respondent requested that the Court extend the May 1, 2021 deadline by which time the appellant’s equalization payment must be made from his named bank accounts, after which the pension rollover provision of the Order takes effect. The respondent argued that extending the deadline would provide a period of time to seek enforcement of the Order for a cash payment from the appellant’s named accounts, without having the pension rollover immediately take effect since it was well past the May 1, 2021 deadline.

The Court granted the second amendment, noting that the initial Order was now dated through no fault of the respondent. Further, there was no prejudice to the appellant in making the second amendment.


Poirier v. Logan, 2022 ONCA 350

[Pardu, Paciocco and Thorburn JJ.A.]

COUNSEL:

R.P. Steep and L. Ostler, for the appellant, R.P.

S. Chaudhury and M. McGowan, for the respondents H.G. and Buchli Goldstein LLP

J. Larry, for the respondent J.L.*

M. Whelton, for the respondent J.F.**

M.C., acting in person ***

Keywords: Civil Procedure, Partial Settlement Agreements, Abuse of Process, Failure to Disclose, Stay of Proceedings, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, leave to appeal refused, [2011] S.C.C.A. No. 84, Laudon v. Roberts, 2009 ONCA 383, leave to appeal refused, [2009] S.C.C.A. No. 304, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Waxman v. Waxman, 2022 ONCA 311, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Aviaco International Leasing Inc. v. Boeing Canada Inc. (2000), 48 C.P.C. (4th) 44 (S.C.J.)

FACTS:

The respondents M.C. and J.L. owned the respondent M.C. Capital Corp. (“M.C. Capital”), which carried on a wholesale and retail clothing business through an operating company, Standard Apparel Inc. (“Standard Apparel”). In 2015, J.L. asked the appellant, R.P., to invest in the clothing business by buying out M.C.’s shares. R.P. acquired M.C.’s interest in the clothing business and personally guaranteed the debts of the business. The clothing business soon failed, resulting in significant losses to R.P.

R.P. alleged that in purchasing the shares he relied upon what proved to be fraudulent or negligently misleading corporate financial statements. He alleged that those financial statements were prepared by J.F., the business accountant, and were provided to him by M.C., J.L. and J.F.

Lawyer H.G. of Buchli Goldstein LLP assisted R.P. in the share acquisition. H.G. was J.L.’s wife, and R.P. alleged that she breached their contract of retainer and acted in conflict of interest by failing to disclose relevant information known to her relating to the business risk he was undertaking. R.P. instituted an action against the respondents M.C., M.C. Capital, J.L., H.G. and Buchli Goldstein LLP. He also sued J.L.

While discoveries were underway, R.P. settled his claim against J.L, but his lawyers did not disclose the settlement to the respondents for six months. As a result of this period of non-disclosure, the motion judge stayed the action against the respondents, finding that the failure to disclose the settlement immediately was an abuse of process requiring the dismissal of the proceedings. The motion judge referred to the legal test he applied as the “dismissal principle”, and he relied on multiple authorities, including Handley Estate v. DTE Industries Limited, 2018 ONCA 324.

R.P. appealed the decision, arguing that the motion judge erred in law by applying an incorrect test and that he committed palpable and overriding errors of fact. He sought to have the stay set aside and the action reinstated.

ISSUES:

(1) Did the motion judge err in applying an incorrect test?

a. Did the motion judge err by failing to apply a two-part test?

b. Did the motion judge err by failing to consider whether the settlement agreement made the pleadings a sham?

c. Did the motion judge err by considering the standstill agreement?

(2) Did the motion judge commit palpable and overriding errors?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

a. No.

The Court held that Aecon Buildings v. Stephenson Engineering Limited does not set out a two-part test. MacFarland J.A. made clear that if it is determined that a party failed in its obligation to disclose a settlement agreement, an abuse of process will be found. MacFarland J.A. then went on to find that the failure to make immediate disclosure requires a stay of the action.

b. No.

Neither a change in the position of the parties reflected in the pleadings, nor a “sham” inquiry, are essential parts of the disclosure test. It is settled jurisprudence that the obligation to disclose arises where the settlement agreement changes entirely the landscape of the litigation in a way that significantly alters the adversarial relationship among the parties to the litigation or the “dynamics of the litigation”. In any event, the Court was not persuaded that the motion judge failed to consider J.F.’s pleaded position.

c. No.

The Court did not find the standstill agreement, or the cooperation between defendants – including J.F. – in preparing for the examination of R.P., to be irrelevant. The motion judge was entitled to use this as illustrative of the change in the adversarial relationship between the parties after the undisclosed settlement agreement. The obligation to disclose is not contingent on the settling parties appreciating that the landscape of the litigation has changed. It arises if the landscape of the litigation has been changed by the settlement agreement that they have made.

(2) No.

R.P.’s arguments relating to the first four alleged misapprehension of evidence claims represented an invitation to have the Court reconsider the motion on its merits and to come to and substitute a different decision from the one the motion judge made. The motion judge clearly understood the arguments being made, and rejected them, as he was entitled to do. The motion judge’s decisions were supported on the record and entitled to deference.


M & M Homes Inc. v. 2088556 Ontario Inc., 2022 ONCA 364

[MacPherson, Paciocco and George JJ.A.]

COUNSEL:

R. S. Choi and G. P. Rhodes, for the appellant

E. Birnboim and M. Crampton, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase of Sale of Land, Remedies, Specific Performance, Purchase Price Abatements, Civil Procedure, Amending Pleadings

FACTS:

The respondent, M & M Homes, agreed to purchase land for commercial development from the appellant, 2088556 Ontario Inc. (“208”). The Agreement of Purchase and Sale (the “APS”) required 208 to provide water, storm and sanitary services to the property line of the purchased property by a specified deadline, failing which the agreement “shall become null and void” and the deposit shall be returned. That deadline was not met but was extended repeatedly by agreement. After the last agreed deadline had expired without 208 having supplied the services, 208 attempted to return the deposit. M & M Homes refused and sued for specific performance. The matter proceeded to trial.

The trial judge found that M & M Homes was entitled to specific performance and an abatement arising from 208’s breach of a fundamental term of the APS. She granted a vesting order but invited 208 to reapply for an adjustment of the abatement if within 30 days it delivered written confirmation that the services had been completed, as well as an undertaking to fully cooperate in providing M & M Homes with access to those services. 208 did not reapply for an adjustment of the abatement. Instead, it appealed the judgment.

ISSUES:

(1) Did the trial judge err in ordering specific performance?

(2) Did the trial judge err in ordering an abatement?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

In its Statement of Defence, 208 resisted the abatement claim, but agreed that the APS should be enforced by specific performance. 208 also pleaded that it was “ready, willing and able to close on the terms of the APS on a new projected closing date” and pleaded that specific performance “should be granted”. On the first day of trial, new counsel for 208 sought to argue the opposite of what 208 had signalled in its Statement of Defence, namely, that the APS was null and void, and that specific performance should not be ordered.

After it became clear that its pleadings were an impediment to advancing these new and inconsistent litigation positions, 208 sought to amend its pleadings to reflect its current position. The Court saw no difficulty with the trial judge’s discretionary dismissal of 208’s motion to amend its pleadings.

Nor would the Court interfere with the trial judge’s conclusion that 208 was prevented by its pleadings from arguing that the APS was null and void, or that specific performance should not be ordered. Obviously, pleadings are intended to frame the live issues in an action. The trial judge’s decision to enforce the pleadings was appropriate.

The Court also rejected 208’s related argument that the trial judge erred by failing to recognize that it had pleaded in the alternative that specific performance should not be granted, and by not permitting 208 to elect at trial the remedy it would pursue.

Nor did the trial judge err by failing to exercise discretion before imposing the remedy of specific performance. She clearly exercised discretion before doing so. She expressly noted in her judgment that “this relief should be granted for two reasons”. The second of those reasons was that “the evidence does establish that specific performance is a remedy that should be granted in this case.” There was no merit in this ground of appeal.

The Court also rejected 208’s arguments that it was unfair of the trial judge to order specific performance given that at the time of the trial the property was owned by CRC Sutton Inc. (“CRC”), which had registered charges against the property. The trial judge was entitled to find that CRC was not “an innocent arm’s length purchaser” and had actual knowledge of the claim, given that its directing mind is the principal of 208.

(2) No.

The trial judge was entitled to receive and act upon the expert testimony offered by M & M Homes. She was also entitled to reject the testimony offered by 208 to prove that the services were completed. She was left unpersuaded by it.

Moreover, the trial judge was entitled to quantify the amount of the abatement based on the costs of independent servicing of the property, notwithstanding the evidence before her that the municipality may not permit M & M Homes to service the lands independently. The task of the trial judge in quantifying the abatement was to determine the diminution in value of the property to M & M Homes arising from 208’s breach of the APS. Her decision to base the abatement on the costs of independent servicing was appropriate given that 208 was in position to frustrate connection to city services. The trial judge was entitled to find that M & M Homes needed 208’s cooperation to accomplish this and “there is no reason to believe that [208] will be cooperative”. In the circumstances, an abatement based on the costs of connecting to 208’s service line could not be relied upon to compensate M & M Homes for 208’s breach.


Foulidis v. Foulidis, 2022 ONCA 362

[MacPherson, Paciocco and George JJ.A.]

COUNSEL:

G. M. Caplan and A. Simovonian, for the appellant/respondent by way of cross-appeal

S. N. Zeitz and J. S. Quigley, for the respondent/appellant by way of cross-appeal

Keywords: Family Law, Contracts, Solicitor and Client, Charging Orders, Civil Procedure, Costs, Solicitors Act, R.S.O. 1990, c. S.15, sections 34(1), 34(2), Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Family Law Rules, O. Reg. 114/99, rule 2(2), Weenen v. Biadi, 2018 ONCA 288, Thomas Gold Pettinghill LLP v. Ani-Wall Concrete Forming Inc., 2012 ONSC 2182, Fancy Barristers P.C. v. Morse Shannon LLP, 2017 ONCA 82, Mpampas v. Steamatic Toronto Inc. (2009), 84 C.P.C. (6th) 85, Pino v. Van Roon (1998), 28 C.P.C. (4th) 274, Michael Dervin v. Manuel Suarez and Anatoie Koniouchine, 2021 ONSC 1339, Patton v. Patton, 54 R.F.L. (6th) 446, Booth (Re) (1985), 56 C.B.R. (N.S.) 289, Morton (Re), 2014 ONSC 5438, Guergis v. Hamilton, 2016 ONSC 4428

FACTS:

The appellant, L. F., appealed a September 9, 2021 charging order issued by a family court motion judge against a Toronto residence (the “Property”). The charging order was granted to secure $664,323.38 in legal fees billed by the respondent, which arose from representation the respondent provided to L. F. in family litigation between L. F. and her husband G. F. The respondent also cross-appealed the motion judge’s order respecting costs of the charging order motion.

The motion judge found that the test for imposing charging orders was set out in Weenen v. Biadi, and that the respondent met her onus of satisfying the three parts of the Weenen test, as set out below:

1. the fund or property is in existence at the time the order is granted (the “existence of the property component”);

2. the property was recovered or preserved through the instrumentality of the lawyer (the “preservation of the property component”); and

3. there must be evidence that the client cannot or will not pay the lawyer’s fees (the “risk of non-payment component”).

ISSUES:

(1) Did the motion judge err in finding that the existence of the property component of the Weenen test was satisfied?

(2) Did the motion judge err in finding that the preservation of the property component of the Weenen test was satisfied?

(3) Did the motion judge err in finding that the risk of non-payment component of the Weenen test was satisfied?

(4) Did the motion judge err by failing to consider the competing equities when imposing the charging order?

(5) (Cross-Appeal) Did the motion judge err in failing to provide sufficient reasons relating to costs?

HOLDING:

Appeal and cross-appeal dismissed.

REASONING:

(1) No.

The Court held the motion judge was correct to consider s. 34(2) of the Solicitors Act, which provided: “A conveyance made to defeat or which may operate to defeat a charge under subsection (1) is, unless made to a person who purchased the property for value in good faith and without notice of the charge, void against the charge.” The Court rejected L. F.’s argument that s. 34(2) was inapplicable because it only applied to transfers that occur after charging orders are in effect – there was nothing in the language of s. 34(2) that restricted it to charges already made.

The Court also rejected L.F.’s argument that the charging order was invalid because it was made while her interest in the Property remained uncertain. Specifically, the Court held a solicitor’s charge is “intrinsically declaratory in nature”, and that declarations of charge can be granted in relation to amounts or property that may materialize in the future.

(2) No.

L. F. argued that before a finding could be made that property was “recovered or preserved through the instrumentality of the solicitor” within the meaning of s. 34(1) of the Solicitors Act, the solicitor’s contribution had to be found to be a “substantial and integral part in the recovery or preservation of assets to which the charging order might apply”. She argued that the motion judge’s finding that the respondent “was instrumental to some extent in preserving the equity in the asset” fell short, and therefore the motion judge erred in finding that the preservation of the property component of the Weenen test had been satisfied.

In rejecting L. F.’s argument, the Court held that it was not troubled by the fact that the motion judge did not describe the respondent’s contribution as “substantial and integral”. The Court held a judge is presumed to know the law and was not obliged to use that phrase. Moreover, given the natural meaning of the term, if a judge found that a contribution was “instrumental”, it could be taken as a given that the judge effectively concluded that the contribution was substantial and integral, unless there were persuasive indications to the contrary.

(3) No.

In her counterclaim, L. F. claimed that rather than owing the respondent money for fees, she was owed $2,000,000 as the result of the respondent’s alleged negligence relating to the retainer. Accordingly, the Court held it was obvious that L. F. was refusing to pay, and it was therefore open to the motion judge to make the finding that she did.

(4) No.

A charging order is a discretionary order that “will not be granted if it would offend the principles of equity, either by reason of the conduct of the solicitor or unfairness to the creditors by allowing the charging order to have effect”. The Court held the motion judge considered the relevant equities before exercising her discretion to issue the charging order.

(5) No.

The reasons provided by the motion judge relating to the costs order were not insufficient. Although the motion judge did not explain why she was not granting immediate costs to the respondent despite her success in securing a charging order, the reasons for the costs order were evident from the record as a whole.


SHORT CIVIL DECISIONS

Sasso v. Sasso, 2022 ONCA 339

[Benotto, Miller and Copeland JJ.A]

COUNSEL:

P. B. Cozzi, for the appellant

A. Bettencourt and J. Karjanmaa, for the respondent

Keywords: Wills and Estates, Estate Trustees, Compensation

Madison Homes Cornell Rouge Limited v. Jiang, 2022 ONCA 351

[Lauwers, Nordheimer and Zarnett JJ.A.]

COUNSEL:

R. He and Y. Yuan, for the appellant

S. Greaves, for respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Misrepresentation, Damages, Civil Procedure, Summary Judgment, Hembruff v. Ontario Municipal Employees Retirement Board (2005), 78 O.R. (3d) 561 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 549 and [2006] S.C.C.A. No. 3

Curnew v. Loo, 2022 ONCA 341

[Lauwers, Nordheimer and Zarnett JJ.A.]

COUNSEL:

J. M. Natale, for the appellant

J. W. Thomas and S. Wouters, for the respondents

Keywords: Civil Procedure, Striking Pleadings, Substantial Indemnity Costs

Flex Park Inc. v. Covello, 2022 ONCA 347

[Lauwers, Nordheimer and Zarnett JJ.A.]

COUNSEL:

I. C., acting in person

C. A. Mills and M. Dusseault, for the respondent

Keywords: Contracts, Real Property, Mortgages, Fraud, Civil Procedure, Default Judgements, Adjournment, Unconscionable Transactions Relief Act, R.S.O. 1990, c. U.2, Palmer v. The Queen, [1980] 1 S.C.R. 759


Scarlato v. Buzbuzian, 2022 ONCA 352

[Benotto, Miller and Copeland JJ.A.]

COUNSEL:

A. S. Schorr, for the appellant

N. Holmberg, for the respondents

Keywords: Breach of Contract, Settlement Agreements, Estoppel, Civil Procedure, Summary Judgment, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273

Hume v. 11534599 Canada Corp., 2022 ONCA 360

[Huscroft, Miller and George JJ.A.]

COUNSEL:

R. D’Mello, for the appellant

E. Peritz, for the respondents

Keywords: Civil Procedure, Appeals, Quashing Appeals, Removal of Lawyer of Record

Fazl v. Home Trust Company, 2022 ONCA 356

[Benotto, Miller and Copeland JJ.A.]

COUNSEL:

H. F., appearing in person

A. Melfi, for the respondent A. W.

D. Peat, for the respondent 2256157 Ontario Ltd.

J. Riewald, for the respondent Home Trust Company

J. S.G. Macdonald, for the respondent G. M.

Keywords: Civil Procedure, Litigation Guardians, Summary Judgment, Adjournments, Substitute Decisions Act, 1992, S.O. 1992, c. 30

Anthony v. Cundari, 2022 ONCA 363

[Benotto, Miller and Copeland JJ.A.]

COUNSEL:

G.P.A., appearing in person

R. Gandotra, for the respondent

Keywords: Real Property, Adverse Possession, Civil Procedure, Issue Estoppel, Res Judicata

Public Guardian and Trustee v. Zammit, 2022 ONCA 371

[Huscroft, Thorburn and George JJ.A.]

COUNSEL:

M. Tubie, for the appellant M.Z.

P. Z., acting in person

P. Geddie, for the respondent

Keywords: Civil Procedure, Appeals, Mootness, Transmission of Interest, Rules of Civil Procedure, Rule 11