Hello.

There were several substantive decisions released this week by the Court of Appeal. Topics covered included challenging decisions of a voluntary religious association, solicitor liens, limitation periods in the LTD context, enforcement of foreign judgments, adverse possession, and an application for reconsideration of an appeal relating to the assessment of legal accounts in the condominium law context.

Lea Nebel and I will be chairing a CLE at the OBA entitled “Top Appeals of 2019”. The program will be a dinner program to take place at the OBA on Thursday, February 27, 2020, so please mark your calendars! Three decisions will be featured. The first is Darmar Farms v Sygenta, which deals with the potential new tort of “premature commercialization” and pure economic loss in product liability context. The second is The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. The third is Wright v Urbanek, which deals with the scope of the doctrines of abuse of process and collateral attack.

Until next week.

Table of Contents

Civil Decisions

Thompson v Casey , 2020 ONCA 5

Keywords: Contracts, Debts, Assignments, Corporations, Oppression, Civil Procedure, Applications, Orders, Trial of an Issue, Rules of Civil ProcedureCourts of Justice Act, RSO 1990, c C43, s138, Rules 1.04(1.1), 38.10(1)

Bosnali v Michaud , 2020 ONCA 7

Keywords: Contracts, Solicitor and Client, Solicitors Liens, Priority, Set-Off, Solicitors Act, RSO 1990 c S15, s 34, Rules of Practice, RRO 1980, Reg 540, Martin v McColl (1957), 10 DLR (2d) 284 (Ont CA), Durall Construction Ltd. v HJ O’Connell Ltd. (1977), 16 OR (2d) 713 (HC), Guergis v Hamilton, 2016 ONSC 4428, Bell v Wright (1985), 24 SCR 656, Diamond v Western Realty Co. (1925), 28 OWN 120 (CA), Poulin v Pettitt (1992), 10 CPC (3d) 29 (Ont CJ (Gen Div))

Aga v Ethiopian Orthodox Tewahedo Church of Canada , 2020 ONCA 10

Keywords: Corporations, Non-Share Capital Corporations, Voluntary Associations, Contracts, Summary Judgment, Corporations Act, RSO 1990, c C38, Canadian Charter of Rights and Freedoms, s2(a), Courts of Justice Act, RSO 1990, c C43, s134(1)(a), Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, Ahenakew et al. v MacKay et al. (2004), 71 O.R. (3d) 130 (CA)

Clarke v Sun Life Assurance Company of Canada , 2020 ONCA 11

Keywords: Contracts, Insurance, Long-Term Disability, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s 5, Pepper v Sanmina-Sci Systems (Canada) Inc., 2017 ONCA 730, Western Life Assurance Company v Penttila, 2019 ONSC 14

HMB Holdings Limited v Antigua and Barbuda, 2020 ONCA 12

Keywords: Civil Procedure, Conflict of Laws, Foreign Judgments, Enforcement, Jurisdiction, Statutory Interpretation, Enforcement of Judgments Act, RSO 1990, c R5, ss 3(b) and (e), Chevron Corp. v Yaiguaji, 2015 SCC 42, Club Resorts Ltd. v Van Breda, 2012 SCC 17

McKay v Vautour, 2020 ONCA 16

Keywords: Real Property, Adverse Possession, Land Titles Act, RSO 1990, c L5, s 51, Pepper v Brooker, 2017 ONCA 532, Barbour v Bailey, 2016 ONCA 98

Temedio v Niagara North Condominium Corporation No. 6, 2020 ONCA 17

Keywords: Real Property, Condominiums, Contracts, Solicitor and Client, Legal Fees, Assessments, Special Circumstances, Condominium Act, 1998, SO 1998, c 19, s 134

Short Civil Decisions

Khan v Krylov & Company, 2020 ONCA 13

Keywords: Civil Procedure, Summary Judgment

Conroy v Vassel, 2020 ONCA 14

Keywords: Family Law, Self-Representation, Costs

Criminal Decisions

R v Mc, 2020 ONCA 2 (Publication Ban)

Keywords: Criminal Law, Child Pornography, Canadian Charter of Rights and Freedoms, s 7, 10(b), and 24(2), R v Grant, 2009 SCC 32

R v W, 2020 ONCA 3 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Kidnapping, Uttering Death Threats, Lord Coke’s Principle

R v M, 2020 ONCA 6

Keywords: Criminal Law, Second Degree Murder, Borowski v Canada (Attorney General), [1989] 1 SCR 342

R v E, 2020 ONCA 8

Keywords: Criminal Law, Drug Offences

R v M, 2020 ONCA 9

Keywords: Criminal Law, Firearms Offences, Possession of Property Obtained by Crime, Drug Offences, Canadian Charter of Rights and Freedoms, s 7, 8, 10(b), and 24(2), R v Grant, 2009 SCC 32

R v J, ONCA 2020 15 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, R v TC, (2004), 72 OR (3d) 623

Ontario Review Board Decisions

G (Re), 2020 ONCA 4

Keywords: Ontario Review Board, Not Criminally Responsible, Assault, Forcible Confinement, Interveners, Victim Impact Statement, Criminal Code, s 722


CIVIL DECISIONS

Thompson v Casey, 2020 ONCA 5

[Brown, Huscroft, and Trotter JJA]

COUNSEL:

C Salazar, for the appellant

KJ Ralston, for the respondent MEC

Keywords: Contracts, Debts, Assignments, Corporations, Oppression, Civil Procedure, Applications, Orders, Trial of an Issue, Rules of Civil ProcedureCourts of Justice Act, RSO 1990, c C43, s138, Rules 1.04(1.1), 38.10(1)

FACTS:

1007937 Ontario Inc. (the “Corporation”) was sold by RO to JM who, in partial payment, executed a promissory note for $130,000 in favour of the Corporation which immediately assigned the note to its accountant BT (the appellant) who had lent money to RO but not the Corporation. The Corporation’s bank and secured creditor refused to provide a comfort letter to the Corporation to enable the sale, yet RO proceeded to sell the business to JM anyway. When the bank discovered this, it called its loan and gave notice of its intention to realize on its security. RO’s common-law spouse, the respondent MEC, had guaranteed the Corporation’s debt. She paid the bank and received an assignment of the bank’s security over the assets of the Corporation. MEC proceeded to sue the Corporation seeking indemnity for the amount she paid to the bank. MEC also sued RO and JM seeking payment under the security agreement assigned to her by the bank and damages against RO for oppressive conduct. BT sued MEC, RO, the Corporation, and JM seeking various forms of relief because JM had stopped making payments on the note to BT and both proceedings commenced by MEC had not yet gone to trial. BT brought an application to recover under the promissory note, which was dismissed on a without-prejudice basis.

ISSUES:

(1) Did the trial judge err in concluding that in order to determine the claim of priority asserted by BT to the proceeds of JM’s promissory note, BT first had to demonstrate the validity of the assignment of the note from the Corporation?

(2) Did the trial judge err in disposing of the application?

HOLDING:

Appeal allowed in part.

REASONING:

(1) No. The application judge explained why, on the evidence and submissions, she was not able to determine the issue of the validity of the assignment of the promissory note on the application. She indicated to the parties that she was available to further consider the issue and dismissed the application on a without-prejudice basis to allow BT to bring further proceedings to prove the validity of the assignment. It was far from clear that MEC was out of time to challenge BT’s claim to priority to the proceeds from the promissory note.

(2) Yes. While an application judge has broad discretion under r. 38.10(1) of the Rules of Civil Procedure in deciding how to dispose of an application, the application judge erred in principle in making the specific disposition that she did. She identified an issue that required further consideration on the merits but dismissed the application on a without-prejudice basis, thereby deferring the determination of that issue to a new proceeding, of which she seized herself. By proceeding this way, the application judge’s disposition ran counter to: (i) the principle expressed by s. 138 of the Courts of Justice Act to avoid, as far as possible, the multiplicity of proceedings; and (ii) the related principle found in r. 1.04(1.1) that the court shall make orders that are proportionate to the importance and complexity of the issues. The application judge should have directed the trial of an issue, or of the whole application, pursuant to r. 38.10(1)(b) and remained seized of the matter.


Bosnali v Michaud, 2020 ONCA 7

[Brown, Huscroft, and Roberts JJA]

COUNSEL:

FJ Burns and A Cocunato, for the appellant, Lofranco Corriero, plaintiff’s former counsel

NE Kostyniuk, for the respondents RM and Central Graphics and Container Group Ltd.

CB, acting in person

Keywords: Contracts, Solicitor and Client, Solicitors Liens, Priority, Set-Off, Solicitors Act, RSO 1990 c S15, s 34, Rules of Practice, RRO 1980, Reg 540, Martin v McColl (1957), 10 DLR (2d) 284 (Ont CA), Durall Construction Ltd. v HJ O’Connell Ltd. (1977), 16 OR (2d) 713 (HC), Guergis v Hamilton, 2016 ONSC 4428, Bell v Wright (1985), 24 SCR 656, Diamond v Western Realty Co. (1925), 28 OWN 120 (CA), Poulin v Pettitt (1992), 10 CPC (3d) 29 (Ont CJ (Gen Div))

FACTS:

The appellant solicitors, Lofranco Corriero Personal Injury Lawyers, were counsel to the respondent, CB, in a seven-week jury MVA trial against the respondents, RM and Central Graphics and Container Group Ltd. (the “Respondents”). The appellant solicitors appeal from the motion judge’s dismissal of their request for a declaration that, pursuant to s. 34(1) of the Solicitors Act (the “Act”), they had a first charge on the monies awarded to CB at trial in priority to any right of set-off claimed by the Respondents. Section 34(1) of the Act authorizes the court to issue a declaration that a solicitor is entitled to “a charge on the property recovered or preserved through the instrumentality of the solicitor for the solicitor’s fees, costs, charges and disbursements in the proceeding.”

ISSUE:

Did the motion judge err in holding that there was no property recovered on which a charge could be imposed?

HOLDING:

Appeal dismissed.

REASONING:

No. As a general principle, if a judgment on its face creates mutual debt obligations from each party to the other, the debt obligations are set-off or netted against each other to determine which party can enforce the net amount against the other, absent language to the contrary in the judgment.

In the present case, the trial judge incorporated into the express language of her Judgment the results of the process of netting out the itemized obligations of each party to the other. The Judgment thereby created an enforceable debt obligation owed by CB to the Respondents. By its terms, the Judgment did not create any debt obligation enforceable by CB against the Respondents. CB could not “recover” any money under the Judgment by standard enforcement mechanisms without first satisfying the countervailing Judgment-based claims by the Respondents, who were entitled to assert legal set-off as the debts were mutual as between the parties. As a result of the Judgment, CB became the judgment debtor of the Respondents.

The appellant solicitors’ argument that they could obtain a charging order on the payment obligations of the Respondents to CB “in priority” to the Respondents’ entitlements against CB rested upon on a rule of practice that was repealed 35 years ago. Rule 673 of the Rules of Practice, R.R.O. 1980, Reg. 540, stated: “A set-off of damages or costs between parties shall not be allowed to the prejudice of the solicitor’s lien for costs in the particular action in which the set-off is sought, but interlocutory costs in the same action awarded to the adverse party may be set off notwithstanding any lien.” Rule 673 was not carried forward into the then new 1985 Rules of Civil Procedure.

As a result, whether a client recovered property through the instrumentality of his lawyer for the purposes of s. 34(1) of the Act is subject to the general principle that mutual debt obligations created by a judgment are set-off against each other to ascertain which party can enforce the net amount against the other. In the circumstances of the present case, the appellant solicitors could stand in no better position than CB vis-à-vis the Respondents, and their right to a charging order or lien was subject to the right of set-off in the same action. Therefore, the appellant solicitors did not satisfy the conditions for obtaining a charging order under s. 34(1) of the Act because their client did not recover any property through the instrumentality of their work. Consequently, the motion judge properly dismissed the motion.


Aga v Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10

[van Rensburg, Paciocco, and Thorburn JJA]

COUNSEL:

A Colangelo, for the appellants

GE Wood, for the respondent

Keywords: Corporations, Non-Share Capital Corporations, Voluntary Associations, Contracts, Summary Judgment, Corporations Act, RSO 1990, c C38, Canadian Charter of Rights and Freedoms, s2(a), Courts of Justice Act, RSO 1990, c C43, s134(1)(a), Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26, Ahenakew et al. v MacKay et al. (2004), 71 O.R. (3d) 130 (CA)

FACTS:

The appellants are five former members of the congregation of the Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral (the “Congregation). The appellants were expelled from the Congregation and claim they were given no particulars of the allegations against them leading to their expulsion, no opportunity to respond to the allegations, and no opportunity to make representations in respect of their expulsion.

The appellants therefore brought an action against the Church, which is incorporated under the Corporations Act, as well as members of its leadership (together referred to as “the respondents”), claiming the Church failed to follow their own internal procedures in deciding to expel them from the Congregation and their right to natural justice and freedom to practice their religion as set out in s. 2(a) of the Charter was violated in expelling them from the Congregation.

The respondents brought a motion for summary judgment. The motion judge held there was no underlying contract and therefore no justiciable issue in respect of the claim that the respondents failed to follow internal church procedures in expelling them. She therefore granted the motion for summary judgment. The motion judge concluded that this case was analogous to the Supreme Court of Canada’s decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, where the Court held that, as a general principle, judicial review is not available for the decisions of voluntary religious organizations absent the existence of an underlying legal right.

The appellants appealed.

ISSUES:

(1) Did the motion judge err in finding that there was no evidence of an underlying contract between the parties?

(2) If there is a contract, is there a genuine issue for trial regarding whether the contract provide a process for expelling the appellants from the Congregation and whether any of those contractual provisions breached?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes. When voluntary associations have a written constitution and by-laws, they constitute a contract setting out the rights and obligations of members and the organization re: Ahenakew et al. v MacKay et al. The appellants applied to be members of the Congregation and offered consideration in the form of monthly payments. Upon approval of their applications, the appellants became members of the Congregation. They entered into a mutual agreement to be part of the Congregation and abide by the governing rules, whether or not they were specifically aware of the terms. Once it is established that a contract exists, an expectation of procedural fairness may attach as a way of enforcing the terms of a contract.

(2) Yes. It is not clear whether the respondents followed the provisions in the Constitution and By-Laws, which constitutes a genuine issue for trial. The Church’s Constitution requires: advice and education; consultation and canon; and temporary suspension with warning before the cancellation of membership. The By-Laws outline disciplinary measures, including: advice, warning or financial penalty; loss of membership status; and excommunication. The respondents failed to adduce information in their control in respect of the imposition of suspension and expulsion, how expulsion is defined in the Constitution and/or By-Laws, and how, if at all, expulsion differs from loss of membership. Despite the Court’s authority under subsection 134(4) of the Courts of Justice Act to draw inferences of fact, given that the respondents have not filed the necessary evidence to enable the Court to determine the rules of expulsion or whether they were followed, it was not possible to determine whether the contractual terms were breached and the case was remitted back to the Superior Court.


Clarke v Sun Life Assurance Company of Canada, 2020 ONCA 11

[Brown, Huscroft, and Trotter JJA]

COUNSEL:

L Plumpton and D Shiff, for the appellant

A Chapnik, for the respondent

Keywords: Contracts, Insurance, Long-Term Disability, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s 5, Pepper v Sanmina-Sci Systems (Canada) Inc., 2017 ONCA 730, Western Life Assurance Company v Penttila, 2019 ONSC 14

FACTS:

Sun Life Assurance Company of Canada brought a summary judgment motion to dismiss, as statute-barred, C’s action for long-term disability benefits under a group policy of insurance. The motion judge dismissed the motion and, instead, declared that C’s action was not statute-barred, as the limitation period for the action commenced on June 19, 2017, a little over a year before C issued her claim. Sun Life appealed, asking the court to set aside the order below and to dismiss C’s action.

ISSUES:

(1) Did the motion judge err in determining the date on which injury, loss or damage occurred?

(2) Did the motion judge err in considering whether a proceeding would be an appropriate means to remedy the loss?

HOLDING:

Appeal allowed in part.

REASONING:

(1) Yes. The motion judge erred in law by failing to apply the principle stated by the Court on previous occasions that an insured has a cause of action for breach of contract against her insurer when the insurer stops paying long-term disability benefits. The motion judge started her analysis under the Limitations Act, 2002 by considering the date the injury, loss or damage occurred: ss. 5(1)(a)(i) and (b). The motion judge did not accept Sun Life’s submission that the February 24, 2014 letter in which C was first told her file was closed (but there was no clear denial of her claim) marked the time at which C first knew that an injury, loss or damage had occurred. The motion judge ultimately found that the limitation period commenced with the denial communicated to C by Sun Life on June 19, 2017, notwithstanding that that letter also did not use language of denial.

(2) Yes. The motion judge failed to conduct the analysis required by the Limitations Act, 2002, ss. 5(1)(a)(iv) and (b). Although the motion judge noted that C’s three-year delay in providing additional medical information was “unexplained” and her evidence was “silent as to her knowledge, intentions or assumptions about the “matter”, the motion judge was not prepared to draw any inferences from this absence of evidence. Read as a whole, the court found that her reasons disclose that she was not able to determine when C first knew that a proceeding would be an appropriate means to seek to remedy her injury. Accordingly, the final determination that C’s claim arose on June 19, 2017 was set aside. However, the Court declined to determine the issue of the “appropriate means” aspect of the discoverability test using its fact-finding powers on on the appeal. The issue of discoverability was therefore ordered to proceed to trial.


HMB Holdings Limited v Antigua and Barbuda, 2020 ONCA 12

[Simmons, Pardu, and Nordheimer JJA]

COUNSEL:

L Caylor and N Butz, for the appellant

S Tenai and S Sood, for the respondent

Keywords: Civil Procedure, Conflict of Laws, Foreign Judgments, Enforcement, Jurisdiction, Statutory Interpretation, Enforcement of Judgments Act, RSO 1990, c R5, ss 3(b) and (e), Chevron Corp. v Yaiguaji, 2015 SCC 42, Club Resorts Ltd. v Van Breda, 2012 SCC 17

FACTS:

Antigua and Barbuda (Antigua) expropriated property owned by H.M.B. Holdings Limited (HMB). The Judicial Committee of the Privy Council ordered Antigua to compensate HMB for the expropriation (Privy Council judgment). HMB brought a common law action to enforce the Privy Council judgment in British Columbia. The British Columbia Supreme Court granted HMB’s action (British Columbia judgment). HMB then applied, pursuant to the Reciprocal Enforcement of Judgments Act (REJA), to register the British Columbia judgment in Ontario. The Ontario Superior Court of Justice dismissed HMB’s application.

The judge refused registration on the bases that section 3(b) of the REJA required — as a prerequisite to registration in Ontario — Antigua to have been carrying on business in British Columbia at the time of the lawsuit there; and section 3(g) of the REJA, which bars registration under the REJA if “a judgment debtor would have a good defence if an action were brought on the original judgment.” The parties disputed whether “original judgment” referred to the British Columbia judgment or the Privy Council judgment. The judge decided that “original judgment” meant the Privy Council judgment.

ISSUES:

Did the application judge err in failing to:

(1)  apply the legal criteria for “carrying on business” more liberally, to find Antigua was carrying on business in British Columbia at the relevant time; or

(2)  interpret “original judgment” to mean the British Columbia judgment, not the Privy Council judgment?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. This is a finding of fact. The application judge noted that to find that a party is carrying on business within a province, he or she must have a meaningful presence and that presence must be accomplished by a degree of business activity over a sustained period of time. The Authorized Representatives in British Columbia were not agents or employees of Antigua, and Antigua had no physical presence in British Columbia. Furthermore, deference is owed to the factual finding of the application judge. There was no palpable and overriding error, so there was no basis for the appellate intervention.

(2) Not necessary to consider.

Dissent (Nordheimer JA):

The dissenting judge would have allowed the appeal based on the following reasons:

(1) The dissenting judge would have concluded that Antigua was carrying on business in British Columbia, and the application judge erred by applying a restrictive interpretation as to what constitutes carrying on business in the context of the principles underlying the reciprocal enforcement of foreign judgements. The application judge erred in failing to apply the principles from the Supreme Court of Canada in Chevron Corp. v. Yaiguaji, and instead applied the principles set out in Club Resorts Ltd. v Van Breda. The latter should not have been applied to this case because the judgment that the creditor sought to enforce is itself a judgment issued for the enforcement of a foreign judgment. Courts must take a different approach to the question of jurisdiction when considering the enforcement of a foreign judgment as opposed to a claim of first instance.

Further, a physical presence is not necessary to conclude Antigua is carrying on business in British Columbia.

(2) With respect to the meaning of the original judgment, the dissenting judge concluded that it refers to the British Columbia judgment. To determine otherwise would be to yield a result where the word “original” is given a different meaning in s. 3(g) than it clearly bears in the definition section of the legislation. The application judge erred by interpreting “original judgment” so as to distinguish between different types of judgments made by the reciprocating jurisdiction, a distinction that the legislator did not make. His interpretation undermined the purpose of the REJA, which is to facilitate the enforcement of judgments properly issued by reciprocating jurisdictions.

Since the original judgment, in this context, means the British Columbia judgment, Antigua did not have any defence to the action that resulted in that judgment.


McKay v Vautour, 2020 ONCA 16

[Roberts, Paciocco, and Harvison Young JJA]

COUNSEL:

JS Winny, for the appellant

WHP Madorin, QC, for the respondent

Keywords: Real Property, Adverse Possession, Land Titles Act, RSO 1990, c L5, s 51, Pepper v Brooker, 2017 ONCA 532, Barbour v Bailey, 2016 ONCA 98

FACTS:

This dispute arose when the respondent removed part of a paddock or horse fence that was situated about 8 feet to the west of the actual boundary line and replaced it with a fence located on the surveyed boundary line. The appellant claimed possessory title over the strip of land.

Both parties purchased their respective properties after the properties were transferred into the land titles system in June 2003. As a result of Section 51 of the Land Titles Act, the appellant had the burden to establish that the use of the disputed strip by her predecessors in title met the well-established criteria in Pepper v. Brooker. The trial judge concluded that the appellant failed to prove her claim for adverse possession. There was no evidence from her predecessors in title to establish the requisite use during the statutory period. Evidence was given by the daughter of the respondent’s predecessor in title, but it was insufficient to establish such use.

ISSUES:

(1) Did the trial judge incorrectly make an adverse inference against possession by the appellant because of the absence of evidence from her predecessors in title?

(2) Did the trial judge fail to consider the affidavit evidence filed at the trial conducted under the Simplified Rules?

(3) Did the trial judge erroneously exclude as hearsay evidence concerning the location of the property boundary?

(4) Did the trial judge incorrectly apply the law of adverse possession?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The Court found that the trial judge made no adverse inference. Rather, he determined that the appellant had not met her onus of establishing adverse possession because of the absence of cogent evidence supporting her claim.

(2) No. The Court saw no basis for concluding that the trial judge failed to consider the affidavit evidence that was filed. His reasons demonstrated that he considered the points raised in the affidavits in conjunction with the cross-examination, as he was required to do, and that he specifically referenced exhibits to those affidavits.

(3) No. Even if the trial judge had erred in rejecting the hearsay evidence, the Court did not see this error as having any material outcome on the trial.

(4) No. The Court saw no error in the trial judge’s application of the doctrine of adverse possession. There was no clear or direct evidence that the parties’ predecessors in title treated the paddock fence as the boundary line. The southerly continuation of the paddock fence supports the characterization of the paddock fence as an enclosure of a paddock within the entirety of the respondent’s five lot boundaries, rather than simply as a boundary line between the parties’ respective properties. Moreover, the evidence supported the existence of two fences – the paddock fence and another wooden fence located at the upper portion of the actual boundary line. It was open to the trial judge to conclude that the wooden fence displaced any inference that the paddock fence constituted and was treated as the boundary line.

Further, the Court held that the trial judge was entitled to conclude that the absence of evidence from the appellant’s predecessors in title or any other evidence that would prove the requisite use of adverse possession for the statutory period was fatal to the appellant’s claim. There was no evidence that the appellant or any of her predecessors in title took any such exclusory steps. The true owner is in constructive possession of the entire property even when in actual possession of only a part of it. Accordingly, “[f]airly trivial acts of dominion”, such as the paddock fence repairs, may demonstrate that the true owner had not been excluded: Barbour v Bailey.


Temedio v Niagara North Condominium Corporation No. 6, 2020 ONCA 17

[Paciocco, Harvison Young, and Zarnett JJA]

COUNSEL:

E Savas, for the appellant

BJ Rutherford, for the respondents

Keywords: Real Property, Condominiums, Contracts, Solicitor and Client, Legal Fees, Assessments, Special Circumstances, Condominium Act, 1998, SO 1998, c 19, s 134

FACTS:

The respondents / moving party unsuccessfully defended an appeal brought by JT before the Court. In that appeal decision, the Court ordered that the application judge erred by failing to find special circumstances entitling JT to conduct an otherwise out-of-time assessment of legal accounts that were incurred by the respondents / moving party, but JT was obliged to pay pursuant to s 134 of the Condominium Act and the condominium by-laws governing JT’s ownership of her condominium.

The respondents / moving parties asked the Court to exercise its exceptional authority to reconsider its special circumstance finding. The respondents / moving parties contended that reconsideration was clearly in the interests of justice because the Court relied on a special circumstance that JT had not put before the application judge or the Court previously, and that the respondents / moving parties could have answered conclusively had it known this circumstance was going to be considered.

ISSUE:

Should the Court exercise its exceptional authority to reconsider its special circumstance finding?

HOLDING:

Application denied.

REASONING:

No. The appeal was from an application in which JT argued that special circumstances existed because the accounts she was being told to pay were excessive. In the appeal, JT pleaded and argued that the application judge erred in not finding special circumstances. The reasonableness of the accounts as a special consideration was therefore squarely before the Court. Even if it had been true that the respondents / moving parties were not reasonably alerted to the materiality of the application judge’s costs decision during the appeal, the Court held that the information that the respondents / moving parties seek to rely on could not have affected the result. First, the challenges the respondents / moving parties made to the propriety and reasonableness of the costs decision of the application judge represented an improper collateral attack on that decision, which was never appealed nor reviewed. Second, proof that the respondents / moving parties made offers to settle the litigation that JT did not accept provided no answer to whether there were special circumstances to justify an assessment, whatever the relevance of the offers to settle might be on an ultimate assessment.


SHORT CIVIL DECISIONS

Khan v Krylov & Company, 2020 ONCA 13

[Simmons, Benotto, and Harvison Young JJA]

COUNSEL:

ZUK, self-represented

BM Martin and V Jovanovic, for the respondent / appellant by way of cross-appeal Krylov & Company

Keywords: Civil Procedure, Summary Judgment

Conroy v Vassel, 2020 ONCA 14

[Sharpe, Juriansz, and Trotter JJA]

COUNSEL:

DC, in person

J Figliomeni and J Waxman, for the respondent

Keywords: Family Law, Self-Representation, Costs


CRIMINAL DECISIONS

R v Mc, 2020 ONCA 2 (Publication Ban)

[Strathy CJO, Doherty, and Tulloch JJA]

COUNSEL:

MC Halfyard, for the appellant

S Shaikh, for the respondent

Keywords: Criminal Law, Child Pornography, Canadian Charter of Rights and Freedoms, s 7, 10(b), and 24(2), R v Grant, 2009 SCC 32

R v W, 2020 ONCA 3 (Publication Ban)

[Benotto, Brown, and Paciocco JJA]

COUNSEL:

B Snell, for the appellant

PG Cowle, for the respondent

Keywords: Criminal Law, Sexual Assault, Kidnapping, Uttering Death Threats, Lord Coke’s Principle

R v M, 2020 ONCA 6

[Watt, Brown, and Nordheimer JJA]

COUNSEL:

DC Santoro, for MM

No one appearing for the Crown

Keywords: Criminal Law, Second Degree Murder, Borowski v Canada (Attorney General), [1989] 1 SCR 342

R v E, 2020 ONCA 8

[Hoy ACJO, van Rensburg, and Hourigan JJA]

COUNSEL:

R Pillay, for the appellant

D Quayat, for the respondent

Keywords: Criminal Law, Drug Offences

R v M, 2020 ONCA 9

[Brown, Huscroft, and Trotter JJA]

COUNSEL:

HL Krongold, for the appellant

J Pearson, for the respondent

Keywords: Criminal Law, Firearms Offences, Possession of Property Obtained by Crime, Drug Offences, Canadian Charter of Rights and Freedoms, s 7, 8, 10(b), and 24(2), R v Grant, 2009 SCC 32

R v J, 2020 ONCA 15 (Publication Ban)

[Pardu, Roberts, and Thorburn JJA]

COUNSEL:

N Jamaldin, for the appellant

RK Lockhard, for the respondent

Keywords: Criminal Law, Sexual Assault, R v TC, (2004), 72 OR (3d) 623


ONTARIO REVIEW BOARD DECISIONS

G (Re), 2020 ONCA 4

[Strathy CJO]

COUNSEL:

A Szigeti, for the appellant / responding party

J Stuart, for the respondent / responding party, the Attorney General of Ontario

M Warner, for the respondent / responding party, the Person in Charge of the Centre for Addiction and Mental Health (CAMH)

M Davies, for the moving party (proposed intervener), the Empowerment Council

Keywords: Ontario Review Board, Not Criminally Responsible, Assault, Forcible Confinement, Interveners, Victim Impact Statement, Criminal Code, s 722