Canada: Court Of Appeal Summaries (June 22-26, 2015)

Last Updated: July 2 2015
Article by John Polyzogopoulos

Hello everyone. Below are summaries of this week's OCA civil decisions (non-criminal). There was a decision this week involving an interesting, but ultimately unsuccessful, claim for civil conspiracy in an airline pilot union dispute; the Court of Appeal confirmed that for a claim to survive bankruptcy under subsection 178(1)(d) of the Bankruptcy and Insolvency Act, any fraud, embezzlement, misappropriation or defalcation on the part of the bankrupt debtor must have occurred in the context of a fiduciary relationship with the creditor; there is an administrative law decision in the context of the setting of natural gas prices by the Ontario Energy Board; other topics covered include the power of the court to compel a plaintiff to undergo a medical examination and prescriptive easements.

Special mention goes to our own Ian Epstein who successfully resisted an appeal from a decision of a motions judge to dismiss the claim against our client as disclosing no reasonable cause of action.

Berry v Pulley, 2015 ONCA 449

[Hoy A.C.J.O., Watt and Brown JJ.A.]


Zarnett, G. D. Smith and P. R. Merchant for the appellants

S. Waller and L. Storms for the respondents

B. Shell and S. Sagle forN the third party respondent

Keywords: Torts, Unlawful Act Conspiracy, Loss of Chance, Labour Law, Union Members' Right to Dissent, Pilots, Standard of Review, Palpable and Overriding Error


In the late 1980s, the trade union Canadian Airline Pilots Association ("CALPA") initiated a process to merge pilot seniority lists at Air Canada and five regional airlines. An arbitrator ultimately composed the final list, which required Air Canada's agreement to be implemented. Within days after the list was finalized, Air Canada pilots voted to leave CALPA and join a new union called the Air Canada Pilots Association ("ACPA"). The merged seniority list was not implemented. Air Ontario pilots launched a class proceeding against six sub-classes of Air Canada defendants alleging they had committed the tort of unlawful act conspiracy. The plaintiffs claimed damages for expenses incurred in creating the merged list and for the loss of chance to implement the list. The trial judge dismissed the plaintiffs' claims and the plaintiffs appealed.


(1) Did the "right to dissent" permit the defendants in sub-class six to frustrate the implementation of the arbitration award?

(2) Did the trial judge err in finding that the members of sub-classes two and four committed no unlawful acts?

(3) Did the trial judge err in her causation analysis?

(4) Did the trial judge err by not awarding merger expense damages of $150,280?

Holding: Appeal dismissed. The plaintiffs will pay the defendants costs in the agreed upon amount of $175,000, inclusive of disbursements and HST.


To establish unlawful act conspiracy, a plaintiff must demonstrate that the defendants acted in concert by agreement or with a common design; the defendants' conduct was unlawful; the defendants' conduct was directed towards the plaintiff; the defendants should have known that damage to the plaintiff was likely to result; and the defendants' conduct caused injury to the plaintiff. The second and last factors are contested here.

The Court of Appeal addressed the above issues as follows:

(1) The plaintiffs argued sub-group six breached the union contract by resisting implementation of the merged list and thereby acted unlawfully, which if found, would satisfy step two of the test for unlawful act conspiracy. However, sub-class six did not breach their contracts with CALPA by avoiding implementation of the arbitrator's list. CALPA's Constitution and Merger Policy did not expressly require their members to act to implement a merged seniority list, nor to refrain from impeding implementation of a list. Rather, as the trial judge found, CALPA and not the union members themselves had the primary responsibility for implementing the merger. Further, members of a union have the right to dissent against CALPA and union officials. Given the statutory right of union members to choose their union and the labour law principle affording them a right to dissent, this court will not read a term such as the one alleged by the plaintiffs into the union contract. However, note that sub-groups one through five did not have a right to dissent against the union because they were made up of union officers or members who worked on behalf of officers.

(2) The trial judge found that sub-groups two and four acted under the control and direction or others, and did not owe duties of loyalty to CALPA. She also said it was not clear that their conduct constituted a breach of contract. She ultimately found that they did not commit unlawful acts by breaching the union's Merger Policy. The plaintiffs' appeal argument did not address this key finding. The plaintiffs did not explain how the trial judge erred in her interpretation of the Merger Policy.

(3) The plaintiffs argued that the trial judge erred in concluding that, even without the defendants' unlawful acts, the chance of implementing the merged seniority lists was not more than de minimis. They argued the trial judge should have speculated about what would have happened if CALPA's single employer application had been successful; they believed that if the application had succeeded, the chance of implementing the list would have been real and significant. However, the defendants were not required to support a single employer application. The Merger Policy did not call for or require a Simple Employer application. The judge was only required to consider what would have happened but for the defendants' wrongful conduct. She was not required to speculate about what would have happened but for lawful conduct. Therefore, she was correct that it was not appropriate to speculate that the Board's decision may have been different in the single employer application if the Air Canada pilots had supported the application.

(4) The trial judge found that the defendants should have known that injury to the plaintiffs was likely to result from their unlawful conduct. She also found that the plaintiffs' merger expenses were $150,280. However, she concluded that regardless of their conduct, the merged seniority list would not have been implemented. The plaintiffs did not establish that the defendants' wrongful conduct caused the loss of the plaintiffs' merger-related expenses. Therefore, they were not entitled to the merger expenses.

Korea Data Systems (USA), Inc. v. Aamazing Technologies Inc., 2015 ONCA 465

[Hoy A.C.J.O., Cronk and Watt JJ.A.]


S.C. Hutchinson, M.R. Gourlay and S.M. Foda, for the appellant Korea Data Systems (USA), Inc.

J.T. Curry and C. Pauchulo, for the respondent Jay Tien Chiang

Francis and M.A. Freake, for Mendlowitz & Associates Inc., in its capacity as the Trustee of the Estate of Jay Tien Chiang, a Bankrupt

No one appearing for the respondent Christina Chiang

Keywords: Bankruptcy and Insolvency, Bankruptcy and Insolvency Act, RSC 1985 c. B-3, ss. 178(2), Debts discharged by Bankruptcy, Exceptions, Meaning of Fraud, Embezzlement, Misappropriation or Defalcation While Acting in a Fiduciary Capacity


Korea Data Systems USA ("KDS USA") and Korea Data Systems Korea ("KDS Korea") sued ATC, Aamazing and the Chiang brothers in California, for breach of a settlement agreement and amounts owed on unpaid invoices. The Chiang brothers were held personally liable to KDS Korea for the outstanding amount owed under the settlement agreement. The California court did not find that either of the Chiang brothers owed a fiduciary duty to KDS Korea or KDS USA or that they had breached such a duty.

Jay Chiang filed for bankruptcy in Ontario, and declared the California judgment as a liability. KDS and KDS USA sought a declaration that Jay Chiang's debt under the California judgment would survive his discharge from bankruptcy under ss. 178(1)(d) of the Bankruptcy and Insolvency Act ("BIA"). The KDS companies obtained leave under the BIA to continue the Enforcement Action against Jay Chiang and to enforce any judgment obtained, on the basis that Jay Chiang's judgment debt to them was grounded in fraud.

Subsection 178(1)(d) of the BIA provides that an order of discharge does not release the bankrupt from "any debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity or, in the Province of Quebec, as a trustee or administrator of the property of others."

The trial judge held that ss. 178(1)(d) applies only if the bankrupt owed a fiduciary duty to the creditor who seeks relief under ss. 178(1)(d). Since Jay Chiang owed no fiduciary duty to KDS USA, ss. 178(1)(d) was not available to that company to obtain a declaration that his debt to it under the California judgment would survive his discharge from bankruptcy.


Whether the trial judge's construction of ss. 178(1)(d) of the BIA was correct.

Holding: Appeal dismissed. The trial judge's construction of s 178(1)(d) was correct.


The trial judge's interpretation of ss. 178(1)(d) comports with the purposes of the BIA: the equitable distribution of a bankrupt's assets among creditors inter se and the financial rehabilitation of insolvent individuals.

The exceptions set out in ss. 178(1) are to be construed narrowly and applied only in clear cases. A creditor cannot bring its claim within the exception set out in ss. 178(1)(d) when that claim arose out of the bankrupt's breach of a fiduciary duty to a third party. To hold otherwise would expand the reach of ss. 178(1)(d) beyond what it exists to protect – the relationship between a vulnerable creditor and a fiduciary debtor.

The purpose of ss. 178(1)(d) is to prevent a bankrupt from avoiding debts and liabilities to a vulnerable creditor where the bankrupt was entrusted, in a fiduciary capacity, with money or property belonging to that creditor. The law imposes obligations on fiduciaries to protect only those beneficiaries to whom fiduciary obligations are owed.

Subsection 172(2) and s. 173 of the BIA seek to ensure that dishonest debtors do not benefit from dishonesty by requiring the court to refuse or suspend a bankrupt's discharge in bankruptcy, or to grant a discharge on terms. The existence of a breach of a fiduciary duty is not a prerequisite to the application of these sections. Accordingly, it was unnecessary to expand the scope of the term "fiduciary capacity" in ss. 178(1)(d) in order to prevent a bankrupt from profiting under the BIA from his or her own fraud or fraudulent breach of trust.

Subsection 178(1)(d) is available to a creditor of a bankrupt if the bankrupt has abused his or her fiduciary position with the claiming creditor by incurring a debt to the creditor through fraud, embezzlement, misappropriation or defalcation, in violation of the bankrupt's fiduciary duty to the claiming creditor.

A successful claim under ss. 178(1)(d) requires two elements: i) the debt at issue must be linked to the bankrupt's fraud, embezzlement, misappropriation or defalcation; and ii) the fraud, embezzlement, misappropriation or defalcation must occur in the context of a fiduciary relationship. The second element was not satisfied in this case. The decision in the California court contains no finding that Jay Chiang owed or breached any fiduciary duty in respect of either KDS company, and KDS USA concedes that Jay Chiang did not owe it a fiduciary duty.

Union Gas Limited v Ontario Energy Board, 2015 ONCA 453

[Hoy A.C.J.O., and Simmons and Tulloch JJ.A.]


Jackson, C. Smith and A. Smith, for the appellant.

Millar, for the respondent.

Keywords: Administrative Law, Ontario Energy Board, Ontario Energy Board Act, Incentive Regulation Mechanism (IRM) Agreement, Standard of Review, Reasonableness, Retroactive Ratemaking, Deferral Account


In 2007, Union Gas entered into an Incentive Regulation Mechanism ("IRM") Agreement with parties representing its major stakeholders and constituents (the "interveners") to provide for a five-year period of incentive regulation. By order made in January 2008, the Ontario Energy Board (the "Board") approved the IRM Agreement. The IRM Agreement contained an Earnings Sharing Mechanism ("ESM"), under which Union Gas agreed to share utility earnings greater than two per cent above its regulated rate of return with ratepayers.

As part of the IRM Agreement, Union Gas agreed to reduce its revenue requirement by $4.3 million. In exchange for this reduction, four deferral accounts previously established by the Board were eliminated. As a result of the elimination of the four deferral accounts, under the IRM Agreement, Union Gas was able to keep net revenues that would previously have been recorded in those accounts, subject to the ESM.

In April 2012, Union Gas applied to the Board for an order amending the rates it would charge to its customers for natural gas as of October 2012. Union Gas' April 2012 application for a rate order included a request to share with ratepayers $22 million in 2011 revenues Union Gas had earned using TransCanada Pipelines Limited's ("TCPL") Firm Transportation Risk Alleviation Mechanism ("FT-RAM") program under the ESM. Union Gas classified its 2011 FT-RAM earnings as upstream transportation optimization revenues – that is, as utility earnings that would previously have been recorded in one of the eliminated deferral accounts.

During Union Gas' 2012 application, the Board directed that Union Gas' classification of its 2011 FT-RAM revenues be dealt with as a preliminary issue in the proceeding. The Board found that Union Gas had used the FT-RAM program to generate profits on its upstream transportation portfolio on a planned basis – whereas Union Gas' past upstream transportation optimization activities had occurred on an unplanned basis. The Board rejected Union Gas' classification of its 2011 FT-RAM revenues as utility earnings and concluded instead that the disputed $22 million should be classified as "gas supply cost reductions". Though gas supply cost reduction revenues would ordinarily be passed through to ratepayers, the Board directed that 90 per cent of the revenue should be credited to ratepayers and that 10 per cent should be credited to Union Gas as an incentive for generating the revenues.

Union Gas appealed the Board's decision on the preliminary issue to the Divisional Court. In a split decision, the Divisional Court found that the Board's decision was reasonable.

Union Gas appeals the Divisional Court's decision and argues that the Board acted unreasonably in reclassifying Union Gas' 2011 FT-RAM revenues as gas supply cost reductions.


(1) Was it reasonable for the Board to decide to treat Union Gas' 2011 FT-RAM revenues as encumbered and therefore subject to further disposition by the Board in the form of a credit to ratepayers?

(A) Did the Board's decision contravene the principle against retroactive ratemaking?

(B) Was it reasonable for the Board to decide that Union Gas did not treat the upstream transportation optimization revenues appropriately in 2011 in the context of Union Gas' existing IRM framework?

Holding: The appeal is dismissed. Neither party requested costs and none are awarded.


(1) Yes, the Board's decision was reasonable. Decisions of the Board are reviewable on appeal to the Divisional Court on a standard of reasonableness.

The Board's decision was nothing more than a review of the nature of the revenues brought forward for sharing under the ESM and a determination that some of such revenues did not qualify for that treatment. Accordingly, the Board's decision cannot be seen as unreasonable on the basis that it was a departure from the IRM Agreement. Nor was its conclusion that the FT-RAM revenues did not qualify for sharing under the ESM unreasonable.

In these circumstances, where the ESM determination was inherently retrospective, and where Union Gas failed to disclose in advance the true nature of its intended 2011 FT-RAM activities, it was not unreasonable for the Board to treat Union Gas' 2011 FT-RAM revenues as encumbered and therefore subject to further disposition by the Board in the form of a credit to ratepayers.

(A) No, the Board's decision did not contravene the principle against retroactive ratemaking. Generally, absent express statutory authorization, a regulator such as the Board may not exercise its rate-making authority retroactively or retrospectively. This rule exists because retroactive ratemaking redistributes the cost of utility services by asking today's customers to pay for the expenses incurred by yesterday's customers.

In Bell Canada v. Bell Alliant Regional Communications, Abella J held that the disposition of funds in a deferral account for one-time credits to ratepayers did not constitute impermissible retroactive ratemaking. In particular, Abella J. stated it was known from the beginning that funds accumulated in the deferral accounts at issue were subject to further disposition by the regulator in the form of credits to ratepayers.

More recently, in Atco Gas, the court explained that "[s]imply because a ratemaking decision has an impact on a past rate does not mean it is an impermissible retroactive decision".

Union Gas knew, from the outset of the IRM Agreement, that the Board's ESM determination would impact rates. The ESM determination under the IRM Agreement was thus inherently retrospective – and Union Gas always knew that.

The fact that the FT-RAM revenues were not segregated in a special deferral account relating specifically to gas supply cost reductions does not mean that the Board engaged in impermissible retroactive ratemaking by reclassifying them as gas supply cost reductions. Rather, the FT-RAM revenues brought forward by Union for disposition as part of the ESM proceeding were effectively "encumbered" and subject to further disposition by the Board.

(B) Yes, the Board's decision that Union Gas did not treat the upstream transportation optimization revenues appropriately in 2011 in the context of Union Gas' existing IRM framework was reasonable.

The Board's findings that monies generated by Union Gas' 2011 FT-RAM activities were generated on a planned basis, and were thus distinguishable from upstream transportation optimization revenues that would have fallen within the eliminated deferral accounts. These were findings of fact that were not subject to review on appeal to the Divisional Court.

The Board made a specific finding that a clear distinction can be made between Union's unplanned transactional services and Union's planned FT-RAM activities. As such, the Court agreed with the Board that in circumstances where Union Gas knew that it was generating its 2011 FT-RAM revenues on a planned basis, Union Gas must be fixed with knowledge, as of the date it generated those revenues, that the Board would be obliged to characterize them as a Y factor, or pass-through item, under the IRM Agreement.

Although the Board had permitted profit-taking on optimization activities in the past, on the Board's findings, the prior optimization activities involved disposing of unplanned surpluses of firm transportation. The 2011 FT-RAM activities were qualitatively different because they involved disposing of planned surpluses of firm transportation. Prior to the 2012 hearings, Union Gas was the only party in a position to know that – and must also be taken to have known that – its actions were inconsistent with the regulatory principle inherent in the IRM Agreement.

While the Board may not have expressly stated that Union Gas was acquiring excess firm transportation during 2011, this message was clear on a fair reading of its decision on the preliminary issue in combination with its decision on the 2012 cost of service proceeding.

Ziebenhaus v. Bahlieda, 2015 ONCA 471

[MacFarland, Rouleau and Lauwers JJ.A.]


Rouben, T. P. Boland and D. W. Romaine, for the appellants.

A. Olah and R. A. Betts, for the respondent Mount St. Louis Moonstone Ski Resort Ltd.

Keywords: Torts, Personal Injury, Courts of Justice Act, s. 105, Rules of Civil Procedure, r. 33, Definition of "Health Practitioner", Medical Examinations, Inherent Jurisdiction


Alexander Ziebenhaus (the "appellant") was injured while skiing on a school trip at the Mount St. Louis Moonstone Ski Resort. He allegedly suffered a brain injury and has claimed damages for loss of future income and loss of competitive advantage in the workplace, as well as other heads of damages (no pun intended). Counsel for the appellant arranged for a neuropsychological and psychovocational assessment. The resulting report stated that his vocational potential and ability to pursue competitive work were "guarded". Mount St. Louis Moonstone Ski Resort Ltd. (the "respondent") wanted Ziebenhaus to undergo another vocational assessment by an assessor it had selected. It accordingly brought a motion for an order to that effect. The motion judge allowed the motion.

The parties agree that a vocational assessor is not a "health practitioner" as defined in ss. 105(1) of the Courts of Justice Act ("Act") and that there is no provision in the Act or in the Rules of Civil Procedure empowering a court to order that a party submit to an examination by a vocational assessor.

The motion judge's order was appealed to the Divisional Court. That court affirmed the order. It agreed with the motion judge's holding that the Court has inherent jurisdiction to order assessments and examinations not specifically addressed by s. 105 of the Act.


Did the Divisional Court err when it affirmed the motion judge's decision that the Superior Court of Justice has inherent jurisdiction to order a party to undergo an assessment by someone who is not a "health practitioner", as defined in s. 105 of the Act?


Appeal dismissed. By agreement of the parties, the respondent would be awarded costs on a partial indemnity basis, fixed in the amount of $25,000, inclusive of disbursements and HST.


No. There is no basis to interfere with the Divisional Court's decision. That court fully canvassed the submission that an order for examination by an individual who is not a "health practitioner" would be contrary to the intent of s. 105 of the Act. In doing so, that court also addressed the conflicting lower court jurisprudence on the issue of the court's jurisdiction to order such an examination. Previously, one line of cases interpreted s. 105 of the Act and Rule 33 narrowly, allowing courts to order such an examination only if a health practitioner required it as a diagnostic aid. The other line of cases suggested that a court could exercise its inherent jurisdiction to order such an assessment, to ensure justice between the parties is done.

The language of s. 105 and Rule 33 does not constitute such clear and precise language. The language of these provisions is permissive, and they do not state that a court cannot order an examination by someone who is not a "health practitioner". The Divisional Court was correct in concluding that the health sciences and patient care have evolved to include a wide range of assessments by experts who are not "health practitioners". Such assessments cannot all be characterized as diagnostic aids to the opinion of a "health practitioner". Precluding their use in the litigation context would be contrary to good public policy.

Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466

[Juriansz, Lauwers and Huscroft JJ.A.]


S. Schorr, for the appellant

A.M. Habas, for the respondent

Keywords: Real Estate Law, Prescriptive Easement, Right-of-Way, Real Property Limitations Act

Facts: The appellant owned 842 King Street West, which abuts a right-of-way leading to a public lane depicted in the sketch. The respondent owned the four properties known municipally as 844-850 King Street West, as well as the right-of-way directly behind them.

The appellant's application for a declaration that it had a right-of-way over the private laneway behind 844 to 848 King Street West was dismissed. The application judge concluded that the appellant's predecessors in title had not acquired a prescriptive easement over the laneway on the basis that "there was more than 20 years of use of the private right-of-way but the use was by licence and not as of right."


Whether the appellant's predecessors in title to 842 King Street West acquired from the respondent's predecessor in title a prescriptive easement over the depicted right-of-way.

Holding: Appeal allowed.

Reasoning: There is no evidence to support the application judge's factual finding that the respondent's predecessor in title permitted his neighbours to cross over his property by way of licence and not as of right. The appellant's application for a prescriptive easement was on the basis that its predecessors in title exercised a continuous, uninterrupted, open and peaceful use of the private laneway as a right-of-way for vehicular and other traffic from the rear of its property westward to the public laneway, without the owner's express consent, for over 20 years before the first registration of the property in the Land Titles System in 2003, taking into account s. 31 of the Real Property Limitation Act, R.S.O. 1990, c. L.15

Once the appellant had proven facts that support the inference of acquiescence in 20 years of use, the evidentiary burden passed to the respondent to lead evidence to rebut the inference by proving the use was by permission. The evidentiary record is that the appellant's predecessors in title had used the laneway in a continuous, uninterrupted, open and peaceful manner without objection by Mr. Chan for over 20 years. This evidence gives rise to an inference of acquiescence by Mr. Chan. As there was no evidence to rebut the inference, the application should have been allowed.

Osztrovics Estate v Osztrovics Farms Ltd,

2015 ONCA 463

[Brown J.A. (In Chambers)]


J. McNish, for the moving parties

Horkins, for the responding party.

Keywords: Endorsement, Bankruptcy and Insolvency Law, Bankruptcy and Insolvency Act, ss. 163,164 and 193, Bankruptcy and Insolvency General Rules, ss. 31(1), Trustee in Bankruptcy, Ontario Business Corporations Act, s. 134, Operational Conflict, Federal Paramountcy, Oral Examinations, Written Interrogatories, Deference, Costs


The applicants, Osztrovics Farms Ltd. ("OFL"), Elysia Osztrovics and Violet Osztrovics (collectively the "Osztrovics Applicants"), sought leave pursuant to ss. 193(e) of the Bankruptcy and Insolvency Act ("BIA"), to appeal from the order of Wilton-Siegel J. (the "Order"). The Order dismissed the Osztrovics Applicants' appeal from the order of Registrar Short and granted the cross-appeal of PricewaterhouseCoopers Inc., the Trustee in bankruptcy of the estate of Victor Osztrovics (the "Respondent"). The estate of Victor Osztrovics holds shares in OFL.

OFL operates a tobacco farm. Elysia and Violet are directors of OFL, as was the bankrupt, Victor, prior to his bankruptcy. On November 20, 2012, the Trustee wrote to OFL's counsel requesting all information and documents relating to OFL's operations. The Osztrovics Applicants refused that request. The Registrar concluded that the language of ss. 163 and 164 was sufficiently broad to encompass documents of a corporation respecting its business and ordered the disclosure of the information. The Registrar also ordered the examinations of Elysia and Violet for the same reason.

The Applicants appealed the Registrar's order, and the Trustee cross-appealed that part of the order, which required Violet to answer written interrogatories instead of submitting to an oral examination. The motion judge dismissed the Osztrovics Applicants' appeal, granted the Trustee's cross-appeal, and set aside the Registrar's costs order, instead awarding the Trustee its partial indemnity costs.


(1) Did the motions judge err by interpreting the Trustee's right to access under BIA ss. 163 and 164 as one which entitled the Trustee "to disclosure from a private corporation of such information as is relevant to permit a valuation of shares of a bankrupt in such corporation"?

(2) Did the motions judge err by finding no operational conflict exists between the OBCA s. 134 and the BIA ss. 163 – 164?

(3) Did the motions judge exceed his jurisdiction as an appeal judge by setting aside the confidentiality agreement in the Registrar's order, since that term of the order was not under appeal?

(4) Did the motions judge err by authorizing the examination of Violet and requiring that the examination be an oral one, instead of one conducted by way of written interrogatories?

(5) Did the motions judge err by interfering with the Registrar's costs decision?

Holding: The appeal is dismissed. The partial indemnity costs of $12,180.68 sought by the Trustee on this leave motion are too high. A fair and reasonable award of costs to the Trustee is $6,000.


(1) No. In this case, the issue raised by the applicants concerning the scope of BIA s. 164 is not prima facie meritorious. BIA s. 164(1) authorizes a trustee to require a person to produce any documents or records in his possession "of any kind relating in whole or in part to the bankrupt, his dealings or property." The motions judge found that a Trustee is entitled to disclosure from a private corporation of such information as is relevant to permit a valuation of shares owned by a bankrupt in such corporation. There is no viable argument that the motions judge erred in affirming the Trustee's authority to demand the information sought from OFL in the specific circumstances of this case.

(2) No. It was the Registrar who first raised the issue of the possible application of the doctrine of federal paramountcy, but he concluded that no operational conflict existed. Putting to one side the question of why the applicants would wish to raise this as an issue on appeal when a finding of operational conflict would result in the federal legislation – i.e. BIA s. 164 – prevailing, there is no viable argument that the motion judge erred in principle when he concluded that there is also no conflict between the provisions of s. 134 of the OBCA and the BIA. As the Appellants note, s. 134 merely codifies the obligations of directors to act in the best interests of a corporation. Any determination that directors may make regarding the best interests of a corporation is necessarily restricted by the obligation of the corporation to comply with statutorily mandated powers, whether derived from federal or provincial statutes.

(3) No. There is no merit in this argument: the Osztrovics Applicants' Notice of Motion by way of Appeal asked to set aside the Registrar's decision in its entirety. Accordingly, the motions judge had the jurisdiction to set aside the confidentiality agreement.

(4) No. The Registrar determined "Violet was a 'person who had knowledge of the affairs of [the] bankrupt'," and the applicants advance no argument as to how the Registrar erred in making that finding of fact. Further, the Trustee made its initial demand for information about OFL on November 20, 2012. Over the past 2.5 years the Osztrovics Applicants have refused to provide the requested information. Their refusal has prevented the Trustee from valuing the most important asset in the bankrupt's estate – his shares in OFL. To permit an appeal would further delay the administration of an estate whose affairs already have been impeded unduly by the applicants' refusals.

(5) No. Regardless of any merits in that argument, the correctness of the costs award does not raise an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole.

Starkman v Home Trust Company, 2015 ONCA 436

[Brown J.A. (In Chambers)]


M. Starkman, acting in person

Schumann, appearing as duty counsel

Jackson, for the responding party

Keywords: Endorsement, Real Estate Law, Mortgages, Default, Stay Pending Appeal, RJR-McDonald Inc v Canada (AG) test, Serious Question, Irreparable Harm, Balance of Convenience


The appellant, Rhonda Starkman, owns a residential property in Toronto over which Home Trust Company holds first and second mortgages. The first mortgage matured in April 2014 and was not renewed or repaid. The second mortgage secured an Equity Line Visa Card and was payable on demand. In December 2010, Home Trust was granted default judgment in respect of the debt due under the second mortgage and in March 2011 it obtained a writ of possession for the property. It did not act upon the writ at that time.

In June 2011, Starkman commenced this action against Home Trust, calling into question the accuracy of the calculations as to the amounts owing under the mortgages. Home Trust counter-claimed and successfully moved for summary judgment for possession of the property and a declaration of the amounts owing under both mortgages.

Starkman moved on an urgent basis for relief which amounts to a stay of the execution of the writ of possession pending the hearing of her appeal and the setting aside of the Sheriff's notice to vacate the property.


Should Starkman be granted a stay of the enforcement of the writ of possession pending her appeal?

Holding: Motion dismissed.


To obtain a stay of judgment pending appeal, Starkman had to satisfy the three part test set out in RJR-McDonald Inc v Canada (AG) (1994): (1) there is a serious question to be determined on the appeal; (2) she will suffer irreparable harm if the stay is denied; and (3) the balance of convenience favours granting a stay.

(1) Serious question: Starkman submitted in her appeal two serious questions in respect to the issuance of a writ of possession: 1) that the Sheriff's notice to evict was defective in form, and 2) that the motion judge erred in satisfying that all persons in actual possession of the property had been notified. The judge found that the first submission amounted to a clerical error, and not one that would mislead Starkman. Accordingly, the notice to evict was found to be operative. The judge then found that, though Starkman alleged that it was her adult children that were in possession, the evidence contradicted this submission. One child lives in British Columbia and the other is at Queen's University. In any event, the children had known since February of 2011 of Home Trust's attempts to take possession of the property.

(2) Irreparable harm: The judge found that Starkman faced the prospect of losing her property solely as a result of promises she had made to Home Trust. Starkman had borrowed money from Home Trust on the security of the mortgages. She had agreed that if she defaulted on her obligations to repay the mortgage, the mortgagees could take possession of her property. Thus the judge did not find irreparable harm.

(3) Balance of convenience: The balance of convenience favoured Home Trust. Starkman had admitted significant indebtedness and arrears to Home Trust, and she has not made a mortgage payment in over four years.

For these reasons the judge found that it would not be in the interests of justice to grant Starkman a stay of the enforcement of the writ of possession.

Fermar Paving Limited v 1471872 Ontario Inc (Downsview Group), 2015 ONCA 461

[MacFarland, Rouleau and Lauwers JJ.A.]


C. Chang, for the appellant

Stephens and A. White, for the respondent The Downsview Group

Keywords: Endorsement, Limitation Periods, Discoverability, Civil Procedure

P.A.R.C.E.L. Inc v Acquaviva, 2015 ONCA 459

[Cronk, Gillese and Rouleau JJ.A]


Crosner, for the appellants

Saverino, for the respondents

Keywords: Costs Endorsement

Westerhof v Gee Estate, 2015 ONCA 456

[Laskin, Sharpe and Simmons JJ.A.]


Poproski, L. Ferro and R. Zigler, for the appellant Jeremy Westerhof

C. Dickson and K. J. Raddatz, for the respondent the Estate of William Gee

Rollo and D. Visschedyk, for the appellant James Baker

J. Pape and J. Nairn, for the respondent Daniel McCallum

Halpern and B. Cameron, for the intervener the Ontario Trial Lawyers Association

D. Black, J. R. Morse and J. J. Morris, for the intervener The Holland Access to Justice in Medical Malpractice Group

A. Olah and S. Libin, for the intervener the Canadian Defence Lawyers Association

R. Rothstein and J.C. Killey, for the intervener The Advocates' Society

Keywords: Costs Endorsement

Welsh v Ashley, 2015 ONCA 464

[Juriansz, MacFarland and Lauwers JJ.A.]


Stark, for the appellant

Howie, for the respondents Michael Ashley and Michele Ashley

Keywords: Addendum, Declaration, Surviving Spouse, Pension Benefits

Bellehumeur v Windsor Factory Supply Ltd, 2015 ONCA 473

[MacFarland, Rouleau and Lauwers JJ.A.]


Renaud, for the appellant

Kavanaugh, Q.C. and A. Vannelli, for the respondent

Keywords: Endorsement, Employment Law, Just Cause, Mental Disability, Ontario Human Rights Code, Violent Threats

Nobili v Economical Mutual Insurance Company, 2015 ONCA 472

[MacFarland, Lauwers and Huscroft JJ.A.]


Nobili, acting in person

Reid, for the respondent Economical Mutual Insurance Company

Epstein of Blaney McMurtry LLP, for the respondent Lerner

A. Antoniou, for the respondent Sahian and Fitch\ B. Kates, for the respondent Schabas

Keywords: Endorsement, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21

Economical Mutual Insurance Company v State Farm Mutual Automobile Insurance Company, 2015 ONCA 485

[MacFarland, Lauwers and Huscroft JJ.A.]


Strigberger and M. Bolejszo, for the appellant

Donaldson and C. Flynn, for the respondent

Keywords: Endorsement, Torts, Professional Negligence, Insurance Broker

R v AMV, 2015 ONCA 457

[Laskin, Gillese and van Rensburg JJ.A.]


Wilkinson and J. Baron, for the appellant

Derwa, for the respondent

Keywords: Criminal Law, Sexual Assault, Limiting Instructions, Adverse Inference Instructions, Alleged Admission, Date of Offence

R v Hilan, 2015 ONCA 455

[Simmons, Tulloch and Huscroft JJ.A.]


D. Boxall and J. Doody, for the appellant

Shallow, for the respondent

Keywords: Endorsement, Criminal Law, Sexual Assault, Criminal Code, ss. 430(d), Mischief

R v JK, 2015 ONCA 458

[Laskin, Gillese and van Rensburg JJ.A.]


Friesen, for the appellant

Greenspan and J. Baron, for the respondent

Keywords: Criminal Law, Sexual Assault, Breaking and Entering, Sex Offender Information Act (SOIRA), Designated Offence

R v Mahmood, 2015 ONCA 442

[Watt J.A. (In Chambers)]


Mahmood, acting in person

Carley, for the respondent

Keywords: Criminal Law, Tax Evasion, Self-Represented, Criminal Code, s. 684, Legal Aid

R v Rutigliano, 2015 ONCA 452

[Simmons, Tulloch and Pardu JJ.A. ]


Hubbard and B. Wassenaar, for the appellant

Hutchison, O. Wigderson and Matthew Gourlay, for Mike Rutigliano

Pierson, acting in person

Keywords: Criminal Law, Solicitor-Client Privilege, Abuse of Process, Wiretap

R v Salmon, 2015 ONCA 469

[MacPherson, Simmons and LaForme JJ.A.]


Lockyer and Marie Henein, for the appellant

Tweney and E. Nakelsky, for the respondent

Keywords: Criminal Law, Endorsement, Manslaughter, Supreme Court of Canada Act, ss 43(1.1), Fresh Evidence

R v Owen, 2015 ONCA 462

[Hoy A.C.J.O., Feldman and Rouleau JJ.A.]


Carew, for the appellant

Gorda, for the respondent

Keywords: Criminal Law, Fraud, Forgery, Sentencing, Jury Instruction, Prior Discreditable Conduct, Hearsay

R v Moreira, 2015 ONCA 467

[Laskin, Gillese and van Rensburg JJ.A.]


Sarantis, for the appellant

Skerkowski, for the respondent

Keywords: Criminal Law, Endorsement, Circumstantial Evidence

R v CM, 2015 ONCA 468

[Laskin, Gillese and van Rensburg JJ.A.]


Fraser, for the appellant

Patton, for the respondent

Keywords: Criminal Law, Endorsement

R v Fratia, 2015 ONCA 460

[Doherty, Cronk and Huscroft JJ.A.]


Segal, for the appellant

Siebenmorgen and Mabel Lai, for the respondent

Keywords: Criminal Law, Fraud, Sentence, Parity Principl

R v Tang, 2015 ONCA 470

[Doherty, Hourigan and Huscroft JJ.A.]


Tang, appearing in person

Lacy, appearing as duty counsel

Keywords: Endorsement, Criminal Law, Fraud, Investment Scheme, Criminal Code, s. 684, Opinion Evidence, Rowbotham Application

R v Dezainde, 2015 ONCA 474

[MacPherson, Simmons and LaForme JJ.A.]


Furgiuele, for the appellant

Healey, for the respondent

Keywords: Endorsement, Criminal Law, Trafficking, Reasonable Grounds

R v Poitras, 2015 ONCA 475

[Cronk, Pardu and Benotto JJ.A.]


Foord, for the appellant

Hurman, for the respondent

Keywords: Endorsement, Criminal Law, Summary Conviction Appeal Court, Assault, Non-Consensual Fight

R v Coady, 2015 ONCA 479

[MacPherson, Simmons and LaForme JJ.A.]


Fedorowicz, for the appellant

Mannen, for the respondent

Keywords: Criminal Law, Endorsement, Breaking and Entering, Assault with a Weapon, Uttering a Threat, Eye Witness

R v Grewal, 2015 ONCA 482

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


Kerr, for the appellant

Lai, for the respondent

Keywords: Criminal Law, Endorsement, Aggravated Assault, Ineffective Assistance of Counsel

R v Hart, 2015 ONCA 480

[MacPherson, Simmons, and LaForme JJ.A.]


Wheeler, for the appellant

Lacy and A. Chiodo, for the respondent

Keywords: Criminal Law, Endorsement, Mental Illness, Non-Custodial Sentence

R v NK, 2015 ONCA 486

[Laskin, Gillese and van Rensburg JJ.A.]


Moore, for the appellant

Rawluk, for the respondent

Keywords: Criminal Law, Endorsement, Sexual Assault

R v Rice, 2015 ONCA 478

[MacPherson, Simmons and LaForme JJ.A.]


Flanagan, for the appellant

Lafontaine, for the respondent

Keywords: Criminal Law, Endorsement, Excessive Force, Criminal Code, s. 25

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Events from this Firm
7 Nov 2019, Conference, Ontario, Canada

On November 7, David T. Ullmann will be a speaker at the CBA Insolvency Law Conference.

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