Good evening,
Following are the summaries of this week's civil decisions of the Court of Appeal for Ontario.
In a lengthy decision in Tremblay v Ottawa (Police Services Board), the Court set aside an award of damages against the Ottawa police for false arrest, unlawful detention and imprisonment, Charter violations, and negligent investigation. What is noteworthy is that this is a rare example of an appeal being granted mostly as a result of errors of fact rather than errors of law.
Other topics covered this week included whether the deliberations of certain municipal committees were required to be open to the public, municipal liability, spousal support, setting aside default judgments and dismissals for delay, and the age-old problem of determining whether an order is final or interlocutory.
Until next week,
Blaney McMurtry LLP
Tel: 416 593 2953
https://www.blaney.com/lawyers/john-polyzogopoulos
Civil Decisions
Tremblay v Ottawa (Police Services Board), 2018 ONCA 497
[Strathy CJO, Juriansz and Huscroft JJ A]
Counsel:
JJ Wright, for the appellants
L Greenspon, for the respondents
Keywords: Torts, Negligent Investigation, False Arrest, False Imprisonment, Breach of Charter Rights, Probable Cause, Intimidation, Meady v Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 OAC 173, [2007] 3 SCR 129, 495793 Ontario Ltd. v Barclay, (2016) 132 OR (3d) 241 (CA), R v Golub, (1997) 34 OR (3d) 743 (CA), Criminal Code, RSC, 1985, C-46, section 495, Canadian Charter of Rights and Freedoms, Sections 7, 8, 9
Facts:
This appeal arises from an action commenced by the respondents, RT and his spouse JM, against the Ottawa Police Services Board ("OPS"), Sergeant JA and other named police officers, for damages for the arrest of RT and the execution of a public safety firearms warrant at the respondents' home on October 17, 2006. The action alleged negligent investigation, false arrest and false imprisonment, and breach of their rights under ss. 7, 8 and 9 of the Canadian Charter of Rights and Freedoms.
RT and JM were involved in a dispute with their neighbours, who alleged a drainage pipe RT and JM had installed was causing flooding in their homes. Six neighbours brought a civil suit against RT and JM. Some of the neighbours claimed that Tremblay subsequently engaged in intimidating behaviour toward them and their families.
The OPS arrested RT for intimidation and mischief. Having confirmed that RT had a licence and registration to possess three firearms, the OPS also obtained a public safety firearms warrant. Police entered and searched the respondents' home, seizing the firearms and ammunition.
At his criminal trial, RT was acquitted of intimidation and of criminal harassment. He was found guilty of mischief.
The trial judge found Sgt. JA, who was the investigating officer, and the OPS, as Sgt. JA's employer, liable to JT for negligent investigation, false arrest, unlawful detention and unlawful imprisonment and breaches of RT's rights under ss. 7, 8, and 9 of the Charter. She found Sgt. JA and the OPS liable for breach of JM's rights under s. 8 of the Charter, relating to the search of the home. She awarded RT and JM over $50,000 in damages. The police appealed.
Issues:
(1) Did the trial judge err by defining the standard of care for negligent investigation in the absence of any evidence?
(2) Did the trial judge impose a standard of care inconsistent with the established jurisprudence?
(3) Did the trial judge err by finding that there were not reasonable and probably grounds to arrest for intimidation under s. 495(1) of the Criminal Code?
(4) Did the trial judge err in finding that the public interest limitation in s. 495(2) applies?
(5) Did the trial judge err in failing to apply s. 495(3)?
Held: Appeal allowed.
Reasons:
(1) Yes. The trial judge erred by defining the standard of care for negligent investigation in the absence of any evidence.
Neither side called expert evidence at trial. After the close of evidence, the respondents brought a motion to reopen their case, so they could tender expert evidence to support their claim against the OPS based on inadequate training and supervision. In refusing the motion, the trial judge observed that without expert evidence as to the standard of care applicable to police services in Ontario in 2006 their "claim in negligence against the OPS Board was doomed to fail".
The trial judge took a different view with regard to the claim in negligence against Sgt. JA. While recognizing the general rule that expert evidence is required to establish the standard of care in a negligent investigation claim, she concluded this case fell within the exception for actions involving non-technical matters within the knowledge and experience of the trier of fact.
In doing so, she relied on the decision of this court in Meady v Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 OAC 173. However, Meady can be distinguished because the trial judge in that case had a wealth of other evidence available to him with respect to the police policies, procedures and standards that applied at the time; evidence not available in the case at bar. To fill that vacuum, the trial judge drew on two sources to guide her determination of the standard of care, both problematic.
First, the trial judge referred to the "Declaration of Principles" set out in s. 1 of the Police Services Act, RSO 1990, c. P.15 which she described, at para. 65, as "somewhat instructive of the standard for care owed by a police officer to members of the community". The principle set out in this statutory provision is far too general to serve as the basis for defining the standard of care in a particular investigation. The general principle does not displace a police officer's authority to make an arrest when grounds to do so exist under s. 495 of the Criminal Code.
Second, the trial judge drew on the actions taken by other officers who had investigated earlier complaints that arose out of the dispute as instructive to how Sgt. JA should have proceeded, including personal interviews with the actors and discussing ways to de-escalate the tension.
Ultimately, the trial judge erred by proceeding to define a standard of care that was without any evidentiary basis, and contrary to the only pertinent evidence before her.
(2) Yes. The trial judge imposed a standard of care inconsistent with the established jurisprudence.
The trial judge held that Sgt. JA had a duty to further investigate the red flags that undermined the reliability of the information he had. The trial judge found that in assessing Sgt. JA's conduct, she was entitled to consider not only the information that Sgt. JA had, but also "the information that he did not have but which he could have had upon simple inquiry." To support this proposition, she cited the decision of Doherty J.A. in R v Golub, (1997) 34 OR (3d) 743 (CA), at para. 21:
In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.
This passage does not support the proposition for which it was cited. The words "all information available" refers to the information the officer had in his possession – not additional information the officer "could have had upon simple inquiry".
In 495793 Ontario Ltd. v Barclay, (2016) 132 OR (3d) 241 (CA) the Court of Appeal reversed a decision that followed an approach similar to that adopted by the trial judge in this case. Notwithstanding the absence of any urgent circumstances, the court pointed out in that case that "the trial judge's criticism of the police for failing to follow-up on, or take steps to become aware of, possible innocent explanations ignores the established jurisprudence that police are not required to exhaust all avenues of investigation, establish that an accused has no defence, or even obtain an accused's version of events."
By proceeding contrary to this well-established principle, the trial judge erred in finding that Sgt. JA was required to take additional investigative steps in light of the red flags she identified.
(3) Yes. The trial judge erred by finding that there were not reasonable and probable grounds to arrest for intimidation under s. 495(1) of the Criminal Code. Had the trial judge focused on the elements of the offence of intimidation, and on the information that was available, she would have concluded that there were reasonable grounds to arrest RT for intimidation. The statements and timeline from P and H provided Sgt. JA with enough information to meet the reasonable and probable grounds standard with respect to these two elements. The trial judge erred in finding there were no reasonable and probable grounds to arrest for intimidation.
(4) Yes. The trial judge erred in finding that the public interest limitation in s. 495(2) of the Criminal Code applied. Section 495(2) places a duty on a police officer who has grounds for arrest under s. 495(1) to not arrest where he or she believes on reasonable grounds that the public interest may be satisfied without arresting the person. The phrase "believes on reasonable grounds" is both a subjective and objective test and both components must be satisfied. The trial judge set out the correct test for s. 495(2), citing Collins. However, it is not clear from the record that Sgt. JA believed on reasonable grounds that the public interest could be satisfied without arresting RT. The subjective component of the test was not satisfied and therefore the trial judge erred in finding s. 495(2) was violated.
(5) Yes. The trial judge erred in failing to apply s. 495(3) of the Criminal Code. Section 495(3)(b) deems an arrest to be lawful notwithstanding s. 495(2) unless the person asserting its application "alleges and establishes", in the proceedings at issue that the police violated s. 495(2). The appellants submit that s. 495(3)(b) required the respondents to specifically allege a breach of s. 495(2) in their statement of claim. Without such notice they come to trial not knowing the case they have to meet.
The respondents submit that s. 495(3) does not require that they specifically plead noncompliance with s. 495(2), but rather, that it is sufficient if the allegation is canvassed in cross-examination at trial. The court did not agree and held that s. 495(3)(b) requires an alleged violation of s. 495(2) be directly put to the police officer who made the arrest. It was not put to Sgt. JA in this case. As there was no separate allegation that s. 495(2) applied, s. 495(3) operated to deem Sgt. JA was acting lawfully when he decided to have Tremblay arrested. The trial judge erred in law by failing to apply the deeming provision of s. 495(3).
Ritchie v Ritchie, 2018 ONCA 486
[Rouleau, van Rensburg and Pardu, JJ A]
Counsel:
GS Joseph and SP Kirby, for the appellant
H Fogelman and C Paterson, for the respondent
Keywords: Family Law, Spousal Support, Calculation of Income, Business Losses, Personal Expenses, Equalization of Net Family Property, Shares, Valuation Procedure, Costs, Offers to Settle
Facts:
The appellant appeals two trial decisions that determined issues unresolved by the parties pursuant to partial minutes of settlement. The issues for trial were:
- Duration and quantum of spousal support;
- Child and spousal support arrears;
- Amount to be paid by the appellant to the respondent to reflect the post-valuation-day increase in the value of her shares in KDL which the respondent had transferred to the appellant;
- Disposition of a recreational property in the United States (the "Allegheny Mountain property");
- Costs.
Issues:
(1) Did the trial judge err by refusing to deduct business losses incurred by a company (KMI) which the appellant's company (KDL) had a majority interest in, in determining the appellant's income for the purpose of calculating spousal support?
(2) Did the trial judge err in her assessment of the change in value of KDL's shares?
(3) Did the trial judge err in her disposition of the Allegheny Mountain property?
(4) Did the trial judge err in determining costs?
Holding: Appeal dismissed.
Reasoning:
(1) No. The trial judge found it impossible to determine the appellant's true income, given all of the inconsistencies in his evidence as well as a lack of relevant, reliable, and cogent information. The appellant hired an expert in business valuation who provided an opinion as to the appellant's income for support purposes. The expert's opinion initially deducted losses generated by KMI and HNDL, another corporation controlled by the appellant. KMI, under the sole direction and control of the appellant, owned a historic building that the appellant, his current spouse, and some of their respective children reside in. KMI had accumulated substantial and ongoing losses which were funded by another of the appellant's companies. The trial judge reasonably held that the business losses incurred by KMI made no financial sense and that there was no economic or commercial reason for the losses except for the personal benefit of the appellant. The court was not bound to accept the appellant's "business judgement" and refused to deduct the losses incurred by KMI in calculating the appellant's income because the losses were incurred entirely and solely for the benefit of the appellant and without the knowledge or consent of the respondent. Cross-examination revealed that the appellant had incorporated another corporation through which to funnel monies that contributed to his income. The trial judge found that it was the responsibility of the appellant to satisfy the court of his real income and relying on an improperly instructed expert report substantially hampered the decision-making process of the court. She also drew an adverse inference from the lack of full and fair disclosure of the appellant's finances. The determination of the appellant's income was reasonable in light of the evidence and thus there was no basis to interfere with it.
(2) No. The court agreed with the trial judge's finding that the losses incurred by KMI should not be factored into the calculation of the change in the value of the KDL shares because KMI could not repay its debt which had continued to escalate from the date of separation and also because the appellant had continued to fund the losses incurred by KMI with income from other corporations. The extent to which a corporation provides personal benefits to a shareholder, which notionally claims losses or a negative value on the balance sheet, can be a relevant factor in the assessment of the value of the shares.
(3) No. The appellant submitted that the trial judge ought to have ordered him to pay $16,557.50 on account of both the Allegheny Mountain trailer and land lease and not just the trailer. The trial judge, however, was not provided with the precise nature of the parties' agreement with respect to the Allegheny Mountain property. The respondent had not had access to the leased land and did not oppose a change to the judgement to include a release of the lease as well as the trailer and so the judgement was amended accordingly. The appellant was ordered to indemnify the respondent for any income tax consequences flowing from the release of the lease.
(4) No. The trial judge awarded costs of $314,566 to the respondent, who had requested costs of over $450,000 on a full indemnity basis. The appellant submitted that the trial judge erred in her costs decision because there was a partial settlement and he did no worse at trial than he would have had he accepted the offer to settle. The appellant, however, did not articulate any basis upon which to disagree with the trial judge's assessment of the offers made by the parties. The offer to settle made by the respondent ignored child and spousal support arrears and ongoing spousal support. It also did not realistically consider any increase in the value of the appellant's interest in KDL and thus her offer was far below what the court ordered. The trial judge also appropriately applied the relevant cost factors as set out in the Family Law Rules. The appellant's actions contributed to the higher costs of the litigation by failing to properly disclose his financials and failing to engage his expert to prepare an analysis of his 2015 and 2016 income. The appellant's answers regarding his finances were vague and unclear and the appellant's conduct was unreasonable. The appellant's own offer to settle was so unreasonable that the trial became inevitable. The appellant's concealment of information could amount to bad faith and he ought to have expected substantial cost consequences.
Prescott & Russell (United Counties) v David S Laflamme Construction Inc., 2018 ONCA 495
[Doherty and LaForme JJ A and Himel J (ad hoc)]
Counsel:
MW Malcolm and HB Borlack, for the appellant (non-party) WSP Canada Inc.
AR O'Brien, for the respondent The Corporation of the United Counties of Prescott & Russell
Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Adding Parties, Final or Interlocutory, Limitations Act, 2002, s.21
Facts:
The respondent (plaintiff in this action) brought a motion under rule 5.04(2) for an order adding WSP Canada Inc. ("WSP") as a defendant in an ongoing action arising out of alleged negligence in the rehabilitation of a bridge. The motion judge found that the respondent can add WSP as a party to the litigation, having determined that the claim against it was brought within the limitation period.
WSP appealed claiming that the motion judge erred in concluding that the claim could not reasonably have been discovered at a point beyond the applicable time limit under the Limitations Act, 2002. The respondent argued that the motion judge was correct and also raised a preliminary jurisdictional point that the order under appeal is interlocutory and not final, meaning that any appeal lies with leave to the Divisional Court.
Issues:
(1) Does the court have jurisdiction to hear the appeal?
Holding: Appeal quashed.
Reasoning:
(1) No. The order under appeal is interlocutory. The court had no jurisdiction to hear the appeal.
To determine whether the order is final or interlocutory, one must examine the terms of the order, the motion judge's reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order.
In this case, the order contained no language to suggest that any final determination was made on the Limitations Act, 2002 issue. It simply allowed the respondent to add WSP as a defendant. In her reasons, the motion judge did not purport to decide the issue for any purpose other than the determination of the motion to add WSP as a party.
The court did not accept the contention that because the motion judge was required to make a finding as to the application of the Limitations Act, 2002, her finding must be regarded as binding in the litigation and therefore final. Section 21 of the Limitations Act, 2002 forbids adding a party where the limitation period has expired. It does not foreclose adding a party absent an affirmative finding that the limitation period has not expired.
Having regard to the above factors, the court concluded that the motion judge's determination that the action was brought within the limitation period was made for the purposes of the motion only. The order was not final and WSP may seek leave to appeal in the Divisional Court, or it may raise the limitations argument at trial. The court made no comments on the merits of the motion judge's decision.
Martin v Barrie (City), 2018 ONCA 499
[Feldman, MacPherson and Rouleau JJ A]
Counsel:
H Klein, for the appellants
S Zacharias, for the respondents
Keywords: Torts, Negligence, Occupier's Liability, Duty of Care, Standard of Care, Standard of Review, Mixed Fact and Law, Palpable and Overriding Error, Housen v Nikolaisen, 2002 SCC 33
Facts:
This is an appeal from a judgment dismissing the appellants' action in negligence against the respondents. In 2011, the appellants attended a Winterfest event hosted by the City of Barrie (the "City"). The appellant, Ms. M, went down a snow slide at the event, when she struck a piece of hardened, protruding ice and suffered an injury. The trial judge found that Ms. M's injury was caused by the ice. However, the trial judge did not find that the City had breached the appropriate standard of care, and therefore dismissed the action.
Issues:
(1) Did the trial judge make a palpable and overriding error by concluding that the ice chunk that struck Ms. M was "small"?
(2) Did the trial judge err in the inference he drew from the hearsay utterance ("I have to fill this again") of an on-site City employee that Ms. M heard immediately after she was hurt?
(3) Did the trial judge err in concluding that the City did not breach the standard of care?
Holding: Appeal dismissed.
Reasoning:
(1) No. Ms. M herself testified that she did not see the ice chunk until after she struck it and she described it as about four to six inches in size. The trial judge's characterization of it as "small" was entirely justified.
(2) No. The utterance of the City's employee supports the position of the respondents. It demonstrates that the employee stationed at the bottom of the slide in the landing area was paying close attention to the condition of the landing and moved quickly to fill in the gap in the snow as would be expected.
(3) No. The trial judge made no error of any kind – let alone a palpable and overriding error – in his analysis of the evidence and his application of the relevant negligence law principles. He did not ignore the evidence relating to inspection and maintenance. Therefore, there is no error in his finding that the City did not breach the appropriate standard of care.
Ontario Ombudsman v Hamilton (City), 2018 ONCA 502
[Doherty and LaForme JJ A and Himel J (ad hoc)]
Counsel:
RA Centa and D Cooney, for the appellant
B MacNeil, for the respondent
Keywords: Municipal Law, Jurisdiction, Definition, Municipal Act, 2001, SO 2001, c 25, Section 239(1), Ombudsman Act, RSO 1990, c O 6, Section 14.1, Municipal Elections Modernization Act, 2016, SO 2016, c 15, Section 65, Schnarr v Blue Mountain Resorts Limited, 2018 ONCA 31
Facts:
The Ontario Ombudsmen ("Ombudsmen") appeals the ruling of the Divisional Court that the Ombudsmen did not have jurisdiction under section 14.1 of the Ombudsman Act to investigate the alleged non-compliance with the open meeting requirement of section 239 of the Municipal Act by the Election Compliance Audit Committee ("Audit Committee") or the Property Standards Committee ("Standards Committee").
The City of Hamilton cross-appeals that even if the entities in question were "local boards", the deliberation component of their proceedings did not constitute "meetings" within the meaning of section 239(1) of the Municipal Act, 2001, SO 2001, c 25.
Section 239(1) of the Municipal Act declares that "all meetings shall be open to the public". Section 239.1(b) of the Municipal Act provides that a person may request an investigation of whether a "municipality or local board" has complied with the public meeting requirement in s. 239. The Ombudsman, under section 239.1(b), may conduct that investigation. Section 14.1 of the Ombudsman Act dovetails with section 239.1(b) of the Municipal Act by empowering the Ombudsman to investigate complaints made with respect to the failure to comply with the public meeting requirement of section 239.
Issues:
(1) Did the Divisional Court err in holding that neither the Audit Committee nor the Standards Committee was a "local board" within the meaning of section 14.1 of the Ombudsman Act, RSO 1990, c O 6?
(2) If the Divisional Court is found to have erred, does the deliberative component of the Audit Committee and the Standards Committee constitute "meetings" within the meaning of section 239(1) of the Municipal Act, 2001, SO 2001, c 25?
Holding: Appeal and cross-appeal dismissed.
Reasoning:
(1) No. Neither the Audit Committee nor the Standards Committee are among the entities specifically identified in the definition provided s. 1(1) of the Municipal Act:
'Local board' means a municipal service board, transportation commission, public library board, board of health, police services board, planning board, or any other board, commission, committee, body or local authority established or exercising any power under any Act with respect to the affairs or purposes of one or more municipalities, excluding a school board and a conservation authority.
The Ombudsman's submission would have considerable force if the general language at the end of the definition of "local board" stood alone. It does not. That general language follows the identification of several specific entities as "local boards". As this court recently observed in Schnarr v Blue Mountain Resorts Limited, 2018 ONCA 313, at para. 52:
Where a class of things is modified by general wording that expands the class, the general wording is usually restricted to things of the same type as the listed items (ejusdem generis).
Applying the maxim of statutory interpretation of ejusdem generis to the definition of "local board", the Court was satisfied that the general language at the end of the definition does not include entities which cannot be said to carry on the operations of the municipality. The functions of the Audit Committee and the Standards Committee do not fall within that descriptor. They are not local boards.
(2) Given the finding that neither is a "local board", it was unnecessary to decide this question. However, the Court noted that on April 1, 2018, the Municipal Elections Modernization Act, 2016, section 65 came into force and repealed subsection 88.34 of the Municipal Elections Act. The new provision, which applies to the Audit Committee, reads:
Open Meetings
(9.1) The meetings of the Committee under subsection (9) shall be open to the public, but the Committee may deliberate in private. 2017, section 20, Schedule 10, (section 2).
Prescott v Barbon, 2018 ONCA 504
[Watt, Pepall and Miller JJ A]
Counsel:
WG Scott, for the appellants
D Fulton, for the respondent ERS
DV Abreau and T J Buckley, for the Respondent RB
D Polgar, for the intervenor Economical Insurance Company
Keywords: Civil Procedure, Orders, Administrative Dismissals for Delay, Setting Aside, Reid v Dow Corning Corp (2002), 11 CPC (5th) 80 (Ont SC), Rules of Civil Procedure, Rules 48.14, 48.15
Facts:
On December 28, 2008, the appellants were passengers of a motor vehicle. One of the appellants was driving. The two respondents' vehicles and appellant driver's vehicle were involved in a three-car collision. The appellants sued for injuries sustained in the accident. Wawanesa Mutual Insurance Company denied coverage to respondent ERS because he was operating the vehicle without the owner's consent.
The appellants' action was administratively dismissed as abandoned in August 2011, pursuant to r. 48.15 of the Rules of Civil Procedure. The appellants' lawyer failed to inform his clients of the dismissal and only reported the matter to LawPRO over two years later. The appellants served a notice of motion to set aside the dismissal in February 2014, two years and six months after the dismissal order. Master Hawkins heard the motion and overturned the registrar's administrative dismissal. The respondents appealed the Master's decision. The appeal judge allowed the appeal and overturned the Master's decision, reinstating the administrative dismissal. The appellants appeal from that decision and the respondents seek leave to appeal the appeal judge's costs award.
Issues:
(1) Was interference with the Master's decision justified?
(2) Did the Master err in failing to consider the entire statutory scheme relating to administrative dismissals in his contextual analysis?
(3) Did the Master err in finding the respondents partially responsible for the administrative dismissal?
(4) Did the Master err in his approach to the factors set out in Reid v Dow Corning Corp (2002), 11 CPC (5th) 80 (Ont SC), particularly on his failure to consider the principle of finality in his prejudice analysis?
Holding: Appeal dismissed.
Reasoning:
(1) Yes. While the decision of a Master granting or refusing to set aside an administrative dismissal is discretionary and entitled to deference, interference with the Master's decision was justified. A Master's decision may be set aside only if made on an erroneous legal principle or infected by palpable and overriding error of fact.
(2) Yes. While the Master was correct in some of his contextual analysis and interpretation of the rules, he incorrectly described the changes to rr. 48.14 and 48.15 and the statutory scheme at para. 19, as he noted that: "What now constitutes an acceptable level of diligence in the prosecution of an action is a much easier test to meet than was the case in the past." He stated that the repeal of r. 48.15 "may ... be considered as part of the context in which this motion [...] was argued." Rule 48.15 was in force when the registrar dismissed the action as abandoned, but by the time the motion was argued, it had been repealed. As such, it could not form part of the applicable context, and it was an error for the Master to make this statement.
(3) Yes. The Master erred in finding the respondents partially responsible for the administrative dismissal. The appeal judge took issue with this finding. She stated that the party who commences the proceeding bears the primary responsibility for its progress, and the Master erred in law in concluding that the respondents were at fault for not filing a defence. The rule governing administrative dismissals places no obligation on defendants to file a defence to prevent a registrar's dismissal. Therefore, the Master's approach in treating the respondents as blameworthy created a categorization that does not exist under the Rules of Civil Procedure. The appeal judge's conclusion is correct.
In addition, there was another fundamental problem embedded in the Master's consideration of the first and second criteria of the Reid test. There was no evidence filed by the appellants that it had always been their intention to proceed with the action. This was inadequate particularly given that there was no evidence or reference of any contact with any of the respondents between January 3, 2012 and February, 2014. The Master's finding that the respondents intended to prosecute their claim was unreasonable in light of the full factual context.
(4) Yes. The Master erred in his approach to the factors set out in Reid, particularly on his failure to consider the principle of finality in his prejudice analysis. In considering the fourth Reid factor, the Master was required to address: (i) did the appellant satisfy their onus to establish no significant actual prejudice to the respondents' ability to defend the action due to the appellants' delay; and (ii) whether in light of the delay, the principle of finality and the respondents' reliance on the security of its position should nevertheless prevail. There is no need to resort to presumptions or inferences of prejudice. The question is simply whether the interest in finality must trump the opposite party's pleas for an indulgence. The appeal judge acknowledged in her reasons that the Master addressed the issue of prejudice but maintained that the Master erred in failing to consider the finality principle. This assessment was correct.
The appeal judge was correct in setting aside the Master's decision and considering the merits of the motion anew. There was no reason to interfere with the costs order made by the appeal judge, and leave to appeal that order was denied.
Sammut v Sammut, 2018 ONCA 507
[Feldman, MacPherson and Rouleau JJ A]
Counsel:
DN Magisano and C Shorey, for the appellant
MA Ross, for the respondent
Keywords: Civil Procedure, Default Judgments, Setting Aside, Damages
Facts:
The respondent brought action in the Superior Court of Justice against the appellant alleging that she began to divert and steal money from him. At the time, the appellant's whereabouts were unknown and she was noted in default. Pursuant to noting in default, the appellant was deemed to admit truth of all allegations of fact made in the statement of claim. On the basis of unchallenged evidence, the respondent established that the appellant used fraud and theft to obtain funds. Woollcombe J of the Superior Court of Justice granted default judgment against the appellant for $466,420.22, plus interest and costs of $5,000.
The appellant moved to set aside the order on the basis that she was not served with the respondent's Statement of Claim and, therefore, did not have an opportunity to defend the case against her. The appellant's home address and email address had been incorporated into a previous court order. However, at some point the appellant moved to a new address and there was a one letter error in the email address.
Wein J of the Superior Court of Justice rejected this argument, concluding that while there was an error in recording her email address, she was served at the mail address she had given, and there were ample indications that she was aware of the action against her.
The appellant appeals from the order of Wein J denying the appellant's motion to set aside the order of Woollcombe J.
Issues:
(1) Did the motion judge err in refusing to set aside the default judgment as of right?
(2) Did the motion judge fail to properly consider and apply the test for setting aside a default judgment?
(3) Did the motion judge fail to properly review the quantification of damages arrived at by the judge who granted the default judgment?
Holding: Appeal allowed, in part.
Reasoning:
(1) No. A motion judge's decision concerning setting aside a default judgment is discretionary.
(2) No. The appellant did not establish that the motion judge made an error in principle, a palpable and overriding error of fact, or that the decision is so clearly wrong as to amount to an injustice. The appellant had a clear obligation to advise the respondent of a change in her mailing address. She did not do this. The initial one letter error in her email address was of no moment; it is clear that the appellant received the relevant legal documents throughout the litigation.
(3) Yes. The court agreed that the motion judge erred on two points. First, by saying that "[the appellant] has not provided any evidence that would undermine the conclusion that a substantial amount of money was owing to [the respondent]." Second, by concluding that "[i]t is simply too late now to bring forward arguments concerning the quantification of the amount owing".
Unlike the default judgment motion, the appellant was represented by counsel at the motion to set aside and filed extensive material, including a comprehensive affidavit. In the court's view, it was not "too late" for the appellant to challenge the quantification in the default judgment.
Having reviewed the record and read and heard extensive submissions, the court was of the view that the global damages award must be reduced to $289,740.39.
York Region Standard Condominium Corporation No 1039 v Richmond Hill (Town), 2018 ONCA 511
[Feldman, MacPherson and Rouleau JJ A]
Counsel:
P Di Monte, for the appellant
K Sherkin and R Wozniak, for the respondents
Keywords: Civil Procedure, Orders, Dismissal for Delay, Standard of Review, Palpable and Overriding Error, Error of Fact, Error of Law
Facts:
This appeal is from an order dismissing the appellant's claim against the respondents for delay. The claim involved allegations of negligence in the construction of a condominium built in 2004, resulting in defects that were discovered on August 5, 2012.
The claim was issued on August 1, 2014. However, it was not served on the defendants within the six months provided in the Rules of Civil Procedure. Consequently, some of the defendants – the respondents in this appeal – brought a motion for dismissal of the claim against them for delay.
The appellant explained that it encountered problems locating and serving the respondents due to inaccurate information filed in the respondents' corporation profile records. In support of the motion, the respondents filed an affidavit to the effect that the documents relating to the condominium project were purged in the normal course of business and that this documentation was no longer available as a result. The respondents' affidavit, however, did not specify when the documents were destroyed. Nevertheless, the master found that the appellant's documents were available and that the documents of the institutional defendants (Tarion and Richmond Hill) had been preserved. Consequently, the master dismissed the motion on the basis that the appellant had an adequate explanation for the delay and established that the respondents suffered no prejudice.
On appeal to the Superior Court, the judge allowed the appeal and dismissed the claim as against the respondents. The judge held that the master had made palpable and overriding errors of fact and errors of law.
Issue:
(1) Did the master make palpable and overriding errors of fact?
(2) Did the master make palpable and overriding errors of law?
Holding: Appeal allowed.
Reasoning:
(1) No. The master did not make palpable and overriding errors of fact. The error was contained in the typed version of the master's handwritten reasons which were presented to and relied upon by the appeal judge. More specifically, the central error of fact identified by the appeal judge was the master's finding that the "documents of the individual Defendants have been preserved". However, the typed version incorrectly transcribed "institutional" as "individual". Consequently, the court held that there was no inconsistency in the master's findings.
(2) No. The master correctly stated that the onus was on the appellant to explain the delay and establish that the respondents had suffered no prejudice. Moreover, the court held that it was open to the master to infer that the respondents' documents were destroyed well before the claim was issued, such that the delay in service of the claim engendered little or no prejudice. As a result, the court held that the master's decision was entitled to deference and ought to be restored.
Short Civil Decisions
Giffen v Thomson, 2018 ONCA 490
[Juriansz, Benotto and Fairburn JJ A]
Counsel:
No one appearing for the appellants
M Robertson, for the respondent
Keywords: Appeal Abandoned, Trust Funds, Costs
Perry v D'Souza, 2018 ONCA 491
[Doherty and LaForme JJ A and Himel J (ad hoc)]
Counsel:
A Moustacalis, for the appellant
J Figliomeni, for the respondent
Keywords: Summary Judgment, Evidence, Costs
Kowalsky v Asselin-Kowalsky, 2018 ONCA 492
[Doherty and LaForme JJ A and Himel J (ad hoc)]
Counsel:
K Kieller and A Hunter, for the moving party, MK
P Kraemer, for the responding party, D A-K
Keywords: Jurisdiction, Costs
Loken v St Peter's Court Apartments, 2018 ONCA 501
[Pepall, van Rensburg and Paciocco JJ A]
Counsel:
J Morton, for the appellant
J Schmidt, for the respondent
Keywords: Real Property, Adverse Possession, Costs
Walderman v Investia Services Financiers Inc., 2018 ONCA 505
[Feldman, MacPherson and Rouleau JJ A]
Counsel:
J Binavince, for the appellant
J Hamilton, for the respondent TR
S Robinson, for the respondent AC
M Doherty, for the respondents Investia Financial Services Inc. and CMC Markets Inc.
Keywords: Civil Procedure, Appeals, Administrative Dismissal for Delay
Wachsberg v Wachsberg, 2018 ONCA 508
[Juriansz, Benotto and Fairburn JJ A]
Counsel:
G Karahotzitis and PD Schmidt, for the appellant
H Niman and K Normandin, for the respondent
Keywords: Family Law, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Separation Agreements, Disclosure, Hendrickson v Kallio, [1932] OR 675
[Juriansz, Benotto and Fairburn JJ A]
Counsel:
Aaron Franks and Michael Zalev, for the appellant
Kirsten Hughes, Larissa Bazaan and Stephen Grant, for the respondent
Keywords: Family Law, Spousal Support, Compensatory Support, Spousal Support Advisory Guidelines, Moge v Moge, [1992] 3 S.C.R. 813, Divorce Act, RSC 1985, c 3, section 17(7), Standard of Review, Hickey v Hickey, [1999] 2 SCR 518
Abrahamovitz v Berens, 2018 ONCA 512
[Laskin, Feldman and Miller JJ A]
Counsel:
SS Marr and Z Silverberg, for the appellant, the Estate of GZ
DP Jacobs, for the respondents
Keywords: Estates, Costs
Arrocha v Harrison, 2018 ONCA 513
[Watt, Huscroft and Trotter JJ A]
Counsel:
P Harrison, in person
I Frisch, for LA
C Smith and A Pachai, for the City of Toronto
Keywords: Family Law,Support, Fraud, Orders, Costs, Failure to Comply, Family Law Rules, Rule 1(8)(b)
Foisey v Green Estate, 2018 ONCA 514
[Watt, Huscroft and Trotter JJ A]
Counsel:
BN Radnoff, for the appellant
J Lester, for the respondent
Keywords: Estates, Appeals, Jurisdiction, Interlocutory Orders, Durbin v Brant, 2017 ONCA 463
Criminal and Regulatory Offences
R v Jurkus (Publication Ban), 2018 ONCA 489
[Sharpe, Pepall and Fairburn JJ A]
Counsel:
M Fawcett, for the appellant
P Ducharme, for the respondent, SJ
J Presser and J Marshman, for the respondent, LL
Keywords: Criminal Law, Stay of Proceedings, Unreasonable Delay, R v Jordan, 2016 SCC 27, Canadian Charter of Rights and Freedoms, Section 11(b)
[Strathy CJO, Juriansz and Roberts JJ A]
Counsel:
N Jamaldin and P Genua, for the appellant
C Walsh, for the respondent
Keywords: Criminal Law, Smuggling, Narcotics, Sentencing, Canadian Charter of Rights and Freedoms, Sections 7 & 10(a), (b)
[Sharpe, Pardu and Fairburn JJ A]
Counsel:
RC Bottomley, for the appellant
X Proestos, for the respondent
Keywords: Criminal Law, Fraud, Evidence, Opinion, Prior Inconsistent Statements, Dissent
[Watt, Huscroft and Trotter JJ A]
Counsel:
F Mirza, for the appellant
JDM Clarke, for the respondent
Keywords: Criminal Law, Trafficking, Evidence, Credibility, Controlled Drugs and Substances Act, S.C. 1996, c 19, Section 5(3)(a)
[Watt, Hourigan and Miller JJ A]
Counsel:
P Campbell, for the appellant, JR
M Bojanowska, for the appellant, MDA
J Kerbel, for the appellant, ZD
J Patton, for the respondent
Keywords: Criminal Law, First Degree Murder, Fresh Evidence, Supreme Court Act, RSC 1985, c S-26, Section 43(1.1), Criminal Code, RSC 1985, c C-46, Section 683(1)(d)
R v AHM (Publication Ban), 2018 ONCA 503
[Strathy CJO, Juriansz and Hourigan JJ A]
Counsel:
MM Dwyer, for the appellant
A Cappell, for the respondent
Keywords: Criminal Law, Sexual Assault, Common Assault, Corroborative Evidence, R v W(D), [1991] 1 SCR 742
[Feldman, MacPherson and Rouleau JJ A]
Counsel:
Arjun Vishwanth, for the appellant
Katie Doherty, for the respondent
Keywords: Provincial Offences, Jurisdiction, Certiorari, Provincial Offences Act, RSO 1990, c P 33, Sections 34, 36, 141(4)
[Doherty, Rouleau and Miller JJ A]
Counsel:
B Greenspan and N Lutes, for the appellant Kyle M
MR Gourlay, for the appellant Kristopher M
J Klukach and K Shai, for the respondent Her Majesty the Queen
Keywords: Criminal Law, First Degree Murder, Jury Instructions, Criminal Code, RSC 1985, c C-46, Section 21(2)
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