In Kingdom Construction Limited v. Perma Pipe Inc., Kingdom Construction sued multiple parties for $1.2 million in remediation costs after a piping system they installed leaked. They settled with York, Durham, and their insurer, who took over claims against other defendants. These defendants sought to stay the claims, alleging that immediate non-disclosure of the settlement terms as an abuse of process. The motion judge dismissed this request, ruling the settlement did not significantly alter the litigation landscape and dynamics. The appeal was dismissed.
In Khorsand v. Toronto Police Services Board, the respondent was rejected for a special constable job with the Toronto Community Housing Corporation after failing a Toronto Police Service background check. Records showed nine interactions with TPS, three noting his race. None disclosed criminal activity. He sought judicial review of the screening process, claiming procedural unfairness. The Divisional Court allowed review. The Court allowed the appeal, finding that the pre-screening decision was part of the private hiring process and not subject to judicial review. While the Court understood the Divisional Court's concerns as to the possibility of systemic discrimination playing a role in this case, the Court was not satisfied that the evidentiary record was sufficient to conclude that the TPS records that were disclosed pursuant to a freedom of information request was the only information upon which the respondent had failed the background check.
Municipal Property Assessment Corporation v. Claireville Holdings Limited involved the market value assessment of five properties in Toronto's Entertainment District intended for high-rise redevelopment for municipal property tax purposes. The Assessment Review Board reassessed the properties based on current commercial use after the owner appealed MPAC's high-rise valuation as the highest and best use. MPAC argued that the Board erred by presuming current use as the highest and best use. The appeal was dismissed, with the Court finding no legal error in the Board's conclusion that MPAC failed to prove the feasibility of a proposed high-rise development that had not yet been approved by the City.
40 Days for Life v Dietrich involved a battle between the pro-life organization, 40 Days for Life, and a pro-choice activist, BD. BD posted viral TikTok videos denouncing 40 Days' pro-life advocacy and encouraging the public to disrupt 40 Days' operations through various means. 40 Days brought claims including defamation, internet harassment, and civil conspiracy against BD, who unsuccessfully moved under the Anti-SLAPP provisions of s.137.1 of the CJA to dismiss the litigation. The Court dismissed the appeal.
Amid v. Jones was a family law decision in which the father challenge the income imputed to him by the trial judge as a result of free luxury accommodation provided to him by his brother in exchange for services rendered (rather than as a gift, as alleged). The Court dismissed the appeal.
Table of Contents
Civil Decisions
Kingdom Construction Limited v. Perma Pipe Inc., 2024 ONCA 593
Keywords: Civil Procedure, Settlements, Pierringer Agreements, Obligation to Disclose, Stays, Abuse of Process, Failure to Disclose, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Skymark Finance Corporation v. Ontario, 2023 ONCA 234, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Tallman Truck Centre Limited v. KSP Holdings Ltd., 2021 ONSC 984, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Laudon v. Roberts, 2009 ONCA 383, Douglas v. Stan Fergusson Fuels Ltd., 2015 ONSC 65, Endean v. St. Joseph's General Hospital, 2019 ONCA 181
Khorsand v. Toronto Police Services Board, 2024 ONCA 597
Keywords: Administrative Law, Regulated Professions, Police, Contracts, Employment, Hiring Practices, Discrimination, Judicial Review Procedure Act, R.S.O. 1990, c. J.1, Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56, ss. 14(1)(f), 14(3)(b) and s. 38(b), Police Services Act, R.S.O. 1990, c. P. 15, s. 53, Criminal Code, R.S.C. 1985, c. C-46, Provincial Offences Act, R.S.O. 1990, c. P.33, Mental Health Act, R.S.O. 1990, c. M.7, Controlled Drugs and Substances Act, S.C. 1996, c. 19, Trespass to Property Act, R.S.O. 1990, c. T.21, Liquor Licence Act, R.S.O. 1990, c. L.19, Dunsmuir v. New Brunswick, 2008 SCC 9, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, R. v. Le, 2019 SCC 34, Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, Air Canada v. Toronto Port Authority, 2011 FCA 347, Setia v. Appleby College, 2013 ONCA 753, Knox v. Conservative Party of Canada, 2007 ABCA 295
Municipal Property Assessment Corporation v. Claireville Holdings Limited, 2024 ONCA 598
Keywords: Municipal Law, Property Tax, Market Value Assessments, Current Use, Highest and Best Use, Assessment Act, R.S.O. 1990, c. A.31, ss. 1(1), 14(1), 19(1), 19.2(1), 40(1)(a)(i), 40(17), 44(3)(a), Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, Housen v. Nikolaisen, 2002 SCC 3, Municipal Property Assessment Corporation v. Zarichansky, 2020 ONSC 1124
40 Days for Life v. Dietrich, 2024 ONCA 599
Keywords: Torts, Defamation, Anti-SLAPP, Internet Harassment, Fraud, Breach of Contract, Inducing Breach of Contract, Civil Conspiracy, Constitutional Law, Freedom of Expression, Civil Procedure, Appeals, Standard of Review, Canadian Charter of Rights and Freedoms, s. 1, s. 2(b), Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 137.1(3), s. 137.1(4)(a), s. 137.1(4)(b), s. 137.1(9), Safe Access to Abortion Services Act, 2017, S.O. 2017, c. 19, Sched. 1, 40 Days for Life v. Dietrich, 2023 ONSC 5879, Caplan v. Atas, 2021 ONSC 670, 385277 Ontario Ltd. v. Gold, 2021 ONSC 4717, Volpe v. Wong-Tam, 2023 ONCA 680, Mondal v. Kirkconnell, 2023 ONCA 523, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Bent v. Platnick, 2020 SCC 23, Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, British Columbia Recreation and Parks Association v. Zakharia, 2015 BCSC 1650, The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, Neufeld v. Hansman, 2023 SCC 14, McKitty v. Hayani, 2019 ONCA 805, R. v. Sharpe, 2001 SCC 2, Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877
Amid v. Jones, 2024 ONCA 595
Keywords: Family Law, Parenting, Child Support, Retroactive, Imputed Income, Property, Trusts, Bare Trusts, Civil Procedure, Disclosure, Family Law Act, R.S.O. 1990, c. F.3, s. 31(1), s. 33, s. 34, Child Support Guidelines, O. Reg 391/97, s. 19(1)(d), s. 19(1)(f), s. 23, Hickey v. Hickey, [1999] 2 S.C.R. 518, Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), Bak v. Dobell, 2007 ONCA 304, D.B.S. v. S.R.G., 2006 SCC 37, Walsh v. Walsh (2004), 69 O.R. (3d) 577 (C.A.), Michel v. Graydon, 2020 SCC 24
Short Civil Decisions
Akinsola v. Akinsola, 2024 ONCA 592
Keywords: Family Law, Child Support, Spousal Support, Imputed Income, Equalization of Net Family Property, Civil Procedure, Procedural Fairness, Costs
CIVIL DECISIONS
Kingdom Construction Limited v. Perma Pipe Inc., 2024 ONCA 593
[Zarnett, Coroza and Favreau JJ.A.]
Counsel:
T. Evangelidis, for the appellants Perma Pipe Inc. and BW
S.A. Hussain, for the appellant Delta Piping Products Canada Inc.
J. Long, for the appellant CH2M Hill Canada Limited
J. Levy, for the appellant Victaulic Company of Canada ULC
K. Digambar, for the appellant Emco Corporation
B. Rideout, S. Dewart and B. Hughes, for the respondent
Keywords: Civil Procedure, Settlements, Pierringer Agreements, Obligation to Disclose, Stays, Abuse of Process, Failure to Disclose, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Skymark Finance Corporation v. Ontario, 2023 ONCA 234, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Tallman Truck Centre Limited v. KSP Holdings Ltd., 2021 ONSC 984, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Laudon v. Roberts, 2009 ONCA 383, Douglas v. Stan Fergusson Fuels Ltd., 2015 ONSC 65, Endean v. St. Joseph's General Hospital, 2019 ONCA 181
facts:
The respondent, Kingdom Construction Limited ("Kingdom"), was hired by the Regional Municipality of York as a general contractor to construct a disinfection facility at the Duffin Creek Water Pollution Control Plant. The plant was co-owned by the Municipality of York and Durham. The construction project included installing a water piping system.
After installation, the piping system began leaking. Kingdom claimed it had to investigate the cause and arrange remediation and repairs costing over $1.2 million.
To recover its expenses, Kingdom sued several defendants. Kingdom alleged that project owners York and Durham were liable for breach of contract and unjust enrichment. The six appellants, including CH2M Hill Canada Limited, Perma Pipe Inc., Delta Piping Products Canada Inc., consulting engineer BW, Victaulic Company of Canada ULC, and Emco Corporation, were sued for negligence and breach of contract. Each of the defendants delivered a statement of defence. Some asserted crossclaims.
On March 1, 2021, Kingdom's counsel indicated a pending settlement. This was finalized on March 4, 2021, involving Kingdom, Durham, York and Catlin (York's insurer). As part of the settlement agreement, claims against other appellants were assigned to Catlin. Catlin dismissed claims against York and Durham pursuant to a Pierringer agreement. By March 29, 2021, Catlin's counsel circulated a letter outlining the general terms of the settlement to the appellants.
In August 2022, the appellants moved to stay the claims against them, alleging that Kingdom had engaged in an abuse of process by failing to immediately disclose the terms of the settlement.
The motion judge dismissed the appellants' request on two grounds. First, he held that the settlement did not significantly change the litigation landscape enough to require immediate disclosure. Second, he found that, when considered purposively, disclosure of the general terms of the settlement was qualified as immediate disclosure.
issues:
Did the motion judge err by failing to recognize how the settlement and Pierringer Agreement significantly altered the litigation dynamics and required immediate disclosure?
holding:
Appeal dismissed.
reasoning:
No. The motion judge did not err in his appreciation of the settlement's effect. The motion judge focused on the substantive terms and impact of the settlement and considered the parties' positions in the litigation. He correctly compared the pre-and post-settlement litigation configurations and concluded that the claims were fundamentally distinct, with no significant alteration in the litigation dynamics. The appellants failed to show how the settlement affected their strategy or evidence against them, and the motion judge's decision aligned with established case law: Laudon v. Roberts, at para. 39; Skymark Finance Corporation v. Ontario, at paras. 58, 61, 63.
Furthermore, the use of the term "Pierringer Agreement" did not undermine the motion judge's conclusion. The settlement terms did not include provisions for cooperation by York or Durham with Kingdom or Catlin against the appellants. Hence, no immediate disclosure obligation arose, as required by Handley Estate v. DTE Industries Limited, at para. 39; and Endean v. St. Joseph's General Hospital, at para. 52. The motion judge rightly focused on the substance of the agreement as a whole and not just the term "Pierringer Agreement."
Khorsand v. Toronto Police Services Board, 2024 ONCA 597
[Fairburn A.C.J.O., Simmons J.A. and Daley J. (ad hoc)]
Counsel:
M. Brady and R. Anguelova, for the appellants
G. Chochla, for the respondent
S. Wilmot and K. Soles, for the intervener Ontario Association of Chiefs of Police
J. Barrow, for the intervener Canadian Association of Chiefs of Police
S. Gaya, and A. Deshman, for the intervener Canadian Civil Liberties Association
N. Padmanathan and S. Yu, for the intervener Community & Legal Aid Services Program
R. Nobleman, G. Reznick, L. Leinveer and R. Peck, for the interveners Mental Health Legal Committee/HIV & AIDS Legal Clinic Ontario/ARCH Disability Law Centre
S. Choudhry, M. Kakkar and D. Edwards, for the interveners South Asian Legal Clinic of Ontario/Black Legal Action Centre
Keywords: Administrative Law, Regulated Professions, Police, Contracts, Employment, Hiring Practices, Discrimination, Judicial Review Procedure Act, R.S.O. 1990, c. J.1, Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56, ss. 14(1)(f), 14(3)(b) and s. 38(b), Police Services Act, R.S.O. 1990, c. P. 15, s. 53, Criminal Code, R.S.C. 1985, c. C-46, Provincial Offences Act, R.S.O. 1990, c. P.33, Mental Health Act, R.S.O. 1990, c. M.7, Controlled Drugs and Substances Act, S.C. 1996, c. 19, Trespass to Property Act, R.S.O. 1990, c. T.21, Liquor Licence Act, R.S.O. 1990, c. L.19, Dunsmuir v. New Brunswick, 2008 SCC 9, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, R. v. Le, 2019 SCC 34, Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, Air Canada v. Toronto Port Authority, 2011 FCA 347, Setia v. Appleby College, 2013 ONCA 753, Knox v. Conservative Party of Canada, 2007 ABCA 295
facts:
Mr. K wished to work in law enforcement. In 2020, he applied for a job as a special constable with the Toronto Community Housing Corporation ("TCHC"). As part of the application process, Mr. K was required to pass a background investigation to be conducted by the Toronto Police Service ("TPS"). In April 2021, Mr. K was advised that the TCHC was unable to move forward with his application because he "did not pass the pre-screen background check with the [TPS]."
Mr. K asked both the TPS and the TCHC for information about why he failed the pre-screening process. He also made an access to information request to the TPS pursuant to the Municipal Freedom of Information and Protection of Privacy Act, ("MFIPPA"). The disclosed records included reports relating to nine interactions between Mr. K and the TPS. None of the reports revealed any criminal behaviour on the part of Mr. K. Three reports described Mr. K as "Brown", "Middle Eastern", or "Persian".
Mr. K then brought an application for judicial review, challenging the TPS pre-screening decision and its decision not to disclose reasons or information relied upon in making that decision. Mr. K alleged those decisions violated the administrative law duty of procedural fairness.
The Divisional Court decision was split. The majority concluded that judicial review was available. In their view, the decision to fail Mr. K at the pre-screening stage, which was made by the TPS as an agent of the TPS Board, was sufficiently public having regard to the factors set out in Air Canada v. Toronto Port Authority. Having concluded that the pre-screening decision was subject to judicial review, the majority held that the TPS Board had breached its "minimal duty of fairness". The majority concluded that these factors pointed to the pre-screening decision being of a sufficiently public nature to attract a public law remedy.
issues:
Did the majority err in their analysis of the Air Canada factors, which point away from the availability of judicial review?
holding:
Appeal allowed.
reasoning:
Yes. The majority erred in their analysis of the Air Canada factors, which point away from the availability of judicial review. The Court was not persuaded that the pre-screening decision was sufficiently public to render it reviewable. The Court cited three reasons: the pre-screening was part and parcel of the TCHC's hiring process, the decision's impact on a broad segment of the public did not transform it from a private decision into a public decision, and the suitability of public law remedies.
The Court stated that the pre-screening was part and parcel of the TCHC's hiring process. Although Wall did not spell out in detail how to determine whether a decision of a public body was sufficiently public, it did suggest some dividing lines between decisions that are private and those that are public. The Court did not agree with the majority that the "decision to fail Mr. K at the background check stage was a separate and distinct decision" from the hiring decision. Instead, seeing the pre-screening decision as part and parcel of the TCHC's hiring process, it was a process that is not judicially reviewable. The Court saw the pre-screening decision as a discretionary employment-related decision, which drew it within the private sphere.
The decision's impact on a broad segment of the public did not transform it from a private decision into a public decision. The Court stated that a theme woven through the majority's analysis was their concern about the potential impact of the pre-screening decision on a large segment of the public. When it came to considering the suitability of public law remedies, the majority noted that "[a]bsolute discretion may be abused" in a way that impacts not only the individuals involved but the "public at large." The Court of Appeal stated that these concerns cannot transform a discretionary employment-related decision into a public decision. The Court affirmed that to do so would be inconsistent with Wall's instruction that "[s]imply because a decision impacts a broad segment of the public does not mean that it is public."
The majority of the Divisional Court expressed concern about racial discrimination, having relied on the fact that Mr. K's race was documented in three of the TPS records that were disclosed to him pursuant to the MFIPPA. These references, combined with the fact the records disclosed "nothing that would seem to be of concern when hiring him" were enough, in the majority's view, to give rise to "serious questions about what information was relied on in coming to the conclusion that [Mr. K] failed his background check and how systemic issues may have informed and affected the TPS [Board's] decision-making on this issue." While accepting that race-based data can certainly be misused, the Court questioned the inference drawn by the majority, namely that there is strong reason to believe there was racial discrimination at play in this case. The majority's inference was built, in part, on the absence of any reason for concern in the disclosed records. This ignored the fact that only partial disclosure of TPS records was provided under the MFIPPA, and it was entirely possible that the reason for failing Mr. K was not based on anything contained in TPS records or the 66 pages of records that were disclosed. Therefore, on the record before the Court, it could not be said that the existence of a human rights violation was evident or that it transformed a discretionary employment-related decision into a public decision.
Finally, the Court agreed with the dissenting opinion of the Divisional Court about the suitability of public remedies. The dissent was particularly concerned about the protection of sensitive law enforcement information. The majority made clear that the requirement to give reasons and disclose documents to Mr. K was "subject to a process to protect sensitive law enforcement information." While the majority clearly attempted to address the concern about the protection of sensitive law enforcement information, the Court felt that the approach fell short in the sense that the carveout was vague and did not resolve the problems about the suitability of public remedies.
The Court shared the dissent's view that even requiring the TPS to state that it refuses to disclose records because of investigative concerns could be problematic. The Court reaffirmed that an initial background investigation was done for purposes of making a hiring decision, a process that is not susceptible to public law remedies and one that would be rendered vulnerable were it to become susceptible to judicial review.
Municipal Property Assessment Corporation v. Claireville Holdings Limited, 2024 ONCA 598
[Simmons, Thorburn, Favreau JJ.A.]
Counsel:
M. VanBerkum, for the appellant
I. MacKinnon and S. Longo, for the respondents
Nobody appearing for the City of Toronto
Keywords: Municipal Law, Property Tax, Market Value Assessments, Current Use, Highest and Best Use, Assessment Act, R.S.O. 1990, c. A.31, ss. 1(1), 14(1), 19(1), 19.2(1), 40(1)(a)(i), 40(17), 44(3)(a), Onyskiw v. CJM Property Management Ltd., 2016 ONCA 477, Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, Housen v. Nikolaisen, 2002 SCC 3, Municipal Property Assessment Corporation v. Zarichansky, 2020 ONSC 1124
facts:
This case revolved around the property assessment of five contiguous parcels of land in Toronto's Entertainment District. The properties in question, made up of two- and three-storey commercial buildings, were intended for redevelopment into a mixed-use high-rise condo project. In 2012, Claireville opened discussions with the City of Toronto about the redevelopment, and a year later, submitted a development application for a 42-storey mixed-use building. The proposal was amended to a 48-storey building after Claireville's additional acquisition of a property nearby.
The City Planning Department opposed the application, requiring more land for the proposed development. By late 2017, with no decision from the City, Claireville appealed to the Ontario Municipal Board – now named the Local Planning Appeal Tribunal, which resulted in a settlement offer in 2019 for a 50-storey mixed-use development, pending final approvals. The Municipal Property Assessment Corporation assessed the market value of the properties based on their potential as a high-rise development rather than their current use. Claireville appealed these assessments, arguing for a valuation based on the current use of the properties. The Assessment Review Board agreed with Claireville, finding that MPAC failed to prove the "highest and best use" ("HBU") as a high-rise development and reassessed the properties at lower values reflecting their existing commercial use.
issues:
Did the Assessment Review Board and Divisional Court make a legal error in presuming the current use of the properties was appropriate for their valuation as opposed to a potential higher use (like a high-rise)?
holding:
Appeal dismissed.
reasoning:
No. MPAC argued that the Board made a legal error when it stated that the "existing use of land is presumed to be the HBU." MPAC submitted that this was contrary to s. 19 of the Assessment Act, which requires that land be assessed at its current value. In making this argument, MPAC also did not suggest that the Board erred in rejecting its proposed HBU of a mixed-use high-rise development. Rather, MPAC argued that, once the Board found that MPAC had not met its burden, the Board had a responsibility to independently determine the current value of the property rather than simply accepting Claireville's position that the current value of the properties should be based on their current use.
MPAC argued that, in this case, this error led the Board to ignore comparable sales that would have established the current value. For the January 1, 2012 valuation day, a comparable property at 321 King Street West had sold for $4,680,000. For the January 1, 2016 valuation day, Claireville purchased 301 King Street West for $8,000,000 in August 2015. MPAC argued that the Board's erroneous reliance on the presumption that the current use is the HBU led the Board to ignore this evidence, which in turn should have led the Board to find that the current value of the Properties was higher than the value associated with their current use.
The Court saw no legal errors in the Board's analysis. The Court agreed with MPAC's argument that the Act does not create or allow for a presumption that the current use of a property is its HBU. Notwithstanding, the Court found that this is not what happened in this case.
While the Board made reference to a presumption that the current use of the properties is its HBU, this was not in fact how the Board reasoned through its decision. The Board first considered MPAC's proposed HBU and found that it had not met its burden of proving the financial feasibility of this proposed use. MPAC did not contest this finding. The Board accepted expert evidence available regarding the value of the Properties and concluded that their current value should be based on the "income approach," which was based on the current use of the Properties as income-producing properties. In making this finding, the Board relied on a concession made by MPAC's expert that, if its proposed HBU was not made out, Claireville's valuation was appropriate.
The Divisional Court was correct in finding that the Board first found that MPAC had not met its onus, and turned to Claireville's evidence. MPAC did not apply a presumption, but simply decided the case based on the evidence and arguments presented, while keeping in mind that MPAC bore the onus of proving its proposed HBU and current value. There was no basis for finding that the Board made a legal error.
40 Days for Life v. Dietrich, 2024 ONCA 599
[Miller, Harvison Young and Favreau JJ.A.]
Counsel:
A. Bernstein, S. Whitmore, J. Lowenstein and A. Matas, for the appellant
P. Horgan and R.T.R. Fernandes, for the respondent
Z.R. Levy, P. Modi and R. Laurion, for the intervener The Canadian Civil Liberties Association
Keywords: Torts, Defamation, Anti-SLAPP, Internet Harassment, Fraud, Breach of Contract, Inducing Breach of Contract, Civil Conspiracy, Constitutional Law, Freedom of Expression, Civil Procedure, Appeals, Standard of Review, Canadian Charter of Rights and Freedoms, s. 1, s. 2(b), Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 137.1(3), s. 137.1(4)(a), s. 137.1(4)(b), s. 137.1(9), Safe Access to Abortion Services Act, 2017, S.O. 2017, c. 19, Sched. 1, 40 Days for Life v. Dietrich, 2023 ONSC 5879, Caplan v. Atas, 2021 ONSC 670, 385277 Ontario Ltd. v. Gold, 2021 ONSC 4717, Volpe v. Wong-Tam, 2023 ONCA 680, Mondal v. Kirkconnell, 2023 ONCA 523, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Bent v. Platnick, 2020 SCC 23, Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, British Columbia Recreation and Parks Association v. Zakharia, 2015 BCSC 1650, The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, Neufeld v. Hansman, 2023 SCC 14, McKitty v. Hayani, 2019 ONCA 805, R. v. Sharpe, 2001 SCC 2, Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877
facts:
The appellant, BD, a pro-choice activist with a long history of community engagement, posted fourteen videos on TikTok related to the respondent pro-life organization, 40 Days for Life ("40 Days"). 40 Days is an American non-profit with locations in Ontario which advocates to end abortion and hosts prayer vigils outside hospitals that provide abortions. In four videos, BD encouraged people to sign up for 40 Days' vigils and then not show up. Several others involved BD commenting that 40 Days lied, spread false health information, and engaged in fearmongering and harassment. In a further two videos, BD posted contact information for several 40 Days employees, and in a final video she encouraged the public to load up virtual shopping carts with merchandise on 40 Days' website to hopefully stall fulfillment of orders. The videos were crafted to attract high viewership, incorporating trending audios and visual effects overlaid on images associated with 40 Days.
40 Days sued BD over the videos, seeking damages for defamation, internet harassment, fraud, breach of contract, inducing breach of contract, and civil conspiracy. The organization claimed that its operations were disrupted because viewers of the videos engaged in false sign-ups and harassed 40 Days' employees online. Furthermore, the non-profit had to spend time and money restoring the online scheduling system. 40 Days obtained an interlocutory injunction against BD preventing her from engaging in or encouraging false sign-ups and other interference with 40 Days' activities, though the injunction was later quashed since there was no indication BD sought to continue the impugned conduct.
BD subsequently brought an unsuccessful Courts of Justice Act (CJA) s.137.1 anti-SLAPP motion to dismiss the proceeding, also seeking damages against 40 Days for causing her severe anxiety. The motion judge held that there were grounds to believe that the defamation, internet harassment, and civil conspiracy claims had substantial merit and that BD had no valid defence, and ultimately concluded that the public interest in continuing the lawsuit outweighed the public interest in protecting BD's political expression. The contract and fraud claims were dismissed. Although BD argued that her motivation in posting the videos was to show 40 Days that it lacked support in Ontario, the motion judge rejected this contention and found that, for some of the videos, BD's predominant purpose was to engage in a coordinated effort to injure 40 Days by interfering with its operations. On appeal, BD contested these findings.
issues:
- Did the motion judge err in concluding that the defamation, internet harassment, and conspiracy claims had substantial merit?
- Did the motion judge err in weighing the public interest in favour of allowing the action to proceed?
holding:
Appeal dismissed.
reasoning:
1. No. Section 137.1 of the CJA is intended to weed out strategic or abusive claims at an early stage, and thus to pass the merits-based hurdle the plaintiff need only establish grounds to believe that the proceeding has substantial merit or that the defendant has no valid defence. The Court commented that this standard is less than a balance of probabilities, and that s.137.1 anti-SLAPP motions are brought with respect to the entire proceeding, not particular causes of action. Overall, the Court was satisfied that the motion judge made no error in concluding that 40 Days had established grounds indicating that the proceeding as a whole had substantial merit and no valid defences. The Court held that it was unnecessary to analyze the motion judge's treatment of each cause of action in the merits-based hurdle. Instead, to bring all the impugned videos under analysis, the Court need only review the motion judge's discussion of the defamation claim and one or other of the conspiracy or internet harassment claims, but not both.
Regarding the motion judge's holding that 40 Days had established grounds to believe that the defamation claim had substantial merit, the Court held that absent legal error, the motion judge's interpretation of the evidence was entitled to deference. Although BD claimed that the motion judge erred in law in not finding that her honest belief in the truth of her comments about 40 Days indicated she was not motivated by malice, the Court stated that this was actually a challenge to the motion judge's factual findings about BD's purpose in making the videos, which were owed deference. Turning to BD's challenge to the motion judge's conclusion about the civil conspiracy claim, the Court held that the motion judge correctly stated the legal test and pointed to specific statements in the TikTok videos indicating that BD encouraged the public to harass 40 Days' employees and to interfere with prayer vigils.
2. No. The Court upheld the motion judge's conclusions regarding the public interest hurdle set out in s.137.1(4)(b). This final step of the s.137.1 analysis involves weighing the public interest in protecting the expression that gave rise to the claim versus the public interest in allowing the action to continue. In her motion, BD argued that her well-funded adversary, 40 Days, was using this litigation to silence BD, a young graduate student who successfully employed social media to counter-protest 40 Days' activities. She contended that s.137.1 was meant to prevent this scenario, and that the motion judge erred in concluding otherwise. More specifically, BD argued that the motion judge erred in finding grounds to believe that the plaintiff had suffered substantial harm from BD's expression/conduct, and in finding BD's expression of low value to the public. Again, the Court noted that weighing the public interest is a task for the motion judge, and that absent reviewable error it was not the appeal court's place to reweigh. Furthermore, the clear disparity in resources between the parties, though sometimes an indicator of an abusive proceeding, was not sufficient to lead inevitably to the conclusion that the proceeding was abusive or strategically intended to silence BD's expression.
In reviewing the motion judge's assessment of the public's interest in the action continuing, the Court commented that a plaintiff must provide evidence enabling the judge to draw an inference of likelihood that it had suffered harm sufficient to outweigh the public interest in protecting the defendant's expression. Here, the motion judge identified damages to 40 Days including the cost of IT security enhancements, interruptions to their website, distress and alarm among volunteers, and reputational harm. The Court affirmed the motion judge's conclusion that based on these factors, 40 Days had suffered some harm resulting from the impugned TikTok videos. Moreover, the motion judge did not err in concluding that 40 Days had met its causation onus; the record showed that false sign-ups for prayer vigils dramatically increased in the days after BD posted her videos.
To assess the public interest in protecting BD's expression, the motion judge had to determine the value of the expression in her TikTok posts. BD contended on appeal that the motion judge erred in deeming the expression low value (as it focused on impairing 40 Days' operations/reputation) and in failing to appreciate the high social value of counter speech. Rather than being counter protests, the motion judge held that the TikTok videos actively attempted to silence 40 Days' from voicing its own views on abortion. The Court declined to reweigh the motion judge's evaluations or replace them with other findings, as no palpable or overriding error was identified and her reasoning was informed by the broader context of the highly charged debate about whether anti-abortion protesting should occur near abortion facilities. The Court deferred to the motion judge's finding that the Safe Access to Abortion Services Act was not engaged by 40 Days' activities, and that BD's Charter arguments failed, as they were insufficiently developed especially given that no government action was at issue in this case. Although BD vehemently disagreed with 40 Days' message, that did not render the organization's expression low value. The motion judge was correct to avoid descending into the fray of moral controversy. The CCLA's submissions as intervener were not useful on appeal since they addressed a factual matrix very different from that developed on the record before the Court. Ultimately, the Court held that the motion judge engaged in an appropriate weighing of the public interest, and that BD failed to prove any reviewable error in the reasons grounding the dismissal of her s.137.1 motion.
The Court ultimately held that BD failed to establish a basis permitting appellate intervention and noted that it is not the Court's role to consider motions afresh. The motion judge's dismissal of BD's s.137.1 motion was thus entitled to deference on appeal absent an error of law or a palpable and overriding error of mixed fact and law, neither of which was made out in this case.
Amid v. Jones, 2024 ONCA 595
[Simmons, Thorburn and Favreau JJ.A.]
Counsel:
E. Birnboim and H. Corrigan, for the appellant
B. Puckering, for the respondent
Keywords: Family Law, Parenting, Child Support, Retroactive, Imputed Income, Property, Trusts, Bare Trusts, Civil Procedure, Disclosure, Family Law Act, R.S.O. 1990, c. F.3, s. 31(1), s. 33, s. 34, Child Support Guidelines, O. Reg 391/97, s. 19(1)(d), s. 19(1)(f), s. 23, Hickey v. Hickey, [1999] 2 S.C.R. 518, Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), Bak v. Dobell, 2007 ONCA 304, D.B.S. v. S.R.G., 2006 SCC 37, Walsh v. Walsh (2004), 69 O.R. (3d) 577 (C.A.), Michel v. Graydon, 2020 SCC 24
facts:
The appellant father appealed from a trial judge's child support order. He claimed that the trial judge erred in imputing additional income to him based on "gifted" housing he received from his brother, and in the amount of this imputed income. The father further maintained that the trial judge erred in granting child support retroactive to the birth of his child, S. He also sought a reversal of the trial judge's costs order.
The father and the respondent mother were together for around three years and had one child, S, in 2014. The couple never cohabited and were not spouses. S resided primarily with the mother, though the father had regular parenting time. The father had been paying child support since S was a year old.
At trial, the mother claimed that additional income should be imputed to the father beyond his income as a college professor. She alleged that the father provided engineering consulting services to his brother's real estate businesses, and in return received financial benefits, including free luxury accommodation. The father contested the imputation of any additional income beyond his earnings as a professor and denied that he did any significant work for his brother's companies. Although he held title to millions of dollars' worth of real estate, the father alleged that he only held the legal title to these properties and was in fact a bare trustee for his brother, the equitable owner and purchaser.
The trial judge agreed with the mother's position, finding that the father did indeed provide consulting services to his brother with the associated benefit of free luxury housing. Accordingly, she imputed to the father additional non-taxable income of $3,000 per month from S's birth date in 2014 to September 2021, and additional non-taxable income of $6,500 per month from September 2021 onward.
On appeal, the father contended that his child support payments should be based solely on his annual income as a professor of $107,000, and thus that he should pay child support at a rate of $955 per month retroactive only to 2020.
issues:
- Did the trial judge err in imputing to the father additional income because of the gratuitous housing he received from his brother, or in the amount of this imputed income?
- Did the trial judge err in concluding that child support was payable retroactive to S's birth?
holding:
Appeal dismissed.
reasoning:
1. No. The Court affirmed the trial judge's analysis and her decision to impute to the father additional income representing the luxury properties his brother gave him. As the Court acknowledged, appellate courts should only intervene in support awards where there is a material error, a serious misapprehension of the evidence, or an error in law. Here, the trial judge correctly identified and applied relevant Family Law Act provisions in her analysis. Citing leading cases on income imputation, she recognized that gifts are not regularly imputed as income but may be included under certain circumstances. Ample evidence supported the trial judge's finding that neither the father nor his brother provided credible evidence about the father's finances or his work for the family business. The trial judge also appropriately drew an adverse inference from the father's repeated non-compliance with court ordered disclosure of certain financial documents, including mortgage applications in his name. In contrast, the trial judge found the mother's testimony to be generally credible and accepted her submission about the father's ongoing consulting work and corresponding housing benefits.
Regarding the amount of the imputed income, the Court held that the trial judge assessed the support awards on the best evidence available to her, especially given the father's failure to produce relevant documents. Having failed to make proper financial disclosure, the father was estopped from contesting the amount that was based on the limited information he disclosed.
2. No. The Court upheld the trial judge's retroactive award of child support to the date of S's birth. The trial judge considered S's needs and circumstances and the difficulty in obtaining disclosure that would have enabled a more accurate support calculation. Although retroactive child support awards must not amount to a wealth transfer, the Court commented that they are not reserved for rare or exceptional cases. The instant circumstances justified a retroactive award.
SHORT CIVIL DECISIONS
Akinsola v. Akinsola, 2024 ONCA 592
[Miller, Harvison Young and Gomery JJ.A.]
Counsel:
I. Aniekwe, for the appellant
M. Curyk, for the respondent
Keywords: Family Law, Child Support, Spousal Support, Imputed Income, Equalization of Net Family Property, Civil Procedure, Procedural Fairness, Costs
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