Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 27, 2024.
In Legault v. TD General Insurance Company, the Court upheld the trial judge's decision to deny a claim under a homeowner's insurance Policy based on the appellant's false declaration with respect to her additional living expenses.
In Association of Iroquois and Allied Indians v. Ontario, the appellants, certain Ontario First Nations, sought judicial review of forest management regulations and legislation set out in MNR-75 and Bill 97, arguing their exclusion from deliberations breached the Crown's duty to consult and honour of the Crown. The Divisional Court dismissed their application, and the Court upheld this decision.
Hanson Crossborder Tax Inc. v. Bazar McBean LLP was a contractual dispute between an accountant and her firm regarding compensation owed.
Bradshaw v. Hougassian reviewed the law regarding purchase money resulting trusts and the presumption of resulting trust.
Beazley v. Johnston was a 57-page decision on whether the self-represented appellant should be granted an extension of time to pursue an appeal from the dismissal by way of summary judgment of his medical claims against 27 doctors and a hospital. In denying the extension of time, the Court reviewed the motion judge's decision in detail and found that the proposed appeal had little merit.
Other topics covered this week included mortgage enforcement and variation of spousal support following a material change in circumstances.
Wishing everyone an enjoyable weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
Hanson Crossborder Tax Inc. v. Bazar McBean LLP, 2024 ONCA 423
Keywords: Contracts, Partnerships, Defamation, Damages
Beazley v Johnston, 2024 ONCA 430
Keywords: Torts, Professional Negligence, Medical Malpractice, Standard of Care, Negligent Misrepresentation, Breach of Fiduciary Duty, Civil Procedure, Appeals, Extension of Time, Summary Judgement, Evidence, Admissibility, Expert Evidence, Documents, Procedural and Natural Justice, Self-Represented Litigants, Reasonable Apprehension of Bias, Evidence Act, R.S.O. 1990, c. E.23, s. 32, Rules of Civil Procedure, r. 4.06(3)(b), White Burgess Langille Inman v. Abbott and Halliburton Co., 2015 SCC 23, Marshall v. Jackson, 2021 ONSC 2361, Pintea v. Johns, 2017 SCC 23, Sutton v. Sutton, 2017 ONSC 3181, Thorpe v. Honda Canada Inc., 2010 SKQB 39, Yepremian et al. v. Scarborough General Hospital et al. (1980), 28 O.R. (2d) 494 (C.A.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Issasi v. Rosenzweig, 2011 ONCA 112, Duca Community Credit Union Ltd. v. Giovanni et al. (2001), 142 O.A.C. 146 (C.A.), Liu v. Wong, 2016 ONCA 366, Jonsson v. Lymer, 2020 ABCA 167, Moore v. Apollo Health & Beauty Care, 2017 ONCA 383, R. v. Tossounian, 2017 ONCA 618, Girao v. Cunningham, 2020 ONCA 260, R. v. Morillo, 2018 ONCA 582, Gadsby v. British Columbia (Attorney General), 2019 BCSC 1596, Hryniak v. Mauldin, 2014 SCC 7, Carbone v. McMahon, 2017 ABCA 384, Wouters v. Wouters, 2018 ONCA 26, Bernard v. Canada (Attorney General), 2014 SCC 13, Sanzone v. Schechter, 2016 ONCA 566, Ter Neuzen v. Korn, [1995] S.C.R. 674, Browne v. Dunn, [1894] H.L. 67, Gibb v. Pereira, 2017 ONSC 4762, J.N. v. C.G. 2023 ONCA 77
Bradshaw v. Hougassian, 2024 ONCA 425
Keywords: Wills and Estates, Property Law, Purchase Money Resulting Trust, Presumption of Resulting Trust, Gifts, Contracts, Loans, Evidence, Admissibility, Corroboration, Evidence Act, R.S.O. 1990, c. E.23, s.13, Nishi v. Rascal Trucking Ltd., 2013 SCC 33, Pecore v. Pecore, 2007 SCC 17, Trustee of Estate of A.M.K. Investments Limited v. Kraus, (1996) 42 CBR (3d) 227, Krates Keswick Inc. v. Crate, 2017 ONSC 6195, Hornstein v. Kats, 2020 ONSC 870, Andrade v. Andrade, 2016 ONCA 368, Caroti v. Vuletic, 2022 ONSC 4695, Singh v. Kaler, 2017 ABCA 275, Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, Sands Estate v. Sonnwald, [1986] O.J. No. 478 (H.C.)
Rose-Terra Investments Inc. v. Chetti, 2024 ONCA 427
Keywords: Contracts, Real Property, Mortgages, Settlements, Defences, Undue Influence, Presumption of Undue Influence, Duress, Civil Procedure, Summary Judgment, Hryniak v. Mauldin, 2014 SCC 7, Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737, JGB Collateral v. Rochon, 2020 ONCA 464, Gold v. Rosenberg, [1997] 3 S.C.R 767, Laird v. Mulholland, [1998] OJ. No. 855
White v. White, 2024 ONCA 431
Keywords: Family Law, Spousal Support, Variation, Material Change in Circumstances, Imputed Income, Johanson v. Hinde, 2016 ONCA 430, Rados v. Rados, 2019 ONCA 627, Levin v. Levin, 2020 ONCA 604, Korman v. Korman, 2015 ONCA 578
Legault v. TD General Insurance Company, 2024 ONCA 439
Keywords: Contracts, Insurance, Fire Policy, Defences, Fraud, Remedies, Forfeiture, Civil Procedure, Evidence, Admissibility, Expert Evidence, Costs, D.W. Matheson & Sons Contracting Ltd. v. Canada (Attorney General), 2000 NSCA 44, 186 N.S.R. (2d) 62, Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.)
Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation and Parks), 2024 ONCA 436
Keywords: Aboriginal and Indigenous Law, Environmental Protection, Right to Protection, Duty to Consult, Constitution Act, 1982, R.S.C. 1985, s. 35(1), Environmental Assessment Act, R.S.O. 1990, c. E.18, ss.3.2, 33.1, Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25, ss. 1, 26, 57(1), 58(1)(b), 64(1)(b), Judicial Review Procedure Act, R.S.O. 1990, c. J.1., COVID-19 Economic Recovery Act, 2020, S.O. 2020, c. 18, Endangered Species Act, 2007, S.O. 2007, c. 6, Environmental Bill of Rights, 1993, S.O. 1993, c. 28, Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks), 2021 ONSC 452, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, R. v. Sparrow, [1990] 1 S.C.R. 1075, Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345, Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, Ermineskin Cree Nation v. Canada (Environment and Climate Change), 2021 FC 758, Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, Mi'kmaq of P.E.I. v. Province of P.E.I., 2019 PECA 26, Buffalo River Dene Nation v. Saskatchewan (Minister of Energy and Resources), 2015 SKCA 31, Hupacasath First Nation v. Canada (Minister of Foreign Affairs and International Trade Canada), 2015 FCA 4, Klahoose First Nation v. Sunshine Coast Forest District, 2008 BCSC 1642, Dene Tha' First Nation v. Canada (Minister of the Environment), 2006 FC 1354, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, McAteer v. Canada (Attorney General), 2014 ONCA 578, Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 123, R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Assn. of Alberta, [1982] Q.B. 892, Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 FC 517, Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 123
Short Civil Decisions
Rathod v. Chijindu, 2024 ONCA 420
Keywords: Civil Procedure, Security for Costs, Rules of Civil Procedure, 61.06 (1) (a)(c), Rathod v. Chijindu, 2024 ONCA 317, Henderson v. Wright, 2016 ONCA 89
Hamilton v. Vaughan, 2024 ONCA 429
Keywords: Civil Procedure, Appeals, Extension of Time, Panel Review, Courts of Justice Act, R.S.O. 1990, c C.43., s. 137.1 and 137.4, Rules of Civil Procedure, r 15.03(1), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, The Catalyst Capital Group Inc. v. West Fact Capital Inc., 2021 ONSC 125
Lepan Estate v. Lofranco Chagpar Barristers, 2024 ONCA 442
Keywords: Costs
Hunt Family Growth Equity Trust v. Love, 2024 ONCA 434
Keywords: Torts, Professional Negligence, Accountants, Civil Procedure, Limitation Periods, Summary Judgment, Grant Thornton LLP v. New Brunswick, 2021 SCC 31
2270752 Ontario Inc. v. Century 21 New Star Realty Inc., 2024 ONCA 444
Keywords: Breach of Trust, Fraudulent Conveyances, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 Bank of Montreal v. Iskenderov, 2023 ONCA 528
CIVIL DECISIONS
Hanson Crossborder Tax Inc. v. Bazar McBean LLP, 2024 ONCA 423
[Trotter, Thorburn and Dawe JJ.A.]
Counsel:
M. Girard, for the appellants
O. Niedzviecki, for the respondents
Keywords: Contracts, Partnerships, Defamation, Damages
facts:
This appeal arose from a dispute between Ms. H and BM, a small accounting firm in Oakville, Ontario. The appellant, BM, appealed from the judgment of the trial judge that awarded damages for breach of contract to the respondent Ms. H, a certified public accountant from Illinois. Ms. H left her position as a manager at KPMG to join BM in 2012. She parted ways with BM in late 2014. This litigation was concerned with how much was owed to Ms. H for the work she performed in 2014.The respondents on appeal, Ms. H, and her professional corporation, sued the appellants, BM, and Mr. B, personally. The respondents made claims for breach of contract and other causes of action; the appellants counterclaimed and sought various forms of relief, including damages for defamation.
The parties ended up in this dispute, and in litigation, because they never entered into a written agreement about Ms. H's role at BM. According to Ms. H, she agreed to a resource-sharing arrangement in which she would have worked out of BM's office and grown her own book of business. She would have been paid 100% of her own clients' billings and 50% of billings by the firm to its clients for work done by her, less a contribution by her to the firm's expenses. She had not intended to become a partner. According to Mr. B, a partnership agreement was envisaged in which Ms. H would have become accredited in Ontario, made a capital contribution to the partnership, and then became a partner. According to BM, the clients for whom Ms. H performed services were clients of BM. They signed letters of retainer in which they retained BM. The parties had agreed that, pending a final agreement, Ms. H would be compensated for 2014 as she had been in 2013.
The trial judge ruled in favour of Ms. H, ordering BM to pay damages of $71,223 for breach of contract for Ms. H's work in 2014. He further ordered two sums of money be returned to Ms. H: $40,000 which had been paid into court and related to Ms. H's apparent capital contribution to BM; and $12,980.50, which was held in trust, and reflected Ms. H's work in progress ("WIP"). Lastly, the trial judge ordered that Ms. H pay $30,000 in damages for making defamatory statements to clients about BM when their business relationship ended. The appeal focused on the amounts owed for breach of contract, and work in progress.
issues:
(1) Did the trial judge err in finding that the clients Ms. H provided services to were her clients and not the clients of BM?
(2) Did the trial judge err in his determination of Ms. H's income for 2014?
(3) Did the trial judge err in concluding that Ms. H was entitled to be compensated for her WIP?
holding:
Appeal allowed, in part.
reasoning:
(1) No. The Court reaffirmed the trial judge's decision that the clients Ms. H served were hers and not BM's despite an engagement letter that suggested otherwise. The trial judge found in favour of Ms. H that the engagement letters were prepared for the convenience of managing the accounts. The appellants submitted that the trial judge erred in law in failing to give effect to an "entire agreement" clause which provided that the arrangements outlined in the engagement letter will continue in effect from year to year unless changed by mutual agreement and that the contract formed the entirety of their agreement. The "entire agreement" clause was not given weight by the Court, as it was not emphasized during trial and was buried near the end of a two-page document, in extremely small print.
(2) Yes. The trial judge erred in calculating Ms. H's compensation for work performed in 2014. The trial judge concluded that Ms. H's billable hours in 2014 were worth $359,345, however, there was insufficient evidence to support this finding. The trial judge relied on a document that was prepared by Ms. H for her testimony which was only admitted as an exhibit as an aide memoire. On appeal, Ms. H's counsel was unable to provide evidence to demonstrate that Ms. H confirmed that this was the amount that she was entitled to for her work in 2014. During her testimony, Ms. H also stated that she worked 919 hours from January to October 2014. Using the formula set out in para. 19 of the trial judge's reasons, the Court calculated that Ms. H's compensation for 2014 should have been $157,822, or 20% less than her compensation for 2013. Subtracting the total of her monthly draws taken in 2014 of $130,000, the total compensation should be reduced from $71,223 to $27,822.
(3) Yes. The trial judge erred in awarding Ms. H her WIP in the amount of $12,980.50. In cross-examination, Ms. H admitted that she billed some of her WIP to her clients after leaving BM. On discovery, she refused to identify the amounts she billed or to whom. Thus, the appeal was allowed on this amount.
Beazley v. Johnston, 2024 ONCA 430
[Simmons J.A.]
Counsel:
C.B., acting in person/moving party
É. Roy, for the responding party, Queensway Carleton Hospital
McCarthy and A. McKenna, for the responding parties, the defendant physicians
Keywords: Torts, Professional Negligence, Medical Malpractice, Standard of Care, Negligent Misrepresentation, Breach of Fiduciary Duty, Civil Procedure, Appeals, Extension of Time, Summary Judgement, Evidence, Admissibility, Expert Evidence, Documents, Procedural and Natural Justice, Self-Represented Litigants, Reasonable Apprehension of Bias, Evidence Act, R.S.O. 1990, c. E.23, s. 32, Rules of Civil Procedure, r. 4.06(3)(b), White Burgess Langille Inman v. Abbott and Halliburton Co., 2015 SCC 23, Marshall v. Jackson, 2021 ONSC 2361, Pintea v. Johns, 2017 SCC 23, Sutton v. Sutton, 2017 ONSC 3181, Thorpe v. Honda Canada Inc., 2010 SKQB 39, Yepremian et al. v. Scarborough General Hospital et al. (1980), 28 O.R. (2d) 494 (C.A.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Issasi v. Rosenzweig, 2011 ONCA 112, Duca Community Credit Union Ltd. v. Giovanni et al. (2001), 142 O.A.C. 146 (C.A.), Liu v. Wong, 2016 ONCA 366, Jonsson v. Lymer, 2020 ABCA 167, Moore v. Apollo Health & Beauty Care, 2017 ONCA 383, R. v. Tossounian, 2017 ONCA 618, Girao v. Cunningham, 2020 ONCA 260, R. v. Morillo, 2018 ONCA 582, Gadsby v. British Columbia (Attorney General), 2019 BCSC 1596, Hryniak v. Mauldin, 2014 SCC 7, Carbone v. McMahon, 2017 ABCA 384, Wouters v. Wouters, 2018 ONCA 26, Bernard v. Canada (Attorney General), 2014 SCC 13, Sanzone v. Schechter, 2016 ONCA 566, Ter Neuzen v. Korn, [1995] S.C.R. 674, Browne v. Dunn, [1894] H.L. 67, Gibb v. Pereira, 2017 ONSC 4762, J.N. v. C.G. 2023 ONCA 77
facts:
The self-represented moving party, C.B., applied for an extension of time to file a notice of appeal from a summary judgment dated August 31, 2023. The motion judge had granted the responding parties' summary judgment motions and dismissed C.B.'s medical malpractice action along with C.B.'s request for partial summary judgment on the issue of liability.
C.B. commenced the underlying action in 2017, claiming damages for negligence, negligent misrepresentation and breach of fiduciary duty against 27 doctors, as well as negligence and vicarious liability against Queensway Carleton Hospital. The thrust of C.B.'s claim was that the defendant doctors negligently failed to diagnose him with, and/or treat him for, Lyme disease between 2015 and 2018 and that he suffered injuries, including chronic Lyme disease, due to delayed diagnosis and treatment.
During the summary judgment hearing, the motion judge made three formal interim rulings, later contested by C.B. in his extension motion. The motion judge denied C.B.'s request to be qualified as an expert to give opinion advice on Lyme disease, deemed many documents upon which C.B. sought to rely inadmissible, and refused C.B.'s request to file a second affidavit from his proposed expert witness Dr. B.B.
In the summary judgement result, the motion judge found that all defendants had satisfied their evidentiary burden of establishing no genuine issue requiring trial with respect to any of C.B's claims, and dismissed C.B.'s action. She based her decision on medical records, affidavits from the doctors, and affidavits from seven expert witnesses stating each respective defendant doctor met the standard of care. Regarding the negligent misrepresentation claim, the motion judge found no evidence that the doctors made any statements that were untrue, inaccurate, or misleading. The motion judge dismissed C.B.'s breach of fiduciary duty claims as inextricably linked to his failed negligence claims. She also dismissed C.B.'s vicarious liability claim, since, per Yepremian, the Hospital was not liable for the actions of doctors not employed by it.
issues:
(1) Should C.B. be granted an extension of time to appeal?
holding:
Motion dismissed
reasoning:
No. The Court reiterated the familiar test on a motion for an extension of time to file a notice of appeal: whether the justice of the case requires that the extension be granted. Per Enbridge Gas, relevant considerations include whether the moving party formed a bona fide intention to appeal within the relevant time period, the length of and any explanation for the delay in filing, any prejudice to the responding parties caused by the delay, and the merits of the proposed appeal.
Did C.B. demonstrate a bona fide intention to appeal within the 30-day time period?
The Court held that this factor favoured an extension. It was uncontested that C.B. formed an intention to appeal immediately after reasons were released and communicated this intention to the responding parties well within the appeal period.
Did the length of the delay and C.B.'s explanation for it favour granting the motion?
Yes, but barely. The Court deemed this factor as either neutral or slightly favouring an extension. The 54-day delay before C.B. served his extension motion was not unduly lengthy amid years of ongoing litigation. C.B. argued the delay was due to his mistaken belief that the summary judgment reasons were interim. Although self-represented, the Court considered C.B. an experienced litigant who ought to be familiar with appeal-related procedures, but nevertheless found his explanation not unreasonable.
Did any prejudice result to the responding parties because of the delay?
No. This factor was neutral. No prejudice was asserted and the Court saw none.
Did the merits of the proposed appeal favour granting an extension?
No. The Court concluded this important factor weighed against granting an extension. No grounds of appeal arose from the interim rulings or other alleged errors in the summary judgment decision. Per Issasi, the appeal merits factor must be assessed by determining whether the appeal is so meritless that a court could reasonably deny the important right of appeal. The defendant doctors argued there was no merit in C.B.'s appeal first because the motion judge correctly excluded Dr. B.B. as an expert. They claimed there can be no genuine issue requiring trial where a medical negligence plaintiff fails to call expert evidence. They further asserted that C.B. failed to identify any arguable ground of appeal. For his part, C.B.'s proposed grounds of appeal boiled down to the motion judge's alleged failure to grant the procedural leniency necessary to enable a self-represented litigant to argue their case, and reasonable apprehension of bias.
The motion judge's first formal interim ruling denied C.B.'s motion to act as an expert and ruled the "Beazley reports" he prepared inadmissible. The Court held that C.B. raised no arguable grounds of appeal related to this ruling. C.B.'s arguments did not squarely address the motion judge's statement of trite law, citing Marshall, that a party cannot function as their own expert. Furthermore, the Court saw no error in the exclusion of the Beazley reports because they contained obvious indicators of C.B.'s inability to give fair and non-partisan opinion evidence.
In her second interim ruling, the motion judge found that 57 documents on which the appellant sought to rely were inadmissible. C.B. argued she erred in this ruling by prejudging admissibility, failing to afford sufficient leniency to a self-represented litigant, and applying a mechanical, heavy-handed approach to procedure resulting in improper exclusion of documents. The Court found little merit in these arguments especially since C.B. did not demonstrate that excluding the documents adversely impacted his case. Moreover, transcript samples alleged by C.B. to show reasonable apprehension of bias instead revealed that the motion judge carefully considered C.B.'s self-represented status and adapted procedures to accommodate him. Regarding the motion judge's treatment of evidentiary issues generally, the Court affirmed her conclusions that C.B. failed to comply with many Evidence Act provisions, and failed to meet common law criteria for the admissibility of internet information. Unlike in Gibb and J.N. where the courts excused minor technical deficiencies in filings by self-represented litigants, here C.B. made inexcusable mistakes when he proceeded by way of a data dump of online information even after receiving guidance on proper filing.
The Court further held that the motion judge made no error concerning Dr. B.B. In her third interim ruling, the motion judge denied C.B.'s request to file a second Dr. B.B. affidavit, ruling that Dr. B.B. was not a qualified expert, since he had no recent experience treating Lyme disease and his evidence was not objective: he relied unquestioningly on C.B.'s version of events. The Court endorsed the motion judge's opinion that the second affidavit was intended to shore up deficiencies in Dr. B.B.'s original affidavit, and that admitting it would insurmountably prejudice the responding parties.
Finally, the Court found no merit in several other alleged errors in the summary judgment ruling that C.B. argued constituted grounds of appeal. The motion judge correctly concluded that C.B. needed expert evidence to refute the defendants' expert evidence, which he failed to provide. C.B.'s claim that the defendant expert evidence was unsubstantiated also failed: medical standard of care evidence involves assessing a physician's conduct by considering the conduct of other physicians in the same specialty – physician experts need not refer to sources.
All factors considered, did the justice of this case require that an extension of time to appeal be granted?
No. The Court ultimately held that C.B.'s proposed appeal had such minimal merit that the justice of the case did not warrant granting an extension. C.B. did not raise an arguable ground of appeal, and his self-represented status did not permit the Court to overlook the numerous deficiencies in his case.
Bradshaw v. Hougassian, 2024 ONCA 425
[Van Rensburg, Sossin, and Dawe JJ.A.]
Counsel:
J. Postnikoff, for the appellants
L. Tupman and D. McMurtry, for the respondent
Keywords: Wills and Estates, Property Law, Purchase Money Resulting Trust, Presumption of Resulting Trust, Gifts, Contracts, Loans, Evidence, Admissibility, Corroboration, Evidence Act, R.S.O. 1990, c. E.23, s.13, Nishi v. Rascal Trucking Ltd., 2013 SCC 33, Pecore v. Pecore, 2007 SCC 17, Trustee of Estate of A.M.K. Investments Limited v. Kraus, (1996) 42 CBR (3d) 227, Krates Keswick Inc. v. Crate, 2017 ONSC 6195, Hornstein v. Kats, 2020 ONSC 870, Andrade v. Andrade, 2016 ONCA 368, Caroti v. Vuletic, 2022 ONSC 4695, Singh v. Kaler, 2017 ABCA 275, Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, Sands Estate v. Sonnwald, [1986] O.J. No. 478 (H.C.)
facts:
The appellants appealed from a judgment finding that the respondent estate had a beneficial interest in 26% of the value of a house owned by one of the appellants.
In 1980, one of the appellants, JH, purchased a house in Cambridge, Ontario for $38,500. He and his mother (VH), both signed the agreement of purchase and sale, but only JH went on title as the legal owner of the property. At the time, JH was a 22-year-old university student, but he had money saved from summer jobs, and he contributed $8,000 of the purchase price. VH contributed $10,000, and the remaining $20,500 was financed through a mortgage in JH's name, which VH signed as a guarantor.
JH is a successful businessman, and it was undisputed that he provided generous financial support to his mother during her lifetime. VH excluded him from her will, but the parties agreed, and the trial judge found, that this was not "because of any disaffection with JH, but rather because of VH's recognition that her son was well-accomplished financially and his sisters were not."
The central disputed question at trial was whether the $10,000 that VH contributed to the down payment had been a loan to JH, or whether she intended the payment to give her an equity share in the house. JH maintained that this money was a loan, and that he repaid it to his mother within one year. However, the trial judge rejected JH's evidence on this issue. Applying the doctrine of purchase money resulting trust, he found that VH's estate had a 26% share of the property, based on VH having contributed 26% of the original purchase price.
issues:
(1) Did the trial judge err in law by failing to consider and apply the legal requirements for finding a purchase money resulting trust?
(2) Did the trial judge err by finding that the corroboration requirement in section 13 of the Evidence Act applied to the appellants' evidence?
holding:
Appeal dismissed.
reasoning:
(1) No. The appellants relied on a line of authority that a person claiming a resulting trust "must also prove that he or she acted throughout as a purchaser." According to the appellants, this meant that it was the respondent's burden to establish that VH had acted in a manner consistent with having an ownership interest in the property throughout the time that she lived there. They argued that the trial judge erred by ignoring this supposed precondition for finding a purchase money resulting trust.
The appellants' argument reflected two misunderstandings of the applicable legal principles. First, the doctrine of purchase money resulting trust focuses on the parties' intentions at the time the purchase money is advanced. Accordingly, to the extent that there can be said to be any requirement that the claimant has "acted ... as a purchaser", this requirement only applies at the point that the purchase money is advanced. Evidence about how a claimant conducts themselves afterwards may be relevant, but only to the degree that it sheds light on what they intended when they advanced the purchase money. The statement that the claimant must act as a purchaser "throughout" should accordingly be understood as referring only to the time of the transaction itself. Second, the requirement that the claimant has "acted ... as a purchaser" means nothing more than that they must not have meant the money they advanced to be either a gift or a loan.
The Court also saw no reversible error in the trial judge's conclusion that the appellants had not met their onus on this issue. The trial judge properly considered all of the evidence, including the evidence that JH had covered most of the expenses associated with the property for most of the years that VH lived there, and the evidence that she had not included the property among her assets when she filed for bankruptcy in 2006. This evidence was all potentially relevant to the question of what VH's intentions had been when she paid the $10,000 down payment in 1980, but none of it was determinative.
The trial judge ultimately concluded that it would not have made sense for VH to have loaned money to her son in 1980, given their respective financial and life circumstances at the time. This was a finding that the trial judge was entitled to make on the evidence before him.
(2) Not decided. The appellants argued that because JH was not an heir under VH's will, and was being sued on the basis that he controlled the corporation that was the disputed property's legal owner, rather than in his capacity as one of the "heirs, next of kin, executors, administrators or assigns" of his late mother, section 13 of the Evidence Act had no application to him.
This argument was based on a misreading of section 13, which applies to actions by or against persons who fall into the listed categories. While it is true that JH was not being sued in his capacity as a person listed in section 13, his sister was suing him in her capacity as the executor of VH's estate. This made JH "an opposite or interested party" to whom the section 13 corroboration requirement applied.
The appellants argued further that even if the section 13 corroboration requirement did apply to JH, the trial judge erred by not treating the evidence that VH had not listed the property among her assets when she filed for bankruptcy in 2006 as corroborative of JH's evidence that the $10,000 she contributed to the house down payment was a loan.
The Court did not find it necessary to decide whether the evidence of VH's 2006 bankruptcy filings could properly be viewed as corroborating JH's evidence that her 1980 contribution to the purchase price was a loan. The Court came to this conclusion because the trial judge ultimately did not decide this case by applying the section 13 Evidence Act corroboration requirement to JH's evidence.
Rose-Terra Investments Inc. v. Chetti, 2024 ONCA 427
[Roberts, Trotter and George JJ.A.]
Counsel:
E. Cherniak, J. Damstra and D. Pomer, for the appellant
M. Whelton, E. Hiutin and W. Jiang, for the respondent
Keywords: Contracts, Real Property, Mortgages, Settlements, Defences, Undue Influence, Presumption of Undue Influence, Duress, Civil Procedure, Summary Judgment, Hryniak v. Mauldin, 2014 SCC 7, Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737, JGB Collateral v. Rochon, 2020 ONCA 464, Gold v. Rosenberg, [1997] 3 S.C.R 767, Laird v. Mulholland, [1998] OJ. No. 855
facts:
The appellant owns a property with a mortgage held by the respondent. The appellant defaulted on the mortgage in September 2018, prompting the respondent to issue a notice of sale. On January 31, 2019, the parties reached a settlement agreement and entered into minutes of settlement. The details included an extension to pay a discounted $2.55 million of the $2.7 million debt, which the appellant and her husband failed to pay.
The court granted an order declaring the mortgage was valid, and the respondent obtained a writ of possession. Subsequently, the property was sold for less than the settlement amount. The respondent commenced an action to recover the shortfall of $638,800.48 as damages.
In the amended statement of defence, the appellant pleaded that she was not the beneficial property owner, citing the property was transferred into her name without her knowledge and consent, that she never received proper legal advice, and signed the minutes of settlement under duress and/or undue influence exerted by her husband. The appellant requested that the matter proceed to trial.
The motion judge awarded a summary judgment for the respondent. The motion judge concluded that independent legal advice was not a genuine issue requiring a trial because the appellant was familiar with the transaction, held title to the property, was involved in related proceedings, and was represented by experienced counsel in several legal proceedings.
issues:
(1) Did the motion judge err in applying the wrong legal test in considering the allegations of undue influence and duress?
(2) Did the motion judge err in concluding that there were no genuine issues requiring a trial concerning the appellant's allegations of insufficient legal advice?
holding:
Appeal dismissed.
reasoning:
(1) No. The motion judge did not err in applying the legal test for undue influence and duress. The Court held that the motion judge applied the appropriate governing principles, finding that the appellant was represented by experienced counsel and entered into the minutes of settlement of her own free will.
The Court stated that when a presumption of undue influence is established, there may be a duty to inquire whether the agreement was obtained correctly (Gold at para. 78). Independent legal advice can help rebut the presumption, but it is not strictly required: see e.g., Bank of Montreal at paras. 25-27. The presumption can be rebutted if sufficient evidence shows the contract was made freely (Bank of Montreal at para. 25). The Court must assess each case's facts to determine if undue influence is rebutted. A transaction can be valid without legal advice if it reflects a free and independent mind (Bank of Montreal, at para. 25).
(2) No. The motion judge did not err in finding no genuine issue for trial. The Court stated that the motion judge's determination was based on the findings that the appellant was familiar with the transaction, represented by counsel, benefited materially from the settlement agreement, and had shared interests with her husband, eliminating the need for separate counsel. The Court also stated that the respondent had no duty to verify independent legal advice and could rely on the assurance of the appellant's counsel that she agreed to the settlement freely.
[Huscroft, Miller and Favreau JJ.A.]
Counsel:
M. Belansky, for the appellant
G. Campbell, for the respondent
Keywords: Family Law, Spousal Support, Variation, Material Change in Circumstances, Imputed Income, Johanson v. Hinde, 2016 ONCA 430, Rados v. Rados, 2019 ONCA 627, Levin v. Levin, 2020 ONCA 604, Korman v. Korman, 2015 ONCA 578
facts:
The appellant, A.W., appealed an order varying a separation agreement that significantly decreased her entitlement to spousal support.
The trial judge found that there was a material change in circumstances, given the respondent's change in income and the change in the children's principal residence. This led him to make an order varying the parties' separation agreement in several respects, including by requiring that the respondent pay child support to the applicant, and by reducing the applicant's entitlement to spousal support. The trial judge considered whether to impute income to both parties when deciding the appropriate amounts of child and spousal support. The trial judge imputed income to A.W. of $35,000 per year, and refused to impute income to the respondent, R.W., beyond his expected annual income of $80,000 at the time of trial.
issues:
(1) Did the trial judge err in imputing income to the applicant and in failing to impute any income to the respondent beyond his expected annual income for 2023?
holding:
Appeal dismissed.
reasoning:
No. The Court first acknowledged that the appellant only took issue with the trial judge's decision about imputing income, not the findings that there was a change in circumstances that warranted altering the separation agreement. The Court owed substantial deference to the trial judge's findings of fact and mixed fact and law. The Court also asserted that it would intervene in family law cases only when the trial judge's decision on factual matters clearly deviated from what is considered reasonable and distinctly incorrect.
The Court agreed with the trial judge that the decision to impute income to the applicant was based on the terms of the separation agreement, and the evidence of the respondent's efforts to find employment following their separation. The Court also agreed the appellant had not made reasonable efforts to find employment as required in the separation agreement. The imputed income of the trial judge was only an approximate equivalent to working full-time at a minimum wage. The Court found there was no basis to interfere with this aspect of the trial judge's decision, as the amount was modest and reasonable.
Regarding the trial judge's determination not to impute income to the respondent beyond his expected earnings, the Court found no palpable and overriding errors with respect to the respondent losing his job and his efforts to find a new one.
Legault v. TD General Insurance Company, 2024 ONCA 439
[Harvison Young, Sossin and Gomery JJ.A.]
Counsel:
A. Ismail, for the appellant
A. Odinocki and V. Dale, for the respondent
Keywords: Contracts, Insurance, Fire Policy, Defences, Fraud, Remedies, Forfeiture, Civil Procedure, Evidence, Admissibility, Expert Evidence, Costs, D.W. Matheson & Sons Contracting Ltd. v. Canada (Attorney General), 2000 NSCA 44, 186 N.S.R. (2d) 62, Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.)
facts:
The appellant appealed a judgment in favour of the respondent, TD General Insurance Company ("TD"), in relation to TD's denial of a claim under a homeowner's insurance Policy (the "Policy") following a fire at the appellant's home. The basis for TD's denial was the appellant's fraudulent action in making a false declaration with respect to her additional living expenses while residing outside her home, resulting in forfeiture of coverage under the Policy. The trial judge found that TD knew it had an obligation under the Policy to cover substitute housing costs and the appellant's representation that she had found suitable housing at 268 Bay was material to TD's decision to pay rent to W.O. The trial judge found TD was justified in treating the Policy as forfeited on a fraudulent basis and granted TD damages pursuant to a counterclaim brought against the appellant, in addition to an award of costs. The trial judge found that the lease of 268 Bay appeared to create a legitimate tenancy but was created by the appellant and W.O to secure payment from TD for purposes other than rent.
The trial judge also refused to bar two of TD's professional witnesses from testifying on the basis that they were financially compensated for their preparation time and trial attendance in a mid-trial ruling. Even though the appellant had no right to recovery under the Policy, the trial judge proceeded with an assessment of the appellant's alleged damages. She found that the appellant was not responsible for any additional damage caused by flooding in the house after the fire but that the financial consequences of the structural damage could not be claimed against TD. Moreover, she found that TD established its entitlement to judgment on its counterclaim in the amount of $207,767.84 plus interest.
issues:
(1) Did the trial judge err by failing to consider TD's alleged breaches of the Policy and by finding that the appellant's fraud erased these breaches?
(2) Did the trial judge err in her mid-trial ruling by allowing TD to pay two professional witnesses to testify?
(3) Did the trial judge err in her cost award?
holding:
Appeal dismissed.
reasoning:
(1) No. The Court saw no error with the trial judge's analysis or conclusions on the question of the appellant's fraud and its effect on her ability to recover under the Policy. The appellant argued that TD should not be permitted to rely on the insurance contract because it breached the contract by 1) failing to provide a proof of loss form within 60 days of the loss; 2) failing to maintain the appellant's normal standard of living; 3) asking her to execute an interim proof of loss without explaining its significance; and 4) conducting a less than thorough investigation. The Court agreed with the trial judge's analysis that the fraud by the appellant vitiated TD's obligations under the Policy.
(2) No. The Court agreed with the trial judge that the witnesses could be classified as "professional." The appellant argued that paid professional witnesses create a reasonable apprehension of bias. The Court agreed with the trial judge's reasoning, relying on D.W. Matheson & Sons Contracting Ltd. v. Canada (Attorney General) and other case law to provide a rationale for why it is in the interests of justice to permit testimony from professionals who have been compensated for their time. The Court also noted that the appellant had not challenged the trial judge's factual findings, presumably including those which may have relied on the professional witnesses' evidence.
(3) No. The Court asserted that the threshold for leave to appeal costs is a high burden, referencing Canadian Tire Corporation, Limited v. Eaton Equipment Ltd. at para. 13. The appellant argued that the trial judge "incorrectly" permitted TD to claim excessively high fees due to the novelty of the issues in the case. The appellant also argued that the novelty factor may be used to reduce a losing party's fees, not to increase a successful party's fees. The Court found that the trial judge's exercise of discretion with respect to costs was entitled to deference and saw no basis to interfere with the trial judge's decision on costs.
[Doherty, Pepall and Zarnett JJ.A.]
Counsel:
K. Hille, N. Kennedy, G. Cook and Y. Shin, for the appellants
S. Davis and I. Kamal, for the respondents
Keywords: Aboriginal and Indigenous Law, Environmental Protection, Right to Protection, Duty to Consult, Constitution Act, 1982, R.S.C. 1985, s. 35(1), Environmental Assessment Act, R.S.O. 1990, c. E.18, ss.3.2, 33.1, Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25, ss. 1, 26, 57(1), 58(1)(b), 64(1)(b), Judicial Review Procedure Act, R.S.O. 1990, c. J.1., COVID-19 Economic Recovery Act, 2020, S.O. 2020, c. 18, Endangered Species Act, 2007, S.O. 2007, c. 6, Environmental Bill of Rights, 1993, S.O. 1993, c. 28, Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks), 2021 ONSC 452, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, R. v. Sparrow, [1990] 1 S.C.R. 1075, Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345, Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, Ermineskin Cree Nation v. Canada (Environment and Climate Change), 2021 FC 758, Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, Mi'kmaq of P.E.I. v. Province of P.E.I., 2019 PECA 26, Buffalo River Dene Nation v. Saskatchewan (Minister of Energy and Resources), 2015 SKCA 31, Hupacasath First Nation v. Canada (Minister of Foreign Affairs and International Trade Canada), 2015 FCA 4, Klahoose First Nation v. Sunshine Coast Forest District, 2008 BCSC 1642, Dene Tha' First Nation v. Canada (Minister of the Environment), 2006 FC 1354, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, McAteer v. Canada (Attorney General), 2014 ONCA 578, Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 123, R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Assn. of Alberta, [1982] Q.B. 892, Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 FC 517, Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 123
facts:
The appellants, First Nations from across the province, applied for judicial review concerning MNR-75 (a regulation on forest management planning under the Environmental Assessment Act ("EAA")) and Bill 197. They argued that their exclusion from the deliberations of Bill 197 and subsequent amendments to the EAA breached (1) the Crown's duty to consult and (2) the honour of the Crown more generally.
At the Divisional Court, the application for judicial review was dismissed. The Divisional Court was unanimous in its view that no duty to consult arose in the law-making process (Mikisew Cree First Nation). Although the Supreme Court of Canada outlined some narrow exceptions, the facts in this case did not meet any such exception. Furthermore, the court unanimously held that it was the wrong forum to consider the appellants' substantive claims concerning Bill 197. The Divisional Court affirmed that it had no jurisdiction under the Judicial Review Procedure Act to consider whether legislation violates s. 35(1) of the Constitution Act, 1982. As to the revocation of MNR-75, the Divisional Court was divided.
The majority held that no adverse effect on the appellants' protected rights gave rise to a duty to consult. Even if there was a duty, the majority considered that it was at the lower end of the spectrum and that the Crown's consultation efforts were reasonable. In dissent, Corbett J. held that due to the appellants' strong interest in forest management and Ontario's history of mismanagement, the Crown had a duty to consult more thoroughly. Corbett J. believed the consultation efforts were inadequate and would have declared the Crown's duty unfulfilled, rendering the revocation of MNR-75 unlawful and invalid.
issues:
(1) Did the Divisional Court err in taking a narrow view, precluding the appellants' claim that their exclusion from deliberations on Bill 197 implicated the honour of the Crown?
(2) Did the Divisional Court majority err in failing to find that a duty to consult arose from the removal from oversight of the Ministry of Environment, Conservation and Parks (MECP), a feature of MNR-75?
(3) Did the Divisional Court majority err in ruling that the economic benefits under MNR-75 were not constitutionally protected and that their revocation did not trigger the duty to consult?
holding:
Appeal dismissed.
reasoning:
(1) No. The Court affirmed that the Divisional Court did not err and held that the honour of the Crown is an interpretive principle, not a freestanding cause of action. This principle guides how the Crown must observe its obligations, including fiduciary duties to Aboriginal interests and treaty commitments, but does not create those obligations.
According to Mikisew Cree First Nation, the duty to consult did not apply to the law-making process. The Court found that the duty to consult did not arise from a government representative's statement promising consultations before passing legislation. Such a statement did not create a s. 35(1) obligation to which the honour of the Crown is attached. The Court also held that if the law-making process was exempt from the duty to consult, the honour of the Crown was not engaged when changing legislative provisions that previously required consultation. The Court found no right implicated that engaged the honour of the Crown on the present facts.
(2) No. The Court held that the Divisional Court did not err in failing to find a duty to consult.
For a duty to consult to arise, Crown conduct or decisions must engage potential Aboriginal or treaty rights: Haida Nation, para. 35; Rio Tinto, at paras. 31, 51. This duty applies to executive actions, not legislative ones, as established in Mikisew Cree First Nation. The Crown's conduct must have a direct or potential adverse impact on Aboriginal rights, and past wrongs alone are insufficient to demonstrate this: Rio Tinto, at paras. 40, 51. The possible impact must be concrete and not speculative: Rio Tinto, at para. 46; Buffalo River, at para 90. The Court of Appeal held that strategic decisions that affect regulatory regimes in a way that reduces Indigenous communities' participation in decision-making regarding their rights will trigger the duty to consult.
On the facts, the Court affirmed that the appellants did not clearly identify a specific Aboriginal right or claim adversely impacted by the revocation of MNR-75. The historical failures of the Ministry of Natural Resources and Forestry ("MNRF") do not create an Aboriginal right or claim.
The Court emphasized that MECP oversight itself is not an Aboriginal right. The substantive regulatory regime requires the MNRF to consult with Indigenous communities. The removal of MECP oversight did not change the legal obligations of the provincial Crown or adversely impact the appellants' Aboriginal rights. The Court found no causal connection between the removal of oversight and any adverse impact on Aboriginal interests.
Additionally, the Court noted that the revocation of MNR-75 did not reduce the Crown's consultation obligations for future forestry management decisions. The regulatory framework under the Crown Forest Sustainability Act still provides for meaningful consultation. The adverse impacts cited by the appellants were deemed speculative, and the MNRF remains responsible for regulatory decisions, ensuring the protection of Aboriginal rights.
(3) No. The Court held that the Divisional Court majority did not err. The Court found that Condition 56 of MNR-75 did not involve specific Aboriginal or treaty rights under s. 35(1), making the appellants' claims speculative and unsubstantiated.
The Court noted that reliance on the Federal Court decision in Ermineskin was inappropriate, as the cases involved unsettled land claims and specific s. 35(1) rights which were not applicable here. The appellants did not connect the economic benefits in Condition 56 to any particular Aboriginal right or claim. Furthermore, the assertion that revoking MNR-75 would adversely affect economic benefits was speculative. The Court emphasized that the Sustainable Forest Licences provide a framework for cooperation with Aboriginal communities, concluding that any potential adverse impact from the revocation of Condition 56 was insufficient to establish a duty to consult.
SHORT CIVIL DECISIONS
Rathod v. Chijindu, 2024 ONCA 420
[Young, Sossin and Gomery JJ.A.]
Counsel:
I.C., acting in person/moving party
J.C. acting in person/moving party
C.C. acting in person/moving party
A. Sidhu, for responding party, H. R.
B. Belmont, for responding party, Bluekat Capital Corp.
Keywords: Civil Procedure, Security for Costs, Rules of Civil Procedure, 61.06 (1) (a)(c), Rathod v. Chijindu, 2024 ONCA 317, Henderson v. Wright, 2016 ONCA 89
Hamilton v. Vaughan, 2024 ONCA 429
[Harvison Young, Sossin and Gomery JJ.A.]
Counsel:
J.V., acting in person
C. Salazar, for the respondent/responding party
Keywords: Civil Procedure, Appeals, Extension of Time, Panel Review, Courts of Justice Act, R.S.O. 1990, c C.43., s. 137.1 and 137.4, Rules of Civil Procedure, r 15.03(1), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, The Catalyst Capital Group Inc. v. West Fact Capital Inc., 2021 ONSC 125
Lepan Estate v. Lofranco Chaqpar Barristers, 2024 ONCA 442
[Lauwers, van Rensburg and Thorburn JJ.A.]
Counsel:
K. Arvai, for the appellant
J. Pedro, for the respondents
Keywords: Costs
Hunt Family Growth Equity Trust v. Love, 2024 ONCA 434
[Huscroft, Trotter and Coroza JJ.A.]
Counsel:
C. Spry, B. Monahan and A. Gold, for the appellants
M. Shortreed, M. Fenrick and E. Wall, for the respondents
Keywords: Torts, Professional Negligence, Accountants, Civil Procedure, Limitation Periods, Summary Judgment, Grant Thornton LLP v. New Brunswick, 2021 SCC 31
2270752 Ontario Inc. v. Century 21 New Star Realty Inc., 2024 ONCA 444
[Huscroft, Trotter and Coroza JJ.A.]
Counsel:
B. Radnoff and V. Ford, for the appellant A.D.
J. Levitt, for the appellant B.D.
M. Simaan, for the respondent
Keywords: Breach of Trust, Fraudulent Conveyances, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 Bank of Montreal v. Iskenderov, 2023 ONCA 528
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