Below are this week's summaries of the civil decisions of the Court of Appeal.
While there were several civil decisions released by the Court of Appeal this week, they were, for the most part, procedural in nature. Topics covered included striking pleadings in the family law context, vexatious litigants, insolvency, wills and estates, and debtor-creditor.
CIVIL DECISIONS:
Laurentian Bank of Canada v. Bernier, 2018 ONCA 23
[Doherty, Benotto and Huscroft JJ.A.]
Counsel:
Kevin Scullion, for the appellant
James M. Butson and Cristina Internicola, for the respondent
Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment, Orders, Setting Aside, Fresh Evidence, Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670
Facts:
The appellant was sued by the respondent bank for a shortfall when it repossessed and sold a motorcycle that had been purchased by her husband with financing provided by the bank. The respondent was named as co-defendant because the loan document bore her signature as guarantor of the loan. Her husband filed a statement of defence on behalf of both defendants, but neither contested the motion and the respondent was granted summary judgment. The respondent took steps to enforce the judgment debt and scheduled an examination of the appellant. The appellant failed to attend two examinations scheduled subsequently. The respondent then brought a motion to compel her attendance. The appellant did not attend and an order of costs was made. The appellant did not pay and has not paid any outstanding costs orders.
In January 2016, the appellant brought a motion to set aside the judgment and swore an affidavit alleging that her husband, who died in 2011, entered the contract to purchase the motorcycle and forged her signature. No supporting evidence was adduced.
Issue: Should the summary judgment be set aside in light of fresh evidence?
Holding: Appeal dismissed.
Reasoning:
No. The motion judge properly applied the test set out by the court in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670. On the motion, the appellant proffered no expert evidence to support her claim that her signature had been forged, nor did she provide an adequate explanation for her delay in moving to set aside the judgment. The motion judge found that the respondents would be prejudiced given the four-year delay in attempting to realize on the judgment. The onus was on the appellant to demonstrate that the order should be set aside. Ultimately, the motion judge was not satisfied that she met her burden. His discretionary decision is entitled to deference. Further, the appellant's fresh evidence application was available when the motion was brought and it was incumbent on the appellant to produce it at that time.
Midland Resources Holding Limited v. Shtaif, 2018 ONCA 33
[Doherty, Brown and Roberts JJ.A.]
Counsel:
Michael Shtaif and Eugene Bokserman, in person
Symon Zucker, for the respondents Midland Resources Holding Limited, Alex Shnaider and Eduard Shyfrin
Keywords: Civil Procedure, Appeals, Applications for Reconsideration, Rules of Civil Procedure, Rule 59.06(2)(d)
Facts:
By reasons released April 20, 2017, the court: (i) dismissed the appeal by Eugene Bokserman of the US$1.5 million judgment against him; and (ii) allowed, in part, the appeals by Michael Shtaif and Gregory Roberts, reducing the judgments against them to US$8.27 million.
Shtaif and Bokserman moved under rule 59.06(2)(d) of the Rules of Civil Procedure for a "reconsideration" of the court's decision to maintain awards of damages against them. Rule 59.06(2)(d) states: "A party who seeks to ... (d) obtain other relief than that originally awarded, may make a motion in the proceeding for the relief claimed." The appellants contended that the trial judge "miscalculated" Midland's damages as at June 20, 2006, by only considering the accruing loss at that date, without considering the accruing gain which, they contended, flowed from the closing of the Reef Energy transaction after that date. They argue that it was not fair or just for the court to rely on the trial judge's miscalculation of damages in affirming the judgment in part.
Issues:
(1) Should the court reconsider the damages awarded against the appellants?
Holding: Appeal dismissed.
Reasoning:
(1) No. Shtaif and Bokserman are not simply pointing out a "mathematical oversight" in the trial judge's damage calculation; they are advancing a theory of damages not argued on the appeal. In their appeal factum, the appellants identified seven grounds of appeal, none of which involved a claim that the trial judge miscalculated Midland's damages as of June 20, 2006, by failing to take into account any post-June 20, 2006 gain. Although the appellants did submit the trial judge erred in finding Midland acted reasonably to mitigate its damages, the court did not give effect to that ground of appeal. Consequently, r. 59.06(2)(d) offers no basis for the court to "reconsider" its decision.
Struik v. Dixie Lee Food Systems Ltd., 2018 ONCA 22
[Feldman, Pepall and Huscroft JJ.A.]
Counsel:
Robert J. Reynolds, for the moving party
Jillian Burford-Grinnell, for the respondent, Dixie Lee Ontario Ltd.
Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Standing
Facts:
On January 23, 2017, Rasaiah J. granted partial summary judgment to Maria Struik ("Struik"). She declared Dixie Lee Ontario Ltd. ("DLOL") to be a guarantor of certain obligations and ordered it to pay Struik monthly amounts together with interest and costs. On March 1, 2017, DLOL served a notice of appeal after the time to appeal.
On March 3, 2017, Rasaiah J. granted a further order appointing Struik as the Receiver of all of the assets, undertaking and property (the "Property") of DLOL with the power to take possession, control and manage the business of DLOL and, on notice to DLOL and Joseph Murano (the directing mind of DLOL), market and sell the Property. All rights and remedies against DLOL, the Receiver, or affecting the Property were stayed.
DLOL sought an extension of time to serve and file the notice of appeal of the receivership order. A chambers judge of the Court of Appeal granted the extension by order dated August 1, 2017. It is not clear if the receivership order was brought to the attention of the chambers judge. Struik brought this motion before a panel to review the order of the chambers judge.
Issues:
(1) Should the order of the chambers judge extending the time to appeal be set aside?
Holding: Motion granted.
Reasoning:
(1) Yes. The thrust of the notice of appeal is that Struik breached and repudiated the contract relating to the guarantee, thereby releasing DLOL from the guarantee. In lengthy and detailed reasons, Rasaiah J. expressly addressed this issue noting that the language of the guarantee precluded such defences and claims. Other than disagreeing with the order, no specific error could be identified by the appellant.
Moreover, the justice of the case is not served by permitting the appeal to proceed. Although not raised by either party, given the terms of the receivership order, the party purporting to resist the motion and to proceed with the appeal of the January 23, 2017 judgment, namely DLOL, has no status independent of the receiver to do so.
Van Sluytman v. Muskoka (District Municipality), 2018 ONCA 32
[Pepall, Benotto and Paciocco JJ.A.]
Counsel:
Rory Adrian Van Sluytman, acting in person
M Williams and J Glick, for the respondent, the Attorney General of Ontario (C63372, C63373, C63380 and C64065)
J W Clow and M J Hudswell, for the respondent, the District Municipality of Muskoka (C63372 and C63373)
L Crowell, for the respondents, Orillia Soldiers' Memorial Hospital (C63375) and Muskoka Algonquin Healthcare (C63377)
K Kalogiros and B Mattalo, for the respondent, Dr. Anthony Denning Shearing (C63376)
P D Duda, for the respondent, Muskoka-Parry Sound Community Mental Health Service (C63378)
Ian S. Epstein and Zack Garcia, for the respondent, Lake Country Community Legal Clinic (C63380)
M Abraham, for the respondent, Legal Aid Ontario (C63380)
H Sheikh, for the respondent, the Attorney General of Canada
P Sibenik and W Wong for the respondent, Legislative Assembly of Ontario (C63380)
Keywords: Civil Procedure, Vexatious Litigants, Self-Represented Litigants, Frivolous or Vexatious Actions, Summary Dismissal, Rules of Civil Procedure, r. 2.1.01(1), Gao v. Ontario WSIB, 2014 ONSC 6100, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Courts of Justice Act, s. 140, Re Lang Michener et al. v. Fabian et al. (1987) 59 O.R. (2d) 353 (H.C.)
Facts:
The appellant, Mr. Van Sluytman, brought eight appeals before the Court of Appeal. Seven appeals concerned orders made by the Superior Court of Justice under the summary procedure provided for in Rule 2.1.01(1) dismissing actions brought by the appellant on the basis that they were frivolous or vexatious (the "Rule 2.1.01 Orders"). The eighth appeal was an appeal of an application that had been brought by the Attorney General of Ontario, wherein the appellant was declared a vexatious litigant under s. 140 of the Courts of Justice Act (the "Vexatious Litigant Order").
The appellant's claims in the actions giving rise to the Rule 2.1.01 Orders related generally to his numerous complaints about his interactions, over many years, with various government agencies, law enforcement officials, and mental health care and medical personnel in Ontario. For each of the R. 2.1.01 Orders, the reviewing judge considered the governing principles concerning the exercise of the court's discretionary authority under R. 2.1.01 as set out in such leading authorities as Gao v. Ontario WSIB, 2014 ONSC 6100, Gao v. Ontario WSIB, 2014 ONSC 6497 and Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733. It was found that each action's statement of claim exhibited many of the hallmarks of pleadings in vexatious actions and, in each case, the reviewing judge concluded that the appellant's pleading: (i) failed to advance a clear or legitimate cause of action; (ii) was replete with the type of grandiose claims that characterize vexatious actions; and/or (iii) in some instances, asserted one or more claims that were barred by the expiry of a governing limitation period. Accordingly, the actions were dismissed pursuant to Rule 2.1.01.
Issues:
(1) Did the reviewing judge err in ordering the Rule 2.1.01 Orders on the basis of drafting deficiencies in the appellant's pleadings?
(2) Did the reviewing judge err in ordering the Rule 2.1.01 Orders in light of the appellant's allegation that government authorities failed to provide him with directions regarding how to proceed with an action in compliance with the Rules of Civil Procedure?
(3) Did the reviewing judge err in ordering the Rule 2.1.01 Orders in light of the alleged absence of any notice given to the appellant, as required by R. 2.1.01(3)1?
(4) With respect to the Vexatious Litigant Order, did the application judge err in declaring the appellant a vexatious litigant pursuant to s. 140 of the Court of Justice Act?
Holding: Appeals dismissed.
Reasoning:
(1) No. Having considered the appellant's pleadings in each proceeding, the Court of Appeal agreed with the reviewing judges that they fell far short of meeting the pleadings requirements applicable to all litigants. Further, they failed to advance any justiciable cause of action. On this ground alone, it was open to the reviewing judges to dismiss the appellant's actions using R. 2.1.01(1).
In light of the Court of Appeal's conclusions, it did not consider whether the expiry of a limitation period may be relied upon as an independent basis on which to dismiss an action under R. 2.1.01(1).
(2) No. The involved government authorities were not obliged at law to furnish directions to the appellant, a self-represented litigant, on how to frame and plead his claims against the respondents. The Rules of Civil Procedure provide detailed and clear procedures for the commencement of proceedings and delineate the requisite and permissible contents of pleadings. The appellant was obliged to comply with the Rules of Civil Procedure, but failed to do so.
(3) No. Although it is not entirely clear whether notice was given in all seven actions, it was evident that notice was given in the action before Di Luca J. and in at least two of the actions before Wood J., who had dealt with six of the appellant's actions concurrently. Moreover, in oral submissions, the appellant conceded that he may have had received notice in one or two of the actions. It is clear that notice was directed to be given and was given in at least some of the actions. Even if the appellant did not receive notice under R. 2.1.01 to make submissions, the Court held that no prejudice or injustice would in any event arise given that the outcome would have been unaffected by submissions.
(4) No. The Court of Appeal reached a similar conclusion regarding the appellant's appeal from the Vexatious Litigant Order, finding that this discretionary order was amply justified. The application judge concluded that the various actions commenced by the appellant are a classic reflection of many of the characteristics outlined in Re Lang Michener et al. v. Fabian et al. (1987) 59 O.R. (2d) 353 (H.C.) (a case that describes many of the salient characteristics of vexatious proceedings).
Wouters v. Wouters, 2018 ONCA 26
[Simmons, Cronk and Paciocco JJ.A.]
Counsel:
Suzor, for the appellant
G. McFadyen, for the respondent
Keywords: Family Law, Striking Pleadings, Breach of Court Orders, Natural Justice, Procedural Fairness, Self-Represented Litigants, Family Law Rules, Rules of Civil Procedure, Irregularities
Facts:
On November 22, 2016, the wife brought a motion returnable on December 8, 2016 seeking, among other things, an order striking the husband's pleadings for failing to comply with various court orders. In the same motion, the wife also asked for an order rectifying the overpayment of support of $53,996.19 by setting it off against support payments of $77,371.10, which she asserted had been paid from her share of funds held in trust.
On December 12, 2016, the husband brought a motion returnable December 15, 2016, seeking a payout of $50,000 from the proceeds of sale of the farm property held in trust by the wife's counsel. On December 15, 2016, the husband brought a motion returnable December 22, 2016, requesting leave to call oral evidence from his accountant on his motion for an accounting.
On December 22, 2016, the motion judge granted leave to the husband to call oral evidence from his accountant. This December 2016 order was, in part, subject to the accountant providing a letter to the wife's counsel by January 20, 2017, outlining his intended evidence. However neither the motion judge's handwritten endorsement, nor a typed transcription, included the requirement that the accountant's letter go to the wife's counsel.
The motion judge struck the husband's pleadings noting that the continuing record consisted of 12 volumes and disclosed that 16 judges had been involved in the case. He observed that the wife's affidavit set out many examples of the husband's effort to stand in the way of the progress of the application and acts to the disadvantage of the wife. He also noted that the husband breached four orders.
Issues:
(1) Did the motion judge err in striking the husband's pleading?
Holding:
Appeal allowed.
Reasoning:
(1) Yes. The motion judge's rulings adversely affected the appellant's ability to respond to the wife's motion to strike.
The motion judge denied the husband the opportunity to call oral evidence from his accountant because the appellant had not delivered the accountant's letter as required by the terms of the December 2016 order. However, in making this ruling, the judge never grasped nor entertained the husband's point that the handwritten endorsement of the December 2016 order did not say that the letter should have been sent to the wife's counsel. Had the motion judge grasped the husband's position, it may have been possible to receive the accountant's evidence by affording the wife's experienced counsel an opportunity to review the accountant's letter that the appellant asserted he had filed with the trial coordinator.
The second ruling to strike the appellant's reply factum on the basis that it did not comply with the Family Law Rules also adversely affected the appellant's position because the motion judge failed to turn his mind as to whether the reply factum contained any material that could properly be considered on any of the motions before the court for the husband's benefit. Although the Family Law Rules and the Rules of Civil Procedure are designed, at least in part, to ensure procedural orderliness and efficiency, they are not so rigid or inflexible as to preclude the court from examining non-compliant documents submitted by self-represented litigants to ensure that any properly admissible portions are received. If the husband delivered documents in advance of the motion hearing to comply with outstanding undertakings or court orders, he should not have been precluded from demonstrating compliance because he did not file an affidavit in response to the motion to strike. If the documents or responses were included in his reply factum, that demonstrated pre-hearing compliance.
Also the motion judge was wrong to conclude that the records reveal a consistent effort by the wife's counsel to pursue outstanding disclosure or to get this matter on for trial. The records reveal that the wife and the wife's counsel also contributed to the delay.
Finally, in the context of not having a full picture of the husband's position on the motion to strike, the motion judge failed to properly consider whether any lesser remedy would suffice. It is a well-established principle in family law that pleadings should be struck only in exceptional circumstances and where no other remedy would suffice. Before striking pleadings, a court should consider the availability of any alternate remedy and the importance and materiality of any items not produced.
Ali v. Fruci, 2018 ONCA 41
[Strathy C.J.O., Hourigan and Miller JJ.A.]
Counsel:
C McClelland, for the appellant
R Budgell and L Thompson, for Mary Fruci
K Garland, for Robert David Willis
Keywords: Wills and Estates, Testamentary Capacity, Undue Influence
Facts:
The appellant, Lorilee Ali, appeals the judgment of the trial judge dismissing her action seeking to have certain wills of Florence Louisa Blackburn declared invalid. Ms. Ali was the great-niece of Ms. Blackburn, who died in June 2007. Over the course of a five-year period between 1998 and 2003, Ms. Blackburn executed three wills and two codicils. In Ms. Blackburn's 1998 will and two codicils executed in 1999, Ms. Ali was an estate trustee and the residual beneficiary. In wills created in 2000 and 2003, Ms. Ali was neither estate trustee nor beneficiary. Instead, in the 2000 will the respondents Mary Fruci and Robert Willis were beneficiaries and were respectively the estate trustee and alternate estate trustee. Pursuant to the 2003 will, Ms. Fruci was the residual beneficiary and Mr. Willis was the estate trustee. Mr. Willis was also entitled to the transfer of Ms. Blackburn's home upon her death. Ms. Ali commenced an action seeking to invalidate the 2000 and 2003 wills on the basis of lack of testamentary capacity, lack of knowledge and approval of contents, and undue influence. On appeal, Ms. Ali submits that the trial judge misapprehended the medical evidence regarding the issue of Ms. Blackburn's testamentary capacity. Further, she submits that the trial judge erred in failing to distinguish between Ms. Blackburn's capacity to manage property and financial affairs and her testamentary capacity.
Issues:
(1) Did the trial judge err in the analysis?
Holding:
Appeal dismissed.
Reasoning:
(1) In considering the issue of testamentary capacity, the trial judge carefully and thoroughly examined the evidence, including the evidence of Ms. Blackburn's doctor and other professional witnesses who testified as to her capacity. His conclusion that Ms. Blackburn had testamentary capacity was fully supported by the evidence. There was no error in the trial judge making reference to Ms. Blackburn's capacity to manage her property and financial affairs in his analysis of her testamentary capacity. That was relevant evidence that he was entitled to rely upon. The trial judge identified the correct legal test for testamentary capacity and properly applied it to the evidence.
SHORT CIVIL DECISIONS:
J.K. v. Ontario, 2018 ONCA 20
[Hoy A.C.J.O., Huscroft and Paciocco JJ.A.]
Counsel:
Tamara D. Barclay and Jonathan Sydor for the appellant, Her Majesty the Queen in right of the Province of Ontario
Kirk Baert and James Sayce for the respondent plaintiff, J.K.
Kirk Boggs for the respondents Banyan Community Services Inc. et al.
No one for the respondent Casatta Ltd.
Keywords: Costs Endorsement, Amendment of Pleadings
Dunn v. Dunn, 2018 ONCA 28
[Feldman, Pepall and Huscroft JJ.A.]
Counsel:
Andreus Snelius, for the appellant
Kevin Caspersz, for the respondent
Keywords: Family Law, Equalization of Net Family Property, Consent Orders
Trade Capital Finance Corp. v. Cook, 2018 ONCA 27
[Feldman, Pepall and Huscroft JJ.A.]
Counsel:
Peter Carey, for the appellant
Brendan Wong, for the respondents
Keywords: Civil Procedure, Mareva Injunctions, Writs of Seizure and Sale
772067 Ontario Limited v. Victoria Strong Manufacturing Corporation, 2018 ONCA 36
[Laskin, Trotter and Fairburn JJ.A.]
Counsel:
Paul Starkman, for the appellant
Clifford Cole, for the respondents
Keywords:Real Property, Commercial Leases, Commercial Tenancies Act, s. 19
Sultan v. Hurst, 2018 ONCA 37
[Feldman, Pepall and Huscroft JJ.A.]
Counsel:
Jillian van Allen, for the appellant
Jeffrey Goit, for the respondent
Keywords: Civil Procedure, Service, Validation, Rules of Civil Procedure, r. 14.08
Lord v. Clearspring Spectrum Holdings L.P., 2018 ONCA 38
[Doherty, Benotto and Miller JJ.A.]
Counsel:
Arthur Hamilton and Jed Blackburn, for the appellants
Robert Staley, Alan Gardner and William Burtolin for the respondents
Keywords: Costs Endorsement
St. James No. 1 Inc. v. VanderWindt, 2018 ONCA 44
[Feldman, Pepall and Huscroft JJ.A.]
Counsel:
Justin Nasseri, for the appellant
Daniell Bartley, for the respondents
Keywords: Real Property, Municipal Law, Heritage Buildings, Ontario Heritage Act, s. 34
CRIMINAL DECISIONS:
R v. Bebonang, 2018 ONCA 30
[Laskin, Cronk and Fairburn JJ.A.]
Counsel:
Paula Rochman, for the appellant
Amy Alyea, for the respondent
Keywords: Criminal Law, Attempted Murder, Aggravated Assault, Mens Rea, Evidence, Character Evidence, Criminal Code, s. 753
R v. Hasiu, 2018 ONCA 24
[Epstein, Paciocco and Nordheimer JJ.A.]
Counsel:
Eva Taché-Green, for the appellant
Jennifer Conroy, for the respondent
Keywords: Criminal Law, Drug Trafficking, Sentencing, Corrections and Conditional Release Act, Fresh Evidence, R. v. Palmer, [1980] 1 S.C.R. 759, Jurisdiction, Functus Officio, Nunc pro tunc, , R. v. Krouglov, 2017 ONCA 197, R. v. Malicia (2006), 82 O.R. (3d) 772 (C.A.)
R v. Hofsteede, 2018 ONCA 31
[Rouleau, Watt and Brown JJ.A.]
Counsel:
Lauren Binhammer, for the appellant
Althea Francis, for the respondent
Keywords: Criminal Law, Drug Trafficking, Sentencing, Repeat Offender
R v. Shahcheraghi, 2018 ONCA 29
[Rouleau, Watt, Brown JJ.A.]
Counsel:
Catriona Verner, for the appellant
Frank Au, for the respondent
Keywords: Criminal Law, Assault, Criminal Code, ss. 268 & 686, R. v. Lohrer, 2004 SCC 80
R v. Zagrodskyi, 2018 ONCA 34
[Laskin, Trotter and Fairburn JJ.A.]
Counsel:
Matthew Gourlay and Reem Zaia, for the appellant
Nancy Dennison, for the respondent
Keywords: Criminal Law, Domestic Abuse, Sexual Assault, Evidence, Immigration Law, Immigration and Refugee Protection Act
R v. Al-Kazragy, 2018 ONCA 40
[Feldman, Fairburn and Nordheimer JJ.A.]
Counsel:
Erika Chozik, for the appellant Payam Khastou
Naomi Lutes, for the appellant, Mohammad Al-Kazragy
Richard Posner and Lance Beechener, for the appellant Arash Arashvand
Elise Nakelsky and Peter Scrutton, for the respondent Crown
Keywords: Criminal Law, First & Second Degree Murder, Charge to Jury, Inconsistent Verdicts, R. v. Pittiman, 2006 SCC 9, R. v. Catton, 2015 ONCA 13, R. v. White, 2011 SCC 13, R. v. Villaroman, 2016 SCC 33
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
