Canada: Ontario Court Of Appeal Summaries (August 5 - 9, 2019)

Blaney's Appeals
Last Updated: August 21 2019
Article by John Polyzogopoulos

This was a light week for the Court of Appeal. Topics covered this week included the rescission of agreements of purchase of sale of condos arising out of material changes, and the allocation of parenting time and decision-making responsibilities.

In a provincial offences decision, the Court concluded that the popular game, "GotSkill", is a game of mixed skill and chance. Accordingly, the bars that offered it to their patrons were in contravention of their liquor licences for permitting "unlawful gambling", as defined by the Criminal Code. Perhaps they now need to change the name of the game to "GotSkill&Luck".

Table of Contents

Civil Decisions

Jung v. Talon International Inc., 2019 ONCA 644

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Condominiums, Material Changes, Rescission, Repudiation, Anticipatory Breach, Affirmation, Remedies, Specific Performance, , Civil Procedure, Summary Judgment, Amending Pleadings, Condominium Act, 1998, S.O. 1998, c. 19, s 74, Rules of Civil Procedure, Rules 20 and 26

Rigillo v. Rigillo, 2019 ONCA 647

Keywords: Family Law, Custody and Access

Provincial Offences and Criminal Decisions

R. v. P.S. (Publication Ban) , 2019 ONCA 637

Keywords: Publication Ban, Criminal Law, Invitation to Touching, Sexual Interference, Evidence, Admissibility, Minors, Video Evidence, Third Party Records,  Sentencing, R. v. L. (D.O.), [1993] 4 S.C.R. 419, R. v. Edgar, 2010 ONCA 0529, R. v. R.E.M., [2008] 3 S.C.R. 3, R. v. W.(D), [1991] 1 S.C.R. 742, R. v. L.L., 2009 ONCA 0413, R. v. Radcliffe, 2017 ONCA 176, leave to appeal refused, [2017] S.C.C.A. No. 274, R. v. Batisse, 2009 ONCA 114, R. v. D.(D.) (2002), 58 O.R. (3d) 788, R. v. Lacasse, 2015 SCC 64

R. v. Plange  , 2019 ONCA 646

Keywords: Criminal Law, Fraud over $5,000, Sentencing, Mandatory Minimum Sentence, Constitutional Law, Freedom from Cruel and Unusual Treatment or Punishment, Criminal Code, s.380(1.1), Canadian Charter of Rights and Freedoms, s. 12, R. v. Nur, 2015 SCC 15, R. v. Boudreault, 2018 SCC 58, R. v. Théroux, [1993] 2 S.C.R. 5, R. v. Goltz, [1991] 3 S.C.R, R. v. Koval, [2001] O.J. No 1205 (S. C.), R. v. Watts, 2016 ONSC 4843

R. v. Buttazzoni , 2019 ONCA 645

Keywords: Criminal Law, Importing Narcotics, Conspiracy to Import Narcotics for the Purpose of Trafficking, Possession for the Purpose of Trafficking, Mens Rea, Actus Reus, Evidence, Admissibility, Utterances, Prior Criminal Record, Sentencing, Bell v. The Queen, [1983] 2 S.C.R. 471, R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), R. v. Vrany (1979), 46 C.C.C. (2d) 14 (Ont. C.A.), R. v. Foster, 2018 ONCA 53, R. v. Onyedinefu, 2018 ONCA 795, R. v. Ferris, 1994 ABCA 20

Play for Fun Studios Inc. v. Ontario (Alcohol and Gaming Commission of Ontario) , 2019 ONCA 648

Keywords:  Provincial Offences, Liquor Control, Criminal Law, Unlawful Gambling, Criminal Code, s. 197(1), Liquor Licence Act, R.S.O. 1990, c. L.19, R.R.O. 1990, Reg. 179, s. 45(1), R. v. Riesberry, 2015 SCC 65, R. v. Ross, [1968] S.C.R. 786, R. v. Topechka, [1960] S.C.R. 898, R. v. Balance Group International Trading Inc. (2002), 162 C.C.C. (3d) 126 (Ont. C.A.)

R. v. Tsigirlach, 2019 ONCA 650

Keywords: Criminal Law, Fraud, Similar Fact Evidence

CIVIL DECISIONS

Jung v. Talon International Inc., 2019 ONCA 644

[Feldman, Lauwers and Paciocco JJ.A.]

Counsel:

S. Zucker and N. J. Tourgis, for the appellant

T. Corsianos, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Condominiums, Material Changes, Rescission, Repudiation, Anticipatory Breach, Affirmation, Remedies, Specific Performance, , Civil Procedure, Summary Judgment, Amending Pleadings, Condominium Act, 1998, S.O. 1998, c. 19, s 74, Rules of Civil Procedure, Rules 20 and 26

Facts:

This appeal arises from two summary judgment motions in favour of the respondents. While the appeals raised separate issues, they arose from the same set of facts.

The respondent enter into an agreement to purchase two commercial units and an agreement to purchase one residential unit from the appellant in what was formerly the Trump International Hotel in Toronto. When the agreements were signed, the hotel was to have 70 floors, access to the underground 'PATH' network and the commercial units were supposed to have kitchens. At a later date, the appellants decided these features would no longer be a part of the building.

The respondents considered these changes to be material changes and attempted to repudiate the contract for the commercial units under s. 74(7) of the Condominium Act, 1998. The Superior Court ultimately held the changes not to be material and so the rescission was invalid. The respondents appealed to the Court of Appeal unsuccessfully and were denied leave appeal to the Supreme Court a little over two years later.

After leave to the Supreme Court was refused, the appellants affirmed their intentions to close the transaction. The respondents sought adjustments as to occupancy fees, interest calculations and rental rates in light of the changes to the building. When the appellants refused to give satisfactory adjustments, the respondents brought an application for specific performance of the contract with proper adjustments or the return of their rental deposits.

These applications were stayed in November of 2016 when the appellants entered bankruptcy. In March 2017, the Superior Court approved a sale of the Trump Hotel to a creditor free of any security interests, contracts or claims for specific performance. Since the appellants no longer owned the units after the sale, the respondents could no longer seek specific performance, and so the claim was amended to the return of rental deposits on the commercial units.

For the residential unit, the respondent took interim possession in July 2012, with a unit transfer date scheduled for February 2017. When the transfer date came, the respondents refused to close because they had not been given a statement of material changes as was required under the Condominium Act, 1998. The respondent then served a statement of claim to have their rental deposit returned and to have their rescission of the contract affirmed.

The motion judged found for the respondent summarily on both issues, ordering the contracts to be rescinded and the deposits to be returned. The appellant appeals this decision. The Court of Appeal dealt with the commercial and residential units separately as the analysis turned on different issues for each.

Issues:

Commercial Units:

  1. Did the motion judge err in allowing the respondents to amend their statement of claim?
  2. Did the motion judge err in finding the attempt to rescind the contract to be an anticipatory breach that would have resulted in the respondents forfeiting the rental deposit?
  3. Did the motion judge err in finding the respondents did not breach the contract by failing to close?
  4. Did the motion judge err in deciding the matter by way of summary judgment?

Residential Units:

  1. Did the motion judge err in allowing the respondents to amend their statement of claim?
  2. Did the motion judge err in finding the attempt to rescind the contract to be an anticipatory breach that would have resulted in the respondents forfeiting the rental deposit?
  3. Did the motion judge err in finding the notice of rescission was not delivered in the correct timeline outlined in the Act?
  4. Did the motion judge err in not finding that the respondents' claim was res judicata in light of the determination by the Superior Court that the changes were not material in the context of the commercial units?
  5. Did the motion judge err in finding that the respondent did not breach the agreement by failing to close and not seeking specific performance?

Holding:

Appeal dismissed.

Reasoning:

Commercial Units

  1. When the bankruptcy stay was lifted, the appellants no longer owned the building and so specific performance was not an option. The amendment to the statement of claim simply added additional arguments to the claim for the return of the rental deposits. It did not seek to add additional relief and so no prejudice was suffered by the appellants. Under rule 26 of the Rules of Civil Procedure, an amendment to a statement of claim can be allowed where no prejudice is to be suffered by the other party.
  2. When the Superior Court found the impugned changes not to be material, the appellants affirmed their intention to close the deal and execute the contract. Once they affirmed their intention to close, all arguments for anticipatory breach became null and void.
  3. The motion judge found the appellants' statements as to adjustments to be aggressive and overreaching. In light of these erroneous adjustments, the respondent had no obligation to close. The Court of Appeal found this decision to be amply supported by the record and was not willing to overturn it. Additionally, the fact that the respondents sought specific performance showed an intention on their behalf to still close the transaction.
  4. The Court of Appeal found the facts to be quite straight forward and were amply supported by the record. The adjustments sought were overreaching and aggressive and no trial was required to determine this based on the evidence, and so there was no error.

Residential Units:

  1. For the same reasons as the commercial units, this ground for appeal was dismissed.
  2. The statutory scheme of the Condominium Act, 1998 allows purchasers to repudiate a contract if they are given a revised disclosure statement that contains material changes. Either the purchaser or the developer may apply to the court to have the issue of whether the changes are material or not to be decided. Asserting this right by serving a notice to rescind is not a repudiation of the contract, but is merely the exercise of a statutory right. Further, when the appellants applied to the court for the issue to be determined, they sought an order nullifying the rescission notice, thereby affirming the contract.
  3. s. 74(6) of the Act requires a notice to be given with 10 days of the latest of, inter alia, the date on which the Superior Court determines whether the changes were material. Since the Superior Court had never decided on the appellant's application, the 10 day period could not have begun to run and so the notice of rescission was made in time.
  4. The considerations for whether a change is material in the context of a commercial unit are significantly different than the considerations in the residential context. For example, lack of access to the 'PATH' network may not impact rental rates for commercial units, but could be significant to residents looking to commute in the winter. The decision that the changes were not material was based on expert evidence on the investment value of the units. These principles do not apply to residential units and so res judicata does not apply.
  5. Since the court has not decided on the appellant's application to determine whether the changes were material, the contract cannot be considered repudiated. In determining the issue, the court could invalidate the rescission notice and force the respondent to close, but the issue never reached that finality before the appellants went into receivership. When the stay expired, the appellants no longer owned the units and the issue of rescission had become moot as the appellants were not in a position to close.

Rigillo v. Rigillo, 2019 ONCA 647

[Hourigan, Paciocco and Fairburn JJ.A.]

Counsel:

M. Stangarone and S. Kirby, for the appellant

H. Niman and K. Normandin, for the respondent

Keywords: Family Law, Custody and Access

Facts:

The Court allowed the appeal in this matter reported at Rigillo v. Rigillo, 2019 ONCA 548. At the conclusion of the appeal, the Court indicated that the order from trial will be varied. The parties were asked for written submissions on two issues: the allocation of parenting time; and the allocation of decision-making responsibilities in a parallel parenting arrangement.

The parties' submissions were received and reviewed by the Court. The mother argued that the Court should not decide the issues without the benefit of additional fresh/new evidence because the original order was made over a year ago. The Court disagreed. A fresh/new evidence application was brought on the appeal, and proper and detailed affidavits were provided by both parents. The information was up-to-date and extensive. Based on this fresh evidence, the Court was satisfied that it had sufficient insight into the parties' and child's current situation, such that it was able to make the variations required.

Issues:

  1. How should the parenting time be allocated?
  2. How should the decision-making responsibilities in a parallel parenting arrangement be allocated?

Holding:

Order varied.

Reasoning:

1. Allocation of Parenting Time

The child resides with the mother and the father proposed that the child should spend 50 percent of her time with him. The mother maintained that this was not in the best interests of the child, as it would substantially increase the child's commuting time during the school week. The Court agreed with the mother's proposal of keeping the child's schedule during the week largely unaltered from the existing order. However, the Court varied the order of McLeod J. to include the extra Friday and Sunday overnight with the father on weekends that the child otherwise would have spent with the mother.

2. Allocation of Decision-Making Responsibilities

The first issue the Court dealt with was in regards to the amount of time to be given to achieve a consensus on all important decisions relating to the child's education and medical needs. The Court imposed a consultation period of no more than 14 days, after which the decision will fall to the mother, who has the assigned authority to make the final decision in the absence of consensus. As it relates to the child's education, despite the mother's authority to make final decisions on that aspect, the Court held that both parties should be permitted to attend all school functions and attend parent-teacher meetings either together or individually. Regarding the decision-making authority on non-emergency healthcare, the Court held that the mother should remain meaningfully involved in that aspect of the child's life. Accordingly, each parent shall be responsible for taking the child to her medical appointments during his or her time with the child. In the event of an emergency medical situation, the Court ordered that either party may make the decision and must notify the other as soon as possible.

PROVINCIAL OFFENCES AND CRIMINAL DECISIONS

R. v. P.S. (Publication Ban), 2019 ONCA 637

[Feldman, Lauwers and Fairburn JJ.A.]

Counsel:

R. Litkowski, for the appellant

C. Elmasry, for the respondent

Keywords: Publication Ban, Criminal Law, Invitation to Touching, Sexual Interference, Evidence, Admissibility, Minors, Video Evidence, Third Party Records,  Sentencing, R. v. L. (D.O.), [1993] 4 S.C.R. 419, R. v. Edgar, 2010 ONCA 0529, R. v. R.E.M., [2008] 3 S.C.R. 3, R. v. W.(D), [1991] 1 S.C.R. 742, R. v. L.L., 2009 ONCA 0413, R. v. Radcliffe, 2017 ONCA 176, leave to appeal refused, [2017] S.C.C.A. No. 274, R. v. Batisse, 2009 ONCA 114, R. v. D.(D.) (2002), 58 O.R. (3d) 788, R. v. Lacasse, 2015 SCC 64

R. v. Plange, 2019 ONCA 646

[Doherty, MacPherson and Benotto JJ.A.]

Counsel:

D. Quayat, for the appellant

D. Sederoff, for the respondent

Keywords: Criminal Law, Fraud over $5,000, Sentencing, Mandatory Minimum Sentence, Constitutional Law, Freedom from Cruel and Unusual Treatment or Punishment, Criminal Code, s.380(1.1), Canadian Charter of Rights and Freedoms, s. 12, R. v. Nur, 2015 SCC 15, R. v. Boudreault, 2018 SCC 58, R. v. Théroux, [1993] 2 S.C.R. 5, R. v. Goltz, [1991] 3 S.C.R, R. v. Koval, [2001] O.J. No 1205 (S. C.), R. v. Watts, 2016 ONSC 4843

R. v. Buttazzoni, 2019 ONCA 645

[Feldman, Lauwers and Nordheimer JJ.A.]

Counsel:

J.R. Presser, for the appellant

H. Piafsky and H. Akin, for the respondent

Keywords:  Criminal Law, Importing Narcotics, Conspiracy to Import Narcotics for the Purpose of Trafficking, Possession for the Purpose of Trafficking, Mens Rea, Actus Reus, Evidence, Admissibility, Utterances, Prior Criminal Record, Sentencing, Bell v. The Queen, [1983] 2 S.C.R. 471, R. v. Sauvé (2004), 182 C.C.C. (3d) 321 (Ont. C.A.), R. v. Vrany (1979), 46 C.C.C. (2d) 14 (Ont. C.A.), R. v. Foster, 2018 ONCA 53, R. v. Onyedinefu, 2018 ONCA 795, R. v. Ferris, 1994 ABCA 20

Play for Fun Studios Inc. v. Ontario (Alcohol and Gaming Commission of Ontario), 2019 ONCA 648

[Juriansz, van Rensburg and Miller JJ.A.]

Counsel:

S.S. Mathai and A. Sinnadurai, for the appellant

S.C. Hutchinson and G. Edelson, for the respondent

Keywords:  Provincial Offences, Liquor Control, Criminal Law, Unlawful Gambling, Criminal Code, s. 197(1), Liquor Licence Act, R.S.O. 1990, c. L.19, R.R.O. 1990, Reg. 179, s. 45(1), R. v. Riesberry, 2015 SCC 65, R. v. Ross, [1968] S.C.R. 786, R. v. Topechka, [1960] S.C.R. 898, R. v. Balance Group International Trading Inc. (2002), 162 C.C.C. (3d) 126 (Ont. C.A.)

R. v. Tsigirlach, 2019 ONCA 650

[Feldman, Paciocco and Zarnett JJ.A.]

Counsel:

J. R. Barrs and R. Litkowski, for the appellant

J. Cameron, for the respondent

Keywords:  Criminal Law, Fraud, Similar Fact Evidence

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