ARTICLE
16 November 2023

Court Of Appeal Summaries (November 5 – 10, 2023)

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Following are this week's summaries of the Court of Appeal for Ontario for the week of November 5, 2023.
Canada Litigation, Mediation & Arbitration
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Good evening.

Following are this week's summaries of the Court of Appeal for Ontario for the week of November 5, 2023.

In Halton Standard Condominium Corporation No. 550 v. Del Ridge (Appleby) Inc, the Court created a new exception to the rule that a refusal to stay an action is interlocutory, and therefore not appealable to the Court as of right. In this case, the order below refused to stay the action on the basis that the motion judge was of the view that the litigation agreement that had not been disclosed on a timely basis did not alter the litigation landscape enough to warrant a stay of the action. The Court held that in such cases, the refusal of a stay should be treated as a final order and was appealable to the Court as of right. The motion to quash the appeal for want of jurisdiction was therefore dismissed.

In Heyworth v. Doyle Plumbing, Heating & Cooling, the Court dismissed an appeal from the trial judge's dismissal of a damage claim related to an oil spill caused by a corroded oil filter. It was open to the trial judge to find that the oil burner technician met the standard of care of not changing the oil filter, even though the manufacturer's label on the filter suggested it be changed every year, and the technician admitted at trial that if he had read the label, he would have changed the filter. The standard of care set out in the relevant manual for the installation of such equipment did not mandate annual replacement of the oil filter and provided that manufacturer's instructions were only advisory, not mandatory.

In Karatzoglou v. Commisso, the Court dismissed the wife's appeal from the dismissal of her trust claim to property owned by the husband's mother. She had no standing to claim a trust interest on behalf of her spouse to property owned by his mother. In any event, there was no evidence that either the appellant or her husband had contributed to the properties in question.

In Treiers v Smith, the trial judge awarded the plaintiff in an MVA case $40,000 in costs, even though he only succeeded in getting judgment for $1,680 on a lost income claim. That lost income claim was not pleaded in his statement of claim, and it was only at the end of the trial that the judge permitted the amendment to add that claim (there had been evidence on that claim exchanged during documentary and oral discoveries and adduced at trial). The judge ordered costs in favour of the plaintiff because of the defendant's failure to make any offers other than a dismissal without costs. The Court upheld the judgment on liability and damages, but set aside the costs award, ordering no costs of the trial. The defendants could not be faulted for failing to offer to settle a claim that had not been pleaded until the end of the trial..

Other topics covered this week included two intervener motions (one at the leave to appeal stage, which was dismissed), anti-SLAPP, the interpretation of a settlement agreement and shareholders' agreement in a dispute between shareholders in a group of land development companies, extension of time to appeal and an appeal from the assessment of solicitor's accounts.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

Chaudhary v. Shadid, 2023 ONCA 743

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C. 43, ss 137.1(3)(4)(a)(i)(ii)(b), Bent v Platnick, 2020 SCC 23, 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22

Henry v. Zaitlen, 2023 ONCA 740

Keywords: Torts, Negligence, MedMal, Damages, Non-Pecuniary Damages, Pre-judgment and Post-judgment Interest, Civil Procedure, Intervenors, Friends of the Court, Courts of Justice Act¸ RSO 1990, c C 43, ss 127, 128, 130, Rules of Civil Procedure, Rules 13.02, 53.10, Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), MacLeod v. Marshall, 2019 ONCA 842

Leon v. Dealnet Capital Corp, 2023 ONCA 744

Keywords: Contracts, Employment, Arbitration, Civil Procedure, Leave to Appeal, Intervenors, Friends of the Court, Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(1), Employment Standards Act, 2000, S.O. 2000, c. 41, Rules of Civil Procedure, r. 13.02, Heller v. Uber Technologies Inc., 2019 ONCA 1, McFarlane v. Ontario (Education), 2019 ONCA 641, ING Canada Inc. v. Aegon Canada Inc., [2004] S.C.C.A. No. 50, Re Sault Dock Co. Ltd. v. City of Sault Ste. Marie (1973), 2 O.R. 479 (C.A.), 2016596 Ontario Inc. v. Ontario (Minister of Natural Resources), [2003] O.J. No. 2905 (C.A.)

Heyworth v. Doyle Plumbing, Heating & Cooling, 2023 ONCA 754

Keywords: Claim for Damages, Standard of Care, Oil Spill, Inspection, Ontario Installation Code for Oil-Burning Equipment, "Tag out" Policy, Technical Safety and Standards Act, 2000, S.O. 2000, c. 16, O. Reg 213/01: Fuel Oil, s. 26, Ontario Installation Code for Oil-Burning Equipment, s. 13, Housen v. Nikolaisen, 2002 SCC 33

Karatzoglou v. Commisso, 2023 ONCA 738

Keywords: Family Law, Property, Matrimonial Home, Equalization of Net Family Property, Trusts, Unjust Enrichment, Remedies, Constructive Trust, Civil Procedure, Standing, Partial Summary Judgment, Family Law Act, R.S.O. 1990, c. F.3, S. 4(2)1, S. 18(1), Statute of Frauds, R.S.O. 1990, c. S.19, Family Law Rules, O. Reg. 114/99, r. 16, Morris v. Nicolaidis, 2021 ONSC 2957, Kerr v. Baranow, 2011 SCC 10, Martin v. Sansome, 2014 ONCA 14

Halton Standard Condominium Corporation No. 550 v. Del Ridge (Appleby) Inc., 2023 ONCA 753

Keywords: Contracts, Construction, Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Expert Evidence, Partial Settlements, Pierringer Agreements, Remedy for Late Disclosure, Stay, Courts of Justice Act, R.S.O. 1990, c. C.43, S. 6(1)(b) and 19(1)(b), Rules of Civil Procedure, R. 30.10, 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, McClintock v. Karam, 2017 ONCA 277, Ontario (Attorney General) v. Nanji, 2020 ONCA 591, Aecon Buildings v. Brampton (City), 2010 ONCA 773, CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166, Azzeh v. Legendre, 2017 ONCA 385

Treiers v. Kmith, 2023 ONCA 751

Keywords: Torts, Negligence, MVA, Damages, Lost Income, Civil Procedure, Trial, Pleadings, Amendments, Costs

Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 745

Keywords: Corporations, Contracts, Interpretation, Shareholder Agreements, Settlement Agreements, Debtor-Creditor, Promissory Notes, Real Property, Mortgages, Defences, Set-off, Civil Procedure, Applications, Procedural Fairness, Adding Parties, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. 43., s. 134(1), s. 6(2), 1213763 Ontario Inc. v. Shopsy's Hospitality Inc., 2008 ONCA 863, C. Valery Construction Limited v. Battilana, 2018 ONCA 849, 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, 409 D.L.R. (4th) 382, Angeloni v. Estate of Franceso Angeloni, 2021 ONSC 3084, Baker's Dozen Holding Corporation v. Doovsal Properties Inc. (1999), 127 O.A.C. 280, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Pantoja v. Belilla , 2023 ONCA 757

Keywords: Real Property, Partition and Sale, Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s.17 and 19, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Issasi v. Rosenzweig, 2011 ONCA 112, Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, Inniss v. Blackett, 2022 ONCA 166

Adair Morse LLP v. Charron , 2023 ONCA 761

Keywords: Contracts, Interpretation, Solicitor and Client, Retainer Agreements, Solicitors Act., R.S.O. 1990, c. S.15., s.15

Short Civil Decisions

Heliotrope Investment Corporation v. Beach, 2023 ONCA 756

Keywords: Bankruptcy and Insolvency, Appeal Dismissed, Costs

Nissan v. Caruso, 2023 ONCA 752

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Fresh Evidence, Abuse of Process, Costs, Appeal Dismissed, Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3, s 181(1)

Pomata Investment Corp. (Treasure Hill Homes) v. Yang, 2023 ONCA 747

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Summary Judgment, Costs

Strutzenberger v. Strutzenberger, 2023 ONCA 755

Keywords: Family Law, Spousal Support, Arrears, Civil Procedure, Orders, Variation, Costs, Willick v. Willick, [1994] 3 S.C.R. 670

CIVIL DECISIONS

Chaudhary v. Shadid, 2023 ONCA 743

[Trotter, Sossin and Monahan JJ.A]

COUNSEL:

J. Rosenstein, for the appellants

A.A. Al-Baalawy and T. Pebane, for the respondent

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C. 43, ss 137.1(3)(4)(a)(i)(ii)(b), Bent v Platnick, 2020 SCC 23, 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22

FACTS:

The appellants and the respondent were members of the Pakistani Canadian community in the Greater Toronto Area. On October 23, 2007, members of the Pakistani diaspora in Canada registered Pakistan Tehreek-e-Insaf Canada ("First PTI Canada") as a not-for-profit corporation. Pakistan Tehreek-e-Insaf ("PTI") is a political party in Pakistan founded by IK, who served as Prime Minister of Pakistan. On January 8, 2018, a new not-for-profit corporation named PTI Canada was incorporated ("New PTI Canada").

In 2018, the Chief Justice of Pakistan started an initiative to raise money to build dams in Pakistan ("Dam Fund"). Overseas Pakistanis were asked to contribute to the Dam Fund.

According to the respondent: (a) it was widely known in the Community and in the Pakistani diaspora community in other parts of Canada that First PTI Canada board members, including the appellants, were some of the organizers of the Dam Fundraising Event; and (b) it was reported in many Canadian Pakistani news media outlets that over $1 million were raised for the Dam Fund at the Dam Fundraising Event.

On April 12, 2019, IE posted an image with added text in Urdu on a Facebook group page called "PTI Supporter", which has over 47,000 members.

The image appeared to be an advertisement for a seminar organized by New PTI Canada. The advertisement contained photographs showing the faces of a number of people, including the appellants. The names of the people who appear in the photographs, including the appellants' names, did not appear anywhere. The translation prepared was as follows: "This is a group of thieves. the name of Dam (fund), they have stolen $1.2 million. They are defaming name of PTI".

The respondent's evidence was that he does not know IE. However, when he saw his post, he decided to share it on his Facebook page, which he did on April 22, 2019 ("Post"). The Defendant stated that the Post was not up for more than one and a half hours before he deleted it from his profile. The respondent further stated that: (a) he did not add any commentary to IE's original post; (b) he did not tag anyone on the Post; (c) no-one liked the Post or made comments on it; and (d) to his knowledge, no one shared or reposted the Post. According to the respondent, IE's original post was still up on the PTI Supporter Facebook group page at the time the Statement of Defence was served in December 2019 and at the time of the respondent's examination for discovery in July 2021.

The appellants commenced an action against the respondent. The respondent brought a motion to dismiss the action under the anti-SLAPP provisions of the Courts of Justice Act. The motion judge applied ss. 137.1(3) and (4) of the CJA. The motion judge found that the respondent met his burden under s. 137.1(3) – the underlying proceeding arose from his expressive activity that related to a matter of public interest. Turning to s. 137.1(4)(a)(i), the motion judge found that the appellants had established the underlying action had substantial merit. However, she found that the appellants "barely" met their onus under s. 137.1(a)(ii) concerning the respondent's defences. The motion judge concluded that the appellants failed to establish that the harm they have suffered or are likely to suffer is sufficiently serious to outweigh the public interest in protecting the expression and public participation.

ISSUES:

  1. Did the motion judge err in her application of s. 137.1(3) in finding that the respondent discharged his onus to establish that the impugned speech related to public interest?
  2. Did the motion judge err in conducting the balancing under s. 137.1(4)(b) by downplaying the reputational harm the appellants suffered?

HOLDING:

Appeal dismissed.

REASONING:

  1. No.

The Court saw no error in the motion judge's approach under the public interest branch of the test. The motion judge rightly held that there was no qualitative assessment of the expression at this stage. She interpreted the words in context:

Interpreted broadly, the Post raises concerns regarding the management of funds raised for a charitable purpose. This is a matter of public interest. I find that some segment of the community, including the Community and those who made donations to First PTI Canada, New PTI Canada or at the Dam Fundraising Event, would have a genuine interest in receiving information on the subject.

There was no error in the trial judge's characterization of the matter in the circumstances of this case, particularly in the communities which she identified – it was a matter of public interest.

  1. No.

The appellants further submitted that the motion judge erred when balancing the harm suffered or likely to be suffered as a result of the impugned speech on the one hand, and the public interest in protecting the expression and public participation, on the other. The appellants adduced no evidence of actual harm.

The motion judge also focused on the lack of an evidentiary link between the respondent's sharing of the Post, deleted after 90 minutes, and the harm claimed to have been suffered by the appellants. There was no evidence as to how many people would have viewed the Post.

The motion judge conducted this balancing in the context of the broader purposes of s. 137.1 of the CJA.

Henry v. Zaitlen, 2023 ONCA 740

[Fairburn A.C.J.O. (Motion Judge)]

COUNSEL:

B.D. Domenico and S. Bailey, for the moving party

B. MacFarlane, for the plaintiffs (appellants)

S. Sugar and C. Windsor, for the defendant (respondent)

Keywords: Torts, Negligence, MedMal, Damages, Non-Pecuniary Damages, Pre-judgment and Post-judgment Interest, Civil Procedure, Intervenors, Friends of the Court, Courts of Justice Act¸ RSO 1990, c C 43, ss 127, 128, 130, Rules of Civil Procedure, Rules 13.02, 53.10, Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), MacLeod v. Marshall, 2019 ONCA 842

FACTS:

The Ontario Trial Lawyers Association ("OTLA") brought a motion for leave to intervene as a friend of the court. The underlying appeal related to a medical malpractice jury trial in which the plaintiffs were successful. The trial judge decided a number of post-judgment issues, including the appropriate prejudgment interest ("PJI") rate for nonpecuniary damages. The plaintiffs appealed on the basis that the trial judge erred by departing from the presumptive PJI rate on damages for non-pecuniary loss in an action for personal injury. This appeal is perfected and scheduled to be heard on January 18, 2024. OTLA sought leave to intervene only in the plaintiffs' appeal relating to the issue involving PJI.

The plaintiffs consented to OTLA's intervention and Dr. Z opposed

ISSUES:

  1. Should OTLA be granted intervenor status?
    1. a. Will the Proposed Joint Interveners make a useful contribution without doing injustice to the parties?

HOLDING:

Motion granted.

REASONING:

  1. Yes, on a limited basis.
  2. Yes

In their motion materials, OTLA helpfully and appropriately prepared and filed the draft factum that it proposed to file on appeal. This gave a clear view into the position that OTLA wished to advance on appeal.

Dr. Z said that OTLA's proposed submissions raised new issues on appeal. The appropriate "evidentiary threshold" for a judge to apply a PJI rate other than the statutory one, and the "appropriate notice" for a party seeking to depart from the statutory rate, were said to be new issues that were not before the Superior Court. When pressed in oral argument, it became clear that Dr. Z's more significant concern was in relation to the latter issue, the one involving the mechanics around notice. Dr. Z maintained that if the intervener is permitted to raise these issues, there may well be the need to supplement the record with further evidence, specifically as it relates to the notice issue. He argued that this would require an adjournment of the appeal, which is scheduled to be heard on January 18, 2024.

Dr. Z maintained that the only proposed submission by OTLA which was properly within the scope of the appeal was the application of the Court's decision in MacLeod, which he said was entirely duplicative of the plaintiff/appellant's submissions.

Finally, Dr. Z argued that the duplication concern was magnified because of the close relationship between the plaintiff/appellant and the proposed intervener.

As it related to the issue of notice, the Court agreed with Dr. Z that allowing OTLA to make submissions on this point would improperly expand the scope of appeal.

In contrast, OTLA's proposed submissions on the analytical framework for trial judges when exercising their discretion to change the PJI rate for nonpecuniary losses would provide a useful contribution without causing prejudice to the parties. This did not expand the scope of the appeal.

OTLA's proposed submissions were not unduly duplicative of the appellant's submissions. The Court was satisfied that OTLA's submissions on the evidentiary threshold provided a fresh perspective by focussing on the analytical framework for departing from the five percent PJI rate. This was in contrast to the appellant's factum, which focussed upon the fact-specific aspects of the appeal.

The Court was not persuaded by Dr. Z's argument that the concern over duplication was "magnified" as a result of the appellant's counsel being associated with OTLA. There was no suggestion of actual conflict. Rather, the suggestion seemed to be that the fact that the appellant's counsel was involved with OTLA increased the chances of duplication between the appellant and OTLA.

The simple fact that counsel to a party was also involved in a legal organization that intervenes in an appeal ran no increased risk of duplication. It is not unusual and, indeed, expected that counsel will engage with legal organizations within their areas of legal expertise.

Bearing in mind the discrete single issue upon which OTLA was granted leave to intervene, the Court allowed OTLA to file an eight-page factum and granted a maximum of ten minutes for oral argument. The Court was satisfied that this will not cause prejudice to Dr. Z.

Leon v. Dealnet Capital Corp., 2023 ONCA 744

[Fairburn A.C.J.O. (Motion Judge)]

COUNSEL:

R. Wellen, for the intervenor

C. R. Colraine and F. Choi, for the appellant

D. N. Vaillancourt, for the respondent

Keywords: Contracts, Employment, Arbitration, Civil Procedure, Leave to Appeal, Intervenors, Friends of the Court, Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(1), Employment Standards Act, 2000, S.O. 2000, c. 41, Rules of Civil Procedure, r. 13.02, Heller v. Uber Technologies Inc., 2019 ONCA 1, McFarlane v. Ontario (Education), 2019 ONCA 641, ING Canada Inc. v. Aegon Canada Inc., [2004] S.C.C.A. No. 50, Re Sault Dock Co. Ltd. v. City of Sault Ste. Marie (1973), 2 O.R. 479 (C.A.), 2016596 Ontario Inc. v. Ontario (Minister of Natural Resources), [2003] O.J. No. 2905 (C.A.)

FACTS:

Parkdale Community Legal Services ("PCLS") brought a motion for leave to intervene as a friend of the court pursuant to r. 13.02 of the Rules of Civil Procedure. The motion was brought in the context of a motion for leave to appeal from a decision of the Divisional Court dismissing an appeal of an order staying an action pursuant to s. 7(1) of the Arbitration Act, 1991 ("AA"). The underlying motion for leave to appeal related to an employment dispute involving entitlement to a performance bonus after the moving party, L, an employee, resigned from the responding party, Dealnet. The employment contract contained a binding arbitration clause.

L commenced a civil claim to recover a portion of the performance bonus. Dealnet brought a motion under s. 7(1) of the AA to stay the action on the basis that the dispute had to be resolved by arbitration. The action was stayed by McAffee A.J. L appealed to the Divisional Court. The proposed intervenor on the present motion, PCLS, sought and was granted intervenor status in the Divisional Court. The Divisional Court found that the appeal was barred by s. 7(6) of the AA, which provides that there is no appeal of a s. 7 stay decision. L sought leave to appeal to the Court.

ISSUES:

Should the Court grant PCLS leave to intervene as friends of the Court?

HOLDING:

Motion dismissed.

REASONING:

No.

Granting intervenor status on a motion for leave to appeal should be a rare and extraordinary event. Interventions in support of leave to appeal applications should be "exceptional" and "should not be encouraged." In meeting the threshold test for leave to appeal to the Court, the moving party must address a standard test, one that extends beyond whether there has been an error of law or mixed law and fact in the decision from which leave to appeal is sought. Where applicable, the moving party should also address other issues, including whether the proposed appeal raises an issue of public importance.

The moving party's factum in the leave to appeal motion addressed the public interest, and there was evidentiary support for the far-reaching consequences of the legal issue touching on Ontario employees that must be resolved should leave to appeal be granted. With submissions of the moving party and the responding party, the panel hearing the motion for leave to intervene would be well equipped to determine if the motion meets the test for granting leave to appeal, which includes consideration of, but is not limited to, the public importance of the issue.

This was not a rare case of extraordinary circumstances where an intervenor could assist with the question of public interest in the context of a motion for leave to appeal. PCLS had not met the high onus of establishing that its contribution was necessary at this stage.

Heyworth v. Doyle Plumbing, Heating & Cooling, 2023 ONCA 754

[Trotter, Sossin and Monahan JJ.A.]

COUNSEL:

M. Forget and S. Hewagama, for the appellant

M. Smith, for the respondent

Keywords: Claim for Damages, Standard of Care, Oil Spill, Inspection, Ontario Installation Code for Oil-Burning Equipment, "Tag out" Policy, Technical Safety and Standards Act, 2000, S.O. 2000, c. 16, O. Reg 213/01: Fuel Oil, s. 26, Ontario Installation Code for Oil-Burning Equipment, s. 13, Housen v. Nikolaisen, 2002 SCC 33

FACTS:

The appellant appealed the trial judge's dismissal of his claim for damages in relation to an oil spill that occurred at the appellant's farmhouse near Lakefield Ontario in October 2014. At trial, it was established that the cause of the oil spill was a corroded oil filter on the oil tank at the farmhouse. The appellant alleged that the licensed oil burner technician ("OBT") had failed to replace the oil filter during the inspection and therefore was in breach of the applicable standard of care. The trial judge found that the OBT was under no obligation to replace the oil filter at the time of the inspection, provided that it was in good condition. The trial judge further found that the OBT had performed a workmanlike inspection of the oil filter. Therefore, the trial judge found that the OBT did not breach the applicable standard of care and dismissed the plaintiff's claim for damages.

ISSUES:

  1. Did the trial judge err in failing to find that OBT breached the applicable standard of care by failing to follow the instructions of the manufacturer of the oil filter?
  2. Did the trial judge err in failing to find that the OBT breached the standard of care set out in the Ontario Installation Code for Oil-Burning Equipment (the "Code"), enacted pursuant to regulations under the Technical Safety and Standards Act (the "TSSA")?
  3. Did the trial judge err in failing to find that the oil filter was in an unacceptable condition at the time of the inspection, and that the OBT should have "tagged out" the filter, indicating that it had to be replaced?

HOLDING:

Appeal dismissed.

REASONING:

  1. No.

The appellant relied on the fact that the manufacturer's label on the oil filter states, "replace annually or when clogged." In cross-examination, the OBT admitted that he did not read that label and, had he done so, he would have replaced the oil filter. The appellant argued that this admission should be taken as establishing that an OBT was required to replace the oil filter annually, and failure to do so was a breach of the applicable standard of care. The trial judge however, found that the OBT believed that the oil filter only needed to be replaced if it was corroded or leaking. Although the OBT did agree in cross-examination that he would have replaced the oil filter had he read the manufacturer's label, he also testified that he did not believe he was required to replace the oil filter.

The Court held that the trial judge's findings regarding the OBT's inspection of the oil filter were open to him on the record. It was also open to the trial judge to find, based on the OBT's evidence, that the manufacturer's instructions did not establish the applicable standard of care for an OBT's inspection of oil filters.

  1. No.

The Code did not require oil filters to be replaced annually. The appellant argued, in the alternative, that the manufacturer's instructions were incorporated into the Code, with the result that the Code required the oil filter to be changed annually. The OBT breached the minimum required standard of care by failing to replace the oil filter. The trial judge found that the Code merely required that oil filters be inspected annually, but not necessarily replaced. This interpretation of the Code followed from the grammatical and ordinary sense of the words used in section 13, which dealt with annual maintenance requirements. The trial judge also found that the Code treats a manufacturer's instructions that an action "should" be done as a mere recommendation, rather than a requirement.

The Court held that it was open to the trial judge to find that the OBT believed the Code required him to inspect the oil filter, but not necessarily replace it. The manufacturer's instructions on the oil filter did not displace the OBT's understanding, since the Code treated manufacturer's instructions as mere recommendations, rather than requirements. The Court did not see a reversible error in the trial judge's finding that the OBT believed he was under an obligation merely to inspect the oil filter rather than replace it.

  1. No.

There was no requirement for the OBT to "tag out" the oil filter. Section 26 of O. Reg 213/01, a regulation made pursuant to the TSSA, states that the requirement to 'tag out' an appliance only arises where a contractor is of the opinion that an appliance is in an unacceptable condition. That was not the case here, since the OBT was of the contrary opinion, namely, that the oil filter was in good working order. Accordingly, the Court held that the requirement to tag out the oil filter simply did not arise on the facts as found by the trial judge.

Karatzoglou v. Commisso, 2023 ONCA 738

[Gillese, Benotto and Trotter JJ.A.]

COUNSEL:

E. Birnboim and H. Corrigan, for the appellant

J. Teitel, for the respondent, EK

J. Grossman, for the respondent, PK

Keywords: Family Law, Property, Matrimonial Home, Equalization of Net Family Property, Trusts, Unjust Enrichment, Remedies, Constructive Trust, Civil Procedure, Standing, Partial Summary Judgment, Family Law Act, R.S.O. 1990, c. F.3, S. 4(2)1, S. 18(1), Statute of Frauds, R.S.O. 1990, c. S.19, Family Law Rules, O. Reg. 114/99, r. 16, Morris v. Nicolaidis, 2021 ONSC 2957, Kerr v. Baranow, 2011 SCC 10, Martin v. Sansome, 2014 ONCA 14

FACTS:

The appellant was involved in family law proceedings. She added her mother in-law to the proceedings, claiming that her mother-in-law held two properties in trust for her spouse that should be included in his net family property and subject to equalization. The two properties were known as "Rainbow Valley," which the appellant claimed was the matrimonial home, and "Bullock Drive", where the respondent's business was located. The motion judge granted partial summary judgment dismissing the claims against the mother-in-law. The appellant appealed this decision.

By 2022, five years after it was started, this proceeding had not reached trial. The case management judge directed that a summary judgment motion be heard on a peremptory basis. The motion judge concluded that there was no evidence of a trust of any sort (express, resulting, or constructive) with respect to either property. The motion judge also concluded that the appellant lacked standing to pursue the trust claims against the respondent's mother.

ISSUES:

Did the motion judge err by granting partial summary judgment?

HOLDING:

Appeal dismissed.

REASONING:

No.

The appellant submitted that the motion judge erred in law by determining that this was a suitable case for summary judgment because there was inconsistent evidence concerning beneficial ownership, which would require a trial to resolve. She also submitted that it was an error to grant partial summary judgment. The Court held that the appeal must fail for two reasons.

First, the motion judge found that there was no evidence of the respondent's beneficial ownership of either the Rainbow Valley property or the Bullock Drive property. The motion judge was clearly correct in his conclusion that there was simply no evidence before the court of any express trust agreement in relation to either property. The Court held that the motion judge was also clearly correct that there was no need for a trial on the issues of resulting trust or constructive trust. To establish unjust enrichment and a potential constructive trust remedy, the appellant would have to establish three things: (1) an enrichment of, or benefit to, the respondent's mother; (2) a corresponding deprivation to the appellant or respondent, and (3) the absence of a juristic reason for the enrichments. No financial contribution was ever made to the purchase price or improvement of either property.

The appellant further submitted that the fact that the respondent's mother-in-law gave the respondent some of the money from the eventual sale of Rainbow Valley suggested that it was intended to be his all along. The gift to the respondent was approximately seven years after his separation from the appellant. The motion judge accepted the evidence that the money was a gift to her son against a future inheritance. Additionally, the property was not a matrimonial home because neither spouse held an interest in it at the time of separation.

Regarding Bullock Drive, the Court held that there was no evidence to substantiate a claim by the appellant against the respondent's mother. The agreement between the respondent and the respondent's mother was that the respondent would pay the expenses of the premises directly (not through the mother) in exchange for using the property. The appellant was not involved with either the business or the property and put forward no evidence of any contribution that would give rise to a trust interest.

Second, a person does not have standing to advance a trust claim on behalf of a former spouse for equalization purposes. The Court held that a non-titled spouse cannot assert a trust claim against a third party on behalf of a spouse for equalization purposes. Consequently, summary judgment was appropriate. Since this was a family law action, the Family Law Rules applied. By the time the motion was heard, the parties had been in litigation for six years. Rule 2(5) of the Family Law Rules imposes a duty on the court to manage cases, having regard to the objective in r. 2(3) to save time and expense. Rule 17(8) authorized the case management judge to give directions to narrow the issues. The case management judge scheduled the motion for summary judgment to address the appellant's claims against the respondent's mother. This was the appropriate procedure.

The appellant further submitted that there was a risk of inconsistent findings by the trial judge on her claims for support. The Court did not give effect to this submission and did not see how her continuing claim for support would risk an inconsistent finding.

The Court held that it was not necessary to address the appellant's submission that the motion judge erred in his application of the Statute of Frauds, R.S.O. 1990, c. S.19.

Halton Standard Condominium Corporation No. 550 , 2023 ONCA 753

[Trotter, Sossin and Monahan JJ.A.]

COUNSEL:

D.A. Schmuck, for the moving party

P.H. Starkman, for the responding parties

Keywords:

Contracts, Construction, Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Expert Evidence, Partial Settlements, Pierringer Agreements, Remedy for Late Disclosure, Stay, Courts of Justice Act, R.S.O. 1990, c. C.43, S. 6(1)(b) and 19(1)(b), Rules of Civil Procedure, R. 30.10, 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822, McClintock v. Karam, 2017 ONCA 277, Ontario (Attorney General) v. Nanji, 2020 ONCA 591, Aecon Buildings v. Brampton (City), 2010 ONCA 773, CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166, Azzeh v. Legendre, 2017 ONCA 385

FACTS:

The parties are involved in litigation arising from certain construction work. The moving party, Halton Standard Condominium Corporation No. 550 ("Halton"), brought this motion to quash the appeal by Del Ridge (Appleby) Inc. and Del Ridge Homes Inc. ("Del Ridge defendants") of a motion judge's order. That order denied certain variations in previous relief granted concerning expert reports and denied a motion for a stay of the underlying action based on the nondisclosure of a litigation agreement entered into by Halton, the City of Burlington, and two third parties, but excluding the Del Ridge defendants (the "Pierringer Agreement").

The motion judge noted that he had previously ordered Halton to produce all the underlying documents from participating expert witnesses. He found that if the documents had not been produced, it was open to the Del Ridge defendants to bring a motion to remedy the situation. The Del Ridge defendants did not bring any such motion. On this basis, the motion judge declined to vary his previous order.

The motion judge next assessed the impact of the Pierringer Agreement and found that it did not entirely change the litigation environment. While the agreement released Burlington from liability for some claims, it did not address all the claims between the two parties, and so the Pierringer Agreement did not bring the litigation between Halton and Burlington to an end.

Halton moved to quash this appeal on the ground that the order appealed from was interlocutory, not final, and that therefore an appeal did not lie to the Court.

ISSUES:

(1) Was the motion judge's order concerning the expert evidence and the stay final or interlocutory?

HOLDING:

Motion dismissed.

REASONING:

The order was interlocutory as it related to the expert evidence and final as it related to the refusal to stay the action.

The expert evidence aspect of the order was interlocutory. With respect to the relief sought by the Del Ridge defendants concerning expert reports, the motion judge observed that this issue should be reserved for the trial judge. The Del Ridge defendants argued that this aspect of the order was a final decision, at least in relation to the non-parties involved, relying on case law from this court which has recognized decisions under r. 30.10 as final. The Court rejected this argument.

The Court held that there was nothing in the motion judge's decision that would preclude the Del Ridge defendants from bringing a r. 30.10 motion for relief. Having not yet brought such a motion, the order of the motion judge remained procedural and interlocutory.

The denial of the say aspect of the order was final. The Del Ridge defendants argued that an order denying a stay of an action on the basis that a settlement agreement was not disclosed as soon as it was completed is a final order, and so its appeal was properly before the Court. The Court affirmed the principle that an order granting a stay is final, but an order refusing one is interlocutory. However, in the narrow context of motions alleging an abuse of process as a result of the failure to disclose a litigation agreement, an order granting or dismissing a stay has been treated as final. The appeal of the motion judge's denial of the stay requested due to the alleged abuse of process from the non-disclosure of the Pierringer Agreement in this case lies to the Court.

The Court held that the final and interlocutory aspects of the order were bound together in that the disposition of the stay appeal may also dispose of the need of the interlocutory order. To avoid potentially unnecessary duplication of efforts, the appeals from the two aspects of the order were to be heard together by the Court.

Treiers v. Kmith, 2023 ONCA 751

[Doherty, Pepall and Zarnett JJ.A]

COUNSEL:

C. M. Leddy and S. E. Gunter, for the appellants on cross-appeal
B. Chambers, for the respondent on cross-appeal

Keywords: Torts, Negligence, MVA, Damages, Lost Income, Civil Procedure, Trial, Pleadings, Amendments, Costs

FACTS:

The appeal in this matter was abandoned; only the cross-appeal was pursued. The cross-appellants are the defendants and the respondent to the cross-appeal is the plaintiff.
The plaintiff was injured when he was struck by a vehicle driven by the defendant. He sued, alleging negligence. The trial judge determined that the defendants were entirely responsible for the accident. He further held that the plaintiff had failed to show he had suffered "a permanent and serious injury", meaning that the plaintiff could not recover non-pecuniary damages.

At the end of the trial, the plaintiff moved to amend the claim and add the claim for lost income. The trial judge did not require the plaintiff to make a formal motion, but instead required the parties to address the issue in written submissions. The plaintiff was questioned during his discovery about his lost income, which he attributed to the accident. Prior to trial, the plaintiff's counsel provided the defence with documentation laying out the lost income claim. The plaintiff was cross-examined at trial on matters relating to lost income. The trial judge therefore ultimately allowed the amendment.

The trial judge held that the plaintiff could recover for lost income and he fixed that loss at $1,680. The plaintiff had sought damages of $425,000 in his Statement of Claim and had claimed approximately $300,000 at trial. The plaintiff was awarded costs of the action in the amount of $40,000.

The defendants raised two issues on appeal. First, they submitted that the trial judge wrongly allowed the plaintiff to amend his claim at the end of trial to include a lost income claim. Second, the defendants sought leave to appeal the costs order made by the trial judge.

ISSUES:

1. Should the finding of liability and damages awarded by the trial judge stand?
2. Did the trial judge err in the costs award?

HOLDING:

Appeal allowed in part.

REASONING:

1. Yes.
In light of the pleadings, and the proceedings prior to and at trial, it was open to the trial judge to conclude that the defence would not be prejudiced by the granting of the plaintiff's late request for an amendment to include a specific lost income claim. The defendants were able to fully meet and largely defeat the lost income claim. The trial judge made no reversible error in exercising his discretion to permit the amendment. The finding of liability and the damages awarded by the trial judge should stand.

2. Yes.
In fixing the appropriate costs, the trial judge put considerable emphasis on what he described as the defence failure to make any offer to settle the claim, other than an offer based on an outright dismissal of the action. The trial judge viewed that offer as a demand for surrender.

In considering the defence failure to make an offer involving some payment by the defence, the trial judge did not take into account the manner in which the lost income claim, the only successful claim, evolved in the course of the proceedings.

The defence did not have a realistic opportunity to make an offer to settle before trial that could have taken into account an award based exclusively on potential lost income. As the trial unfolded, there were no grounds to criticize the defence for failing to make an offer that would have reflected an award based only on lost income.

The trial judge's error impacted on his costs award and warranted granting leave to appeal costs. There should have been no costs ordered at trial. Leave to appeal costs was granted and the trial order was varied to an order providing for no costs of the trial.

Voreon Inc. v. Matas Management Services Inc. , 2023 ONCA 745

[Roberts, Favreau and Copeland JJ.A.]

COUNSEL:

B.v. Niejenhuis, R. Atkins, and S. Ahmad, for the appellant

R. Allan, for the respondents

Keywords:

Corporations, Contracts, Interpretation, Shareholder Agreements, Settlement Agreements, Debtor-Creditor, Promissory Notes, Real Property, Mortgages, Defences, Set-off, Civil Procedure, Applications, Procedural Fairness, Adding Parties, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. 43., s. 134(1), s. 6(2), 1213763 Ontario Inc. v. Shopsy's Hospitality Inc., 2008 ONCA 863, C. Valery Construction Limited v. Battilana, 2018 ONCA 849, 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, 409 D.L.R. (4th) 382, Angeloni v. Estate of Franceso Angeloni, 2021 ONSC 3084, Baker's Dozen Holding Corporation v. Doovsal Properties Inc. (1999), 127 O.A.C. 280, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

FACTS:

The appellant appealed from the judgment of the application judge dismissing its three applications. All three applications involved disputes that arose out of the breakdown of the business relationship between the principals of the appellant and the primary respondent, S.K. and J.M., respectively. S.K. and J.M. were experienced real estate developers and investors. They incorporated a project-specific corporation into which they each invested through corporations they owned or controlled. S.K. invested through a corporation that he personally controlled, the appellant, Voreon Inc. ("Voreon").

Two of the appeals involved related real estate developments and the interpretation of a shareholders' agreement and a later contract, the Settlement Agreement (court files C69685, "Higher Living appeal", and C69687, "Eminence Living appeal"). The Settlement Agreement addressed both the Higher Living and Eminence Living projects. The central issue in these two appeals was whether the Settlement Agreement superseded the shareholders' agreement and, as a result, that promissory notes were discharged pursuant to the terms of the Settlement Agreement.

The third appeal (court file C69686, "the MHH appeal") involved the validity of a mortgage registered on a property in Oakville by the respondent Matas-Hueton Holdings Inc. ("MHH"), a claim for set-off of $64,135 based on a promissory note, and whether the transfer of a parking unit and storage unit in a condominium in Halton should be set aside.

ISSUES:

The Higher Living and Eminence Living Appeals
1. Did the application judge conduct the proceedings in a procedurally unfair manner, including by granting declaratory relief?
2. Did the application judge err in law in his interpretation of the Settlement Agreement?

The MHH Appeal
3. Did the application judge err in holding that there was a settlement pursuant to which Voreon was obliged to permit the mortgage, while refusing to consider the alleged breaches of the settlement by MHH, including the failure of MatasCo to pay a note?

4. Did the application judge err by not considering its claim that MHH was an alter ego of MatasCo, thus depriving Voreon of the ability to advance a claim for set-off of the note?

5. Did the application judge err in holding that he could not grant relief against 253 because it was not a party to the proceeding, when he had granted a motion to add 253 as a party approximately one week prior to the hearing?

HOLDING:

Higher Living and Eminence Living appeals dismissed. MHH appeal allowed in part.

REASONING:

The Higher Living and Eminence Living Appeals

  1. No

The Court agreed with the application judge in his reasons which made clear that he was concerned about the overly-complicated manner in which Voreon structured the proceedings. The application judge faced a difficult task in managing these proceedings, given the inefficient structure of the proceedings that Voreon chose to instigate. However, there was no unfairness in the manner in which the proceedings were conducted.

The appellant did not direct the court to any place in the record (including the many case management directions) where it requested that the application judge convert the applications to a trial and fell short of evidence that it was denied procedural fairness by these matters proceeding by way of application.

Floating the idea of a mini-trial to opposing counsel is not the same as making a request to the application judge to order one. Voreon commenced these proceedings as applications, took no steps to change that, and went along with them being heard as applications. Having done so, Voreon could not then complain that there should have been a trial. The record did not support that Voreon wanted the Kayzan application heard with the Higher Living and Eminence Living applications or took any steps to achieve this result. The Court did not agree with the appellant's claim that it was not permitted to amend its pleadings, as the only motion to amend in relation to the matters under appeal here was granted.

Beyond this lack of evidentiary support for the appellant's position, there was an absence of any consequence to the parties that would result in procedural unfairness. The issue before the court was manifestly clear – that the parties disagreed as to whether the shareholders' agreement or the Settlement Agreement applied and, if the Settlement Agreement applied, the appellant argued for an interpretation that would preserve the promissory notes and other payments allegedly owing to the appellant from the respondents. The application framed the issue this way. The parties filed evidence in relation to it and made arguments.

The relief sought by Voreon in these two applications was payment of promissory notes, given the manner in which the applications were framed and the response, the validity and enforceability of the Settlement Agreement were clearly the central issues. The only way the application judge could decide the question of whether the respondent was obliged to pay the promissory notes was to decide whether the Settlement Agreement was valid and enforceable.

All parties knew that the validity and enforceability of the Settlement Agreement were in issue before the application judge. All parties made submissions on these issues. This was clear, in particular, from the many affidavits filed by both sides, and the factums filed before the application judge. Both parties sought declaratory relief in their submissions before the application judge.

The impact of these requests for declaratory relief from both parties before the application judge was twofold. First, there was no unfairness to the application judge granting declaratory relief. All parties were on notice that it was being sought, and the issues were fully argued. Second, Voreon, having itself included requests for declaratory relief in its submissions before the application judge, including its relief requested in the alternative to enforce the Settlement Agreement, could not then complain on appeal that the application judge granted declaratory relief.

  1. No

To succeed, the appellant must establish either a palpable and overriding error of fact or an extricable error of law: Sattva Capital Corp. v. Creston Moly Corp.

The application judge's interpretation of ss. 2(A), (B), and (D) of the Settlement Agreement in relation to Higher Living and ss. 1(A), (B), and (D) in relation to Eminence Living accorded with the language used in the relevant provisions of the agreement, read in light of the contract as a whole, and the surrounding circumstances.

The application judge considered s. 7 of the Settlement Agreement. The application judge held that the purpose of the general security agreement referred to in that section was to protect Voreon in the event that the properties at issue did not sell for a price sufficient to pay Voreon the $6.5 million agreed to in ss. 1(B)(c) and 1(D) with respect to sale or further development of the Eminence Living project, and 2(B)(b) and 2(D) with respect to further development or sale of the Higher Living project. It was not intended to create an obligation on MatasCo to pay to Voreon more than $6.5 million in respect of each project in the event of sale or redevelopment, or to keep the promissory notes alive beyond either property being sold or redeveloped for a price sufficient to pay Voreon the $6.5 million agreed to.

This reading of s. 7 of the Settlement Agreement properly considered the meaning of s. 7 in the context of the agreement as a whole. In the context of ss. 1 and 2 of the agreement, the application judge's reading of s. 7 as providing security pending Voreon receiving the $6.5 million from the sale or further development of each property made sense. Further, the fact that the application judge expressly addressed the substance of s. 7 of the Settlement Agreement in his reasons made clear that he did not fail to consider the Settlement Agreement as a whole when he interpreted the effect of ss. 1(A), (B), and (D) with respect to the Eminence Living project and ss. 2(A), (B), and (D) with respect to the Higher Living project. He simply disagreed with Voreon's interpretation of s. 7 of the Settlement Agreement and of the agreement in general.

Voreon maintained that it was entitled to enforce the promissory notes under the shareholders agreement, even after the Settlement Agreement was reached. The application judge's conclusion that the Settlement Agreement superseded the shareholders' agreement was supported by the entire agreement provision of the Settlement Agreement that provided it superseded all prior agreements "in connection with the matters provided for herein." There was no basis to intervene in the application judge's interpretation of the Settlement Agreement.

The MHH Appeal

  1. No

The application judge properly considered the language used in the relevant provisions of the Settlement Email, read in light of the settlement as a whole, and the surrounding circumstances: Sattva. The application judge found that the settlement was implemented. The parties signed a document entitled "Acknowledgement of Debt re 2nd Mortgage." The application judge found that this document "makes it clear that the applicants were recognizing and accepting a mortgage in favour of MHH in the amount of $220,983.

  1. No, but issue remitted back to court below.

On an application, a court must look beyond the notices of application to consider supporting affidavit material to determine whether a cause of action has been raised: 1100997 Ontario Ltd. In the MHH application, the claim for set-off and the theory of liability through corporate alter egos was clearly put in issue in S.K's affidavit, joined by the reliance of MHH on the Settlement Email, which explicitly documents the $64,135 debt. Given the lack of clarity in these proceedings due to the multiple notices of application and accompanying affidavits, it was understandable how the issue of set-off in the MHH application was overlooked. However, it was a live issue that remained unadjudicated. The Court was not provided with sufficient submissions or a record to exercise powers pursuant to s. 134(1) of the Courts of Justice Act. This issue was therefore returned for adjudication by the Superior Court, along with the claim against 253 to set aside the transfer of the storage unit and parking unit.

  1. No

The application judge dismissed the request to set aside the transfer on the basis that 253 (whose shareholders were J.M.'s wife and sister-in-law) had not been named as a respondent in the application. In fact, the application judge had granted Voreon's motion approximately one week prior to the hearing dates to add 253 as a respondent. Dismissing this aspect of the application on the basis that 253 was not a party was a palpable and overriding error.

Although the portion of the order dismissing the claim to set aside the transfer of the parking unit and the storage unit was not a final order, where an appeal in the same proceeding lies and is taken to the Court, the court has jurisdiction to hear and determine the appeal from an interlocutory order, pursuant to s. 6(2) of the Courts of Justice Act.

Pantoja v. Belilla, 2023 ONCA 757

[Roberts J.A. (Motion Judge)]

COUNSEL:

A.A.D.B. and L.B., acting in person

G. Schible, for the responding party, A.B.P.

Keywords: Real Property, Partition and Sale, Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s.17 and 19, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Issasi v. Rosenzweig, 2011 ONCA 112, Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, Inniss v. Blackett, 2022 ONCA 166

FACTS:

The case arises from a dispute between family members concerning rights and interests in several properties, including early assignment of agreements of purchase and sale of pre-construction units. The self-represented moving party sought an order for an extension of time to file their notice of appeal.

On December 16, 2022, Vermette, J. ordered the sale of two pre-construction units. The moving parties' attempt to appeal the order was unsuccessful. On July 6, 2023, Morgan J. granted the responding party's application for partition and sale, directing the process to an associate judge. On September 7, 2023, Associate Justice Frank issued specific directions, including requiring the appellant to account for funds received under an assignment agreement for one pre-construction unit, which she entered unilaterally against Morgan J.'s order.

ISSUES:

Does the justice of the case warrant granting an extension of time to file a notice of appeal?

HOLDING:

Motion dismissed.

REASONING:

No.

The court held that the moving parties (1) provided no evidence that there was a timely intention to appeal during the requisite time period, (2) there was no adequate explanation for delay other than the unhappiness with the sales decision and process, and (3) the appeal lacked merit. Furthermore, the judge found no error in Morgan J.'s order for partition and sale of the properties. Lastly, the judge concluded that the delay would prejudice the responding party, who is disabled and had invested settlement funds in the subject properties.

Adair Morse LLP v. Charron, 2023 ONCA 761

[Hourigan, Roberts and Coroza JJ.A.]

COUNSEL:

J.M. and S.F., for the appellant

J.R.M., for the respondent

Keywords:

Contracts, Interpretation, Solicitor and Client, Retainer Agreements, Solicitors Act., R.S.O. 1990, c. S.15., s.15

FACTS:

This case pertains to legal fees arising from negligence action relating to the death of the respondent's husband in Cuba. After mediation, the parties to the negligence action settled for $1,219,500, with an additional $115,000 contingent on winning at the Supreme Court. Following the settlement, the respondent issued the appellant a bill for $435,304.32. The assessment officer found that the action was complex, the respondent's lawyers all kept accurate time, dockets were reasonable, and the total bill was proportionate to the appellant's recovery via the settlement. However, the assessment officer found that a reduction in fees charged was appropriate due to (1) not giving reasonable notice and particulars prior to increasing their annual rates, and (2) their failure to quantify and seek costs to which the appellant was entitled at the Supreme Court, which failure was found to be "less than competent."

On appeal to the Superior Court, the varied the assessment officer's order so as to calculate the fees based on the retainer agreement.

ISSUES:

  1. Did the application judge improperly interfere with the assessment officer's conclusion that the respondent had no notice of the respondent's rate increases?
  2. Did the application judge err by overturning the assessment officer's reduction of $30,000 to reflect the respondent's admitted failure to pursue a costs award at the Supreme Court?

HOLDING:

Appeal dismissed.

REASONING:

The Court agreed with the application judge's conclusion that the appellant had been advised of the increase in hourly rates in the retainer agreement because it specifically pointed out an increase in hourly rates of up to $25 per lawyer per year, and that this was sufficient notice to the appellant. Therefore, the application judge properly distinguished the cases relied on by the appellant where clients had been invoiced bills without sufficient notice.

There was nothing in the application judge's decision that was contrary to the policy behind notice. There was "settled law" to the effect that a lawyer is not entitled to increase the hourly rates charged without first providing the client reasonable notice and particulars of the pending increase. His conclusion that the assessment officer erred in principle in finding that there was no notice was amply supported by the record having regard to the written words of the retainer, the fact that the appellant received independent legal advice, and that she did have opportunities to engage in a discussion about those rates.

The appellant did not assert that she had no notice, but instead she took issue with the amount of work actually performed. At its core, the appellant's complaint was not about lack of notice of the increase to hourly rates, but rather that she was uninformed about the amount of costs that were accumulating while her case made its way to the Supreme Court of Canada. Accordingly, the Court did not give effect to this ground of appeal.

The Court agreed with the application judge's observation that the assessment officer provided a remedy that the appellant had not asked for and for which the respondent had no notice. Nothing was shown in the record that suggested that this was an issue raised by the appellant before the assessment officer. The appellant acknowledged that she had brought a separate civil action in relation to these costs.

SHORT CIVIL DECISIONS

Heliotrope Investment Corporation v. Beach, 2023 ONCA 756

[Doherty, Pepall and Zarnett JJ.A.]

COUNSEL:

J. G. B. and M. L. B., acting in person

P. Ostroff, D. Sayer and A. Stikuts, for the applicant (respondent)

Keywords: Bankruptcy and Insolvency, Appeal Dismissed, Costs

Nissan v. Caruso, 2023 ONCA 752

[Doherty, Pepall and Zarnett JJ.A.]

COUNSEL:

M. Harris and Y. Lipetz, for the appellant

D. LaFramboise, for the respondent

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Fresh Evidence, Abuse of Process, Costs, Appeal Dismissed, Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3, s 181(1)

Pomata Investment Corp. (Treasure Hill Homes) v. Yang, 2023 ONCA 747

[Hourigan, Roberts and Coroza JJ.A.]

COUNSEL:

F. Y. and X. Z., acting in person

S. Brunswick and V. Ostrovsky, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Summary Judgment, Costs

Strutzenberger v. Strutzenberger, 2023 ONCA 755

[Doherty, Pepall and Zarnett JJ.A.]

COUNSEL:

P.A.S., acting in person

No one appearing for the respondent
Keywords: Family Law, Spousal Support, Arrears, Civil Procedure, Orders, Variation, Costs, Willick v. Willick, [1994] 3 S.C.R. 670

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.

ARTICLE
16 November 2023

Court Of Appeal Summaries (November 5 – 10, 2023)

Canada Litigation, Mediation & Arbitration
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