Following are our summaries of the civil decisions of the Court of Appeal for Ontario released last week.
There were quite a few lengthy decisions.
Topics covered included:
- The availability of specific performance to vendors for the breach of an agreement of purchase and sale of land.
- Relief from forfeiture of office for breach of campaign finance spending limits in municipal elections.
- Striking pleadings for failure to comply with court orders in the family law context.
- Dismissal for delay.
- Knowing assistance in breach of fiduciary duty and knowing receipt of trust money.
- The test for access in a Crown wardship context.
- The ongoing suspension of the running of limitation periods even after a motion to certify a class proceeding is dismissed.
CIVIL DECISIONS
Country Wide Homes Upper Thornhill Estates Inc. v. Ge, 2020 ONCA 400
[Doherty, Hourigan and Fairburn JJ.A.]
COUNSEL:
Derrick M. Fulton, for the appellant
Emilio Bisceglia and Sonja Turajlich, for the respondent
Keywords: Contracts, Breach, Real Property, Agreements of Purchase and Sale of Land, Remedies, Specific Performance, Civil Procedure, Summary Judgment, Standard of Review, Hryniak v. Mauldin, 2014 SCC 7, Matthew Brady Self Storage Corporation v. InStorage Limited Partnership , 2014 ONCA 858, leave to appeal refused, [2015] S.C.C.A. No. 50, Landmark of Thornhill Limited v. Jacobson, [1995] 25 O.R. (3d) 628 (CA), Semelhago v. Paramadevan, [1996] 2 S.C.R. 415
FACTS:
The appellant backed out of an agreement of purchase and sale of land to purchase a new home built by the respondent (APS). The respondent successfully moved for summary judgment awarding specific performance and requiring the appellant to complete the transaction within 120 days. The appellant appealed.
ISSUES:
- Did the motion judge err in concluding that the appellant did not provide any foundation for setting aside the agreement?
- Was the appellant denied a fair hearing when his adjournment request was denied?
- Did the motion judge err in granting specific performance?
- Should fresh evidence on appeal be admitted?
HOLDING:
Appeal dismissed.
REASONING:
1. No. The Court first reiterated that the question of whether a genuine issue requiring a trial exists on a motion for summary judgment is a question of mixed fact and law, and therefore the standard of review is “palpable and overriding error”.
The Court agreed with the motion judge that the appellant’s affidavits did not disclose any material misrepresentation or other evidence that would support setting aside the APS.
2. No. Even though the adjournment was denied, the hearing was not completed and had to be adjourned for completion anyway. The appellant was then permitted to file fresh evidence. If there were other purchasers who also refused to close their purchases with the same builder, those transactions would turn on their own details and there is therefore no risk of inconsistent findings. There was therefore no denial of natural justice.
3. No. Specific performance is available to vendors, as per the test set out in Matthew Brady Self Storage Corporation v. InStorage Limited Partnership, 2014 ONCA 858, leave to appeal refused, [2015] S.C.C.A. No. 50:
(i) whether on the facts as a whole, damages will afford the vendor an adequate and complete remedy or whether a money award will be sufficient to purchase substitute performance;
(ii) whether the vendor has established some fair, real and substantial justification for the granting of specific performance; and
(iii) whether the equities as between the parties favour the granting of specific performance.
The Court declined to comment on whether the motion judge erred in relying on Landmark of Thornhill Limited v. Jacobson, [1995] 25 O.R. (3d) 628 (CA) for the proposition that the defaulting party bears the onus of showing the property is not unique (and therefore specific performance should not be granted as a remedy). That decision was released a year before Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, which confirmed that specific performance should not be granted as a matter of course absent evidence of uniqueness, and that a substitute is not readily available. The motion judge’s decision in this case did not turn on who bore the onus. In this case, the home at issue was a $3 million home with a variety of changes and customizations unique to the appellant. This was sufficient to support a conclusion that the property was unique and that damages would not be a complete remedy or substitute for specific performance.
4. No. The appellant submitted fresh evidence that the respondent had listed the property in question for sale. He argued that this was inconsistent with the remedy of specific performance. The evidence also established that the listing for sale was an administrative error, and that the property therefore was not actually listed for sale.
M.E. v. R., 2020 ONCA 289
[Lauwers, Hourigan and Fairburn JJ.A.]
COUNSEL:
The appellant, acting in person
Domenico Polla, for the respondent Her Majesty the Queen in Right of Ontario
Scott C. Hutchison, for the respondents Children’s Aid Society of Toronto, Giovanna Asaro and Ada Lee (contempt appeal)
Giovanna Asaro, for the respondent Children’s Aid Society of Toronto (summary judgment appeal)
Keywords: Torts, Negligence, Breach of Fiduciary Duty, Defamation, Breach of Privacy, Civil Procedure, Contempt, Summary Judgment, Pleadings, Defences, Appeals, Jurisdiction, Final or Interlocutory, Young Offenders Act, R.S.C. 1985, c. Y-1, ss. 38(1), 44.1(1)(d), 45(1), 45(3), Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 119(1)(e), 119(2), 123, 128(2), 138(1), Rules of Civil Procedure, Rule 16, The Catalyst Capital Group Inc. v. Moyse, 2015 ONCA 784, Chirico v. Szalas, 2016 ONCA 586, Rogacki v. Belz (2003), 67 O.R. (3d) 330 (C.A.)
Karygiannis v. Toronto (City), 2020 ONCA 411
[Benotto, Zarnett and Thorburn JJ.A.]
COUNSEL:
Stephen Aylward and Zachary Al-Khatib, for the appellant
Sean Dewart and Adrienne Lei, for the respondent James Karygiannis
Mark Sibioni for the respondents, the City of Toronto and Ulli S. Watkiss
Keywords: Election Law, Municipal Elections, Campaign Financing, Forfeiture of Office, Relief from Forfeiture, Statutory Interpretation, Municipal Elections Act, 1996, S.O. 1996, c. 32, Sched, s. 88.23(2), ss. 88.33(17)-(18), s. 92(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 98, Poplar Point First Nation Development Corporation v. Thunder Bay (City), 2016 ONCA 934, leave to appeal refused, [2017] S.C.C.A. No. 60, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27
FACTS:
The respondent, Toronto City Councillor, Jim Karygiannis, was found to have exceeded the allowable spending limit for expressions of appreciation during the 2018 Toronto election. Section 88.23(2) of the Municipal Elections Act (the “Act”) provides that the penalty for doing so is, among other things, automatic forfeiture of office. Less than a month later, the respondent’s application for relief from forfeiture of his office was granted and he was reinstated to his office. The appellant, who is a Toronto voter, appealed.
ISSUES:
Did the application judge err in granting the respondent relief from forfeiture of his office?
HOLDING:
Appeal allowed.
REASONING:
Yes. The application judge had no jurisdiction to award the respondent relief from forfeiture of his office.
The conduct captured by s. 92(1) of the Act overlaps with the conduct captured by s. 88.23(1)(c). Subsections 88.23(1) and (2) stipulate that it will be an act of “default” to file a document that, on its face, shows that the candidate exceeded the permissible spending limit. Section 92(1) makes it an offence for a candidate to exceed the permissible spending limits or file a financial statement under s. 88.25 that is incorrect or otherwise does not comply with the Act. In that sense, the conduct captured under s. 88.23(1)(c) is also captured by s. 92(1). Both sections set out specific penalties for candidates who contravene those provisions that include forfeiture of office. However, unlike s. 88.23, s. 92: a) provides broader penalties than just forfeiture of office and ineligibility to run in the next election, as provided in s. 88.23(2); and b) allows a judge to grant relief from the penalties set out in s. 88.23(2). This exception under s. 92(2) reads as follows: If the presiding judge finds that the candidate, acting in good faith, committed the offence inadvertently or because of an error in judgment, the penalties described in subsection 88.23(2) do not apply. Section 92(2) does not authorize a judge to grant relief from forfeiture before prosecution and conviction. The respondent has not been charged with an offence under the Act as the compliance audit process is still ongoing. As a result, the application judge erred by relying on s. 92(2) to grant relief in these circumstances.
The only question, therefore, was whether s. 98 of the Courts of Justice Act provided jurisdiction to grant relief from forfeiture. That section states that a “court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.” The mere fact that a statutory scheme is involved does not preclude relief under s. 98: Poplar Point First Nation Development Corporation v. Thunder Bay (City) , 2016 ONCA 934, leave to appeal refused, [2017] S.C.C.A. No. 60. However, the Court had held in Poplar Point that relief from penalties or forfeiture is not available under s. 98: (a) in cases involving a true statutory penalty, or (b) when the statutory regime expressly or by necessary implication precludes relief.
The reason s. 98 is not applicable to a true statutory penalty is that “granting relief from forfeiture would amount to rewriting or repealing the statute, revoking the very consequence for breach of the statute that the legislature prescribed”: Poplar Point.
The respondent claimed the automatic forfeiture rule is not a “true statutory penalty”. He argued that a statutory penalty only includes criminal or statutory offences and that s. 88.23(2) of the Act by itself does not create a statutory offence as it is a “purely administrative provision.”
The Court disagreed. In Poplar Point, the Court made clear that a “statutory penalty” is any penalty imposed for breach of any requirement of the statute: Poplar Point. The observation in Poplar Point that “the ability to grant such relief from forfeitures and penalties is in the context of civil proceedings, and not criminal or statutory offences” simply acknowledges that s. 98, as part of Part VII of the Courts of Justice Act, only applies to “civil proceedings in courts of Ontario”: Courts of Justice Act, s. 95(1). [94]
The Court concluded that s. 88.23(2) is a statutory penalty. Section 98 of the Courts of Justice Act cannot apply where granting relief would undermine the very consequences that the legislature prescribed for violating the provisions of the Act. Because s. 88.23(2) is a statutory penalty, relief from forfeiture is not available to the respondent.
In any event, the Court addressed the second part of the test for obtaining relief from forfeiture pursuant to s. 98 of the Courts of Justice Act (whether the statutory scheme in the Act necessarily precluded relief from forfeiture).
The respondent submitted that candidates who commit trifling errors that do not warrant prosecution forfeit their seat automatically and with no further recourse, while candidates who are subject to prosecution under s. 92 are able to request relief from forfeiture. The respondent says that without relief from forfeiture under s. 98 of the Courts of Justice Act, his only recourse is to encourage the compliance audit committee to bring legal proceedings against him pursuant to s. 88.33(17) of the Act so that he can be prosecuted and convicted under s. 92(1) and then seek relief from forfeiture under s. 92(2). That, he submitted is absurd.
The Court disagreed. It reviewed the legislative debates into amendments that led to the removal of relief from forfeiture under s. 88.23, while keeping that relief in section 92. There was a deliberate choice by the legislature to simplify the enforcement process and remove the ability of the court to grant relief from forfeiture. Unlike s. 92, s. 88.23 was meant to be a cost-effective and expeditious means of deterring and enforcing specific violations of the Act. Councillors are given the opportunity to change their financial statements before the filing deadline. Where there is a clear violation of these specific provisions of the Act, the municipality can remove the candidate immediately and at little cost. The legislative policy discussions describe the challenges resulting from including a good faith exception in s. 88.23 and the reasons for its removal.
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