Court of Appeal Summaries (October 5 - October 9, 2020)

Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario.

The decisions were all fairly short. Topics covered included prescriptive easements, breach of contract, family law (support), the approval of a settlement and contingency fee agreement in a personal injury matter and security for costs.

Table of Contents

Ballanger v. Ballanger, 2020 ONCA 626

Keywords: Family Law, Spousal Support, Child Support, Retroactive Support, Civil Procedure, Appeals, Standard of Review, Hickey v. Hickey, [1999] 2 S.C.R. 518

Estates Associates Inc. v. 1645112 Ontario Ltd., 2020 ONCA 640

Keywords: Civil Procedure, Appeals, Security of Costs, Breach of Contract, Torts, Fraud, Negligent Misrepresentation, Conspiracy, Professional Negligence, Lawyers, Rules of Civil Procedure, Rules 61.06(1), Yaiguaje v. Chevron Corporation, 2018 ONCA 827

Honey Bee (Hong Kong) Limited v. VitaSound Audio Inc., 2020 ONCA 629

Keywords: Contracts, Technology, Manufacture and Sale, Fresh Evidence, Admissibility, “Palmer Test”, Due Diligence, Relevance, Reliability

Krukowski v Aviva Insurance Company of Canada, 2020 ONCA 0631

Keywords: Contracts, Solicitor and Client, Contingency Fee Agreements, Torts, Negligence, MVA, Settlements, Court Approval, Parties Under Disability, Henricks-Hunter v. 814888 Ontario Inc., 2012 ONCA 496, Wu (Estate) v. Zürich Insurance Company (2006), 268 DLR (4th) 670 (CA), leave to appeal refused, [2006] SCCA No. 289, Aywas v. Kirwan, 2010 ONSC 2278, Re Solicitor, [1973] 1 OR 652 (CA)

Paleshi Motors Limited v Woolwich (Township), 2020 ONCA 625

Keywords: Real Property, Easements, Land Titles, Watermain, Land Titles Act, R.S.O. 1990, c. L.5, s. 51(2), Municipal Act, 2001 S.O. 2001, ss. 6, 8, 9, Condos Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, Garfinkel v. Kleinberg and Kleinberg, [1955] O.R. 388 (C.A.), Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116

White v 6975429 Ontario Inc., 2020 ONCA 627

Keywords: Breach of Contract, Real Property, Mortgages, Torts, Misrepresentation, Civil Procedure, Appeals, Sufficiency of Reasons

Civil Decisions

Ballanger v. Ballanger, 2020 ONCA 626

[Juriansz, Hourigan and Thorburn JJ.A.]

COUNSEL:

S. Beddoe and J. Robinson, for the appellant

G.S. Joseph and A.M. Mastervick, for the respondent

J.J. Neal, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Retroactive Support, Civil Procedure, Appeals, Standard of Review, Hickey v. Hickey, [1999] 2 S.C.R. 518

FACTS:

This appeal was brought from the trial judge’s orders on spousal support, retroactive spousal support and retroactive child support. The appellant claims that the trial judge made palpable and overriding errors in granting insufficient spousal support and failing to order retroactive spousal support and child support.

The parties separated in 2004. In 2006, the parties agreed on amounts for both child support and spousal support, as well as a division of matrimonial assets. In 2008, however, the appellant applied for an increase in support based on an increase in the respondent’s income. A temporary order for an increase was made, as well as an order to pay retroactive support.

The parties later contentiously disputed the issue of spousal and child support over the course of an eight day trial. The trial judge fashioned an order based on average income attributed to the respondent, due to the fact that the respondent’s income varied greatly from year to year.

ISSUES:

1. Did the trial judge err in granting insufficient support and failing to order retroactive support?

HOLDING:

Appeal dismissed.

REASONING:

No. The Court pointed out that the Supreme Court of Canada has instructed appellate courts to afford significant deference to trial judges in cases relating to support orders. Firstly, because the discretion involved in making a support order is best exercised by the judge who heard the parties directly. And secondly, because this approach promotes finality in family law matters.

The Court of Appeal therefore concluded that an appellate court can only interfere with a trial judge’s decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision (Hickey v. Hickey, [1999] 2 S.C.R. 518).

The Court ultimately found that, in this case, the trial judge heard evidence over an extensive trial. His reasons were adequate and thoughtful, and it was clear that he had considered all of the relevant factors in arriving at his decision. As such, the Court of Appeal found no reason to interfere with the trial judge’s decision.