James Estate (Re) was a wills and estates case involving an application for the appointment of an estate trustee. The Court discussed the inquisitorial role the Superior Court has in estate proceedings and reaffirmed the court’s inherent jurisdiction and discretion to refuse even an unopposed application for a certificate of appointment of estate trustee. In this case, the proposed estate trustee was a disbarred lawyer. The application judge was not satisfied that the proposed trustee was not engaging in the unauthorized practice of law and dismissed the application, even though it was consented to by all the beneficiaries. The appeal was also dismissed.
Shipton v Shipton was a family law relocation case. The Court allowed the appeal, finding that the trial judge made numerous material factual errors. While the application judge was not found to have been biased, he was admonished by the Court for the “mocking and inflammatory tone” of his reasons for decision. The Court was of the view that some of the trial judge’s comments were “inappropriate in a judicial decision”, were “entirely unnecessary… rhetorical flourish” and had “no place in the context of an already contentious family law dispute.”
In Zhang v Primont Homes, purchasers who did not close on their agreement of purchase and sale to purchase a new-build condo unit settled with the vendor. The vendor was allowed to keep the deposit in exchange for not pursuing further damages against the purchasers. At trial, the purchasers recovered the deposit from the real estate agent and brokerage who had misrepresented to the purchasers the location of the new condo that was to be built. The appeal by the agent and brokerage was dismissed. The Court rejected the appellants’ argument that the purchasers were required to prove that they had the right to repudiate the agreement of purchase and sale as a condition precedent to recovery from the appellants.
Fresco v Canadian Imperial Bank of Commerce is a class proceedings decision involving the claim against CIBC for unpaid overtime. The consortium of three class counsel acting for the plaintiffs negotiated a $153 million settlement with CIBC. The motion judge granted the law firms $25 million in legal fees but dismissed the request that the representative plaintiff be awarded a $30,000 honorarium for her efforts. The Court found no error in principle in the motion judge’s exercise of discretion and dismissed the appeal.
Table of Contents
Civil Decisions
Keywords: Civil Procedure, Orders, Costs, Enforcement, Rules of Civil Procedure, r. 57.03(1), Rathod v. Chijindu, 2024 ONSC 939, Rathod v. Chijindu, 2024 ONCA 317, Serra v. Serra, 2007 ONCA 465, 225 O.A.C. 236, Sears v. Sears (2005), 195 O.A.C. 376 (Div. Ct.), Bank of Nova Scotia v. Gillespie, 2008 CanLII 31415 (Ont. S.C.)
Keywords: Torts, Negligent Misrepresentation, Standard of Care, Contracts, Real Property, Agreements of Purchase and Sale of Land, Concurrent Liability, Remedies, Damages, Contribution and Indemnity, Causation, Mitigation, Civil Procedure, Evidence, Expert Evidence, Burden of Proof, Krawchuk v. Scherbak, 2011 ONCA 352, Zink v. Adrian, 2005 BCCA 93, BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12, 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980, Clements v. Clements, 2012 SCC 32, Bowman v. Martineau, 2020 ONCA 330, James Street Hardware and Furniture Co. v. Spizziri (1987), 62 O.R. (2d) 385 (C.A.), Kaltenegger v. Cao, 2022 BCSC 2203, Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, Edgeworth Construction Ltd. v. N. D. Lea & Associates Ltd., [1993] 3 S.C.R. 206, Janiak v. Ippolito, [1985] 1 S.C.R. 146
Keywords: Family Law, Parenting, Relocation, Best Interests of the Child, Civil Procedure, Reasonable Apprehension of Bias, Divorce Act, R.S.C. 1985, c. 3 ss. 16-16.93, Van de Perre v. Edwards, 2001 SCC 60, C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, N.S. v. R.M., 2019 ONCA 685, J.N. v. C.G., 2023 ONCA 77, Gordon v. Goertz, [1996] 2 S.C.R. 27, Barendregt v. Grebliunas, 2022 SCC 22, Porter v. Bryan, 2017 ONCA 677
Keywords: Wills and Estates, Applications for Appointment of Estate Trustees, Civil Procedure, Inherent Jurisdiction, Judicial Discretion, Appeals, Standard of Review, Fresh Evidence, Estates Act, R.S.O. 1990, c. E.21, ss. 7(1), 29, 35, 37, Trustee Act, R.S.O. 1990, c. T.23, s. 5, Rules of Civil Procedure, r. 74.14(4), 75, Law Society Act, R.S.O. 1990, c. L.8, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(4)(b), Law Society of Upper Canada v. William John Franklin Bishop, 2012 ONLSHP 87, aff’d 2014 ONLSTA 19, aff’d 2014 ONSC 5057 (Div. Ct.), Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22, Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), St. Amand v. Tisi, 2018 ONCA 106, Re Chiang, 2009 ONCA 3, Bent v. Platnick, 2020 SCC 23, Otis v. Otis (2004), 7 E.T.R. (3d) 221 (Ont. S.C.), Neuberger v. York, 2016 ONCA 191, McLaughlin v. McLaughlin, 2015 ONSC 3491, Seepa v. Seepa, 2017 ONSC 5368, Martin v. Martin, 2018 ONSC 1840, Gonder v. Gonder Estate, 2010 ONCA, Public Guardian and Trustee v. Duggan (1998), 165 D.L.R. (4th) 713 (Ont. S.C.), Mohammed v. Heera (2008), 43 E.T.R. (3d) 273 (Ont. S.C.), Re Lagrandeur Estate, 2021 ONSC 3447, Petrovskaya v. Morelli, 2013 ONSC 2659, Letterstedt v. Broers (1881), 9 A.C. 371 (P.C.), Radford v. Radford Estate (2008), 43 E.T.R. (3d) 74 (Ont. S.C.), St. Joseph’s Health Centre v. Dzwiekowski, 2007 CanLII 51347 (Ont. S.C.), Woolnough v. Dare, 2016 ONSC 4013, R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, R. v. S. (R.D.), [1997] 3 S.C.R. 484
Keywords: Contracts, Employment, Overtime Pay, Lawyer and Client, Contingency Fee Agreements, Civil Procedure, Class Proceedings, Legal Fees, Honorariums, Approval, Amicus Curiae, Class Proceedings Act, 1992, S.O., c. 6, Canada Labour Code, R.S.C. 1985, c. L-2, Lavier v. MyTravel Canada Holidays Inc., 2013 ONCA 92, Canada (Attorney General) v. Fontaine, 2017 SCC 47, Reeves v. Brand, 2018 ONCA 26, O’Brien v. Chuluunbaatar, 2021 ONCA 555, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Hryniak v. Mauldin, 2014 SCC 7, Cowles v. Balac (2006), 83 O.R. (3d) 660 (C.A.), Bancroft-Snell v. Visa Canada Corporation, 2016 ONCA 896, Smith Estate v. National Money Mart Co., 2011 ONCA 233, Gagne v. Silcorp (1998), 41 O.R. (3d) 417 (C.A.), Sutts, Strosberg LLP v. Atlas Cold Storage Holdings Inc, 2009 ONCA 690, McCarthy v. Canadian Red Cross Society (2001), 8 C.P.C. (5th) 349 (Ont. S.C.), Cannon v. Funds for Canada Foundation, 2013 ONSC 7686, Fulawka v. Bank of Nova Scotia, 2014 ONSC 4743, Moushoum v. Canada (Attorney General), 2023 FC 1739, MacDonald v. BMO Trust Co., 2021 ONSC 3726, Wein v. Rogers Cable Communications Inc., 2011 ONSC 7290, Osmun v. Cadbury Adams Canada Inc., 2010 ONSC 2752, McDonald v. Home Capital Group, 2017 ONSC 5195, Clegg v. HMQ Ontario, 2016 ONSC 2662, Mancinelli v. Royal Bank of Canada, 2017 ONSC 2324, Doucet v. The Royal Winnipeg Ballet, 2023 ONSC 2323 (Div. Ct.), Baker Estate v. Sony BMG Music (Canada Inc.), 2011 ONSC 7105, McCarthy v. Canadian Red Cross Society, [2007] O.J. No. 2314 (S.C.), Sutherland v. Boots Pharmaceutical Plc., (2002), 21 C.P.C. (Ont. S.C.)
Short Civil Decisions
Keywords: Civil Procedure, Application, Striking Pleadings, No Reasonable Cause of Action, Reasonable Apprehension of Bias
Keywords: Real Property, Easements
Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Appeals, Representation by Lawyer, Security for Costs, Rules of Civil Procedure, r. 15.01(2), 61.01(1)(a) and 61.01(1)(b), GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, Heidari v. Naghshbandi, 2020 ONCA 757, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Foodinvest Limited v. Royal Bank of Canada, 2020 ONCA 387
Keywords: Civil Procedure, Costs, Appeals, Leave, Extension of Time
Keywords: Administrative Law, Judicial Review, Human Rights Tribunal, Civil Procedure, Appeals, Leave, Perfection, Extension of Time, Yaiguaje v. Chevron Corporation, 2017 ONCA 827
Keywords: Civil Procedure, Appeals, Addendum, Costs, Rathod v. Chijindu, 2024 ONCA 317, Rathod v. Chijindu, 2024 ONCA 420
Keywords: Family Law, Equalization of Net Family Property, Unequal Division, Domestic Contracts, Maher, Civil Procedure, Disclosure, Bakshi v. Hosseinzadeh, 2017 ONCA 838, Cohen v Cohen, 2024 ONCA 114
Keywords:Family Law, Parenting, Decision Making, Retroactive Child Support, Civil Procedure, Fresh Evidence, Costs, Child and Family Services Act, R.S.O. 1990, c. C.11, s. 69(6), Cuthbert v. Nolis, 2024 ONCA 21, Children’s Aid Society of Owen Sound v. R.D., 178 O.A.C. 69 (C.A.), Rigillo v. Rigillo, 2019 ONCA 548, Knapp v. Knapp, 2021 ONCA 305, Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), V.K. v. T.S., 2011 ONSC 4305, Andrade v. Kennelly, 33 R.F.L. (6th) 125 (Ont. S.C.), Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Legault v. TD General Insurance Company, 2024 ONCA 439
CIVIL DECISIONS
[Fairburn A.C.J.O.]
Counsel:
A. Sidhu for respondent/moving party (H.R.)
B. Belmont for moving party (Bluekat Capital Corp.)
C.C. acting in person
N.C. acting in person
I.C. acting in person
Keywords: Civil Procedure, Orders, Costs, Enforcement, Rules of Civil Procedure, r. 57.03(1), Rathod v. Chijindu, 2024 ONSC 939, Rathod v. Chijindu, 2024 ONCA 317, Serra v. Serra, 2007 ONCA 465, 225 O.A.C. 236, Sears v. Sears (2005), 195 O.A.C. 376 (Div. Ct.), Bank of Nova Scotia v. Gillespie, 2008 CanLII 31415 (Ont. S.C.)
facts:
The responding parties borrowed considerable sums of money from the moving parties who gave them mortgages over two properties. The mortgages went into default a long time ago. The properties were sold under a power of sale and the net proceeds were paid into court. The responding parties on this motion appealed the February 13, 2024 judgment of Woodley J., who ordered that monies paid into court be distributed to the moving parties to satisfy their mortgages and several outstanding costs orders that the responding parties had failed to pay.
The moving parties’ motions for security for costs of the appeal were granted. Throughout the entirety of litigation, the responding parties consistently provided untruthful, unreliable and unsubstantiated evidence. In addition, they claimed were unable to pay the security for costs only to do so just before the deadline.
The moving parties on this motion asked that a single judge dismiss the pending appeal. In the alternative, they asked for an order which required that the responding parties pay the outstanding cost orders by a prompt and final deadline. The responding parties argued that the single judge did not have the jurisdiction to do so.
issues:
- Does a single judge of the Court have the jurisdiction to dismiss an appeal on the ground that a costs order remained outstanding?
- Does a single judge of the Court have the jurisdiction to require the responding parties to pay costs by a prompt and final deadline pursuant to an outstanding order?
holding:
Motion granted.
reasoning:
- No.
A single judge of the Court has no jurisdiction to dismiss an appeal under Rule 61.16(2.2) of the Rules of Civil Procedure.
- Yes.
A single judge of the Court does have jurisdiction to order the responding parties to pay costs by a prompt and final deadline. The responding parties argued that setting a final deadline would be akin to varying the previous costs order. Where an order is silent on a deadline for payment, it is payable within 30 days after the order is made. Given that this deadline had long passed, setting a final deadline was akin to a mechanism of enforcement as opposed to a variation on the costs order.
[Roberts, Miller and Gomery JJ.A.]
Counsel:
D. Fogel, for the appellants
Y.Z. and J.D., acting in person
Keywords: Torts, Negligent Misrepresentation, Standard of Care, Contracts, Real Property, Agreements of Purchase and Sale of Land, Concurrent Liability, Remedies, Damages, Contribution and Indemnity, Causation, Mitigation, Civil Procedure, Evidence, Expert Evidence, Burden of Proof, Krawchuk v. Scherbak, 2011 ONCA 352, Zink v. Adrian, 2005 BCCA 93, BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12, 2105582 Ontario Ltd. (Performance Plus Golf Academy) v. 375445 Ontario Limited (Hydeaway Golf Club), 2017 ONCA 980, Clements v. Clements, 2012 SCC 32, Bowman v. Martineau, 2020 ONCA 330, James Street Hardware and Furniture Co. v. Spizziri (1987), 62 O.R. (2d) 385 (C.A.), Kalteneggerv. Cao, 2022 BCSC 2203, Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147, Edgeworth Construction Ltd. v. N. D. Lea & Associates Ltd., [1993] 3 S.C.R. 206, Janiak v. Ippolito, [1985] 1 S.C.R. 146
facts:
In February 2017, the respondents entered into an APS for a house to be built in a new subdivision by a developer. The appellants, the real estate agent and their brokerage, told the respondent purchaser that the property was located at or near the intersection of Mayfield Road and Kennedy Road in Brampton. The respondent purchaser and respondent co-purchaser together made a $120,000 deposit on the total purchase price of $1,232,500.
In May 2018, the respondents discovered that the property was not located at the site indicated by the appellants but rather about three kilometres north, in Caledon. The respondents took the position that the defendants had misrepresented the location of the development, as a result of which the respondents were not required to complete the purchase and were entitled to a return of their deposit.
Before trial, the respondents settled their claims against all parties except the appellant agent and brokerage. As part of that settlement, the respondents agreed that the developer was entitled to keep the $120,000 deposit. In exchange, the developer abandoned its counterclaim against the respondents for damages flowing from their repudiation of the APS. At trial, the trial judge ordered the appellants to pay $120,000 to the respondents.
issues:
- Did the trial judge err in concluding that the appellants negligently misrepresented the property’s location and that the respondents reasonably relied on this misrepresentation in signing the APS?
- Did the trial judge err in concluding that the appellants’ negligent misrepresentation caused the respondents to suffer any damages that they were entitled to recover from the appellants?
holding:
Appeal dismissed.
reasoning:
- No.
The appellants contended that there was no basis in the evidence for the trial judge to find that they misrepresented the location of the property or that the respondents relied on anything they said about the property. The appellants also challenged the trial judge’s finding that the appellants were negligent in the absence of expert evidence on the standard of care of a realtor or broker.
The trial judge found that the appellants’ misrepresentation about the property’s location was a key factor in the respondents’ decision to invest their money in the development, and concluded that the respondents would not have signed the APS and deposited $120,000 had they known the property’s actual location.
The Court held that the trial judge’s findings of fact were open to him to make on the evidence and explained that it was not the Court’s role to reassess or reweigh the evidence absent a palpable and overriding error of fact or mixed fact and law. The Court concluded that no such error was identified.
The respondents did not adduce any expert evidence on the standard of care of a real estate agent or broker. The Court was not persuaded, however, that such evidence was required to establish the appellants’ breach of their duties as realtors in the circumstances of this case.
The Court held that, generally, expert evidence is required to support a claim against a licensed professional, such as a real estate agent: Krawchuk v. Scherbak. However, the Court held that a breach may be established without expert evidence if a case involves “non-technical matters or those of which an ordinary person may be expected to have knowledge”: Krawchuk, citing Zink v. Adrian.
In the Court’s view, it was open to the trial judge to find that the appellants’ representation that the property was located at Mayfield and Kennedy Roads, as opposed to a completely different location, involved a non-technical matter. The Court therefore held that no expert evidence was required to find that the appellants’ misrepresentation was negligent.
- No.
The appellants’ first causation argument was that the respondents could not legally establish that they suffered any loss because they did not complete the purchase. The appellants relied on Kaltenegger v. Cao for this proposition, where the BCSC held that although the repudiating defendant purchaser proved that the plaintiff made negligent misrepresentations that induced entry into the APS, the defendant was not entitled to repudiate the contract. Based on Kaltenegger, the appellants contended that, since the respondents did not comply with their obligations pursuant to the APS, they could not recover any damages flowing from the appellants’ misrepresentation.
The Court rejected the argument that Kaltenegger established a general rule that any plaintiff who agrees to buy property based on misrepresentations of any kind by a third party is legally foreclosed from recovering damages for that misrepresentation if they fail to complete the purchase. The Court held that the result in Kaltenegger was specific to the facts of that case and concluded that the appellants’ position was moreover inconsistent with the Supreme Court of Canada’s jurisprudence on concurrent liability.
The Court held that appellants conflated the issue of causation with the respondents’ entitlement to assert a separate cause of action, explaining that a party who has suffered damages may have concurrent claims in contract and tort. The Court cited Central Trust Co. v Rafuse stating that “the plaintiff has the right to assert the cause of action that appears to be most advantageous to him in respect of any particular legal consequence”. The Court therefore held that there was nothing preventing the respondents from suing the appellants, whether or not they chose to pursue a claim in contract (or tort) against the developer.
The appellants contended that, even if the respondents were not required to complete the purchase as a condition to recovery, the trial judge should have found that it was the respondents’ repudiation that caused their financial loss. By the respondents’ own admission, the property they agreed to purchase increased in value between the time they executed the APS and the trial.
The Court interpreted the appellants’ second causation argument as fundamentally a mitigation defence. In the context of negligent misrepresentation, the Court explained that courts generally focus on the date that a misrepresentation was discovered. In this case, the respondents learned of the negligent misrepresentation months before closing, and they had to take reasonable steps to mitigate a potential loss. This involved deciding whether to proceed with the purchase.
The Court held that appellants’ mitigation argument presupposed that the respondents foresaw or should have foreseen that the property would increase in value when they discovered the misrepresentation, even though the property was not as well-situated and therefore not as attractive an investment as they had been led to believe. Citing Bowman, the Court explained that appellants bore the burden of proving a failure to mitigate. The appellants did not obtain a retrospective appraisal showing that the property had already increased in value at the time the respondents realized the property’s actual location, nor did they present any other evidence to prove that the respondents should have realized that they would not suffer damages if they proceeded with the purchase.
The Court therefore held that there was no evidence that the increase in value was reasonably foreseeable. The Court also explained that the respondents did not have to assume the risk of an uncertain market to recover against the appellants. The appellants should not be able to escape the legal consequences of their negligence because the respondents did not take that risk and market conditions happened to improve.
Finally, the appellants contended that the trial judge should not have ordered them to pay damages to the respondents because, in the respondents’ statement of claim, they did not seek an order for damages against the appellants. Instead, the respondents had sought an order holding the appellants liable for contribution and indemnity if the respondents were ordered to pay damages or costs to any of the other defendants then named in the action.
The Court rejected this argument, holding that the respondents did not obtain relief that was not pleaded. As a result of the settlement between the respondents and the developer, the respondents took the position that they were entitled to recover $120,000 from the appellants in contribution and indemnity for the amount that they were required to forfeit to the developer under the terms of the settlement.
The Court held that, in these circumstances, no pleadings amendment was required to reflect the settlement. The issues to be resolved, and the evidence relevant to them, remained the same whether or not the statement of claim was formally amended.
[Roberts, Coroza and Gomery JJ.A.]
Counsel:
A. Franks and M. H. Tweyman, for the appellant
D. Tobin and C. Hinds, for the respondent
Keywords: Family Law, Parenting, Relocation, Best Interests of the Child, Civil Procedure, Reasonable Apprehension of Bias, Divorce Act, R.S.C. 1985, c. 3 ss. 16-16.93, Van de Perre v. Edwards, 2001 SCC 60, C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, N.S. v. R.M., 2019 ONCA 685, J.N. v. C.G., 2023 ONCA 77, Gordon v. Goertz, [1996] 2 S.C.R. 27, Barendregt v. Grebliunas, 2022 SCC 22, Porter v. Bryan, 2017 ONCA 677
facts:
The appellant (the “mother”) and the respondent (the “father”) married in 2014 and moved to Toronto in 2016 to pursue the father’s employment opportunities. In 2019, the couple had a baby girl, and they separated ten months later. The mother applied for divorce, child and spousal support, and sole decision-making responsibility for the child. The mother wanted to move back to Ireland with her daughter, and thus the question before the trial judge was whether relocation to Ireland was in the child’s best interests. The trial judge correctly observed that in any relocation case, the Divorce Act (the “Act”) requires the court to consider the best interests of the child in accordance with factors set out in ss. 16 and 16.92 of the Act. Applying these factors, the trial judge ruled that relocation was not in the child’s best interests.
issues:
- Did the trial judge err in his consideration of the best interests of the child under s. 16 of the Act?
- Did the trial judge err in his characterization of the case as “a support case” and in his application of the presumptions under s. 16.93 of the Act?
- Do the trial judge’s reasons give rise to a reasonable apprehension of bias?
holding:
Appeal allowed.
reasoning:
1. Yes.
The Court held that the trial judge’s reasons for concluding that relocation was not in the best interest of the child revealed material errors and serious misapprehensions of the evidence. First, in his analysis of the mother’s claim of coercive control, directly relevant to s.16(3)(j) of the Act, which requires the court to consider any family violence in the relationship, the trial judge erred by misapprehending or ignoring relevant evidence. Second, the trial judge made assumptions about the mother and her family’s attitude to the child’s Indian heritage that were entirely unfounded. This error tainted his findings under s. 16(3)(f) of the Act to consider the child’s cultural, linguistic, religious and spiritual upbringing and heritage. Third, the trial judge allowed his analysis to be informed by an unreasonable conclusion that the mother had “manipulated” the system against the father. In this, the trial judge erred in his analysis of s.16(3)(i) of the Act.
The Court explained that the term “coercive control” does not appear in the Act. However, when determining the impact of any family violence within the “best interests” analysis, a judge is bound to consider “whether there is a pattern of coercive and controlling behaviour in relation to a family member”: s. 16(4)(b) of the Act. Where allegations of family violence are raised it is, of course, incumbent on the trial judge to carefully evaluate them and to take a dispassionate approach to the evidence tendered to support and rebut the allegations. Moreover, a trial judge must approach these allegations with an awareness that “[d]omestic violence allegations are notoriously difficult to prove”: Barendregt v. Grebliunas. The judge must also be attentive to the harm a child may experience through indirect exposure to domestic conflict.
The mother gave evidence, such as emails between her and the father and testimony from two midwives that the trial judge apparently did not take very seriously. The Court held that the trial judge ignored material evidence relevant to the issue of control. The mother’s evidence of coercive control was conspicuously absent from the trial judge’s analysis. Similarly, despite substantiating the mother’s claim of the father’s controlling behaviour, the email she tendered as evidence of this behaviour received no mention in the trial judge’s analysis. Furthermore, the trial judge discarded the only independent evidence offered by either party, namely the midwives’ evidence, referring to the midwives disparagingly as part of a “circle of self-appointed jurors pointing their fingers at [the father].” While the trial judge was entitled to find the midwives’ evidence neither credible nor reliable, his reasons did not disclose a logical path to such conclusion.
The Court held that the trial judge’s analysis of the evidence of coercive control revealed material errors and significant misapprehension of the evidence. These errors tainted his assessment of the best interests of the child. His ultimate conclusions that the mother “has not proven that there was any family violence” and that “[t]he only violence, in terms of verbal assaults, appear to have come from her and directed at [the father] and his family” were set aside.
The Court held that the trial judge improperly attributed a motive to erase the child’s biracial identity to the mother. The trial judge’s reasons revealed multiple misapprehensions of evidence and unfounded assumptions about the mother and her family’s attitude to the child’s racial identity and about the town to which the mother proposed to move. These errors were most centrally connected to the child’s best interests and the decision could not stand because of these errors. The trial judge found that the mother harboured a “delusion” about the child’s racial identity, that she and her family had a motive to “assimilate” the child, and that the town to which the mother proposed to return was, in his words, “small and strict” and would be unwelcoming to a biracial child. These findings were disconnected from any evidence in the record.
The mother’s mother from Ireland provided an affidavit at trial where she mentioned her Catholic faith and that if the mother would return to Ireland with the child, then the child would be brought up in a catholic community. The Court held that the trial judge made problematic comments as a result of the evidence of the religious beliefs of the mother’s parents. The first was the explicit assertion that Irish Catholics in a rural town inhabit a “small and strict world.” No evidence in the record supported such a finding. These passages reflected stereotypical reasoning with no basis in the record. It was a perspective brought to the decision entirely by the trial judge himself. Similarly, the suggestion that the mother’s family sought to assimilate the parties’ child was not supported by the record. What the grandmother stated was that she and her husband were Catholic and that “faith and tradition [were] values that [they] would pass on” to their granddaughter. They did not evince an “expectation to conform to” those values. The leap from a statement about passing on values to an intent to assimilate was both harsh and unjustified. The trial judge’s findings on the mother and her family’s attitude to the child’s biracial heritage were entirely speculative. Without any basis in the record, these findings could not stand.
2. Yes.
The Court held that the trial judge wrongly treated this relocation case as if it was a case about spousal support. At one point, the trial judge even bluntly stated that “it is a support case”. The Court found that this was a clear legal error. By treating this as a support case and the mother’s motivations for moving as financial only, the trial judge circumvented the list of legally mandated considerations relevant to relocation as set out in s. 16.92(1) of the Act. No doubt, the mother’s determination to remain financially viable and able to provide for her child was a compelling reason connected to relocation. It was a legal error for the trial judge to overlook the motivations referred to by the mother and reduce her relocation request to a “support case”.
The Court agreed with the mother that she should have had the benefit of a presumption in favour of the move given that she was the primary caregiver. In determining that the mother should not have the benefit of the presumption, the trial judge inappropriately imported into his analysis his unfounded criticism of the original parenting order. The trial judge stated: “[the mother] should not benefit from the draconian order she obtained at the outset in order to skew the percentages toward her idea of ‘vast majority’.” There was no support for the finding that the mother manipulated the system, so this finding was a clear error.
3. Undecided.
Given the Court’s conclusion that the order could not stand, it was not necessary to deal with the mother’s allegation of bias on the part of the trial judge. However, the Court felt the need to comment on the language used by the trial judge in his reasons for decision. In the Court’s view, there was no suggestion that the trial judge exhibited any bias in his conduct, comportment, or demeanour during the proceedings. However, several passages in the written reasons appeared to show that the trial judge approached the case with a level of disdain for the mother. The trial judge made many comments that the Court found mocking and inflammatory in tone, were inappropriate and entirely unnecessary. The Court stated that most charitably, the trial judge’s comments could be construed as rhetorical flourish that have no place in the context of an already contentious family law dispute.
[Miller, Harvison Young and Gomery JJ.A.]
Counsel:
S. Bookman and M. Rabinovitch, for the appellant
No one appearing for the respondents
Keywords: Wills and Estates, Applications for Appointment of Estate Trustees, Civil Procedure, Inherent Jurisdiction, Judicial Discretion, Appeals, Standard of Review, Fresh Evidence, Estates Act, R.S.O. 1990, c. E.21, ss. 7(1), 29, 35, 37, Trustee Act, R.S.O. 1990, c. T.23, s. 5, Rules of Civil Procedure, r. 74.14(4), 75, Law Society Act, R.S.O. 1990, c. L.8, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(4)(b), Law Society of Upper Canada v. William John Franklin Bishop, 2012 ONLSHP 87, aff’d 2014 ONLSTA 19, aff’d 2014 ONSC 5057 (Div. Ct.), Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22, Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), St. Amand v. Tisi, 2018 ONCA 106, Re Chiang, 2009 ONCA 3, Bent v. Platnick, 2020 SCC 23, Otis v. Otis (2004), 7 E.T.R. (3d) 221 (Ont. S.C.), Neuberger v. York, 2016 ONCA 191, McLaughlin v. McLaughlin, 2015 ONSC 3491, Seepa v. Seepa, 2017 ONSC 5368, Martin v. Martin, 2018 ONSC 1840, Gonder v. Gonder Estate, 2010 ONCA, Public Guardian and Trustee v. Duggan (1998), 165 D.L.R. (4th) 713 (Ont. S.C.), Mohammed v. Heera (2008), 43 E.T.R. (3d) 273 (Ont. S.C.), Re Lagrandeur Estate, 2021 ONSC 3447, Petrovskaya v. Morelli, 2013 ONSC 2659, Letterstedt v. Broers (1881), 9 A.C. 371 (P.C.), Radford v. Radford Estate (2008), 43 E.T.R. (3d) 74 (Ont. S.C.), St. Joseph’s Health Centre v. Dzwiekowski, 2007 CanLII 51347 (Ont. S.C.), Woolnough v. Dare, 2016 ONSC 4013, R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, R. v. S. (R.D.), [1997] 3 S.C.R. 484
facts:
The deceased executed a will. He left his estate to his four children and his common law spouse, I.H. He appointed his friend, E.S.W, as executrix and trustee. The signing of the will was witnessed by the appellant. His name and address also appeared on the backsheet of the will, where a lawyer’s name and address would ordinarily appear. The appellant was identified as a “consultant” on the backsheet.
The deceased died 7 months after the execution of the will. Two days later, E.S.W signed a renunciation of her right to a certificate of appointment. Three weeks later, each of the deceased’s children signed a consent to the appellant’s appointment as estate trustee and a waiver of the standard requirement that he post security. I.H. signed the same consent shortly thereafter.
The appellant filed an application for a certificate of appointment and an order dispensing of the requirement that security be posted under s. 35 of the Estates Act.
The application judge held that he had to determine whether he should exercise the court’s inherent jurisdiction to refuse the appellant’s application on the basis that the appellant’s appointment could bring the administration of justice into disrepute.
The specific concern that the application judge identified was that the appellant might be engaged in the unlicensed practice of law. The appellant had been a member of the Law Society of Ontario and had practiced as a lawyer in Ontario for 40 years. However, his license was revoked in 2013 after he was found to have participated or knowingly assisted in fourteen fraudulent mortgage transactions over a three-and-a-half-year period. The application judge noted that the appellant had, on the face of the application, been involved in the preparation of the deceased’s will and that steps had been taken rapidly after the deceased’s death to have the appellant appointed as executor, even though someone else was appointed to this role in the will.
The application judge concluded that the application should be denied because no evidence had been tendered that allayed his concern that the appellant might be engaged in prohibited conduct. In the circumstances, he held that the court could not “simply allow Mr. Bishop’s application because that is what the heirs want”. Given the “ample grounds” to believe that the appellant might have engaged in the practice of law despite losing the privilege to do so, the application judge concluded that granting the appointment ran contrary to the court’s obligation to promote confidence in the administration of justice and dismissed the application.
issues:
- Did the application judge have the discretion to refuse the appellant’s appointment as an estate trustee even though the application was unopposed?
- Did the application judge err in exercising this discretion?
- Did the decision give rise to a reasonable apprehension of bias?
holding:
Appeal dismissed.
reasoning:
1. No.
The Court held that a review of whether a Superior Court judge has discretion, in the exercise of the court’s inherent jurisdiction, to refuse an unopposed application for a certificate of appointment as estate trustee is a question of law and therefore reviewable on a standard of correctness.
The Court noted that it had previously endorsed the view of the court’s inquisitorial role in estates proceedings in Neuberger v. York. The court “has a special responsibility to the testator, who cannot be present to give voice to his or her true intentions”: Neuberger, at para. 68. For that reason, an application for probate can be refused if there is no evidence to support it, and even if the estate’s beneficiaries support it: Otis, at paras. 24-26; McLaughlin v. McLaughlin, at paras. 31-36.
The Court noted that this inherent jurisdiction also empowers a Superior Court judge to refuse to grant an application to appoint a trustee. It would be illogical if the court had the power to terminate a trustee’s appointment in appropriate circumstances but did not have the power to prevent an inappropriate appointment.
The Court rejected the appellant’s argument that s. 29(2) of the Estates Act compelled the application judge to grant his application as it was supported by persons entitled to apply for a certificate of appointment under s. 29(1) and there was no other competing application. The Court held that discretion may be exercised even if an application is unopposed, due to the inquisitorial nature of the court’s role in estate proceedings, and its gatekeeping and oversight functions with respect to the appointment of trustees.
The Court further considered the appellant’s reliance on Petrovskaya v. Morelli, in which Morgan J. granted an application by the widow of a deceased person despite an objection. He held in that case that s. 29 of the Estates Act “dictates that in the absence of any more appropriate choice, the Applicant shall be appointed”. The Court noted that this statement must be viewed in the context of that case, where the court recognized the urgent need to appoint someone to administer the estate at issue.
The Court held that there was no suggestion of special circumstances that would require the immediate appointment of an estate trustee in this case. Even if there were special circumstances as contemplated in s. 29(3), they would be a factor to be weighed rather than an imperative requiring the appellant’s application to be granted.
2. No.
The Court held that a trial judge’s exercise of their inherent discretion gives rise to a determination of mixed fact and law. This determination is entitled to deference and will not be reversed absent an error in principle or a palpable and overriding error. No such error has been identified here.
The Court noted that the application judge identified the relevant factors in this case as the wishes of the deceased’s heirs, on the one hand, and “the overarching responsibility of the court to promote confidence in the administration of justice and uphold the rule of law” on the other. Although the application judge acknowledged that a disbarred lawyer is not precluded from acting as an estate trustee, he noted that the appellant had not offered any evidence to allay the court’s concern that he might be engaged in the unlicensed practice of law.
The Court held that a court will rarely have a basis for a serious concern about an unopposed application for a certificate of appointment. In this case, however, the application judge identified a legitimate concern about the appellant’s potential unlicensed practice of law and the impact on the public perception of the administration of justice if he were appointed as estate trustee. This concern was grounded in the public record of the appellant’s disbarment and information in the application record suggesting that the appellant may have taken on a lawyer’s role in the planning and administration of the deceased’s estate.
3. No.
The Court held that a party seeking to rebut the presumption that a judge has acted impartially must “present cogent evidence showing that, in all the circumstances, a reasonable person would apprehend that the [court’s] reasons constitute an after-the-fact justification of the verdict rather than an articulation of the reasoning that led to it”: Teskey, at para. 21. The Court held that the appellant had not rebutted the presumption of impartiality in this case.
The Court noted that the appellant advanced two arguments. First, he suggested that the referral of his application to the application judge was inherently suspicious. Second, he argued that the application judge demonstrated a predisposition to dismiss the application in his direction that preceded the dismissal order.
The Court held that the appellant was seeking an order that only a judge could grant. Under r. 74.14(1)(a), the registrar may issue a certificate of appointment if satisfied that the application for the certificate contains the information, evidence and supporting documentation required by the Rules and any Act. The registrar may otherwise only issue a certificate of appointment “if directed to do so by a judge”: r. 74.14(1)(b).
The Court stated that in his application, the appellant did not include proof that he had obtained a bond as required under s. 35 of the Estates Act. He sought to be relieved of the bond requirement on consent but did not comply with r. 74.11(6). His affidavit was silent as to whether the deceased had any unpaid debts when he died and, if so, what the appellant proposed to do to pay them and otherwise protect their interests. The Court held that the registrar therefore had no choice but to refer the appellant’s application to a judge.
Regarding the appellant’s second argument, the Court held that it was legitimate for the application judge to bring a higher level of scrutiny to bear on the application given the appellant’s professional history. The Court held that a reasonable person, reading the earlier direction from the court, would not conclude that the application judge had already made up his mind to dismiss the application. The application judge’s reasons did not read as an ex post facto justification for a decision that he made prior to issuing the direction. They did not demonstrate or suggest bias.
[Pepall, Roberts and Sossin JJ.A.]
Counsel:
J.C. Lisus, Z. Naqi, D. Ionis, D.F. O’Connor and L. Sokolov, for the appellant D. Fresco and Class Counsel
S. Whitmore and L. Reesor, for the respondent CIBC
J. Leon and E. Schiff, appearing as amicus curiae
Keywords: Contracts, Employment, Overtime Pay, Lawyer and Client, Contingency Fee Agreements, Civil Procedure, Class Proceedings, Legal Fees, Honorariums, Approval, Amicus Curiae, Class Proceedings Act, 1992, S.O., c. 6, Canada Labour Code, R.S.C. 1985, c. L-2, Lavier v. MyTravel Canada Holidays Inc., 2013 ONCA 92, Canada (Attorney General) v. Fontaine, 2017 SCC 47, Reeves v. Brand, 2018 ONCA 26, O’Brien v. Chuluunbaatar, 2021 ONCA 555, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Hryniak v. Mauldin, 2014 SCC 7, Cowles v. Balac (2006), 83 O.R. (3d) 660 (C.A.), Bancroft-Snell v. Visa Canada Corporation, 2016 ONCA 896, Smith Estate v. National Money Mart Co., 2011 ONCA 233, Gagne v. Silcorp (1998), 41 O.R. (3d) 417 (C.A.), Sutts, Strosberg LLP v. Atlas Cold Storage Holdings Inc, 2009 ONCA 690, McCarthy v. Canadian Red Cross Society (2001), 8 C.P.C. (5th) 349 (Ont. S.C.), Cannon v. Funds for Canada Foundation, 2013 ONSC 7686, Fulawka v. Bank of Nova Scotia, 2014 ONSC 4743, Moushoum v. Canada (Attorney General), 2023 FC 1739, MacDonald v. BMO Trust Co., 2021 ONSC 3726, Wein v. Rogers Cable Communications Inc., 2011 ONSC 7290, Osmun v. Cadbury Adams Canada Inc., 2010 ONSC 2752, McDonald v. Home Capital Group, 2017 ONSC 5195, Clegg v. HMQ Ontario, 2016 ONSC 2662, Mancinelli v. Royal Bank of Canada, 2017 ONSC 2324, Doucet v. The Royal Winnipeg Ballet, 2023 ONSC 2323 (Div. Ct.), Baker Estate v. Sony BMG Music (Canada Inc.), 2011 ONSC 7105, McCarthy v. Canadian Red Cross Society, [2007] O.J. No. 2314 (S.C.), Sutherland v. Boots Pharmaceutical Plc., (2002), 21 C.P.C. (Ont. S.C.)
facts:
This appeal involved the fees to be paid to a consortium of three law firms acting as class counsel following the settlement of a class action against CIBC concerning unpaid overtime work. The motion judge awarded the appellant class counsel $25 million in fees for obtaining a $153 million settlement. After other deductions, this left $106 million to be allocated to the class.
The appellant class counsel requested a $19 million increase in fees, which would have reduced the class portion of the settlement to $86 million for 31,000 class members. Class counsel and the representative plaintiff, D.F. (the “appellants”), also appealed from the motion judge’s refusal to grant D.F. a $30,000 honorarium for her efforts as the representative plaintiff.
issues:
- Did the motion judge err in attributing self-interest to class counsel absent an evidentiary basis and allowing his subjective views and presumptions to dominate his analysis of the fee request?
- Did the motion judge err in failing to properly analyze the relevant factors, including the risks and results achieved, and failing to assign them appropriate weight and consideration?
- Did the motion judge err in determining that the “appropriate” fee was $25 million absent any objective, principled criteria, while expressly disregarding comparators and cross-checks?
- Did the motion judge err in failing to apply the facts to the applicable law on the request for an honorarium?
holding:
Appeal dismissed.
reasoning:
- No.
The Court held that much of the motion judge’s reasons consisted of a synopsis of his experience with class actions and not a commentary on class counsel in this particular case. However, the Court noted that the motion judge expressly instructed himself to consider all the circumstances of the case and asked himself “as a matter of objective – not subjective – judgment,” whether the fee fixed by the agreement was reasonable and maintained the integrity of the profession.
The Court held that the motion judge’s language was strong and at times inflammatory. However, the Court held that for the most part, a close reading of his reasons reflected a discussion and review of the challenges facing judges in approving counsel fees in class actions in general, rather than this case in particular. The Court noted that the concerns the motion judge expressed were not improper.
Reading the motion judge’s reasons as a whole, the Court was not persuaded that his subjective views and presumptions dominated or overwhelmed his analysis. The Court held that the exercise of the motion judge’s discretion was not infected by considerations untethered to the facts before him.
The Court also rejected the submission that the motion judge improperly attributed self-interest to class counsel. The Court explained that self-interest denotes a focus on the interests of oneself. In the context of a fee approval motion, class counsel will already have done what they can for the class and are now looking for payment of their legal fees. Accordingly, the Court stated that an element of self-interest is embedded in the process and that it is often inherent in the request for fees. Finally, the Court noted that the motion judge exhibited the scepticism described by the Court Smith Estate.
- No.
(a) Risks Taken
The appellants advanced numerous complaints, submitting that the motion judge treated this fee approval like every other fee approval; failed to evaluate the risks when the litigation was commenced and as it continued; failed to consider the likely result at a contested hearing; and improperly treated the high-water mark of damages as probable while making no findings in that regard. Finally, the appellants submitted that the motion judge failed to address the “significant professional opportunity cost required to successfully prosecute a case of this length, scale and complexity.”
The Court agreed with Amicus Curiae and held that there was no basis to interfere with the motion judge’s assessment of risk, stating that he addressed risk in detail. The Court noted that, having accepted that this class action was high-risk litigation, the motion judge considered that class counsel had still overstated the risks, noting that, even truncated by limitation periods, the class would remain large. Moreover, the Court noted that the risk was attenuated because refusal to certify aggregate damages would leave counsel with remunerative damages work at the individual level.
Contrary to the appellants’ arguments, the Court held that the motion judge evaluated the fee approval request on its own merits. The Court explained that he considered the risk of non-certification and the changes in risk as the proceeding progressed, noting that class counsel thought the class had damages of $650 million (but noted that CIBC had exposure in excess of $426 million), a class size of 31,000 claimants with strong individual claims, and a Schedule A bank as a defendant. The Court explained further that the motion judge did reference the various methodologies for calculating potential outcomes advanced by the appellants, just not in the detail that the appellants wanted.
The Court held that it was reasonable for the motion judge to consider that payment on account of docketed time based on unquestioned hourly rates coupled with a premium of $8.5 million would not act as a deterrent to incentivizing counsel. As stated in Lavier, at para. 63, “the viability of the class action regime does not depend on an overly generous award being approved in every case.”
Importantly, the Court found that the motion judge’s finding achieved a fair and proportional balance between class counsel fees and the class settlement fund. The Court explained that such proportionality serves to protect the integrity of the profession in the face of a request by class counsel that, by its nature, operates to reduce the funds available for class members. The Court held that this is a particularly important principle in the context of mega-fund settlements and supported the objectives that animate the Class Proceedings Act, 1992 (“CPA”).
(b) Results Achieved
The appellants asserted that the motion judge’s view of the results was based on speculation about what Belobaba J. might have thought of the settlement and that this was an error in principle. The Court rejected this argument, holding that a fair reading of the relevant section of the motion judge’s reasons suggested that his comment was of limited, if any, significance.
Second, the appellants submitted that the motion judge’s comparison of the settlement to a $426 million damages figure was not an appropriate benchmark for assessing the quality of the result and that the outcome had to be considered on a risk-adjusted basis, bearing in mind the realistic scenario at a contested hearing. They asserted that the motion judge did not engage with the report of the appellants’ expert. The Court disagreed, explaining that the motion judge summarized the damages models that a court could apply at trial as described in the report of the appellant’s expert and concluded that class counsel had achieved a good result when compared to the alternative of taking the matter to judgment about aggregate damages. The motion judge compared the result to the settlement in Fulawka v. Bank of Nova Scotia and determined that that settlement was more favourable.
The appellants also asserted that the motion judge did not engage with class counsel’s assessment of what they realistically expected to achieve at an aggregate damages hearing. The Court rejected this assertion and noted that class counsel’s assessment was subjective in nature and that the motion judge considered the settlement objectively, as he was required to do.
Finally, the Court also rejected the appellants’ contention that the motion judge failed to account for various facts in his decision. The Court noted that, contrary to the submissions of the appellants, the motion judge addressed opportunity cost, some coverage for class members with potentially expired limitation periods, the absence of any need for class members to prove their claims, and the fact that no portion of the settlement would revert to the CIBC.
(c) Integrity of the Profession
The appellants’ next argument under this second ground of appeal related to the absence of an anchor for the motion judge’s finding that the requested fee was contrary to the integrity of the profession. The motion judge found that an award of $44 million would call the integrity of the profession into question. The appellants accepted that the motion judge identified the proper test but took issue with his application of that test.
The Court held that this was an inaccurate characterization. The Court explained that the existence of discretion typically implies that different decision makers can reasonably arrive at different results, and that the appellants may not have liked the result reached by the motion judge in the exercise of his discretion, but he considered the relevant factors and the decision was open to him to make. The motion judge had discretion to balance, as he did, proportionality and considerations about incentivizing future class counsel with the needs of class members in the immediate case. The Court found no reason to interfere with the motion judge’s assessment.
- No.
The appellants submitted that the motion judge’s approach in determining an appropriate fee was tainted by his disclaimer of the utility of objective criteria and his misapprehension of the Fulawka settlement as a benchmark.
The motion judge noted that the lodestar methodology and comparisons to other class actions are used as cross-checks although he expressed concern about their reliability. He concluded that the multiplier method was problematic for mega-fund settlements such as this one. He reasoned that each case turns on its own facts. The Court noted that, in their materials before the motion judge, the appellants acknowledged that this was a mega-fund settlement and that in these circumstances courts have held that class counsel fees should be decided on a case-by-case basis.
The appellants argued that the motion judge’s rejection of multipliers as an apt comparator was contrary to s. 33(7) of the CPA and the principles in Gagne. The Court held that in the CPA, the use of multipliers is not mandatory but discretionary, and Gagne was not pointed at mega-fund settlements. In arguing that comparators and cross-checks should not be ignored, the appellants cited five cases in their factum, three of which were decided by the motion judge in this appeal. The Court held that the parties’ positions on these five cases highlighted the different interpretations often available for comparators and illustrate that although comparators and multipliers are of assistance, fee approvals are ultimately fact driven and case specific.
The Court also addressed the motion judge’s reliance on Fulawka. The motion judge noted that a contingency fee of 17 percent was lower than the 20 percent in Fulawka, which the Court held was appropriate given that it was arguable that the Fulawka settlement was modestly better and achieved much sooner. The appellants argued that the motion judge misapprehended the evidence as the effective contingency fee in Fulawka was 24 percent and not 20 percent. The Court held that even if this was a palpable error, it was not overriding. Furthermore, the appellants submitted that the settlement in this case was better than in Fulawka and that the timing on certification was very different for each of these cases.
The Court held that the motion judge was entitled to consider timeliness as a factor in the exercise of his discretion and did so without error, noting that the motion judge did not assume that quicker automatically meant better. The motion judge also considered the Fulawka settlement to be “modestly better” than the settlement in this case, and that he emphasized that the Fulawka settlement amount for the class was not diluted by legal fees and disbursements. These were paid separately by the bank. The Court held that this was a reasonable and significant distinction.
The appellants submitted that the motion judge erred in finding that the Fulawka settlement was uncapped. The Court rejected this, holding that this was not a material error. The Court explained that the key distinction drawn by the motion judge was that the Fulawka settlement was undiluted by legal fees and disbursements, unlike this case.
- No.
The appellants submitted that the motion judge made two errors in refusing to grant D.F. an honorarium. First, they submitted that the motion judge did not give sufficient weight to the courage she displayed or the risk she took on. Second, they asserted that the motion judge’s decision was contrary to precedent as other courts have awarded honoraria to plaintiffs who were less extensively involved over shorter periods of time and who faced less personal risk.
Amicus opposed the request, stating that it amounted to improper interference with the motion judge’s exercise of discretion to refuse to award an honorarium. Relying on Doucet v. The Royal Winnipeg Ballet, Amicus submitted that honoraria should be reserved for exceptional cases where such an award will serve access to justice.
The Court accepted Amicus’ submission, explaining that in Doucet, in determining that an honorarium requires exceptional circumstances, the Divisional Court undertook an extensive review of the jurisprudence on honoraria. Furthermore, the Court noted that in Baker Estate v. Sony BMG Music (Canada Inc.), Strathy J. (as he then was), emphasized that this type of payment “is exceptional and rarely done… It should not be done as a matter of course”, and that it “should be reserved for cases…where the contribution of the representative plaintiff has gone well above and beyond the call of duty.”
The Court also cited Sutherland v. Boots Pharmaceutical Plc. where Winkler J. (as he then was) observed that “where a representative plaintiff benefits from the class proceeding to a greater extent than the class members, and such benefit is as a result of the extraneous compensation…rather than the damages suffered by him or her, there is an appearance of a conflict of interest between the representative plaintiff and the class member.”
The Court explained that factors that might qualify as exceptional circumstances could include exposure to a real risk of costs or significant personal hardship in connection with the prosecution of the action. The Court cited the Divisional Court in Doucet, noting that additional payment should be available only where the representative plaintiff can demonstrate a level of involvement and effort that is “truly extraordinary.” Therefore, the Court held that the motion judge’s decision on the honorarium was not unreasonable or infected with error.
SHORT CIVIL DECISIONS
[Nordheimer, Gomery and Wilson JJ.A.]
Counsel:
R.D. acting in person
M. Chung and M. J. Sims, for the respondents, The Honourable Justice Leonard Ricchetti and Attorney General of Ontario
N. Colville-Reeves, for the respondent, C.J.S.
Keywords: Civil Procedure, Application, Striking Pleadings, No Reasonable Cause of Action, Reasonable Apprehension of Bias
[Nordheimer, Gomery and Wilson JJ.A.]
Counsel:
J. M. Fischer, for the appellant
A. Shahabi, for the respondents
Keywords: Real Property, Easements
[Gomery J.A. (Motions Judge)]
Counsel:
C. Guilbault, for the appellant, Stayside Corporation Inc.
S. Émard-Chabot, for the respondents, Cyndric Group Inc. and R. M.
Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Appeals, Representation by Lawyer, Security for Costs, Rules of Civil Procedure, r. 15.01(2), 61.01(1)(a) and 61.01(1)(b), GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, Heidari v. Naghshbandi, 2020 ONCA 757, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Foodinvest Limited v. Royal Bank of Canada, 2020 ONCA 387
[Nordheimer, Gomery and Wilson JJ.A.]
Counsel:
X.P., acting in person
S. Eisen and J. Valencia, for the responding party, M. H. T.
Keywords: Civil Procedure, Costs, Appeals, Leave, Extension of Time
[Nordheimer, Gomery and Wilson JJ.A.]
Counsel:
L.L.G., acting in person
D. Search and T. Schjerning, for the responding parties, New Horizon System Solutions, Capgemini Canada Inc., P.W., S.M., and A.T-B.
G. McGinnis, for the responding party, Oncidium Health Group
Keywords: Administrative Law, Judicial Review, Human Rights Tribunal, Civil Procedure, Appeals, Leave, Perfection, Extension of Time, Yaiguaje v. Chevron Corporation, 2017 ONCA 827
[Fairburn A.C.J.O. (Motions Judge)]
Counsel:
A. Sidhu, for the moving party, H. R.
B. Belmont, for the moving party, Bluekat Capital Corp.
C. C., acting in person
N. C., also known as N. O. and J. C., acting in person
I. C., acting in person
Keywords: Civil Procedure, Appeals, Addendum, Costs, Rathod v. Chijindu, 2024 ONCA 317, Rathod v. Chijindu, 2024 ONCA 420
[Nordheimer, Gomery and Wilson JJ.A.]
Counsel:
A. Teshebaeva, for the appellant
The respondent not appearing
Keywords: Family Law, Equalization of Net Family Property, Unequal Division, Domestic Contracts, Maher, Civil Procedure, Disclosure, Bakshi v. Hosseinzadeh, 2017 ONCA 838, Cohen v Cohen, 2024 ONCA 114
[Nordheimer, Gomery and Wilson JJ.A.]
Counsel:
W. R. Clayton, for the appellant
A. A. Nicholls and J. Davies, for the respondent
Keywords: Family Law, Parenting, Decision Making, Retroactive Child Support, Civil Procedure, Fresh Evidence, Costs, Child and Family Services Act, R.S.O. 1990, c. C.11, s. 69(6), Cuthbert v. Nolis, 2024 ONCA 21, Children’s Aid Society of Owen Sound v. R.D., 178 O.A.C. 69 (C.A.), Rigillo v. Rigillo, 2019 ONCA 548, Knapp v. Knapp, 2021 ONCA 305, Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), V.K. v. T.S., 2011 ONSC 4305, Andrade v. Kennelly, 33 R.F.L. (6th) 125 (Ont. S.C.), Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Legault v. TD General Insurance Company, 2024 ONCA 439
The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.