Court of Appeal Summaries (December 16 – 20)

December 31, 2024
John Polyzogopoulos

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In Barbiero v Pollack, the Court upheld the dismissal for delay of a 21-year-old class proceeding for delay. The rules regarding delay apply equally to class proceedings. Moreover, the Court partially overturned its 2011 decision in Langenecker v. Sauvé. The Court indicated that to the extent the Court’s decision in Langenecker v. Sauvé could be read as denying that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay and not simply a rebuttable presumption of prejudice, that decision should not be followed.

In a child abduction case, A.A. v. Z.M., the Court granted a motion to review and set aside the order of a single judge of the Court denying a stay of a Superior Court decision that required the return of an infant child to Bangladesh pending appeal. The mother alleged procedural unfairness and argued that the return order violated her and the child’s pending refugee claim in Canada, citing safety concerns and domestic violence. The majority found serious issues on appeal, potential irreparable harm, and a balance of convenience favoring the mother, granting the stay pending an expedited hearing of the appeal. In dissent, Hourigan J. criticized the majority for insufficient deference to the motion judge and raised concerns about the possible future procedural misuse of panel reviews.

In Arcamm Electrical Services v Avison Young Real Estate Management Service, the Court allowed the appeal from a summary judgment for services rendered. The Court held that the motion judge erred in failing to consider the appellant’s contributory fault defence and finding that there was no genuine issue for trial. Importantly, the Court confirmed that damages in contract cases can be apportioned based on fault.

Teneycke v. McVety was an anti-SLAAPcase. The plaintiff, who was Premier Doug Ford’s campaign manager, was publicly accused by the defendant, the president of the Evangelical Christian Bible College, of two things. First, that the plaintiff improperly used his influence over Premier Ford to implement vaccine passports for the benefit of his company’s pharmaceutical clients, and ultimately for his own financial benefit. Second, that the plaintiff has an anti-Christian bias and has tried to keep Christians out of the Progressive Conservative Party. The defendant brought an anti-SLAPP motion to dismiss the plaintiff’s defamation action against him. The motion judge dismissed the motion. The Court dismissed the defendant’s appeal.

In Saxberg v. Seargeant Picard Incorporated, a construction contract dispute, the defendant brought a motion for summary judgment to dismiss the claim as out of time. The motion judge dismissed the motion and also found that the claim was in-time, precluding the limitation period defence at trial (the “boomerang” order). The defendant had agreed on the motion that this would be appropriate, and in dismissing the appeal, the Court commented that the appellant should not be entitled to resile from that position.

In Rathee v Rathee, the Court set aside the appeal judge’s decision that overturned an arbitrator’s award in a family law case. The Court partially reinstated the arbitrator’s award, but varied it by increasing the amount of spousal support payable.

Dufault v. Ignace (Township) was an appeal of a summary judgment motion which found the termination clauses included in an employment contract unenforceable for failing to meet minimum standards under the ESA.

In Giann v. Giannopoulos, the Court agreed with the application judge’s conclusions that the Appellants had not satisfied their evidentiary burden in demonstrating that their father’s capacity was at issue or that his decision-making may have been unduly influenced when making a will and an inter vivos transfer of property.

In Tzouanakis v Tzouanakis, the Court dismissed the appellant’s appeal from the trial judge’s decision finding that the respondent beneficially owned one family property by way of resulting trust, and held a 35.6% interest in a second property.

Civil Decisions

Barbiero v Pollack, 2024 ONCA 904

Keywords: Civil Procedure, Class Proceedings, Dismissal for Delay, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 28, 35, Rules of Civil Procedure, r. 24.01, Barbiero v. Pollack, 2024 ONSC 1548, 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, Langenecker v. Sauvé, 2011 ONCA 803, Allen v. Sir Alfred McAlpine & Sons, Ltd., [1968] 1 All E.R. 543 (C.A.), 556, Hryniak v. Mauldin, 2014 SCC 7

A.A. v Z.M., 2024 ONCA 923

Keywords: Family Law, Parenting, Relocation, Child Abduction, Child Welfare, Immigration Law, Refugees, Civil Procedure, Appeals, Stay Pending Appeal, Review, Courts of Justice Act, R.S.O. 1990, c. C.43 s. 7(5), Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 22(1)(a)(b), s.23, s.24, s.40, Immigration and Refugee Protection Act, S.C. 2001, c. 27, Rules of Civil Procedure, r. 63.02(1)(b), F. v. N., 2022 SCC 51, A.(M.A.) v. E. (D.E.M.), 2020 ONCA 486, Maharaj v. Maharaj, 146 O.A.C. 317, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp v. Lesperance, 33 O.R. (3d) 674, N. v. F., 2021 ONCA 688, D.C. v T.B., 2021 ONCA 562, K.K. v. M.M., 2021 ONCA 407, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Oliveira v. Oliveira, 2022 ONCA 218, Barendregt v Grebliunias, 2022 SCC 22, K.K. v. M.M., 2021 ONCA 407, Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), Yaiguaje v. Chevron Corp., 2017 ONCA 827, Machado v. Ontario Hockey Association, 2019 ONCA 210, Wiseau Studio, LLC v. Harper, 2021 ONCA 504, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R, Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R, N. v. F., 2021 ONCA 614

Rathee v Rathee, 2024 ONCA 912

Keywords: Family Law, Spousal Support, Equalization of Net Family Property, Civil Procedure, Arbitration, Divorce Act, RSC 1985, c 3 (2^nd Supp), Spousal Support Advisory Guidelines, Family Law Rules, O. Reg. 114/99, rr. 24(1), 24(6), Petersoo v. Petersoo, 2019 ONCA 624, Halliwell v. Halliwell, 2017 ONCA 349, McKinnon v. McKinnon, 2018 ONCA 596, Slongo v. Slongo, 2017 ONCA 272, D.B.S. v. S.R.G, 2006 SCC 37, Kerr v. Baranow, 2011 SCC 10, Gray v. Gray, 2014 ONCA 659

Dufault v Ignace (Township), 2024 ONCA 915

Keywords: Contracts, Employment, Termination Clauses, Enforceability, Wrongful Dismissal, Civil Procedure, Reconsideration, Employment Standards Act, 2000, S.O. 2000, c. 41, Termination and Severance of Employment, O. Reg. 288/01, Practice Direction Concerning Civil Appeals, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451, Waksdale v. Swegon North America Inc., 2020 ONCA 391

Arcamm Electrical Services Ltd. v Avison Young Real Estate Management Services LP, 2024 ONCA 925

Keywords: Contracts, Defences, Contributory Fault, Contributory Negligence, Damages, Apportionment, Civil Procedure, Partial Summary Judgment, Negligence Act, R. S.O. 1990, c. N.1, Courts of Justice Act, R.S.O. 1990, c. C.43, Rules of Civil Procedure, r. 20, Hyrniak v. Mauldin, 2014 SCC 7, Tompkins Hardware Ltd. v. North Western Flying Services Ltd. (1982), 139 D.L.R. (3d) 329, 22 C.C.L.T. 1 (Ont. H.C.J.), Ribic v. Weinstein (1982), 140 D.L.R. (3d) 258 (Ont. H.C.), aff’d (1984), 47 O.R. (2d) 126 (C.A.); Treaty Group Inc. v. Drake International Inc. (2005), 36 C.C.L.T. (3d) 265, 15 B.L.R. (4th) 83 (Ont. S.C.), aff’d on other grounds, 2007 ONCA 450, K-Line Maintenance & Construction Ltd. v. Scepter Corp., 2009 CarswellOnt 7398, (Ont. S.C.), at para. 161; Atos v. Sapient, 2016 ONSC 6852, at para. 389, Parkhill Excavating Limited v. Robert E. Young Construction Limited, 2017 ONSC 6903, at para. 212, Coopers & Lybrand v. H.E. Kane Agencies Ltd. (1985), 62 N.B.R. (2d) 1, (N.B. C.A.), at pp. 707-708, Doiron v. Caisse populaire d’Inkerman Ltée (1985), 17 D.L.R. (4th) 660, 61 N.B.R. (2d) 123 (N.B. C.A.), at p. 273, Cosyns v. Smith (1983), 146 D.L.R. (3d) 622, 25 C.C.L.T. 54 (Ont. C.A.), Spiridakis v. Li, 2021 ONCA 359

Teneycke v McVety, 2024 ONCA 927

Keywords: Torts, Defamation, Anti-SLAPP, Malice, Defences, Fair Comment, Responsible Communication, Malice, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Burjoski v. Waterloo Region District School Board, 2024 ONCA 811, Hamer v. Jane Doe, 2024 ONCA 721, Bent v. Platnick, 2020 SCC 23, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 40 Days for Life v. Dietrich, 2024 ONCA 599, Mondal v. Kirkconnell, 2023 ONCA 523, Marcellin v. London (Police Services Board), 2024 ONCA 468, Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, PMC York Properties Inc. v. Siudak, 2022 ONCA 635, Hill v. Church of Scientology of Toronto (1994), 18 O.R. (3d) 385 (C.A.), Rogacki v. Belz (2004), 190 O.A.C. 94 (C.A.), 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, Smith v. Cross, 2009 BCCA 529, Rooney v. Galloway, 2024 BCCA 8, o Hansman v. Neufeld, 2023 SCC 14, Thorman v. McGraw, 2022 ONCA 851, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 92

Saxberg v Seargeant Picard Incorporated, 2024 ONCA 931

Keywords: Contracts, Constructions, Civil Procedure, Summary Judgment, Boomerang Summary Judgment, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5(1)(a)(iv), Rules of Civil Procedure, r. 20.04(2.1), Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, Longo v. MacLaren Art Centre, 2014 ONCA 526, Presley v. Van Dusen, 2019 ONCA 66, Gordashevskiy v. Aharon, 2019 ONCA 297

Giann v Giannopoulos, 2024 ONCA 928

Keywords: Wills and Estates, Wills, Inter Vivos Transfers, Validity, Capacity, Undue Influence, Rules of Civil Procedure, r. 75.06, Neuberger v. York, 2016 ONCA 191, leave to appeal refused, [2016] S.C.C.A. No. 207, Johnson v. Johnson, 2022 ONCA 682, leave to appeal refused, [2022] S.C.C.A. No. 444

Tzouanakis v Tzouanakis, 2024 ONCA 929

Keywords: Real Property, Estates and Trusts, Resulting Trusts

Short Civil Decisions

Girgis v Mansour, 2024 ONCA 913

Keywords: Wills and Estates, Interpretation, Testamentary Intention, Estates Act, R.S.O. 1990, c. E.21, s. 50(1), Rules of Civil Procedure, rr. 14.05(3)(a) and (d), 74.15(1)(d) and (i), 74.17

Ash v Ontario (Chief Medical Officer), 2024 ONCA 921

Keywords: Civil Procedure, Leave to Appeal, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5)

Barbiero v Pollack, 2024 ONCA 922

Keywords: Costs

Vaughan v Chen, 2024 ONCA 914

Keywords: Civil Procedure, Appeals

Baybourdi v Starkman Barristers, 2024 ONCA 934

Keywords: Contracts, Solicitor and Client, Civil Procedure, Assessments, Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b), Solicitor’s Act, R.S.O. 1990, c. S.15, Durbin v. Brant, 2017 ONCA 463, Norris v. Starkman, 2020 ONCA 744

CIVIL DECISIONS

Barbiero v Pollack, 2024 ONCA 904

[Brown, Huscroft and Miller JJ.A.]

Counsel:

P.L. Roy and J. A. Dewar, for the appellant

D.Varah and D. Hooper, for the respondent

facts:

The appellant sought to set aside the dismissal for delay of a 21‑year old certified class proceeding for which she was the representative plaintiff. The action sought damages against the defendant physician, Dr. S.V.P., for unlawfully injecting Liquid Injectable Silicone or Injectable Grade Liquid Silicone (“IGLS”) into patients’ lips and facial contours.

The appellant commenced this action in February 2003. Later that year, in December 2003, it was certified on consent as a class proceeding.

Some examinations for discoveries took place in 2004 and 2005. Health Canada seized a sample of the IGLS in the possession of Dr. S.V.P., which resulted in a March 2005 order by the class proceeding case management judge approving a protocol for the sample’s testing. The parties held an unsuccessful one-day mediation in late 2012. In 2019, the representative plaintiff informed the respondent that she wished to arrange for the testing of the IGLS sample previously seized by Health Canada and to set the matter down for trial. By 2022 the matter still had not been set down for trial, notwithstanding the passage of almost 20 years. In September, the respondent moved to dismiss for delay and the motion judge granted the order, applying s. 35 of the Class Proceedings Act, 1992 (CPA).

issues:

Did the motion judge err in finding that a 21-year delay was inordinate and inexcusable?
Did the motion judge err in finding prejudice?
Did the motion judge err in dismissing the action in light of the ability of class members to start a new action?

holding:

Appeal dismissed.

reasoning:

The appellant’s contention that the 21-year delay was not inordinate was incomprehensible. The Court noted that for a delay to be “inordinate” it must be unusually large or excessive. According to the Court, in the context of rule 24.01, that assumes the existence of a benchmark that sets out ordinary or normal amount of time for setting down for trial. The Court found that such a benchmark exists in the Rules of Civil Procedure under rule 48.14(1)1, which provides that he registrar is required to administratively dismiss an action for delay if it has not been set down for trial or terminated within five years of commencement.

With respect to whether the delay was inexcusable, the appellant argued that that the motion judge misapprehended the evidence in finding that there was no evidence of any steps taken by the appellant during the six-and-a-half-year period from May 2006 until December 2012, when the mediation was held, or of any substantive steps taken during the subsequent seven-year period from the December 2012 mediation until December 2019. The Court rejected this argument and agreed with the motion judge’s finding that there was “no evidence of any substantive steps taken by” the appellant.

The Court reiterated that it is the obligation of an initiating party to move a proceeding to its final disposition. Accordingly, any dilatory regard for the pace of litigation falls on them, absent resistance from a defendant to proceed to a final disposition on the merits. The Court found that there was no evidence of such resistance in this case.

The Court rejected the appellant’s argument that the motion judge misapplied the principles set out in the Court’s 2011 decision in Langenecker v. Sauvé. In reaching this decision, the Court referred to the 2014 decision in Hryniak v. Mauldin, wherein the Supreme Court called for a “culture shift” in the civil justice system to allow for the “[p]rompt judicial resolution of legal disputes to allow individuals to get on with their lives…” The Court noted that under the Langenecker approach, delay or the passage of time on its own cannot constitute harm or prejudice sufficient to support the dismissal of an action. Rather, Langenecker merely treats the existence of delay as giving rise to a rebuttable presumption of prejudice. The Court strongly questioned whether Ontario civil courts can achieve the culture shift demanded by the Supreme Court if they continue to abide by Langenecker’s “tolerant attitude” toward delay. The Court noted that a litigation culture based on Langenecker focuses more on justifying delay than on achieving the most expeditious determination of civil proceedings. According to the Court, to the extent that Langenecker denies that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay and not simply a rebuttable presumption of prejudice, it should not be followed.

The Court was not persuaded that the appellant demonstrated the motion judge erred in his understanding of the evidence or committed any palpable and overriding error in weighing the various considerations at play in examining the issue of prejudice. The Court found no basis upon which to interfere with the conclusion the motion judge reached regarding prejudice.

The Court rejected the appellant’s arguments on this ground.

The appellant made three distinct submissions in support of this ground of appeal First, she argued that the motion judge erred in principle by rejecting her argument that concerns about the pace of the action “should have been dealt with through the robust class action case management process.” The Court found this to be an ironic argument, noting that the record was silent as to why the appellant, and her counsel, failed to take advantage of the single-judge case management through the Toronto Region Class Actions Team to gain preferential access to judicial resources over the course of almost two decades.

Second, she submitted that it would be inefficient to dismiss the present action when other class members could initiate a new action given the suspension of the limitation period by operation of s. 28 of the CPA. The Court held that the motion judge, in exercising his discretion dealt with that argument in his reasons. The Court found no reversible error in the motion judge’s analysis.

Finally, the appellant argued that dismissing this action would be contrary to the goals of the CPA of achieving access to justice, judicial economy, and behaviour modification. In rejecting this argument, the Court noted that one element of the general principle that r. 1.04(1) identifies as applying to all civil litigation is the obligation to secure the “most expeditious” determination of the proceeding on its merit. The Court noted that class proceedings are not exempt from the operation of that principle nor from the consequences of unexplained inordinate delay.

A.A. v Z.M., 2024 ONCA 923

[Hourigan, Copeland and Madsen JJ.A.]

Counsel:

M. Mehra, A. Medhekar and Y. Abuzgaya, for the appellant

M. J. Stangarone, T. Guo and S. Kabir, for the respondent

S. Scott and C. E. Tempesta, for the Office of the Children’s Lawyer

facts:

The moving party/appellant, Z.M. (the mother), moved to stay the order of Sharma J. made August 22, 2024, in the Superior Court of Justice. That order was, inter alia, for the return of the parties’ infant child to Bangladesh (“the return order”). On October 18, 2024, a single judge of the Court dismissed Z.M.’s request to stay the return order pending the disposition of the appeal to the Court (“the stay dismissal”). The mother sought a panel review of the dismissal of her request for a stay.

Before the stay motion judge, the mother argued that she met all three branches of the test for a stay. She asserted that the judge below erred in failing to consider and apply the Court’s decision in A.(M.A.) v. E. (D.E.M.), 2020, and that this constituted a serious issue on appeal. Second, she argued that the failure to grant a stay of an order returning a child would render the appeal moot, which has been held by the Court to constitute irreparable harm. Third, the mother argued that the balance of convenience clearly favoured her, since she and the child stood to permanently lose the ability to claim refugee status in Canada, while the prejudice to the father was minimal as he could travel to see the child pending disposition of the appeal.

The stay motion judge was prepared to accept that the scope of the Court’s decision in A.(M.A.) could constitute a serious issue. However, in his view, “the decision in A.(M.A.), properly and fairly read, did not stand for the blanket proposition that, in every case where a refugee claim is made, the court is without jurisdiction to exercise its authority under the CLRA.” This would make it too easy to “thwart the imposition of necessary remedies that are intended to be applied when a child is abducted from their habitual home.”

The stay motion judge held that there must be some evidence of merit to the refugee claim, “perhaps a scintilla of evidence,” to support it, before the court will decline to order the return of a wrongfully removed or retained child. He concluded that there was no evidence, either before the judge at first instance, or before the Court on the stay motion, to support the refugee claim. Irreparable harm, he concluded, “cannot arise from the loss of a proceeding which has no apparent merit.”

Turning to the balance of convenience, the stay motion judge found that this favoured the return of the child to Bangladesh, where she has a home, support, and financial security.

issues:

Did the motion judge err in their application of the test for stay pending appeal when a refugee claim has been asserted?

holding:

Motion granted.

reasoning:

MAJORITY (Madsen J.A. and Copeland J.A.) – YES.

The majority noted that the test for a stay pending appeal was well-established. First, the moving party must show that on a preliminary assessment of the merits of the case, there is a serious question to be tried; second, the moving party must show that she will suffer irreparable harm if the stay is not granted; and third, she must show that the balance of convenience favours granting the stay.

a) Serious Issues on Appeal

The majority held that the motion judge erred in principle in giving insufficient weight to the merits of the appeal at the serious issue stage.

The majority held that A. (M.A.) gives clear direction about the relationship between ss. 23 and 40 of the Children’s Law Reform Act in the context of a pending refugee application. Specifically, A. (M.A.) holds that even if the serious harm test under s. 23 is not met, where there is a pending refugee claim, a child should, nevertheless, not be returned under s. 40: at para. 78. A. (M.A.) affirms the principle of non-refoulement as the “cornerstone of international refugee protection,” noting that if a child is returned to a place from which asylum is sought, the child’s rights to asylum are lost.

The scope of certain statements in A.(M.A.) and whether they require qualification, particularly in light of the majority’s decision in F. v. N. was, in the majority’s view, a serious issue on appeal. The majority noted that in particular, there was more than a “scintilla” of evidence supporting the mother and child’s refugee claims.

Further, the majority noted that while not fully argued before the stay motion judge, a serious issue was raised from the appearance of insufficient procedural fairness. The majority acknowledged that there were two initial adjournments of the father’s motion, made peremptory to the mother. However, the majority further acknowledged that, before Sharma J., the mother stated she had been unable to find a lawyer, she was not able to upload her materials to the online platform, she was not asked to hand up her materials to the judge, and it was evident from the transcript that English was not her first language. Furthermore, she requested, and was denied, time to prepare for her oral testimony. Although she was cross-examined, she was not given an opportunity to cross-examine the father. There was no indication that she was ever referred to duty counsel, the Law Society Referral Service, the Family Law Information Centre, the Refugee Law Office of Legal Aid Ontario, or any other accessible legal resource.

Taking these two issues together, it was the majority’s view that the stay motion judge erred in principle in giving insufficient weight to the merits of the appeal.

b) Irreparable Harm

The majority held that the stay motion judge erred in principle in his consideration of irreparable harm to the mother and the child that would arise from the dismissal of the stay motion.

First, the majority noted that the stay motion judge incorrectly held that irreparable harm cannot, “arise from a proceeding that has no apparent merit”. The majority noted that it could not be fairly concluded at this stage that the refugee claims for the mother and the child had no apparent merit. The majority acknowledged that the mother gave oral evidence that she experienced ongoing domestic violence at the hands of the father, during which the child was at times present. Furthermore, the majority noted that there were outstanding serious criminal charges against the father which ought not to be ignored. If the mother and/or the child could not be protected from domestic violence in Bangladesh, this could form the basis for a refugee claim.

Second, the majority held that in the motion judge’s analysis of irreparable harm, he focused solely on the mother, and did not consider irreparable harm to the child as is required: K.K. v. M.M. Where the order sought to be stayed involves the parenting of a child, the overriding consideration must be the best interests of the child: Lefebvre v. Lefebvre.

Lastly, the majority noted that in suggesting that the mother could simply stay in Ontario and pursue custody of the child, the stay motion judge did not advert to the fact that the child was still an infant who was nursing. The majority held that F. v. N. is clear that while primary care is not determinative, separating a child from their primary caregiver “should never be considered lightly”. Here, the majority held that such separation was not considered at all.

c) Balance of Convenience

The majority noted that the stay motion judge expressed concern about the potential impact on the child of anticipated delays in the refugee determination process, stating that “refugee claims can take months, in some cases years, to resolve.” He surmised that by the time the process concluded, the child could “well wind up spending more time in this foreign country than she has in her home country”, leading to a lessened connection with her native country of Bangladesh if the refugee claim was denied. The majority held that this was an error in principle to consider the length of time for refugee claims to resolve in the context of considering a stay pending appeal. The only relevant delay was the delay pending disposition of the appeal, a much shorter time period.

The majority held that the appeal had been expedited and was scheduled to be argued in one month. If the appeal was unsuccessful, there would still be a timely return of the child to Bangladesh. Weighed against this relatively brief delay, the serious concerns outlined above favoured the granting of the stay pending disposition of the appeal.

DISSENT (Hourigan J.A.) – NO.

a) Serious Issues on Appeal

Hourigan J. noted that the majority did not take issue with the motion judge’s finding that this matter constituted a serious issue. Their concern was about the weight the motion judge gave to the issue. Hourigan J. noted that the majority believed the motion judge was obliged to assign some “super weight” to this branch of the test.

The majority’s analysis was contrary to established precedent and constituted a misuse of the attenuated powers available to a panel reviewing a single judge’s decision. It is impermissible for panels considering orders of a single judge to reweigh discretionary factors. In this regard, the standard of review of a single judge’s decision must be at least as robust as an appellate court’s considerations of a lower court’s discretionary decisions. The majority did not cite any authority for the proposition that the motion judge was obliged to grant additional weight to this component of the stay test. Nor did they cite a case where a review panel had overturned a single motion judge on this basis. Hourigan J. was of the view that this was an unprecedented approach to panel reviews by the Court.

b) Irreparable Harm

On the issue of irreparable harm, Hourigan J. noted that the loss of the child’s refugee claim was made after the parties made two appearances on the respondent’s motion for an order to return the child to Bangladesh and after the appellant had been ordered by two judges to file materials in support of her position. When the stay motion judge attempted to understand the nature of the claim and gauge whether it had any merit, he was told he was prohibited from knowing anything about the claim. According to counsel for the appellant, all that mattered was that this late-in-coming refugee claim had been asserted. That was sufficient to prevent a return of the child to her habitual residence. It mattered not even if the claim was made in bad faith or was frivolous.

The motion judge correctly observed that there was no evidence before Sharma J. or him that would provide a foundation to suggest that the appellant had a potentially meritorious refugee claim. Given the lack of evidence, the appellant did not discharge her onus of proving irreparable harm and the motion judge made no error in that regard.

c) Balance of Convenience

Hourigan J. noted that the primary criticism by the majority of the motion judge’s balance of convenience analysis was his comment that the refugee claim could take months or years to complete. In his opinion, this criticism was unfounded and extraordinary. What the motion judge did – and what he was supposed to do – was take a step back and consider holistically the merits of the litigation to determine what the justice of the case required. The motion judge’s conclusion on this issue was amply supported on the record. If the child stayed in Canada, she would continue to be cut off from her siblings and her father. The mother’s unilateral conduct in reducing or eliminating the father’s role in the child’s life was inconsistent with the child’s best interests. There would also be economic stability if she returned to Bangladesh. On the other hand, the primary benefit of staying in Canada with her mother in a shelter was that the child will not lose her refugee claim. Hourigan J. reiterated that nothing was known about that claim, and according to the appellant, the Court was prohibited from knowing about it.

d) Panel review of a single judge motion

Hourigan J. expressed concern that the majority’s approach undermined the high threshold required to overturn a motion judge’s discretionary decision, warning that it could encourage the tactical misuse of panel reviews for judge-shopping purposes. He suggested that if deference to single judge decisions is to be disregarded, it might be more appropriate to eliminate single judge motions entirely in favor of direct panel reviews.

Rathee v Rathee, 2024 ONCA 912

[MacPherson, Roberts and Wilson JJ.A.]

Counsel:

I. Z. Dembo, C. Palmer and B. Berman, for the appellant

L. Wolfson, for the respondent

facts:

The parties were married for seven years. There is one child of the marriage who was five years old when her parents separated. After the separation, the wife (the respondent) and child remained in the matrimonial home for approximately eight and a half years. Throughout these years, the husband (the appellant) provided substantial support to the wife and child. Eventually, the parties decided to place their remaining financial issues before an arbitrator. The parties attended a five-day arbitration in the spring of 2022 (the “Arbitration”). The arbitrator dealt with many issues, including prospective and retroactive spousal support, child support and equalization. On the issue of spousal support, the arbitrator ordered the husband to pay the wife a lump sum of $250,000. The wife appealed this component of the arbitration award, seeking an award of $1,000,000. The appeal judge of the Superior Court of Justice (the “appeal judge”) allowed the appeal and ordered the husband to make a lump sum payment of $1,893,603 to the wife. A core reason advanced by the appeal judge for overturning the arbitral award was that the arbitrator did not pay proper attention to, and apply, the Spousal Support Advisory Guidelines (“SSAGs”). The husband then appealed the decision of the appeal judge.

issues:

Did the appeal judge err in his application of the SSAGs?
Should the Court reinstate the arbitrator’s decision?
Should the Court substitute its own award?

holding:

Appeal allowed.

reasoning:

Yes.

The overarching problem with the appeal judge’s reasons was that he ignored the clear direction of the SSAGs that support entitlement considerations inform the proper application of the SSAGs formula. In assessing the wife’s spousal support entitlement, he ignored that the wife entered the marriage with a net worth of approximately $95,000 and left it with a net worth of over $3.5 million. He also gave no credit for the eight and a half years of rent-free occupation of the jointly owned matrimonial home that the husband provided the wife post-separation but before the parties resorted to arbitration and, ultimately, the courts. The Court found that the appeal judge did not consider various relevant factors, and instead described the husband’s contributions as “zero payment of spousal support”. The Court found that this was a fundamental error that affected his entire analysis and accordingly allowed the appeal and set aside the appeal judge’s decision.

The Court explained that the normal result in a case where the Court allows an appeal and sets aside a judicial decision that overturns an arbitrator’s award is reinstatement of the arbitrator’s decision. That is the result that the appellant husband sought in this case, namely, an order reinstating the arbitrator’s $250,000 spousal support order in favour of the wife. However, the Court was not prepared to accept this submission and result as, in its view, there was a fundamental error in the arbitrator’s reasoning which must lead to a different final result.

The Court explained that by arriving at the figure of $250,000, the arbitrator neither applied, nor explained his departure from, the SSAGs. For a seven-year marriage, the SSAGs suggest a spousal support range of 3.5-13 years. Here, the arbitrator stated at para. 120 of his decision that after eight and a half years, the wife’s spousal support entitlement was “at or near the end”. This duration of approximately eight and a half years fell within the range recommended in the SSAGs. However, the amount of $250,000 bore no relation to the recommended amount in the SSAGs. Under the SSAGs, above the $350,000 income “ceiling”, an additional formula range is created: appropriate income inputs range anywhere from $350,000 to the full income amount. Even at the very bottom end of this range, the husband’s spousal support obligation was $114,000 per year. Over the eight and a half years prior to arbitration, the husband should have paid a minimum of $969,000 in pre-tax spousal support. The arbitrator found at para. 129 that the husband’s direct payments to the wife did not extend beyond his child support obligations. He did credit the husband, however, with fulfilling his spousal support obligation to a certain extent by “maintaining the financial status quo”: para. 150. However, in the Court’s view, this non‑monetized benefit of living rent-free in the matrimonial home was minimal compared to the range of spousal support recommended in the SSAGs. Thus, the Court found that the spousal support award of $250,000 departed significantly, and without explanation, from the range recommended in the SSAGs.

Furthermore, while the arbitrator found that the wife could have brought her claim sooner, the Court found that the arbitrator also effectively found that the husband had notice of his spousal support obligation from the start. Thus, the Court found that on his own findings, the arbitrator should have awarded the wife at least five years of retroactive support. In the end, the Court held that nothing in the arbitrator’s reasons explained the chasm between the amount actually paid by the husband towards support and this baseline obligation under the SSAGs. For this additional reason, the arbitral decision could not stand.

Yes.

Having found reversible errors in both the appeal judge’s and arbitrator’s approaches to spousal support, the parties asked that the Court substitute its own award. The Court found that the arbitrator’s findings of fact remained intact. The wife was entitled to spousal support on both compensatory and non-compensatory grounds. The compensatory entitlement was significant as the wife was the primary caregiver for the young child both during the marriage and after. While both parties entered the marriage with a high level of education, the wife left the workforce to manage the household and care for the child. There is far less of a non-compensatory basis for spousal support in this case. By the time of arbitration, the wife was making a good salary as a pharmaceutical representative. She also left the marriage with assets worth $2,400,000. Assets acquired during marriage and/or as a result of equalization properly affect entitlement and the appropriate choice of income input above $350,000.

The Court thus selected an income input for the husband of $600,000, which is above the SSAGs “ceiling” of $350,000, but well below his total average income of $1,253,000 as found by the arbitrator. Where child support is awarded on very high payor income and goes well beyond a young child’s needs, it is appropriate to consider the practical benefit to the recipient spouse. This effect was amplified here where the wife was able to remain in the jointly owned matrimonial home for eight and a half years while the husband derived no benefit from his half of that asset. He also did not deny the wife any additional payments she requested over this time. The Court calculated that, using a payor income input of $600,000, this would yield an annual mid-point spousal support award of $193,968 per year. The Court granted this award for five years retroactively, amounting to a total pre-tax award of $969,840. Treating this as a lump-sum award that will be neither tax-deductible for the husband nor taxable for the wife, the Court reduced this amount by 30% to $678,888. Accordingly, the Court awarded the wife a lump-sum after-tax amount of $678,888 in spousal support.

In conclusion, the appeal was allowed, the appeal judge’s decision was set aside in its entirety and the arbitrator’s award was reinstated except for the amount of spousal support, which was increased from $250,000 to $678,888. Furthermore, on balance the Court found the wife to be the more successful party and therefore it set aside the arbitrator’s costs award and instead awarded $100,000 all-inclusive to the wife. The Court allowed both parties three weeks from the release of the decision to submit written cost submissions on the cost of the appeal.

Dufault v Ignace (Township), 2024 ONCA 915

[Nordheimer, Copeland and Madsen JJ.A.]

Counsel:

J. Lester and J. Kirk, for the appellant

J. Pinkus and L. Samfiru, for the respondent

facts:

Both parties agreed that the case was appropriate for summary judgment. The primary issue on the summary judgment motion was whether the termination clauses in the employment contract complied with the minimum standards provided in the Employment Standards Act, 2000, SO 2000, c. 41 (the “ESA”).

The respondent argued that the “for cause” and “without cause” termination clauses in the employment contract were illegal and unenforceable, as they contracted out of the minimum standards provided for in the ESA. The motion judge agreed and found that both the “for cause” and “without clause” termination clauses were unenforceable.

The appellant appealed on two grounds. First, the appellant renewed the argument that both termination clauses were consistent with the minimum standard set by the ESA. Second, the appellant argued that in the event the court concluded that the “for cause” clause was void but the “without cause” termination clause was not, the “for cause” termination clause alone should be severed. To successfully make this argument, the appellant required the Court to reconsider its prior decision in Waksdale v. Swegon North America Inc. In Waksdale, the Court held that the termination provisions in an employment contract must be read as a whole, with the result that illegality in one termination provision for failing to meet ESA minimum standards invalidated all of the termination provisions in the contract.

issues:

Did the motion judge err in finding that both the “for cause” and “without cause” termination clauses were illegal and unenforceable because they contracted out of the minimum standards provided for under the ESA?
Could the Court reconsider the Waksdale decision?

holding:

Appeal dismissed.

reasoning:

The motion judge correctly determined that the “with cause” and “without cause” termination clauses were both unenforceable and illegal as they contracted out of the minimum standards provided for under the ESA. The Court’s decision turned on one aspect of the “for cause” termination clause. The Court agreed with the motion judge that the employment contract defined “cause” more broadly than the narrow exception within the ESA which allowed for termination for “wilful misconduct.” Under the employment contract, the language in the termination agreement defined cause as including where “the failure of the Employee to perform the services hereinbefore specified” and included the language “shall include but is not limited to.” The Court considered this language to broaden the scope of cause well beyond the narrow exception provided for in the ESA and rejected the appellant’s first ground of appeal.

The Court found that as a three-judge panel, it was precluded from reconsidering the holding in Waksdale. The appellant had previously requested a five-judge panel, but this request was denied.

In Waksdale, the Court held that the termination provisions in an employment contract must be read as a whole and if one termination provision violated the ESA minimum standards, all termination provisions in the contract were invalid. Given the conclusion that the “for cause” termination clause of the employment contract was unenforceable, pursuant to Waksdale, the Court affirmed both termination clauses to be unenforceable. The Court also affirmed that the motion judge was correct in finding that the respondent was entitled to damages based on the end date of the fixed-term employment contract.

Arcamm Electrical Services Ltd. v Avison Young Real Estate Management Services LP, 2024 ONCA 925

[Simmons, Gillese and Coroza JJ.A.]

Counsel:

J. Kaufman and B. Adams, for the appellant

M. Mazzuca and B. Masters, for the respondent

facts:

This appeal arose from a successful motion for summary judgment brought by the Respondent, Arcamm Electrical Services Ltd. (“Arcamm”).

Arcamm is an experienced electrical contractor in the residential and commercial sector operating principally in southern Ontario. 4342 Queen St. Niagara Holdings Inc. (“Queen”) owns a commercial property at 4342 Queen Street in Niagara Falls, Ontario (the “Property”). The Property houses federal government tenants who require power 24 hours a day, seven days a week. Avison Young Real Estate Management Services LP (“Avison”) is a commercial property manager who managed the Property for Queen pursuant to a services agreement between it and Queen.

On June 8, 2021, a sudden electrical failure involving the Property’s high voltage electrical system caused a complete power outage (the “Incident”). Avison hired Arcamm to restore power to the Property on an emergency basis. Arcamm acted quickly and restored power to the Property.

Based on invoices that Arcamm provided to Queen, Queen paid Arcamm approximately $700,000 for its initial services. Queen submitted proofs of loss to its insurer, Aviva Insurance Company of Canada (“Aviva”), and Aviva provided Queen with the funds to pay those invoices. However, Aviva ceased providing payment to Queen when it received reports calling into question liability for (1) the Incident and (2) the damages associated with the allegedly improper storage of de-energized Original Transformers which caused them to be irreparably damaged. Queen then refused to pay Arcamm’s invoices.

Arcamm sued for, among other things, its unpaid invoices. (the “Arcamm Action”). Arcamm secured its claim by registering a construction lien against title to the Property. In addition to the Arcamm Action, two other actions were commenced (the “Related Actions”).

First, on June 29, 2022, Queen sued Aviva for a declaration that, under its insurance policy with Aviva, it was entitled to payment from Aviva for all amounts for which it may be found liable as a result of the damage to the electrical equipment on the Property arising from the Incident (the “Queen Action”).

Second, on July 29, 2022, Aviva issued a statement of claim (in Queen’s name) against Arcamm and others for $2.5 million, asserting that one or more of the named defendants caused the original power outage and the damage to the Original Transformers while they were de-energized (the “Subrogated Claim”).

In June 2022, Arcamm brought its motion for summary judgment on all issues raised in the Arcamm Action (the “Motion”). Queen opposed the Motion on two grounds. It submitted that: (1) Arcamm had caused, or contributed to, some of the contract damages for which it was claiming (the “Contributory Fault Defence”) which raised genuine issues for trial; and (2) granting the Motion would risk inconsistent and contradictory findings in another action arising from the Incident involving the same parties and others.

Avison also brought a summary judgment motion as against Queen. Both motions were returnable on January 12, 2023. Ultimately, however, the hearing of the two summary judgment motions proceeded separately. The motion judge rejected both submissions by Queen. By judgment dated February 17, 2023, she granted the Motion and ordered, among other things, that Queen pay Arcamm almost $1 million for its unpaid invoices (the “Judgment”). Queen appealed.

issues:

Did the motion judge err:

by not allowing Arcamm’s alleged contributory fault to be raised as a defence and by not making proper determinations in that regard;
in failing to find there was a genuine issue for trial;
in finding there was no risk of inconsistent findings with the Subrogated Claim or other grounds that warranted procedural relief under r. 6.01 of the Rules;
in stating that “the evidence put forth by Queen falls short of establishing liability on the part of Arcamm” when no determination of that issue was made; and
in misapprehending and mischaracterizing the Arcamm Action as an insurance dispute, and making a palpable and overriding error in so doing?

holding:

Appeal allowed.

reasoning:

and 2. Yes.

The Court addressed the first two issues together because they challenged the motion judge’s finding that there was no genuine issue requiring a trial.

The Court found that Queen raised a genuine issue, namely, whether the damages Arcamm claimed in its Action were caused, or contributed to, by Arcamm’s conduct. The Court held that the motion judge erred both by failing to address the issue of contributory fault and by failing to determine whether that issue could be fairly and justly decided without a trial.

According to the Court, the legal framework governing summary judgment motions is set out in Hryniak v. Mauldin, which outlines that such motions must be granted when there is no genuine issue requiring a trial. According to Hryniak, there is no genuine issue requiring a trial when the motion judge can reach a “fair and just determination on the merits of the motion for summary judgment” and this will be the case when the motion judge is able to make the necessary findings of fact and apply the law to the facts, and the motion process is “a proportionate, more expeditious and less expensive means to achieve a just result.”

The Court held that the motion judge erred in law by failing to make determinations regarding whether the Contributory Fault Defence raised a triable issue and whether she could resolve the issue in a fair and just manner or whether a trial of the issue was necessary. The Court noted that, according to Hryniak, the motion judge could not grant summary judgment unless she was confident she could find the necessary facts and apply the relevant legal principles to resolve the dispute fairly and justly and to do that she had to address the Contributory Fault Defence, including the evidence adduced on that matter.

The Court rejected Arcamm’s submission that Queen could raise the Contributory Fault Defence only by way of counterclaim as against Arcamm or by seeking set-off for any amounts due to Arcamm’s alleged negligence and/or poor workmanship. The Court understood this submission to rest on the assumption that contributory fault cannot be raised as a defence to a claim in contract. The Court cited various cases that have applied the principle that damages in contract can be apportioned based on the degree of fault of the plaintiff and defendant. Thus, Queen was entitled to defend the Arcamm Action on the basis of contributory fault, and to seek to have the contractual damages Arcamm claimed reduced to recognize Arcamm’s alleged conduct in increasing those damages.

Further, the Court found that Arcamm and Queen adduced competing and contradictory affidavit evidence about liability for the events that led to the contractual damages in dispute. According to the Court, fact finding on that matter requires credibility and reliability determinations based on evidence from witnesses, non-parties, and experts and that type of fact finding could not be done on the record before the motion judge.

Yes.

The Court held that the motion judge erred in failing to recognize that granting the Motion would lead to a risk of inconsistent findings in the Subrogated Claim.

The Court noted that the Subrogated Claim will require a determination of, among other things: what caused the Original Transformers to fail; whether Arcamm contributed to those failures, incurred costs as a result, and is seeking to recover such costs in its claim against Queen; and, if so, how damages are to be apportioned. The Court found that, on the record, there can be no dispute that the Arcamm Action and the Subrogated Claim have questions of law and fact in common arising from the Incident and the services that Arcamm provided as a result thereof. The Court found that, the pleadings in the two actions show that the facts, issues, and damages associated with Acamm’s alleged contributory fault are inextricably intertwined and it was also clear that there will be significant overlap of evidence and witnesses to determine both liability and damages in the two actions.

The Court found that, despite the motion judge’s statement that she was not deciding Arcamm’s liability for the damaged Original Transformers, leaving that matter to be decided in the Subrogated Claim, she could not grant summary judgment unless she found Queen liable for the services for which Arcamm claimed in its invoices (the “Finding”). Thus, the risk of inconsistent findings in the Subrogated Claim with the Finding made on the Motion is readily apparent. The Court held that in the circumstances, the motion judge had to consider that risk when deciding the Motion, which meant the motion judge could not be confident that Arcamm was entitled to full payment of its claims. It also meant that the summary judgment process could not provide the motion judge with the evidence she needed for a fair and just adjudication of the dispute between Arcamm and Queen.

The Court rejected Queen’s first submission that it “would have been just for the motion judge to consider r. 6.01(1) and s. 106 of the Courts of Justice Act” and stay the Motion pending the determination of fault in the Subrogated Claim. The Court held that as Queen did not bring a r. 6.01 motion in the court below, the motion judge can scarcely be faulted for failing to consider that matter.

and 5. Yes.

The matters raised on issues 4 and 5 were addressed in the Court’s analysis of issues 1 through 3. The Court reiterated that the motion judge erred in law by deciding the Motion without addressing the Contributory Fault Defence and the evidence relevant to it and, in light of the conflicting evidence on the issue of contributory fault, there was a genuine issue for trial.

The Court concluded that because the motion judge failed to properly consider the Contributory Fault Defence, nothing in the Reasons shall be taken as findings by the motion judge on that matter.

Teneycke v McVety, 2024 ONCA 927]

[Zarnett, Coroza and Favreau JJ.A.]

Counsel:

L. Honickman and L. Brown, for the appellants

S. Hutchison and D. Postel, for the respondents

facts:

The respondents, KT and Rubicon Strategy Inc. (“Rubicon”) brought an action in defamation against the appellants, CM and Canada Christian College and School of Graduate Theological Studies (the “College”). The College is an Evangelical Christian Bible College of which CM is the president. CM is also an evangelical Christian leader and political activist. KT is the co-founder and CEO of Rubicon and worked as Premier Doug Ford’s campaign manager for the 2018 and 2022 elections. Rubicon, which was founded around 2019, is a consulting firm that provides advice on various matters, including government relations.

The respondents’ claim against the appellants is based on various public statements CM made impugning KT and Rubicon. The statements fall into two categories. First, CM stated that KT improperly used his influence over Premier Ford to implement vaccine passports for the benefit of Rubicon’s pharmaceutical clients, and ultimately for Rubicon’s and KT’s financial benefit. Second, CM has claimed that KT has an anti-Christian bias and has tried to keep Christians out of the Progressive Conservative Party. The respondents’ statement of claim refers to two specific occasions on which CM made statements of this nature. First, in a webpage made by the appellants and then, the statements made by CM at a videotaped press conference in October 2021. The statement of claim further alleges that CM’s statements impugning KT and Rubicon were motivated by malice “because KT has worked with various Ontario politicians that are associated with the same Ontario government which denied the College’s request to expand into a university.”

The appellants brought an anti-SLAPP motion to dismiss the defamation action. The motion judge dismissed the motion finding that: there was substantial merit to the action; there was reason to believe the appellants did not have viable defences to the action; and, given the harm suffered by the respondents, the public interest in allowing the action to proceed outweighed the public interest in allowing the appellants to continue making the impugned statements. The respondents were also awarded costs of $50,000.

issues:

Did the motion judge err in:

relying on words that were not specifically pleaded in the statement of claim in his analysis of the merits of the claim?
failing to identify the “sting” of CM’s allegedly defamatory statements?
making a finding that malice could defeat the appellants’ proposed defences of fair comment and responsible communication?
the balancing portion of the anti-SLAPP test because he overvalued the harm suffered by the respondents and failed to consider the value of the appellants’ speech?
Should the appellants be granted leave to appeal the motion judge’s costs order in any event of the outcome of the appeal?

holding:

Appeal dismissed.

reasoning:

The Court disagreed with the appellants’ contention that it was improper for the motion judge in his analysis of the merits of the claim to rely on statements made by CM that were not explicitly pleaded.

The appellants based their argument on the general legal principle that claims in defamation must be pleaded with particularity and on the Court’s decision in Thatcher-Craig v. Clearview (Township). The Court noted that there is no doubt that, as a general proposition, a claim in defamation requires particulars, including particulars of the alleged defamatory statements and their defamatory meaning because this ensures that “the defendant is not left in the dark as to the case to be met”: PMC York. However, the Court found that the motion judge did not infringe this general principle by referring in his decision to statements beyond those pleaded for three reasons. First, the Court noted that the motion judge’s task was not to determine whether the respondents pleaded sufficient particulars, but rather whether the claim should be dismissed or allowed to proceed based on the test set out in s. 137.1 of the Courts of Justice Act. According to the Court, in that context, the motion judge was permitted to consider evidence for the purpose of determining whether there are grounds to believe that the claim had substantial merit.

Second, the statements made by CM that the motion judge referred to beyond those specifically pleaded were substantially the same as those already pleaded. The Court clarified that unlike in Thatcher-Craig, the claim was not pleaded with a lack of specificity such that the motion judge would have had to read in particulars; rather, the motion judge simply referred to additional occasions when CM essentially repeated the statements already pleaded with specificity. Finally, the Court noted that while these additional occasions were not explicitly pleaded, the motion judge was entitled to rely on them as indicia of malice. The Court reiterated that proof of malice is not limited to the impugned statements and that conduct pre- and post-dating the publication of defamatory statements can serve as evidence that the defendant was motivated by malice at the time of publication.

The Court disagreed with the appellants’ argument that the motion judge failed to properly identify the “sting” of the comments when he considered the defence of justification. The Court noted that, as established in 2110120 Ontario Inc. v. Buttar, to succeed on a defence of justification, a defendant to a defamation action “must establish the substantial truth of the ‘sting’, or main thrust, of the defamatory words”. Further, even if the published words contain accurate facts, the defence of justification will fail if the “sting” of the defamation is untrue.

The appellants suggested that the “sting” of CM’s statements was that KT was in a conflict of interest because of his work for Rubicon and as campaign manager for Premier Ford and that the truth of the sting was self-evident. The Court noted that while the motion judge did not explicitly identify the sting of CM’s statements, he referred to what was clearly the sting. The Court found that, other than pointing to the fact that KT’s roles at Rubicon and in managing the Premier’s election campaign in 2022 could have given rise to a conflict of interest, the appellants presented no evidence that KT or Rubicon acted illegally or that they profited from unlawfully lobbying the government to implement vaccine passports. Thus, there was no error in motion judge’s conclusion that there were grounds to believe that the defence of truth or justification lacked substantial merit.

The Court found no error in the motion judge’s finding that malice may defeat the appellants’ defences of fair comment or responsible communication.

The appellants argued that the motion judge failed to consider whether malice was the “dominant” purpose for their statements and that this was a requirement when considering whether the defence of fair comment can be defeated by a finding of malice. The Court did not see this as an error and emphasized that absent a legal error, the Court owed deference to the motion judge’s finding that there were grounds to believe that the statements may have been actuated by malice such as to defeat the defences of fair comment or responsible communication. The Court found that the motion judge correctly stated and applied the test for malice. A finding that malice was the dominant purpose for making the impugned statements is only required to defeat the defence of fair comment if the defendant puts in play their subjective honest belief in the truth of the statements to establish the defence. Where the defendant relies on objective honest belief to make out fair comment, this leaves open the possibility that the defendant made the impugned statement knowing it was false, or with reckless indifference and either of these would be sufficient to establish malice without having to show this was the defendant’s dominant purpose. While the motion judge may not have expressly stated that CM’s dominant purpose was to harm the respondents, it was implicit in his reasoning on the issue of malice that this was his conclusion based on the record.

Yes.

The Court agreed with the appellants that the motion judge failed to conduct the analysis mandated at the last stage of the test under s. 137.1 of the CJA. However, the Court found that the proper analysis, conducted afresh, led to the same outcome.

Section 137.1(4)(b) of the CJA required the respondents to satisfy the motion judge that, due to the harm they have suffered as a result of the appellants’ expressions, the public interest in allowing the action to continue outweighed the action’s “deleterious effects on expression and public participation”. Referring to Justice Côté in Pointes, the Court reiterated that this weighing exercise is the “crux or core” of the analysis under s. 137.1. The Court noted that accordingly, s. 137.1(4)(b) requires: a) consideration of the harm suffered, b) consideration of the public interest in protecting the expression in issue and c) a weighing of these interests, having regard to what is really going on in a particular case. The Court agreed with the appellants that the motion judge failed to engage in any meaningful balancing and failed to consider the public interest in protecting the expression and public participation. Conducting the analysis afresh, the Court noted that the first part of the balancing analysis is to assess the public interest in “allowing an aggrieved party who has established a prima facie case that its legal rights have been infringed to vindicate those rights.” The Court found that the motion judge erred by failing to consider the seriousness of the harm. The Court held that even where damages are presumed, this is a necessary component of the weighing exercise because, ultimately, the seriousness of the harm must be weighed against the public interest in protecting the defendant’s expression. The Court stated that when reputational harm is at issue, it is not necessary for the respondents on an anti-SLAPP motion to provide evidence quantifying the harm, but evidence of actual harm will serve to amplify its seriousness in the eyes of the court.

The Court denied the appellant’s motion for leave to appeal the motion judge’s costs order. The Court found that the motion judge’s finding that the expressions in the case may have been motivated by malice provided support for departing from the presumption that no costs are to be awarded where the court dismisses an anti-SLAPP motion.

Saxberg v Seargeant Picard Incorporated, 2024 ONCA 931]

[Brown, Huscroft and Miller JJ.A.]

Counsel:

S. Ross and M. Rodrigues, for the appellant

R.J. Kennaley and R. Prestayko, for the respondents

facts:

The appellant, Seargeant Picard Incorporated (“SPI”), built a luxury cottage in Northern Ontario for the respondents, the S’s. Beginning in August 2011, the S’s complained about leaks in and around some roof and chimney areas. In 2013, SPI performed some repair work. When the S’s hired a different contractor in 2015 to perform further work. The S’s sued SPI for breach of the construction contract, seeking damages of approximately $750,000. SPI then moved for summary judgment to dismiss the action on the basis that it was statute-barred, however, the motion judge dismissed SPI’s summary judgment motion. Based on the agreement of the parties, the motion judge went further and granted a “boomerang” order that stated “the Plaintiffs’ action has been commenced within the applicable limitation period and is not statute-barred by s. 4 of the Limitations Act.” SPI appealed this and sought to set aside the motion judge’s order.

issues:

Did the motion judge err in his discoverability analysis?
Did the motion judge err in granting a “boomerang” order?

holding:

Appeal dismissed.

reasoning:

Failure to Advert to the Applicable Test

First, the Court rejected the appellant’s argument that the motion judge failed to advert to or apply the governing standard for discoverability: a plausible inference of liability.

Failure to Recognize the Nature of the Dispute

Second, the Court rejected the appellant’s contention that the motion judge erred by failing to examine the discoverability issue in the context of a breach of contract claim. The Court found that the reasoning provided by the motion judge indicated that he clearly understood the respondents were advancing a breach of contract claim. Further, the Court determined that the motion judge’s distinction between “repairs” and “upgrades” in the context of the work performed under the contract improperly deflected him from conducting a proper discoverability analysis. The motion judge correctly determined when the respondents, as claimants, first knew or ought to have known that the injury, loss or damage had occurred and was caused by SPI.

Erroneous Causation Analysis

The Court also rejected the appellants’ argument that the motion judge erred in engaging in a “determinative causation analysis”. Causation is a critical element of the discoverability analysis, and the test for discoverability addresses whether the injured party knew that the injury, loss or damage was caused or contributed to by the conduct of the other party.

Error in the Limitations Act analysis

The Court further rejected the appellants’ contention that the respondents should have known about the omission of the chimney saddle. The motion judge had concluded that SPI’s assurances about the chimney saddle not being required led the S’s to reasonably believe that legal action was unnecessary until they discovered further damage in 2015. The judge considered various pieces of evidence, including reports from PBK and interactions between the parties.

The motion judge determined that the chimney saddle issue was viewed as an upgrade rather than a necessary repair under the Ontario Building Code, and that SPI’s assurances influenced the S’s decision to delay legal action. The Court agreed with this assessment, emphasizing the fact-based nature of the discoverability analysis and noting that the motion judge appropriately applied principles from previous case law, specifically Presley v. Van Dusen, in his decision.

The Court disagreed with SPI’s argument that the motion judge erred by not assessing whether further steps were needed before granting the boomerang summary judgment. The Court found that the motion judge had appropriately canvassed the issue with the parties, and SPI had agreed to the order if their motion was dismissed. The judge made findings based on the evidence and explained his reasoning thoroughly.

The Court highlighted the practical implications, stating that accepting SPI’s new position would sanction further delay in an already protracted case. The appeal process had already added significant time to the case, and allowing SPI to change its stance would only extend the litigation unnecessarily. The court emphasized that such tactics should no longer be acceptable and upheld the motion judge’s decision.

Giann v Giannopoulos, 2024 ONCA 928

Zarnett, Coroza and Favreau JJ.A.

Counsel:

M. Yach and P. Harris, for the appellants

B. D. Arkin and C. Doroszkiewicz, for the respondent N. G.

A. Procope, for the respondent P. P.

S. Chahal, for the respondent D. S.

K. Charlebois, for the respondent Office of the Children’s Lawyer

facts:

The deceased died leaving four children. At the time of his death, he had two assets of substantial value, a house and his dry-cleaning business and premises on Danforth Avenue in Toronto (the “Danforth Property”). In 2021 the deceased executed a new will (the “2021 will”), replacing a previous will that he made in 2016 (the “2016 will”). The 2016 will provided that both assets were to be divided equally amongst the four children. However, in the 2021 will the deceased left his house to be divided equally among his three children, and the children of the fourth child. However, he left the business assets all to one child “NG”. Furthermore, the deceased also named a family friend, “Y” as an alternate beneficiary of his business assets if NG did not survive his death. In April 2021, the deceased executed a transfer of the Danforth Property from his name alone to both him and NG jointly with a right of survivorship.

Two of the children of the deceased (the “Appellants”) applied for a declaration that their father lacked capacity or was unduly influenced by NG and Y (the “Respondents”), both during the period that the deceased made the 2021 will and for certain inter vivos transfers of property. The Appellants sought to have the deceased’s 2016 will recognized as his last valid will, and they then brought a motion for directions to permit them to access the deceased financial records, his lawyers’ files, and his medical records under r. 75.06 of the Rules of Civil Procedure. The Appellants, as the parties disputing the validity of the 2021 will, had the burden of adducing evidence that called into question the validity of the will. Ultimately, the application judge found that the Appellants had not satisfied their evidentiary burden in demonstrating that their father’s capacity was at issue or that his decision-making may have been unduly influenced during the relevant time. Thus, the application judge dismissed the motion and application for directions.

issues:

Did the application judge make palpable and overriding errors in his capacity findings?
Did the application judge make palpable and overriding errors in his undue influence findings?
Was the application judge uneven in his treatment of the evidence?
Were the application judge’s reasons for dismissing the challenge to the Danforth Property transfer sufficient?

holding:

Appeal dismissed.

reasoning:

First, the Court noted that on a r. 75.06 motion, the application judge’s assessment of the evidence and factual findings are owed considerable appellate deference, absent an error in principle. The Court explained that to succeed, a moving party under r. 75.06 must adduce, or point to, some evidence which, if accepted, would call into question the validity of the testamentary instrument that is being propounded. The Court found that the application judge recognized his role in analyzing the evidence in this “preliminary vetting process”. He explained that he was not required to assess the truth of the evidence, rather, he was only to assess whether the evidence, if accepted, would support the claim advanced. The Court found that the application judge carefully reviewed and engaged in a limited weighing of the parties’ evidence.

The Appellants argued that the application judge incorrectly found that there was no evidence that the deceased lacked capacity when he executed the 2021 will. The Court was not persuaded by the Appellant’s submissions. The application judge found that the record did not support a “downward spiral of cognition”; rather, he found there were two discrete episodes of ill health. All the parties agreed that after the second episode of ill health, the deceased’s capacity was in serious question. However, the application judge determined that the two discrete events did not bear on his capacity at the relevant time. The medical records from January 2021, just a few months before the execution of the 2021 will, indicated that his mental state had improved significantly and that he was “attentive” with “no episodes of confusion”. The Court found no basis to interfere with the application judge’s conclusion that there was no evidence to demonstrate that the deceased lacked capacity at the time he executed his 2021 will. The application judge found that the evidence adduced by the Appellants was “cherry-picked” to falsely portray chronic incapacity. The Court found that it was open for him to reach this conclusion on the record before him.

The Appellants also argued that the application judge erred in his consideration of the evidence relating to the allegation of undue influence. They submitted that the deceased was isolated and dependent on the Respondents, bereaved by the loss of his wife, and embroiled in family conflict regarding debts. They pointed to the fact that the will benefitted the Respondents exclusively, and that the Respondents led no evidence respecting its execution. The Court did not accept these submissions. The application judge found that the Appellants had presented nothing more than “bald assertions of wrongdoing”, and the Court saw no basis to interfere with the application judge’s findings. Furthermore, to the extent that the Appellants did adduce supporting evidence, the application judge found they were answered fully and completely by the Respondents. The Appellants did not cross-examine or challenge the Respondents’ evidence.

The Appellants argued that the application judge unfairly allowed criticisms of the Appellants’ motion counsel to impact his assessment of the Appellants’ credibility that resulted in uneven scrutiny being applied to their evidence. The Court saw no merit to this argument. The application judge looked closely at the allegations made by the Appellants against the Respondents and concluded that they were not supported by the facts presented. The Court found that it was open to the application judge to accept one party’s evidence and reject the other party’s evidence. The Court found that contrary to the Appellants’ submission, the application judge did not allow his criticism of the “lawyer’s spin” in the presentation of the Appellants’ case to cloud his credibility analysis and assessment of the evidence. He focused his analysis on the actual evidence sworn to and concluded that “nothing in the actual facts is at all indicative of any wrongdoing.”

Yes.

The Appellants also argued that the application judge’s reasons did not permit meaningful appellate review of the dismissal of the challenge to the Danforth Property transfer. The Court stated that the overarching question was whether the reasons, read in light of the parties’ positions and the record, functionally permitted meaningful appellate review. In the Court’s view, the reasons were sufficient, and it agreed with the Respondents that the validity of the 2021 will and the validity of the Danforth Property transfer were one and the same issue. The Danforth Property transfer was executed at about the same time as the 2021 will and was part of the deceased’s estate plan. The application judge did not need to conduct a separate analysis.

Tzouanakis v Tzouanakis, 2024 ONCA 929

[Brown, Huscroft and Miller JJ.A.]

Counsel:

J. Vale and D. Fogel, for the appellants

A.I. Jiwa, for the respondents

Keywords: Real Property, Estates and Trusts, Resulting Trusts

facts:

This appeal arose from a dispute between a mother (the respondent), and her daughter and son-in-law (the appellants) over their respective interests in two residential properties. The trial judge found that the Strathmore Property was beneficially owned by the respondent by way of a resulting trust. With respect to the Goodison Property, the trial judge found that the respondent held a 35.6% interest.

issues:

Did the trial judge err in misapprehending the evidence about the parties’ intentions at the time of the purchase of the Strathmore Property?

holding:

Appeal dismissed.

reasoning:

No. The appellants accepted that there was a presumption that the parents did not intend to make a gift of the Strathmore Property, but argued that the trial judge erred by not finding that the appellants had defeated the presumption. The appellants argued that the daughters had provided valuable consideration in the form of “sweat equity”, paying income tax on the rent, and in supplying the mortgage funds. The Court rejected this argument, holding that trial judge was open to find that these contributions were minimal or, in the case of the mortgage proceeds, no contribution at all by the daughters, and not able to displace the presumption of a resulting trust.

The appellants argued that the respondent’s evidence about the Strathmore Property and joint bank account being a “family venture” was evidence that the parents’ intention was not to take a 100% beneficial interest in the Strathmore Property, but to share it with the daughters from the beginning. The Court rejected this argument. When the respondent, whose first language is not English, appeared on cross-examination to agree with the proposition that the property was a family venture, she was clearly referring to the parents’ ultimate purpose in acquiring the property; it was part of a succession plan to provide a house for each of the daughters. It was purchased by the parents with the intention that it ultimately benefit the daughters.

The Court explained that the conclusion that the trial judge did not err with respect to the respondent’s 100% beneficial interest in the Strathmore Property disposed of a significant part of the appellant’s argument about the Goodison Property. The funds which were contributed by the respondent by remortgaging the Strathmore Property were attributable entirely to her and not to the appellants. Accordingly, the Court saw no error in the finding that the respondent contributed $198,948.71 to the purchase of the Goodison Property. However, the Court held that there was some uncertainty about what the trial judge ordered with respect to the Goodison Property.

Before the close of argument, the trial judge announced that she would give her judgment from the bench at the close of argument, with reasons to follow. The appellants argued that this gave rise to a reasonable apprehension of bias because it suggested that the trial judge had predetermined the outcome. The Court disagreed, holding that the mere fact that a trial judge expressed an expectation that she would be in a position to render judgment the next day, after hearing all submissions in a reasonably simple trial, did not suggest predetermination. However, the Court stated that giving an oral decision from the bench without even taking a brief recess after the close of submissions was ill‑considered and not best practice.

In this case the trial judge’s decision with respect to what interest the respondent was entitled to in the Goodison Property changed from her oral decision (30%), to her written endorsement (35%), and finally to a revised endorsement (35.6%).

In the result, the respondent advanced nearly $200,000 to purchase the Goodison Property, but was only paid out $134,030.11. The property was sold for $1,000,701.86, but had been subsequently encumbered with an additional mortgage, substantially reducing the equity. The trial judge found that the respondent advanced the funds as an investment rather than as a gift or loan. The Court held that it appeared that the trial judge found the terms of the investment were that the respondent was a part owner in proportion to the amount she contributed to the purchase, and would receive back the same proportion of the sale proceeds.

On appeal, the respondent requested that the judgment be varied from granting a 35.6% interest in the profits from sale to 35.6% of the sale price. The Court rejected this submission, holding that the respondent could have returned to the trial judge to seek to vary the judgment or brought a cross-appeal if it was believed that the trial judge erred otherwise. Neither path was taken, and the Court held that the matter was not properly before the Court.

SHORT CIVIL DECISIONS

Girgis v Mansour, 2024 ONCA 913

[Brown, Huscroft and Miller JJ.A.]

Counsel:

J.Klugsberg, M. A. Ross, and E. Brousseau, for the appellant

S.Lawler and P. Tu, for the respondent S.M. in his Capacity as Estate Trust for the Estate of S.N.

M.M. Rodenburg, for the respondent S.M. in his Capacity as Estate Trustee of S.N.

B.L. Yellin and B. Powell for the respondent S.M., in her capacity as Estate Trustee for the Estate of S.N.M., deceased

Keywords: Wills and Estates, Interpretation, Testamentary Intention, Estates Act, R.S.O. 1990, c. E.21, s. 50(1), Rules of Civil Procedure, rr. 14.05(3)(a) and (d), 74.15(1)(d) and (i), 74.17

Ash v Ontario (Chief Medical Officer), 2024 ONCA 921

[Fairburn A.C.J.O., Trotter and Zarnett JJ.A.]

Counsel:

J.A., acting in person

V. Glaser and M. Saad, for the respondent

Keywords: Civil Procedure, Leave to Appeal, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5)

Barbiero v Pollack, 2024 ONCA 922

[Brown, Huscroft and Miller JJ.A.]

Counsel:

P.L. Roy and J.A. Dewar, for the appellant

D. Varah and D. Hooper, for the respondent

Keywords: Costs

Vaughan v Chen, 2024 ONCA 914

[Fairburn A.C.J.O., Trotter and Zarnett JJ.A.]

Counsel:

J.V., acting in person

J.Z.C., acting in person

Keywords: Civil Procedure, Appeals

Baybourdi v Starkman Barristers, 2024 ONCA 934

[George, Favreau and Gomery JJ.A.]

Counsel:

P.H. Starkman and C. Zhang, for the appellant

M.R.B., acting in person

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.

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