Court of Appeal Summaries (December 2-6)

December 10, 2024
John Polyzogopoulos

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Civil Decisions

River Green (Thunder Bay) Inc. (Re), 2024 ONCA 867

Keywords: Bankruptcy and Insolvency, Acts of Bankruptcy, Bankruptcy Orders, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ss. 42(1)(j) and (7), Medcap Real Estate Holdings Inc. (Re), 2022 ONCA 318, 2801100 Ontario Inc. v. River Green (Thunder Bay) Inc., 2021 ONSC 6710, Castle Building Centres Group Limited v. Parkes, 2024 ONSC 3705, Frank Bennett, Bennett on Bankruptcy, 23rd ed. (Toronto, LexisNexis: 2021)

SpaceBridge Inc. v. Baylin Technologies Inc., 2024 ONCA 871

Keywords: Contracts, Interpretation, Notice, Defences, Estoppel, Remedies, Relief from Forfeiture, Civil Procedure, Amending Pleadings, Applications, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 16(1)(a), Kyle v. Atwill, 2020 ONCA 476, 1100997 Ontario Inc. v. North Elgin Centre Inc., 2016 ONCA 848, Letang v. Cooper, [1965] 1 Q.B. 232 (C.A.), Przysuski v. City Optical Holdings Inc., 2014 ONSC 3686, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Ross v. T. Eaton Co., (1992), 11 O.R. (3d) 115 (C.A.), Morden & Perell, The Law of Civil Procedure in Ontario, 5th Ed. (Toronto: LexisNexis Canada, 2024)

JPM Trade Capital Inc. v. Blanchard, 2024 ONCA 876

Keywords: Contracts, Interpretation, Debtor-Creditor, Continuing Guarantees, Personal Property Security Act, R.S.O. 1990, c. P.10, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Manulife Bank of Canada v. Conlin, [1996] 3 S.C.R. 415, Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, Intercap Equity Inc. v. Bellman, 2022 ONCA 61

Jackson v. Rosenberg, 2024 ONCA 875

Keywords: Wills and Estates, Real Property, Joint Tenancies, Right of Survivorship, Land Titles Act, 2000, S.S. 2000, c. L-5.1, s. 156, Simcoff v. Simcoff, 2009 MBCA 80, Bergen v. Bergen, 2013 BCCA 492, Thorsteinson Estate v. Olson, 2016 SKCA 134, Pohl v. Midtdal, 2018 ABCA 403, Housen v. Nikolaisen, 2002 SCC 33, Andrade v. Andrade, 2016 ONCA 368, Belchevski v. Milka Dziemianko, 2014 ONSC 6353, Pecore v. Pecore, 2007 SCC 17, Csak v. Aumon (1990), 69 D.L.R. (4th) 567 (Ont. H.C.), MacIntyre v. Winter, 2021 ONCA 516, Abdollahpour v. Banifatemi, 2015 ONCA 834, Berdette v. Berdette (1991), 81 D.L.R. (4th) 194 (Ont. C.A.), Hansen Estate v. Hansen, 2012 ONCA 112, McKendry v. McKendry, 2017 BCCA 48, Herbach v. Herbach Estate, 2019 BCCA 370, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012)

Gill v. Gill, 2024 ONCA 877

Keywords: Contracts, Real Property, Remedies, Specific Performance, Civil Procedure, Costs, Offers to Settle, Rules of Civil Procedure, r. 49.10(a) to (c), Matthew Brady Self Storage Corp. v. InStorage Limited Partnership, 2014 ONCA 858, Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2019 ONCA 746, Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52, Dhatt v. Beer, 2021 ONCA 137, Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2021 ONCA 201, Maraschiello v. Shellrock Developments Ltd., 2013 ONCA 167, 0994660 B.C. Ltd. v. Vanier, 2023 BCCA 483, Lalani v. Chow, 2011 BCCA 499, Ali v. 656527 B.C. Ltd., 2004 BCCA 350, Raymond v. Anderson, 2011 SKCA 58, Chan v. Tu, 2006 BCSC 934, Kloepfer Wholesale Hardware v. Roy, [1952] 2 S.C.R. 465, Bark-Fong v. Cooper (1913), 49 S.C.R. 14, Jarbeau v. McLean, 2017 ONCA 115, Jacuzzi Can. Ltd. v. A. Mantella & Sons Ltd. (1988), 31 C.P.C. (2d) 195 (Ont. H.C.), Niagara Structural Steel (St. Catharines) Ltd. v. W.D. Laflamme Ltd. (1987), 58 O.R. (2d) 773 (C.A.), Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, 2651171 Ontario Inc. v. Brey, 2022 ONCA 205, Data General (Canada) Ltd. v. Molnar Systems Group Inc. (1991), 6 O.R. (3d) 409 (C.A.), Cimmaster Inc. v. Piccione (Manufacturing Technologies Company), 2011 ONCA 486, Mete v. Guardian Insurance Co. of Canada, 165 D.L.R. (4th) 457

Short Civil Decisions

Wong v. Aviva Insurance Company of Canada, 2024 ONCA 874

Keywords: Contracts, Insurance, Automobile, Coverage, Duty to Defend, Defences, Misrepresentation, Fraud, Hryniak v. Mauldin, 2014 SCC 7

SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2024 ONCA 873

Keywords: Costs

Perley-Robertson, Hill & McDougall LLP v. Eureka 93 Inc., 2024 ONCA 872

Keywords: Contracts, Solicitor and Client, Assessments, Civil Procedure, Enforcement, Examinations in Aid of Execution, Documentary Discovery, Contempt, Carey v. Laitken, 2015 SCC 17

Bell v. Randell, 2024 ONCA 885

Keywords: Wills and Estates, Will Challenges, Capacity, Civil Procedure, Certificates of Appointment of Estate Trustee with a Will, Objections, Rules of Civil Procedure r. 75.08

CIVIL DECISIONS

River Green (Thunder Bay) Inc. (Re), 2024 ONCA 867

[Trotter, George JJ.A. and Brown J. (ad hoc)]

Counsel:

M. J. Holervich, for the appellant J.B.

R. A. Lepere, for the respondent BNL Contracting Ltd.

facts:

River Green (Thunder Bay) Inc. (“River Green”) was adjudged a bankrupt on application of one of its creditors who is the respondent in this appeal, BNL Contracting Ltd. (“BNL”). The initial application was resisted by R.O. and J.B., who along with another individual had incorporated River Green and invested funds to start a cannabis cultivation business. The application judge granted standing to J.B., as a shareholder of Green River.

At the hearing of the application, all parties agreed that River Green had committed acts of bankruptcy within the previous six months. The application judge found that River Green could not meet its liabilities in general when they became due. However, the dispute at the hearing was focused on whether the application was brought by BNL for an improper purpose sufficient to warrant the application of s. 43(7) of the Bankruptcy and Insolvency Act (“BIA”). The appellant submitted that BNL’s principal, S.R., conspired with others to improperly obtain the assets of River Green, and that the application had been commenced solely in aid of this improper motive. The application judge found that the appellant failed to discharge his onus on the issue and refused to dismiss the application under s. 43(7) of the BIA. The appellant appealed the application judge’s s. 43(7) ruling.

issues:

Did the application judge err in failing to discharge his onus on the issue and refusing to dismiss the application under s. 43(7) of the BIA?

holding:

Appeal dismissed.

reasoning:

No. The Court found that the application judge did not err in finding that the appellant failed to discharge his onus on the issue and refused to dismiss the application under s. 43(7) of the BIA.

There were three arguments raised by the appellant. First, the appellant submitted that the application judge overlooked important evidence adduced on this issue. The evidence in question involved a meeting attended by BNL’s principal, S.R., where the so-called conspiracy was discussed. The application judge highlighted that BNL was the creditor, not S.R. The application judge also noted that the conspiracy theory was not pursued with S.R. on cross-examination. The application judge said this lessened the impact of the improper purpose argument. Accordingly, the Court found that the application judge was entitled to factor these things into account when concluding that the appellant had not met their onus under s. 43(7) of the BIA.

Second, the appellant submitted that the application judge’s rejection of the alleged conspiracy as a mere theory was contradicted by the application judge’s decision a year earlier where he found there was an air of reality, citing 2801100 Ontario Inc. v. River Green (Thunder Bay) Inc., 2021 ONSC 6710. The Court found that this was irrelevant to the proceeding because it related to River Green’s successful application to set aside default judgment in another proceeding, involving a different party, and a different alleged conspiracy.

Third, the appellant submitted that the application judge erred in making a bankruptcy order in the context of what was essentially a dispute among shareholders. The Court found that there was no error in the application judge’s approach and BNL asserted no greater right than any other creditor.

SpaceBridge Inc. v. Baylin Technologies Inc., 2024 ONCA 871

[Tulloch C.J.O., Hourigan and Miller JJ.A.]

Counsel:

S. J. Tenai and S. Dugas, for the appellants

J. Plotkin and T. Burke, for the respondents

facts:

The Appellants purchased assets from the Respondents in January 2018 through an Asset Purchase Agreement (“APA”). The APA set out a mechanism that prescribed how the parties were to make claims for indemnification from each other. The scope of indemnification was specified in provisions of the APA, which also provided for an indemnity escrow to be established by an Escrow Agreement. The Escrow Agreement set out the procedures for submitting a claim for indemnity. Section 8.4 of the APA provided that an indemnified party making a claim against an indemnifying party was to initiate the claim by way of delivery of a written notice describing the facts alleged as the basis of the claim, the sections of the APA alleged to have been violated, and the estimated dollar value of the damages claimed. Section 10.3 set out how notice was to be given for claims under the APA, and when notice was deemed effective. Notice could be given through personal delivery, registered mail, or email.

The Escrow Agreement governed the process for claim indemnification payments from the Escrow Fund. Section 4.1(c)(1) of the Escrow Agreement required that a party seeking indemnification from the Escrow Fund deliver a certificate (a “Claim Certificate”) to the Escrow Agent and the party against whom the claim was made, setting out the particulars of the claim. Section 7.9 of the Escrow Agreement set out how notice of these claims was to be given, permitting delivery by “recognized national courier” or email. It did not list registered mail as a permitted means of giving notice. A party against whom an Indemnity Claim was made had 30 days to object to the claim by delivering an Objection Certificate to the Escrow Agent. If the Objection Certificate was not delivered within 30 days of delivery of a Claim Certificate, the indemnifying party would be deemed to have accepted the correctness of the indemnification claim, and the Escrow Agent would be required to release the amount claimed.

This appeal related to an indemnity claim (the “Supplier Indemnity Claim”) in the amount of $1,826,512 (the “Indemnity Claim Amount”), to indemnify the Appellant for the Respondent having allegedly stopped or delayed full payment to suppliers prior to the close of the APA. The Claim Certificate for the Supplier Indemnity Claim was sent to the Escrow Agent and the Respondent by overnight registered mail on August 29, 2018. This form of delivery would later become an issue. No Objection Certificate was not sent within the 30 day time limit. Thus, the Appellant took the position that the Respondent was deemed to have accepted the Supplier Indemnity Claim. A few hours later the Respondent sent the finalized Objection Certificate to the Escrow Agent. However, the Appellant took the position that the Objection Certificate had not been delivered within the requisite time period and demanded payment of the Indemnity Claim Amount.

The Respondent commenced the application on December 6, 2018, seeking a return of the Indemnity Claim Amount based on relief from forfeiture of the amount released from escrow, or, in the alternative based on a declaration that they complied with the notice requirements of the Escrow Agreement. Four years later, the Respondent amended the application to raise the issue that the Claim Certificate had not been properly delivered in accordance with the procedure established in the Escrow Agreement because it was sent by registered mail, which was not a permitted method of delivery. The Appellant objected to the amendment on the basis that the amendment was statute-barred and that it would suffer prejudice.

The application judge held that the Respondent’s amendment to add a request for a new declaration did not constitute consequential relief and, applying s. 16(1)(a) of the Limitations Act, 2002, was therefore not subject to the two-year limitation period. The application judge further held that the Respondent had not made an unequivocal admission that the Claim Certificate had been validly delivered and was therefore not estopped from asserting that it had not been.

issues:

Did the application judge err by not finding that the Respondent’s amendment to the Notice of Application was statute-barred?
Did the application judge err in not finding that the Respondent was estopped from arguing that the Appellant’s delivery of the Claim Certificate was invalid?
Did the application judge err in her interpretation of the notice provision of the Escrow Agreement by finding that registered mail was an invalid form of delivery?

holding:

Appeal dismissed.

reasoning:

While the Court found that the application judge did err in the application of s. 16(1)(a) of the Limitations Act, 2002, it held that the error was harmless and did not affect the outcome. No limitation period applied to bar the Respondent’s amendment. An amendment to a pleading may be made past the applicable limitations period when the amendment does not plead a new cause of action or a new or alternative remedy. The Court found that the amendments here did neither. The original notice of application did not expressly state that since the delivery was not made in compliance with the Escrow Agreement it was therefore legally ineffective. The amended application did, and expressly sought a declaration to that end, but this does not amount to advancing a new cause of action. Furthermore, when looking at whether the facts necessary to support an amendment were initially pled, the Notice of Application had to be read with its supporting affidavits and with the evidentiary record for the Application.

The Court found no error in the application judge’s approach. The Appellant argued that the amended application effectively withdrew an admission that delivery of the Claim Certificate was valid, and that the Respondent was estopped from so doing. The application judge noted that the Respondent had asserted that the Objection Certificate made in response to the Supplier Indemnity Claim was timely. The Court was of the opinion that from this, one could infer from that statement that the Claim Certificate was validly delivered, but that would simply be an inference. To be estopped from withdrawing an admission, the admission would have to have been made directly and unambiguously. In this case, the admission would have to be inferred. Furthermore, the Court found no issue with the application judge’s finding that the Appellant had not demonstrated any detrimental reliance. The Court held that the analysis was entirely sound.

The Court held that the Appellant had not identified any reviewable error. The Escrow Agreement is not a standard form contract and was thus reviewable on a deferential standard. The application judge noted that the Escrow Agreement provided that notice “shall be given in writing and delivered by personal delivery or delivery by recognized national courier or email”. This was unlike the notice provisions of the APA, which expressly provided for delivery by registered mail. The Court held that the application judge was entitled to factor into her conclusion the fact that the two agreements called for different forms of notice.

The application judge’s reasoning as to why she concluded that the Escrow Agreement did not permit delivery by registered mail was found to be careful, detailed, comprehensive, and without error. In short, she found it significant that the Escrow Agreement specifically omitted a form of delivery that the APA included, and that this drafting difference was intentional and reflected the significance of the obligation triggered by the delivery of the Claim Certificate. She also found it significant that the Escrow Agreement, unlike the APA, did not use the language of “sufficiently given”, which has been held to indicate that a list of notice modalities is non‑exclusive. The Court found no basis to interfere.

JPM Trade Capital Inc. v. Blanchard, 2024 ONCA 876

[Pepall, Nordheimer and Zarnett JJ.A.]

Counsel:

M. Dhaliwal, for the appellant

D. Palmer and P. Ahluwalia, for the respondent

facts:

The appellant was the sole officer, director, and operating mind of TEC International Corporation (“TEC”) and of its sister corporation, Artex Environment Corporation (“Artex”). The appellant decided to sell Artex and refinance TEC. In November 2017, the respondent and TEC signed a loan agreement under which the respondent loaned TEC $150,000. Schedule A to the agreement entitled ‘Additional Loan Terms and Conditions’ described the appellant as the guarantor and included terms of a general security agreement to be given by TEC to the respondent. The appellant initialed each page of the loan agreement as well as Schedule A which described him as the guarantor. His initials were placed in a signature box for the ‘borrower’. The appellant signed the guarantee in his personal capacity, and the general security agreement on behalf of TEC which was then registered under the Personal Property Security Act.

Throughout 2018, the respondent made six more advances, each subject to a new loan agreement in terms substantially similar to the first loan agreement. By January 2019, TEC was in default. On January 31, 2019, the respondent gave notice and made demand for payment. It subsequently sued the appellant on his guarantee. The appellant took the position that his guarantee only applied to the first loan agreement. The trial judge disagreed and determined that further advances were contemplated when the first loan agreement and guarantee were signed.

issues:

Did the trial judge err in finding that the guarantee was a continuing guarantee?

holding:

Appeal dismissed.

reasoning:

No. The Court explained that in Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., the Supreme Court reminded that ascertaining the objective intention of parties to a contract is the prevailing goal of contractual interpretation and is an “inherently fact specific” exercise.

The appellant challenged the trial judge’s treatment of certain words and phrases in the guarantee and proposed alternative interpretations. The Court held that the trial judge’s interpretation was open to her and that she did not rely on a subjective review of the surrounding circumstances as alleged by the appellant. The Court explained that the first loan agreement and the guarantee were made against the backdrop of TEC’s long history of loans and the reality that until Artex was sold, TEC would need working capital. The Court held that these were circumstances that the trial judge found to be known to both parties at the time the guarantee was signed and that it was open to her to use this factual matrix to inform her determination of the mutual and objective intentions of the parties and to find that the guarantee was a continuing one.

The appellant also challenged the trial judge’s findings that (1) the original amount under the first loan agreement was readvanced under the second loan agreement and that (2) TEC acknowledged that the appellant continued to act as guarantor when the subsequent loan agreements were signed and initialed. The Court held that, on the first alleged error, the record before the trial judge on the mechanics of the advances supported her finding. On the second alleged error, the Court held that all of the subsequent loan agreements described the appellant as the guarantor and it was the appellant who signed them on behalf of TEC. This evidence served to confirm the interpretation the motion judge had given to the guarantee. The Court held that there are no “hard and fast rules” that must be satisfied before a guarantee may be interpreted as a continuing one: Intercap Equity Inc. v. Bellman.

Jackson v. Rosenberg, 2024 ONCA 875

[van Rensburg, Zarnett and George JJ.A.]

Counsel:

M. Basiri, for the appellant

G. Bawolska and M. Kaur, for the respondent

facts:

In the first transfer, J transferred title, previously held by him alone, into his name and that of the appellant, R, as joint tenants. R, the great niece of J’s late romantic partner, was not asked to, nor did she, pay anything for what she received. In the second transfer, J transferred his interest in the property to himself with the intention of severing the joint tenancy by converting it into a tenancy in common. The application judge found that the first transfer was a gift to R, but only of a right of survivorship; otherwise, she held her interest in the property in trust for J during their joint lives and had no rights exercisable during his lifetime. J remained free to encumber or sell the property if he chose to. The application judge also held J had retained the right to sever the joint tenancy, which he did by the second transfer.

The parties both brought applications which were dealt with together. R appealed on the basis that the judge erred in finding that the first transfer was limited to gifting the right of survivorship rather than a full beneficial interest with immediate rights. She argued that once gifted, the right of survivorship could not be taken away from her, even in part, and the application judge erred in giving that effect to the 2020 transfer. J argued that the entire right of survivorship ended with the severance of the joint tenancy.

issues:

Did the application judge err in determining the effect of the 2012 transfer?
Did the application judge err in determining that J retained the right to sever?
Should the application judge’s order regarding the right of survivorship continuing over a 50% interest be varied?

holding:

Appeal dismissed.

reasoning:

i) The Application Judge Was Entitled to Find on the Facts that J Intended Only to Gift a Right of Survivorship

The Court rejected R’s submission that J intended to convey legal and beneficial title to her as a joint tenant owner. The Court stated that the application judge’s findings as to J’s intention was entitled to appellate deference, and that there was ample evidence to support this finding. Furthermore, R was unable to establish the existence of an enforceable agreement on how J would dispose of his property upon his death, nor was she able to provide any evidence of capital gains tax exposure regarding his alleged intention to gift her a current beneficial interest and the right of survivorship.

ii) A Gift of the Right of Survivorship Unaccompanied by a Gift of Beneficial Rights During the Donor’s Lifetime is Recognized in Law

The Court agreed with the application judge’s conclusion that J’s intention was to give the home to R upon his death but to give her no rights in it during his lifetime. This led to the legal conclusion that there was a gift of the right of survivorship but that all other rights relating to the joint tenancy interest in R’s name were held in trust by her for J.

The first transfer to R of a joint tenancy interest was gratuitous. The entire interest transferred to her, with all its attributes, was presumed to be held in trust for J. Showing that a gift was intended rebuts the presumption of resulting trust, however, in the case of property transferred gratuitously from the owner into joint names a showing that a gift was intended only partially rebuts the presumption. The result is a gift only of the right of survivorship, not of any rights exercisable during the transferor’s lifetime. The latter rights are held in trust for the transferor. Accordingly, the application made no error in determining the effect of the first transfer.

2. No.

The Court rejected R’s submission that if the effect of the first transfer was a gift of a right of survivorship, it must follow that J could not sever the joint tenancy. The Court came to this conclusion for three reasons.

First, a joint tenancy inherently includes the ability for each joint tenant to unilaterally right sever the joint tenancy at any time, thereby ending the right of survivorship. There is no reason nor justification to distinguish between joint tenancies created for consideration and those created gratuitously.

Second, the right of survivorship is entirely contingent on there being no severance. It is not correct to adopt the view that a gifted right of survivorship precludes severance.

Third, the nature of the gift of the right of survivorship is to gift what remains once the transferor dies. As a result, it does not, on its own, prevent dealings by the donor that could reduce the right of any value. The Court agreed with the application judge’s decision to follow the reasoning in Simcoff which determined that a gift of a joint tenancy interest in land does not prevent the donor from severing the joint tenancy and putting an end to the right of survivorship.

3. Possibly.

Both parties submitted that the application judge was wrong to conclude that the right of survivorship could continue in effect as to a 50% interest in the property if a joint tenancy ceased to exist by virtue of the severance effected by the second transfer. The Court agreed. Before the second transfer, R held her interest in the joint tenancy in trust for J, and she had a right of survivorship. As the joint tenancy was severed in the second transfer, what R continued to hold was an interest in a tenancy in common in trust for J. No right of survivorship could attach to or flow from that interest. However, J did not cross-appeal seeking to set aside finding that a right of survivorship continued to exist with respect to the 50% interest held by R. Accordingly, the Court invited further written submissions on whether changes to the application judge’s formal judgments would be appropriate as a result of the erroneous holding that any right of survivorship subsisted following the second transfer.

Gill v. Gill, 2024 ONCA 877

[Rouleau, Roberts and Favreau JJ.A.]

Counsel:

C. O’Brien and H. Mills-McEwan, for the appellants

J. Collings, for the respondent

facts:

The respondent son purchased a property with financial assistance from his father and step-mother (the appellants), including a gift and a loan. The respondent took out a mortgage. The respondent subsequently ran into financial challenges because he lost his job. The respondent concluded two agreements with the appellants in January and April 2018, which provided that the appellants would move into the property and take over the property’s expenses, including the mortgage payments, and the respondent would transfer the property to the appellants once the mortgage came due for the consideration of the appellants paying out the mortgage. Both agreements stated that they were concluded in part in response to the respondent’s financial challenges.

Soon after the appellants moved into the property, the respondent moved out of the property and stopped paying rent and all costs included in the agreements. The respondent then commenced the underlying action against the appellants and did not transfer the property in accordance with the agreement. The respondent claimed the following remedies: a writ of possession for the property; a declaration that the purported agreements between the parties were of no force and effect; damages for unjust enrichment and breach of contract and damages for trespass. The appellants counterclaimed for specific performance of the property transfer, as provided for in the April agreement. At trial, the judge dismissed the respondent’s claim in its entirety, but also dismissed the appellants’ claim for specific performance.

issues:

Did the trial judge err in failing to order specific performance of the April agreement and in failing to require the transfer of the property in exchange for payment of the respondent’s mortgage?
Did the trial judge err in his assessment of the appellants’ damages?
Did the trial judge err in his assessment of the award of costs?

holding:

Appeal allowed.

reasoning:

Yes.

While the trial judge correctly referenced the governing factors to be considered when determining whether specific performance should be awarded, he erred in applying them. The trial judge erred by focusing solely on the property’s physical attributes, which he found established no uniqueness to the appellants, and should have considered the physical attributes in addition to the purchaser’s subjective interests or the circumstances of the underlying transaction. There was uncontested evidence that the property was the appellants’ home, during which they paid all expenses in performance of the parties’ bargain and made improvements to the property. Failure to consider these factors represented a palpable and overriding error.

Next, the Court found that the trial judge’s considerations of the equities in favour of specific performance was too narrow. The trial judge’s analysis was flawed because he failed to analyze the appellants’ own relationship with the property and focused instead on the appellants’ financial assistance to the respondent as the motive for purchasing the property. He failed to give effect to those findings in his consideration of the equities of the case. Specifically, he did not consider that the appellants had performed their obligations under the agreement that he found was valid and enforceable and that the respondent breached the agreement without excuse. Further, the Court found that the trial judge erred in his consideration of the issue of delay. It was the respondent, not the appellants, who failed to perform and then repudiated the agreement. The trial judge’s finding that the appellants had somehow delayed in seeking specific performance was unreasonable and not supported by the evidence.

2. Yes.

The trial judge’s reasons for his damages award addressed some, but not all, of the mortgage payments made by the respondent. As a result, the Court requested further submissions from the parties, and accepted the joint submission provided by both parties setting out their agreement respecting the adjustments for amounts paid and owing that would be required between the parties in the event that specific performance was granted.

3. Yes.

The trial judge’s costs award was primarily premised on the view that the appellants had achieved only modest success at trial. In light of the Court’s proposed disposition of the appeal, the appellants were entirely successful at trial. Accordingly, the trial judge’s award of costs was set aside, and the appellants’ costs of their action was reassessed.

Under the Court’s proposed disposition of the appeal, the appellants would have obtained a judgment as favourable as and arguably more favourable than the terms of their October 12, 2023 offer. The appellants were therefore prima facie entitled to their partial indemnity costs up to the date of their offer and their substantial indemnity costs following the date of their offer. To fulfill the objective of the rule and ensure its predictability, the prima facie costs consequences of r. 49.10 should be applied in the vast majority of cases in order to encourage early settlement and avoid trials. The Court found no reason to depart from the prima facie costs consequences of r. 49.10 in this case

SHORT CIVIL DECISIONS

Wong v. Aviva Insurance Company of Canada, 2024 ONCA 874

[MacPherson, Roberts and Wilson JJ.A.]

Counsel:

B. J. Kurpis, for the appellant

D. Ong and C. Prins, for the respondent

Keywords: Contracts, Insurance, Automobile, Coverage, Duty to Defend, Defences, Misrepresentation, Fraud, Hryniak v. Mauldin, 2014 SCC 7

SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2024 ONCA 873

[Tulloch C.J.O., Hourigan and Miller JJ.A.]

Counsel:

J. T. Curry, E. Mogil, B. Kain, B. Kolenda, E. Chesney, C. Yung, and A. Locatelli, for the appellant/respondent by way of cross-appeal

C. G. Paliare, R. Bucholz, G. Hawe, C. Fan, and J-L. Song, for the respondent/appellant by way of cross-appeal

Keywords: Costs

Perley-Robertson, Hill & McDougall LLP v. Eureka 93 Inc., 2024 ONCA 872

[MacPherson, Roberts and Wilson JJ.A.]

Counsel:

R. Hammond, for the appellants, Acenzia Inc. and G. B.

A. J.F. Lenz, for the respondent

Keywords: Contracts, Solicitor and Client, Assessments, Civil Procedure, Enforcement, Examinations in Aid of Execution, Documentary Discovery, Contempt, Carey v. Laitken, 2015 SCC 17

Bell v. Randell, 2024 ONCA 885

[Nordheimer, Copeland and Madsen JJ.A.]

Counsel:

J. C. Ireland, for the appellant

A. N. Procope, for the respondent]

Keywords: Wills and Estates, Will Challenges, Capacity, Civil Procedure, Certificates of Appointment of Estate Trustee with a Will, Objections, Rules of Civil Procedure r. 75.08

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.

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