Court of Appeal Summaries (November 4 – 8)

15 novembre 2024
John Polyzogopoulos

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1797472 Ontario v Independent Electricity System Operator involved the contractual interpretation of agreements for the purchase by IESO (an Ontario Crown corporation) of electricity generated by privately owned solar panels under the government’s “feed-in-tariff” program.

Burjoski v. Waterloo Region District School Board was an appeal from a motion judge’s refusal to dismiss a defamation claim under the Anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act. The Court agreed with the motion judge that the defamation claim had merit and reiterated that s. 137.1 of the CJA is designed merely as a screening tool to eliminate only abusive actions. It remains curious why there appears to be an automatic right of appeal from a dismissal of an Anti-SLAPP motion, whereas in the case of the dismissal of a motion for summary judgment, there is no automatic right of appeal.

In Paracha v. Naqi Construction Ltd., the respondents were found by the court below to be investors and part owners in properties for which they had advanced funds to the appellants. The Court dismissed the appeal, affirming the trial judge’s findings that the funds were advanced as investments in the properties rather than as loans to the appellants.

Other topics covered this week included several family law decisions, the dismissal of an appeal from a summary judgment ordering payment on a promissory note, enforcement of costs in a defamation action, the dismissal of a motion to review an order made in a medical malpractice action and extension of time to appeal in an estates matter.

Civil Decisions

1797472 Ontario Inc. v Independent Electricity System Operator, 2024 ONCA 808

Keywords: Contracts, Interpretation, Standard of Review, Green Energy and Green Economy Act, 2009, S.O. 2009, c. 12, Electricity Act, S.O. 1998, c. 15, Sch A, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326, EPCOR Electricity Distribution Ontario Inc. v. Municipal Electric Association Reciprocal Insurance Exchange, 2022 ONCA 514, Austin v. Bell, 2020 ONCA 142, Adam v. Insurance Corporation of British Columbia, 2018 BCCA 482, Beaudin v. Travelers Indemnity Insurance Company of Canada, 2021 ONSC 1389, aff’d 2022 ONCA 806, leave to appeal refused, [2023] S.C.C.A. No. 40568, Joaquim v. Intact Insurance Company, 2023 ONSC 5120

Burjoski v Waterloo Region District School Board, 2024 ONCA 811

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP,Courts of Justice Act, RSO 1990, c. C.43, s. 137.1, Human Rights Code, R.S.O. 1990, c. H.19, Education Act, R.S.O. 1990, c. E.2, Canadian Charter of Rights and Freedoms, ss. 2 and 15, Hansman v. Neufeld, 2023 SCC 14, C.F. v. Director of Vital Statistics (Alta.), 2014 ABQB 237, Bent v. Platnick, 2020 SCC 23, Burjoski v. Waterloo Region District School Board, 2023 ONSC 6506, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, Tamming v. Paterson, 2021 ONSC 8306, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Mondal v. Kirkconnell, 2023 ONCA 523, Marcellin v. London (Police Services Board), 2024 ONCA 468, 40 Days for Life v. Dietrich, 2024 ONCA 599, Hamer v. Doe, 2024 ONCA 721, Ontario Inc. v. Buttar, 2023 ONCA 539, Ciulla v. The Toronto Catholic District School Board, 2021 ONSC 3110, Hilary Young, “Canadian Anti-SLAPP Laws in Action” (2022) 100:2 Can. B. Rev. 186, Justin Safayeni, “Anti-SLAPP laws in Ontario: recent trends and lingering uncertainties” (7 May 2024), online (blog): <cfe.torontomu.ca>

Paracha v Naqi Construction Ltd., 2024 ONCA 816

Keywords: Real Estate, Contracts, Standard of Review, Oral Agreement, Statute of Frauds, R.S.O. 1990, c. S.19, ss. 4, 9 and 10, Housen v. Nikolaisen, 2002 SCC 33, Svia Homes Limited v. Northbridge General Insurance Corporation, 2020 ONCA 684

Fielding v Fielding, 2024 ONCA 807

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Scheibler v. Scheibler, 2024 ONCA 191, Schulstad v. Schulstad, 2017 ONCA 95

Maceroni v Maceroni, 2024 ONCA 824

Keywords: Family Law, Parenting, Decision-Making, Civil Procedure, Appeals, Fresh Evidence, Costs, Court of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), Van de Perre v. Edwards, 2001 SCC 60, Shipton v. Shipton, 2024 ONCA 624, A.M. v. C.H., 2019 ONCA 764, Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22, Maceroni v. Maceroni, 2024 ONSC 3688 (Div. Ct.), Knight v. Knight, 2019 ONCA 538

Wang v Li, 2024 ONCA 819

Keywords: Family Law, Matrimonial Home, Exclusive Possession, Equalization of Net Family Property, Unequal Division, Spousal Support, Family Violence, Civil Procedure, Restraining Orders, Appeals, Fresh Evidence, Family Law Act, R.S.O. 1990, c. F.3Canada v. Doiron, 2012 FCA 71, Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22

Mahilum v Consentino, 2024 ONCA 829

Keywords: Wills and Estates, Civil Procedure, Appeals, Extension of Time, Rules of Civil Procedure, r. 61.04(1), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131

Short Civil Decisions

Mann v Rafique, 2024 ONCA 812

Keywords: Torts, Defamation, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21, Libel and Slander Act, R.S.O. 1990, c. L. 12, s. 16, PMC York Properties Inc. v. Siudak, 2022 ONCA 635

Beazley v Johnston, 2024 ONCA 813

Keywords: Torts, Negligence, MedMal, Civil Procedure, Summary Judgment, Evidence, Experts, Appeals, Extension of Time, Machado v. Ontario Hockey Association, 2019 ONCA 210

Eshtiaghi v Haratian, 2024 ONCA 822

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Orders, Enforcement, Stay, Third Party Claims

Melburn-Kumar v Kumar, 2024 ONCA 818

Keywords: Family Law, Child Support, Spousal Support, Civil Procedure, Orders, Enforcement, Courts of Justice Act, R.S.O. 1990, c. C.43., s. 6(1)(b), Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, s. 41, Ares Law Professional Corporation v. Rock, 2017 ONCA 569

Williams v VAC Developments Limited, 2024 ONCA 821

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43., s. 137.1

CIVIL DECISIONS

1797472 Ontario Inc. v independent Electricity System Operator, 2024 ONCA 808

[Miller, Copeland and Gomery JJ.A.]

Counsel:

M. J. Jilesen, A. Wheeler, J. McDaniel, and B. Ross, for the appellant, Independent Electricity System Operator

S. Barton and A. Bazak, for the respondents, 1797472 Ontario Inc. and Solar Sky Farms Inc.

L. Sarabia, W. Brock, and R. Gao, for the respondents, 2323953 Ontario Inc., BrightRoof Solar Limited Partnership, GS 2013 LP, MOM Solar Limited Partnership, MOM V Limited Partnership, OSPS (00227-3673 McBean) Limited Partnership, OSPS (002281-150 Abbeyhill) Limited Partnership, OSPS (002334-159 Lorry Greenberg) Limited Partnership, Potentia Solar 14 Limited Partnership, PRI RT Solar Limited Partnership, PSI Solar Finance 1 Limited Partnership, SE 2011 LP, SunE Newboro 4 LP and SunE Welland Ridge LP

facts:

Independent Electricity System Operator (the “Appellant”), appealed the application judge’s interpretation of terms of its contracts with the Respondents. In 2009, the Appellant launched a “feed-in-tariff” (the “FIT program”) to encourage the construction of new renewable energy facilities in Ontario. Under the FIT program, the Appellant promised to pay guaranteed prices for energy delivered to the provincial grid by new suppliers of renewable energy over long-term contracts. Beginning in 2011, the Respondents obtained contracts (the “FIT 1 Contracts”) to deliver energy from solar panel facilities. Each contract consists of standard terms common to all FIT 1 Contracts and a Contract Cover Page specific to each Respondent.

The Respondents’ solar panels collect direct current (“DC”) energy, quantified in DC watts, which is converted to alternating current (“AC”) energy, quantified in AC watts, before being delivered to the grid. Under the FIT 1 Contracts, the Respondents receive a guaranteed price for each AC watt they deliver, subject to a cap over any given period. This cap is specified on the Contract Cover Page as the Respondent’s “Contract Capacity” or “Gross Nameplate Capacity”.

Beginning in 2019, the Respondents replaced their existing solar panels with more efficient panels or added additional panels. As a result, they increased their capacity to capture and convert DC energy. In 2020, the Appellant informed the Respondents that they had breached their FIT 1 Contracts as a result of their installation or addition of new, more efficient panels.

The applications and cross-applications turned largely on the interpretation of s. 2.1(b) of the FIT 1 Contracts, which begins as follows: “The Supplier shall at no time after the date of this Agreement modify, vary or amend in any material respect any of the features or specifications of the Contract Facility or the Facility as outlined in the Application or the FIT Contract Cover Page (including for greater certainty, the Site) or make any change as to the Facility’s status as a Registered Facility (a “Contract Facility Amendment”), without first notifying the OPA in writing and obtaining the OPA’s consent in writing, which consent shall not be unreasonably withheld.”

The application judge’s key conclusions were that:

1) Pursuant to s. 2.1(b) of their FIT 1 Contracts, the Appellant’s consent is required only for changes to features or specifications set out in the application submitted by each Respondent for a FIT 1 Contract (the “Application”) or on the FIT 1 Contract Cover Page;

2) The Respondents’ capacity to produce DC energy and their DC/AC ratio was not a feature or specification outlined in the Application or the Cover Page, and therefore did not fall within a category of change triggering the need for the Appellant’s prior consent;

3) Had the application judge concluded that the Respondents’ DC capacity was a feature or specification captured by s. 2.1(b), she would have found that the Respondents’ optimizations materially changed it, and that the Appellant’s approval was not unreasonably withheld;

4) None of the parties had acted in bad faith and they accordingly were not entitled to a remedy premised on it; and

5) A change in the type and number of solar panels or the DC Capacity of certain Respondents who were required to submit Metering Plans (known as the “Potentia Suppliers”) did not breach s. 2.2(d) of their FIT 1 Contracts, which prohibited any material changes to such Plans without prior approval of the Appellant.

Based on these findings, the application judge held that the Respondents were not required to give notice to the Appellant or obtain its consent prior to optimizing their facilities.

issues:

Did the application judge err in interpreting s. 2.1(b) of the FIT 1 Contracts to find that the Respondent’s capacity to produce DC energy and increase their DC/AC ratio was not a feature or specification outlined in the Application or the Cover Page, and therefore did not fall within a category of change triggering the need for the Appellant’s prior consent?
Did the application judge err in finding that the replacement or addition of solar panels by the Potentia suppliers did not constitute a material change to their Metering Plans requiring pre-approval by the Appellant under s. 2.2(d) of the FIT 1 Contracts?

holding:

Appeal dismissed.

reasoning:

The Court held that the correctness standard applies in the review of the application judge’s interpretation of s. 2.1(b) of standard form FIT 1 Contracts.

The Court found that the application judge set out the relevant principles of contract interpretation. The application judge noted that the contractual provisions at issue must not be read in isolation but should be considered together with the rest of the contract considering its purposes and commercial context. As she correctly observed, the “relevant surrounding context is generally considered to be that which was present at the time the contract was made, not subsequently.” The Court explained that, based on these principles, the application judge identified the relevant provisions of the FIT 1 Contracts. She correctly held that “the factual matrix is predominantly derived from the legislative context that created and supported them, and statements made by the government and in the legislature about them and their intended purposes and objectives.”

The application judge’s interpretation of s. 2.1(b) of the FIT 1 Contracts was consistent with its terms as well as the FIT 1 Contracts as a whole and the parties’ objective intent based on the factual matrix she described. She held the provision establishes two categories of Contract Facility Amendments that the Appellant must pre-approve:

Those that “modify, vary or amend in any material respect any of the features or specifications of the Contract Facility or the Facility as outlined in the Application or the FIT Contract Cover Page (including for greater certainty, the Site)”; and
Those that “make any change as to the Facility’s status as a Registered Facility”.

In the Court’s view, the application judge’s reading was grounded in the plain text of s. 2.1(b). Read in a straightforward way, the phrase “Contract Facility or the Facility” is modified both by the preceding phrase (“any of the features or specifications”) and the subsequent phrase (“as outlined in the Application or the FIT Contract Cover Page”). The Court noted that, having reviewed the standard terms of the FIT 1 Contracts as a whole, the application judge found that they “clearly contemplate the features or specifications outlined in the Contract Cover Page applying to both the Contract Facility and the Facility.” The Court adopted her reasoning, which took into account the purpose of s. 2.1(b), the nature and structure of the FIT Contracts, all relevant defined terms, and how such terms are otherwise used in the Contracts.

Furthermore, the Court found that in interpreting s. 2.1(b), the application judge considered the factual matrix. At the time the FIT 1 Contracts were signed, the Ministry of Energy identified the three policy objectives of the FIT Program to be: reducing the environmental footprint by bringing more renewable energy online; protecting Ontarians from harmful emissions; and creating green energy jobs and attracting investment capital amidst a global recession. As the application judge found, the “overarching purpose and commercial context of these FIT 1 Contracts was to kick start local green energy development and production.”

The Court noted that courts cannot adopt a strained contractual interpretation to assist a party in getting out of what it perceives, in hindsight, to be a bad bargain. The Court found no reviewable error in the application judge’s reasoning or conclusion with respect to the interpretation of s. 2.1(b), and accordingly, this ground of appeal failed.

Unlike other suppliers, the Potentia Suppliers were required to submit metering plans to the Appellant. Pursuant to s. 2.2(d) of the FIT 1 Contracts, a supplier “shall not make any material changes to [their] Metering Plan following approval by the OPA … without the prior written approval of the OPA, acting reasonably.”

Interpreting this provision in light of the definition of “Metering Plan” in the FIT 1 Contract, the application judge found that: “A change in the type and number of solar panels or the DC Capacity of the Facility does not change the Metering Plan itself, which measures and monitors the AC Capacity or output. The Metering Plan sets out how Hourly Delivered Electricity that is sent out of a Facility and into the electricity grid will be measured, validated, adjusted and calculated for the purpose of the FIT Contract. The Metering Plan, or the manner in which the electricity output is measured and monitored, is unaffected by the solar panel Optimizations and corresponding increased DC Capacity. The [Appellant] did not tender any evidence about Metering Plans to suggest otherwise.”

The Court saw no palpable or overriding error in this reasoning. This ground of appeal also failed.

Burjoski v Waterloo Region District School Board, 2024 ONCA 811

[Zarnett, Monahan and Pomerance JJ.A.]

Counsel:

K.A. McGivney and N.D. Kolos, for the appellants

J. Heimpel, for the respondent

D. Montomery and B. Murphy, for the intervener, Egale Canada

H. Kheir and J. Manson, for the intervener, Our Duty Canada

facts:

On January 17, 2022, the respondent gave a presentation at a public meeting of the appellant, the Waterloo Region District School Board (the “Board”). The respondent was a retired teacher with the Board. In this presentation, the respondent began criticizing some books available in school libraries which discussed gender identity and expression. The Board Chair cautioned her not to say “anything that would violate the Human Rights Code.” The Board Chair eventually ended the presentation prematurely with concern that the respondent’s comments were in violation of the Human Rights Code which protects gender identity and expression. The Board Chair’s decision to end the respondent’s presentation was upheld by a majority vote.

In the days following the meeting, the Board Chair was interviewed by a few different local news affiliates. In these interviews, the Board Chair explained that some of the comments made by the respondent were transphobic. The Board’s normal practice was to post video recordings of its meetings, but it decided to remove the recording of the January 17, 2022 meeting from the website.

On April 14, 2022, the respondent sought judicial review of the Board’s decision to uphold the decision of the Board Chair to stop the respondent’s presentation. The Divisional Court dismissed the respondent’s application for judicial review and upheld the ruling of the Board Chair on the ground that the Board had acted reasonably in halting the presentation.

The respondent also issued a statement of claim seeking damages from the appellants for defamation and intentional infliction of mental or emotional suffering. The appellants filed a statement of defence and subsequently brought a motion to have the respondent’s claim dismissed in accordance with the Anti-SLAPP provisions of s 137.1 of the Courts of Justice Act (“CJA”). At the conclusion of the oral hearing, the motion judge found that the respondent’s claim for defamation had substantial merit and he had no reasonable grounds to believe that the appellant had a valid defence to the claim. While the defamation claim could continue, the motion judge dismissed the respondent’s claim for infliction of mental suffering because the respondent did not show that the Board Chair intended to cause a visible illness to her.

The appellants appealed some of the motion judge’s findings. However, the appellants did not appeal the motion judge’s finding that the respondent’s defamation claim has substantial merit.

issues:

Did the motion judge err by finding that the appellants had no valid defences to the defamation claim pursuant to s. 137.1(4)(a)(ii)?
Did the motion judge err by failing to consider the public interest in protecting the appellants’ expression in the weighing analysis under s. 137.1(4)(b)?
Did the motion judge err by failing to apply the proper test when considering whether the court has jurisdiction over the subject matter of the respondent’s action?
Did the motion judge err in awarding costs to the respondent?

holding:

Appeal dismissed.

reasoning:

The Court found that the motion judge did not err in finding that there were reasonable grounds to believe that the appellants had no valid defence to the defamation claim. The Court evaluated the defences of qualified privilege, fair comment, and justification. The Court affirmed the motion judge’s finding that none of these were likely to succeed.

(a) Qualified Privilege

The appellant argued that the motion judge’s finding of malice was based on a mistaken belief that the Board Chair’s decision to halt the respondent’s presentation was arbitrary, contrary to the later Divisional Court decision. The Court found this did not immunize the later statements made by the Board Chair from being defamatory because the Divisional Court decision was concerned solely with whether the Board Chair had the legal authority to intervene.

The appellant also argued that the motion judge denied him procedural fairness on the finding that the Board Chair was acting to defend himself rather than a disadvantaged group. The Court found that there was a basis in the record for the motion judge to draw the inference in question and it did not deny the appellant procedural fairness to rely upon that inference.

Last, the appellant argued that because malice must be the dominant motive to defeat a defence and he believed his statements were true, it negated a finding of malice. The Court found that the appellant did not appeal the motion judge’s finding that the Board Chair made statements about the respondent’s presentation which were untrue. Accordingly, there was some basis in the record from which it could be inferred that the Board Chair had acted with malice.

(b) Fair Comment

The appellants argued that the motion judge erred in two respects in his finding on fair comment. First, they claimed that the motion judge erred in his finding that the Board Chair’s statements did not have a basis in fact. Second, they said that the motion judge erred in finding that the defence of fair comment would be overcome by a finding of malice on the part of the Board chair.

First, the Court found there was some basis in the record upon which it could be inferred that the Board Chair made statements that were not based in fact. Accordingly, an inference should be properly drawn at a substantive hearing on the merits, rather than in the context of a s. 137.1 motion. Second and similarly, the Court found that there was some basis in the record from which it could be inferred that the Board Chair acted recklessly (and thus, legally, with malice) in claiming the respondent made statements that were not in fact made by her. Accordingly, the Court asserted this matter should be determined by a substantive hearing on the merits, rather than on a s. 137.1 motion.

(c) Justification

The appellants argued that the motion judge failed to provide any legal basis for rejecting the defence of justification in his reasons. The Court indicated that the record revealed that the appellants made untrue statements. A defence of justification fails where the impugned statements are untrue. The Court found that the motion judge made this clear in his conclusion on justification.

Yes in the approach, no in the ultimate conclusion.

The Court found that the motion judge erred in the weighing exercise under s. 137.1(4)(b) of the CJA. The motion judge weighed “the public interest in permitting the proceeding to continue” against “the public interest in protecting the defendant’s expression.” The motion judge failed to consider the countervailing public interest that could attach to the Board Chair’s intervention. Having considered only those interests that favoured the respondent, the Court found it was inevitable that the weighing would resolve in the respondent’s favour.

In addition, the motion judge’s weighing hinged on the underlying premise that it was wrong for the Board Chair to stop the presentation. The motion judge’s analysis did not have the benefit of the Divisional Court’s decision which upheld the Board Chair’s decision to halt the respondent’s presentation. In light of this error, the Court found that the usual standard of deference was suspended and considered the matter afresh.

Did the harm to the respondent outweigh the value of the appellants’ speech?

Yes. The Court found that the harm experienced by the respondent outweighed the public interest attached to the Board Chair’s speech.

Pertaining to the three-part test, the Court made findings on the following. First, the Court found that while the case did not contain hallmarks contemplated by the Anti-SLAPP regime, it was not dispositive of the analysis under s. 137.1. Second, the Court found that the respondent had met the burden of showing harm required at the preliminary screening stage. The Court pointed to evidence such as the respondent having experienced panic attacks, a mental breakdown and hospitalization which ensued days after the January 17, 2022 incident. Third, the Court found there was some public interest attaching to the Board Chair’s remarks. Both as explanatory comment and as speech aimed at countering what he perceived to be the respondent’s “transphobic” remarks. However, the Court found that public interest was greatly reduced by the fact that the Board Chair attributed comments to the respondent that she did not make potentially distorting the severity of her remarks. In addition, the Court asserted that the responsibility to be accurate took on an enhanced importance in this case, given that the Board chose not to post the recording of the meeting. While the Court came to its conclusion differently than the motion judge, it agreed with the motion judge’s ultimate conclusion.

The Court found the motion judge did not err in finding that the Superior Court has jurisdiction over the subject matter of the respondent’s claim. The appellants argued that a labour arbitrator had exclusive jurisdiction to deal with all disputes between the parties arising expressly or inferentially from a collective agreement. The Court asserted that the difficulty with this argument was that the appellants did not articulate how the respondent’s claim arose from the collective agreement.

The Court agreed to grant leave to appeal the costs award, but dismissed the costs appeal. The Court reiterated that the award of costs is a discretion decision that is entitled to deference on appeal.

Paracha v Naqi Construction Ltd., 2024 ONCA 816

[Simmons, Coroza and Sossin JJ.A.]

Counsel:

T. W. Khan, for the appellants

R. A. Fisher and D. R. Lilko, for the respondents

facts:

The parties were involved in four real estate transactions together. T. P. and S. P. (together, “the P’s”) are husband and wife, and S. Z. is their relative. M. A. and R. B. are husband and wife.

The appellants, M. A. and R. B., appealed the decision of the trial judge in relation to the four residential properties and the costs award of $400,000 in favour of the respondents, T. P., S. P., and S. Z.

The litigation between the parties related to a sum of money (at least $363,000) that the respondents advanced to the appellants. There was no dispute that the funds were advanced to the appellants. The respondents claimed this money was advanced to purchase ownership interests in the four properties. The appellants denied the claim and submitted that most of the money was given to them as a loan. The trial judge rejected the appellants’ position and found that the funds advanced were not loans but funds to purchase, renovate and sell the properties as investments.

issues:

Did the trial judge misapprehend the evidence, fail to consider relevant evidence, fail to resolve contradictory evidence, and not provide adequate reasons for disregarding the evidence of the appellants?

holding:

Appeal dismissed.

reasoning:

No. The Court disagreed with the appellants’ submissions. The Court noted that the trial judge made detailed findings of fact and he specifically noted that M. A.’s credibility was badly damaged at trial and that R. B.’s credibility was similarly damaged by other witnesses.

The Court noted that the appellants had failed to file all the evidence attested to in their Certificate of Completeness, leaving the Court without the full record. Based on the evidence before the Court, the appellants had failed to demonstrate any error that would displace the deference owed to the trial judge’s findings.

The Court rejected the appellants new argument, which was not made at trial, that pursuant ss. 4 and 9 of the Statute of Frauds, agreements concerning an interest in land must be evidenced in writing and signed by the parties and, if not, are void and unenforceable at law. Furthermore, the Court rejected the appellants submission that that the trial judge erred in rendering his decision regarding the one of the properties when he accepted the formation of an oral contract for an interest in the property.

The Court noted that it is incumbent on the party seeking to raise a new argument before the Court to persuade the Court that “the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”: Svia Homes Limited v. Northbridge General Insurance Corporation. The Court held that the appellants put forward only a subset of the transcripts of the evidence. Portions of the evidence related to one of the property transactions including the P’s evidence was missing. The Court held that the absence of this material without any explanation was fatal to this new ground of appeal and declined to consider it.

Fielding v Fielding, 2024 ONCA 807

[Lauwers, Brown, and Coroza JJA]

Counsel:

G. Joseph and E. Gamus, for the appellant

M. Zalev, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Scheibler v. Scheibler, 2024 ONCA 191, Schulstad v. Schulstad, 2017 ONCA 95

facts:

This appeal arose from a high conflict family proceeding between a former couple who separated back in 2010. The respondent, a former plastic surgeon, retired in December 2021. The appellant, who was a urologist, left practice in 2003 due to a degenerative eye condition. She received long term disability benefits until she turned 65 in February 2022.

The respondent brought a motion to terminate child and spousal support because he retired, and the appellant sought to double her spousal support payments because her disability payments ended. The appellant also claimed that she should continue to receive child support until their daughter, N, completed her graduate degree in August 2023. On the motion, the judge held that: the respondent’s decision to retire was reasonable; the retirement and corresponding reduction in his income was a material change in circumstances; the termination of the appellant’s long term disability was a material change in circumstances; the respondent was entitled to stop spousal support as of December 31, 2021, and should be credited for any resulting overpayments; and, the appellant was entitled to child support for N until August 31, 2023, but not after that date and the payments were to be governed by the order of Justice Monahan.

issues:

Did the motion judge make a palpable and overriding error in finding that the respondent’s retirement at 63 years of age was reasonable?
Did the motion judge make a palpable and overriding error in finding that the respondent’s spousal support should end?
Did the motion judge make a palpable and overriding error with respect to the section 7 expenses?
Should the appellant be granted leave to appeal the costs award?

holding:

Appeal dismissed.

reasoning:

The Court found that the motion judge instructed himself accurately on the law and assessed the reasonableness of the retirement, considering the relevant factors.

The Court held that the motion judge’s conclusions were amply explained in his reasons for decision and the reasonableness assessment was one that the motion judge was best situated to make and to which appellate deference was due. The Court found that the appellant has not shown that the motion judge made any palpable and overriding error in fact or error in principle.

The Court deferred to the motion judge’s decision on the issue because the appellant had not identified any palpable and overriding error of fact or an error in principle.

The Court noted that the motion judge addressed the issues in his reasons, including that the appellant’s net worth was somewhat greater than the respondent’s, that there had been material changes on both sides, and that any economic hardship arising from the breakdown of the marriage had long been addressed through 12 years of support from the respondent.

The Court rejected the appellant’s argument that the respondent had corporate income that was not accounted for, since the flows of income into his professional corporation were treated as personal income for support purposes. Further, with respect to money the respondent withdraws from the corporation, the Court noted that he had already paid support on that money. The Court found that the motion judge relied reasonably on expert evidence. On the issue of the respondent’s income for two months in 2023, the Court noted that the motion judge did not err in splitting the difference between the positions of the parties.

The Court held that the motion judge’s decision that the respondent’s spousal support should end was also reasonable.

The Court found that the motion judge grappled with the appellant’s claim that she paid $259,165 in s. 7 expenses between 2018 to 2022 that the respondent should contribute to on a proportionate basis and came to a different conclusion.

The Court noted that the motion judge properly interpreted the order of Monahan J. and gave effect to it. The Court found that the appellant had not identified any palpable and overriding error or error in principle in the motion judge’s analysis leading to this conclusion, to which it deferred.

The Court found that the appellant had not identified any factual or legal error in the motion judge’s costs analysis and refused to grant leave to appeal the costs.

Maceroni v Maceroni, 2024 ONCA 824

[Huscroft, Trotter and Dawe JJ.A.]

Counsel:

B. Ludmer, for the appellant

A. J. and T. J. Miller, for the respondent

facts:

The appellant father and respondent mother separated in 2016. They had three children, the oldest of whom is now an adult. The sole disputed issue at trial was the father’s request for a change in the shared decision making and 50/50 parenting time arrangement. The mother opposed this order and argued that the existing parenting arrangement should continue. The trial judge decided it was in the best interests of the dependent children to continue with the existing shared parenting and decision-making arrangement and awarded $100,000 in all-inclusive costs to the mother. The father appealed both the decision and the costs award and sought leave to adduce fresh evidence.

issues:

ISSUES:

Did the trial judge err by making palpable and overriding errors of fact finding?
Did the trial judge err in making the cost award?

holding:

Appeal dismissed.

reasoning:

The Court first stated that the scope of appellate review in parenting dispute cases is “narrow”, and that a trial judge’s determination of the best interests of a child is “owed significant deference on appeal”. The Court may only intervene “if there is a material error, a serious misapprehension of the evidence, or an error in law”. The Court was not persuaded that the father had shown that the trial judge made any palpable and overriding errors. His reasons indicated that he properly considered all of the evidence, and reached conclusions that were open to him on the trial record. It is not the Court’s function to reassess and reweigh the evidence and draw different conclusions, including on issues of credibility.

The Court also considered the admission of fresh evidence on appeal, applying the well-established Palmer test. This test emphasizes the need for Courts, where the best interests of the child are the primary concern, to have more context before rendering decisions that could profoundly alter the course of a child’s life. In this case, the Court found the trial judge did not commit any reversible error. Predictions of future events are necessarily imprecise, and the fact that a parenting order had not worked out as well as hoped or expected did not mean that the judge’s decision was wrong when it was made. The Court declined to admit the fresh evidence.

Costs orders are discretionary and may only be appealed with leave, which will only be granted where there are “strong grounds” for appeal. The Court was not satisfied that the father met this high threshold and dismissed this appeal.

Wang v Li, 2024 ONCA 819

[Simmons, Coroza and Sossin JJ.A.]

Counsel:

F. W., acting in person

M. L., acting in person

facts:

This appeal arises from the dismissal of a family law application. The parties met online in 2012. Both had been married previously. The respondent was living in China with her daughter from a previous relationship when the parties met. She had a successful architectural and design business and owned several properties, some of which produced income for her. In early 2013, the appellant travelled to China to meet the respondent, who was in the process of selling her business. The parties agreed to marry, and that the respondent and her daughter would move to Toronto to live with the appellant. The parties were married in May 2013. In the fall of that year, the respondent purchased the matrimonial home, which was registered in her name alone, for $2,050,000. She paid a deposit of $800,000 and obtained a mortgage for $1,250,000.

On September 13, 2017, the parties separated when the respondent left the matrimonial home and began living in a shelter and hotels. On October 7, 2017, the appellant was charged with various offences including assault, pointing a firearm and uttering threats. He was released on recognizance that required that he have no contact with the respondent. In November 2017, the appellant was charged with breaching the recognizance. Following this charge, the respondent returned to the matrimonial home and was still living there at the time of trial.

The charges against the appellant were withdrawn in 2018 after he entered into a peace bond stipulating that he would have no contact with the respondent for twelve months. The respondent obtained a restraining order against the appellant in June 2021. The restraining order was renewed in July 2021 and remained in effect at the time of the trial.

At trial the judge dismissed the appellant’s claims for equalization of net family properties, a declaration that the respondent held the matrimonial home in trust for both parties, and spousal support. The trial judge granted the respondent’s requests for exclusive possession of the matrimonial home and an unequal division of net family properties, with the result that no equalization payment was owing from the respondent to the appellant. The trial judge also ordered that the appellant pay the respondent $75,000 in damages for physical and psychological abuse, that he return certain personal property to her and that the restraining order previously issued by the court remain in effect.

issues:

Did the trial judge err in his findings relating to the sale of the respondent’s business, the purchase of the matrimonial home and payment of expenses during cohabitation?
Did the trial judge make mistakes in his findings relating to registration of the matrimonial home in the respondent’s name and the appellant’s pre-marital property?
Did the trial judge err in failing to admit evidence favourable to the appellant about the domestic abuse allegations?
Did the trial judge make an improper reliance on the appellant’s Prenuptial Declaration?
Did the trial judge err in ordering the return of personal property?
Did the trial judge err in his findings regarding the general misconduct and impropriety of the respondent and, was the trial judge biased?
Should the appellant be allowed to adduce fresh evidence on appeal?

holding:

Appeal dismissed.

reasoning:

The appellant alleged that the trial judge made seven mistakes in finding that, in January 2013, the respondent received RMB 8,800,000 for the sale of her Chinese architecture and design business and repayment of a loan, and that she subsequently used a portion of these funds to purchase the matrimonial home and pay all the parties’ expenses during cohabitation. The appellant’s arguments related to the respondent’s supplementary trial record, which the trial judge permitted her to file on the sixth day of trial. The Court held that a transcript would have demonstrated whether the appellant objected to the supplementary trial record. Absent a transcript, the Court found no basis for concluding that the trial judge made any error in permitting the respondent to file her supplementary trial record.

The Court rejected the appellant’s argument that the respondent’s forensic accounting expert who concluded the respondent’s business had been sold for RMF 5,000,000 was flawed, in part because it relied on allegedly forged documents. Without a transcript of the trial, the appellant had no basis to challenge the conclusion of the trial judge that even if there were issues concerning the validity of a document relied upon by the expert, that did little to undermine the respondent’s evidence that funds which were deposited to the appellant’s account came from the respondent.

The Court also found that the appellant had not advanced any valid arguments to challenge the trial judge’s findings that his claims that he provided RMB 8,800,000 to the respondent were false and unsupported.

With respect to appellant’s argument that the trial judge erred in permitting some documents to be translated at trial, the Court held that the appellant has not pointed to any Ontario authority that would limit the judge’s discretion to permit documents in a foreign language from being translated at trial, especially where both parties are testifying through an interpreter.

The appellant alleged that the trial judge “deliberately concealed” favourable evidence he gave at trial about why he permitted the matrimonial home to be registered in the respondent’s name and about the property he brought into the marriage.

The Court rejected these submissions, and again observed that the appellant failed to file a transcript and as a result, he could not support his claims that the trial judge overlooked evidence favourable to him.

The appellant alleged that the trial judge erred in accepting the respondent’s allegations of domestic violence given that the charges against him were dropped and the respondent failed to call any witnesses or recordings to support her allegations. The appellant also asserted that the trial judge erred in failing to admit an affidavit from his daughter in which she stated she did not observe any domestic violence while living with the couple. Further, he relied on a submission that the couple’s family doctor refused to testify in court to support the domestic violence case.

The Court did not accept these submissions and noted that the trial judge had found that the charges against the appellant were withdrawn after he entered into a peace bond. The Court stated that, in accordance with Canada v. Doiron, even where criminal charges are dismissed after a trial, the result in the criminal proceedings is not binding in civil proceedings in which the standard of proof is on a balance of probabilities.

The Court reiterated that since the appellant did not file a transcript of the trial proceedings, he could not substantiate his claims about the family doctor. Further, because he did not make his daughter available to testify at trial, the trial judge made no error in rejecting her affidavit.

The appellant asserted that the trial judge erred in failing to find his Prenuptial Declaration illegal and of no force and effect.

The Court found that the appellant did not identify any errors in the trial judge’s reasons. The trial judge recognized that the Prenuptial Declaration is not an enforceable domestic contract under s. 55(1) of the Family Law Act. Nonetheless, it remained open to him to consider the Prenuptial Declaration when addressing whether an equalization of net family properties would be unconscionable: s. 5(6)(g) of the FLA.

The appellant alleged that the trial judge erred in accepting the respondent’s evidence concerning the personal property. The Court held that, once again, as the appellant failed to file a transcript of the trial proceeding, he could not substantiate his allegations.

The appellant made allegations of general misconduct and impropriety on the part of the respondent as well as bias on the part of the trial judge. The Court found that, once again, without a transcript of the trial proceedings, the appellant could not substantiate these allegations.

The Court noted that in oral argument, the appellant also made general allegations of bias, prejudice and hostility because the trial judge was Jewish and that he made similar offensive remarks in his written opening statement at trial but apparently withdrew them. The Court noted that, importantly, and leaving aside the absence of a transcript, the appellant’s submissions reflected prejudice antithetical to Canadian values. The Court noted that these submissions were reprehensible and have no place in a Canadian courtroom.

The Court reiterated that, as established by the Supreme Court in Palmer v The Queen and Barendregt v Grebliunas, the overarching consideration when deciding whether fresh evidence should be allowed is whether the evidence should be admitted in the interests of justice.

The Court noted that the appellant did not file an affidavit to explain why the four documents dated at least five years prior to the trial could not have been adduced at trial. The Court held that, in any event, their relevance was questionable, and there was no basis for concluding they could have affected the result at trial.

The Court found no basis to interfere with the trial judge’s decision to decline the fresh evidence at trial.

Mahilum v Consentino, 2024 ONCA 829

[Wilson J.A.]

Counsel:

F. M. Tonelli, for the moving party

S. Raman and K. Nagrani, appearing on behalf of C.C.

M. N. Khalid, on behalf of the Estate of E.B.M.

Keywords: Wills and Estates, Civil Procedure, Appeals, Extension of Time, Rules of Civil Procedure, r. 61.04(1), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131

facts:

This appellants sought an extension of time to file a notice of appeal. The underlying application concerned the estate of the late E.B.M. The deceased had six children: five sons and one daughter. In 2021, the daughter commenced an application due to concerns about the manner in which her brother, the appellant, E.M1. was dealing with their mother’s estate. Her position was that her brother submitted a fraudulent will to the court to be appointed as estate trustee.

In 2021, the court appointed an Estate Trustee during Litigation (“estate trustee”). The estate trustee attended to various matters arising from the estate, including the sale of the deceased’s home. There was a court order for the listing of the property for sale. E.M1. and E.M2. (the appellants and moving parties) refused to move out of the house, and in November 2021, the court issued a further order authorizing the sheriff and police to enforce the prior order directing the sale of the house.

In 2023, the estate trustee served a motion for directions to deal with the final matters in the administration of the estate. The motion was initially returnable in October 2023. E.M1. attended the motion and requested an adjournment on behalf of himself and his brother, E.M2., so they could obtain counsel. The motion was adjourned and marked peremptory on the respondents.

In March 2024, Mr. Tonelli, solicitor for the moving parties, attended court and requested an adjournment of the motion on the basis he had just been retained. There was no material filed in support of the request for the adjournment of the motion, which had been marked peremptory. The motion judge dismissed the adjournment request, noting there had been no explanation by E.M1. and E.M2. for their delay in retaining counsel for a motion they had been aware of for eight months.

On August 23, 2024, the moving parties served their notice of appeal on the respondents. Pursuant to the Rules of Civil Procedure, the materials for the appeal were to be filed by August 22, 2024. As a result, the Court rejected the filing. E.M1. and E.M2. then served this motion to extend the time to serve and file the appeal.

issues:

Was it in the interest of justice to grant the extension of time to file the appeal?

holding:

Motion dismissed.

reasoning:

No. The Court held that to comply with r. 61.04(1) of the Rules, the notice of appeal had to have been served and filed with the necessary materials by August 22, 2024. The onus was on the party who failed to comply with the timeline to demonstrate that the extension ought to be granted.

The Court noted that in determining whether to exercise its discretion to grant an extension of time, the court will take into consideration the circumstances of the case and ultimately the court must consider whether it is in the interests of justice to grant the extension: Enbridge Gas Distribution Inc. v. Froese. This included whether the moving party formed an intention to appeal within the relevant time period, the length of time and explanation for the delay, prejudice to the respondent occasioned by the delay, and the merits of the proposed appeal.

The Court noted that the judgment set out E.M1. and E.M2.’s pattern of behaviour that made it clear they evinced, at best, a cavalier attitude towards the application and orders of the Superior Court of Justice. Their behaviour could be described as tactical and designed to frustrate and defeat their sister’s application.

The moving parties formed the intention to appeal within the thirty-day time period, albeit at the last possible moment. The length of delay was not problematic, however, the explanation offered was unsatisfactory. The Court held that the computation of time pursuant to the Rules is not difficult and left the question of why the moving parties left the service and filing of the appeal materials to the last possible day. There was a brief reference to possible prejudice to the moving parties if the order sought is not granted, however, no actual prejudice was identified. If the moving parties wished to persuade the Court that the order sought was necessary in order to prevent prejudice, evidence from a party or from counsel should have been included.

The Court then turned to the merits of the proposed appeal, noting that the notice of appeal asserted that the motion judge failed to adjourn the motion. The Court held that whether or not to adjourn a matter is within the discretion of the judge and is based on the facts of this case. The decision of the motion judge to proceed was reasonable, particularly since the motion had been adjourned previously at the request of the moving parties and had been marked peremptory. The Court held that this ground of appeal was exceedingly weak.

The Court held that the only other ground of appeal set out in the notice of appeal was that “the trial court made an error in fact in making its decision.” Counsel had failed to set out what error of fact or law it is alleged the judge made or how his decision was incorrect. Counsel did not identify any other ground of appeal during the hearing. Thus, the only basis for the appeal was the denial of the adjournment request.

The Court held that taking into account all of the circumstances, it was not in the interests of justice to grant the extension of time to file the appeal.

SHORT CIVIL DECISIONS

Mann v Rafique, 2024 ONCA 812

[Rouleau, Roberts and Favreau JJ.A.]

Counsel:

A. Rouben, for the appellants

G. Zvulony, for the respondent

Beazley v Johnston, 2024 ONCA 813

[Rouleau, Roberts and Favreau JJ.A.]

Counsel:

C. B., acting in person

A. W. McKenna and J. McCarthy, for the respondents

Keywords: Torts, Negligence, MedMal, Civil Procedure, Summary Judgment, Evidence, Experts, Appeals, Extension of Time, Machado v. Ontario Hockey Association, 2019 ONCA 210

Eshtiaghi v Haratian, 2024 ONCA 822

[Huscroft, Trotter and Dawe JJ.A.]

Counsel:

E. Tingley, for the appellant

R. S. Choi and H. H. Na, for the respondent

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Orders, Enforcement, Stay, Third Party Claims

Melburn-Kumar v Kumar, 2024 NCA 818

[Brown, Coroza and Gomery JJ.A.]

Counsel:

B. K., acting in person

H. Puchala and A. Champsi, for the respondent

Williams v VAC Developments Limited, 2024 ONCA 821

[Miller, Trotter and Copeland JJ.A.]

Counsel:

T. McRae, for the appellant

M. Mustafa, for the respondent

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43., s. 137.1

About the author

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

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