In Liquor Control Board of Ontario v. Ontario (Information and Privacy Commissioner), the LBCO denied the Toronto Star’s request under the Freedom of Information and Privacy Act to disclose statistics as to the amount of theft had occurring in its stores. It objected to disclosure on the basis that it would endanger its economic interests and the safety of its employees and customers. The Information and Privacy Commissioner ordered disclosure. The LCBO’s appeal to the Divisional Court was successful, in a 2-1 split. However, the Court of Appeal allowed the appeal, restoring the IPC adjudicator’s decision ordering the LCBO to disclose the information.
Marketology Media Inc. v. DGA North American Inc. was a claim to enforce a judgment (enforcing an arbitration decision) by seeking to set aside certain fraudulent preferences, including by way of the oppression remedy. While the trial judge made no finding of a fraudulent conveyance, she granted the oppression remedy on grounds not pleaded or argued by the parties. The Court found that the trial judge erred in doing so. In addition, her reasons for decision were found to be insufficient. The Court set aside her order and remitting the matter back to the Superior Court for a new trial.
In Lochan v. Binance Holdings Limited, a class action case, the Court agreed with the motion judge that respondent’s arbitration clause was both unconscionable and against public policy, as it imposed prohibitive costs and inaccessible forums, effectively insulating the respondent from meaningful legal challenges by small investors.
In Beirat v. Khiyal, the Court allowed an appeal in an estates case, ordering it back for a rehearing.
In Preston v Cervus Equipment Corp., the Court allowed the employer appellant’s appeal from the motion judge’s interpretation of a wrongful dismissal settlement and release whereby the motion judge had found that the employee had not released their claim to certain vested stock units. The plain wording of the settlement documentation and release said otherwise.
Gomes v Da Silva involved a claim to a family property by way of a resulting trust and for the sale of the property.
Other topics covered this week included vexatious litigation, the interpretation of a consent judgment in an estates case, the consolidation of two appeals regarding the validity of an investigative summons issued by the Ontario Securities Commission and the conversion of the proceeds of a cheque by a lawyer.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
Gomez v Da Silva, 2024 ONCA 792
Keywords: Real Property, Wills and Estates, Gifts, Equitable Claims, Resulting Trusts, Remedies, Partition and Sale, Equitable Set-OffCivil Procedure, Evidence, Corroboration, Limitation Periods, Appeals, Fresh Evidence, Partition Act, R.S.O 1990, c P.4, Real Property Limitations Act, R.S.O. 1990, c. L.15, ss. 4, 5(2), Evidence Act, R.S.O. 1990, c. E.23, s. 13, Fockler v. Spiegel, 2023 ONCA 148, Dass v. Kay, 2021 ONCA 565, Bradshaw v. Hougassian, 2023 ONSC 3266, Archer v. Neita, 2024 ONSC 2883, Singh v. Kaler, 2017 ABCA 275, Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, Telford v. Holt, [1987] 2 S.C.R. 193, Wise Enterprises Inc. v. J. Weiss Investments Limited, 2017 ONSC 5468, Silva v. Silva, [1990] O.J. No. 2183 (Ont. C.A.), Palmer v The Queen, [1980] 1 S.C.R. 759
Lochan v. Binance Holdings Limited, 2024 ONCA 784
Keywords: Securities, Contracts, Arbitration Clauses, Enforceability, Civil Procedure, Class Proceedings, Arbitration, Competence-Competence Principle, International Commercial Arbitration Act 2017, S.O. 2017, c. 2, Schedule. 5 s. 9, Ontario Securities Act, R.S.O. 1990, c. S.5, s. 133, Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41, Spark Event Rentals v. Google LLC, 2024 BCCA 148, Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, Uber Technologies Inc. v. Heller, 2020 SCC 16
Beirat v. Khiyal, 2024 ONCA 790
Keywords: Family Law, Property, Joint Family Ventures, Resulting Trusts, Fraudulent Conveyances, Equalization of Net Family Property, Spousal Support, Child Support, Wills and Estates, Wills, Validity, Dependant’s Support, Karatzoglou v. Commisso, 2023 ONCA 738, Kerr v. Baranow, 2011 SCC 10, Trotter Estate, 2014 ONCA 841
Johnston v. McLean, 2024 ONCA 791
Keywords: Estates, Contracts, Trustees, Minutes of Settlement, Repudiation, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Sanko S.S. Co. v. Eacom Timber Sales Ltd. (1986), 32 D.L.R. (4th) 269 (B.C.S.C.), Carey v. Laiken, 2015 SCC 17, Thomsett v. Thomsett, 2001 BCSC 546, Shih v. Shih, 2017 BCCA 37, NHDG (Green Mountain) Inc. v. The Hamilton Teleport Ltd., 2021 ONSC 362, Cetin v. Percival et al., 2022 ONSC 2057, S.C.H. v. S.R., 2023 ONSC 1549, Brown v. Belleville (City), 2013 ONCA 148, John D. McCamus, The Law of Contracts (Toronto: Irwin Law, 2005)
Binance Holdings Limited v. Ontario Securities Commission, 2024 ONCA 805
Keywords: Securities, Investigations, Civil Procedure, Summonses, Appeals, Consolidation, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2) and (3), Securities Act, R.S.O. 1990, c. S.5, ss. 13(1) and 144(1), Securities Commission Act, 2021, S.O.2021, c. 8, Sched. 9, Canadian Charter of Rights and Freedoms, s. 8, Rules of Civil Procedure, r. 1.04, Land Titles Act, R.S.O. 1990, c.L.5, Cavanaugh v. Grenville Christian College, 2013 ONCA 139, Davis v. Amazon Canada Fulfillment Services, ULC, 2023 ONCA 634, Confederation Trust Co. v. Donofrio (1994), 73 O.A.C. 132 (C.A.), McLeod v. Castlepoint Development Corp. (1997), 31 O.R. (3d) 737 (C.A.), Wright v. Strauss, 2019 ONCA 844
Zwaan v. LaFramboise, 2024 ONCA 800
Keywords: Torts, Conversion, Fresh Evidence, Insurance, Trust, Creditability, Charter Rights, Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, St. Amand v. Tisi, 2018 ONCA 106, Housen v. Nikolaisen, 2002 SCC 33
Marketology Media Inc. v. DGA North American Inc., 2024 ONCA 799
Keywords: Contracts, Debtor-Creditor, Fraudulent Conveyances, Corporations, Remedies, Oppression, Civil Procedure, Judgments, Enforcement, Procedural and Natural Justice, Sufficiency of Reasons, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Labatt Brewing Co. v. NHL Enterprises Canada L.P., 2011 ONCA 511, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401, R. v. R.E.M., 2008 SCC 51, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, R. v. G.F., 2021 SCC 20, Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388
Preston v Cervus Equipment Corporation, 2024 ONCA 804
Keywords: Contracts, Employment, Settlements, Releases, Interpretation, Corner Brook (City) v. Bailey, 2021 SCC 29, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53
Liquor Control Board of Ontario v. Ontario (Information and Privacy Commissioner), 2024 ONCA 803
Keywords: Public Law, Freedom of Information, Liquor Control, Administrative Law, Judicial Review, Standard of Review, Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 ss. 14, ss.18, ss. 52(3), (13), and 55(1), Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 s. 77(2), Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866, Northern Regional Health Authority v. Horrocks, 2021 SCC 42, Ball v. McAulay, 2020 ONCA 481, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, Kitmitto v. Ontario (Securities Commission), 2024 ONSC 1412, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67
Short Civil Decisions
Grillone (Re), 2024 ONCA 806
Keywords: Bankruptcy and Insolvency, Civil Procedure, Orders, Variation, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended
Wu v. Toronto (City), 2024 ONCA 810
Keywords: Civil Procedure, Vexatious Litigation, Rules of Civil Procedure, Rule 2.1, Vinczer v. 7084421 Canada Ltd., 2022 ONCA 400, Mohammad v. Springer Nature, 2024 ONCA 745, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720
CIVIL DECISIONS
Gomes v Da Silva, 2024 ONCA 792
[Hourigan, Madsen and Pomerance JJ.A.]
COUNSEL:
A. Conte, for the appellant
S. M. Turk, for the respondents
Keywords: Real Property, Wills and Estates, Gifts, Equitable Claims, Resulting Trusts, Remedies, Partition and Sale, Equitable Set-OffCivil Procedure, Evidence, Corroboration, Limitation Periods, Appeals, Fresh Evidence, Partition Act, R.S.O 1990, c P.4, Real Property Limitations Act, R.S.O. 1990, c. L.15, ss. 4, 5(2), Evidence Act, R.S.O. 1990, c. E.23, s. 13, Fockler v. Spiegel, 2023 ONCA 148, Dass v. Kay, 2021 ONCA 565, Bradshaw v. Hougassian, 2023 ONSC 3266, Archer v. Neita, 2024 ONSC 2883, Singh v. Kaler, 2017 ABCA 275, Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, Telford v. Holt, [1987] 2 S.C.R. 193, Wise Enterprises Inc. v. J. Weiss Investments Limited, 2017 ONSC 5468, Silva v. Silva, [1990] O.J. No. 2183 (Ont. C.A.), Palmer v The Queen, [1980] 1 S.C.R. 759
FACTS:
The appellant appealed the order of the trial judge dismissing his claim for a resulting trust and granting the respondents’ claim for partition and sale of the property. The appellant also challenged the dismissal of his claim for “credit” in relation to work undertaken on the property between 1974 and 2012 and other related relief.
ISSUES:
1. Did the trial judge err in dismissing the appellant’s claim for a resulting trust?
2. Did the trial judge err in determining that the claim in relation to work done on the property before 2012 was statute-barred?
3. Did the appellant’s motion to admit fresh evidence meet the Palmer test?
HOLDING:
Appeal dismissed.
REASONING:
1. No.
The Court explained that a finding that a limitation period applies is a finding of mixed fact and law, which is entitled to deference on appeal, reviewable for palpable and overriding error: Fockler v. Spiegel; Dass v. Kay.
The Court held that the trial judge correctly stated that s. 4 of the RPLA creates a ten-year limitation period for “an action to recover any land”. This includes claims advanced by way of resulting or constructive trust. The trial judge held that even if the parties’ mother held her interest in the property on a resulting trust for the appellant, the limitation period would have expired in 2018, ten years after her correspondence that put the appellant on notice regarding her view of the ownership of the home, and well before the appellant filed his statement of defence and counterclaim in December 2019. The trial judge found that, “[the appellant] had knowledge starting in 2008 that [the mother] did not have the intention to honour such a trust”, if indeed there was one. The Court therefore held that the trial judge correctly concluded that the appellant’s choice not to take steps in 2008 to assert his property claim did not stop the running of the limitation period.
The Court also held that the trial judge did not err in concluding that s. 5(2) of the RPLA did not apply to postpone the start of the limitation period to the date of the death of the parties’ mother, as the appellant was advancing a claim against a deceased person and her interest in the property not on behalf of or through a deceased person. The Court rejected the appellant’s reliance on Bradshaw v. Hougassian, stating that in that case, the estate trustees claimed a resulting trust on behalf of the estate of the deceased person, rather than against it.
The Court rejected the appellant’s argument that the trial judge reversed the burden of proof in relation to the presumption of resulting trust by requiring him to prove that he paid more than 50% of the purchase price. The proponent of a rebuttable presumption bears the onus to prove the “basic fact,” in this case, proof of the advance of funds to purchase the property: Singh v. Kaler.
The Court held that it was open to the trial judge to find that the appellant did not prove that he had contributed more than 50% of the purchase price, and that there was neither palpable nor overriding error in the findings of fact and credibility made by the trial judge.
The Court rejected the appellant’s argument that the trial judge erred in her interpretation of s. 13 of the Evidence Act, which provides that “in an action by or against heirs, next of kin, executors, administrators, or assigns of a deceased person, an opposite or interested party will not obtain a verdict on his or her own evidence in respect of any matter occurring before the death of the deceased person unless such evidence is corroborated by other material evidence”. The Court explained that the appellant’s claim was against the assigns of a deceased person, the parties’ mother. The respondents were her assigns. The appellant was thus an “opposite” party under s. 13, and the plain wording of the section requires corroboration in respect of matters occurring before his mother’s death. The Court saw no error in the trial judge’s determination on this issue. Therefore, the Court held that had the resulting trust claim not been statute-barred, it would nevertheless have been unsuccessful.
The appellant did not address the issue of partition and sale in his factum. The Court held that the trial judge correctly set out the applicable law and found that the circumstances of this case were not within the “narrow” exceptions to the prima facie right to partition or sale of lands; there being no evidence of malice, oppression, or vexatious intent: Wise Enterprises Inc. v. J. Weiss Investments Limited. The Court held that this finding was available to her on the evidence.
2. No.
The appellant asserted that the trial judge erred in dismissing his claim for work done on the property between 1974 and 2012, which he valued at $277,900. At trial, he framed the claim as one of equitable set-off, which the trial judge found was inapplicable on the facts of this case, as the appellant’s claim did not arise out of the same contract or series of events that gave rise to the respondents’ claim, nor was it closely connected with it: Canaccord Genuity Corp. v. Pilot. The claim related to work allegedly undertaken before the respondents were even on title, work for which the appellant had never previously sought compensation. The trial judge found the claim for work done before 2012 “ha[d] nothing to do with [the respondents’] right to ask for partition and sale.” Further, given that equitable set-off did not apply, the appellant’s claim was subject to a two-year limitation period, which had expired.
The Court saw no error in the analysis or conclusions of the trial judge.
Lochan v. Binance Holdings Limited, 2024 ONCA 784
[Huscroft, Harvison Young and Copeland JJ.A]
COUNSEL:
C. Sainsbury, G. Splawski, and P. N. Gemson, for the appellant
J. C. Orr, A. Allison, and J. Careen, for the respondents
Keywords: Securities, Contracts, Arbitration Clauses, Enforceability, Civil Procedure, Class Proceedings, Arbitration, Competence-Competence Principle, International Commercial Arbitration Act 2017, S.O. 2017, c. 2, Schedule. 5 s. 9, Ontario Securities Act, R.S.O. 1990, c. S.5, s. 133, Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41, Spark Event Rentals v. Google LLC, 2024 BCCA 148, Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, Uber Technologies Inc. v. Heller, 2020 SCC 16
FACTS:
Between 2019 and early 2022, the appellant sold cryptocurrency derivatives to Canadians through its website. The motion judge found that cryptocurrency derivatives contracts are novel, complex, and risky securities, which present investor protection concerns. A seller is required to file a prospectus prior to selling cryptocurrency derivatives. The appellant did not register with the Ontario Securities Commission or seek an exemption from registration. The appellant did not file a prospectus with respect to any of its securities offerings.
The respondents were representative plaintiffs who commenced a proposed class action in June 2022. The claim is based on s. 133 of the Ontario Securities Act, which provides purchasers with a right of action for rescission or damages against a company selling securities for failure to file or deliver a prospectus. The statement of claim proposes a class defined as everyone in Canada who, from September 2019 to the date of certification of the proposed class proceeding, purchased cryptocurrency derivatives from the appellant.
The appellant moved to stay the proceeding on the basis that the terms of use contract agreed to by users of the Binance website requires that any disputes be resolved by arbitration.
The motion judge dismissed the motion for a stay in favour of arbitration. He found that exceptions to the competence-competence principle applied that justified the Ontario court deciding whether the arbitration clause was void. He found that a stay in favour of arbitration should be refused because the arbitration clause was void both as contrary to public policy and because it was unconscionable.
ISSUES:
1. Did the motion judge err in holding that an arbitration clause being contrary to public policy is an independent ground for an Ontario court to take jurisdiction and refuse a stay in favour of arbitration?
2. Did the motion judge err in holding that the circumstances fell within an exception to the competence-competence principle?
3. Did the motion judge err in his application of the Uber “brick wall” analysis by engaging in more than a superficial analysis of the evidence on the threshold issue?
HOLDING:
Appeal dismissed.
REASONING:
1. No.
The Court noted that the appellant placed emphasis on the recent British Columbia Court of Appeal decision in Spark Event Rentals v. Google LLC. The appellant argued that the motion judge went straight to considering whether the arbitration clause was void as contrary to public policy without first considering whether an exception to the competence-competence principle applied that would justify an Ontario court deciding whether the arbitration clause was void for public policy reasons. The appellant argued that the arbitral tribunal should have been given the first opportunity to consider the validity of the arbitration clause.
The Court held that Spark did not add anything to the analysis set out in Dell Computer Corp. v. Union des consommateurs, 2007 and Uber Technologies Inc. v. Heller, 2020. In Dell and Uber, the Supreme Court of Canada held that, in general, challenges to an arbitral tribunal’s jurisdiction should first be decided by the arbitral tribunal – what is known as the “competence-competence” principle. Before a domestic court can entertain arguments that an arbitration clause is void for reasons such as unconscionability or being contrary to public policy, it must first be satisfied that the circumstances fall within an exception to the application of the competence-competence principle to justify the domestic court deciding whether the arbitration clause is void, rather than allowing the arbitral tribunal to first decide the issue.
The Court held that the motion judge’s approach was consistent with Spark, Dell, and Uber. The appellant’s first argument failed because the motion judge did not go straight into the public policy analysis. Rather, as the jurisprudence provides, he first considered whether an exception to the competence-competence principle applied to justify an Ontario court deciding whether the arbitration clause was void as contrary to public policy or on the basis of unconscionability.
2. No.
The Court held that it saw no error of law or palpable and overriding error of fact in the motion judge’s finding that exceptions to the competence-competence principle were engaged that justified the Ontario courts deciding whether the arbitration clause was void for public policy reasons and/or unconscionability.
The Court noted that the motion judge recognized that the starting point is the competence-competence principle that the validity of an arbitration clause should be decided by the arbitral tribunal. He recognized that the respondents bore the onus to show that an exception to referral to the arbitral tribunal applied. He recognized that the competence-competence principle is not lightly displaced.
The Court held that the motion judge correctly found that that the competence-competence principle was displaced in this case. In doing so, he relied on the exceptions identified by both Dell and Uber. He found that the contractual terms at issue were standard form, raising a legal issue. He further found that, to the extent that a review of the factual record was required, it did not require fact-finding specific to the representative plaintiffs, but rather could be considered on a review of the documentary record and the consideration of the types of disputes likely to arise under the arbitration clause at issue. He also found that the exception discussed in Uber applied because a superficial review of the record showed that, because of the inaccessibility of the arbitration forum due to cost, distance, and choice of law, there was a real prospect that the challenge to the validity of the arbitration clause would never be resolved if it were referred to the arbitral tribunal.
3. No.
The Court noted that in Uber, the issue was high fees and inability, due to cost, to reach the place of arbitration. The concern underlying the Uber exception to the competence-competence principle is to address cases where an arbitration clause is effectively insulated from meaningful challenge. This is referred to in some of the jurisprudence as the “brick wall” framework.
The Court disagreed that the motion judge erred in his application of the Uber “brick wall” analysis by engaging in more than a superficial analysis of the evidence on the threshold issue: whether, if the dispute was referred for arbitration, the validity of the arbitration clause would likely never be decided. The Court held that motion judge did not exceed a superficial documentary review permitted by Dell and Uber. The Court further held that the motion judge did not err in considering whether an average cryptocurrency buyer could access the arbitral tribunal in order to raise the issue of validity of the arbitration clause. As the motion judge noted, there was no nuance in the arbitration clause. All disputes, regardless of the specific subject-matter raised, are required by the clause to be arbitrated. The Court saw no palpable and overriding error in the motion judge considering the issues of public policy and unconscionability on the basis of the typical cryptocurrency investor and the nature of disputes likely to arise under the arbitration clause.
Beirat v. Khiyal, 2024 ONCA 790
[Simmons, Coroza and Sossin JJ.A.]
COUNSEL:
L. Boritz, for the appellant
A. Lloyd, for the respondent
Keywords: Family Law, Property, Joint Family Ventures, Resulting Trusts, Fraudulent Conveyances, Equalization of Net Family Property, Spousal Support, Child Support, Wills and Estates, Wills, Validity, Dependant’s Support, Karatzoglou v. Commisso, 2023 ONCA 738, Kerr v. Baranow, 2011 SCC 10, Trotter Estate, 2014 ONCA 841
FACTS:
The issues on appeal relate to an Order determining the assets of the Deceased’s estate at the time of his death. The Deceased remained legally married to the Respondent from whom he had been separated for many years. In September 2016, following their separation, the Respondent and the Deceased sold their jointly owned condominium and divided the proceeds of sale. Although the Deceased commenced a divorce proceeding in January 2019, as of May 6, 2022, the Respondent’s claims in that proceeding for equalization of net family properties, spousal support and retroactive child support had not been determined.
At the time of the Deceased’s death, he had been living in a common law relationship for several years with the Appellant. While cohabiting, in July 2018, they purchased a condominium (the “Condominium”) and registered it in both their names as joint tenants. Later, in September 2018, they transferred the Condominium to themselves as tenants in common, the Appellant as to a 99% share and the Deceased as to a 1% share.
The Order was made on a motion brought in one of two competing applications for directions commenced in relation to the Deceased’s estate. The first was the Respondent’s application.
Among other things, the Respondent sought a continuation of her claims in the divorce proceeding, an unequal division of net family properties, a declaration that she is a dependant of the Deceased and a declaration that the transfer of the Condominium to the Deceased and the Appellant as tenants in common was a fraudulent conveyance. Later, the Respondent’s application was amended to have several further issues determined, including whether the Deceased died intestate, the appointment of the Deceased’s adult daughter as estate trustee, whether the Appellant held an interest in the Condominium on a resulting trust for the Deceased and whether all or portions of certain other assets were assets of the estate.
As part of her evidence on the Respondent’s application, the Appellant asserted that she provided the purchase money for the Condominium through a combination of paying the deposit and direct advances and prior loans to the Deceased. She also claimed that she is the Deceased’s estate trustee and sole beneficiary under a will dated October 11, 2018. Although she produced a signed copy of that will, she has been unable to find the original will. The Respondent asserted that the Deceased destroyed his will but provided no direct evidence of that assertion.
The second application was commenced by the Appellant. In her application, the Appellant sought orders that the copy of the Deceased’s will she produced is the valid last will and testament of the Deceased, and that the Deceased’s 1% interest in the Condominium is held on a resulting trust for her. In the alternative to the latter order, she sought an order that the Condominium should be conveyed to her in partial satisfaction of debts owed to her by the Deceased, or that the Deceased’s estate was unjustly enriched by extra funds contributed by her towards the mortgage.
Subsequently, at a procedural conference, in an order styled in the Respondent’s application, the presiding judge directed that “the issue to be decided will be limited to the determination of the assets of the estate at the date of death.” The presiding judge also directed that the judge “hearing this portion of the motion will not be seized to hear the balance of the application.”
ISSUES:
1. Did the motion judge err by failing to determine whether the Deceased died intestate or whether the Respondent or the Deceased’s adult daughter could act as the Deceased’s estate representative?
2. Did the motion judge err by concluding that the Appellant and the Deceased were equal owners of various assets based on findings that, financially, they were “one economic unit”?
3. Did the motion judge err in finding that the Appellant was not credible?
4. Did the motion judge make conflicting findings of fact?
5. Did the motion judge err in making certain findings of fact without hearing oral evidence?
HOLDING:
Appeal allowed.
REASONING:
1. Yes.
The Court explained that without an estate representative advancing a trust claim against the Appellant on behalf of the estate, the motion judge erred in relying on trust principles to conclude that the Deceased’s estate had an ownership interest in any asset then in the name of the Appellant. Trust claims are personal to the individual. A non-titled spouse cannot assert a trust claim against a third party on behalf of a spouse for equalization purposes. Explained differently, if the October 2018 will is valid and the Appellant is the Deceased’s lawful estate trustee and heir, the Respondent has no standing to advance a trust claim on his estate’s behalf against the Appellant.
2. Yes.
The Court held that to the extent that the motion judge concluded that the Appellant and the Deceased were equal owners of various assets based on findings that, financially, they were “one economic unit”, he erred in law. Even where there is a finding of a joint family venture, the remedy is a share of accumulated wealth proportionate to contributions. There is no presumption of equal sharing. Instead, the respective contributions of the parties must be considered in determining the claimant’s proportionate share.
3. Yes.
The Court held that the motion judge’s findings concerning the Appellant’s credibility were fundamentally flawed. He premised his finding that she was not credible in part on criticism of her evidence given on her cross-examination. It is undisputed on appeal that the Appellant was not cross-examined. This is a significant error that undermines the motion judge’s conclusion and taints subsequent adverse credibility findings concerning the Appellant’s evidence.
4. Yes.
The Court found that the motion judge made conflicting findings of fact. For example, he stated that the documentation showed that each of the Deceased and the Appellant contributed approximately the same amount to the purchase of the Condominium. However, although he found that the Deceased contributed $66,500 to the downpayment for the Condominium and paid $5,241 on account of legal fees and expenses, he also accepted that the Appellant contributed $66,500 to the downpayment, paid the $15,000 initial deposit and provided documentation to support $17,500 of the loan amounts she claimed she had previously advanced to the Appellant.
5. Yes.
In the Court’s view, the motion judge erred in making findings of fact in the face of many disputed issues based solely on a written record without oral evidence and in the absence of the pending applications being joined. The Court noted that oral evidence would have assisted the process.
In the result, the Court set aside the Order and directed that following a determination of whether there is a valid will or an intestacy and the appointment of an estate representative, the Appellant and Respondent’s applications should be consolidated and heard together on a proper evidentiary record.
Johnston v. McLean, 2024 ONCA 791
[Hourigan, Madsen and Pomerance JJ.A.]
COUNSEL:
B. D. Arkin, for the appellants
J. M. Krotz and I. Toor, for the respondents
Keywords: Estates, Contracts, Trustees, Minutes of Settlement, Repudiation, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Sanko S.S. Co. v. Eacom Timber Sales Ltd. (1986), 32 D.L.R. (4th) 269 (B.C.S.C.), Carey v. Laiken, 2015 SCC 17, Thomsett v. Thomsett, 2001 BCSC 546, Shih v. Shih, 2017 BCCA 37, NHDG (Green Mountain) Inc. v. The Hamilton Teleport Ltd., 2021 ONSC 362, Cetin v. Percival et al., 2022 ONSC 2057, S.C.H. v. S.R., 2023 ONSC 1549, Brown v. Belleville (City), 2013 ONCA 148, John D. McCamus, The Law of Contracts (Toronto: Irwin Law, 2005)
FACTS:
The deceased owned a Farm in Rockwood, Ontario and her will provided that her assets would be shared equally among her four daughters. Following litigation, the parties signed minutes of settlement which provided that the appellants would pay the respondents and receive title to the Farm. The parties also agreed to a Consent Judgement which was drafted by the appellants and E.B., one of the respondents. The Consent Judgement was at issue in the appeal.
The application judge rejected the submission of the appellants that the Consent Judgment should be interpreted in accordance with the principles mandated by the Supreme Court in Sattva Capital Corp. v. Creston Moly Corp, and found that the provision for the sale of the Farm was not part of the Consent Judgment. Instead, she viewed her task as interpreting the meaning of the Minutes of Settlement and the parties’ conduct through the lens of contract law. Applying that contractual analysis, she found that the appellants repudiated the provision for the sale of the Farm and the respondents accepted that repudiation and communicated their repudiation to the appellants. The appellants claimed that the application judge erred in law in her analytical approach to the interpretation of the Consent Judgment and in finding that the respondents had accepted the repudiation of the contract and communicated their repudiation to the appellants.
ISSUES:
1. Did the application judge err in her analysis of the Consent Judgment?
2. Did the application judge err in finding there was a repudiation?
HOLDING:
Appeal dismissed
REASONING:
1. Yes.
The Court found that the application judge did err in interpreting the Consent Judgment in accordance with the dictionary meaning of the words used, and that this amounted to an extricable error of law. Instead, the Court stated that Consent Judgment should be interpreted according to the principles of contractual interpretation because they are a species of contract. It must be borne in mind that, “a consent judgment is not a judicial determination on the merits of a case but only an agreement elevated to an order on consent. The basis for the order is the parties’ agreement, not a judge’s determination of what is fair and reasonable in the circumstances”.
Despite this finding, the Court found the legal error to be immaterial because when regard was had to the relevant surrounding circumstances, it is evident that only selective terms of the Minutes of Settlement were included in the Consent Judgment. This was done entirely at the appellants’ request. The specific inclusion of these terms led to the conclusion that the remaining terms in the Minutes of Settlement were intentionally not incorporated into the Consent Judgment. Although the Court found the interpretation to be incorrect, it upheld the application judge’s conclusion that the sale provisions were excluded from the Consent Judgement.
2. No.
The law regarding acceptance of repudiation was stated by the Court in Brown v. Belleville (City), which found that where the innocent party to a repudiatory breach or an anticipatory repudiation wishes to be discharged from the contract, the election to disaffirm the contract must be clearly and unequivocally communicated to the repudiating party within a reasonable time. This may be orally, written, or inferred from the conduct of the innocent party in the particular circumstances of the case.
The Court did not accept the appellants’ argument that the respondents’ email did not include a notice of an intention to treat the contract as terminated. the Court also did not accept that the application judge failed to consider subsequent emails between the parties where the respondents expressed a desire for the sale to be completed. The Court held that the application judge was entitled to find that the statements by the respondent amounted to an acceptance of the repudiation of the contract. The application judge was not required to specifically review all of the evidence after the date of the respondents’ acceptance and could be taken to have considered the evidence in the record on this issue.
Binance Holdings Limited v. Ontario Securities Commission, 2024 ONCA 805
[Pepall J.A. (Motion Judge)]
COUNSEL:
G. Hamilton, T. Markin and N. Paunic, for the moving party
K. Gustafson and A. Dantowitz and, for the responding party
Keywords: Securities, Investigations, Civil Procedure, Summonses, Appeals, Consolidation, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2) and (3), Securities Act, R.S.O. 1990, c. S.5, ss. 13(1) and 144(1), Securities Commission Act, 2021, S.O.2021, c. 8, Sched. 9, Canadian Charter of Rights and Freedoms, s. 8, Rules of Civil Procedure, r. 1.04, Land Titles Act, R.S.O. 1990, c.L.5, Cavanaugh v. Grenville Christian College, 2013 ONCA 139, Davis v. Amazon Canada Fulfillment Services, ULC, 2023 ONCA 634, Confederation Trust Co. v. Donofrio (1994), 73 O.A.C. 132 (C.A.), McLeod v. Castlepoint Development Corp. (1997), 31 O.R. (3d) 737 (C.A.), Wright v. Strauss, 2019 ONCA 844
FACTS:
The moving party, Binance Holdings Limited, sought an order under ss. 6(2) and (3) of the Courts of Justice Act joining two appeals: (1) its appeal to the Divisional Court from an April 30, 2024 decision of the Ontario Securities Commission; and (2) its appeal to the Court from a September 28, 2023 decision of the Divisional Court for which it was granted leave to appeal on September 13, 2024.
Binance submitted that the appeals were “in the same proceeding” for the purposes of s. 6(2) of the Courts of Justice Act, as they involve identical challenges to the constitutionality of a summons issued by an Ontario Securities Commission investigator pursuant to an investigation order under the Securities Act. In addition, it argued that combining the appeals comports with the administration of justice.
The responding party, the Ontario Securities Commission, resisted this request. It maintained that the two appeals were not “in the same proceeding” as required by s. 6(2) of the Courts of Justice Act and, even if they could be so considered, it should not exercise the Court’s discretion to permit the requested order combining the appeals. It argued that: such an order would result in delay; the issues at the core of the two appeals are distinct; the risk of inconsistent decisions is low; and Binance ought not to be permitted to bypass the normal appellate hierarchy that is reflective of legislative intent.
ISSUES:
Should the two appeals be joined under ss. 6(2) and (3) of the Courts of Justice Act?
REASONING:
Yes.
The Court noted that the test for combining appeals is twofold. First, given the language of subsection 6(2), the appeals must be in the same proceeding. Provided that threshold is met, the court must then consider whether separate appeals in different courts or combining the appeals in the Court of Appeal better comports with the administration of justice: Cavanaugh v. Grenville Christian College and Davis v. Amazon Canada Fulfillment Services. The Court further noted that factors that may be considered in the exercise of that discretion include: the risk of inconsistent results; the extent of overlap in the two appeals; and whether combining the two appeals is contraindicated due to different issues in the two appeals: Davis.
Regarding the first component, the Court noted that this issue was not one of first impression. In Confederation Trust Co. v. Donofrio, appeals arose from separate actions and some appeals lay to the Divisional Court. Nonetheless, Laskin J.A. determined that he had jurisdiction under s. 6(2) of the Courts of Justice Act to allow all of the appeals to be heard by the Court.
The Court noted that Binance relied upon McLeod v. Castlepoint Development Corp. and Confederation Trust Co. v. Donofrio and was urged by the moving party to adopt a purposive approach that focuses on the substance of the dispute and that interprets the language in s. 6(2) as meaning appeals that relate to the same lis or dispute.
The Court further noted that the Ontario Securities Commission acknowledged that the parties and issues overlapped, but submitted that the decisions were legally distinct proceedings, as they were decided by two different adjudicators following two different hearings arising from two different originating processes. It argued that the cases relied upon by the moving party were unique decisions that turned on their particular facts.
The Court held that although it accepted that the two cases relied upon by Binance were factually different, the Court has determined that the words “in the same proceeding” could encompass proceedings commenced by different originating processes. Thus, the fact that two procedural routes were taken does not preclude the application of ss. 6(2). The Court therefore held that Binance met the first component associated with its request for a combination order.
Regarding the second component, the Court held that combining the appeals would permit the Court to fully and finally resolve which body has original jurisdiction to review and quash a summons issued by an investigator under s. 13(1) of the Securities Act, the issue raised in both appeals. Neither the Capital Markets Tribunal nor the Ontario Securities Commission would take jurisdiction.
The Court further held that there were no issues that contraindicated combining appeals and no real or compelling prejudice was identified by the Ontario Securities Commission. The request to stay the summons was refused, and combining the appeals would permit the matters to be heard by just one court rather than two, since leave to appeal the Divisional Court’s order was granted by the Court. Lastly, the Court held that combining the appeals would secure the just, most expeditious and least expensive determination of the issues in the appeals on their merits. The Court therefore held that Binance met the second component associated with its request for a combination order.
Zwaan v. LaFramboise, 2024 ONCA 800
[Simmons, Coroza and Sossin JJ.A.]
COUNSEL:
D.L., acting in person
R. N. Kostyniuk, for the respondent
Keywords: Torts, Conversion, Fresh Evidence, Insurance, Trust, Creditability, Charter Rights, Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, St. Amand v. Tisi, 2018 ONCA 106, Housen v. Nikolaisen, 2002 SCC 33
FACTS:
In April 2018, the respondent received a cheque for $36,200 from Intact Insurance when a barn on the farm property that she owned burned down. The respondent and her common law partner, M.A. lived on the farm. As owner of the property, the cheque was payable to the respondent and to Merk Investments Ltd. (“Merk”), whom she had obtained a first mortgage from on the property and who was named as first loss payee under the policy. The appellant was a lawyer who M.A. had previously dealt with. The insurance cheque was given to the appellant with the intention of having him apply the funds to the mortgage.
The circumstances under which the respondent signed the cheque and by which the appellant ultimately deposited the cheque in his personal account were contested at trial. The respondent stated that she signed the cheque, gave it to the appellant, and he told her he would put it in his trust account. The appellant claimed that he was given the already endorsed cheque by M.A., and accepted it for deposit into his personal account. The appellant and respondent had an agreement that they would each pay certain amounts towards the monthly mortgage payment on the farm property.
In 2020, power of sale proceedings began for the farm. The farm was sold for over $1,100,000. After paying the mortgage off, there was a substantial amount in equity realized on this sale. Each of the appellant and respondent received $80,000 from this amount with the balance being placed in court pending the outcome of the related litigation over title of the farm. These power of sale proceedings prompted the respondent and her lawyer, R.K., to investigate the whereabouts of the cheque. She and R.K. discovered that the cheque was cashed in 2018. R.K. demanded that the appellant transfer the money into his trust account. In response, the appellant responded that no such money had passed through his trust account and later testified that he deposited the cheque into his personal bank account, using the money to cover the mortgage payments.
On cross examination, the appellant acknowledged that he never received authorization from the respondent to deposit the cheque into his personal account. The trial judge concluded than an unlawful conversion occurred when the appellant intentionally deposited the cheque into his personal bank account without authorization. The trial judge dually found that none of the funds were applied to the mortgage.
ISSUES:
Prior to assessing the grounds of appeal, the Court needed to deal with two preliminary issues:
1. Can the appellant have certain bank statements from the respondent’s bank account be introduced as fresh evidence?
2. Can the respondent strike an affidavit from the record on the basis that the appellant failed to seek leave to rely upon the affidavit as fresh evidence?
Grounds of appeal:
3. Did the trial judge err in making findings of fact based on insufficient evidence, such that they amounted to palpable and overriding errors?
4. Did the trial judge err in holding the appellant to the standard of a lawyer when there was no solicitor-client relationship between the appellant and respondent?
5. Did the trial judge err by ordering payments to the respondent when there was other money at issue in a different proceeding involving these parties?
HOLDING:
Appeal dismissed.
REASONING:
1. No.
The Court set out the test from St. Amand v. Tisi with regard to the party seeking to introduce fresh evidence. This test requires that the party seeking to introduce fresh evidence show that the proposed evidence is: (1) credible; (2) could not have been obtained by reasonable diligence before trial or application; and (3) if admitted, would likely be conclusive of an issue in the appeal. The Court found that the appellant failed the second branch of the test and could have obtained the bank statements from the respondent for the purposes of litigation prior.
2. Unnecessary
The Court found that because the appellant did not bring a motion in relation to the admission of the affidavit for the purposes of this appeal, it was not necessary to address whether the evidence met the threshold for admission. The affidavit was concluded not to be a part of the appeal record.
3. No.
The Court found that the appellant’s submissions missed the point. The appellant focused his submissions on emphasizing that the funds in question were put towards the mortgage property and relied on his own testimony to prove so. The trial judge found that the respondent was a credible witness and the appellant was not. As such, the Court asserted that the trial judge was entitled to a high degree of deference. The Court saw no error that would call to question the trial judge’s careful review of the evidentiary record and conclusions reached on the basis of that record.
4. Unnecessary
The Court found this ground of appeal unnecessary to address because it was not pursued at the hearing of the appeal and lacked merit.
5. Unnecessary
The Court found this ground of appeal unnecessary to address because it was not pursued at the hearing of the appeal and lacked merit.
Marketology Media Inc. v. DGA North American Inc., 2024 ONCA 799
[Lauwers, Zarnett and Pomerance JJ.A.]
COUNSEL:
J. J. Adair and K. Glowach, for the appellants/respondents by way of cross-appeal
R. Breedon and J. Kemp, for the respondent/appellant by way of cross-appeal
Keywords: Contracts, Debtor-Creditor, Fraudulent Conveyances, Corporations, Remedies, Oppression, Civil Procedure, Judgments, Enforcement, Procedural and Natural Justice, Sufficiency of Reasons, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Labatt Brewing Co. v. NHL Enterprises Canada L.P., 2011 ONCA 511, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401, R. v. R.E.M., 2008 SCC 51, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, R. v. G.F., 2021 SCC 20, Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388
FACTS:
The appellant DGA North American Inc. (“DGA NA”), and the respondent, Marketology Media Inc. (“Marketology”), were parties to a contract which was terminated by DGA NA. Marketology sued DGA NA in connection with the termination of the contract, which proceeded to arbitration. The arbitrator found DGA NA liable for breach of contract and issued an award in favour of Marketology. Marketology then brought an application to recognize the award, which the court granted, recognizing the award as binding and enforceable as if awarded in the Superior Court.
Marketology then brought an action alleging that certain transfers of property were fraudulent conveyances, and that they were oppressive. The two claims were linked. Marketology’s primary position was that the conduct was oppressive because the transfers to Altaris and DGA Fulfillment Services were for the purpose of defeating, hindering, delaying, or defrauding creditors. The trial judge did not decide whether the transfers were fraudulent conveyances but allowed the claim of oppression on a basis that was neither pleaded nor explored in the evidence.
The appellants argued that the trial judge properly dismissed the fraudulent conveyance claim and that the judgment for oppression could not stand because it was premised on a ground not advanced by the respondent. Alternatively, they submitted that a new trial was required. Marketology asked the Court to enter a finding of a fraudulent conveyance and to uphold the judgment based on the evidence that was before the trial court.
ISSUES:
1. Did the trial judge properly address the fraudulent conveyance claim?
2. Did the trial judge err in accepting the allegation of oppression?
3. Did the trial judge provide sufficient legal reasons for her decision?
HOLDING:
Appeal Allowed
REASONING:
1. No.
The Court found that the trial judge did not give effect to the claim of a fraudulent conveyance having been made, though her reasons for refusing to do so were unclear. The Court stated that the trial judge made numerous findings that were internally inconsistent and difficult to reconcile, which was not aided by the legal analysis. The trial judge expressly referred to the “badges of fraud” that were relevant in assessing fraudulent intent, but she failed to apply those criteria to the facts, or otherwise engage with the legal test. Her reasons on the issue of fraudulent conveyance were more conclusory than explanatory.
2. Yes.
The Court determined that based on the pleadings, there was arguably no path by which the trial judge could reject the allegation of fraudulent conveyance yet accept the allegation of oppression. The two were inextricably linked; they were alternate characterizations of the same act of wrongdoing. Marketology argued that the transfers of funds were fraudulent conveyances and, for that reason, oppressive. The trial judge, on her own initiative, offered a different theory of oppression, one that had not been pleaded or argued. The Court agreed with the appellants that the findings of the trial judge reflected error, and that the onus was on the respondent to identify the expectation it claimed was violated, especially when this expectation was said to apply in particular circumstances.
The trial judge focused, not on the transfers, but rather on a reasonable expectation that a reserve fund be created. However, a reserve was not an issue raised in the pleadings in argument, and the parties were not given an opportunity to address the issue. She did not identify the nature, timing, or quantum of such a fund, with the result that the remedy rested on a notional, abstract expectation with no concrete evidentiary support. The Court found that the trial judge committed an error of law, and proceeded in a manner that was procedurally unfair, by deciding the case on a basis that was not “anchored in the pleadings, evidence, positions or submissions of any of the parties.” That type of error displaced deference and by itself warranted appellate intervention.
3. No.
The Court agreed with both the appellants and respondent that the reasons of the trial judge were deficient, and that the reasons failed to chart a logical path from premise to conclusion. There were inconsistent findings made. Accordingly, as it was not clear how the trial judge arrived at certain conclusions, the reasons did not permit meaningful appellate review. They were legally insufficient.
The Court disagreed with the respondent’s argument that, while the reasons were deficient, the Court should substitute findings that the impugned transfers were fraudulent conveyances and were oppressive, as this conclusion was inescapable. First, it was not the role of the Court to try the case afresh, but rather the role of the trier of fact. Second, this case turned, at least in part, on findings of credibility. Those were uniquely within the realm of the trier of fact, and the reasons did not disclose how the trial judge reconciled the conflicting evidence. Third, it could not be said that any factual or legal conclusion was inescapable on the record before the trial court. The transfers raised questions. The appellants offered explanations. Whether those explanations are accepted is to be determined by a trier of fact upon consideration of the whole of the evidence. A new trial was therefore ordered.
Preston v Cervus Equipment Corporation, 2024 ONCA 804
[Hourigan, Madsen and Pomerance JJ.A.]
COUNSEL:
T. Carsten, for the appellant
K. Fox, for the respondent
Keywords: Contracts, Employment, Settlements, Releases, Interpretation, Corner Brook (City) v. Bailey, 2021 SCC 29, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53
FACTS:
This appeal concerned the scope of a release and indemnity and minutes of settlement (the “Settlement Documents”) executed by the respondent after he was terminated from his employment. The question before the motion judge was whether the Settlement Documents released the respondent’s claim for damages with respect to certain vested stock units he held.
The motion judge found that the Settlement Documents did not include a release of the claim to the vested stock units and, accordingly, the respondent was entitled to receive compensation for his vested units.
ISSUES:
Did the motion judge err in his interpretation of the Settlement Documents?
HOLDING:
Appeal Allowed
REASONING:
Yes. The Court held that the motion judge erred in law in his interpretation of the Settlement Documents by failing to give effect to clear and broad language regarding the scope of the claims being released. In the Court’s view, the motion judge made three extricable legal errors in his analysis.
First, he allowed his interpretation of the factual matrix to overwhelm the actual wording of Settlement Documents and effectively rewrote the contract between the parties. In this regard, the Court rejected his conclusion that the statement that the release of stock units applied only to stock or share awards which have either not been awarded or not been redeemed. The parties could have specified this result but chose not to do so.
Second, the Court found that the motion judge’s reliance on the Supreme Court’s guidance in Corner Brook to the effect that broad releases may be narrowly construed was misplaced in the circumstances of the case at bar. The Court explained that while it is true that the Settlement Documents included a broad release of claims, the language regarding the release to claims for stock options and other share awards was specific.
Third, the Court held that it was not the province of a judge interpreting minutes of settlement to evaluate the economic benefits conferred under the settlement, absent a party being under disability.
In the Court’s view, the words of the Settlement Documents should be given their ordinary meaning, which included a release of any payments to be made under the stock unit Plan. The Court found that it was clear that the payment of the settlement funds was intended to cover, among other things, all claims and entitlements owed or accrued pursuant to any contract, including the respondent’s employment contract and the stock unit Plan. The Court further held that it was evident looking at the Settlement Documents that they were intended to be final and bring an end to the parties’ relationship and obligations.
Liquor Control Board of Ontario v. Ontario (Information and Privacy Commissioner), 2024 ONCA 803
[Roberts, Copeland and Dawe JJ.A.]
Counsel:
W. S. Challis, for the appellant, Information and Privacy Commissioner of Ontario
M. J. Dougherty and K. L. Ivory, for the respondent
Keywords: Public Law, Freedom of Information, Liquor Control, Administrative Law, Judicial Review, Standard of Review, Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 ss. 14, ss.18, ss. 52(3), (13), and 55(1), Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 s. 77(2), Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866, Northern Regional Health Authority v. Horrocks, 2021 SCC 42, Ball v. McAulay, 2020 ONCA 481, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, Kitmitto v. Ontario (Securities Commission), 2024 ONSC 1412, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67
FACTS:
This appeal originated out of a request for information under the Freedom of Information and Protection of Privacy Act (“FIPPA”). Two staff reporters from the Toronto Star requested that the respondent Liquor Control Board of Ontario (“the LCBO”) disclose the following records (“the requested records”):
1. The total annual number of recorded incidents of theft/shoplifting from the LCBO province-wide, 2008 to present; and
2. For each LCBO location in Toronto, the total number of recorded incidents of theft/shoplifting by month, January 2018 to present.
The LCBO denied the request, relying on the exceptions set out in ss. 14 (law enforcement), 18 (economic interests), and 20 (danger to safety or health) of FIPPA. In particular, the LCBO maintained that disclosure would endanger its economic interests and the safety of its employees and customers because it would allow thieves to evaluate the efficacy of its security measures and target vulnerable stores. The LCBO also maintained that disclosure would harm its reputation with consumers, which would adversely affect its competitive position vis-à-vis other alcohol retailers. The Toronto Star appealed the LCBO’s decision to the appellant, the Information and Privacy Commissioner of Ontario (“IPC”).
The adjudicator of the IPC did not uphold the LCBO’s decision to deny access to the requested records and ordered the LCBO to disclose them to the Toronto Star.
The LCBO’s application for judicial review to the Divisional Court was successful. A majority of the Divisional Court allowed the application and set aside the IPC’s order. The majority concluded that the IPC adjudicator’s decision was unreasonable because she made the following material errors: she misapplied the standard of proof with respect to the disclosure exemptions under FIPPA; she misapprehended or failed to take important evidence into account; and her reasons were inadequate.
The dissenting judge of the Divisional Court would have dismissed the application. She disagreed with the majority view and concluded that the adjudicator made no reversible error and that her decision was reasonable and entitled to deference.
ISSUES:
1. Did the adjudicator misapply the standard of proof with respect to the disclosure exemption under FIPPA?
2. Did the adjudicator misapprehend or failed to take important evidence into account?
3. Were the adjudicator’s reasons inadequate?
HOLDING:
Appeal allowed
REASONING:
1. No.
The Court agreed with the dissenting judge’s position that the IPC adjudicator applied the correct “could reasonably be expected to” standard of proof required under the exemption sections of FIPPA on which the LCBO relied upon.
The Court noted that when the IPC adjudicator’s reasons were read as a whole, it was clear that she applied the correct test. As the dissenting judge noted, the adjudicator did not require the LCBO to prove its alleged harms from the requested disclosure on a balance of probabilities, or to substantiate a causal connection or link beyond the “clear and direct connection between the disclosure of specific information and the injury that is alleged”, as instructed by the Supreme Court in Merck Frosst Canada Ltd. v. Canada (Health).
The Court disagreed with the LCBO’s argument that the adjudicator failed to measure the LCBO’s evidence against the “middle ground” between “merely possible” and “probable” required under the Supreme Court’s articulated standard of proof. The Court held that it was clear that the adjudicator applied the correct standard and dealt with the crux of the LCBO’s evidence relevant to its submissions.
The Court noted that the adjudicator was constrained by the statutory confidentiality provisions under FIPPA in how far she could articulate with greater specificity the LCBO’s confidential evidence, which was largely what it relied on to support its arguments about harm.
2. No.
The Court agreed with the dissenting judge that it was inappropriate to fault the adjudicator for not considering the changes to the statutory liquor licensing scheme and, in particular, s. 77(2) of the Liquor Licence and Control Act, 2019 (prohibition against disclosure of sales of liquor), on which the LCBO sought to rely. These statutory changes occurred after the parties’ submissions were made to the adjudicator but before her order was released.
The Court held that an adjudicator’s decision will not be found unreasonable for failing to address an issue or argument that was never before it: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61.
3. No
The Court did not agree that the adjudicator’s reasons were inadequate because she did not make specific reference to certain aspects of the LCBO’s non-confidential submissions. The LCBO’s contention that it would suffer harms if the records at issue were disclosed were largely contained in its confidential submissions. In any event, reasons must be assessed functionally and contextually, and the Court was not persuaded that the adjudicator’s failure to make more extensive reference to the LCBO’s non-confidential submissions about its position in the marketplace was a reversible error.
The IPC adjudicator’s decision was restored.
SHORT CIVIL DECISIONS
Grillone (Re), 2024 ONCA 806
[Miller, Harvison Young, and Gomery, JJA]
Counsel:
S. Grillone, acting in person
K. D. Kraft and M. Bascal, for the respondent, Bluecore Capital Inc.
Keywords: Bankruptcy and Insolvency, Civil Procedure, Orders, Variation, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended
Wu v. Toronto (City), 2024 ONCA 810
[Rouleau, Roberts and Favreau, JJA.]
Counsel:
P. Wu, acting in person
A. Barclay, for the respondent/moving party
Keywords: Civil Procedure, Vexatious Litigation, Rules of Civil Procedure, Rule 2.1, Vinczer v. 7084421 Canada Ltd., 2022 ONCA 400, Mohammad v. Springer Nature, 2024 ONCA 745, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720
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