Rai v Bhalla, involved a dispute around the appointment of attorneys for property. The court below dismissed the application for various relief regarding payments that had been made after the applicant withdrew their challenge to the powers of attorney and their parent’s capacity in granting the POAs. The Court dismissed the appeal, as the withdrawal of challenge to the POAs left no issue to be litigated.
Lui v Chan was a failed motion seeking an extension of time to appeal a MedMal case that had been dismissed on a motion for summary judgment. The Court canvassed the law regarding an extension of time to appeal in detail, and held that the “justice of the case” did not warrant the granting of the extension, as the appeal was devoid of merit.
Table of Contents
Civil Decisions
Rai v Bhalla, 2024 ONCA 692
Keywords: Wills and Estates, Substitute Decisions, Powers of Attorney, Capacity, Inter Vivos Transfers, Gifts, Civil Procedure, Costs, Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 3, 42
Lui v Chan, 2024 ONCA 699
Keywords: Torts, Negligence, MedMal, Fraud, Fraudulent Misrepresentation, Battery, Infliction of Mental Suffering, Breach of Fiduciary Duty, Breach of Contract, Civil Procedure, Summary Judgment, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, rr. 57.01, 61.04(1), Liu v. Chan, 2024 ONSC 3221, Deokaran v. Law Society of Ontario, 2023 ONCA 602, Bratti v. Wabco Standard Trane Inc. (1994), 25 (Ont. C.A.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 1250264 Ontario Inc. v. Pet Value Canada Inc., 2015 ONCA 5, Collins v. Tiveron, 2024 ONCA 447, Ash v. Ontario (Chief Medical Officer), 2024 ONCA 398, Beazley v. Johnston, 2024 ONCA 430, Beard, Winter LLP v. Shekhdar, 2016 ONCA 493, Overtveld v. Overtveld, 2021 ONCA 930, Robson v. Law Society of Ontario, 2023 ONCA 709, Paulsson v. University of Illinois, 2010 ONCA 21, Issasi v. Rosenzweig, 2011 ONCA 112, Duca Community Credit Union Ltd. v. Giovanni et al. (2001), 142 O.A.C., Auciello v. Mahadeo, 2016 ONCA 414, Correct Building Corporation v. Lehman, 2022 ONCA 723, Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks), 2024 ONCA 328, Pantoja v. Belilla, 2023 ONCA 757, Opara v. Ciamarra, 2023 ONCA 731, Leybourne v. Powell, 2023 ONCA 421, Javid Estate v. Watson, 2023 ONCA 665, Suserski v. Nurse, 2008 ONCA 416
Short Civil Decisions
Lewis v Uber Canada Inc, 2024 ONCA 702
Keywords: Taxation, GST, Rebates, Civil Procedure, Jurisdiction, Excise Tax Act, RSC. 1985, c E-15, Federal Court of Appeal in Merchant Law Group v Canada Revenue Agency, 2010 FCA 184, Sorbara v Canada (Attorney General), 2009 ONCA 506
Angel Capital Finance Inc v Jawaid, 2024 ONCA 701
Keywords: Contracts, Real Property, Mortgages, Remedies, Power of Sale, Civil Procedure, Default Judgments, Procedural Fairness, Collateral Attack, Roblin v Drake, [1938] OR 711 (CA), Simmonds v Simmonds, 2013 ONCA 479
CIVIL DECISIONS
Rai v Bhalla, 2024 ONCA 692
[Zarnett, Monahan and Pomerance JJ.A.]
COUNSEL:
R. McGlashan and M. L. Solmon, for the appellant
T. Rynard, for the respondent A.B
F.M. S.B. Hossain, for the respondent N.R
Keywords: Wills and Estates, Substitute Decisions, Powers of Attorney, Capacity, Inter Vivos Transfers, Gifts, Civil Procedure, Costs, Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 3, 42
FACTS:
This appeal began as an application by the appellant who sought numerous heads of relief in relation to his mother, the respondent N.R, his late father, the respondent B.R, and his sister, the respondent A.B.
The appellant initially identified 23 heads of relief, summarized by the motions judge as falling into 8 categories. These included (1) an order removing A.B as attorney for N.R under 2021 and 2023 powers of attorney signed by N.R (the “2021 and 2023 Powers of Attorney”); (2) an order removing N.R as attorney for B.R; (3) an order appointing the appellant and a brother as guardians for B.R; and (4) an order requiring A.B to account for and to repay their parents N.R and B.R any funds taken by A.B or given to her by either parent on the grounds of undue influence.
Approximately one week before the hearing of the application, the appellant abandoned his challenges to the powers of attorney granted to the respondents N.R and B.R and no longer sought to be appointed as the respondent B.R’s guardian. After having already amended his original notice of application once, the appellant sought through a reply factum more limited relief, and at the hearing before the application judge narrowed it further.
The application judge reasoned that, with the relief relating to the powers of attorney and guardianship having been abandoned, and applicant’s counsel having confirmed that the respondent N.R capacity was not in issue, none of the relief sought by the applicant remained available to him as a matter of law. In particular, the application judge explained that, because the appellant was no longer challenging the 2021 or 2023 Powers of Attorney or N.R’s capacity, the validity of N.R’s capacity assessment, B.R’s health and financial status, and the appointment of s. 3 counsel were no longer relevant to any live issue in the application. The application judge pointed out that once the parents’ capacity was not at issue, the remaining financial disputes fell by the wayside. The application judge also denied a request by the appellant to order an accounting by A.B under s. 42 of the Substitute Decisions Act, 1992 (“SDA”) since such relief had not been sought in the application and the evidentiary record did not permit the court to properly assess the request.
The application judge concluded that, with no pleading setting out cognizable causes of action, there was nothing left for him to decide and, accordingly, he dismissed the application. He also ordered the appellant to pay costs on a partial indemnity basis in the amount of $100,000 to each of A.B and N.R.
The appellant argued that the judge erred in several aspects. The appellant also sought leave to introduce fresh evidence and leave to appeal the costs order.
ISSUES:
1. Did the application judge err by:
a. failing to order an accounting by N.R when such an accounting had been ordered by the case management judge?
b. failing to consider evidence that A.B had exercised undue influence over N.R?
c. not taking into account the fact that the appellant had previously been a caregiver for his parents and been named by them as an attorney in prior powers of attorney?
2. Should leave to appeal the costs order be granted?
HOLDING:
Appeal dismissed.
REASONING:
1. No to all three questions.
The Court held that the appellant failed to explain how the application judge erred in reaching the result. The Court noted that the appellant failed to address the central defect in his application identified by the application judge, namely, that the relief he sought was not relevant to any live issue before the Court in this proceeding.
The Court explained that the case management judge had previously ordered N.R to provide evidence supporting the allegation that the appellant had misappropriated $640,000 from her. But this order had been made in the context of a challenge to the 2021 and 2023 Powers of Attorney, which were no longer in issue. The application judge’s refusal to order an accounting under s. 42 of the SDA was a discretionary decision that was open to him based on the pleadings and the evidentiary record, and the Court held that he made no palpable or overriding error.
The Court held that the proceeding’s character changed over time as the appellant abandoned various aspects of the application, only to raise new issues not before the Court. Ultimately, there were no active pleadings upon which to adjudicate. It was on this basis that the application judge dismissed the application, and the Court saw no reversible error in his approach. Nor did the Court find any basis on which to admit fresh evidence tendered by the appellant.
2. No.
The appellant sought leave to appeal the costs order on the basis that, while the parties incurred similar full indemnity costs, a substantial portion of his costs were in the form of disbursements rather than legal fees. He further argued that the application judge accepted both respondents’ bills of costs without analyzing the dockets, considering overlap between law firms, or the reasonableness of the time claimed.
In the Court’s view, the application judge correctly applied the principles of proportionality and reasonableness in coming to his costs determination. He found nothing unreasonable in the costs outlines and bill of costs filed by all parties, noting that this was a fact-based case with very substantial productions and a moving target of relief being sought. The appellant claimed that the respondents’ costs were inflated based on the audio recording of a conversation in which N.R allegedly said that she had not had much interaction with her legal representatives. The application judge considered the surreptitious recording of N.R but gave no weight to it, finding that the events listed in her bill of costs were all assessable expenses many of which would not have needed active communication with her to have been incurred.
Lui v Chan, 2024 ONCA 699
[Trotter J.A.]
COUNSEL:
S.L., acting in person
A. Patenaude, for the responding party
Keywords: Torts, Negligence, MedMal, Fraud, Fraudulent Misrepresentation, Battery, Infliction of Mental Suffering, Breach of Fiduciary Duty, Breach of Contract, Civil Procedure, Summary Judgment, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, rr. 57.01, 61.04(1), Liu v. Chan, 2024 ONSC 3221, Deokaran v. Law Society of Ontario, 2023 ONCA 602, Bratti v. Wabco Standard Trane Inc. (1994), 25 (Ont. C.A.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 1250264 Ontario Inc. v. Pet Value Canada Inc., 2015 ONCA 5, Collins v. Tiveron, 2024 ONCA 447, Ash v. Ontario (Chief Medical Officer), 2024 ONCA 398, Beazley v. Johnston, 2024 ONCA 430, Beard, Winter LLP v. Shekhdar, 2016 ONCA 493, Overtveld v. Overtveld, 2021 ONCA 930, Robson v. Law Society of Ontario, 2023 ONCA 709, Paulsson v. University of Illinois, 2010 ONCA 21, Issasi v. Rosenzweig, 2011 ONCA 112, Duca Community Credit Union Ltd. v. Giovanni et al. (2001), 142 O.A.C., Auciello v. Mahadeo, 2016 ONCA 414, Correct Building Corporation v. Lehman, 2022 ONCA 723, Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks), 2024 ONCA 328, Pantoja v. Belilla, 2023 ONCA 757, Opara v. Ciamarra, 2023 ONCA 731, Leybourne v. Powell, 2023 ONCA 421, Javid Estate v. Watson, 2023 ONCA 665, Suserski v. Nurse, 2008 ONCA 416
FACTS:
The moving party brought a motion for an extension of time to file an appeal from the dismissal of his action against his urologic surgeon, the respondent. The moving party was diagnosed with prostate cancer. On August 7, 2015, the respondent performed an operation to remove the moving party’s prostate. The moving party subsequently came to believe that he never had cancer in the first place, and that the respondent manipulated the results of blood tests measuring his PSA levels to make it appear that they were on an upward trend, when they were not. The moving party also believed that the respondent manipulated the results of a prostate biopsy.
The moving party sued the respondent, alleging fraud, fraudulent misrepresentation, battery, infliction of mental suffering, breach of fiduciary duty, negligence, and breach of contract. The moving party and the respondent brought dueling summary judgment motions. The motion judge dismissed the moving party’s motion and allowed the respondent’s motion, dismissing the claim against the respondent in its entirety.
The moving party attempted to serve the respondent’s counsel with a Notice of Appeal but missed the deadline. In his draft Notice of Appeal, the moving party alleged no errors of law. Instead, he re-argued factual issues raised before the motion judge. These claims were repeated in the moving party’s Notice of Motion for an Extension of Time, in his affidavits filed in support of the motion, and in his factum.
ISSUES:
Did the “justice of the case” require that the moving party’s motion for an extension of time be allowed?
HOLDING:
Motion dismissed.
No. The Court cited Bratti v. Wabco Standard Trane Inc., where Laskin J.A. said that “[w]hile appellate courts have considered a number of different factors in determining whether to grant leave to extend the time for appealing, the governing principle is simply whether the ‘justice of the case’ requires that an extension be given.” The Court relied on Enbridge Gas Distribution Inc. v. Froese, where Gillese J. articulated the following test: “The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay in filing; (c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and (d) the merits of the proposed appeal. See also 1250264 Ontario Inc. v. Pet Value Canada Inc.; Collins v. Tiveron; and Ash v. Ontario (Chief Medical Officer).
The Court explained that each of the factors in Enbridge Gas take on varying degrees of significance, depending on the nature of the case. In this case, the Court held that the most contentious issue was the merits of the proposed appeal. The Court went on to apply each of the factors to this case.
(a) Intention to Appeal
The moving party submitted that he was entitled to an extension of time because he missed the deadline by only a few days due to a mistake about the commencement of the appeal period. The moving party contended that he intended to appeal within 30 days.
The Court found that there was little in the moving party’s materials that addressed this issue. In his factum, the moving party wrote that he “disapproved” of the motion judge’s decision “but had been hesitant to appeal” because of his fear that he might receive “another unfair and partial decision.” He said that, “finally”, and with confidence in the legal system, “I took the action” and delivered his Notice of Appeal to the respondent’s law firm on July 15, 2024.
Counsel for the respondent submitted that the moving party had not established that he formed the intention to appeal within the time period. Counsel for the respondent had numerous discussions with the moving party after the release of the motion judge’s reasons and during the costs proceedings. He did not signal an intention to appeal. He did so only after the release of the Costs Endorsement. Counsel submitted that the moving party decided to appeal because of the substantial costs award that was made against him.
The Court held that the record was less than clear on this issue. Nonetheless, the Court accepted the moving party’s claim that he intended to appeal within 30 days of the release of the motion judge’s decision on the merits.
(b) Length of Time and Explanation for the Delay
The deadline to file the Notice of Appeal was July 8, 2024. The moving party served the Notice of Appeal on July 12, 2024. The delay was short. The moving party moved with dispatch after he realized that he had missed the deadline. Counsel for the respondent accepted this. However, he submitted that the moving party’s explanation for this short delay was inadequate and that, as an experienced self-represented litigant, it was incumbent upon the moving party to familiarize himself with the rules of court.
The Court explained that in Beazley v. Johnston, the Court faced a similar situation in the context of a failed medical malpractice action. Simmons J.A. found this factor was “either neutral or slightly favour[ed] granting an extension.” The Court took the same approach.
(c) Prejudice to the Respondent
Counsel for the respondent submitted that an order granting the moving party an extension of time would facilitate the perpetuation of the moving party’s baseless, yet serious, allegations of incompetence and dishonesty, dating back many years. He submitted that he was also prejudiced by the moving party’s litigation style, which “includes serving multiple versions of his Notice of Appeal and Notice of Motion, with different hearing dates and no explanation as to why and how the documents were amended.” This was said to be “prejudicial to the respondent’s rights as a litigant.”
In the Court’s view, the respondent did not identify any prejudice that arose from the delay in filing a Notice of Appeal. However, the Court accepted that giving further life to the moving party’s persistent and unfounded allegations against the respondent would cause further distress.
The Court accepted that it may take into account the litigation behaviour of an applicant seeking an extension of time to appeal: Beard, Winter LLP v. Shekhdar; and Overtveld v. Overtveld. However, the Court held that the moving party’s approach, as a self-represented litigant, did not rise to this level. Although the moving party’s repetitive style of pleading may have been frustrating to his opponent, the respondent was represented by experienced litigation counsel who were capable of handling this approach. The Court noted that, in appropriate cases, this is a matter better dealt with through costs consequences.
(d) The Merits of the Proposed Appeal
The Court explained that the merit of a proposed appeal is the most important consideration in deciding whether an extension of time should be granted: Deokaran; Robson v. Law Society of Ontario; and Paulsson v. University of Illinois. The Court stated that the “merit” of an appeal has a precise meaning in this context, and that when an appeal would appear to have little merit, absent prejudice to the opposing party, and in light of the other factors that must be balanced, an extension of time may still be warranted: Auciello v. Mahadeo; and Correct Building Corporation v. Lehman.
Citing Sabatino v. Posta Ital Bar Inc., the Court noted that there are cases that are completely devoid of merit: Reid v. College of Chiropractors of Ontario; Wardlaw v. Wardlaw; Sutherland Lofts Inc. v. Peck. The Court explained that courts must be mindful of the cost of litigation and unnecessary expenditures of time but all the while preserving the need to ensure that the dictates of the justice of the case are met: Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks); Pet Value Canada Inc.; Pantoja v. Belilla; and Opara v. Ciamarra.
In the Court’s view, the moving party’s proposed appeal was completely devoid of merit; it was doomed to fail. The moving party did not identify any legal errors on the part of the motion judge; instead, he sought to re-argue factual matters decided against him. Appeals based on overturning a trial or motion judge’s factual findings have virtually no chance of success on appeal: Leybourne v. Powell; Javid Estate v. Watson.
Looking at the bigger picture, the Court held that the moving party’s multi-pronged medical malpractice case was not supported by any expert evidence, admissible or otherwise. Indeed, the moving party’s own expert was supportive of the medical care provided by the respondent. The Court saw no basis upon which these conclusions could be challenged successfully on appeal: Suserski v. Nurse.
(e) The “Justice of the Case”
Returning to the overarching question on an application for an extension of time – “the justice of the case” – the Court acknowledged that the moving party did not miss the 30-day deadline by much, explaining that he made a common mistake about when the time period starts to run. The moving party attempted to correct this situation quite promptly. However, the Court held that these factors were overwhelmed by the complete lack of merit in his proposed appeal. In the circumstances, “the justice of the case” required that the completely unfounded allegations against the respondent’s competence and integrity come to an end: Sabatino; and Opara.
SHORT CIVIL DECISIONS
Lewis v Uber Canada Inc, 2024 ONCA 702
[Lauwers, Zarnett and Pomerance JJ.A.]
COUNSEL:
R. Ben and S. Birman, for the appellant
D. M. Peebles, G. P. Kerr and E. Bruneau, for the respondents
Keywords: Taxation, GST, Rebates, Civil Procedure, Jurisdiction, Excise Tax Act, RSC. 1985, c E-15, Federal Court of Appeal in Merchant Law Group v Canada Revenue Agency, 2010 FCA 184, Sorbara v Canada (Attorney General), 2009 ONCA 506
Angel Capital Finance Inc v Jawaid, 2024 ONCA 701
[Lauwers, Zarnett and Pomerance J.J.A.]
COUNSEL:
G. Cadogan, for the appellant
W. Morris and E. Oghenejakpor, for the respondent
Keywords: Contracts, Real Property, Mortgages, Remedies, Power of Sale, Civil Procedure, Default Judgments, Procedural Fairness, Collateral Attack, Roblin v Drake, [1938] OR 711 (CA), Simmonds v Simmonds, 2013 ONCA 479
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