Court Of Appeal Summaries (January 19-23, 2015)

Hello again, everyone. Below are summaries for this week's Ontario Court of Appeal civil decisions (non-criminal). Noteworthy topics include conflict of laws, charging orders under the Solicitors Act, limitation periods, spousal support, construction liens, administrative dismissal for delay, corroborative evidence, and set-offs in the context of bankruptcy and insolvency.

Wishing everyone a nice weekend.

Ibrahim v. Robinson, 2015 ONCA 21

[Weiler, Feldman and Benotto JJ.A.]

Counsel: B. Chambers, for the appellant M. Greenaway, for the respondents

Keywords: Civil Procedure, Motor Vehicle Accident, Jurisdiction, Forum of Necessity, Van Breda v. Village Resorts Limited, West Van Inc. v. Daisley

Facts: This is an appeal from the order of Justice Steven Rogin of the Superior Court of Justice, dated February 21, 2014. The appellant is the defendant in an MVA action commenced in Windsor, Ontario. The accident occurred on January 7, 2008, in Michigan. Following the expiry of the three-year limitation period in Michigan, the appellant brought a motion to dismiss the Ontario action for want of jurisdiction. The motion judge did not dismiss the action, relying on the forum of necessity exception referred to by the Court of Appeal in Van Breda v. Village Resorts Limited, 2010 ONCA 84, 98 O.R. (3d) 721. The motion judge accepted that under the test for assuming jurisdiction as it existed before the Supreme Court's decision in Van Breda and when this action was commenced, there may well have been sufficient connecting factors to Ontario for an Ontario court to assume jurisdiction. He found that, because the appellant delayed serving the jurisdiction motion until it was too late for the respondents to sue in Michigan, the appellant effectively denied the respondents access to the Michigan courts and may have lulled them into a false sense of security. He concluded that fairness and access to justice for the plaintiffs called for the court to assume jurisdiction based on the forum of necessity exception. The appellant brought a subsequent motion before the same motion judge seeking to introduce further evidence of correspondence and emails to try to demonstrate that the respondents were not misled about the appellant's intention to challenge jurisdiction. The motion judge endorsed the record that the new evidence was available on the original motion and the appellant's only remedy was to appeal. The appellant appealed these orders.

Issues: (1) Did the motion judge err in assuming jurisdiction over this action? (2) Did the motion judge err in refusing to admit the fresh evidence?

Holding: Appeal dismissed.

Reasoning: (1) No. To interfere with the motion judge's discretionary decision in this case, the Court would have had to be satisfied that the motion judge misdirected himself, gave no or insufficient weight to relevant considerations, or came to a decision that is so clearly wrong that it amounts to an injustice. The motion judge's decision did not meet this threshold. The Court noted that had the motion judge treated the expiry of the Michigan limitation period as a sufficient condition for invoking the doctrine of necessity, then this court's comments in West Van Inc. v. Daisley, 2014 ONCA 232, 119 O.R. (3d) 481 — that the expiry of the limitation period in the proper foreign forum does not make Ontario the forum of necessity — would speak strongly in favour of allowing the appeal. However, in this case, the expired limitation period was not the only basis for the motion judge's exercise of his residual discretion to assume jurisdiction. He also based his decision on considerations of fairness and access to justice, including the fact that the change in the common law test for assumed jurisdiction occurred only after the expiry of the foreign limitation period.

In addition, the motion judge took into consideration the appellant's unexplained lengthy delay in bringing the jurisdiction motion until after the Michigan limitation period had expired, which may have lulled the plaintiffs into a false sense of security about the jurisdiction issue. Given the additional factors that influenced the motion judge's decision, that decision is not inconsistent with the Court's comments in West Van, and should be accorded deference.

(2) The Court saw no basis to interfere with the motion judge's decision on the second motion not to admit the proposed fresh evidence on the basis that it was all available at the time of the original motion. The proposed fresh evidence would not have assisted the appellant.

Karrys v. Karrys, 2015 ONCA 17

[Doherty, Juriansz and Huscroft JJ.A.]

Counsel: R. G. Schipper, for the appellant Torkin Manes LLP P. J. Karrys, acting in person D. C. Moore, for the respondent, Karrys Bros., Limited

Keywords: Civil Litigation, Solicitors Act, ss 34(1), Charging order

Facts: The appellant (a firm of solicitors) appealed an order of the motion judge declaring certain payments to be made to the respondent pursuant to a settlement agreement were not subject to three charging orders that were in the solicitors' favour. The three charging orders were granted to the appellant for the work it had done in 2004, representing the respondent in three proceedings in connection with shareholder dispute with his cousin. These three proceedings and the larger dispute remained unresolved when the respondent terminated the appellant's retainer in October 2007.

In January 2009, the appellant obtained the charging orders on consent, which gave it a first charge on any proceeds of settlement or any proceeds after judgment payable to the respondent "in respect of" matters on which the appellant had represented him. The respondent terminated the appellant's retainer, yet continued the dispute with his cousin and commenced additional lawsuits. In February 2014, the respondent and his cousin entered into a settlement that resolved all lawsuits and legal proceedings between them, as well as matters involving third parties. The settlement agreement contemplated immediate and future payments to the respondent.

The dispute at hand revolved around whether the charging orders applied to these payments. The motion judge granted the respondent's motion for a declaration that the appellant was not entitled to these disputed payments. The motion judge observed that a solicitor must demonstrate the property was recovered or preserved through his or her instrumentality to obtain a charging order on property. The motion judge held that although the settlement agreement dealt in part with proceedings on which the appellant had acted, the disputed payments arose out of the settlement of the subsequent litigation; therefore, the disputed payments were not subject to the charging orders. The appellant argued that the motion judge failed to recognize that charging orders should be given a broad and expansive scope.

Issue: Did the motion judge err in finding that the disputed payments were not subject to the charging orders?

Holding: Appeal dismissed.

Reasoning: The record before the motion judge provided ample support for his conclusions. He considered the parties involved in the proceedings, the subject matter, the time at which the proceedings were launched and when the subject events took place. The motion judge found there was no link between the disputed payments and the appellant's work. The Court was not persuaded to interfere with the motion judge's conclusion.

O'Dowda v Halpenny, 2015 ONCA 22

[Weiler, Feldman and Benotto JJ.A]

Counsel: S. Dewart, for the appellants. J. Stirton, for the respondents.

Keywords: Civil Litigation, Negligence, Negligent Design, Summary Judgment, Limitation Periods, Limitations Act, 2002

Facts: The appellants purchased a house from the Halpennys in 2003 and discovered structural problems shortly thereafter. They retained experts in the fall of 2003 and the...