Court Of Appeal Summaries (June 15-19, 2015)

Hello everyone. Below are summaries of this week's OCA civil decisions (non-criminal). Topics covered include contractual interpretation, child and spousal support payments, conversion, the equitable remedy of rectification, non-possessory liens, and the State Immunity Act.

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Metrolinx v Enbridge Gas Distribution 2015 ONCA 429

[MacPherson, Esptein, and Roberts JJ.A]

Counsel:

C. Sefton, M. Cowan for the appellant.

W. J. Earle, M. Furrow for the respondent.

Keywords: Contract Law, Contractual Interpretation

Facts:

Metrolinx purchased a corridor from Canadian National Railway (CN) on which Metrolinx operates a railway. Enbridge owns six gas pipelines that run along municipal road allowances and cross under the railway. Metrolinx asked that the pipelines be relocated, and a dispute arose over which party should bear the costs.

CN and Enbridge's predecessor had an agreement that provided that Enbridge was responsible for relocating the pipelines. In the sale from CN to Metrolinx, Metrolinx assumed all of CN's rights and obligations, including the ability of Metrolinx to require Enbridge to pay the relocation costs in issue.

The application judge ordered Enbridge to pay. Enbridge appealed.

Issues:

(1) Did CN only have a contractual right to require Enbridge to pay to relocate pipelines on CN owned lands, not municipal road allowances? No.

(2) If CN did have these rights, were they conveyed to Metrolinx? Yes.

Holding:

Appeal dismissed.

Reasoning:

The decision rests on the interpretation of three complex agreements between CN, Metrolinx, and Enbridge.

Contractual interpretation is a question of mixed fact and law as it requires an examination of the agreement in issue as well as the surrounding circumstances known to the parties at the time the contract was entered into.

The interpretation urged by Enbridge of certain relevant terms in the agreements would represent a change in the historical financial arrangements between the parties of such significance that the agreements would contain express wording to this effect.

The wording of the relevant documents supports the application judge's interpretation. Furthermore, the application judge's reasoning that the intention of CN and Metrolinx when they entered into their contracts that Metrolinx would fully "step into the shoes" of CN and assume all of CN's rights and obligations makes commercial sense.

Finally, the fact that the contracts at issue arose in a federally regulated context does not alter the interpretation of the agreements in issue. They are valid contracts, and remain so whether or not the relevant federal regulations continue to govern either of the parties.

Harrison v. Arrocha, 2015 ONCA 432

[Simmons, Cronk and Blair JJ.A.]

Counsel:

A. Pyper, for the appellant.

I. I. Frisch, for the respondent.

Keywords: Endorsement, Family Law, Retroactive Child Support, Spousal Support, Appellate Court Intervention, Van de Perre v. Edwards, Filing Fresh Evidence on Appeal

Facts:

The appellant appeals from an order declaring G.A. to be a child of the marriage, and requiring that the appellant pay Guideline child support so long as the child remains a child of the marriage, retroactive child support fixed at $10,000 and spousal support in the amount of $959.00 per month for one year.

Issues:

(1) Did the trial judge err in finding that the child is a child of the marriage?

(2) Did the trial judge err in her findings regarding the amount of child support or spousal support?

Holding:

The appeal is dismissed and leave to appeal costs is denied. Costs of the appeal are to the respondent on a partial indemnity scale fixed in the amount of $7500, inclusive of disbursements and applicable taxes.

Reasons:

(1) No, the trial judge did not err in finding that the child is a child of the marriage. The trial judge reviewed the evidence and the relevant authorities and made detailed findings supporting her conclusions. Since the applicant could not show that the trial judge committed an error in principle, a serious misapprehension of the evidence, or an award that is clearly wrong, an appellate court must not intervene.

(2) No, the trial judge did not err in her decision on the amount of child and spousal support the applicant is required to pay. The additional evidence of the applicant's 2013 Notice of Assessment from Revenue Canada lacks the necessary cogency to warrant admission on appeal. In any event, the trial judge's order sets out a procedure for adjusting the child support payable under the order based on annual production of the appellant's income tax return and notice of assessment.

Canada Forgings Inc. v. Riverside Excavating (Niagara) Ltd., 2015 ONCA 433

[MacPherson, Epstein and Roberts JJ.A.]

Counsel:

M. Bordin, for the appellant.

A. J. Butcher, for the respondent.

Keywords: Endorsement, Tort of Conversion, Damages, Deference, Evidence, Palpable and Overriding Error, Costs

Facts:

The appellant, International Marine Salvage Inc. ("IMS"), appeals from the judgment of the Superior Court of Justice, granting judgment to the respondent, Canada Forgings Inc. ("CF"), in the amount of $270,735 for committing the tort of conversion of several very large metal die blocks. The appellant does not appeal the trial judge's conclusion that it committed the tort of conversion. It does appeal, on three grounds, the trial judge's damages assessment.

Issues:

(1) Did the trial judge err in awarding replacement costs for the 26 missing die blocks?

(2) Did the trial judge misapprehended evidence and commit a palpable and overriding error in finding that IMS purchased approximately 90% of the missing die blocks?

(3) Did the trial judge err in compensating CF $7, 500 for lost time and productivity as a result of IMS's conversion of CF's die blocks?

Held:

The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $15,000, inclusive of disbursements and applicable taxes.

Reasoning:

(1) No. The die blocks were an unusual, bordering on unique, product. It follows that the trial judge did not err by awarding damages on the basis of replacement cost.

(2) No. The evidence supports the trial judge's conclusions. In any event, the important legal point is that the conclusion is far removed from being a palpable and overriding error.

(3) No. There is a direct connection between these employee costs and IMS's receipt of the stolen die blocks, which is the basis for the uncontested finding that IMS committed the tort of conversion.

York (Regional Municipality) v. LeBlanc, 2015 ONCA 431

[Juriansz, Lauwers and Huscroft JJ.A.]

Counsel:

D. C. Boswell and J. Vizzaccaro, for the appellants.

D. O. Smith and A. Collier, for the respondents.

Keywords: motion to dismiss, jurisdiction, waste, fraud, negligent misrepresentation, conspiracy

Facts: The respondent is The Regional Municipality of York...