Court Of Appeal Summaries (August 31 – September 4, 2015)

There were four civil decisions released by the Court of Appeal this week. Areas covered include condo law, administrative dismissals for delay, and two custody and access decisions in high conflict cases (one very high conflict).

I hope everyone has a great Labour Day Long Weekend.

Civil Case Decisions

Durham Condominium Corporation No. 45 v. Swan

Counsel:

Howard Wright, for the appellant Timothy Duggan, for the respondent

Keywords: Real Estate, Condominium Law, Condominium Act, 1998, s. 37(1) and s.38(1), Vexatious Litigant

Facts:

The appellant is a former director and a unit owner of the respondent condominium corporation. The appellant appeals with leave from a costs order made against him in the from an application brought against him by the respondent.

The respondent sought costs on a full indemnity basis in the amount of $198,880.92 or on a partial indemnity basis in the amount of $126,855.22. The appellant claimed he was indemnified against costs under the By-laws of the condominium corporation and ss. 38(1) of the Condominium Act, 1998. The application judge ordered appellant to pay costs of $45,000 to the respondent on partial indemnity scale. The respondent brought an application seeking the following orders under the Courts of Justice Act:

A declaration that the appellant is a vexatious litigant; A declaration that the respondent's Board of Directors has the authority to enter into contracts for third party management of the condominium; A declaration that the present property management company contract with MCD Enterprises (MCD) is binding; and An injunction prohibiting the appellant from having any contact with the respondent's Board of Directors, MCD, and its principal, Catherine Debbert. Additionally, the respondent also sought further relief under the Condominium Act, 1998: (i) a declaration finding that the appellant, as a Director with the condo corporation, failed to carry out his duties and exercise the care and diligence required in that office according to subsection 37(1) of the Act; and (ii) an order that the appellant remove, at his expense, the satellite dish installed on the common elements.

The Appellant brought a cross application. The application judge dismissed the respondent's application that the appellant be declared a vexatious litigant and denied its application for an injunction to bar the appellant from contacting the board of directors. The judge made several findings against the appellant. Specifically, the application judge found that the appellant failed to exercise the care, and diligence and skill that a reasonably prudent person would exercise in carrying out his duties as director of the condominium. The appellant's cross application was dismissed in its entirety and the application judge found that the appellant's actions put the proper management of the condominium at risk.

Issues:

Is the appellant entitled to be indemnified for the costs and expenses he incurred in the litigation?

Holding:

Appeal Allowed. Costs order set aside, and matter is remitted to the application judge.

Reasoning:

The Court held that it is at a significant disadvantage in dealing with this matter. Neither party in this case took out a judgment following the application judge's decision. There was considerable uncertainty during oral argument as to the nature of the judgment that would have been issued. The court also ruled that it was unclear how the application judge came to the amount of $45,000, or what that amount covers.

The court stated that the main difficulty is that the application judge's decision on the applicability of the indemnity provided by the respondent's by-law is ambiguous. The court remitted the matter back to the application judge to determine the following:

1) applicability of ss.37(1)(a) and (b) of the Condominium Act, 1998 and the by-law to the facts of the case;

2) whether, and the extent to which, the indemnity applies;

3) the quantum of costs and expenses, if any, covered by the indemnity; and

4) the breakdown of the costs as between the application and the cross-application.

Subsequently, the court found that the appellant is entitled to costs on this appeal of $6,000

Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited

[Sharpe, Lauwers and van Rensburg JJ.A.]

Counsel:

Robin B. Cumine, Q.C. and Kirryn G. Hashmi, for the appellant

Christopher J. Rae, for the respondent

Keywords: Civil Procedure, Rules of Civil Procedure, Rule 48.11, Administrative Dismissal For Delay, Motion to Restore Action Refused, Standard of Review of Discretionary Order on Appeal

Facts:

The Appellant brings this appeal to restore the action to the trial list under Rule 48.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Appellant commenced this action seven years ago in March, 2007. The Appellant's claim is for $125,000 for negligence respecting a fire that took place in August, 2006 on railway lands owned by the Respondent which spread to the Appellant's business. The Respondent defended the action and commenced third party proceedings against the Appellant's landlords, which was ultimately dismissed in August, 2009.

On October 27, 2010 the case was struck from the trial list. Counsel for the Respondent had refused to sign the Trial Certification form on the grounds that the Appellant had not fulfilled all of its undertakings on discovery. Oral discovery had been complete in the summer of 2008. The Appellant submitted that the refusal to sign the Trial Certification form based upon outstanding productions was a pretext to allow the Respondent to delay the case. By late 2010, the Appellant sought the Respondent's consent to restore the action to the trial list, to which the Respondent's counsel advised "full answers to undertakings" would be required before providing consent. In January, 2012 on an unopposed motion, the action was restored to the trial list.

In October, 2012, during discussions to schedule pre-trial and trial dates, the Respondent's new...