Court Of Appeal Summaries (Nov 16-20, 2015)

The Court of Appeal released a number of civil decisions this week. Topics included family law, summary judgment, a settlement stemming from the finding of a mouldy piece of chicken found in a cereal box, a contractual disagreement with respect to oil and gas assets, MVA, bankruptcy and wrongful dismissal.

Civil Cases

Tadayon v. Mohtashami, 2015 ONCA 777

[Gillese, Pepall and Lauwers JJ.A.]

Counsel:

Stephen Codas and Michael Zalev, for the appellant/respondent by way of cross-appeal

Michael Stangarone and Ryan Kniznik, for the respondent/appellant by way of cross-appeal

Keywords: Family Law, Family Law Act, Domestic Contracts, Setting Aside, Non-Disclosure, Unconscionability, Miglin v Miglin, Retroactive Child and Spousal Support, Pre-judgment Interest

Facts:

The appellant and the respondent married in 1984 and had three children. They separated in 1999 and were divorced in 2004. The parties entered into a separation agreement in 1999. That agreement set out how the matrimonial home was to be dealt with and that the appellant would pay the respondent $2,000 per month for child and spousal support.

In 2005, the matrimonial property was sold, and another home (Chamwood Property) was purchased for the respondent and the three children. As a result, the parties entered into an amending agreement in 2005, and even though the new property was taken in the respondent's name alone, the 2005 amendment provided that each party had a 50% interest in it.

In 2010, the respondent brought an application in which she sought to set aside the two agreements, obtain retroactive child and spousal support and be declared the sole owner of the new property. At the time the parties entered the 2005 agreement, the appellant misrepresented his income for 2005. The appellant made a lot more money in 2005, which the appellant did not disclose. The application judge found that this financial information was highly material and had been concealed from the respondent; the judge found that the appellant's non-disclosure was unconscionable. He set aside the 2005 agreement, but not the 1999 agreement, declared the respondent the owner of the new property and made other orders relating to support and costs.

Issues:

The appellant raises three issues on appeal. He submits that the applications judge erred in:

Setting aside the 2005 Amending Agreement; Finding the respondent to be the sole owner of the Charnwood Property; and The quantum and duration of the prospective spousal support. In her cross-appeal, the respondent raises four further grounds of appeal. She submits that the applications judge erred in:

Failing to order retroactive child and spousal support prior to 2010; Failing to award pre-judgment interest on the retroactive child and spousal support order; Time-limiting the spousal support order and the quantification of that support; and His disposition of the costs of the application. Holding: Appeal Dismissed. Cross-Appeal allowed on one matter only - the respondent's entitlement to pre-judgment interest on the retroactive child and spousal support award.

Reasoning:

(1) The court held that the application judge did not err in setting aside the 2005 amending agreement. The appellant had an obligation to make proper financial disclosure at the time the 2005 amending agreement was entered into, and did not do so.

(2) The court held that the application made the correct decision in finding the respondent to be the sole owner of the Charnwood Property. Only the respondent's funds were used for the down payment on the Charnwood Property, and the respondent was entirely responsible for making the mortgage payments and paying the other costs on the property. These findings, coupled with the application judge's findings that the appellant preyed on the respondent's economic vulnerability, satisfied the test for unconscionability.

(3) The court relied on the test set out in the Miglin, which provides for a two-step inquiry to determine whether a domestic contract ought to be set aside. As part of the first stage, the court must consider the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it. As well, as part of the second stage, the substance of the agreement must be considered so that the court can determine whether it is in substantial compliance with the objectives of the Divorce Act. The appellant says that the applications judge did not take into consideration the factors and objectives set out in the Divorce Act, he says the judge simply ran the Spousal Support Advisory Guidelines and ordered spousal support. The court refuted this submission. The court held that the applications judge carefully considered the issue of entitlement and found that even post-separation, the appellant derived a significant benefit from the respondent's dominant role in childcare. He further found that while the respondent's role did not prevent her from working at all, it did create some limits on what she could do.

(4) The court saw no merit in the respondent's claim that the application judge erred in disallowing her claim for retroactive child and spousal support prior to 2010. The court disagreed with the respondent's submission claiming that the judge placed too much emphasis on her delay in asserting this claim. The applications judge found that the respondent had not put forward any credible, reasonable excuse for failing to assert those claims before 2010. In making this finding, the applications judge noted, among other things, that the respondent had sworn an affidavit in 2004, to obtain the divorce, in which she indicated that she was content with the terms of the 1999 Agreement with respect to support. The applications judge also found that the respondent had not provided a basis for such claims. I understand him to be referring to the absence of evidence suggesting that either the children's needs or her needs had not been met in the relevant time period. The court held that in these circumstances, it cannot be said that the applications judge erred in failing to order retroactive support.

(5) The court held that the application judge's failure to award pre-judgment interest was an oversight. The court allowed the cross appeal on this issue and ordered that the respondent is entitled to pre-judgment interest on the amount of the retroactive child and spousal support.

(6) The court held that the applications judge applied the appropriate legal principles to findings that were solidly grounded in the evidence. The court saw no significant misapprehension of the evidence on the part of the applications judge and the award is not clearly wrong.

(7) The court relied on subsection 133(b) of the CJA which states that leave to appeal is required where an appeal is only as to a discretionary costs order. When, however, the disposition on appeal changes the decision under appeal, leave to appeal from the costs order is not necessary. Here, since the court allowed the cross-appeal on the issue of pre-judgment interest, the disposition of the cross-appeal changes the decision below. Thus, it would seem that leave to appeal the costs order is not required. However, the court did not interfere with the costs order below.

Brown v. Wahl, 2015 ONCA 778

[Cronk, Epstein and Huscroft JJ.A.]

Counsel:

Mark H. Arnold and Joyce Weinman, for the appellant

Andrew Lundy, for the respondents

Keywords: Torts, Negligence, Medical Malpractice, Limitation Periods, Limitations Act, 2002, ss.4 & ss.5(1)(a) - ss.5(2) Discoverability, Lawless v. Anderson, Expert Opinion, Summary Judgment, Hryniak v Mauldin

Facts: This was an appeal from the summary judgment granted by the motion judge dismissing the appellant's negligence action against the respondents in relation to elective cosmetic dental surgery because it was statute-barred due to the expiry of the two-year limitation period under ss. 4 of the Limitations Act, 2002 (the "Act").

Issues:

(1) Did the motion judge err by failing to apply the test for discoverability of a negligence claim set out in Lawless v. Anderson, 2011 ONCA 102?

(2) Did the motion judge err in finding that an expert opinion was unnecessary in this case to trigger the commencement of the limitation period?

Holding: Appeal dismissed.

Reasoning:

(1) No. Lawless confirms that the test for discoverability is when a prospective plaintiff "had all of the material facts necessary to determine that she...