Court Of Appeal Summaries (December 6- 11)

Hello again for another week,

The Court of Appeal released a fair number of civil decisions this week on a variety of topics, but nothing groundbreaking. Perhaps the most interesting was a successful claim against a bank for knowing assistance of breach of trust on the part of a banking customer, which provides another example of the risks for financial institutions arising out of the activities of their customers. Other topics included the financial management of not-for-profit corporations, the assessment of lawyers' accounts, regulated professions (lawyers and traditional Chinese medical practitioners), commercial leases, aborted real estate transactions, estate litigation, family law and defamation.

Until next week, enjoy the unseasonably warm weather while it lasts.

Civil Decisions

4439155 Canada Inc. v. Albert Tower Inc., 2015 ONCA 859 [Sharpe, Cronk and Miller JJ.A.]

Counsel: Marcus Boire, for the appellants Steven Greenberg, for the respondents

Keywords: Real Estate, Commercial Leases, Wrongful Termination of Lease, Waiver of Arrears of Rent, Deference

Facts: This appeal arose from the termination of a commercial lease. The trial judge found as a fact that the appellant landlord had wrongly terminated the lease as the parties had reached an agreement on the quantum of arrears owing and that the landlord had thereby waived any additional arrears.

Issues: (1) Did the trial judge err in finding that there was an agreement when the agreement and waiver had not been pleaded?

(2) Did the trial judge err in accepting the evidence of Mr. Yang and rejecting that of Mr. Fard in relation to the agreement?

(3) Should the amounts owing be reduced:

(a) on the basis of taxes; or

(b) on account of the respondent's equipment left on the premises; or

(c) on the basis of an apparent typographical error as to the trial judge's assessment of the value of that equipment?

Finding: Appeal dismissed.

Reasoning: (1) No. The issue of whether or not there was an agreement and waiver was fully canvased at trial and the appellant did not object to evidence being led. There was no error in law in relation to the trial judge's finding of waiver. There was evidence that the landlord prepared a written summary of the arrears he claimed, and evidence that the parties had agreed. Further, a post-dated cheque in satisfaction of the agreed arrears was cashed. The trial judge was entitled to find that the landlord had unequivocally waived any further amount of arrears.

(2) No. The trial judge explained the basis for his findings of credibility. They attracted deference, and the court was not persuaded that there were any grounds to interfere.

(3)(a) This was a net lease that allowed the landlord to require the tenant to pay its share of the estimated annual taxes during the first six months of the year. It was open to the trial judge to find that the tenant was entitled to a credit for the taxes it had paid for that period of the lease that followed the wrongful termination.

(3)(b) In a letter, the landlord required the tenant to pay the arrears he claimed as a precondition for the tenant being allowed to access the premises to retrieve his equipment. It was open for the trial judge to find that the tenant had been wrongfully deprived of the equipment.

(3)(c) At different paragraphs of the judgment, the value of the property was listed as $7,500 and $17,500. Since this was a matter to be resolved by the trial judge, it was referred back to him.

College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Federation of Ontario Traditional Chinese Medicine Association (Committee of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario), 2015 ONCA 851 [Sharpe, Cronk and Miller JJ.A.]

Counsel: Sean Hu, representative for the corporate appellants James X.N. Yuan, acting in person Jia Li, acting in person Jaan Lilles and Laura Robinson, for the respondent College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario Zachary Green, for the intervener the Attorney General of Ontario

Keywords: Regulation of Professions, Traditional Chinese Medicine, Civil Procedure, Injunctions, Res Judicata, Issue Estoppel, Abuse of Process, Charter of Rights and Freedoms, s. 15

Facts: The appellants appealed the decision of the Superior Court granting the respondent College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the "College") declaratory and injunctive relief. The application judge found that the corporate appellants falsely held themselves out as regulatory colleges, that the individual appellants had wrongly held themselves out as representatives of the regulator, that certain of the appellants had engaged in unauthorized practice, and that the individual appellants had engaged in the unauthorized use of the protected titles "Doctor" or "traditional Chinese medicine practitioner", all contrary to the Regulated Health Professions Act and the Traditional Chinese Medicine Act.

In their defense to the claims of the College, the appellants submitted that the Traditional Chinese Medicine Act and its Registration Regulation were discriminatory and violated their s. 15 Charter rights. The application judge rejected that defense on the ground that both individual appellants and one of the corporate appellants had previously unsuccessfully advanced essentially the same argument in an application before the Divisional Court. The appellants did not seek leave to appeal the Divisional Court's decision. The application judge held that the Divisional Court judgment barred the appellants from advancing the same arguments on grounds of res judicata, issue estoppel or abuse of process.

Issues: Did the application judge err by refusing to entertain the appellants' constitutional argument on the ground that it had been conclusively and finally determined against them in the prior proceeding?

Holding: Appeal dismissed.

Reasoning: No, the application judge did not err because the three preconditions for issue estoppel were made out. First, the issue was the same as the one decided in the prior decision. Second, the order of the Divisional Court dismissing the previous application was a final order. Third, the parties to both proceedings were the same. Almost all of the corporate appellants shared the same registered address and many of the same directors and officers, which constitutes a sufficient degree of identification among the parties. In any event, even if the "same parties" requirement for issue estoppel was not strictly met, permitting the appellants to re-litigate the issue that was determined by the Divisional Court would amount to an abuse of process. The court was also not persuaded that the application judge erred by failing to exercise his discretion to permit the appellants to avoid the doctrines of issue estoppel and abuse of process.

Speciale Law Professional Corporation v. Shrader Canada Limited, 2015 ONCA 856 [Laskin, Pardu and Miller JJ.A.]

Counsel: John Gray, for the appellants Rosemary Fisher, for the respondents

Keywords: Solicitor and Client, Legal Fees, Interim Accounts, Order for Assessment, Solicitors Act, s.3(b), s.4, Special Circumstances

Facts: Speciale or SLPC acted as counsel to Shrader and rendered accounts to it from 1979 to 2013. From 2009 to 2013, Speciale was also the president and Chief Executive Officer of Shrader. In July 2013, Shrader obtained a Registrar's order and appointment to assess the solicitor's accounts pursuant to s.3 of the Solicitors Act, without notice to Speciale or SLPC.

In October 2013, Speciale's counsel informed Shrader that he intended to bring a motion to challenge the order. In January 2014, an unsuccessful mediation took place, and in September 2014 Speciale attended Assessment Scheduling Court.

The assessment was scheduled to begin on June 1, 2015. On May 26, Speciale brought an urgent but unsuccessful motion to adjourn or stay the assessment and to quash the Registrar's order. Speciale and SLPC appealed this order.

While his order was interlocutory, Turnbull J. decided issues that could have deprived Speciale and SLPC of substantive defences and thus the order was treated as final for the purpose of the appeal. Moreover, because the assessment eventually commenced, the appeal from the refusal to adjourn or stay was moot.

Issues: Should the Registrar's order for assessment be quashed?

Holding: No - Appeal Dismissed

Reasoning: Initially, the appellants argued that the assessment should be quashed against Speciale as he did not render any of the accounts in question. The court rejected this argument, as Speciale signed each of the accounts and the appellants led no evidence to show that SLPC included any other lawyers or was not simply the professional corporation of Speciale.

The appellants then claimed that most of the accounts were for management or administrative services and thus should not have been assessed under the Solicitors Act. The court instead agreed with Turnbull's finding that "[t]he accounts attached thereto are all rendered on the letterhead of Speciale Law Professional Corporation ... [and] are clearly legal accounts rendered to Shrader Canada."

The appellants also submitted that their retainer was in dispute as Shrader never executed a retainer agreement and Speciale's rates were never approved by Shrader's board. The court found that while Shrader did not sign a written retainer, the retainer had been in place for many years and was never disputed. Moreover, Speciale's rates were properly within the jurisdiction of an assessment officer to determine.

The appellants submitted that two circumstances were "special": (i) most of the accounts were for management services and (ii) all of the accounts had been paid. Again, the court rejected this argument and found that each account was a legal account and properly subject to assessment. Moreover, the payment of accounts is but one factor...