Court Of Appeal Summaries (April 11-15, 2016)

Following are this week's summaries of civil decisions released by the Court of Appeal. Topics covered included limitation periods, summary judgment, Crown wardship, wrongful death, insolvency and mortgages. Two of those matters were motions for stays pending appeal, both of which were denied and both of which involved lawyers from our office (we went one for two, congratulations Eric Golden).

Civil Decisions

Haunert-Faga v. Caprara, 2016 ONCA 266

[Sharpe, Juriansz and Roberts JJ.A.]

Counsel:

Maurice J. Neirinck, for the defendant, Giuliana Caprara, and for the appellant, Faga Group Construction Limited

Sean Lawler, for the appellant, Presta Caparrotta LLP

Robert Rueter and Sara J. Erskine, for the respondent, Christine Marie Haunert-Faga

Keywords: Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Standard of Review, Mixed Fact and Law, Deference

Facts:

The appellants moved for summary judgment to dismiss the claims on the grounds that they were statute-barred. The parties agreed that all of the evidence necessary for resolution of the limitation period issue was before the court and that the trial judge would be in no better position to decide it. The appellants now appeal from the motion judge's dismissal of their motion. The issue before the motion judge was whether the respondent had commenced her claim within two years of the time she knew or ought to have known, through the exercise of reasonable diligence, the facts necessary to support her claims.

Issue: Did the motion judge err in dismissing the motion for summary judgment?

Holding: Appeal dismissed.

Reasoning:

The motion judge gave careful reasons explaining the basis for these challenged findings. They were supported by the evidence and entitled to deference on appeal. He identified the correct legal test to determine the issue of discoverability. His application of the facts he found to that test was a finding of mixed fact and law that also attracts deference on appeal. The Court of Appeal did not agree that there was any basis to interfere with the motion judge's determination that the appellants failed to establish a limitation defence.

Children's Aid Society of Toronto v. A.F., 2016 ONCA 267

[Sharpe, Juriansz and Roberts JJ.A.]

Counsel:

Ghina Al Sewaidi, for the appellant

Justine Sherman, for the respondent

Lauren Israel, for the Office of the Children's Lawyer

Keywords: Family Law, Child Protection, Custody, Crown Wardship

Facts:

This was an appeal from the dismissal of the appellant mother's appeal from a Crown wardship order in relation to three of her children. The appellant's position was that an order should be made placing her children with the appellant's mother. In lengthy and detailed reasons, the trial judge rejected that position and provided fully considered reasons explaining why she concluded that a placement with the maternal grandmother would be inappropriate. The appeal judge found no error in the trial judge's reasons and upheld her decision.

Issues:

(1) Was the appellant inadequately represented by her trial counsel?

(2) Did the trial judge err in relation to her use of past parenting evidence regarding the children's maternal grandmother?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court reviewed the appellant's written argument on the inadequacy of assistance point and the affidavit filed by the appellant's trial counsel in answer to that allegation. The court agreed with the appeal judge that there was no merit to this ground of appeal.

(2) No. There was considerable evidence before the trial judge as to the lengthy history of the maternal grandmother with child protection agencies. While the grandmother's own child protection file was closed following the trial, that alone did not alter the troubling evidence before the court demonstrating the grandmother's lack of suitability for a custodial placement. In addition, the court found the maternal grandmother had shown limited interest in the children, and she had been uncooperative with the respondent Children's Aid Society leading up to the trial.

The court further rejected the appellant's submission that the respondent Children's Aid Society failed in its duty to investigate the possibility of placing the children with the maternal grandmother. It was satisfied on the record before it that any investigation would not have altered the outcome of the proceeding.

Essar Steel Algoma Inc. (Re), 2016 ONCA 274

[Gillese J.A. (In Chambers)]

Counsel:

Lou Brzezinski and Alexandra Teodorescu, for the moving party United Steelworkers Union Local 2251

Ashley John Taylor and Lee Nicholson, for the Applicants

David Rosenblat, for Deutsche Bank, the DIP Lenders and the Term Lenders

Clifton P. Prophet, for the Monitor, Ernst &amp...