Court Of Appeal Summaries (June 20-24, 2016)

Topics covered this week included family law, municipal law, contractual interpretation, reasonable apprehension of bias, and costs against a lawyer personally. Perhaps the most notable decision of the week is the short endorsement in Grant v Equifax Canada regarding credit scores. The Court of Appeal confirmed in that case that you cannot compel a credit bureau to remove reference in your credit score to debts that are more than two years old for which no claim has been brought. The next time a client calls you to complain about their credit score and for help to get the agencies to change the contents of their report on your client, have a look at the Consumer Reporting Act. That Act governs the conduct of credit bureaus and provides some rights to consumers regarding access to, and the content of, their credit scores, including a complaint mechanism for those who feel aggrieved by inaccurate information.

CIVIL DECISIONS

Beard Winter LLP v Shekhdar, 2016 ONCA 493

[Doherty J.A.(In Chambers)]

Counsel: No one appearing for the defendant (moving party)

Gavin Tighe and Robert Winterstein, for the plaintiff (Responding Party)

Keywords: Endorsement, Reasonable Apprehension of Bias

Facts:

The motion was for an extension of time to bring an application for leave to appeal from the Divisional Court. The moving party argued that the presiding judge should not sit on this motion. The presiding judge had sat in on two prior panels involving the moving party. The moving party alleged that the reasons of that panel for dismissing the appeal were so incorrect and only explainable by "racism, corruption, and/or criminal case fixing." The moving party also alleged that the presiding judge's tone in delivering the reasons of those panels was "scowling visage." The moving party claims that the judge has demonstrated bias to anyone who is not a "white Canadian."

Issues:

Should the Judge recuse himself? Should the extension be granted? Holding:

Motion Dismissed.

Reasoning:

Justice must be administered impartially. A judge must remove himself if there is an air of reality to a bias claim. Judges, however, do the administration of justice a disservice by yielding to entirely unreasonable and unsubstantiated recusal demands. A reasonably objective observer would give no weight to the claims of partiality advanced by the moving party. The decisions cited were made unanimously by a three judge panel and were not appealed. A reasonably objective observer would also take into account the fact that this same party has made many such allegations before. If there is no realistic chance of obtaining leave, it would be a waste of time to grant an extension. The merits of the argument are dubious at best and the issue raised by the moving party has no significance beyond this case. Further, the respondent has been faced with a "never-ending stream of vexatious motions and appeals" and has suffered ongoing prejudice because of the manner in which the moving party has conducted litigation. Hersey v. Hersey, 2016 ONCA 494

[Cronk, Blair and MacFarland JJ.A.]

Counsel:

Tait and R. Alves, for the appellant Siegel, for the respondent Keywords: Family Law, Spousal Support Variation, Natural Justice, Sufficiency of Reasons

Facts:

The parties were married in 1986 and separated either in January 2004 or April 2005. The appellant is 61 and the respondent is 64. In April, 2015 the respondent brought a motion seeking a reduction in the child support order because their son would be attending university in the fall. The appellant agreed to that change and then commenced her own motion for increased retroactive and prospective spousal support. The appellant's motion was heard in December, 2015. The motion judge determined that the appellant was not entitled to increased spousal support. The appellant appeals the dismissal of her claim for increased retroactive and prospective spousal support on the basis of the respondent's post-separation income increased and the fact that she is medically unable to work full-time.

Issues:

(1) Did the motions judge fail to provide sufficient reasons, or fail to apply appropriate legal principles in denying the appellant's motion to vary spousal support payments?

Holdings: Appeal dismissed.

Reasoning:

No. The law does not require that a motion judge deal with every piece of evidence before her and every argument made. It will be sufficient if the reasons tell the parties what the judge decided and why. While the reasons here could have been more fulsome and it would have been preferable had the motion judge specifically referenced ss. 15.3(3) and 17 of the Divorce Act, we are satisfied on reading her reasons as a whole, that she did implicitly consider those provisions. It would have been helpful to the parties and to this court if the motions judge had more clearly defined her findings in relation to the claims made. That said, the court was satisfied that reading her reasons as a whole in the context of the record, the parties know what she decided and why. Her reasoning is not so deficient that the parties are unable to know why the judge reached the conclusions she did

Best v. Ranking, 2016 ONCA 492

[Blair, Pardu and Brown JJ.A.]

Counsel: Paul J. Pape and Justin H. Nasseri, for the appellant,

Paul Slansky Mark Polley and Eric Brousseau, for the respondents

Keywords: Civil Procedure, Costs, Payable by Solicitor, Rules of Civil Procedure, Rule 57.07, Abuse of Process

Facts:

Paul Slansky, counsel for the Plaintiff, appealed an order the he pay costs in the amount of $84,000 on a joint and several basis with his client. Mr. Best was found in contempt of court for failing to pay costs arising from a previous motion. Seeking to purge the contempt, Mr. Best swore an affidavit alleging perjury, fraud, and obstruction of justice by the opposing parties and their counsel. He retained Mr. Slansky at that stage, again seeking to appeal the finding of contempt. In his appeal, Mr. Best (through Mr. Slansky) maintained accusations of corruption and impropriety on the part of opposing counsel. The motion judge held that the repetition of these accusations, which had already been rejected in court, justified awarding costs against Mr. Best on a full indemnity scale. The Court of Appeal rejected Mr. Best's attempt to review this decision and ordered him to pay the costs, failing which his entire action would be dismissed. He failed to...