Court Of Appeal Summaries (December 12 – December 16, 2016)


Below are the summaries for this week's civil decisions of the Court of Appeal.

Topics covered this week included a number of civil procedure issues (civil contempt, appeal routes, administrative dismissals for delay), of couple of real property/municipal law cases (dedication of roads, relief from forfeiture) and an unjust enrichment case in the context of a family dispute.

Have a nice weekend.

Kideckel v. Glenbarra Renewable Energy Solutions Inc., 2016 ONCA 932

[Doherty, MacPherson and Lauwers JJ.A.]


  1. Sternberg and D. Murynlca, for the appellant S. E. Kazushner, for the respondent

    Keywords: Endorsement, Contracts, Privity of Contract, Assignments, Partnerships, Summary Judgment


    The appellant, Sheldon Kideckel, brought an action against several defendants for commissions in the amount of $100,000. He claimed the commissions were owing to him by the defendants for his services of identifying and acquiring leases for three locations upon which rooftop solar systems were built by the defendant Gemco Solar Inc.

    The respondent, Fovere Glenbarra Energy Fund I Ltd, brought a motion for summary judgment, seeking dismissal of the appellant's action against it. The motion judge granted summary judgment. He found that (1) Kideckel did not have an agreement with Fovere for the payment of the commissions claimed; (2) there was no basis to disregard the separate legal personalities of Gemco and Fovere; (3) Fovere was not liable for Gemco's obligations to Kideckel because there was no evidence that Kideckel was led to believe by Fovere that it was Gemco's partner; and (4) Fovere was not enriched by Gemco's alleged failure to pay Kideckel and, therefore, is not liable to Kideckel in equity.


    1. Did the motion judge fail to properly consider the law of privity of contract and the principled exceptions thereto?

    2. Did the motion judge fail to consider the law of assignments in equity, whereby an assignee takes "subject to the equities"?

    3. Did the motion judge err by not finding that the defendants were partners?

    4. Did the motion judge fail to properly assess credibility?


      Appeal dismissed.


    5. The motion judge did not fail to properly consider the law of privity of contract and the principled exceptions thereto. This submission is entirely inconsistent with the appellant's testimony at the mini-trial ordered by the motion judge during the summary judgment hearing.

    6. The motion judge did not fail to consider the law of assignments in equity, whereby an assignee takes "subject to the equities". The appellant did not raise this issue in his Statement of Claim or advance it on the motion for summary judgment.

    7. The motion judge did not err by not finding that the defendants were partners. The motion judge correctly concluded that the legal relationship was between the appellant and Gemco, not the appellant and Gemco and Fovere. The plaintiff was not aware of Fovere's existence until 2011 or 2012, long after he had agreed to work for Gemco in September or October 2010.

    8. The motion judge did not fail to properly assess credibility. The documentary record in conjunction with the mini-trial involving the testimony of the appellant and representatives from Gemco and Fovere provided an appropriate platform for the motion judge's analysis and disposition.

      Wharry v. Wharry, 2016 ONCA 930

      [Strathy C.J.O., Pardu and Brown JJ.A.]


  2. Cohen, for the appellant

  3. C. McLean and John W.E. Gilbert, for the respondent

    Keywords: Family Law, Retroactive Child Support, Spousal Support, Spousal Support Advisory Guidelines, D.B.S. D.B.S. v. S.R.G., [2006] 2 S.C.R. 231, Constructive Trusts, Gifts, Buttar v. Buttar, 2013 ONCA 517


    The parties were married on August 25, 1992 in Northern Ireland. This was a 14-year relationship. They have two children, Scott (age 21) born May 13, 1995 who is now independent, and Rebekah (age 20) born September 11, 1996 who is continuing her post-secondary education.

    The appellant was working full time at the date of the marriage, but never returned to work full time after the children were born. She suffered from postpartum depression after the birth of each of the children. The respondent spent long hours working; she looked after the household and the children.

    The respondent's father, Mr. Wharry Sr., operated a dairy and cattle farming business with the respondent at the "Drumcrow" farm in Northern Ireland. Mr. Wharry Sr.'s own father had transferred the farm to Mr. Wharry Sr., the oldest son. Mr. Wharry Sr. in turn transferred the farm and related property to the respondent, his oldest son, in 1997 during the parties' marriage.

    The deed of transfer to the respondent for Drumcrow farm reserved a "right of residence" so that the respondent's parents, Mr. Wharry Sr. and Mrs. Wharry, could live in a bungalow located on the property for the rest of their lives.

    The parties moved to Canada in 2002 and purchased the "Kincardine" farm in Ontario. The parties separated on November 26, 2006. After separation, both children primarily resided with the appellant. However, Scott moved in with the respondent in March 2013.

    Procedural History:

    The respondent brought his Application on January 23, 2007. The appellant filed her Answer on March 13, 2007, seeking, among other things, equalization, child support, and spousal support. Shortly thereafter, the respondent was ordered to pay interim monthly child support in the amount of $360 for the children, effective July 11, 2007. The interim child support order was based on an imputed annual income of $25,000 to the respondent. No interim spousal support was ordered. The respondent unilaterally reduced his child support to $200 per month without seeking to change the interim order when Scott moved in with him in March 2013. The parties settled a number of issues in 2008, including the appellant's equalization claim regarding the Kincardine farm. The respondent paid the appellant $85,000 to purchase her interest in the farm.

    The appellant submits that the trial judge erred by limiting her monetary compensation for unjust enrichment to an amount representing one half the value of the bungalow on the Drumcrow farm property at the date of trial, rather than basing his award for her contributions to the joint family enterprise on the value of the whole farm. She further submits that he erred in concluding that the Drumcrow farm transferred to the respondent was a gift and therefore excluded from his net family property.

    The respondent maintains his position that the Drumcrow farm and related property were a gift. He accepts and relies on the trial judge's decision.

    The appellant submits that the facts of this case are very similar to Buttar, that is to say, the transferor reserved the right of parents to occupy the property during their lifetime, and the transferee continued to provide his parents with income from the farm to assist with their living expenses after the transfer. As in Buttar, the appellant submits that there must have been consideration or an expectation of remuneration for the transfer.


    Is the trial judge's assessment of the appellant's claim to unjust enrichment entitled to deference? Did the trial judge err in concluding that the Drumcrow farm transferred to the respondent was a gift and therefore excluded from his net family property? Did the trial judge err in interpreting B.S. as imposing a three-year limit to retroactive child support claims from the trial date? Spousal Support: Did the trial judge err by limiting retroactive child support to a three-year period? Did the trial judge err by terminating spousal support on December 31, 2016? Did the trial judge err in the allocation of various post-separation obligations? Holding: The trial judge erred in limiting retroactive child support to a three-year period and terminating spousal support in December 2016. The balance of the appeal was dismissed.


    1. Yes. He assessed all of the circumstances surrounding the acquisition of the Drumcrow Farm, the construction of the bungalow, and each party's contributions. Absent palpable and overriding error, there is no basis to intervene.

    2. No.

    3. Yes. The trial judge erred when he concluded that D.B.S. mandated a three year limit from the trial date for retroactive child support. The Supreme Court in D.B.S. at para. 118 provided that, having determined that a retroactive award is appropriate, the court must choose a date of retroactivity. Among the four main options are (i) the date of effective notice and (ii) the date of formal notice. The date of effective notice refers to any indication by the recipient that child support should be paid or renegotiated. It does not require the recipient to take any legal action; all that is required is that the topic be broached.

      Despite this general default to effective notice, the Supreme Court in D.B.S. added at para. 123 that it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given.

      On March 13, 2007, the appellant filed her Answer, claiming child support for the children. This appears to be the date of both effective and formal notice. Therefore, the three-year rule in D.B.S. is not at issue in this case, as the appellant gave effective and formal notice at the same time, and less than four months after separation.

      Nevertheless, as the Supreme Court stated in D.B.S. at para. 64, "parents should not have the impression that child support orders are set in stone." A court should consider four main factors before making a retroactive child support order: (i) the reason for the delay by the recipient parent; (ii) the conduct of the payor parent (e.g., any blameworthy behaviour); (iii) the circumstances of the child; and (iv) any hardship occasioned by a retroactive award. The Supreme Court cited Tedham v. Tedham, 2003 BCCA 600, 20 B.C.L.R. (4th) 56 for the proposition that...

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