Court Of Appeal Summaries (December 19 – December 23, 2016)

Hello,

I hope everyone who celebrated had a Merry Christmas and Happy Hanukkah. Below are the summaries for last week's civil decisions of the Court of Appeal.

Topics covered included defamation, municipal liability, MVA, breach of contract, family law, wills and estates, tax, crown wardship and several procedural decisions covering jurisdiction/forum non conveniens, civil contempt, extensions of time to perfect appeals and striking pleadings.

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Civil Decisions:

Kiskadee Ventures Limited v. 2164017 Ontario Ltd., 2016 ONCA 955

[Doherty, MacPherson and Lauwers JJ.A.]

Counsel: J. A. L. Kriwetz and D. Fenig, for the appellant M.T. Wong, for the respondent

Keywords: Torts, Negligence, Damages, Lost Profits, Standard of Review, Credibility, Deference, Reasonable Apprehension of Bias, Fresh Evidence

Facts:

The appellant, Kiskadee Ventures Limited ("Kiskadee"), sold produce and poultry to grocery stores. Kiskadee purchased the produce from suppliers in the Caribbean and the poultry from local Ontario suppliers.

Kiskadee operated out of several units in a condominium. The respondent, 2164017 Ontario Limited ("216"), operated its business out of a unit in the same condominium.

216 had work done in the basement of its unit in 2009. In December 2010, 216 filled in the hole in the basement floor with cement. Kiskadee claimed that the work done in December 2010 damaged the telephone cable running under the floor of 216's unit. Kiskadee maintained that the damage to the telephone cable caused it to lose telephone service in its units for several days.

Kiskadee sued 216, claiming that the damage to the telephone cable was caused by 216's negligence. Kiskadee further claimed that its inability to communicate by telephone in a timely fashion with its Caribbean produce suppliers and its Ontario poultry suppliers resulted in substantial business losses. The losses in respect of the Ontario poultry dealers consisted of the profits lost by Kiskadee when it could not complete certain purchases. The losses in respect of the Caribbean suppliers occurred because the suppliers could not communicate with Kiskadee as prearranged at Kiskadee's place of business. Absent that timely communication, the suppliers had purchased produce on behalf of Kiskadee which eventually could not be shipped to Canada and sold by Kiskadee. Kiskadee alleged that it was required to cover the suppliers' losses to maintain a good working relationship with them.

Kiskadee's claim depended almost entirely on the evidence of Latchman Narine, the owner of Kiskadee. Specifically, unless Mr. Narine's evidence was accepted, there was no evidence that Kiskadee had suffered any business losses as a result of an interruption of its telephone service in December 2010.

216 challenged virtually every aspect of Kiskadee's case, although 216 did acknowledge that it filled the hole in the basement of its unit with cement in December 2010.

The trial judge rejected Mr. Narine's evidence in its entirety. She concluded that although Kiskadee had lost phone service on the same day that the cement was poured in the basement of 216, Kiskadee had failed to prove causation.

Issues:

Did the trial judge err in her assessment of Mr. Narine's credibility? Were the trial judge's repeated interventions, considered in the context of the entirety of the proceedings, sufficiently egregious to lead the reasonable observer to conclude that the appearance of impartiality had been sufficiently compromised so as to undermine the appearance of the fairness of the trial? Did the trial judge make a serious factual error when she found that Kiskadee had failed to show that the telephone cable servicing its units ran under the basement floor of 216 and hence could not prove causation? Held:

Appeal Dismissed.

Reasoning:

1. A consideration of this ground of appeal begins by recognizing the deference owed to the trial judge's fact-finding, particularly when the fact-finding is based on a credibility assessment. In support of the submission that the trial judge erred in her assessment of Mr. Narine's credibility, counsel offers fresh evidence on appeal. That evidence challenges one of the principal grounds upon which the trial judge rejected Mr. Narine's evidence and relates to an explanation of discrepancies between certain dates of faxes and letters.

   When a party proposes to put fresh evidence before the Court of Appeal, it is incumbent on that party to explain why the evidence was not put forward at trial. As indicated above, Mr. Narine was specifically asked about certain dates and had no explanation for them.

   The practice of filing document briefs at the outset of trial, containing the documents to be relied on by the parties, is a well-established one. The practice is encouraged as it can significantly enhance trial efficiency. However, trial efficiency is served only if counsel have a mutual and clear understanding of the evidentiary basis upon which the documents are tendered and communicate that understanding to the trial judge. The confusion over the basis upon which the document briefs were filed resulted in counsel for Kiskadee not turning his mind to the difference between the fax dates and the dates in the suppliers' letters and the impact that difference might have on a consideration of the authenticity of the documents. Had he done so, the explanation offered on appeal would have been put forward at trial. In these circumstances, the failure to offer the explanation at trial should not preclude the Court of Appeal's consideration of the evidence on appeal.

   The admissibility of the fresh evidence turns on whether that evidence, considered with the rest of the evidence adduced at trial, could be expected to have affected the result or, more specifically, could be expected to have affected the trial judge's assessment of Mr. Narine's credibility: see Ontario Federation of Anglers and Hunters v. Ontario (Ministry of Natural Resources), [2002] O.J. No. 1445, at para. 63. If the answer is yes, the fresh evidence is admissible and a new trial must be ordered. If the answer is no, the evidence is not admissible on appeal.

   The fresh evidence eliminates one of the significant reasons the trial judge advanced to support her finding that Mr. Narine was not a credible witness. However, her reasons contain some nine additional reasons for rejecting his evidence. Considering the reasons as a whole, the Court of Appeal was satisfied that there remained strong grounds upon which to reject Mr. Narine's evidence even in the face of the evidence offered on appeal. That evidence could not reasonably be expected to have affected the negative assessment of Mr. Narine's credibility.

   There was no error in the material factual findings underlying the trial judge's credibility assessment. As to her reasons for finding Mr. Narine not to be a credible witness, the Court of Appeal accepted that some of the negative inferences drawn by the trial judge may not have been drawn by other trial judges. None of those inferences, however, fall outside of the broad spectrum of inferences reasonably available to the trial judge. The Court of Appeal must defer to those inferences in matters of credibility. The Court of Appeal would not interfere with the trial judge's assessment of Mr. Narine's credibility. Based on that assessment, Kiskadee's claim could not succeed.

2. The trial judge's questions did not reach the point at which they compromised the appearance of the fairness of the trial. Some of the interventions were appropriate. Most that were unnecessary were harmless. The isolated instances in which the trial judge's questioning took on the tone of aggressive cross-examination did not, standing alone, compromise what was, in all other respects, a fair trial.

3. The evidence of the Bell Canada employee who testified for Kiskadee was unclear.

   Punzo v. Punzo, 2016 ONCA 957

   [Feldman, Epstein and Miller JJ.A.]

   Counsel:

   R. Shulman, for the appellant A. Pascuzzi, for the respondent

   Keywords: Family Law, Child Support, Spousal Support, Imputing Income, Federal Child Support Guidelines, ss 16-20, Variation, Material Change in Circumstances, Retroactive Reduction, Willick v Willick, [1994] 3 SCR 670, D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231, 2006 SCC 37, Kerr v Baranow, 2011 SCC 10

   Facts:

   Viviana Punzo appealed from an order retroactively reducing Emanuele Punzo's child and spousal support obligations. The parties disagreed about the interpretation of the minutes of settlement that was the basis of the consent order varied below. Mr. Punzo took the position that he did not manage to earn the level of income that he said he made at the time of the consent order, and said that his actual income turned out to have been much lower. Ms. Punzo alleged that he was and is hiding income, and the consent order was to compensate for this dishonesty by imputing income to him. She argued that it was unjust to retroactively vary the consent order to entirely undo the financial protection she achieved through lengthy and expensive negotiations.

   To succeed on a motion to change, an applicant must establish a material change in circumstances since the making of the original order. Here, the motion judge found that the termination of Mr. Punzo's employment, followed by a lengthy period of unemployment and subsequent re-employment at a substantially lower salary constituted a material change that warranted a reduction in child and spousal support. She accordingly found that had Mr. Punzo been earning that level of remuneration at the time of the Support Order, the parties would have agreed to different terms. She changed the Support order to reduce the level of spousal support and child support payable to Ms. Punzo.

   Issues:

1. Whether the motion judge erred by finding that a material change in...