Court Of Appeal Summaries (January 3 – January 6, 2017)

Below are the summaries of this week's civil decisions of the Court of Appeal. Most of them were procedural in nature (dismissal for delay, appellate jurisdiction, limitation periods, setting aside orders, summary judgment).

Table of Contents

Civil Decisions (click on case name to read summary):

PM v MA, 2017 ONCA 6

Keywords: Endorsement, Family Law, Child Protection, Civil Procedure, Appeals, , Jurisdiction, Interlocutory Orders

Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

Keywords: Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, Rule 24.01, Langenecker v. Sauvé, 2011 ONCA 803, Wallace v Crate's Marine Sales Ltd., 2014 ONCA 671

W&W Fiberglass Tank Co. Profit Sharing Plan v. Bartholomew, 2017 ONCA 4

Keywords: Equitable Claims, Breach of Fiduciary Duty, Contracts, Forum Selection Clauses, Summary Judgement

D'Onofrio v. Advantage Car & Truck Rentals Limited, 2017 ONCA 5

Keywords: Civil Procedure, Orders, On Consent, Unopposed, Setting Aside

Roulston v McKenny, 2017 ONCA 9

Keywords: Estates, Trustee Act, RSO 1990, c T.23, s 38(3), Limitation Periods, Fraudulent Concealment

For Short Civil Decisions, click here.

For Criminal Decisions, click here.

Civil Decisions:

PM v MA, 2017 ONCA 6

[Gillese, Juriansz and Watt JJ.A.]

Counsel:

R. Rowe, for the appellant

K. Janczaruk, for the respondent M.A.

M. Chen, for the respondent Catholic Children's Aid Society of Toronto

T. Law, for the respondent Office of the Children's Lawyer

Keywords: Endorsement, Family Law, Child Protection, Civil Procedure, Appeals, , Jurisdiction, Interlocutory Orders

Facts:

The matter arose from litigation over access to children between the father PM, the mother MA, the Catholic Children's Aid Society and the Office of the Children's Lawyer. In child protection proceedings, the Society obtained an order in the Ontario Court of Justice varying the father's access, pending trial, from unsupervised to supervised. The father's appeal to the Superior Court was dismissed after his request for an adjournment was refused. He appealed to the Court of Appeal.

Issue:

Whether the Court of Appeal had jurisdiction to hear the appeal of the order concerning access pending trial.

Holding:

Appeal quashed for lack of jurisdiction.

Reasoning:

The order of the Ontario Court of Justice was interlocutory. The fact that order was the subject of an appeal does not change its fundamental nature. Both the order of the Ontario Court of Justice and the order of the Superior Court on appeal dealt with interim access pending trial, an interlocutory matter. The order of the Superior Court is interlocutory, notwithstanding that on its form there was a checkmark beside "final order". Because the order was interlocutory, the Court of Appeal had no jurisdiction to hear the appeal.

The appellant asked the Court of Appeal to transfer the appeal to the Divisional Court under s 110(1) of the Courts of Justice Act. The Court of Appeal refused to do so, as it appeared that s 19(4) of the Courts of Justice Act precludes an appeal to the Divisional Court. Rule 39(3) of the Family Law Rules is procedural and does not create a right of appeal where none exists.

Counsel's argument that the court had inherent or residual jurisdiction to hear the appeal was without merit, and the Court noted that there must be a statutory basis for the Court to hear an appeal. The Court of Appeal also refused to constitute itself a panel of the Divisional Court. While that option has been used in the past, the experience of the court has led to its practical abandonment.

Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

[Simmons, LaForme and Pardu JJ.A.]

Counsel:

W. J. Burden, for the appellant

J.T. Akbarali, for the respondents, Nazzareno Ticchiarelli, 882897 Ontario Ltd., the Estate of Ermoli Piccioni, deceased, and John Doe as litigation guardian of the Estate of Danny Piccioni, deceased

Keywords: Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, Rule 24.01, Langenecker v. Sauvé, 2011 ONCA 803, Wallace v Crate's Marine Sales Ltd., 2014 ONCA 671

Facts:

This action involves a dispute over the ownership of shares of 897 Corporation, a company with an equity interest in a property development in Windsor, Ontario. On February 19, 2004, the appellant commenced the action against the respondents; his brother Nazzareno, his uncle Ermoli Piccioni and the estate of his cousin Danny Piccioni, as well as a related corporation (882897 Ontario Ltd. — "897 Corp."). Ermoli Piccioni died in 2006 and an Order to Continue from 2010 continued the action against his estate.

The appellant asserts that Nazzareno, in reliance on misrepresentations by Danny and Ermoli Piccioni, misused a power of attorney that the appellant had granted to Nazzareno and deprived the appellant of repayment of his $225,000 shareholder loan to 897 Corp., $25,000 owed to him for common shares that Nazzareno sold to Danny Piccioni, and the appellant's share of profits pursuant to a Profit Sharing Agreement that Nazzareno purported to execute on the appellant's behalf. The respondents acknowledge some indebtedness, and promise to pay it when it becomes due; they deny the allegations of conspiracy, misrepresentation, undue influence and unconscionability.

The issues in the action centred on the signing of two agreements in June 1996 and the intention of the parties when those agreements were signed. However, the appellant did not commence the action until February 2004, more than seven and a half years after the relevant events. Meanwhile, Danny Piccioni had died during the previous year. According to the motion judge, the action began with "reasonable dispatch", but, after the appellant delivered his affidavit of documents, the action became dormant for over five years. The appellant allowed four years to pass between when his first lawyer ceased to represent him and the time when he retained a new one in 2009.

This second lawyer took action by proposing a settlement in May 2010 and by cross-examining Danny and Ermoli Piccioni's estate trustees on November 4, 2010. However, no progress occurred between November 2010 and July 2014. In September 2014, the appellant made an offer to settle, but, by 2015, the negotiations failed. During 2015, the parties agreed to mediation, but, on June 8, two days before the mediation date, counsel for the Estate of Ermoli Piccioni cancelled the mediation. Shortly thereafter, all of the defendants except for Nazzareno Ticchiarelli moved to dismiss the action for delay. The motion was granted. Since the motion judge's decision, one of the proposed witnesses, Angeladea Piccioni, has died. Rinaldo Ticchiarelli appeals.

Issue:

Is fresh evidence admissible? Did the motion judge err in dismissing the action for delay? Holding:

Appeal dismissed.

Reasoning:

Yes...