Court Of Appeal Summaries (September 23-27)

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

In Urbancorp Toronto Management, the Monitor unsuccessfully sought to set aside security granted in favour of Urbancorp's arm's length electrical contractor as being a transaction under value or a fraudulent conveyance. The basis of the challenge was not that the electrical contractor was not an arm's length party (it was arm's length), but that the party that provided the contractor with the impugned security was not arm's length from the party that owed the debt to the electrical contractor. The Court rejected this approach. It confirmed that the focus of the analysis had to be on the relationship between the transferor and transferee, not between the transferor and other parties related to the transferor that may have benefitted from the transaction.

Other topics covered this week included family law, insurance coverage, enforcing settlements, adding parties after a limitation period expires, and obtaining dispensation from some of the requirements of perfecting an appeal.

Table of Contents

Civil Decisions

Derakhshan v. Narula, 2019 ONCA 742

Keywords: Family Law, Spousal Support, Spousal Relationship, Common Law Relationship, Unjust Enrichment, Constructive Trust, Joint Family Venture, Reasonable Apprehension of Bias, Family Law Act, R.S.O. 1990, c. F.3, s. 29, Pettkus v. Becker, [1980] 2 S.C.R. 834, Kerr v. Baranow, 2011 SCC 10

Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2019 ONCA 746

Keywords: Contracts, Specific Performance, Frustration, Civil Procedure, Settlements, Enforcement, Applications, Rules of Civil Procedure, Rule 14.05(3), Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, Holst v. Singh, 2018 ONSC 4220, Semelhago v. Paramadevan, [1996] 2 S.C.R. 415

Rumsam v. Pakes, 2019 ONCA 748

Keywords: Torts, Negligence, MedMal, Civil Procedure, Limitation Periods, Discoverability, Limitations Act, 2002, ss 4, 5(1), Sloan v. Ultramar Limited, 2011 ONCA 91, Pepper v. Zellers Inc. (2006), 83 OR (3d) 648 (CA), Lawless v. Anderson, 2011 ONCA 102, Brown v. Wahl, 2015 ONCA 778, Klein v. G4S Secure Solutions (Canada) Ltd., 2016 ONSC 1930

1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753

Keywords: Insurance, Coverage, Civil Procedure, Applications, Orders, Declarations, Multiplicity of Proceedings, Solosky v. The Queen, [1980] 1 SCR 821, Courts of Justice Act, RSO 1990, c C43, s. 138

Segura Mosquera v. Ottawa (City), 2019 ONCA 760

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Dispensation from Requirements, Administration of Justice Act, s. 4.2, Rules of Civil Procedure, Rules 61.09, 61.10(1)(d)

Urbancorp Toronto Management Inc. (Re), 2019 ONCA 757

Keywords: Bankruptcy and Insolvency, Transfers at Undervalue, Fraudulent Conveyances, Civil Procedure, Costs, Monitors, Evidence, Credibility, The Rule in Browne v. Dunn, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 36.1, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 4(4), 96, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, s. 2, Browne v. Dunn (1893), 6 R. 67 (H.L)

Short Civil Decisions

Lee v. Lalu Canada Inc., 2019 ONCA 750

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 116 A.O.C. 103, Cytrynbaum v. Look Communications Inc., 2013 ONCA 455

Makovskis v. McKenney, 2019 ONCA 755

Keywords: Family Law, Matrimonial Home, Civil Procedure, Orders, Enforcement, Writs of Seizure and Sale, Family Law Act, s. 21

Tsui-Wong v. Xiao, 2019 ONCA 756

Keywords: Civil Procedure, Costs, Appeals, Fraudulent Conveyances, Fraudulent Conveyances Act, R.S.O. c. F.29, Assignments and Preferences Act, R.S.O. 1990, c. A.33

Broutzas v. Rouge Valley Health System, 2019 ONCA 751

Keywords: Appeal Book Endorsement, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 30

Stephens v. Stephens, 2019 ONCA 752

Keywords: Appeal Book Endorsement, Civil Procedure, Vexatious Litigants, Orders, Setting Aside, Procedural Fairness, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 140

Criminal Decisions

R. v. Johannes, 2019 ONCA 696

Keywords: Criminal Law, Drug Offences, Certiorari, R. v. Kamermans, [2016] O.J. No. 685 (C.A.)

R. v. Cumor, 2019 ONCA 747

Keywords: Criminal Law, Conspiracy to Traffic Cocaine, Conspiracy to Traffic Firearms, Possession of a Firearm, Possession of Proceeds of Crime, Procedural Fairness, Jury Selection, Jury Instructions, Jury Charge, Criminal Code, ss. 591(3)(a), 640(2), 640(2.1), 640(2.2), 686(1)(b)(iv), R. v. Jaser, 2014 ONSC 7528, rev'd 2019 ONCA 672, R. v. Grant, 2016 ONCA 639, R. v. Husbands, 2017 ONCA 607, leave to appeal refused, [2017] S.C.C.A. No. 364, R. v. Esseghaier, 2019 ONCA 672, R. v. Riley, 2017 ONCA 650, leave to appeal refused, [2018] S.C.C.A. No. 216, R. v. Murray, 2017 ONCA 393, R. v. Noureddine, 2015 ONCA 770, R. v. Swite, 2011 BCCA 54, R. v. Evans, 2019 ONCA 715, R. v. A.C., 2018 ONCA 333, R. v. Figliola, 2011 ONCA 457, R. v. Last, 2009 SCC 45, R. v. Puddicombe, 2013 ONCA 506, leave to appeal refused, [2013] S.C.C.A. No 496, R. v. Hamilton, 2011 ONCA 399, R. v. Hebert, [1996] 2 S.C.R. 272, R. v. Calnen, 2019 SCC 6, R. v. Rodgerson, 2015 SCC 38, R. v. R.V., 2018 ONCA 547, rev'd on other grounds, 2019 SCC 41

R. v. Hakimi, 2019 ONCA 749

Keywords: Criminal Law, Aggravated Assault, Firearm Offences, Evidence, Admissibility, Identification, Prior Statements, Video-recorded Statements, Jury Instructions, Sentencing, R. v. Bradshaw, 2017 SCC 35, R. v. Miapanoose (1996), 30 O.R. (3d) 419 (C.A.)

R. v. Curry, 2019 ONCA 754

Keywords: Criminal Law, Dangerous Driving Causing Death, Dangerous Driving Causing Bodily Harm, Impaired Driving Causing Death, Impaired Driving Causing Bodily Harm, Blood Alcohol Over Legal Limit Causing Accident Resulting in Death, Blood Alcohol Over Legal Limit Causing Accident Resulting in Bodily Harm

R. v. O'Leary, 2019 ONCA 758

Keywords: Criminal Law, Robbery, Use of Imitation Firearm, Conspiracy to Commit Robbery, Evidence, Admissibility, Prior Statements, Video-recorded Statements, Mental Illness, Vetrovec Warning, Fresh Evidence, Sentencing, R. v. Vetrovec, [1982] 1 S.C.R. 811

R. v. Beer (Publication Ban), 2019 ONCA 763

Keywords: Publication Ban, Criminal Law, Sexual Assault, Evidence, Credibility, Consent, Sentencing

Ontario Review Board

Davies (Re), 2019 ONCA 738

Keywords: Ontario Review Board, Not Criminally Responsible, Assault with a Weapon, Aggravated Assault, Threat to Public Safety, Conditional Discharge, Detention Orders, Criminal Code, ss. 672.54, 672.92, 672.93, R v Winko, [1999] 2 SCR 625, Esgin (Re), 2019 ONCA 155, Mazzei v British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, Campbell (Re), 2018 ONCA 140, R v Owen, 2003 SCC 33, R v Conway, 2010 SCC 22, Boucher (Re), 2015 ONCA 135, Tolias (Re), 2018 ONCA 2015, Collins (Re), 2018 ONCA 563, Centre for Addiction and Mental Health v Young, 2011 ONCA 432, Valdez (Re), 2018 ONCA 657

CIVIL DECISIONS

Derakhshan v. Narula, 2019 ONCA 742

[Doherty, Harvison Young and Thorburn JJ.A.]

Counsel:

FD, acting in person Ian C. Vallance, for the respondent, SN

FACTS:

The application judge dismissed the appellant, FD's application for retroactive spousal support, unjust enrichment and consequent constructive trust in twelve properties, a declaration that there was a joint family venture in the accumulated value of the properties, and an order for the return of his shares in an Indigenous staffing company. FD sought an order to set aside the decision and have the case reheard by a new judge.

ISSUES:

(1) Did the application judge make palpable and overriding errors of mixed fact and law?

(2) Did the application judge err by inappropriately copying from the written submissions of SN?

HOLDING:

Appeal dismissed.

REASONING:

(1) No, the application judge did not make palpable and overriding errors of mixed fact and law in regard to any of the following:

Spousal Relationship

While the application judge accepted that FD and SN were in a romantic relationship and lived together for approximately one year, she found that FD failed to prove that he and SN were in a spousal or common-law relationship for three years as required by the Family Law Act. The Court found that there was ample evidence to support this conclusion.

Unjust Enrichment

The application judge found that FD failed to prove his claim for unjust enrichment, as he was unable to adduce evidence to satisfy the court that he was not paid for work that he did or that SN was unjustly enriched at his expense. The Court held that there was ample evidence to support her findings.

Joint Family Venture

There was no evidence that FD was providing services other than services directly related to the properties. There was no pooling of funds or economic integration. At most, there was some financial overlap but no economic integration indicating a joint family venture. The Court found that the application judge's reasons provided ample basis to conclude that there was no joint family venture.

Transfer of Shares to Turtle Island

The application judge rejected FD's claims that his shares...