Court Of Appeal Summaries (October 5 ' October 9, 2020)
Published date | 13 October 2020 |
Law Firm | Blaney McMurtry LLP |
Author | Mr John Polyzogopoulos |
Good afternoon.
Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario.
The decisions were all fairly short. Topics covered included prescriptive easements, breach of contract, family law (support), the approval of a settlement and contingency fee agreement in a personal injury matter and security for costs.
Wishing everyone an enjoyable weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
CIVIL DECISIONS
Ballanger v. Ballanger, 2020 ONCA 626
[Juriansz, Hourigan and Thorburn JJ.A.]
Counsel:
S. Beddoe and J. Robinson, for the appellant
G.S. Joseph and A.M. Mastervick, for the respondent
J.J. Neal, for the respondent
Keywords: Family Law, Spousal Support, Child Support, Retroactive Support, Civil Procedure, Appeals, Standard of Review, Hickey v. Hickey, [1999] 2 S.C.R. 518
facts:
This appeal was brought from the trial judge's orders on spousal support, retroactive spousal support and retroactive child support. The appellant claims that the trial judge made palpable and overriding errors in granting insufficient spousal support and failing to order retroactive spousal support and child support.
The parties separated in 2004. In 2006, the parties agreed on amounts for both child support and spousal support, as well as a division of matrimonial assets. In 2008, however, the appellant applied for an increase in support based on an increase in the respondent's income. A temporary order for an increase was made, as well as an order to pay retroactive support.
The parties later contentiously disputed the issue of spousal and child support over the course of an eight day trial. The trial judge fashioned an order based on average income attributed to the respondent, due to the fact that the respondent's income varied greatly from year to year.
issues:
(1) Did the trial judge err in granting insufficient support and failing to order retroactive support?
holding:
Appeal dismissed.
reasoning:
No. The Court pointed out that the Supreme Court of Canada has instructed appellate courts to afford significant deference to trial judges in cases relating to support orders. Firstly, because the discretion involved in making a support order is best exercised by the judge who heard the parties directly. And secondly, because this approach promotes finality in family law matters.
The Court of Appeal therefore concluded that an appellate court can only interfere with a trial judge's decision if there is a material error such as a serious misapprehension of the evidence, or an error in law. It is not entitled to overturn a support order simply because it would have made a different decision (Hickey v. Hickey, [1999] 2 S.C.R. 518).
The Court ultimately found that, in this case, the trial judge heard evidence over an extensive trial. His reasons were adequate and thoughtful, and it was clear that he had considered all of the relevant factors in arriving at his decision. As such, the Court of Appeal found no reason to interfere with the trial judge's decision.
Estates Associates Inc. v. 1645112 Ontario Ltd., 2020 ONCA 640
[Strathy C.J.O., Brown and Huscroft JJ.A.]
Counsel:
M. I., acting in person for the appellant/ moving party
D.N.V., for the responding party, B.C.
A.S.D., for the responding parties, 1645112 Ontario Ltd., 1793411 Ontario Ltd., and R.M.
Keywords: Civil Procedure, Appeals, Security of Costs, Breach of Contract, Torts, Fraud, Negligent Misrepresentation, Conspiracy, Professional Negligence, Lawyers, Rules of Civil Procedure, Rules 61.06(1), Yaiguaje v. Chevron Corporation, 2018 ONCA 827
facts:
The appellant made claims for events that occurred 11 to 12 years ago including fraud, negligent misrepresentation, conspiracy, and breach of contract against the respondent, R.M. and his companies, in connection with the sale of a property. The appellant also claimed against the defendant, B.C., for allegedly negligent legal services. The claim was dismissed and the trial judge subsequently awarded costs to the respondents. The appellant sought to set aside or vary the order of the motion judge requiring that it post security for costs of the appeal in the amount of $100,000 each.
issues:
(1) Should the motion judge's order requiring the appellant to post security for costs in the amount of $100,000 each be set aside or varied?
holding:
Motion dismissed.
reasoning:
No. The Court held that the motion judge's order for security for costs rested on two foundations: first, a finding that the merits of the appeal were very much in doubt; and second, a finding that the respondents failed to establish that, despite its apparent impecuniosity, it did not have access to funds.
The motion judge's order was discretionary and entitled to deference. The Court found that the appellant had demonstrated neither an error of law nor an error in principle in the exercise of the motion judge's discretion. The Court found that, while the appeal may not be frivolous or vexatious, it appeared to have a very low prospect of success. The motion judge properly considered whether the appellant had established that it did not have access to funds and would not have been able to pay security for costs. There was evidence that the appellant had funded its litigation at various times by retaining several different lawyers, retaining an expert witness, and paying for the costs of the trial...
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