Court Of Appeal Summaries (December 7 ' December 11, 2020)

• Published date: 21 December 2020
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Family Law, Constitutional & Administrative Law, Court Procedure, Trials & Appeals & Compensation, Construction & Planning, Real Estate, Civil Law, Divorce
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

Please find below our summaries of the civil decisions of the Court of Appeal for the week of December 7, 2020. We have also summarized R. v. Irwin, a provincial offences decision relating to Building Code violations, as it deals with the rule prohibiting collateral attacks of orders, and is therefore a decision applicable in the civil and administrative law context.

Other topics covered this week included agreements of purchase and sale of land, jurisdiction/forum non conveniens, reasonable apprehension of bias, occupier's liability and family law.

On another note, please mark down April 27, 2021, from 5:30-7:45pm in your calendars for our fifth annual "Top Appeals" CLE, which will take place via Zoom again. We are in the process of reviewing and deciding on the top appeals of the year, so if anyone has any suggestions, please let us know. In the meantime, please register for the program by clicking here, which will take you to the OBA's website.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

McMurter v. McMurter, 2020 ONCA 772

Keywords: Family Law, Spousal Support, Security, Civil Procedure, Procedural and Natural Justice, Reasonable Apprehension of Bias, Divorce Act R.S.C. 1985, c. 3, (2nd Supp.), ss. 15.2, 17(3), Indian Act, R.S.C., 1985, c. I-5, R. v. S. (R.D.), [1997] 3 S.C.R. 484, D.G. v. A.F., 2015 ONCA 290

Cosentino v. Cosentino, 2020 ONCA 775

Keywords: Family Law, Support, Orders, Variation, Material Change in Circumstances, Willick v. Willick, [1994] 3 S.C.R. 670

Onley v. Whitby (Town), 2020 ONCA 774

Keywords: Torts, Negligence, Occupiers' Liability, Standard of Care, Reasonable Measures, Expert Evidence, Occupiers' Liability Act, ss. 3(1), Drummond v Cadillac Fairview Corporation Limited, 2019 ONCA 0447, Tondat v Hudson's Bay Company, 2019 ONCA 0302

GIAO Consultants Ltd. v. 7779534 Canada Inc., 2020 ONCA 778

Keywords: Civil Procedure, Conflict of Laws, Jurisdiction, Forum Non Conveniens, Standard of Review, Club Resorts Ltd. v. Van Breda, 2012 SCC 1, Young v. Tyco International of Canada Ltd., 2008 ONCA 709, Haaretz.com v. Goldhar, 2018 SCC 28

Malik v. Attia, 2020 ONCA 787

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Subdivision Control, Deposits, Forfeiture, Civil Procedure, Partial Summary Judgment, Planning Act, R.S.O. 1990, c. P.13, ss. 50(3), 50(15), Baker v. Nero (1979), 23 O.R. (2d) 646 (H.C.), Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Healthy Lifestyle Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA 6, Komorowski v. Van Weel (1993), 12 O.R. (3d) 444 (Gen. Div.), Lapolla v. The Estate of John Bostock, 2017 ONSC 7448, Smith v. Tellier (1974), 47 D.L.R. (3d) 342 (Ont. C.A.), rev'd on other grounds [1976] 2 S.C.R. 255, Zender v. Ball (1975), 51 D.L.R. (3d) 499 (Ont. H.C.), 2287913 Ontario Inc. v. Blue Falls Manufacturing Ltd., 2015 ONSC 7982, Hryniak v. Mauldin, 2014 SCC 7, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, Weirfoulds LLP, Ontario Planning Practice: Annotated Statutes and Regulations (Toronto: Thomson Reuters, 2019), at PA 1, s. 50(15); Practical Law Canada, "Simultaneous Conveyancing When Land in Both Registry and Land Titles" (Thomson Reuters, October 2020), Ian Rogers & Alison Butler, Canadian Law of Planning and Zoning, 2nd ed. (Toronto: Thomson Reuters, 2019)

Dhatt v. Beer, 2020 ONCA 799

Keywords: Civil Procedure, Appeals, Expediting Appeal, Intervention, Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Specific Performance

Short Civil Decisions

Sparr v. Downing, 2020 ONCA 793

Keywords: Family Law, Child Support, Financial Disclosure, Family Law Rules, O. Reg. 114/99, Roberts v. Roberts, 2015 ONCA 450, Manchanda v. Thethi, 2016 ONCA 909, leave to appeal refused, [2017] S.C.C.A. No. 29, Peerenboom v. Peerenboom, 2020 ONCA 240,

614128 Ontario Ltd. (Trisan Construction) v. Toronto (City), 2020 ONCA 803

Keywords: Construction Law, Trust Obligations, Statutory Holdback, Settlements, Construction Lien Act, R.S.O. 1990, c. C.30

Bonus Provincial Offences Decision

R. v. Irwin , 2020 ONCA 776

Keywords: Provincial Offences, Building Code Violations, Administrative Law, Orders, Collateral Attack, Building Code Act, ss. 1, ss. 8(1), ss. 12(2), ss. 25, ss. 36(1), R v Consolidated Maybrun Mines Ltd., [1998] 1 SCR 706, Wilson v The Queen, [1983] 2 SCR 594, R v Bird, 2019 SCC 7, Garland v Consumers' Gas Co., 2004 SCC 25, Amtim Capital Inc. v Appliance Recycling Centers of America, 2014 ONCA 62, R v Domm, (1996) 31 OR (3d) 540 (CA), Canada (Attorney General) v Telezone Inc., 2010 SCC 62, Toronto (City) v CUPE, Local 79, 203 SCC 63, 864503 Alberta Inc. v Genco Place Properties Ltd., 2019 ABCA 80

CIVIL DECISIONS

McMurter v. McMurter, 2020 ONCA 772

[Feldman, Simmons and Harvison Young JJ.A]

Counsel:

K. A. M., acting in person

A. Rogerson, for the appellant

Keywords: Family Law, Spousal Support, Security, Civil Procedure, Procedural and Natural Justice, Reasonable Apprehension of Bias, Divorce Act R.S.C. 1985, c. 3, (2nd Supp.), ss. 15.2, 17(3), Indian Act, R.S.C., 1985, c. I-5, R. v. S. (R.D.), [1997] 3 S.C.R. 484, D.G. v. A.F., 2015 ONCA 290

facts:

The appellant, former husband, appealed from an order dated December 28, 2018, in which the motion judge dismissed the appellant's motion requesting that she recuse herself from continuing to preside in this proceeding based on a reasonable apprehension of bias.

In the same order, the motion judge dismissed as moot a motion by the respondent, former wife, seeking to prevent the appellant from selling one of four properties (the "Bell's Side Road property") over which the wife had an order for security for future spousal support (the "security order"). As of the date of the motion, the appellant no longer had a buyer for the property. The motion judge also dismissed the respondent's motion requesting that the appellant transfer to her the four properties to which the security order applied and the appellant's motion to remove the security order from all four properties.

The motion judge made the security order following the trial of a 2016 change motion brought by the appellant in which he sought to terminate spousal support payable to the respondent. The motion judge observed at the time of making the order for security, that the order was subject to the Indian Act, which requires approval of the relevant band and the Minister of Indian Affairs and Northern Development. She found that the bases for the security order included the appellant's past history of refusing to pay support when he had the ability to do so and lying to the court about his income. Among other things, in her 2016 change motion order, the motion judge dismissed the appellant's request to terminate spousal support; granted the respondent's request for the security order under the Divorce Act, and seized herself of issues arising from the change motion order.

In her reasons for the 2016 change motion order, the motion judge concluded that the appellant failed to make full disclosure, that certain disclosure he did provide was deliberately misleading and that certain values he put forward were deliberately false.

The appellant appealed and sought an order for a new hearing of the underlying motions.

issues:

1. Did the motion judge err in failing to conclude that various adverse findings she made concerning the appellant in her reasons for the 2016 change motion order gave rise to a reasonable apprehension of bias?

holding:

Appeal dismissed.

reasoning:

No, the Court saw no basis on which to interfere with the motion judge's decision not to recuse herself. Judges are presumed to be impartial and the test for apprehension of bias establishes a high threshold. It requires that any apprehension of bias be a reasonable one, held by reasonable and right-minded persons. It asks what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he or she think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly?

Here, the Court found that the motion judge's 2016 change motion findings were neither unnecessary nor abusive. They were factual findings made following the change motion trial that were necessary to the proper adjudication of the issues in that proceeding. Significantly, the findings stood unchallenged in the ongoing proceedings between the parties, as the appellant did not pursue his appeal in 2016 and ultimately it was dismissed for delay.

Additionally, the Court found that the appellant did not raise an allegation of bias in his notice of appeal of the 2016 change motion order; nor did he raise the issue of bias on the initial argument of the security order motions. The Court held that the motion judge's finding that the motivation for the recusal motion was the appellant's disagreement with the judge's May 7, 2018 order was supported by the record.

In any event, the Court was not satisfied that the motion judge's adverse credibility findings in her 2016 change motion reasons, standing alone, compromised her impartiality in relation to the issues before her on the 2018 security order motions. The main issue was whether the remaining security would be sufficient if the appellant was permitted to dispose of the Bell's Side Road property. Prior to the recusal motion, the motion judge had already determined that the remaining security would be sufficient.

The Court also observed that, particularly in family law proceedings, where, as here, parties may appear in court repeatedly, judicial continuity is recognized as promoting both efficiency and fairness. Here, the motion judge's knowledge of the history of the matter not only saved judicial resources, it contributed to her ability to determine the appropriate...