Court Of Appeal Summaries (July 2-9, 2021)

• Published date: 13 July 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Criminal Law, Family and Matrimonial, Family Law, Constitutional & Administrative Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Human Rights, Crime, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of July 5, 2021.

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Topics covered this week included civil forfeiture of proceeds of unlawful activity, regulated professions, family law, breach of fiduciary duty in a partnership context, and stay pending appeal to the Supreme Court of Canada.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Table of Contents

Civil Decisions

Mahtani v. Mistry, 2021 ONCA 492

Keywords: Family Law, Spousal Support, Child Support, Income for Support Purposes, Imputing Income, Underemployment, Equalization of Net Family Property, Civil Procedure, Evidence, Expert Witnesses, Costs, Federal Child Support Guidelines S.O.R./97-175, s. 19

Tanase v. College of Dental Hygienists of Ontario , 2021 ONCA 482

Keywords: Administrative Law, Regulated Professions, Dental Hygienists, Professional Misconduct, Regulated Health Professionals Act, 1991, S.O. 1991, c. 18, Schedule 2 Health Professionals Procedural Code, sections 51(1) and 95(1)(0.a), Canadian Charter of Rights and Freedoms, sections 7 and 12, Dental Hygiene Act, 1991, S.O. 1991, c.22, Ontario Regulation 565/20, Regulated Health Professionals Act (Spousal Exception), 2013, S.O. 2013, c. 9, s. 2, Health Professionals Procedural Code, O. Reg. 260/12, subsection 1 (6), section 1.2, Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, Mussani v. College of Physicians and Surgeons of Ontario, (2004), 248 D.L.R. (4th) 632 (Ont. C.A.), R v Schmidt, 2014 ONCA 188, leave to appeal refused, [2014] SCCA No. 208, New Brunswick (Minister of Health and Community Services) v G.(J.), [1993] 3 SCR 46, Walker v. Prince Edward Island, [1995] 2 SCR 407, Siemens v. Manitoba (Attorney General), 2003 SCC 3, Green v. Law Society of Manitoba, 2017 SCC 20, Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393, Carter v. Canada (Attorney General), 2015 SCC 5, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, Canada (Attorney General) v. Bedford, 2013 SCC 72

Weisberg v. Dixon, 2021 ONCA 491

Keywords: Partnerships, Corporations, Breach of Fiduciary Duty, Unjust Enrichment, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24

Ontario (Attorney General) v. Norwood Estate, 2021 ONCA 493

Keywords: Criminal Law, Proceeds and Instruments of Unlawful Activity, Property, Proceedings In Rem, Civil Remedies, Forfeiture, Settlements, Statutory Interpretation, Civil Remedies Act, 2001, S.O. 2001, c. 28, s. 1, s.2, s. 3, s. 6, s.7(1), ss. 8, s. 11, s. 15.6(1), s. 16, s. 18.1, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 17, Criminal Code, R.S.C. 1985, c. C-46, ss. 462.38(2) and 490(9), Sullivan on the Construction of Statutes, 6th ed., Ruth Sullivan, R. v. Norwood, 2016 ONSC 6207, Chatterjee v. Ontario (Attorney General), 2009 SCC 19, Ontario (Attorney General) v. $29,900 in Canadian Currency (in rem), 2017 ONSC 2003, AGO v. $80 Cdn., et al., 2021 ONSC 988, Ontario (Attorney General) v. 269 Weldrick Road West (in rem), 2020 ONSC 4605, R. v. Stipo, 2019 ONCA 3, R v. Proulx, 2000 SCC 5, Ontario v. Canadian Pacific Ltd. [1995] 2 S.C.R. 1031, Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Crystalline Investments Ltd. v. Domgroup Ltd., 2004 SCC 3, Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32, Harrison v. Carswell, [1976] 2 S.C.R. 200, Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64

Wiseau Studio, LLC v. Harper, 2021 ONCA 504

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Security of Costs, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.01(1), Rules of Civil Procedure, Rule 61.06(1), Wiseau Studio, LLC v. Harper, 2021 ONCA 31, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

Zia v. Ahmad, 2021 ONCA 495

Keywords: Family Law, Spousal Support, Civil Procedure, Arbitration, Default Proceedings, Orders, Enforcement, Res Judicata, Family Law Act, R.S.O. 1990, c. F.3, Sections 59.2(1)(b) and 59.4, Arbitration Act, 1991, S.O. 1991, c. 17, Section 7, Family Law Rules, O. Reg. 114/99, Rule 25(19), Rathwell v. Hershey Canada Inc. (2001), 152 O.A.C. 1 (CA)

Short Civil Decisions

Markham (City) v. AIG Insurance Company of Canada, 2021 ONCA 488

Keywords: Civil Procedure, Appeals, Reconsideration, Finality

7084421 Canada Ltd. v. Vinczer, 2021 ONCA 497

Keywords: Civil Procedure, Jurisdiction, Rules of Civil Procedure, Rules 61.13(3.1), 61.16(5)

Fort Erie (Town) v. 2312810 Ontario Inc, 2021 ONCA 500

Keywords: Provincial Offences, Appeals, Jurisdiction, Leave to Appeal, Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 131(1)-131(3), Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (Ont. C.A.)

CIVIL DECISIONS

Mahtani v. Mistry, 2021 ONCA 492

[Tulloch, Roberts and Thorburn JJ.A.]

Counsel:

S.P. Kirby, for the appellant

R.A. Fernandes, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Income for Support Purposes, Imputing Income, Underemployment, Equalization of Net Family Property, Civil Procedure, Evidence, Expert Witnesses, Costs, Federal Child Support Guidelines S.O.R./97-175, s. 19

facts:

The Appellant husband appealed from the order for spousal and child support, as well as for equalization of property granted to the Respondent wife. The issues at trial were the questions of the amount of income to be imputed to the Appellant under s. 19 of the Federal Child Support Guidelines S.O.R./97-175, and the valuation of his 50% interest in his business, VAMS Canada Inc., for the purposes of determining support and equalization of property.

issues:

(1) Did the trial judge err in accepting the evidence of the respondent's expert to impute income to the Appellant?

(2) Did the trial judge make inconsistent findings with respect to the valuation of VAMS Canada Inc. as at the dates of separation and marriage for the purpose of the equalization calculation?

holding:

Appeal dismissed.

reasoning:

(1) No

The trial judge did not base his conclusion on the figures in the expert reports but looked at all the evidence. He found that the Appellant was deliberately underemployed, did not make full financial disclosure, and intentionally diverted business from VAMS Canada Inc. to VAKA Trading Inc., a company incorporated by his family roughly two weeks after his separation, the timing of which the trial judge found to be suspicious.

It was open to the trial judge to accept the opinion of the Respondent's expert that, based on several indicators, additional income should be imputed to the appellant. These indicators included census tract data, borrowing costs, and evidence of the Appellant's lifestyle and expenses, from which the trial judge, reasonably in the Court's view, inferred that the Appellant was receiving a higher income than he reported.

(2) No

The Court saw no basis to interfere with the trial judge's determination of the value of the Appellant's interest in VAMS Canada Inc. The Appellant's arguments failed to consider the trial judge's findings concerning the deficiencies in the evidence and the lack of credible financial disclosure and documentation. The Appellant had failed to produce court-ordered evidence demonstrating the existence of the loans allegedly made by him.

The trial judge therefore concluded that the Appellant had not proven that the shareholder loans were from him or owed to him, either at the date of marriage or at the date of separation. This conclusion was amply supported by the evidence that the trial judge was entitled to accept.

Further, the trial judge's decision to adopt different methodologies for the valuation of VAMS Canada Inc. at the date of marriage and the date of separation did not give rise to an inconsistency necessitating appellate intervention. There was expert evidence before the trial judge that changing circumstances could necessitate changing methods of valuation.

Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482

[Feldman, MacPherson, Juriansz, Huscroft and Jamal JJ.A.]

Counsel:

S.P. Weinstein and M.M. Biddulph, for the appellant

J. Maciura and E. Richler, for the respondent

S.Z. Green, for the intervener Attorney General of Ontario

Keywords: Administrative Law, Regulated Professions, Dental Hygienists, Professional Misconduct, Regulated Health Professionals Act, 1991, S.O. 1991, c. 18, Schedule 2 Health Professionals Procedural Code, sections 51(1) and 95(1)(0.a), Canadian Charter of Rights and Freedoms, sections 7 and 12, Dental Hygiene Act, 1991, S.O. 1991, c.22...