Court Of Appeal Summaries (May 2, 2022 ' May 6, 2022)

• Published date: 09 May 2022
• Subject Matter: Corporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Corporate and Company Law, Insolvency/Bankruptcy, Contracts and Commercial Law, Retirement, Superannuation & Pensions, Family Law, Trials & Appeals & Compensation, Real Estate, Civil Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 2nd, 2022.

In Poirier v. Logan, the Court upheld the permanent stay of an action for failure to disclose a partial settlement agreement with some of the defendants.

Other topics included specific performance relating to an agreement of purchase and sale of land, family law (equalization of NFP relating to pensions), charging orders in the family law context, conditional discharges from bankruptcy and mootness in relation to an appeal on the issue of standing to challenge COVID-19 restrictions that had already been lifted.

Table of Contents

Civil Decisions

Chang (Re), 2022 ONCA 346

Keywords: Bankruptcy and Insolvency, Conditional Discharges, Disclosure Obligations, Civil Procedure, Fresh Evidence, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3 ss. 68,158, 170, 172(2)(c) and 173

Baber v. Ontario (Attorney General), 2022 ONCA 345

Keywords: Health Law, COVID-19, Constitutional Law, Civil Procedure, Standing, Private Interest Standing, Public Interest Standing, Mootness, Canadian Charter of Rights and Freedoms, ss. 2 and 15, Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

Van Delst v. Hronowsky, 2022 ONCA 349

Keywords: Family Law, Equalization of Net Family Property, Pensions, Civil Procedure, Appeals, Orders, Amending or Varying, Family Law Act, R.S.O. 1990, c. F.3, s. 9, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1), Van Delst v. Hronowsky, 2019 ONSC 2569, Van Delst v. Hronowsky, 2020 ONCA 329, Van Delst v. Hronowsky, 2020 ONCA 402

Poirier v. Logan, 2022 ONCA 350

Keywords: Civil Procedure, Partial Settlement Agreements, Abuse of Process, Failure to Disclose, Stay of Proceedings, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, leave to appeal refused, [2011] S.C.C.A. No. 84, Laudon v. Roberts, 2009 ONCA 383, leave to appeal refused, [2009] S.C.C.A. No. 304, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Waxman v. Waxman, 2022 ONCA 311, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Aviaco International Leasing Inc. v. Boeing Canada Inc. (2000), 48 C.P.C. (4th) 44 (S.C.J.)

M & M Homes Inc. v. 2088556 Ontario Inc., 2022 ONCA 364

Keywords: Contracts, Real Property, Agreements of Purchase of Sale of Land, Remedies, Specific Performance, Purchase Price Abatements, Civil Procedure, Amending Pleadings

Foulidis v. Foulidis, 2022 ONCA 362

Keywords: Family Law, Contracts, Solicitor and Client, Charging Orders, Civil Procedure, Costs, Solicitors Act, R.S.O. 1990, c. S.15, sections 34(1), 34(2), Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Family Law Rules, O. Reg. 114/99, rule 2(2), Weenen v. Biadi, 2018 ONCA 288, Thomas Gold Pettinghill LLP v. Ani-Wall Concrete Forming Inc., 2012 ONSC 2182, Fancy Barristers P.C. v. Morse Shannon LLP, 2017 ONCA 82, Mpampas v. Steamatic Toronto Inc. (2009), 84 C.P.C. (6th) 85, Pino v. Van Roon (1998), 28 C.P.C. (4th) 274, Michael Dervin v. Manuel Suarez and Anatoie Koniouchine, 2021 ONSC 1339, Patton v. Patton, 54 R.F.L. (6th) 446, Booth (Re) (1985), 56 C.B.R. (N.S.) 289, Morton (Re), 2014 ONSC 5438, Guergis v. Hamilton, 2016 ONSC 4428

Short Civil Decisions

Sasso v. Sasso, 2022 ONCA 339

Keywords: Wills and Estates, Estate Trustees, Compensation

Madison Homes Cornell Rouge Limited v. Jiang, 2022 ONCA 351

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Misrepresentation, Damages, Civil Procedure, Summary Judgment, Hembruff v. Ontario Municipal Employees Retirement Board (2005), 78 O.R. (3d) 561 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 549 and [2006] S.C.C.A. No. 3

Curnew v. Loo, 2022 ONCA 341

Keywords: Civil Procedure, Striking Pleadings, Substantial Indemnity Costs

Flex Park Inc. v. Covello, 2022 ONCA 347

Keywords: Contracts, Real Property, Mortgages, Fraud, Civil Procedure, Default Judgements, Adjournment, Unconscionable Transactions Relief Act, R.S.O. 1990, c. U.2, Palmer v. The Queen, [1980] 1 S.C.R. 759

Scarlato v. Buzbuzian, 2022 ONCA 352

Keywords: Breach of Contract, Settlement Agreements, Estoppel, Civil Procedure, Summary Judgment, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273

Hume v. 11534599 Canada Corp., 2022 ONCA 360

Keywords: Civil Procedure, Appeals, Quashing Appeals, Removal of Lawyer of Record

Fazl v. Home Trust Company, 2022 ONCA 356

Keywords: Civil Procedure, Litigation Guardians, Summary Judgment, Adjournments, Substitute Decisions Act, 1992, S.O. 1992, c. 30

Anthony v. Cundari, 2022 ONCA 363

Keywords: Real Property, Adverse Possession, Civil Procedure, Issue Estoppel, Res Judicata

Public Guardian and Trustee v. Zammit, 2022 ONCA 371

Keywords: Civil Procedure, Appeals, Mootness, Transmission of Interest, Rules of Civil Procedure, Rule 11

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CIVIL DECISIONS

Chang (Re), 2022 ONCA 346

[Benotto, Miller and Copeland JJ.A.]

Counsel:

P. Masic, for the appellant

A. Ferguson, for the respondent J. Webb & Associates

R. Schliemann, for the respondent Bank of Montreal

Keywords: Bankruptcy and Insolvency, Conditional Discharges, Disclosure Obligations, Civil Procedure, Fresh Evidence, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3 ss. 68,158, 170, 172(2)(c) and 173

facts:

The appellant sought to set aside the application judge's conditional discharge order which required him to pay $325,000 to the Trustee in specified monthly installments until paid in full. The appellant is a professional chartered accountant and chartered management accountant. The subject matter of the proceedings was his second bankruptcy.

The appellant was unemployed and married. His spouse filed for bankruptcy at the same time as the appellant and has since been discharged. According to the Official Receiver Report, his wife found employment and is earning $3,000 gross per month. The appellant contended that although he and his spouse lived together, they were separated. The couple lived beyond their means and relied on the appellant's mother for loans to cover their expenses. The appellant's mother passed away and the appellant stated his share of the estate was worth $300,000 but contested by siblings.

The application judge made credibility findings that the appellant was untruthful, evasive, and a sophisticated debtor who was not merely "unfortunate". The application judge found a breach of the disclosure obligations under section 158 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3. The trial judge's findings under s. 173 resulted in a conditional discharge under s.172(2)(c) on payment in full of $325,000 to made in monthly installments. During the course of the proceedings, the Trustee wrote five letters directly to the application judge without copying the appellant or his counsel.

issues:

(1) Did the application judge err in granting a conditional discharge with a payment condition because the provisions of section 68 were not complied with?

(2) Did the application judge err in the amount of payment ordered?

(3) Can the appellant submit fresh evidence on appeal on consent of the respondent?

holding:

Appeal dismissed.

reasoning:

(1) No.

The appellant submitted that it was an error because the Trustee did not raise surplus income in the Report and that it was unfair that the appellant did not have an opportunity to respond to the assertion that he had surplus income.

Section 68 provides that a trustee is to determine if the bankrupt has surplus income and note it in the Report required under s. 170. The Court of Appeal found that s. 68 was not engaged. The application judge did not base his finding with respect to payment on surplus income but rather on the findings of fact and the appellant's conduct in breaching his obligations of disclosure under s. 158.

There was no unfairness because the appellant had ample opportunity to address the issue of his income. It was improper for the Trustee to send letters to the application judge on an ex parte communication. However, here there was no miscarriage of justice or prejudice. The information and documentation contained in the correspondence were already known to the appellant and in his possession.

(2) No.

The appellant submitted that the amount was based on the possibility of the $300,000 inheritance. The application judge did not make a statement to this effect.

(3) No.

The respondent wanted to submit fresh evidence on the validity of the second mortgage on the appellant's home. There was no relevance to the evidence and would not have affected the result.

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Baber v. Ontario (Attorney General)...