Court Of Appeal Summaries (May 30, 2022 ' June 3, 2022)

• Published date: 06 June 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Family and Matrimonial, Corporate and Company Law, Contracts and Commercial Law, Family Law, Trials & Appeals & Compensation, Franchising, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

In SS&C Technologies Canada Corp v The Bank of New York Mellon Corporation, the Court determined that the application judge had authority to amend his reasons for decision on liability after they were released and before signing judgment, which he will not sign until the conclusion of the upcoming damages phase of the proceeding. The Court found that in doing so, the application judge did not demonstrate a reasonable apprehension of bias warranting a stay of the liability aspect of the judgment pending appeal. The damages phase is to be concluded before the appellants can appeal the entire judgment.

In McGuire v Bator, the Court determined that the trial judge did not err in concluding that the respondent was not responsible for paying child support to the appellant and her son and in denying the claim for a constructive trust interest in the respondent's home. The Court agreed with the trial judge that the appellant had a needs-based entitlement to spousal support because of her disability, however it found that the lump-sum award of spousal support by the trial judge was in error. It ordered ongoing support for an indefinite duration.

Other topics covered this week included more family law (joint decision making and stay pending appeal/service outside Canada) and franchise law (rescission and claim to unpaid royalties).

Wishing everyone an enjoyable weekend.

Table of Contents

Civil Decisions

McGuire v Bator , 2022 ONCA 431

Keywords: Family Law, Spousal Support, Child Support, Property, Remedies, Constructive Trusts, Civil Procedure, Costs, Offers to Settle, Spousal Support Advisory Guidelines, Family Law Act, R.S.O. 1990, c.F.3, ss 43(5), 34(5), Family Law Rules, O. Reg. 114/99, Rules 18, 24, Chartier v Chartier, [1999] 1 S.C.R. 242, Bracklow v Bracklow, [1999] 1 S.C.R. 420, Gray v Gray, 2014 ONCA 659, Reisman v Reisman, 2014 ONCA 109, Djekic v Zai, 2015 ONCA 25, Fielding v Fielding, 2015 ONCA 901, Beaver v Hill, 2018 ONCA 840

Proulx v. Proulx , 2022 ONCA 428

Keywords: Family Law, Parenting, Joint Decision-Making, Civil Procedure, Costs, Children's Law Reform Act, SO 1990, c C12, ss 24(3)(i) & (j), Divorce Act, RSC 1985, c 3 (2^nd Supp), s. 2, Courts of Justice Act, R.S.O. 1990, c C.43, s 131(1), Family Law Rules, O. Reg. 114/99, Rules 24(1) and 24(12), Mattina v. Mattina, 2018 ONCA 867, Young v. Young, [1993] 4 S.C.R. 3

Coffee Time Donuts Incorporated v. 2197938 Ontario Inc., 2022 ONCA 435

Keywords: Contracts, Franchise Agreements, Royalties, Civil Procedure, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, Ventas Inc v Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, Saint John Tug Boat Co. Ltd. V Irving Refining Ltd., [1964] S.C.R. 614

Capone v Fotak , 2022 ONCA 430

Keywords: Family Law, Civil Procedure, Appeals, Stay Pending Appeal, Service of Documents, Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, 658 U.N.T.S. 163, Can. T.S. 1989 No. 2 (entered into force 10 February 1969, accession by Canada 1 May 1989), Rules of Civil Procedure, Rules 17.05(3)(b), 16.01(2), 17.06(1), Family Law Rules, O. Reg. 114/99, Rules; 6(1), 6(15.1), Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic, Popack v. Lipszyc, 2016 ONCA 135, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Wilson v. Servier Canada Inc., 50 O.R. (3d) 219 (S.C.)

SS&C Technologies Canada Corp v The Bank of New York Mellon Corporation , 2022 ONCA 373

Keywords: Contracts, Civil Procedure, Reasonable Apprehension of Bias, Appeals, Stay Pending Appeal, Bifurcation, Rules of Civil Procedure, Rule 38.10 (b), Montague v Bank of Nova Scotia (2004), 69 OR (3d) 87, leave to appeal refused, [2004] SCCA No 79, 1711811 Ontario Ltd v Buckley Insurance Brokers Ltd, 2014 ONCA 125, Brown v The Municipal Property Assessment Corp, 2014 ONSC 7137 (Div Ct), RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311, Circuit World Corp v Lesperance (1997), 33 OR (3d) 674 (CA), International Corona Resources Ltd v LAC Minerals Ltd (1986), 21 CPC (2d) 252 (Ont CA), Yukon Francophone School Board Education Area #23 v Yukon (AG), 2015 SCC 25, Committee for Justice and Liberty v National Energy Board, [1978] 1 SCR 369, Marchand v The Public General Hospital Society of Chatham (2000), 51 OR (3d) 97 (CA), R v RDS, [1997] 3 SCR 484, Stuart Budd & Sons Limited v IFS Vehicle Distributors ULC, 2016 ONCA 60, R v Arnaout, 2015 ONCA 655, Urbacon Building Groups Corp v Guelph (City), 2014 ONSC 3840, Korea Data Systems (USA), Inc v Aamazing Technologies Inc, 2012 ONCA 756, Robert J Sharpe, Injunctions and Specific Performance (Toronto: Canada Law Book, 2021)

2611707 Ontario Inc. v Freshly Squeezed Franchise Juice Corporation , 2022 ONCA 437

Keywords: Contracts, Franchise Agreements, Disclosure, Rescission, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c.3, Raibex Canada Ltd. v. ASWR Franchising Corp., 2018 ONCA 62, Mendoza v. Active Tire & Auto Inc., 2017 ONCA 471

Short Civil Decisions

Avedian v. Enbridge Gas Distribution Inc., 2022 ONCA 434

Keywords: Civil Procedure, Appeals, Jurisdiction, Functus Officio, Trials, Trial List, Summary Judgment, Contempt, Rules of Civil Procedure, Rule 20.05(2)(n)

Canadian Imperial Bank of Commerce v. Sutherland, 2022 ONCA 426

Keywords: Civil Procedure, Contracts, Debtor-Creditor, Mortgages, Assignment, Civil Procedure, Summary Judgment, Striking Pleadings, No Reasonable Cause of Action or Defence

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CIVIL DECISIONS

McGuire v Bator, 2022 ONCA 431

[Benotto, Zarnett and Copeland JJ.A.]

Counsel:

M.M. in person
A. Morrison and M Sretenovic, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Property, Remedies, Constructive Trusts, Civil Procedure, Costs, Offers to Settle, Spousal Support Advisory Guidelines, Family Law Act, R.S.O. 1990, c.F.3, ss 43(5), 34(5), Family Law Rules, O. Reg. 114/99, Rules 18, 24, Chartier v Chartier, [1999] 1 S.C.R. 242, Bracklow v Bracklow, [1999] 1 S.C.R. 420, Gray v Gray, 2014 ONCA 659, Reisman v Reisman, 2014 ONCA 109, Djekic v Zai, 2015 ONCA 25, Fielding v Fielding, 2015 ONCA 901, Beaver v Hill, 2018 ONCA 840

facts:

The appellant and the respondent were involved in a romantic relationship when the appellant moved into the respondent's home with her nine-year-old son. The appellant sold her condo and used the net proceeds for household expenses in the respondent's home. They cohabitated for five years during which the appellant became disabled by illness. The appellant was designated "disabled" by Canada Pension Plan and as of the date of trial her only source of income was her disability payment of about $1,200 per month.

Following the illness, the respondent was frustrated with the appellant's inability to continue living as she had before. The respondent provided the appellant with an ultimatum: either she signed a contract to perform household services and pay the respondent rent of $1,250 retroactive to October 2017, or she would be evicted as a trespasser. She objected to the contract and was given a document entitled "Trespass Notice and Eviction" requiring her to leave within four days. The appellant had nowhere to go and was unable to work, resulting in the respondent calling the police to remove her. The respondent relied on the eviction to demonstrate that he had no parental role with the appellant's son. The appellant then pursued a claim for child support for herself and her son and a constructive trust interest in the respondent's home.

The appellant appealed the decision of the trial judge, whereby a lump sum payment of spousal support was ordered on a needs basis but the appellant was not entitled to child support, and the claim for a constructive trust interest in the home was dismissed. The respondent cross-appealed on the issue of costs.

issues:

(1) Did the trial judge err in law in her determination on child support?

(2) Did the trial judge err in law in her dismissal of the claim for a constructive trust interest in the home?

(3) Did the trial judge err in law in her determination of spousal support?

(4) Did the trial judge err in her determination of costs?

holding:

Appeal allowed in part. Cross-appeal dismissed.

reasoning:

(1) No

To establish an entitlement to child support, the appellant has the onus to prove that the respondent exhibited a settled intention to treat the child as his own. The court must look to the factors set out in Chartier v Chartier [1999] 1 S.C.R. 242, which include, but are not limited to: whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent.

The trial judge concluded that the respondent did not exhibit a settled intention to treat the child as his own. The parties did not share a bank account, the respondent expected the appellant to pay him back for the expenses relating to her child, the respondent did not discipline the child, the appellant's child did not call the respondent dad, the respondent introduced the child as the appellant's son, and the respondent treated the appellant's son differently from his own children. These findings were open to the trial judge on the evidence.

(2)...