Court Of Appeal Summaries (July 21 To 25, 2014)

Hi everyone. Here are this week's Court of Appeal summaries. Another light week from the Court of Appeal. This week's topics include abuse of process, partnership law and attornment.

Biron v. Aviva Insurance Company, 2014 ONCA 558 [Endorsement]

[Hoy A.C.J.O., Gillese and Lauwers JJ.A.]

Counsel: Appellant appearing in person K. C. Dickson, for the respondent

Keywords: Abuse of Process, Costs, Duty of Care, Collateral Attacks.

Facts:

In a separate small claims court proceeding, the appellant, Cristian Biron, was sued for damages relating to a car accident with a person insured by the respondent, Aviva. Aviva appointed the co-respondent, Sylvia Robin, to defend the insured. The small claims court action was ultimately dismissed.

In this action, Biron sued Robin for a number of intentional torts relating to trial tactics. The claims were for breach of duty, non-compliance with the rules of Small Claims Court, intrusion of privacy and infliction of mental stress. Specifically, Biron claimed that Robin gave notice of an intention to rely on information that was embarrassing and irrelevant. This information was not relied on at trial, but Biron claimed he was harmed nonetheless and that it prevented him from pursuing his claim effectively. The motion judge dismissed the claim on the basis that it was an abuse of process and that it disclosed no cause of action.

Costs of $5,000.00 were awarded against the plaintiff (now appellant).

Issues:

Did the motion err in dismissing the appellant's claim as an impermissible collateral attack on the decision of another court, an abuse of process, and for disclosing no cause of action? Did the motion judge err in their costs award? Decision:

Appeal dismissed and leave to appeal costs denied.

Reasoning:

The action was an impermissible collateral attack on a decision of the Small Claims Court. The motion judge correctly held that Biron's claim could not succeed based on the legal principle in Admassu v. Pantel, 2009 CarswellOnt 4047, that in litigation, the opposing counsel owes no duty of care to the opposing party. The Court saw no error with the motion judge's decision that the action was an abuse of process and that it disclosed no cause of action, and agreed that Robin owed no duty to the appellant. The court held that no issue of principle was engaged by the motion judge's costs award and that it was an exercise of her discretion. Gordon v. York Region Condominium Corporation No. 818, 2014 ONCA 549

[Hoy A.C.J.O., Gillese and Lauwers JJ.A.]

Counsel: Michael J. Campbell, for the appellant Benjamin J. Rutherford, for the respondents

Keywords: Condominium Act, s.56(6) Condominium Act, Board of Directors, Code of Ethics.

Facts:

The board of directors of York Region Condominium Corporation No. 181 had disqualified the appellant from being a director, pursuant to its By-law No. 9, for violating the Directors' Code of Ethics during the term he was in office. The application judge found that the board had violated principles of natural justice and procedural fairness. The application judge (i) set aside a decision made by the defendant's board of directors disqualifying the appellant as a director due to his alleged violations of the defendant's Directors' Code of Ethics and (ii) provided for a new ethics review of the appellant. The appellant was given a second review, where he was disqualified.

The appeal was brought on three arguments: (1) By-law 9 contradicts s.56(6) of the Condominium Act ("Act"); (2) the By-law is inconsistent with democratic condominium governance as found in the Act; and (3) the application judge erred in not immediately re-instating him. The appellant...