Ontario Court Of Appeal Summaries (April 18-21, 2017)

Good afternoon,

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario.

In Lawrence v International Brotherhood of Electrical Workers (IBEW) Local 773, in a split decision, the Court of Appeal granted a representation order nunc pro tunc to commence a wrongful dismissal action against a Union after the limitation period had expired because the Union and some of its representatives had defended the proceeding to the point that it was ready for trial.

In Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320, the court partially upheld complicated and detailed findings of fraud, unlawful conspiracy, deceit, and breach of fiduciary duty by the shareholders and directors of two failed corporate ventures to develop oil and gas fields in Russia.

In an administrative law, aboriginal law and Charter case, Gehl v Canada (Attorney General), the court set aside a decision by the Registrar under the Indian Act to deny Dr. Gehl status as an "Indian" under the 1985 amendments to Indian Act. The court came to the conclusion that the decision was unreasonable because it denied Dr. Gehl Indian status due to her inability to prove that her paternal grandfather was Indian, even though she had circumstantial evidence that he was Indian and there was no evidence to the contrary. Justice Sharpe partially relied on the application of Charter values in reaching his conclusion. Justices Miller and Lauwers relied solely on the basis of administrative law principles and declined to apply Charter values.

Other topics covered included wills and estates, vexatious litigants and setting aside default judgments.

Civil Decisions

Jansen v Niels Estate, 2017 ONCA 312

[Simmons, Pepall and Huscroft JJ.A.]

3. A. Brown, for the appellant

10. L. Turner, for the respondent, Ingrid Niels

    Keywords: Wills and Estates, Inter Vivos Gifts, Joint Tenancies, Severance Hansen Estate v. Hansen, 2012 ONCA 112, McNamee v. McNamee, 2011 ONCA 533, Foley v. McIntyre, 2015 ONCA 382

    Facts:

    This decision concerned the estate of Theadora Niels, who died in November 2010. The principal issue was whether the interest in her house passed by right of survivorship to her daughter-in-law, Ingrid Niels, pursuant to a joint tenancy established by gift, or became part of her estate that is to be shared among her children.

    Theadora made two wills prior to the 2004 will and codicil, one in 1998 and one in 1999. These wills divided her estate into three shares, one for her son Richard, one for Marjolein, and one to be divided between her son Frank and his children.

    In 2004, Marjolein noticed a "for sale" sign on Theadora's property. In November of 2004, Marjolein wrote a provocative letter to her mother asserting that the sale of the property was her business, that Theadora had always said the house belonged to Marjolein and her brothers, and that it was wrong for Theadora to sell the home.

    Theadora did not respond to the letter, and Marjolein and Theadora never spoke again. On December 1, 2004, two days following Marjolein's letter, Theadora made a new will. She removed Marjolein as executor but continued to leave her one-third share of her estate.

    Theadora had purchased the property that was the subject of the appeal (the "Flos Road property"), but the sale had not yet closed when she made her new will. A codicil dated December 1, 2004 was executed providing that if Theadora died before title was taken to the property, title would be taken by Richard and the purchase would be funded by Theadora's estate.

    Theadora took title to the property in April 2005. Title was twice converted to a joint tenancy. First it was between Theadora and Richard, then it was to Theadora, Richard, and Richard's wife Ingrid as joint tenants.

    In 2009, Richard and Ingrid signed a separation agreement that Richard downloaded off the internet. The agreement provided that Richard would transfer his interest in the property to Ingrid following the death of Theadora, and the property would be the inheritance of their children.

    In 2010, Theadora was diagnosed with cancer. She asked Ingrid to take care of her, and Ingrid did so. Shortly before her death, she made a phone call to her alternate executor, Carol Harding (the assistant of her lawyer), seeking assurance that the property would go to Richard and Ingrid when she died.

    In 2011, Richard and Ingrid signed an amendment to the separation agreement which stated that they jointly owned the property and that Richard was transferring his right, title and interest to Ingrid. In December 2011, a transfer was registered.

    Theadora's daughter, Marjolein Jansen, brought an application seeking a declaration that the house is part of Theadora's estate and should be distributed under the will and codicil made in 2004. Her application was dismissed. She appealed from that decision and sought leave to appeal the application judge's costs award.

    Issues:

    Was the joint tenancy severed? Did Theadora gift the property to Richard and Ingrid? Was Theadora subject to undue influence? Did the application judge err in awarding costs against Marjolein and not the estate, or err in the amount awarded? Holding:

    Appeal dismissed.

    Reasoning:

    (1) No. Severance of a joint tenancy may be achieved in one of three ways: 1) unilaterally acting on one's own share, such as selling or encumbering it; 2) a mutual agreement between co-owners to sever; or 3) any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.

    Marjolein first argued that the joint tenancy was severed by the 2009 separation agreement. This submission was rejected, as the separation agreement did no more than express an intention to convey an interest in the future. An expression of intention is insufficient to achieve severance. Furthermore, the conveyance of one joint tenant's interest to another severs the interest of the joint tenant making the conveyance or granting exclusive possession. It does not sever the whole of the joint tenancy. So, the separation agreement could sever no more than Richard's one third interest in the joint tenancy. When Theadora died, the two-thirds interest she held jointly with Ingrid passed to Ingrid by survivorship, leaving no portion of the property to pass to her estate.

    Marjolein also argued that the joint tenancy was severed by the provision of the 2009 separation agreement that Richard and Ingrid's children would inherit the property. This submission was also rejected. In general, a joint tenancy is unaffected by a will, because property is conveyed pursuant to the joint tenancy outside the terms of the will.

    Marjolein also submitted that the parties made a mutual decision to sever the joint tenancy. This too was rejected. Hansen Estate v. Hansen, 2012 ONCA 112 requires the court to determine, having regard to all of the evidence, whether the parties intended to treat their interests as constituting a tenancy in common. This is a fact-specific inquiry that is subject to deference on appeal. The application judge found "not one scintilla of evidence" that the parties intended to mutually treat the tenancy as a tenancy in common.

    (2) Yes. The application judge applied the proper test for a gift, as set out in McNamee v. McNamee, 2011 ONCA 533. To establish a gift, one must show intention to donate, sufficient delivery of the gift, and acceptance of the gift. Theadora's intention to gift the property was evident from her instructions to her solicitor and his assistant, as well as the executed documents.

    (3) No. Marjolein submitted that the application judge erred by requiring her to establish undue influence rather than simply demonstrate that the relationship of the parties gave rise to a potential for undue influence. The judge applied the test in Foley v. McIntyre, 2015 ONCA 382, which holds that the presumption of undue influence applies where the potential for domination inheres in the relationship between the transferor and transferee. Where the presumption applies, the transferee must establish that a gift was the result of the full, free and informed thought of the transferor. The application judge found that the potential for domination and undue influence was completely rebutted based on the factual findings. Theadora was independent, cognitively engaged and unfettered by persuasion.

    (4) No. The Estate had minimal involvement in the proceedings and was not represented at the hearing. The litigation was brought by Marjolein in an attempt to undo arrangements Theadora had made in order to ensure that no part of the property would pass to her. There were no public policy considerations that warranted relieving Marjolein of the responsibility to pay costs.

    Stanbarr Services Limited v Reichert, 2017 ONCA 318

    [Feldman, Cronk and Miller JJ.A]

    Counsel:

    Ivan Y. Lavrence, for the appellant

13. Greenglass, for the respondents

    Keywords: Real Property, Mortgages, Civil Procedure, Trials, Adjournments

    Facts:

    At issue was a default in payment on a second mortgage held by the respondents, which occurred in November 2011. On April 18, 2013, the respondents obtained partial summary judgment for possession of the mortgaged premises. In granting summary judgment, Bielby J. of the Superior Court of Justice rejected the appellant's claim that he and his wife were merely tenants of the property and that the property was legally and beneficially owned by a family trust created by the appellant and his wife, rather than the appellant personally. The Court of Appeal dismissed the appellant's appeal from Bielby J.'s judgment on October 2, 2013.

    Thereafter, a court-appointed receiver sold the mortgaged premises, with court approval. The sale proceeds were insufficient to satisfy either the debt owing on a first mortgage on the property or any of the monies owing under the second mortgage held by the respondents.

    The respondents' action for payment of the mortgage debt was set down for...