Ontario Court Of Appeal Summaries (July 10 – July 14, 2017)

Good afternoon,

Following are the summaries of civil decisions released this week by the Court of Appeal for Ontario. It was a relatively light week, typical of the summer months.

The highlight was a Small Claims Court decision. In Riddell v. Apple Canada Inc., the Court confirmed that Deputy Judges of the Small Claims Court have jurisdiction to order one side to submit to the pre-trial inspection of property by the other side. The claim related to alleged burns suffered by the plaintiff as a result of an overheated iPhone. He had refused to allow Apple to inspect the phone before trial.

In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, a Crown wardship decision, the Court of Appeal overturned the Divisional Court and restored a motion judge's decision to add a child's foster mother as a party to the adoption proceeding, affirming that the best interests of the child are the paramount consideration and that other considerations, such as delay and legal interests, while relevant, are not, by themselves, determinative.

Other topics covered this week included a family shareholder/real property dispute, pension benefits, wrongful dismissal and a contractual interpretation case relating to what appears to have been a tax-driven transaction that did not yield the tax consequences that had been expected.

Have a nice weekend.

Table of Contents

A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601

Keywords

: Family Law, Crown Wardship, Adoption, Standing, Addition of Parties, Child and Family Services Act, R.S.O. 1990, c. C.11, ss 39(1), (3), Family Law Rules, O. Reg. 114/99, r 7(4), (5)

1162740 Ontario Limited v. Pingue, 2017 ONCA 583

Keywords: Corporations, Shareholder Remedies, Evidence, Experts, Rules of Civil Procedure, r. 53.08, Offers to Settle, Substantial Indemnity Costs

Riddell v. Apple Canada Inc., 2017 ONCA 590

Keywords: Civil Procedure, Courts, Small Claims Court, Jurisdiction, Pre-Trial Discovery, Inspection of Property, Courts of Justice Act, s. 25, Rules of the Small Claims Court, O. Reg. 258/98, r. 1.03(2), 17.03(2), Rules of Civil Procedure, r. 32.01

Bell v. Ontario Power Generation Inc., 2017 ONCA 587

Keywords: Pension and Benefits Law, Survivor Pension Benefits, Conjugal Relationship, Pension Benefits Act, R.S.O. 1990, c. P.8

Brompton Corp. v. Tuckamore Holdings LP, 2017 ONCA 594

Keywords: Contracts, Interpretation, Representations and Warranties, Factual Matrix, Deference, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633

Aboagye v. Atomic Energy of Canada, 2017 ONCA 598

Keywords: Employment Law, Wrongful Dismissal, Cause, Dishonesty, National Security, Summary Judgment

For Civil Endorsements, click here.

For Criminal and Ontario Review Board Decisions, click here.

Civil Decisions:

A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601

[Hoy A.C.J.O, van Rensburg and Roberts JJ.A.]

Counsel:

10. Bergeron, for the appellant

1. Pare-Chouinard, for the respondents

   Keywords: Family Law, Crown Wardship, Adoption, Standing, Addition of Parties, Child and Family Services Act, R.S.O. 1990, c. C.11, ss 39(1), (3), Family Law Rules, O. Reg. 114/99, r 7(4), (5)

   Facts:

   The child, A.M., was made a ward of Valoris pour enfants et adultes de Prescott-Russell (the "Society") at the age of two months. In December 2015, when he was seven months old, he was placed with a foster-to-adopt mother (the "F-A mother").

   The Society filed a status review application in January of 2016 requesting the child be made a Crown ward with no access rights to the parents. The Society's position was that if the child was made a Crown ward, it would support the F-A mother as the adoptive parent for the child. An uncontested trial of the Society's application for Crown wardship was scheduled and adjourned pending the opportunity for the biological parents to move to set aside their noting in default. No such motion was brought. A paternal aunt and her partner expressed an intention to adopt the child early in 2016. In June of 2016 the Society decided to support that plan instead. The paternal aunt and her partner filed a motion seeking to be added as parties and for a temporary order for care of the child. That motion was adjourned. The F-A mother brought a motion seeking to be added as a party to the child protection proceeding.

   The motion judge considered the facts of the case and found that the F-A mother was in the best position to inform the Court as to what the specific needs are and what is in the best interest of the child. He ordered that the F-A mother be a party to the proceeding or, if a higher court disagreed with that determination, that the F-A mother have full rights to participate in this proceeding pursuant to s. 39(3) of the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA"). He found that s.39(1) of the CFSA provides who will be automatically be parties to a child protection proceeding, but does not limit parties to those listed. He also noted that s.39(3) of the CFSA provides a limited right of participation for non-parties, such as foster parents, to the proceeding, and found that this was not an indication that a foster parent should not be made a party.

   On appeal, the Divisional Court found that the motion judge overlooked the existing presumptive rights of participation of the F-A mother under the CFSA and the fact that she could request permission from the court to have her participatory rights expanded. The Divisional Court noted that the motion judge did not consider rules 7(4) and 7(5) of the Family Law Rules, O. Reg. 114/99, which describe the parties who should be added in a child protection case and stated that the court's discretion to add parties under r. 7(5) should be exercised with caution.

   The Divisional Court held that in determining whether a foster parent should be added as a party, the court should consider the following criteria:

   (1) Is adding the party necessary for a determination of the issues in the case?

   (2) Would adding the party cause delays in the process?

   (3) Does the individual have a legal interest in the child protection proceeding?

   It concluded that the motion judge failed to consider all these criteria such that the Divisional Court was entitled to interfere with the motion judge's exercise of discretion. Furthermore, it found that adding the F-A mother would add delay and that the F-A mother did not have a legal interest in the proceeding.

   Issues:

   (1) Did the Divisional Court err in overturning the motion judge's decision to add the F-A mother as a party to the child protection proceeding?

   Holding: Appeal allowed.

   Reasoning:

   (1) Yes. There was no palpable and overriding error, error in law, or unreasonable exercise in discretion to justify interfering with the motion judge's decision. The Court of Appeal found that r. 7(4) and s. 39(3) of the CFSA preserve the court's discretion to add a foster parent as a party to a child protection proceeding. The Divisional Court circumscribed the exercise of that discretion too narrowly because delay and legal interest are relevant, but not, by themselves, determinative. The overarching consideration is the child's...