Ontario Court Of Appeal Summaries (September 11 – September 15, 2017)

Good afternoon. Below are the summaries of this week's civil decisions of the Court of Appeal for Ontario. There were two family law decisions, one in the context of the appointment of amici by the court, and the other a summary judgment decision with respect to property equalization. There was also an insurance decision regarding uninsured motorist coverage for an accident occurring in Minnesota and a case involving malicious prosecution.

Congratulations to Giovanna Asaro and Lisa Bruni of our office in successfully resisting an appeal from the dismissal of the claim against our client, the York Children's Aid Society.

Please feel free to share this blog with anyone whom you think might be interested. As always, we welcome your comments and feedback.

Patinios v Cammalleri 2017 ONCA 700

[Strathy C.J.O., van Rensburg and Trotter JJ.A.]

Counsel:

M Simaan, for the appellant

R Cammalleri, acting in person

Keywords: Torts, Malicious Prosecution, Miazga v. Kvello Estate, 2009 SCC 51, Courts of Justice Act, R.S.O. 1990, c. C.43, s.108(10)

Facts:

The appellant appeals the dismissal of his action for malicious prosecution. The criminal trial that was the subject of this action was stayed at the request of the Crown. The trial judge concluded that this was the result of a negotiated resolution, making it necessary to examine whether there were any sanctions imposed as a result of the stay.

Issue:

Did the trial judge err in dismissing the malicious prosecution action?

Holding:

Appeal Dismissed.

Reasoning:

No. To establish malicious prosecution the plaintiff must prove that (1) the prosecution was initiated by the defendant; (2) it was terminated in the plaintiff's favour; (3) there was an absence of reasonable and probable cause to commence the prosecution; and (4) the defendant's conduct in setting the criminal process in motion was fueled by malice (Miazga v. Kvello Estate, 2009 SCC 51).

The first element is not in dispute.

With respect to the second element, the appellant claimed that there was no evidence to support the trial judge's conclusion that there was a negotiated resolution, making it necessary to examine whether there were any sanctions imposed as a result of the stay.

On the third and fourth elements the appellant argued that the respondent's failure to attend at trial, and his own unchallenged evidence that the incidents leading to the charges did not occur, should have led the trial judge to find that the charges were groundless and motivated by malice.

The Court of Appeal acknowledged that the appellant's argument about the second element may have some merit, but found that the appellant had failed to establish the third and fourth elements on a balance of probabilities. Section 108(10) of the Courts of Justice Act provides that it is for the trier of fact to determine whether there was reasonable and probable cause for instituting the prosecution. Here the trier of fact found that the appellant had failed to establish the necessary facts on a balance of probabilities, the conclusions were supported by the evidence before him, and accordingly, the appeal was dismissed.

Chao v. Chao, 2017 ONCA 701

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

Counsel:

Alex Toolsie, for the appellant

Glenda D. McLeod, for the respondent

Keywords: Family Law, Property Law, Resulting Trust, Pecore v. Pecore, 2007 SCC 17, Equalization Payment, Security, Family Law Act, s. 9(1)(b), s. 10(1)(d), Summary Judgment, Hryniak v. Mauldin, 2014 SCC 7¸ Family Law Rules, Rule 16

Facts:

This is a dispute between husband and wife over property ownership following the breakdown of their marriage. The parties separated in 2011 after 37 years of marriage.

The main issue in the matrimonial proceedings is how to characterize the more than $1.3 million in investments derived from money that the husband's parents provided during the parties' marriage. The money was invested, with some investments in the husband's name, others in the wife's name, and the remaining in both names jointly. The income generated from the investments was used to pay the majority of the family's expenses.

At or about the time of separation, and without the wife's consent, the husband transferred more than $1 million of the investments to his mother, Lillian Chao, or to accounts maintained by him with his mother or other family members (in some cases after forging the wife's signature).

The husband argues that all the disputed investments were held in resulting trust for his parents or were loans that must be repaid to his mother (since his father is deceased). The wife argues that all of the advances were gifts to both parties and that there was no expectation of repayment.

On summary judgment, the husband was ordered to pay the wife the sum of $592,308 in equalization, as well as spousal support arrears and pre-judgment interest. The wife was also granted a charge over the former matrimonial home to secure payment of the equalization amount.

The husband appeals the motion judge's decision.

Issues:

Was the summary judgment procedure appropriate in this matter? Was it appropriate to strike portions of the husband's affidavit? Was there improper double counting? Were the investment monies properly characterized? Was it was appropriate for the motion judge to grant security against the former matrimonial home? Holding: Appeal dismissed.

Reasoning:

The Summary Judgement Procedure was Appropriate in this Matter. Rule 16(6) of the Family Law Rules provides that, on a summary judgment motion, if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order.

The moving party bears the onus of showing there is no genuine issue requiring a trial. The responding party may not rest solely on mere allegations or denials, but shall "set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial": r. 16(4.1).

The husband made three related arguments disputing the appropriateness of summary judgment in this case.

First, the husband argued that a decision should not have been made without his mother's oral testimony, since her rights were affected by the judgment. The court did not give effect to this argument. The summary judgment procedure was invoked by the wife at a time when all of the evidence she had regarding the investments was available, and when it was apparent that the husband would not provide any further disclosure. It was up to the husband to ensure that his mother's position was before the court, and to join her as a party to the extent her interests were implicated. The appropriateness of adding a party to litigation cannot determine the suitability of summary judgment. The fact that the husband chose to put his mother's position before the court by affidavit, without seeking to join her as a party, was not a basis for refusing summary judgment.

Second, the husband argued that summary judgment should not have been granted without requiring oral evidence from his mother either under r. 16(6.2) or in a directed trial. The husband argues that her...