Ontario Court Of Appeal Summaries (October 23 – October 27, 2017)

Good afternoon.

The only noteworthy decision of the Court of Appeal this week was Teixeira v. Markgraf Estate, which involved a determination of whether a $100,000 gift was perfected by way of delivery when the cheque was dishonoured by the bank and the donor died before the cheque could be replaced. The court agreed with the application judge that the gift had not been perfected by delivery and therefore was unenforceable as against the donor's estate.

Other topics covered included spousal support, breach of contract, setting aside default judgments, and the familiar issue of appellate jurisdiction (final versus interlocutory orders).

Enjoy the weekend,

Table of Contents:

Derbyshire v. Derbyshire, 2017 ONCA 809

Keywords: Family Law, Spousal Support, Termination, Variation, Material Change in Circumstances, Retirement, Property, Gifts, Costs

September Seventh Entertainment Limited v. The Feldman Agency, 2017 ONCA 815

Keywords: Contracts, Entertainment Law, Exclusion Clauses, Radius Clauses, Unconscionability, Reasonable Apprehension of Bias

Redabe Holdings Inc. v. I.C.I. Construction Corporation, 2017 ONCA 808

Keywords: Civil Procedure, Default Judgments, Setting Aside, Rules of Civil Procedure, Rules 19.05 and 19.06, Rule 19.05, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, Standard of Review, Discretionary Orders, Hill v. Forbes, 2007 ONCA 443

Shinder v. Shinder, 2017 ONCA 822

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory Orders, Courts of Justice Act, s 6(2)

Teixeira v. Markgraf Estate, 2017 ONCA 819

Keywords: Wills and Estates Law, Contract Law, Gifts, Enforceability of Cheques, Consideration, Bills of Exchange Act, R.S.C. 1985, c. B-4, Estoppel, Perfection By Delivery, Peden v. Gear (1921), 50 O.L.R. 384 (H.C.), Pennington v. Waine [2002] EWCA Civ. 227.

For criminal and Ontario Review Board Decisions click here

For short civil decisions click here

Civil Decisions

Derbyshire v. Derbyshire, 2017 ONCA 809

[MacPherson, Juriansz and Roberts JJ.A.]

Counsel:

Gary S. Joseph and Ryan M. Kniznik, for the appellant

Michael Nash, for the respondent

Keywords: Family Law, Spousal Support, Termination, Variation, Material Change in Circumstances, Retirement, Property, Gifts, Costs

Facts:

This appeal relates to two orders that were the result of a nine day family law trial focused on the principal issue of spousal support in the context of a 26 year marriage. The trial judge held that the respondent, Suzanne Derbyshire, was entitled to ongoing spousal support of $25,000 per month effective January 1, 2009. The trial judge ordered the appellant to pay costs of the trial in the amount of $250,000, inclusive of disbursements and HST.

First, the appellant contends that since the trial judge specifically included the appellant's potential imminent retirement from his very successful business in her analysis of the spousal support issue, she erred either by not providing for a review of spousal support upon the appellant's retirement or by not stating explicitly that the appellant's retirement would constitute a material change in circumstance justifying a review of spousal support.

Second, the appellant asserts that the trial judge erred by concluding that the respondent has no beneficial interest in the shares in a business transferred by Lawrence Deakins to his daughter, the respondent, and her husband, the appellant, during their marriage.

Third, he submits that if this court accepts his position on the second ground of appeal and concludes that the respondent is not holding certain assets in trust for her father, then her disposable income is substantially higher and a spousal support order of $25,000 per month is too high. Accordingly, spousal support should continue in the original amount of $15,000 per month.

Finally, the appellant contends that the trial judge erred taking only a mathematical approach to the quantum of costs and simply added up the billable hours claimed by the respondent's counsel.

Issue:

(1) Did the judge err by not providing for a review of spousal support upon the appellant's retirement or by not stating explicitly that the appellant's retirement would constitute a material change in circumstances justifying a review of spousal support?

(2) Did the trial judge err by concluding that the respondent has no beneficial interest in the shares in a business transferred by Lawrence Deakins to his daughter, the respondent, and her husband, the appellant, during their marriage?

(3) If the court concludes that the respondent is not holding certain assets in trust for her father, then is the spousal support order too high?

(4) Did the trial judge err in calculating quantum of costs?

Holding:

Appeal dismissed.

Reasoning:

(1) No. There is nothing in the trial judge's language to even suggest that she was foreclosing a subsequent review of spousal support if and when the appellant retires. The trial judge said, at para. 93, that "[t[he periodic support ordered is subject to variation in the event of a material change in circumstances." It is obvious that retirement from a job that generates an annual income of more than $1,000,000 would constitute such an event. The respondent did not at trial, and does not on this appeal, suggest otherwise. There is not even an issue, let alone an error, with respect to the trial judge's treatment of the appellant's future retirement.

(2) No. The trial judge's conclusion on this issue is essentially a factual conclusion. Effectively, the appellant is asking this court to re-weigh the evidence that the trial judge carefully and thoroughly considered. Much of the appellant's argument was spent reviewing matters he submitted the trial judge should have considered as evidence supporting the transfers were a gift. However, it was for the trial judge, applying the correct legal principles, to weigh the various factors. Contrary to the appellant's submission, we are not persuaded that she placed too much weight on the factor of "control of the assets" in arriving at her conclusion that there was no gift.

(3) This issue does not arise in light of the Court's conclusion with respect to the second question.

(4) No. The court sees no basis upon which to interfere in the trial judge's cost for awards. A review of the costs endorsement shows that she considered all relevant factors, including the positions of the parties, and arrived at a figure that seemed reasonable to her.

September Seventh Entertainment Limited v. The Feldman Agency, 2017 ONCA 815

[Doherty, LaForme and Paciocco JJ.A.]

Counsel:

K Fernandes, for the appellant

B Shiller and A Enenajor, for the respondents

Keywords: Contracts, Entertainment Law, Exclusion Clauses, Radius Clauses, Unconscionability, Reasonable Apprehension of Bias

Facts:

Jean-Paul Gauthier...