Ontario Court Of Appeal Summaries (December 18 – December 22, 2017)

This was a busy week for the Court of Appeal. Topics covered included family law, wrongful dismissal, wills and estates, insurance coverage, tort liability of employees, workplace safety, police liability, limitation periods, conditional discharges from bankruptcy and costs against non-parties.

The Court's 101-page decision in Weyerhaeuser Company Limited v. Ontario (Attorney General) involved a Director's Order issued by the Ontario Ministry of the Environment requiring the respondents to perform remedial work on an abandoned mercury waste disposal site near Dryden, Ontario. The respondents took the position that they enjoyed the benefit of an indemnity provided by the Government of Ontario to earlier owners of the facility. They contended that Ontario was obligated to indemnify them for any costs incurred to comply with the Director's Order. The motion judge granted summary judgment to the respondents, holding both were entitled to be indemnified by Ontario for the costs they had incurred and might incur as a result of the Director's Order. The Court allowed Ontario's appeal in part, setting aside the dismissal of its summary judgment motion, granting summary judgment dismissing the claim by one of the respondents (Resolute), and directing a final adjudication by the court below on the issue of what, if any, rights the other respondent, Weyerhaeuser, possessed as assignee of the indemnity at the time the Director's Order was made in 2011. Justice Laskin would have gone further. He would have allowed Ontario's appeal in full and would have dismissed Weyerhaeuser's claim, finding that it could not enforce the indemnity.

In the 93-page corporate restructuring decision in Ernst & Young Inc. v. Essar Global Fund Limited, the Court upheld the trial judge's finding that the conduct of the appellants was oppressive and the remedy he had fashioned to cure the oppression. The Court set out the factors under which a monitor appointed under the CCAA can be a complainant for the purposes of bringing an oppression application under the CBCA.

CIVIL DECISIONS

Fogel v. Chiriatti, 2017 ONCA 1000

[MacPherson, Pepall and Paciocco JJ.A.]

Counsel:

Anthony Di Battista, for the appellant

Grant Gold, for the respondent

Keywords: Family Law, Custody, Division of Property, Matrimonial Home, Child Support, Federal Child Support Guidelines, ss.7, Costs

Facts:

The parties cohabited for 14 years and separated in May 2014. They have one child. At the time of trial, the respondent was 36 years of age, the appellant was 53, and their son was nine. The appellant appeals from the judgment of Backhouse J. granting the respondent sole custody of the parties' son. He also appeals from the trial judge's matrimonial home valuation, division of the notional proceeds of sale, and treatment of the parties' chattels. Lastly, he seeks leave to appeal the $125,000 costs award made in favour of the respondent.

Issues:

(1) Did the trial judge err in granting the respondent sole custody of the parties' child?

(2) Did the trial judge err in her determination as to the valuation of the matrimonial home?

(3) Did the trial judge improperly permit the respondent an adjustment resulting from the respondent's $100,000 payment towards the matrimonial property?

(4) Did the trial judge err in ordering that an amount reflecting ten years of child support and s. 7 expenses under the Federal Child Support Guidelines be secured to the respondent as a fund from the appellant's share of the notional house proceeds?

(5) Did the trial judge make an error when calculating child support arrears?

(6) Did the trial judge err in neglecting to address the division of chattels despite being asked to do so?

(7) Did the trial judge err in her discretionary costs award?

Holding: Appeal allowed, in part.

Reasoning:

(1) No. The trial judge found the appellant to be lacking in any credibility and, in contrast, accepted the evidence of the respondent. This determination was open to the trial judge to make. Fundamentally, the appellant failed to put his son's best interests ahead of his own. The trial judge did not make a determination on the necessity of either a psychoeducational assessment or a tooth extraction. Rather, she used the appellant's refusal to agree as evidence that he put his conflict with the appellant ahead of the needs of his son. She relied not only on the evidence of the respondent, but on that of two independent witnesses as well. She found that the respondent is the better parent and better suited to make decisions for the child.

The finding that the appellant is an important part of his son's life and his consent to exclusive possession of the matrimonial home did not preclude the granting of custody to the appellant. The trial judge properly applied the best interests of the child test and concluded that those interests were best met by a custodial order in favour of the respondent. This was not an appropriate case for joint custody. The respondent provided a stable environment and had been the primary parent both before and after separation. Significantly, the parties acknowledged that they could not communicate on substantive issues relating to their son. The trial judge's reasons were well supported by the facts, and her decision was discretionary in nature and entitled to deference.

(2) No. The trial judge considered the evidence of the two real property valuation experts put forward by the parties and preferred the opinion of the respondent's expert over that of the appellant. The trial judge did not substitute her opinion for that of the experts. Rather, she weighed the evidence about the value of the home with the expert evidence regarding a comparable property and the impact of a swimming pool. She accepted the opinion of value proffered by the respondent's expert, which she was entitled to do.

(3) No. The appellant argued that the consent order of Wilson J. finalized the apportionment of the respective shares of the home and the $100,000 was credited to the respondent at paragraph 3(a) of the consent order. In oral argument, he conceded that the adjustment could have been made by Wilson J. but not by the trial judge; by that time, it was too late. Paragraph 3(a) of Justice Wilson's order provided that the respondent was to receive $100,000, being the prepayment of the mortgage paid by the respondent out of funds she received from an inheritance, from the average of the two appraised values of the property as at May 30, 2014. The mortgage, line of credit, and notional real estate commission of four percent were also to be deducted from the average of the appraised values. Justice Wilson then provided that the balance was to be notionally divided between the parties, however, they each would be entitled to seek further adjustment from the other's respective notional share of the proceeds subject to proper documentary proof. At trial, the respondent called expert evidence on an additional adjustment of $40,951. The trial judge accepted this expert evidence and ordered the adjustment. Based on the language of Wilson J.'s order, further adjustments were permissible.

(4) No. The appellant submitted that the trial judge failed to give proper reasons, awarded security in spite of the fact that the appellant's support payments were up to date prior to trial, and that he had contributed $8,000 to his son's private school fees. He argued she also failed to consider the appellant's evidence at trial that he would pay support. He complains that he is unable to benefit from any present value or any future increase in value of the $211,560 that is secured by the order. The appellant had paid no child support since separating from the respondent in May 2014 other than some private school and camp fees. He also stopped paying support contrary to the terms of an order to which he had consented after only three months, and failed to pay outstanding private school fees and s. 7 expenses despite being ordered to do so. It was only when the parties attended a court conference immediately before the trial that he made a payment on account of child support arrears and outstanding school fees. The evidence of non-compliance supported the trial judge's conclusion that there was no likelihood that the appellant would pay child support or s. 7 expenses in the future, and that security in the form of a fund was required. Given that the order was for security (as opposed to a lump sum payment), the appellant's remaining arguments had no merit.

(5) Yes. The error was only noticed by the parties on January 17, 2017, when the motion for security for costs for the appeal was brought. The court ordered Paragraph 8 of the judgment amended by deleting the sum of $33,731 and substituting the sum of $18,575 ($33,731 less $15,156 = $18,575).

(6) No. The trial judge considered the four financial statements filed by the appellant. The appellant's itemization of chattels was only included in one of the four financial statements. The trial judge found that there was little documentation to support who had paid for the items claimed by the appellant, what had been paid, or current values. On the basis of the evidence before her, it was open to the trial judge to disallow this claim.

(7) No. She properly considered the relevant factors set out in the Family Law Rules. Although the respondent sought full indemnity costs of approximately $237,000, the trial judge reduced the claim to $125,000. She was entitled to do so, and her costs award was owed considerable deference.

Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONCA 1004

[Hourigan and Brown JJ.A. and Himel J. (ad hoc)]

Counsel:

Rodney Godard and Ioana Vacaru, for the appellant

Anita Lanary and Eric Florjancic, for the respondents

Keywords: Employment Law, Wrongful Dismissal, Severance Pay, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Limitation Periods, Employment Standards Act...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT