Ontario Court Of Appeal Summaries (January 15 – January 19, 2018)

Below are this week's summaries of the civil decisions of the Court of Appeal.

While there were several civil decisions released by the Court of Appeal this week, they were, for the most part, procedural in nature. Topics covered included striking pleadings in the family law context, vexatious litigants, insolvency, wills and estates, and debtor-creditor.

CIVIL DECISIONS:

Laurentian Bank of Canada v. Bernier, 2018 ONCA 23

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

Kevin Scullion, for the appellant

James M. Butson and Cristina Internicola, for the respondent

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment, Orders, Setting Aside, Fresh Evidence, Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670

Facts:

The appellant was sued by the respondent bank for a shortfall when it repossessed and sold a motorcycle that had been purchased by her husband with financing provided by the bank. The respondent was named as co-defendant because the loan document bore her signature as guarantor of the loan. Her husband filed a statement of defence on behalf of both defendants, but neither contested the motion and the respondent was granted summary judgment. The respondent took steps to enforce the judgment debt and scheduled an examination of the appellant. The appellant failed to attend two examinations scheduled subsequently. The respondent then brought a motion to compel her attendance. The appellant did not attend and an order of costs was made. The appellant did not pay and has not paid any outstanding costs orders.

In January 2016, the appellant brought a motion to set aside the judgment and swore an affidavit alleging that her husband, who died in 2011, entered the contract to purchase the motorcycle and forged her signature. No supporting evidence was adduced.

Issue: Should the summary judgment be set aside in light of fresh evidence?

Holding: Appeal dismissed.

Reasoning:

No. The motion judge properly applied the test set out by the court in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670. On the motion, the appellant proffered no expert evidence to support her claim that her signature had been forged, nor did she provide an adequate explanation for her delay in moving to set aside the judgment. The motion judge found that the respondents would be prejudiced given the four-year delay in attempting to realize on the judgment. The onus was on the appellant to demonstrate that the order should be set aside. Ultimately, the motion judge was not satisfied that she met her burden. His discretionary decision is entitled to deference. Further, the appellant's fresh evidence application was available when the motion was brought and it was incumbent on the appellant to produce it at that time.

Midland Resources Holding Limited v. Shtaif, 2018 ONCA 33

[Doherty, Brown and Roberts JJ.A.]

Counsel:

Michael Shtaif and Eugene Bokserman, in person

Symon Zucker, for the respondents Midland Resources Holding Limited, Alex Shnaider and Eduard Shyfrin

Keywords: Civil Procedure, Appeals, Applications for Reconsideration, Rules of Civil Procedure, Rule 59.06(2)(d)

Facts:

By reasons released April 20, 2017, the court: (i) dismissed the appeal by Eugene Bokserman of the US$1.5 million judgment against him; and (ii) allowed, in part, the appeals by Michael Shtaif and Gregory Roberts, reducing the judgments against them to US$8.27 million.

Shtaif and Bokserman moved under rule 59.06(2)(d) of the Rules of Civil Procedure for a "reconsideration" of the court's decision to maintain awards of damages against them. Rule 59.06(2)(d) states: "A party who seeks to ... (d) obtain other relief than that originally awarded, may make a motion in the proceeding for the relief claimed." The appellants contended that the trial judge "miscalculated" Midland's damages as at June 20, 2006, by only considering the accruing loss at that date, without considering the accruing gain which, they contended, flowed from the closing of the Reef Energy transaction after that date. They argue that it was not fair or just for the court to rely on the trial judge's miscalculation of damages in affirming the judgment in part.

Issues:

(1) Should the court reconsider the damages awarded against the appellants?

Holding: Appeal dismissed.

Reasoning:

(1) No. Shtaif and Bokserman are not simply pointing out a "mathematical oversight" in the trial judge's damage calculation; they are advancing a theory of damages not argued on the appeal. In their appeal factum, the appellants identified seven grounds of appeal, none of which involved a claim that the trial judge miscalculated Midland's damages as of June 20, 2006, by failing to take into account any post-June 20, 2006 gain. Although the appellants did submit the trial judge erred in finding Midland acted reasonably to mitigate its damages, the court did not give effect to that ground of appeal. Consequently, r. 59.06(2)(d) offers no basis for the court to "reconsider" its decision.

Struik v. Dixie Lee Food Systems Ltd., 2018 ONCA 22

[Feldman, Pepall and Huscroft JJ.A.]

Counsel:

Robert J. Reynolds, for the moving party

Jillian Burford-Grinnell, for the respondent, Dixie Lee Ontario Ltd.

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Standing

Facts:

On January 23, 2017, Rasaiah J. granted partial summary judgment to Maria Struik ("Struik"). She declared Dixie Lee Ontario Ltd. ("DLOL") to be a guarantor of certain obligations and ordered it to pay Struik monthly amounts together with interest and costs. On March 1, 2017, DLOL served a notice of appeal after the time to appeal.

On March 3, 2017, Rasaiah J. granted a further order appointing Struik as the Receiver of all of the assets, undertaking and property (the "Property") of DLOL with the power to take possession, control and manage the business of DLOL and, on notice to DLOL and Joseph Murano (the directing mind of DLOL), market and sell the Property. All rights and remedies against DLOL, the Receiver, or affecting the Property were stayed.

DLOL sought an...