Ontario Court Of Appeal Summaries (June 11 – June 15)

Please find below our summaries for this week's civil decisions of the Ontario Court of Appeal.

In Mancinelli v Royal Bank of Canada, the class plaintiffs had sought to add BMO and TD as party defendants to their claim against other financial institutions for conspiracy and price fixing in the foreign exchange markets. Justice Perrell had dismissed the plaintiffs' motion, having found that class counsel could have, through "reasonable diligence", discovered BMO and TD's possible involvement in the secret conspiracy. He made that finding even though there was apparently no public document referencing BMO and TD's possible involvement, and the first mention of their involvement was by UBS, one of the co-conspirators, after it had entered into a settlement with the class plaintiffs. The Court reversed Justice Perrell's decision, finding that he had held class counsel to too high a reasonable diligence standard without a proper evidentiary foundation.

In Thunder Bay (City) v. Canadian National Railway Company, the Court was faced with reviewing the lower court's interpretation of a contract entered into in 1906 between the Town of Fort William and the Grand Trunk Railway regarding the railway's obligations to maintain a bridge "in perpetuity" for use by "vehicular traffic". CN, which inherited the agreement, closed the bridge to cars and trucks (which had used the bridge for a century) and argued that the extensive structural changes needed to reopen the bridge for use by cars and trucks fell outside the definition of "maintenance". It also argued that the meaning of "vehicular traffic" in 1906 only included streetcars, horses and carts, not cars and trucks. The lower court had found in favour of CN, but the Court of Appeal reversed the decision, finding the application judge' s interpretation unreasonable. In doing so, the Court held that cars and truck traffic was within the contemplation of the drafters of the agreement in 1906, as the beginning of the age of the automobile was only a few years away.

Other topics covered this week included automobile insurance coverage in the leasing context, family law, limitation periods in the breach of contract context, the need for expert evidence on the standard of care on a summary judgment motion in the professional negligence context, administrative law in the software development tax credit context, and vexatious litigants.

Table of Contents

Ahmad v Ahmad, 2018 ONCA 536

Keywords: Family Law, Custody and Access, Support, Equalization of Net Family Property

Kowalsky v Asselin-Kowalsky, 2018 ONCA 539

Keywords: Family Law, Support, Equalization, Practice and Procedure, Extension of Time to Appeal, Delay, Incapacity, Fresh Evidence, Sengmueller v Sengmueller, 1994 CarswellOnt 374

Thunder Bay (City) v Canadian National Railway Company, 2018 ONCA 517

Keywords: Contracts, Interpretation, Standard of Review, Extricable Errors of Law, Unreasonableness

Coast Capital Equipment Finance Ltd v Old Republic Insurance Company of Canada, 2018 ONCA 540

Keywords: Contracts, Automobile Insurance, Interpretation, Third Party Liability, Leased Vehicles, Insurance Act, section 5.1, OPCF 25, OPCF 5 Endorsement

Mancinelli v Royal Bank of Canada, 2018 ONCA 544

Keywords: Torts, Conspiracy, Competition Law, Price Fixing, Civil Procedure, Class Actions, Limitation Periods, Discoverability, Limitations Act, 2002, SO 2002, c 24, Sched B, s 5(1)

Davies v Davies Smith Developments Partnership, 2018 ONCA 550

Keywords: Contracts, Partnership Agreements, Breach, Civil Procedure, Limitation Periods, Discoverability, Damages, "Appropriate Means", Limitations Act, 2002, SO 2002, c 24, Sched B, s.5

McPeake v Cadesky & Associates, 2018 ONCA 554

Keywords: Professional Negligence, Expert Evidence, Summary Judgement, Income Tax Act, s 75(2), Rules of Civil Procedure, rr. 20.04(2.1), (2.2), Connerty v Coles, 2012 ONSC 5218

Pong Marketing and Promotions Inc. v Ontario Media Development Corporation, 2018 ONCA 555

Keywords: Administrative Law, Taxation, Income Tax Credits, Statutory Interpretation, Specialized Tribunals, Standard of Review, Reasonableness, Taxation Act, 2007, S.O. 2007, c. 11, Schedule A, s. 34.

Susin v Susin, 2018 ONCA 549

Keywords: Estates, Civil Procedure, Appeals, Security for Costs, Orders, Setting Aside, Costs, Vexatious Litigants, Frivolous and Vexatious Proceedings, Abuse of Process, Rules of Civil Procedure, Rule 2.1.02(1)

For short civil decisions click here

For criminal and regulatory/ review board decisions click here

Civil Decisions

Ahmad v Ahmad, 2018 ONCA 536

[MacPherson, LaForme, and Roberts, JJA]

Counsel:

NA, acting in person

Robert A. Fernandes, for the respondent

Keywords: Family Law, Custody and Access, Support, Equalization of Net Family Property

Facts:

The appellant and respondent married in 2000 in Pakistan. They had three children and immigrated to Canada in 2013. Days later, the appellant left Canada which the trial judge treated as the day of separation. The appellant returned to Canada in 2015 and commenced family law proceedings seeking divorce, custody, support and equalization of net family property. The respondent commenced claims of her own. The self-represented appellant appeals a trial judgment granting the respondent sole custody of their three children with regular access to the applicant, monthly child support payments to be made by the appellant based on an imputed income, and an equalization payment to be made by the appellant.

Issues:

(1) Did the trial judge err by not including certain hours for religious/festive occasions in his access time?

(2) Did the trial judge err by including the appellant's Pakistan pension and/or over-valuing this pension?

(3) Did the trial judge err by attributing real property in Pakistan and jewelry for equalization purposes?

(4) Was the trial judge biased in favour of the respondent?

Holding:

Appeal dismissed.

Reasoning:

Overall, the appellant failed to demonstrate that the trial judge committed a palpable or overriding error regarding a material fact. The trial judge's analysis on all of the issues was thorough, reasonable and grounded in the evidence available to him.

(1) No. The trial judge's conclusions regarding custody and access were made in the best interests of the children.

(2) No. The trial judge's imputation of income to the appellant was necessary because the appellant had been less than forthright in his evidence and the trial judge was thus required to use the best evidence available to the court.

(3) No. The trial judge's equalization findings required third party confirmation due to the appellant's own lack of credibility.

(4) No. A review of the transcript and record reveals no evidence of bias. The trial judge was careful to ensure that the appellant had every opportunity to present his case. A finding of a lack of credibility does not translate into bias.

Kowalsky v Asselin-Kowalsky, 2018 ONCA 539

[MacPherson, LaForme and Roberts JJ.A.]

Counsel:

Patrick J. Kraemer, Justine A. Dalton and Michael A. van Bodegom, for the appellant

Kim S. Killer and Ainsley Hunter, for the respondent

Keywords: Family Law, Support, Equalization, Practice and Procedure, Extension of Time to Appeal, Delay, Incapacity, Fresh Evidence, Sengmueller v Sengmueller, 1994 CarswellOnt 374

Facts:

This is an appeal from an order determining the issues of equalization, child support and spousal support ("the final trial order"), and from an order dismissing a motion to set aside the final trial order. This appeal involves orders that were granted over ten years ago. It is equally exceptional because the entire passage of time can be explained by the evidence of the appellant's prolonged history of serious mental health issues, which the court accepted as the basis for granting the appellant an extension of time to appeal in September 2017. The respondent instigated proceedings in 2005 to obtain a divorce and to determine the issue of equalization of the parties' net family property. The appellant raised claims for child and spousal support. The parties were granted a divorce in 2006. The appellant failed to appear at trial for the remaining issues and the trial proceeded in her absence. Her brother attended and advised that the appellant's health did not permit her to attend. The appellant's subsequent motion to set aside the final trial order was dismissed in 2008, when she again failed to attend. The appellant submits that she was unable to attend the trial or her motion because she was physically and mentally incapable of doing so. She maintains that justice requires that the final trial order and the order of the motion judge be set aside.

Issues:

(1) Should the appellant's fresh evidence be admitted before proceeding with argument on the merits?

(2) Was the appellant incapable of attending the trial and her motion?

(3) Should the decisions under appeal be set aside?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The appellant's fresh evidence should be admitted because it satisfies all of the criteria for its admission: it could not have been provided before trial; it is credible; and it is conclusive of the main issue on this appeal, namely, whether the justice of the case requires that the orders under appeal be set aside in order to prevent an unjust result: Sengmueller v Sengmueller, 1994 CarswellOnt 374, at para 34.

(2) Yes. A fundamental purpose of the appellant's fresh evidence was to explain her absence at trial and her motion. To succeed on her appeal, her explanation must be sufficiently cogent that it credibly excuses her absence and that it would be procedurally unfair to allow the trial and motion orders to stand. However, there is no requirement that she prove a certain level of incapacity including one that rises to the definition under the Substitute Decisions Act, SO 1992, C 30 or the Mental Health Act. It was within days of the trial that the appellant was found incapable and involuntarily hospitalized. The...