Ontario Court Of Appeal Summaries (July 22 – 26, 2019)

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario.

Topics covered this week included several family law decisions, international sale of goods and striking pleadings.

The summer is now almost half over already, so I hope everyone finds some time to enjoy it before it is too late.

CIVIL DECISIONS

Farah v. Mohamed, 2019 ONCA 0620

[Hoy A.C.J.O., Trotter and Jamal JJ.A.]

Counsel:

10. Omward, for the appellant

5. M. Young, for the respondent

   FACTS:

   The father appeals from the dismissal of his appeal from four family law orders relating to the custody and access of the three children of the marriage.

   In the proceedings before Jones J., the father consented to an order awarding custody of the children to the mother, with unsupervised access by the father. However, after the mother brought a motion, the order was amended by Murray J. that access by the father be supervised. The father brought a motion to change two and half years later. On that motion, Finlayson J. essentially maintained the Murray J. order. Both Murray J. and Finlayson J. were concerned with the father's conduct in bad-mouthing the mother in the presence of the children, and with the sporadic nature of the father's visits with the children.

   When the appeal from these orders was scheduled, the father sought and was granted an adjournment. The father was told to order the transcripts from all four proceedings. However, when the re-scheduled appeal was to be argued, the father had failed to obtain all the required transcripts. Counsel for the father told the appeal judge that circumstances beyond the father's control prevented had him from acquiring the missing transcripts. Counsel for the father requested a second adjournment, however the father insisted on proceeding in the absence of the missing transcripts. The appeal judge ruled that the father was not seeking an adjournment and that the father had not provided the full transcripts as was requested. As a result, a complete record for the appeal had not been advanced or completed. Therefore, based on the material before the appeal judge, she held that the appeal had no merit and should be dismissed.

   The father appealed on the basis that he was denied procedural fairness and that the appeal should have been adjourned so that transcripts could be obtained. Further, he stated that the reasons of the appeal judge do not explain why she considered the appeal to have no merit.

   ISSUES:

   Whether any of the following four orders should be set aside:

   (1) Interim order of Scully J. (December 22, 2010);

   (2) Interim and final consent order of Jones J. (December 20, 2011);

   (3) Final order of Murray J. (July 17, 2015); and

   (4) Order of Finlayson J. denying the father's motion to change the order of Murray J. (January 15, 2018).

   HOLDING: Appeal dismissed.

   REASONING:

   The Court held that the father's appeal to dismiss the four orders should be dismissed. It was open to the appeal judge to adjourn the appeal once again, and it appeared that she was prepared to do so. However, the father wished to proceed without complying with the appeal judge's previous direction to obtain transcripts. Therefore, it was not now open to the father to argue that the appeal judge should have granted a further adjournment to give him another opportunity to obtain these materials.

   The father also asserted that the appeal judge failed to give sufficient reasons for her decision to dismiss the appeal. However, as the appeal judge explained, based on the materials before her, the appeal had no merit. The Court held that there was no basis to disturb the custodial/access arrangements reflected in the order of Murray J. and confirmed by Finlayson J.

   Global Fund Holdings, Corp. v. Hines, 2019 ONCA 0621

   [Hoy A.C.J.O., Trotter and Jamal JJ.A.]

   Counsel:

5. Moore, for the appellant

   L. Corne, for the respondent

   FACTS:

   This appeal arises from an order enforcing a Settlement Agreement in the amount of US$200,000. In the underlying action, Global Fund Holdings, Corp. ("Global") sued Kenneth Hines ("Hines"), alleging that, on the basis of Hines' fraud and false pretences, Global advanced US$500,000 to him in order to purchase shares in a Panamanian company. It was an alleged sham. After the parties commenced settlement negotiations, Hines learned that Global had caused criminal charges to be brought against him in Panama. The prosecutor in Panama sent a detention order (equivalent to an arrest warrant in Canada) to the National Police of Panama and the National Migration Service of Panama. As a result of these charges, the following condition was included in the Settlement Agreement:

   Upon receipt of a written confirmation from the prosecutor in Panama, which confirms that the desist of the pretension of the punitive claim has been duly filed at the Panama Penalty Court of Law and that all charges against Hines [...] are dismissed or withdrawn, Hines hereby irrevocably instructs PDC [LLP] to pay the sum of US$200,000 to Global.

   Counsel for Global provided documentation to Hines' counsel from the Panama Court to prove that the criminal action against Hines was "declared as extinguished." Hines insisted on "written confirmation from the prosecutor in Panama". On July 30, 2018, they were provided with written confirmation from the Prosecutor of Panama that no criminal charges were being proceeded with against Hines. Global demanded payment of the US$200,000. Hines resisted, however, this time because of the existence of the outstanding detention order/arrest warrant. According to evidence filed on the motion, the declaration of the Panama Court had not been sent to the National Police of Panama or the National Migration Service of Panama. Consequently, Hines was at risk of arrest if he entered Panama. On this basis, he claimed that the condition in the Settlement Agreement had not been satisfied.

   The motion judge concluded that the condition was satisfied when the prosecutor in Panama provided written confirmation that the charges against Hines were at an end. The motion judge made an order enforcing the Settlement Agreement. He declined to exercise any residual discretion not to enforce the Settlement Agreement because of the outstanding detention order/arrest warrant.

   ISSUES:

   (1) Did the motion judge misapprehend the evidence, thereby giving rise to a palpable and overriding error in his interpretation of the Settlement Agreement?

   (2) Is the appellant permitted to bring a motion to adduce fresh evidence?

   HOLDING:

   Appeal dismissed. Application to adduce fresh evidence dismissed.

   REASONING:

   (1) No. The Court held that the motion judge committed no error in interpreting the Settlement Agreement in the manner that he did. His decision was entitled to deference on appeal.

   When Hines entered into the Settlement Agreement, he was represented by counsel, both in Canada and Panama. The existence of the detention order/arrest warrant was known at the time. It was open to Hines to insist that the Settlement Agreement specifically addressed the detention order/arrest warrant. He did not.

   (2) No. Some of the purported fresh evidence was available at the time that the motion judge made his decision. It could have been obtained with due diligence. For this reason, it did not meet the test for admitting fresh evidence.

   The rest of the purported fresh evidence consisted of letters from the Panama Court to the National Police of Panama or the National Migration Service of Panama informing those agencies of the termination of the proceedings against Hines that were sent after the motion judge made his decision. In this sense, the evidence might be considered "fresh" because it did not exist at the time of the motion. However, this aspect of the fresh evidence application failed because the evidence did not bear upon a "decisive or potentially decisive issue" on the motion.

   Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 0618

   [Hoy A.C.J.O., Trotter and Jamal JJ.A.]

   Counsel:

13. A. Munro, for the appellants

1. T. Antoniou and F. C. Caruso, for the respondent

   FACTS:

   The appellants' action is premised on the Law Society's alleged practice of requiring or permitting lawyers facing potential negligence claims to provide a copy of the relevant client file to the Lawyers' Professional Indemnity Company ("LPIC") to allow it to address the anticipated professional indemnity claim. The appellants say that this practice gives rise to a variety of civil causes of action against the Law Society.

   Neither the statement of claim nor the amended statement of claim pleaded that the respondent engaged in any bad faith conduct. After filing its statement of defence, the respondent moved to strike the appellants' statement of claim as disclosing no reasonable cause of action. The appellants argued that the respondent was required to obtain leave before bringing its motion because it had filed its statement of defence.

   The motion judge found that s. 9 of the Law Society Act conferred upon the Law Society a statutory immunity from claims for damages for actions taken in good faith pursuant to its statutory mandate to regulate the legal profession or the provision of legal services. The motion judge also held that the appellants' "slim allegations" in their pleadings did not include any claim of bad faith against the Law Society, and therefore struck out the pleadings as disclosing no reasonable cause of action, without leave to amend.

   The appellants appealed the order of the motion judge striking out their statement of claim and amended statement of claim as against the respondent as disclosing no reasonable cause of action.

   ISSUES:

   1. Did the motion judge err in hearing the Law Society's motion to strike after the Law Society had delivered its statement of defence?

   2. Did the motion judge err in striking out the statement of claim and amended statement of claim as against the Law Society?

   3. Did the motion judge err in refusing...