Top 5 Civil Appeals From The Court Of Appeal (April 2014)

Kavanagh v. Lajoie, 2014 ONCA 187 (Cronk, Epstein, and Benotto JJ.A.), March 1, 2014 Farwell v. Citair, 2014 ONCA 177 (Doherty, Lauwers and Strathy JJ.A.), March 7, 2014 King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215 (Watt, Strathy, and Benotto JJ.A.), March 21, 2014 Clarke v. Johnson, 2014 ONCA 237 (Weiler, Epstein* and Pepall JJ.A.), March 28, 2014 *Epstein J.A. took no part in the reasons for judgment Danecker v. Danecker, 2014 ONCA 239 (Feldman, MacFarland, and Epstein JJ.A.), March 31, 2014 1. Kavanagh v. Lajoie, 2014 ONCA 187 (Cronk, Epstein, and Benotto JJ.A.), March 1, 2014

This appeal arose from a sibling dispute over ownership of a residential property in Ottawa. In this case, the Court of Appeal considered whether a promise to gift a property should be given effect and, if not, whether the severance of a joint tenancy and a gift of a one-half interest should be set aside for undue influence.

The parties' father gave a property to the respondent and told the appellant that he would gift him another property. Instead of a transfer of ownership of the property to the son, the father arranged for a joint tenancy of the residential property with the appellant son. After a dispute about the residential property, the father severed the joint tenancy creating a tenancy-in-common and then transferred his half-interest to the respondent daughter. The property was sold on consent and the proceeds paid into court pending the trial judge's decision regarding the appellant's entitlement to an order setting aside the 2009 transactions.

At trial and on appeal, the son argued that he was entitled to 100% of the proceeds of sale of the property and his sister was not entitled to any of the proceeds as there had been a gift to him and the transfer to his sister was the result of undue influence.

The Court of Appeal held that an incomplete gift is nothing more than an intention to gift. For a gift to be valid and enforceable it must be perfected. The donor must have done everything necessary and in his power to effect the transfer of the property. The creation of the joint tenancy, which comes with a right to sever and transfer an interest, had defeated any suggestion of an irrevocable inter vivos gift. Further, the Statute of Frauds would be violated if the appellant's argument was accepted.

The Court of Appeal described the concept of undue influence as focusing on a person's dominance over another person's will by exercising a pervasive influence on him or her, whether through manipulation, coercion or outright abuse of power. The onus is on the appellant, the person claiming undue influence, to prove affirmatively that this power was exercised for the purpose of securing some advantage.

The Court of Appeal held that the trial judge's findings of fact were amply supported by the evidence and there was no reason to interfere with the refusal to set aside the transactions. There was an abundance of evidence that the father was an independent man known to exercise free will. The father met with his lawyer privately and provided a reasonable explanation for his desire to transfer a one-half interest away from his son. The lawyer's evidence was that he had no concerns with the father's mental competency or ability to freely make decisions.

The appeal was dismissed.

2. Farwell v. Citair,

   2014 ONCA 177 (Doherty, Lauwers and Strathy JJ.A.), March 7, 2014

   In this appeal decision, the key issue addressed was the application of "efficient breach" to a wrongful dismissal. The appellant argued that its former employee was obliged to mitigate his damages by remaining with the employer for the period of working notice.

   After a trial, the appellant was found to have wrongfully dismissed the respondent and to owe the respondent 24 months' pay in lieu of notice. The respondent had worked for the appellant for 38 years in a high level managerial position. The appellant transferred the respondent from Operations Manager/Vice President of Operations to the position of Purchasing Manager, a position he had previously...