Top 5 Civil Appeals from the Court of Appeal (May 2013)

Stevens v. Stevens, 2013 ONCA 267 (Weiler, Sharpe and Rouleau JJ.A.), April 29, 2013 Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2013 ONCA 254 (Winkler C.J.O., Weiler and Laskin JJ.A.), April 25, 2013 Amato v. Welsh, 2013 ONCA 258 (heard by O'Connor A.C.J.O., Simmons, and Cronk JJ.A.; judgment by Cronk and Simmons JJ.A.), April 24, 2013 Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225 (Laskin, Sharpe and Epstein JJ.A.), April 10, 2013 Goodwin v. Olupona, 2013 ONCA 259 (Laskin, Blair and Epstein JJ.A.), April 25, 2013 1. Stevens v. Stevens, 2013 ONCA 267 (Weiler, Sharpe and Rouleau JJ.A.), April 29, 2013

At issue in this decision was the validity of a marriage contract.

During reconciliation efforts, the respondent wife's lawyer prepared a marriage contract to provide for what would happen in the event the reconciliation failed. The respondent had invested a significant amount of inherited money into the matrimonial home. In her covering letter, the respondent's lawyer stated that the agreement was that the appellant husband would receive one-half of the value of the home. However, the written agreement, which was later executed by the parties, actually stated that the appellant would receive one hundred percent of the value of the home. When the reconciliation attempt failed, the appellant commenced proceedings to enforce the contract. At trial, the respondent sought rectification, which the husband resisted.

The trial judge concluded that there was no enforceable agreement in part because there was no meeting of the minds as to its essential terms including the issue of the split of the value of the home. There was no agreement that the appellant would receive the entire value of the home. Rather, the written contract contained a drafting error.

Before the Court of Appeal, the appellant now asked for rectification. The Court held that the remedy of rectification could not be open to the appellant on appeal as it was completely inconsistent with his position and the evidence he led at trial. The appellant was not permitted to ask the court "to rectify an agreement to reflect terms he swore he did not agree to." To allow the appellant to seek rectification on appeal would be "fundamentally unfair" to the respondent.

The Court also rejected the appellant's claim that the trial judge placed undue reliance on his matrimonial misconduct. Any discussion of the context in which the agreement was written would inevitably include reference to the parties' conduct as the case revolved around the fact that the marriage was falling apart. The trial judge stated in his judgment that he found the appellant's conduct could not be connected to the issue of whether the marriage contract should be set aside. The Court of Appeal was satisfied that the trial judge's finding on the issue of the lack of a meeting of the minds did not rest upon any misuse of the evidence of matrimonial misconduct.

The Court also briefly addressed the costs awarded by the trial judge, noting that while the award "pushes reasonableness and proportionality to their limits", the appellant failed to demonstrate grounds for intervention. The trial judge was permitted to consider the appellant's conduct during the litigation in exercising his discretion to award costs.

The appeal was dismissed.

2. Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2013 ONCA 254 (Winkler C.J.O., Weiler and Laskin JJ.A.), April 25, 2013

   In this decision, the Court of Appeal considered whether it was an error by the Divisional Court to refuse to award costs of an appeal in two class action proceedings when the appellants had succeeded on the substantive issue they had appealed.

   The appellants, three charitable organizations that held lotteries and other fundraising activities, claimed that the respondent municipalities charged licensing and administration fees which greatly exceeded the associated costs of regulation. The appellants sought restitution for a class of persons who paid fees to the municipalities submitting that the fees were, in effect, a tax imposed by the municipalities in the absence of legislative authority and, as such, ultra vires the municipalities.

   At the certification motion, the motion judge certified the proceedings as class actions, but limited the scope of the class to those persons whose claims were not prima facie barred by the Limitations Act, 2002, S.O. 2002, c.24, Sched. B.

   On appeal, the Divisional Court found that the motion judge erred in law in limiting the size of the respective classes as the limitations issue should not have been decided on the certification motion. The Divisional Court also held that a number of other arguments raised by the respondents - which had not been addressed by the motion judge due to his finding on the scope of the class - should be referred back to the motion judge for reconsideration. On the matter of costs, the Divisional Court appears to have believed that success was...