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Family Law

Division of family property

Practice and procedure

Trial Judge was entitled to wholly prefer evidence of one expert

Parties separated after 40-year marriage, leading to protracted matrimonial litigation. Trial judge found in favour of husband on most issues, ordering wife to pay $140,000 equalization and costs in amount of $109,248. Wife appealed. Appeal dismissed. Weight to be given by experts’ opinions was wholly within province of trial judge who gave cogent reasons for preferring husband’s expert over wife’s expert valuator of farm equipment. Trial judge’s failure to strictly follow correct approach on whether to award unequal share of net family property did not affect outcome. Financial issues were not complex. Wife held title to matrimonial home with equity of about $250,000 while husband owned farm equipment that his appraiser valued at $83,800. Since husband’s expert opinion was accepted, it was apparent that there would be substantial equalization payment from wife.
Keresturi v. Keresturi (2017), 2017 CarswellOnt 2434, 2017 ONCA 162, G.R. Strathy C.J.O., John Laskin J.A., and G.T. Trotter J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 9635, 2015 ONSC 3565, R.J. Harper J. (Ont. S.C.J.).

Alternative Dispute Resolution

Judicial review of arbitration awards

Grounds for review

Arbitration award was set aside

Parties all worked in real estate business and entered verbal agreement to work together to sell property and split commissions. Dispute arose about commission for one property, with applicant taking position he should receive all commission and respondents asserting commission should be equally split amongst all three parties. Agency offered to provide arbitration. Both manual and arbitration agreement entered into by parties provided arbitration would be final and binding. Parties all made submissions and questioned each other. Arbitration award provided that commission would be equally split between parties, but there was complete absence of reasons. Applicant brought application to set aside arbitration award. Application granted. Since Arbitration Act came into force, phrase “final and binding” may be insufficient to exclude right of appeal. Respondents’ argument that arbitration was so simple and informal that reasoning could be inferred was not accepted. Parties made submissions and were examined, yet there was no record of this evidence or argument. Arbitration committee must have preferred respondents’ evidence but there was no explanation why. Absence of reasons offended s. 38 of Arbitration Act and common law requirements. Applicant was entitled to know why his position did not prevail and to assess his options. If appeal resulted, court needed reasons to review, and members of public, particularly those in real estate, would benefit from explanation of how dispute was resolved. As there was no information about committee members, their availability for recall or whether they kept any notes, merely remitting matter for reasons was not viable option.
Peters v. D’Antonio (2016), 2016 CarswellOnt 21243, 2016 ONSC 7141, Bruce Thomas J. (Ont. S.C.J.).

Labour and Employment Law

Public service employees

Termination of employment

Adjudicator’s determination was unreasonable

Grievor was federal public servant, whose last assignment involved working as civilian clerk at RCMP district office. RCMP management spoke to grievor about certain issues, and when that did not lead to improvement in her performance and behaviour, levied three and then 10-day suspension. Security review process culminated in revocation of grievor’s reliability status, and termination followed as grievor’s position required that she possess valid reliability status. Seven grievances filed by grievor were referred to adjudication, and adjudicator dismissed grievances. Grievor’s application for judicial review was dismissed. Grievor appealed. Appeal allowed. Six of grievor’s grievances were remitted for re-determination. Adjudicator’s determination that grievor was not subject of disguised discipline was unreasonable. Security review process was used as means to terminate grievor’s employment because her supervisors were dissatisfied with her workplace performance and behaviour. Grievor should have been accorded right to have reasons for her termination reviewed under cause standard. Interpretation of Public Service Labour Relations Act adopted by adjudicator deprived grievor of this right and, if allowed to stand, would largely hollow out protection from dismissal without cause afforded to employees under Act.
Bergey v. Canada (Attorney General) (2017), 2017 CarswellNat 276, 2017 FCA 30, M. Nadon J.A., Johanne Gauthier J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 CarswellNat 1511, 2015 CarswellNat 8344, 2015 FC 617, 2015 CF 617, Roger T. Hughes J. (F.C.).

Civil Practice and Procedure

Pleadings

Amendment

Motion to amend statement of claim in patent infringement action was dismissed

Plaintiffs sought leave in Federal Court to amend their statement of claim in patent infringement action to add three individuals as additional defendants and to add claim for joint and several liability. Motion was dismissed by prothonotary of Federal Court. Appeal was dismissed. Plaintiffs appealed. Appeal dismissed. Federal Court did not err in law in identifying and applying legal principles concerning amendment of pleadings, in its understanding of case law regarding personal liability of directors and officers, or with respect to legal principles to be applied regarding personal liability of third parties. There was no palpable and overriding error. Federal Court took into account all relevant pleadings. Facts set out in proposed pleading did not establish type of conduct necessary for personal liability. Pleaded facts were to effect that each of corporate defendants infringed plaintiff’s patent, but these were not sufficient to support claim for joint and several liability.
NOV Downhole Eurasia Ltd. v. TLL Oilfield Consulting Ltd. (2017), 2017 CarswellNat 277, 2017 FCA 32, David Stratas J.A., Mary J.L. Gleason J.A., and Judith M. Woods J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 2276, 2016 CarswellNat 3772, 2016 FC 685, 2016 CF 685, B. Richard Bell J. (F.C.).

Criminal Law

Offences

Murder

New evidence about witness testimony was admitted on appeal

Accused and co-accused were convicted of second degree murder and assault with weapon arising out of shooting outside of casino following altercation between deceased and complainant’s group and accused and co-accused’s group. On appeal from convictions, accused applied to admit new evidence about testimony given by eyewitness S during co-accused’s retrial and two statements given by S to police, but not disclosed to accused until after his first appeal had been dismissed. S had stated that man with ponytail, identified as accused, was not shooter. Appeal judge held that weighed against evidence of identification based on inferences drawn from arguably ambiguous statements made afterwards by accused, S’s eyewitness evidence that man with ponytail was not man who shot deceased bore directly on identity of shooter and could therefore be of critical importance at any retrial. S’s police statements, or at least his KGB statement, could well have raised reasonable doubt as to accused’s identification as one of shooters in mind of trial judge, particularly given paucity of other evidence upon which that judge relied to assure himself of that element. New evidence was admitted, accused’s appeal was allowed, and new trial was ordered. Appeal by Crown dismissed. In all of circumstances, court was satisfied that S’s KGB statement was admissible, was reasonably capable of belief, and could reasonably have affected outcome.
R. v. Brown (2017), 2017 CarswellAlta 255, 2017 CarswellAlta 256, 2017 SCC 10, 2017 CSC 10, Abella J., Moldaver J., Karakatsanis J., Gascon J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellAlta 1190, 2016 ABCA 192, Ronald Berger J.A., J.D. Bruce McDonald J.A., and Myra Bielby J.A. (Alta. C.A.).

Civil Practice and Procedure

Limitation of actions

Real property

Claimant could not establish uninterrupted adverse possession over disputed lot

In 1930, disputed area escheated to Crown. Appellants, M family, commenced action seeking declaration that provincial Crown did not own land and could not transfer it to city, and petitioned for declaration of ownership of land in fee simple in possession. M family claimed that C family lived on disputed area starting in 1909 and G family moved into C home and lived there until 1922. Municipality brought summary trial application seeking dismissal of related action. Trial judge found there was approximate four-year period between last evidence of C arguably living on disputed area and first evidence of G family as residents in area. In second hearing, M family produced further evidence pursuant to s. 11 of Land Title Inquiry Act. Municipality’s motion for summary judgment was granted. M family successfully appealed. Municipality appealed. Appeal allowed. Decisions of chamber­s judge was restored. Given chambers judge’s finding — untainted by palpable and overriding error — that M family had not established uninterrupted adverse possession over disputed lot from 1916 through 1920, it was unnecessary to address submissions of municipality and of Attorney General of British Columbia regarding whether M family’s claim was defeated for lack of registration. GM held no interest in disputed lot and therefore no interest therein passed to M family.
Nelson (City) v. Mowatt (2017), 2017 CarswellBC 400, 2017 CarswellBC 401, 2017 SCC 8, 2017 CSC 8, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2016), 2016 CarswellBC 611, 2016 BCCA 113, Saunders J.A., Chiasson J.A., and Harris J.A. (B.C. C.A.).

Family Law

Support

Child support


Rule 25(19)(e) of Family Law Rules (Ont.) includes authority to set aside order

Parties had three children. Trial was held on issues of child support but father was absent due to work. Trial judge made order fixing child support arrears at $191,924 for years 2007 to 2015 and order for ongoing monthly child support in amount of $2,159 based on average income of $120,000. Father appealed. Mother brought motion to dismiss appeal on basis that proper procedural route was motion to set aside. Motion dismissed. Appeal scheduling was ordered to de-list matter until father’s motion to set aside was decided. Rule 25(19)(e) of Family Law Rules includes authority to set aside order. Definition of change was quite broad. Broad interpretation of r. 25(19) as including authority to set aside order was consistent with prior comments from court. Such interpretation of r. 25(19) promotes underlying philosophy, scheme and purpose of Family Law Rules.
Gray v. Gray (2017), 2017 CarswellOnt 1349, 2017 ONCA 100, Doherty J.A., J.C. MacPherson J.A., and P. Lauwers J.A. (Ont. C.A.).

Criminal Law

Offences

Dangerous driving causing death

Judge did not misunderstand or misapply legal standard for dangerous driving

Accused’s vehicle crashed into front entrance of department store when she was reversing out of parking spot. Two people were injured, and two children lost their lives. Trial was held of accused charged with two counts of criminal negligence causing death and two counts of criminal negligence causing bodily harm. Trial judge convicted accused of lesser included offences of dangerous driving causing death and dangerous driving causing bodily harm. Judge held that accused’s manner of driving was marked and substantial departure from what was expected of reasonable driver. Judge found that accused intended to slam on brakes, but applied pressure to gas pedal to point it was compressed right to floor, and did not take any corrective measures. Accused appealed. Appeal dismissed. Judge did not misunderstand or misapply legal standard for dangerous driving and found that accused’s failure to take corrective action was marked departure from standard of care. Judge did not misapprehend evidence regarding accused’s driving behaviour and corrective action. Judge’s finding that accused’s foot could not have become caught in pedal as described by accused was reached by applying common sense and considering all evidence. Verdict was not unreasonable.
R. v. Burger (2017), 2017 CarswellOnt 1350, 2017 ONCA 101, H.S. LaForme J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 9492, 2015 ONCJ 349, Jonathon C. George J. (Ont. C.J.

Criminal Law

Family law

Support


Ontario court did not have jurisdiction to determine corollary relief following valid foreign divorce order

After brief marriage in which Canadian husband lived in Canada while wife remained in China where their daughter was born, wife applied in Ontario for divorce and corollary relief. Husband’s divorce application in China led to stay of wife’s application. Chinese family court granted divorce and awarded wife custody of daughter but, due to husband’s failure to disclose properties and income in Canada, directed parties to apply in Canada for determination of support and equalization of net family property. Stay on wife’s application was lifted and, at preliminary jurisdictional hearing, trial judge ruled that Ontario court had jurisdiction to award child support, spousal support and equalization under Divorce Act (DA) and under Family Law Act (FLA). Husband appealed. Appeal allowed in part. Ontario court had jurisdiction under FLA to determine child support and equalization of net family property. Ontario court did not have jurisdiction under DA to hear and determine corollary relief proceeding following valid foreign divorce order as, without divorce granted in Canada, support order could not properly be viewed as corollary relief. Trial judge erred in law when he attempted to distinguish binding precedent as unique circumstances of this case did not serve to confer jurisdiction where statute did not provide jurisdiction. Trial judge also erred in relying on forum of necessity doctrine as, if Ontario had jurisdiction, it was clear that it was appropriate forum due to real and substantial connection by virtue of husband’s residence in Ontario. Husband did not dispute jurisdiction of Ontario courts under FLA to adjudicate equalization of net family property and wife conceded that there was no jurisdiction under FLA to award spousal support. This case where foreign court granted valid divorce but did not deal with child support was analogous to circumstances in jurisprudence holding that, where court issuing divorce had not adjudicated child support, provincial legislation was valid means of seeking child support. Use of FLA to provide remedy was consistent with statutory objective of ensuring that parents provide support for dependent children.
Cheng v. Liu (2017), 2017 CarswellOnt 1348, 2017 ONCA 104, G.R. Strathy C.J.O., J.C. MacPherson J.A., and C.W. Hourigan J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 11183, 2016 ONSC 3911, Price J. (Ont. S.C.J.).

Conflict of Laws

Family law

Support

Ontario court did not have jurisdiction to determine corollary relief following valid foreign divorce order

After brief marriage in which Canadian husband lived in Canada while wife remained in China where their daughter was born, wife applied in Ontario for divorce and corollary relief. Husband’s divorce application in China led to stay of wife’s application. Chinese family court granted divorce and awarded wife custody of daughter but, due to husband’s failure to disclose properties and income in Canada, directed parties to apply in Canada for determination of support and equalization of net family property. Stay on wife’s application was lifted and, at preliminary jurisdictional hearing, trial judge ruled that Ontario court had jurisdiction to award child support, spousal support and equalization under Divorce Act (DA) and under Family Law Act (FLA). Husband appealed. Appeal allowed in part. Ontario court had jurisdiction under FLA to determine child support and equalization of net family property. Ontario court did not have jurisdiction under DA to hear and determine corollary relief proceeding following valid foreign divorce order as, without divorce granted in Canada, support order could not properly be viewed as corollary relief. Trial judge erred in law when he attempted to distinguish binding precedent as unique circumstances of this case did not serve to confer jurisdiction where statute did not provide jurisdiction. Trial judge also erred in relying on forum of necessity doctrine as, if Ontario had jurisdiction, it was clear that it was appropriate forum due to real and substantial connection by virtue of husband’s residence in Ontario. Husband did not dispute jurisdiction of Ontario courts under FLA to adjudicate equalization of net family property and wife conceded that there was no jurisdiction under FLA to award spousal support. This case where foreign court granted valid divorce but did not deal with child support was analogous to circumstances in jurisprudence holding that, where court issuing divorce had not adjudicated child support, provincial legislation was valid means of seeking child support. Use of FLA to provide remedy was consistent with statutory objective of ensuring that parents provide support for dependent children.
Cheng v. Liu (2017), 2017 CarswellOnt 1348, 2017 ONCA 104, G.R. Strathy C.J.O., J.C. MacPherson J.A., and C.W. Hourigan J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 11183, 2016 ONSC 3911, Price J. (Ont. S.C.J.).
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