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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Fresh evidence

Fresh evidence did not meet test for admissibility

Father loaned $38,550 to his son. Loan was secured by mortgage on son’s home. Many years later, son’s former spouse sought to sell home to satisfy equalization payment owing from their divorce. Son’s former spouse sought declaration that mortgage in favour of father was not binding on her and was not encumbrance on property. Application judge concluded that any claim by father on mortgage was statute-barred and that mortgage was not encumbrance or charge on property. Father appealed. Appeal dismissed. Fresh evidence father sought to rely on did not meet test for admissibility. Evidence could have been adduced at trial. There was interim order in application requiring father to produce his lawyer’s file. Explanation that documents were not produced due to administrative oversight was not acceptable explanation, particularly in face of disclosure order. Documents did not satisfy criteria in s. 23(1) of Real Property Limitations Act (Ont.) therefore there was no reason to conclude that evidence could reasonably have been expected to have affected result. Father’s own conduct disentitled him from claiming equitable remedy. Application judge found that father had acted in concert with his son to negatively impact son’s former spouse and to frustrate her legitimate right to realize her equalization payment.
Stetler v. Stetler (Mar. 17, 2016, Ont. C.A., G.R. Strathy C.J.O., P. Lauwers J.A., and M.L. Benotto J.A., CA C60610) Decision at 253 A.C.W.S. (3d) 949 was affirmed. 264 A.C.W.S. (3d) 557.



Tax authority not entitled to assess portions of building in which school operated

Applicant owned single building complex that housed both church and school. School was operated by corporation incorporated by church for insurance and liability purposes, but was fully controlled by and financially dependent on church. Respondent tax authority conceded that both church and school would likely be tax-exempt if they operated separately, or church would be tax-exempt if it operated school itself, but submitted school had to be considered separate entity in circumstances, and was taxable because it did not own land or have exclusive lease of it. As a result, respondent sought to assess portions of building in which school operated. Application for judicial review. Application granted. School and church were part of single patrimony, and respondent’s position frustrated operation of Assessment Act (Ont.). There was no dispute that church was church or religious organization within meaning of s. 3(1)(3), and school was non-profit philanthropic, religious or educational seminary of learning with meaning of s. 3(1)(5). Idea that exemptions were to be narrowly construed no longer applied. No doubt primary purpose of occupation of land by church was to house place of worship, and “school” sections, such as classrooms and gym, were also integral part of church. That they were used by school in off hours did not detract from their purpose, so all parts except school administrative areas fell under s. 3(1)(3)(i) exemption. Exemption in s. 3(1)(5) applied to all contested school use areas since they shared common patrimony with church. Decision did not deal with church book store and supply shop, but church could re-apply with better evidence, or to daycare housed in separate area of building.
St. George and St. Rueiss Coptic Orthodox Church v. Municipal Property Assessment Corp. (March 9, 2016, Ont. S.C.J., S.F. Dunphy J., CV-11-442880) 264 A.C.W.S. (3d) 302.

Administrative Law

Duty to act fairly

Imposition of sanctions on basketball officials set aside

CG was voluntary head coach of high school basketball team while JG and N were voluntary assistant coaches. Association was voluntary not-for-profit organization for basketball officials in province. CG and JG were members of association in their capacity as officials. Team coached by CG, JG, and N lost playoff game in final seconds, resulting in team’s elimination from playoffs. CG, JG, and N blamed referees for calling disproportionate number of penalties against team in last 90 seconds of game. Committee of association conducted hearing by conference call after providing CG, JG, and N with copies of reports from game officials but not initial complaint. N and official H were not able to participate. Committee considered information from H that had not been disclosed. Association imposed sanctions on CG, JG, and N based on committee’s findings. CG and JG appealed, and all sanction periods were reduced by one-half. CG, JG, and N nonetheless brought application for judicial review. Application granted. Association’s decision imposing sanctions on CG, JG, and N was set aside. Association’s disciplinary procedure had to afford CG, JG, and N natural justice and procedural fairness in order to be valid. Authorities indicated proceedings that involved loss of person’s ability to earn income attracted highest level of fairness. In case of CG and JG, sanctions deprived them of opportunity to earn income by officiating basketball games for significant periods of time. Association’s notice of hearing had not communicated seriousness of matter. Even minutes of conference call did not indicate that seriousness of matter had been communicated. N had not received notice of hearing directly. CG, JG, and N had never been provided with initial complaint or full contents of one report. Proceeding with hearing in absence of N and H was inappropriate, as was reliance on undisclosed oral statement of H. CG had not been given notice that Twitter postings would be considered, and they were mischaracterized as occurring over several days rather than just one. No explanation was provided as to how length of sanctions was arrived at. Given seriousness of some of these errors, appellate process was not sufficient to cure procedural defects in original hearing.
Gymnopoulos v. Ontario Assn. of Basketball Officials (March 2, 2016, Ont. S.C.J., L. Bird J., DC-15-898-00) 264 A.C.W.S. (3d) 281.

Civil Procedure

Want of prosecution

Motion judge erred in assessment of prejudice

Plaintiffs brought action related to slip and fall of plaintiff at border crossing plaza. After plaintiffs’ counsel’s staff inadvertently failed to request status hearing from court registrar dismissed action. More than two years went by before plaintiffs brought motion to set aside registrar’s dismissal order. Motion judge refused to set aside dismissal order, finding that defendants were significantly prejudiced by plaintiffs’ delay. Plaintiffs appealed. Appeal allowed; action reinstated. Motion judge erred in her assessment of prejudice, which was at heart of her decision to dismiss plaintiffs’ motion. Motion judge’s findings of prejudice to defendants did not arise from plaintiffs’ delay but from factors either pre-dating any delay or stemming from defendants’ failure to take appropriate steps to alleviate prejudice. Motion judge’s error concerning prejudice played essential part in reasoning process that led her to dismissal of plaintiffs’ motion. Without finding of prejudice, contextual analysis resulted in conclusion that order be set aside. Factor of delay by itself was not sufficient in circumstances to deny plaintiffs’ request to reinstate action. There was no evidence that delay was product of deliberate decision not to take steps in proceedings. Present case was not instance where finality must trump preference of having action heard on its merits.
Labelle v. Canada (Border Services Agency) (Mar. 7, 2016, Ont. C.A., John Laskin J.A., G. Pardu J.A., and L.B. Roberts J.A., CA C60307) Decision at 254 A.C.W.S. (3d) 558 was reversed. 264 A.C.W.S. (3d) 86.

Civil Procedure


Trial judge did not err in refusing adjournment

Trial judge found appellants fraudulently submitted false information to respondent bank in order to obtain loans and found them liable for over $10 million in damages for fraudulent misrepresentation, negligent misrepresentation, conversion and conspiracy. Events giving rise to litigation occurred in 2007. Appellants commenced action claiming declarations they were not liable on guarantees. Bank counterclaimed. Three weeks before trial, appellants served notices of intention to act in person. They stated they would not be pursuing their claim and trial to proceed on counterclaim. Days before trial, however, appellants advised bank’s counsel they would be seeking adjournment to retain new counsel, explaining that they hoped to settle up to last minute. Appellant P produced doctor’s letter stating he was being treated for depression and could not participate in legal proceedings until his condition improved. His condition was long-standing but he obtained letter on day he filed notice of intention to act in person. Bank opposed adjournment. Trial judge refused adjournment, finding that trial had been scheduled for a year, it was appellants’ obligation to proceed expeditiously, it would likely be another year before another trial could be scheduled, appellants signified intention to act in person and had not taken any steps to consult with counsel in interim and P’s medical condition not raised until adjournment sought. Appellants did not call any evidence. Trial judge gave lengthy reasons for judgment. Appellants appealed, arguing trial judge erred in refusing adjournment by failing to consider all relevant circumstances. Appeal dismissed. Trial judge has discretion to decide whether adjournment request ought to be allowed or denied. Factors considered by trial judge justified her decision. Appellants gave notice of intention to act in person and had ample time to retain new counsel. Appellants were self-represented due to own decision to put off trial preparation in hope of settlement. Trial judge clearly considered nature of case, matters in dispute, appellants’ familiarity with issues and their relative sophistication. Issues were not complex and defence was entirely within appellants’ personal knowledge. Trial judge could reasonably conclude appellants would be capable of defending claim without assistance of counsel. Bank would be prejudiced by further delay of case already five years old. There was also public interest in efficient use of scarce judicial resources and in timely, efficient and fair resolution of trials. Trial judge properly took these factors into account.
Turbo Logistics Canada Inc. v. HSBC Bank Canada (Mar. 23, 2016, Ont. C.A., G.R. Strathy C.J.O., P. Lauwers J.A., and M.L. Benotto J.A., CA C58073) Decision at 234 A.C.W.S. (3d) 800 was affirmed. 264 A.C.W.S. (3d) 85.

Constitutional Law

Charter of Rights

Applicant was granted constitutional exemption from prohibition against physician-assisted death

Applicant, 81 years old with advanced-stage aggressive lymphoma, granted declaration that he satisfied criteria for constitutional exemption from prohibition against physician-assisted death. He was also granted declaration that circumstances of his death would not require notification to coroner under Coroners Act (Ont.). Applicant established he was competent adult person, had grievous and irremediable medical condition that was causing him to endure intolerable suffering which could not be alleviated by any treatment and he clearly consented to termination of life. Coroner need not be notified of applicant’s death because death would not be from a cause other than by disease nor would his death be circumstance that required investigation under Act.
B. (A.) v. Canada (Attorney General) (Mar. 17, 2016, Ont. S.C.J., Perell J., CV-16-00AD001-00ES) 263 A.C.W.S. (3d) 919.

Civil Procedure

Case management

Court could do nothing further to help self-represented plaintiff

Actions had long history and arose from 2000 motor vehicle accident. Plaintiff commenced actions against defendant driver and Statutory Accident Benefits action against her insurer. Plaintiff had been represented by many different lawyers throughout and actions had been subject to many motions throughout years. Capacity assessment was conducted and found plaintiff capable, though psychiatric disorders were identified. Tentative settlement was reached but plaintiff refused to conclude. Plaintiff’s counsel had withdrawn and plaintiff was now self-represented. Trial date was vacated to find amicus curiae, given court’s concerns with plaintiff’s ability to defend herself, but plaintiff’s relationship with amicus curiae had also irreparably broken down. Given plaintiff’s resolve to continue self-represented, court could do nothing further to help her, so matter was to proceed to scheduling trial, and defendant’s motion to dismiss for delay and plaintiff’s former lawyers’ motion for charging order, which had been adjourned, would also be scheduled.
Huang v. Braga (Feb. 11, 2016, Ont. S.C.J., T. McEwen J., 02-CV-223298 CM3, 06-CV-316408 PD1) 263 A.C.W.S. (3d) 902.

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