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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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Civil Practice and Procedure

Disposition without trial

Stay or dismissal of action

Collective agreement made matter arbitrable

Insured received long-term disability (LTD) benefits from insurer under group policy through her employment on basis of collective agreement. When benefits were terminated, insured brought action against insurer. Insurer brought motion to dismiss action on basis that court lacked jurisdiction. Motion judge granted motion and dismissed action on ground of lack of jurisdiction. Judge held that collective agreement made matter arbitrable. Insured appealed. Appeal dismissed. Fact that LTD benefits were paid under insurance policy did not change fact that insured’s entitlement to LTD benefits was provided by collective agreement. Collective agreement established insured’s rights to LTD benefits and covered terms, amount, definition of total disability, and referred to policy. Jurisdiction over dispute belonged to arbitrator.
Barber v. Manufacturers Life Insurance Co. (2017), 2017 CarswellOnt 2631, 2017 ONCA 164, H.S. LaForme J.A., S.E. Pepall J.A., and G. Pardu J.A. (Ont. C.A.).

Administrative Law

Prerogative remedies

Certiorari

Applicant had automatic right of appeal to provincial Civilian Police Commission

Applicant police officer was charged with discreditable conduct, unnecessary or unlawful exercise of authority and insubordination. Hearing officer found applicant guilt of some of charges and hearing date was set to determine appropriate penalty. Application’s motion requesting that hearing officer recuse himself for reasonable apprehension of bias was dismissed. Applicant applied for judicial review. Application dismissed. Application was premature as applicant had automatic right of appeal to provincial Civilian Police Commission from decision of hearing officer. Commission would have authority to consider bias argument on appeal. Exceptional circumstances were required to justify early intervention. Hearing had been held and determination made on merits. Only remaining step was penalty, with limited costs associated with completing hearing. It was appropriate to allow appeal process to play out.
Pereira v. Hamilton Police Service (2017), 2017 CarswellOnt 1443, 2017 ONSC 924, Morawetz R.S.J., Nordheimer J., and Mulligan J. (Ont. Div. Ct.).

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.).

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.).

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.).

Bankruptcy and Insolvency

Companies’ Creditors Arrangement Act

Arrangements

Canadian debtors’ plan of compromise and arrangement was sanctioned

Global telecommunications company with corporate entities in many jurisdictions (debtors) became insolvent. Canadian debtors were granted Companies’ Creditors Arrangement Act protection. Dispute arose regarding $7.3 billion held in escrow after sale of debtors’ assets (allocation dispute), which involved protracted litigation in Canada and U.S. with various parties from multiple jurisdictions. Parties executed settlement and support agreement (Agreement). Monitor brought motion to sanction Canadian debtors’ plan of compromise and arrangement (Plan) and to release escrowed sale proceeds in accordance with Agreement. Motion granted. Plan sanctioned. Release of sale proceeds authorized in manner set out in Agreement. Plan was fair and reasonable. Plan received approval from 99.7 percent of creditors and called for payment to creditors on pari passu basis, which was bedrock of Canadian insolvency law. Objections to approval of Plan by long-term disability (LTD) beneficiaries were dismissed. LTD claimants were bound to prior agreement that their claims were to rank as unsecured claims that shared pari passu with other unsecured claims against Canadian debtors and that any claim for priority treatment had been released. Plan was not contrary to ss. 7 and 15 of Charter of Rights and Freedoms with respect to LTD claimants.
Nortel Networks Corp., Re (2017), 2017 CarswellOnt 1120, 2017 ONSC 700, Newbould J. (Ont. S.C.J. [Commercial List]).
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