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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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Aboriginal Law

Family law

Children in need of protection

Canada failed to take reasonable steps to prevent loss of aboriginal identity in post-placement

Plaintiff brought class action against Canada, with respect to “scoop” of aboriginal children who were removed from their families on reserves in Ontario by child welfare authorities and were placed with or adopted by non-aboriginal parents. Plaintiff brought motion for summary judgment on certified common issue of whether Canada breached fiduciary or common law duties to take reasonable steps to prevent class members’ loss of aboriginal identity after they were placed in foster and adoptive parents. Motion granted. While rudimentary child welfare services were extended to some reserves, with minimal federal funding, Canada’s agreement with Ontario extended whole range of child welfare services and other provincial welfare programs to Indians with significant federal funding. Key component of agreement was Canada’s obligation to consult with Indian Bands, which plainly and unambiguously applied to each of 18 extended programs including child welfare services. No Indian Bands were ever consulted before child welfare services were extended and no Bands provided their concurrence. Language and context of provision at issue implicitly obligated Canada to actually undertake referred-to consultations and so, as Canada failed to consult with Indian Bands as it had undertaken to do, it breached agreement. If Canada had consulted with Bands, they clearly would have provided ideas and advice that could have prevented thousands of scooped children from losing their aboriginal identity. Canada failed to take reasonable steps to prevent loss of aboriginal identity in post-placement by, at minimum, failing to provide parents with information on apprehended children’s aboriginal heritage and entitlement to various federal benefits. Obligation to consult under agreement created common law duty of care that provided basis in tort for class members’ claims. Agreement was analogous to third-party beneficiary agreement as Canada undertook obligation to consult to benefit Indian Bands who were not parties to agreement.
Brown v. Canada (Attorney General) (2017), 2017 CarswellOnt 1758, 2017 ONSC 251, Edward P. Belobaba J. (Ont. S.C.J.).

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.).
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An estate trustee who took an ‘egregious' position in litigation has been ordered to personally pay more than $140,000 in costs. Will this ruling serve as an appropriate caution to executors on how they conduct themselves in litigation?
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