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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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Bankruptcy and Insolvency

Practice and procedure in courts

Appeals

Leave to appeal order approving sale process was dismissed

Company in which G was shareholder went bankrupt. Estate trustee sought offers for company’s assets and arranged auction. Only bidders were G and brother of another shareholder. Auction was unsuccessful. Trustee sought court approval to conduct second auction. G’s request to adjourn motion for approval was denied and order approving sale process granted. G did not participate in second auction and company’s assets were sold to other bidder. G brought motion for leave to appeal order approving sale process. Motion dismissed. Proposed appeal did not satisfy test for leave. Issues raised by G were not of general importance to practice of bankruptcy and insolvency matters or to administration of justice as whole. Motion judge’s decision not to adjourn proceeding and decision to approve sale process were highly fact-specific and were exercise of judge’s discretion. Neither ground of appeal was prima facie meritorious. There was nothing to suggest error in principle or improper exercise of discretion. Proposed appeal would unduly hinder progress of bankruptcy proceedings.
IceGen Inc., Re (2016), 2016 CarswellOnt 18630, 2016 ONCA 907, E.E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.).

Family Law

Domestic contracts and settlements

Effect of contract

Trial judge did not err in interpreting final separation agreement

Parties were married in 1983 and adopted daughter at birth in 1995. Wife left work to become full time homemaker. Parties separated in 2009. In July 2011 parties entered into partial separation agreement under which husband was to pay periodic spousal support of $4,000 per month. In January 2013 parties entered into final separation agreement. Daughter continued to live primarily with husband. Husband, who had been terminated from his employment, agreed to make final spousal support payment of $4,000 for December 2012. Husband began new employment in July 2013. In 2014, wife applied for retroactive spousal support to July 2013 on basis of material change under agreement, also submitting that daughter was no longer child of marriage. Trial judge found husband’s income to be $152,000 and wife’s income to initially be $3,760. Trial judge ordered spousal support of $5,400 monthly retroactive to July 2013; $1,900 monthly from May 2015 to April 2016; $1,930 monthly from May 2016 to April 2017; then $2,068 monthly, indefinitely. Three latter amounts were based on wife making withdrawals from Locked-In Retirement Account ($66,250, $65,221, and $62,167, respectively). Husband appealed. Appeal dismissed. Trial judge did not err in interpreting final separation agreement. Trial judge was entitled to conclude that agreement was not bar to wife’s application for support based on change in circumstances. Agreement acknowledged husband had lost job, effected an equalization of property, stipulated that cessation of spousal support was subject to future material change, required husband to notify wife in event of obtaining future employment, and lacked extensive releases of spousal support. Husband’s argument that his continuing support of daughter meant that he did not have to support wife had to be rejected. Trial judge did not err in concluding that daughter was no longer child of marriage and that wife had no continuing obligation to support her.
Berger v. Berger (2016), 2016 CarswellOnt 18305, 2016 ONCA 884, K.M. Weiler J.A., David Watt J.A., and Grant Huscroft J.A. (Ont. C.A.).


Contracts

Construction and interpretation

Resolving ambiguities

There was no genuine issue for trial

Motion judge granted summary judgment. Defendant appealed. Appeal dismissed. Defendant took position that motion judge should not have granted summary judgment based on written agreement, affidavits and cross-examinations. Defendant took position that he should have found genuine issue for trial based on need to make credibility findings after hearing viva voce evidence, because of ambiguities in agreement. Motion judge interpreted contract based on terms of agreement and of security granted pursuant to agreement. Motion judge rejected position of defendant that he never intended to guarantee principal amount of funds that had been provided by plaintiff. Motion judge considered all of evidence before him in reaching his interpretation. There was no genuine issue for trial that required any further evidence.
1161267 Ontario Ltd. v. Mei (2016), 2016 CarswellOnt 18096, 2016 ONCA 881, Feldman J.A., Lauwers J.A., and Miller J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 12399, 2015 ONSC 5146, Coroza J. (Ont. S.C.J.).


Civil Practice and Procedure

Judgments and Orders

Final or interlocutory

Trial judge declared mistrial

Conduct of two jurors gave trial judge concern about appearance of trial’s fairness, but did not find there was reasonable apprehension of bias. Trial judge declared mistrial and discharged jury and ordered that he would remain seized of matter and it would be placed on list of jury trials commencing in September 2016. Defendant appealed. Plaintiffs brought motion to quash appeal. Motion granted. Order under appeal was interlocutory. Court expressly retained jurisdiction.
Williams v. Grand River Hospital (2016), 2016 Carswell­Ont 16447, 2016 ONCA 793, G.R. Strathy C.J.O., H.S. LaForme J.A., and K. van Rensburg J.A. (Ont. C.A.).


Civil Practice and Procedure

Disposition without trial

Stay or dismissal of action

Plaintiff had no cause of action against Public Guardian and Trustee

Plaintiff’s action was dismissed under R. 2.1 of Rules of Civil Procedure. Motion judge determined that Divisional Court was not suable entity and that claim against province for allegedly wrong decision of that court was frivolous and vexatious. He also held that there was no merit in plaintiff’s action against Public Guardian and Trustee for its conduct in settling prior actions on plaintiff’s behalf as settlements were approved by Divisional Court. In addition, he found that plaintiff had no cause of action against Public Guardian and Trustee for solicitor’s negligence because it did not act in capacity of plaintiff’s solicitor. Similarly, he concluded that Public Guardian and Trustee’s counsel owed its duties to Public Guardian and Trustee and not to plaintiff. Plaintiff appealed. Appeal dismissed. No error was seen in motion judge’s conclusion that plaintiff’s claim was devoid of merit or in his reliance on history of prior proceedings to address R. 2.1 issue. Prior proceedings formed subject matter of plaintiff’s action and were incorporated by reference into his statement of claim.
Kavuru v. Ontario (Public Guardian and Trustee) (2016), 2016 CarswellOnt 16562, 2016 ONCA 758, Janet Simmons J.A., H.S. LaForme J.A., and G. Pardu J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 18765, 2015 ONSC 7697, F.L. Myers J. (Ont. S.C.J.).


Debtors and Creditors

Receivers

Actions involving receiver

Action against court appointed receiver was stayed

Order was made staying action as against court appointed receiver and refusing leave to sue receiver. Plaintiff appealed. Appeal dismissed. Submission that motion judge erred in failing to find that receiver had already consented to action being commenced against it was rejected. No basis was seen to interfere with motion judge’s refusal to grant leave to sue receiver. This was discretionary decision. Motion judge found that there was no evidence tendered that plaintiff suffered damages and, having assessed record before her, she declined to draw such inference. No error was seen in her conclusion. It was reasonably based on evidence or lack of evidence placed before her on motion.
2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd. (2016), 2016 CarswellOnt 17141, 2016 ONCA 819, Paul Rouleau J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.).


Conflict of Laws

Torts

Choice of law

The court held that Ontario did not have jurisdiction simpliciter

Motion judge stayed plaintiffs’ action against defendant on basis that it had no real and substantial connection to Ontario. Plaintiffs appealed. Appeal dismissed. None of presumptive factors set out in certain case law was satisfied on facts of case. Motion judge found that defendant was Alberta corporation, resident or domiciled in Alberta, and that accident giving rise to action occurred when plaintiff GC was staying at hotel while he worked temporarily in Alberta. These findings were open to motion judge on record before him, and they were fatal to claim that Ontario had jurisdiction simpliciter. There was no basis to pierce corporate veil, or to create new presumptive factor, simply because there was evidence that one of directors of corporation appeared to have resided in Ontario for period of time. Necessity argument was made because limitation period for bringing action in Alberta had expired, and plaintiffs would be unable to bring their action if they were not permitted to do so in Ontario. Forum of necessity doctrine was exception to real and substantial connection test, and operated only in extraordinary and exceptional circumstances. This was not appropriate case for exercise of court’s discretion. Plaintiffs made tactical decision not to bring their action in Alberta, and it would not be appropriate to relieve them of consequences of that decision. Effect was not given to plaintiffs’ argument that they were prejudiced by failure of defendant to provide them with information necessary for their defence of motion.
Cook v. 1293037 Alberta Ltd. (2016), 2016 CarswellOnt 17394, 2016 ONCA 836, R.A. Blair J.A., Gloria Epstein J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 19523, 2015 ONSC 7989, Mulligan 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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