Topics covered this week included civil forfeiture of proceeds of unlawful activity, regulated professions, family law, breach of fiduciary duty in a partnership context, and stay pending appeal to the Supreme Court of Canada.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Mahtani v. Mistry, 2021 ONCA 492

Keywords: Family Law, Spousal Support, Child Support, Income for Support Purposes, Imputing Income, Underemployment, Equalization of Net Family Property, Civil Procedure, Evidence, Expert Witnesses, Costs, Federal Child Support Guidelines S.O.R./97-175, s. 19

Tanase v. College of Dental Hygienists of Ontario , 2021 ONCA 482

Keywords: Administrative Law, Regulated Professions, Dental Hygienists, Professional Misconduct, Regulated Health Professionals Act, 1991, S.O. 1991, c. 18, Schedule 2 Health Professionals Procedural Code, sections 51(1) and 95(1)(0.a), Canadian Charter of Rights and Freedoms, sections 7 and 12, Dental Hygiene Act, 1991, S.O. 1991, c.22, Ontario Regulation 565/20, Regulated Health Professionals Act (Spousal Exception), 2013, S.O. 2013, c. 9, s. 2, Health Professionals Procedural Code, O. Reg. 260/12, subsection 1 (6), section 1.2, Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, Mussani v. College of Physicians and Surgeons of Ontario, (2004), 248 D.L.R. (4th) 632 (Ont. C.A.), R v Schmidt, 2014 ONCA 188, leave to appeal refused, [2014] SCCA No. 208, New Brunswick (Minister of Health and Community Services) v G.(J.), [1993] 3 SCR 46, Walker v. Prince Edward Island, [1995] 2 SCR 407, Siemens v. Manitoba (Attorney General), 2003 SCC 3, Green v. Law Society of Manitoba, 2017 SCC 20, Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393, Carter v. Canada (Attorney General), 2015 SCC 5, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, Canada (Attorney General) v. Bedford, 2013 SCC 72

Weisberg v. Dixon, 2021 ONCA 491

Keywords: Partnerships, Corporations, Breach of Fiduciary Duty, Unjust Enrichment, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24

Ontario (Attorney General) v. Norwood Estate, 2021 ONCA 493

Keywords: Criminal Law, Proceeds and Instruments of Unlawful Activity, Property, Proceedings In Rem, Civil Remedies, Forfeiture, Settlements, Statutory Interpretation, Civil Remedies Act, 2001, S.O. 2001, c. 28, s. 1, s.2, s. 3, s. 6, s.7(1), ss. 8, s. 11, s. 15.6(1), s. 16, s. 18.1, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 17, Criminal Code, R.S.C. 1985, c. C-46, ss. 462.38(2) and 490(9), Sullivan on the Construction of Statutes, 6th ed., Ruth Sullivan, R. v. Norwood, 2016 ONSC 6207, Chatterjee v. Ontario (Attorney General), 2009 SCC 19, Ontario (Attorney General) v. $29,900 in Canadian Currency (in rem), 2017 ONSC 2003, AGO v. $80 Cdn., et al., 2021 ONSC 988, Ontario (Attorney General) v. 269 Weldrick Road West (in rem), 2020 ONSC 4605, R. v. Stipo, 2019 ONCA 3, R v. Proulx, 2000 SCC 5, Ontario v. Canadian Pacific Ltd. [1995] 2 S.C.R. 1031, Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Crystalline Investments Ltd. v. Domgroup Ltd., 2004 SCC 3, Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32, Harrison v. Carswell, [1976] 2 S.C.R. 200, Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64

Wiseau Studio, LLC v. Harper, 2021 ONCA 504

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Security of Costs, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.01(1), Rules of Civil Procedure, Rule 61.06(1), Wiseau Studio, LLC v. Harper, 2021 ONCA 31, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

Zia v. Ahmad, 2021 ONCA 495

Keywords: Family Law, Spousal Support, Civil Procedure, Arbitration, Default Proceedings, Orders, Enforcement, Res Judicata, Family Law Act, R.S.O. 1990, c. F.3, Sections 59.2(1)(b) and 59.4, Arbitration Act, 1991, S.O. 1991, c. 17, Section 7, Family Law Rules, O. Reg. 114/99, Rule 25(19), Rathwell v. Hershey Canada Inc. (2001), 152 O.A.C. 1 (CA)

Short Civil Decisions

Markham (City) v. AIG Insurance Company of Canada, 2021 ONCA 488

Keywords: Civil Procedure, Appeals, Reconsideration, Finality

7084421 Canada Ltd. v. Vinczer, 2021 ONCA 497

Keywords: Civil Procedure, Jurisdiction, Rules of Civil Procedure, Rules 61.13(3.1), 61.16(5)

Fort Erie (Town) v. 2312810 Ontario Inc, 2021 ONCA 500

Keywords: Provincial Offences, Appeals, Jurisdiction, Leave to Appeal, Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 131(1)-131(3), Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (Ont. C.A.)

CIVIL DECISIONS

Mahtani v. Mistry, 2021 ONCA 492

[Tulloch, Roberts and Thorburn JJ.A.]

Counsel:

S.P. Kirby, for the appellant
R.A. Fernandes, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Income for Support Purposes, Imputing Income, Underemployment, Equalization of Net Family Property, Civil Procedure, Evidence, Expert Witnesses, Costs, Federal Child Support Guidelines S.O.R./97-175, s. 19

facts:

The Appellant husband appealed from the order for spousal and child support, as well as for equalization of property granted to the Respondent wife. The issues at trial were the questions of the amount of income to be imputed to the Appellant under s. 19 of the Federal Child Support Guidelines S.O.R./97-175, and the valuation of his 50% interest in his business, VAMS Canada Inc., for the purposes of determining support and equalization of property.

issues:

(1) Did the trial judge err in accepting the evidence of the respondent’s expert to impute income to the Appellant?
(2) Did the trial judge make inconsistent findings with respect to the valuation of VAMS Canada Inc. as at the dates of separation and marriage for the purpose of the equalization calculation?

holding:

Appeal dismissed.

reasoning:

(1) No
The trial judge did not base his conclusion on the figures in the expert reports but looked at all the evidence. He found that the Appellant was deliberately underemployed, did not make full financial disclosure, and intentionally diverted business from VAMS Canada Inc. to VAKA Trading Inc., a company incorporated by his family roughly two weeks after his separation, the timing of which the trial judge found to be suspicious.
It was open to the trial judge to accept the opinion of the Respondent’s expert that, based on several indicators, additional income should be imputed to the appellant. These indicators included census tract data, borrowing costs, and evidence of the Appellant’s lifestyle and expenses, from which the trial judge, reasonably in the Court’s view, inferred that the Appellant was receiving a higher income than he reported.

(2) No
The Court saw no basis to interfere with the trial judge’s determination of the value of the Appellant’s interest in VAMS Canada Inc. The Appellant’s arguments failed to consider the trial judge’s findings concerning the deficiencies in the evidence and the lack of credible financial disclosure and documentation. The Appellant had failed to produce court-ordered evidence demonstrating the existence of the loans allegedly made by him.

The trial judge therefore concluded that the Appellant had not proven that the shareholder loans were from him or owed to him, either at the date of marriage or at the date of separation. This conclusion was amply supported by the evidence that the trial judge was entitled to accept.
Further, the trial judge’s decision to adopt different methodologies for the valuation of VAMS Canada Inc. at the date of marriage and the date of separation did not give rise to an inconsistency necessitating appellate intervention. There was expert evidence before the trial judge that changing circumstances could necessitate changing methods of valuation.

Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482

[Feldman, MacPherson, Juriansz, Huscroft and Jamal JJ.A.]

Counsel:

S.P. Weinstein and M.M. Biddulph, for the appellant
J. Maciura and E. Richler, for the respondent
S.Z. Green, for the intervener Attorney General of Ontario

Keywords: Administrative Law, Regulated Professions, Dental Hygienists, Professional Misconduct, Regulated Health Professionals Act, 1991, S.O. 1991, c. 18, Schedule 2 Health Professionals Procedural Code, sections 51(1) and 95(1)(0.a), Canadian Charter of Rights and Freedoms, sections 7 and 12, Dental Hygiene Act, 1991, S.O. 1991, c.22, Ontario Regulation 565/20, Regulated Health Professionals Act (Spousal Exception), 2013, S.O. 2013, c. 9, s. 2, Health Professionals Procedural Code, O. Reg. 260/12, subsection 1 (6), section 1.2, Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, Mussani v. College of Physicians and Surgeons of Ontario, (2004), 248 D.L.R. (4th) 632 (Ont. C.A.), R v Schmidt, 2014 ONCA 188, leave to appeal refused, [2014] SCCA No. 208, New Brunswick (Minister of Health and Community Services) v G.(J.), [1993] 3 SCR 46, Walker v. Prince Edward Island, [1995] 2 SCR 407, Siemens v. Manitoba (Attorney General), 2003 SCC 3, Green v. Law Society of Manitoba, 2017 SCC 20, Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393, Carter v. Canada (Attorney General), 2015 SCC 5, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, Canada (Attorney General) v. Bedford, 2013 SCC 72

facts:

Sexual abuse, as defined by the regulated Health Professionals Act, includes sexual intercourse or other forms of physical sexual relations between the member and the patient regardless of whether the relationship is consensual. Sexual relations between members and patients is categorically prohibited.

The appellant is a dental hygienist who entered into a sexual relationship with S.M., a woman he was treating. The two eventually married and the appellant continued to treat his now spouse following their marriage. The appellant first met S.M. in 2012 and developed a platonic relationship, in 2013, the appellant provided dental hygiene treatment to S.M. at his workplace. In 2014, the appellant and S.M. began a sexual relationship and the appellant stopped treating S.M. because he understood he was not permitted to continue to treat her. In 2015, a colleague told the appellant of a change in the rules allowing hygienists to treat their spouses. The advice was incorrect, but the appellant made no attempts to confirm it; he began treating S.M. again in 2015 and provided her with seven treatments, three of which were after the two were married in January of 2016. The College’s Spousal Exception was submitted to the Ontario government in October 2015 and came into force on October 8, 2020.

In 2016, a complaint was made to the College of Dental Hygienists of Ontario (the “College”) and the appellant was found guilty of professional misconduct by the Discipline Committee, and he was issued a reprimand and revocation of his certificate of registration. The Divisional Court dismissed the appellant’s appeal of the Discipline Committee’s decision. The appellant described the revocation of his registration as an absurdity and asked the court to revisit its caselaw.

issues:

(1) Was the Court’s decision in Leering correct?
(2) Was this Court’s decision in Mussani correct?
(3) Was the revocation of the appellant’s registration inconsistent with the principles of fundamental justice?
(4) Were the rights of the spouse engaged?
(5) Should the fresh evidence be admitted?
(6) Did the revocation of the appellant’s registration infringe section 12 of the Charter?

holding:

Appeal dismissed.

reasoning:

(1) Yes.
Leering remains good law and the Committee’s decision that the appellant violated the Code, based on Leering, was correct.
The appellant argued that the Court should revisit Leering to give effect to the Legislature’s intent in the Code’s zero-tolerance scheme of prohibiting the sexual abuse of patients while permitting health professionals to treat their spouses where abuse is not present. In Leering, the Court found that the Divisional Court erred by imposing a duty on the Disciplinary Committee to inquire into the nature of the parties’ sexual relationship.

The appellant further argued that the rule was not intended to prevent a member from treating their spouse or romantic partner where the relationship preceded the treatment. This argument was rejected on the basis that it goes against the nature of the bright-line rule and, if accepted, would convert it to a standard requiring the analysis of the sexual relationship. The Code is clear when it comes to sexual relationships between members and patients – they are not allowed. The Legislature expressly prohibited sexual relationships, not sexual abuse, so the argument that the Legislature’s intent was to prohibit abusive relationships must and does fail.

(2) Yes.
Mussani remains good law and the Committee’s decision that the appellant violated the Code, based on Mussani, was correct.
Revocation of the appellant’s right to practice a profession does not infringe the appellant’s constitutional rights. In Mussani the Court found that economic interests protected by section 7 and section 12 rights were not engaged by a penalty of mandatory revocation of a health professional’s certificate of registration. The appellant argued that Mussani is based on case law that predates the significant expansion of the liberty interest in section 7 and focused on security of the person. The appellant further argued that psychological stress flows directly from the revocation of registration and engages his section 7 rights under security of the person. The Court rejected this argument because the Supreme Court has held, in several cases, that section 7 of the Charter does not protect the right to practice a profession or occupation, or pure economic interests generally.

(3) No.
The appellant argued that the impugned provisions are overbroad. The test for overbreadth is whether “the law goes too far and interferes with some conduct that bears no connection to its objective” (citing Canada v. Bedford at para 101). This test is not met in this case and the impugned provisions are not overbroad because the law does not interfere with conduct that bears no connection to its objective. The conduct, sexual relationships of any nature, is prohibited to assure patients that relationships with health care providers will not become sexualized. This is within the mischief contemplated by the Legislature and does not constitute overbreadth within the meaning of section 7.

(4) No.
There was no merit to the appellant’s argument that the Code engages the rights of spouses by forcing them to choose between their spousal relationship and their place of residence and by requiring them to seek treatment by others rather than their health practitioner spouses.

(5) No.
In light of the rejection of the appellant’s section 7 argument, the fresh evidence the respondent sought to introduce would not have an impact on the result in the case.

(6) No.
Professional regulation does not constitute “treatment” under section 12. The appellant’s argument that mandatory revocation of registration and the permanent notation on the public register constituted cruel and unusual treatment was not accepted, as there was no treatment that could be considered cruel or unusual.

Weisberg v. Dixon, 2021 ONCA 491

[Fairburn A.C.J.O., Lauwers and Harvison Young JJ.A.]

Counsel:

A.Yallen and J. Lawson, for the Appellants
K. O’Brien, L. Harper, and M. Dick, for the Respondents

Keywords: Partnerships, Corporations, Breach of Fiduciary Duty, Unjust Enrichment, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24

facts:

Dr. W and Dr. D were fertility doctors who practised together for a number of years. Dr. D incorporated a numbered company as a new fertility clinic called Anova Fertility & Reproductive Health. Dr. W declined an offer to be a minority shareholder. However, a Senior Associate Agreement was formed which stated that Dr. D was the principal of the new clinic and Dr. W was an associate.

Dr. D completed and submitted a funding application to obtain lucrative government funding for fertility treatments. Dr. D referred to Dr. W’s experience and Electronic Medical Records data. Dr. W claimed that Dr. D filed the application without her knowledge. Dr. W alleged that this was a breach of fiduciary duty because it deprived her of the funding. She also alleged that it unjustly enriched Dr. D. In lengthy and considered reasons, rooted squarely in factual findings linked to credibility assessments, the trial judge rejected Dr. W’s arguments and dismissed the action.

issues:

(1) Did the trial judge err in his findings of fact?

(2) Did the trial judge err in finding that Dr. D did not owe Dr. W a fiduciary duty?

(3) Did the trial judge err in finding a juristic reason for Dr. D’s enrichment?

holding:

Appeal dismissed.

reasoning:

(1) No.
The trial judge’s factual findings were grounded in the evidence. Further, the finding that Dr. W was not a credible witness was based on a solid assessment. It was not for the Court on appeal to revisit those conclusions, as there was no palpable and overriding error.

(2) No.
The trial judge correctly concluded that Dr. D did not undertake to act in the best interest of Dr. W, which is a fundamental element of a fiduciary relationship: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at para. 36. On the evidence, the absence of such an undertaking was fatal to the claim. Even if a such a duty existed, Dr. D acted honestly and did what the parties had agreed to do.

(3) No.
At the time the funding application was filed, Dr. W had agreed to work at the new clinic. She would have benefitted from the funding had she not made the decision not to join the clinic or become a shareholder.

Ontario (Attorney General) v. Norwood Estate, 2021 ONCA 493

[Huscroft, Paciocco and Jamal JJ.A.]

Counsel:

G. Adair, A. Brass and E. Tanny, for the appellants
A.I. Pribetic and Paul Kim, for the respondent
R. Meagher, for the interested party
J.L. Kuredjian and R. Sniderman, for the intervener Canadian Constitution Foundation

Keywords: Criminal Law, Proceeds and Instruments of Unlawful Activity, Property, Proceedings In Rem, Civil Remedies, Forfeiture, Settlements, Statutory Interpretation, Civil Remedies Act, 2001, S.O. 2001, c. 28, s. 1, s.2, s. 3, s. 6, s.7(1), ss. 8, s. 11, s. 15.6(1), s. 16, s. 18.1, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 17, Criminal Code, R.S.C. 1985, c. C-46, ss. 462.38(2) and 490(9), Sullivan on the Construction of Statutes, 6th ed., Ruth Sullivan, R. v. Norwood, 2016 ONSC 6207, Chatterjee v. Ontario (Attorney General), 2009 SCC 19, Ontario (Attorney General) v. $29,900 in Canadian Currency (in rem), 2017 ONSC 2003, AGO v. $80 Cdn., et al., 2021 ONSC 988, Ontario (Attorney General) v. 269 Weldrick Road West (in rem), 2020 ONSC 4605, R. v. Stipo, 2019 ONCA 3, R v. Proulx, 2000 SCC 5, Ontario v. Canadian Pacific Ltd. [1995] 2 S.C.R. 1031, Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Crystalline Investments Ltd. v. Domgroup Ltd., 2004 SCC 3, Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32, Harrison v. Carswell, [1976] 2 S.C.R. 200, Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64

facts:

M.N faced narcotics-related criminal charges, but died before he could stand trial. The Attorney General of Canada (“Canada”) seized M.N’s home (the “Property”) and commenced proceedings to secure its forfeiture. Pending the forfeiture, the Property was sold on consent, and the proceeds paid into Canada’s Seized Property Management Directorate.

After M.N’s death, Canada terminated its forfeiture proceedings. Before the proceeds of the sale could be returned to M.N’s Estate, the Respondent, Attorney General of Ontario, commenced proceedings under the Civil Remedies Act, 2001, S.O 2001, c.28 (“the Act”), seeking its own forfeiture order. The proceeds of the sale of the Property were paid into court.

M.N’s mother, R.N, notified the Respondent of her claim to an interest in the Property. Prior to the resolution of the Respondent’s forfeiture claim, the Respondent agreed with R.N that she should receive $120,000 from the sale proceeds. The Appellants, the M.N’s Estate and a company controlled by M.N before his death, rejected this offer.

Pursuant to s.18.1 of the Act, the Respondent moved for approval of the proposed “settlement”. This was opposed by the Appellants on the grounds that there had not been a judicial determination on whether the proceeds from the sale of the Property were the proceeds and/or instruments of unlawful activity. The Appellants contended that by hearing the settlement motion before the Appellants could challenge the forfeiture proceedings, the court would deprive the Appellants of a defence in those proceedings.

Despite this, the motion judge granted an order approving of the “settlement” between R.N and the Respondent. The motion judge rejected the Appellants arguments on the grounds that s.18.1 of the Act conferred broad powers on the courts to approve settlements.

issues:

(1) Did the motion judge err in law in determining that the approval of a settlement under s. 18.1 of the Civil Remedies Act did not require a prior determination that the funds seized were the proceeds of unlawful activity?
(2) Is R.N a “legitimate owner” or “responsible owner” of the Property, for the purposes of the Act?
(3) Did the motion judge err in deciding the approval motion based on hearsay evidence from a lawyer about the nature of the agreement between R.N and M.N?

holding:

Appeal allowed.

reasoning:

(1) Yes
Section 18.1(1) of the Civil Remedies Act authorizes a court to approve a “settlement in relation to a proceeding under this Act”. The Court held that the agreement between Ontario and Rosa was not a “settlement in relation to a proceeding” under the Civil Remedies Act and therefore not properly subject to judicial approval.

Section 18.1 of the Act, the provision authorizing court approval of settlements which was the primary focus of this appeal, provides as follows:
(1) Despite anything to the contrary in this Act, the court may approve a settlement in relation to a proceeding under this Act, on the motion of the Attorney General or of any other party to the proceeding with the Attorney General’s consent.
(2) For greater certainty, the power to approve a settlement under subsection (1) includes a power to approve a settlement that provides for the full or partial forfeiture of the property that is the subject of the proceeding.
(3) For greater certainty, the power to approve a settlement under subsection (1) includes a power to approve a settlement that provides for payment of a monetary amount instead of the full or partial forfeiture of property that is the subject of the proceeding.

The Respondent argued that any agreement between the Attorney General and a party to forfeiture proceedings constituted a settlement within the meaning of s. 18.1. The Court rejected this, and instead found that s. 18.1 authorized courts to approve settlements that related to the in rem interests in property subject to forfeiture proceedings. Before the Attorney General can achieve an agreement that settled the in rem interests in a subject property, it must first secure a finding that the required link between the property and unlawful activity existed.
The required finding in the present case was that the proceeds of the Property were the proceeds of and or instruments of unlawful activity. As this finding had not been made, the motion judge erred in granting the order under appeal.

The governing legal principles in interpreting s. 18.1
In reaching its conclusion, the Court made several key rulings on the interpretation of s. 18.1 of the Act. The Respondent made three arguments in support of its interpretation of s. 18.1. First, that the ordinary and grammatical meaning of s. 18.1(1) gave the courts broad discretion to approve settlements without a finding of unlawful activity. Second, that this broad interpretation aligned with the object and purpose of the Act and the intention of Parliament. Finally, that the wide authority of this interpretation would be confined by the Attorney General’s obligation to act in the public interest and by the proper bounds of judicial discretion.

The Court rejected each of these arguments. Regarding the first, the Court stated that the words of the Act are to be read in their entire context. Section 18.1(1) allows the court to approve a settlement in relation to a proceeding under the Act. A proceeding under the applicable parts of the Act is an in rem proceeding engaged to settle title to property that is allegedly linked to unlawful activity.

To constitute a “settlement” relating to the in rem interests in the property, an agreement must resolve the in rem rights in the subject property. The agreement between the Respondent and R.N did not resolve the in rem rights to the Property. The Appellants had claimed an interest in the proceeds of the Property that had not been displaced by any forfeiture order. The agreement was therefore incapable of settling the Appellants’ in rem rights, and therefore could not be a “settlement in relation to a proceeding under this Act”. Therefore, the motion judge did not have the authority to approve the settlement. Once the Respondent established the requisite link between the subject property and unlawful activity to support forfeiture, the broad language of s. 18.1 empowers courts to approve any settlement that the Respondent enters.

The second argument by the Respondent was also rejected. The Court found that its in rem interpretation was consistent with the object and purpose of the Act. The object of the Act is to provide civil remedies to address harms from “unlawful activities”. The Respondent’s interpretation would not require “unlawful activities” for the application of s.18.1 of the Act, while the in rem interpretation would.

The Respondent’s interpretation would have also gone against the scheme of the Act. Absent a determination that the subject property was the proceeds or instruments of unlawful activity, there would be a risk that a settlement eradicating the interest of others would deprive a legitimate owner of their property.

Further, the Respondent’s interpretation would go beyond the legislature’s intent, and import absurd consequences to the application of the Act. The “absurd principle” holds that if an interpretation would lead to an absurdity, a court may reject it in favour of a plausible alternative: Ontario v. Canadian Pacific Ltd. [1995] 2 S.C.R. 1031. The Court found the Respondent’s interpretation would lead to illogical, incoherent, and inequitable outcomes.

Finally, the Court rejected the Respondent’s third argument. The fact that the Attorney General is also the Minister of Justice and therefore bound to act reasonably and responsibly was irrelevant to the proper interpretation of s. 18.1.

(2) Not Considered.

(3) Not Considered.

Wiseau Studio, LLC v. Harper, 2021 ONCA 504

Fairburn A.C.J.O. (Motions Judge)

Counsel:

D. Brinza, for the moving parties
M. Bacal and M. Diskin, for the responding parties

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Security of Costs, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.01(1), Rules of Civil Procedure, Rule 61.06(1), Wiseau Studio, LLC v. Harper, 2021 ONCA 31, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

facts:

Wiseau brought a motion pursuant to s. 65.1(1) of the Supreme Court Act (“SCA”) to stay the Court’s previous order for security for costs of the trial and appeal pending leave to appeal to the Supreme Court of Canada.

issues:

(1) Did the moving party raise a serious issue to be tried on the stay application?

(2) Will the moving party suffer irreparable harm if the stay is not imposed?

(3) Does the balance of convenience favour a stay?

holding:

Motion dismissed.

reasoning:

(1) No.
There were no serious issues raised by Wiseau. Wiseau failed to demonstrate that there is an issue of public or national importance raised in the Notice of Application for Leave to Appeal to the Supreme Court of Canada that met the stringent requirements of s. 40(1) of the SCA: Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, para. 7. These decisions are owed deference on review, especially when they are heavily predicated on fact-finding: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, at para. 20.

(2) No.
No specifics were provided in the evidence as to why Wiseau could not obtain the funds on short notice. Furthermore, the respondent mitigated the harm that may be suffered by Wiseau through an undertaking to hold all cost awards and judgments in trust until the matter before the Supreme Court of Canada was resolved.

(3) No.
There was evidence that the responding parties would suffer prejudice if the order for security for costs is not granted (and therefore if it is stayed). This included the fact that Wiseau has made several tactical attempts to delay and obstruct the release of the content in question at trial. Conversely, there was no compelling evidence of harm to Wiseau.

Zia v. Ahmad, 2021 ONCA 495

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

G. S. Joseph, for the appellant
M.H. Tweyman, for the respondent

Keywords: Family Law, Spousal Support, Civil Procedure, Arbitration, Default Proceedings, Orders, Enforcement, Res Judicata, Family Law Act, R.S.O. 1990, c. F.3, Sections 59.2(1)(b) and 59.4, Arbitration Act, 1991, S.O. 1991, c. 17, Section 7, Family Law Rules, O. Reg. 114/99, Rule 25(19), Rathwell v. Hershey Canada Inc. (2001), 152 O.A.C. 1 (CA)

facts:

The parties were married in 2009 and separated in 2015. In 2016, they participated in an arbitration and an award was made (“the Award”) which stated that it was addressing four issues: divorce and habitation rights, dower money, possession of certain household items, and possession of certain jewellery. None of these issues were described as equalization of net family property or as support. An issue regarding the matrimonial home was not resolved and the Award instead advised the parties to “consult court because of legal implications of subject matter.” The responded commenced her action for support and an equalization payment in 2018 which the appellant did not respond to and was noted in default in February 2019. The appellant made no steps up to and including the making of the default order.

The appellant appealed the dismissal of his motion under Rule 25(19) of the Family Law Rules, O. Reg 114/99, to set aside a default order which directed the appellant to pay spousal support to the respondent, that he designated the respondent as a beneficiary on his life insurance for as long as he was obligated to pay spousal support, and that he makes an equalization payment to the respondent.

The appellant argued that the motion judge erred by failing to appreciate that the default order was made without jurisdiction because the parties had previously submitted their dispute to an arbitration, or in failing to appreciate that the Award gave rise to a res judicata defence to the respondent’s claims.

issues:

(1) Did the motion judge err in failing to appreciate that the default order was made without jurisdiction because the parties had previously submitted their dispute to an arbitration?
(2) Did the motion judge err in failing to appreciate that the Award gave rise to a res judicata defence to the respondent’s claims?

holding:

Appeal dismissed.

reasoning:

(1) No.
The Court rejected the appellant’s argument that the motion judge failed to appreciate that the default order was made without jurisdiction because the parties had previously submitted their dispute to an arbitration. The Court held that the arbitration did not cause the default order to be made without jurisdiction. The appellant did not bring forth any evidence that the parties had agreed that they would submit to arbitration, claims for support, insurance to secure spousal support, or equalization. The appellant also did not identify any evidence that the parties made that agreement after their dispute arose or that the arbitration was to be conducted exclusively under Canadian law which are preconditions to any agreement being valid or having any such arbitration having legal effect: Family Law Act, R.S.O. 1990, c. F.3, ss. 59.2(1)(b) and 59.4.

The Court held that in any event, an arbitration agreement does not prevent the court from exercising jurisdiction if a motion to stay the court proceeding has not been brought and granted, which did not happen in this case: Arbitration Act, 1991, S.O. 1991, c. 17, s. 7.

(2) No.
The Court stated that for the doctrine of res judicata to apply, the issues that were, or could have been, dealt with in the arbitration would have to be the same as those that were the subject of the court proceeding: Rathwell v. Hershey Canada Inc. (2001), 152 O.A.C. 1 (CA), at para. 5, leave to appeal refused, 164 O.A.C. 279 (note) (SCC). The Court held that the Award did not deal with equalization, support, or insurance to secure support, nor was there any evidence that it could, with legal effect, have dealt with those issues.

The Court rejected the appellant’s argument that the motion judge failed to consider that he was self-represented or consider his evidence about his ability to make support payments or the net family property calculations and that the motion judge should not have come to a decision without viva voca evidence. The Court held the motion judge was aware the appellant was self represented and considered his submissions and the evidence put forward. The Court further held that the motion judge’s findings of fact were entitled to deference, as was her exercise of discretion as to whether to set aside the default order. The Court held that the motion judge’s reasoning was sound and she was not required to conduct a viva voce hearing as the appellant failed to provide an adequate explanation for his failure to respond to the application for more than 18 months after he was served, did no establish an arguable case on the merits, provided no financial disclosure, and lacked clean hands.

SHORT CIVIL DECISIONS

Markham (City) v. AIG Insurance Company of Canada, 2021 ONCA 488

[Doherty, Brown and Thorburn JJ.A.]

Counsel:

D.G. Boghosian and S.S. Taylor, for the Respondents
M.B. Snowden and S.A. Kamayah, for the Appellant

Keywords: Civil Procedure, Appeals, Reconsideration, Finality

7084421 Canada Ltd. v. Vinczer, 2021 ONCA 497

[Huscroft, Roberts and Zarnett JJ.A.]

Counsel:

A. Vinczer, acting in person, on behalf of the Appellants
G. Anthony, for the Respondent

Keywords: Civil Procedure, Jurisdiction, Rules of Civil Procedure, Rules 61.13(3.1), 61.16(5)

Fort Erie (Town) v. 2312810 Ontario Inc, 2021 ONCA 500

[Watt, Pardu and Trotter JJ.A.]

Counsel:

S. DiGiuseppe and K. Heath, for the Appellants
T.H. Hill, for the Respondent

Keywords: Provincial Offences, Appeals, Jurisdiction, Leave to Appeal, Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 131(1)-131(3), Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (Ont. C.A.)

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