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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of March 20 to 24, 2023.

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In Land v. Dryden Police Services Board, the appellants’ claims against a First Nations Children’s Aid Society and against the Dryden Police were dismissed by way of motion for summary judgment. The claims arose out of an allegedly unlawful entry into the appellants’ home to check in on a child suspected to be in need of protection. The Court upheld the dismissal of the claims against the Society and its employees, as that claim was brought outside of the two-year limitation period. The Court set aside the dismissal of some of the claims against the Dryden Police.

In KingSett Mortgage Corporation v. 30 Roe Investments Corp., the Court of Appeal refused to grant a motion removing our firm as counsel of record following delivery of a Notice of Appeal. The Court commented that extraordinary circumstances, including an expedited motion to quash the appeal, justified the rare step of the court exercising its discretion to refuse to permit a law firm to get off the record.

In Alger v. Crumb, the Court determined that a revocation clause in a testator’s will was not effective in changing beneficiary designations of a TFSA and RRIF plan under s. 51 and s. 52 of the Succession Law Reform Act.

Tyler v Eadie is a waterfront boundary dispute involving lake front properties.

Wishing everyone an enjoyable week.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Tyler v. Eadie, 2012 ONCA 201

Keywords: Property Law, Land and Riparian Rights, Adverse Possession, Accretion, Avultion, Ontario (A.G.) v. Walker (1970), 1 O.R. 151 (H.C.J.), Becker v. Walgate, 2020 ONCA 491, Clarke v. Edmonton (City), [1930] S.C.R. 137, McClatchie v. Rideau Lakes (Township), 2015 ONCA 233

Alger v. Crumb, 2023 ONCA 209

Keywords: Wills and Estates, Property, Registered Plans, Beneficiary Designations, Revocation, Succession Law Reform Act, R.S.O. 1990, c. s. 26, s. 50, s. 51(1), s. 52, and s. 53, Laczova Estate v. Madonna House (2001), 207 D.L.R. (4th), Burgess v. Burgess Estate (2000), 52 O.R. (3d) 61 (C.A.), Income Tax Act, R.S.C. 1985, c. 1 (5th Supp), Ashton Estate v. South Muskoka Memorial Hospital Foundation, 2008 CanLII 21421 (Ont. S.C.), MacInnes v. MacInnes, [1935] S.C.R. 200, Amherst Crane Rentals Ltd. v. Perring (2001), 241 D.L.R. (4th) 176 (Ont. C.A.), R. v. Scarlett, 2013 ONSC 562

Land v. Dryden Police Services Board, 2023 ONCA 207

Keywords: Intentional Torts, Malicious Prosecution, Negligent Investigation, False Arrest, False Imprisonment, Assault and Battery, Trespass, Invasion of Privacy, Constitutional Law, Charter Claims, Civil Procedure, Summary Judgment, Limitation Periods, Procedural and Natural Justice, Reasonable Apprehension of Bias, Canadian Charter of Rights and Freedoms, Criminal Code, R.S.C. 1985, c. C-46, s. 7, s. 8, s. 9, s. 12, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s.5(1), s. 5(1)(a), s. 5(1)(b), s. 5(2), Child and Family Services Act, R.S.O. 1990, c. C. 11, s. 40, s. 40(1), s. 40(2), s. 40(7), s. 40(7)(a), s.4(7)(b), s. 40(8), s. 40(11), R. v. Davidson, 2017 ONCA 257, R. v. C.(M.), 2007 ONCJ 164, R. v. Ashkewe, 2007 ONCJ 152, Romanic v. Johnson, 2012 ONSC 3449, aff’d 2013 ONCA 23

KingSett Mortgage Corporation v. 30 Roe Investments Corp. , 2023 ONCA 196

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Vesting Orders, Appeals, Removal of Lawyers of Record, Rules of Civil Procedure, r. 15.04, R. v. Cunningham, 2010 SCC 10, Todd Family Holdings Inc. v. Gardiner, 2015 ONSC 6590

Short Civil Decisions

Freeman’s Service Centre Ltd. v. Modern Auto Parts Limited, 2023 ONCA 195

Keywords: Civil Procedure, Striking Pleadings, Discovery, Undertakings, Deemed Admissions, Rules of Civil Procedure, r. 34.15(1)(d), R. v. Sheppard, 2002 SCC 26, R. v. G.F., 2021 SCC 20

Auciello v. Yao, 2023 ONCA 199

Keywords: Family Law, Property Division, Unjust Enrichment, Constructive Trust, Joint Family Venture, Real Property, Ordre for Sale, Civil Procedure, Appeals, Stay Pending Appeal, Van Delst v. Hronowsky, 2022 ONCA 782, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364

Punit v. Punit, 2023 ONCA 200

Keywords: Family Law, Spousal Support, Child Support, Section 7 Expenses, Termination, Civil Procedure, Final Orders, Standard of Review, Deference, Family Law Act, R.S.O. 1990, c. F.3, s. 7, Hickey v. Hickey, [1999] 2 S.C.R. 518

Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 202

Keywords: Costs

Legault v. TD General Insurance Company, 2023 ONCA 204

Keywords: Contracts, Insurance, Fire Policy, Fraud, Civil Procedure, Appeals, Evidence on Appeal, Notices of Appeal, Amendments, Rules of Civil Procedure, Rule 61.08

CIVIL DECISIONS

Tyler v. Eadie, 2023 ONCA 201

[Fairburn, A.C.J.O., Brown and Sossin JJ.A.]

Counsel:

G. Roberts, for the appellants and cross-respondents

J. Mastorakos, for the respondents and cross-appellants

Keywords: Property Law, Land and Riparian Rights, Adverse Possession, Accretion, Avultion, Ontario (A.G.) v. Walker (1970), 1 O.R. 151 (H.C.J.), Becker v. Walgate, 2020 ONCA 491, Clarke v. Edmonton (City), [1930] S.C.R. 137, McClatchie v. Rideau Lakes (Township), 2015 ONCA 233

facts:

This appeal concerned a dispute over shared boundary between lakefront properties and the location of the Appellants’ dock vis-à-vis the Respondents’ land and riparian rights.

The trial judge held that it was the intention of the grantors, HE and subsequent subdividers, to convey all the land they owned fronting on Balsam Lake that was not submerged, and that the boundary therefore extended to the water’s edge rather than any definite length based on a bank or high water mark.

After considering the varied surveys of the area, including undefined references to the water boundary as the “high water line” and “high water mark”, the trial judge found that the common boundary between the parties’ properties (the “Appellants’ property” and the “Respondents’ property”) terminates at the water’s edge of Balsam Lake. The trial judge described this boundary as “ambulatory” as the water’s edge will move depending on the water level, a factor controlled by the authorities responsible for the Trent-Severn Waterway.

The trial judge further found that the land under the Appellants’ dock was successfully adversely possessed by the them. That said, the trial judge went on to find that the placement of Appellants’ dock could not interfere with the Respondents’ riparian rights, meaning that the use of the dock cannot impede the Respondents’ access to navigable water.

In the main appeal, the Appellants submitted that the trial judge erred in his finding with respect to the waterfront boundary between the properties, and in his application of Ontario (A.G.) v. Walker (“Walker”). The Appellants further argued that the trial judge’s decision was incompatible with the Court’s decision in Becker v. Walgate (“Becker”).

The Respondents, as cross-appellants, challenged the adverse possession holding of the trial judge. They submitted that the trial judge’s reasons on adverse possession were insufficient and that, in any event, in light of evidence to the contrary, the trial judge erred in fact on finding effective exclusion of the Respondents by the Appellants.

issues:
  1. Did the trial judge err in his finding with respect to the water boundary between the properties?
  2. Was the trial judge’s decision incompatible with the Court’s decision in Becker?
  3. Did the trial judge err in establishing the threshold for adverse possession?
holding:

Appeal and cross-appeal dismissed.

reasoning:

(1)  No

The Court held that the trial judge did not err in his finding with respect to the water boundary between the properties. The trial judge made findings based on what was open to him on the record. The trial judge properly characterized the court’s fundamental objective in cases such as this one, as he engaged in precisely the examination of the grants, surveys and evidentiary record called for in Walker.

(2)  No

The Court rejected the Appellants’ contention that the trial judge failed to apply the Court’s decision in Becker. In Becker, the Court overturned a decision regarding water boundaries on the basis that there was a failure to appreciate the ambiguity of the grant and a closer examination of the record should have been undertaken to determine the intentions of the grantor. In this case, the trial judge did examine the record and made the necessary findings with respect to the intentions of HE.

(3)  No

The trial judge set out the proper threshold for adverse possession. Relying on the Court’s decision in McClatchie v. Rideau Lakes (Township), the trial judge examined and properly referred to the evidence that the Appellants had actual possession of the land under the dock as of their purchase of their property on November 7, 2002, intended to exclude the Respondents from possession, and effectively excluded them until at least March 2013, when the Respondents dismantled the Appellants’ dock. The Court saw no basis to interfere with the trial judge’s conclusion because there was evidence in the record capable of supporting the finding, and it was entitled to deference.


Alger v. Crumb, 2023 ONCA 209

[Feldman, Zarnett and Copeland JJ.A.]

Counsel:

J.M. Friedman, for the appellants

S. McNamara, for the respondents

Keywords: Wills and Estates, Property, Registered Plans, Beneficiary Designations, Revocation, Succession Law Reform Act, R.S.O. 1990, c. s. 26, s. 50, s. 51(1), s. 52, and s. 53, Laczova Estate v. Madonna House (2001), 207 D.L.R. (4th), Burgess v. Burgess Estate (2000), 52 O.R. (3d) 61 (C.A.), Income Tax Act, R.S.C. 1985, c. 1 (5th Supp), Ashton Estate v. South Muskoka Memorial Hospital Foundation, 2008 CanLII 21421 (Ont. S.C.), MacInnes v. MacInnes, [1935] S.C.R. 200, Amherst Crane Rentals Ltd. v. Perring (2001), 241 D.L.R. (4th) 176 (Ont. C.A.), R. v. Scarlett, 2013 ONSC 562

facts:

The testator, who passed away on June 18, 2020, had four children, the appellants and the respondents. By her will dated May 9, 2019, she named the appellants, RC and KB, as her Estate Trustees. The estimated value of the estate (not including the Registered Retirement Income Fund (“RRIF”) and Tax-Free Savings Account (“TFSA”) plans) was $164,000.00.

At her death, the testator possessed RRIF plans at Scotiabank in the amount of $34,136.65, as well as a TFSA plan at the same bank in the amount of $65,674.72. By instrument(s) that do not form part of the record of the application, but which were executed before the will, the testator designated all four of her children, the appellants and the respondents, as equal beneficiaries of the plans.

The will left a $20,000 bequest to each of the respondents, some smaller bequests, and the residue to only two of her children, the appellants, RC and KB. There was no list of assets in the will. The appellants stated that the respondents were estranged from their mother during her final years and that was why she made her will to favour the appellants.

The appellants, as estate trustees, took the position that the general revocation clause was effective to revoke the designations by instrument(s) of the four children as equal beneficiaries of the plans, and that those plans therefore formed part of the estate to be distributed in accordance with the terms of the will. The respondents then brought the application that is under appeal to have the issue determined by the court.

The application judge found that because the general revocation clause did not relate expressly to the testator’s existing designations by instrument(s) of her RRIF and TFSA plans, it was not effective to revoke those designations, and they remained in effect.

issues:
  1. Was the application judge correct in law by finding that the general revocation clause in the testator’s will failed to expressly refer to the prior designations of beneficiaries by instrument(s) and therefore was not effective under s. 52(1) of the SLRA to revoke those designations?
  2. Is the decision in Ashton Estate v. South Muskoka Memorial Hospital Foundation (“Ashton”) regarding the effectiveness of a general revocation clause in a will correct?
holding:

Appeal dismissed.

reasoning:

(1)  Yes

The issue on the appeal was whether the revocation clause was effective under s. 52(1) of the Succession Law Reform Act, (“SLRA”) to revoke the testator’s existing designations by instrument(s) of beneficiaries for her RRIF and TFSA plans. Section 52(1) of the SLRA provides: “A revocation in a will is effective to revoke a designation made by instrument only if the revocation relates expressly to the designation, either generally or specifically”.

The Court found that the application judge was correct in concluding that the general revocation clause in the testator’s will failed to expressly refer to the prior designations of beneficiaries by instrument(s) and therefore was not effective under s. 52(1) of the SLRA to revoke those designations. The Court summarized the following propositions of interpretation of designation and revocations established in Laczova: (1) the SLRA sets out statutory requirements for the designation of a beneficiary by will and for the revocation of a beneficiary designation by will, that are not required for such a designation or revocation when done by instrument; and (2) a designation of a beneficiary by will must relate expressly, whether generally or specifically, to the plan (s. 51(2)), while a revocation by will of a beneficiary designation that was made by instrument must relate expressly, whether generally or specifically, to the designation (s. 52(1)).

The Court stated that the first question in interpreting the clause was whether the term “testamentary dispositions” included the designations of beneficiaries by instrument of the RRIF and TFSA plans. In MacInnes v. MacInnes, the Supreme Court held that the designation of a beneficiary under an employee benefit plan to receive the proceeds of the plan on death was a testamentary disposition, the test being whether the intent of the maker was that the gift be dependent on the maker’s death. The Court agreed with the application judge that the designations of beneficiaries by instrument(s) of the RRIF and TFSA plans were testamentary dispositions and therefore were included within the meaning of that term as used in the general revocation clause of the will.

The Court addressed the remaining question regarding whether the revocation of “all…Testamentary dispositions of every nature and kind whatsoever” relates “expressly to the designation, either generally or specifically.” The Court explained that the statutory requirement has two components for the revocation to be effective: (1) it must relate to the designation, as opposed to the plan; and (2) it must relate to the designation “expressly…, either generally or specifically”.

The Court found that the clause did relate to the designation, as a beneficiary designation by instrument is a testamentary disposition at law. By referring to all testamentary dispositions, the general revocation clause related to the designation, and the first criterion was satisfied. However, the Court found that the clause did not relate to the designation “expressly…, either generally or specifically”.

(2)  Yes

The Court held that the application judge was correct to find that the interpretation of the general revocation clause in Aston Estate should not be followed. The Court found that the revocation clause in that case did not relate to the designation expressly, and it was an error to find that the clause constituted an effective revocation of the earlier designation by instrument. However, the Court clarified that the result in Ashton Estate was correct under s. 52(2) of the SLRA, because the court gave effect to the terms of the will where the eight children were designated as beneficiaries of any RRSPs that the testator owned at the date of death.


Land v. Dryden Police Services Board, 2023 ONCA 207

[Fairburn A.C.J.O., Simmons and Zarnett JJ.A.]

Counsel:

J.L., acting in person

S.H., acting in person

S. Blake and K. Yakimoski, for the respondents Dryden Police Services Board and its employees: Sgt S.M.S., Cst. J.H.O., Cst. P.A.H., Cst. K. H.

A. Silver and D. Buxton, for the respondents Anishinaabe Abinooji Family Services and its employees: D.G. and K.T.

Keywords: Intentional Torts, Malicious Prosecution, Negligent Investigation, False Arrest, False Imprisonment, Assault and Battery, Trespass, Invasion of Privacy, Constitutional Law, Charter Claims, Civil Procedure, Summary Judgment, Limitation Periods, Procedural and Natural Justice, Reasonable Apprehension of Bias, Canadian Charter of Rights and Freedoms, Criminal Code, R.S.C. 1985, c. C-46, s. 7, s. 8, s. 9, s. 12, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s.5(1), s. 5(1)(a), s. 5(1)(b), s. 5(2), Child and Family Services Act, R.S.O. 1990, c. C. 11, s. 40, s. 40(1), s. 40(2), s. 40(7), s. 40(7)(a), s.4(7)(b), s. 40(8), s. 40(11), R. v. Davidson, 2017 ONCA 257, R. v. C.(M.), 2007 ONCJ 164, R. v. Ashkewe, 2007 ONCJ 152, Romanic v. Johnson, 2012 ONSC 3449, aff’d 2013 ONCA 23

facts:

On November 24, 2015, officers S, O, and B went to the appellants’ home to check on a child after receiving information that SH was under the influence when picking up her child from school. One of the officers saw SH arrive home in a taxi with the child. When asked by the police to speak to the child, SH and JL responded with obscenities and noticed that the child appeared “teary eyed and upset”. The officers left the home and contacted Anishinaabe Abinoojii Family Services (the “Society”). Later, a Society worker, Ms. G, requested police assistance to conduct a welfare check on the child.

When conducting the welfare check, it was apparent to Ms. G that JL was under the influence. After explaining why they were there, JL allowed Ms. G into the home. When the officers attempted to accompany Ms. G into the home, JL tried to close the door, but Office S put his foot in the door to force it open and the officers entered the home with Ms. G. Both appellants were arrested and charged with several offences, including wilful obstruction of a police officer engaged in the execution of their duty and resisting a police officer engaged in the execution of their duty. These charges were later withdrawn.

The appellant claimed damages against the Dryden Police Services Board and its employees for negligence, negligent investigation, assault, battery, malicious prosecution, negligent infliction of mental distress, invasion of privacy, trespass, false arrest, false imprisonment, misfeasance in public office and breaches of ss. 7, 8 and 9 of the Charter. SH also claimed damages for breach of s. 12 of the Charter.

Five police officers, two Society workers, and the appellants filed affidavits on a summary judgment motion brought by the respondents to dismiss the action. The motion judge noted that the main factual issues were the manner of entry into the appellants home and the interaction between the appellants and the officers. To the extent that the affidavit evidence on the motion was conflicting, the motion judge found the evidence of the police officers consistent, and the evidence of the appellants self-serving, uncorroborated, somewhat inconsistent and lacking on a material issue (i.e., whether they had consumed alcohol on the day in question). The motion judge also drew an adverse inference against the appellants because they failed to file an affidavit from a person they claimed witnessed the entry into their home and would support their version of events. The motion judge held that there was no genuine issue requiring a trial and dismissed the action.

In dismissing the claims against the Society defendants, among other things, the motion judge concluded that the action was statute-barred because it was commenced beyond the two-year limitation period set out in the Limitations Act, 2002.Regarding the claim against the Dryden Police, the motion judge relied on a finding that the Society worker was entitled to enter the home without a warrant under s. 40 of the Child and Family Services Act (“CFSA”), and was entitled to request police assistance. Accordingly, the appellants’ claims against the Dryden Police were also dismissed.

issues:
  1. Did the motion judge err in finding that the appellants’ claims against the Society defendants were statute-barred?
  2. Did the motion judge err in finding Ms. G was entitled, under s. 40 of the CFSA, to enter the appellants’ home without a warrant and to request the police officers to assist her in so doing?
  3. Did the motion judge err in failing to recuse himself from hearing the summary judgment motion because he acted for JL before being appointed as a judge?
  4. Did the motion judge err in dismissing any of the remaining claims against the Dryden Police, not affected by his finding of a lawful entry?
holding:

Appeal allowed in part.

reasoning:

(1)  No

The Court held that the motion judge did not err in concluding that the appellants’ claims against the Society defendants were statute-barred as their claims against the Society defendants were not dependent on the outcome of the criminal proceedings and the outcome of those proceedings did not affect the limitation period for commencing the action against the Society defendants.

(2)  Yes

The Court found that the motion judge erred in finding Ms. G was entitled, under s. 40 of the CFSA, to enter the appellants’ home without a warrant and to request the police officers to assist her in so doing, as there was an absence of evidence to support the motion judge’s finding. The motion judge made a finding that Ms. G had a subjective belief that the appellants’ child “may have been” in need of protection on the day in question and that it was objectively reasonable. The Court took issue with this analysis because Ms. G’s affidavit gave no specific evidence addressing whether she believed, when she entered the residence, that the child met the statutory criterion of being a child in need of protection. Her only evidence that spoke directly to that statutory criterion was that, after the appellants were placed under arrest, she concluded the child was in need of protection primarily because there was no adult caregiver present in the home. Accordingly, the Court found that the motion judge’s finding concerning this statutory criterion was made without a proper evidentiary foundation.

The Court took further issue with the motion judge’s finding because s. 40 of the CFSA requires “reasonable and probably grounds that the child is in danger” but, when the motion judge described this requirement, his finding was that Ms. G believed that the child “may be in danger” which is a lower standard than “is in danger.” The Court reiterated that s. 40(11) is premised on s. 40(7), which sets out the two pre‑conditions to its exercise that a child protection worker believe on reasonable and probable grounds: (i) that a child is in need of protection, and (ii) that there would be a substantial risk to the child’s health or safety during the time necessary to obtain a warrant under ss. 40(2). The Court found it unnecessary to decide whether reasonable and probable grounds to believe a child may be in need of protection is sufficient to meet the requirements of s. 40(7)(a) of the CFSA. The Court left that question to another case in which the decision could fully be argued.

The Court concluded that the motion judge erred in finding that Ms. G’s entry, and therefore the police entry, was lawful under s. 40 of the CFSA because the motion judge made no finding, and there was no evidence before him on which to base a finding, that the requirements of s. 40(7)(b) of the CFSA were satisfied.

(3)  No

The Court gave no effect to this ground of appeal, as JL did not raise the issue during the trial and did not file evidence to support his claim.

(4)  No, with respect to the appellant SH. Yes, with respect to the appellant JL.

The Court held that the motion judge did not err in finding there was no genuine issue requiring a trial concerning the claims for negligent infliction of mental distress and breach of the appellants’ s. 8 Charter rights because the claims were not particularized in the statement of claim and/or not supported by evidence on the motion. Further, as the motion judge noted and the Court agreed, in order to succeed on these claims, the appellants had to prove that the proceedings instituted against them were terminated in their favour. Given that the charges against SH were withdrawn as part of an arrangement with the Crown requiring SH to perform community service, it could not be said that the proceedings against her were terminated in her favour. Accordingly, the Court held that the appellant SH’s claims for negligent investigation and malicious prosecution were properly dismissed.

Concerning the appellant JL, the court held that the motion judge did err in finding no genuine issue requiring a trial with respect to JL’s claims. The Court found that in the circumstances, it was not clear whether the charges were withdrawn as part of a plea arrangement or for some other reasons, such as lack of merit. As a result, the Court held that JL’s claims for negligent investigation and malicious prosecution should not have been dismissed and must proceed to trial.

KingSett Mortgage Corporation v. 30 Roe Investments Corp., 2023 ONCA 196

[Lauwers J.A. (Motion Judge)]

Counsel:

Mervyn D. Abramowitz and Lucas Strezos, for the moving party

C. Fox, for the Receiver of 30 Roe Investment Corp., KSV Restructuring Inc.

R. Swan, for the responding party

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Vesting Orders, Appeals, Removal of Lawyers of Record, Rules of Civil Procedure, r. 15.04, R. v. Cunningham, 2010 SCC 10, Todd Family Holdings Inc. v. Gardiner, 2015 ONSC 6590

facts:

The lender, KingSett Mortgage Corporation, brought a receivership application against the appellant. On May 9, 2022, KSV Restructuring Inc. was appointed as receiver and manager over certain assets and undertakings of the appellant.

On February 7, 2023, the Receiver brought a motion for two approval and vesting orders from the Superior Court in respect of the sale of two condominium units. Arguments were heard before Steele J. and the motion was adjourned to February 13, 2023. Due to an illness of one of the appellant’s lawyers, the matter was again adjourned to February 16, 2023.

In her endorsement dated February 13, 2023, Steele J. approved the transactions and granted the approval and vesting orders.

On February 23, 2023, the appellant’s counsel served the notice of appeal but advised its client that it would be bringing a motion to get off the record if the appellant did not retain new counsel.

On March 1, 2023, the Receiver served a motion for an Order to quash the appellant’s appeal, to expedite the hearing of the Appeal, and to lift any automatic stay of proceedings arising as a result of the appeal. That motion is scheduled to be heard March 27, 2023.

By endorsement dated March 10, 2023, Steele J. removed the appellant’s counsel as lawyers of record for the appellant in the underlying matter. The appellant’s counsel moved to be removed as lawyers of record on the appeal.

issues:
  1. Should appellant’s counsel be removed as lawyers of record for the appellant?
holding:

Motion dismissed.

reasoning:

(1)  No

The Court noted that in “ordinary circumstances” it would have granted counsel’s motion in light of the unredacted record before it. However, the Court did not consider the present motion to have been brought under “ordinary circumstances”.

The Court was satisfied that counsel had provided the appellant adequate notice of the need to appoint new counsel expeditiously. However, the Court acknowledged the other parties’ fear that a lawyer would show up on the eve of the argument of the motion to quash and request an adjournment, which, if granted, would give the appellant the result he wanted, which was that the transactions would not close.

The Court held that priority, in the circumstances, be given to the administration of justice, and not to the interests of counsel avoiding the possibility of unremunerated expense of further involvement.

The Court felt that counsel had an ethical obligation as officers of the court to do no harm to court proceedings, and should not have commenced the appeal on their client’s behalf. The Court stated that by starting an appeal that counsel had no intention of participating in, counsel had jeopardized the receivership proceedings it had participated in.



SHORT CIVIL DECISIONS

Freeman’s Service Centre Ltd. v. Modern Auto Parts Limited, 2023 ONCA 195

[Fairburn A.C.J.O., Brown and Sossin JJ.A.]

Counsel:

D.A. MacKenzie, for the appellants

P. Karsten, for the respondent, Freeman’s Service Centre Ltd.

M. Harmes, for the respondent, I. Heulans

E. Gionet, for Lawyers’ Professional Indemnity Company

Keywords: Civil Procedure, Striking Pleadings, Discovery, Undertakings, Deemed Admissions, Rules of Civil Procedure, r. 34.15(1)(d), R. v. Sheppard, 2002 SCC 26, R. v. G.F., 2021 SCC 20

Auciello v. Yao, 2023 ONCA 199

[Roberts, Nordheimer and Thorburn JJ.A.]

Counsel:

W. Y, acting in person

V. A, acting in person

Keywords: Family Law, Property Division, Unjust Enrichment, Constructive Trust, Joint Family Venture, Real Property, Ordre for Sale, Civil Procedure, Appeals, Stay Pending Appeal, Van Delst v. Hronowsky, 2022 ONCA 782, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364

Punit v. Punit, 2023 ONCA 200

[Fairburn A.C.J.O., Brown and Sossin JJ.A.]

Counsel:

S.M. Bookman and G.H. Bookman, for the appellant

R.A. Baijnath, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Section 7 Expenses, Termination, Civil Procedure, Final Orders, Standard of Review, Deference, Family Law Act, R.S.O. 1990, c. F.3, s. 7, Hickey v. Hickey, [1999] 2 S.C.R. 518

Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 202

[Pepall, Trotter and Thorburn JJ.A.]

Counsel:

R.W. Staley, N.J. Shaheen and A.N. Sahai, for the appellants

J. Groia and B. Pascutto, for the respondent

Keywords: Costs

Legault v. TD General Insurance Company, 2023 ONCA 204

[Lauwers J.A. (Motion Judge)]

Counsel:

A. Ismail, for the moving party

A. Odinocki and M. Zekel, for the responding party

Keywords: Contracts, Insurance, Fire Policy, Fraud, Civil Procedure, Appeals, Evidence on Appeal, Notices of Appeal, Amendments, Rules of Civil Procedure, Rule 61.08


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles professional discipline and professional negligence matters, as well as complex estates and matrimonial litigation. In addition, John represents amateur sports organizations in contentious matters, and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.