Civil Law

COURT OF APPEAL SUMMARIES (JANUARY 17-21, 2022)

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Good evening.

Following are this week’s summaries of the civil decisions of the Ontario Court of Appeal for the week of January 17, 2022.

In Walters v. Walters, a wills and estates case, the Court provided a helpful summary of the jurisprudence regarding the requirement of trustees to give effect to a testator’s intentions as ascertained from the language of the will and the surrounding circumstances, including an investigation of the financial needs of the income beneficiary, before encroaching on capital to make payments to that beneficiary..

Other topics covered included claims on a promissory note and under an agreement of purchase and sale of land, amending pleadings and security for costs.

I would like to remind our readers to continue to consult Civil Procedure & Practice in Ontario (CPPO). Now into its second year since initial publication and having been recently updated, the CPPO is a free online resource jointly published by the University of Windsor and CanLII. The CPPO was written by a team of 135 leading litigators and experts in Ontario civil procedure, led by Professor Noel Semple of Windsor Law School. I had the privileged of co-writing two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

CPPO will serve as a guide to Ontario’s Rules of Civil Procedure, Courts of Justice Act, and Limitations Act, and will be accessible not only to practitioners, but to members of the public. It contains not only the text of all these rules and statutory provisions, but also commentary and annotations to all the relevant case law applying and interpreting each rule and section. To access Civil Procedure & Practice in Ontario, please click here, and make sure to bookmark the site for easy access.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

NDrive, Navigation Systems S.A. v. Zhou, 2022 ONCA 39

Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rule 61.06(1), NDrive, Navigation Systems v. Zhou et al., 2021 ONSC 7366, NDrive, Navigation Systems v. Zhou, 2021 ONSC 7772, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, 156 O.R. (3d) 551, Yaiguaje v. Chevron Corp., 2017 ONCA 827, 138 O.R. (3d) 1, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, 268 O.A.C. 172, York University v. Markicevic, 2017 ONCA 651, Hall-Chem Inc. v. Vulcan Packaging Inc. (1994), 72 O.A.C. 303 (C.A.), Royal Bank of Canada v. Hi-Tech Tool and Die Inc., 2013 CarswellOnt 5678 (C.A.), 798839 Ontario Ltd. v. Platt, [2014] O.J. No. 6077 (C.A.), Wiseau Studio, LLC v. Harper, 2021 ONCA 396, 66 C.P.C. (8th) 106, Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215

Wharton Holdings Limited v. Balletto, 2022 ONCA 43

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment

Scott v. Forjani, 2022 ONCA 30

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Damages, Deposits, Forfeiture, Evidence, Expert Evidence, Weight, Adverse Inferences

Lee v. Magna International Inc., 2022 ONCA 32

Keywords: Torts, Negligence, Duty of Care, Anns/Cooper Test, Employment Law, Constructive Dismissal, Civil Procedure, Amending Pleadings, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Correia v. Canac Kitchens, 2008 ONCA 506, Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, Cerqueira v. Ontario, 2010 ONSC 3954, Bercovici v. Attorney General of Canada, 2019 ONSC 2610

Walters v. Walters, 2022 ONCA 38

Keywords: Wills and Estates, Trusts, Discretionary Trusts, Interpretation, Testator’s Intentions, Fiduciary Duties, Capital Encroachment, Trezzi v. Trezzi, 2019 ONCA 978, Ross v. Canada Trust Company, 2021 ONCA 161, Re Gulbenkian’s Settlement, (1968), [1970] A.C. 508, McPhail v. Doulton (1970), [1971] A.C. 424, Cowper-Smith v. Morgan, 2017 SCC 61, Fox v. Fox Estate (1996), 28 O.R. (3d) 496 (C.A.), leave to appeal refused, [1996] S.C.C.A. No. 241, Gisborne v. Gisborne (1877), 2 App. Cas. 300 (U.K.H.L.), Hunter Estate v. Holton (1992), 7 O.R. (3d) 372 (Gen. Div.), Edell v. Sitzer (2001), 55 O.R. (3d) 198 (S.C.), aff’d 9 E.T.R. (3d) 1 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 372, Banton v. Banton, (1998) 164 D.L.R. (4th) 176 (Ont. Gen. Div.), Ghag v. Ghag, 2021 BCCA 106, Barnes v. Barnes (2008), 42 E.T.R. (3d) 16 (Ont. S.C.), Re Butler, [1951] O.W.N. 670 (Ont. H.C.), Re Luke, [1939] O.W.N. 25 (Ont. H.C.), Hinton v. Canada Permanent Trust Co. (1979), 5 E.T.R. 117 (Ont. H.C.), aff’d [1980] O.J. No. 1720 (Ont. C.A.), O’Donnell (Litigation Guardian of) v. Canada Trust Co., [1996] O.J. No. 3461 (Gen. Div.), Re McVean (1985), 51 O.R. (2d) 685 (H.C.), Re Passmore Estate (1965), 49 D.L.R. (2d) 176 (Alta. App. Div.), Paterson (Attorney of) v. Paterson Estate (1996), 109 Man. R. (2d) 294 (Q.B.), D.W.M Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012), Corina S. Weigl, “Keeping Fiduciaries Fit: The Exercise of Discretion,” Canadian Bar Association of Ontario, Institute of Continuing Legal Education, The Outer Limits: Exploring Issues and Opportunities in Agency, Attorney and Trusteeship, January 28, 1999, Cullity J, Judicial Control of Trustees’ Discretions (1975), 25 U.T.L.J. 99, Carmen S. Thériault, Widdifield on Executors and Trustees, loose-leaf (2021-Rel. 11), 6th ed. (Toronto: Carswell, 2021)

Short Civil Decisions

Theall Group LLP v. Bauer, 2022 ONCA 22

Keywords: Contracts, Solicitor and Client, Civil Procedure, Charging Orders, Certificates of Pending Litigation, Costs, Solicitors Act, R.S.O. 1990, c. S.15, ss. 34(1)

Naccarato v. Naccarato, 2022 ONCA 35

Keywords: Contracts, Solicitor and Client, Civil Procedure, Charging Orders, Security for Costs, Solicitors Act, R.S.O. 1990, c. S.15, ss. 34(1), Family Law Rules, Rule 25(19)(c)

Psaila v. Kapsalis, 2022 ONCA 37

Keywords: Civil Procedure, Summary Judgment, Notice, Expert Opinions, Costs, City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, section 42(6)

Extreme Venture Partners Fund I LP v. Varma, 2022 ONCA 57

Keywords: Civil Procedure, Costs, Variation, Offers to Settle, Rules of Civil Procedure, Rule 49

CIVIL DECISIONS

NDrive, Navigation Systems S.A. v. Zhou, 2022 ONCA 39

[Lauwers J.A. (Motion Judge)]

Counsel:

R. Gilliland and C. Groper, for the moving parties

M. Bacal, for the responding parties S. Z., Aqua Latitude International Limited, Aguazion, Inc.

facts:

The moving parties moved for security for costs under r. 61.06(1) of the Rules of Civil Procedure.

The moving parties started an arbitration in December 2015, and received an arbitral award of US$ 1,068,085.43. After disbursing approximately $ 200,000 to others, the responding party/appellant, S. Z. collected the balance of the arbitral award and paid it into the account of Aguazion Inc., which he controlled. The moving parties were granted a world-wide Mareva injunction in May 2020, on the basis that “the materials disclose a strong prima facie case of civil fraud.”

The motion judge granted partial summary judgment against the responding parties/appellants, dismissed their counterclaim and awarded US$ 881,170.84 in Canadian dollars, together with pre- and post-judgment interest and punitive damages in the amount of $ 200,000. In her costs endorsement, she awarded full indemnity costs in the amount of $ 230,000. The responding parties/appellants appealed, and the moving parties brought this motion for security for costs in the amount of $ 230,000.00 for the costs below, plus an additional $ 70,000.00 for the costs of the appeal.

issues:

(1) Should the order for security of costs be granted?

holding:

Motion granted.

reasoning:

(1) Yes

The security for costs order was granted in the terms requested, for a total amount of $ 300,000. While best practice would be to provide a draft bill of costs to justify the amount of appeal costs claimed, the Court was able to assess $ 70,000 as reasonable.

The ordering of security for costs is discretionary, following a two-step reasoning process. First, a motion judge has discretion under Rule 61.06(1) to make an order for security for costs of the proceeding below and the appeal where it appears that:

a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
b) an order for security for costs could be made against the appellant under Rule 56.01; or
c) for other good reason, security for costs should be ordered.

The second question is whether it would be just to order security, considering the circumstances and the interests of justice.

The moving parties met the “other good reason” ground for making an order for security for costs in this case. The motion judge’s findings of fraud were a significant “other reason” to justify an order for security of costs, particularly in conjunction with a finding that the responding parties/appellants had taken steps to put their assets out of the reach of creditors. The scope of the appeal was broad and complex and will require costly preparation. It was further noted that the responding party/appellants do not appear to have sufficient assets in Ontario to pay the costs of the appeal.

Wharton Holdings Limited v. Balletto, 2022 ONCA 43

[Pardu, Roberts and Miller JJ.A.]

Counsel:

N. N. B., acting in person

J. S.G. Macdonald, for the respondent

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment

facts:

The appellant appeals from the summary judgment in the amount of $ 102,862.95, plus interest, granted to the respondent in respect of debt owning under a promissory note. The parties entered into a written agreement and the appellant gave the promissory note in consideration for the business assets of the respondent’s commercial ink product manufacturing business. He made payments to the respondent over the course of two years. No payments were made after November 30, 2018. The respondent made demands for payment and then started an action in December 2019. The appellant contended that the promissory note was unenforceable because of the respondent’s alleged oral representations amounting to necessary and unfulfilled conditions for the payment of the promissory note.

issues:

(1) Did the motion judge err in failing to grant the appellant an adjournment to examine the respondent to obtain evidence supporting the appellant’s allegations?

(2) Did the motion judge err in failing to find that the promissory note was unenforceable because the alleged conditions were not fulfilled?

(3) Did the motion judge err in finding that the appellant failed to make payments under the promissory note, when the parties had agreed that he could stop making payments until they resolved their dispute concerning the alleged unfulfilled conditions?

(4) Did the motion judge err in finding that the appellant had no evidence to support his allegations in light of the evidence filed on the motion?

holding:

Appeal dismissed.

reasoning:

(1) No

The motion judge’s refusal of the appellant’s adjournment request was reasonable in the circumstances. He gave detailed reasons for denying it. There was no error found in the motion judge’s determination on this issue, thus his decision was owed deference.

(2) No

The motion judge carefully reviewed the appellant’s allegations and his supporting affidavit that the respondent’s oral representations varied the express terms of the promissory note and resulted in conditions precedent to its enforceability. The motion judge characterized and rejected the appellant’s evidence as “bald allegations” that lacked credibility and reliability. The motion judge concluded that the appellant was effectively asking that the court “re-write the terms of the Agreement to impose new and different terms”, which he declined to do. There was no basis to interfere with the motion judge’s analysis.

(3) No

The appellant did not establish an alleged standstill agreement was made pending resolution of the parties’ dispute. Irrespective, there was no agreement resolving the dispute and altering the amount due under the promissory note. As a result, the respondent was entitled to insist on full payment of the amount owing.

(4) No

The appellant repeated the same arguments that the motion judge rejected. The motion judge’s findings were open to him on the record and are owed deference on appeal. There was no basis to intervene.

Scott v. Forjani, 2022 ONCA 30

[Doherty, Tulloch and Thorburn JJ.A.]

Counsel:

H. Niroomand, for the appellant

G. Weedon, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Damages, Deposits, Forfeiture, Evidence, Expert Evidence, Weight, Adverse Inferences

facts:

The appellant agreed to purchase the respondents’ property for $ 1,450,000. Under the Terms of the Agreement of Purchase and Sale (“APS”), the transaction would close some 13 months later. The appellant refused to close and alleged that the respondents had failed to disclose certain latent defects and had failed to maintain the property. The respondents relisted the property and sold it for $ 1,120,000. The respondents sued the appellant for failing to close the transaction. They sought forfeiture of the $ 72,500 deposit, damages reflecting the difference between what the appellant had agreed to pay and the price the respondents were eventually able to obtain for the property, and certain legal expenses. The respondents first moved for the forfeiture of the appellant’s deposit, claiming the appellant had acted in bad faith when she did not close the transaction. Leiper J. ordered the deposit forfeited. After Leiper J. determined the appellant had breached the APS, the respondents moved for summary judgment on the issue of damages. The motion judge’s determination of the sole issue before him turned on whether the price at which the respondents sold the property reflected the true value at the time of that sale. The appellant tendered affidavits from three “experts” who provided opinions indicating the value of the property was well above the price at which the respondents had eventually sold the property. The appellant chose not to lead any evidence about the qualifications or experience of those “experts”

issues:

(1) Did the motion judge err in law by ruling the affidavits of the “experts” inadmissible?

(2) Did the motion judge err in drawing an adverse inference from the appellant’s refusal to allow one of her witnesses to answer questions about his expertise and qualifications?

holding:

Appeal dismissed.

reasoning:

(1) No.

The motion judge did not rule the affidavits were inadmissible, but rather concluded that he could give no weight to the opinions without any evidence setting out the “experts” experience and training. It was plain and obvious that the “expert’s” experience and training would be relevant to the weight to be assigned to the opinion.

(2) No.

The most obvious explanation for the refusal to answer the question was that the answer would not help the appellant’s claim that the property was sold under value. The logic of the adverse inference drawn from the appellant’s refusal to allow the witness to answer those questions was not dependent on whether the appellant was legally trained.

Lee v. Magna International Inc., 2022 ONCA 32

[Rouleau, van Rensburg and Roberts JJ.A.]

Counsel:

D. L., acting in person

L. J. F., for the respondents

facts:

The appellant appealed an order refusing him leave to amend the latest version of the statement of claim in an action he commenced in February 2019. The defendants included the appellant’s former employer, Venest Industries Inc. (“Venest”). Venest was a division of another named defendant, Cosma International Inc. (“Cosma”), which in turn is a subsidiary of the defendant Magna International Inc. (“Magna”). The individual defendants were current or former employees of the corporate defendants who were employed at Venest and Cosma during the appellant’s employment.

The appellant’s proposed amendments sought to add a claim of gross negligence against “all directors and officers of Magna” and against its CEO, D.W. The appellant, relying on s. 32 of the Occupational Health and Safety Act (“OHSA”) claimed that they had a duty, as directors and officers of a corporation to take all reasonable care to ensure that the corporation complied with the provisions of the OHSA and regulations and orders thereunder. He proposed to plead that the directors and officers failed to ensure that the corporate defendants complied with the Ministry of Labour Order against Magna and failed to ensure that at the conclusion of the investigation a written summary of the findings was provided to him.

The motion judge dismissed the motion to amend on the basis that the appellant did not name the proposed new defendants, and that in any event the appellant was seeking yet again to add a claim for negligent investigation, after his earlier motions to assert the same claim against G. L., and others had been dismissed. There was also a failure to plead material facts sufficient to support a claim for personal liability against the unnamed officers and directors. The motion judge concluded that it was not in the interests of justice to afford the appellant a further opportunity to amend his pleading.

issues:

(1) Whether the motion judge erred in law by failing to allow the appellant to amend his claim to include a claim of “gross negligence” against every officer and director of Magna?

holding:

Appeal dismissed.

reasoning:

(1) No.

The motion judge did not engage in an Anns/Cooper analysis because it was unnecessary for him to do so. In essence, the appellant’s latest attempt to amend his pleadings confronted the same obstacles he faced in the motions before Master Mills and Leiper J. He was proposing yet again to assert a claim for a negligent workplace investigation, although he expressed this as a breach of a duty of care he was owed by all of the individual officers and directors of Magna, by reason of the OHSA provisions. After conducting an Anns/Cooper analysis, the court concluded in Correia, that there was no liability in tort for employers conducting internal investigations of their employees’ conduct. As the motion judge observed, “[b]y extension, there cannot be a duty of care to protect against the commission of a tort that does not exist at law”. Nor was there tort liability for breach of a statutory duty: Canada v. Saskatchewan Wheat Pool. The fact that the appellant characterized his claim as one of “gross negligence” did not change the character of his pleading, when a claim in negligence was not available: Cerqueira v. Ontario.

While this was sufficient to dispose of the appeal, the Court also agreed with the motion judge’s refusal to permit a claim to be asserted against proposed unnamed defendants using pseudonyms. Apart from the failure to disclose a cause of action, the allegations against the proposed unnamed defendants were so broad and general and lacking in material facts, including allegations that would attract personal liability, that, even if the “litigating finger” test were to be applied (that the defendants, on reading the pleading, would know what allegations were being made against them), it could not be met.

Walters v. Walters, 2022 ONCA 38

[Strathy C.J.O., Pepall and Pardu JJ.A.]

Counsel:

C. Wall, for the appellants

M. F. Sirdevan, for the respondent

facts:

This appeal involved the interpretation of a will that provided trustees with the right to encroach on capital as they in their absolute discretion considered necessary or advisable for the benefit of the income beneficiary. This was to ensure his comfort and well-being. The main issue to address was whether the trustees improperly relied on extraneous factors in the exercise of their discretion.

The appellants, S.W. and J.B., are the children of F.W. and her husband, the respondent, G.W. F.W. died on May 8, 2016. She left a will naming S.W., J.B. and her third child, Gr. W., as Estate Trustees. Gr.W. was removed as a co-Trustee on consent by court order dated February 19, 2019 and, though aligned with G.W., is not a party to the litigation.

F.W.’s will named G.W. as an income beneficiary and left the residue of the Estate to the three children. However, the will also provided the Trustees with an absolute discretion to encroach on capital in a manner that would ensure the “comfort and well-being” of G.W.

G.W. asked the appellants, who were the remaining Trustees, to encroach on capital to pay his living expenses. The appellants mistrusted their father and the proprietor of the residence in which he resided and were not prepared to pay him the sum he requested. G.W. then applied for an order that the Trustees provide him with financial assistance.

The application judge granted G.W.’s request and ordered the appellant Trustees to pay their respondent father $ 3,875 per month commencing May 1, 2021 and arrears of $ 98,750 for the period August 1, 2018 to April 30, 2021. She also ordered that costs of $ 26,000 be paid out of the Estate to the respondent. The appellants appealed from that judgment.

issues:

(1) Whether the application judge erred in substituting her discretion for that of the appellant Trustees with respect to the encroachment on capital?

(2) Whether the application judge erred in concluding that the appellant Trustees relied on extraneous factors, namely their dislike of their father and their distrust of him and Ms. W.?

(3) Whether the application judge erred in ordering payment of arrears?

holding:

Appeal allowed, in part.

reasoning:

(1) No.

Although the Court reached the same conclusion as the application judge on the issue of the monthly encroachment, the Court did so for different reasons.

Having examined the jurisprudence and the commentary, the Court extracted certain threads. The starting point is that effect must be given to the testator’s intentions as ascertained from the language of the will and surrounding circumstances. Trustees must therefore carefully examine the wording of the will or trust instrument. “The duty to consider all relevant matters has as its obvious corollary, a duty to make all necessary inquiries so that the trustee is adequately equipped to make a decision”: Cullity, Judicial Control of Trustees’ Discretions. Absent other direction in the will, the Court failed to see how a trustee can satisfy itself that payment of capital to the income beneficiary is necessary or advisable without considering the beneficiary’s financial circumstances. The absence of words mandating consideration of an income beneficiary’s financial circumstances is as unrevealing of intention as the absence of words that an income beneficiary’s financial circumstances be disregarded. Ideally, testators will state in wills that contain a discretionary trust with a power of encroachment whether the income beneficiary’s resources are to be considered. In the absence of such a direction however, reliance should not be placed on propositions stated to be of general application. Rather, in each case, resort must be made to the language of the will and the surrounding circumstances. The proper approach is case specific.

This did not mean that in the absence of direction in the will or trust instrument that a means test was required of the beneficiary. Rather, it simply meant that trustees may make some inquiries to satisfy themselves of their mandate and ought not to be criticized for doing so.

This analysis undercut the reliance placed by the application judge on the second principle extracted from Barnes – that is, in a trust established for the support, care and comfort of a beneficiary, the omission of any mention of the income of the beneficiary in the trust document means that a trustee may not demand that the beneficiary’s own income be called on first and a means test is inappropriate. There was nothing in F.W.’s will that addressed specifically the issue of consideration being given to G.W.’s financial circumstances. On the other hand, it was difficult to see how his resources would not necessarily inform both his “comfort and well-being” and the Trustees’ ability to consider what was “necessary” or “advisable”. Although admittedly dated, G.W. did declare in excess of $ 1 million in assets in 2011, yet claimed impecuniosity at the time he initiated his application without fully explaining the disbursement of those assets. The encroachment would not be regulated by G.W.’s means but his financial circumstances were a proper factor for the Trustees to consider in their discretion under the will.

The third proposition drawn from Barnes and relied upon by the application judge was that in a trust established for the care, comfort and support of a beneficiary, any doubt as to the desirability of encroaching on capital should be resolved in favour of encroaching. Barnes relied on Hinton v. Canada Permanent Trust Co. as support for that proposition. However, in that case, the will contained an express provision that it was the testator’s intention that any doubt as to the desirability of a given encroachment be resolved in favour of making such an encroachment. Thus, the proposition extracted in Barnes and relied upon by the application judge in this case was explicitly written into the trust instrument in the Hinton case. However, as in O’Donnell, F.W. advised her Trustees that her husband’s comfort and welfare were her first consideration, and as such, the application judge properly considered that any doubt would favour encroachment.

In summary, although reliance on the second proposition cited in Barnes was ill-placed and reliance on the third proposition more properly was an exercise in construing the will rather than a free-standing principle, the application judge’s reliance on the first proposition described in Barnes – that the courts may interfere with the exercise of a trustee’s discretion if the trustee’s decision is influenced by extraneous matters – was well founded. Her determination of that issue served to defeat any shortcoming in the remainder of her analysis.

(2) No.

The Court viewed that it was an error for the application judge to characterize the distrust factor as extraneous or, to use the more modern formulation, as irrelevant to the exercise of the Trustees’ discretion.

The Trustees were exercising their discretion in the face of: the fact that Ms. W. “seemingly encouraged [G.W.] to extract as much money as possible from the estate”; the close to 25% increase in cost over one year attributable to transportation, in circumstances where G.W. also incurred extensive independent transportation costs; the absence of any evidence that Ms. W. was a legitimate service provider; Ms. W.’s refusal to meet with them; and the inconsistent evidence on G.W.’s financial circumstances and the difficulties encountered with obtaining financial disclosure, difficulties shared by G.W.’s own lawyer. The Trustees needed to know whether the capital encroachment would go towards the proper purpose of G.W.’s comfort and well-being or would go towards the improper purpose of lining the proprietor’s pockets. These factors legitimately raised a spectre of distrust; it was a palpable and overriding error to characterize the distrust as an irrelevant or extraneous matter.

This brought the Court to the second extraneous factor found by the application judge: the Trustees’ dislike of G.W. Their dislike of G.W. had nothing to do with his comfort and well-being, and the application judge properly identified this factor as extraneous in nature. The Trustees’ exercise of discretionary power for this purpose was an abuse of discretion similar to that contemplated by Cullity J. in Banton and legitimately attracted judicial intervention.

While it would have been desirable to elaborate, a reading of the entire record supported the inferences drawn by the application judge that the Trustees’ discretion was animated by their dislike of G.W. J.B.’s affidavit exemplified her sentiments.

The only evidence before the application judge was that G.W. had basically run out of money and he needed the encroachment on capital to cover the costs of his residence. The application judge made a finding of fact that the amount that G.W. was being charged by Ms. W. was consistent with the cost of similar facilities in the area. This finding was not seriously challenged on appeal and in any event, was a finding that was open to the application judge to make. In the face of this context and F.W.’s intentions, no reasonable trustees would refuse to exercise their discretion in favour of a monthly encroachment that reflected the $ 3,875 monthly cost of G.W.’s residence at Rural Roots Retirement. In the circumstances, it was reasonable for the application judge to conclude that the Trustees’ discretion was improperly influenced by an extraneous factor, namely, their dislike of their father.

The application judge’s intervention was fully justified.

(3) Yes.

The application judge based her arrears order on the date G.W. stated he moved into Ms. W.’s residence, August 1, 2018. As the Court explained, it was legitimate for the Trustees to conduct some investigation into G.W.’s circumstances and proposed living accommodation, which was concluded by October 1, 2019. October 1, 2019, rather than August 1, 2018, was therefore a reasonable date from which to calculate arrears.

SHORT CIVIL DECISIONS

Theall Group LLP v. Bauer, 2022 ONCA 22

[Huscroft, Trotter and Coroza JJ.A.]

Counsel:

B. Goldberg, for the appellant

C. Francis, for the respondent

Keywords: Contracts, Solicitor and Client, Civil Procedure, Charging Orders, Certificates of Pending Litigation, Costs, Solicitors Act, R.S.O. 1990, c. S.15, ss. 34(1)

Naccarato v. Naccarato, 2022 ONCA 35

[Huscroft, Trotter and Coroza JJ.A.]

Counsel:

M. Kersten, for the appellant Sutherland Law

R. Avery Zeidman, for the respondent D.N.

A. Perruccio, for the respondent K.F.N.

Keywords: Contracts, Solicitor and Client, Civil Procedure, Charging Orders, Security for Costs, Solicitors Act, R.S.O. 1990, c. S.15, ss. 34(1), Family Law Rules, Rule 25(19)(c)

Psaila v. Kapsalis, 2022 ONCA 37

[Huscroft, Trotter and Coroza JJ.A.]

Counsel:

J. Campisi Jr., A. Ismail and P. Murray, for the appellant

N.D. Kolos and E.C. Vila, for the respondent City of Toronto

Keywords: Civil Procedure, Summary Judgment, Notice, Expert Opinions, Costs, City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, section 42(6)

Extreme Venture Partners Fund I LP v. Varma, 2022 ONCA 57

[Hourigan, Huscroft and Coroza JJ.A]

Counsel:

J. Lisus, C. Smith, N. Campion, V. Calina and J.C. Mastrangelo, for the appellants A.V., S.M., V. Holdco Inc. and M. Holdco Inc.

A. Brodkin, D.E. Lederman and D. Cappe, for the appellants C.P. and El Investco 1 Inc.

W.J. Kim, M.B. McPhee, A. Gyamfi and R. Sider, for the respondents

Keywords: Civil Procedure, Costs, Variation, Offers to Settle, Rules of Civil Procedure, Rule 49

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.

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COURT OF APPEAL SUMMARIES (JANUARY 17-21, 2022)

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

NDrive, Navigation Systems S.A. v. Zhou, 2022 ONCA 39

Wharton Holdings Limited v. Balletto, 2022 ONCA 43

Scott v. Forjani, 2022 ONCA 30

Lee v. Magna International Inc., 2022 ONCA 32

Walters v. Walters, 2022 ONCA 38

Theall Group LLP v. Bauer, 2022 ONCA 22

Naccarato v. Naccarato, 2022 ONCA 35

Psaila v. Kapsalis, 2022 ONCA 37

Extreme Venture Partners Fund I LP v. Varma, 2022 ONCA 57

CIVIL DECISIONS

NDrive, Navigation Systems S.A. v. Zhou, 2022 ONCA 39

Counsel:

facts:

issues:

holding:

reasoning:

Wharton Holdings Limited v. Balletto, 2022 ONCA 43

Counsel:

facts:

issues:

holding:

reasoning:

Scott v. Forjani, 2022 ONCA 30

Counsel:

facts:

issues:

holding:

reasoning:

Lee v. Magna International Inc., 2022 ONCA 32

Counsel:

facts:

issues:

holding:

reasoning:

Walters v. Walters, 2022 ONCA 38

Counsel:

facts:

issues:

holding:

reasoning:

SHORT CIVIL DECISIONS

Theall Group LLP v. Bauer, 2022 ONCA 22

Counsel:

Naccarato v. Naccarato, 2022 ONCA 35

Counsel:

Psaila v. Kapsalis, 2022 ONCA 37

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Extreme Venture Partners Fund I LP v. Varma, 2022 ONCA 57

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John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email