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Court Of Appeal Summaries (August 2-6) – Litigation, Mediation & Arbitration

Good afternoon.

Please find below our summaries of the civil decisions of the
Court of Appeal for the week of August 2, 2021.

Continue Reading

In Canadian Federation of Students v. Ontario (Colleges and
Universities),
the Court of Appeal held that the Minister of
Training, Colleges and Universities could not force colleges and
universities to make student association fees optional through its
executive authority and prerogative spending power. The Court held
that the Ontario Colleges of Applied Art and Technology
Act
and the many University Acts prevented such a mandate
without first amending the governing legislation.

Other topics covered included family law (relocation and
variation of support), assault and other tort claims by children
against their father, and extensions of time to appeal.

Have a nice weekend.


Table of Contents

Civil Decisions

Canadian Federation of Students v.
Ontario (Colleges and Universities)
, 2021
ONCA 553

Keywords: Constitutional law, Executive
Authority, Prerogative Power, Spending, Statutory Interpretation
Justiciability, Education, Colleges and Universities, Ancillary
Fees, Student Associations, Funding, Ontario Colleges of
Applied Arts and Technology Act, S.O. 2002, c. 8, Sched. F,

s.4, s.5, s.7, s.8, Algoma University Act, 2008, s.5, s.8,
s.15, s.17(1), s.18, s.24, s.32, The University of Toronto
Act
, S.O. 1906, c. 55, niversity of Ottawa Act, 1965,
s.8, Longuee?pe?e v. University of Waterloo, 2020 ONCA
830, Agraira v. Canada (Minister of Public Safety and Emergency
Preparedness)
, 2013 SCC 36, Housen v. Nikolaisen,
2002 SCC 33, Apotex Inc. v. Canada (Health), 2018 FCA 147,
Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th)
228 (Ont. C.A.), Canada (Prime Minister) v. Khadr, 2010
SCC 3, Reference re Pan-Canadian Securities Regulation,
2018 SCC 48, Canada (Minister of Citizenship and Immigration)
v. Vavilov
, 2019 SCC 65, R. v. Walsh, 2021 ONCA 43,
R. v. Mohan, [1994] 2 S.C.R. 9, Ross River Dena
Council Band v. Canada
, 2002 SCC 54, Attorney General v.
De Keyser’s Royal Hotel,
[1920] A.C. 509 (H.L.), Ball
v. McAulay
, 2020 ONCA 481, Alberta Government Telephones
v. Canada (Canadian Radio-television and Telecommunications
Commission)
, [1989] 2 S.C.R. 225, Newman and Regimbald,
The Law of the Canadian Constitution, 2nd ed. (Toronto:
LexisNexis, 2017), Hogg, Constitutional Law of Canada,
loose-leaf (2009-Rel. 1), Dicey, Introduction to the Study of
the Law of the Constitution
, 8th ed. (London: Macmillan and
Co., 1915)

D.C. v. T.B.,
2021 ONCA 562

Keywords: Family Law, Custody and Access, Civil
Procedure, Appeals, Extension of Time, Best Interests of the Child,
Stay Pending Appeal, Rules of Civil Procedure, Rule 3.02,
Denomme v. McArthur, 2013 ONCA 694, K.K. v. M.M.,
2021 ONCA 407, Lefebvre v. Lefebvre, 167 O.A.C. 85 (C.A.),
Bors v. Bors, 2021 ONCA 513

O’Brien v.
Chuluunbaatar
, 2021 ONCA
555

Keywords: Family Law, Custody and Access,
Relocation, Children’s Law Reform Act, R.S.O. 1990, c.
C.12, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Van
de Perre v. Edwards,
2001 SCC 60, Reeves v. Brand,
2018 ONCA 263, Gordon v. Goertz, [1996] 2 S.C.R. 27

Dreesen v.
Dreesen
, 2021 ONCA 557

Keywords: Family Law, Child Support, Spousal
Support, Variation, Material Change in Circumstances, Federal
Child Support Guidelines
, S.O.R./97-175 (“CSG”),
Colucci v. Colucci, 2021 SCC 24, Mason v. Mason,
2016 ONCA 725, Bravo v. Pohl (2008), 62 R.F.L. (6th) 209
(Ont. S.C.), Koester v. Koester (2003), 50 R.F.L. (5th) 78
(Ont. S.C.)

Calin v. Calin,
2021 ONCA 558

Keywords: Torts, Negligence, Assault, Battery,
Intentional Infliction of Mental Distress, Wrongful Imprisonment,
Breach of Fiduciary Duty, Causation, Damages, F.H. v.
McDougall
, 2008 SCC 53, Salomon v. Matte-Thompson,
2019 SCC 14, Housen v. Nikolaisen, 2002 SCC 33, R. v.
G.F
., 2021 SCC 20, R. v. R.E.M., 2008 SCC 51, R.
v. A.M
., 2014 ONCA 769, R. v. Gagnon, 2006 SCC 17,
R. v. Slatter, 2019 ONCA 807, R. v. Sanichar,
2012 ONCA 117, R. v. N.K., 2021 ONCA 13, R. v.
A.K
., 2018 ONCA 567, Benhaim v. St-Germain, 2016 SCC 48,
Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545,
Armstrong v. Moore, 2020 ONCA 49

Kudrocova v. Kronberger
, 2021 ONCA 563

Keywords: Civil Procedure, Appeals, Perfection,
Dismissal for Delay, Setting Aside, Family Law, Custody and Access,
Paulsson v. University of Illinois, 2010 ONCA 21,
Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, Van
de Perre v. Edwards
, [2001] 2 S.C.R. 1014

Short Civil Decisions

Boudreau v. Jakobsen , 2021 ONCA
556

Keywords: Costs


CIVIL DECISIONS

Canadian Federation of Students
v. Ontario (Colleges and Universities)
, 2021 ONCA 553

[Fairburn A.C.J.O., van Rensburg and Huscroft JJ.A]

Counsel:

S.S. Mathai, A. Sinnadurai, and C. Bourrier, for the
Appellant

M. Wrgiht, L. Century, and G. Philipupillai, for the
Respondents

E. Krajewska, T. Markin, and M. Chowdhury, for the Intervener
University of Toronto Graduate Students’ Union

P. Tunley, for the Intervener Canadian Journalists for Free
Expression, the Ryerson Centre for Free Expression, the Canadian
Association of Journalists, PEN Canada, World Press Freedom Canada,
and the Canadian Association of University Teachers

D. Kastner and V. Vaitheeswaran, for the Intervener the Association
for Canadian Clinical Legal Education

R.A. Centa and L. Pearce, for the Intervener University of Ottawa,
Queen’s University at Kingston, Governing Council of the
University of Toronto, University of Waterloo, and University of
Western Ontario

P. Hrick and D. Rakic, for the Intervener Start Proud and Guelph
Queer Equality

Keywords: Constitutional law, Executive
Authority, Prerogative Power, Spending, Statutory Interpretation
Justiciability, Education, Colleges and Universities, Ancillary
Fees, Student Associations, Funding, Ontario Colleges of
Applied Arts and Technology Act, S.O. 2002, c. 8, Sched. F,

s.4, s.5, s.7, s.8, Algoma University Act, 2008, s.5, s.8,
s.15, s.17(1), s.18, s.24, s.32, The University of Toronto
Act
, S.O. 1906, c. 55, niversity of Ottawa Act, 1965,
s.8, Longuee?pe?e v. University of Waterloo, 2020 ONCA
830, Agraira v. Canada (Minister of Public Safety and Emergency
Preparedness)
, 2013 SCC 36, Housen v. Nikolaisen,
2002 SCC 33, Apotex Inc. v. Canada (Health), 2018 FCA 147,
Black v. Canada (Prime Minister) (2001), 199 D.L.R. (4th)
228 (Ont. C.A.), Canada (Prime Minister) v. Khadr, 2010
SCC 3, Reference re Pan-Canadian Securities Regulation,
2018 SCC 48, Canada (Minister of Citizenship and Immigration)
v. Vavilov
, 2019 SCC 65, R. v. Walsh, 2021 ONCA 43,
R. v. Mohan, [1994] 2 S.C.R. 9, Ross River Dena
Council Band v. Canada
, 2002 SCC 54, Attorney General v.
De Keyser’s Royal Hotel,
[1920] A.C. 509 (H.L.), Ball
v. McAulay
, 2020 ONCA 481, Alberta Government Telephones
v. Canada (Canadian Radio-television and Telecommunications
Commission)
, [1989] 2 S.C.R. 225, Newman and Regimbald,
The Law of the Canadian Constitution, 2nd ed. (Toronto:
LexisNexis, 2017), Hogg, Constitutional Law of Canada,
loose-leaf (2009-Rel. 1), Dicey, Introduction to the Study of
the Law of the Constitution
, 8th ed. (London: Macmillan and
Co., 1915)

facts:

Colleges are established pursuant to the Ontario Colleges of
Applied Arts and Technology Act (“OCAATA”)
and
operate as highly controlled agents of the Crown. Universities are
established by separate University Acts and operate independently
and in accordance with its statutorily mandated governance
structure. Both colleges and universities are funded, in part,
through grants made by the Minister of Training, Colleges and
Universities.

Students at these institutions pay compulsory ancillary fees in
addition to tuition fees. Some of these ancillary fees are used to
fund student associations. The Appellant Minister, to reduce
tuition fees, established a framework governing ancillary fees. The
framework differentiated between essential and non-essential
services and made the fees for student associations optional.
Compliance was enforced via a threat to reduce college and
university operating grants.

The Respondents brought an application for judicial review to quash
the framework. They argued that it was inconsistent with the
statutory schemes regulating colleges and universities, was made
for an improper purpose and in bad faith and was made in breach of
procedural fairness.

The Divisional Court rejected the Appellant’s argument that the
application was non-justiciable. The court characterized the
framework as a decision made pursuant to the Crown’s powers to
spend, which it described as a prerogative power. However, the
court quashed the framework on the ground that it was inconsistent
with the OCAATA and the University Acts.

issues:

(1) Did the Divisional Court err in law by holding that s.7 of
the OCAATA prohibited the Minister from implementing the
framework?

(2) Did the Divisional Court err in law by holding that the
University Acts occupy the field such that they displace
or limit the exercise of the Crown’s spending power?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court found that the Crown’s “spending power” was
not a prerogative power, and instead is part of its executive
authority to spend money in support of government policies and
programs. As an exercise of executive authority, it was axiomatic
that it must yield in the event of legislative conflict. The
question was therefore whether the framework conflicted with the
OCAATA.

Section 4 of the OCAATA provides the Appellant with
extensive control over Ontario colleges. Further, s.8 of the
OCAATA allows the Appellant to exercise control through
its regulation making authority. However, s.7 states that nothing
in the Act restricts a student governing body from carrying on its
normal activities.

The Appellant argued that, since s.7 was silent on the powers of
the Minister, the Legislature did not intend to curtail its
authority. The Court held that s.7 specifically protected the
ability of student associations to carry out normal activities.
Accordingly, in line with the rules of statutory interpretation, s.
7 had to be understood as an instruction not to interpret any
provisions in the Act as authorizing interference with student
associations. If student associations received less funding, their
ability to engage in “normal activities” will be
affected.

The Court therefore found no error in the Divisional Court’s
findings. The Divisional Court had properly interpreted s. 7 as
prohibiting the Appellant from exercising statutory authority over
colleges in a manner that would interfere with the student
associations.

(2) No.

Ontario universities are not agents of the Crown like colleges. The
various University Acts all establish universities as
self-governing and autonomous institutions. There is no residual
ministerial or government authority concerning university
operations.

The Appellant argued the Divisional Court erred in applying an
“occupy the field” test to determine whether the
University Acts displaced the Crown’s power to impose
the framework. Further, the Minister argued that the court had
erred in interpreting the University Acts as complete
codes governing their relationship with the Crown, and that the
University Acts bound the Crown.

The Court held that since the framework was an exercise of
executive authority, the “occupy the field” language was
incorrect. However, this was irrelevant to the outcome.
Universities remained self-governing bodies. Student associations
form an integral part of university governance. Student association
fees are necessary to facilitate that part of university
governance. The framework interferes with university governance by
virtue of limiting universities’ authority to make decisions
regarding the role played by student associations, however they
choose to make them.

The Court found that the argument that the University Acts do not
bind the Crown was untenable. Universities are created to be
independent, self-governing bodies, and it is fanciful to suggest
that they are not. To conclude that the University Acts do not bind
the Crown would wholly frustrate their clear purpose, and this was
sufficient to establish that the legislation binds the Crown:
Alberta Government Telephones v. Canada (Canadian
Radio-television and Telecommunications Commission)
, [1989] 2
S.C.R. 225.

The Court also noted that the question, as argued by the Appellant,
was not whether tuition fees may be regulated. The question was how
they may be regulated, and whether they could be regulated through
executive action as opposed to regulation. Therefore, the
government’s ability to regulate tuition fees was not at
risk.


D.C. v. T.B., 2021 ONCA
562

[van Rensburg J.A. (Motions Judge)]

Counsel:

M.J. Stangarone and A. MacEachern, for the moving party

C. Doris and J. Luscombe, for the responding party

Keywords: Family Law, Custody and Access, Civil
Procedure, Appeals, Extension of Time, Best Interests of the Child,
Stay Pending Appeal, Rules of Civil Procedure, Rule 3.02,
Denomme v. McArthur, 2013 ONCA 694, K.K. v. M.M.,
2021 ONCA 407, Lefebvre v. Lefebvre, 167 O.A.C. 85 (C.A.),
Bors v. Bors, 2021 ONCA 513

facts:

The moving party seeks an extension of time to appeal the final
order of Conlan J. with respect to parenting of the parties’
daughter, as well to stay the final order pending appeal. The
appeal was filed three days after the deadline.

issues:

(1) Should the moving party be granted an extension of time to
appeal?

(2) Should the final order be stayed pending appeal?

holding:

Motion to extend time to appeal granted. Motion for stay pending
appeal dismissed.

reasoning:

(1) Yes.

The factors that the Court will analyze in determining whether to
extend time to appeal under Rule 3.02 of the Rules of Civil
Procedure
are: (1) whether an intention formed to appeal
within the relevant period; (2) the length of, and explanation for,
the delay; (3) prejudice to the respondent; (4) the merits of the
appeal; and (5) ultimately, whether it is in the interests of
justice to order the extension of time. In cases involving
children, the justice of the case is reflected in the best
interests of the children: Denomme v. McArthur, 2013 ONCA
694, at para. 10.

The moving party argued that the delay was a result of the
traumatic effect of the final order and retaining counsel. The
motion was then brought promptly. The Court reasoned that an
extension of time was in the interest of justice. The final order
prevented the moving party from having contact with her child. She
had substantially complied with the order and had demonstrated a
formed intention to appeal in the required timeline. Furthermore,
due to the short delay in appealing the order, the strength of the
appeal on the merits was not a compelling factor in this
case.

(2) No.

In determining whether to stay an order involving the parenting of
a child, the courts must consider: (1) whether the appeal raises a
serious question (recognizing that this is a low threshold); (2)
whether the child will suffer irreparable harm if a stay is
refused; and (3) the balance of convenience. the court must be
satisfied that it is in the child’s best interests to grant a
stay: K.K. v. M.M., 2021 ONCA 407, at para. 17. The
standard for appellate review of a custody or parenting decision is
exacting: Bors v. Bors, 2021 ONCA 513, at paras. 18-20.
Intervention is warranted only if there is a material error, a
serious misapprehension of the evidence, or an error of law.

The moving party argued that the trial judge erred in the
application of expert evidence and that the temporary separation
from her child amounted to irreparable harm. The responding party
argued that the therapeutic program that the daughter was working
through while in his care was in her best interest. The Court was
not persuaded that a stay was in the best interest of the daughter.
A stay would disrupt the benefits that the daughter was receiving
under the final order of the trial judge. Furthermore, the trial
judge’s reasons were comprehensive and revealed no obvious
error.


O’Brien v.
Chuluunbaatar
, 2021 ONCA 555

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

B.C. in person

J.O. in person

Keywords: Family Law, Custody and Access,
Relocation, Children’s Law Reform Act, R.S.O. 1990, c.
C.12, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Van
de Perre v. Edwards,
2001 SCC 60, Reeves v. Brand,
2018 ONCA 263, Gordon v. Goertz, [1996] 2 S.C.R. 27

facts:

The appellant, the mother, and the respondent, the father, have
one child. They separated when she was about nine months old. Based
on a consent order, the mother has sole custody of the child and
the father has access on alternate weekends. When the child was
five years old, the mother brought a motion seeking permission to
relocate with the child to Mongolia. The mother was born, raised,
educated, and employed in Mongolia before immigrating to Canada.
Relocation to Mongolia would improve the mother’s employment
and social situation and would permit her to give the child better
accommodations, education and family environment. The mother’s
evidence included a detailed plan of how the child’s life would
be improved in Mongolia. The father opposed the motion. After a
three-day trial in the Ontario Court of Justice, the trial judge
issued an order permitting the relocation. The father’s appeal
to the Superior Court of Justice was successful and the relocation
order was overturned. The mother appealed. Her appeal depends, in
part, on whether the recent amendments to the Children’s
Law Reform Act
, R.S.O. 1990, c. C.12 (the
CLRA“) relating to relocation
apply to a case started before the amendments came into effect on
March 1, 2021.

issues:

(1) Did the appeal judge err finding that the trial judge
improperly applied the test for relocation?

(2) Did the appeal judge err in reweighing the trial judge’s
assessment of the maximum contact principle?

(3) Did the appeal judge err in intervening because of an
allegedly deficient evidentiary basis for the move?

holding:

Appeal allowed.

reasoning:

(1) No

The trial judge made no error in her application of the test for
relocation. The Court found that the appeal judge was incorrect to
say that the trial judge focused solely on the mother’s reasons
for relocation. The trial judge’s focus throughout was squarely
on whether the relocation was in the child’s best interests. It
follows that an improvement in the mother’s social, emotional,
and financial circumstances are in the child’s best interests.
The appeal judge’s reason for concluding that the trial judge
erred in her application of the test for relocation – namely, that
the trial judge erred because she considered the mother’s
reasons for moving – disappears because of recent amendments to the
CLRA. The CLRA explicitly directs the court, when deciding whether
to authorize a relocation, to take into consideration the reasons
for the relocation. The CLRA amendments must apply to any ongoing
proceedings, given that the parallel amendments in the Divorce Act,
R.S.C., 1985, c. 3 are applied to any ongoing proceedings.
Accordingly, the Court found that the reasons for relocation are a
proper consideration and there was no error on the part of the
trial judge.

(2) No

The trial judge made no error on the law as it stood when the
motion was decided in respect of the maximum contact principle. The
trial judge was fully alive to the maximum contact principle and
its importance when assessing whether the relocation was in the
child’s best interest. The trial judge’s decision involved
weighing of competing considerations and is entitled to deference.
Rather than the trial judge having erred, it was the appeal judge
who fell into error by reweighing the competing considerations
based on his view of the weight to be afforded to the maximum
contact principle. Additionally, the maximum contact principle has
been replaced in the CLRA amendments and it highlights the
importance of a child having time with each parent while explicitly
providing that the allocation of parenting time must be consistent
with the child’s best interests. The trial judge’s reasons
demonstrate that she was alive to the importance of the child
having time with each parent so long as the allocation of parenting
time was consistent with the child’s best interests.

(3) No

The trial evidence was sufficient and the appeal judge erred by
stating that there was an “absence of a proper evidentiary
record” to support trial judge’s finding that the proposed
move to Mongolia was in the child’s best interests. The
mother’s evidence was led through her affidavits and the
detailed information provided as evidence was tested before the
trial judge through cross-examination. The trial judge was best
positioned to assess the sufficiency of the evidence. Further, she
was entitled to accept the mother’s evidence, as she did. The
language, financial, and technical barriers to having witnesses
from Mongolia testify, coupled with the mother’s limited
financial means, go a long way to explaining why direct witness
evidence from Mongolia was not before the trial court. The
uncontested evidence concerning the help that the mother’s
family had given her and the child and mother’s commitment to
the father’s relationship with the child provided the context
within which the trial judge considered the rest of the
mother’s evidence and came to the determination that relocation
was in the child’s best interests. The trial judge was in the
best position to decide whether relocation was in the child’s
best interests. She concluded that it was and exercised her
discretion accordingly. There was no basis for interference by the
appeal judge.

The Court also admitted fresh evidence provided by the mother
and made the requested change to winter access to the child by the
father.


Dreesen v. Dreesen, 2021
ONCA 557

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

Counsel:

G.S. Joseph and J. McArthur, for the appellant

V.E. Craig, for the respondent

Keywords: Family Law, Child Support, Spousal
Support, Variation, Material Change in Circumstances, Federal
Child Support Guidelines
, S.O.R./97-175 (“CSG”),
Colucci v. Colucci, 2021 SCC 24, Mason v. Mason,
2016 ONCA 725, Bravo v. Pohl (2008), 62 R.F.L. (6th) 209
(Ont. S.C.), Koester v. Koester (2003), 50 R.F.L. (5th) 78
(Ont. S.C.)

facts:

The parties were married in 2000 and separated in 2012. At the
time the parties entered into minutes of settlement, the appellant
father was employed and had also started his own business in 2012,
which then acquired another corporation in 2018. In the consent
order (the “order”), the following were provided: (i)
both parties would pay set-off table child support in accordance
with the Federal Child Support Guidelines, S.O.R./97-175
(“CSG”) based on the appellant’s income and
on the greater of the respondent mother’s actual income or
$48,000; (ii) in the event of a material change, either party can
seek a variation of the child support arrangements; (iii) the
parties would adjust child support annually based on their
respective incomes, the children’s living arrangements, and the
CSG; (iv) the appellant would pay the respondent
compensatory monthly spousal support based on the respondent’s
imputed income and the appellant’s actual income; (v) spousal
support could be changed if there was a material change; and (vi)
there would be a review of spousal support in October 2019 which
would assess the respondent’s efforts to become self
sufficient.

In July 2017, the appellant was laid off from his job and commenced
a motion to change in June 2019, which was heard in September 2020.
In the meantime, the appellant had unilaterally reduced support to
reflect what he claimed his actual income was at that point. The
appellant sought to have his child and spousal support reduced
retroactively and going forward and to terminate spousal support.
The motion judge found that the appellant had not demonstrated a
material change warranting a reduction in child support. The end of
the appellant’s employment was known prior to the date of the
order. Further, the appellant continued to have significant
self-employment income available, and his income had increased
since the date of the order. The motion judge added the pre-tax
corporate income and any unreasonably deducted expenses to the
appellant’s income for support purposes as the appellant was
the sole shareholder and director of two corporations. For future
child support, the appellant was ordered to pay set-off table child
support based on his average income from 2017-2019 and the
respondent’s income.

issues:

1. Did the motion judge err in finding that the appellant’s
change in financial circumstances did not constitute a material
change?

2. Did the motion judge err in imputing the father’s pre-tax
corporate income in calculating his income available for
support?

3. Did the motion judge err in averaging the appellant’s
income?

4. Did the motion judge err in ordering step-down spousal support
rather than terminating spousal support?

5. Did the motion judge err in determining the motion on affidavit
evidence alone?

holding:

Appeal dismissed.

reasoning:

1. No.

The onus is on the payor seeking to retroactively decrease child
support to establish a past material change in circumstances:
Colucci v. Colucci, 2021 SCC 24. Although the appellant
lost his job after the final minutes of settlement were negotiated,
it did not constitute a material misapprehension of the evidence on
the part of the motion judge, given that the appellant’s income
did not decrease. The appellant did not meet the threshold for a
retroactive decrease in support. The Court held that even if the
motion judge had erred on this issue, a court would still need to
consider the appellant’s disclosure to the respondent of his
loss of employment when determining the appropriate date of
retroactivity: Colucci. However, in these circumstances where the
appellant had been growing a business, the Court held it was
difficult to see how it could have constituted effective notice,
given the appellant’s failure to provide any disclosure of his
corporate income at that point.

2. No.

The appellant did not provide sufficient evidence to explain why
his corporations needed to retain earnings. The motion judge had no
evidence or documentation other than the limited disclosure of the
appellant to ground a broader consideration of the nature of the
corporations’ business and had no evidence of legitimate calls
on its corporate income for the purposes of that business. The
Court held that the appellant’s breakdown of the cumulative
retained earnings from 2012-2018 and his general statement about
paying staff lacked supporting evidence and did not adequately
explain why or how much corporate income from 2017 onward needed to
be retained. The Court held that the motion judge’s reasoning
on this issue was clear given the evidence.

3. No.

The Court held that the motion judge’s decision to take a
three-year average because the payor was growing a business was
fair. The appellant gave no reasons for expecting a continuing
decline in the successes of his businesses. There was no obligation
to use the most current year’s income when there was reason to
think it was anomalous.

4. No.

The Court held that the motion judge did not err in fact or law in
considering the respondent’s entitlement to spousal support, as
he considered the evidence and concluded that she had a continued
entitlement on a compensatory and needs basis. When imposing the
step-down in support, the motion judge was correct in finding that
this approach best balanced the respondent’s transition to
self-sufficiency.

5. No.

The Court held that the evidence in the affidavit material was not
contradictory nor conflicting. Considering the minimal evidence,
which the appellant submitted late in the day and only after great
effort on the part of the respondent, it was open to the motion
judge to accept the respondent’s evidence over the
appellant’s evidence. Finally, the respondent failed to provide
conflicting evidence on what the respondent had done in terms of
her efforts in seeking employment and becoming self-sufficient. It
was open to the motion judge to consider the evidence of the
respondent’s efforts and come to his own determination about
whether she had made efforts to or had become self-sufficient.


Calin v. Calin, 2021 ONCA
558

[Tulloch, Nordheimer and Jamal JJ.A.]

Counsel:

A. Baldy, for the Appellant/Respondent by way of
cross-appeal

A. C. Gibson and C. M. Gibson, for the Respondents/Appellants by
way of cross-appeal

Keywords: Torts, Negligence, Assault, Battery,
Intentional Infliction of Mental Distress, Wrongful Imprisonment,
Breach of Fiduciary Duty, Causation, Damages, F.H. v.
McDougall
, 2008 SCC 53, Salomon v. Matte-Thompson,
2019 SCC 14, Housen v. Nikolaisen, 2002 SCC 33, R. v.
G.F
., 2021 SCC 20, R. v. R.E.M., 2008 SCC 51, R.
v. A.M
., 2014 ONCA 769, R. v. Gagnon, 2006 SCC 17,
R. v. Slatter, 2019 ONCA 807, R. v. Sanichar,
2012 ONCA 117, R. v. N.K., 2021 ONCA 13, R. v.
A.K
., 2018 ONCA 567, Benhaim v. St-Germain, 2016 SCC 48,
Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545,
Armstrong v. Moore, 2020 ONCA 49

facts:

The appellant at trial was found liable for assault, battery,
negligence, and breach of fiduciary duty for physical and
emotionally abusing his twin daughters, the respondents. The
respondent’s claim for intentional infliction of mental
distress and wrongful imprisonment were dismissed. The appellant
was ordered to pay the respondents a total of $85,000 as general
damages and $20,000 as punitive damages.

The trial judge found that the appellant did not socially
isolate the respondents or control all their activities. She also
concluded, based on the expert evidence, that the respondents had
not proved the appellant’s conduct caused them to suffer from
psychiatric disorders. Finally, she concluded that the respondents
had not proved loss of income or competitive advantage because of
the appellant’s actions.

The appellant appealed the findings of liability and the amount
of damages awarded at trial. The respondents cross-appealed the
dismissal of their claim for intentional infliction of mental
distress and the amount of damages.

issues:

(1) Did the trial judge err in her factual findings or
credibility assessments?

(2) Did the trial judge err in finding that the respondents had not
proved that the appellant’s acts caused their psychiatric
conditions?

(3) Did the trial judge err in her assessment of damages?

holding:

Appeal and cross-appeal dismissed.

reasoning:

(1) No

The appellant argued the trial judge misapprehended the evidence by
failing to consider and give sufficient weight to relevant evidence
in assessing the respondents’ credibility. He asserted that the
trial judge’s failure to address inconsistencies in the
witnesses account was a reversible error. The Court disagreed and
found that inconsistencies in a witness’s evidence, even absent
corroborative evidence, does not open the door to appellate review
of a trial judge’s credibility findings.

The Court found the trial judge was alive to the inconsistencies
in the respondents’ evidence and highlighted those
inconsistencies throughout her reasons, rejecting aspects of their
evidence and accepting others, or finding the evidence
insufficiently to conclude one way or another. She did not have to
expressly reconcile every inconsistency arising from the
respondent’s evidence.

The Court also did not accept the appellant’s submissions
that the trial judge erred by failing to address concerns about the
respondent’s reliability, focusing only on their credibility.
The trial judge did not ignore credibility concerns about certain
aspects of the respondent’s evidence, which he said undermined
their evidence. A trial judge’s determination to accept a
witness’s evidence includes an implicit assessment of its
accuracy or reliability. The trial judge’s credibility concerns
did not oblige her to reject all the respondents’ evidence.

Lastly, the Court disagreed with the appellants’ assertion
that the trial judge reversed the burden of proof and applied
uneven scrutiny to the evidence. The trial judge’s reasons
confirm that she understood and applied the correct law on the
burden and standard of proof.

(2) No

The Court found no reviewable error in the trial judge’s
causation analysis. Whether an inference of causation is warranted
is within the trial judge’s discretion, to be determined with
reference to all of the evidence. The trial judge weighed the
evidence of both experts, in view of all the other evidence before
her, and preferred the evidence of the appellant’s expert. She
declined to infer causation and concluded that the respondents had
not proved that their psychiatric disorders were caused by the
appellant’s actions. The trial judge’s weighing of the
expert evidence attracted appellate deference.

(3) No

An appellate court can interfere with a damages award only if
the trial judge made an error in principle, misapprehended the
evidence, failed to consider relevant factors, considered
irrelevant factors, made an award without any evidentiary
foundation, or made a wholly erroneous assessment of damages. The
Court found neither the appellant nor the respondents met the
exacting standard for appellate intervention. The Court found the
trial judge considered and weighed all the relevant evidence and
came to her own determination of the appropriate damages and found
no basis to intervene. The Court also found no basis to reverse the
trial judge’s finding that the respondents were not entitled to
damages for loss of competitive advantage.


Kudrocava v. Kronberger,
2021 ONCA 563

[van Rensburg J.A (Motions Judge)]

Counsel:

J. Montes, agent for T. Frederick, for the moving party

M. Ruhl and K. Gordon, for the Respondent

Keywords: Civil Procedure, Appeals, Perfection,
Dismissal for Delay, Setting Aside, Family Law, Custody and Access,
Paulsson v. University of Illinois, 2010 ONCA 21,
Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, Van
de Perre v. Edwards
, [2001] 2 S.C.R. 1014

facts:

The purpose of the motion was to set aside the Registrar’s
dismissal of an appeal for failure to perfect on time, and awarding
costs to the respondent of $750. The appeal is from the orders of
J. McLeod. The orders are in relation to the parenting of the
parties’ two children.

The affidavit of the moving party stated that the delay was the
fault of their first lawyer on the appeal, who misled the moving
party to believe the appeal was proceeding. The first lawyer was
later involved in a car accident and replaced by the present
counsel.

issues:

(1) Should the Registrar’s order be set aside?

holding:

Motion allowed.

reasoning:

(1) Yes

The Court held that it was in the interest of justice to allow the
appeal to proceed. The Appellant reasonably understood that her
appeal was proceeding. The circumstances leading to the
Registrar’s order and delay in bringing the motion were not her
fault. Accordingly, she should not suffer the consequences of her
lawyer’s oversight and inattention.

Further, all the materials had been prepared, and the appeal could
be perfected without delay. Finally, the Court was not persuaded
that the delay was prejudicial to the children’s best
interests.

The Court refused to express any opinion on the merits of the
appeal.


SHORT CIVIL DECISIONS

Boudreau v. Jakobsen, 2021
ONCA 556

[Brown, Roberts and Zarnett JJ.A]

Counsel:

M.J. Stangarone and S.P. Kirby, for the appellant

J. Beaton and J. Grys, for the respondent

Keywords: Costs

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