Tag: Ontario Court of Appeal

13 Nov

Still An Expensive Dock

Paul Emile Trudelle Litigation Tags: , , 0 Comments

On May 31, 2019, I blogged on the decision of Justice Morgan in Krieser v. Garber, [2019] O.J. 1619. There, the court found that a dock constructed by the Garbers (at a cost of $150,000) was improperly positioned, and posed a nuisance to the adjoining land owners, the Kriesers. The dock was ordered to be removed. The Garbers and the dock builder were also ordered, jointly and severally, to pay $100,000 in punitive damages, and $518,000 in legal costs, and the Garbers were ordered to pay further legal costs of $80,000.

The story does not end there. The Garbers and the dock builder appealed. In a decision released on November 5, 2020, the Ontario Court of Appeal allowed the appeal in part. The Court of Appeal upheld the finding of nuisance and the order to remove the dock. However, it struck the award of punitive damages against the dock builder. Further, it reduced the cost liability of the dock builder to $108,000.

With respect to punitive damages as against the dock builder, the Court of Appeal found that it was incorrect to treat the Garbers and the dock builder “as one” for the purposes of assessing punitive damages. Where there are multiple defendants, the court must consider the misconduct of each of the defendants separately. Punitive damages were appropriate as against the Garbers, as the protracted nature of the interference and their failure to accept a reasonable offer were significant factors. However, these did not apply to the dock builder. The dock builder had no power to move the dock, or to accept the offer to settle. Accordingly, the dock builder’s acts were “not so outrageous that punitive damages were rationally required to punish, deter or denounce it.” In addition, the dock builder was already punished by a criminal court, where a fine was imposed ($4,500), and by the judge’s order that the dock be relocated at the dock builder’s expense.

In reducing the dock builder’s cost liability, the court noted that the dock builder had limited ability to settle the claim. It could not relocate the dock without the Garbers’ approval. “It is unclear to me how [the dock builder] could have brought the action to an end prior to trial without Garber’s agreement.”

Thanks for reading. Have a great weekend.

Paul Trudelle

26 May

ONCA Orders Appeal to be Heard in Writing

Kira Domratchev Litigation Tags: , , , 0 Comments

The Ontario Court of Appeal recently addressed an appeal that was scheduled to be heard on April 16, 2020 which had to be adjourned sine die due to COVID-19. The full decision of 4352238 Canada Inc v SNC-Lavalin Group Inc, 2020 ONCA 303 can be found here.

During a case management conference before Justice L.B. Roberts, which was scheduled to determine how this matter was to proceed, the Appellant objected to the appeal proceeding in writing, as suggested by the Respondents. The argument that the Appellant relied on was that the Court would not have jurisdiction to hear an appeal in writing over a party’s objection. The Court disagreed.

In making such a decision, the Court confirmed as follows:

  1. The Court Has Jurisdiction to Order a Civil Appeal Heard in Writing
  • The Appellant’s argument that the Court has limited supervisory jurisdiction over its own process, restricted to governing administrative details was rejected. The Court held that it is well settled that its implicit or ancillary jurisdiction to manage its own process is broad. Case law was cited to support the Court’s position that it has “the jurisdiction to make any procedural order to prevent an abuse of process or to ensure the just and efficient administration of justice”.
  • The Court’s implicit powers include those that are “reasonably necessary” to accomplish the Court’s mandate and perform its intended function which arise by necessary implication even where there is no express statutory or common law authority to that effect.
  • The Courts of Justice Act and the Rules of Civil Procedure do not mandate the absolute right to an oral hearing of an appeal.
  • COVID-19 has created extraordinary circumstances to which all must adapt as best as possible.
  1. This Appeal Should Proceed in Writing
  • This matter arises as a result of the dismissal of an application for narrow declaratory relief which proceeded on a paper record. It concerns the interpretation of a clause in a contract within the context of relatively straightforward facts.
  • Further submissions are not foreclosed in that, if necessary, the panel has the option to seek further oral and written submissions.
  • There is no prejudice or unfairness to the Appellant by proceeding in writing but the potential prejudice to the Respondents by any further delay and the unnecessary strain on the Court system is evident.

It has been some time now that the judicial system highlighted the importance of written advocacy. Certainly, advocates today are aware of how important it is to their client’s case, regardless of whether an oral hearing takes place, at the end of the day.

What this recent decision suggests now is that the importance of written advocacy is further elevated because during these difficult times and given the limitations imposed by COVID-19, your client’s written position may very well be their “day in Court”.

Thanks for reading!

Kira Domratchev

Find this blog interest? Please consider these other related posts:

Ontario Court of Appeal on Tarantino v. Galvano

Court of Appeal Reiterates the Test for Undue Influence

Court of Appeal Upholds Tolling of a Limitation Period due to Fraudulent Concealment

21 Aug

Hull on Estates #553 – Who is the Children’s Lawyer?

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This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the role of the Children’s Lawyer in Ontario and the recent decision of the Ontario Court of Appeal in Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner).

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01 May

Hull on Estates #545 – The availability of summary judgments

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In today’s podcast, Ian Hull and Rebecca Rauws discuss the availability of summary judgments, and their use in estate litigation, in the context of the recent Ontario Court of Appeal decision in Aird & Berlis LLP v Oravital Inc., 2018 ONCA 164.

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20 Mar

Hull on Estates #542- Harvey v Talon International Inc.: The Importance of Pleading Earnest

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In today’s podcast, Jonathon Kappy and Garrett Horrocks discuss the Ontario Court of Appeal’s decision in Harvey v Talon International Inc., a case that clarified the importance of proper pleadings in real property claims.

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06 Mar

Hull on Estates #541 – Cross claims and time-barred

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Today on Hull on Estates, Paul Trudelle and Kira Domratchev discuss the decision of the Ontario Court of Appeal in Levesque v Crampton Estate, 2017 ONCA 455, which dealt with the question of whether a crossclaim against the Estate of Father Dale Crampton was time-barred by s. 38 (3) of the Trustee Act.

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30 Aug

Hull on Estates #482 – Indemnification of Estate Trustees

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This week on Hull on Estates, David Smith and Nick Esterbauer discuss the principle of indemnification of estate trustees and the recent case of the Ontario Court of Appeal in Brown v. Rigsby, 2016 ONCA 521. (http://bit.ly/2biTez3)

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10 Mar

Is Discrimination a Restriction on Testamentary Freedom?

Lisa-Renee In the News, Litigation, Public Policy, Wills Tags: , , , , , , , 0 Comments

Last year, Spence v. BMO Trust Company, 2015 ONSC 615 was one of the most significant estate cases of 2015.  In Spence, the testator made a Will that unambiguously and unequivocally disinherited one of his daughters.  The disappointed daughter applied to the Ontario Superior Court of Justice for an order setting aside the Will on the ground that she was disinherited solely because she had a child with a white man.  A third party swore an affidavit corroborating the Applicant’s evidence that her father disinherited her for reasons that were racially discriminatory.  Justice Gilmore accordingly set aside the entire Will on the basis that it was contrary to public policy against racial discrimination.  The Respondent BMO Trust Company appealed the decision.
FamilyThis week, the Ontario Court of Appeal released its long awaited ruling in Spence v. BMO Trust Company, 2016 ONCA 196.  The Court of Appeal overturned Justice Gilmore’s decision, stating that the principle of testamentary freedom to choose one’s beneficiaries is generally immune to judicial scrutiny.

In reaching its decision, the Court of Appeal appears to have significantly restricted the scope of the public policy doctrine in estate cases.  Simply put, a Will that does not impose any conditions that, on its face, offend public policy appears to be valid regardless of the testator’s intentions.  Thus, the Court in Spence found that the testator was free to disinherit his daughter even if his intention appeared to be racially discriminatory.

It remains to be seen whether the Applicant will seek leave to appeal to the Supreme Court of Canada.

To hear an interesting discussion about the earlier decision in this case check out Hull on Estates podcast #404

16 Nov

Meaning of “Use” and Accumulation of Wealth

Ian Hull Litigation, Wills Tags: , , , , , , , , , , 0 Comments

In a recent Ontario Court of Appeal decision, Holgate v Sheehan Estate, 2015 ONCA 717, the court was asked to consider an appeal from a motion for determination of an issue under Rule 21.01(1)(a) of the Rules of Civil Procedure. The Rule 21 motion arose in the context of a trial with respect to the interpretation of the will and codicil of John Holgate, and particularly the meaning of the word “use”. The appeal also dealt with the trial judge’s jurisdiction to hear the mid-trial Rule 21 motion, but this blog will deal with the former issue.

Mr. Holgate had passed away and was survived by two sons from his first marriage (the “sons”) and his second wife, (“Mrs. Holgate”). Mr. Holgate’s will and codicil provided for a life interest in two trusts to Mrs. Holgate. Following Mrs. Holgate’s death, Mr. Holgate’s children were entitled to the remainder of the two trusts. The wording of the two trusts provided that the trust assets were to be held for “the sole use and benefit of my wife MAY HOLGATE during her lifetime”.

The sons brought an action against their father’s estate, Mrs. Holgate’s estate and Mrs. Holgate’s daughter personally, claiming that Mrs. Holgate’s life interest allowed her to use the money but not save it. They alleged that Mrs. Holgate had not only used trust assets, but had also saved money, thereby depleting the capital of the estate to their detriment and contrary to their father’s intention.

Three days into the trial, the trial judge invited counsel to bring a mid-trial motion either for determination of an issue or for directions in order to determine this critical issue with respect to the interpretation of the will and codicil, namely the meaning of the term “use”. Counsel agreed to bring a Rule 21 motion and asked whether the wording of the will and codicil precluded Mrs. Holgate from accumulating wealth from the trusts in her own name.

The trial judge concluded that:

  • nothing in the will or codicil prevented Mrs. Holgate from saving and accumulating wealth;
  • the language of the will came as close as possible to conferring an absolute gift on Mrs. Holgate; and
  • neither of the trusts included any limitations on the use of the assets by Mrs. Holgate.

On appeal by the sons, the Court of Appeal agreed with the trial judge’s interpretation, that the words and phrases used in the trusts indicate a clear intention on Mr. Holgate’s part to allow his wife unrestricted access to the funds. They also cited Dice v Dice Estate, 2012 ONCA 469, which held that “[t]he golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used”.

Thanks for reading.

Ian Hull

09 Jun

Hull on Estates #421 — Transfer of real property between parent and adult child

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Today on Hull on Estates, Paul Trudelle and Noah Weisberg discuss the recent Ontario Court of Appeal decision of Mroz v. Mroz, departing from the decision by the Superior Court of Justice, with respect to the application of Pecore in transfers of real property between a parent and their adult child.

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