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?

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , , , , , 0 Comments

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).

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Jonathon Kappy.

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01 May

Hull on Estates #545 – The availability of summary judgments

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , 0 Comments

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.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Ian M. Hull.

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20 Mar

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

76admin Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , , , 0 Comments

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.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Jonathon Kappy.

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06 Mar

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

76admin Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes, Uncategorized Tags: , , , , , , , 0 Comments

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.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog

Click here for more information on Paul Trudelle.

Click here for more information on Kira Domratchev.

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