COURT OF APPEAL FOR ONTARIO

CITATION: Akagi v. Synergy Group (2000) Inc., 2015 ONCA 44

DATE: 20150123

DOCKET: C57071

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

Trent Akagi

Plaintiff (Respondent)

and

Synergy
    Group (2000) Inc., Shane Davidson Smith, David Prentice,

Sandra
    Delahaye and Jean Lucien Breau

Defendants (Appellants)

Joseph M. Sereda, for the appellants

Terry Corsianos, for the respondent

Heard and released orally: January 19, 2015

On appeal from the judgment of Justice Victoria R. Chiappetta
    of the Superior Court of Justice, dated April 24, 2013.

ENDORSEMENT

[1]

The appellants appeal from a judgment made on April 24, 2013 at an
    undefended trial. At its highest the argument of the appellants is that, not
    having been properly served with notice of two proceedings leading up to the
    trial judgment, namely the orders of Roberts J. dated October 5, 2012 and
    January 18, 2013, they are entitled to have the judgment set aside on appeal.

[2]

The appellants took no steps to move to set aside the orders of Roberts
    J. on the basis that they lacked proper notice. If they had done so, they would
    have been required to establish, beyond defective service, that they had no
    actual knowledge of the proceedings. There is no evidence, even before this
    court, that the appellants lacked knowledge of the proceedings. The assertions
    made in their factum are not supported by any evidence. Indeed, the evidence is
    to the contrary. The appellants counsel, Mr. Sereda, had correspondence with
    opposing counsel on October 25, 2012, in which he confirmed that he was aware
    of the October 5, 2012 order of Roberts J. striking out the statement of
    defence. Furthermore, it is clear that the appellants, Synergy and Smith knew
    about the January 18, 2013 order of Roberts J. An agent appeared for them that
    day and his request for an adjournment was denied.

[3]

The question of the validity of service was specifically addressed by Roberts
    J. in her October 5, 2012 endorsement. She validated service of the motion by
    courier. Based on the materials before her she concluded that service by
    courier to what she noted was Synergys registered address should have come to
    the attention of the individual appellants if they were not evading service.

[4]

It is not the law, as the appellants contend, that an order made without
    notice is a nullity. The order is nonetheless an order of the court until it is
    set aside.

[5]

There is no evidence before this court to support the contention of the
    appellants that they lacked knowledge of the proceedings leading up to the
    uncontested hearing.

[6]

There appear to be no other grounds of appeal of the April 2013 judgment
    that was granted at the uncontested hearing.

[7]

The appeal is accordingly dismissed.

[8]

Costs are to the respondent in the amount of $8,475, inclusive of HST
    and disbursements.

Alexandra Hoy A.C.J.O.

K.
    van Rensburg J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Agostino v.
    Gary Bean Securities Ltd., 2015 ONCA 49

DATE: 20150126

DOCKET: C59222

Doherty, Juriansz and Huscroft JJ.A.

BETWEEN

Maurizio Agostino

Plaintiff

(Appellant)

and

Gary Bean Securities Ltd. and Gary Bean

Defendants

(Respondents)

Maurizio Agostino, acting in person

Linda M. Smits, for the respondents

Heard and released orally:  January 16, 2015

On appeal from the order of Justice A. Duncan Grace of
    the Superior Court of Justice, dated July 9, 2013.

ENDORSEMENT

[1]

This is an appeal from the decision of Grace J. dismissing the
    appellants action for wrongful dismissal and granting judgment on the
    respondents counterclaim for $63,179.66, money found owing as a result of the
    appellants expense account.

[2]

The appellant argued that the trial judge erred in permitting two
    witnesses who were not included on the pre-trial conference report to testify
    at the trial.  However, the trial judge properly exercised his discretion to
    allow the respondents to call the two witnesses to testify. The appellant chose
    to proceed with the trial rather than adjourning the matter as the trial judge was
    prepared to allow.  He cannot now claim that the trial was unfair on this
    account.

[3]

The appellant argued that the trial judge erred in concluding that the corporate
    respondent had just cause to terminate his employment. It was open to the trial
    judge to conclude that the appellant was properly terminated given his findings
    that the appellant made unauthorized trades, lied to a client, and misled the
    respondent.

[4]

There is no legal principle requiring progressive discipline in every
    case. The trial judge considered whether progressive discipline was appropriate
    in these circumstances and determined that it was not given his conclusion that
    the appellants dishonesty went to the heart of the employment relationship
    (see paras. 86-91). We agree with his conclusion.

[5]

There is no basis to suggest that the respondents acted with malice or
    bad faith toward the appellant.

[6]

Given that the appellant fails on the appeal, there is no need to
    consider his argument that the trial judge did not determine an inappropriate notice
    period in the circumstances.

[7]

The trial judges calculation of the expense monies owed by the
    appellant to the respondent are supported by the facts found by the trial judge
    and we defer to his conclusion in this regard.

[8]

For these reasons, the appeal is dismissed.

[9]

Costs in favour of the respondents are fixed in the amount of $10,000
    including disbursements and relevant taxes.

Doherty
    J.A.

R.G.
    Juriansz J.A.

G.A.
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Crawford v. Carey, 2015 ONCA 40

DATE: 20150122

DOCKET: C59392

Doherty, Rouleau & Watt JJ.A.

BETWEEN

Fred Crawford and Jose Luque

Plaintiffs (Appellants)

and

Ruth Carey, Lilian Ma, Michael Gottheil, David
    Wright, Guy Savoy, Egya Sangmuah, Her Majesty the Queen in Right of Ontario as
    represented by the Attorney General of Ontario, Ron Kashin/Goldenrod
    Investments Incorporated, Fred Dyer/Rivet Development Corporation, Jason
    Bogle/Sack QC & Bogle Law Professional Corporation,
Allan
    Socken/Socken Law Professional Corporation
, and Jeff Shabes/J.E.M.S.
    Paralegal Services Professional Corporation

Defendants (Respondent)

Fred Crawford, for the plaintiffs (appellants)

Scott A. Crocco, for the defendant (respondent) Allan
    Socken

Heard: January 5, 2015

On appeal from the order of Justice Chiappetta of the Superior
    Court of Justice, dated August 27, 2014.

APPEAL BOOK ENDORSEMENT

[1]

We would dismiss the appeal.  The statement does not plead facts as
    against the defendant capable of supporting any of the causes of action as
    pled.

[2]

Like the motion judge, we see no basis upon which to grant the
    appellants leave to amend.  The appeal is dismissed.

[3]

Costs to the respondent in the amount of $2,500, inclusive of
    disbursements and relevant taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Denomme v. McArthur, 2015 ONCA 15

DATE: 20150116

DOCKET: C57936 and C57937

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

C57936

Kelly Jane Denomme

Applicant (Respondent)

and

Corey Wilson McArthur

Respondent (Appellant)

AND BETWEEN

C57937

Paul Denomme

Plaintiff (Respondent)

and

Kelly Jane Denomme

Defendant (Respondent)

and

Corey Wilson McArthur

Defendant (Appellant)

Anna Towlson, for the appellant

Clarke L. Melville and Jacqueline E.N. Day, for the
    respondent Paul Denomme

Pamela L. Hebner and Robert K. Bickle, for the
    respondent Kelly Jane Denomme

Heard: December 18, 2014

On appeal from the judgments of Justice Dale Parayeski of
    the Superior Court of Justice, dated May 21, 2013, with reasons reported at
    2013 ONSC 2834 and 2013 ONSC 2895.

ENDORSEMENT

[1]

Corey Wilson McArthur appeals from a judgment granted in favour of Paul
    Denomme, his former wifes father, for debts owing. He also appeals from the
    judgment in the matrimonial proceeding in favour of Kelly Jane Denomme, granting
    spousal support and s. 7 extraordinary expenses for the childrens activities,
    and determining amounts due for equalization.

THE DEBT ACTION

[2]

The trial judge granted judgment to the wifes father for three loans. The
    first was a promissory note for $70,000 signed by both Ms. Denomme and Mr.
    McArthur on October 25, 2002, before marriage. $20,000 had been advanced in
    cash, and was intended to be used to pay for home improvements. The balance of
    $50,000 was advanced by cheque referenced in the promissory note, and intended
    to be applied to the purchase of their matrimonial home.

[3]

Second, the trial judge found that the wifes father also advanced
    $19,413 so that the husband could buy a new car when his vehicle became
    inoperable. The wifes father produced banking records showing he withdrew
    $19,413 from his bank account on May 6, 2003, the day the new car was acquired.
    That was the amount shown as the purchase price of the vehicle on the agreement
    of purchase and sale signed by the appellant. The appellant testified that he
    thought the money came from a joint line of credit he had with his wife, but
    there was no evidence of any such advance. Payments were made on the loan, but
    payments stopped in 2004 because of financial difficulties, according to the
    wife and her father.

[4]

Third, in mid-2005, the husband and wife installed a home theatre system
    in their home. The husband again testified that the theatre system was paid for
    by the line of credit he had with his wife. The wifes father and the wife
    testified that the wifes father advanced the funds for the theatre system as a
    loan. The record contained no documentation of this loan. Nonetheless, the
    trial judge accepted the evidence of the wife and her father, and granted
    judgment to the father for this third loan.

[5]

The wifes father also claimed repayment of a loan for $6,808.63, used
    to wire the matrimonial home for sound. However, the trial judge found that
    this amount was a gift.

[6]

The appellants position at trial and on appeal was that these
    transactions were all a sham manufactured by his wife and her father before
    marriage and after separation. He submitted that the wifes father was, at
    least in part, not advancing his own money to create the alleged loans. Rather,
    the wife had secret savings of her own, and she disguised her own funds as
    loans from her father to artificially make the appellant indebted to her father,
    and to reduce her own net family property to zero.

[7]

The husbands suspicions sprang from the discovery of a bank account
    held by the father, said to be in trust for his daughter. The trust account
    statement was dated April 30, 2002. The wifes father testified that he lent
    money to a trust account for his daughter and made investments in it, so that
    income and gains in the account could be taxed at his daughters tax rate,
    which was much lower than his own. He would pay any income tax owing. He said
    his daughter did not know of the trust arrangement. He testified that, because the
    value of the assets in the account fell substantially, the arrangement no
    longer resulted in a tax benefit for him. As a result, he collapsed the trust
    and called in the loan. The father testified that he would have been entitled to
    income from the trust account. The husband submits that this evidence was not
    credible, as the wife had faxed a copy of the trust account statement to a
    lender, in May 2002, when the parties were negotiating a mortgage for their
    home. However, the trial judge accepted the fathers evidence that the wife was
    not involved in running the trust, and that the trust was set up to secure tax
    benefits for the father. Ultimately, he accepted that the monies advanced by
    the father were his own funds, and not the wifes own savings.

[8]

Regarding the $70,000 promissory note, the husband admitted he had
    signed the promissory note referring to both the $20,000 in cash and the
    $50,000 for the house purchase. At trial, the husband ultimately accepted that
    the funds had been provided, but disputed the uses to which the funds had been
    put. The trial judge found that $50,000 was used to pay part of the balance due
    for the house at closing, and put little weight on the fact that no
    documentation had been provided to prove that the $20,000 in cash was used to
    pay a kitchen contractor. Title to the house was taken jointly by the husband
    and wife. The trial judge found no evidence that the appellant was not jointly
    and severally liable, together with the wife, for the debt created by the
    promissory note.

[9]

Similarly, the advance for the car purchase was supported by documentary
    evidence. There was no evidence that the husband and wife used their own line
    of credit to purchase the husbands vehicle. The wifes father had some
    evidence that payments were made for a time on the loan.

[10]

Finally,
    the husband could produce no evidence to suggest that the home theatre system
    was purchased using the couples line of credit. The husband did not dispute
    that $8,089.15 was paid for the system, and that it was purchased with borrowed
    money. The trial judge accepted the wifes fathers evidence and the wifes
    evidence that this was a loan by the wifes father.

[11]

This
    appeal is entirely fact-driven. The trial judge gave adequate reasons to
    explain the basis for his findings. There was evidence, both documentary and
    oral, to support those findings. The appellant has not established that the
    trial judge made any palpable and overriding error in coming to the factual
    conclusions he did, based on his assessment of the credibility of the parties,
    and the evidence led at trial. There is no basis for this court to intervene.

THE MATRIMONIAL ACTION

[12]

The
    husband and wife were married on November 16, 2002. There are three children of
    the marriage, the eldest now aged nine years, and twins who are seven years
    old. The parties separated on March 9, 2009, when the children were,
    respectively, approximately four years old and one and a half years old.

Spousal support

[13]

The
    husband earned about $82,000 as a police officer in 2011. He argued that the
    trial judge should impute $120,000 in income to the wife for 2009, and an
    annual income of $80,000 going forward. To support these arguments, the husband
    points to the amount of deposits made to a business account used by the wife.
    The wife testified that the account was not used exclusively for business
    purposes and that deposits from other sources were made to the account. She
    testified that her inexperience with bookkeeping led her to deposit
    non-business funds into the business account.

[14]

According
    to her evidence at trial, the wife juggled money between four accounts so that
    the couple could meet their financial obligations. The wife was a part time
    self-employed CPR instructor when the parties married and continued that
    occupation after marriage. Her 2010 income tax records show a gross income of
    $19,519 and a net income of $8,685.78. In 2011 her gross income was $9,626 with
    a net income of $4,149.91.

[15]

The
    trial judge accepted that the wifes income was largely as reported for tax
    purposes after separation and did not impute any income to her. While he also
    accepted that, in the past, the wife had received some cash payments that she
    did not report as income, the wifes evidence was that she no longer received
    any cash payments. The trial judge rejected the husbands submissions that the
    wife had significant unreported income, that she exaggerated her business
    expenses to reduce her net income, or that she was deliberately under-employed.
    Despite the disparity in the parties incomes, and the relative security of the
    husbands employment as compared to the wifes position, the trial judge
    ordered spousal support for 25 months only in the sum of $500 per month,
    indexed, ending on September 1, 2014. At that time, the issue of spousal
    support could be reviewed.

[16]

Again,
    the husband has not demonstrated that the trial judge made any palpable and
    overriding error in coming to the factual conclusions he did, and there is no
    basis to intervene.

Child support

[17]

The
    trial judge ordered the husband to pay the guideline amount of child support
    and a further $150 per month to the wife on account of extraordinary expenses. On
    November 1 of each year, the wife is required to present the husband with
    receipts for expenses paid and there has to be an adjustment between the
    parties, proportionate to their incomes. The wife was ordered to consult with
    the husband and seek his consent to s. 7 expenses, such consent not to be
    withheld unreasonably.

[18]

The
    appellant has not demonstrated any error on the part of the trial judge in
    dealing with s. 7 expenses in this manner.

Debts to wifes father

[19]

Finally,
    the appellant husband submits that, for the purposes of calculating the wifes
    net family property, the trial judge ought to have discounted the wifes debts
    to her father to about 5-10% of their face value, on the basis that the father
    was unlikely to pursue his daughter for these debts, and in fact was lending
    her additional funds. The wifes father had sued her on the debts and obtained
    judgment against her, which she did not contest. The trial judge accepted the
    wifes evidence that she intended to pay her father and did not discount the
    valuation day amount of the wifes indebtedness to her father. The trial judge
    expressly referred to the relevant legal authorities. The trial judge could
    have applied some discount to reflect the delay likely before any payment would
    be made on the debts, but again, the appellant has not demonstrated any
    palpable and overriding error in his failure to apply any discount. We note
    that, pursuant to the trial judges order, the husband and wife are jointly and
    severally liable to pay the debts to the wifes father so that the husband will
    have a claim over against the wife if he is called upon to pay more than his
    share of the debt. In any event, we are unable on the record before us to
    assess what, if any, difference application of a discount to the face value of
    the debts or deduction from the wifes net family property of a contingent
    liability for the husbands right of contribution and indemnity would have had
    on the wifes net family property.

CONCLUSIONS

[20]

The
    appellant has not demonstrated that the trial judge erred in law or in coming
    to any of the factual conclusions he drew from the evidence. Accordingly, the
    appeal is dismissed, in both the debt action and in the matrimonial
    proceedings.

[21]

We
    grant costs to the wife in the matrimonial appeal, in the sum of $15,000 inclusive
    of disbursements and taxes.

[22]

There
    was an offer to settle made by the wifes father in the debt action that may
    have some impact on the costs award in that appeal. The parties may make
    written submissions as to the costs of that appeal, due from the successful
    respondent on the appeal, Paul Denomme, within 30 days of the release of this
    decision, and due from the appellant within 20 days thereafter.

Robert
    J. Sharpe J.A.

K.
    van Rensburg J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: EllisDon Corporation v. Ontario Sheet Metal Workers' and Roofers' Conference and International Brotherhood of Electrical Workers, Local 586, 2015 ONCA 7

DATE: 20150108

DOCKET: C58371

MacFarland, LaForme and Lauwers JJ.A.

BETWEEN

EllisDon Corporation

Applicant

(Respondent)

and

Ontario Sheet Metal Workers and Roofers
    Conference and International Brotherhood of Electrical Workers, Local 586

Respondents

(Appellants)

and

Ontario Labour Relations
    Board

Respondent

(Respondent)

AND BETWEEN

Ontario Sheet Metal
    Workers and Roofers Conference and International Brotherhood of Electrical
    Workers, Local 586

Applicants

(Appellants)

and

EllisDon Corporation and
    Ontario Labour Relations Board

Respondents

(Respondents)

Ronald Lebi and Stephen Wahl, for the appellants, Ontario
    Sheet Metal Workers and Roofers Conference and International Brotherhood of
    Electrical Workers, Local 586

Alan J. Lenczner, Q.C. and Mark D. Contini for the
    respondent, EllisDon Corporation

Leonard Marvy, for the respondent, Ontario Labour
    Relations Board

Heard: October 8, 2014

Released:  November 17, 2014

On appeal from the judgment of the Divisional Court (Anne
    M. Molloy, Thomas R. Lederer and C. William Hourigan JJ.), dated September 27,
    2013, with reasons reported at 2013 ONSC 5808, on judicial review of decisions
    of Vice-Chair David A. McKee of the Ontario Labour Relations Board dated February
    13, 2012, reported at [2012] O.L.R.D. No. 480, and May 1, 2012, reported at [2012]
    O.L.R.D. No. 1491.

ADDENDUM

By the Court:

[1]

In this courts decision, released November 17, 2014, the appeal was
    allowed and the decision of the Ontario Labour Relations Board was restored.

[2]

By letter dated January 5, 2015, counsel for EllisDon questioned the
    intention of the court and asked whether EllisDon has two more years from the
    date of this courts decision obtain a legislative solution.

[3]

The courts intention was that the new two-year estoppel period
    originally set by the OLRB would start again on the date of this courts decision.

J.
    MacFarland J.A.

H.S.
    LaForme J.A.

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: First Elgin Mills Developments Inc. v. Romandale
    Farms Limited, 2015 ONCA 54

DATE: 20150128

DOCKET: M44238 (C57028)

Epstein, Lauwers and
    Pardu JJ.A.

BETWEEN

First Elgin Mills Developments Inc.

Applicant

(Appellant/Responding
    Party)

and

Romandale
    Farms Limited, Angela Maria Roman,

Anne
    Catherine Ruth Roman, David Andrew Roman,

Stephen
    George Roman, and Helen Elizabeth Roman-Barber

Respondents

(Respondents/Moving
    Parties)

R. Leigh Youd and Adam J. Wygodny, for the moving
    parties

John J. Longo and Martin J. Henderson, for the responding party

ENDORSEMENT

[1]

Reasons
    for judgment in this appeal were released by the court on Wednesday, August 6,
    2014, and are reported at 2014 ONCA 573.  The moving parties, led by Romandale
    Farms, have brought a motion for a re-hearing of the appeal on the basis that
    the court applied the wrong standard of review and that the interests of
    justice require a re-hearing.

[2]

The
    moving parties allege that the Supreme Court of Canadas decision in
Sattva
    Capital Corp. v. Creston Moly Corp
., 2014 SCC 53, released on Friday,
    August 1, 2014, altered the applicable standard of review.

[3]

Our
    decision was released several days after the Supreme Courts decision in
Sattva
.
    It did not refer to that decision. Writing for the court, Lauwers J.A. described
    the applicable standard of review at para. 29:

In my view, the standard of review on this appeal is
    correctness, since it involves the interpretation of a contract, with due
    deference to be paid to the application judge on those determinations in which
    the facts dominate:
The Plan Group v. Bell Canada
, 2009 ONCA 548, 96
    O.R. (3d) 81, at paras. 19-20, 27, 30, 31.

[4]

In
Sattva,
Rothstein J., writing for the court, held at para. 50 that
    contractual interpretation involves issues of mixed fact and law. Rothstein J.
    went on to leave open the possibility of identifying an extricable question of
    law from within what was initially characterized as a question of mixed fact
    and law, including the application of an incorrect principle, the failure to
    consider a required element of a legal test, or the failure to consider a
    relevant factor (at para. 53).

[5]

The
    moving parties assert that
Sattva
requires a greater degree of appellate
    deference to the decision of the application judge than this court showed in
    its reasons for judgment. Accordingly, they argue that this courts decision
    was made in error, and that the interests of justice require a re-hearing of
    the appeal.

[6]

The
    respondent on the motion, First Elgin Mills Developments Inc., contends that
    our approach to the standard of review was entirely consistent with the
    principles articulated in
Sattva
. The predominant errors made by the
    application judge in this case were properly classified as legal errors, thus
    attracting the standard of correctness in accordance with the principles
    articulated in
Sattva
.

[7]

This
    court has jurisdiction to reconsider and vary its decision before the formal
    order is issued:
McDowell v. Barker
, [2014] O.J. No. 2363 (C.A.), at
    para. 22;
Pastore v. Aviva Canada Inc
., 2012 ONCA 887, at para. 9;
Gore
    Mutual Insurance Co. v. 1443249 Ontario Ltd.
, [2004] O.J. No. 1896 (S.C.),
    at paras. 3, 7. However, the court will re-open an appeal prior to the entering
    of the order only in the type of rare circumstance where it is in the interests
    of justice to withdraw the reasons of the court and re-hear the case on the
    merits:
Pastore
, at para. 9.

[8]

We agree with the
    British Columbia Court of Appeal that [s]omething in the nature of overlooked
    or misapprehended evidence, or failing that, a clear and compelling case in law
    on the point and the prospect of a very serious injustice absent
    reconsideration would be required to justify withdrawing the courts reasons
    and holding a re-hearing:
Doman Forest Products Ltd. v. GMAC Commercial
    Credit Corp.
, 2005 BCCA 111, 209 B.C.A.C. 197, at para. 6.

[9]

In
    our view, this is not one of those rare circumstances in which it would be in
    the interests of justice to withdraw the reasons of the court and re-hear the
    case on the merits:
Doman Forest Products Ltd.
, at para. 6;
Pastore
,
    at para. 9. The result in the appeal was not driven by the standard of review
    and would not have been different under the application of the
Sattva
test. As found in our reasons, the application judge misapprehended the
    evidence, reached an interpretation of the agreement that was commercially
    unreasonable, and improperly implied a term in the agreement when the legal
    standard for doing so was not met. The standard of review articulated in
Sattva
supports appellate intervention in these circumstances.

[10]

Accordingly,
    there is no serious injustice that will result if the court refuses to re-hear
    the appeal.

[11]

The request to
    re-hear the appeal in this case is denied.

Gloria Epstein J.A.

P. Lauwers J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Hedican v. Hedican, 2015 ONCA 43

DATE: 20150123

DOCKET: C59176

Feldman, Cronk and Hourigan JJ.A.

BETWEEN

Edward J. Hedican

Respondent (Applicant)

and

William S. Hedican

Appellant (Respondent)

William S. Hedican, appearing in person

Morris J. Holervich, for the respondent, by
    teleconference

John Hedican, on his own behalf, by teleconference

Heard and released orally: January 21, 2015

On appeal from the order of Justice F.B. Fitzpartick of
    the Superior Court of Justice, dated July 8, 2014.

ENDORSEMENT

[1]

The appellant appeared in person on this appeal.  The respondent
    executor appeared through counsel by telephone in Thunder Bay.  The third heir,
    John Hedican, also attended by telephone from Thunder Bay.

[2]

The appellant agreed to the terms of the settlement before Fitzpatrick
    J. in December, 2013 and again he affirmed that settlement before Fitzpatrick
    J. in July, 2014.  That settlement was incorporated into the order under
    appeal.  Furthermore, there appears to be nothing unconscionable about the
    agreement based on the record before us.  There is no basis to interfere with
    the order under appeal.

[3]

The appeal is therefore dismissed.  No costs requested.

K. Feldman J.A.

E.A. Cronk J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ibrahim v. Robinson, 2015 ONCA 21

DATE: 20150119

DOCKET: C58969

Weiler, Feldman and Benotto JJ.A.

BETWEEN

Fadia
    Maria Nazira Ibrahim

and
    Angela Ibrahim

Plaintiffs (Respondents)

and

William Addison Robinson III

Defendant (Appellant)

B. Chambers, for the appellant

M. Greenaway, for the respondents

Heard: December 12, 2014

On appeal from the order of Justice Steven Rogin of the
    Superior Court of Justice, dated February 21, 2014.

Feldman J.A.:

OVERVIEW

[1]

The appellant is the defendant in a motor vehicle collision action
    commenced in Windsor, Ontario. The accident occurred on January 7, 2008 in
    Michigan. Following the expiry of the three-year limitation period in Michigan,
    the appellant brought a motion to dismiss the Ontario action for want of
    jurisdiction. The motion judge did not dismiss the action, relying on the
    forum of necessity exception referred to by this court in
Van Breda v.
    Village Resorts Limited
, 2010 ONCA 84,
    98 O.R. (3d) 721, at para. 100
. The motion judge noted that the
    Supreme Court in its decision in that case specifically declined to address the
    forum of necessity issue: see
Club Resorts Ltd. v. Van Breda
, 2012 SCC
    17, [2012] 1 S.C.R. 572, at paras. 59, 82, 86, 100.

[2]

The motion judge accepted that under the test for assuming jurisdiction as
    it existed before the Supreme Courts decision in
Van Breda
and when
    this action was commenced, there may well have been sufficient connecting
    factors to Ontario for an Ontario court to assume jurisdiction. He pointed to
    the case of
Gordon v. Deiotte
,
    2012 ONSC 1973, 109 O.R. (3d) 626,
as an example of an Ontario
    court assuming jurisdiction in similar circumstances to this case.

[3]

He found that, because the appellant delayed serving the jurisdiction motion
    until it was too late for the respondents to sue in Michigan, the appellant
    effectively denied the respondents access to the Michigan courts and may have
    lulled them into a false sense of security. He concluded that fairness and
    access to justice for the plaintiffs called for the court to assume
    jurisdiction based on forum of necessity. The appellant brought a subsequent
    motion before the same motion judge seeking to introduce further evidence of
    correspondence and emails to try to demonstrate that the respondents were not
    misled about the appellants intention to challenge jurisdiction. The motion
    judge endorsed the record that the new evidence was available on the original
    motion and the appellants only remedy was to appeal.

[4]

The appellant raises two issues on the appeal. (1) He says Ontario lacks
    jurisdiction
simpliciter
over this action and the forum of necessity
    doctrine does not become available simply because a limitation period in the
    proper forum, Michigan, was missed. He adds that it is not the defendants
    responsibility to ensure that the plaintiffs bring their action in the correct
    forum or in a timely manner. (2) The motion judge erred in refusing to admit
    the fresh evidence and in concluding that the appellant lulled the respondents
    into inaction.

ANALYSIS

Forum of necessity

[5]

Justice Sharpe described the forum of necessity doctrine in this courts
    decision in
Van Breda
, at para. 100:

The forum of necessity doctrine recognizes that there will be
    exceptional cases where, despite the absence of a real and substantial
    connection, the need to ensure access to justice will justify the assumption of
    jurisdiction.  The forum of necessity doctrine does not redefine real and
    substantial connection to embrace forum of last resort cases; it operates as
    an exception to the real and substantial connection test.  Where there is no
    other forum in which the plaintiff can reasonably seek relief, there is a
    residual discretion to assume jurisdiction.  In my view, the overriding concern
    for access to justice that motivates the assumption of jurisdiction despite
    inadequate connection with the forum should be accommodated by explicit
    recognition of the forum of necessity exception rather than by distorting the
    real and substantial connection test.

[6]

The Supreme Court noted in its decision in
Van Breda
that
    Sharpe J.A. had raised considerations of fairness in support of the forum of
    necessity doctrine; however, because the issue did not arise on the appeal,
    there was no need for the court to address it: see paras. 59, 82, 86, 100.

[7]

The accident occurred on January 7, 2008. When this action was commenced
    in Ontario in January 2010, this courts decision in
Muscutt v. Courcelles
(2002), 60 O.R. (3d) 20 (C.A.) still governed the
    assumption of jurisdiction
. Counsel for the appellant conceded that
    at the time the claim was brought in Ontario, an Ontario court could arguably
    have assumed jurisdiction under the
Muscutt
test. The motion judge
    noted that counsel did not seriously dispute that proposition on the motion
    below.

[8]

What is unclear from the record before this court is why, following the
    service of the statement of claim, no steps were taken to proceed with this
    action by either side until this motion was finally heard in September 2013.
    For example, the appeal book contains an order obtained by the respondents, granting
    the appellant an extension of time until October 6, 2010 to serve the statement
    of defence. No statement of defence was filed, ostensibly because the appellant
    intended to bring this motion contesting jurisdiction, but waited years to do
    so, with the apparent acquiescence of the respondents.

[9]

Although the appellant swore an affidavit for the purpose of contesting
    jurisdiction in March 2010, he did not serve the motion until June 2011, by
    which time the relevant three-year limitation period in Michigan had expired.
    The motion was not heard until September 2013, after the Supreme Court of
    Canada had released its decision in
Van Breda
. That decision refined
    the real and substantial connection test for determining jurisdiction, with
    the result that in this case there are effectively no longer any applicable
    factors that would ground the assumption of jurisdiction on that basis.

[10]

Finally,
    since the motion judges decision in this case, this court released its
    decision in
West Van Inc. v. Daisley
, 2014 ONCA 232, 119 O.R. (3d)
    481, leave to appeal refused, [2014] S.C.C.A. No. 236, where, at para. 37, Hoy
    A.C.J.O. stated that the expiry of the limitation period in the proper foreign
    forum does not make Ontario the forum of necessity.

[11]

The
    confluence of factors in this case presents a very unique situation where both
    sides of this litigation have been responsible for some delay, and the law has
    developed during the delay period in two ways, both to the detriment of the respondents.
    The unique circumstances are: 1) there were likely sufficient connecting
    factors for Ontario to assume jurisdiction on the basis of the real and
    substantial connection test when the action was commenced; 2) the motion judge
    found that the appellants delayed in bringing their motion until after the
    expiry of the limitation period in Michigan, possibly lulling the respondents
    into a false sense of security; and 3) the law on assuming jurisdiction and on
    forum of necessity changed before both the motion and the appeal respectively.

[12]

To
    interfere with the motion judges discretionary decision in this case, the
    court would have to be satisfied that the motion judge misdirected himself, gave
    no or insufficient weight to relevant considerations, or came to a decision
    that is so clearly wrong that it amounts to an injustice:
Penner v. (Niagara
    Regional Police Services Board)
, 2013 SCC 19, [2013] 2 S.C.R. 125, at
    para. 27.

[13]

Had
    the motion judge treated the expiry of the Michigan limitation period as a
    sufficient condition for invoking the doctrine of necessity, then this courts
    comments in
West Van
would speak strongly in favour of allowing the
    appeal. However, in this case, the expired limitation period was not the only
    basis for the motion judges exercise of his residual discretion to assume
    jurisdiction. He also based his decision on considerations of fairness and
    access to justice, including the fact that the change in the common law test
    for assumed jurisdiction occurred only after the expiry of the foreign
    limitation period.

[14]

In
    addition, the motion judge took into consideration the appellants unexplained
    lengthy delay in bringing the jurisdiction motion until after the Michigan limitation
    period had expired, which may have lulled the plaintiffs into a false sense of
    security about the jurisdiction issue. I note that although the respondents
    could have started a second action in Michigan before the expiry of the
    limitation period there, they could not maintain two actions and would have had
    to abandon the Ontario action. Before the Supreme Courts decision in
Van
    Breda
or an order of an Ontario court staying the claim, there was no
    reason to do that.

[15]

Given
    the additional factors that influenced the motion judges decision, that
    decision is not inconsistent with this courts comments in
West Van
,
    and should be accorded deference.

Fresh evidence

[16]

Finally,
    I see no basis to interfere with the motion judges decision on the second
    motion not to admit the proposed fresh evidence on the basis that it was all
    available at the time of the original motion. In any event, the correspondence
    consists of some letters and emails that discuss the appellants intention to
    bring a jurisdiction motion, the last of which is dated December 20, 2010, and
    which proposes a motion to be heard on January 18, 2011, which is after the
    expiry of the Michigan limitation period. That motion was eventually brought in
    June, 2011 and heard in September, 2013. The proposed fresh evidence would not
    assist the appellant.

[17]

I
    would therefore dismiss the appeal with costs fixed at $7,500, inclusive of
    disbursements and HST.

Released: KMW JAN 19, 2015

K. Feldman J.A.

I agree. K.M. Weiler
    J.A.

I agree. M.L. Benotto
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Karrys v. Karrys, 2015 ONCA 17

DATE: 20150119

DOCKET: C59155

Doherty, Juriansz and Huscroft JJ.A.

BETWEEN

Peter J. Karrys

Applicant

and

Steven
    J. Karrys, Karrys Holdco Inc.

and Karrys Bros., Limited

Respondents

BETWEEN

Karrys Bros., Limited

Plaintiff

and

Gregorio
    Ruffa

Defendant

AND BETWEEN

Gregorio Ruffa

Plaintiff by Counterclaim

and

Karrys Bros., Limited, Steven J. Karrys

and Peter J. Karrys

Defendants by Counterclaim

AND BETWEEN

Karrys Bros., Limited

Plaintiff

and

Andy
    Kephalas, Charles Havill,

Charles Havill Chartered
    Accountant and Charles Havill LLP

Third Parties

AND BETWEEN

Peter J. Karrys

Applicant

and

Steven
    J. Karrys, Karrys Bros., Limited, Karrys Holdco Inc.,

Karbro
    Transport Inc. and Karrys Software Ltd.

Respondents

Robert G. Schipper, for the appellant Torkin Manes LLP

Peter J. Karrys, acting in person

David C. Moore, for the respondent, Karrys Bros., Limited

Heard: January 12, 2015

On appeal from the order of Justice David M. Brown of the
    Superior Court of Justice, dated July 3, 2014.

ENDORSEMENT

[1]

This appeal involves charges orders granted under s. 34(1) of the
Solicitors
    Act
, R.S.O. 1990, c. S.15. The section provides:

Where a solicitor has been employed to prosecute or
    defend a proceeding in the Superior Court of Justice, the court may, on motion,
    declare the solicitor to be entitled to a charge on the property recovered or
    preserved through the instrumentality of the solicitor for the solicitors
    fees, costs, charges and disbursements in the proceeding.

[2]

The appellant, a firm of solicitors, appeals from the order of the
    motion judge declaring certain payments to be made to the respondent pursuant
    to a settlement agreement were not subject to three charging orders in the
    solicitors favour. The three charging orders were granted to the solicitors
    because of work they had done, beginning in 2004, representing the respondent
    in three proceedings in connection with a complex and hostile shareholder
    dispute with his cousin. The three proceedings and the larger dispute remained
    unresolved when the respondent terminated the solicitors retainer in October
    2007.

[3]

In January 2009, the solicitors obtained the charging orders on
    consent. The charging orders gave the solicitors a first charge on any proceeds
    of settlement or any proceeds after judgment payable to the respondent in
    respect of the matters on which the solicitors had represented him. Each of
    the charging orders specified a court file number corresponding to the proceedings
    on which the solicitors had represented the respondent.

[4]

After terminating the solicitors retainer, the respondent continued the
    dispute with his cousin and commenced additional lawsuits. In one subsequent lawsuit
    he sought to restore the payment of his salary that the corporate respondent,
    of which his cousin was the majority shareholder, had suspended in June, 2011.
    He claimed entitlement to the salary under the shareholders agreement. In
    another subsequent action, the respondent sued third parties who were connected
    to the company alleging various wrongdoings.

[5]

On February 5, 2014, the respondent and his cousin entered into a
    settlement that resolved all lawsuits and all legal proceedings between
    them, as well as matters involving third parties. The settlement agreement contemplated
    immediate payments and future payments to the respondent. In particular the
    agreement included the following two terms:

·

Starting now: consulting payments to [the respondent] @$300k/yr
    as of and from January 1/2014 to the conclusion of Plan A or Plan B; [the
    cousins] salary to continue at ~$310K/yr.

·

As consideration for the full and complete settlement of all
    existing and potential claims against third parties, the company agrees to pay
    [the respondent] compensation for all alleged damages as follows: [an
    itemization of amounts to be paid under various scenarios]

[6]

The parties disputed whether the charging orders applied to these
    payments. The motion judge granted the respondents motion for a declaration the
    solicitors were not entitled to these disputed payments.

[7]

The motion judge observed a solicitor must demonstrate the property was
    recovered or preserved through his or her instrumentality to obtain a charging
    order on property. He stated that the element of instrumentality explicitly
    found its way into these charging orders because they specified that they
    applied to proceeds paid to the respondent in respect to [the three court
    files].

[8]

The motion judge, upon a consideration of the agreement and the
    affidavit evidence, went on to find that although the settlement agreement
    dealt in part with proceedings on which the solicitors had acted, the disputed
    payments arose out of the settlement of the subsequent litigation.

[9]

He inferred that the consulting fees, which on their face appear to
    refer to payments for services rendered after January 2014, were best related
    to compensation for the suspension of the respondents salary in 2011. The
    motion judge remarked that the respondents salary was not suspended until
    2011, long after the [solicitors] retainer had ended.

[10]

The
    other parts of the disputed payments were classified by the settlement
    agreement, the motion judge noted, as consideration for the full and complete
    settlement of all existing and potential claims against third parties. He
    observed that the litigation against the third parties commenced in 2009 and
    2012 again long after the termination of the [solicitors] retainer.

[11]

The
    motion judge concluded that the disputed payments were not subject to the
    charging orders.

[12]

On
    appeal, the solicitors counsel submits that the motion judge failed to recognize
    that charging orders should be given a broad and expansive scope. He submits the
    motion judge engaged in a limited chronological analysis that focused on the
    fact that the subsequent proceedings were not launched until after the
    solicitors retainer had ended. This limited focus led him to the erroneous
    conclusion that there was no link between the legal work performed by the
    solicitors and the ultimate settlement of the litigation. He points out that
    the solicitors represented the respondent in connection with an earlier
    reduction of his salary and the respondents subsequent action against the
    third parties relied in part on their earlier investigations.

[13]

Counsel
    submits that on a proper analysis all the settlement proceeds should be found
    to be inextricably intertwined with the legal work the solicitors performed.
    The agreement settled all of the ongoing litigation and that the manner in
    which the parties to the settlement chose to characterize the payments for
    their purposes should not be taken into account in interpreting the charging
    orders. The respondent should not be allowed to avoid the effect of the
    charging orders by earmarking part of the settlement proceeds as relating only to
    other litigation.

[14]

The
    difficulty with the solicitors argument is that they do not, and on the record
    cannot, submit that the settlement agreement was intentionally structured to
    avoid the application of the charging orders. The solicitors did not
    cross-examine the respondent on his affidavit. The record that was before the
    motion judge provides ample support for his conclusions. He considered the
    parties involved in the proceedings, the subject matter, the time at which the
    proceedings were launched and when the subject events took place.

[15]

The
    motion judge did not find, as the solicitors have suggested, that there was no
    link between their work and the ultimate settlement of the litigation. Rather
    he found there was no link between the disputed payments and the solicitors
    work. The disputed payments are only a portion of the payments provided by settlement
    agreement. The respondent acknowledges that the remaining payments are subject
    to the charging orders.

[16]

We
    have not been persuaded there is any basis for interfering with the motion
    judges conclusion. The appeal is dismissed. The costs of the appeal are left
    to the judge who disposes of the respondents action against the solicitors.

Doherty J.A.

R.G. Juriansz J.A.

G.A. Huscroft J.A.