Hello again.
There were only two substantive civil decisions this week. One was a residential tenancy matter. The other was an estates matter that reminds us that claims for purely declaratory relief (in that case, whether a codicil was or was not valid) are not subject to any limitation period.
Please join me and Lea Nebel at our "Top Appeals of 2019" CLE (registration is now open at the OBA's website), dinner program to take place at the OBA on Thursday, February 27, 2020. Three decisions will be featured. The first is Darmar Farms v Sygenta, which deals with the potential new tort of "premature commercialization" and pure economic loss in product liability context. The second is The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. The third is Wright v Urbanek, which deals with the scope of the doctrines of abuse of process and collateral attack.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
Piekut v. Romoli , 2020 ONCA 26
Keywords: Wills and Estates, Codicils, Validity, Civil Procedure, Summary Judgment, Limitation Periods, Declaratory Relief, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Hryniak v. Mauldin, 2014 SCC 7, Leibel v. Leibel, 2014 ONSC 4516, Birtzu v. McCron, 2017 ONSC 1420
Bernard Property Maintenance v. Taylor , 2020 ONCA 27
Keywords: Real Property, Residential Tenancies, Civil Procedure, Appeals, Stay Pending Appeal, Orders, Varying or Setting Aside, Self-Represented Litigants, Canadian Judicial Council Statement of Principles on Self-Represented Litigants and Accused Persons
Short Civil Decisions
Jadhav v. Jadhav, 2020 ONCA 19
Keywords: Civil Procedure, Appeals, Extension of Time, Stay Pending Appeal, Jurisdiction, Interlocutory Orders, Settlement Conferences
BMO Trust Company v. Childs, 2020 ONCA 21]
Keywords: Wills and Estates, Civil Procedure, Passing of Accounts, Vexatious Litigants, Abuse of Process
Criminal Decisions
R. v Roy, 2020 ONCA 18
Keywords: Criminal Law, Firearms Offences, Controlled Substances, Search and Seizure, Canadian Charter of Rights and Freedoms, s 8, Controlled Drugs and Substances Act, S.C. 1996, c. 19, R. v Tessling, 2004 SCC 67, R. v. Edwards, [1996] 1 SCR. 128, R. v White, 2015 ONCA 508, R. v Campbell, [1999] 1 SCR 565
R. v. K.R., 2020 ONCA 20
Keywords: Criminal law, Sexual Interference, Sexual Abuse, R. v W.(D.), [1991] 1 SCR 742
R. v. R.D.,2020 ONCA 23
Keywords: Criminal law, Sexual Interference, Sexual Assault, Uttering Threats, Jury Charges, R. v Jacquard, [1997] 1 SCR 314, R. v Newton, 2017 ONCA 496, R. v Huard, 2013 ONCA 650
R. v. G., 2020 ONCA 24
Keywords: Criminal Law, Sexual Assault, Sentencing, R. v W.(D.), [1991] 1 SCR 742, R. v H.C., 2009 ONCA 56, R. v Phan, 2013 ONCA 787
R. v. K., 2020 ONCA 22
Keywords: Criminal Law, Bank Fraud, Sentencing, Canadian Charter of Rights and Freedoms, s 11(b), R. v Imola, 2019 ONCA 556, R. v Jordan, 2016 SCC 27, R. v. Kazman, 2017 ONSC 5300
R. v B,2020 ONCA 25
Keywords: Criminal Law, Robbery, Kidnapping, Possession of Stolen Property, R. v Mahmood, 2011 ONCA 693, R. v Thompson, [1990] 2 SCR 1111, R. v Vu, 2013 SCC 60
R. v W.,2020 ONCA 30
Keywords: Criminal Law, Dangerous Driving Causing Death, Evidence, Experts, Causation
CIVIL DECISIONS
Piekut v. Romoli, 2020 ONCA 26
[Strathy C.J.O, MacPherson and Jamal JJ.A.]
Counsel:
Romeo D’Ambrosio, for the appellant
Jonathan M. Friedman, for the respondent HP
Paul Trudelle, for VW
Keywords: Wills and Estates, Codicils, Validity, Civil Procedure, Summary Judgment, Limitation Periods, Declaratory Relief, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Hryniak v. Mauldin, 2014 SCC 7, Leibel v. Leibel, 2014 ONSC 4516, Birtzu v. McCron, 2017 ONSC 1420
facts:
A married couple with three grown children owned five properties
in Toronto. The couple executed a will providing that, upon both
their deaths, their estate would be divided equally among their
three children. After the couple died, one of their children, K,
asserted that her parents had executed codicils to their wills
providing that she was to inherit two of the five properties (the
"Dundas St. properties"). K did not tell her other
siblings about these purported codicils until after both parents
had died.
The appellant, H, brought an application seeking a determination as
to whether the codicils were valid. K brought a motion for summary
judgment, seeking the dismissal of H's claim on the basis that
it was statute-barred pursuant to the Limitations Act, 2002. H
brought a cross-motion for summary judgment on her application. The
motion judge decided that both K's motion and H's
cross-motion were appropriate for summary judgment.
On K's motion, the motion judge held that H's application
for a declaration on the validity of the codicils was not barred by
the Limitations Act, 2002, and applied s. 16 (1)(a), which
provides that "there is no limitation period in respect of a
proceeding for a declaration if no consequential relief is
sought". On H's motion, the motion judge held that the
purported codicils were invalid.
issues:
(1) Did the motion judge err by making a declaration about the
codicils in the context of a summary judgment motion?
(2) Did the motion judge err in her analysis and conclusion on the
limitation period issue?
holding:
Appeal dismissed.
reasoning:
(1) No. Both parties brought summary judgment motions. Both
filed affidavits and attached exhibits. The motion judge applied
the test in Hryniak v. Mauldin and found that a trial was
not required because the court could make a fair and just
determination of the issues relying on the written record.
(2) No. In contrast to Leibel v. Leibel, 2014 ONSC 4516
and Birtzu v. McCron, 2017 ONSC 1420, in this case the
appellant sought none of the consequential relief sought in those
cases. Nor did anyone do anything to propound the Will. It sat
there for seven years, presumably because the siblings were all
trying to work out their disagreements. In these circumstances, the
appellant was entitled to seek declaratory relief, simply to
establish the validity, or lack of validity, of the codicils
– to define the rights of the parties in order to avoid
future disputes.
Bernard Property Maintenance v. Taylor, 2020 ONCA 26
Strathy C.J.O, MacPherson and Jamal JJ.A.
Counsel:
Romeo D’Ambrosio, for the appellant
Jonathan M. Friedman, for the respondent H.P.
Paul Trudelle, for V.W.
Keywords: Real Property, Residential Tenancies,
Civil Procedure, Appeals, Stay Pending Appeal, Orders, Varying or
Setting Aside, Self-Represented Litigants, Canadian Judicial
Council Statement of Principles on Self-Represented Litigants and
Accused Persons
facts:
The respondent landlord obtained an order for eviction and
payment of rent arrears before the Landlord and Tenant Board, which
the appellant unsuccessfully sought to appeal before a single judge
of the Divisional Court and then a panel of the Court of Appeal
reconstituted as a panel of the Divisional Court. The appellant
sought leave to appeal the latter dismissal and moved for a stay of
the order. The motion judge granted the appellant's motion for
stay pending appeal. However, in allowing the motion, the appellant
was ordered to pay the respondent arrears of rent in the amount of
$14,250 by December 12, 2019. The appellant appealed to vary the
motion judge's order to allow for payment to be made in the
amount of $1,425 each month commencing January 1, 2020.
On appeal, the appellant submitted that he should not be required
to pay rent arrears when he was obliged to use those monies to
carry out necessary repairs to the leased premises. It was common
ground that the appellant had not made any payments to the
respondent as of the date of appeal.
issues:
(1) Did the motion judge err by failing to comply with the principles under the Canadian Judicial Council Statement of Principles on Self-Represented Litigants and Accused Persons (the "CJC Principles")?
holding:
Appeal dismissed.
reasoning:
(1) No. The Court found no error in the motion judge's
decision. The CJC Principles regarding self-represented parties
were entirely respected by the motion judge. In making its
determination, the Court noted that, contrary to the
appellant's assertion, the motion judge did not determine that
the appellant erred by failing to obtain a rent abatement. The
issue was not, in fact, before the motion judge. Based on the
issues before him, the motion judge thoroughly and carefully
considered the evidence before him and the parties' respective
submissions, properly applied the test for stay pending appeal, and
appropriately balanced all relevant factors and competing
interests.
With respect to costs, the appellant was ordered to pay the
respondent on a partial indemnity basis in the amount of $1,500,
inclusive of disbursements and applicable taxes.
SHORT CIVIL DECISIONS
Jadhav v. Jadhav,2020 ONCA 19
[Pardu, Brown and Huscroft JJ.A.]
Counsel:
Narendra Sahebrao Jadhav, in person
Cheryl A. Hodgkin, for the respondent
Keywords: Civil Procedure, Appeals, Extension of
Time, Stay Pending Appeal, Jurisdiction, Interlocutory Orders,
Settlement Conferences
BMO Trust Company v. Childs, 2020 ONCA 21
[Sharpe, Juriansz and Nordheimer JJ.A.]
Counsel:
P.C., appellant acting in person
David M. Smith, for the respondent M.C. in his capacity as
Litigation
Guardian for E.C.
A. Sean Graham, BMO Trust in its capacity as Guardian of Property
for E.C.
Keywords: Wills and Estates, Civil Procedure,
Passing of Accounts, Vexatious Litigants, Abuse of Process
CRIMINAL DECISIONS
R. v Roy, 2020 ONCA 18
[Simmons, Watt and Miller JJ.A.]
Counsel:
Frank Addario and James Foy, for the appellant
J. Sandy Tse, for the respondent
Keywords: Criminal Law, Firearms Offences,
Controlled Substances, Search and Seizure, Canadian Charter of
Rights and Freedoms, s 8, Controlled Drugs and Substances
Act, S.C. 1996, c. 19, R. v Tessling, 2004 SCC 67,
R. v. Edwards, [1996] 1 SCR. 128, R. v White,
2015 ONCA 508, R. v Campbell, [1999] 1 SCR 565
R. v. K.R., 2020 ONCA 20
[Pardu, Brown and Huscroft JJ.A.]
Counsel:
James Harbic and Robert Harbic, for the appellant
Jennifer A.Y. Trehearne, for the respondent
Keywords: Criminal law, Sexual Interference,
Sexual Abuse, R. v W.(D.), [1991] 1 SCR 742
R. v. R.D., 2020 ONCA 23
[Doherty, van Rensburg and Hourigan JJ.A.]
Counsel:
Mark C. Halfyard and Lindsay Board, for R.D.
Megan Petrie, for the Crown
Keywords: Criminal law, Sexual Interference,
Sexual Assault, Uttering Threats, Jury Charges, R. v
Jacquard, [1997] 1 SCR 314, R. v Newton, 2017 ONCA
496, R. v Huard, 2013 ONCA 650
R. v. G., 2020 ONCA 24
[Pardu, Roberts and Thorburn JJ.A.]
Counsel:
David M. Humphrey and Jill D. Makepeace, for the appellant
Hannah Freeman, for the respondent
Keywords: Criminal Law, Sexual Assault,
Sentencing, R. v W.(D.), [1991] 1 SCR 742, R. v
H.C., 2009 ONCA 56, R. v Phan, 2013 ONCA 787
R. v. K., 2020 ONCA 22
[Doherty, van Rensburg and Hourigan JJ.A.]
Counsel:
Richard Litkowski, for the appellant M.K.
Adam Little, for the appellant G.L.
Michael Dineen, for the appellant M.T.
Mark Halfyard and Chris Rudnicki, for the appellant A.T.
John Patton, for the respondent
Keywords: Criminal Law, Bank Fraud, Sentencing,
Canadian Charter of Rights and Freedoms, s 11(b), R. v
Imola, 2019 ONCA 556, R. v Jordan, 2016 SCC 27,
R. v. Kazman, 2017 ONSC 5300
R. v. B. , 2020 ONCA 25
[Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.]
Counsel:
Daisy McCabe-Lokos, for the appellant M.B.
Cate Martell, for the appellant T.K.
Michael Dineen, for the appellant J.K.
Frank Addario and Julia Kindrachuk, for the appellant S.P.
Holly Loubert and Kathleen Doherty, for the respondent
Keywords: Criminal Law, Robbery, Kidnapping,
Possession of Stolen Property, R. v Mahmood, 2011 ONCA
693, R. v Thompson, [1990] 2 SCR 1111, R. v Vu,
2013 SCC 60
R. v. W, 2020 ONCA 30
[Gillese, Rouleau and Fairburn JJ.A.]
Counsel:
Cara Barbisan, for the appellant
Gerald Brienza, for the respondent
Keywords: Criminal Law, Dangerous Driving Causing
Death, Evidence, Experts, Causation
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