Month: April 2020

“Section 137(2) of the Courts of Justice Act provides the jurisdiction to issue a sealing order:

A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

Sealing orders are an exception rather than the rule.  All courts and court documents in Canada are presumed to be open to the public.  As Ferrier J. recently stated in Ontario Council of Hospital Unions v. Ontario (Minster of Health), (2007), 2007 CanLII 2689 (ONSC):

There is a heavy onus on anyone seeking to deny public access to court documents or proceedings.  It must be demonstrated that it is necessary to deny public access in order to protect a value of “super-ordinate” importance”: Nova Scotia (Attorney General) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, p [1982] S.C.J. No. 1 at pp/ 185-87 S.C.R.

This is an important component of our constitutional right to freedom of expression contained in s. 2(b) of the Charter.  The importance of this principle, and the plethora of Supreme Court of Canada cases stating it, was recently noted by my brother Strathy J. in Fairview Donut Inc. v. TDL Group Corp, 2010 ONSC 789 (CanLII), citing the Supreme Court of Canada’s decisions of Dagenai v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC); R. v. Mentuck, 2001 SCC 76 (CanLII); Vancouver Sun (Re.), 2004 SCC 43 (CanLII); and Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (CanLII).

The test for determining when the open court principle should give way to considerations of ‘super-ordinate importance” was set out by the Supreme Court of Canada in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII).  Justice Iacobucci, speaking for the Court at para. 53, established a two part test:

A confidentiality order… should only be granted when:

a)  such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

(b)  the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

Justice Iacobucci clarified the meaning of the phrase “important commercial interest” in paras. 55-56:

…In order to qualify as an “important commercial interest”, the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in confidentiality. For example, a private company could not argue simply that the existence of a particular contract should not be made public because to do so would cause the company to lose business, thus harming its commercial interests. However, if, as in this case, exposure of information would cause a breach of a confidentiality agreement, then the commercial interest affected can be characterized more broadly as the general commercial interest of preserving confidential information. Simply put, if there is no general principle at stake, there can be no “important commercial interest” for the purposes of this test. Or, in the words of Binnie J. in F.N. (Re), [2000] 1 S.C.R. 880, 2000 SCC 35 (CanLII), at para. 10, the open court rule only yields “where the public interest in confidentiality outweighs the public interest in openness”.

The important commercial interest cannot be one specific to the moving party.  Rather, the moving party must establish an important commercial interest that is grounded in a broader public interest:  see also Prendiville v. 407 International Inc., [2002] O.J. No. 2548, 24 C.P.C. (5^th) 184 (S.C.J.) at para. 15.

In addition to the above requirement, courts must be cautious in determining what constitutes an “important commercial interest.” It must be remembered that a confidentiality order involves an infringement on freedom of expression. Although the balancing of the commercial interest with freedom of expression takes place under the second [para. 53] branch of the test, courts must be alive to the fundamental importance of the open court rule: see generally Muldoon J. in Eli Lilly and Co. v. Novopharm Ltd., (1994), 56 C.P.r. (3d) 437, [1994] F.C.J. No. 1141 (T.D.), at para 2.

Where the sealing order relates to the personal information of a child, the best interests of the child, is a value of super-ordinate importance that can override the open court principle: M.S.K. v. T.L.T, 2003 CanLII 27471 (ON CA) at para 10.”

         Himel v. Greenberg, 2010 ONSC 2325 (CanLII) at 43-49

“In Goldman v. Kudelya (2011), 5 R.F.L. (7^th) 149, 2011 ONSC 2718 McGee J. ordered the sale of a matrimonial home in circumstances where the best interests of a child were alleged to be involved.

[17] A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.

[18]  To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act.  If not, then the right to sale prevails.  If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.

[19]  There have been a number of cases in which the court has denied an interim motion for sale prior to trial such as  Arlow v. Arlow (1990) 33 R.F.L. (3^rd) 44 (OCA,) Walters v. Walters 1992 CanLII 8599 (ON SCDC), 1992 CarswellOnt 811  and more recently, Kereluk v. Kereluk,  2004 CanLII 34595 Ontario S.C.J.  In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.

In Goldman, the husband (who unsuccessfully opposed the sale) argued that the best interests of the parties’ daughter (then four years, three months old) would be harmed.  There was, however, and as McGee J. noted, no evidence that the child was bonded to the home, or that its sale would harm her.

In this case the wife asserts that the children have been traumatized by their parents’ separation, and will be devastated by the home being sold.  They do not wish to spend time with their father at the residence he shares with his new partner, and the OCL has accepted its appointment to represent their interests.  Beyond these rather bald allegations though, the evidentiary record about the children’s best interests is lacking.  The circumstances of this family are very different from those in Petit v. Petit, 2016 ONSC 849, another case upon which the wife relies, and in respect to which there was a robust record of likly emotional harm to the children if their family home had been sold.

I agree with the views expressed by McGee J. in Goldman,

[20] Issues arising from relationship breakdown are by their very nature inextricably intertwined. I agree with Justice Wright’s reasoning in Walters supra, confirmed in Kereluk, supra that orders for the sale of the home should not be made as a matter of course.  One must always be mindful of the whole of the proceeding and the need to move forward as fairly and expeditiously as possible.  At the same time, determinations must have a starting point. The sale of the matrimonial home is often the most appropriate catalyst to effect the equal division of family assets and establish post separation parenting patterns.”

Zargar v. Zarrabian, 2016 ONSC 2900 (CanLII) at 8-11

“In paragraph 12 of Catania v. Giannattasio (1999), 174 DL.R. (4^th) 170 (Ont. C.A.), Mr. Justice Laskin noted that while there is authority that Canadian courts have jurisdiction to enforce rights affecting land in foreign countries, that jurisdiction extends to those circumstances where the rights are based on contract, trust or equity and the opposing party resides in Canada.  Justice Laskin stressed that this jurisdiction should only be exercised in exceptional circumstances.  (Catania dealt with lands located in Italy.)  He found that when exercising this jurisdiction, Canadian courts are enforcing a personal obligation between the parties, or an in personam jurisdiction, which is an exception to the general rule that Canadian courts have no jurisdiction to decide title to foreign land.  He held that Canadian courts will only exercise this exceptional in personam jurisdiction if four criteria are met (see McLeod, The Conflict of Laws, (Calgary: Carswell, 1983) at 321):

(1) The court must have in personam jurisdiction over the defendant. The plaintiff must accordingly be able to serve the defendant with originating process, or the defendant must submit to the jurisdiction of the court.

(2) There must be some personal obligation running between the parties. The jurisdiction cannot be exercised against strangers to the obligation unless they have become personally affected by it . . . An equity between the parties may arise in various contexts. In all cases, however, the relationship between the parties must be such that the defendant’s conscience would be affected if he insisted on his strict legal rights . . .

(3) The jurisdiction cannot be exercised if the local court cannot supervise the execution of the judgment . . .

(4) Finally, the court will not exercise jurisdiction if the order would be of no effect in the situs . . . The mere fact, however, that the lex situs would not recognize the personal obligation upon which jurisdiction is based will not be a bar to the granting of the order.

While Justice Laskin referred to “Canadian” courts and “foreign” lands, the same principles apply within Canada among provinces and territories.  In other words, unless the circumstances fit within the exceptions outlined above, a court in Ontario cannot accept jurisdiction over lands situated in another province.”

Cork v. Cork, 2014 ONSC 2488 (CanLII) at 74-75

“The fact that Mr. Carpenter was self-represented does not excuse his failure to comply with the necessary time limit or, once he was aware of the Final Order, to move promptly for an extension of time. Any participant in litigation, including a self-represented party, has a responsibility to familiarize himself or herself with the procedures relevant to the case: McDowell v. Cavan-Millbrook – North Monaghan (Municipality), 2016 ONCA 193, at paras. 20 and 21.”

         Carpenter v. Carpenter, 2016 ONCA 313 (CanLII) at 16

“The nature and scope of the doctrine of absolute privilege lies at the heart of this appeal.  That this doctrine is well-established at common law is beyond dispute.  This court has repeatedly endorsed the definition of the doctrine set out in Halsbury’s Laws of England, vol. 28, 4th ed. (London, U.K.: Butterworths, 1997), at para. 97, which reads:

1. 1. 1. 97. Absolute privilege.– No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law.  The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. – The privilege extends to documents properly used and regularly prepared for use in the proceedings.  Advocates, judges and juries are covered by this privilege. – However, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings.

A separate action for malicious prosecution or the malicious institution or abuse of civil proceedings may lie independently of the law of defamation.  [Citations omitted.]

This definition was adopted in Samuel Manu-Tech, at para. 19; Lowe v. Guarantee Co. of North America (2005), 2005 CanLII 80693 (ON CA), 80 O.R. (3d) 222 (C.A.), at para. 57; and Reynolds, at para. 14.

The doctrine has its roots in the early development of the law of defamation.  However, in its modern form, its reach is considerably broader.  Relying on Hargreaves v. Bretherton and Another, [1958] 3 All E.R. 122 (Q.B.D.), at 123, Feldman J.A. for this court in Samuel Manu-Tech confirmed, at para. 20, that: “[t]he immunity extends to any action, however framed, and is not limited to actions for defamation.”  See also Lowe, at para. 58.

Historically, public policy considerations, including the need to foster confidence in the administration of justice, have been viewed as justifying an absolute privilege protecting counsel and others from suits based on what is said by them in court.  There is authority for the proposition that the justification for absolute privilege is acute in cases involving statements made by counsel: see Dooley v. C.N. Weber Ltd. (1994), 1994 CanLII 7300 (ON SC), 19 O.R. (3d) 779 (Ont. Ct. (Gen. Div.)), per Reilly J., at 784 – 785; More v. Weaver, [1928] 2 K.B. 520, [1928] All E.R. Rep. 160 (Eng. C.A.), per Scrutton L.J., at 522; Munster v. Lamb (1883), 11 Q.B.D. 588 (Eng. C.A.), per Brett M.R., at 603 – 605.

Protection of the integrity of the justice system lies at the core of the public policy rationales for absolute privilege.  As explained by the majority of the High Court of Australia in Mann v. O’Neill, [1997] H.C.A. 28, 71 A.L.J.R. 903, at 907:

[A]bsolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process.  It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal re-presentatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings.  Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the “safe administration of justice”.  [Citations omitted.  Emphasis added.]

Thus, where applicable, the doctrine of absolute privilege affords complete immunity to advocates and others for statements made by them in the course of judicial or quasi-judicial proceedings.  This extraordinary protection operates to bar a cause of action otherwise available at law: i.e., a claim for relief by a client who has suffered loss through the negligence of his or her counsel.  For this reason, the High Court of Australia has warned that any extension of the privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”: Mann, at p. 907, citing Williams, “Absolute Privilege for Licensing Justices”, (1909) 25 Law Quarterly Review 188 at 200 (other citations omitted).  I would echo these words of caution.”

         Amato v. Welsh, 2013 ONCA 258 (CanLII) at 34-38

“Property is equalized under the [Family Law Act] through the three- step process set out by Cory J. in Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, [1990] S.C.J. No. 4. First, a court determines the ownership of property under s. 4. Second, it calculates the equalization payment under s. 5(1). Third, and only after a determination of the first two steps, will a court turn its mind to what Cory J. described as “a last avenue of judicial discretion” provided by s. 5(6) to award an amount having regard to a spouse’s unconscionable conduct. This approach of determining ownership, equalization, and unconsionability, in that order, was confirmed in Berdette v. Berdette (1991), 1991 CanLII 7061 (ON CA), 3 O.R. (3d) 513, [1991] O.J. No. 788 (C.A.).

Clearly, a reapportionment of net family property under s. 5(6) is not a declaration about ownership of property, but only about distributing the value of the parties’ net family properties to redress unconsionable conduct. This is reinforced by the legislative restriction of s. 5(6)’s application to certain enumerated circumstances, none of which have to do with ownership, but all of which relate to fault-based conduct on the part of the other spouse. See Hamilton v. Hamilton, 1996 CanLII 599 (ON CA), [1996] O.J. No. 2634, 92 O.A.C. 103 (C.A.) and Brett v. Brett (1999), 1999 CanLII 3711 (ON CA), 44 O.R. (3d) 61, [1999] O.J. No. 1384 (C.A.).

Accordingly, a s. 5(6) reapportionment is only available on those rare occasions when a party is able to meet the high threshold required to establish unconscionability. Only in such an exceptional case does the legislature give a court the discretion to fashion a remedy.”

         Von Czieslik v. Ayuso, 2007 ONCA 305 (CanLII) at 28-30

“The appellant submits that the trial judge placed insufficient weight on the evidence of Dr. Jaffe. The trial judge preferred Dr. Butkowsky who had known the child and the family for nearly all of the child’s life. That he placed little weight on the evidence of Dr. Jaffe who never met the child, is not surprising. Indeed, it is not clear that Dr. Jaffe’s evidence was admissible in the first place.

Several trial judges have admitted critique evidence and then discounted its weight. However, other courts have determined that it is not admissible because it does not meet the criteria set out in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 SCR 9. In Mayfield v. Mayfield (2001) 2001 CanLII 28213 (ON SC), 18 R.F.L. (5^th) 328, Justice Wein ruled that evidence critiquing an assessment report was not admissible. After considering the threshold of “helpfulness” often applied in family law cases, she said:

Prior to the decision in Mohan, the general standard for admissibility of expert evidence was the relatively low threshold of “helpfulness.”….[S]ubsequent to Mohan, the Court in effect had been asked to function as a “gatekeeper,”….[T]he standard of helpfulness was explicitly rejected as being too low….(para. 34)

She went on to find that critique evidence will “rarely” be admissible. She said that:

[I]n most cases, it is simply not necessary or appropriate to have the parties bring forward the evidence of a collateral critique…it will rarely, if ever, be “necessary” to introduce the critique as original evidence or to call the critique as a witness. (para. 44)

Her words were cited with approval by this court in Sordi v. Sordi, 2011 ONCA 665. This was an appeal from a custody order. The trial judge had refused to admit critique evidence. Epstein J.A. “strongly supported” the view set out in Mayfield and said:

I find no fault with the trial judge’s refusal to admit the [critique] on the basis of (1) its frailties, and (2) the fact that its value – to impeach the report of the court-appointed expert – remained available to the appellant through cross-examination and, ultimately, argument. (para.14)

When these considerations are applied to Dr. Jaffe’s report, it is evident why the trial judge gave it little weight. Dr. Jaffe’s self-described task was to “raise concerns” about the court-appointed assessment. It would be difficult to find that such evidence meets the criteria of Mohan.

I too support the view that critique evidence is rarely appropriate. It generally – as here – has little probative value, adds expense and risks elevating the animosity between the parties.”

M. v. F., 2015 ONCA 277 (CanLII) at 29-34

“There is a division in the case law regarding the applicability of the general two-year limitation period prescribed by s. 4 of the Limitations Act, 2002, to cases of ongoing oppression. The positions of the parties on this appeal reflect this division.

…

In my view, an oppression remedy claim under the OBCA [Ontario Business Corporations Act] is subject to the general two-year limitation period prescribed by s. 4 of the Limitations Act, 2002. Oppression is not listed under s. 16 as a claim to which no limitation period applies, nor is it exempted under s. 19 of the legislation. Special circumstances are also not available to extend the limitation period.”

            Maurice v. Alles, 2016 ONCA 287 (CanLII) at 36 & 43

“Applying the hybrid approach, the application judge considers the intention of the parents that the move would be temporary, and the reasons for that agreement. But the judge also considers all other evidence relevant to the child’s habitual residence. The court must do so mindful of the risk of overlaying the factual concept of habitual residence with legal constructs like the idea that one parent cannot unilaterally change a child’s habitual residence, or that a parent’s consent to a time-limited stay cannot shift the child’s habitual residence. The court must also avoid treating a time-limited consent agreement as a contract to be enforced by the court. Such an agreement may be valuable as evidence of the parents’ intention, and parental intention may be relevant to determining habitual residence. But parents cannot contract out of the court’s duty, under Canadian laws implementing the Hague Convention, to make factual determinations of the habitual residence of children at the time of their alleged wrongful retention or removal.”

Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (CanLII) at 73

“An Ontario court cannot assume jurisdiction to make a custody order if at the time of the application in Ontario, an application for custody was pending in another place where the child is habitually resident. In other words, a party cannot ask an Ontario court to assume jurisdiction to avoid proceedings already started elsewhere.”

Ojeikere v. Ojeikere, 2018 ONCA 372 (CanLII)