Month: November 2020

“The quantum of income attributable to the husband is a finding of fact made by the trial judge on the basis of the evidence adduced by both parties.  In Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, the Supreme Court of Canada has clearly told appellate courts not to interfere with a factual finding of a trial judge in the absence of palpable and overriding error, including a misapprehension of the evidence.

In my view, the trial judge made no such error and did not misapprehend the evidence.  The trial judge was not obligated to accept either the husband’s evidence about his minimal income or the wife’s expert evidence as to the husband’s 1997 and projected income.  The trial judge was entitled to attribute income based on his review of the whole of the evidence. On the evidence called at trial, he was entitled to his determination that neither party had persuaded him of a material change in the husband’s income since the divorce.  There is no reason to interfere with his conclusion.”

Pirner v. Pirner, 2005 CanLII 44166 (ON CA)

“Defamation is a strict liability tort. The plaintiff must prove three things to obtain judgment and be awarded damages: “(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff”:  Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] 3 S.C.R. 640 at para. 28.”

Kumar v. Khurana, 2019 ONSC 6825 (CanLII) at 13

“We find no error in the motion judge’s disposition of the motions.

Though there was a supervening event (the announcement of a new government policy), the supervening event did not constitute frustration of the agreement, as the announcement was not such that “performance of the contract becomes a ‘thing radically different from that which was undertaken by the contract’”: Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 53.

Frustration applies to contracts including real estate transactions, when a supervening event alters the nature of the appellant’s obligation to contract with the respondent to such an extent that to compel performance despite the new and changed circumstances would be to order the appellant to do something radically different from what the parties agree to under their contract: Naylor, at para. 55.

A contract is not frustrated if the supervening event was contemplated by the parties at the time of contracting and was provided for or deliberately chosen not to be provided for in the contract: Capital Quality Homes Ltd. v. Colwyn Construction Ltd. (1975), 1975 CanLII 726 (ON CA), 9 O.R. (2d) 617 (C.A.), at p. 626.

A party claiming that a contract has been frustrated has the onus of proving the constituent elements necessary to establish frustration: Bang v. Sebastian, 2018 ONSC 6226, at para. 30; Gerstel v. Kelman, 2015 ONSC 978, 40 B.L.R. (5th) 314.”

Perkins v. Sheikhtavi, 2019 ONCA 925 (CanLII) at 13-17

“Section 16(10) of the Divorce Act states that when the court makes a custody and access order, “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” The court must also consider “the willingness of the person for whom custody is sought to facilitate such contact”.

When considering these sections, the courts have noted that a parent shall not be permitted to deprive a child of the benefit of the other parent’s input on childcare decisions without good reason: see Woolrich v. Woolrich, 2005 SKQB 72 (CanLII), at para. 26; and Mikan v. Mikan, 2004 CanLII 5062 (ON SC), 2004 CarswellOnt 772 (SCJ), at paras. 22-23.

At the same time, in its interpretation of section 16(10) of the Divorce Act, the Supreme Court of Canada recognized that the ‘maximum contact’ principle is not absolute; it must be reconciled with the best interests of the child. If circumstances are such that the child’s best interests might be compromised by the maximum contact principle, then the said principle may be modified or restricted to meet the particular circumstances, see Young at paras.117-118.

The ‘maximum contact’ principle is grounded on the view that maximum contact with both parents is generally in a child’s best interests. Young children with attachments to both parents need sufficient contact with both of them, without prolonged separations. This is what will enable them to maintain meaningful and close relationships with their parents. When seeking to resolve a custody dispute, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children: see Chin Pang v. Chin Pang, 2013 ONSC 2564, 2013 CarswellOnt 7824  at para. 122 (Chin Pang); Huisman v. Stefaniw (1997), 1997 CanLII 24463 (ON SC), 26 R.F.L. (4^th) 406, 1997 CarswellOnt 100 (Ont. Gen. Div.); and Boukema v. Boukema (1997), 1997 CanLII 12247 (ON SC), 31 R.F.L. (4th) 329, 1997 CarswellOnt 3115 (Ont. Gen. Div.).”

Ahmad v. Ahmad, 2019 ONSC 6804 (CanLII) at 95-98

“In Water’s Law of Trusts in Canada, at p. 362, a resulting trust is described as follows:

Broadly speaking, a resulting trust arises whenever legal or equitable title to property is in one party’s name, but that party, because he is a fiduciary or gave no value for the property, is under an obligation to return it to the original owner, or to the person who did give value for it.

In the recent decision of Drakoulakos v. Stirpe [2017] O.J. No. 2506, Perell, J. defined a resulting trust as follows at para. 46:

On the assumption that there is no substantive merit to the Defendants’ defence, the material facts in the immediate case constitute a claim for a resulting trust. A resulting trust arises when title to the property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: Pecore v. Pecore, 2007 SCC 17; Andrade v. Andrade, 2016 ONCA 368. In Kerr v. Baranow, 2011 SCC 10 [2011] 1 S.C.R. 269, at para. 12, Justice Cromwell stated that it has been settled since at least 1788 in England that the trust of a legal estate results to the person who advances the purchase money.

The concept of a purchase money resulting trust is described at para. 1 in the Supreme Court of Canada’s decision of Nishi v. Rascal Ltd, 2013 SCC 33 (CanLII), [2013] 2 S.C.R. 438 as follows:

A purchase money resulting trust arises when a person advances funds to contribute to the purchase price of a property, but does not take legal title to that property.  Where the person advancing the funds is unrelated to the person taking title, the law presumes that the parties intended for the person who advanced the funds to hold a beneficial interest in the property in proportion to that person’s contribution.  This is called the presumption of resulting trust.”

Sampath v. Deopersad, 2017 ONSC 7055 (CanLII) at 23-25

“A constructive trust is a vehicle of equity through which one person is required by operation of law — regardless of any intention — to hold certain property for the benefit of another (Waters’ Law of Trusts in Canada (4th ed. 2012), by D. W. M. Waters, M. R. Gillen and L. D. Smith, at p. 478). In Canada, it is understood primarily as a remedy, which may be imposed at a court’s discretion where good conscience so requires. As McLachlin J. (as she then was) noted in Soulos:

. . . under the broad umbrella of good conscience, constructive trusts are recognized both for wrongful acts like fraud and breach of duty of loyalty, as well as to remedy unjust enrichment and corresponding deprivation.  . . . Within these two broad categories, there is room for the law of constructive trust to develop and for greater precision to be attained, as time and experience may dictate. [Emphasis added; para. 43.]

What is therefore crucial to recognize is that a proper equitable basis must exist before the courts will impress certain property with a remedial constructive trust. The cause of action in unjust enrichment may provide one such basis, so long as the plaintiff can also establish that a monetary award is insufficient and that there is a link between his or her contributions and the disputed property (Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at p. 997; Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269, at paras. 50-51). Absent this, a plaintiff seeking the imposition of a remedial constructive trust must point to some other basis on which this remedy can be imposed, like breach of fiduciary duty.”

Moore v. Sweet, 2018 SCC 52 (CanLII) at 32-33

“The Supreme Court of Canada gave guidance on the approach to be taken to claims based on resulting and constructive trusts in Rathwell v. Rathwell (1978).  In that case, the parties married in 1944 and for the next 30 years, engaged in farming. They opened a joint bank account into which they deposited all monies they received and from which they paid their expenses. They used the funds in the account to make a down payment on their farm, which was registered in Mr. Rathwell’s name alone.  They did not discuss the beneficial ownership of the property, except to say that it was “ours”.  They worked together as husband and wife in the farming business, Mrs. Rathwell doing the chores, gardening, preparing meals, providing transportation for hired help, keeping records, and raising and educating the parties’ four children.

The Supreme Court of Canada held that Mrs. Rathwell was entitled to succeed, whether based on the doctrine of resulting trust or the doctrine of constructive trust.  The Court distinguished between the two forms of trust.  It stated that to establish a resulting trust, a party must prove a common intention, manifested by words or acts, that the party not on title acquire a beneficial interest in the property.  For constructive trusts, no intention is required. 

Dickson J. noted that resulting trusts are as firmly grounded in the settlor’s intent as are express trusts, but with the difference that the intent is inferred or presumed as a matter of law from the circumstances.  A constructive trust is imposed irrespective of intention:

Where a common intention is clearly lacking and cannot be presumed, but a spouse does contribute to family life, the court has the difficult task of deciding whether there is any causal connection between the contribution and the disputed asset.  It has to assess whether the contribution was such as enabled the spouse with title to acquire the asset in dispute.  That will be a question of fact to be found in the circumstances of the particular case.  If the answer is affirmative, then the spouse with title becomes accountable as a constructive trustee.  The court will assess the contributions made by each spouse and make a fair, equitable distribution having regard to the respective contributions.  The relief is part of the equitable jurisdiction of the court and does not depend on evidence of intention.

The constructive trust, as so envisaged, comprehends the imposition of trust machinery by the court in order to achieve a result consonant with good conscience.  As a matter of principle, the court will not allow any man unjustly to appropriate to himself the value earned by the labours of another.  That principle is not defeated by the existence of a matrimonial relationship between the parties; but, for the principle to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason such as a contract or disposition of law, for the enrichment. [Emphasis added.]”

Hardayal v. Asrula, 2018 ONSC 6948 (CanLII) at 189-191

“Mr. Sherlock does not argue that the time spent by Ms. Mullin’s lawyers was excessive.  He also has not tendered his own lawyers’ Bill of Costs.  As noted in my reasons dated November 10, 2017, when one party attacks another’s costs as excessive, but does not put its own dockets before the court, the attack “is no more than an attack in the air.”  In Risorto v. State Farm Mutual Automobile Insurance Co., (2003), Winkler J., then a motion judge, stated:  

The attack on the quantum of costs, insofar as the allegations of excess are concerned, in the present circumstances is no more than an attack in the air.  I note that State Farm has not put the dockets of its counsel before the court in support of its submission. Although such information is not required under Rule 57 in its present form, and the rule enumerates certain factors which would have to be considered in exercising the discretion with respect to the fixing of costs in any event, it might still provide some useful context for the process if the court had before it the bills of all counsel when allegations of excess and “unwarranted over-lawyering” are made.  In that regard, the court is also entitled to consider “any other matter relevant to the question of costs”. (See Rule 57.01(1)(i).  In my view, the relative expenditures, at least in terms of time, by adversaries on opposite sides of a motion, while not conclusive as to the appropriate award of costs, is still, nonetheless, a relevant consideration where there is an allegation of excess in respect of a particular matter: Risorto v. State Farm Mutual Automobile Insurance Co. (2003), 2003 CanLII 43566 (ON SC), ONSC 43566 (CanLII), 64 O.R. (3d) 135, at para. 10 (S.C.), per Winkler J., cited in Springer v. Aird & Berlins LLP (2009), 2009 CanLII 26608 (ON SC), 2009 ONSC 26608 (CanLII), 74 C.C.E.L.(3d) 243 (Ont. S.C.), at paras. 10-17. [Emphasis added.]”

Mullin v. Sherlock, 2018 ONSC 6933 (CanLII) at 32

“Section 60 of Ontario’s Evidence Act provides that where a foreign court has commissioned the taking of evidence for a purpose for which a letter of request could be issued under the rules of the Ontario court, the Ontario court may order the examination of the witness before the person appointed, and in the manner directed by the commission; and it can order the production of documents; and it may give directions as to the time and place of the examination and enforce the order as it would a local order. The Canada Evidence Act contains a comparable provision: Borelli v. Tam, [2006] O.J. No. 3714 (S.C.J.).

The enforcement of Letters Rogatory (now called letters of request in Ontario) is based on the principle of comity of nations: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 42; AstraZeneka L.P. v. Wolman, [2009] O.J. No. 5344 at para. 17 (S.C.J.); R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392 at para. 18. In Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077 at para. 31. Justice La Forest defined comity as “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws”. As a matter of comity, the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction out of mutual deference and respect. A foreign request is given full force and effect unless it is contrary to the public policy of the jurisdiction to which the request is directed or otherwise prejudicial to its sovereignty or to its citizens: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264; Connecticut Retirement Plans and Trust Funds v. Buchan, 2007 ONCA 462 (CanLII), [2007] O.J. No. 2492 (C.A.); R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392; Gulf Oil Corp. v. Gulf Canada Ltd., 1980 CanLII 192 (SCC), [1980] 2 S.C.R. 39.

The enforcement of Letters Rogatory is discretionary: Presbyterian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822 (C.A.). The requesting court’s decision is entitled to considerable deference and the court receiving the request does not sit as an appeal court from the decision of the requesting court: Azcar v. Royal Bank of Canada, 2018 ONSC 4048 at para. 16 (Ont. S.C.J.); Triexe Management Group Inc. v. Fieldturf International Inc., [2005] O.J. No. 4359 at para 21(Ont. S.C.J.).

Nevertheless, although the domestic court considering whether to enforce Letters Rogatory does not function as an appellate court in respect of the foreign requesting court and will give deference to the conclusions of that court, the domestic court must independently reach its own conclusions based on the evidence proffered to determine whether the request complies with the law of the domestic courtAker Biomarine AS v. KGK Synergize Inc., 2013 ONSC 4897 at para. 26; Connecticut Retirement Plans & Trust Funds v. Buchan, 2007 ONCA 462 at para. 13; Presbyterian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822 at para. 32 (C.A.); Fecht v. Deloitte & Touche (1996), 1996 CanLII 11782 (ON SC), 28 O.R. (3d) 188 (H.C.J.), aff’d (1997) 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417 at para. 18 (C.A.).

In this last regard, the criteria for the enforcement of letter of request from a foreign jurisdiction are: (1) the evidence is relevant; (2) the evidence is necessary and will be adduced at trial or for a pre-trial hearing:
Azcar v. Royal Bank of Canada, 2018 ONSC 4048 at para. 30; Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 63, if admissible; (3) the evidence is not otherwise obtainable; (4) the order sought is not contrary to public policy; (5) the documents sought are identified with reasonable specificity; and (6) the order sought is not unduly burdensome, bearing in mind what the witnesses will be required to do, and produce, were the action to be tried: Intelsat USA Sales LLC v. Hyde, 2015 ONSC 5680; Aker Biomarine AS v. KGK Synergize Inc., 2013 ONSC 4897; Lafarge Canada Inc. v. Khan (2008), 2008 CanLII 6869 (ON SC), 89 O.R. (3d) 619 (S.C.J.); Connecticut Retirement Plans & Trust Funds v. Buchan, 2007 ONCA 462; MAN Aktiengesellschaft v. Valentini (2006), 2006 CanLII 23922 (ON SC), 81 O.R. (3d) 680 (S.C.J.); Presbyterian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822 (C.A.); Borelli v. Tam, [2006] O.J. No. 3714 (S.C.J.); Presbyterian Church of Sudan v. Tallisman Energy Inc., 2005 ABQB 920; Safety-Kleen Corp. v. Kroeze, [2003] O.J. No. 4718 (S.C.J.); OptiMight Communications, Inc. v. Innovance, Inc., 2002 CanLII 41417 (ON CA), [2002] O.J. No. 577 (C.A.); King v. KPMG, [2003] O.J. No. 2881 (S.C.J.); Fecht v. Deloitte & Touche (1996), 1996 CanLII 11782 (ON SC), 28 O.R. (3d) 188 (H.C.J.), aff’d (1997) 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417 (C.A.); Re Friction Division Products Inc. v. E. I. Du Pont de Nemours & Co. (No. 2) (1986), 1986 CanLII 2827 (ON SC), 56 O.R. (2d) 722 (H.C.J.).

These factors are guideposts, not pre-conditions to the enforcement of a letter of request: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at paras. 56-71; Disabatino v. National Gallery of Canada, 2016 ONSC 4656. The factor of the evidence being not otherwise available means that evidence of the same value cannot be obtained other than from the person to be examined: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 64; McFadden Lyon Rouse LLC v. Lookin, 2012 ONSC 2243.

The unwillingness of a witness to testify voluntarily in a foreign proceeding may be taken into account in determining that the evidence would not otherwise be obtainable: Ontario Public Service Employees Union Pension Trust Fund (Trustees of) v. Clark (2005), 2005 CanLII 51027 (ON SC), 77 O.R. (3d) 38 (S.C.J.), affd 2006 CanLII 20839 (ON CA), [2006] O.J. No. 2475 (C.A.).

The public policy test component of responding to a letter of request requires that the court consider whether the request imposes any limitation or infringement on Canadian sovereignty including an assessment of whether granting the request would give extra-territorial authority to foreign laws that violate relevant Canadian laws, would infringe on recognized Canadian moral or legal principles, or  would impose an undue burden on or do prejudice to the individual whose evidence is requested: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 58; Treat America Ltd. v. Nestle Canada Inc., 2011 ONCA 560 at para. 12; France (Republic) v. De Havilland Aircraft of Canada Ltd. (1991), 1991 CanLII 7180 (ON CA), 3 O.R. (3d) 705 at para. 37 (C.A.).

In addition to its role with respect to the enforcement of letters of request, the public policy defence is a factor in determining whether a domestic court should apply foreign law and whether a domestic court should enforce a foreign judgment. In all these contexts, in deference to the foreign court, what is contrary to the public policy of the domestic court is viewed narrowly. As a matter of public policy, where foreign law is applicable, Canadian courts will generally apply the foreign law even if its results are harsher or contrary to domestic law unless the foreign law is not consonant with the domestic system of justice and its fundamental values, which rarely has been established: Beals v. Saldanha, 2003 SCC 72 (CanLII), [2003] 3 S.C.R. 416 at paras. 71-77;  Society of Lloyd’s v. Meinzer (2001), 2001 CanLII 8586 (ON CA), 55 O.R. (3d) 688 (C.A.), leave to appeal to the S.C.C. ref’d; United States of America v. Levy, [2002] O.J. No. 2298 (S.C.J.); United States of America v. Ivey (1995), 1995 CanLII 7241 (ON SC), 26 O.R. (3d) 533 (Gen. Div.); Boardwalk Regency Corp. v. Maalouf (1992), 1992 CanLII 7528 (ON CA), 6 O.R. (3d) 737 (C.A.); Sigurdson v. Farrow (1981), 1981 CanLII 1062 (AB QB), 15 Alta. L.R. (2d) 180 (Q.B.); Block Bros. Realty Ltd. v. Mollard and Detra Holdings Ltd. (1981), 1981 CalII 504 (BC CA), 27 B.C.L.R. 17 (C.A.); Canadian Acceptance Corp. Ltd. v. Matte (1957), 1957 CanLII 155 (SK CA), 9 D.L.R. (2d) 304 (Sask. C.A.); National Surety Co. v. Larsen, 1929 CanLII 265 (BC CA), [1929] 4 D.L.R. 918 (B.C.C.A.).

For the foreign law judgment or order not to be applied or enforced, the foreign law must be contrary to the most basic and fundamental values of the domestic jurisdiction. If foreign law is to be refused effect on public policy grounds, the foreign law must violate some fundamental principle of justice, be repugnant to public or moral interests, or some deep-rooted tradition of the domestic jurisdiction: Society of Lloyd’s v. Meinzer (2001), 2001 CanLII 8586 (ON CA), 55 O.R. (3d) 688 (C.A.), leave to appeal to the S.C.C. ref’d; United States of America v. Ivey (1995), 1995 CanLII 7241 (ON SC), 26 O.R. (3d) 533 (Gen. Div.). The public policy defence is narrow and it is directed at the concept of repugnant laws and not repugnant facts: Beals v. Saldanha, 2003 SCC 72 (CanLII), [2003] 3 S.C.R. 416 at para. 71; Stern Estate v. Solehdin, [2010] O.J. No. 863 at para. 47.”

Glegg v. Glass, 2019 ONSC 6623 (CanLII) at 111-118

“In Guelph (City) v. Super Blue Box Recycling Corp., (2004) 2004 CanLII 34954 (ON SC), 2 C.P.C. (6th) 276, at paras. 74-100, Justice Corbett, summarized various principles regarding the law of privilege which include the following:

•    Solicitor-client privilege is a “fundamental civil and legal right”;

•    The functional purpose of solicitor-client privilege goes to the very heart of the administration of the legal system. All persons, whether natural, corporate, or governmental, must have access to expert legal counsel without fear that this recourse may be used to their detriment;

•    Where legal advice of any kind is sought from a professional legal advisor in [his or her] capacity as such, the communications relating to the purpose made in confidence by the client are at [its] instance permanently protected from disclosures by [the client] or by the legal advisor; except that the protection be waived;

•   There are limited circumstances where privileged communications may nonetheless be compelled from a party asserting its privilege – waiver, furtherance of unlawful conduct, risk to public safety, wrongful conviction, abrogation by statute;

•   Once it is established that a communication is subject to solicitor-client privilege, the onus rests on the party seeking to overcome the privilege to establish that the communication ought to be compelled from the party asserting the privilege;

•    Privilege may be waived expressly or implicitly. When privilege is waived, the waiver applies to the entire subject-matter of the communications: a party may not “cherry-pick” privileged communications, disclosing what is helpful for that party and claiming privilege over the rest; and

•   Two circumstances may give rise to implicit waiver : (1) waiver by disclosure – once the privileged communication has been disclosed, the privilege that attaches to it is said to be lost; (2) waiver by reliance – by pleading or otherwise relying upon the privileged communication as part of a substantive position taken in the legal proceedings.”

Leitch v. Novac, 2017 ONSC 6888 (CanLII) at 60