Each Week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.
Ireland v. Ireland
This case involved a mother's resistance to the enforcement of a foreign custody order. The Superior Court of Fulton Country in the State of Georgia granted sole legal custody of the parties' children to the respondent father. The appellant failed to attend the Georgia Court but she was given an opportunity to participate via Skype. However, Tuscon J. stated that the appellant neglected to locate a computer to access Skype. As a result, she failed to present any evidence establishing that awarding her sole legal and physical custody of her children would be in their best interests.
Ireland v. Ireland
This case involved a mother's resistance to the enforcement of a foreign custody order. The Superior Court of Fulton Country in the State of Georgia granted sole legal custody of the parties' children to the respondent father. The appellant failed to attend the Georgia Court but she was given an opportunity to participate via Skype. However, Tuscon J. stated that the appellant neglected to locate a computer to access Skype. As a result, she failed to present any evidence establishing that awarding her sole legal and physical custody of her children would be in their best interests.
The
following month, the appellant filed an application in the Ontario Superior
Court of Justice for custody of the parties' children, child support and a
restraining order. Her position was that the children would suffer
serious harm if they were returned to the respondent because they had
allegedly previously been subject to physical and emotional abuse during the parties'
relationship. The respondent moved to have the order of Tuscon J. of the
Georgia Court recognized and enforced in Ontario pursuant to s.41 of the Children's Law Reform Act. The
appellant applied for and was granted an adjournment on March 24, 2011 until April 7, 2011, to the motion in order to
give her time to retain counsel. During
the intervening period, the appellant applied to the Superior Court for another adjournment on
the basis that she wanted to change the venue of the hearing from Oshawa to
Toronto, which was rejected by the court.
The motion proceeded on April 7, 2011 and Ferguson J. enforced the Georgia Court's order. The
mother was ordered to surrender the parties' children to the father. The mother subsequently appealed Ferguson J.'s enforcement of the Georgia Court's order and her
decision not to allow her to present viva voce evidence during the
aforementioned motion.
The Court
denied the appellant's request for an order that she be permitted to request
various organizations to provide her with copies of all documents relating to
her, the respondent, or their children. The Court noted that the appellant failed
to request the documents at the appropriate stage in the proceeding and her
litigation tactics unnecessarily expanded and slowed the proceedings.
Moreover, if the Court permitted the documents, the appellant would have to
make a fresh evidence application to have them admitted on the
appeal. The Court held that the documents would not meet the test for
the introduction of fresh evidence on appeal, set out in R v Palmer.
The Court
granted the respondent's motion for security of costs and ordered the appellant
to pay the respondent $10,000.00 in costs, holding that her appeal was devoid of any merit and noting her pattern of delaying and expanding litigation.
The Canadian
Broadcasting Corporation ("CBC") had applied to the Superior Court for an
order granting it access to a video that was entered as an exhibit at the 2008 bail hearing of the appellant Ishak Omar. The Ontario Court of Justice had
custody of the video. The application judge granted CBC access to the video on
the condition that it would obscure Mr. Omar's identity in any
subsequent use of the video. Mr. Omar appealed the order.
The CBC
moved to quash the appeal on the basis that the Court had no jurisdiction and
that Mr. Omar's appeal is to the Supreme Court of Canada with leave from that
court pursuant to the Supreme
Court Act. The appellant submitted that the appropriate forum for this
appeal was the Ontario Court of appeal under s.6(1) of the Courts of Justice
Act.
The Court
dismissed the respondent's motion to quash the appeal. The Court's jurisdiction
to hear the appeal turned on the characterization of the proceedings before the
application judge. If the appeal was civil in nature then the Court of
Appeal has proper jurisdiction. However, if the proceeding was characterized as criminal,
the appellant's only route is to the Supreme Court of Canada with leave of that
court. Counsel for the respondents argued that the video came into possession
of the Ontario Court of Justice in the course of a criminal proceeding and that
this application was treated as a criminal matter in the Superior Court.
The appellant characterized the proceedings as civil, as the CBC sought
access to his property. In rejecting the respondent's arguments, the
Court noted that that the order under appeal was not made in the course of a
criminal proceeding and had no effect on any ongoing criminal proceeding.
Moreover, the Court stated that the appellant's fair trial rights were no longer at
play and that the order under appeal did not rescind or vary any order made in
the appellant's criminal proceedings which concluded in 2009. Therefore,
the Court concluded that the appeal was properly brought to the
Court of Appeal pursuant to s. 6(1) of the Courts
Justice Act.
The
appellants, Canril Corporation, appealed a judgment of the Superior Court of
Justice holding it liable in negligence and nuisance for water damage caused
to the neighbouring basement of the respondent Donley Investments Limited. The appellants submitted that the trial judge erred both law and in fact.
The Court agreed with the appellant's position and set aside the trial
judgment and ordered a new trial.
The Court of Appeal held that the trial judge made three significant legal errors. The first occurred when the trial judge erroneously shifted the burden of proof onto the plaintiffs to rebut the presumption of negligence when in fact there was no scientific confirmation of causation that water flowed from the
appellants' building to the respondent's premises.
The Court found that the trial
judge made a further, substantial legal error when she held that the
appellants had owed a duty to the respondents to join them in their claim
against the City for the water infiltration that occurred in February 2003. Both the appellants
and respondents' buildings were infiltrated with water as a result of an open
city water main. The appellants made a claim against the City for the damage to
their basement and suggested that the respondent follow suit. The respondent
failed to adhere to the appellant's request. The Court stated that they
did not see any legal basis for the trial judge's imposition of a duty to
assert its claim.
Additionally, the appeal court ruled that the trial judge erred in her causation analysis. There was
no scientific evidence establishing a causal link between the damage to the
respondent's building and any wrong committed by the appellants.
The trial judge made no reference to the "but for" test for
causation in her reasons for judgment. Instead, the trial judge applied a more lenient test
for causation applied in Athey
v. Leonati. The Court asserted that the trial judge's omission in applying the standard "but for" test
for causation was not justified.
- Alim Ramji, Toronto
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