1. Sgromo v. Scott, 2018 ONCA 5 (Laskin, Miller and Paciocco JJ.A.), January 8, 2018 4. Sultan v. Hurst, 2018 ONCA 37 (Feldman, Pepall and Huscroft JJ.A.), January 17, 2018
1. Sgromo v. Scott, 2018 ONCA 5 (Laskin, Miller and Paciocco JJ.A.), January 8, 2018
The appellant brought four related actions arising out of various dealings with the respondents. Although he was a Canadian citizen and resided in Ontario, the appellant lived in the United States during the period of time at issue in the lawsuits. The impugned conduct of the various respondents also took place in the United States.
The respondents brought motions to dismiss or stay the appellants’ actions, principally on the ground that the Ontario court had no jurisdiction because there was no real and substantial connection between the litigation and Ontario. The motion judge granted the motions and stayed the appellant’s actions.
The Court of Appeal agreed that Ontario had no jurisdiction over the claims.
In support of his assertion that Ontario did have jurisdiction, the appellant relied on two applications made by the respondents requesting permission for him to act as a consultant in the United States. Each application was made at the Toronto airport to Homeland Security, whose authorization the appellant required to work in the United States. The court held that neither of these applications established a real and substantial connection to Ontario. Neither application constituted a contract. Moreover, any consulting arrangement or other business relationship between the parties took place in California.
The Court of Appeal also rejected the appellant’s submission that because the products of some of the respondents were advertised, marketed and distributed in Ontario, the respondents were carrying on business in the province, thereby satisfying one of the presumptive connecting factors for jurisdiction under the principles enumerated by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17. The court cautioned against assuming “universal jurisdiction” and emphasized that “carrying on business” requires some form of actual presence in the jurisdiction, such as maintaining an office or regularly visiting the territory. As the Supreme Court explained in Van Breda, active advertising in a jurisdiction is not enough on its own to establish that a party was carrying on business in that jurisdiction.
The appeals were dismissed.
2. Ramadhin v. New Venture Group Inc., 2018 ONCA 6 (Doherty, Benotto and Huscroft JJ.A.), January 5, 2018
The issue in this was case was when the limitation period began to run: at the time the Agreement of Purchase and Sale (“APS”) was entered into by the parties, or from closing.
The appellant realtor sold the respondent’s property by way of power of sale. The respondent sued him alleging improvident sale and negligence. The appellant moved for summary judgment on the ground that the action was statute barred (i.e., because the limitation period began to run when the APS was signed). The motion judge, however, held that the limitation period started to run when the sale closed, and dismissed the motion.
Before the Court of Appeal, the appellant argued that the pleadings alleged negligence for actions predating the APS, such as obtaining defective appraisals and negligent marketing. The facts, the appellant argued, were known when the parties entered the APS.
The Court of Appeal agreed with the motion judge that while the facts giving rise to the alleged negligence may have arisen before the APS was signed, any damage did not accrue until closing.
The appeal was dismissed.
3. Brown v. Canada (Public Safety), 2018 ONCA 14 (Simmons, Rouleau and Brown JJ.A.), January 11, 2018
This Charter damages case arose from the appellant’s detention for the purposes of deportation.
The appellant was a Jamaican citizen who arrived in Canada in 1983 at the age of eight. He became a permanent resident the following year. Between 1999 and 2010, he amassed 18 criminal convictions, some of them for violent offences. In 2005, his permanent residency was terminated and a removal order from Canada was issued because of serious criminality.
Prior to being deported, the appellant was detained for five years in a maximum security institution. In January 2011, after he had served his criminal sentence, the appellant was detained by the Canada Border Services Agency (“CBSA”) for the purpose of executing the removal order. Shortly thereafter, he was released on terms and conditions. In September 2011, however, the appellant was detained for breaching the conditions. The detention was considered necessary as he was found to be a danger to the public and a flight risk.
Over the next five years, the appellant’s detention was renewed every 30 days by the Immigration Division of the Immigration and Refugee Board on the basis that he continued to be a flight risk as well as a danger to the public, and that the Minister was exercising due diligence in its efforts to obtain the documents required for effecting the removal. The appellant’s planned removal encountered numerous delays. He was ultimately deported in September 2016.
The appellant had previously brought an application for habeas corpus and damages under s. 24(1) of the Canadian Charter of Rights and Freedoms based on alleged violations of his section 7, 9 and 12 rights. Because he was deported before the application was decided, the habeas corpus portion of the application was dismissed as moot. The appellant nonetheless proceeded with the Charter damages aspect of the application, maintaining that prior to being deported the detention he suffered was cruel, unusual, arbitrary, and indefinite.
The application for Charter damages was dismissed.
Rouleau J.A., writing for the Court of Appeal, held that the application judge did not err in the analysis of the section 7 and 9 issues. Rouleau J.A. noted that after considering all of the evidence, the application judge concluded that the appellant’s detention had not become unlawful. The Immigration Division of the Immigration and Refugee Board had made the fact-driven determination that the appellant constituted a flight risk as well as a danger to the public. These determinations were entitled to deference. Moreover, the Immigration Division followed the statutory process for continuous and regular reviews outlined in the Immigration and Refugee Protection Act, S.C. 2001, c. 27, a quasi-judicial process recognized by the courts as being procedurally fair. Finally, the detention did not become illegal because there was a reasonable prospect of the removal being effected throughout the process.
Rouleau J.A. further held that there was no basis to interfere with the application judge’s conclusion that there was no violation of s. 12 of the Charter. In particular, there was no error in the application judge’s determination that the Immigration Division process for review of the appellant’s detention was fair and lawful. As well, on the record before him, it was open to the application judge to find that there had been no lack of diligence on the part of the CBSA in effecting the appellant’s removal and that the delays were largely beyond the CBSA’s control. It was not up to the Court of Appeal to reweigh all the evidence.
The application judge was also familiar with and correctly applied the relevant jurisprudence. After considering the length and conditions of detention as well as the appellant’s mental health, he concluded that the treatment received was not so excessive as to outrage societal standards of decency. Whether a detention is cruel and unusual depends on the specific circumstances of each case, which, Rouleau J.A. held, were properly assessed by the application judge in this case.
The appeal was dismissed.
4. Sultan v. Hurst, 2018 ONCA 37 (Feldman, Pepall and Huscroft JJ.A.), January 17, 2018
The appellant appealed the decision of the motion judge refusing to validate the late service of his Statement of Claim. The claim was issued within the two year limitation period, but was served more than two years after the expiry of the six month limit to serve a Statement of Claim set out in Rule 14.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As such, the motion judge’s decision effectively prevented the appellant from pursuing his claim.
On appeal, the appellant raised two alleged errors by the motion judge. First, he argued that the respondent had waived the late service by delivering a Statement of Defence. The Court of Appeal did not accept this submission, as the respondent specifically pleaded and relied on the irregularity as part of its pleading.
The second alleged error was regarding the motion judge’s conclusion that there was prejudice as a result of the delay. The respondent had given evidence that its opportunities to conduct a defence medical assessment, timely surveillance of the plaintiff, and a full investigation, were hampered by the delay. The court held that the motion judge was entitled to accept this evidence. It was also open to the motion judge to find that the respondent had been prejudiced in its ability to obtain timely OHIP records, which are only obtainable for seven years from the date of request.
The appeal was dismissed.
5. Bennett v. Bennett Estate, 2018 ONCA 45 (Feldman, MacPherson and Huscroft JJ.A.), January 22, 2018
The Bennett brothers – Donald, John, Dennis, and George – divided a large parcel of land given to them by their father into separate properties, and entered into an agreement establishing a right of first refusal in the event of a sale of any of the properties by any of them. The relevant portion of the agreement provided:
IN CONSIDERATION of the sum of ONE DOLLAR ($1.00) now paid by each party to the other, the receipt whereof is by each party acknowledged, each party grants unto the other parties a first right of refusal to acquire ownership of that party’s real estate herein identified upon the terms and conditions herein.
Donald Bennett died in 2006 and was survived by his wife Darlene. John died in 2009, and his property was transferred to his wife Joyce and her sons.
In 2012, Joyce Bennett and her sons proposed to sell their property to A. Miron Topsoil Ltd. (“Miron”). The agreement of purchase and sale acknowledged the right of first refusal agreement. Notice of the offer to sell to Miron was delivered to the surviving brothers, Dennis and George, as well as to Darlene. The two surviving Bennett brothers did not seek to exercise their right, but Darlene provided notice that she was exercising the right to purchase the property and provided the required deposit.
Darlene Bennett and Miron both took the position that they were entitled to purchase the property. In the ensuing litigation, Ms. Bennett brought a motion for summary judgment seeking an order of specific performance. Miron also brought a motion for summary judgment, requesting an order dismissing Ms. Bennett’s claim on the basis that she was not entitled to exercise the right of first refusal.
The motion judge found in Miron’s favour. In particular, Koke J. held that the right of first refusal agreement was limited to the parties to the agreement. The right did not extend to family members of the parties. As such, Ms. Bennett could not exercise the right.
The parties had agreed that Donald Bennett’s estate was entitled to exercise the right of first refusal and that Ms. Bennett was entitled to exercise that right on behalf of her late husband’s estate. However, Ms. Bennett had not brought her claim on behalf of the estate, but only in her capacity as a family member.
Ms. Bennett appealed.
Huscroft J.A., writing for the court, held that while Ms. Bennett may have been able to establish an entitlement to exercise the right of first refusal on behalf of Donald Bennett’s estate, she did not do so. Huscroft J.A. further held that the motion judge properly rejected Ms. Bennett’s submission that she was entitled to exercise the right of first refusal under the agreement on the basis that she was a family member. In Huscroft J.A.’s view, it was open to the motion judge to find that the agreement was not ambiguous: on its face, the right of first refusal was limited to parties to the agreement.
Huscroft J.A. also held that the motion judge did not err in his analysis with respect to privity of contract. This doctrine applies only where the contract confers the relevant benefit on a third party. The motion judge’s finding that the agreement did not confer a right of first refusal on anyone but the parties to the agreement was determinative of this analysis.
The appeal was dismissed.
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