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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of September 25, 2023. It was another fairly light week.

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Topics covered this week included: stay pending appeal to the Supreme Court of Canada of a constructive trust claim arising out of fraud, adverse possession, a dispute over the purchase of a Ferrari, extension of time to appeal in a class action against Amazon, and a breach of contract case involving the lease of solar panel equipment.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Sase Aggregate Ltd. v. Langdon , 2023 ONCA 644

Keywords: Torts, Fraud, Breach of Fiduciary Duty, Remedies, Constructive Trust, Unjust Enrichment, Civil Procedure, Stay Pending Appeal, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1(1), Sase Aggregate Ltd. v. Langdon, 2023 ONCA 554, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 919, Hollinger Inc. (Re), 2011 ONCA 765, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, B.M.P Global Distribution Inc. v. Bank of Nova Scotia, 2007 BCCA 52, ICBO v. Lo, 2006 BCCA 584, Donovan v. Sherman Estate, 2019 ONCA 465, Ting (Re), 2019 ONCA 768, Ducharme v. Hudson, 2021 ONCA 151, Yaiguaje v. Chevron Corporation, 2014 ONCA 40

Hitti v Maranello Sports Inc (Ferrari of Ontario), 2023 ONCA 633

Keywords: Civil Procedure, Consent Order, Agreement of Purchase and Sale, Continuation Order, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 59.06(2)(a),

Davis v. Amazon Canada Fulfillment Services, ULC , 2023 ONCA 634

Keywords: Civil Procedure, Class Proceedings, Appeals, Joinder, Transfer, Extension of Time, Class Proceedings Act, 1992, S.O. 1992, c 6, Arbitration Act, 1991, S.O. 1991, c. 17, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1), Cavanaugh v. Grenville Christian College, 2013 ONCA 139

MacQuarrie v. Proulx , 2023 ONCA 625

Keywords: Real Property, Adverse Possession, Barbour v. Bailey, 2016 ONCA 98, Laing v. Moran, [1952] O.R. 215 (C.A.), Mueller v. Lee (2007), 59 R.P.R. (4th) 199 (Ont. S.C.), Tramonti v. Lombardi (1997), 12 R.P.R. (3d) 105 (Ont. C.A.)

Grasshopper Solar Corporation v. Palmer , 2023 ONCA 631

Keywords: Breach of Contract, Damages, Civil Procedure, Appeals, Rules of Civil Procedure, Rule 61.04(1), Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Kaiman v. Graham, 2009 ONCA 77, Syndicate 1221 (Millennium Syndicate) v. Coventree Inc., 2012 ONCA 341

Short Civil Decisions

Sase Aggregate Ltd. v. Langdon, 2023 ONCA 643, 2023 ONCA 643

Keywords: Civil Procedure, Costs

Collins v. Ontario, 2023 ONCA 646

Keywords: Civil Procedure, Vexatious Litigation, Canadian Charter of Rights and Freedoms, s 15, 24(1), Rules of Civil Procedure, Rule 2.1, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

CIVIL DECISIONS

Sase Aggregate Ltd. v. Langdon , 2023 ONCA 644

[MacPherson J.A. (Motion Judge)]

Counsel:

C. G. Carter, for the moving party

J. Montgomery, for the responding party
Keywords:Torts, Fraud, Breach of Fiduciary Duty, Remedies, Constructive Trust, Unjust Enrichment, Civil Procedure, Stay Pending Appeal, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1(1), Sase Aggregate Ltd. v. Langdon, 2023 ONCA 554, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 919, Hollinger Inc. (Re), 2011 ONCA 765, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, B.M.P Global Distribution Inc. v. Bank of Nova Scotia, 2007 BCCA 52, ICBO v. Lo, 2006 BCCA 584, Donovan v. Sherman Estate, 2019 ONCA 465, Ting (Re), 2019 ONCA 768, Ducharme v. Hudson, 2021 ONCA 151, Yaiguaje v. Chevron Corporation, 2014 ONCA 40

facts:

The moving party was defrauded by its manager for over $2.1 million. It sought to recover stolen funds from the manager’s wife (the responding party), alleging the money was used to buy and renovate a property she owned. The Court acknowledged the moving party was indeed defrauded, but dismissed its appeal for a constructive trust over the property’s net sale proceeds. The application judge previously found that only $177,632.38 of the moving party’s funds were traceable to the property, with the responding party unaware of the fraud and using legitimate funds for the property’s purchase and renovation. The moving party’s appeal contested the need for a fiduciary relationship and the adequacy of fund tracing but was rejected, with the Court citing an ill-suited application procedure and incomplete records, making the movement of fraudulently-obtained funds unclear. Justice van Rensburg found no legal error or significant factual error in the application judge’s decision.

The moving party, Sase Aggregate Ltd., sought a stay of an Order of the Court dated August 21, 2023, pending its application for leave to appeal to the Supreme Court of Canada.

issues:

Should a stay of the order of the Court dismissing the appeal be granted pending the application for leave to appeal to the Supreme Court of Canada?

holding:

Motion granted.

reasoning:

Yes.

Pursuant to s. 65.1 (1) of the Supreme Court Act (the “SCA”), a judge or panel of the Court of Appeal may hear a motion to stay a judgment of the Court of Appeal pending leave to appeal to the Supreme Court of Canada. The moving party indicated it can file its materials with the Supreme Court of Canada within 14 days if pressed, and 30 days comfortably. The Court was satisfied that the moving party intended to apply for leave to appeal at the Supreme Court of Canada and will do so in a timely fashion.

In RJR-MacDonald Inc. v. Canada (Attorney General), the Supreme Court of Canada outlined a three-part test for obtaining a stay of a judgment pending appeal: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

(1) Serious Question: The moving party asserted that the decision of the Court for which it now sought leave to appeal represented a narrower interpretation of the law of constructive trusts in relation to unjust enrichment and was inconsistent with leading cases of the British Columbia Court of Appeal and the Supreme Court of Canada itself. The Court found that there was a legitimate debate as to the proper scope of the constructive trust remedy, which militated in favour of granting the stay motion.

(2) Irreparable Harm: The moving party asserted that it would suffer irreparable harm if the funds over which it claimed a constructive trust were released to the respondent before these issues were finally determined on the proposed appeal, rendering the proposed appeal moot. The Court found that the irreparable harm faced by the moving party should a stay not be granted militated in its favour.

(3) Balance of Convenience: The Court found that the balance of convenience favoured the moving party. The moving party must comply with the statutory timelines for filing its leave to appeal application. Should the moving party be unsuccessful in obtaining leave, the funds would become available to the respondent immediately. The inconvenience of an extra few months maintaining the status quo of the past two years was not sufficient to overcome the interests of justice, which called for a stay.

Hitti v Maranello Sports Inc (Ferrari of Ontario), 2023 ONCA 633

[Gillese, Trotter and Coroza JJ.A.]

Counsel:

R. H., acting in person

D. A. Brooker, for the moving party

Keywords: Civil Procedure, Consent Order, Agreement of Purchase and Sale, Continuation Order, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 59.06(2)(a),

facts:

R.H. entered into an agreement of purchase and sale with the Respondent (the “Agreement”) for a new Ferrari (the “Vehicle”). Title to the Vehicle was to be taken in the name of the 285 Spadina SPV Inc. (“285”). R.H. stated that he was the beneficial owner of 285 and his mother was its sole director. The Respondent agreed that 285 could take title to the Vehicle provided R.H. could demonstrate that he controlled or otherwise owned 285. R.H was unable to provide the necessary corporate records for 285 and was unable to confirm he had the requisite funds to complete the purchase. Thus, the Respondent refused to transfer the Vehicle to 285 or to R.H.

R.H and 285 (together the “Appellants”) brought an application seeking specific performance of the Agreement (the “Application”). By judgment dated January 3, 2023, the Application was dismissed (the “Judgment”).

On March 10, 2023, the parties entered into a Consent Order. Under its terms, the Respondent agreed not to sell or transfer the Vehicle until final determination of the appeal. When the Respondent entered into the Consent Agreement, it was not aware that, on February 13, 2023, the Superior Court of Justice had issued an order removing R.H. from all positions of authority with 285 (the “February 2023 Order”). The Registrar had also issued an order on July 4, 2023 (the “Registrar’s Continuation Order”), permitting R.H. to continue the interest of 285 in the appeal by 15080525 Canada Corp. (“150”).

The Respondent brought two motions: 1. That the underlying appeal be dismissed or stayed or in the alternative, that the Consent Order be set aside or varied; and 2. To set aside the Registrar’s Continuation Order.

issues:

(1) On the first motion, did R.H. have authority to commence or continue the appeal on behalf of 285?

(2) On the second motion, should the Registrar’s Continuation Order be set aside?

holding:

Motions granted.

reasoning:

(1) No.
The February 2023 Order stripped R.H. of any authority to commence or continue the appeal on behalf of 285. Even if the appeal were successful, the management of 285 had indicated that 285 did not want to continue with the appeal and would not pay for the Vehicle nor take possession of it. Since the Agreement was for 285 to take title to the Vehicle, the appeal was moot.

The Consent Order was set aside pursuant to r. 59.06(2)(a) of the Rules of Civil Procedure because of fraud or facts the Respondent discovered after it was made. R.H. knew of the February 2023 Order when the Consent Order was being negotiated. He hid its existence from the Respondent and his own lawyer. Had the Respondent been aware of the February 2023 Order, it would not have entered into the Consent Order. Thus, the Court concluded that the Consent Order must be set aside.

(2) Yes.

R.H. made an ex parte application to the Registrar asking that the interest of 285 in the appeal be continued by 150. His affidavit in support stated that on February 11, 2023, by purported resolutions, all of 285’s assets and interests were assigned to him in trust for the shareholders and, on June 2, 2023, he assigned the interest in the appeal to 150, a corporation he caused to be incorporated one day earlier. The assignment from 285 to R.H. was allegedly made two days before the February 13 Order revoking any authority that he might have had over 285 and appointing new officers and directors of 285. The Court found that the alleged assignment of interest by 285 to R.H. was invalid. The Court was satisfied that the steps taken to transfer the interest in 285 to 150 were made after the February 2023 Order and designed to thwart it.

Davis v. Amazon Canada Fulfillment Services, ULC , 2023 ONCA 634

[Zarnett J.A. (Motion Judge)]

Counsel:

L. Sokolov and J.M. Leclerc, for the moving party

D. Di Paolo, N. Effendi, and L.M. Wagner, for the responding parties

Keywords: Civil Procedure, Class Proceedings, Appeals, Joinder, Transfer, Extension of Time, Class Proceedings Act, 1992, S.O. 1992, c 6, Arbitration Act, 1991, S.O. 1991, c. 17, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1), Cavanaugh v. Grenville Christian College, 2013 ONCA 139

facts:

The moving party was the representative plaintiff in a proposed class action commenced on June 12, 2020, against the responding parties (“Amazon”). The proposed class consisted of approximately 73,000 delivery drivers. The gist of the claim was that the delivery drivers were, in fact and law, employees of Amazon, liable for overtime and other entitlements. On June 19, 2023, the class action judge dismissed the plaintiff’s motion to certify the action as a class proceeding (the “certification decision”). The plaintiff appealed the certification decision to the Divisional Court, governed by Ontario’s Class Proceedings Act, 1992 (the “CPA”).

The class action judge also granted a motion by Amazon to stay some members’ claims with arbitration provisions (the “stay decision”). The appeal route for the Arbitration Act decisions was not governed by the CPA. Subject to an extension of time to file a notice of appeal, the plaintiff sought to appeal the stay decision under s. 6(1) of the Courts of Justice Act (the “CJA”).

issues:

(1) Should an order extending the time for the plaintiff to deliver his notice of appeal from the stay decision be granted?

(2) Should an order under ss. 6(2) and (3) of the CJA transferring, to the Court, the appeal from the certification decision that was currently pending in the Divisional Court and combining it with the appeal from the stay decision be granted?

holding:

Motion granted.

reasoning:

(1) Yes.

Amazon consented to the extension of time to appeal the stay decision, without prejudice to its position that the Court was without jurisdiction to hear all or parts of that appeal and to its arguments on the merits of the appeal. The Court was satisfied that it was in the interests of justice to extend the time in accordance with Amazon’s consent.

(2) Yes.

Sections 6(2) and (3) of the CJA provide that the Court of Appeal has jurisdiction over certain appeals and may transfer appeals for certain purposes. The fact that one appeal was with the Court and another to the Divisional Court were necessary but not sufficient conditions for transfer. Such an order is discretionary, and the overriding consideration is whether separate appeals or combining them better comports with the administration of justice. Relevant factors include the risk of inconsistent results and the extent of overlap in the matters.

The class action judge heard the plaintiff’s certification motion and Amazon’s motion to stay together. He outlined the effects decisions in one had on the other. Amazon’s motion to stay was part of its resistance to certification. The effect of his finding was that those with arbitration agreements could not be class members. It was only because of the certification consideration that the court could decide on claims of drivers with arbitration agreements.

These considerations favored combining the appeals in the same court for consistent management and decisions. The different issues in the two appeals, given their connection, did not contradict joining them. The legislative choice was based on both the CPA and CJA provisions for appeals to be combined in the Court.

MacQuarrie v. Proulx , 2023 ONCA 625

[Feldman, Paciocco and Sossin JJ.A]

Counsel:

M. L. Riddell, for the appellant appearing by video conference
M. C. Brown, for the respondents

Keywords:

Real Property, Adverse Possession, Barbour v. Bailey, 2016 ONCA 98, Laing v. Moran, [1952] O.R. 215 (C.A.), Mueller v. Lee (2007), 59 R.P.R. (4th) 199 (Ont. S.C.), Tramonti v. Lombardi (1997), 12 R.P.R. (3d) 105 (Ont. C.A.)

facts:

The parties were neighbours in the Town of Port Stanley. The appellant owned the property known municipally as 171 Norma Place. The respondents owned the adjacent property known municipally as 173 Norma Place. Their dispute was over a small triangular strip of the respondents’ land at the boundary of their properties. The boundaries of the disputed triangular strip were the actual property line between 171 and 173 Norma Place on one side, the road on one side, and a white fence that ran along approximately half of the strip on the third side. The triangular strip was addressed as two separate parcels: a triangular parcel that was bordered by the property line on one side and the white fence on the other, and a roughly rectangular parcel that began where the white fence stopped and runs to the road. The appellant claimed adverse possession over the entire strip consisting of both parcels.

The respondents purchased their property on December 1, 2006. The appellant’s mother and her spouse obtained title to the appellant’s property in July, 1995, and the appellant became the sole owner in September, 2011. On February 19, 2007, all the lands came under the Land Titles system. When the respondents purchased their property, they obtained a declaration of possession from the vendor attesting that there was no adverse possession of any part of the property. However, because of the partial fence, the respondents conceded in their written materials that the area enclosed on one side by the fence had been effectively possessed by the appellant’s mother as his predecessor in title, and therefore they conceded possessory title to that portion of the claimed land.

The application judge applied the three-pronged test for determining adverse possession, the onus being on the party asserting the adverse possessory claim: Did the respondent establish: 1) actual possession of the property over a ten-year period prior to February, 2007? 2) the intention to exclude the true owner? 3) effective exclusion of the true owner?: Barbour at para 35. The application judge concluded his analysis by finding that the appellant had not met his onus to prove any of the three prongs of the test and rejected the claim. The application judge also rejected the appellant’s claim for proprietary estoppel.

issues:

1. Did the application judge err in failing to find adverse possession had occurred?
2. Did the application judge err on the proprietary estoppel issue by requiring representations to be express rather than by conduct?

holding:

Appeal dismissed.

reasoning:

1. No

The Court rejected the appellant’s submission that the application judge was required to draw the inference that once the appellant had established adverse possession of the area bordered by the fence, that possession extended to the other contiguous area demarcated by the imaginary projection of the fence line to the road. He argued that it was an error for the trial judge to treat the claimed area as two separate areas, one bounded by the fence and the other not. The application judge had carefully applied the three-pronged test and considered the relevant evidence regarding the parties’ use of the disputed, unfenced area over the relevant period, and came to the conclusion that the evidence did not establish adverse possession of that area.

Further, the Court noted that adverse possession claims frequently required courts to divide disputed areas and conduct distinct analyses: Laing at paras 27-40; Mueller at paras 4-5, 57-61. The Court distinguished this case with the facts of Tramonti, where the trial judge erred by failing to treat enclosing the entire area with a fence as evidence of intent to exclude. In the present case, the application judge declined to infer an intent to exclude by an imaginary, projected line with no actual fence.

In respect of the appellant’s mother’s use as predecessor in title of his lands, the application judge found that what she did with respect to lawn maintenance was not sufficient to meet the test for adverse possession: open, notorious constant use that excluded the true owner. That finding was subject to deference by the Court and was borne out by the evidence.
The Court further rejected the appellant’s submission that the application judge erred by using evidence of activity after 2007 to determine the issue of adverse possession before that date and that he was confused about the evidence. The application judge reiterated a number of times that the relevant 10-year period was before 2007 when the lands were converted to the Land Titles system. The Court also disagreed with the appellant’s submission that the application judge failed to recognize that the respondents did not adduce evidence of use and possession during the relevant 10-year time-period. To the contrary, the respondents adduced a sworn declaration from the predecessor title holder regarding her use and possession of the disputed lands, evidence of their use in 2006 after the purchase, as well as post-2007 circumstantial evidence speaking to their understanding of their entitlement to the disputed land. The application judge reasonably concluded that the appellant’s evidence of use during the 10-year period was insufficient to meet his burden of establishing actual possession, intention to exclude, or effective exclusion.

2. No.

The Court rejected the appellant’s submission that the application judge erred on the proprietary estoppel issue by requiring representations to be express rather than by conduct. The application judge had found no evidence of encouragement of the appellant by the respondents and concluded that the appellant made assumptions and was mistaken regarding his rights. Those assumptions had not constituted encouragement by the respondents. The judge had found no conduct by the respondents that could or had amounted to a representation. There were no acts of encouragement and no evidence of detrimental reliance.

Grasshopper Solar Corporation v. Palmer , 2023 ONCA 631

[Fairburn A.C.J.O., Feldman and Sossin JJ.A.]

Counsel:

C. E. Reed, for the appellants
V. Tsou, for the respondent

Keywords:Breach of Contract, Damages, Civil Procedure, Appeals, Rules of Civil Procedure, Rule 61.04(1), Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Kaiman v. Graham, 2009 ONCA 77, Syndicate 1221 (Millennium Syndicate) v. Coventree Inc., 2012 ONCA 341

facts:

The respondent, Grasshopper Solar Corporation (“Grasshopper”), operated a business of leasing space on residential rooftops where it then installs solar panels. On August 9, 2012, the appellants, Neil Palmer and Michaele Hall, entered into a 20-year lease agreement with Grasshopper, pursuant to which Grasshopper would pay an annual rent of $700 to the appellants. The energy generated from the solar panels would be sold as part of the Independent Electrical System Operator, Feed-in Tariff Program (the “microFIT Program”).
Grasshopper registered a Notice of Lease on title to the appellants’ property and in October 2015 Grasshopper similarly registered a Notice of Security Interest. In 2016, the appellants sought to refinance their home. The refinancing required certain documents and the assistance of Grasshopper, given Grasshopper’s security interest registered on the appellants’ home, and required Grasshopper’s security on the house to be postponed, to which Grasshopper agreed.

The appellants then sought reimbursement for the postponement registration fee and a portion of their lawyer’s costs respecting the refinancing process. Grasshopper declined, to which the appellants responded by terminating the contract and instructing the Local Distribution Company (“LDC”) to redirect monthly payments for the solar energy to them, rather than Grasshopper. Grasshopper subsequently commenced an action claiming the appellants breached their contractual obligations under the lease, and the appellants counterclaimed by stating the lease was breached by Grasshopper in the first instance.
The motion judge granted summary judgment in favour of Grasshopper, finding that the appellants breached the lease agreement by purporting to terminate the agreement and redirecting payments from the LDC to themselves. The motion judge found that there was no breach on the part of Grasshopper to warrant the appellants’ actions, nor was there any basis in the lease agreement for them to have lawfully terminated the agreement at that point.

In a separate decision dealing with damages, the motion judge ordered the appellants to pay $51,356.24 in equitable damages, $2,191.37 in prejudgment and postjudgment interest, and $25,000 in costs. The motion judge calculated these damages based on the amount stipulated in Grasshopper’s lease agreements with other parties (but not the one signed by the appellants) for a buyout of the solar panels. The appellants appealed from both the liability and damages judgments.

issues:

1. Was the liability appeal out of time?
2. Is the lease void for being illegal or against public policy?
3. Did the motion judge err in his interpretation of the lease agreement?
4. Was the damages appeal out of time?
5. Did the motion judge err in imposing a buy-out on the parties?
6. Should damages have been awarded to Grasshopper?

holding:

Appeal allowed in part.

reasoning:

1. No

Grasshopper took the position that the appellant’s appeal was late and should not be considered. According to Grasshopper, the appellants acknowledged that they appealed from the decision of the motion judge dated March 8, 2021, and therefore were beyond the 30-day time period for serving a notice of appeal set out in r. 61.04(1) of the Rules. The Court rejected this submission, stating that it was appropriate for the appellants to wait until after the damages decision before deciding to appeal the motion judge’s orders both on the summary judgment and damages.

2. No.

The motion judge had not addressed this issue as it was not raised by the appellants. Therefore, the Court declined to consider this argument pursuant to the Court’s discretion recognized in Kaiman, para 18. In this case, the failure to raise the issue meant that the record was insufficient to make any determination relating to potential improper motives or conduct on Grasshopper’s part in relation to the microFIT program.

3. No

The motion judge’s interpretation of the lease was entitled to deference: Deslaunier Custom Cabinets Inc. at para 49; Sattva Capital Corp. at paras 50, 52. The motion judge committed no error in turning first to the written terms of the agreement and applying them to the circumstances of this case: Coventree Inc. at para 16. Moreover, while it was true that the lease was offered on a take-it-or-leave-it basis, this did not rise to the level of an impermissible power imbalance between the parties.

4. No

Firstly, respondent argued that the appellants’ supplementary notice of appeal was late. It was served over a month and a half after a notice of appeal was due. The supplementary notice of appeal had not added new details concerning the appeal of the damages decision, but it had included a request for an extension of time for the service and filing of the notice of appeal and the supplementary notice of appeal. The respondent took this request for an extension as evidence that the appeal was late.

The Court disagreed. There was no question with respect to the appellants intention to appeal within the 30-day timeframe. There was a clear explanation for the supplemental notice of appeal, and there was no prejudice resulting from the additional period between the original notice of appeal and the supplemental notice. In light of the court’s test for extensions of time, the appellants’ requested extension of time was granted: Paulsson at para 2.

5. Yes.

The motion judge had found that damages were to be based on the buy-out formula, and that such a calculation was fair and reasonable for both parties. The appellants argued that it was not open to the motion judge to impose damages that were not rooted in the lease that he had found to be breached.

The Court agreed that it was neither necessary nor justified for the motion judge to impose a buy-out on the parties, and it was an error to do so. While subsequent contracts entered into by Grasshopper included a buy-out provision, that provision was neither negotiated nor agreed to by these parties, it had not formed part of the parties’ reasonable expectations, nor was there any independent evidence as to the value of the solar equipment that might inform an equity-based buy-out price.

6. No.

The Court rejected the appellants’ argument that no damages should be awarded to Grasshopper. Damages arising from the appellants’ breach of the lease were to be found in the lease agreement itself. Per the ‘Termination and Remedy Provision’, Grasshopper was entitled to remove the solar equipment, and any obligations owed by Grasshopper towards the appellants were at an end at the date of breach. Grasshopper, however, forfeited that right by failing to remove the solar panels.

Therefore, because the appellants had not owned the solar panels from the date of breach to the damages hearing, the appellants were wrongfully directing payments from the LDC to themselves. By the date of the damages decision, the motion judge accepted that the amount of these payments was $30,700.68. The Court ordered that this sum be returned to Grasshopper, amending the damages judgment accordingly. Further, the solar equipment was treated as abandoned by Grasshopper, entitling the appellants to have it removed at any time or to make use of it. Grasshopper was also ordered to remove the encumbrances registered on title to the appellants’ property.

SHORT CIVIL DECISIONS

Sase Aggregate Ltd. v. Langdon, 2023 ONCA 643

[van Rensburg, Miller and Nordheimer JJ.A.]

Counsel:

C. Carter, for the appellant
J. Montgomery, for the respondent

Keywords: Civil Procedure, Costs

Collins v. Ontario, 2023 ONCA 646

[Harvison Young, Thorburn and Favreau JJ.A.]

Counsel:

R. M. Collins, acting in person
E. Guilbault, for the respondent

Keywords: Civil Procedure, Vexatious Litigation, Canadian Charter of Rights and Freedoms, s 15, 24(1), Rules of Civil Procedure, Rule 2.1, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of September 18, 2023. It was a rather light week.

Continue Reading

Topics covered this week included lawyers’ professional discipline, reopening an appeal dismissed through the fault of counsel who failed to show up while still on the record,  fresh evidence in a contract case stayed on jurisdictional grounds, and the enforcement of a default judgment made by a Russian court.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Deokaran v. Law Society of Ontario, 2023 ONCA 602

Keywords: Administrative Law, Regulated Professions, Lawyers, Civil Procedure, Appeals, Extension of Time, Reasonable Apprehension of Bias, Courts of Justice Act, R.S.O. 1990, c. C.43 s.6, Paulsson v. University of Illinois, 2010 ONCA 21, Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Overtveld v. Overtveld, 2021 ONCA 930, R. v. S. (R.D.), [1997] 3 S.C.R. 484

Justein v. DeFi Technologies Inc., 2023 ONCA 615

Keywords: Contracts, Stock Options, Corporations, Oppression, Remedies, Damages, Business Corporations Act, R.S.O. 1990, c. B. 16, s. 248

Agrest v. Pekker, 2023 ONCA 616

Keywords: Civil Procedure, Judgments, Enforcement, Insufficient Notice, Expert Report, Civil Procedure Code of the Russian Federation, Beals v Saldanha, [2003] 3 SCR 416

Pomata Investment Corp. (Treasure Hill Homes) v. Yang, 2023 ONCA 618

Keywords: Civil Procedure, Appeals, Dismissal as Abandoned, Setting Aside, Re-hearing, Representation by Lawyer, Rules of Civil Procedure, Rule 15.05, Pomata Investment Corp. (Treasure Hill Homes) v. Yang, 2022 ONCA 468, Meridian Credit Union Limited v. Baig, 2016 ONCA 942

Tewari v. McIntyre, 2023 ONCA 628

Keywords: Civil Procedure, Costs, Lack of Jurisdiction, Fresh Evidence Motion, Non-Disclosure Agreement, Palmer v The Queen, [1980] 1 SCR 759, Barendregt v Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, Hamilton v Open Window Bakery Ltd, 2004 SCC 9

Fernandez Leon v. Bayer Inc., 2023 ONCA 629

Keywords: Torts, Negligence, Product Liability, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Amending Pleadings, Rules of Civil Procedure, Rule 21,01(1)(b), McHale v Lewis, 2018 ONCA 1048, Klassen v Beausoleil, 2019 ONCA 407, Burns v RBC Life Insurance Company, 2020 ONCA 347, Tran v University of Western Ontario, 2015 ONCA 295, Miguna v Ontario (Attorney General) (2005), 205 OAC 257, Dawson v Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont CA), Rausch v. Pickering (City), 2013 ONCA 740, Kuiper v Cook (Canada) Inc., 2018 ONSC 6487, Martin v Astrazeneca PharmaceuticalsPlc, 2012 ONSC 2744, Vester v Boston Scientific Ltd., 2015 ONSC 7950

9383859 Canada Ltd. v. Saeed, 2023 ONCA 627

Keywords: Civil Procedure, Appeals, Orders, Security for Costs, Enforcement, Rules of Civil Procedure, r. 61.06(2), Virc v. Blair (2016), 134 O.R. (3d) 795 (C.A.), Dataville Farms Ltd. v. Colchester (Municipality), 2014 NSCA 95, 9383859 Canada Ltd. v. Navaratnam, 2021 ONCA 210, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184

CIVIL DECISIONS

Deokaran v. Law Society of Ontario, 2023 ONCA 602

[Tulloch C.J.O., Lauwers and Miller JJ.A]

Counsel:

G.D., acting in person

S. Wishart, for the responding party

Keywords: Administrative Law, Regulated Professions, Lawyers, Civil Procedure, Appeals, Extension of Time, Reasonable Apprehension of Bias, Courts of Justice Act, R.S.O. 1990, c. C.43 s.6,Paulsson v. University of Illinois, 2010 ONCA 21,  Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Overtveld v. Overtveld, 2021 ONCA 930, R. v. S. (R.D.), [1997] 3 S.C.R. 484

facts:

On June 12, 2023, three days before a motion for an extension of time was set to be heard, the appellant amended her notice of motion. She added a request for an order setting aside the Divisional Court’s decision on the basis of a reasonable apprehension of bias. The motion judge adjourned the amended motion to a three-judge panel.

The addition of the bias allegation did not alter whether the appellant’s proposed appeal met the test for an extension of time. The appellant met the timeline for filing the notice of motion for leave to appeal. However, she did not meet the deadline for the motion record and factum. A week beyond the deadline, the appellant moved for an extension of time to file her factum and motion record.

Leading up to the Divisional Court hearing, the appellant was represented by a lawyer who was on the record for her and who filed the documentation necessary for the hearing. However, the appellant made submissions on her own behalf. The practice of the Divisional Court is to record hearings in which self-represented litigants are involved. However, in this case the hearing was not recorded. There was no inference of malfeasance related to the lack of a recording.

issues:
  1. Did the appellant meet the four factors relating to a motion for an extension of time to perfect the motion?
  2. Was there a reasonable apprehension of bias against the appellant?
holding:

Appeal dismissed.

reasoning:
  1. No

The factors relating to the appellant’s motion for an extension of time to perfect the motion are (1) whether she had an intention to appeal within the time for bringing an appeal; (2) the length of the delay, and any explanation for the delay; (3) any prejudice to the respondent caused by the delay; and (4) the justice of the case.

i. The appellant’s court filings show that she intended to appeal from the Divisional Court’s decision within the time for bringing an appeal, even though the amendment to add the bias allegation was late-breaking.

ii. The appellant’s factum was only filed over a month late and it did not address the grounds raised in the original motion. The appellant provided the court with a motion record concerning the issues raised in the original motion for leave four months after the filing deadline had passed in relation to the original motion for leave to appeal. The appellant explained that the Divisional Court had no transcripts or recordings of her hearing, which were “necessary, required and imperative” to her appeal in order to establish a reasonable apprehension of bias.

iii. The Law Society of Ontario’s argument that it was prejudiced by the delay because it considered the appellant to be a vexatious litigant was not the sort of prejudice contemplated by the test.

iv. The merits of the proposed appeal, as laid out in the original notice of motion for leave to appeal, were limited. The notice stating that the Court’s reasons deprived the appellant of her right to procedural fairness, lacked evidence and argument. There was nothing to show that the appeal on those grounds had merit.

  1. No

The appellant did not meet the high threshold for bias allegations against members of the Divisional Court. The appellant contended that the lack of transcripts from the Divisional Court made the decision unreviewable because it eliminated the evidence for bias. The appellant made two claims to support a reasonable apprehension of bias. First, was confusion around whether the appellant was self-represented before the Divisional Court, and speculation that one of the panel judges must have said she was not self-represented. Second, that the panel members demonstrated that they had closed their minds and determined her to be guilty. There was a lack of evidence to support these claims.

Justein v. DeFi Technologies Inc, 2023 ONCA 615

[Fairburn A.C.J.O., Feldman and Sossin JJ.A.]

Counsel:

K. Richard, for the appellant
G. Latner and M. Siek, for the respondents

Keywords: Contracts, Stock Options, Corporations, Oppression, Remedies, Damages, Business Corporations Act, R.S.O. 1990, c. B. 16, s. 248

facts:

The appellant’s board of directors had approved a resolution recognizing one of the respondents, JW, as an advisor to DeFi and approving the grant of 750,000 share options to him. JW had agreed to split the option with the other respondent, Z.J.

On September 3, 2021, the respondents attempted to exercise 367,500 options, but were advised by counsel to the appellant that the option grant had been cancelled because the respondents had not met the requirements of DeFi’s Stock Option Plan, specifically, they were not “consultants” within the meaning of the Plan.

The respondents on appeal brought an application to seek damages for deliberate breach of option agreements under either contract law or as oppression under s. 248 of the Ontario Business Corporations Act.

The application judge determined that the power rested with the board of directors to determine optionee eligibility, and that the board resolution had made the respondents eligible optionees, approved the grant of options, and recognized JW as an advisor. There was no board resolution cancelling the option agreements. The application judge held that the respondents’ reasonable expectations were that they would receive the 750,000 options, which was not met.

The application judge concluded that the appropriate remedy for breach of contract and for oppression was to put the respondents into the same position they would have been in if the appellant had allowed them to exercise the options. Accordingly, the application judge awarded 750,000 options.

issues:
  1. Did the application judge err by failing to make a finding of fact as to whether the respondent was an eligible optionee in the appellant’s options plan?
  2. Did the application judge err in considering the oppression remedy, specifically, whether there existed a reasonable expectation that the respondents would be able to exercise 750,000 options?
  3. Did the application judge err by failing to make the necessary findings of fact to allow for a calculation of damages?
holding:

Appeal dismissed.

reasoning:

The Court noted that the application judge was not required to resolve this issue, and that paras. 26-27 of her reasons demonstrated her commonsense approach to the matter. The Court concluded that the Board was to decide who was eligible to receive options. The Board had clearly determined that the respondents were eligible in accordance with the resolution.

  1. No

The Court disagreed with the appellant’s argument that the respondents provided no services in exchange for those options and that the application judge failed to take this into account.

The respondents had met their burden of proof that the appellant corporation acted in a manner that defeated their reasonable expectations that they would receive 750,000 options as advisors to the company. There was no evidence to suggest that the respondents walked away from their responsibilities as advisors. Although there was conflicting evidence about how much the respondents did or did not do for the company, the Court noted that the fact that they remained in an advisory role was unchallenged at the application.

  1. No

The application judge had asked the parties to endeavour to quantify the damages, and subsequently, chose “the exercise value of the options at the average (mean) of the highest and lowest price during the Period.” The Court stated that the application judge could not be faulted for choosing an option that was jointly suggested to her by the parties as a means by which to calculate damages.

Furthermore, the Court rejected the appellant’s argument that the respondents should not have been entitled to damages beyond the value of the 367,500 options for which they initially provided notice. This is because the respondents were unable to exercise the options in accordance with the plan after the plan had been repudiated.

Agrest v. Pekker, 2023 ONCA 616

[Tulloch C.J.O., Lauwers and Miller JJ.A.]

Counsel:

P. Bakos, for the appellant

B. Brooksbank and J. Martschenko, for the respondent

Keywords: Civil Procedure, Judgments, Enforcement, Insufficient Notice, Expert Report, Civil Procedure Code of the Russian Federation, Beals v Saldanha, [2003] 3 SCR 416

facts:

A claim was commenced in Russia by the respondent in regards to non-payment of a loan advanced to the appellant by the respondent. The claim was commenced in the Nikulinsky District Court of Moscow pursuant to the Civil Procedure Code of the Russian Federation. The parties were summoned to a court appearance to address the scheduling of the trial. The appellant did not attend this court date or the trial date and the matter was adjourned. An ex parte judgment was rendered in favour of the respondent for the full amount of the claim, plus interest and costs.

While the appellant had a right of further appeal to the Presidium of the Moscow City Court, he did not exercise this right. The deadline for further appeals passed and the Russian judgment could no longer be challenged in Russia. The respondent brought an application in Canada to enforce the Russian judgment in which the Russian judgment was recognized and enforced. The appellant appealed the judgment in which the application judge recognized Ontario’s jurisdiction to enforce a judgment made by a Russian court.

issues:

Did the application judge err in recognizing and enforcing the Russian judgment?

holding:

Appeal dismissed.

reasoning:

No.

The application judge reviewed the applicable law and based his decision on Beals v Saldanha. He found that the appellant had not made out the defence that he was denied natural justice during the proceedings in Russia. Accordingly, the Russian proceedings were not contrary to Canadian notions of fundamental justice.

Throughout the Russian proceedings, the appellant was given adequate notice of the claim made against him and was granted the opportunity to defend the claim. Further, he had the opportunity to raise the issue of insufficient notice on appeal to the Moscow City Court. The appellate court made a factual finding that the appellant was given adequate notice, and the appellant did not avail himself of the opportunity to further appeal this finding in Russia. The Court found that the minimum standards of fairness were met in the Russian process.

Further, the Court saw no error by the application judge in excluding the report or statement of Professor S, a purported expert witness on Russian law and governance. The Court agreed with the application judge’s reasons for excluding this evidence. The report was not supported by an affidavit sworn by Professor S and was inadmissible. The Court agreed that even if the report was properly before the application judge, it was within the discretion of the application judge to determine the weight to apportion to the purported evidence. In this case, he chose not to assign any weight to the statement as it was not sworn, nor did it affirm that the specific Russian proceedings, which were the subject of the application, were tainted by fraud.

The Cout concluded that no palpable and overriding error in the reasons of the application judge warranted appellate interference.

Pomata Investment Corp. (Treasure Hill Homes) v. Yang, 2023 ONCA 618

[Tulloch C.J.O., Lauwers and Paciocco JJ.A.]

Counsel:

FY and XZ, acting in person

S. Brunswick and V. Ford, for the responding party

Keywords: Civil Procedure, Appeals, Dismissal as Abandoned, Setting Aside, Re-hearing, Representation by Lawyer, Rules of Civil Procedure, Rule 15.05, Pomata Investment Corp. (Treasure Hill Homes) v. Yang, 2022 ONCA 468, Meridian Credit Union Limited v. Baig, 2016 ONCA 942

facts:

This appeal was first set for hearing on May 27,2022, and on the day of the hearing, neither party appeared to argue the appeal. The appeal was dismissed as abandoned: Pomata Investment Corp. (Treasure Hill Homes). No order had been taken out in respect to this matter.

At the time of hearing, PL was the moving parties’ lawyer of record. Consistent with the Rules and the court’s standard practice, court correspondences were sent to PL. The moving parties were not copied on these correspondences. PL perfected the appeal in December 2021. PL and respondent counsel were then sent a notice of hearing. PL ceased communicating with the moving parties in early 2022 and never advised the moving parties that he received this correspondence, nor that he did not intend to appear or that he wished to be removed as the lawyer of record. The moving parties were unaware of the date and time of the hearing, and only learned that a hearing had been scheduled and that their case was dismissed as abandoned after the decision of this court was released in June 2022.

The Court had become aware that PL was suspended by the Law Society of Ontario on October 28, 2022, regarding five investigations, and remained suspended.

issues:

In the interest of justice and fairness, should the Court allow a re-hearing?

holding:

Motion granted.

reasoning:

Yes.

The Court noted that it has jurisdiction to re-open an appeal where it is clearly in the interests of justice to do so: Baig at para 7. Although the bar to re-opening an appeal is high, the Court concluded that it was clearly in the interests of justice to grant the moving parties the relief they sought. The moving parties had no intent to abandon their appeal, and through no fault of their own were not informed of their hearing date.

Further, PL never brought a motion to be removed as counsel of record. Rule 15.05 of the Rules requires a lawyer to act unless the client removes the lawyer or a court order has been obtained to remove the lawyer from the record. Similarly, a lawyer’s professional obligations require reasonable notice to a client of a withdrawal of services. The Court noted that public confidence in the administration of justice depends on the public being able to rely on their lawyer of record.

Moreover, because this appeal was not heard and decided on its substantive merits, but dismissed as abandoned, allowing the motion to re-open the appeal would not have resulted in unfairness to the responding party. Counsel for the responding party had also consented to reopening the appeal. The Court concluded that the moving parties should have the opportunity for their appeal to be heard and decided on its merits.

Tewari v. McIntyre, 2023 ONCA 628

[Gillese, Trotter and Coroza JJ.A.]

Counsel:

GT, acting in person

E. Davis and A. Sahai, for the respondents

A. I. McIntosh and N. Israelian, for the non-party MG

Keywords: Civil Procedure, Costs, Lack of Jurisdiction, Fresh Evidence Motion, Non-Disclosure Agreement, Palmer v The Queen, [1980] 1 SCR 759, Barendregt v Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, Hamilton v Open Window Bakery Ltd, 2004 SCC 9

facts:

GT is a food engineer who claims to have invented the “Zero-OxTech” process to extend the shelf life of case-ready meat. In April 2020, he alleged that the respondents violated his intellectual property rights, referring to a breach of a 2004 verbal agreement and a 2019 non-disclosure agreement (“NDA”) with Desiccare Inc. In November 2020, the respondents sought to dismiss the action on jurisdictional grounds. By order dated October 31, 2022, GT’s action was dismissed for lack of jurisdiction. GT appealed against both the dismissal of his claim and the costs orders. He sought to adduce fresh evidence of a 2003 NDA and a written 2006 manufacturing agreement in support of his appeal.

issues:
  1. Can GT adduce fresh evidence in support of his appeal?
  2. Did the motion judge err in dismissing GT’s action for want of jurisdiction?
holding:

Motion and appeal dismissed.

reasoning:
  1. No.

Appellate courts should rarely admit fresh evidence: Palmer v The Queen at 775; Barendregt v Grebliunas at para 31. The respondents provided evidence suggesting that the fresh evidence might be fabricated. Regardless of its authenticity, the fresh evidence did not meet the first criterion set by the Supreme Court in Palmer v The Queen, which advised against admitting evidence that could have been presented earlier with due diligence. GT did not establish the exercise of due diligence. Therefore, the did not admit the fresh evidence.

  1. No

The Court agreed with the motion judge’s determination that Ontario had no jurisdiction over the claim, noting that the corporate respondent was not present in Ontario at the relevant time, the respondents had not attorned to Ontario’s jurisdiction and there was no real and substantial connection between the respondents and Ontario. The sale of goods outside of Ontario to Ontario residents did not constitute doing business in Ontario.

Further, while the 2019 NDA contained a non-exclusive choice of law clause and jurisdiction clause that included Ontario, GT signed it as a representative of his corporation and not in his personal capacity. Since GT was not a party to the agreement, he could not rely on the 2019 NDA to establish jurisdiction in Ontario. The motion judge found no real and substantial connection between the remaining dispute and Ontario, with most prior dealings taking place entirely within the United States.

Lastly, GT did not seek leave to appeal against a costs order, and even if he had, it would not have been granted leave because the costs orders were not plainly wrong nor did the motion judge err in principle.

Fernandez Leon v. Bayer Inc., 2023 ONCA 629

[van Rensburg, Nordheimer and George JJ.A.]

Counsel:

J. Drennan, for the appellants
G. Worden and A. Puchta, for the respondent Bayer Inc.

Keywords: Torts, Negligence, Product Liability, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Amending Pleadings, Rules of Civil Procedure, Rule 21,01(1)(b), McHale v Lewis, 2018 ONCA 1048, Klassen v Beausoleil, 2019 ONCA 407, Burns v RBC Life Insurance Company, 2020 ONCA 347, Tran v University of Western Ontario, 2015 ONCA 295, Miguna v Ontario (Attorney General) (2005), 205 OAC 257, Dawson v Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont CA), Rausch v. Pickering (City), 2013 ONCA 740, Kuiper v Cook (Canada) Inc., 2018 ONSC 6487, Martin v Astrazeneca PharmaceuticalsPlc, 2012 ONSC 2744, Vester v Boston Scientific Ltd., 2015 ONSC 7950

facts:

This appeal concerned a motion in proceedings about an implanted medical device called Essure, a permanent form of female contraception, that is alleged to have caused injury to the appellant. The action was commenced against the physician who implanted the device, and the respondent Bayer Inc. (“Bayer”), the alleged manufacturer of the device. The action was discontinued against the physician.

Bayer’s moved under r. 21.01(1)(b) of the Rules of Civil Procedure to strike the statement of claim as disclosing no reasonable cause of action. The motion judge agreed, concluding that there were substantial foundational deficiencies in the appellants’ claim that could not be cured by simply amending the pleading.

issues:

Did the motion judge err in refusing to grant leave to amend the statement of claim?

holding:

Appeal allowed.

reasoning:

Yes.

The motion judge erred in refusing to grant leave to amend the statement of claim. She did not advert to nor apply the test for amending pleadings. Instead, she concluded that there was “no benefit in permitting the [appellants] to try and find some tenable basis in fact for a claim against Bayer when none [had] been found by them to date”.

Leave to amend a statement of claim should be denied only in the clearest of cases, when it is plain and obvious there is no tenable cause of action, the proposed pleading is scandalous, frivolous or vexatious, or there is non-compensable prejudice to the defendants.

The test for striking pleadings for not disclosing a reasonable cause of action is stringent, and the moving party must satisfy a very high threshold in order to succeed. This may occur where the allegations do not fall within a cause of action known to law, or because the statement of claim fails to plead all the essential elements of a recognized cause of action.

Bayer was prepared to consider not opposing an order granting the appellants leave to amend their claim, but opposed the proposed amendments produced at the hearing of the appeal because it said they were still deficient. Bayer claimed the proposed amended pleading still did not disclose a cause of action for negligent design and negligent manufacture because the specific design and manufacturing defects were not identified.

The Court disagreed with Bayer. The proposed amendments plead the essential elements of the claims for negligent design and manufacture. The proposed amendments plead the material facts that are required to support the pleaded causes of action. That is, they meet the low threshold for pleading a cause of action.

The appeal was allowed and the appellants were granted leave to amend the statement of claim.

9383859 Canada Ltd. v. Saeed, 2023 ONCA 627

[Hourigan J.A. (Motions Judge)]

Counsel:

M A. Russell, for the respondents/moving parties M.S. and M.I.S.
S. Tock, for the respondents/moving parties N.G., V.R., M.S. and R.S.
S. Singh, for the appellant/responding party

Keywords: Civil Procedure, Appeals, Orders, Security for Costs, Enforcement, Rules of Civil Procedure, r. 61.06(2), Virc v. Blair (2016), 134 O.R. (3d) 795 (C.A.), Dataville Farms Ltd. v. Colchester (Municipality), 2014 NSCA 95, 9383859 Canada Ltd. v. Navaratnam, 2021 ONCA 210, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184

facts:

The action giving rise to this appeal stemmed from a failed real estate transaction. The R Respondents and S Respondents brought successful motions for summary judgment dismissing the action against them on the basis that the relevant limitation period was missed, and the claim was statute-barred. 938 appealed the dismissal orders and Miller J.A. granted security for costs orders in favour of the respondents. A panel of the court refused to set aside Miller J.A.’s security for costs orders.

The R Respondents brought a motion under rule 61.06(2) of the Rules of Civil Procedure to dismiss the appeal against them on the basis that the appellant 938 had failed to comply with the security for costs order made by Miller J.A. directing it to post security for costs. The S Respondents moved for the same relief.

issues:
  1. Should the appeal be dismissed?
  2. Should costs of the appeal be awarded against S personally?
holding:

Motions granted.

reasoning:
  1. Yes

The appellant offered no valid excuse for its non-compliance with the security for costs orders. It submitted that the appeal should not be dismissed because it sought leave to appeal the panel decision refusing to set aside the security for costs orders to the Supreme Court of Canada.  In considering whether a dismissal is premature, the court should have regard to outstanding motions or applications. However, the mere existence of such proceedings is not sufficient to deny a dismissal order which should otherwise be made. The motion judge should have taken a hard look at any outstanding motions or applications to determine whether they had any chance of success. There were no plausible grounds to argue that the panel erred in dismissing the appeal of the orders of Miller J.A. The mere filing of the application of leave to appeal in these circumstances did not persuade Hourigan J.A that he should decline to exercise his discretion to dismiss the appeal for failure to post security for costs.

The appellant’s argument that the order for security for costs should not have been made was not persuasive. The orders of Miller J.A. were properly made and the Court agreed with his analysis. In particular, the Court agreed with Miller J.A.’s finding that the merits of the appeal were weak. It was evident that the limitation period was missed, and the Court saw no basis to interfere with the order dismissing the action against these respondents.

  1. No

It was unnecessary to determine whether the Court had the power to make such an order because Hourigan J.A was not satisfied that S’s litigation strategy amounted to an abuse of process. It appeared that S had used every appeal process available to 938. While Hourigan J.A. considered the frustration the respondents were feeling with the delays in this litigation, this conduct did not qualify as an abuse of process. In any event, if the Court did have the power to make the order sought, it should be reserved for the clearest of cases.

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon
Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario for the week of September 11, 2023.

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In Musa v Carleton Condominiumn Corporation, an occupiers’ liability slip and fall case, the Court dismissed the snow removal company’s appeal from an order finding it liable in negligence. The evidence at trial included expert evidence and industry best practices for snow-plowing and salting.

In Pridmore v. Drenth, the plaintiff was injured while riding as a passenger on an ATV. The driver of the ATV was convicted of two HTA offences for having driven the ATV on a highway after consuming alcohol. The insurer denied third-party liability coverage to the driver’s father, the owner of the ATV because he had given his son permission to drive on a road he mistakenly considered not to be a “highway”, in breach of a statutory condition of the policy. . The motion judge had determined that the father was entitled to coverage or if not, was entitled to relief from forfeiture. The accident occurred on a different highway from the one the son had been granted permission to drive on, and therefore the inadvertent breach of the statutory condition did not “taint” the whole trip so as to justify a denial of coverage. The Court agreed and dismissed the appeal.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Mohammad v. McMaster University , 2023 ONCA 598

Keywords: Civil Procedure, Appeals, Dismissal for Delay, Dismissal as Frivolous, Vexatious and Abuse of Process, Rules of Civil Procedure, Rule 2.1, Administration of Justice Act, R.S.O. 1990, c. A.6, s 4.10, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

Pridmore v Drenth , 2023 ONCA 606

Keywords: Contracts, Insurance, Automobiles, Coverage, Third-Party Liability, Breach of Statutory Conditions, Remedies, Relief from Forfeiture, Courts of Justice Act, R.S.O. 1990, s.98, Insurance Act, R.S.O. 1990, c. I.8. c. C.43 s.129, Miller v. Carluccio, 2008 ONCA 370, 91 O.R. (3d) 638, Becamon v. Wawanesa Mutual Insurance Company, 2007 CarswellOnt 9747 (S.C.), aff’d 2009 ONCA 113, Kozel v. The Personal Insurance Company, 2014 ONCA 130, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Kerr v. Danier Leather Inc. (2005), 77 O.R. (3d) 321 (C.A.), H.L. v. Canada (Attorney General), 2005 SCC 25

Musa v Carleton Condominium Corporation No. 255 , 2023 ONCA 605

Keywords: Torts, Negligence, Occupiers’ Liability, Slip and Fall, Standard of Care, Occupiers’ Liability Act, R.S.O. 1990, c. O.2, Waldick v Malcolm, [1991] 2 SCR 456, Housen v Nikolaisen, 2002 SCC 33, Walters v Ontario, 2017 ONCA 53, Fordham v Dutton-Dunwich(Municipality), 2014 ONCA 891, Donoghue v Stevenson, [1932] AC 562 (HL), Mabe Canada Inc v United Floor Ltd, 2017 ONCA 879

Short Civil Decisions

W.A.C. v C.V.F, 2023 ONCA 595

Keywords: Family Law, Child Protection

Ghasempoor v. ICapital Financial Services Corp., 2023 ONCA 607

Keywords: Fresh Evidence, First Elgin Mills Developments Inc v Romandale Farms Limited, 2015 ONCA 54

1947755 Ontario Ltd. v Lamframboise,, 2023 ONCA 604

Keywords: Civil Procedure, Orders, Interlocutory Orders, Enforcement, Contempt, Jurisdiction, The Catalyst Capital Group Inc. v Moyse, 2015 ONCA 784, Simmonds v Simmonds, 2013 ONCA 479

CIVIL DECISIONS

Mohammad v. McMaster University, 2023 ONCA 598

[van Rensburg, Nordheimer and George JJ.A.]]

Counsel:

A. M., acting in person

J.R. Bernardo and A. Anandarajah, for the respondent/responding party, McMaster University

D.M. Paul, for the respondent/responding party, CUPE, Local 3906

K. Martini, for the respondents/responding parties, G. C. and M. U.

A. Hassan and A. Matic, for the respondent, Google LLC

Keywords: Civil Procedure, Appeals, Dismissal for Delay, Dismissal as Frivolous, Vexatious and Abuse of Process, Rules of Civil Procedure, Rule 2.1, Administration of Justice Act, R.S.O. 1990, c. A.6, s 4.10, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

facts:

The appellant, AM had three appeals before the Court from orders dismissing actions brought by him as vexatious pursuant to r. 2.1.01 of the Rules of Civil Procedure.  Two of the appeals had been dismissed for delay by the registrar: (1) the appeal of the claim against McMaster University and CUPE, Local 3906 (“the McMaster appeal”) and (2) the appeal of the claim against Dr. GC, Dr. MU and SM (“the GC appeal”). In both appeals, the motion judge declined to set aside the registrar’s dismissal for delay. The appellant had filed a panel motion in each matter to review both motion judges’ decisions. The third appeal related to a claim brought against Google LLC (“the Google appeal”). The appellant had not perfected the appeal by the extended deadline granted by the Court. The appeal was not dismissed by the registrar for the delay while the appellant attempted to file deficient materials and then additional motions for a further extension of time.

With regards to the McMaster Appeal, the motion judge declined to set aside the registrar’s dismissal of the appeal for delay. The motion judge observed that the appellant pointed to no error in the r. 2.1 judge’s application of the relevant principles, analysis or conclusion and that the appellant had “doggedly and unsuccessfully pursued the same grievances against each of the respondents for several years.”

With regards to the GC appeal, the motion judge had declined to set aside the registrar’s dismissal of the appeal for delay. The motion judge concluded that there appeared to be no merit to the appeal and the underlying claim appears to have all the hallmarks of a vexatious claim.

With regards to the Google appeal, the motion judge granted the appellant a short extension to perfect his appeal. However, the appellant failed to perfect by the deadline.

issues:
  1. Did the motion judges err in declining to set aside the registrar’s dismissals for delay?
  2. Should the appellant be granted a fee waiver pursuant to s 4.10 of the Administration of Justice Act?
holding:

Appeal dismissed.

reasoning:
  1. No.

The Court noted that the application of r. 2.1 is “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”: Scaduto. The abusive nature of the proceedings were apparent on the face of each of the pleadings in the underlying court proceedings and in the documents the appellant filed and attempted to file with the Court. The Court held that resort to r. 2.1 was warranted.

The Court noted that the various notices of appeal, the related notices of motion and the appellant’s r. 2.1 submissions bore hallmarks of proceedings that were frivolous, vexatious and an abuse of process: Lochner. A common feature of the appellant’s different proceedings were that, even with a generous reading of the pleadings, there were no discernable or intelligible grounds of appeal, nor were there discernable or intelligible allegations in the statements of claim. Instead, what was set out in the notices of appeal and notices of motion for panel review were mostly spurious allegations against the judge who made the order.

The appellant’s submissions in response to the notices given under r. 2.1 and s. 4.10 of the Administration of Justice Act were also disjointed and non-responsive. The bulk of the submissions were bald and alleged conspiracies between the various respondents and others. The submissions contained over 100 pages of irrelevant attachments and multiple video and audio clips.

The Court concluded that although the appellant believed he had been wronged by the respondents, fairness in the adversarial process required the respondents and the Court to have been able to glean discernable causes of action in statements of claim and grounds of appeal in notices of appeal. Further, the Court stated that it was not in the interests of justice to allow the proceedings to continue. Prolonging the frivolous proceedings would only serve to occupy scarce judicial resources and place an undue burden on the various respondents who would be forced to respond to the vexatious litigation.

  1. No.

For the same reasons, the Court revoked the appellant’s fee waivers for the three proceedings and ordered that the appellant not make any further requests for a fee waiver under the Administration of Justice Act with respect to these or any related proceedings, without permission from a judge.

Pridmore v Drenth , 2023 ONCA 606

[Gillese, Benotto and Copeland JJ.A.]

Counsel:

J. Lin and K. Newton, for the appellant

A. Rachlin and S. Auld, for the respondent

Keywords:Contracts, Insurance, Automobiles, Coverage, Third-Party Liability, Breach of Statutory Conditions, Remedies, Relief from Forfeiture, Courts of Justice Act, R.S.O. 1990, s.98, Insurance Act, R.S.O. 1990, c. I.8. c. C.43 s.129, Miller v. Carluccio, 2008 ONCA 370, 91 O.R. (3d) 638, Becamon v. Wawanesa Mutual Insurance Company, 2007 CarswellOnt 9747 (S.C.), aff’d 2009 ONCA 113, Kozel v. The Personal Insurance Company, 2014 ONCA 130, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Kerr v. Danier Leather Inc. (2005), 77 O.R. (3d) 321 (C.A.), H.L. v. Canada (Attorney General), 2005 SCC 25

facts:

In 2013, T.D. bought two ATVs. He intended to give the smaller of the two ATVs to his son, T., who was 25 years old at the time, and keep the other ATV for himself. He insured both ATVs with Novex under a standard Ontario automobile policy that includes third-party liability coverage of $1,000,000 (the “Policy”). T.D. knew that T., a G1 licensee, was prohibited from driving alone on an Ontario highway and that a licensed driver had to be seated next to him.

On March 29, 2014, the day of the incident, a friend asked T. to bring his ATV to a field and use its winch to pull out his ATV which was stuck in the mud. T.D.’s ATV was the larger and more powerful of the two ATVs, so T. asked his father if he could take that one. His father consented. On the way home, because of the weather, T. drove the ATV along the shoulder of Bird Road, a highway, with B.P. as his passenger. The ATV hit a culvert and B.P. was thrown from the ATV and suffered serious injuries resulting in complete paraplegia.

T. had a G1 driver’s licence and was operating the ATV with the permission of his father, T.D. T. was convicted of two HTA offences for having driven the ATV on a highway after consuming alcohol. A G1 licensed driver is prohibited from driving a motor vehicle on a highway unless accompanied by a G licensed driver seated next to him. Moreover, a G1 licensed driver must have a blood alcohol concentration level of zero while driving on a highway.

Because T. violated the conditions of his G1 licence on the date in question, he was not entitled to third-party liability coverage from Novex.

Novex denied T.D. third-party liability coverage on the basis that he was in breach of Statutory Condition 4(1) (“SC 4(1)”) of the insurance policy by permitting T. to operate the ATV on a highway when he did not have the requisite driver’s licence. SC 4(1) provides as follows:

  • The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.

The question on the motion was whether T.D. was entitled to that coverage. The central issue on the motion was whether T.D. was in breach of SC 4(1) in granting T. permission to use the ATV on the day in question.

The motion judge determined that T.D. was entitled to coverage. He concluded that, on the day in question, T.D.’s consent to T.’s use of the ATV was clear and specific. He found that T.D. permitted T.: to drive the ATV from their residence onto Central Lane (under the mistaken belief that Central Lane was not a “highway” under the HTA) to get to the open field; from there, T. was to drive, via trails, to his friend’s stuck ATV; and, once the ATV was retrieved, T. was to drive home the way that he came.

The motion judge concluded that T.D.’s breach of SC 4(1) did not “taint” the entire trip because the breach of a statutory condition must be determined at the specific time of the incident and the incident occurred on a highway on which T. had not been given permission to drive (Bird Road).

issues:
  1. Did the motion judge make a palpable and overriding error in finding that T.D. did not give T. permission to drive on the shoulders of roads?
  2. Did the motion judge err in finding that T.D. was entitled to third-party coverage despite having breached SC 4(1) and section 1.4.5 of the standard Ontario automobile policy (the “OAP 1”)
  3. Did the motion judge err by, alternatively, granting T.D. relief from forfeiture?
holding:

Appeal dismissed.

reasoning:

Issue 1. and 2. No

Issue 1 and Issue 2 were so closely intertwined that they were considered together.

On Issue 1, Novex submitted that the motion judge disregarded, misapprehended, and failed to appreciate relevant evidence. On Issue 2, Novex submitted that T.D. was not entitled to coverage because he breached SC 4(1) by permitting T., an under-licensed driver, to drive his ATV on the shoulders of highways on the date of the loss.

The Court did not accept either submission. Novex conceded that the motion judge applied the correct legal principles in determining whether T.D. was in breach of SC 4(1) at the time of the incident. The Court held that the motion judge’s findings were not “clearly wrong”, nor were they “unsupported by the evidence”: Kerr v. Danier Leather Inc., citing H.L. v. Canada (Attorney General). Consequently, there was no basis for appellate intervention with the motion judge’s determination that T.D. was entitled to the third-party liability coverage.

The motion judge correctly approached the issue of the terms of the permission that T.D. gave T. for use of the ATV on the day in question. He divided his analysis into two parts. First, he set out the law for interpreting “permit,” in the context of SC 4(1), in accordance with the decision in Miller. Permission connotes “knowledge, wilful blindness, or at least a failure to take reasonable steps to inform one’s self of the relevant facts”: Miller, at para. 6. Based on that, the motion judge found that T.D. was in breach of SC 4(1) when he permitted T. to drive the ATV on Central Lane, because Central Lane is a highway and T.’s G1 licence barred him from driving on a highway without a licensed driver seated next to him.

The motion judge then proceeded to the second part of his analysis. The fact that T.D. was in breach of SC 4(1) when he permitted T. to drive on Central Lane, to access the fields and to return home, did not automatically disentitle T.D. from coverage under the Policy. The motion judge stated that to determine whether T.D. was entitled to coverage, the breach of SC 4(1) had to taint the trip, including at the time the incident took place. Based on Becamon, because T.D. did not know nor ought to have known that T. would drive the ATV on a highway other than Central Lane, the motion judge concluded that T.D. was not in breach of SC 4(1) at the time of the incident.

The motion judge made factual findings as required by the applicable legal principles. The motion judge’s reasons for concluding that T.D. was not in breach of SC 4(1) at the time of the incident included the following. The ATVs were under lock and key in the shed. Only T.D. had the key. Whenever T. wanted to use an ATV, he had to have his father’s permission. T.D. knew that T. could not drive unaccompanied on a highway because he had only a G1 licence. While T.D. had permitted T. to drive on Central Lane, that was based on his mistaken belief that Central Lane was not a highway.

The motion judge’s reasons were adequate to explain why he rejected Novex’s arguments and, instead, found that, on the day in question, T.D. gave T. clear and specific permission to: drive the ATV to the fields by means of Central Lane; assist his friend in extricating his ATV that was stuck in the mud; and, then return home following the same path.

  1. No

Novex’s submission on this issue was based on the same argument made on the first two issues, namely that the motion judge erred in his factual findings. However, there was no basis for appellant interference with the motion judge’s exercise of discretion in granting relief against forfeiture.


Musa v Carleton Condominium Corporation No. 255 , 2023 ONCA 605

[Roberts, Miller and Coroza JJ.A.]

Counsel:

D. Zarek and M. Owen, for the appellants

B. Hollingsworth and G. Mactaggart, for the respondent

Keywords:Torts, Negligence, Occupiers’ Liability, Slip and Fall, Standard of Care, Occupiers’ Liability Act, R.S.O. 1990, c. O.2, Waldick v Malcolm, [1991] 2 SCR 456, Housen v Nikolaisen, 2002 SCC 33, Walters v Ontario, 2017 ONCA 53, Fordham v Dutton-Dunwich(Municipality), 2014 ONCA 891, Donoghue v Stevenson, [1932] AC 562 (HL), Mabe Canada Inc v United Floor Ltd, 2017 ONCA 879

facts:

During a snowstorm in Ottawa on December 5, 2016, the respondent slipped and fractured his ankle on a slippery roadway outside his condominium owned by Carleton Condominium Corporation No. 255 (“Carleton”). The roadway was plowed but not salted by Exact Post Ottawa Inc. (“Exact Post”), the snow removal contractor for the condominium. The respondent sued Carleton and Exact Post. The trial focused on whether the timing of Exact Post’s application of road salt was consistent with the reasonableness standard of care required of a commercial snow removal contractor. The trial judge concluded that the delay in applying road salt was due to an inherent problem in Exact Post’s system, finding Exact Post negligent in its failure to apply road salt in an appropriate and timely manner. The trial judge found that given the weather conditions, Exact Post was reasonably required to apply road salt promptly; however, it failed to do so. Exact Post sought to challenge the trial judge’s determinations on the standard of care and causation.

issues:
  1. Did the trial judge misapply the reasonableness standard of care by finding that the appellant should have arrived at the premises at 6 a.m.?
  2. Did the trial judge misapprehend the evidence that suggested that the appropriate standard of care was to apply salt after plowing the entire condominium property?
  3. Did the trial judge fail to look at the spectrum of characteristics set out in Waldick v Malcolm in his standard of care analysis?
holding:

Appeal dismissed.

reasoning:
  1. No.

As per Housen v Nikolaisen, questions of law are reviewable on a standard of correctness. In the negligence context, the determination of the duty of care is a question of law, and the application of the standard of care and the determination of the issue of causation are questions of mixed fact and law: Walters v. Ontario. The appellant’s contract with the condominium stated that it “shall attempt to confine its work to the hours between 6 a.m. and 11 p.m.” The appellant argued that the trial judge held it to a standard of perfection by requiring it to attend the premises at 6:00 a.m. This situation would be “commercially impossible” and require constant surveillance or an instant response. The Court saw no merit in this submission and found that the trial judge properly identified and applied the correct reasonableness standard of care. The Court concluded that the trial judge did not misapply the appropriate standard of care. The trial judge focused on the lag between the clearing of snow and the subsequent application of the road salt. It was open to him to find that this was neither timely nor appropriate.

  1. No.

The appellant claimed that the evidence supported its argument that a contractor must finish plowing the entire property before applying salt. The expert witness provided evidence that the road salt must be spread concurrently with or immediately after plowing to prevent ice/pavement bond. Having opted not to pre-salt, the appellant then failed to salt the area concurrently with or immediately after plowing. At the time of the accident, ice formation was foreseeable. The trial judge identified that the appellant’s breach stemmed from its problematic system of relying on one individual for salt application at multiple properties. The trial judge found the industry best practices guidelines to be relevant, supporting the expert’s opinion on the proper application of road salt. The duty to take reasonable care existed independently of any contractual obligation. The Court was not satisfied that the trial judge committed any palpable and overriding error in his determination and application of the standard of care.

  1. No.

Although the trial judge did not explicitly cite the Supreme Court’s decision in Waldick, the thrust of his analysis was consistent with the contextual analysis that the SCC espoused. In Waldick, a slip and fall case, the court articulated several factors to consider in assessing reasonable care. The Court found that these factors informed the trial judge’s decision in this case. The trial judge identified that: the incident took place amidst a snowstorm that set in at 4 a.m. at a residential condominium property; the temperature was just below freezing; and ice formation was readily foreseeable. He considered in some detail the preventative measure of pre-salting the property, and he expressly made a finding on the type and quality of footwear of the respondent’s winter boots. Further, the trial judge considered and accepted the expert evidence and industry best practices guidelines in determining the appropriate standard of care. The Court concluded that the trial judge’s analysis was entirely in keeping with Waldick.

SHORT CIVIL DECISIONS

W.A.C. v C.V.F, 2023 ONCA 595

[Gillese, Benotto and Copeland JJ.A]

Counsel:

W.A.C., acting in person

C.V.F., acting in person

Keywords: Family Law, Child Protection

Ghasempoor v ICapital Financial Services Corp., 2023 ONCA 607

[Pardu, Roberts and Miller JJ.A.]

Counsel:

A.G, acting in person and for Atciti Corp.

P. Smiley, for the responding party, iCapital Financial Services Corp.

Keywords:Fresh Evidence, First Elgin Mills Developments Inc v Romandale Farms Limited, 2015 ONCA 54

1947755 Ontario Ltd. v Laframboise , 2023 ONCA 604

[Feldman, Paciocco and Sossin JJ.A.]

Counsel:

Doug Laframboise, for the appellants

No one appearing for the respondent

Keywords: Civil Procedure, Orders, Interlocutory Orders, Enforcement, Contempt, Jurisdiction, The Catalyst Capital Group Inc. v Moyse, 2015 ONCA 784, Simmonds v Simmonds, 2013 ONCA 479

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.