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Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 19, 2024.

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In Shannon v Hrabovsky, a successful will-challenge case, the Court confirmed that the two-year limitation period to challenge a will starts to run from when the disappointed beneficiary applicant first obtained a copy of the will that disinherited them.

Wu v Suevilia Development Corporation interprets the notice provisions for the unilateral change of closing dates imposed by builders under the Tarion Addendum to agreements of purchase and sale of new-build homes. In this case, the buyer was not able to avoid the forfeiting of their substantial deposit.

In Los v Ross, the Court upheld the motion judge’s determination that the court had jurisdiction over a parenting dispute between a couple that lived in Montreal and whose child was born and raised there for the first six months of the child’s life. After the parties separated, the mother moved to Ontario with the child to live with her parents, with the father’s acquiescence. This acquiescence, over a period of about five months, was sufficient to support a finding that the child was habitually resident in Ontario and therefore the Ontario court had jurisdiction to determine the issues of parenting and child support.

In Gill v. Maciver, the Court a doctor sued various other doctors and other individuals over social media criticism of the doctor’s stance towards the government’s response to the COVID-19 pandemic. The motion judge dismissed the claims under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act. The criticisms of the doctor’s stance were commentaries on matters of public interest and protected by the defence of fair comment. The Court dismissed the appeal.

In Rimon v. CBC Dragon Inc., the Court upheld the motion judge’s dismissal of the appellants’ defence and counterclaim for failure to answer undertakings and produce documents.

In 8167800 Canada Inc (Lead Home Renovation) v Denison Limited, the appellant was successful in obtaining relief from forfeiture. However, in granting that relief, the motion judge found that the appellant had been manufacturing kitchen cabinets in breach of the use clause in the lease. The appellant was ordered to cease breaching the use clause and appealed that aspect of the order. The appeal was dismissed.

In 2682283 Ontario Ltd (Volcano Café and Lounge) v. Durham (Regional Municipality), the appellant, a hookah lounge, was unsuccessful in challenging a municipal smoking and vaping by-law enacted by Durham Region. The decision primarily discusses the authority of the Regional Senior Justice of the Ontario Court of Justice under the Provincial Offences Act to set fines for the breach of the by-law.

Other topics this week included a fee dispute between lawyer and client dressed up as a claim in negligence, and the dismissal of another claim against a lawyer as frivolous and vexatious.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Shannon v. Hrabovsky, 2024 ONCA 120

Keywords: Wills and Estates, Capacity, Suspicious Circumstances, Civil Procedure, Limitation Periods, Discoverability, Appeals, Fresh Evidence, Limitations Act, 2002, SO 2002, c 24, Sched B, s 4, 5(1)(a)(iv)(2), Courts of Justice Act, RSO 1990, c C 43, s 134(1), Rules of Civil Procedure, r 4.06(2), St. Amand v Tisi, 2018 ONCA 106, Palmer v The Queen, [1980] 1 SCR 759, Levy v Fitzgerald, 2012 ONSC 2105, 27 C.P.C. (7th) 225, Dean v Mister Transmission (International) Limited, 2010 ONCA 443, Iroquois Falls Power Corporation v Ontario Electricity Financial Corporation, 2016 ONCA 271, Barendregt v Grebliunas, 2022 SCC 22, Benhaim v St-Germain, 2016 SCC 48, South Yukon Forest Corp. v R., 2012 FCA 165, Grant Thornton LLP v New Brunswick, 2021 SCC 31, Leibel v Leibel, 2014 ONSC 4516, Birtzu v McCron, 2017 ONSC 1420, Sengmueller v Sengmueller (1994), 17 OR (3d) 208 (CA), Vout v Hay, [1995] 2 SCR 876, Scott v Cousins (2001), 37 ETR (2d) 113 (Ont SC), Stekar v Wilcox, 2017 ONCA 1010, Waxman v Waxman (2004), 186 OAC 201 (CA)

Wu v. Suevilia Development Corporation, 2024 ONCA 124

Keywords: Contracts, Interpretation, Standard of Review, Real Property, Agreements of Purchase and Sale of Land, New Homes, Tarion Addendum, Ontario New Home Warranties Plan Act, RSO 1990, c O 31, O Reg 165/08, Warranty For Delayed Closing or Delayed Occupancy, s 7, O Reg 273/04, Designation of CorporationReddy v 1945086 Ontario Inc., 2019 ONSC 2554, Canadian Imperial Bank of Commerce v Urbancorp (Leslieville) Developments Inc., 2020 ONCA 449, Housen v Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Ontario New Home Warranty Program v Lukenda (1991), 2 OR (3d) 675 (CA), Wong v Greyrock (Saddlebrook) Building Corp. (1993), 34 RPR (2d) 215 (Ont Gen Div)

Los v. Ross, 2024 ONCA 122

Keywords: Family Law, Parenting, Child Support, Civil Procedure, Jurisdiction, Children’s Law Reform Act, R.S.O. 1990, c. C.12,s.22(2), Dovigi v. Razi, 2012 ONCA 361, Zafar v. Azeem, 2024 ONCA 15, Office of the Children’s Lawyer v. Balev, 2018 SCC 16

Gu v. Huang, 2024 ONCA 129

Keywords: Contracts, Solicitor and Client, Torts, Professional Negligence, Breach of Fiduciary Duty, Standard of Care, Civil Procedure, Security for Costs, Rules of Professional Conduct

Regan v. Esterbauer, 2024 ONCA 139

Keywords: Contracts, Solicitor and Client, Torts, Professional Negligence, Civil Procedure, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, r. 21.01(3)(d), Lang Michener LLP v King, 2017 ONSC 1917

Gill v. Maciver, 2024 ONCA 126

Keywords: Torts, Defamation, Constitutional Law, Freedom of Speech, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990 C. c.43, s.137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Bent v. Platnick, 2020 SCC 23, Hansman v. Neufeld, 2023 SCC 14, Levant v. DeMelle, 2022 ONCA 79, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129

Rimon v. CBC Dragon Inc., 2024 ONCA 128

Keywords: Civil Procedure, Documentary and Oral Discovery, Orders, Enforcement, Striking Pleadings, Rules of Civil Procedure, Rules 30.08, 60.12, Bottan v. Vroom, 2002 CanLII 41691 (Ont. C.A.), Aslezova v. Khanine, 2023 ONCA 153, Newlove v. Moderco Inc., 2002 CanLII 34748 (Ont. S.C.), Falcon Lumber Limited. v. 24803375 Ontario Inc., 2020 ONCA 310

8167800 Canada Inc (Lead Home Renovation) v Denison Limited, 2024 ONCA 146

Keywords: Contracts, Real Property, Commercial Leases, Permitted Uses, Assignments, Equitable Remedies, Relief from Forfeiture, Civil Procedure, Reasonable Apprehension of Bias, Costs, Hamilton v Open Window Bakery Ltd, 2004 SCC 9

2682283 Ontario Ltd (Volcano Café and Lounge) v. Durham (Regional Municipality) , 2024 ONCA 132

Keywords: Municipal Law, By-laws, Health, Business Regulation, Municipal Act, 2001, S.O. 2001, c. 25, s. 115(1), 115(5), 273, Durham Region Smoking By-Law No. 28-2019, s. 10.1, 11.1, Provincial Offences Act, R.S.O. 1990, P.33, ss. 3, 5, 21, 91.1(2), Health Protection and Promotion Act, R.S.O. 1990, c. H.7, Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200, Courts of Justice Act, R.S.O. 1990, c. C.43, Foley v. St. Mary’s (Town), 2016 ONCA 528, Sheilagh Stewart and Jane Moffatt, Stewart & Moffatt on Provincial Offences Procedure in Ontario, 4th ed. (Salt Spring Island: Earlscourt Legal Press Inc., 2020)

Short Civil Decisions

Sokil v. Buffone, 2024 ONCA 127

Keywords: Wills and Estates, Civil Procedure, Contempt, Appeals, Stay Pending Appeal, Costs, Succession Law Reform Act, R.S.O. 1990, c. S.26, Part II, Brad-Jay Investments Limited v. Village Developments Limited (2006), 2006 CanLII 42636 (ON CA), leave to appeal refused, [2007] S.C.C.A. No. 92

9806881 Canada Corp. v. Swan, 2024 ONCA 133

Keywords: Civil Procedure, Costs

Lengyel v. Public Guardian and Trustee, 2024 ONCA 130

Keywords: Civil Procedure, Appeals


CIVIL DECISIONS

Shannon v. Hrabovsky, 2024 ONCA 120

[Roberts, Sossin and Dawe JJ.A.]

Counsel:

N. Ronski, for the appellants

V. Msi, for the respondent

Keywords: Wills and Estates, Capacity, Suspicious Circumstances, Civil Procedure, Limitation Periods, Discoverability, Appeals, Fresh Evidence, Limitations Act, 2002, SO 2002, c 24, Sched B, s 4, 5(1)(a)(iv)(2), Courts of Justice Act, RSO 1990, c C 43, s 134(1), Rules of Civil Procedure, r 4.06(2), St. Amand v Tisi, 2018 ONCA 106, Palmer v The Queen, [1980] 1 SCR 759, Levy v Fitzgerald, 2012 ONSC 2105, 27 C.P.C. (7th) 225, Dean v Mister Transmission (International) Limited, 2010 ONCA 443, Iroquois Falls Power Corporation v Ontario Electricity Financial Corporation, 2016 ONCA 271, Barendregt v Grebliunas, 2022 SCC 22, Benhaim v St-Germain, 2016 SCC 48, South Yukon Forest Corp. v R., 2012 FCA 165, Grant Thornton LLP v New Brunswick, 2021 SCC 31, Leibel v Leibel, 2014 ONSC 4516, Birtzu v McCron, 2017 ONSC 1420, Sengmueller v Sengmueller (1994), 17 OR (3d) 208 (CA), Vout v Hay, [1995] 2 SCR 876, Scott v Cousins (2001), 37 ETR (2d) 113 (Ont SC), Stekar v Wilcox, 2017 ONCA 1010, Waxman v Waxman (2004), 186 OAC 201 (CA)

facts:

The testator A.H. (the “testator”), who died in November 2014, had two adopted children: G.S., who is the respondent in this appeal, and G.H., who is one of the two appellants. The second appellant, M.H., is the testator’s brother.

In April 2002 the testator executed a last will and testament (the “2002 Will”) which left equal bequests of ten percent of the residue of his estate to G.S and G.H’s children and divided the remainder equally between G.S. and G.H. In November 2006 the testator executed a new will (the “2006 Will”) which was even more favourable to G.S. In July 2007, the testator executed another will (the “2007 Will”) which disinherited G.S. and removed her as an executor.

After the testator’s death in November 2014, G.S. commenced an application in which she challenged the validity of the 2007 Will, contending that the testator had lacked testamentary capacity when he made it.

The application judge granted the application, set aside the 2007 Will, and restored the 2006 Will as the testator’s true last will and testament. However, he did not give effect to G.S’s alternative argument that the testator had been subject to undue influence from G.H. when he made the 2007 Will.

issues:
  1. Did the application judge err in not finding that G.S’s application was statute-barred by the two year limitation period and should fresh evidence be allowed to establish that ground of appeal?
  2. Did the application judge err by giving insufficient weight to the evidence supporting the appellants’ position that the testator had testamentary capacity when he made the 2007 Will and should fresh evidence be allowed to establish that ground of appeal?
holding:

Appeal and motion to adduce fresh evidence dismissed.

reasoning:
  1. No.

The appellants’ first ground of appeal took issue with the application judge’s conclusion that G.S’s challenge to the validity of the 2007 Will was not statute-barred. They argued that the two-year limitation period began to run on the date of the testator’s death. The application judge disagreed, finding that the principle of discoverability delayed the commencement of the running of the two years to more than two years from the testator’s death, as G.S. had not discovered the 2007 Will until January 2015.

Proposed Fresh Evidence

The appellants sought to adduce fresh evidence in the form of a new affidavit by the lawyer who executed the testator’s 2007 Will, Ms. Woodruff, which appends as an exhibit a letter that the lawyer received from another who was acting for G.S., Mr. Pease (the “Pease letter”).

The appellants argued that the Pease letter contradicted G.S’s 2016 affidavit, because it showed that she learned about the existence of the 2007 Will in a telephone conversation with Ms. Woodruff at some point before December 16, 2014.

The principles governing the admission of fresh evidence in civil appeals were summarized as follows by this court in St. Amand v. Tisi:

The party seeking to introduce the fresh evidence must show that the proposed evidence:

  • Is credible;
  • Could not have been obtained by reasonable diligence before trial or application; and
  • If admitted, would likely be conclusive of an issue in the appeal.

The overriding criterion is that fresh evidence will be admitted only where it is in the interests of justice to do so.

In the Court’s view, the fresh evidence in Ms. Woodruff’s 2019 affidavit bearing on the limitations issue, including the appended Pease letter, failed to meet the last two prongs of the test.

Reasonable Diligence

The appellants did not meet their burden of demonstrating that they could not have put the Pease letter or Ms. Woodruff’s evidence bearing on the limitations issue into evidence on the application if they had exercised reasonable diligence.

Impact on issue in the appeal – Not conclusive of the limitation period issue

The Court was also satisfied that the Pease letter and Ms. Woodruff’s proposed fresh evidence regarding her communications with G.S. and her lawyer after the testator’s death would not be conclusive on the issue of whether G.S’s application was statute-barred. Under ss. 5(1)(a)(iv) and 5(1)(b) of the Limitations Act, 2002, the limitations clock only starts to run once the litigant first knew, or a reasonable person with the abilities and in the circumstances of the litigant ought to have known, “that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”. It was open to the application judge to conclude that it would have been premature for G.S to have started legal proceedings to challenge the 2007 Will until she received a copy of it and could examine its terms.

The appellants argued that the Court should conclude that Ms. Woodruff gave G.S. specific information about the terms of the 2007 Will during their telephone conversation that preceded the Pease letter. The Court did not give effect to this argument for four main reasons:

  • The appellants’ factual claims about what Ms. Woodruff told G.S during their telephone conversation were unsupported by any evidence to this effect from Ms. Woodruff.
  • If the appellants were to seek to support their factual claims about what Ms. Woodruff told G.S during their telephone conversation by presenting a new affidavit from Ms. Woodruff, they would run into the same problem already discussed: namely, their inability to explain why they did not put this evidence before the application judge.
  • Even if Ms. Woodruff did say things to G.S during their telephone conversation that either informed G.S or implied to her that she was not a beneficiary under the 2007 Will, the Court was not satisfied that this information would have been sufficient to allow G.S to decide whether litigation to challenge the will’s validity was “appropriate”.
  • S’s uncontradicted evidence is that she only decided to challenge the 2007 Will after she obtained a copy of it and saw that the will not only disinherited her, but also would have eliminated her children’s contingent interest in the residue of the estate if G.H. had died before the testator.

The limitation clock in the case at bar only began to run as of the January 2015 deadline that Mr. Pease set in his letter to Ms. Woodruff, and that he later extended.

The Court was satisfied that even if the Pease letter had been put before the application judge, it would not have changed his conclusion that the limitation clock did not start to run until January 2015, and that G.S’s application was accordingly not statute-barred. If the Pease letter were admitted as fresh evidence, it would not “likely be conclusive” on the limitations issue.

The Court refused to admit the Pease letter and Ms. Woodruff’s 2019 affidavit evidence about her communications with G.S and her lawyer as fresh evidence on appeal.

  1. No.

The appellants’ second ground of appeal was that the application judge erred by finding that the testator did not have testamentary capacity when he executed his disputed 2007 Will. They also sought to support this ground of appeal with fresh evidence from Ms. Woodruff.

The appellants maintained that the testator changed his will in 2007 to disinherit G.S. because he was angry with her over an incident when she had allegedly put charges on his credit card without his permission.

The application judge held in accordance with the legal authorities that G.S. bore the initial burden of introducing “evidence of suspicious circumstances”. The application judge concluded that G.S. had met her threshold burden, identifying “a number of suspicious circumstances that collectively suggest that the Testator lacked testamentary capacity when he executed the 2007 Will”. The application judge’s finding that there were “suspicious circumstances” shifted the burden back to the appellants to prove on a balance of probabilities that the testator had had the necessary testamentary capacity when he signed the 2007 Will. The application judge held that the appellants had not met this burden.

Proposed Fresh Evidence

The appellants sought to adduce as fresh evidence a further affidavit from Ms. Woodruff that she swore in April 2019, several months after the application judge’s decision. Her affidavit indirectly challenged the application judge’s conclusion that the testator’s decision to disinherit G.S. was “inexplicable and out of character”.

This proposed fresh evidence from Ms. Woodruff failed the second and third prong of the test for admitting fresh evidence in civil appeals, summarized above.

Reasonable Diligence

The appellants did not provide any explanation as to why the additional evidence in Ms. Woodruff’s April 2019 affidavit was not put before the application judge.

Impact on issue in the appeal – Not conclusive of an issue in the appeal

The Court was not satisfied that the proposed fresh evidence, if admitted, “would likely be conclusive of an issue in the appeal”.

Although there was evidence that the testator had been diagnosed with “mild dementia” in September 2005, nobody was suggesting that it was proved that he had lacked testamentary capacity before 2007.

The proposed fresh evidence in Ms. Woodruff’s 2019 affidavit about the circumstances in which the testator signed the 2007 Will largely covered the same ground as her 2017 affidavit and the transcript of her cross-examination on this affidavit. As the application judge noted in his reasons, Ms. Woodruff’s evidence was that she had “interviewed [the testator] alone” and been “fully satisfied that he was giving me his clear instruction and that he did not exhibit any impairment of testamentary capacity”. All that Ms. Woodruff’s 2019 affidavit did was to expand on her confidence in the correctness of her opinion. To the extent that the fresh evidence might have shown that the application judge made errors of fact, the Court was satisfied that any such errors were not “overriding”.

The Court was not prepared to admit the appellants’ proposed fresh evidence. The interests of finality weighed strongly against its admission, given the appellants’ complete failure to explain why this evidence, all of which was or could easily have been known to them at the time of the application, was not put before the application judge.


Wu v. Suevilia Development Corporation, 2024 ONCA 124

[Simmons, Paciocco and Thorburn JJ.A.]

Counsel:

P. H. Starkman, for the appellant

P. K. Martin, for the respondent

Keywords: Contracts, Interpretation, Standard of Review, Real Property, Agreements of Purchase and Sale of Land, New Homes, Tarion Addendum, Ontario New Home Warranties Plan Act, RSO 1990, c O 31, O Reg 165/08, Warranty For Delayed Closing or Delayed Occupancy, s 7, O Reg 273/04, Designation of CorporationReddy v 1945086 Ontario Inc., 2019 ONSC 2554, Canadian Imperial Bank of Commerce v Urbancorp (Leslieville) Developments Inc., 2020 ONCA 449, Housen v Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Ontario New Home Warranty Program v Lukenda (1991), 2 OR (3d) 675 (CA), Wong v Greyrock (Saddlebrook) Building Corp. (1993), 34 RPR (2d) 215 (Ont Gen Div)

facts:

The appellant, Z.W., agreed to purchase a pre-construction home from Suevilia Development Corporation under an agreement of purchase and sale (the “APS”). Because the APS related to the sale of a pre-construction home, Suevilia was required by O. Reg. 165/08 to attach the Tarion Addendum to the APS. The Tarion Addendum establishes procedures for setting and changing closing dates under the APS.

Under the terms of the Tarion Addendum, at the time the APS is signed, the Vendor must specify a First Tentative Closing Date in a Statement of Critical Dates. Thereafter, the Vendor has the option of unilaterally delaying Closing on up to two occasions for periods of up to 120 days each by setting a Second Tentative Closing Date and/or a Firm Closing Date. To do so, the Vendor must give written notice to the Purchaser at least 90 days prior to the immediately preceding properly set closing date. As required under the Tarion Addendum, Suevilia identified July 31, 2018, as the First Tentative Closing Date. About two months after the APS was signed, on May 30, 2017, Mr. W asked that the “Closing Date” be amended to May 31, 2018. Suevilia agreed.

The parties signed a new Statement of Critical Dates advancing the First Tentative Closing Date from July 31, 2018, to May 31, 2018, and also advancing the outer limits for the Second Tentative Closing Date, Firm Closing Date and Outside Closing Date established in the original Statement of Critical Dates.

Suevilia took the position that it subsequently sent notices to Mr. W setting a Second Tentative Closing Date, a Firm Closing Date, and two Delayed Closing Dates. Mr. W, took the position that the notices sent by Suevilia were defective, either because they did not specify which Critical Date they were setting, did not provide proper notice, did not include a revised Statement of Critical Dates and/or because they did not refer to entitlement to delayed closing compensation.

Mr. W maintained that because of the deficiencies in the notices, in accordance with the terms of the Tarion Addendum, the First Tentative Closing Date was deemed to be the Firm Closing Date, and that the other closing dates Suevilia purported to set, including the December 18, 2018 closing date, were not properly set. He submitted that Suevilia therefore repudiated the APS by serving its notice of default, and that Suevilia also breached the terms of the APS by failing to pay delayed closing compensation.

In January 2019, Suevilia commenced an action against Mr. W claiming forfeiture of the deposit and damages for its losses in reselling the property. Mr. W sued Suevilia for, among other things, return of his $300,000 deposit. Mr. W moved for summary judgment in both actions, seeking dismissal of Suevilia’s action and the return of his deposit. The motion judge dismissed both of Mr. Wu’s motions and ordered that the deposit be forfeited to Suevilia since Suevilia complied with the necessary timelines for giving notice and it was obvious in each instance which Critical Date was being set. Further, it was apparent from the record that Mr. W had not taken any steps toward closing the transaction.

issues:
  1. Did the motion judge err in concluding that Suevilia’s notices to set Critical Dates complied with the Tarion Addendum?
  2. Did the motion judge err in finding that Suevilia was ready, willing and able to close the transaction on December 18, 2018?
  3. Did the motion judge err in finding that Delayed Closing Compensation was not payable to Mr. Wu?
  4. Did the motion judge err in finding that Mr. W forfeited his deposit?
holding:

Appeal dismissed.

reasoning:
  1. No.

On May 30, 2017, Mr. W sent a letter to Suevilia requesting Suevilia “to amend the Closing Date to May 31, 2018. Suevilia agreed and the parties executed an undated revised Statement of Critical Dates, which, among other things, advanced the First Tentative Closing Date to May 31, 2018, and reduced the outer limits for the other Critical Dates.

The respondent subsequently sent written notices to Mr. W delaying various closing dates and, ultimately, setting the December 18, 2018 closing date. On December 17, 2018, Suevilia sent an email reminder to Mr. W of the impending December 18, 2018 closing date. Suevilia did not receive a response to its December 17, 2018 email within the specified timeframe. Suevilia served a Certificate of Default on Mr. W on January 7, 2019 and subsequently resold the home in April 2019. As noted above, Mr. W took the position that the notices sent by Suevilia were defective.

In Canadian Imperial Bank of Commerce v. Urbancorp (Leslieville) Developments Inc, the Court of Appeal identified the standard of review for interpretation of the Tarion Addendum as correctness. Questions of fact and questions of mixed fact and law are reviewable on a standard of palpable and overriding error. In the Court’s view, the motion judge made no error in holding that Suevilia’s February 26, 2018 notice, setting a “new Tentative Closing Date”, operated to set August 30, 2018 as the “Second Tentative Closing Date”. Section 1 therefore did not operate to deem May 31, 2018 as the Firm Closing Date. Consequently, the Court rejected the argument that the notice periods for Suevilia’s subsequent notices should have been calculated with reference to May 31, 2018. Under both paragraph 1 of the Tarion Addendum and the terms of the revised Statement of Critical Dates signed by the parties after Mr. W’s May 30, 2017 request to change the “Closing Date” to May 31, 2018, the only Tentative Closing Date the Vendor was entitled to set unilaterally by written notice following execution of the APS, was the Second Tentative Closing Date. As the motion judge held, it would have been patently obvious that, in stating it was setting a “new Tentative Closing Date”, Suevilia could only have been referring to setting the “Second Tentative Closing Date” as permitted under the Tarion Addendum.

The Court also agreed with the motion judge that Suevilia was not required to send a revised Statement of Critical Dates to Mr. W when sending its notices postponing Critical Dates. The Tarion Addendum explicitly required that a revised Statement of Critical Dates be prepared where the parties make changes to Critical Dates by mutual agreement under s. 4. There was no similar requirement in ss. 1 or 3, which address setting Tentative Closing Dates and the Firm Closing.

The Court also viewed that the “Note” set out at the bottom of the Statement of Critical Dates signed by the parties following Mr. W’s request to change the “Closing Date”, made it clear that, when a Critical Date is set or changed as permitted in the Addendum, it was the responsibility of both the Vendor and the Purchaser to calculate resulting changes in other Critical Dates. Thus, the Court rejected Mr. W’s argument that all of Suevilia’s notices were invalid because they did not include a revised Statement of Critical Dates.

So long as the written notice complies with the deadlines specified in the Tarion Addendum and the circumstances make it obvious which Critical Date is being set or changed by a notice, a failure to use the precise nomenclature identified in the Tarion Addendum should not in itself invalidate the notice.

Where timely notice is provided and it is obvious from the circumstances which Critical Date a Vendor is purporting to set, invalidating a notice because of an obvious nomenclature flaw would undermine the goals of providing fairness to both builders and purchasers and of recognizing the inevitability of certain delays in new home construction. Purchasers have an obligation to acquaint themselves with the scheme of, and formula for, setting Critical Dates. While Vendors have an obligation under para. 1(e) of the Tarion Addendum, to “set out the stipulated Critical Date, as applicable”, when giving a notice setting a Second Tentative Closing Date or Firm Closing Date, under para. 1(c) or (d), minor failures in nomenclature that do not create uncertainty about the Critical Date being set should not invalidate a timely notice.

  1. No.

Given that the Court rejected the argument that the December 18, 2018 closing date was not properly set, Mr. W’s argument that the motion judge erred in finding that Suevilia was ready, willing and able to close on December 18, 2018 turned on whether the motion judge erred in finding that it was Mr. W’s obligation under the APS to obtain the occupancy permit.

The motion judge relied on s. 9(a) of the APS to hold that it was Mr. W’s obligation to obtain the occupancy permit. Section 9(a) of the APS stipulated that unless otherwise required by the Municipality, it was the Purchaser’s obligation to obtain any occupancy permit from the Municipality.

There was no evidence that the Municipality required the Vendor to obtain the occupancy permit. Section 9 of the Tarion Addendum also addressed who had the obligation to provide an occupancy permit. Although it stipulated that the Vendor shall deliver an occupancy permit to the Purchaser prior to closing, it also allowed for “Purchaser Occupancy Obligations” to be created by mutual agreement.

The motion judge concluded that s. 9(b) of the Tarion Addendum permitted the parties to agree that Mr. W was “responsible for one or more prerequisites to obtaining permission for occupancy under the Building Code” and that, by s. 9(a) of the APS, they had placed the obligation on him to obtain the occupancy permit. She concluded that because s. 9(b) of the Tarion Addendum permitted the parties to make the purchaser responsible for such prerequisites to occupancy, s. 9(a) of the APS requiring the purchaser to obtain the occupancy permit, was not inconsistent with the Tarion Addendum.

In the Court’s view, the motion judge was correct in holding that s. 9(a) of the APS was not inconsistent with s. 9 of the Tarion Addendum. While s. 9(a) of the Tarion Addendum required the Vendor to deliver the occupancy permit, s. 9(b) contemplated the parties agreeing that the Purchaser would be responsible for one or more prerequisites to obtaining permission for occupancy under the Building Code. Based on my review of the APS and the Tarion Addendum it was difficult to understand what that could entail, other than obtaining the occupancy permit.

3 and 4. Not necessary to address

There was no need to address the remaining grounds of appeal. Under the Tarion Addendum, delayed closing compensation was payable only if the transaction closes or if it fails to close for any reason other than breach of contract by the Purchaser. The transaction did not close due to Mr. W’s default. In light of these circumstances, the Court saw no error in the motion judge’s conclusion that Mr. W forfeited his deposit.


Los v. Ross, 2024 ONCA 122

[van Rensburg, Roberts and Favreau JJ.A.]

Counsel:

S. Galarneau and B. Sharpe, for the appellant

I. Marcovitch, for the respondent

Keywords: Family Law, Parenting, Child Support, Civil Procedure, Jurisdiction, Children’s Law Reform Act, R.S.O. 1990, c. C.12,s.22(2), Dovigi v. Razi, 2012 ONCA 361, Zafar v. Azeem, 2024 ONCA 15, Office of the Children’s Lawyer v. Balev, 2018 SCC 16

facts:

Since November 2020, the parties lived together in Montreal, Quebec, where they had one child, who was born in Montreal in August 2021. In February 2022, after a dispute between the parties, the mother left Montreal with the child to go live with her parents in Ottawa.

Toward the end of May 2022, the father went to a work camp for his employment for five weeks. The mother was unable to get a hold of the father, despite it being possible for him to communicate. The child was with the mother in Ontario throughout this time.

On July 27, 2022, the mother commenced an application in the Superior Court in Ontario, seeking primary parenting time and sole decision-making responsibility for the child. She also sought child support.

The father brought an urgent motion challenging the Ontario court’s jurisdiction. However, the Superior Court declined to hear the motion on the basis that it was not urgent. At a subsequent case conference, the court scheduled the motion for jurisdiction to be decided as a preliminary matter. The motion judge dismissed the father’s motion challenging jurisdiction. The motion judge determined that the child was habitually resident in Ontario with the implied consent or acquiescence of the father.

issue:

Did the motion judge err in finding that the father tacitly consented or acquiesced to the child’s move to Ontario?

holding:

Appeal dismissed.

reasoning:

No.

Although the motion judge erred in considering the father’s actions following the commencement of the application, including the interim consent parenting order, it did not affect the overall conclusion that the father tacitly consented or acquiesced to the child’s move to Ontario.

Section 22(1)(a) of the Children’s Law Reform Act explicitly provides that the Ontario court has jurisdiction if “the child is habitually resident in Ontario at the commencement of the application for the order”. Implicitly, this meant that the father’s conduct following the beginning of the application was presumptively not relevant to the determination. Conversely, as in this case, consent to an interim parenting order should not prejudice a parent contesting jurisdiction as this could have significant consequences on that parent’s parenting time pending the determination of a jurisdiction motion.

The consent order was only one of several factors the motion judge relied on in reaching her conclusion that the father tacitly consented or acquiesced to the child’s habitual residence in Ontario.

Many factors supported the motion judge’s finding, including her finding that the child had been living primarily with her mother in Ottawa since at least mid-May 2022, that the father left for five weeks without providing accurate information about his whereabouts or how he could be contacted, and that he did not object to or take the position that the child should remain in Montreal until after the mother commenced her application seeking sole custody and parental decision-making. Regardless of the error regarding the consent order, these circumstances were sufficient to support the motion judge’s finding that the father tacitly consented or acquiesced to the child’s move to Ottawa and that the child was therefore habitually resident in Ontario.


Gu v. Huang, 2024 ONCA 129

[Simmons, Thorburn and Favreau JJ.A.]

Counsel:

R. He, for the appellants

M. Kestenberg, for the respondents

Keywords: Contracts, Solicitor and Client, Torts, Professional Negligence, Breach of Fiduciary Duty, Standard of Care, Civil Procedure, Security for Costs, Rules of Professional Conduct

facts:

The appellants sued Ms. H for negligence, breach of fiduciary duty, and breach of contract for her legal services provided from December 2016 to August 2017, claiming she failed to proceed promptly with necessary motions, incurred unnecessary costs, and terminated her retainer unprofessionally. In July 2016, the appellants discovered a certificate of pending litigation against a property they owned and were sued by two Chinese companies. Ms. H was retained in December 2016 to bring motions, including for security for costs. In January 2017, she attended court to proceed with these motions, but faced adjournments and scheduling changes. By July 2017, some motions were resolved in the appellants’ favor, but the litigation’s financial burden led to a significant legal bill from Ms. H’s firm totaling $240,291.55.

The trial judge rejected the appellants’ claims that Ms. H was negligent in her handling of the CPL, set aside, security for costs and Mareva injunction motions. Their action was dismissed.

issues:
  1. Did the trial judge err in fundamentally misconstruing the nature of the action as merely a fee dispute?
  2. Did the trial judge err in failing to find that Ms. H breached her contract by not proceeding with the motions, particularly the security for costs motion, in a timely manner and that Ms. H was not negligent in handling the appellants’ motions?
  3. Did the trial judge err in determining that expert evidence was necessary to address the standard of care regarding Ms. H’s handling of the offer to settle the security for costs motion and that she had no jurisdiction to decide violations of the Rules of Professional Conduct?
  4. Did the trial judge err in awarding the respondents costs in the amount of $80,000?
holding:

Appeal dismissed.

reasoning:
  1. No.

The Court found that Ms. H was successful in her conduct of the litigation on behalf of the appellants. Although the trial judge commented that the action was a fee dispute cloaked as a negligence action, the court was satisfied that she fully and fairly considered all of the appellants’ arguments. The foregoing chronology and the trial judge’s reasons demonstrated that she carefully and accurately reviewed the events that led to the various motions being adjourned and eventually determined. The Court saw no palpable and overriding error or error in principle in the trial judge’s findings.

  1. No.

The Court saw no basis for interfering with the trial judge’s conclusion that Ms. H was not at fault for the delay that occurred in determining the appellants’ motions that were originally scheduled for January 17, 2017. The presiding judge on that day accepted that cross-examinations were required and took charge of determining the order in which the additional motions would be heard. Further, the Court agreed with the trial judge that Ms. H could not be faulted for the fact that different judges subsequently took different views of who should hear the various motions.

The Court noted that it was not possible for Ms. H to serve the security for costs motion until after the noting in default had been set aside. She moved promptly to do so once that order was obtained. The Court was not persuaded that Ms. H contributed to any delay in that motion being heard.

  1. No.

The Court saw no error in the trial judge’s conclusion that expert evidence was required to determine the standard of care in relation to the appellants’ claims about the Chinese companies’ offer to settle the security for costs motion. The Court was not persuaded that the trial judge made any error in concluding that failing to provide an affidavit in relation to the security for costs motion could be categorized as conduct that was clearly wrong or egregious. The trial judge concluded that the appellants’ remaining complaints related to professional conduct matters, none of which materially affected Ms. H’s delivery of services or caused them any damages in breach of contract or negligence.

  1. No.

The Court found that the appellants did not seek leave to appeal costs and were therefore not entitled to challenge the costs award made at trial.


Regan v. Esterbauer, 2024 ONCA 139

[Lauwers, Miller and Harvison Young JJ.A.]

Counsel:

P. I. Waldmann, for the appellant

G. Tighe and K. Mooibroek, for the respondents A. J. E and Koskie Minsky LLP

Keywords: Contracts, Solicitor and Client, Torts, Professional Negligence, Civil Procedure, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, r. 21.01(3)(d), Lang Michener LLP v King, 2017 ONSC 1917

facts:

R. R, a formerly licensed lawyer suspended by the Law Society of Ontario, started an action against A.E and his law firm, claiming $15 million in damages for negligent legal advice and ineffective assistance during contempt proceedings, which was dismissed as frivolous, vexatious, or an abuse of process. R.R was counsel in litigation involving the Business Development Bank of Canada, where he was ordered to provide document access but instead proposed withholding documents in exchange for outstanding legal fees, leading to a contempt motion against him. R.R retained the respondents on a limited retainer for the contempt motion defense, where a missing Undertakings and Refusals Chart crucial for demonstrating compliance was not included in the responding materials, resulting in R.R being found in contempt and sentenced to 90 days’ imprisonment, later reduced to 45 days on appeal.

issue:

Did the motion judge err in dismissing the action under r. 21.01(3)(d) of the Rules of Civil Procedure on the basis that it was frivolous, vexatious, or otherwise an abuse of process?

holding:

Appeal dismissed.

reasoning:

No.

The court rejected R.R’s argument that the respondent’s supposed missteps changed the outcome of the contempt finding and appellate decision, identifying the challenge as an impermissible collateral attack on judicial decisions. The motion judge’s findings emphasized that the respondents engagement was specifically limited to appearing at the hearing with materials prepared by R.R, highlighting R.R’s responsibility and experience in preparing the necessary legal documents. Furthermore, the motion judge determined that the omission of additional evidence by the respondents would not have altered the contempt finding, which was primarily based on Gray J.’s finding of collusion between R.R and his former client. The central issue of contemptuous collusion rendered any alleged procedural or evidentiary errors by the respondents irrelevant to the outcome, leading to the Court’s approval of the dismissal of R.R’s action.


Gill v. Maciver, 2024 ONCA 126

[Roberts, Paciocco and Monahan JJ.A.]

Counsel:

J. Saikaley and A. Brunet, for the appellant, Dr. G

H. Winkler and Eryn Pond, for the respondent, Dr. M

A. MacDonald, for the respondents, AP and CW

G. Pakozdi, for the respondent, AP

Keywords: Torts, Defamation, Constitutional Law, Freedom of Speech, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990 C. c.43, s.137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Bent v. Platnick, 2020 SCC 23, Hansman v. Neufeld, 2023 SCC 14, Levant v. DeMelle, 2022 ONCA 79, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129

facts:

Dr. G. commenced proceedings against 23 individual and corporate defendants (the “Original Defendants”) for $12 million for defamation, conspiracy, and negligence. The claim against the Original Defendants was dismissed n the basis of s. 137.1 of the Courts of Justice Act, R.S.O. 1990 C. c.43 (the “CJA”), which permits the early dismissal of proceedings that limit debate on matters of public interest.

The appellant appealed against the dismissal of the claim against Dr. M, AP, CW and AP (collectively, the “Remaining Defendants”).

The appellant’s claim against the Remaining Defendants stemmed from two separate matters. The claim against Dr. M arose from Twitter statements he made in September 2018 in which he criticized the appellant for having previously blocked him on Twitter, thereby preventing him from responding directly to attacks that the appellant had made against the Ontario Medical Association (“OMA”).

The appellant’s claim against AP, CW and AP arose from Twitter statements they made in August and October 2020 in which they criticized the appellant’s position on the government response to the COVID-19 pandemic.

The motion judge dismissed the appellant’s claims against Dr. M on two grounds. First, the motion judge found that the offensive language used by Dr. M in his impugned tweets was not defamatory. Second, the motion judge found that the appellant had offered no evidence of any harm caused to her reputation as a result of the impugned tweets, other than “vague, unparticularized statements.” Therefore, even if the words complained of were defamatory, and some general damage to the appellant’s reputation is therefore to be presumed, any such damage is likely to be assessed as being merely nominal.

The motion judge found that the impugned tweets by AP, CW and AP all related to matters of significant public interest, namely, the development of effective treatments for COVID-19, whether a vaccine is needed, and whether HCQ is an appropriate treatment for COVID-19.

The motion judge dismissed the claim against AP, CW and AP on two separate grounds. First, the appellant failed to discharge her burden of showing that AP, CW and AP had no valid defence to her defamation claim. Accordingly, her claim against them should be dismissed on the basis of s.137.1(4)(a)(ii) of the CJA. Second, pursuant to s. 137.1(4)(b) of the CJA, because the appellant failed to provide evidence showing that she suffered any harm from the impugned tweets by AP, CW and AP.

issues:
  1. Did the motion judge err in finding that the defence of fair comment was prima facie available to AP, CW and AP?
  2. Did the motion judge err in the weighing exercise she engaged in under s. 137.1(4)(b)?
holding:

Appeal dismissed.

reasoning:
  1. No.

Section 137.1(4)(a)(ii) of the CJA requires the plaintiff to satisfy the motion judge that the defendant has no valid defence in the proceeding. The motion judge found that the appellant had failed to satisfy this requirement in respect of AP, CW and AP because the defence of “fair comment” was prima facie available to each of them.

The fair comment defence was premised on the idea that citizens must be able to openly declare their opinions on matters of public interest without fear of reprisal in the form of actions for defamation. For the fair comment defence to be successful, a defendant must prove the following: (i) the comment must be on a matter of public interest; (ii) be based on fact; (iii) be recognizable as a comment; (iv) satisfy an objective test (could any person honestly express that opinion on the approved facts?); and (v) the speaker cannot be actuated by express malice: Hansman, at para. 96. To satisfy a motion judge that a defendant has no valid defence of fair comment, the plaintiff must demonstrate that there is no prima facie basis for finding that one or more of these elements of the fair comment offence to be satisfied: Hansman, at para. 97.

There was no merit to the plaintiff’s objections that the motion judge made errors in her analysis of whether the “fair comment” defence was available to AP, CW and AP.

As the Supreme Court of Canada made plain in Hansman at paras. 99-100, the requirement that the defendant’s statements be “based on fact” does not mean that the defendant must prove that the statements they made were true. If this were so, it would collapse the distinction between the defences of “fair comment” and justification. All that is necessary to satisfy the “based on fact” element of the fair comment defence is that the defendant identify the factual foundation upon which the impugned statement is based, so that the reader can “make up their own minds as to its merits”: Hansman, at para. 99.

In this case, AP, CW and AP all expressly identified the specific statements of the appellant with which they took issue, and their basis for making those statements. Nothing further was required in order to satisfy the “based on fact” requirement of the fair comment defence.

The appellant did not advance any basis for finding that the motion judge erred in finding that AP, CW and AP were not motivated by malice. The motion judge made clear findings, based on the record, that all three of these defendants were motivated by concerns that the appellant’s public statements had the potential to mislead or misinform the public, thereby creating a potential risk to public health. Not only were these findings open to the motion judge, but the appellant has also failed to adduce any credible evidence to the contrary.

  1. No.

The motion judge did not err in requiring the appellant to provide evidence of a causal link between the impugned statements and any alleged harm she may have suffered. In fact, this requirement is expressly mandated by s. 137.1(4)(b) of the CJA and has been emphasized on numerous occasions by the Supreme Court of Canada. The appellant’s allegations of harm were completely undifferentiated, without any evidence linking the impugned statements to harm she might have suffered.

Further, the motion judge found that, despite the insulting words used by Dr. M, his purpose was to point out that the appellant was preventing him from responding directly to her very serious attacks on the honesty and integrity of the leadership of the OMA. It was open to the motion judge to find that there was some degree of public interest in protecting Dr. M’s right to speak out on this issue, despite the fact that the language he used to communicate his message was insulting. Since the appellant failed to adduce any evidence of “serious harm” resulting from Dr. M’s statements, it necessarily followed that she had failed to meet her burden of showing that she had suffered serious harm that outweighed the public interest in protecting Dr. M’s right to speak on the issue.

Turning to the impugned statements made by AP, CW and AP, the motion judge found that there was an extremely high public interest in protecting their right to speak out on the statements made by the appellant regarding COVID-19. As the motion judge pointed out, questions surrounding the development of effective treatments for COVID-19, including the need for vaccines, were matters of great public interest to the medical profession and the public at large. Nor did the language used by any of them in describing the appellant include the use of insults or vitriol.


Rimon v. CBC Dragon Inc., 2024 ONCA 128

[van Rensburg, Roberts and Gomery JJ.A.]

Counsel:

V. Msi, for the appellants

J. Bal and S. Maadanisani, for the respondents

Keywords: Civil Procedure, Documentary and Oral Discovery, Orders, Enforcement, Striking Pleadings, Rules of Civil Procedure, Rules 30.08, 60.12, Bottan v. Vroom, 2002 CanLII 41691 (Ont. C.A.), Aslezova v. Khanine, 2023 ONCA 153, Newlove v. Moderco Inc., 2002 CanLII 34748 (Ont. S.C.), Falcon Lumber Limited. v. 24803375 Ontario Inc., 2020 ONCA 310

facts:

The respondents initiated legal proceedings in May 2020, alleging they were induced by misrepresentations to advance funds for a property purchase by the appellants. The appellants denied the allegations and filed a defence and counterclaim. Despite undertakings, the appellants failed to provide information related to certain transactions, leading to the respondents bringing a motion to compel. Although some documents were produced, numerous undertakings remained outstanding. The respondents then moved to strike the defence and counterclaim, and the motion was adjourned, giving the appellants additional time. However, the appellants failed to fully comply, leading to a motion returned before the judge in March 2023.

The motion judge found that the appellants had failed to comply meaningfully with the court orders and remained in material default at the time of the hearing before him. The appellants appealed the motion judge’s order striking their statement of defence and counterclaim based on their failure to answer undertakings, produce relevant documents, and abide by successive court orders.

issues:
  1. Were the C undertakings made solely on behalf of Mr. C, CBC Dragon Inc. and KBIJ Inc., and did the motion judge’s order unjustifiably “sweep up” An-Dak Trading Company and its principal AYL (the “L Defendants”)?
  2. Did the motion judge unfairly fail to consider the efforts that the appellants had made to answer the C undertakings?
  3. Did the motion judge fail to consider whether the appellants’ failure to comply with their production obligations meaningfully prejudiced the respondents?
  4. Did the motion judge err by not accepting Mr. C’s evidence that he had not understood what he was undertaking to do at the October 2020 cross-examination, and that he had realized that some of the records sought could not, in fact, be produced, citing Newlove?
  5. Did the striking of the appellant’s defence and counterclaim sanction them disproportionately?
holding:

Appeal dismissed.

reasoning:
  1. No.

The 2020 and 2022 disclosure orders were directed against all the appellants, and the appellants at no point prior to this appeal took the position that the L Defendants were not bound by them. It would be strange if the L Defendants were exempt from the orders compelling production of transaction records, since the statement of claim alleged that some of the funds advanced by the respondents were transferred to them.

  1. No.

There was no error that would justify intervention by the Court.

  1. No.

The motion judge found that the appellants’ failure to respect their obligations to answer undertakings and to comply with court-ordered timetables to produce records had prejudiced the respondents.

  1. No.

Given the history of the litigation, it was open to the motion judge to reject Mr. C’s evidence that he only belatedly realized that he could not answer some of the undertakings given. This explanation for the appellants’ non-compliance was entirely new and stood “in complete contrast to the position [the appellants] [had] maintained throughout over the last period.” The motion judge further observed that the appellants had not “put forward any evidence of good faith efforts and due diligence to obtain [..] documents from third parties.”

 Newlove held that the dismissal of an action should be granted only exceptionally but that “the matter of the scope of the remedy is one within the discretion of the Court.” Rule 30.08(2) specifically contemplates an order to strike a pleading, and both Rules empower the court to make any order “as is just”.

  1. No.

The motion judge was alive to the particular facts of the facts. He found that Brown J.A.’s observation in Falcon Lumber about the fundamental importance of documentary production in any action was “particularly apt” where the documents go to the heart of the issues of the action.

The Rules of Civil Procedure are intended to ensure that parties to civil suits disclose all relevant information in a timely manner at all stages of a proceeding. A party’s failure to comply with their disclosure obligations increases the costs of litigation and frustrates the opposing party’s ability to move the proceeding forward. The Falcon Lumber principles apply even more forcibly when a party fails to disclose records when repeatedly ordered by the court to do so within a specific deadline. In such a case, the defaulting party does not simply delay or prevent an adjudication on the merits but undermines the court’s authority. The motion judge applied the correct principles of law and evaluated the record before determining that the order sought by the respondents was just.


8167800 Canada Inc (Lead Home Renovation) v. Denison Limited, 2024 ONCA 146

[Gillese and Copeland JJ.A. and Wilton-Siegel J. (ad hoc)]

Counsel:

S. Barbier, for the appellant

M. Wine, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Permitted Uses, Assignments, Equitable Remedies, Relief from Forfeiture, Civil Procedure, Reasonable Apprehension of Bias, Costs, Hamilton v Open Window Bakery Ltd, 2004 SCC 9

facts:

The appeal was brought by 8167800 Canada Inc., also known as Lead Home Renovation, from certain provisions of an order dated April 11, 2023, which granted the motion for relief from forfeiture of the termination of a commercial lease by Denison Limited. The appellant had entered into a lease for the premises in 2015, and upon the expiry of the original lease, a new Lease commenced on August 1, 2020, for a five-year term. The respondent purchased the building on June 22, 2022, and the relationship between the parties deteriorated, leading to the termination of the Lease on February 16, 2023. In response, the appellant sought urgent relief from forfeiture, while the respondent sought a declaration that the Lease was properly terminated. The motion judge found that the respondent was not entitled to terminate the Lease and granted the appellant’s motion for relief from forfeiture but imposed conditions in the Order objected to by the appellant. Specifically, the motion judge found the appellant was constructing kitchen cabinets in contravention of the Lease and required the appellant to adhere to the permitted uses of warehousing and distribution, providing a grace period until December 1, 2023, to adapt its business.

issue:

Did the motion judge err in finding that the appellant was engaged in the construction of kitchen cabinets in breach of the terms of the Lease?

holding:

Appeal dismissed.

reasoning:

No.

The appellant argued there was no evidence of manufacturing operations at the premises, contrary to the respondent’s claims. Yet, a 2022 MLS listing described the business for sale as including “cabinet machinery equipment” for a “Kitchen Cabinet and Home Renovation Business.” The motion judge observed table saws and a sanding machine on-site, used by the appellant for kitchen cabinet construction. Shi Xiaobin, the owner, admitted to creating or customizing kitchen cabinets for clients and had a spray booth for painting cabinets upon request. Despite the appellant’s claim that its operations did not equate to manufacturing due to the absence of mass production, the motion judge determined the business violated the Lease’s terms by constructing kitchen cabinets, indicating the premises were used more for construction than just distribution or warehousing, raising potential safety concerns.

The appellant also challenged the respondent’s refusal to consent to a Lease assignment to a prospective business buyer, a decision upheld by the motion judge based on the Lease’s terms against the premises’ use for kitchen cabinet construction. This refusal led to the lapse of a business sale offer.

Furthermore, the appellant was ordered to remove an abandoned truck from the premises, a directive supported by city by-laws and unchallenged by the appellant. Despite allegations of bias due to the motion judge’s remarks on communication styles, these comments were aimed at reducing future conflicts, not indicating bias.

Lastly, the appellant’s appeal of the motion judge’s order that each party bear its own costs was denied. There was no error in the exercise of the motion judge’s discretion on costs.


2682283 Ontario Ltd (Volcano Café and Lounge) v. Durham (Regional Municipality), 2024 ONCA 132

[Gillese and Copeland JJ.A. and Wilton-Siegel J. (ad hoc)]

Counsel:

R. Zigler, for the appellant

S. Rouleau and C. deSereville, for the respondent

Keywords: Municipal Law, By-laws, Health, Business Regulation, Municipal Act, 2001, S.O. 2001, c. 25, s. 115(1), 115(5), 273, Durham Region Smoking By-Law No. 28-2019, s. 10.1, 11.1, Provincial Offences Act, R.S.O. 1990, P.33, ss. 3, 5, 21, 91.1(2), Health Protection and Promotion Act, R.S.O. 1990, c. H.7, Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200, Courts of Justice Act, R.S.O. 1990, c. C.43, Foley v. St. Mary’s (Town), 2016 ONCA 528, Sheilagh Stewart and Jane Moffatt, Stewart & Moffatt on Provincial Offences Procedure in Ontario, 4th ed. (Salt Spring Island: Earlscourt Legal Press Inc., 2020)

facts:

The appellant appeals the order of the application judge dismissing its application to quash a municipal by-law passed by the respondent, the Regional Municipality of Durham (the “Region”). In 2019, the Health Protection Division of the Region recommended the enactment of a new smoking and vaping by-law. The by-law contains various anti-smoking and anti-vaping prohibitions.

The appellant opened a hookah lounge on February 21, 2020 – after the by-law came into effect. The Region received numerous complaints that the appellant was violating the by-law. Compliance officers attended the appellant’s premises on multiple occasions and saw evidence that the by-law was being breached. On two occasions, summonses for contravention of the by-law were served, pursuant to the Provincial Offences Act (“POA”). In addition, on two occasions, closure and other compliance orders were issued, pursuant to the Health Protection and Promotion Act.

The appellant brought an application seeking to quash the by-law, pursuant to s. 273 of the Municipal Act. In the alternative, the appellant sought a declaration that the prohibition against the use of hookahs was ultra vires on the basis that it was a disguised attempt to regulate business. The appellant also argued that the by-law was illegal because changes were made to Schedule A to the by-law (“Schedule A”) after it was passed. Schedule A addressed set fines for offences under the by-law.

issue:

Did the trial judge err in concluding that the changes made to Schedule A did not invalidate the by-law?

holding:

Appeal dismissed.

reasoning:

No.

The Court agreed with the application judge that the changes to Schedule A to the by-law after it had come into effect did not invalidate the by-law. The changes to Schedule A had been made by the local Regional Senior Justice of the Ontario Court of Justice (“RSJ”) exercising her authority to establish set fines for proceedings under s. 91.1(2) of Part I of the POA. The Schedule A appended to the by-law at the time of its passage was a placeholder until the RSJ exercised her authority under the POA to establish set fines.

The Court noted two difficulties with the appellant’s argument that changes to Schedule A invalidated the by-law. First, although the appellant had conceded that the local RSJ had the authority under s. 91.1(2) of the POA to establish set fines for municipal by-law offences, it characterized that authority too narrowly. Second, the appellant had mischaracterized the nature of the changes to Schedule A effected by the orders of the RSJ. The appellant contended that changes to the wording in Schedule A were invalid because they changed the substance of the by-law after it was enacted. The wording that the appellant referred to in Schedule A was the short form descriptions of the offences for purposes of the set fines. Deciding the wording for the short form descriptions of the offences was within the scope of the local RSJ’s authority to establish the set fines. The short form descriptions of the offences in the list of set fines in Schedule A did not change the prohibitions in the by-law or the offence of contravening them.

The appellant also argued that the reference in s. 10.1 of the by-law to Schedule A incorporated the version of Schedule A attached at the time the by-law was passed into the by-law itself. According to the appellant, the effect of this incorporation was that changes to Schedule A constituted amendments to the by-law and would invalidate the by-law. The Court disagreed. Section 10.1 of the by-law had to be read in the context of s. 91.1(2) of the POA. The reference in section 10.1 of the by-law to “set fines” could only be understood as a reference to set fines under the POA. The authority to establish set fines for municipal by-law offences rested with the local RSJ, not with the Region. Within that authority, the RSJ could change the amount of set fines and the offences for which set fines were established from time to time. In light of this context, the reference in s 10.1 of the by-law to the set fines being set out in Schedule A had to be read not as referring only to the placeholder Schedule A that was attached to the by-law at the time it was passed, but rather to the set fines established by the local RSJ from time to time under the authority in s. 91.1(2) of the POA.

Ultimately, it was clear that the changes to Schedule A had been made by the local RSJ and not by staff of the Region because the local RSJ had issued two orders changing Schedule A. The Court agreed with the application judge that it was these orders that changed Schedule A and that the process was consistent with s. 91.1(2) of the POA. The Court also agreed with the application judge that there was nothing untoward about the changes made to Schedule A after the by-law was passed by the Region and consent was given by a majority of lower-tier municipalities. As had occurred in this case, municipal staff could draft proposed short form wording and could request specific amounts as set fines. But the ultimate authority to establish set fines for by-law offences rested with the local RSJ.

The Court also rejected the appellant’s argument that the reasons of the application judge only addressed changes to the dollar values of the set fines made subsequent to the passage of the by-law and failed to address its argument that there were changes to the wording of Schedule A. Before the application judge, there had been no dispute that Schedule A had been changed as a result of the orders of the local RSJ exercising her authority to establish set fines. There had been no dispute about what the changes were – including to the wording of the short form descriptions of some of the offences for which set fines were established. The application judge was not required to enumerate in his reasons every individual change relied on by the appellant.

The Court did not find it necessary to consider the alternate argument regarding severance of s. 10.1 and Schedule A of the by-law as a remedy.


SHORT CIVIL DECISIONS

Sokil v. Buffone, 2024 ONCA 127

[Tulloch C.J.O., Hourigan and Zarnett JJ.A.]

Counsel:

B.L.S., acting in person

C. Salazar, for the respondent BMO Trust Company

J. Friedman, for the respondent E.A.B.

W.S., acting in person

Keywords: Wills and Estates, Civil Procedure, Contempt, Appeals, Stay Pending Appeal, Costs, Succession Law Reform Act, R.S.O. 1990, c. S.26, Part II, Brad-Jay Investments Limited v. Village Developments Limited (2006), 2006 CanLII 42636 (ON CA), leave to appeal refused, [2007] S.C.C.A. No. 92

9806881 Canada Corp. v. Swan, 2024 ONCA 133

[van Rensburg, Roberts and Favreau JJ.A.]

Counsel:

J. M. Wortzman and J.C. Wortzman, for the appellants

P. Virc and R. Karrass, for the respondent

Keywords: Civil Procedure, Costs

Lengyel v. Public Guardian and Trustee, 2024 ONCA 130

[Lauwers, Miller and Harvison Young JJ.A.]

Counsel:

G.L., acting in person

S. Nestico-Semianiw, for the respondent

Keywords: Civil Procedure, Appeals


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.

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Good evening.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 12, 2024.

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In Ontario English Catholic Teachers Association v. Ontario (Attorney General), the 2019 enactment of Bill 124, the Protecting a Sustainable Public Sector for Future Generations Act by the Ontario legislature, sparked significant controversy. This Act limited compensation increases for public sector employees to 1% per year over a three-year period, applying to both represented and non-represented employees. Various public sector employee organizations successfully challenged the legislation, arguing it violated rights to freedom of expression, association, and equality under the Canadian Charter of Rights and Freedoms. In a split decision, the Court upheld the finding that, as it related to unionized employees, the Act breached the freedom of association protected by section 2(d) of the Charter and could not be justified under section 1. However, the Act was not invalid in relation to unrepresented ones, so it allowed the provincial government’s appeal in part.

In Drywall Acoustic Lathing and Insulation (Pension Fund, Local 675) v. Barrick Gold Corporation, the dismissed an appeal from the motion judge’s order denying leave to commence a secondary market misrepresentation class action against Barrick Gold in relation to a mine in the Andes straddling the border between Chile and Argentina.

In Reddick v. Robinson, the Court dealt with the interpretation of an easement regarding pedestrian access to shores of Lake Ontario. The Court allowed the appeal of the application judge’s decision, highlighting errors in interpreting the terms of the easement, specifically the definition of “shores of Lake Ontario” and the scope of permissible activities. There was a dissenting opinion in this case as well.

In Royal Bank of Canada v. Cutler Forest Products Inc, the Court dismissed the appeal regarding whether a truck leasing company lost its purchase money security interest priority over a bank’s GSA for failure to perfect the PMSI (it did lose priority).

In Cohen v. Cohen, the Court allowed the appeal finding that trial judge erred in ordering an equalization payment in favour of the respondent despite a lack of disclosure by the respondent.

Other topics covered included dissent rights and a unanimous shareholder agreement, the amendment of pleadings in a professional negligence claim against personal injury lawyers, striking claims as an abuse of process and vexatious litigation.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Rebello v. Canada (Attorney General), 2024 ONCA 112

Keywords: Civil Procedure, Vexatious Litigation, Rules of Civil Procedure, r. 2.1, Ahmed v. Ontario (Attorney General), 2021 ONCA 427

Ontario English Catholic Teachers Association v. Ontario (Attorney General), 2024 ONCA 101

Keywords: Labour and Employment, Collective Bargaining Rights, Public Service Employees, Wage Restraint, Constitutional Law, Equality, Freedom of Association, Oakes Test, Canadian Charter of Rights and Freedoms, ss.1, 2(b), 2(d), 15, Protecting a Sustainable Public Sector for Future Generations Act, 2019, S.O. 2019, c. 12, Expenditure Restraint Act, S.C. 2009, c. 2, s. 393, The Public Services Sustainability Act, S.M. 2017, c. 24, Canada (Attorney General) v. Bedford, 2013 SCC 72, Carter v. Canada (Attorney General), 2015 SCC 5, Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, British Columbia Teachers’ Federation v. British Columbia, 2015 BCCA 184,  Manitoba Federation of Labour et al. v. The Government of Manitoba, 2021 MBCA 85, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, Meredith. v. Canada (Attorney General), 2015 SCC 2, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, Gordon v. Canada (Attorney General), 2016 ONCA 625,  Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530, Canada (Procureur général) c. Syndicat canadien de la function publique section 675, 2016 QCCA 163, Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), 2016 BCCA 156,  Reference re Bill 148, An Act Respecting the Sustainability of Public Services, 2022 NSCA 39, R v Oakes, [1986] 1 SCR 103, RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, R v Moriarity, 2015 SCC 55, Frank v Canada (Attorney General), 2019 SCC 1, Thomson Newspapers Co v Canada (Attorney General), [1998] 1 SCR 877, R v Big M Drug Mart Ltd, [1985] 1 SCR 295, Harper v Canada (Attorney General), 2004 SCC 33, PSAC v Canada, [1987] 1 SCR 424, Nova Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54, Newfoundland (Treasury Board) v NAPE, 2004 SCC 66, Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, Canada v Taylor, [1990] 3 SCR 892, Canada v Taylor, [1990] 3 SCR 892, Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69, UFCW, Local 1518 v KMart Canada Ltd, [1999] 2 SCR 1083, R v KRJ, 2016 SCC 31, Protecting a Sustainable Public Sector for Future Generations Act, 2019, S.O. 2019, c. 12, Expenditure Restraint Act, S.C. 2009, c. 2, s. 393, Public Services Sustainability Act, S.M. 2017, c. 24, Management Board of Cabinet Act, R.S.O. 1990, C. M.1, Director of Public Prosecutions of Jamaica v. Mollison, [2003] UKPC 6; [2003] 2 A.C. 411, R. (Anderson) v. Secretary of State for the Home Department [2002] 3 WLR 1800, at 1821-1822, Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, Anderson v. Alberta, 2022 SCC 6, Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, Nelson (City) v. Marchi, 2021 SCC 41, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, R. v. Chouhan, 2021 SCC 26, Manitoba Federation of Labour et al. v. The Government of Manitoba, 2021 MBCA 85, Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, Dunmore v. Ontario (Attorney General), 2001 SCC 94, Health Services, and Ontario (Attorney General) v. Fraser, 2011 SCC 20, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, Meredith v. Canada (Attorney General), 2015 SCC 2, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, Canada (Procureur général) c. Syndicat canadien de la fonction publique, section locale 675, 2016 QCCA 163, Gordon v. Canada (Attorney General), 2016 ONCA 625, References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Canada (Attorney General) v. Bedford, 2013 SCC 72, Frank v. Canada (Attorney General), 2019 SCC 1, Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, Carter v. Canada (Attorney General), 2015 SCC 5, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, R. v. Lucas, [1998] 1 S.C.R. 439, Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, Canada (Attorney General) v. JTIMacdonald Corp., 2007 SCC 30

Drywall Acoustic Lathing and Insulation (Pension Fund, Local 675) v. Barrick Gold Corporation, 2024 ONCA 105

Keywords: Securities, Secondary Market Liability, Secondary Market Misrepresentations, Public Correction, Civil Procedure, Class Proceedings, Leave to Commence Proceeding, Certification, Securities Act, R.S.O. 1990, c. S.5, Part XXIII.1, Peters v. SNC-Lavalin Group Inc., 2023 ONCA 360, 166 O.R. (3d) 756, Wong v. Pretium Resources Inc., 2022 ONCA 549, Green v. Canadian Imperial Bank of Commerce, 2015 SCC 60, Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18, Badesha v. Cronos Group Inc., 2022 ONCA 663, Rahimi v. SouthGobi Resources Ltd., 2017 ONCA 719, Mask v. Silvercorp Metals, 2016 ONCA 641, Markowich v. Lundin Mining Corp., 2023 ONCA 359, Bayens v. Kinross Gold Corporation, 2014 ONCA 901, Goldsmith v. National Bank of Canada, 2016 ONCA 22, Nseir v. Barrick Gold Corporation, 2022 QCCA 1718, R. v. Sheeller, 2014 ONCA 867, R. v. Curry, 2019 ONCA 754, leave to appeal denied, [2014] S.C.C.A. No. 185,  R. v. K.C., 2015 ONCA 39, Kerr v. Danier Leather Inc., 2007 SCC 44, Baldwin v. Imperial Metals Corporation, 2021 ONCA 838, Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin, 2016 ONSC 5784

Cashin Mortgages Inc. (Verico Cashin Mortgages) v. 2511311 Ontario Ltd. (Mortgages Alliance – Main Street Mortgages), 2024 ONCA 103

Keywords: Abuse of Process, Motion, Capacity, Rules of Civil Procedure, R.R.O. 1990, Reg 194, r 23.01(3)(b), 23.01(3)(c), 23.01(3)(d), Western Delta Inc. v. Zurich Indemnity Company of Canada, 1999 CanLII 2386, Goldentuler v. Simmons Dasilva LLP, 2021 ONCA 219, Housen v. Nikolaisen, 2002 SCC 33, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Behn Moulton Contracting Ltd., 2013 SCC 26, Birdseye Security Inc. v. Milosevic, 2020 ONCA 355

Lepan Estate v. Lofranco Chagpar Barristers, 2024 ONCA 110

Keywords: Torts, Professional Negligence, Solicitor and Client, Civil Procedure, Amending Pleadings

Husack v. Husack, 2024 ONCA 117

Keywords: Wills and Estates, Contracts, Interpretation, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 184 and 185, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Reddick v. Robinson, 2024 ONCA 116

Keywords: Real Property, Easements, Interpretation, Yekrangian v. Boys, 2021 ONCA 629, Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.), Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53, Herold Estate v. Canada (Attorney General), 2021 ONCA 579, 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273, Housen v. Nikolaisen, 2002 SCC 33, Gibbs v. Grand Bend (Village) (1995), 26 O.R. (3d) 644, Ontario (Attorney General) v. Walker (1970), [1971] 1 O.R. 151, Niagara River Coalition v. Niagara-on-the-Lake (Town), 2010 ONCA 173, Freeborne Developments Ltd. v. Corman Park (Rural Municipality), 2021 SKCA 48, Raimondi v. Ontario Heritage Trust, 2018 ONCA 750, Robb v. Walker, 2015 BCCA 117, Wesley v. Iles, 2013 ONCA 8, One West Holdings Ltd. v. Greata Ranch Holdings Corp., 2014 BCCA 67, Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517

Cohen v. Cohen, 2024 ONCA 114

Keywords: Family Law, Property, Equalization of Net Family Property, Matrimonial Home, Family Law Act, R.S.O. 1990, c. F.3, s.4,7,8, Hamilton v. Hamilton (1996), 92 O.A.C. 103 (C.A.), Roberts v. Roberts, 2015 ONCA 450

Tewari v. Sekhorn, 2024 ONCA 123

Keywords: Civil Procedure, Appeals, Vexatious Litigation, Rules of Civil Procedure, r.2.1.01, Salasel v. Cuthbertson, 2015 ONCA 115, 1522491 Ontario Inc. v. Stewart, Esten Professional Corporation, 2010 ONSC 727, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Tewari v. McHenry, 2022 ONCA 335, Tewari v. Sachdeva and Miller Thomson LLP, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

Royal Bank of Canada v. Cutler Forest Products Inc., 2024 ONCA 118

Keywords: Commercial Law, Contracts, General Security Agreements, Security Interests, Purchase Money Security Interests, True Leases, Bankruptcy and Insolvency, Receiverships, Priorities, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Courts of Justice Act, R.S.O. 1990, c.C.43, Personal Property Security Act, R.S.O. 1990, c. P.10, Ministry of Government Services Consumer Protection and Service Modernization Act, 2006, S.O. 2006, c. 34 (Bill 152), Personal Property Security Act, S.B.C. 1989, c. 36 (BC PPSA), International Harvester Credit Corp of Canada v Bell’s Dairy Ltd (Trustee of), (1986), 30 D.L.R. (4th) 387 (Sask. C.A.), Giffen (Re), [1998] 1 S.C.R. 91, International Harvester Credit Corp. of Canada v Bell’s Dairy Ltd. (Trustee of), (1986), 30 D.L.R. (4th) 387 (Sask. C.A.)


CIVIL DECISIONS

Rebello v. Canada (Attorney General), 2024 ONCA 112

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

T. Rebello, acting in person

J. Stuckey, for the respondent Attorney General of Canada

S. Kissick, for the respondent Attorney General of Ontario

Keywords: Civil Procedure, Vexatious Litigation, Rules of Civil Procedure, r. 2.1, Ahmed v. Ontario (Attorney General), 2021 ONCA 427

facts:

The appellant brought an application against Canada and Ontario seeking: (1) a declaration that the respondents created a justice system that is in disrepute and have breached ss. 7 and 15 of the Canadian Charter of Rights and Freedoms; (2) a declaration that the respondents have obligations to implement a court system that prevents breaches of Charter rights and denials of access to justice; and (3) an order requiring the respondents to implement an effective justice system.

Ontario moved to dismiss the application.  The motion judge found that the application had no merit and was frivolous, vexatious, and an abuse of process. The appellant appealed, with the respondents requesting that the appeal be dismissed pursuant to r. 2.1.01(1) of the Rules of Civil Procedure.

issues:
  1. Did the motion judge err in ruling that the application be dismissed on r. 2.1.01 without a hearing?
  2. Did the motion judge err in dismissing the application against Canada, because it did not request the dismissal or file a notice of appearance?
holding:

Appeal dismissed.

reasoning:
  1. No

Rule 2.1.01 sets out a summary procedure, and the court has the power to proceed without submissions. Subrule 2.1.01(3) specifically states that an order shall be made on written submissions “unless the court orders otherwise.” Given the multiple cases referred to by the motion judge where the same allegations were raised in other proceedings commenced by the appellant, she did not err in exercising her discretion to proceed without submissions.

  1. No

Although a party may request an order, the court has the power “on its own initiative” to stay or dismiss the proceeding.


Ontario English Catholic Teachers Association v. Ontario (Attorney General), 2024 ONCA 101

[Doherty, Hourigan and Favreau JJ.A]

Counsel:

P. Griffin, N. Bombier and S. Hale, for the appellants His Majesty the King in Right of Ontario et al.

P. Cavalluzzo and B. Dosanjh, for the respondents Ontario English Catholic Teachers Association et al.

S. Ursel, K. Ensslen and E. Home, for the respondents Ontario Secondary School Teachers’ Federation et al.

H. Goldblatt and B. Piper, for the respondents Elementary Teachers’ Federation of Ontario et al.

J. Borowy and D. Bisnar, for the respondents Ontario Nurses’ Association et al.

D. R. Wright, M. J. Nam and R. Jones, for the respondents Ontario Public Service Employees Union et al.

S. Barrett and M. Anderson, for the respondents Ontario Federation of Labour et al.

A. Dale, D. Simonovic and J. Meguid, for the respondents Unifor et al.

C. Bauman, for the respondents Carleton University Academic Staff Association et al.

M. Wright, A. St. John and N. Parker, for the respondents Society of United Professionals et al.

A. Lokan and S. Talukdar, for the respondents Power Workers’ Union et al.

G. Avraam and A. Anandarajah, for the intervener Canadian Association of Counsel to Employers

T. Gleason and A. Lei, for the intervener Canadian Civil Liberties Association

C. Davies, D. Sandhu and K. Owens, for the intervener Women’s Legal Education and Action Fund Inc.

Keywords: Labour and Employment, Collective Bargaining Rights, Public Service Employees, Wage Restraint, Constitutional Law, Equality, Freedom of Association, Oakes Test, Canadian Charter of Rights and Freedoms, ss.1, 2(b), 2(d), 15, Protecting a Sustainable Public Sector for Future Generations Act, 2019, S.O. 2019, c. 12, Expenditure Restraint Act, S.C. 2009, c. 2, s. 393, The Public Services Sustainability Act, S.M. 2017, c. 24, Canada (Attorney General) v. Bedford, 2013 SCC 72, Carter v. Canada (Attorney General), 2015 SCC 5, Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, British Columbia Teachers’ Federation v. British Columbia, 2015 BCCA 184,  Manitoba Federation of Labour et al. v. The Government of Manitoba, 2021 MBCA 85, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, Meredith. v. Canada (Attorney General), 2015 SCC 2, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, Gordon v. Canada (Attorney General), 2016 ONCA 625,  Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530, Canada (Procureur général) c. Syndicat canadien de la function publique section 675, 2016 QCCA 163, Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), 2016 BCCA 156,  Reference re Bill 148, An Act Respecting the Sustainability of Public Services, 2022 NSCA 39, R v Oakes, [1986] 1 SCR 103, RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, R v Moriarity, 2015 SCC 55, Frank v Canada (Attorney General), 2019 SCC 1, Thomson Newspapers Co v Canada (Attorney General), [1998] 1 SCR 877, R v Big M Drug Mart Ltd, [1985] 1 SCR 295, Harper v Canada (Attorney General), 2004 SCC 33, PSAC v Canada, [1987] 1 SCR 424, Nova Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54, Newfoundland (Treasury Board) v NAPE, 2004 SCC 66, Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, Canada v Taylor, [1990] 3 SCR 892, Canada v Taylor, [1990] 3 SCR 892, Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69, UFCW, Local 1518 v KMart Canada Ltd, [1999] 2 SCR 1083, R v KRJ, 2016 SCC 31, Protecting a Sustainable Public Sector for Future Generations Act, 2019, S.O. 2019, c. 12, Expenditure Restraint Act, S.C. 2009, c. 2, s. 393, Public Services Sustainability Act, S.M. 2017, c. 24, Management Board of Cabinet Act, R.S.O. 1990, C. M.1, Director of Public Prosecutions of Jamaica v. Mollison, [2003] UKPC 6; [2003] 2 A.C. 411, R. (Anderson) v. Secretary of State for the Home Department [2002] 3 WLR 1800, at 1821-1822, Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, Anderson v. Alberta, 2022 SCC 6, Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, Nelson (City) v. Marchi, 2021 SCC 41, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, R. v. Chouhan, 2021 SCC 26, Manitoba Federation of Labour et al. v. The Government of Manitoba, 2021 MBCA 85, Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, Dunmore v. Ontario (Attorney General), 2001 SCC 94, Health Services, and Ontario (Attorney General) v. Fraser, 2011 SCC 20, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, Meredith v. Canada (Attorney General), 2015 SCC 2, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, Canada (Procureur général) c. Syndicat canadien de la fonction publique, section locale 675, 2016 QCCA 163, Gordon v. Canada (Attorney General), 2016 ONCA 625, References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Canada (Attorney General) v. Bedford, 2013 SCC 72, Frank v. Canada (Attorney General), 2019 SCC 1, Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, Carter v. Canada (Attorney General), 2015 SCC 5, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, R. v. Lucas, [1998] 1 S.C.R. 439, Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, Canada (Attorney General) v. JTIMacdonald Corp., 2007 SCC 30

facts:

In 2019, the Ontario legislature passed Bill 124, the Protecting a Sustainable Public Sector for Future Generations Act, 2019, S.O. 2019, c. 12 (“Bill 124” or the “Act”). The Act imposed a three-year “moderation” period on compensation, including salary rates, for all employees in the broader public sector. For those three years, compensation increases were not to exceed 1% per year. The Act applied to represented and non-represented employees.

The respondents, which included organizations that represented employees in the broader public sector, brought applications challenging the Act on the basis that it violated their members’ rights to freedom of expression (s. 2(b)), freedom of association (s. 2(d)) and equality (s. 15) under the Canadian Charter of Rights and Freedoms.

The application judge granted the applications, finding that the Act violated the respondents’ freedom of association under s.2(d) of the Charter, and that this violation was not saved by s. 1 of the Charter. The application judge did not accept the arguments that the Act violated the respondents’ s. 2(b) or s. 15 rights.

Based on the application judge’s conclusion that that the Act violated s. 2(d) and was not saved by s. 1 of the Charter, the application judge declared the entire Act void and of no effect. In doing so, he stated that there was no purpose in going through the Act section by section. In addition, the application judge deferred the issue of any further remedies to a later hearing.

issues:
  1. Does the Act infringe on s. 2(d) of the Charter?
  2. Did the application judge err in his s. 1 Charter analysis?
  3.  Did the application judge err in striking down the statute?
holding:

Appeal allowed, in part.

reasoning:

Majority Decision:

  1. Yes.

General principles regarding protection of collective bargaining under s. 2(d) of the Charter

Section 2(d) of the Charter ensures the freedom of association as a fundamental right. The Supreme Court, starting with Health Services in 2007, recognized this freedom within the labor context to include collective bargaining rights under s. 2(d). However, it clarified that s. 2(d) does not protect all collective bargaining aspects, but only against “substantial interference” with this activity. The “substantial interference” test involves assessing the importance of the affected matter to collective bargaining and the impact of the measure on the collective right to negotiate and consult in good faith.

Previous wage restraint decisions

Canadian courts, including the Supreme Court and Court of Appeal, have evaluated the constitutional validity of various wage restraint laws, generally finding these laws do not significantly interfere with the collective bargaining right under s. 2(d) of the Charter. Ontario cited these precedents to argue the Act in question did not violate s. 2(d). However, the Court highlighted that assessing the Act’s infringement on s. 2(d) rights requires more than comparing it to previous wage restraint laws. Instead, following the Supreme Court’s guidance in Health Services and the 2015 trilogy, it necessitated a contextual analysis of the Act’s enactment and its impact on collective bargaining.

The Court emphasized the need to review previous appellate decisions on wage restraint to identify key factors influencing their findings that the laws did not violate s. 2(d) rights. This included examining decisions related to the federal Expenditure Restraint Act (ERA) and the Manitoba Federation decision on Manitoba’s wage restraint legislation.

(a)         Decisions challenging the Expenditure Restraint Act

The decisions in Meredith, Gordon, Dockyard and Procureur général all dealt with challenges to the ERA.  The legislation was enacted in response to the 2008 worldwide financial crisis. The ERA applied to over 400,000 unionized and non-unionized employees who worked for the federal Crown and approximately 48,000 employees who worked for federal Crown corporations. The ERA limited wage increased by specified percentages over a five-year period.

There were four common threads between the decisions dealing with the constitutional validity of the ERA: 1) the measures were imposed in the context of the 2008 global economic crisis; 2) multiple bargaining units had reached agreements about wage increases similar to those that were legislated before the ERA was enacted; 3) the legislation was imposed after a relatively long period of negotiation; and, 4) in some cases, following the enactment of the ERA, bargaining units were nevertheless able to reopen their collective agreements to negotiate for wage increases (Meredith) or other matters of interest, including matters related to compensation (Procureur général).

(b)         Manitoba wage restraint legislation decision

Manitoba Federation challenged The Public Services Sustainability Act (the “PSSA”), which set wage caps for both represented and non-represented employees in Manitoba’s public sector, affecting nearly 20% of the province’s workforce. The trial judge ruled the PSSA violated the collective bargaining rights under s. 2(d) of the Charter, and this infringement was not justifiable under s. 1 of the Charter.

Ontario referenced this case to contest a similar finding against an Act, arguing the PSSA, with harsher wage caps, was comparable to the Act under scrutiny. Despite the trial judge’s error in the s. 2(d) analysis, a fresh court analysis found the PSSA’s provisions functionally equivalent to those in the constitutional ERA. It highlighted that, despite wage caps, bargaining on other workplace conditions remained possible and noted the PSSA’s unique exemption clause allowing government discretion for exemptions, which unions could influence through striking.

The court acknowledged that removing wages from negotiation met the initial test set by Health Services for substantial interference but concluded the PSSA did not substantially interfere with collective bargaining rights due to preserved processes of consultation and negotiation, deeming such legislative interference temporary and broad-based as non-substantial.

(c)         General principles that arise from prior wage restraint legislation decisions

Ontario argued that the application judge erred in failing to follow previous wage restraint legislation decisions. Ontario pointed to the similarities between the legislation in these other cases and the Act.

However, this argument failed to have regard to the contextual analysis mandated by the Supreme Court in deciding whether legislation substantially interferes with the right to collective bargaining.

There is no formula for assessing whether the degree of interference reaches the level of substantial interference. Rather, the courts look at a set of factors to assess the degree of interference, and whether the measures imposed leave room for a meaningful process of good faith negotiation and consultation.

Application of s. 2(d) Jurisprudence

The Supreme Court outlined a two-step process to assess if a law significantly impacts collective bargaining rights, focusing on the issue’s relevance to collective bargaining and the law’s effect on the right to bargain and consult in good faith. In the current case, it was uncontested by Ontario that wages are crucial to collective bargaining, with evidence showing their significance to the respondents’ bargaining goals. The core question was whether the Act maintained a meaningful consultation and negotiation process. The analysis, which included ten factors, failed to conclusively prove that the Act ensured good faith negotiation and consultation, with some factors considered extraneous or irrelevant.

The Act’s Impact on Collective Bargaining

The government passed the Act without significant collective bargaining or consultation, a departure from previous practices of engaging in meaningful dialogue before introducing wage restraint legislation. Bill 124 was introduced without substantial prior collective bargaining with the affected units, and meaningful consultation with the respondents was absent before the Act’s enactment. The Act’s wide definition of “compensation” significantly limited negotiation opportunities, affecting salaries and other compensable benefits, thus restricting the respondents’ leverage in negotiations. Furthermore, the Act’s exemption process, despite being outlined in s. 27, proved to be ineffective for negotiation, characterized by delays and unaddressed requests, reducing its utility as a bargaining tool.

Conclusion on s. 2(d) Interference

The Act significantly infringed upon the respondents’ rights to collective bargaining by affecting a critical aspect—wages—and undermining the capacity for genuine collective bargaining and consultation. This infringement was due to the absence of substantial collective bargaining or meaningful consultation before the Act’s implementation, a broad definition of compensation that restricted negotiation scope, and an ineffective exemption process. Moreover, the 1% salary and compensation cap diverged from results in other public sector negotiations. Collectively, these elements highlighted the Act’s substantial interference with the ability to conduct negotiations and consultations in good faith.

  1. No.

Section 1 of the Charter allows for the imposition of reasonable limits on rights and freedoms, but such limits must be demonstrably justified in a free and democratic society. The Oakes test applied, requiring the government to demonstrate a pressing and substantial objective for the law and that the means chosen to achieve this objective are proportional. This includes a rational connection to the objective, minimal impairment of rights, and a balance between the law’s salutary and deleterious effects.

Pressing and Substantial Objective

The Act aimed to moderate compensation growth for public sector employees to manage the province’s finances responsibly and ensure the sustainability of public services. The Court found that moderating public-sector wages was more a means to achieve financial management than an objective. The Act’s objective was redefined as the responsible management of Ontario’s finances and the protection of sustainable public services.

Rational Connection

The Act was generally found to be rationally connected to the government’s objectives, except in its application to workers in the electricity and university sectors. For these sectors, there was no rational connection between the Act’s objectives and its application due to the self-funding nature of these sectors and the fixed funding agreements with universities.

Minimal Impairment

The Act did not minimally impair the right to collective bargaining. There was no evidence that the province could not achieve its objectives through collective bargaining or that it attempted to negotiate agreements with wage increases capped at 1% per year.

Proportionality

The deleterious effects of the Act on collective bargaining rights were not proportional to its salutary effects on fiscal management and public service sustainability. The Act’s infringement on Charter rights was not justifiable due to the lack of urgency or evidence that the same goals could not be achieved through collective bargaining.

Conclusion on s. 1 of the Charter

The Court found that the Act was not saved by s. 1 of the Charter. While it pursued a pressing and substantial objective and the means were generally rationally connected to its goals, it failed the minimal impairment test, and its detrimental effects outweighed its salutary effects.

  1. Yes.

The application judge found the Act violated s. 2(d) of the Charter and was not saved by s. 1, leading to the entire statute being struck down, which the Court considered an error. The Act’s application to represented and non-represented employees differed, making it unconstitutional only regarding represented employees. Despite suggestions that non-represented employees might wish to organize in the future, the Act was deemed not unconstitutional as it applied to them.

Dissenting Decision:

  1. Yes.

The Dissent argued that Bill 124, the Protecting a Sustainable Public Sector for Future Generations Act, 2019, did not breach s. 2(d) of the Charter, as it did not substantially interfere with associational rights. The Majority’s breach finding, according to the Dissent, was flawed for overemphasizing the absence of pre-legislation consultation and misinterpreting economic conditions, thereby improperly shifting the burden of proof onto the Province and neglecting evidence of ongoing collective bargaining under Bill 124.

Despite wage caps under Bill 124, unions successfully negotiated other significant benefits, maintaining the right to strike and achieving workplace goals. The Dissent highlighted that workers retained the ability to collectively represent their interests and to have those interests considered in good faith, affirming there was no violation of s. 2(d).

  1. Yes.

The Dissent noted that in the alternative to the first issue, if Bill 124 breached s. 2(d), it was a reasonable limit prescribed by law and is demonstrably justified in a free and democratic society.

The Dissent agreed with the Majority’s conclusion that Ontario has advanced a pressing and substantial objective in support of the Act. However, the Dissent disagreed with their findings regarding rational connection, minimal impairment, and proportionality.

It was uncontested that the government of Ontario enacted Bill 124 in response to what it perceived to be a pressing economic issue. The Dissent accepted the Majority’s finding that the legislation’s objective was the responsible management of the Province’s finances and protecting sustainable public services. There is no evidence that the government introduced the legislation in bad faith.

In applying the Oakes test, the Dissent argued that the application judge erred in law at each stage. The Dissent indicated that his reasons display a misunderstanding of the role of courts in reviewing government policy choices on resource distribution and the regulation of labour relations.

Pressing and Substantial

The application judge erred in applying too stringent a standard and went beyond the record to substitute his own opinion for the views of the elected government and financial experts.

Rational Connection

The application judge erred in finding that there was no rational connection regarding the energy and university sectors and only a remote connection to the long-term care sector. The Majority made the same errors regarding the energy and university sectors. Both failed to consider ways that wage control would benefit the responsible fiscal management of the Province and ignored the fact that the government had an interest in reducing wage growth in entities that are provincially funded or owned.

Minimal Impairment

The appellants submitted – and the Dissent agreed – that the application judge failed to adopt this deferential approach and erred in concluding that voluntary wage restraint – or hard bargaining – was the alternative that should have been pursued.

The Dissent argued that it was an error to fail to consider whether the legislature created a law that falls within a range of reasonable alternatives to respond to the policy problem. Instead, their analysis focuses exclusive on his erroneous conclusions that voluntary wage restraint or hard bargaining was a viable and better alternative to further the government’s policy objectives.

Balancing

The Dissent felt that the application judge chose to ignore the expert evidence and recast Ontario’s fiscal situation to fit his s. 1 analysis. The Dissent further noted that the Majority’s analysis of the balance stage was based on a misunderstanding of the operation of Bill 124.

Based on the above, the Dissent would find, in the alternative, that if Bill 124 breached s. 2(d), it was a reasonable limit prescribed by law and is demonstrably justified in a free and democratic society.

  1. Yes.

The Dissent agreed with the Majority in concluding that the application judge erred when he declined to consider the pertinent sections of Bill 124 and simply invalidated the whole Act.


Drywall Acoustic Lathing and Insulation (Pension Fund, Local 675) v. Barrick Gold Corporation, 2024 ONCA 105

[Roberts, Paciocco and Thorburn JJ.A.]

Counsel:

J.P. Rochon, P.R. Jervis, G. Nayerahmadi, and M. W. Taylor for the appellants

K.E. Thomson, S.G. Frankel, and M. O’Sullivan, for the respondents

Keywords: Securities, Secondary Market Liability, Secondary Market Misrepresentations, Public Correction, Civil Procedure, Class Proceedings, Leave to Commence Proceeding, Certification, Securities Act, R.S.O. 1990, c. S.5, Part XXIII.1, Peters v. SNC-Lavalin Group Inc., 2023 ONCA 360, 166 O.R. (3d) 756, Wong v. Pretium Resources Inc., 2022 ONCA 549, Green v. Canadian Imperial Bank of Commerce, 2015 SCC 60, Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18, Badesha v. Cronos Group Inc., 2022 ONCA 663, Rahimi v. SouthGobi Resources Ltd., 2017 ONCA 719, Mask v. Silvercorp Metals, 2016 ONCA 641, Markowich v. Lundin Mining Corp., 2023 ONCA 359, Bayens v. Kinross Gold Corporation, 2014 ONCA 901, Goldsmith v. National Bank of Canada, 2016 ONCA 22, Nseir v. Barrick Gold Corporation, 2022 QCCA 1718, R. v. Sheeller, 2014 ONCA 867, R. v. Curry, 2019 ONCA 754, leave to appeal denied, [2014] S.C.C.A. No. 185,  R. v. K.C., 2015 ONCA 39, Kerr v. Danier Leather Inc., 2007 SCC 44, Baldwin v. Imperial Metals Corporation, 2021 ONCA 838, Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin, 2016 ONSC 5784

facts:

The appellants, the Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund and R.L. (collectively, “Drywall”), were proposed representative plaintiffs in an intended class action proceeding relating to a failed South American gold mining project, the Pascua-Lama project. The proposed class action was based on allegations that the respondents, Barrick Gold Corporation and some of its officers and directors (collectively, “Barrick”), made actionable misrepresentations about the project, contrary to s. 138.3(1) of the Ontario Securities Act, R.S.O. c. S.5 (“OSA”). Section 138.3(1) provides for one of several misrepresentation actions legislated in s.138.3 of the OSA.

Leave is required under s. 138.8 of the OSA to bring a s. 138.3 action, including an action pursuant to s. 138.3(1). Drywall achieved only limited success in its initial leave application. Drywall was successful on appeal in obtaining a second leave hearing on some of its misrepresentation allegations. Drywall appealed the motion judge’s decision in the second leave hearing.

issues:
  1. Did the motion judge commit an extricable error in denying leave to pursue the alleged October 27, 2011 misrepresentations?
  2. Did the motion judge commit an extricable error in concluding that the November 1, 2012, April 10, 2013, and June 28, 2013 disclosures were not relevant possible public corrections of the alleged misrepresentations made on February 16, 2012, and March 28, 2012?
holding:

Appeal dismissed.

reasoning:
  1. No

The statutory causes of action in s. 138.3, including s. 138.3(1), do not require the plaintiff to prove reliance on a misrepresentation. Subsection 138.3(1) presumes that fluctuations in value during this period are attributable to the misrepresentation.  It imposes two statutory prerequisites to obtaining leave: (a) the action being brought in good faith; and (b) a reasonable possibility that the action will be resolved at trial in favour of the plaintiff.

In order to satisfy the reasonable or realistic chance of success standard, a plaintiff must “offer both a plausible analysis of the applicable legislative provisions, and some credible evidence in support of the [plaintiff’s] claim.’ These conditions must be satisfied plus the record before the leave judge must demonstrate that there is a realistic or reasonable chance that the action will succeed.  The “plaintiff must adduce ‘sufficient evidence to persuade the court that there is a reasonable possibility that the action will be resolved in the [plaintiff’s] favour.’”

The credibility of the evidence is to be assessed, including an assessment of the reliability of the evidence. If critical evidence offered by a plaintiff is shown by other evidence to be “completely undermined by flawed factual assumptions” a motion judge may choose not to act on that evidence. However, a s. 138.8 inquiry should not be treated as a “mini-trial” simply because their decision turned on considerations of the credibility and reliability or weight of the evidence.

It is the trial judge that is to determine whether the matter in issue has been proved on the balance of probabilities. If a motion judge attempts to resolve realistic and contentious issues arising from conflicting credible evidence they will be lapsing into a mini-trial. During the leave motion, judges must consider the evidence that is not before them and whether a lack of complete record leaves uncertainty about whether a realistic or reasonable chance of success exists.

The motion judge found there to be no realistic or reasonable possibility that a trial court could find that on October 27, 2011, Barrick was making actionable misrepresentations rather than expressing reasonably mistaken conclusions. In contrast, the motion judge found that there was evidence before her that could cause a trial court to conclude that after October 27, 2011, and before February 16, 2012, Barrick had acquired information that exposed its capex budget and production schedules as unreasonable, rendering the repetitions of the reasonableness of that same capex budget and projected production schedule on February 16, 2012 and March 27, 2012 misrepresentations. The motion judge engaged in an appropriate assessment of the whole of the record, and in effect concluded that given the strength of the case to the contrary, there was no such possibility of a reasonable or realistic chance of success at trial.

There was no basis for concluding that the motion judge failed to consider the evidentiary gaps in the record. Her obligation was to consider whether the record “was sufficient, even without the benefit of discoveries and production, to properly assess whether there was a reasonable possibility of the success of the appellants’ statutory action at trial”. The motion judge did this, concluding, as she was entitled to, that the record was adequate. Her reliance on the size of the record before her in making this determination was entirely appropriate.

Drywall placed heavy reliance on a July 25, 2012 presentation prepared by Barrick. The failure to mention evidence capable of supporting one of the parties can indicate a failure by a judge to consider that evidence, but “will depend on a number of factors, including the nature of the evidence itself, the entirety of the evidence, the issues raised and the arguments made.” The presentation was not compelling enough to support an inference that the motion judge must have missed it or missed its significance. In terms of the entirety of the evidence, the record was enormous, and the motion judge issued two lengthy judgments addressing multiple issues and submissions. Given the scope or her task, it was not surprising that the motion judge may not have explicitly mentioned all of the evidence that she considered.

Moreover, if a litigant does not consider a document to be sufficiently important to focus on in their submissions, an appeal court is not likely to infer that the document is of sufficient importance that it should have been referred to in the judge’s ruling. Drywall presented no confirmation that the document was featured, let alone referred to, in its written or oral submissions before the motion judge relating to the alleged October 27, 2011 misrepresentations that were under appeal. The motion judge did not fail to consider this document or the record before her.

The motion judge did not conduct a purely subjective inquiry. First, the motion judge considered whether there was any evidence on the record “to suggest” that “Barrick had any reason to be concerned”. This was an objective inquiry, and on its own, undermined Drywall’s submission. Second, since Drywall put Barrick’s subjective knowledge in issue, it could not fairly be inferred from the motion judge’s reference to Barrick’s subjective knowledge that she misconceived the law relating to misrepresentations.

  1. No

A “public correction” of an alleged misrepresentation will serve as a “necessary time-post for the proposed [s. 138.3(1) action] and any eventual damages calculation.” A motion judge considering whether leave should be granted pursuant to s. 138.8 must therefore determine “whether [an] alleged public correction was reasonably capable of being understood in the secondary market as correcting what was misleading in the impugned statement.”

The motion judge accepted Drywall’s submission that there was a reasonable possibility that Barrick’s disclosure made on July 26, 2012 was a public correction of these alleged misrepresentations, which was solidly grounded in the evidence. In the July 2012 public disclosure, Barrick described challenges it had encountered with the Pascua-Lama project, admitted that its earlier projections had proved incorrect, and disclosed that a detailed review of its schedule and costs estimate was required. Evidence showed that it was greeted with shock by analysts and the market given its magnitude. The motion judge concluded that the disclosure “put the market on notice that the forecasts were not reliable” and “[lead] inescapably to the conclusion that Barrick had accurately corrected any pre-existing misrepresentation about the schedule and capex budget by July 2012.”

In identifying possible public correction dates a motion judge’s ultimate task is to determine if there is a reasonable possibility that a trial court will find that a public disclosure was a public correction, an inquiry that requires a reasoned consideration of the evidence. The inquiry may alternatively be profitably framed by asking “whether the alleged public correction was reasonably capable of being understood in the secondary market as correcting what was misleading in the impugned statement.” Once Barrick disclosed on July 26, 2012, there was no longer a realistic or reasonable possibility that investors could credibly treat Barrick as continuing to represent that its February 16, 2012 and March 28, 2012 representations were reasonable or accurate. It followed that public disclosures made after July 26, 2012 were not reasonably capable of being understood in the secondary market as correcting the already completely corrected impugned statements that had been made on February 16, 2012 and March 28, 2012.

The “overarching question” was namely, “whether the alleged public correction [is] reasonably capable of being understood in the secondary market as correcting what was misleading in the impugned statement. It necessarily followed that a sufficient linkage or connection will exist if the alleged public correction can reasonably be taken as correcting the alleged misrepresentation, but not otherwise. A mere coincidence in subject matter will not suffice. The motion judge cited the linkage or connection inquiry and applied it correctly.

The motion judge did not encroach on the jurisdiction of the common issues judge administering the class action. The motion judge reasonably concluded that she could best achieve judicial economy and access to justice by using leave inquiry determinations to screen possible public corrections, thereby avoiding a duplication of efforts by the parties and the courts. She also did not confuse the misrepresentation and public correction issues.

Section 138.3(1) of the OSA was meant to provide generous access to justice to those whose trading decisions may have been tainted by misrepresentations. It would not be in keeping with the objective or with judicial economy to permit misrepresentation actions to be pursued on behalf of those who trade in securities after alleged misrepresentations have been completely publicly corrected, since a complete public correction will have removed any realistic prospect that those trading decisions may have been tainted.


Cashin Mortgages Inc. (Verico Cashin Mortgages) v. 2511311 Ontario Ltd. (Mortgages Alliance – Main Street Mortgages), 2024 ONCA 103

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

P. N. Lermusieaux, for the appellants

C. C.G. Pye, for the respondent, Cashin Mortgages Inc., operating as Verico Cashin Mortgages

J. Sullivan, for the respondents, 2511311 Ontario Ltd. operating as Mortgage Alliance – Main Street Mortgages, and Roger Grubb

S. Campbell, for the respondent, The Mortgage Alliance Company of Canada Inc.

Keywords: Abuse of Process, Motion, Capacity, Rules of Civil Procedure, R.R.O. 1990, Reg 194, r 23.01(3)(b), 23.01(3)(c), 23.01(3)(d), Western Delta Inc. v. Zurich Indemnity Company of Canada, 1999 CanLII 2386, Goldentuler v. Simmons Dasilva LLP, 2021 ONCA 219, Housen v. Nikolaisen, 2002 SCC 33, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Behn Moulton Contracting Ltd., 2013 SCC 26, Birdseye Security Inc. v. Milosevic, 2020 ONCA 355

facts:

The individual appellants were mortgage agents who worked under the trade name “Greenbrix”. From about June 2018 to April 2020, they worked as mortgage agents as independent contractors with the respondent, Cashin Mortgages Inc., operating as Verico Cashin Mortgages (“Cashin”), a mortgage brokerage. The appellants alleged that, from about January 1, 2019, they started using the name “Greenbrix” in connection with their services. On February 21, 2019, allegedly unknown to the appellants, Cashin registered “Greenbrix Capital” as a business name in Ontario. On June 21, 2019, the appellant, Krystian Catala, incorporated the appellant, Greenbrix Capital Inc.

The parties’ relationship ended in about April 2020. After this point, the appellants continued to work under the Greenbrix name in association with named defendants, Roger Grubb and 2511311 Ontario Ltd., another mortgage brokerage.

Cashin sent multiple warning letters to some of the defendants, advising them to cease using the “Greenbrix” name in association with their business activities and threatening legal action and disciplinary proceedings. Cashin’s principal also accused them of engaging in fraudulent actions by using the name.

On June 23, 2020, the appellants, Krystian Catala and Greenbrix Capital Inc., commenced an action in Toronto against Cashin and its principal (the “Toronto Action”). Cashin filed a statement of defence and counterclaim. The main dispute centred around the ownership of and right to use name, “Greenbrix”.

Following the completion of the discovery process in the Toronto Action, on March 1, 2022, Cashin commenced an action against some of the individual appellants and other named defendants in Milton (the “Milton Action”). The Milton Action also turned on the determination of the ownership of and right to use the name, “Greenbrix”. The defendants in the Milton Action had brought a motion under r. 21.01(3)(b), (c) and (d) of the Rules of Civil Procedure to have the Milton Action dismissed or stayed.

issues:
  1. Did the motion judge err in concluding that it was not plain and obvious that Cashin did not have legal capacity to bring the Milton Action?
  2. Did the motion judge err in finding that the action was an abuse of process and adjourning that part of the motion sine die?
holding:

Appeal allowed, in part.

reasoning:
  1. No.

The Court stated that the appellants’ argument conflated the question of legal standing with the question of whether or not Cashin’s claim to ownership had any merit. As the motion judge noted, the appellants did not bring a motion to strike Cashin’s statement of claim in the Milton Action as disclosing no reasonable cause of action, nor a motion for summary judgment, whereby the court could have possibly adjudicated the merits of the Milton Action. Whether or not Cashin ultimately prevailed on its assertion that it owned the Greenbrix name remained to be determined. The Court concluded that this was not a determination that could have been made on this motion or record. The Court ultimately dismissed this ground of appeal.

  1. Yes.

The motion judge made a reversible error by appearing to determine the issue of abuse of process but then adjourning the issue sine die such that it may or may not ever be dealt with.

The motion judge erred in not completing the motion. His failure to consider the issue before him resulted in a confusing order: the issued and entered order simply adjourned sine die the appellants’ motion under r. 21.01(3)(c) and (d), without any formal direction about next steps, such as a transfer motion, or clarification as to whether the return of the appellants’ motion was before the Toronto court or the motion judge.

The general principle of r. 1.04 ensured that the Rules were construed in the most expedient and economic way, having regard to the costs and delay to the litigants and the waste of precious judicial resources. Discoveries were complete in the Toronto Action but had not begun in the Milton Action at the time of the motion. The effect of the motion judge’s decision was to create additional delay and expense while the parties engaged in further motions that would have been unnecessary had the motion judge determined the issues before him.

The motion judge failed to recognize that the Milton Action was an abuse of process. His failure to grapple with this issue led him to treat the Milton Action as a mere procedural irregularity that could have been cured by its transfer to and joinder with the Toronto Action. As a result, he failed to give effect to his own findings that the Milton Action replicated the core issue and potentially the injunctive relief sought in the Toronto Action, and, importantly, that there was no “viable explanation” for the commencement of the Milton Action.

Ordinarily the discretionary decision of the motion judge to adjourn part of the appellants’ motion would attract deference from the Court. However, the Court noted that the motion judge’s errors were errors of law. As a result, the Court stated that no deference was owed to the motion judge’s adjournment decision and that it would consider this issue afresh: Housen at para 8.

Both r. 21.01(3)(c) and (d) invoke the doctrine of abuse of process. The doctrine of abuse of process has been applied to prevent a multiplicity of proceedings or the re-litigation of an issue, such as in the commencement of another proceeding that replicates the same or similar issues and is against some or all the same parties. It is a flexible doctrine that “evokes the ‘public interest in a fair and just trial process and the proper administration of justice’”, and, as a result, “engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”: Behn Moulton Contracting Ltd at paras 39 and 40.

Having regard to the relevant circumstances (including the motion judge’s findings), the Milton Action was clearly vexatious and an abuse of process. These circumstances included that the Milton Action replicated the Toronto Action in subject matter and, effectively, in the persons against whom relief was being sought; there was no “viable explanation” for the unnecessary commencement of the Milton Action following the close of pleadings and completion of the discovery process in the Toronto Action; the acrimonious relationship that existed between the parties; Cashin’s surreptitious registration of the business name; and its aggressive and threatening letters to the appellants.

Without any viable explanation and notwithstanding the state of the Toronto Action, Cashin deliberately commenced the Milton Action where the likelihood of inconsistent findings and of unnecessary delay and expense was inevitable. In the absence of any “viable explanation” and seen in the context already reviewed, the Court concluded that the only reasonable inference to be drawn from Cashin instigating a second action involving the same principal issue and effectively the same parties was to put the appellants to the inconvenience, delay and expense of a second action in order to intimidate them into submission. The appellants’ rights were clearly prejudiced. Allowing Cashin to seek to transfer the Milton Action condoned its vexatious actions and abuse of process. This prejudiced the due administration of justice. The appeal in respect of the Milton Action was therefore allowed and the Milton Action was dismissed.


Lepan Estate v. Lofranco Chagpar Barristers, 2024 ONCA 110

[Lauwers, van Rensburg and Thorburn JJ.A.]

Counsel:

K. Arvai, for the appellant

J. Pedro, for the respondents

Keywords: Torts, Professional Negligence, Solicitor and Client, Civil Procedure, Amending Pleadings

facts:

The late IL was injured in a 2008 motor vehicle accident. IL brought an action against the respondents, who had represented him in the ensuing motor vehicle litigation. He claimed that they had improperly pressured him into accepting improvident settlements of his claim for statutory accident benefits under the Insurance Act, and his claim for long-term disability benefits. He also alleged that these improvident settlements adversely affected the settlement of his tort claim, and that the respondents improperly pressured him to accept an improvident settlement of the tort claim. The appellant’s counsel eventually settled the tort action for nearly twice the offer obtained by the respondents that IL rejected. IL died in 2017 and his Estate continued the action.

In 2018, the respondents moved to remove the appellant’s counsel as the Estate’s solicitor of record, on the basis that his involvement in the settlement of the tort action rendered him a necessary witness as to the effect of the other allegedly improvident settlements on the tort settlement. The respondents’ motion was dismissed as premature by McArthur J., with reasons reported at 2018 ONSC 5330. The Divisional Court dismissed their appeal, with reasons reported at 2021 ONSC 1757.

The Estate then moved for leave to further amend the statement of claim to effect appeal counsel’s advice to the Divisional Court, described below. The respondents had not opposed the amendment and made no submissions. Leave to amend was granted on December 16, 2021, and the Amended Amended Statement of Claim was issued on January 4, 2022.

During examinations for discovery on December 15, 2021, counsel for the Estate began asking questions about the statutory accident benefits claim and the tort claim. Respondents’ counsel objected. On January 7, 2022, the respondents delivered an Amended Amended Statement of Defence and pleaded that the Estate was estopped from claiming any damages other than those flowing from the settlement of the long-term disability claim.

The respondents then brought a motion to enforce the Estate’s statement that it would restrict its claim for damages.

issues:

Did the motion judge err in concluding any claim for non-pecuniary damages arising from the respondent’s conduct on and management of the accident benefits and tort claims were waived?

holding:

Appeal Allowed

reasoning:

Yes.

In our system of justice, there are two basic principles worth recalling. First, a plaintiff with a tenable claim is entitled to proceed with an action in the normal course as pleaded. Second, a party is entitled to counsel of the party’s choice. That choice is not one with which a court should lightly interfere.

A plaintiff can give up a claim by amending the Statement of Claim. In light of the plain language of the Amended Amended Statement of Claim, the clarifications of the appellant, and the focus of the motion to remove the appellant’s counsel, discussed below in their contexts, the Court found that the motion judge misapprehended the pleading and the statements of counsel for the Estate, as did counsel for the respondents.

First, and most obviously, it appeared to be common ground that the Estate was entitled under the Amended Amended Statement of Claim to pursue both pecuniary and non-pecuniary claims related to the settlement of the long-term disability claim and had done so in all of the iterations of its pleading. The most recent amendments, which maintained these claims, were made without opposition. The pleading also maintained a broader claim for non-pecuniary damages. It was clear from the three claims for which non-pecuniary damages were sought that the amendments to the Statement of Claim preserved the Estate’s broader claims for non-pecuniary damages.

Second, apart from the plain fact that the Amended Amended Statement of Claim was not amended to delete the non-pecuniary claims in relation to the settlement of the statutory accident benefits claim and to the proposed tort settlement, counsel for the Estate pointed to other exchanges with the respondents before the Statement of Claim was amended that made the Estate’s intentions clear.

Third, the Court observed that there was no common understanding between the parties as to what the Estate was giving up in the Amended Amended Statement of Claim and what was being preserved, nor could that have been clear to the Divisional Court. The uncertainty was in part the responsibility of counsel for the Estate, who did not use the terms “pecuniary” and “non-pecuniary” damages that he more recently used in explaining the Estate’s position. On the pleading, both were claimed. Similarly, it was noted that the respondents’ counsel could have been faulted for not noticing that the Amended Amended Statement of Claim had not deleted these claims. The Estate’s alleged failure to amend the Statement of Claim consistently with the withdrawal of non-pecuniary claims should have triggered an inquiry, but it did not.

Fourth, it was noted that the court must pay close attention to the context. Respondents’ counsel were anxious to remove the appellant’s counsel as solicitor of record for the Estate. They had brought the unsuccessful motion and the unsuccessful Divisional Court appeal for this purpose. To add detail, the basis for the motion was the claim in the old version of para. 23 that the improvident settlement of the long-term disability and accident benefits claims had a negative impact on the settlement of the tort claim, resulting in a further loss to the Estate. To prove that claim, the respondents argued that the appellant’s counsel, as the one who negotiated the ultimate tort settlement, would have been required to give evidence as to why the Estate got less than it was otherwise entitled to for the tort claim. He should, they argued, therefore be removed as counsel for the Estate. This had led to the amendments to the pleading to take the appellant’s counsel out of the line of fire. By these amendments, he avoided being a prospective witness by taking the quantum of the tort settlement out of contention.

The fifth reason was that there was no undertaking or representation concerning the non-pecuniary damages to the Divisional Court and no basis for estoppel by representation. The Estate had not represented that it waived its non-pecuniary claims. There was also no evidence that the respondents relied on the statements of the Estate’s counsel. While the motion judge noted that the respondents did not appeal the Divisional Court order, this fact was insufficient to show that the respondents changed their legal position in response to the statements. There was no indication that the respondents had intended to appeal, and leave to appeal was unlikely given that the Divisional Court’s order did not preclude the respondents from bringing the same motion later.

As a final note, the Court stated that it was striking that this litigation had been essentially stalled since 2018. The Court further iterated that it was time for the parties to attend to the merits of the case with the pleadings as drafted and counsel of the parties’ choice.


Husack v. Husack, 2024 ONCA 117

[Roberts, Sossin and Dawe JJ.A.]

Counsel:

D. Sayer and A. Stikuts, for the appellant

R. MacGregor, for the respondent, E.H.

D. Waldman, for the respondent, D. H.

J. Diacur, for the respondents, D.P. and D.Wills.

Keywords: Wills and Estates, Contracts, Interpretation, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 184 and 185, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

facts:

F.H. died on February 21, 2008. The Holding Company, formed by amalgamation of his two corporations after his death, held the remaining assets of his estate. The sole directors of the Holding Company were his widow, E.H., and her son, D.H. The estate held all of the Class A non-voting and Class B voting shares of the Holding Company. The Class A preferential shares, with priority distribution rights, were held by a spousal trust for E.H.’s benefit. Each of the Husacks’ four children – the appellant and the respondents held approximately 25% of the non-voting common shares of the Holding Company. E.H., her four children, and The Effort Trust Company were appointed estate trustees under F.H.’s last will and testament. Under his will, E.H. was granted a veto as estate trustee, over and above her children, so that she could maintain control over the Holding Company after F.H.’s death.

E.H. wished to complete the winding up and distribution of the Holding Company’s assets, pursuant to F.H.’s will, before she died. All of the estate trustees, except the appellant, voted in favour of the liquidation and winding-up of the Holding Company. The application judge’s dismissal of the appellant’s application principally turned on her interpretation of the USA. The USA was signed by all the shareholders; its validity and enforceability were not impugned.

issues:

Did the application judge err in concluding that the shareholders’ dissent rights were explicitly waived by the provisions of the USA signed by the Holding Company’s shareholders?

holding:

Appeal dismissed.

reasoning:

No

The application judge’s interpretation reflected the clear language of the USA.

The application judge concluded that the shareholders’ rights under s. 184(3) of the OBCA were triggered by the proposed liquidation and winding up. The application judge considered whether the dissent rights were waived by the USA. Having considered the relevant provisions of the OBCA, the factual matrix, including the estate planning purpose of the Holding Company, the articles of amalgamation that created the Holding Company (the “Articles”) and the USA, the application judge determined that s. 9.01 of the USA constituted a clear waiver of any dissent rights triggered by the sale and liquidation of the Holding Company.


Reddick v. Robinson, 2024 ONCA 116

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

Counsel:

J. Plotkin and R. Hassanzadeh, for the appellants

N. Sangrar and M. Khalid, for the respondents

Keywords: Real Property, Easements, Interpretation, Yekrangian v. Boys, 2021 ONCA 629, Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417 (C.A.), Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53, Herold Estate v. Canada (Attorney General), 2021 ONCA 579, 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273, Housen v. Nikolaisen, 2002 SCC 33, Gibbs v. Grand Bend (Village) (1995), 26 O.R. (3d) 644, Ontario (Attorney General) v. Walker (1970), [1971] 1 O.R. 151, Niagara River Coalition v. Niagara-on-the-Lake (Town), 2010 ONCA 173, Freeborne Developments Ltd. v. Corman Park (Rural Municipality), 2021 SKCA 48, Raimondi v. Ontario Heritage Trust, 2018 ONCA 750, Robb v. Walker, 2015 BCCA 117, Wesley v. Iles, 2013 ONCA 8, One West Holdings Ltd. v. Greata Ranch Holdings Corp., 2014 BCCA 67, Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517

facts:

A single six-acre parcel of land on Lake Ontario in Prince Edward County – formerly owned jointly by CM, MM, and the late PM – was subdivided into three two-acre properties. The parties in this appeal each own one of these properties.

At the time of the subdivision, CM and MM/PM also each owned properties situated between the six-acre parcel and the lake. A private road separated those properties and the six-acre parcel. CM and MM/PM worked with a planner to create a 20 ft. by approximately 300 ft. strip of land between their respective properties to connect what is now the appellants’ property (the “Re property”) to the shores of Lake Ontario. The other two subdivided parcels were owned by the respondents (respectively, the “Ro property” and the “B property”). Title to the strip of land was held by the appellants, subject to an easement in favour of the R and B properties as follows:

[F]or the purposes of pedestrian access only in order to use and enjoy the shores of Lake Ontario, such use and enjoyment shall not include camping or the use or operation of motorized vehicles.

issues:
  1. What is the standard of review?
  2. Did the application judge err in his interpretation of “shores of Lake Ontario”?
  3. Did the application judge err in his interpretation of the scope of the easement?
  4. If the appellants succeed, should the Court remit the application to the Superior Court for reconsideration, or does the record permit the Court to substitute its decision?
holding:

Appeal allowed.

reasoning:
  1. Correctness standard

The Court has directed that where, as here, “an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created”: Fallowfield at para 10. The principles of contractual interpretation as set out by the Supreme Cour in Sattva also apply to the interpretation of an easement: Herold Estate at para 44.

The appellants submitted that the application judge’s interpretation of “shores of Lake Ontario” was reviewable on a correctness standard because “shores” is a legal term of art. The Court disagreed, stating that the easement as a whole – including the term “shores” – must be interpreted with regard to its text and the broader factual matrix. It is a question of mixed fact and law that typically attracts deference.

The application judge had made errors in principle in his interpretation of the easement. He also misapprehended critical evidence. The application judge further erred by relying on inadmissible subjective intent evidence from CM concerning the creation of the easement – an extricable error of law is reviewable on a correctness standard: 2484234 Ontario Inc. at para 54.

  1. Yes.

The meaning of “shores of Lake Ontario” in the easement is the land lying between the high and low water marks. The term “shores”, having regard to the language used in the easement and the surrounding circumstances, means the area between the low and high-water mark. This conclusion was grounded in the text of the easement and in the clear distinction it drew between “shores” and the strip of land which provided access to the shores. The application judge erred in finding that the shore in this case included the raised grassy piece of land abutting the limestone shore; that is, the land just above the high-water line.

Camping and Motor Vehicles

Photographs of the limestone shore were filed as exhibits on the application. These photographs showed that it was possible for one to erect a tent and camp, and operate a smaller motorized vehicle (such as a dirt bike or ATV) when the water level was at its lowest.

The Court agreed with the appellants that for the application judge to have arrived at his conclusion that the prohibitions were “effectively redundant”, he must have either 1) failed to consider the photographs, or 2) inferred that, for the prohibitions to have meaning, it had to be possible to camp or drive a motorized vehicle on the shore regardless of where the water meets land and irrespective of weather or water conditions.

The Court noted that to accept the appellants’ interpretation would not render the prohibitions “effectively redundant”. Based on the photographs and description of the limestone shore, depending of course on the water-level, it was clear that one could camp and also drive a motorized vehicle on the shores. Thus, to prohibit these activities, the easement needed to expressly so provide, as it did.

The Official Plan

The only evidence that spoke to the role the Official Plan played in the creation of the easement came from CM, who testified about his subjective intent at the time. This was an inadmissible consideration when interpreting an agreement such as an easement: Hanley Park at paras 51-54. The application judge erred by relying on this evidence. The application judge also overstated the significance of, and thereby gave undue weight to, the Official Plan, which was merely a “framework of goals, objectives and policies [of a municipality] to shape and discipline specific operative planning decisions”.

The appellants’ interpretation was aligned with the Counties’ planning priorities and the language used in the easement itself, which had made clear that the strip of land was for “pedestrian access only” in order to “use and enjoy the shores of Lake Ontario”. There was no ambiguity. The easement was addressing two separate things: 1) access to the shores via the strip of land, and 2) the use and enjoyment of the shores. The pedestrian access route was separate and distinct from the use of the “shores of Lake Ontario”. The easement gave the respondents the right to “use and enjoy” the latter but not the former.

  1. Yes.

Reading the application judge’s reasons as a whole, the Court noted that the only logical conclusion was that this determination – like the application judge’s definition of “shores” – rested on the subjective intent of CM and MM/PM. As discussed earlier, subjective intent evidence was not admissible when interpreting an easement. Only objective evidence that speaks to the factual matrix can be considered.

The most relevant objective evidence that informed the factual matrix came from the appellants, who filed on the application a copy of the County’s Notice of Decision (the “Notice”) approving the rezoning application, and the municipality’s Planning Staff Report (the “Report”), which tracked the language in the Notice.

The Notice and the Report were instructive in two main respects. First, they showed that the rezoning application was aimed specifically at providing the lot owners with access to Lake Ontario. The permitted uses under the amended zoning were not determinative of the easement’s scope. Zoning does not in and of itself establish interests or rights in land: 2022177 Ontario Inc. at para 35. Rather, the rezoning application must be considered as a whole to glean objective evidence of intent – in this case, unobstructed access to Lake Ontario – which in turn becomes part of the factual matrix: Freeborne Developments Ltd. at paras 42-45.

Second, the Notice and the Report indicated that two types of access to Lake Ontario were contemplated: direct access (for the appellants, who are titleholders) and legal access (for all landowners, including the respondents). Again, this was objective evidence that shed light on the surrounding circumstances at the time the easement was created, including the parties’ intentions. It should have informed the application judge’s consideration of the factual matrix, but it seemed that it did not. Without the subjective intent evidence of CM – and after considering only the language used in the easement and the objective evidence highlighted by the appellants – the inevitable conclusion was that the easement restricted the respondents to “pedestrian access only” for the purpose of ingress to and egress from the “shores of Lake Ontario”.

  1. The Court was of the view that it was in a position to decide the issue and dispose of the application, which it did.

Dissent (van Rensburg JA)

Justice van Rensburg noted that majority decision was an impractical and unsatisfactory result that was inconsistent with the plain and ordinary meaning of the words used in the easement and with the objective intentions of the parties who created the easement, which was, as the application judge reasonably concluded, to provide the owners of the dominant tenements (here, the respondents), with the same rights as the owners of the servient tenement (here, the appellants) in relation to the use and enjoyment of the shores of Lake Ontario.

Van Rensburg JA concluded that there were no reversible errors in the application judge’s decision. He understood and applied the correct legal principles, reasonably concluding that the appellants were not entitled to the declarations they sought: first, that the respondents were limited to using the easement to access Lake Ontario and second that “shores of Lake Ontario” referred to the lands lying between the actual waters of Lake Ontario and the “water’s edge” mark according to the Reference Plan. He rejected the appellants’ interpretation of the easement that would restrict the respondents to using and enjoying the uneven limestone rocks, and not the Grassy Area.


Cohen v. Cohen, 2024 ONCA 114

[Nordheimer, Copeland and Dawe JJ.A.]

Counsel:

A. Franks and A. Weinerman, for the appellant

No one appearing for the respondent

Keywords: Family Law, Property, Equalization of Net Family Property, Matrimonial Home, Family Law Act, R.S.O. 1990, c. F.3, s.4,7,8, Hamilton v. Hamilton (1996), 92 O.A.C. 103 (C.A.), Roberts v. Roberts, 2015 ONCA 450

facts:

The appellant and the respondent were married in 2005 and separated on August 17, 2021. The appellant commenced a proceeding on February 9, 2022.

In August 2022, the appellant brought a motion seeking to proceed with an uncontested trial in writing and an order permitting her to sell the matrimonial home without the respondent’s consent. The respondent filed materials in response to the appellant’s motion and brought a cross-motion for an extension of time to serve an answer to the appellant’s claim.

On August 29, 2022, Faieta J. dismissed the respondent’s cross-motion and granted the appellant’s motion. Faieta J. ordered that the respondent was not entitled to notice of any further steps in the proceeding except for service of an order. He permitted the appellant to proceed with an uncontested trial in writing. Faieta J. also granted the appellant permission to sell the matrimonial home without the respondent’s consent or signature. He ordered that the net proceeds of the sale be held in trust pending further direction from the court.

The appellant sought the release to her of all of the net proceeds from the sale of the matrimonial home.  Notwithstanding the lack of financial disclosure by the respondent, the trial judge held that he was entitled to an equalization payment.

issues:

Did the trial judge err in finding that the respondent was entitled to an equalization payment?

holding:

Appeal allowed. Motion to adduce fresh evidence dismissed.

reasoning:

Yes.

On the record before the trial judge, that finding was a palpable and overriding error. There was a wholly inadequate factual basis to assess the net family property of the respondent. Absent that information, there was no basis on which to order an equalization payment.

None of the information about the respondent’s assets and liabilities that would have been necessary to calculate his net family property was disclosed by the respondent or in the trial record. There was no evidence of the respondent’s assets or debts and liabilities at the date of the marriage or on the valuation date, and no evidence of any of the other financial information required to be disclosed under s. 8 of the FLA.

Further, ordering an equalization payment in favour of the respondent in the face of such non-disclosure created incentives that are contrary to the objectives of both the FLA and the Family Law Rules. It gives the non-disclosing spouse the benefit of a finding in their favour while denying the other spouse and the court any evidence to assess the assets of the non-disclosing spouse.


Tewari v. Sekhorn, 2024 ONCA 123

[van Rensburg, Roberts and Gomery JJ.A.]

Counsel:

G.T., acting in person

P.A. Downard, for the respondents

Keywords: Civil Procedure, Appeals, Vexatious Litigation, Rules of Civil Procedure, r.2.1.01, Salasel v. Cuthbertson, 2015 ONCA 115, 1522491 Ontario Inc. v. Stewart, Esten Professional Corporation, 2010 ONSC 727, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Tewari v. McHenry, 2022 ONCA 335, Tewari v. Sachdeva and Miller Thomson LLP, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

facts:

Mr. T. was dismissed from his employment on February 1, 2019. He sued his former employer, Marcatus QED, as well as three of its employees or directors (the “Marcatus defendants”). He later began an action against the respondents, the lawyer and law firm who represented the Marcatus defendants in Mr. T.’s lawsuit. Mr. T. claimed that, in representing the Marcatus defendants, the respondents engaged in an illegal conspiracy, defamed him, and breached their fiduciary duties to him.

The motion judge granted the respondents’ motion to strike the statement of claim, without leave to amend.

issues:

Did the motion judge err in striking Mr. T’s statement of claim?

holding:

Appeal dismissed.

reasoning:

No.

Mr. T’s appeal was frivolous, vexatious and an abuse of the court’s process.  As held in Scaduto v. The Law Society of Upper Canada,, there are generally two conditions required for r. 2.1 to apply. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading. Second, there should be a reason for the court to dismiss the action in the absence of a motion. As noted in Scaduto, r. 2.1 is not for close calls.

This was not a close call. The grounds of appeal set out in the notice of appeal had no merit and no possibility of success. Furthermore, Mr. T. was aware of them having no merit, as he advanced the same legal theories unsuccessfully in other lawsuits against lawyers acting for parties he had sued. Mr. T. tried to relitigate claims that have been found untenable in law on five separate occasions by three judges of first instance and two panels of the Court. This was an abuse of the courts’ processes that justified recourse to r. 2.1.


Royal Bank of Canada v. Cutler Forest Products Inc., 2024 ONCA 118

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

Counsel:

C. Colraine and F. Choi, for the appellant Paccar Leasing Company Ltd.

T. C. Hogan and R. Danter, for the respondent Fuller Landau Group Inc., in its capacity as court-appointed receiver in the within proceeding

R. Jaipargas, for the respondent Royal Bank of Canada

Keywords:Commercial Law, Contracts, General Security Agreements, Security Interests, Purchase Money Security Interests, True Leases, Bankruptcy and Insolvency, Receiverships, Priorities, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Courts of Justice Act, R.S.O. 1990, c.C.43, Personal Property Security Act, R.S.O. 1990, c. P.10, Ministry of Government Services Consumer Protection and Service Modernization Act, 2006, S.O. 2006, c. 34 (Bill 152), Personal Property Security Act, S.B.C. 1989, c. 36 (BC PPSA), International Harvester Credit Corp of Canada v Bell’s Dairy Ltd (Trustee of), (1986), 30 D.L.R. (4th) 387 (Sask. C.A.), Giffen (Re), [1998] 1 S.C.R. 91, International Harvester Credit Corp. of Canada v Bell’s Dairy Ltd. (Trustee of), (1986), 30 D.L.R. (4th) 387 (Sask. C.A.)

facts:

The appellant, Paccar Leasing Company Ltd. (“Paccar”), appealed the motion judge’s order holding that the perfected security interest of Royal Bank of Canada (“RBC”) in the property of the debtor, Cutler Forest Products Inc. (“Cutler”), prevailed over Paccar’s unperfected security interest as the lessor and owner of the three commercial trucks that it had leased to Cutler, thus permitting the Fuller Landau Group Inc. (the “Receiver”) to take possession of and sell the trucks.

The heart of Paccar’s argument on appeal was that because it retained title over the trucks in the debtor’s possession pursuant to a “true” lease, its interest ranked in priority to the interests of either RBC or the Receiver, whose interests were derived from Cutler’s. The Receiver argued that Paccar’s position was incorrect and ignored the fundamental changes that came into effect with the reforms to the Personal Property Security Act, R.S.O. 1990, c. P.10 (“PPSA”), in 2007. RBC had a first in time registered security interest in Cutler’s present and after acquired personal property and undertaking pursuant to the GSA, which it entered into in April 2007. On October 22, 2020, Paccar and Cutler entered into a Canadian Vehicle Lease and Service Agreement (the “VLSA”), and pursuant to the VLSA, Paccar leased the three trucks in issue to Cutler. The VLSA provided that Paccar retained ownership of the trucks and was responsible for maintaining them in good repair.

issues:
  1. Can common law or any provision of federal or provincial law grant RBC or the Receiver greater property rights to the collateral than those possessed by Cutler, given that Paccar retained title under a “true lease” arrangement?
  2. Does subsection 20(1)(b) of the PPSA, which states that a security interest in collateral is not effective against a person representing the creditors of the debtor, serve as a specific legislative override that does not apply to the Receiver in this context?
  3. Did the motion judge err in rejecting Paccar’s submission that Section 57.1 of the PPSA exempts “true leases” from the operation of the priority system in the PPSA?
holding:

Appeal dismissed.

reasoning:

1. Yes.

The motion judge discussed the 2007 changes to the PPSA, noting they fundamentally changed the law around the preservation and priority of a lessor’s interest. The PPSA, as of 2007, provided Paccar with the means of preserving the priority of its interest in the trucks over the interest of RBC under the GSA, but Paccar failed to perfect its interest. Ontario and Manitoba were the last two common law provinces to include leases of more than one year in their secured interest and priority legislation, aiming to modernize and simplify the regime of secured interests and priorities. The Supreme Court in Giffen (Re) found that the trustee could obtain greater rights than the bankrupt had, setting aside traditional concepts of title and ownership to a certain extent. This principle applied in the case, where RBC’s perfected security interest prevailed over Paccar’s unperfected security interest. The legislation provided a mechanism for the lessor to protect its interest by adhering to statutory requirements for registration and perfection. Paccar’s argument that neither RBC nor the Receiver could claim a greater interest in the collateral than that possessed by the debtor was based on a faulty premise, as the legislature made a policy choice to displace the common law principle, recognizing that leases of more than one year are security interests and will be protected as PMSIs provided they are perfected as required by the PPSA.

2. No.

The relevant parts of section 20 of the PPSA stated that until a security interest is perfected, it is subordinate to any person who has a perfected security interest in the same collateral. Paccar relied on subsection 20(1)(b) to argue that the Receiver was subordinate to its unperfected security interest. However, this ignored the fact that an unperfected interest in collateral was subordinate to a perfected interest, meaning Paccar’s security interest was subordinate to RBC’s, which held a General Security Agreement (GSA). Paccar misconstrued the Receiver’s role, suggesting the Receiver fell outside the “person who represents the creditors of the debtor” category and thus was subordinate to Paccar’s interest. The Receiver, appointed at the instance of RBC, stood in the debtor’s shoes, not the creditors’, and properly sought court directions regarding the trucks. The interpretation of section 20 in its entirety provided no basis to support Paccar’s claims about the effect of the section.

3. No.

Paccar argued that true leases are excluded from Part V because they do not secure payment of an obligation. The motion judge found that Part V did not apply to true leases in the way Paccar suggested, as it established a scheme of “self-help” rights and remedies which operate without the need for court intervention. Furthermore, the motion judge concluded that interpreting Section 57.1 to give Paccar priority over a perfected security interest would defeat the purpose of the PPSA amendments made in 2007, which aimed to modernize and simplify the regime of secured interests and priorities. These amendments displaced common law title and ownership in favor of the priority system under the PPSA, intending to reduce litigation over whether a lease fell under the PPSA. The modern PPSA places the dispute as one of priority to the collateral and not ownership in it, indicating that true leases, while excluded from Part V, are still within the scope of the Act for conflicts, perfection, and priority portions, fundamentally altering how leases of more than one year are treated under the law.



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 February 5, 2024.

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In Westover Estate v Jolicouer, the Court dismissed the appeal in an estate dispute over an inter vivos transfer by the deceased made decades earlier. The Court found no errors in the trial judge’s reasoning in dismissing the action. The Court also agreed with the order for costs made against the estate trustee/litigation administrator personally, and not out of the estate. The litigation administrator had been found to have improperly instigated and continued the litigation in which she had made unfounded allegations of fraud and conspiracy against her siblings. As the litigation was mainly for her benefit rather than for the estate, it was appropriate to order her to pay the costs personally.

In Bennington Financial Corp v Medcap Real Estate Holdings Inc, the Court dismissed an appeal from an order that refused to strike or dismiss a case for failure to immediately disclose a settlement between some of the parties to the litigation. In this case, the settlement in question did not significantly shift the litigation landscape by transforming an adversarial position of the parties into a cooperative one.

In Robertson v. Ontario, the Court upheld the certification judge’s decision to only certify this class action arising out of the spread of COVID-19 in long-term care homes in Ontario against the Minister of Long-Term Care. The certification judge had dismissed the claims against the other Ministries named as disclosing no reasonable cause of action, and the Court upheld that decision.

In Sanei v. Debarros, the Court upheld the dismissal of the appellant’s MVA action on the basis that it was statute-barred.

In Student A v Toronto French School, the Court quashed an appeal from an order refusing to stay an order pending an appeal in an education law case.

Children’s Aid Society of Toronto v R.I. regarding the enforcement of a child protection order where the issues on appeal were jurisdictional in nature.

B.F. v. A.N. is a very sad and extraordinary family law matter involving grandparental contact rights.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Bennington Financial Corp v Medcap Real Estate Holdings Inc, 2024 ONCA 90

Keywords: Civil Procedure, Partial Settlements, Immediate Disclosure Rule, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Moore v. Bertuzzi, 2012 ONSC 3248, CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Skymark Finance Corporation v. Ontario, 2023 ONCA 234, Crestwood Preparatory College Inc. v. Smith, 2022 ONCA 743

B.F. v. A.N., 2024 ONCA 94

Keywords:  Family Law, Parenting, Decision-Making, Grandparental Contact, Civil Procedure, Procedural and Natural Justice, Divorce Act, R.S.C. 1985, c. 3, Children’s Law Reform Act, R.S.O. 1990, c. C. 12, Child Youth and Family Services Act, 2017, S.O. 2017, c 14, Sched. 1, Giansante v. DiChiara, 2005 CanLII 26446, Van de Perre v. Edwards, 2001 SCC 60, Hickey v. Hickey, [1999] 2 S.C.R. 518

Children’s Aid Society of Toronto v. R.I., 2024 ONCA 93

Keywords: Family Law, Child Protection, Civil Procedure, Jurisdiction, Procedural and Natural Justice, Reasonable Apprehension of Bias, Orders, Enforcement, functus officio, Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1, Courts of Justice Act, RSO 1990, c C 43, ss 6(1)(b), 11(2), 38(2), 96, Family Law Rules, O Reg 114/99, s 1(2)(a)(ii)(8), 2(1)(5)(c), 26, 31(1), Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369

Robertson v. Ontario , 2024 ONCA 86

Keywords:  Torts, Negligence, Breach of Fiduciary Duty, Charter Claims, Crown Liability, COVID-19, Health Law, Statutory Interpretation, Civil Procedure, Class Proceedings, Certification, Reasonable Cause of Action, Legislation Act, 2006, S. O. 2006, c. 21, Sched. F., s 69, Class Proceedings Act, 1992, S. O. 1992, c. 6, s 5(1)(a), Long-Term Care Homes Act, 2007, S. O. 2007, c. 8, s 174, 181, Health Protection and Promotion Act, R.S.O. 1990, c. H. 7, Supporting Ontario’s Recovery Act, 2020, S. O. 2020, c. 26, Sched. 1, s 2(1),  Taylor v. Canada (Attorney General), 2012 ONCA 479, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Leroux v. Ontario, 2021 ONSC 2269, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, Leroux v. Ontario, 2023 ONCA 314, Odhavji Estate v. Woodhouse, 2003 SCC 69, Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, Eliopoulos (Litigation Trustees of) v. Ontario (Minister of Health and Long-term Care) (2006), 82 O. R. (3d) 321, Williams v. Ontario, 2009 ONCA 378, Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, Rizzo & Rizzo Shoes Ltd., (Re), [1998] 1 S.C.R. 27, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly, [1993] 1 S.C.R. 319, Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, Hinse v. Canada (Attorney General), 2015 SCC 35, Barker v. Barker, 2022 ONCA 567, Gosselin v. Québec, 2002 SCC 84, Abarquez v. Ontario, 2009 ONCA 374]

Sanei v. Debarros , 2024 ONCA 104

Keywords:  Torts, Negligence, MVA, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Reasonable Diligence, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., ss. 4, 5, Insurance Act, R.S.O. 1990, c. I.8., s. 267.5, Ontario Regulation 461/96, Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, s. 4.3, Everding v. Skrijel, 2010 ONCA 437, Fennell v. Deol, 2016 ONCA 249, Morrison v. Barzo, 2018 ONCA 979, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Dubreuil v. Lalande, 2014 ONSC 7433, Rockford v. Haque, 2019 ONSC 474, Yasmin v. Alexander, 2016 ONCA 165, Gyorffy v. Drury, 2015 ONCA 31, Halley v. TTC, 2018 ONSC 6093, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, K.L.B. v. British Columbia, 2003 SCC 51

Student A v. Toronto French School , 2024 ONCA 83

Keywords:  Education Law, Civil Procedure, Appeals, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Vexatious Litigation, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 7(3), 7(5), 19(1), 134(3), Criminal Code, R.S.C. 1985, c. C-46, Rules of Civil Procedure, r. 2.1.02, Weidenfeld v. Weidenfeld, 2022 ONCA 860, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Ncube v. Hassen, 2022 ONCA 840, Bunker v. Veall, 2023 ONCA 501, London Health Science Centre v. R.K. (1997), 152 D.L.R. (4th) 724 (Ont. S.C.), Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363, 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822

Westover Estate v. Jolicouer , 2024 ONCA 81

Keywords:  Wills and Estates, Inter Vivos Transfers, Civil Procedure, Limitation Periods, Ultimate Limitation Period, Procedural and Natural Justice, Reasonable Apprehension of Bias, Costs, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 15, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Sawdon Estate v. Sawdon, 2014 ONCA 101, Salter v. Salter Estate (2009), 50 E.T.R. (3d) 227 (Ont. S.C.), Johnson v. Johnson Estate, 2022 ONCA 682, McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), Neuberger Estate v. York, 2016 ONCA 303, White v. Gicas, 2014 ONCA 490, Brown v. Rigsby, 2016 ONCA 521, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, Unisys Canada Inc. v. York Three Associates Inc. (2001), 44 R.P.R. (3d) 138 (Ont. C.A.), Avdeeva v. Khousehabeh, 2023 ONSC 6402

Short Civil Decisions

Margel v. Dawson , 2024 ONCA 97

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Enforcement, Possession, Civil Procedure, Writs of Possession, Stay Pending Appeal

OZ Optics Ltd. v. XL Insurance Company PLC , 2024 ONCA 95

Keywords:  Contracts, Insurance, Lawyer and Client, Conflicts of Interest, Costs

Phong v. Nguyen , 2024 ONCA 91

Keywords:  Civil Procedure, Orders, Enforcement, Contempt, Costs

Sanei v. Debarros , 2024 ONCA 104

Keywords:  Torts, Negligence, MVA, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Reasonable Diligence, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., ss. 4, 5, Insurance Act, R.S.O. 1990, c. I.8., s. 267.5, Ontario Regulation 461/96, Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, s. 4.3, Everding v. Skrijel, 2010 ONCA 437, Fennell v. Deol, 2016 ONCA 249, Morrison v. Barzo, 2018 ONCA 979, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Dubreuil v. Lalande, 2014 ONSC 7433, Rockford v. Haque, 2019 ONSC 474, Yasmin v. Alexander, 2016 ONCA 165, Gyorffy v. Drury, 2015 ONCA 31, Halley v. TTC, 2018 ONSC 6093, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, K.L.B. v. British Columbia, 2003 SCC 51

Yurkovich v. Citibank Canada , 2024 ONCA 98

Keywords:  Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Amending Pleadings, Limitations Act, 2002, S.O. 2002, c. 24,  Courts of Justice Act, R.S.O. 1990, c. C.4, s.19(1)(b), Natario v. Rodriguez, 2015 ONCA 227, Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404, Boyer v. Callidus Capital Corporation, 2023 ONCA 233


CIVIL DECISIONS

Bennington Financial Corp v Medcap Real Estate Holdings Inc,, 2024 ONCA 90

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

F. S. Turton, for the appellant Medcap Real Estate Holdings Inc.

I. Lavrence, for the respondent Bennington Financial Corp. (Formerly Equirex Leasing Corp.)

D. N. Hawreliak, for the respondent Heffner Investments Limited

Keywords:  Civil Procedure, Partial Settlements, Immediate Disclosure Rule, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Moore v. Bertuzzi, 2012 ONSC 3248, CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Skymark Finance Corporation v. Ontario, 2023 ONCA 234, Crestwood Preparatory College Inc. v. Smith, 2022 ONCA 743

facts:

The appellant, Medcap Real Estate Holdings Inc. (“Medcap”) brought motions to stay or dismiss the actions against it by the respondents, Heffner Investments Limited (“Heffner”) and Bennington Financial Corp. (“Bennington”), for breach of the immediate disclosure rule, which were dismissed in May 2023. Bennington commenced a number of lawsuits against Medcap, Premier, and other related entities in 2017 after alleging defaults under leases and collateral mortgages. Heffner commenced its action against Medcap in 2019 following alleged defaults. In March 2020, to avoid a tax sale of the Wentworth property, Heffner, Bennington, and the third-party creditor jointly paid the accumulated tax arrears. After learning of a settlement arrangement, Medcap brought motions to stay or dismiss the actions against it by Heffner and Bennington for breach of the immediate disclosure rule. The motion judge found that the agreement between Heffner, Bennington, and a third-party creditor did not need to be immediately disclosed and did not significantly alter the adversarial relationship among the parties or the dynamics of the litigation.

issues: 

Did the motion judge err in finding that the agreement between the respondents did not need to be disclosed under the immediate disclosure rule?

holding: 

Appeal Dismissed

reasoning: 

No.

The immediate disclosure rule, established in Pettey v Avis Car Inc, mandates that agreements which significantly shift the litigation landscape must be disclosed. Disclosure is necessitated when an agreement transforms the adversarial position of the parties into a cooperative one, to maintain the fairness of the litigation process. The appellant argued for the disclosure of agreements that hindered settlement, but the motion judge found this would unjustly broaden the narrowly defined rule. The motion judge determined that the agreement in question did not entirely change the litigation landscape in a way that significantly altered the dynamics of the litigation. The shared strategy by the respondents was deemed an oral agreement that did not necessitate mutual support in proceedings, nor did it make the respondents adverse to one another or change the litigation’s dynamics between them and the appellant. The Court found no error in the motion judge’s application of the immediate disclosure rule based on these findings.


B.F. v. A.N., 2024 ONCA 94

[Simmons, Paciocco and Thorburn JJ.A.]

Counsel:

I.F., acting in person

A.N., acting in person, via video conference

J.L. Long, for the respondent Office of the Children’s Lawyer

No one appearing for the respondent B.F.

Keywords: Family Law, Parenting, Decision-Making, Grandparental Contact, Civil Procedure, Procedural and Natural Justice, Divorce Act, R.S.C. 1985, c. 3, Children’s Law Reform Act, R.S.O. 1990, c. C. 12, Child Youth and Family Services Act, 2017, S.O. 2017, c 14, Sched. 1, Giansante v. DiChiara, 2005 CanLII 26446, Van de Perre v. Edwards, 2001 SCC 60, Hickey v. Hickey, [1999] 2 S.C.R. 518

facts:

The trial judge made orders under s.16.1 of the Divorce Act, that a five-year-old child reside with her father at all times, and that the father have sole decision-making responsibility over all decisions relating to the child. The child’s mother initiated the divorce proceeding but did not participate in the trial because, prior to the trial, she was convicted of attempting to murder the child and her own mother, and was sentenced to life imprisonment. As part of the criminal proceeding, the child’s mother was also prohibited from having contact with the child, the child’s father, or any member of the family of the child’s father.

The live issues at trial related to contact between the maternal grandparents and the child. Both maternal grandparents brought applications under the Children’s Law Reform Act (the “CLRA”) in which they sought decision-making responsibility for, and primary residence of, the child. However, both abandoned those claims prior to trial. Accordingly, the only issues at trial were whether the maternal grandparents should have contact with the child and access to her medical records and whether any orders restraining their contact with the child should be made.

The trial judge ordered that the maternal grandfather, B.O.F., be permitted to have some supervised contact with the child. However, under s. 16.5 of the Divorce Act, and in keeping with the order made in the context of the criminal matter, the trial judge ordered that the maternal grandmother, I.F., have no direct or indirect contact with the child, with her father, or with any member of the father’s family. In addition, the trial judge ordered that neither maternal grandparent have access to any medical reports, information, or records in relation to the child and that neither maternal grandparent contact any of the medical or health professionals working with the child. Further, under s. 35 of the CLRA, the trial judge made an order permanently restraining the maternal grandmother from any direct or indirect contact or communication with the child’s father, the child, or any centres where the child receives treatment.

issues: 
  1. Did the trial judge err in applying the best interest of the child test as set out in s.16 of the Divorce Act?
  2. Were the appellant’s rights to a fair trial infringed?
holding: 

Appeal dismissed.

reasoning: 
  1. No.

The trial judge concluded that it was not in the child’s best interests that she have any contact with her maternal grandmother or that the maternal grandmother have access to the child’s medical records.

The trial judge conducted a full best interest analysis, taking account of many factors, including the following: the nature and strength of the child’s relationship with the appellant and the history of the child’s care; the child’s needs and, particularly in this case, her special needs; the appellant’s willingness and ability to meet the child’s needs; the appellant’s willingness and ability to cooperate with the child’s father and other caregivers; the child’s cultural, linguistic, and religious upbringing; and any criminal proceeding, order, condition or measure relevant to the safety of the child. Despite the appellant’s love for and early bond with the child and other good qualities the trial judge recognized, the trial judge concluded that many negative factors outweighed those positive factors and militated against the appellant having contact with the child or access to her medical records.

The trial judge concluded that the maternal grandmother did not understand the child’s medical needs and had no willingness or ability to meet the child’s needs and no willingness or ability to communicate or co-operate with the child’s father or her other caregivers. On the other hand, the trial judge was satisfied that the child’s father had demonstrated that he was committed to caring for the child “with as much care and thought as possible” and with the guidance and advice of the medical team looking after her.

The Court held that the trial judge correctly set out the law concerning grandparent contact with a child in divorced proceedings and conducted a thorough analysis of the relevant factors, including factors set out in s.16 of the Divorce Act. Contrary to the appellant’s submissions, the trial judge’s analysis was focused on the best interests of the child, not the best interests of the child’s father or mother. The trial judge provided compelling reasons, rooted in the appellant’s conduct, concerning why contact between the appellant and the child was not in the best interests of the child and why the appellant should not have access to the child’s medical records.

Given that the maternal grandparents had withdrawn their claims under the CLRA, it was not necessary that the trial judge assess whether the child’s father should have sole parenting time and decision-making responsibility for her. Nonetheless, as part of her grandparent-contact analysis the trial judge gave reasons that amply supported the child’s father having sole parenting time and decision-making responsibility for the child. The trial judge’s reasons made clear that she was aware of the history of family violence and criminal record of the child’s father, but was satisfied that he had taken responsibility for his past and was now acting in the child’s best interests. The Court held that these findings were open to the trial judge on the record.

While the trial judge agreed that it was important that the child continue to be exposed to her Serbian and Christian heritage, she concluded that contact with the appellant to try and meet that goal would jeopardize the child’s emotional and medical stability. Again, this was a finding that was open to the trial judge on the record.

The Court was satisfied that it was open to the trial judge on the evidence to prefer the evidence of the medical experts concerning the child’s condition and treatment needs over the evidence of the appellant. The Court saw no error in her findings or her conclusion that the appellant’s beliefs and conduct justified denying the appellant’s requests for contact with the child and access to her medical records.

  1. No.

The appellant submitted that her fair trial rights were infringed in two ways. First, because her exhibits on the Caselines court document filing system were tampered with and ultimately destroyed, such that she was prevented from properly presenting her case. Second, because she was barred by an order made in the criminal proceedings from speaking to the child’s mother or calling the child’s mother as a witness. The Court rejected the appellant’s arguments because there was no evidence to support her allegations.

The issue of the sentencing conditions imposed on the child’s mother was not raised by the maternal grandmother until her oral submissions on appeal. Such conditions were not properly the subject of this proceeding, as they were imposed by the sentencing judge as part of the criminal proceeding. The Court ultimately held that it had no basis for concluding that the appellant’s fair trial rights were infringed.


Children’s Aid Society of Toronto v. R.I., 2024 ONCA 93

[Nordheimer, Copeland and Dawe JJ.A.]

Counsel:

Withanage and D. Castillo, for the appellant

Senson, S. Wisnicki and S. MacKinnon, for J.R.

Tempesta and J. Hyndman, for N.M.

No one appearing for the respondents

Keywords: Family Law, Child Protection, Civil Procedure, Jurisdiction, Procedural and Natural Justice, Reasonable Apprehension of Bias, Orders, Enforcement, functus officio, Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1, Courts of Justice Act, RSO 1990, c C 43, ss 6(1)(b), 11(2), 38(2), 96, Family Law Rules, O Reg 114/99, s 1(2)(a)(ii)(8), 2(1)(5)(c), 26, 31(1), Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369

facts:

There were three children involved in this proceeding, removed from their home by the Children’s Aid Society of Toronto (the “Society”) pursuant to the Child, Youth and Family Services Act. A four-day trial was held before the Ontario Court of Justice in November 2022. On December 22, 2022, the OCJ judge determined that two of the children (N.M. and A.I.) should live with their parents and the third child (J.R.) should live with the maternal grandparents. Both placements were for a period of 12 months and were subject to supervision by the Society.

The OCJ judge also ordered specific terms of access. It was alleged that the terms of the order regarding access were breached in January 2023. This led to the Office of the Children’s Lawyer (the “OCL”) bringing a motion, on behalf of J.R., before the OCJ judge, for enforcement of the access provisions. On February 14, 2023, the OCJ judge adjourned the motion to permit the parents to remedy the breach. The matter came back before the OCJ judge on April 3, 2023. The breach had not been satisfactorily remedied. The OCJ judge chose to give the parents a further opportunity to remedy the breach by ordering access for the next three months on specific dates in April, May, and June.

The Society appealed the April order to the Superior Court of Justice. The appeal came on before the SCJ judge on June 12, 2023. Pending a decision on the appeal, the SCJ judge ordered that the April order would continue in force. The SCJ judge also ordered that access would take place on four dates in July, August, September, and October.

By order dated August 21, 2023, the SCJ judge dismissed the appeal. The Society appealed to the Court from the dismissal of its appeal by the SCJ judge.

The Society’s position throughout these proceedings had been that the OCJ judge did not have the jurisdiction to entertain the enforcement motion brought by the OCL on behalf of J.R. The Society contended that the OCJ judge misinterpreted her jurisdiction under ss. 11(2), 38(2), and 96 of the Courts of Justice Act (“CJA”), by hearing a motion pursuant to s. 1(8) of the Family Law Rules, absent a live application before the court.

The Society also asserted that it did not receive procedural fairness in both the February and April hearings before the OCJ judge because the OCJ judge did not permit it to make submissions regarding the court’s jurisdiction. Lastly, the Society contended that there was a reasonable apprehension of bias on behalf of the SCJ judge because of the manner in which he conducted the appeal hearing and because of certain laudatory comments he made about the judges of the OCJ who preside at the relevant court location.

issues: 
  1. Does this Court have jurisdiction under the CJA to hear the appeal?
  2. Did the SCJ judge demonstrate any bias in his conduct of the appeal hearing?
  3. Did the OCJ judge have jurisdiction to entertain an enforcement motion under rule 1(8)?
  4. Was the OCJ judge inconsistent in saying during the hearing that she would not find a breach of the order, and then in her endorsement finding a breach?
  5. Was the fact that the OCJ judge did not permit the Society to make its jurisdiction argument change the correctness of her conclusion that she was entitled to rely on 1(8)?
holding: 

Appeal dismissed.

reasoning: 
  1. Yes.

Counsel for N.M. submitted that the orders below were both interlocutory and, therefore, the Court did not have jurisdiction under s. 6(1)(b) of CJA to hear the appeal. Section 6(1)(b) provides that an appeal lies to the Court of Appeal from a final order of the Superior Court of Justice.

The Court did not agree. The only question on this appeal was whether the order of the SCJ judge that dismissed the appeal was a final order. That order finally disposed of the issue of the OCJ’s jurisdiction to make the order that it did. Therefore, the Court had jurisdiction to hear the appeal.

  1. No.

The Court did not see any basis for the Society’s submission that the SCJ judge demonstrated any bias in his conduct of the appeal hearing. The SCJ judge attempted to get the parties to resolve the issue, which was entirely reasonable given the nature of the proceedings. Subrule 2(5)(c) of the Family Law Rules requires the court to promote its primary objective of enabling it to deal with cases justly by “helping the parties to settle all or part of the case”.

The Society also contended that references by the SCJ judge to his “respect for” his “wonderful” colleagues at the OCJ were “over familiar” and therefore gave rise to a reasonable apprehension of bias. The Court did not see a basis for this submission either. The SCJ judge specifically says that “I don’t know all of them [the judges at this particular courthouse] and I don’t know the judge who, by the way, this judge”.

The Court did accept that it would have been preferable if the SCJ judge had not offered his views on the quality of the judges of the OCJ in this fashion. However, that did not warrant the suggestion that there was an appearance of bias on behalf of the SCJ judge. The conduct of the SCJ judge did not approach that level.

  1. Yes.

The Society contended that there must be an existing proceeding, or ongoing case, for a judge to be able to resort to r. 1(8). It said that since the OCJ judge made a final order in December 2022, after the completion of the trial, there was no ongoing case. The OCJ judge was, the Society contended, in effect, functus officio after that point.

The Court did not accept the Society’s submission. First, the case was not over or spent as the Society contended. The December order was final. But the disputed motion was not about changing a final order, but rather about enforcing it. There was an obligation under the order for various parties to do particular things. The OCJ judge, in her role as the trial judge, was not functus, as that term was properly understood. The OCJ judge, like any trial judge, retained jurisdiction to ensure that the order made was followed.

Further, the Society’s position did not accord with the wording of the Family Law Rules themselves. The Society submitted that there was no longer a case when the OCJ judge made the order in December 2022 after trial. Yet the Family Law Rules define what is meant when the word “case” is used in those Rules. Rule 2(1) defines “case”. It reads:

“[C]ase” means an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcements and appeals; [Emphasis added.]

The Family Law Rules therefore expressly contemplate that enforcement is part of the case. There was no basis for drawing a distinction between orders, whether made during a proceeding or at the end of the proceeding, in terms of the enforcement process.

  1. No.

The Society unfairly characterized the OCJ judge’s language during the hearing. What the OCJ judge said was that she was not prepared, at that very moment, to find a breach of the order. That provisional position did not preclude the OCJ judge from ultimately concluding that there had been a breach.

  1. No.

At the outset of the Society’s oral submissions, the OCJ judge advised counsel that she had read the Society’s written materials and considered the jurisdiction issue. She directed that if the Society’s counsel wished to address the jurisdiction issue, she should address a particular authority which, in the OCJ judge’s view, gave the court jurisdiction to make enforcement orders under r. 1(8). Rather than address the jurisdiction issue at the outset of her submissions, the Society’s counsel addressed the merits of the access issue before the court. After all parties had made submissions on the merits, counsel for the Society sought to make oral submissions on the jurisdictional issue. As time was running short, the OCJ judge, at that point, did not permit the Society’s counsel to make oral submissions on the jurisdictional issue.

It would have been preferable for the OCJ judge to hear the Society’s oral submissions on the jurisdiction issue before deciding it. That said, the fact that the OCJ judge did not do so did not change the correctness of her conclusion that she was entitled to rely on r. 1(8) to make the order that she did.


Robertson v. Ontario, 2024 ONCA 86

[Brown, George and Monahan JJ.A.]

Counsel:

P. Rochon, G. Nayerahmadi, A. K. Thorsen and J. Xhaferraj, for the appellants/respondents by way of cross-appeal

Wayland, J. Boyczuk and K. Leung, for the respondent/appellant by way of cross-appeal

Keywords: Torts, Negligence, Breach of Fiduciary Duty, Charter Claims, Crown Liability, COVID-19, Health Law, Statutory Interpretation, Civil Procedure, Class Proceedings, Certification, Reasonable Cause of Action, Legislation Act, 2006, S. O. 2006, c. 21, Sched. F., s 69, Class Proceedings Act, 1992, S. O. 1992, c. 6, s 5(1)(a), Long-Term Care Homes Act, 2007, S. O. 2007, c. 8, s 174, 181, Health Protection and Promotion Act, R.S.O. 1990, c. H. 7, Supporting Ontario’s Recovery Act, 2020, S. O. 2020, c. 26, Sched. 1, s 2(1),  Taylor v. Canada (Attorney General), 2012 ONCA 479, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Leroux v. Ontario, 2021 ONSC 2269, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, Leroux v. Ontario, 2023 ONCA 314, Odhavji Estate v. Woodhouse, 2003 SCC 69, Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, Eliopoulos (Litigation Trustees of) v. Ontario (Minister of Health and Long-term Care) (2006), 82 O. R. (3d) 321, Williams v. Ontario, 2009 ONCA 378, Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, Rizzo & Rizzo Shoes Ltd., (Re), [1998] 1 S.C.R. 27, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly, [1993] 1 S.C.R. 319, Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, Hinse v. Canada (Attorney General), 2015 SCC 35, Barker v. Barker, 2022 ONCA 567, Gosselin v. Québec, 2002 SCC 84, Abarquez v. Ontario, 2009 ONCA 374

facts:

The appellants sought to certify a class proceeding against the provincial government arising from its response to the risks posed by COVID-19 to long-term care (“LTC”) home residents in Ontario. The proposed proceeding asserted three separate causes of action against the respondent (collectively, the “Claims”):

  • a claim in negligence arising from the acts or omissions of the Minister of Long-Term Care (the “MLTC”), the Minister of Health (the “MOH”), and the Chief Medical Officer of Health (the “CMOH”) (collectively, the “Crown Officers”);
  • a claim for breach of fiduciary duty arising from the acts or omissions of the Crown Officers; and
  • a claim for breach of the appellants’ rights under s. 7 of the Charter, arising from the acts or omissions of the Crown Officers.

On December 20, 2022, the motion judge certified the appellants’ class action against Ontario arising from the alleged negligence of the MLTC in responding to the risk posed by COVID-19 to residents of Ontario’s LTC homes. The motion judge struck all the appellants’ other proposed claims (the “Struck Claims”) on the basis that they were certain to fail. The appellants appealed the motion judge’s decision not to certify the Struck Claims, while the respondent cross-appealed the certification of the claim arising from the alleged negligence of the MLTC.

issues: 
  1. Did the motion judge err in striking the negligence claim against the MOH and the CMOH?
  2. Did the motion judge err in finding that the negligence claim against the MLTC was not certain to fail, and therefore satisfied the “cause of action” requirement in s. 5(1)(a) of the Class Proceedings Act, 1992?
  3. Did the motion judge err in striking the breach of fiduciary duty claim?
  4. Did the motion judge err in striking the Charter 7 claim?
holding: 

Appeal and cross-appeal dismissed.

reasoning: 

Reasoning:

  1. No

Governing Principles

The focus of the motion judge’s analysis was on whether the Claims satisfied the “cause of action” requirement in s. 5(1)(a) of the Class Proceedings Act, 1992 (the “CPA”).

A public authority is liable in negligence only where the authority owes a “duty of care” to the person harmed: Odhavji at paras 22-23. If the negligence claim against the public authority does not fall within a pre-existing category of cases in which a duty of care has previously been recognized, the plaintiff must satisfy the following three requirements: (i) the harm suffered by the plaintiff must have been reasonably foreseeable; (ii) there must have been sufficient “proximity” between the plaintiff and the public authority such that it would be “fair and just” to impose a duty of care on the public authority ; and (iii) there must be no residual policy reasons for declining to impose such a duty: Aylmer Meat Packers Inc. at para 22.

A relationship of “proximity” can be established either through “specific interactions” between the government and the claimant, or where the relevant legislation gives rise to a duty of care expressly or by necessary implication: Imperial Tobacco Ltd. at paras. 43-46. However, where the statutory scheme grants discretionary power to a public authority to act in the “public interest”, this will generally preclude the existence of a private law duty of care in relation to a particular group of affected individuals. This is because such powers are to be exercised in the general public interest and are not aimed at the protection of the private interests of specific individuals: Eliopoulos (Litigation Trustees of) at para 17 (discretionary powers conferred on the MOH under the Health Protection and Promotion Act (“HPPA”) are not capable of creating a private law duty of care.); Williams at para 25 (directives issued by the CMOH to combat SARS were aimed at the interests of the public at large and therefore could not give rise to a private law duty of care).

No Duty of Care Arising from “Specific Interactions”

The appellants argued that the motion judge erred in finding that the Claim failed to adequately plead any “specific interactions” between the Crown Officers and the residents of the LTC homes that could give rise to a duty of care. The appellants relied, in particular, on Directive #3 for Long-Term Care Homes under the Long-Term Care Homes Act, 2007, first issued on March 22, 2020 by the CMOH pursuant to s. 77.7 of the HPPA (“Directive #3”). This Directive set out a number of precautions and procedures that LTC homes were required to implement immediately to limit the spread of COVID-19, including tightened procedures to be followed in the admission of new residents to LTC homes.

The difficulty with the appellants’ negligence claim was not that it failed to identify specific government officers and employees whose acts or omissions might have engaged the vicarious liability of Ontario. Rather, as the motion judge pointed out, the shortcoming in the appellants’ pleading was that it failed to identify any “specific interactions” between the Crown Officers (or, indeed, any other Crown employees), which could have given rise to a duty of care in favour of the residents of the LTC homes.

For example, Directive #3, upon which the appellants particularly relied on, was directed to the independent operators of the LTC homes, rather than the LTC residents themselves. Moreover, Directive #3 was one of dozens of directives issued by the CMOH during the course of the COVID-19 pandemic, pursuant to the CMOH’s general authority under the HPPA, to take action in the public interest where there was “an immediate risk to the health of persons anywhere in Ontario”. Those directives mandated necessary precautions and procedures to limit the spread of COVD-19 amongst the entire Ontario population.

Far from representing a “radical and improper departure from appellate jurisprudence”, the motion judge correctly applied the governing jurisprudence, particularly Eliopoulos and Williams. As noted above, these cases clearly established that directives issued by the CMOH to combat a threat to public health in Ontario are issued pursuant to the CMOH’s duty to act in the general public interest and for that reason cannot give rise to a private law duty of care. In fact, the circumstances in the present case were directly analogous to those in Eliopoulos, where a government plan to respond to West Nile Virus was directed to local boards of health and therefore could not give rise to a duty of care in favour of persons infected with the virus: Eliopoulos, at para. 17. Likewise, in this case, Directive #3 was directed to the operators of LTC homes and therefore could not amount to a “specific interaction” with the residents of the homes.

Neither the CMOH Nor the MOH Owe a Duty of Care to LTC Residents Arising from Statute

Binding authority from the Court clearly establishes that the exercise of statutory powers by the MOH and the CMOH under the HPPA cannot give rise to a private law duty of care because these powers are to be exercised in the general public interest. The motion judge relied upon this binding authority and found that there was no statutory basis to have found a negligence claim against the CMOH and the MOH.

The Court noted that while it was true that the preamble to the Long-Term Care Homes Act, 2007 (“LTCHA”) provided that the “government” recognized the responsibility to take action on behalf of the residents of LTC homes, the LTCHA itself had made no mention whatsoever of either the CMOH or the MOH.

The Court ultimately found that the motion judge did not err in finding that there can be no private law duty of care claim against either the CMOH or the MOH on the basis of the statutory language of the LTCHA. Because he had already found that no such private law duty of care could arise on the basis of “specific interactions” between these officers and the residents of the LTC homes, the motion judge correctly struck the negligence claim against the CMOH and the MOH.

  1. No.

The preamble to the LTCHA can be used to interpret the MLTC’s powers under the Act

The motion judge did not err by using the LTCHA’s preamble to interpret the MLTC’s powers. While it is true that the Supreme Court in the Patriation Reference stated that a preamble has “no enacting force”, the Court went on (in the same sentence) to add that “[a preamble] can be called in aid to illuminate provisions of the statute in which it appears.” Courts have on more than one occasion utilized a preamble in this manner. Moreover, s. 69 of the Legislation Act, provides that a preamble may be used to determine an Act’s purpose.

In the view of the Court, the motion judge correctly recited and applied the appropriate statutory interpretation principles regarding the MLTC’s powers pursuant to the LTCHA.

It was not plain and obvious that the “public interest” wording in s. 174.1 of the LTCHA precluded a finding of a duty of care on the part of the MLTC

At this stage, the relevant question was whether the appellants were “certain to fail” in making an argument that the MLTC’s power to issue directives under s. 174.1 must be in “the public interest”.

As the motion judge observed, s. 174.1(2)(c) defined “public interest” as including “the quality of care and treatment of residents within long-term care homes generally”. This was reinforced by the “fundamental principle” set out in s. 1 of the LTCHA, which stated that anything required or permitted to be done under the Act should be interpreted so that residents of long-term care homes may live with “dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met.”

Moreover, it was at least arguable that the statutory mandate of the MLTC was distinguishable from that of the MOH and the CMOH. In Eliopoulos and Williams, the Court had emphasized that the statutory mandate of the MOH and the CMOH was to act in the general public interest and was not aimed at or geared to the protection of the interests of specific individuals: Eliopoulos at para. 17; Williams at para. 25. In contrast, the preamble to the LTCHA and the entire statute was arguably aimed at the protection of an identifiable class of persons, namely, the residents of LTC homes.

The Court noted that it would have been inappropriate at this stage to definitively conclude that the appellants’ argument was certain to fail. This was particularly the case given that the government only recently created the office of MLTC through certain 2019 Orders in Council. Accordingly, there was yet to be any authoritative judicial pronouncement on whether this recent bifurcation of ministerial responsibilities, and the appointment of a minister whose exclusive focus was LTC homes and their residents, altered in any way the duty of care analysis applicable to the MOH and the CMOH.

The motion judge correctly found that the appellants’ claim that the MLTC owed a duty of care to LTC home residents when exercising statutory powers was not certain to fail, notwithstanding the MLTC’s responsibility to act in the general public interest when issuing directives under s. 174.1 of the LTCHA.

The negligence claim against the MLTC was not barred by Crown immunity for policy decisions, nor by the statutory immunity in s. 181 of the LTCHA for decisions taken in good faith

While reckless conduct, in itself, fell short of “bad faith”, reckless conduct can provide circumstantial evidence from which the absence of good faith can be deduced and bad faith inferred: Hinse at para. 53.

The Court agreed with the motion judge’s finding that the appellants had sufficiently pleaded the absence of good faith, such that the claim should not be struck at the pleading stage on account of the Crown’s immunity for policy decisions or on the basis of the statutory immunity in s. 181 of the LTCHA.

In conclusion on this issue, the motion judge correctly applied the relevant legal principles in his analysis of this cause of action. Specifically, the Court saw no reversible error in the motion judge’s finding that the negligence claim against the MLTC was at least arguable, and therefore should not have been struck on the basis of the “cause of action” requirement in s. 5(1)(a) of the CPA. The Court dismissed the respondents’ cross-appeal of this aspect of the motion judge’s order.

  1. No.

As the motion judge appropriately noted, recognition of a fiduciary duty in this case was plainly inconsistent with the wording of s. 174.1 of the LTCHA, which expressly authorized the MLTC to consider, in addition to the interests of LTC residents, factors that included “the availability of financial resources for the management and operation of the long-term care home system…” As the Supreme Court in Elder Advocates made plain (at paras. 43-45), a statutory discretion to spread limited resources among competing groups is inherently inconsistent with the recognition of a fiduciary duty, which requires utmost loyalty to the beneficiaries’ interest above all others. Therefore, the motion judge had correctly struck the fiduciary duty claim.

  1. No.

The motion judge identified the appellants’ core allegation as being that the respondent failed to take potentially life-saving action in a timely manner. Relying on Leroux 2021, the motion judge found that mere inaction or delay does not engage s. 7 of the Charter.

The Court found no reversible error in the motion judge’s finding that the appellants’ “core allegation” was that the Crown Officers failed to respond to the threat of COVID-19 in LTC homes in a timely manner. While it was true that the Claims impugned the manner in which Ontario responded to COVID-19 in the LTC homes, the repeated complaint was that the measures adopted were delayed, vague and inadequate. In other words, as described by the motion judge, the appellants’ claim was that the government response was “too little, too late.”

Section 7 of the Charter does not create a positive obligation on the state to take measures to ensure that each person enjoys life, liberty, or security of the person: Gosselin at paras. 81-82. The Court noted that the s. 7 Charter claim should be struck since the appellants had failed to plead that any deprivation they may have experienced was contrary to the principles of fundamental justice. The Court further noted that the appellants’ statement of claim in this case pleaded that the respondent’s response to COVID-19 in LTC homes was “arbitrary”, and an arbitrary law may violate principles of fundamental justice. However, “arbitrariness” in the context of s. 7 has a narrow and specific meaning, namely, that the impugned measure bears no relation to the objective that lies behind the enactment: Abarquez v. Ontario, 2009 ONCA 374, 95 O.R. (3d) 414, at para. 49.

To properly plead arbitrariness sufficiently to ground a s. 7 claim, the appellants would have to have pleaded that the impugned measures bore no relationship with the goal of suppressing COVID-19. But as noted above, their core allegation was that the measures implemented in LTC homes had not gone far enough or should have been adopted earlier. There was no allegation that the measures adopted were wholly unrelated to the goal of suppressing COVID-19.


Sanei v. Debarros, 2024 ONCA 104

[Hourigan, Roberts and Coroza JJ.A.]

Counsel:

P. Forget and S. Hewagama, for the appellant

Ong, J. Lea and J. Conway, for the respondent

Keywords: Torts, Negligence, MVA, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Reasonable Diligence, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., ss. 4, 5, Insurance Act, R.S.O. 1990, c. I.8., s. 267.5, Ontario Regulation 461/96Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, s. 4.3, Everding v. Skrijel, 2010 ONCA 437, Fennell v. Deol, 2016 ONCA 249, Morrison v. Barzo, 2018 ONCA 979, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Dubreuil v. Lalande, 2014 ONSC 7433, Rockford v. Haque, 2019 ONSC 474, Yasmin v. Alexander, 2016 ONCA 165, Gyorffy v. Drury, 2015 ONCA 31, Halley v. TTC, 2018 ONSC 6093, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, K.L.B. v. British Columbia, 2003 SCC 51

facts:

On February 2, 2013, the appellant was injured in a motor vehicle accident. On March 2, 2016, the appellant commenced an action against the respondent for several hundred thousand dollars in damages for the “permanent and serious injuries” that he alleged were caused by the accident and that constituted a serious and permanent impairment of his physical and psychological functions. The appellant also pleaded that he did not discover “until recently” that his injuries would meet the threshold set out in s. 267.5 of the Insurance Act, R.S.O. 1990, c. I.8.

The respondent denied responsibility for the accident and for the appellant’s injuries and brought a motion for summary judgment to dismiss the appellant’s action as statute-barred.

The motion judge allowed the respondent’s motion, finding that the appellant’s action was statute-barred. The appellant appealed the dismissal of his action.

issues: 

Did the motion judge err by failing to make a specific finding as to when the appellant discovered, or reasonably ought to have discovered, his injuries and, in consequence, when the limitation period started to run?

holding: 

Appeal dismissed.

reasoning: 
  1. No

The limitation period in an action for personal injuries arising out of a motor vehicle accident starts to run when the claimant knows, or reasonably ought to have known, that their injuries meet the statutory deductible and threshold of serious and permanent impairment under s. 267.5 of the Insurance Act.  To overcome the presumption in s. 5(2) of the Limitations Act, 2002, a person with a claim need only prove that they did not know of their permanent and serious impairment on the date of the accident, not that they exercised due diligence. Where the presumption is rebutted, the limitation period begins to run on the earlier of the two dates contemplated in ss. 5(1)(a) and (b). Unlike ss. 5(2), s. 5(1)(b) imports the “reasonable person” standard and requires consideration of whether the claimant exercised due diligence.

In considering reasonable discoverability of a claim, “[t]he court must be satisfied that a reasonable person in the plaintiff’s circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined.” Moreover, it is insufficient for the court to say that the claim “was discoverable ‘before the expiry of the limitation period’, without explaining why.”

A new medical imaging result or a specific diagnosis can constitute evidence necessary to support a claim for serious and permanent impairment, especially where the impairment worsens over time or where the initial prognosis was that symptoms would improve. However, when there is no evidence of a change in the plaintiff’s condition, delayed discovery of a permanent impairment may instead be because they failed to make reasonable inquiries.

The motion judge failed to make a specific finding of the discovery date, alluding only to a general time period, namely, “within the two-year time period”. However, the error did not amount to a reversible error that tainted the entirety of the judgment.

First, although he did not mention a specific date for the commencement of the limitation period, the motion judge referenced the correct analysis and correctly instructed himself that discoverability in this context referred to when the appellant first knew or ought to have known that a claim would be an appropriate remedy for the loss. He tethered his conclusion to the timing of the evidence of the appellant’s serious and permanent impairment.

The motion judge detailed in his reasons the uncontroverted evidence that recounted the consistent history, severity and permanence of the appellant’s injuries following the accident. The evidence set out physical injuries that the appellant said emerged almost immediately following the accident and persisted to the present day.

The Court disagreed with the appellant’s contention that the limitation period did not start to run as he did not have medical opinions in the form required under s. 4.3 of O. Reg. 461/96. The evidentiary proof set out in s. 4.3 that a plaintiff is required to produce on a threshold motion or at trial is different from the evidence sufficient to trigger a plaintiff’s discovery of a cause of action and the commencement of the limitation period for bringing an action. When an action progresses, a total absence of medical evidence and a lack of intention to adduce such evidence can be a basis for summary dismissal. A physician’s evidence that meets the strict and elevated requirements in s. 4.3 is not necessary for a plaintiff to have reasonable knowledge of a substantial chance of success. Though the specific forms of evidence the appellant had to support his claim continued to develop, the record indicated that he had equivalent knowledge supporting the same substantial chance of success more than two years earlier. This body of evidence was sufficient to trigger the commencement of the limitation period.

Finally, that the motion judge in his reasons sometimes interchanged “serious and permanent injuries” with “serious and permanent impairment” was of no moment and reflected the wording used in the appellant’s statement of claim. The motion judge’s reasons demonstrated that he was alert to the alleged nature and extent of the appellant’s injuries and to the correct standard under the Insurance Act of “permanent serious impairment”.


Student A v. Toronto French School, 2024 ONCA 83

[Lauwers, van Rensburg and Thorburn JJ.A.]

Counsel:

D. Bhatia, for the moving party (M54678)/responding party (M54771)

R. Bucholz and E. Wall, for the responding parties (M54678)/moving parties (M54771), Toronto French School, N.G., J-B.U., J.R. and A.L.

S. Hargreaves, for Student C by her Litigation Guardian and Student D by his Litigation Guardian

Keywords: Education Law, Civil Procedure, Appeals, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Vexatious Litigation, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 7(3), 7(5), 19(1), 134(3), Criminal Code, R.S.C. 1985, c. C-46, Rules of Civil Procedure, r. 2.1.02, Weidenfeld v. Weidenfeld, 2022 ONCA 860, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Ncube v. Hassen, 2022 ONCA 840, Bunker v. Veall, 2023 ONCA 501, London Health Science Centre v. R.K. (1997), 152 D.L.R. (4th) 724 (Ont. S.C.), Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363, 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822

facts:

The appellant, Student A, sought a review of the order of Sossin J.A., a single judge of the Court, refusing to stay the order of Dineen J., case management judge, pending appeal, and refusing to stay all other proceedings before the case management judge. The respondents, together, the “TFS Respondents”, brought their own motion to quash the appeal on the basis that the Court had no jurisdiction to hear the appeal.

The appellant issued a statement of claim for damages and other relief resulting from his expulsion from the Toronto French School. At a case conference, counsel for the appellant brought a motion seeking a declaration that certain of the TFS Respondents and their counsel were guilty of various crimes under the Criminal Code, specifically perjury and public mischief.

The case management judge invited the appellant to make submissions as to why his motion should not be dismissed. The appellant failed to do so. Instead, he submitted “written objections” which stated that “[t]hese are not the written submissions by Student A as to why the motion should not be dismissed pursuant to Rule 2.1.01”, alleged bias and prejudice on the part of the case management judge, and asked that the matters be transferred to another judge. Counsel for the TFS Respondents took the position that the case management judge should dismiss the appellant’s Criminal Code motion.

issues: 
  1. Did the Court’s motion judge err in refusing a stay of proceeding pending appeal?
  2. Should the Court quash the appeal?
holding: 

Motion granted.

reasoning: 
  1. No

The Court’s motion judge correctly identified the applicable principles, applied them, and reached a reasonable conclusion. The motion judge noted that, while he could not make a final determination on the jurisdiction of the Court in the underlying appeal, it was likely that the Court did not have jurisdiction to hear this appeal because the case management judge’s order was interlocutory, not final. The Court held that this finding was properly taken into account in deciding whether the appeal raised a serious issue.

The motion judge was correct that the case management judge did not have jurisdiction to grant the order requested in the Criminal Code motion. Civil courts have no authority to make binding declarations of illegality or criminal guilt, and there is no provision in the Criminal Code or the Courts of Justice Act that empowers them to do so on a civil motion.

A finding of criminal guilt in this context would be based only on the evidentiary record put forward by the parties, rather than based on more complete evidence that may be available to a prosecutor. The Court concluded that the availability of a more appropriate procedure, in this case before a justice of the peace, was an accepted reason to deny declaratory relief. Accordingly, the motion judge did not err in considering the case management judge’s lack of jurisdiction in his determination that there was no serious issue to be tried on the appeal.

  1. Yes

The Court noted that where the action as a whole has not been resolved and the order resolves one issue in the litigation but not all, the appeal should be brought before the Divisional Court not the Court of Appeal. The case management judge’s order did not finally resolve all of the issues in the litigation and the action, in some form, will proceed. The order was therefore entirely procedural and interlocutory. Accordingly, the Court had no jurisdiction to hear the appeal.

As noted by the case management judge, the appellant was not prevented from laying an information and thereby causing a criminal investigation. However, criminal allegations cannot be adjudicated in a civil court, where the only evidence available is of the parties (whereas in criminal cases, the prosecutor may have more evidence available to them). The Court saw no error in the case management judge’s conclusion that the proper route for bringing any complaints under the Criminal Code was before a justice of the peace, and not in civil proceedings.


SHORT CIVIL DECISIONS

Margel v. Dawson, 2024 ONCA 97

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

Dawson, acting in person, but not appearing

Bourassa and A. (Qurrat-ul-ain) Tayyab, for the respondents

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Enforcement, Possession, Civil Procedure, Writs of Possession, Stay Pending Appeal

OZ Optics Ltd. v. XL Insurance Company PLC, 2024 ONCA 95

[Lauwers, van Rensburg and Thorburn JJ.A.]

Counsel:

Lesage, for the appellants

Kestenberg, for the respondents

Keywords: Contracts, Insurance, Lawyer and Client, Conflicts of Interest, Costs

Phong v. Nguyen, 2024 ONCA 91

[Lauwers, van Rensburg and Thorburn JJ.A.]

Counsel:

M.H. Tweyman, for the appellant

Kim, for the respondent

Keywords: Civil Procedure, Orders, Enforcement, Contempt, Costs

Sun v. Cheng, 2024 ONCA 102

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

Jia, for the appellant

Gfeller and G. Tighe, for the respondents H.W., a.k.a. J.W., and Peaceland Realty Group Inc., a.k.a. Royal LePage Peaceland Realty

Juda and E. Farrugia, for the respondents W.C., a.k.a. R.C., and Homelife Best Choice Realty Inc.

Keywords: Contracts, Real Property, Agency, Breach of Fiduciary Duty, Torts, Negligence, Limitation Periods, Discoverability, Rules of Civil Procedure, r.20,  Limitations Act, 2002, S.O. 2002, c. 24, Sched. B

Yurkovich v. Citibank Canada, 2024 ONCA 98

[Gillese and Copeland JJ.A. and Wilton-Siegel J. (ad hoc)]

Counsel:

Doris and S. Sherrington, for the respondents/moving parties

Harrison and P. Saini, for the appellants/responding parties

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Amending Pleadings, Limitations Act, 2002, S.O. 2002, c. 24,  Courts of Justice Act, R.S.O. 1990, c. C.4, s.19(1)(b), Natario v. Rodriguez, 2015 ONCA 227, Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404,  Boyer v. Callidus Capital Corporation, 2023 ONCA 233


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.