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 June 7, 2021.

Continue Reading

In O’Reilly v. ClearMRI Solutions Ltd, the Court set aside the motion judge’s determination that that the two appellant corporations were common employers, and set aside the judgment against one of them. The motion judge had not properly applied the law relating to the separate corporate personalities. Just because corporations are related or commonly controlled, that does not automatically make both of them liable for the obligations of the other. The Court upheld the conditional liability of a director for unpaid wages under s. 131 of the Ontario Business Corporations Act.

In Charlesfort Development Limited v Ottawa (City), the Court concluded that the City’s duty to process a rezoning application did not give rise to a duty of care on the part of the City towards the developer to notify it of all information within the City’s knowledge that might affect the viability or profitability of a proposed development.

In Eynon v. Simplicity Air Ltd, the Court upheld a jury’s award of punitive damages against an employer for the improper conduct of its employees in a workplace health and safety case.

In Wiseau Studio, LLC v. Harper,, on a motion to review, the Court, with very brief reasons, set aside Justice Thorburn’s ground-breaking order for security for judgment ordered against the appellants. The order was based on the appellants’ concession that their appeal was frivolous. However, now that they had articulated their appeal and perfected it, they were permitted to resile from their concession. The order for security for costs of the trial and appeal was left undisturbed.

Other topics covered this week included child protection, stay pending appeal in a custody and access case, and a solicitor’s liability for a false statement on the registration of a document on title.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Charlesfort Development Limited v. Ottawa (City), 2021 ONCA 410

Keywords: Torts, Negligent Misrepresentation, Duty of Care, Proximity, Reasonable Foreseeability, Reasonable Reliance, Pure Economic Loss, Anns v. London Borough of Merton, [1977] 2 All E.R. 492 (H.L. (Eng.)); Cooper v. Hobart, 2001 SCC 79, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, 16688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42

Children’s Aid Society of Algoma v. G.C, 2021 ONCA 400

Keywords: Family Law, Child Protection, Civil Procedure, Summary Judgment, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1., ss 74(2)(d), Family Law Rules, O. Reg. 114/99, Rules 16(6.1) and (6.2), Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316

O’Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385

Keywords: Contracts, Employment, Common Employer Doctrine, Corporations, Doctrine of Separate Legal Pesonality, Unpaid Wages, Directors’ Liability, Business Corporations Act, R.S.O. 1990, c. B.16, s. 131, Yaiguaje v. Chevron Corporation, 2018 ONCA 472, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Sinclair v. Dover Engineering Services Ltd., 49 D.L.R. (4th) 297 (B.C.C.A.), Rowland v. VDC Manufacturing Inc., 2017 ONSC 3351, Downtown Eatery (1993) Ltd. v. Her Majesty the Queen in Right of Ontario (2001), 54 O.R. (3d) 161 (C.A.), Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Housen v. Nikolaisen, 2002 SCC 33

Eynon v. Simplicity Air Ltd., 2021 ONCA 409

Keywords: Torts, Negligence, Contributory Negligence, Personal Injury, Labour and Employment, Workplace Health and Safety, Damages, Punitive Damages, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A., s. 22.1, s.155.1, s.158(1), Whiten v. Pilot Insurance Co., 2002 SCC 18, Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 61 O.R. (3d) 481, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, Rutman v. Rabinowitz, 2018 ONCA 80

K.K. v. M.M., 2021 ONCA 407

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Stay Pending Appeal, Security for Costs, Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30, Rules of Civil Procedure, Rule 61.06(1)(a), Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764

Wiseau Studio, LLC v. Harper, 2021 ONCA 396

Keywords: Civil Procedure, Appeals, Security for Judgement, Security for Costs, Orders, Enforcement

Bank of Montreal v. Cadogan, 2021 ONCA 405

Keywords: Contracts, Professional Liability, Lawyers, Real Property, Parcel Register, Registration of Documents, Law Statements, Civil Procedure, Summary Judgment, Adjournments, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), Toronto-Dominion Bank v. Hylton, 2010 ONCA 752

Short Civil Decisions

Manicom v. Manicom, 2021 ONCA 399

Keywords: Family Law, Corporations, Contracts, Share Purchase Agreements, Restrictive Covenants, Remedies, Specific Performance

Luangchaleun (Re), 2021 ONCA 398

Keywords: Reintegration into Community, Conditional Discharge, Absolute Discharge, Substance Abuse, section 672.78(1)(a) of the Criminal Code of Canada, R. v. Owen, [2003] 1 S.C.R. 779

Dhatt v. Beer, 2021 ONCA 412

Keywords: Contracts, Agreements of Purchase and Sale of Land, Civil Procedure, Costs

De Palma v. Canadian Federation of Independent Business, 2021 ONCA 406

Keywords: Contracts, Employment, Constructive Dismissal, Intentional Infliction of Mental Suffering, Long Term Disability, Accommodation, Civil Procedure, Summary Judgment, Adjournments, Ontario Human Rights Code, R.S.O. 1990, c. H.19, Rules of Civil Procedure, Rules 20.01(3), 20.04(2.1)


CIVIL DECISIONS

Charlesfort Development Limited v. Ottawa (City),, 2021 ONCA 410

[Harvison Young J.A.]

Counsel:

A. Tomkins and A. Tardif, for the respondent

T.J. Hill and M. van Zandvoort, for the respondent

Keywords: Torts, Negligent Misrepresentation, Duty of Care, Proximity, Reasonable Foreseeability, Reasonable Reliance, Pure Economic Loss, Anns v. London Borough of Merton, [1977] 2 All E.R. 492 (H.L. (Eng.)); Cooper v. Hobart, 2001 SCC 79, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, 16688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42

facts:

The respondent purchased a property with intent to redevelop it into a 15-storey condominium tower with a two-story underground parking garage. The purchase was conditional on the approval of a rezoning application from a general commercial designation to a residential designation. This rezoning would change the setback below ground level to allow for a proposed underground parking site to extend to the property lines with no setback. While deliberating the zoning application, a City engineer noted a four foot water main just north of the property – this information was not forwarded to the Infrastructure Approvals division or to the respondent.

The rezoning application was approved in 2005 and the Ontario Municipal Board approved a one-meter setback above-grade and no provision for a below-grade setback. The respondent then waived the conditions relating to rezoning and acquired the property.

In August 2007, the respondent applied for site plan approval expecting construction to be completed by the summer of 2009. In October 2007, the City asked for revised drawings including the water main and the easement. The respondent complied, obtained a demolition permit, and applied for an excavation permit. The City then realized the water main was very close to the property line and was concerned about a potential breach and whether the easement alone was enough to protect the water main. Ultimately, the respondent had to adjust its plans and increase the distance between the edge of the parking garage and excavation area and the water main to receive an excavation permit from the City. In 2008, the respondent received an excavation permit and site plan approval, and the condominium was completed in 2011, two years later than originally scheduled.

The trial judge held that the City owed the respondent a duty of care during the rezoning process in the context of a negligent misrepresentation claim. The trial judge went on to find that the City could reasonably foresee that the respondent would rely on its representations and that the respondent would incur losses if the representations were inaccurate. If the respondent had known about the water main in 2005, it would not have waived the conditions of purchase and would have found another property on which to build its condominium. The trial judge found in favour of the respondent and awarded $4.5 million in damages and pre-judgment interest because of the City’s negligence.

issues:

(1) Did the trial judge err in holding that the City owed the respondent a duty of care?

(2) Did the trial judge err in finding that the respondent relied on the City’s misrepresentation?

(3) Did the trial judge err in varying the rate of pre-judgment interest that the respondent was entitled to?

holding:

Appeal allowed.

reasoning:

(1) Yes

The trial judge erred in holding that the City owed the respondent a duty of care because there was no relationship of proximity between the City and the respondent, and no undertaking given by the City to the respondent that would be sufficient to create reasonable foreseeability of harm.

While the trial judge correctly cited and applied Livent, she did not have the benefit of Maple Leaf at the time of her decision, which has added clarity to the undertaking analysis when determining proximity between the parties. The trial judge began her proximity analysis by determining whether the parties had a sufficiently close and direct relationship to ground a duty of care. Included in this analysis was the fact that the respondent paid a fee to the City for the rezoning application and that the statutory scheme placed an onus on the City to obtain information on the proposed rezoning. She found that parties expected that all information would be shared with the respondent and that developers generally rely on information received from City planners. This created a sufficiently close and direct relationship to create a prima facie duty of care. Ultimately, the trial judge found that the City implicitly undertook to tell the respondent the details of the water main.

The appeal judge found that this “implicit undertaking” was the central flaw in the trial judge’s analysis. An implicit undertaking does not follow Maple Leaf’s clarification on the proximity analysis, which is that the relationship of proximity and duty stems from the intended effect of an undertaking. Maple Leaf further affirmed that the purpose of any undertaking limits the scope of reliance on the undertaking. The Court of Appeal found that the City did not provide an undertaking to the respondent, nor could the respondent have reasonably relied on the City’s representations.

While implicit undertakings are possible, it is more difficult to consider the scope of the undertaking to determine who its intended beneficiaries are. The extent of the City’s undertaking to the respondent, upon accepting its rezoning application and fee, was to process the application. The respondent’s reliance on the City to take the appropriate considerations in processing its application is valid. The court found that the purpose of the City’s undertaking was not to ensure the economic viability of the respondent’s project but rather to fulfil its statutory duty to process the rezoning application and act in the public interest while doing so. Nothing in the legislative framework suggests an intention to create a private law duty to developers or a duty to protect developers from pure economic loss.

The scope and purpose of the undertaking must consider the nature of the process – a rezoning application does not give a basis to support the inference that upon approval of the rezoning application, the City’s intent would be to undertake that the ultimate project would be built or profitable. The court found that this result would create a potentially limitless liability.

Ultimately, the court found that there was no relationship of proximity and the City had not induced the respondent to rely on its undertakings such that it would result in economic losses. Because the City did not undertake to ensure the viability of constructing the condominium and parking garage, there can be no reasonable foreseeability of the respondent’s reliance or related economic losses.

(2) and (3) Not considered.

Because the Court found that there was no duty of care, there was no need to consider issues 2 and 3.


Children’s Aid Society of Algoma v. G.C., 2021 ONCA 400

[Doherty, Trotter and Thorburn JJ.A.]

Counsel:

E. McCooeye, for the appellant

J. Mealey, for the respondent Children’s Aid Society of Algoma

No one appearing for the respondent C.P.

No one appearing for the respondent S.B.

No one appearing for the respondent Conseil des Abenakis D’Odanak.

C. Bellinger and L. Parisé, for the respondent Office of the Children’s Lawyer

Keywords: Family Law, Child Protection, Civil Procedure, Summary Judgment, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1., ss 74(2)(d), Family Law Rules, O. Reg. 114/99, Rules 16(6.1) and (6.2), Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316

facts:

The Children’s Aid Society of Algoma (the “Society”) applied to have three of the appellant’s children found in need of protection on the grounds of risk of sexual harm.
The appellant is the biological father of the three children. The Society brought applications in respect of each child: the first on the grounds of actual sexual harm and risk of sexual harm, and the other two on the basis of risk of sexual harm. The appellant has not been convicted of any sexual offences but has a history of being charged with sexual offences against pre-teens. A doctor who conducted a psychosexual assessment on the appellant believed the appellant suffers from pedohebephilia.

The motion judge concluded that there was no genuine issue requiring a trial and made the finding under section 74(2)(d) of the Child, Youth Family Services Act (“CYFSA”). The motion judge analyzed the evidence before him through the lens of Kawartha-Haliburton, then gave extensive and detailed reasons with respect to his jurisdiction to grant summary judgment before concluding that a trial would inevitably result in the same outcome as is sought by the applicant society. The appellant raised numerous issues on his first appeal which were dismissed because the appeal judge found that the motion judge took the proper approach and made no errors in his ruling.

This was a further appeal from the dismissal of his initial appeal.

issues:

(1) Did the motion judge and the appeal judge properly consider the principle of proportionality in the summary judgment proceeding?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The appeal judge was correct to find that the motion judge applied the correct test for summary judgment and demonstrated a proper application of the principles discussed in Kawartha-Haliburton.

The appellant’s argument was that a summary judgment motion was not suitable for a finding under section 74(2) of the CYFSA because of the significant consequences of this finding, and relied on his inability to cross-examine affiants who made allegations against him. The appeal judge found that it was open to all counsel on the motion to request a mini-trial under rule 16(6.2) of the Family Law Rules, and no such request was made. The appellant had the opportunity to attack the affiants’ evidence and was required to put his best foot forward on a summary judgment motion. The fact that he did not is not enough to find that the motion judge erred in how he dealt with the evidence. In coming to his conclusion, the motion judge ruled that the bulk o the evidence presented by the Society was inadmissible and engaged in a careful balancing of what remained. Rule 16 permitted the motion judge to make findings of credibility, to weigh the evidence, and to draw conclusions entitled to deference. The motion judge formed a proper foundation for his finding under section 74(2)(d) of the CYFSA and the appeal judge correctly upheld this finding.


O’Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385

[Roberts, Zarnett and Sossin JJ.A]

Counsel:

T. Brook and P. Macchione, for the appellants

J. Horvat and A. Chun, for the respondent

Keywords: Contracts, Employment, Common Employer Doctrine, Corporations, Doctrine of Separate Legal Pesonality, Unpaid Wages, Directors’ Liability, Business Corporations Act, R.S.O. 1990, c. B.16, s. 131, Yaiguaje v. Chevron Corporation, 2018 ONCA 472, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Sinclair v. Dover Engineering Services Ltd., 49 D.L.R. (4th) 297 (B.C.C.A.), Rowland v. VDC Manufacturing Inc., 2017 ONSC 3351, Downtown Eatery (1993) Ltd. v. Her Majesty the Queen in Right of Ontario (2001), 54 O.R. (3d) 161 (C.A.), Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Housen v. Nikolaisen, 2002 SCC 33

facts:

The respondent was employed by the appellant company, ClearMRI. The other appellant, Tornado Medical Systems, Inc., (“Tornado”) is the majority shareholder of ClearMRI, as well as the alleged common employer of the respondent.

The respondent was owed a substantial amount of money upon the end of his employment. He brought an action seeking recovery from the appellants. The respondent also brought an action against the directors of the appellants, including Dr. K, under s. 131 of Ontario’s Business Corporations Act (“OBCA”) for six months’ unpaid wages and twelve months’ vacation pay.

The respondent obtained default judgment against ClearMRI and was subsequently successful on a motion for summary judgment against the other defendants. Tornado appealed on the ground that the motion judge erred in finding it a common employer. Dr. K appealed on the ground that the motion judge improperly found liability under s. 131 of the OBCA.

issues:

(1) Was Tornado properly found to be a common employer?

(2) Was Dr. K properly found liable under s. 131 of the OBCA?

(3) Did the motion judge err in the amount of damages awarded?

holding:

Appeal by Tornado allowed. Appeal by Dr. K dismissed.

reasoning:

(1) No.

The doctrine of corporate separateness dictates that the fact that one corporation owns the shares of, or is affiliated with, another does not mean they have common responsibility for their debts: Yaiguaje v. Chevron Corporation, 2018 ONCA 472 at paras 57-58. The common employer doctrine is consistent with corporate separateness. It only imposes liability on companies within a corporate group when each can be said to have entered into a contract of employment with the employee: Sinclair v. Dover Engineering Services Ltd., 49 D.L.R. (4th) 297 (BCCA) at para. 9. A related corporation will be found to be a common employer when there is an intention to create an employer/employee relationship between the individual and the related corporation: Rowland v. VDC Manufacturing Inc., 2017 ONSC 3351, at paras 12-13. This intent is measured objectively. The imperative question for the court to ask is “where effective control over the employee resides”: Downtown Eatery (1993) Ltd. v. Her Majesty the Queen in Right of Ontario (2001), 54 O.R. (3d) 161 (C.A.) at paras 32-33.

Intervention is justified if the judge commits an extricable error of law or makes a palpable and overriding error of fact: Housen v. Nikolaisen, 2002 SCC 33 at para 36. In this case, the motion judge failed to properly address the question of whether Tornado intended to be a party to the employment agreement through exercising control, despite not being a named party to the agreement. More specifically, the evidence did not support the findings that: a) Tornado accepted the respondent’s offer to defer salary, b) why Tornado accepting a loan from the respondent is related to employment duties, c) why ClearMRI’s assurances of future revenue were related to Tornado, and d) there was relevance in the fact that the respondent and Tornado had aligned business objectives. Overall, the motion judge did not answer the critical question of whether the evidence presented showed an intention that Tornado was an employer of the respondent. This was legally insufficient to support summary judgment against Tornado.

(2) Yes.

Subsection 131(2) of the OBCA states that liability against a director personally is conditional upon whether the corporation was in liquidation, ordered to be wound-up, was formally bankrupt, or had an execution against it returned unsatisfied. In this case, judgment was obtained against ClearMRI well before the motion for summary judgment was brought against Dr. K. Even though the judgment did not reflect the fact that Dr. K’s liability was conditional, this does not mean that judgment cannot be granted against Dr. K at all. This is because the OBCA does not put a time limit on the conditions. Accordingly, the judgment was amended to provide for the conditional liability.

(3) No.

The appellants argued that the damages awarded to the respondent did not account for the fact that he resigned in December of 2013. This argument was rejected because the evidence showed that the respondent continued to work “in reality.” It was also argued that the agreement to defer salary specified that payment would resume upon the business earning revenue, which never occurred. This argument was also rejected because the evidence showed that the deferral was not permanent, so the entitlement to claim the deferred money was not waived.


Eynon v. Simplicity Air Ltd., 2021 ONCA 409

[Juriansz, van Rensburg and Sossin JJ.A.]

Counsel:

C.B. Kuehl, J. Scarfone and J. Sazio, for the appellant

R.P. Hosack and P. Karsten, for the respondent

Keywords: Torts, Negligence, Contributory Negligence, Personal Injury, Labour and Employment, Workplace Health and Safety, Damages, Punitive Damages, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A., s. 22.1, s.155.1, s.158(1), Whiten v. Pilot Insurance Co., 2002 SCC 18, Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 61 O.R. (3d) 481, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, Rutman v. Rabinowitz, 2018 ONCA 80

facts:

This is an appeal from a jury award of punitive damages. The respondent sued the appellant for injuries he suffered in the workplace. The respondent’s award of general damages and lost wages was reduced by 75% due to the respondent’s contributory negligence in causing his injuries. The jury also assessed punitive damages against the employer in the amount of $150,000. The jury cited the appellant’s serious lack of proper safety training and documentation, as well as creating a culture within the company whereby employees failed to place adequate importance on best safety practices, as the basis for its assessment of punitive damages.

issues:

(1) Was the issue of punitive damages properly left with the jury?

(2) Did the trial judge err in his instructions on punitive damages, and should he have provided a range for the amount of punitive damages?

(3) Is the appellant liable for punitive damages resulting from the conduct of its employees?

(4) In the alternative, should the amount of punitive damages be reduced because the amount is plainly unreasonable and unjust?

(5) In the alternative, should the amount of punitive damages be reduced by the respondent’s contributory negligence?

holding:

Appeal dismissed.

reasoning:

(1) Yes

The trial judge properly instructed the jury that it could award punitive damages “if the wrongful acts of the [appellant] toward [the respondent] were outrageous or reprehensible and offensive to ordinary standards of decent conduct in the community.” The trial judge referred to the factors relevant to the determination of a proportionate amount of punitive damages.

There was sufficient evidence that a properly instructed jury, acting reasonably, could have awarded punitive damages. The instructions of the appellant’s supervisor to an injured employee to falsely report that he was injured at home, without more, warranted an award of punitive damages. Had the appellant been prosecuted under s. 158(1) of WSIA, the need for punitive damages would have been lessened: Whiten v. Pilot Insurance Co., 2002 SCC 18.

(2) No

The trial judge’s instructions adequately equipped the jury to assess the appellant’s conduct. The trial judge cited the boilerplate punitive damages elements listed in Whiten and gave adequate instruction on how to apply those elements to the facts of the case.
Absent the agreement of counsel on a range for punitive damages, it would have been improper for the trial judge to suggest one to the jury.

(3) Yes

There was no requirement to find an “independent actionable wrong” on the part of the appellant employer. The cited conduct of the supervisors was carried out in the course of their employment for the appellant, and therefore, the conduct of the supervisors was the conduct of the appellant employer. Accordingly, the Court did not give effect to the argument that the award of punitive damages against the appellant was unwarranted because the focus was on the misconduct of its supervisory personnel.

(4) No

The Court was not persuaded that the jury’s award of punitive damages was so inordinately large that it exceeded what was rationally required to punish the appellant. The jury could properly regard the conduct of the appellant as sufficiently illegal and reprehensible to warrant the amount of punitive damages awarded in order to deter similar conduct in the future.

(5) No

There was no basis for reducing the punitive damages award based on contributory negligence.


K.K. v. M.M., 2021 ONCA 407

[Zarnett J.A. (Motions Judge)]

Counsel:

G. Joseph and V. Li, for the appellant, K.K.

A. Pasha, for the respondent M.M.

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Stay Pending Appeal, Security for Costs, Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30, Rules of Civil Procedure, Rule 61.06(1)(a), Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764

facts:

The parties separated in November 2012 and engaged in what the trial judge described as a “protracted high-conflict legal battle” involving their children, V.K. (now 16 years old) and J.K. (now 11 years old). In March 2014, sole custody of the children was granted to the appellant, K.K. (the “father”) based on an interim finding of parental alienation by the respondent, M.M. (the “mother”). In September 2020, V.K. moved in with the mother in Toronto. At the time of the trial the children were living in separate residences.

Major issues at the trial included the allocation of parental decision-making, the question of whom the children should primarily reside with, and the parenting schedule. Important to the disposition of these issues was the question of which parent had tried to alienate the children from the other parent. The trial judge found that the father was not a credible witness and found the mother to be credible and for the most part a reliable historian.

The father moved for a stay pending appeal of the trial judge’s final Order (the “Order”) that pertained to parenting the parties’ son, J.K. The Order directed that J.K’s primary residence be with the mother, and temporarily suspended and then restricted contact between the father and J.K. The mother opposed the stay and moved for security for costs of the appeal.

issues:

(1) Is it in the interests of justice to grant a stay?

(2) Should the father be required to post security for costs of the appeal?

holding:

Both motions were dismissed.

reasoning:

(1) No

The test for a stay of an order involving the parenting of a child is whether granting a stay would be in the interest of justice. Three factors are considered:

(1) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a “low threshold”;
(2) whether the child would suffer irreparable harm if the application were refused; and
(3) the balance of convenience, namely, whether there would be greater harm from the granting or refusal of the stay pending a decision on the merits.

The father argued that the trial judge erred in overriding the statutory admissibility of the assessor’s reports and the statutory ability of a party to request the assessor’s attendance at trial. He argued that the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the Regulated Health Professions Act (RHPA). This argument passed the “low threshold” aspect of the test for a stay. The Court noted, however, that even if the trial judge erred in these rulings, it was not clear if that would affect its overall decision considering other findings.

The Court was not satisfied that the irreparable harm and balance of convenience aspects of the test favoured a stay. The Court found the father’s irreparable harm and balance of convenience arguments proceeded on a different view of J.K.’s best interests than taken by the trial judge. But, on a motion to stay, the result of the trial is to be treated as prima facie correct: Circuit World, at para. 13.

The father pointed to statements in the mother’s affidavit about J.K.’s difficulties in adjusting since the Order was made. But the Court found that looking at the mother’s evidence holistically showcased J.K.’s progress in building relationships with his mother and friends. The Court found that staying the Order would disassemble the structure the trial judge put in place and replace it with circumstances she found to not be in J.K.’s best interests.

(2) No

In support of her request for security for costs, the mother argued that the trial judge will likely award costs of the trial in her favour, that the father was not forthcoming in his financial disclosure, and that he will likely owe her arrears of support.

The mother relied on Rule 61.06(1)(a) of the Rules of Civil Procedure, which provides that security for costs may be ordered where, among other things, there is good reason to believe the appellant has insufficient assets in Ontario to pay the costs of the appeal. The Court found this was not the case, as the mother’s evidence showed that the father owns two properties and the trial judge found that he earns a substantial income. Thus, the motion for security for costs was dismissed.


Wiseau Studio, LLC v. Harper, 2021 ONCA 396

[Doherty, Pepall and Trotter JJ.A.]

Counsel:

D. Brinza, for the appellants

M. Diskin and M. Bacal, for the respondents

Keywords: Civil Procedure, Appeals, Security for Judgement, Security for Costs, Orders, Enforcement

facts:

In Wiseau Studio, LLC v. Harper, 2021 ONCA 31, the motion judge granted not only security for costs of the appeal and the trial costs below, but security for the judgment granted at trial. That order was made following the appellants’ concession that their proposed appeal, as framed in their Notice of Appeal, was frivolous.

The appellants had since fleshed out their grounds of appeal and perfected their appeal and filed a factum. They moved to review the motion judge’s order.

issues:

(1) Should the order for security for judgment be set aside or varied?

(2) Should the order for security for costs of the appeal and trial be set aside or varied?

holding:

Motion granted in part.

reasoning:

(1) Yes

The Court was prepared to permit the appellants to resile from their concession made before the motion judge as to the merits of their appeal. Absent that concession, the part of the order granting security for judgment should be set aside.

(2) No

The appellants’ motion did not include a request to introduce fresh evidence, and there was no justification for the court to receive fresh evidence in this case. On the material before the motion judge, it was open to her to make the order of security for costs of the appeal and trial.


Bank of Montreal v. Cadogan, 2021 ONCA 405

[Rouleau, Hoy and van Rensburg JJ.A]

Counsel:

G. Cadogan, acting in person

R. Aisenberg, for the respondent

Keywords: Contracts, Professional Liability, Lawyers, Real Property, Parcel Register, Registration of Documents, Law Statements, Civil Procedure, Summary Judgment, Adjournments, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), Toronto-Dominion Bank v. Hylton, 2010 ONCA 752

facts:

The respondent bank commenced an action for damages against the appellant, who is a lawyer. The respondent alleged that the appellant made a knowingly false “law statement” under Ontario’s electronic land registration system. The motion judge granted summary judgment in favour of the respondent for $63,494.04, plus $20,000 in punitive damages.

issues:

(1) Did the motion judge err in refusing an adjournment of the summary judgment motion?

(2) Did the motion judge err in refusing to let the appellant’s counsel participate in the hearing?

(3) Did the motion judge proceed on an evidentiary record that was incomplete and deficient?

holding:

Appeal dismissed

reasoning:

(1) No

The appellant did not appear at the virtual hearing of the motion. Instead, a lawyer appeared on his behalf by audio only. The lawyer had no instructions other than to obtain an adjournment. The motion judge determined that the appellant’s request for an adjournment followed a pattern “of obfuscation and attempting to put off his day of reckoning”.

Whether to grant an adjournment in a civil proceeding is a highly discretionary decision, and the scope for appellate intervention is limited: Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.). The inquiry on appeal must focus on whether the court below took account of relevant considerations in balancing the competing interests and made a decision that was in keeping with the interests of justice: Toronto-Dominion Bank v. Hylton, 2010 ONCA 752. The appellant failed to point to any circumstance the motion judge failed to consider in refusing the adjournment. The appellant also failed to have a valid excuse for his non-attendance at the virtual hearing. There was therefore no basis to interfere with the motion judge’s finding as he considered all relevant factors and came to the correct conclusion that granting an adjournment in the circumstances would permit an abuse of the court’s process.

(2) No

There was no basis for this ground of appeal. The appellant’s counsel made it clear she had only been retained to request an adjournment. She was not prepared to argue the motion.

(3) No

There was no missing evidence, nor was any evidence ignored by the motion judge. The appellant did not serve an affidavit of documents or produce any documents. Although the motion for summary judgment was outstanding for some time, the only evidence the appellant submitted in response to the motion was the affidavit of his client. The motion judge reviewed this evidence, found the affidavit inconsistent, and clearly explained why he preferred the respondent’s evidence to the contrary.
The motion judge’s conclusion that the appellant’s law statement on the electronic registry was false and must have been known by him to be false was fully supported by the evidence. The appellant did not demonstrate any reason to interfere with the judgment under appeal.


SHORT CIVIL DECISIONS

Manicom v. Manicom,, 2021 ONCA 399

[Rouleau, Hoy and van Rensburg JJ.A.]

Counsel:

M. Polvere and J. Leslie, for the appellants/respondents by way of cross-appeal

J. Skinner and J. Newman, for the respondent/appellant by way of cross-appeal

Keywords: Family Law, Corporations, Contracts, Share Purchase Agreements, Restrictive Covenants, Remedies, Specific Performance

Luangchaleun (Re), 2021 ONCA 398

[Doherty, Trotter and Thorburn JJ.A.]

Counsel:

K.J. Berger, for the appellant

A. Hotke, for the Attorney General for Ontario

G.S. MacKenzie, for the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Keywords: Reintegration into Community, Conditional Discharge, Absolute Discharge, Substance Abuse, section 672.78(1)(a) of the Criminal Code of Canada, R. v. Owen, [2003] 1 S.C.R. 779

Dhatt v. Beer, 2021 ONCA 412

[Strathy C.J.O., Brown and Miller JJ.A.]

Counsel:

D.P. Lees and Z. Silverberg, for the appellants

A. Herschorn, for the respondents, M. Dhatt and K. Dhatt

S.L. Rosenberg, for the respondents, J. Brijpaul and Re/Max West Realty Inc.

Keywords: Contracts, Agreements of Purchase and Sale of Land, Civil Procedure, Costs

De Palma v. Canadian Federation of Independent Business, 2021 ONCA 406

[Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.]

Counsel:

A. Monkhouse and S. Lucifora, for the appellant

N. Chowdhury, for the respondent

Keywords: Contracts, Employment, Constructive Dismissal, Intentional Infliction of Mental Suffering, Long Term Disability, Accommodation, Civil Procedure, Summary Judgment, Adjournments, Ontario Human Rights Code, R.S.O. 1990, c. H.19, Rules of Civil Procedure, Rules 20.01(3), 20.04(2.1)

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 May 31, 2021.

Continue Reading

Topics covered this week included medmal, constructive trust in the family law context, the interpretation of a commercial lease, the dismissal of a motion for leave to appeal from a sale process proposed by a receiver, partial summary judgment on the eve of trial involving a claim of negligence against a parent corporation in relation to negligence of its subsidiary, claiming interest under construction liens and trusts, and a child protection decision in French.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Marchant Realty Partners Inc. v. 2407553 Ontario Inc., 2021 ONCA 375

Keywords: Bankruptcy and Insolvency, Receiverships, Commercial Mortgages, Enforcement, Civil Procedure, Appeals, Leave to Appeal, Commercial List, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193, Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), Ravelston Corp. Ltd. (Re), 2007 ONCA 135

Fram Elgin Mills 90 Inc. v. Romandale Farms Limited , 2021 ONCA 381

Keywords: Contracts, Real Property, Estoppel by Convention, Civil Procedure, Costs, Offers to Settle, Rules of Civil Procedure, Rule 49, Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33

Great Northern Insulation Services Ltd. v. King Road Paving and Landscaping Inc., 2021 ONCA 367

Keywords: Contracts, Construction Liens, Trusts, Solicitors, Charging Orders, Priority, Interest, Construction Lien Act, R.S.O. 1990, c. C.30 ss. 1(1), 8, 11, 14(2), 71, Solicitors Act, R.S.O. 1990, c. S.15, s. 34(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64(1), Sunview Doors Ltd. v. Academy Doors & Windows Ltd., 2010 ONCA 198, Fundy Ventilation Limited v. Brunswick Construction Ltd., Fraser Companies Limited and Minister of National Revenue, (1982), 40 N.B.R. (2d) 484 (C.A.), Kaiman v. Graham, 2009 ONCA 77, Markevich v. Canada, 2003 SCC 9, The Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9

Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution), 2021 ONCA 361

Keywords: Torts, Negligence, Duty of Care, Proximity, Corporations, Subsidiaries, Piercing Corporate Veil, Civil Procedure, Partial Summary Judgment, Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region, s. 69, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, Vedanta Resources PLC v. Lungowe, [2019] UKSC 20, AAA v. Unilever PLC, [2018] EWCA Civ. 1532

Uribe v. Tsandelis , 2021 ONCA 377

Keywords: Torts, Negligence, Medical Malpractice, Standard of Care, Causation, Apportionment of Fault, Civil Procedure, Juries, Evidence, Witnesses, Questioning by Judge, Rules of Civil Procedure, Rule 52.08(1), Donleavy v. Ultramar Ltd., 2019 ONCA 687, Stilwell v. World Kitchens, 2014 ONCA 770, Salter v. Hirst, 2011 ONCA 609, Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, R. v. Danial, 2016 ONCA 822

Lesko v. Lesko , 2021 ONCA 369

Keywords: Family Law, Property, Unjust Enrichment, Constructive Trust, Joint Family Venture, Equalization of Net Family Property, Spousal Support, Income for Support Purposes, Family Law Act, R.S.O. 1990, c. F.3, Federal Child Support Guidelines, S.O.R./97-175, Family Law Rules, O. Reg. 114/99, Hickey v. Hickey, [1999] 2 S.C.R. 518, Kerr v. Baranow, 2011 SCC 10, Martin v. Sansome, 2014 ONCA 14, McNamee v. McNamee, 2011 ONCA 533, Punzo v. Punzo, 2016 ONCA 957, Mason v. Mason, 2016 ONCA 725, Decaen v. Decaen, 2013 ONCA 218, Gray v. ICBC, 2010 BCCA 459

Paletta International Corporation v. Liberty Freezers London Ltd., 2021 ONCA 383

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Canada Square Corp. v. Versafood Services Ltd. (1982), 130 D.L.R. (3d) 205 (Ont. C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Building Code Act, S.O. 1992, c. 23, Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, Meditrust Healthcare Inc. v. Shoppers Drug Mart (2002), 220 D.L.R. (4th) 611 (Ont. C.A.), Martin v. Goldfarb (1998), 41 O.R. (3d) 161 (C.A.)

Valoris for children and adults of Prescott-Russell v KR , 2021 ONCA 366

Keywords: Family Law, Custody and Access, Supervised Visitation, Civil Procedure, Orders, Enforcement, Contempt, Child, Youth and Family Services Act, 2017, ss. 87(8), (9), and 142(3), Carey v. Laiken, 2015 SCC 17, Services for children and adults of Prescott-Russell c. NG (2006), 271 DLR (4th) 750, TG Industries v. Williams, 2001 NSCA 105, Hefkey v. Hefkey, 2013 ONCA 44, Ruffolo v. David, 2019 ONCA 385, Culligan Canada Ltd. v. Fettes, 2010 SKCA 151, Telus Communications Inc. v. Cherubin, [2005] OJ No. 5534 (CS), 884772 Ontario Ltd. (cob Team Consultants) v. SHL Systemhouse Inc. (1993), Jaskhs Enterprises Inc. v. Indus Corp., [2004] OJ No. 4062, Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, Chong v. Donnelly, 2019 ONCA 799

Short Civil Decisions

Grist v. TruGrp Inc., 2021 ONCA 374

Keywords: Torts, Defamation, Anti-SLAPP, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(8), Veneruzzo v. Storey, 2018 ONCA 688

8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc., 2021 ONCA 371

Keywords: Contracts, Real Property, Commercial Leases, Options to Renew, Duty of Good Faith, Remedies, Relief from Forfeiture, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 98

AA v BB, 2021 ONCA 384

Keywords: Torts, Intentional Infliction of Emotional Distress, Conspiracy, Defamation, Libel, Slander, Family Law, Crown Wardship, Costs

Nagpal v. IBM Canada Ltd., 2021 ONCA 391

Keywords: Costs


CIVIL DECISIONS

Marchant Realty Partners Inc. v. 2407553 Ontario Inc., 2021 ONCA 375

[Jamal J.A. (Motions Judge)]

Counsel:

S.L. Graff, M. Spence and S. Nadler, for the moving parties/appellants

S. Wilson and K. Kraft, for the responding party Zeifman Partners Inc.

Keywords: Bankruptcy and Insolvency, Receiverships, Commercial Mortgages, Enforcement, Civil Procedure, Appeals, Leave to Appeal, Commercial List, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193, Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), Ravelston Corp. Ltd. (Re), 2007 ONCA 135

facts:

The moving parties are debtors (“Debtors”). Marchant Realty Partners Inc., as agent for a group of lenders, commenced three related receivership proceedings before the Commercial List concerning loans the Lenders made to the Debtors. As of October 2020, the Debtors owed more than $16 million under the loans.

Zeifman Partners Inc., (“Receiver”) is the court-appointed receiver and manager over the assets, undertakings, and real property of the Debtors. The Debtors sought leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”), from the orders of the motion judge approving the Receiver’s proposed sale process and list prices for five commercial properties in downtown Niagara Falls, Ontario.

issues:

(1) Does the proposed appeal raise an issue of general importance to bankruptcy/insolvency practice or the administration of justice?

(2) Is the proposed appeal prima facie meritorious?

(3) Would the proposed appeal unduly hinder the progress of the receivership proceedings?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Debtors asserted that the proposed appeal raises an issue of general importance to bankruptcy/insolvency practice regarding the extent of deference that the Court owes to a receiver’s business judgement when approving a sale process.

The Court found that while the court should consider and apply the principles of deference applicable to a receiver’s business judgment, those principles are not in dispute. They were correctly stated by the motion judge: Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.) Applying settled principles of deference to the Receiver’s business decisions would not raise an issue of general importance.

(2) No.

The Debtors argued that the motion judge erred in law by failing to state or apply the Soundair test for evaluating whether a receiver has acted properly: Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.). The Court stated that considerable deference must be given to commercial court judges in such proceedings: Ravelston Corp. Ltd. (Re), 2007 ONCA 135. Further, commercial court judges give considerable deference to receivers: Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.). In his decision, the commercial list judge did apply the Soudair test in his reasons. Thus, there was no error and the appeal lacked prima facie merit.

(3) Yes.

All the loans in issue matured three to four years ago. Considerable time had been given to the Debtors in order to allow them to refinance, which was not done. The property tax is a carrying cost to the Receiver, which ranks ahead of the Lenders’ mortgages, eroding potential recovery. Therefore, the proposed appeal would hinder the receivership process.


Fram Elgin Mills 90 Inc. v. Romandale Farms Limited , 2021 ONCA 381

[Gillese, Lauwers and Benotto JJ.A.]

Counsel:

C.G. Paliare and T.H. Lie, for the appellants Jeffrey Kerbel, 2001251 Ontario Inc., and First Elgin Developments Inc.

S.R. Block, J. Opolsky, S.J. Erskine, and B Lerer for the appellants Fram Elgin Mills 90 Inc.

S.E. Batner, K. Kalogiros, and A. Bourassa, for the respondent

Keywords: Contracts, Real Property, Estoppel by Convention, Civil Procedure, Costs, Offers to Settle, Rules of Civil Procedure, Rule 49, Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33

facts:

Four actions were tried together in the fall of 2018 (the “Actions”). The Respondent was awarded costs of the Actions, on a substantial indemnity basis, in the amount of $2,708,651.57. Those costs were made payable on a joint and several basis by the Appellants.

The Appellants were successful on appeal. Costs for the appeal were agreed upon by the parties but the costs for the Actions were not resolved. The Appellant Fram sought partial indemnity costs of $1,147,595.63 for the Actions. The Appellant Kerbel sought partial indemnity costs of $956,002.50.

issues:

(1) Are the Appellants entitled to partial indemnity costs for the Actions in the amounts sought?

holding:

Partial indemnity costs of the Actions granted.

reasoning:

(1) Yes.

Costs are to be determined based on the overall success of the parties: Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33. The Actions were tried together to ensure that the rights and interests of the parties in the Lands were properly determined. The Appeals determined those respective rights and interests with the result that the Appellants achieved overall success. Further, the Appellants achieved greater success on the Appeals than their Settlement Offer, which the Respondent rejected. Finally, as the Appellants’ costs were reasonable, they were entitled to partial indemnity costs in the amounts claimed.


Great Northern Insulation Services Ltd. v. King Road Paving and Landscaping Inc., 2021 ONCA 367

[Doherty, Nordheimer and Harvison Young JJ.A]

Counsel:

J. Frustaglio, for the appellant

M. Odumodu, for the respondent

Keywords: Contracts, Construction Liens, Trusts, Solicitors, Charging Orders, Priority, Interest, Construction Lien Act, R.S.O. 1990, c. C.30 ss. 1(1), 8, 11, 14(2), 71, Solicitors Act, R.S.O. 1990, c. S.15, s. 34(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64(1), Sunview Doors Ltd. v. Academy Doors & Windows Ltd., 2010 ONCA 198, Fundy Ventilation Limited v. Brunswick Construction Ltd., Fraser Companies Limited and Minister of National Revenue, (1982), 40 N.B.R. (2d) 484 (C.A.), Kaiman v. Graham, 2009 ONCA 77, Markevich v. Canada, 2003 SCC 9, The Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9

facts:

The appellant law firm appealed an order, with leave, from the Divisional Court allowing the appeal of Great Northern Insulation Services Ltd. (“Great Northern”) regarding its claim for priority arising out of a charging order that the appellant obtained in the proceeding.

The respondent was hired as a contractor to renovate an old barn. A dispute arose between the two subcontractors that supplied goods and services to the project and remained unpaid. One subcontractor, Great Northern, registered a construction lien against the property which was tried with the respondent’s claim. The second contractor, Webdensco, assigned its interest in its lien to the respondents, pursuant to s. 73 of the Construction Lien Act, R.S.O. 1990, c. C.30 (“CLA”).

The respondent sought payment on behalf of Webdensco. The trial judge ruled in favour of the respondents against the property owners and in favour of Great Northern against the respondents. The trial judge held that both subcontractors were entitled to liens under the CLA. Several months later, the appellant’s motion on an urgent basis for a charging order under s. 34(1) of the Solicitors Act, R.S.O. 1990, c. S.15, was granted. The charging order was given priority over any amount owed to Great Northern by the respondent pursuant to the trial judgment and costs order. Great Northern appealed the priority provided by the charging order. The Divisional Court allowed the appeal and provided Great Northern with priority over the appellant’s charging order with accruing interest. The Divisional Court found that the interest owing to Great Northern was included in its claim against the trust funds created by s. 8 of the CLA, as it was expressly provided for in the contract.

issues:

(1) Did the Divisional Court err in finding that it had jurisdiction to hear an appeal from the charging order?

(2) Did the Divisional Court err in finding that interest payable on the contract price was to be included within the trust funds?

(3) Did the Divisional Court err in finding that the appellant’s priority over the trust funds was not affected by the assignment of Webdensco’s lien to the respondents?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Divisional Court had jurisdiction to hear the appeal. Section 34(1) of the Solicitors Act requires a lawyer who wants to obtain a charging order to bring a motion in the proceeding where the “property recovered or preserved through the instrumentality of the solicitor” originated. As the proceeding was a construction lien, the necessary appeal route is governed by the CLA where s. 71 provides a right of first appeal to the Divisional Court. The ONCA does not have original jurisdiction when a statute provides a right of first appeal to the Divisional Court: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b).

(2) No.

The interest payable on the contract price fell within the scope of s. 8(2) of the CLA. The interest was considered an amount owing to a subcontractor because the interest rate of outstanding amounts was expressly provided for in the contract. The Court liberally interpreted s. 8(2) due to the statute’s remedial nature and emphasized the need for the CLA to protect lower-level claimants in the construction pyramid: Sunview Doors Ltd. v. Academy Doors & Windows Ltd., 2010 ONCA 198. Consequently, the Court held that the words “all amounts related to the improvement owed to them by the contractor” in s. 8(2) should be interpreted liberally. Therefore, the Court held the interest owing under the contract is part of the trust fund created by s. 8(1) and falls within the restrictions on the permissible use of those trust funds contemplated by s. 8(2).

The Court distinguished between lien rights and trust funds. The Court identified that the interest owed constituted a trust, which serves to protect the interests of subcontractors and suppliers by protecting funds that are owed to, or have been received by, the contractor. CLA s. 14(2) expressly states that interest is not part of a lien claim but this exclusion is absent in s. 8. Thus, the appellants can include interest from the trust fund provisions but not within its lien claim. It should be noted that s. 8(1) only provides for a single trust fund for the subcontractors.

(3) No.

The above analysis is not affected by Webdensco’s lien assigned to the respondents during the proceeding. If the respondent used monies impressed with a trust in favour of the subcontractors, Webdensco’s claim to the trust funds would be gone, leaving the appellants with the right to claim against the trust funds. The respondents did not acquire any right to claim against those trust funds. The appellant raised two challenges to the Court and both were rejected.

First, the appellant’s argument that the application of s.11 was a new issue was rejected: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130. The Divisional Court was asked a specific question that involved the interpretation of the CLA where the court was obliged to consider any relevant section of the statute.

Second, the appellant argued that the contractor was afforded all its rights as a lien claimant, including the right to receive payment of Webdensco’s pro-rata share from the trust funds. At the Divisional Court, the appellant’s argument that the respondent had separate trust funds for each subcontractor was rejected with an interpretation of s. 11 of the CLA. The appellant did not ask, at any time, for leave to file evidence of the source of the funds. Thus, the appellant cannot complain about a denial of the right to file evidence that it did not request. The appellant bore the evidentiary burden as it argued the respondent fell within s. 11 of the CLA. Given the lack of submitted evidence on this issue, the Divisional Court was entitled to assume that the respondents had used trust funds to pay Webdensco.


Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution), 2021 ONCA 361

[Lauwers, Miller and Nordheimer JJ.A.]

Counsel:

C. Carter, for the appellants

C. Sefton, for the respondent, Enbridge Inc.

Keywords: Torts, Negligence, Duty of Care, Proximity, Corporations, Subsidiaries, Piercing Corporate Veil, Civil Procedure, Partial Summary Judgment, Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region, s. 69, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, Vedanta Resources PLC v. Lungowe, [2019] UKSC 20, AAA v. Unilever PLC, [2018] EWCA Civ. 1532

facts:

The appellant owned a 251-unit apartment building in Toronto. On September 14, 2010, a fire and explosion caused extensive damage to the building. Earlier that day, three men changed gas regulators outside the building and an investigation determined that the explosion and fire were caused by improper installation of the regulators. The meters outside the building were property of Enbridge Gas Inc., a subsidiary of Enbridge Inc. Enbridge Gas Inc. had contracted with Lakeside Gas Services to service the regulators. Lakeside had subcontracted to Alpha Delta Heating Contractor Inc. and Dey. Dey and Alpha Delta had, in turn, retained Bishop and TQB Heating and Air Conditioning.

In 2012, the appellants commenced an action against the four defendants, including the respondent. Among other claims, the appellants pleaded that Enbridge Inc. owed the appellants a duty of care and was negligent for failing to provide proper supervision and training to its subsidiary, contractors, and subcontractors, causing the fire and explosion.

In March 2018, the action was set down for a ten-week trial to commence in February 2020. In August 2019 – roughly seven years after the action was commenced and less than six months before the trial was to begin – the respondent, Enbridge Inc., brought a motion for partial summary judgment seeking the dismissal of the action against them. The respondent argued that it exercised no control over its subsidiary Enbridge Gas Inc. and owed no duty of care to the plaintiffs.

In September 2019, the motion judge vacated the February 2020 trial date. In April 2020, after hearing the summary judgment motion in writing, the motion judge dismissed the action as against Enbridge Inc. on the grounds that the respondent was a separate corporate entity and there was no basis to lift the corporate veil between Enbridge Inc. and the other corporate entities. In a separate endorsement, the motion judge ordered $175,000 in costs against the appellants.

issues:

(1) Did the motion judge err by hearing the motion for summary judgement “on the eve of trial”?

(2) Did the motion judge err in not finding a genuine issue requiring trial with respect to the duty of care that Enbridge. Inc. allegedly owed the appellants?

(3) Did the motion judge err in awarding costs on a substantial indemnity basis?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The “Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region”, (July 1, 2015), s. 69, in force at the time, provided that “[o]nce trial dates are set, there will be no adjournments of the trial except in extenuating and exceptional circumstances.” There were no extenuating or exceptional circumstances present in this case. When the motion was brought, Enbridge Inc. was in the same circumstance and possessed the same knowledge as at the time of the March 2018 pre-trial conference, which is when it had an opportunity to advise the court or the appellants that it intended to seek partial summary judgment. In the result, the motion for partial summary judgment added unnecessary delay, expense, and the squandering of available court time, serving as a sufficient basis to allow this appeal.

(2) Yes.

The motion judge briefly analyzed whether there was sufficient evidence to raise a triable issue as to whether Enbridge Inc.’s degree of control over Enbridge Gas Inc. could create a duty of care. The motion judge erred in not analyzing whether there was sufficient evidence to raise a triable issue that Enbridge Inc. sufficiently intervened in the management of Enbridge Gas Inc. to have incurred a common law duty of care to the appellants. The appellants presented sufficient evidence on the motion, including Enbridge Inc.’s seven public statements and policies, to raise a triable issue as to whether Enbridge Inc. had undertaken an obligation to the customers of its subsidiaries to set standards for its subsidiaries and enforce them. Whether the policies are evidence of Enbridge Inc.’s control over Enbridge Gas Inc., and whether the policies can generate legal obligations to the appellants, is a novel question of proximity and is a genuine issue requiring trial.

(3) Yes.

The order for partial summary judgment and the award of costs were set aside.


Uribe v. Tsandelis , 2021 ONCA 377

[Benotto, Miller and Trotter JJ.A]

Counsel:

D. Cruz and C. Wadsworth, for the appellant

D. Fife and M.A. Cameron, for the respondent

Keywords: Torts, Negligence, Medical Malpractice, Standard of Care, Causation, Apportionment of Fault, Civil Procedure, Juries, Evidence, Witnesses, Questioning by Judge, Rules of Civil Procedure, Rule 52.08(1), Donleavy v. Ultramar Ltd., 2019 ONCA 687, Stilwell v. World Kitchens, 2014 ONCA 770, Salter v. Hirst, 2011 ONCA 609, Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, R. v. Danial, 2016 ONCA 822

facts:

The appellant doctor treated the respondent during her pregnancy and delivered her baby. The respondent’s pregnancy was considered low risk. During delivery, complications arose regarding the baby’s heart rate decelerating. A nurse phoned the appellant about the complications, who was in his office five minutes away. The nurse applied standard procedures and the baby’s condition stabilized. The appellant did not immediately return to the hospital and asked to be notified if the condition worsened. Ten minutes after the first call, a nurse informed the appellant that the baby’s heart right decelerated again. Five minutes later, the baby was deprived of oxygen. It was clear an emergency caesarean section was required. The appellant arrived thirteen minutes later and by the time the baby was delivered, he had been without oxygen for too long. Consequently, the baby suffers from severe cerebral palsy and other serious medical conditions. Based on expert evidence, brain injury was certain to have occurred after the second deceleration and the restriction of oxygen. The experts agreed that if the baby had been delivered during the appropriate window following the deceleration, or before the obstruction of the airway, the severe damage would not have occurred. The timing of the delivery was critical.

At trial, a jury found that the appellant was negligent and breached the standard of care resulting in damage. The jury found that the appellant breached the Society of Obstetrician and Gynecologist of Canada (“SOGC”) Guidelines which require health professionals to prepare for delivery when there is a single abnormal intrapartum electronic fetal monitor tracing of more than three but less than ten minutes. Thus, the jury found the appellant was required to prepare for delivery after the first heart rate deceleration. Regarding damages, the jury found the appellant 32% liable for the loss. Following the verdict, the appellant brought a motion under Rule 52.08(1) of the Rules of Civil Procedure, requesting the trial judge not enter the judgment and either dismiss the action or order a new trial. The motion was dismissed.

issues:

(1) Did the jury apply the but for test for causation?

(2) Was the jury’s verdict unreasonable?

(3) Did the trial judge err by dismissing the Rule 52.08(1) motion?

(4) Were the trial judge’s questions to a witness improper?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The jury’s answer to causation did not mean the instructions for the but for test were not followed or that the wrong causation test was used. The but for test for causation outlined in Clements v Clements, 2012 SCC 32, requires the plaintiff to show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. The defendant’s negligence must be necessary to bring about the injury. The Court held that the jury’s answer involving the words “contributed to” does not mean the material contribution test was applied. The answer provided by the jury was consistent with the but for test. As the jury was instructed to consider contributory negligence due to multiple tortfeasors, it is understandable that the language “contributed to” would arise. The jury’s finding that the appellant should have returned to the hospital after the first call was a logical and available conclusion from the evidence.

(2) No.

The Court rejected the appellant’s argument that there was no evidence that the baby would have been delivered earlier and therefore the jury’s verdict was unreasonable. The jury was allowed to draw reasonable inferences from the accepted evidence, including the statements of expert witnesses: Stilwell v. World Kitchens, 2014 ONCA 770. However, in this case, there was direct evidence from which the jury could conclude that had the appellant not breached the standard of care, the damage would not have occurred. If the appellant prepared for delivery, as per SOGC Guidelines, an operating room would have been secured and the baby delivered before the damage occurred.

(3) No.

The trial judge was correct in determining the motion should be dismissed. For a trial judge to call a new jury or dismiss an action, Rule 52.08 requires the jury to either disagree, fail to answer all questions, or fail to make findings on which judgment can be granted. The Court held that the jury did none of these things and the trial judge thoroughly and correctly addressed the appellant’s submissions.

(4) No.

A trial judge is entitled to question witnesses for clarification by intervening in the testimony of witnesses: Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47. The trial judge correctly followed the protocol in R. v. Danial, 2016 ONCA 822 by waiting for the conclusion of witness’ testimony, asking questions for clarification on narrow issues, and by allowing further re-examination. The Court rejected the appellant’s argument that the trial judge’s questioning introduced a new theory of liability that the appellant failed to prepare for delivery after the first phone call. This was a clear issue brought up by evidence at trial and there was nothing unfair or improper about the trial judge’s questions.


Lesko v. Lesko , 2021 ONCA 369

[Strathy C.J.O., Brown and Miller JJ.A.]

Counsel:

G. Joseph and S. Kirby, for the appellant

P. Callahan, for the respondent

Keywords: Family Law, Property, Unjust Enrichment, Constructive Trust, Joint Family Venture, Equalization of Net Family Property, Spousal Support, Income for Support Purposes, Family Law Act, R.S.O. 1990, c. F.3, Federal Child Support Guidelines, S.O.R./97-175, Family Law Rules, O. Reg. 114/99, Hickey v. Hickey, [1999] 2 S.C.R. 518, Kerr v. Baranow, 2011 SCC 10, Martin v. Sansome, 2014 ONCA 14, McNamee v. McNamee, 2011 ONCA 533, Punzo v. Punzo, 2016 ONCA 957, Mason v. Mason, 2016 ONCA 725, Decaen v. Decaen, 2013 ONCA 218, Gray v. ICBC, 2010 BCCA 459

facts:

The appellant, Mr. D. L (‘D’). and the respondent, Ms. K. L (‘K’) started living together in September 1998 and were married on August 23, 2003. They have two children. The couple legally separated on December 31, 2014, but continued to live together in the matrimonial home until it was sold in November 2015.

In June 1998, D purchased Taplow – a “fixer upper” property. At the time, K and D were dating for over a year and decided to move in together into Taplow when it became habitable. K did not contribute financially to the purchase of Taplow nor was her name put on title. However, beginning in August 1998, she contributed $500 a month to cover the couple’s expenses, which included a monthly mortgage payment of $831.35. Taplow was gutted and extensive renovations were made to the property between 1998 and the property’s sale in 2007. D completed most of the physical renovations, while K took charge of housekeeping and home maintenance so that D could devote his free time to the renovations. When Taplow was sold in 2007, D and K put the sale proceeds into their new home, another property in need of renovation, and their names were put on title as co-owners.

By the time of the trial, the parties had settled many issues. The remaining issues were adjudicated by the trial judge, which resulted in his Divorce Order. D appealed three parts of that order.

At trial, K and D both sought reimbursement for family-related expenses, most of which were incurred between the date of their legal separation and the sale of the matrimonial home. K sought reimbursement for her share of expenses charged to the family Visa card after separation relating to home maintenance, medical, family vacation, children’s activities, and interest charges. The trial judge granted this claim. D sought reimbursement for half of the expenses he incurred in respect to the family home from January 1, 2015 until November 2015. The trial judge disposed of this claim on the grounds that it was not advanced in his Answer.

issues:

(1) Did the trial judge err in finding that the respondent established a claim for unjust enrichment?

(2) Did the trial judge err in using the appellant’s most recent year’s income in the amount of $208,000.00 for support calculation purposes?

(3) Did the trial judge err in dismissing D’s claim for post-separation expense reimbursement requests?

holding:

Appeal dismissed.

reasoning:

(1) No.

The respondent successfully established a claim for unjust enrichment and the extent of her interest was proportionate to her contribution.

The Court did not accept D’s argument that the parties were in a landlord and tenant relationship which entitled D to retain the benefits conferred by K. The Court concluded that based on the evidence, K and D moved into a barely livable property and equally contributed to the renovations, which is not analogous to a landlord-tenant relationship.

The Court did not accept D’s second argument that even if there was unjust enrichment, the trial judge should have considered whether the FLA’s equalization scheme remedied the unjust enrichment. While the equalization scheme will likely resolve most unjust enrichment claims resulting from a marriage, a claim that one party was entitled to an interest in a property existing at the date of marriage based on unjust enrichment arising prior to marriage requires analysis under the common law framework outlined in Kerr v. Baranow, 2011 SCC 10. Consequently, the trial judge was not required to consider K’s entitlements that would arise post-marriage under the FLA when considering her unjust enrichment claim based on events occurring before and in respect of an asset existing at the date of marriage.

The court rejected D’s argument that the mutual conferral of benefits that occurred during the pre-marriage stage of the relationship amounted to a juristic reason for his enrichment and K’s deprivation. The evidence showed that the parties arranged their affairs to acquire “fixer-uppers”, renovate them, and then sell them for profit, with both parties expecting to benefit from their mutual efforts.

The trial judge’s finding that K was entitled to deduct 50% of the net value of the Taplow property on the date of marriage for purposes of calculating her net family property was a reasonably fair and equitable remedy. Unlike the FLA, which presumes that couples are entitled to an equal share of net family property accumulated during marriage, there is no presumption that a finding of unjust enrichment entitles a claimant to a half interest in the property. The extent of the claimant’s interest must be proportionate to their contributions: Kerr. It was clear from the evidence that prior to their marriage K and D were engaged in the joint project of renovating the Taplow for their mutual benefit. Furthermore, the trial judge’s finding was supported by the evidence that D applied the full proceeds from the sale of Taplow to acquire the Valleyview Court property and added K as a co-owner on title, without any separate financial contribution. Although the purchase took place four years after the date of marriage, it stands as a powerful recognition by D of K’s equal contribution to the success of the Taplow renovation, which enabled them to upgrade to a higher-end house.

(2) No.

D argued that his income for support purposes should be $132,300, based on the average of his income in 2015, 2016, and 2017 and that his 2017 income was an outlier. The trial judge had the option to average D’s income according to Section 17(1) of the Federal Child Support Guidelines, S.O.R./97-175, but was under no obligation to do so. Further, the evidence suggested that the averaging of D’s annual income would significantly understate his actual income. If the 2017 income level was in fact an outlier and D’s income materially declined in the future, he could bring the appropriate motion to vary support on the basis of a material change in circumstances.

(3) No.

There was no error in principle, or unreasonableness in the result, of the trial judge exercising his discretion to deny D his eleventh hour, three-year old claim for expenses incurred in 2015. D did not plead a reimbursement claim in his November 2016 Answer and only brought it forward a few weeks before the trial in April of 2019. D’s claim for reimbursement of post-separation expenses marked a departure from the parties’ “status quo” approach between the date of legal separation and the sale of the house, an approach adopted in the interests of their two young children. The expenses for which D was seeking reimbursement benefitted all members of the family, including himself, as he continued to live in the family home until it was sold. Further, D’s position that he only decided to claim reimbursement when he realized that K was seeking retroactive child and spousal support is unfounded. K’s September 2016 Application clearly stated she was seeking retroactive support.


Paletta International Corporation v. Liberty Freezers London Ltd , 2021 ONCA 383

[Roberts, Zarnett and Sossin JJ.A]

Counsel:

K.G. Ferreira and A.A. Moten, for the appellant

R.C. Dunford and S. Wouters, for the respondent

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Canada Square Corp. v. Versafood Services Ltd. (1982), 130 D.L.R. (3d) 205 (Ont. C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Building Code Act, S.O. 1992, c. 23, Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, Meditrust Healthcare Inc. v. Shoppers Drug Mart (2002), 220 D.L.R. (4th) 611 (Ont. C.A.), Martin v. Goldfarb (1998), 41 O.R. (3d) 161 (C.A.)

facts:

The parties entered into an agreement to lease in October 2010 (“the lease”). The respondent landlord undertook to carry out a retrofit of the premises to accommodate the appellant tenant’s business. The parties agreed the lease would commence when the retrofit was substantially completed in accordance with the Canadian Food Inspection Agency (“CFIA”) requirements. The appellant informed its clients that it would begin offering services April 2011 upon the premises being substantially completed.

As a result of the retrofit not being completed by April 2011, the appellant was forced to cancel contracts with clients. In October 2011, the appellant put the respondent on notice that it required a firm commencement date and a copy of the final form of the lease. In January 2012, the respondent proposed a final form of the lease (the “proposed lease”), which referenced new terms not contained in the lease which required the appellant pay additional rent to reimburse the respondent for new pallets they had installed in the premises. Additionally, the proposed lease introduced substantial new terms and deleted terms that provided for six months of free rent.

In March 2012, the appellant advised the respondent it would not be taking possession of the premises because the respondent failed to meet the April 2011 deadline and had repudiated the lease by attempting to introduce new terms into the proposed lease. The respondent sued the appellant for breach of contract and engaged Colliers Macaulay Nicholls Inc. (“Colliers”) to list the property. In February 2013, as part of corporate restructuring, the respondent transferred the premises to 2362302 Ontario Inc. (“236”) to hold the title in trust for the respondent. In April 2013, 236 leased the premises to Eastern Meat Solution Inc. (“EMSI”) with a commencement date of June 1, 2013. EMSI was not required to pay rent until September 1, 2013.

The trial judge found that the lease was valid and the appellant was in breach for failure to take possession. Relying on evidence of the project’s lead engineer, the trial judge found the lease commenced April 2012 as the substantial completion had been achieved by then. The appeal arose out of the parties’ dispute over the interpretation of the lease and its commencement date.

issues:

(1) Did the trial judge err by concluding that the terms of the lease were certain and that the respondent had not introduced new terms?

(2) Did the trial judge err in finding that “substantial completion” provided an ascertainable commencement date and that the parties did not agree to a definite commencement date?

(3) Did the trial judge err in his interpretation of “substantial completion” under the lease and in his conclusion that the retrofit was substantially complete in April 2012?

(4) Did the trial judge err in his determination of damages?

holding:

Appeal allowed in part.

reasoning:

(1) No.

The Court held that the introduction of new terms in the proposed lease did not render the lease uncertain. The Court agreed with the trial judge that the lease was valid, and the proposed lease was not entered into. Following the signing of the lease, the respondent had installed different racking due to the parties’ discussions and the terms of the proposed lease were related to this interaction. The Court found that the pallet racking provisions in the proposed lease did not alter any other terms in the proposed lease or create uncertainty in the terms of the lease.

(2) No.

The Court agreed with the trial judge that the lease was silent with respect to a definite substantial completion date and that it would be unreasonable to infer one. The Court found that the text of the lease tied the commencement date to the “substantial completion” of the respondent’s retrofit of the premises. There were no express provisions stipulating a “Final Commencement Date” and the lease did not define nor give any additional context to the term “substantial completion.” Furthermore, the Court found that the parties had not agreed otherwise on a specific date for completion of the retrofit or that the respondent made any related representations. The appellant simply assumed the premises would be ready by April 2011.

The Court rejected the appellant’s argument that if there was no fixed or implied commencement date, the trial judge erred concluding that the term “substantial completion” was certain. The Court held that it was reasonable for the trial judge to conclude that “substantial completion” could be tied to the “Landlord’s work” as set out in the lease. This stipulation provided in the lease meant that the terms regarding the substantially completion of the “Landlord’s work” was ascertainable. A term of a lease is not uncertain just because the parties define commencement in relation to a contingent future event: Canada Square Corp. v. Versafood Services Ltd. (1982), 130 D.L.R. (3d) 205 (Ont. C.A.). The trial judge was correct in finding the lease was substantially clear and the appellants never agreed to an April 2011 commencement date. Therefore, the appellant breached the lease by refusing to take possession.

(3) Yes.

The Court found that the trial judge erred when he concluded that the “Landlord’s work” was substantially complete in April 2012. The Court held that the premise renovations were substantially completed in August 2013 and that the trial judge made a palpable and overriding error in his application of the lease to the facts. The trial judge misapprehended the evidence as to when “substantial completion of the Landlord’s work” took place by conflating the “substantial completion” of the premises with “substantial completion” of the work in relation to CFIA requirements as stipulated in the lease. The Court held that even if the premises were ready for occupancy, there was no evidence the premises satisfied CFIA requirements.

The Court held that the lease commenced when the “Landlord’s work” was substantially complete which required the installation of features set out in the lease, and that these features be installed in accordance with CFIA regulations and specifications. There was no evidence the work was done to CFIA standards as of April 2012. The Court held that the parties did not contract for a “lease condition precedent” based on CFIA registration, only that the Landlord’s work be completed “in accordance” with CFIA regulations and specifications. The CFIA compliance was a standard the “Landlord’s work” was required to conform to, not a term or item of the lease. The Court held that CFIA registration went beyond what was necessary to achieve substantial completion. As the premises was CFIA registered in August 2013 and this was the only evidence at trial to indicate compliance with CFIA requirements, the Court held that the lease commenced at the date of registration as the registration indicated the retrofit was “substantially completed.”

(4) Yes.

The Court held that the trial judge’s error regarding the substantial completion date required a new assessment of damages. The “Final Commencement Date” of the lease began in August 2013 when the premises were substantially complete. As the appellants were not required to pay rent for six months following the commencement date and EMSI began paying rent during this time, there was no basis for the respondent’s loss in rental income and the damages were set aside. Additionally, the Court set aside the damages for rent differential between the lease with the appellant and the new lease with EMSI, and realty taxes, utility fees, maintenance fees and the 15% administrative fee for nonpayment from April 2012 to June 2013.

Furthermore, the Court held that the respondent had no claim for damages suffered by a separate corporate entity, even a subsidiary: Meditrust Healthcare Inc. v. Shoppers Drug Mart (2002), 220 D.L.R. (4th) 611 (Ont. C.A.). The respondent did not meet its burden to prove its damages resulting from the settlement with Colliers as there was a lack of cogent evidence so the related damages were set aside by the Court: Martin v. Goldfarb (1998), 41 O.R. (3d) 161 (C.A.).

Regarding the forfeiture of the appellant’s deposit, the parties agreed to deduct the deposit from any damages payable by the defendant, and the Court held that the deposit plus any accumulated interest be deducted from the damages.


Valoris for children and adults of Prescott-Russell v. KR , 2021 ONCA 366

[Rouleau, Benotto and Roberts JJ.A.]

Counsel:

G. Beaulieu, for the appellant KR

S. Langlois, for the respondent Valoris for children and adults of Prescott-Russell

E. Dupuis, for the respondent AC

Keywords: Family Law, Custody and Access, Supervised Visitation, Civil Procedure, Orders, Enforcement, Contempt, Child, Youth and Family Services Act, 2017, ss. 87(8), (9), and 142(3), Carey v. Laiken, 2015 SCC 17, Services for children and adults of Prescott-Russell c. NG (2006), 271 DLR (4th) 750, TG Industries v. Williams, 2001 NSCA 105, Hefkey v. Hefkey, 2013 ONCA 44, Ruffolo v. David, 2019 ONCA 385, Culligan Canada Ltd. v. Fettes, 2010 SKCA 151, Telus Communications Inc. v. Cherubin, [2005] OJ No. 5534 (CS), 884772 Ontario Ltd. (cob Team Consultants) v. SHL Systemhouse Inc. (1993), Jaskhs Enterprises Inc. v. Indus Corp., [2004] OJ No. 4062, Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, Chong v. Donnelly, 2019 ONCA 799

facts:

The appellant appeals a contempt of court order of October 14, 2020, which was made because of a failure to comply with a court order regarding visitation rights. On June 9, 2020, the appellant mother did not bring her child to a meeting meant to be a visitation with the child’s father, supervised by the respondent, a child health care centre. On June 16, the respondent filed a motion for contempt, but when supervised visits resumed for the following four weeks the contempt motion was dropped.

On July 8, 2020, the respondent explained to the appellant that supervision would be gradually reduced, and visitation would begin to take place at the father’s residence. The appellant disagreed and indicated that unless the visits continued to occur at the respondent’s child health care center, she would not send the child. The visits resumed at the respondent’s location and the respondent re-initiated the proceedings to find the appellant in contempt of court. The initial Court Order gave the respondent the discretion to determine when the supervision of visitation would end and the motion judge at the contempt hearing found that the appellant acted deliberately in maintaining that the child would not have unsupervised visits, refusing to support the respondent’s discretion. The appellant was found in contempt and appealed that Order

issues:

(1) Was the appellant in contempt of court?

holding:

Appeal allowed.

reasoning:

(1) No.

Three criteria must be met to find contempt of court; these criteria were not met here and the motion for contempt of court was dismissed.

The three criteria for contempt of court are: the order must state clearly and unequivocally what should or should not be done, the party alleged to have violated the order must have acknowledge of its existence, and the party who disobeys the order must do so willfully and deliberately. All three elements must be established beyond a reasonable doubt.

In the context of a family dispute, the court must also consider the best interests of the child when exercising its discretion with respect to contempt orders. The Order was not sufficiently clear to support a finding of contempt of court and the evidence did not establish beyond a reasonable doubt that the appellant acted willfully and deliberately in violation of the order. Therefore, two of the three criteria were not met.

For there to be contempt of court, the order should clearly specify the behaviour that must or must not be done, with any ambiguity in the order being resolved in favour of the person charged with contempt. Because the order granted the respondent “discretion to withdraw supervision if it no longer considers it necessary”, the order in this case was unclear. It did not impose an obligation on the appellant to support the plan to gradually move towards unsupervised visits, and the record did not support the conclusion that supervised visitation was no longer necessary. Further, nothing in the motion judge’s decision suggested that the court considered options other than a declaration of contempt of court that may be in the best interests of the child.


SHORT CIVIL DECISIONS

Grist v TruGrp Inc., 2021 ONCA 374

[Lauwers, Miller and Nordheimer JJ.A.]

Counsel:

D. Bell and K. Ellins, for the appellants

D. Buntsma, for the respondents

Keywords: Torts, Defamation, Anti-SLAPP, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(8), Veneruzzo v. Storey, 2018 ONCA 688

8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc., 2021 ONCA 371

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

Counsel:

B. Salsberg and B. Bussin, for the appellants

M. Miguna, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Options to Renew, Duty of Good Faith, Remedies, Relief from Forfeiture, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 98

AA v. BB, 2021 ONCA 384

[Lauwers, Brown, Roberts JJ.A]

Counsel:

AA, acting in person

BB, acting in person

CC, acting in person

Keywords: Torts, Intentional Infliction of Emotional Distress, Conspiracy, Defamation, Libel, Slander, Family Law, Crown Wardship, Costs

Nagpal v. IBM Canada Ltd., 2021 ONCA 391

[Doherty, Pepall and Thorburn, JJ.A]

Counsel:

J. Dolman and A. Reid, for the appellants

M. N. Freeman, for the respondent

Keywords: Costs


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 our summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 25, 2021.

Continue Reading

In Cirillo v. Ontario, the Court concluded that this class action claiming redress for the criminal justice system’s failure to hold timely bail hearings for accused persons fell squarely within “core policy” decisions of the government and the Crown was therefore immune from liability in negligence or breach of fiduciary duty. Moreover, while there may have been a viable claim for breach of Charter rights, there was no adequately identifiable class or common issues. A class proceeding was therefore not the preferable procedure to hear that claim.

In Rooplal v Fodor, the Court concluded that the limitation period with respect to actions against insurers for uninsured motorist coverage under section 265 of the Insurance Act is triggered when the claimant’s demand for indemnification is refused by the insurer.

Other topics included anti-SLAPP in a quite personal context that nonetheless was found to be a matter relating to the public interest, summary judgment in respect of the breach of an agreement of purchase and sale of land, stay in favour of arbitration in the condominium context, and the dismissal of a motion for leave to appeal under s. 193 of the Bankruptcy and Insolvency Act in the receivership context

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Mazhar v Farooqi, 2021 ONCA 355

Keywords: Torts, Defamation, 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, United Soils Management Ltd. v. Mohammed, 2019 ONCA 128

Cirillo v Ontario, 2021 ONCA 353

Keywords: Torts, Negligence, Breach Fiduciary Duty, Breach of Charter Rights, Crown Liability, Criminal Justice, Bail Within Reasonable Time, Core Policy Decisions, Duty of Care, Civil Procedure, Class Proceedings, Certification, Identifiable Class, Common Issues, Preferable Procedure, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, subsection 11(4) and (5), Canadian Charter of Rights and Freedoms, Class Proceedings Act, 1992, S.O. 1992, c. 6, Section 5(1), Criminal Code, Rules of Civil Procedure, Rules 21.01, Phaneuf v. Ontario, 2010 ONCA 901, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hinse v. Canada, 2015 SCC 35, Hollick v. Toronto, 2001 SCC 68, Ragoonanan Estate v. Imperial Tobacco (2005), 78 O.R. (3d) 98 (S.C.), Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Thorburn v. British Columbia, 2013 BCCA 480, Dennis v. Ontario Lottery and Gaming Corp., 2013 ONCA 501, Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2016 ONCA 404, Leroux v. Ontario, 2021 ONSC 2269, Francis v. Ontario, 2021 ONCA 197

Spiridakis v Li, 2021 ONCA 359

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Anticipatory Breach, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR. 87, Butera v. Chown, Cairns LLP, 2017 ONCA 783

Hillmount Capital Inc v Pizale, 2021 ONCA 364

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Reviews of Decisions, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Romspen Investment Corporation v. Courtice AutoWreckers Limited, 2017 ONCA 301, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

Rooplal v Fodor, 2021 ONCA 357

Keywords: Torts, Negligence, MVA, Insurance, Unidentified Motorist Coverage, Civil Procedure, Adding Parties, Limitation periods, Insurance Act, R.S.O. 1990, c I.8, s. 265, Uninsured Automobile Coverage, R.R.O. 1990, Reg. 676 (Section 6 of Schedule), Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4 and 5, Longo v. MacLaren Art Centre, 2014 ONCA 526, Apotex Inc. v. Nordion (Canada) Inc., 2019 ONCA 23, July v. Neal (1986), 32 D.L.R. (4th) 463 (Ont. C.A.), Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, leave to appeal refused, [2014] S.C.C.A. No. 143, Chahine and Al-Dahak v. Grybas, 2014 ONSC 4698, Platero v. Pollock, 2015 ONSC 2922, Sukhu v. Bascombe, 2018 ONSC 2878, Johnson v. Wunderlich (1986), 34 D.L.R. (4th) 120 (Ont. C.A.), Hier v. Allstate Insurance Co. of Canada (1988), 51 D.L.R. (4th) 1 (Ont. C.A.), Chambo v. Musseau (1993), 106 D.L.R. (4th) 757 (Ont. C.A.), Morrison v. Barzo, 2018 ONCA 979, Kosanovic v. Wawanesa Mutual Insurance Co. (2004), 237 D.L.R. (4th) 441 (Ont. C.A.), Galego v. Pereira (2005), 207 O.A.C. 384 (Div. Ct.), Bhatt v. Doe, 2018 ONSC 950, Wilkinson v. Braithwaite, 2011 ONSC 2356, Tucker v. Unknown Person, 2015 NLCA 21, leave to appeal refused, [2015] S.C.C.A. No. 250

Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2021 ONCA 360

Keywords: Real Property, Condominiums, Oppression, Contracts, Cost-Sharing, Common Facilities, Civil Procedure, Stay in favour of Arbitration, Fresh Evidence, Costs, Condominium Act, 1998, S.O. 1998, c. 19, s. 132(1), s. 132, ss. 133 and 135, Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(2), TELUS Communications Inc. v. Wellman, 2019 SCC 19, Uber Technologies Inc. v. Heller, 2020 SCC 16, MTCC No. 965 v. MTCC No. 1031 and No. 1056, 2014 ONSC 5362, Deluce Holdings Inc. v. Air Canada (1992), 98 D.L.R. (4th) 509 (Gen. Div.), Palmer v. The Queen, [1980] 1 S.C.R. 759

Short Civil Decisions

Cheng v Sze, 2021 ONCA 346

Keywords: Family Law, Equalization of Net Family Property, Child Support, Civil Procedure, Standard of Review, Evidence, Family Law Act, R.S.O. 1990, c. F.3, ss. 4(3), Child Support Guidelines O. Reg 391/97, s. 19, Hickey v. Hickey, [1999] 2 SCR 518, Jonas v. Pacitto, 2020 ONCA 727, Drygala v. Pauli (2002), 219 D.L.R. (4th) 319 (Ont. C.A.)

Subway Franchise Restaurants of Canada Ltd. v. BMO Life Assurance Company, 2021 ONCA 349

Keywords: Contracts, Real Property, Commercial Leases, Renewal, Duty of Good Faith, CM Callow Inc. v. Zollinger, 2018 ONCA 896, C.M. Callow Inc. v. Zollinger, 2020 SCC 45

C.C. v J.B., 2021 ONCA 363

Keywords: Family Law, Custody and Access, Civil Procedure, Jurisdiction, Forum Non Conveniens, Family Law Act, R.S.O. 1990, c. F.3, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16.1, 3 and 4, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 21 and 72, Family Law Rules, O. Reg. 114/99, Rule 16(12), Lilydale Cooperative Limited v. Meyn Canada Inc., 2019 ONCA 761, Kunuthur v. Govindareddigari, 2018 ONCA 730, Club Resorts Ltd. v. Van Breda, 2012 SCC 17

Walcott v Toronto Transit Commission, 2021 ONCA 358

Keywords: Intellectual Property, Copyright, Civil Procedure, Summary Judgment, Harte-Eichmanis v. Fernandes, 2012 ONCA 266


CIVIL DECISIONS

Mazhar v Farooqi, 2021 ONCA 355

[Juriansz, van Rensburg and Sossin JJ.A.]

Counsel:

M. M, acting in person

N. R. Hasan and C. Di Carlo, for the respondent

Keywords: Torts, Defamation, 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, United Soils Management Ltd. v. Mohammed, 2019 ONCA 128

facts:

The respondent had refused the appellant’s marriage proposals numerous times in the past. After the respondent became engaged to her long-term partner, the appellant sent the respondent a lengthy email detailing his hatred for her and the negative thoughts he had against her and her family. The email prompted the respondent to report her concerns about the appellant to the chair of the Muslim Awards for Excellence (“MAX”), an organization both the appellant and respondent volunteer with. The appellant commenced an action in defamation against the respondent based on the complaint.

The respondent successfully brought a motion to have the action dismissed pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the anti-SLAPP provision). The legislation encourages individuals to express themselves on matters of public interest, to promote broad participation in debates on matters of public interest, to discourage the use of litigation as a means of unduly limiting expression on matters of public interest, and to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

The motion judge found that the respondent met her onus to show the impugned expression related to a matter of public interest under s. 137.1(3), and that the respondent could establish the defence of justification as her comments were substantially true, that the defence of fair comment was established, and that all the elements of the defence of qualified privilege were satisfied.

issues:

(1) Did the motion judge engage in a one-sided consideration of the facts?
(2) Did the motion judge err in his application of the test applicable to motions under s. 137.1 of the Courts of Justice Act?
(3) Did the motion judge err in awarding the respondent full indemnity costs and s. 137.1(9) damages?

holding:

Appeal dismissed.

reasoning:

1. No.
The Court of Appeal does not revisit the findings of fact made by the court below absent palpable and overriding error. In this case, the motion judge’s findings were fully supported by the record. After reviewing the entire record, the Court found the appellant’s persistent and frustrated romantic attachment to the respondent provided the proper context for the motion judge’s decision. A significant finding of fact was that the appellant brought his defamation action in bad faith and for an improper purpose. The motion judge characterized the appellant’s defamation action as a “reprisal”.

2. No.
The Court found that MAX was mistaken to regard the respondent’s expression to its Special Committee as relating to a private and personal matter. MAX had a duty to provide an environment to its volunteers that was free from harassment. As the Supreme Court said at para. 28 of Pointes Protection Association, it is not legally relevant whether the expression is “desirable or deleterious, valuable or vexatious” or “whether it helps or hampers the public interest”, as long as it pertains to a matter of public interest. The making of a complaint of harassment to those in charge of the environment in which it has allegedly occurred is a matter of public interest.

The action had substantial merit as the trial judge found that the respondent’s communications with MAX about the appellant could be found to be defamatory in that they amounted to alleging he had consistently harassed her, gave her concern to fear for her safety, and alleged he was unstable. Under Pointes Protection Association, the appellant would have had to show that none of the defences have a “real prospect of success”. This standard, established after the motion was heard, had no effect on the appeal, as the motion judge found it clear that the defences “would succeed”.

The Court agreed with the motion judge in his finding that the public interest will not be served by allowing a defamation action to proceed that was brought in bad faith for the purpose of punishing a person who had made a good faith complaint of harassment in a common volunteering environment.

3. No.
The motion judge awarded the respondent $10,000 in damages, citing the Court’s decision in United Soils Management Ltd. v. Mohammed, 2019 ONCA 128. This was appropriate where the “action has been brought in bad faith or for an improper motive, such as punishing, silencing or intimidating the defendant rather than any legitimate pursuit of a legal remedy”.

The record before the motion judge provided ample support for his finding that the appellant brought the action in this case in bad faith, with the improper motive of punishing, silencing or intimidating the respondent. The Court found that there was no basis for disagreeing with the motion judge’s characterization of the appellant’s defamation action as a “reprisal” and his award of damages under s. 137.1(9).

Section 137.1(7) creates a presumption that a party who succeeds in having an action dismissed under the section is entitled to full indemnity costs. The motion judge properly applied the presumption and awarded full indemnity costs in a fair and reasonable amount. Costs of the appeal close to the full indemnity amount sought by the respondent were also awarded.


Cirillo v Ontario, 2021 ONCA 353

[Benotto, Rouleau and Thorburn JJ. A.]

Counsel:

K.M Baert, C. Poltak, C. Hatt, S.C. Hutchison and L.M. Taylor, for the appellant

C.A. Wayland, J. Claydon and S.Z. Green, for the respondent

Keywords: Torts, Negligence, Breach Fiduciary Duty, Breach of Charter Rights, Crown Liability, Criminal Justice, Bail Within Reasonable Time, Core Policy Decisions, Duty of Care, Civil Procedure, Class Proceedings, Certification, Identifiable Class, Common Issues, Preferable Procedure, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, subsection 11(4) and (5), Canadian Charter of Rights and Freedoms, Class Proceedings Act, 1992, S.O. 1992, c. 6, Section 5(1), Criminal Code, Rules of Civil Procedure, Rules 21.01, Phaneuf v. Ontario, 2010 ONCA 901, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hinse v. Canada, 2015 SCC 35, Hollick v. Toronto, 2001 SCC 68, Ragoonanan Estate v. Imperial Tobacco (2005), 78 O.R. (3d) 98 (S.C.), Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Thorburn v. British Columbia, 2013 BCCA 480, Dennis v. Ontario Lottery and Gaming Corp., 2013 ONCA 501, Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2016 ONCA 404, Leroux v. Ontario, 2021 ONSC 2269, Francis v. Ontario, 2021 ONCA 197

facts:

The plaintiff/appellant sought to certify a class proceeding claiming redress for the Crown’s failure to hold timely bail hearings for accused persons. The claim was in negligence, breach of fiduciary duty and breach of Charter rights.

The motion judge found that certification should be denied because: (i) the pleadings did not disclose a cause of action in negligence; (ii) it was plain and obvious that the claims based on breach of fiduciary duty had no prospect of success; (iii) the appellant’s claims for breach of Charter rights were not common to class members; and (iv) a class proceeding was not the preferable procedure. The motion judge concluded that underfunding alone cannot create a civil cause of action: Phaneuf v. Ontario, 2010 ONCA 901. The impugned government actions were “core policy decisions”, and therefore the respondent was immune from liability in negligence: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42. The motion judge held that the fiduciary claims were also doomed to fail. Finally, the motion judge concluded that the only possible cause of action pleaded was for breach of Charter rights. However, he concluded that there were no common issues to be certified.

The appellant appealed the motion judge’s certification decision to the Divisional Court. The Divisional Court remitted the question of whether the Crown Liability and Proceedings Act, 2019 (“CLPA”) was a bar to certification of the negligence claims to the motion judge. Relying on his original findings of fact, the motion judge held that the impugned decisions were “core policy decisions” and the CLPA applied to the appellant’s certification motion.

The appellant’s Divisional Court certification appeal and CLPA appeal were heard together.

issues:

(1) Did the motion judge err in finding that the appellant’s claims related to core policy decisions?

(2) Were the criteria in subsection 5(1) of the Class Proceedings Act, 1992 satisfied by the appellant’s Charter claim?

holding:

Appeal dismissed.

reasoning:

(1) No
The Court of Appeal agreed with the motion judge that the appellant’s claims related to “core policy” decisions of the government. The appellant alleged that the respondent had failed to meet the standard of care through failing to provide: (1) adequate transportation; (2) adequate interpretation services; and (3) counsel access to putative class members prior to their arrival at bail court. The Court of Appeal found that the appellant’s claim reflected policy decisions that could not ground an action in tort: R v. Imperial Tobacco, 2011 SCC 42.

The Court found no error with the decision of the motion judge, as the claims against the respondent in the proposed class action related to resource allocation for bail hearings and staffing. The Court held that the claims focused on the role of government wielding its executive authority to determine the allocation and adequacy of resources devoted to the criminal justice system.

The appellant also submitted that the motion judge failed to consider that the operational failures were as a result of bad faith on the part of the government. The Court of Appeal found that the motion judge correctly found that bad faith was not alleged in the pleadings and no particulars were pleaded.

(2) No
To be certified as a class proceeding, the claim must comply with section 5(1) of the Class Proceedings Act, 1992.

The Court of Appeal agreed with the motion judge in that although the Charter claims could satisfy the cause of action criteria, they failed to raise common issues for an identifiable class. A class proceeding was therefore not the preferable procedure.

The subsection 5(1)(b) criterion of the CPA was not met (identifiable class). A class definition must be defined by reference to objective criteria, without reference to the merits of the action: Hollick v. Toronto 2001 SCC 68. The appellant’s putative class included all persons within the class period who did not get a bail hearing within 24 hours “as a result of” certain criteria. A causation criterion is inherently merit-based. The appellant’s claim required a factual determination as to the cause of the delay beyond 24 hours and would have resulted in a class definition that would be based on individual assessments and would be incapable of objective determination.

The common issue criterion in subsection 5(1)(c) was also not met. The Court found that there was no single course of conduct giving rise to the alleged breaches, and that the Charter claims were not capable of common determination: Thorburn v. British Columbia, 2013 BCCA 480.

Finally, given the conclusions above, a class proceeding was not the preferable procedure, thus the criterion in subsection 5(1) (d) of the CPA was not met.


Spiridakis v Li, 2021 ONCA 359

[Juriansz, van Rensburg and Sossin JJ.A.]

Counsel:

V. Leung, and C. Lau, for the appellant

A. Price, and M. Aronoff, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Anticipatory Breach, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR. 87, Butera v. Chown, Cairns LLP, 2017 ONCA 783

facts:

After agreeing to an extended closing date, the appellants advised the respondents that they were unable to close on the purchase of the respondent’s residential property. The respondents’ counsel advised that this was an anticipatory breach. The appellants’ counsel requested a further extension, which the respondents accepted, on proposed modest terms. The appellants did not respond to the modest terms proposed and did not complete the purchase.

The respondents sued the appellants for damages for breach of the agreement of purchase and sale. The appellants defended the action and counterclaimed for the return of their deposit and a declaration that the purchase and sale agreement had expired as of October 30, 2017. They also commenced a third-party action against their real estate agent and lawyer and the parties who had agreed and then failed to complete the purchase of their home. The respondents moved for summary judgment on their claim in the main action and to dismiss the appellants’ counterclaim, and judgment was granted in their favour for $298,847.67.

issues:

(1) Did the motion judge err in concluding that there was no genuine issue requiring a trial with respect to the appellants’ defences of non est factum and the respondents’ failure to tender?
(2) Did the motion judge err in granting “partial summary judgment” in the face of an outstanding third party claim?
(3) Did the motion judge err in the assessment of damages, in particular by concluding that the respondents’ bridge financing costs were foreseeable?
(4) Did the motion judge err in concluding that the respondents took reasonable steps to mitigate their damages?

holding:

Appeal dismissed.

reasoning:

1. No.
The motion judge’s findings and his rejection of the defence of non est factum were entirely supported by the record. The appellants, who had purchased two previous properties, understood they were purchasing the property in question, that there was a financing condition, and that the agreement of purchase and sale would remain binding after they waived that condition.

This was a case of anticipatory breach and in circumstances of anticipatory breach, the innocent party need not go through the meaningless exercise of tendering. When the appellants’ lawyer communicated that they were unable to close on the scheduled date, the respondents’ lawyer correctly identified that communication as an anticipatory breach and the respondents were released thereby from any obligation to tender.

The motion judge’s finding that the appellants manifested an intention not to complete the transaction on October 30 was fully supported by the evidence: their lawyer sent a letter advising that they would be unable to close that day, prompting a response by the respondents’ lawyer that this was an anticipatory breach. If, as the appellants contended, they did not know about some of the lawyers’ correspondence at the time, that was a matter for their third party claim, and did not assist in their defense.

2. No.
Motions for partial summary judgement should be reserved for an issue or issues that may be bifurcated from those in the main action and that may be dealt with expeditiously and readily in a cost effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783 at para. 34. The motion judge undertook the appropriate analysis. He concluded that the respondents’ claims against the third parties were distinct and severable from the issues in the main action. Contrary to the appellants’ argument, the defences are not inextricably intertwined with the claims made in the third party action. There was no risk of an inconsistent finding on the issues in the third party claim.

3. No.
There was no error in the motion judge’s conclusion that there was no genuine issue for trial concerning the amount of the respondents’ damages, or the issue of mitigation. The amount included the minimum monthly payments made by the respondents on two lines of credit they had accessed for bridge financing to complete the purchase of their new home at the end of October 2017 until they managed to sell the property in question in June 2018. There was no error in the motion judge’s conclusion that such costs were objectively foreseeable in the circumstances, where both the appellants and the respondents were purchasing a new home at the same time that they were selling their respective properties.

4. No.
The only evidence the appellants offered on mitigation was a letter of opinion from a real estate agent, which spoke to the market value of the property at the end of October 2017, in March 2018 and in June 2018 when it was finally sold. The motion judge properly considered that the appellants had chosen not to cross-examine the respondents on why the property was listed for so long, when he concluded that mitigation was not a genuine issue for trial.


Hillmount Capital Inc. v Pizale, 2021 ONCA 364

[Strathy C.J.O., Brown and Miller JJ.A.]

Counsel:

J. Spotswood and R. Migicovsky, for the moving parties/appellant

R. Macdonald and T. Prpa, for the receiver

B. Conroy, for the purchasers

T.M. Walman, for the first mortgagee

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Reviews of Decisions, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Romspen Investment Corporation v. Courtice AutoWreckers Limited, 2017 ONCA 301, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

facts:

The appellants owned a partially renovated residential property in Toronto. The respondent is the first mortgagee of the property and applied for an order appointing Zeifman Partners Inc. (the “Receiver”), as receiver of the property. This order was granted by Koehnen J. The property was then sold on an “as is” basis, following an approval order from Conway J. A further administrative order was granted to extend the Receiver’s borrowing authority to $250,000.

The appellants filed a notice of appeal of both the approval and the administrative order. This was followed by two motions. The Receiver moved for orders declaring that the appellants did not have an automatic right of appeal under ss. 193(a)-(d) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 (the “BIA”) and denying them leave to appeal the approval order under the BIA s. 193(e). The appellants brought a motion for a declaration that they had the right to appeal the approval order under either s. 193(c) or 193(e) of the BIA. After the chambers judge ruled that the appellants did not have an automatic right of appeal and that the sale should proceed, the appellants brought an urgent motion to review that decision under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

issues:

(1) Did the chambers judge err in applying the legal principles concerning s. 193(c) of the BIA too narrowly?
(2) Did the chambers judge misapprehend the appellants’ key arguments?
(3) Did the chambers judge err in failing to grant leave to appeal pursuant to s. 193(e) of the BIA?
(4) Was the administrative order extending the Receiver’s borrowing power unreasonable?

holding:

Motion dismissed.

reasoning:

(1) No.
2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225 established that s. 193(c) of the BIA does not apply to orders that (i) that are procedural in nature, (ii) that do not bring into play the value of the debtor’s property or (iii) do not result in a loss. As the Court stated in Romspen Investment Corporation v. Courtice AutoWreckers Limited, 2017 ONCA 301, s. 193(c) of the BIA is to be narrowly construed.

(2) No.
The appellants argued that the chambers judge erred in holding that they did not suffer a loss greater than $10,000 as a result of the approval order. They further argued that the Chambers Judge misapprehended their ground of appeal, which was not based on procedure. Rather, it was based on a failure of the Motion Judge to properly weigh the interests of the creditors and debtor.

The appellants stated that they lost more than $10,000 in equity due to the “as is” sale, as opposed to letting them complete renovations and sell “as completed.” However, the chambers judge clearly understood this argument, but held that it was not relevant to the s. 193(c) analysis. This was because the terms of sale were set in the appointment order of the Receiver, not in the approval order. Therefore, it was the appointment order that gave rise to risk of loss, but it was not contested at the time.

(3) No.
The appellants argued that the chambers judge ought to have granted leave to appeal under s. 193(e) of the BIA. The Court held that the chambers judge properly applied the test from Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282 and gave appropriate deference to the motions judge in concluding that the proposed appeal 1) would have little importance to bankruptcy/insolvency matters beyond the parties, 2) did not raise a serious issue for appeal, and 3) would hinder the receivership and risk losing the sale to the purchasers.

(4) No.
The appellants argued that extending the Receiver’s borrowing power to $250,000 created a loss. However, the purpose of the further borrowing power was to enable the Receiver to complete its efforts to sell the property on an “as is” basis. The increased borrowing power was ancillary to the exercise of the Receiver’s powers under the appointment order and did not result in any further jeopardy of value than that worked by the appointment order. The chambers judge was reasonable in dismissing the appellants’ motion.


Rooplal v Fodor, 2021 ONCA 357

[Rouleau, Benotto and Thorburn JJ.A.]

Counsel:

J.T. Curry, A.H. Kanji, and C. Townsend, for the appellants

R.R. Patterson and N.C. Misir, for the respondent

Keywords: Torts, Negligence, MVA, Insurance, Unidentified Motorist Coverage, Civil Procedure, Adding Parties, Limitation periods, Insurance Act, R.S.O. 1990, c I.8, s. 265, Uninsured Automobile Coverage, R.R.O. 1990, Reg. 676 (Section 6 of Schedule), Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4 and 5, Longo v. MacLaren Art Centre, 2014 ONCA 526, Apotex Inc. v. Nordion (Canada) Inc., 2019 ONCA 23, July v. Neal (1986), 32 D.L.R. (4th) 463 (Ont. C.A.), Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, leave to appeal refused, [2014] S.C.C.A. No. 143, Chahine and Al-Dahak v. Grybas, 2014 ONSC 4698, Platero v. Pollock, 2015 ONSC 2922, Sukhu v. Bascombe, 2018 ONSC 2878, Johnson v. Wunderlich (1986), 34 D.L.R. (4th) 120 (Ont. C.A.), Hier v. Allstate Insurance Co. of Canada (1988), 51 D.L.R. (4th) 1 (Ont. C.A.), Chambo v. Musseau (1993), 106 D.L.R. (4th) 757 (Ont. C.A.), Morrison v. Barzo, 2018 ONCA 979, Kosanovic v. Wawanesa Mutual Insurance Co. (2004), 237 D.L.R. (4th) 441 (Ont. C.A.), Galego v. Pereira (2005), 207 O.A.C. 384 (Div. Ct.), Bhatt v. Doe, 2018 ONSC 950, Wilkinson v. Braithwaite, 2011 ONSC 2356, Tucker v. Unknown Person, 2015 NLCA 21, leave to appeal refused, [2015] S.C.C.A. No. 250

facts:

On May 4, 2012, the respondent, was injured while riding a Toronto Transit Commission (“TTC”) bus when an unidentified motorist cut off the bus, causing the driver to brake suddenly and causing R to be propelled forward and hit her head. The respondent brought a claim against the unidentified motorist, the unidentified owner, the TTC, and the TTC bus driver on March 26, 2014. The respondent also sought a declaration and indemnification from her insurer, Novex, under her Family Protection Coverage which provides coverage for injuries sustained as a result of the actions of unidentified motorists.

On September 11, 2014, Novex served its Statement of Defence and Crossclaim against the TTC and its driver for denying the respondent’s claim for uninsured motorist insurance. On December 10, 2015, Novex’s counsel wrote to the respondent and TTC counsel questioning why TTC Insurance was not yet included as a defendant to the action.

The respondent served her motion to add TTC Insurance as a defendant on May 4, 2017, five years after the accident and three years after she commenced her claim. TTC Insurance opposed the motion on the ground that the limitation period had expired.

The motion judge permitted the claim against TTC Insurance to proceed on the basis that the two-year limitation period for commencing a claim set out in s. 4 of the Limitations Act, 2002 had not expired as, under the criteria set out in s. 5, the respondent had not yet discovered her claim against the insurer. The Divisional Court upheld that decision.

issues:

(1) Is the respondent’s claim against TTC Insurance for unidentified motorist coverage statute barred by sections 4 and 5 of the Limitations Act, 2002?

holding:

Appeal dismissed.

reasoning:

(1) No.
The respondent’s claim against TTC Insurance was not barred by sections 4 and 5 of the Limitations Act, 2002 because her claim will only be discovered once TTC Insurance fails to indemnify the respondent for the damage caused by the unidentified motorist. As the respondent had not made any demand for indemnification, the two-year limitation period had not yet begun, nor had it expired.

Section 5 of the Limitations Act, 2002 provides that a claim is only discovered when the plaintiff knows or ought to know that she has suffered loss or injury by an act or omission of the person against whom the claim is made, and that a proceeding would be appropriate. Here, the respondent discovered her claim against the unidentified motorist on the day of the accident; however, she will only discover her claim against TTC Insurance upon a declaration that the TTC and TTC bus driver were not contributorily negligent for even 1% of her losses. This is because of the 1% rule where if any other defendant is found contributorily negligent for 1% of the plaintiff’s losses, the plaintiff would have no right to declaratory relief or indemnification from TCC Insurance under section 265 of the Insurance Act.

TTC Insurance argued that this analysis of section 5 of the Limitations Act, 2002 brings about a policy concern, as insured parties have control over when to trigger the limitation period by holding off on making a demand for indemnification. The Court disagreed. The Schedule contained in Regulation 676 of Uninsured Automobile Coverage, R.R.O. 1990 requires insured parties who commence legal action to provide a writ of summons to the insurer along with written notice of the claim within thirty days of the accident. Therefore, the insurer is apprised of the claim against uninsured motorists and may take steps to protect its interests, such as by refusing to indemnify a section 265 claimant, and retains control of the commencement of the limitation period.


Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2021 ONCA 360

[Huscroft, Nordheimer and Harvison Young JJ.A.]

Counsel:

A. Sternberg and E. Hives, for the appellants

C.A. Dirks, R. Fielding and R. Davis, for the respondent

Keywords: Real Property, Condominiums, Oppression, Contracts, Cost-Sharing, Common Facilities, Civil Procedure, Stay in favour of Arbitration, Fresh Evidence, Costs, Condominium Act, 1998, S.O. 1998, c. 19, s. 132(1), s. 132, ss. 133 and 135, Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(2), TELUS Communications Inc. v. Wellman, 2019 SCC 19, Uber Technologies Inc. v. Heller, 2020 SCC 16, MTCC No. 965 v. MTCC No. 1031 and No. 1056, 2014 ONSC 5362, Deluce Holdings Inc. v. Air Canada (1992), 98 D.L.R. (4th) 509 (Gen. Div.), Palmer v. The Queen, [1980] 1 S.C.R. 759

facts:

The respondent and appellant condominium corporations entered into a cost-sharing agreement (the “Reciprocal Agreement”) wherein they agreed to contribute to the costs of the operation and maintenance of defined Common Facilities. TSCC 1636, upon its creation, assumed all the appellant’s rights and obligations under the Reciprocal Agreement. The appellant alleged that the respondent owed $362,290.88 for its proportionate share of the costs relating to the use of three units in TSCC 1636.

The respondent commenced an application for various forms of relief. In response to the Notice of Application, the appellant brought a motion to stay the application in favour of arbitration. The motion judge dismissed the appellant’s motion for a stay. The motion judge found that the essence of the claim was the appellant’s allegedly oppressive conduct. The motion judge concluded that while some aspects of the dispute could be handled via arbitration, the core of the application needed to proceed in court in order to be resolved.

issues:

Did the motion judge err in dismissing the appellant’s motion to stay the application in favour of arbitration?
(2) Did the motion judge err in finding that the “pith and substance” of the dispute was the asserted oppression claim?
(3) Can the respondent introduce fresh evidence on appeal?

holding:

Appeal allowed.

reasoning:

Yes.
The Court does not have discretion to refuse to stay claims that are dealt with in an arbitration agreement: TELUS Communications Inc. v. Wellman, 2019 SCC 19. The dispute between the respondent and appellant was covered by the broad language of the arbitration clause, that is, “any dispute that may arise under this Agreement”. The motion judge, therefore, should have stayed that portion of the application instituted by the respondent.

(2) Yes.
The Court found that the core dispute was with respect to the interpretation and application of the Reciprocal Agreement. If the issues relating to the Reciprocal Agreement were ultimately determined in favour of the appellant, there would be little left of the claims advanced by the respondent.

The motion judge erred in his interpretation of the oppression section of the Condominium Act, 1998. The language of subsection 135(1) is permissive, not mandatory. Section 135(1) does not oust the jurisdiction of an arbitrator to consider the same relief, if that relief is part of the dispute in question that properly falls within the terms of the arbitration provision. There was nothing that would preclude an arbitrator from considering the alleged oppressive conduct advanced by the respondent.

(3) No.
The fresh evidence introduced by the respondent did not meet the test for the admission of fresh evidence: Palmer v. The Queen, [1980] 1 S.C.R. 759. None of the fresh evidence was relevant to the issue of the applicability of the arbitration clause, nor could it have affected the result on that issue.


SHORT CIVIL DECISIONS

Cheng v Sze, 2021 ONCA 346

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

Counsel:

R. A. Gosbee, for the appellant

K. H. Nathens and D. Duong, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Child Support, Civil Procedure, Standard of Review, Evidence, Family Law Act, R.S.O. 1990, c. F.3, ss. 4(3), Child Support Guidelines O. Reg 391/97, s. 19, Hickey v. Hickey, [1999] 2 SCR 518, Jonas v. Pacitto, 2020 ONCA 727, Drygala v. Pauli (2002), 219 D.L.R. (4th) 319 (Ont. C.A.)

Subway Franchise Restaurants of Canada Ltd. v. BMO Life Assurance Company, 2021 ONCA 349

[Juriansz, Huscroft and Jamal JJ.A.]

Counsel:

C.J. Cosgriffe and M.T. Dzurman, for the appellant

M. Koczerginski, for the respondents

Keywords: Contracts, Real Property, Commercial Leases, Renewal, Duty of Good Faith, CM Callow Inc. v. Zollinger, 2018 ONCA 896, C.M. Callow Inc. v. Zollinger, 2020 SCC 45

C.C. v J.B., 2021 ONCA 363

[Huscroft, Paciocco and Jamal JJ.A.]

Counsel:

R. Niman and B. Purdon-McLellan, for the appellant

A. Kirschbaum, for the respondent J.B.

K. A. Cooligan, for the respondents P.B. and L.B.

Keywords: Family Law, Custody and Access, Civil Procedure, Jurisdiction, Forum Non Conveniens, Family Law Act, R.S.O. 1990, c. F.3, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16.1, 3 and 4, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 21 and 72, Family Law Rules, O. Reg. 114/99, Rule 16(12), Lilydale Cooperative Limited v. Meyn Canada Inc., 2019 ONCA 761, Kunuthur v. Govindareddigari, 2018 ONCA 730, Club Resorts Ltd. v. Van Breda, 2012 SCC 17

Walcott v Toronto Transit Commission, 2021 ONCA 358

[Strathy C.J.O, Feldman and van Rensburg JJ.A.]

Counsel:

A.T. Walcott, acting in person

J. Lim, for the respondent

Keywords: Intellectual Property, Copyright, Civil Procedure, Summary Judgment, Harte-Eichmanis v. Fernandes, 2012 ONCA 266


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.