BLANEY’S APPEALS: ONTARIO COURT OF APPEAL SUMMARIES (APRIL 29 – MAY 3, 2019)

By John Polyzogopoulos on May 3, 2019

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Good evening.

There were five substantive civil decisions released by the Court of Appeal for Ontario this week.

The most notable was The Catalyst Capital Group Inc. v. VimpelCom Ltd. In perhaps the final installment of the litigation stemming from Catalyst’s attempted purchase of Wind Mobile in 2014, the Court found that Justice Hainey did not err in striking the claims on a pleadings motion on the basis of issue estoppel and abuse of process. Related issues had already been determined by Justice Neubould in a prior action in The Catalyst Capital Group Inc. v Moyse, 2016 ONSC 5271, from which an appeal had been dismissed in 2018 ONCA 283.

In Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), the Court determined that the deemed undertaking does not shield from disclosure to the defendants that names of class members who opted out of the class.

In Canadian National Railway Company v. Crosslink Bridge Corp., the Court upheld the dismissal, by way of summary judgment, of a negligence claim against a real estate lawyer regarding the purchase of land that was subject to an MOE order.

In 2089322 Ontario Corporation v. Des Roches, the Court allowed an appeal to permit a party to challenge the authenticity of a document in a contractual dispute.

Finally and unfortunately for all of us, in Howard v. Attorney General of Canada, the Court determined that those of us who live in Canada are subject to federal and provincial laws, and therefore we had no choice but to file and pay taxes earlier this week.

Have a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

The Catalyst Capital Group Inc. v. VimpelCom Ltd, 2019 ONCA 354

Keywords: Torts, Inducing Breach of Contract, Breach of Confidence, Breach of Contract, Civil Procedure, Striking Pleadings, Abuse of Process, Issue Estoppel, Cause of Action Estoppel, Collateral Attack, Standard of Review, Business Corporations Act, R.S.O. 1990, c. B.16 s. 182, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Angle v. M.N.R., [1975] 2 S.C.R. 248, Stuart v. Bank of Montreal (1909), 41 S.C.R. 516, LaFarge v. B.C. Lightweight Aggregate, [1983] 1 S.C.R. 452, Cadbury Schweppes Inc. v. FBI Foods Ltd., [1999] 1 S.C.R. 142, Grandview v. Doering, [1976] 2 S.C.R. 621, Hoque v. Montreal Trust Co. of Canada, 1997 NSCA 153, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Greenwood Shopping Plaza Ltd. v. Beattie, [1980] 2 S.C.R. 228, The Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283

Canadian National Railway Company v. Crosslink Bridge Corp., 2019 ONCA 349

Keywords: Torts, Solicitor’s Negligence, Real Estate, Civil Procedure, Summary Judgment, Rules of Civil Procedure, Rule 20, Crosslink Bridge Corp. v. Canada National Railway, 2013 ONSC 6540, aff’d 2014 ONCA 247

Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2019 ONCA 344

Keywords: Civil Procedure, Class Proceedings, Class, Opting Out Documentary Discovery, Deemed Underaking, Rules of Civil Procedure, Rules 30.1.01(1) & 31.1.01(3), Class Proceedings Act, 1992, S.O. 1992, c. 6, ss 9, 12, 14 & 27(3), Juman v. Doucette, 2008 SCC 8

Howard v. Attorney General of Canada, 2019 ONCA 351

Keywords: Constitutional Law, Division of Powers, Federal Jurisdiction, Provincial Jurisdiction, Taxation, Right to Liberty, Canadian Charter of Rights and Freedoms, s. 7, Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)

2089322 Ontario Corporation v. Des Roches, 2019 ONCA 355, 2019 ONCA 355

Keywords: Contracts, Enforceability, Civil Procedure, Orders, Setting Aside, Enforcement, Contempt, Evidence, Authenticity, Fresh Evidence, Indian Act, RSC 1985, c I5

Short Civil Decisions

Akeelah v. Chow, 2019 ONCA 343

Keywords: Appeal Book Endorsement

Gefen v. Gaertner, 2019 ONCA 327

Keywords: Costs Endorsement

Heydari v. Ahmadi, 2019 ONCA 338

Keywords: Family Law, Matrimonial Home

El-Khodr v. Lackie, 2019 ONCA 350

Keywords: Contracts, Interpretation, Settlements, Civil Procedure, Orders, Rules of Civil Procedure, Rule 59.06(2)(c)

Lehmann v. Lehmann, 2019 ONCA 357

Keywords: Family Law, Marriage Contracts, Matrimonial Home, Succession Law Reform Act, s.26

ClubLink Corporation ULC v. Oakville (Town), 2019 ONCA 358

Keywords: Civil Procedure, Intervenors

Criminal Decisions

R. v. Graham, 2019 ONCA 347

Keywords: Criminal Law, Sexual Assault, Sexual Assault Causing Bodily Harm, Criminal Code, ss. 276 and 278.1 to 278.9, R. v. Liard, 2015 ONCA 414, R. v. Nelson, 2014 ONCA 853, R. v. Zhao, 2013 ONCA 293, R. v. Grandine, 2017 ONCA 718

R. v. J.N., 2019 ONCA 352

Keywords: Criminal Law, Assault, Sexual Assault, Unlawful Confinement

R. v. Davatgar-Jafarpour, 2019 ONCA 353

Keywords: Criminal Law, Fraud, Conspiracy to Commit Fraud, Uttering a Forged Document, Criminal Code, ss. 368, 380(1), 380.1(1.1), 380.1(1)(a), 380.1(1)(d), 380.1(2), 465(1) and 684, Canada Evidence Act, s. 31.1, Employment Standards Act, 2000, S.O. 2000, c. 41, R. v. Suter, 2018 SCC 34, R. v. Lacasse, 2015 SCC 64, R. v. Cubillan, 2018 ONCA 811, R. v. Khatchatourov, 2014 ONCA 464, R. v. Dobis (2002), 58 O.R. (3d) 536 (C.A.), R. v. Bogart (2003), 61 O.R. (3d) 75 (C.A.), R. v. Drabinsky, 2011 ONCA 582, R. v. Leo-Mensah, 2010 ONCA 139, R. v. Clarke (2004), 189 O.A.C. 331 (C.A.), R. v. Wilson (2003), 174 C.C.C. (3d) 255 (Ont. C.A.), R. v. Solleveld, 2014 ONCA 418, R. v. Coffin, 2006 QCCA 471, R. v. F. (D.G.), 2010 ONCA 27, R. v. Smickle, 2014 ONCA 49, R. v. Inwood (1989), 48 C.C.C. (3d) 173 (Ont. C.A.), R. v. Cheng (1991), 50 O.A.C. 374 (C.A.), R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.)

R. v. Trinchi, 2019 ONCA 356

Keywords: Criminal Law, Voyeurism, Distribution of Intimate Image Without Consent, Criminal Code, ss. 162(1), 191(1), 364(1) and (2), R. v. Jarvis, 2019 SCC 10, R. v. M.E.N, 2014 ONCA 69, R. v. Lebenfish, 2014 ONCJ 130

R. v. K.B., 2019 ONCA 361, 2019 ONCA 361

Keywords: Criminal Law, Sexual Assault, Sexual Interference, R. v. Dinardo, [2008] 1 S.C.R. 788

Ontario Review Board

Horton (Re), 2019 ONCA 348

Keywords: Ontario Review Board, Conditional Discharges

Mann (Re), 2019 ONCA 360

Keywords: Ontario Review Board, Conditional Discharges, Criminal Code, s. 672.54, R. v. C. (M.L.), 2010 ONCA 843

CIVIL DECISIONS

The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354

[Tulloch, Benotto and Huscroft JJ.A.]

Counsel:

J. E. Callaghan, B. Na, M. Karabus, and D. C. Moore, for the appellant

O. Pasparakis and D. Urquhart, for the respondent VimpelCom Ltd.

J. D.G. Douglas, C. R. Sainsbury, and G. Splawski, for the respondent Globalive Capital Inc.

D. S. Murdoch, for the respondent UBS Securities Canada Inc.

M. Barrack, K. Patel, and D. Szirmak, for the respondents Tennenbaum Capital Partners LLC, 64NM Holdings GP LLC, 64NM Holdings LP and LG Capital Investors LLC

L. Lung, for the respondent Serruya Private Equity Inc.

G. R. Hall, for the respondent Novus Wireless Communications Inc.

FACTS:

Wind was owned by VimpelCom Ltd. (“VimpelCom”) and Globalive Capital Inc. (“Globalive”). Catalyst began negotiating with VimpelCom to purchase that interest. The respondent UBS Securities Canada Inc. (“UBS”) advised VimpelCom in these negotiations. Two agreements were reached: Catalyst and VimpelCom negotiated 1) a Confidentiality Agreement providing that the existence and content of their negotiations were confidential, and 2) an Exclusivity Agreement pursuant to which VimpelCom could negotiate only with Catalyst and could not solicit other bids. The negotiations between Catalyst and VimpelCom proved unsuccessful. The exclusivity period under the Exclusivity Agreement expired on August 18, 2014. After the exclusivity period expired, a group of purchasers (the “Consortium”), which included West Face Capital Inc. (“West Face”) successfully purchased VimpelCom’s interest in Wind.

Brandon Moyse (“Moyse”), a junior analyst at Catalyst, left Catalyst and began working for West Face during the course of Catalyst’s negotiations with VimpelCom. He resigned from Catalyst after the signing of the Confidentiality Agreement but before the conclusion of the Exclusivity Agreement. Catalyst commenced an action against Moyse and West Face (the “Moyse Action”) to enforce the non-competition clause in Moyse’s employment contract with Catalyst prior to the failure of Catalyst’s bid to acquire Wind. Following the Consortium’s purchase of VimpelCom’s interest in Wind, Catalyst broadened the scope of the Moyse Action. It amended its statement of claim to allege that Moyse had communicated confidential information to West Face about Catalyst’s acquisition strategy with respect to Wind. Catalyst alleged that West Face used the confidential information it received from Moyse to successfully acquire Wind from VimpelCom. The amendments included a claim for a constructive trust over West Face’s interest in Wind.

Catalyst then opposed a plan of arrangement under s. 182 of the Business Corporations Act, R.S.O. 1990, c. B.16 relating to the Consortium’s subsequent agreement to sell Wind to Shaw because it would release the constructive trust claim. In his decision on the plan of arrangement, Newbould J. made several adverse findings against Catalyst. Following the revelation of Catalyst’s intention to bring a claim for inducing breach of contract, counsel for West Face explicitly invited Catalyst to amend its pleadings in the Moyse Action to include such a claim if Catalyst in fact intended to pursue it. Catalyst declined to do so. Five days before the trial in the Moyse Action was to begin, Catalyst issued its statement of claim against West Face and the other respondents to the current action (the “Current Action”) alleging breach of contract, breach of confidence, conspiracy, and inducing breach of contract.

At the trial of the Moyse Action, Newbould J. found that Catalyst had failed to make out each of the three elements of the breach of confidence claim, that it was Catalyst’s failure to agree to a break fee requested by VimpelCom that caused negotiations to cease, and there was no chance Catalyst could have closed the deal. The Court of Appeal dismissed Catalyst’s appeal in reasons reported at 2018 ONCA 283. The respondents in the Current Action then moved to dismiss Catalyst’s claims. The motion judge released comprehensive reasons dismissing Catalyst’s claim on the basis of issue estoppel, cause of action estoppel, and abuse of process, and struck Catalyst’s claim of breach of contract against Globalive and UBS without leave to amend. Catalyst appealed.

ISSUES:

(1) Did the motion judge err in dismissing the Current Action on the ground of issue estoppel?

(a) Did the motion judge err because Newbould J.’s findings in the Moyse Action were obiter and collateral to his decision?

(b) Did the motion judge err because Newbould J.’s findings were merely overlapping facts and were incidental to Catalyst’s claims in the Current Action?

(d) Did the motion judge err because the exercise of residual discretion favoured not applying issue estoppel?

(2) Did the motion judge err in dismissing the Current Action on the ground of cause of action estoppel?

(3) Did the motion judge err in dismissing the Current Action as an abuse of process?

(4) Did the motion judge err in striking Catalyst’s pleadings of breach of contract against UBS and Globalive without leave to amend?

HOLDING:

Appeal dismissed.

REASONING:

As a preliminary matter, the Court noted that it owed deference to the motion judge’s application of the tests for issue estoppel per Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, at para. 27. This same standard of review applied to the application of the tests for cause of action estoppel and abuse of process.

(1) No. The Court rejected Catalyst’s argument that the motion judge erred in applying issue estoppel. Firstly, the Court reviewed the requirements outlined in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para. 25. The first requirement, that the same questions had been decided, was the only one seriously contested on appeal. The Court stated that different causes of action may have one or more material facts in common. Issue estoppel prevents re-litigation of the material facts that the cause of action in the prior action embraces: Danyluk, at para. 54. However, the question out of which the estoppel arises must be “fundamental to the decision arrived at” in the prior proceedings: Angle v. M.N.R., [1975] 2 S.C.R. 248, at p. 255. Accordingly, the question must be “necessarily bound up” with the determination of the issue in the prior proceeding for issue estoppel to apply: Danyluk, at paras. 24, 54.

(a) No. The Court dismissed Catalyst’s argument that Newbould J’s findings were obiter. Catalyst argued that the central issue in the Moyse Action was whether Moyse passed confidential information to West Face, and since Newbould J. found that Moyse had not, his other findings were collateral. The Court rejected this argument, finding that Catalyst’s submission was premised on the erroneous assumption that the only fundamental issue in the Moyse Action was whether Moyse passed confidential information to West Face. The Court stated that Canadian courts have consistently rejected the argument that a judicial finding is merely dictum or collateral because there was another sufficient basis for the judge’s decision. In Stuart v. Bank of Montreal (1909), 41 S.C.R. 516, the Supreme Court rejected the argument that a judicial finding that is “a distinct and sufficient ground for its decision [is] a mere dictum because there is another ground upon which, standing alone, the case might have been determined”. The Court stated that accepting Catalyst’s argument would lead to absurd consequences, because it would make the applicability of issue estoppel dependent on the order in which a court chooses to address issues in its reasons.

(b) No. The Court dismissed Catalyst’s argument that Newbould J.’s findings were merely overlapping facts such that the same questions were not determined. It was premised on a misunderstanding of what the parties put at issue in the Moyse Action, which was necessarily concerned with the overall conduct of West Face and the other Consortium members. Newbould J. was thus required to analyze whether the conduct of West Face and other Consortium members was consistent with the use of confidential information and whether there was any evidence that the use of confidential information caused Catalyst a detriment. He was entitled to draw inferences from the evidence as to what would likely have happened but for a misuse of confidential information: Cadbury Schweppes Inc. v. FBI Foods Ltd., [1999] 1 S.C.R. 142, at para. 73. Catalyst chose to put at issue not only the Consortium’s entire conduct, but also the reasons why Catalyst failed to acquire Wind and whether misuse of confidential information by the Consortium had anything to do with that failure, and therefore Newbould J. did not overstep his bounds in finding against Catalyst on those issues.

(c) No. The Court rejected Catalyst’s argument that Newbould J.’s findings about why Catalyst failed to acquire Wind would not bar it from gaining a remedy for its claims. Relying on certain statements in Cadbury Schweppes that established that a court has jurisdiction to grant a remedy dictated by the facts of the case rather than strict doctrinal considerations, Catalyst submitted that it might be entitled to equitable remedies such as an accounting of profits even if it suffered no financial loss. However, the jurisprudence was clear that a claimant must prove detriment to establish liability for breach of confidence, inducing breach of contract, and conspiracy: Cement LaFarge v. B.C. Lightweight Aggregate, [1983] 1 S.C.R. 452, at pp. 471-472. There was no contradiction between the requirement to prove detriment and the passages from Cadbury Schweppes that Catalyst pointed to. Accordingly, Newbould J.’s findings would bar Catalyst from establishing the liability of West Face, Globalive, and the US Investors for breach of confidence, inducing breach of contract, and conspiracy.

The Court did not accept that the fact that detriment is not required to establish liability for breach of contract would change its analysis and did not place weight on the availability of alternative remedies because they were not originally pleaded. Instead, Catalyst repeatedly pleaded that breach of confidence and inducement of breach of contract caused it to fail to acquire Wind. This was a precise inconsistency with Newbould J.’s findings. These inconsistencies also led the Court to reject Catalyst’s submission that the fact that it has pleaded different causes of action in the Current Action meant issue estoppel could not apply. Issue estoppel applies precisely when there are different causes of action, as long as those causes of action have a material fact in common: Danyluk, at para. 54. In the present case, the motion judge correctly identified that the need to prove detriment, namely that the respondents’ conduct caused Catalyst to fail to acquire Wind, was a material fact common to the relevant causes of action Catalyst asserted in both actions. Finally, the Court did not accept that issue estoppel could not apply even in the face of Newbould J.’s findings because those findings simply overlapped with the issues in the Current Action and were not fundamental to his decision.

(d) No. The Court rejected Catalyst’s argument that the motion judge erred in not exercising his residual discretion to permit Catalyst’s action to proceed. The court does have residual discretion, but its exercise was more limited in nature in this case because the Moyse Action was a court proceeding, not an administrative proceeding as in Danyluk: Danyluk, at para. 62. The motion judge’s conclusion that Catalyst failed to put its “best foot forward” and was not entitled to a “second bite at the cherry” was reasonable and had to be read in light of the motion judge’s extensive reasons addressing Catalyst’s failure to advance its current claims in the Moyse Action and its attempt to re-litigate Newbould J.’s findings. The Court was not convinced that the application of issue estoppel in these circumstances would work an injustice.

(2) No. The Court found that the motion judge did not err in dismissing the Current Action on the ground of cause of action estoppel. The purpose of cause of action estoppel is to prevent the re-litigation of claims that have already been decided. For cause of action estoppel to apply, the basis of the cause of action and the subsequent action either must have been argued or could have been argued in the prior action if the party in question had exercised reasonable diligence: Grandview v. Doering, [1976] 2 S.C.R. 621, at p. 638. It is also necessary that the cause of action properly belonged to the subject of the prior action and should have been brought forward in that action. Like issue estoppel, cause of action estoppel also requires a final judicial decision, and that the parties to that decision were the same persons or the privies to the parties to the present proceeding.

The Court rejected Catalyst’s argument that cause of action estoppel should not apply because it could not have brought forward its current claims in the Moyse Action. Newbould J., however, found that Catalyst was aware of its claim for inducing breach of contract by March 2015, and that it chose to “lie in the weeds” rather than assert its claim. Catalyst never took steps to amend its pleadings in the Moyse Action to add a claim for inducing breach of contract in the Moyse Action, even though West Face explicitly invited it to do so four months prior to the trial.

The Court then rejected Catalyst’s argument that the possibility that new evidence would be obtained from VimpelCom and UBS regarding the sale of Wind in the Current Action meant that cause of action estoppel should not apply. New evidence is only a basis to re-open litigation if it would “entirely chang[e]” the case and the party could not have reasonably ascertained it through reasonable diligence: Grandview, at pp. 636-637. Even assuming that the new evidence was so important as to entirely change the case, Catalyst could have ascertained this evidence through reasonable diligence in the Moyse Action.

Finally, the Court rejected Catalyst’s argument that it was appropriate for Catalyst to advance its current claims in a new action rather than amending its pleadings in the Moyse Action. The Court determined that the three factors in Hoque v. Montreal Trust Co. of Canada, 1997 NSCA 153 weighed against Catalyst. The Current Action would be a collateral attack on Newbould J.’s trial decision, and the new evidence Catalyst pointed to could have been discovered in the Moyse Action through reasonable diligence. The Court was also not persuaded that the different legal claims Catalyst had advanced in this action barred the operation of cause of action estoppel. The decision in Las Vegas Strip Ltd. v. Toronto (City) (1996), 30 O.R. (3d) 286 (Gen. Div.), which stated that the law does not permit the manipulation of the underlying facts to advance a new legal theory, was analogous and confirmed that cause of action estoppel should apply even though Catalyst advanced distinct legal claims in the Current Action. The motion judge reasonably concluded that these new legal arguments arose from the same set of facts.

(3) No. The motion judge rightly concluded that Catalyst’s Current Action was an abuse of process as against all respondents because the Current Action was an attempt to re-litigate the findings in the Moyse Action. The Court stated that it is well-recognized that the re-litigation of issues that have been before the courts in a previous proceeding will create an abuse of process. As stated by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Catalyst’s claim was abusive both because: (a) it directly overlapped with the issues that were before the court in the Moyse Action; and (b) it could only be successful if the Court rejected the findings made by Newbould J. Moreover, none of the factors the Supreme Court outlined in C.U.P.E. that would permit re-litigation applied in this case.

(4) No. The Court rejected Catalyst’s arguments that the motion judge erred by striking their claims against UBS and Globalive without leave to amend. First, the motion judge correctly concluded that the pleadings did not disclose a reasonable cause of action because they failed to plead privity of contract. A claim for breach of contract must contain sufficient particulars to identify the parties to the contract. Similarly, it was trite law that, subject to certain exceptions that were not applicable in this case, a non-party to a contract cannot be sued for breach of contract: Greenwood Shopping Plaza Ltd. v. Beattie, [1980] 2 S.C.R. 228, at pp. 236-238. As the motion judge found, Catalyst failed to plead that either Globalive or UBS were parties to the Exclusivity Agreement or the Confidentiality Agreement. Secondly, the motion judge’s decision to deny leave to amend was reasonable and entitled to deference.

Canadian National Railway Company v. Crosslink Bridge Corp., 2019 ONCA 349

[Doherty, Paciocco and Zarnett JJ.A.]

Counsel:

G. R. Hall and A. Goldenberg, for the appellants

M. R. Kestenberg and David S. Lipkus, for the third party respondent Philip
Thompson

P. J. Osborne and J. Starck, for the third party respondent McMillan LLP

FACTS:

The corporate appellant retained the corporate respondent in 2007 to provide advice regarding a draft agreement for the purchase of land, with that purchase occurring in 2008. The vendor took a mortgage back as part of the purchase price, with the personal appellant providing a guarantee. The corporate appellant then retained the individual respondents in 2009 to close a transaction involving the same land purchase. In 2012, the corporate appellant defaulted and the vendor sued. The appellants brought an application under s. 197 of the Environmental Protection Act (“EPA”) for an order voiding the sale. They claimed that the vendor had failed, as required by the EPA’s s. 197(1), to provide the appellants with a copy of the Director’s order that had been registered on title. The application judge found that the appellants had received a copy of the Director’s order, and dismissed the application, which decision was upheld on appeal.

The appellants also commenced a third party action, suing the respondents for solicitor’s negligence. The appellants claimed the respondents failed to properly advise of the Director’s order that was registered on title, and failed to advise of the ramifications of that order. The respondents successfully moved for summary judgment. The appellants appealed this decision.

ISSUE:

(1) Did the motion judge err in her application of the principles governing summary judgment and in her understanding of her fact-finding powers, leading her to conclude that there was no genuine issue for trial?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The motion judge properly engaged in the rule 20 analysis by identifying the operative principles and addressing them in the context of this case. In doing so, she identified the essentials of the claim, the appellant’s position, and their ultimate legal burden. All of those considerations properly informed a determination of whether the respondents met their burden. The Court rejected the appellants’ argument that the motion judge misplaced the burden of proof on a summary judgment motion, observing that a single reference to the appellants’ “burden” had to be read in the full context of the motion judge’s remarks.

Nor was there any error in the motion judge’s exercise of her fact-finding powers. She drew reasonable inferences that were available on the evidence. Thus, the findings of fact were well within the range contemplated by rule 20.04(2.1). The Court also rejected the appellants’ submission that the motion judge went beyond the limits of her fact-finding capability by rejecting the uncontradicted evidence of the appellants’ expert. The motion judge considered that evidence and decided it was unhelpful, but she did not declare that evidence inadmissible.

With respect to the corporate respondent, the Court noted that the appellants were aware that the land was contaminated from the outset of negotiations. The Court also noted that in early 2007, a lawyer at the corporate respondent specifically cautioned the appellants that environmental due diligence required further discussion. The lawyer also confirmed that he had not conducted any due diligence. The motion judge found as fact that the lawyer discussed environmental due diligence, including the related encumbrance on title, with the client and that he was instructed to proceed to amend the draft agreement without conducting any due diligence himself. After receiving the lawyer’s input in February 2007, the corporate appellant continued negotiations with the vendor without further input or involvement from the corporate respondent.

The corporate appellant later received documents from the vendor that contained or referred to the Director’s order, but after receiving this material, and without any contact with the corporate respondent, the corporate appellant advised the vendor that it had approved the environmental reports. The corporate appellant received similar disclosure later in 2007, but once again declined to advise or consult the corporate respondent. Ultimately, the draft agreement expired without closing. However, the corporate appellant continued to pursue the purchase. In May 2008, without any involvement by the corporate respondent, the corporate appellant entered into an unconditional agreement to purchase the land. That agreement contained the mortgage and guarantee that ultimately provided the basis for the vendor’s lawsuit against the appellants.

Having regard to the motion judge’s factual findings, the Court concluded that the motion judge was justified in finding there was no issue for trial in respect of the claim against the corporate respondent. There was no causal link between anything the corporate respondent did and the closing of the transaction or any loss that flowed from it.

With respect to the personal respondents, the Court observed that the corporate appellant entered into an unconditional agreement to purchase the property in May 2008, but only retained the personal respondents in October 2008. They were retained, in a limited capacity, to assist in closing the transaction, wherein the corporate appellant was taking the property on an “as is” basis. The motion judge found that one of the personal respondents performed a comprehensive title search, which revealed the Director’s order. She raised this issue with the corporate appellant, who expressly told her not to obtain a copy of the order, and to close the transaction. The Court concluded that this finding was consistent with the evidence that the corporate appellant had knowledge of the Director’s order no later than March 2007, had knowledge of the potential contamination problems, and had an opinion from their own expert that those problems would not interfere with developing the property. Accordingly, there was no case to be made against the personal respondents.

Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2019 ONCA 344

[Lauwers, Pardu and Nordheimer JJ.A]

Counsel:

B. van Niejenhuis and F. Schumann, for the appellants

B. Radnoff and A. Sharpe, for the respondents

FACTS:

Two class actions were certified against the appellants for fees paid for certain licenses to hold fundraising events. During the following opt-out period, the appellants engaged in a public campaign in an effort to convince class members to opt-out of the class actions. The respondents brought a motion challenging the propriety of the appellants’ campaign, and the class action judge found that the campaign went over the line and created “undue influence”. Among other things, he ordered that there would be a reconsideration period for class members who opted-out.

During the reconsideration period, and on the consent of the parties, the class action judge made what was described as a protection order preventing the appellants’ counsel from passing along to their clients the number or identity of the opting-out members. He made the order to prevent undue influence during the reconsideration period. After the reconsideration period, the appellants moved to lift the protection order and sought a revised protection order. Alternatively, the respondents sought a declaration that the deemed and/or implied undertaking rule applied to the identities and number of opt-outs. The class action judge granted the appellants’ motion and lifted the protection order. He rejected the respondents’ submissions in support of a modified protection order. He did not make a declaration, either way, about the deemed and/or implied undertaking issue.

The respondents sought leave to appeal to the Divisional Court. The Divisional Court granted leave only on the issue of whether the Case Management Judge erred in law in failing to consider whether the deemed and/or implied undertaking rule applies to information regarding the identities of the opt-outs. On the appeal, the Divisional Court determined that the deemed undertaking in Rule 31.1.01(3) of the Rules of Civil Procedure applied to the names of the opt-outs, and the number of opt-outs, disclosed by respondents’ counsel to appellants’ counsel in the class proceedings. The Divisional Court concluded that the information regarding the opt-outs was information that would be available through the discovery process and there was no proper basis to distinguish the opt-out information, disclosed earlier in the litigation process, from that class of discoverable information.

ISSUES:

(1) Did the Divisional Court err in concluding that, because the members of a class are not parties to the litigation, they are entitled, in some fashion, to maintain their anonymity at least up to the stage where they have to individually prove any claim that they may have?

(2) Did the Divisional Court err in concluding that the opt-out information was equivalent to information properly produced pursuant to the discovery process and thus fell within the scope of the deemed undertaking rule?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes. The Divisional Court erred in coming to this conclusion. The Court accepted that, in the very technical sense, members of a class in a certified class action are not parties to the action. However, once the opt-out period has expired, and a putative class member has not opted-out of the proceeding, they become part of the class of plaintiffs who are advancing a claim against the defendant(s). They have submitted to having their rights in relation to the issues raised in the class action determined by the court. The Court noted on this point that s. 27(3) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”) expressly provides that a judgment on common issues of a class “binds every class member who has not opted out of the class proceeding”.

While class members may technically not be parties to the action, they are very much akin to parties. This understanding that class members have a status akin to parties is also consistent with the fact that the CPA requires, as a condition for certification, that there be a representative plaintiff (or defendant). Class members are not parties in the normal sense because they have no right to participate in the underlying litigation – except with the permission of the court under s. 14 of the CPA. However, the fact that the CPA creates a distinction between “class members” and “parties” does not change the fact that they should be treated as akin to parties when issues affecting their rights arise in the proceeding.

(2) Yes. The Court found that the opt-out information was not, and could not be, properly characterized as being evidence covered by the deemed undertaking set out in Rule 30.1.01(1). The opt-out list was, in essence, statutorily created information. The list was information that was created as a result of the terms of the order upon which the court certifies the class action. As s. 9 of the CPA mandates, any member of the class may opt-out, and the terms and conditions of the opt-out process must be set out in the certification order. Consequently, the opt-out information was not the private information of any party and was all the information that all parties are entitled to have. The core purpose of the deemed undertaking rule is to protect the use to which the compelled production of a party’s private information can be put: Juman v. Doucette, 2008 SCC 8. The opt-out information was not captured by that purpose. Rather, the opt-out information was information that relates to the identities of the class members who have agreed to be bound by the determinations made in the context of the class proceedings.

Underlying this appeal was a concern that the appellants might misuse the opt-out information because of the earlier issues surrounding the opt-out process. To the degree that any such concern might arise, s. 12 of the CPA gives a class action judge all of the authority that he or she needs to address that issue. Section 12 is the proper route to be used to address it and not Rule 31.01.1.

Howard v. Attorney General of Canada, 2019 ONCA 351

[Lauwers, Pardu and Nordheimer JJ.A.]

Counsel:

The appellants, acting in person

N. Arnold, for the respondent

FACTS:

The appellants brought an application for a declaration that they were not subject to federal and provincial laws, including the Income Tax Act. They incorrectly attempted to commence a proceeding by filing a Notice of Constitutional Question, but this was not an originating process. The appellants were ordered to file a Notice of Application, which they did, but they failed to file an affidavit in support of their Notice. They were subsequently ordered to do that as well. In response, the appellants filed what they described as an “Affidavit of Claim”. The matter came on before the application judge for hearing. In dismissing the application, he noted that the affidavit failed to set out any factual foundation for their claim.

ISSUE:

(1) Did the application judge err in concluding that the appellants were subject to federal and provincial laws?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The Court first rejected the appellants’ complaint that they were not given special consideration given that they were self-represented, as the record indicated that they were provided with ample opportunity to file proper material with a proper foundation but failed to do so. Next, the Court reviewed the appellants’ argument that they should be exempted from various pieces of legislation. In essence, the appellants’ position was that, because of the rights guaranteed under the Charter, they had a right to choose whether they would be within the jurisdiction of Canada. Accordingly, they submitted that they were not bound by any statutory obligations unless they so chose.

The appellants asserted that “the liberty interest protected by s.7 must be interpreted broadly and in accordance with the principles and values underlying the Charter as a whole and that it protects an individual’s personal autonomy”, and that “[s]elf-determination is fundamental to personal autonomy.” Accordingly, they argued that the s.7 right to liberty included the right to choose their relationship with the State and to refuse arbitrary designation of their legal status in legislation. Consequently, the appellants’ argued that they were not subject to the provisions of the Income Tax Act, and various other pieces of legislation.

In a related argument, the appellants took particular issue with the lack of a prescribed definition of “resident” in s. 2(1) of the Income Tax Act, arguing that the application judge erroneously concluded that he had the authority to define “residence”. In the appellants’ view, the responsibility and authority to establish to whom a law applies clearly falls to the legislature, and not the judiciary; thus, the application judge had usurped the role of the legislature.

The Court unsurprisingly rejected the appellants’ arguments in their entirety. The Court first noted that the appellants misunderstood the allocation of responsibilities between the judiciary and the legislature. In declining to define the phrase “every person resident in Canada” in the Income Tax Act, the legislature was leaving the interpretation of the Act to the courts.

Lastly, the Court noted that the appellants’ jurisdictional arguments were based on a selective reading of words and phrases in the Charter, several international covenants, and several Supreme Court of Canada decisions, none of which, properly interpreted, supported their radical positions. Accordingly, at least as long as they continued to reside in Canada, the appellants were subject to federal and provincial laws.

2089322 Ontario Corporation v. Des Roches, 2019 ONCA 355

[Doherty, Paciocco and Zarnett JJ.A.]

Counsel:

C. J. Sparling, for the appellant, Luc W. Des Roches and Rezmart Gas
and Tobacco

W. S. Rapoport and N. Macos, for the respondent

Keywords: Contracts, Enforceability, Civil Procedure, Orders, Setting Aside, Enforcement, Contempt, Evidence, Authenticity, Fresh Evidence, Indian Act, RSC 1985, c I5

FACTS:

The parties entered into an agreement which provided that the appellant would operate a convenience store on the respondent’s land. Later, the respondent brought an application for a determination of the parties’ rights, alleging that the appellant was operating without regard to either his obligations or the respondent’s rights. Ultimately, in April 2018, the respondent moved to enforce the agreement and find the appellant in civil contempt for breaching three prior court orders. The motion judge concluded that the appellant was bound by the agreement and was in breach of the agreement. The motion judge made an order declaring that the agreement was enforceable, placing the respondent in complete control of the store, and ordering the appellant to cooperate in the transfer of the business premises to the respondent. The motion judge adjourned the matter until October 2018, at which point the parties would discuss the ultimate relief.

The motion judge also addressed the contempt allegations, finding that the appellant was in contempt of prior orders and that his noncompliance was wilful and deliberate. The motion judge indicated that a short prison sentence would be appropriate, but declined to make any order in respect of the contempt and adjourned that matter as well, indicating that the adjournment would give the appellant a chance to rectify his breach.

On the return of the motion, the respondent sought an order to either wind up the store or to sell it. The appellant, who was represented by counsel at this time, brought a motion asking the court to suspend its determination that the agreement was enforceable pending a forensic examination of the document that the motion judge had previously found to be the joint venture agreement. The appellant proposed to have that document examined by a forensic examiner. The motion judge treated the motion as one brought under rule 59.06(2) for an order setting aside a prior order on the basis of fresh evidence showing that the order was obtained by fraud.

The motion judge found no merit to the suggestion that the agreement had been fraudulently altered and signed. In reaching that conclusion, the motion judge relied on several conclusions; first, the provenance of the document had been established by counsel for the respondent; second, the appellant had not challenged the bona fides of the document at the April proceeding; third, the appellant’s claim of forgery was inconsistent with his earlier positions; fourth, the appellant’s conduct after the date at which the document was signed confirmed that he had acted in accordance with the terms and conditions of the agreement in many respects; and fifth, the appellant’s conduct (most notably his repeated contempt) raised serious concerns about his credibility and good faith. The appellant appealed only regarding the motion judge’s dismissal of his preliminary motion for an opportunity to challenge the bona fides of the document.

ISSUE:

(1) Did the motion judge err in dismissing the appellant’s motion?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes. First, the motion judge mischaracterized the nature of the motion by treating it as one brought under rule 59.06(2). By bringing the motion, the appellant did not suggest that the April order was obtained by fraud. The motion was premised on the contention that the appellant could question the bona fides of the document said to represent the agreement. The April proceeding had determined that issue, but only for the purpose of the operation of the store pending the October proceeding.

The motion judge also made two material errors. First, he indicated that the appellant had advanced a duress defence at the April hearing, which was inconsistent with the claim that the document was forged. Although the appellant, who was self-represented at the April hearing, did indicate that he felt at various times that he had little choice in the course of the negotiations, he never suggested that he signed any document under duress. The appellant’s position in that proceeding was essentially that he believed the negotiations were ongoing, and that a finalized agreement had not been reached.

Second, the motion judge wrongly relied on the fact that the document had been produced by the respondent’s counsel as support for the document’s authenticity. However, the Court noted that the issue was not what respondent’s counsel believed, or where counsel got the document. The issue was whether the document was genuine. The manner in which it came before the court did not assist in determining its genuineness.

Accordingly, the Court concluded that the appellant should have had an opportunity to present his case for challenging the document’s authenticity, but imposed a time limit on the appellant to bring a motion concerning the examination of the document, given that the manner in which the appellant conducted himself gave cause to doubt the bona fides of his positions. The Court noted that if no such motion were brought, the respondent could move for whatever relief it deemed appropriate in the application. With respect to control of the business and its premises, the Court effectively emulated the April order that gave the respondent possession and control.

On a final note, the Court observed that the question of enforceability in light of the Indian Act, which was raised in passing in the appellant’s affidavit for the April hearing, should be fully debated in respect of the appellant’s intended motion to examine the document.

SHORT CIVIL DECISIONS

Akeelah v. Chow, 2019 ONCA 343

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

Counsel:

No one appearing for the appellant

S. Desai, for the respondents

Keywords: Appeal Book Endorsement

Gefen v. Gaertner, 2019 ONCA 327

[van Rensburg, Benotto and Harvison Young JJ.A.]

Counsel:

G. Azeff and Stephanie De Caria, for the moving party, Ronald Rutman, the Estate Trustee During Litigation of the Estate of Elias Gefen

R.B. Moldaver, Q.C., for Henia Gefen

S. Thakker, for Harvey Gefen

A.A. Blumenfeld, for Harry Gefen

Keywords: Costs Endorsement

Heydari v. Ahmadi, 2019 ONCA 346

[Tulloch, Hourigan and Fairburn JJ.A.]

Counsel:

P. Baxi and I. Mirzadeh, for the appellant

M. J. Stangarone and S. Kirby, for the respondent

Keywords: Family Law, Matrimonial Home

El-Khodr v. Lackie, 2019 ONCA 350

[Doherty, Rouleau and Zarnett JJ.A.]

Counsel:

B.A. Percival, Q.C., for the appellants

J. Y. Obagi, for the respondents

Keywords: Contracts, Interpretation, Settlements, Civil Procedure, Orders, Rules of Civil Procedure, Rule 59.06(2)(c)

Lehmann v. Lehmann, 2019 ONCA 357

[Doherty, Rouleau and Brown JJ.A.]

Counsel:

K. H. Nathens, for the appellant

M. van Bodegom and D. Veinot, for the respondent

Keywords: Family Law, Marriage Contracts, Matrimonial Home, Succession Law Reform Act, s.26

ClubLink Corporation ULC v. Oakville (Town), 2019 ONCA 358

[Strathy C.J.O. (Motions Judge)]

Counsel:

S. Chaudhury and C. Senese, for the proposed intervener,
Architectural Conservancy of Ontario Inc.

D. Knoke, for the appellant

C. B. Kuehl and L. A. Woods, for the respondents

Keywords: Civil Procedure, Intervenors

CRIMINAL DECISIONS

R. v. Graham, 2019 ONCA 347

[Doherty, Hourigan and Harvison Young JJ.A.]

Counsel:

J. Wilkinson and B. Badali, for the appellant

M. Lai, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Assault Causing Bodily Harm, Criminal Code, ss. 276 and 278.1 to 278.9, R. v. Liard, 2015 ONCA 414, R. v. Nelson, 2014 ONCA 853, R. v. Zhao, 2013 ONCA 293, R. v. Grandine, 2017 ONCA 718

R. v. J.N., 2019 ONCA 352

[Juriansz, Watt and Harvison Young JJ.A.]

Counsel:

P. Ducharme, for the appellant

S. Horgan, for the respondent

Keywords: Criminal Law, Assault, Sexual Assault, Unlawful Confinement

R. v. Davatgar-Jafarpour, 2019 ONCA 353

[Feldman, Roberts and Fairburn JJ.A.]

Counsel:

M. Davatgar-Jafarpour, acting in person on the conviction appeal

D. Garg, for the respondent/appellant on the sentence appeal

I. Carter, for the respondent on the sentence appeal

Keywords: Criminal Law, Fraud, Conspiracy to Commit Fraud, Uttering a Forged Document, Criminal Code, ss. 368, 380(1), 380.1(1.1), 380.1(1)(a), 380.1(1)(d), 380.1(2), 465(1) and 684, Canada Evidence Act, s. 31.1, Employment Standards Act, 2000, S.O. 2000, c. 41, R. v. Suter, 2018 SCC 34, R. v. Lacasse, 2015 SCC 64, R. v. Cubillan, 2018 ONCA 811, R. v. Khatchatourov, 2014 ONCA 464, R. v. Dobis (2002), 58 O.R. (3d) 536 (C.A.), R. v. Bogart (2003), 61 O.R. (3d) 75 (C.A.), R. v. Drabinsky, 2011 ONCA 582, R. v. Leo-Mensah, 2010 ONCA 139, R. v. Clarke (2004), 189 O.A.C. 331 (C.A.), R. v. Wilson (2003), 174 C.C.C. (3d) 255 (Ont. C.A.), R. v. Solleveld, 2014 ONCA 418, R. v. Coffin, 2006 QCCA 471, R. v. F. (D.G.), 2010 ONCA 27, R. v. Smickle, 2014 ONCA 49, R. v. Inwood (1989), 48 C.C.C. (3d) 173 (Ont. C.A.), R. v. Cheng (1991), 50 O.A.C. 374 (C.A.), R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.)

R. v. Trinchi, 2019 ONCA 356

[Juriansz, Pepall and Lauwers JJ.A.]

Counsel:

M. R. Gourlay, for the appellant

J. Epstein, for the respondent

Keywords: Criminal Law, Voyeurism, Distribution of Intimate Image Without Consent, Criminal Code, ss. 162(1), 191(1), 364(1) and (2), R. v. Jarvis, 2019 SCC 10, R. v. M.E.N, 2014 ONCA 69, R. v. Lebenfish, 2014 ONCJ 130

R. v. K.B., 2019 ONCA 361

[Watt, Pardu and Nordheimer JJ.A.]

Counsel:

I. McCuaig, for the appellant

C. Suter, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Interference, R. v. Dinardo, [2008] 1 S.C.R. 788

ONTARIO REVIEW BOARD

Horton (Re), 2019 ONCA 348

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

Counsel:

The appellant acting in person

M. Davies, as Amicus Curiae

D. Bell, for the Attorney General of Ontario

Keywords: Ontario Review Board, Conditional Discharges

Mann (Re), 2019 ONCA 360

[Watt, Pardu and Nordheimer JJ.A.]

Counsel:

A. Szigeti, for the appellant

M. Goswami, for the respondent, Her Majesty the Queen

J. Blackburn, for the respondent, St. Joseph’s Healthcare Hamilton

Keywords: Ontario Review Board, Conditional Discharges, Criminal Code, s. 672.54, R. v. C. (M.L.), 2010 ONCA 843

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

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Table of Contents

CIVIL DECISIONS

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CRIMINAL DECISIONS

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ONTARIO REVIEW BOARD

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John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email