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Good evening.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of June 10, 2024.

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Congratulations to Blaneys’ very own Jay Skukowski and his team, who were successful in responding to an appeal in an occupier’s liability matter.

In De Rita v. 1266078 Ontario Inc., a mortgage was paid off, but the mortgagee delayed in discharging the mortgage from title to the property, in breach of its obligation to do so. This caused the mortgagor to lose out on an opportunity to refinance the property in order to buy another property. The mortgagor successfully sued for damages arising from the loss of the opportunity to buy the second property. Citing the famous old case we all learn in first year contracts, Hadley v. Baxendale, the Court dismissed the appeal, finding that the loss arising from the secondary transaction was recoverable and not too remote. It was reasonably foreseeable that the failure to discharge a mortgage on a timely basis could harm the mortgagor in this way.

In Bayliss v Burnham, the deceased’s principal assets were his shares in his very successful tobacco exporting business. The beneficiaries of his estate moved for production of financial information by the corporation in order to assist them in determining the value of shares. The corporation opposed the request, but lost at first instance and on appeal.

In Marcellin v. London (Police Services Board), the Court allowed the appeal, finding errors in the motion judge’s dismissal of defamation claims under the anti-SLAPP provisions in s. 137.1 of the Courts of Justice Act. The judge failed to properly assess defences, harm, and malice. The lawsuit, including non-defamation claims, was ordered to proceed.

Intact Insurance Company v. Laporte was about the determination of the actual cash value of a property destroyed by fire for the purpose of determining the amount of indemnity owing by the insurer under a fire policy.

In Vento Motorcycles, Inc. v. United Mexican States, an appeal from a decision in a NAFTA arbitration against Mexico, the Court denied leave to intervene, as the issue appealed from was a fairly narrow evidentiary issue involving the credibility of a witness, whereas the proposed intervener sought to argue about the applicable test for setting aside an arbitral award under the International Commercial Arbitration Act 2017 and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards for unfairness. Granting leave to intervene would significantly expand the scope of the appeal.

Finally, in James Dick Construction Limited v. Courtice Auto Wreckers Limited, the issue was whether it was the landlord or the tenant who bore the risk of fire under the terms of a commercial lease.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Vento Motorcycles, Inc. v. United Mexican States, 2024 ONCA 480

Keywords: International Trade Law, Civil Procedure, International Arbitration, Appeals, Interveners, North American Free Trade Agreement, Investment, Chapter 11, International Commercial Arbitration Act 2017, S.O. 2017, c. 2, Sch. 5, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Rules of Civil Procedure, Rule 13, Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939, All Communications Network of Canada v. Planet Energy Corp., 2023 ONCA 319, Gol Linhas Aereas SA (formerly VRG Linhas Aereas SA) v. MatlinPatterson Global Opportunities Partners (Cayman) II LP and others, 2022 UKPC 21, Dell Computer Corp v. Union des consommateurs, 2007 SCC 34, TELUS Communications Inc. v. Wellman, 2019 SCC 19, Uber Technologies Inc. v. Heller, 2020 SCC 16, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Jones v. Tsige, 106 O.R. (3d) 721 (C.A.)

James Dick Construction Limited v. Courtice Auto Wreckers Limited, 2024 ONCA 476

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Covenants to Insure, Madison Developments Ltd. v. Plan Electric Co. (1997), 36 O.R. (3d) 80 (C.A.), Eaton Company v. Smith et al., [1978] 2 S.C.R. 749, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Royal Host GP Inc. v. 1842259 Ontario Ltd., 2018 ONCA 467, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sanofi Pasteur Limited v. UPS SCS, Inc., 2015 ONCA 88, Capital Sewer Servicing Inc. v. Crosslinx Transit Solutions Constructors, 2022 ONCA 10, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246

Marcellin v. London (Police Service Board), 2024 ONCA 468

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1, Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, Volpe v. Wong-Tam, 2023 ONCA 680, Hansman v. Neufeld, 2023 SCC 14, Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, Mondal v. Kirkconnell, 2023 ONCA 523,  Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, Nanda v. McEwan, 2020 ONCA 431, Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, Zeppa v. Rea, 2023 ONCA 668, Lascaris v. B’nai Brith Canada, 2019 ONCA 163, Levant v. DeMelle, 2022 ONCA 79, Hobbs v. Warner, 2021 BCCA 290, Thorman v. McGraw, 2022 ONCA 851, Rooney v. Galloway, 2024 BCCA 8

De Rita v. 1266078 Ontario Inc., 2024 ONCA 460

Keywords: Contracts, Real Property, Mortgages, Damages, Remoteness, Mitigation, Hadley v. Baxendale (1854), 156 E.R. 145 (Exch. Ct.), Saramia Crescent General Partner Inc. v. Delco Wire and Cable Limited, 2018 ONCA 519, Kienzle v. Stringer (1981), 35 O.R. (2d) 85 (C.A.), Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814

Crete v. Ottawa Community Housing Corporation, 2024 ONCA 459

Keywords: Torts, Negligence, Occupier’s Liability, Contracts, Real Property, Residential Leases, Statutory Interpretation, Civil Procedure, Summary Judgment, Appeals, Jurisdiction, Final or Interlocutory, Standard of Review, Residential Tenancies Act2006, S.O. 2006, c. 17, ss. 4, 20(1), 33,  Maintenance Standards, O Reg 517/06, ss. 7, 26(1), 28, Courts of Justice Act, R.S.O 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, r. 20.04(4), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375, Housen v. Nikolaisen, 2002 SCC 33,  Montgomery v. Van, 2009 ONCA 808

Bayliss v. Burnham, 2024 ONCA 464

Keywords: Wills and Estates, Wills, Validity, Civil Procedure, Discovery, Documents, Non-Parties, Rules of Civil Procedure, r. 30.10, Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39 (C.A.)

Intact Insurance Company v. Laporte, 2024 ONCA 454

Keywords:Contracts, Interpretation, Insurance, Coverage, Property and Casualty, Fire, Indemnity, Actual Cash Value, Arbitration, Civil Procedure, Appeals, Standard of Review, Insurance Act, R.S.O. 1990, c. I.8, s. 128, Desjardins General Insurance Group v. Campbell, 2022 ONCA 128, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Ali v. Peel (Regional Municipality), 2023 ONCA 41, Re Barrett et al. v. Elite Insurance Co. et al., (1987) 59 O.R. (2d) 186 (C.A.), Canadian National Fire Ins. Co. v. Colonsay Hotel Co., [1923] S.C.R. 688, Carter v. Intact Insurance Company, 2016 ONCA 917

Short Civil Decisions

Workman Optometry Professional Corporation, 2024 ONCA 479

Keywords: Contracts, Interpretation, Insurance, Coverage, Business Interruption, COVID-19, Physical Loss or Damage, Civil Procedure, Class Proceedings, Workman Optometry Professional Corporation v. Certas Home and Auto Insurance: 2023 ONSC 3356

Mouralian v. Groleau, 2024 ONCA 485

Keywords: Civil Procedure, Costs, Offers to Settle

GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481

Keywords: Civil Procedure, Parties, Corporations, Representation by Lawyer, Law Society Act, R.S.O. 1990, c. L.8, s. 26.1(1), Rules of Civil Procedure, Rule 15.01(2), Leisure Farm Construction Limited v. Dalew Farms Inc. et.al., 2021 ONSC 105, GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONSC 4143, GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONCA 331

Allen v. Kumar, 2024 ONCA 470

Keywords: Torts, Fraud, Misrepresentation, Breach of Fiduciary Duty, Contracts, Civil Procedure, Appeals, Security for Costs, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 7(5), Rules of Civil Procedure, r. 61.06 (1)(c)

Switzer v. Petrie, 2024 ONCA 474

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment, Marshall v. Meirik, 2021 ONSC 1687

Horvat v. Alam, 2024 ONCA 471

Keywords: Civil Procedure, Representation by Lawyer, Removal of Counsel of Record, Costs, Appeals, Jurisdiction, Final or Interlocutory, Apowitzer v. Ontario, [1995] OJ No 3031, Horvat v. Alam, 2024 ONSC 51

Leonard v. Leonard, 2024 ONCA 461

Keywords: Family Law, Parenting, Conflict of Laws, Jurisdiction, Civil Procedure, Appeals, Extension of Time, Children’s Law Reform Act, R.S.O. 1990, c. C.12, SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913, Machado v. Ontario Hockey Association, 2019 ONCA 210, Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.)

Strutzenberger v. Strutzenberger, 2024 ONCA 455

Keywords: Family Law, Spousal Support, Arrears, Civil Procedure, Evidence, Costs, Strutzenberger v. Struzenberger, 2023 ONCA 755

Sky Homes Corporation v. Mah, 2024 ONCA 463

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Defences, Unconscionability, Damages, Interest, Mitigation, Farej v. Fellows, 2022 ONCA 254


CIVIL DECISIONS

Vento Motorcycles, Inc. v. United Mexican States, 2024 ONCA 480

[Fairburn A.C.J.O.]

Counsel:

A. Terry and M. Seers, for the appellant

V. DeRose, J. Radford, and S. Desjardins, for the respondent

J. Plotkin and C. March, for the proposed intervener

Keywords: International Trade Law, Civil Procedure, International Arbitration, Appeals, Interveners, North American Free Trade Agreement, Investment, Chapter 11, International Commercial Arbitration Act 2017, S.O. 2017, c. 2, Sch. 5, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Rules of Civil Procedure, Rule 13, Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939, All Communications Network of Canada v. Planet Energy Corp., 2023 ONCA 319, Gol Linhas Aereas SA (formerly VRG Linhas Aereas SA) v. MatlinPatterson Global Opportunities Partners (Cayman) II LP and others, 2022 UKPC 21, Dell Computer Corp v. Union des consommateurs, 2007 SCC 34, TELUS Communications Inc. v. Wellman, 2019 SCC 19, Uber Technologies Inc. v. Heller, 2020 SCC 16, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Jones v. Tsige, 106 O.R. (3d) 721 (C.A.)

facts:

Vento Motorcycles Inc. (“Vento”) brought a claim against the United Mexican States (“Mexico”) pursuant to Chapter 11 of the North American Free Trade Agreement (“NAFTA”). The dispute at issue in the arbitration involved Mexico’s denial of NAFTA preferential import tariffs to motorcycles assembled by Vento in the United States and exported to Mexico, which Vento submitted resulted in substantial business losses and the destruction of its business. The Tribunal dismissed Vento’s claim, and the Application Judge declined to set aside the dismissal. Vento appealed. Vento submitted it had been denied procedural fairness by the Tribunal and was unable to present its case because the Tribunal precluded one of Vento’s witnesses from submitting additional evidence or testimony in response to a credibility challenge by Mexico.

The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (“CIPPIC”) provides legal assistance to under-represented organizations and individuals on law and technology issues. It brought a motion for leave to intervene in Vento’s appeal on the issue of what should be the test for procedural unfairness under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Model Law”), which is in force pursuant to the International Commercial Arbitration Act 2017. It submitted that the proper threshold for setting aside an arbitral award under the Model Law should be a “material” procedural fairness violation.

issue:

Should CIPPIC be granted a motion for leave to intervene?

holding:

Motion dismissed.

reasoning:

No. The Court was not satisfied that CIPPIC’s intervention in this case would assist. The Court considered the nature of the case, the issues that arose, and the likelihood that the applicant would make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

The Court was not satisfied that CIPPIC had provided a sufficient link between its expertise and the particular issue upon which it sought to intervene. Unlike CIPPIC’s stated mission, this case did not engage law and technology issues, or involve under-represented organizations, individuals, and consumers whose legal rights might be affected by terms in standard form contracts. Second, the nature of the case did not support CIPPIC’s intervention. No access to justice or constitutional issues were engaged. Third, CIPPIC’s intervention would have created an unjustified risk of expanding the scope of the appeal, increasing cost and complexity, and causing injustice to the immediate parties. The issue on appeal would have gone well beyond the question of whether Vento’s inability to respond to a credibility challenge left it unable to present its case.


James Dick Construction Limited v. Courtice Auto Wreckers Limited, 2024 ONCA 476

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

Counsel:

J. Squire, R. Bell and R. Shoom, for the appellants/respondents

D. A. Zuber and J. B. Tausendfreund, for the respondent/appellant

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Covenants to Insure, Madison Developments Ltd. v. Plan Electric Co. (1997), 36 O.R. (3d) 80 (C.A.), Eaton Company v. Smith et al., [1978] 2 S.C.R. 749, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Royal Host GP Inc. v. 1842259 Ontario Ltd., 2018 ONCA 467, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sanofi Pasteur Limited v. UPS SCS, Inc., 2015 ONCA 88, Capital Sewer Servicing Inc. v. Crosslinx Transit Solutions Constructors, 2022 ONCA 10, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246

facts:

The respondent, Courtice Auto Wreckers Limited (“CAW”), leased two buildings from the appellant, James Dick Construction Limited (“JDC”), which it used to store newsprint for recycling. Under the terms of the lease, CAW had covenanted to insure the contents of the buildings, and JDC had covenanted to insure the buildings themselves. CAW had also covenanted to pay the expenses required to maintain and repair the buildings’ sprinkler systems. There was a dispute as to whether CAW had additionally covenanted to undertake the maintenance of the sprinkler systems.

In July 2009, a pinhole leak developed in the sprinkler system. CAW claimed it had asked JDC to repair the leak but did not receive an answer. CAW employees closed the water valve that controlled the flow of water to the sprinkler heads and attempted to repair the leak. They were unsuccessful. CAW did not notify the fire department that it had disabled the sprinkler system, which it was statutorily obligated to do. A few days later, a fire broke out in one building, destroying it and damaging the second building. The cause of the fire was unknown. JDC brought an action against CAW for breaching the lease by failing to maintain the sprinkler system. It sought damages for the cost of rebuilding the destroyed and damaged buildings. The trial judge dismissed the action.

issues:
  1. Did the trial judge err in interpreting the contract by failing to apply the correct authority?
  2. Did the trial judge err in failing to apply the proper principles of causation?
  3. Did the trial judge err by failing to apply the correct legal test for assessing damages?
holding:

Appeal dismissed.

reasoning:
  1. No. The Court rejected the submission that the trial judge had made a reviewable error in her interpretation of the agreement. When one attended to the twelve paragraphs the trial judge devoted to the interpretation of the clause in the context of the agreement, it was abundantly clear that the trial judge did not approach the interpretation of the contract as though she applied an exclusionary rule. She was attentive to the text of the clause, the broader text of the contract, and the factual context in which the agreement had been made.
  2. and 3. Not Decided. It was not necessary to address the issues raised by JDC on appeal as to whether the trial judge had erred in failing to apply the proper principles of causation and whether the trial judge had erred by failing to apply the correct legal test for assessing damages. It was not the role of the Court on a question of mixed fact and law to redo factual findings. Some of the submissions, such as that the tenant CAW had undertaken to maintain the fire suppression system, contradicted findings of the trial judge that were supported in the record. Others related to provisions of the contract that the trial judge had canvassed and that she had concluded did not displace the inference that the agreement allocated the risk of fire to the landlord JDC.

Marcellin v. London (Police Service Board), 2024 ONCA 468

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

Counsel:

S. Stewart and M. Simon, for the appellant

D. Wallace and S. Miller, for the respondents M. W. and The London Abused Women’s Centre

C. DeMelo, for the respondent J.Y.

A. Frauts and A. Cameron, for the respondent ANOVA

C. Patterson, for the respondent K.W.

Keywords:

Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1, Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, Volpe v. Wong-Tam, 2023 ONCA 680, Hansman v. Neufeld, 2023 SCC 14, Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, Mondal v. Kirkconnell, 2023 ONCA 523,  Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, Nanda v. McEwan, 2020 ONCA 431, Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, Zeppa v. Rea, 2023 ONCA 668, Lascaris v. B’nai Brith Canada, 2019 ONCA 163, Levant v. DeMelle, 2022 ONCA 79, Hobbs v. Warner, 2021 BCCA 290, Thorman v. McGraw, 2022 ONCA 851, Rooney v. Galloway, 2024 BCCA 8

facts:

The appellant, M.M., commenced an action against the personal respondents, which included his former spouse (Dr. Y) and two former employees of not-for-profit organizations (M.W. & K.W.), for damages alleging harm to his reputation and other injuries. The organizations (London Abused Women’s Centre and ANOVA) were also sued and are respondents in the appeal.

The appellant contended that he was subjected to a deliberate campaign for several months that injured his reputation and interfered with ongoing family law proceedings. The respondents moved to dismiss the action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, commonly known as the anti-SLAPP provision. For the purposes of the s. 137.1 motion, the Court focused on four defamatory “expressions” within the meaning of the anti-SLAPP provisions.

The first incident took place on April 26, 2018. M. W. and K.W. falsely told the appellant’s supervisor that he had assaulted Dr. Y and was pursuing family law proceedings as ongoing abuse, escalating to physical violence. The second impugned expression occurred in August 2018 when Dr. Y filed a complaint leading to the appellant’s arrest on assault charges, claiming past abuse and involving M. W. and K.W. as witnesses. The third set of impugned expressions was by M.W. in the days following the appellant’s arrest. M.W.  emailed the appellant’s supervisor about the assault charges and requested the appellant’s removal from specific initiatives. She criticized the public comments, tweeted about the charges with the appellant’s photo, and posted related content. The fourth alleged defamatory expression was in letters and emails marked “confidential.” Dr. Y sent letters and emails to various officials detailing the alleged abuse and referencing the criminal charges, aiming to mobilize support against the appellant. Subsequently, the appellant was terminated from his employment from the city.

The motion judge concluded that the appellant’s defamation claims had substantial merit. However, the judge found insufficient evidence to support valid defences, except for the letters and emails sent by Dr. Y, which were protected by qualified privilege. Notwithstanding the lack of valid defences to the defamation claims, weighing the public interest, the motion judge ultimately determined that protecting expressions on matters of public interest outweighed the interest in allowing the lawsuit to proceed. The judge characterized the lawsuit as vengeful and aimed at silencing the respondents. The motion judge dismissed the action and awarded full indemnity costs against the appellant and damages in favour of Dr. Y.

issues:
  1. In considering whether the plaintiff discharged his burden under s. 137.1(4)(a)(ii), did the motion judge err in failing to find that there were grounds to believe that the respondents had no valid defence to any of the impugned expressions?
  2. In considering whether the plaintiff discharged his burden under s. 137.1(4)(b), did the motion judge err: (a) in failing to apply the correct legal principles in assessing the harm to the plaintiff as a result of the impugned expressions; and (b) in failing to consider the individual expressions themselves and the motives and malice of the respondents, and in considering irrelevant factors, when weighing the value of the expressions against the harm to the plaintiff if the Action were not permitted to proceed?
  3. Did the motion judge err in dismissing the non-defamation causes of action?
holding:

Appeal allowed.

reasoning:

Reasoning:

1. Yes. The Court held that the motion judge erred in determining that the appellant had not met the burden to show that there was no valid defence to the impugned expressions under s. 137.1(4)(a)(ii).The motion judge’s analysis of the defence of qualified privilege concerning Dr. Y’s police complaint was incomplete, as it did not consider whether the privilege was exceeded or defeated by malice. The Court noted that the timing of Dr. Y’s complaint and letters suggested a motive to gain an advantage in family law proceedings rather than to report crimes, indicating malice sufficient to defeat the qualified privilege defence.

The motion judge also failed to individually assess each of Dr. Y’s letters, overlooking their misleading content and the context suggesting malice. The judge did not sufficiently address the coordination and malice behind them. The evidence supported that the tweets were coordinated to portray the appellant negatively and without a valid defence.

2 (a). Yes. The Court held that the motion judge erred in applying the correct legal principles in assessing the harm to the appellant, as established in Park Lawn, at para. 46; Pointes Protection, at paras. 68-72; Bent, at paras 142-62; and Hansman, at paras. 67-68. On the facts, the motion judge failed to properly consider the substantial evidence of harm to the appellant’s reputation, employment, and job prospects, including his affidavit stating that his career and advocacy work were ruined due to the respondents’ actions. The Court held that the motion judge set the bar too high by requiring evidence of past engagements and income. By their nature, the impugned expressions were harmful and defamatory, as they accused the appellant of severe misconduct and criminal actions, likely causing significant reputational harm. The motion judge also erred in his approach to special damages by prematurely concluding that the defamatory statements did not cause the appellant’s job loss and that he had mitigated his damages by finding another job. This conclusion was based on preliminary, incomplete, and untested evidence. The motion judge ignored evidence of the appellant’s extended unemployment and the significant impact on his career prospects.

2 (b). Yes. The Court held that the motion judge erred in evaluating motive and malice. The motion judge failed to assess the value of the specific impugned expressions, focusing instead on the general public interest in discussing domestic violence. The motion judge did not consider the respondents’ motives, the quality of the expressions, or evidence of malice, which are critical to assessing the public interest in protecting those expressions, as established in Pointes Protection, at paras. 74-77; Hansman, at para. 79; and Thorman, at para. 30. Additionally, the motion judge incorrectly assessed the appellant’s harm, not giving enough weight to the evidence of employment and reputational damage. The motion judge’s focus on irrelevant factors, such as the broad scope of the appellant’s lawsuit and his criticism of the litigation strategy, further detracted from the proper weighing analysis. The Court held that the appellant demonstrated that his harm was serious enough to justify the action, outweighing the public interest in protecting the respondents’ expressions.

3. Yes. The Court found that the motion judge wrongly dismissed the non-defamation claims. Due to errors in the motion judge’s handling of the defamation claims, the entire action should proceed. The court emphasized that an anti-SLAPP motion is not the proper stage to assess the merits of each individual cause of action: Buttar at para. 57. Its purpose is solely to identify and dismiss SLAPPs, not to serve as a pleading or summary judgment motion: Pointes Protection, at para. 52; Galloway, at para. 162. Consequently, the Court held that it was inappropriate to determine the merits of the non-defamation claims at this stage.


De Rita v. 1266078 Ontario Inc., 2024 ONCA 460

[Miller, Zarnett and Thorburn JJ.A.]

Counsel:

N. Jomaa, for the appellant

C. Mackenzie, for the respondent

Keywords: Contracts, Real Property, Mortgages, Damages, Remoteness, Mitigation, Hadley v. Baxendale (1854), 156 E.R. 145 (Exch. Ct.), Saramia Crescent General Partner Inc. v. Delco Wire and Cable Limited, 2018 ONCA 519, Kienzle v. Stringer (1981), 35 O.R. (2d) 85 (C.A.), Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814

facts:

1266078 Ontario Inc. (“126”) appealed a judgment finding it liable to MDR for $150,375 in damages for failing to honour its contractual obligation to discharge in a timely manner a mortgage that 126 held on MDR’s Ouellette Avenue property in Windsor, Ontario. The application judge found that the delay in discharging the mortgage deprived MDR of the opportunity to use the Ouellette property to finance the purchase of a Bruce Avenue property, which he had contracted to buy at an extremely favourable price. By the time MDR obtained a discharge by court order, the Bruce Avenue purchase agreement had lapsed.

issues:

(1) Did the application judge err factually in finding that MDR was entirely reliant on the equity in the Ouellette property to finance the Bruce Avenue purchase?

(2) Did the application judge err by not deeming the loss arising from the incomplete Bruce Avenue purchase as too remote and thus unrecoverable?

(3) Did the application judge err on the subject of mitigation?

(4) Did the application judge err by departing from the date of the breach as the date to assess damages?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court held that on the evidentiary record, it was open to the application judge to conclude that without access to the equity in the Ouellette property, only accessible after 126’s mortgage was discharged, MDR had insufficient funds to complete the Bruce Avenue purchase.

(2) No. The Court disagreed with 126’s argument that a loss on a secondary transaction like the Bruce Avenue purchase was too remote from the mortgage contract breach and failed to satisfy either branch of the Hadley v. Baxendale remoteness test. Recoverable losses fall into two groups: i) losses arising reasonably and naturally from the contractual breach and ii) losses that are “within the reasonable contemplation of the parties at the time of contract.” The Court endorsed the application judge’s holding that parties registering a charge against title to another’s property must foresee the consequences of continuing to encumber title once the charge is spent. 126 and its directing mind were experienced real estate investors and were aware that MDR earned his living buying and selling commercial real estate in Windsor. Accordingly, 126 could reasonably have foreseen that impairing title to the mortgaged property would harm MDR’s business prospects. The Court distinguished Kienzle, cited by 126 for the proposition that losses on secondary transactions (involving land other than the mortgaged land) are unrecoverable. In Kienzle, there was no disclosure that a secondary transaction might arise from the first contemplated transaction, whereas here, 126 was specifically advised that further delay in discharging the mortgage was harming MDR’s other business endeavours. Thus, no unfairness arose from the lower court’s remoteness analysis.

(3) No. 126 submitted that the application judge should have found that MDR failed to mitigate damages by not applying for a compelled discharge sooner. The Court considered this argument meritless, since MDR applied for a court order promptly after giving 126 several opportunities to comply with its discharge obligations.

(4) No. The Court held that the application judge had a principled basis for assessing damages starting from a date other than the date of contractual breach, and that doing so was a valid exercise of her discretion.


Crete v. Ottawa Community Housing Corporation, 2024 ONCA 459

[Huscroft, Coroza and Monahan JJ.A.]

Counsel:

V. Boddy, for the appellant

Jay Skukowski, Ned Bozalo and Tyler Macks for the respondent

Keywords: Torts, Negligence, Occupier’s Liability, Contracts, Real Property, Residential Leases, Statutory Interpretation, Civil Procedure, Summary Judgment, Appeals, Jurisdiction, Final or Interlocutory, Standard of Review, Residential Tenancies Act2006, S.O. 2006, c. 17, ss. 4, 20(1), 33,  Maintenance Standards, O Reg 517/06, ss. 7, 26(1), 28, Courts of Justice Act, R.S.O 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, r. 20.04(4), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375, Housen v. Nikolaisen, 2002 SCC 33,  Montgomery v. Van, 2009 ONCA 808

facts:

The appellant appealed a decision finding that the appellant was  responsible for injuries suffered by D.C. when he slipped and fell on ice on the front step of a townhouse the appellant had leased from the respondent. The motion judge found that the Snow Removal Provision in the lease was not inconsistent with the Residential Tenancies Act2006, and regulations (the “RTA”). Therefore, the Snow Removal Provision was not void pursuant to s. 4 of the RTA, and its effect was to make the appellants responsible for winter maintenance in the area where D.C. fell. The motion judge’s order made a declaration to that effect, but dismissed all other relief sought by the parties on their summary judgment motions.

The motion judge found no inconsistency between the Snow Removal Provision and s. 26(1) of O. Reg. 517/06, enacted under the RTA (the “Regulation”). Nor, in the motion judge’s view, was the Snow Removal Provision inconsistent with s. 20(1) of the RTA, which provides that a landlord is responsible for maintaining a residential complex “in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.” The motion judge found, instead, that s. 33 of the RTA, which makes tenants generally responsible for “ordinary cleanliness of the rental unit,” requires tenants to clear snow and ice from areas used exclusively by them.

issues:

(1) Is the appeal outside the jurisdiction of the court as a result of the trial judge’s order being interlocutory?

(2) Did the motion judge err in finding that the Snow Removal Provision was not inconsistent with the RTA?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court held the trial judge’s order was a final order and was appealable to the Court, in accordance with s. 6(1)(b) of the Courts of Justice Act. The Court agreed that the motion judge’s order expressly decided a legal issue by declaring that the appellants were responsible for the clearing of snow and ice from the front steps of the Rented Premises. The respondents argued that the motion judge’s order would not be binding on the trial judge in this case, since the motion judge did not invoke the power of r. 20.04(4) of the Rules of Civil Procedure. Where it used to be that the court had to invoke this rule, it was not the case for this matter. The order thereby dismissed one of the appellant’s defences to the counterclaim, with binding effect on the trial judge.

(2) No. The motion judge’s interpretation of the RTAinvolved questions of law, which were reviewed on a standard of correctness, as per Housen v. Nikolaisen. The motion judge adopted an unduly narrow interpretation of the scope of s. 20(1) of the RTAby focusing on the landlord’s obligation in that subsection to maintain a residential complex in a “good state of repair”. The Court asserted that the applicable maintenance standards are set out at. s. 26(1) of the Regulation. It follows that s. 20(1) of the RTA does encompass a landlord’s responsibility to clear snow and ice in a residential complex, albeit in accordance with the applicable standards set by the Regulation. According to the Court, the result was that the responsibility to clear snow and ice was not encompassed within the tenant’s obligation for “ordinary cleanliness of the rental unit” under s. 33 of the RTA. The Court found that while the motion judge erred in her interpretation of ss. 20(1) and 33 of the RTA, she correctly found that s. 26(1) the Regulation only requires a landlord to clear snow from exterior common areas in a residential complex, and not areas used exclusively by individual tenants.

The Court also found that the motion judge’s interpretation of the landlord’s responsibility to clear snow and ice in s. 26(1) of the Regulation was consistent with the Court’s decision in Montgomery v. Van.  In Montgomery, the court found that a lease provision requiring a tenant to clear snow from a common area in a residential complex was inconsistent with the landlord’s responsibility under the applicable maintenance regulation to clear snow from “exterior common areas.” The lease provision was therefore found to be void. However, the court clarified that the responsibility for snow clearing only extended to common areas in the residential complex. The motion judge interpreted the Snow Removal Provision as requiring the appellant to clear snow and ice only from areas reserved for their exclusive use. This was a finding of mixed fact and law, reviewable on a standard of palpable and overriding error. The appellant had not identified any basis upon which the Court could interfere with the motion judge’s conclusion.

Finally, the Court held that the Snow Removal Provision was not inconsistent with ss. 7 or 28 of the Regulation. Neither of these provisions were applicable in the circumstances of this case.


Bayliss v. Burnham, 2024 ONCA 464

[Huscroft, Coroza and Monahan JJ.A.]

Counsel:

I. Fischer and L. Kelley, for the appellant Grand River Enterprises Six Nations Ltd.

A. Turner, for the respondents R. B. personally and in her capacity as litigation guardian for E. B., and A. M. personally and in her capacity as litigation guardian for G. H.

Z. Wong, for the respondent M. M.

A. Bloom and J. Karjanmaa, for the respondent B. B. personally and in her capacity as litigation guardian for B. B.

J. Nasseri and G. Vance, for the respondent C. H. personally and in her capacity as litigation guardian for J. H. and J. H.

P. Askew, for the respondent R. B. in his capacity as Estate Trustee

A. Posno, for the non-party J. R. as Estate Trustee of the Estate of K. H.

A. Sivakumaren for the non-party K. A. personally and in her capacity as litigation guardian for J. A.

Keywords: Wills and Estates, Wills, Validity, Civil Procedure, Discovery, Documents, Non-Parties, Rules of Civil Procedure, r. 30.10, Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39 (C.A.)

facts:

The appellant, Grand River Enterprises Six Nations Ltd. (“GRE”) appealed an order for production of documents by a non-party pursuant to Rule 30.10 of the Rules of Civil Procedure. K.H. was a highly successful businessman who co-founded GRE, one of the largest exporters of tobacco products in Canada. K.H. died on January 18, 2021.

A group of the deceased’s adult children, representatives of his minor children, and his former partners (the “Moving Parties”) brought the motion for production. Although GRE was a non-party to the litigation, in the Moving Parties’ submission, production of its financial records was necessary because the GRE shares were the estate’s largest asset. Further, the complexity of the estate’s assets and their value would assist in determining the validity of the deceased’s last will. GRE opposed the motion for production. The motions judge granted the order requested by the Moving Parties. The Judge ordered GRE to produce financial statements, having established a Confidentiality Protocol to ensure that the documents produced would remain confidential. The crux of GRE’s appeal was that the motions judge misapplied the test under r. 30.10 of the Rules of Civil Procedure at both the relevance and fairness stages.

issue:

Did the motions judge misapply the test under Rule 30.10 of the Rules of Civil Procedure, at both the relevance and fairness stages?

holding:

Appeal dismissed.

reasoning:

No, the motions judge did not misapply the test under Rule 30.10 of the Rules of Civil Procedure. The motions judge’s discretionary decision was entitled to deference and there was no basis to interfere with it. The motions judge found that the documents sought were relevant to a material issue in the action and that it would be unfair to require the Moving Parties to proceed to trial without them. In reaching the decision, the motions judge considered the factors relevant to determining a production motion set out in Ontario (Attorney General) v. Stavro.

The motions judge began the analysis by recognizing that the standard for relevance of documents is elevated when they are in the hands of a non-party. At the first stage of the analysis, the motions judge concluded that “[t]he GRE shares are an asset of the Estate and must be valued like any other asset” as the value of the shares would go to “the very heart” of the triable question of whether the deceased’s last will made testamentary sense.

At the second stage of the analysis, the motions judge determined that disclosure was required for fairness to the Moving Parties. The motions judge reasoned that: the trial would inevitably be adjourned if the documents were produced at trial; the information sought could be obtained from no other source; and GRE had a connection to the litigation as the deceased had been referred to as the “face” of the company. In sum, the motions judge found that the Moving Parties had met their burden, concerns about business interests, privacy, and safety, in the Court’s view, were addressed through the Confidentiality Protocol.

GRE also argued that the terms of the motions judge’s order were unfair and overbroad. The Court disagreed, rejecting the submission that the motions judge ignored the potential for violence toward GRE’s personal stakeholders.      


Intact Insurance Company v. Laporte, 2024 ONCA 454

[Paciocco, Nordheimer and Monahan JJ.A]

Counsel:

N. Rodriguez and J. Rucci, for the appellant

A. Bedard and A. Sharpe, for the respondent

Keywords: Contracts, Interpretation, Insurance, Coverage, Property and Casualty, Fire, Indemnity, Actual Cash Value, Arbitration, Civil Procedure, Appeals, Standard of Review, Insurance Act, R.S.O. 1990, c. I.8, s. 128, Desjardins General Insurance Group v. Campbell, 2022 ONCA 128, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Ali v. Peel (Regional Municipality), 2023 ONCA 41, Re Barrett et al. v. Elite Insurance Co. et al., (1987) 59 O.R. (2d) 186 (C.A.), Canadian National Fire Ins. Co. v. Colonsay Hotel Co., [1923] S.C.R. 688, Carter v. Intact Insurance Company, 2016 ONCA 917

facts:

The appellant, JL, operated a military apparel business out of a former rural schoolhouse near a military base. On November 23, 2018, the commercial premises were extensively damaged by fire. JL had a valid insurance policy in place with the respondent, Intact. The policy provided for replacement value coverage in qualifying cases, failing which actual cash value (“ACV”) would be paid. The parties agreed that the replacement value for the buildings was $2.5 million, and that based on prior sales the market value was $265,000. Intact would not commit to paying replacement value coverage, and the process provided for under s. 128 of the Insurance Act was instituted to resolve the amount payable based on the ACV.

The umpire appointed conducted a site visit where he observed the location and structure of the business as well as the damage and the partial repairs that had been effected. Intact proposed an ACV of $390,000 based on an income approach appraisal. JL proposed an ACV of $1,084,000. After some disagreement, the umpire chose JL’s proposal and assigned $1,084,000 as the ACV.

A majority of the Divisional Court found that the record before the umpire lacked the evidence needed to establish an ACV in excess of the market value, thereby offending the indemnity principle by creating a windfall and an arbitrary award and thus, quashed the umpire’s ACV determination.

issues:
  1. Did the Divisional Court give unwarranted priority to market value in assessing ACV?
  2. Was there a foundation before the umpire permitting him to assign the ACV that he did?
  3. Did the umpire’s award offend the indemnity principle?
  4. Was the umpire’s ACV award arbitrary?
holding:

Appeal allowed.

reasoning:
  1. The Court held that the Divisional Court did not apply an appropriate standard of review, and that the umpire’s decision was reasonable and warranted deference. The Court found that although the market value was an important factor to be considered, depending on the circumstances, ACV could exceed market value. Unless its meaning was altered by the policy, “actual value” meant the actual value of the property to the insured at the time of the loss. The brief furnished to the umpire described the unique location as the key to this success. It also described the functionality and utility of the adapted building to the business that affected the monetary value of the premises to JL.
  2. The Court held that there was a foundation before the umpire permitting him to assign the ACV that he did. The court concluded JL had made clear his intention to continue to operate from the business location as he had been doing before the fire. This claim was supported by the fact that he still operated from the partially repaired premises. There had been no information before the umpire that JL had attempted or intended to sell the building and every indication that retaining that business location was worth enough to him to undertake the necessary expenses to keep the business operating. The policy specifically identified depreciated replacement value as a factor for consideration in assessing ACV. It was clear that the umpire did not conflate the two evaluation methods.
  3. The Court held that the umpire’s award did not offend the indemnity principle. It was not disputed that there were no other similar premises available. JL could not have enjoyed the actual value that this premises had been offering him prior to the fire without some repair. There had been no evidentiary basis that the umpire’s ACV assessment was a profit or windfall that would create a moral hazard.
  4. The umpire’s ACV award was not arbitrary. First, s. 128 of the Insurance Act did not call for a scientific identification of value but provided instead for an easy, expeditious, collaborative, and pragmatic dispute resolution mechanism. After his proposed ACV had been rejected, the umpire selected from the two proposed awards, as he had been entitled to do.


SHORT CIVIL DECISIONS

Workman Optometry Professional Corporation v. Certsa Home and Auto Insurance Company, 2024 ONCA 479

[MacPherson, Paciocco, and Wilson JJ.A.]

Counsel:

K. Baert, V. Calina, A. Angle, for the appellants

C. Woodin, J. Blinick, for the respondent Dominion Canada Insurance

C. Flood, N. Henderson, for the respondent Wawanesa

G. Zakaib, E. Vila, R. Ashurov, M. McCann, for the respondents Certain Underwriters

C. Rhone, R. Egit, J. Palef, for the respondents Federated Insurance Canada and Northbridge

K. Thomson, C. Cseh, C Li, for the respondent Continental Casualty Company

S. Libin, E. Adams, for the respondent Certas Home and Auto Insurance

S. Armstrong, D. Rosenbaum, J. Harper, for the respondents Intact Insurance, Novex, and Royal and Sun Alliance

K. Boggs, J. Squire, M. Dunk, for the respondent Gore Mutual

L. Fric, M. Sheeley, C. Barrowman, for the respondent Economical Mutual

G. Zacher, L. Mercer, for the respondents Co-operators and Wynward

T. Donnelly, J. Tam, for respondent Dominion of Canada Insurance

A. Petingill, for respondent SGI Canada

Keywords: Contracts, Interpretation, Insurance, Coverage, Business Interruption, COVID-19, Physical Loss or Damage, Civil Procedure, Class Proceedings, Workman Optometry Professional Corporation v. Certas Home and Auto Insurance: 2023 ONSC 3356

Mouralian v. Groleau, 2024 ONCA 485

[Roberts, Trotter, George JJ.A]

Counsel:

K. Coombs, for the appellant

M. Morden, for the respondeont

Keywords: Civil Procedure, Costs, Offers to Settle

GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A. de C.V. (Andromaco), 2024 ONCA 481

[Huscrot, Grant JJ.A]

Counsel:

K. Drizen, for the moving party

A. Moeser, D. Malone, for the responding party

Keywords: Civil Procedure, Parties, Corporations, Representation by Lawyer, Law Society Act, R.S.O. 1990, c. L.8, s. 26.1(1), Rules of Civil Procedure, Rule 15.01(2), Leisure Farm Construction Limited v. Dalew Farms Inc. et.al., 2021 ONSC 105, GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONSC 4143, GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONCA 331

Allen v. Kumar, 2024 ONCA 470

[MacPherson, Paciocco, Wilson JJ.A]

Counsel:

BK, acting in person

N.Groot, A. Ferguson, for the respondents

Keywords: Torts, Fraud, Misrepresentation, Breach of Fiduciary Duty, Contracts, Civil Procedure, Appeals, Security for Costs, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 7(5), Rules of Civil Procedure, r. 61.06 (1)(c)

Switzer v. Petrie, 2024 ONCA 474

[Miller, Zarnett and Copeland JJ.A.]

Counsel:

R. Refcio and W. Chapman, for the appellants

M. Jantzi, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment, Marshall v. Meirik, 2021 ONSC 1687

Horvat v. Alam, 2024 ONCA 471

[MacPherson, Paciocco and Wilson JJ.A.]

Counsel:

B. Martin and M. Giugaru, for the respondents/moving parties

D. LaFramboise, for the appellant/responding party

Keywords: Civil Procedure, Representation by Lawyer, Removal of Counsel of Record, Costs, Appeals, Jurisdiction, Final or Interlocutory, Apowitzer v. Ontario, [1995] OJ No 3031, Horvat v. Alam, 2024 ONSC 51

Leonard v. Leonard, 2024 ONCA 461

[Miller, Zarnett and Thorburn JJ.A.]

Counsel:

M.B., CD. and D.L., acting in person for the applicant

No one appearing for the responding party L.L.

Keywords: Family Law, Parenting, Conflict of Laws, Jurisdiction, Civil Procedure, Appeals, Extension of Time, Children’s Law Reform Act, R.S.O. 1990, c. C.12, SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913, Machado v. Ontario Hockey Association, 2019 ONCA 210, Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.)

Strutzenberger v. Strutzenberger, 2024 ONCA 455

[Miller, Zarnett and Thorburn JJ.A.]

Counsel:

P.S. acting in person/appellant

No one appearing for respondent

Keywords: Family Law, Spousal Support, Arrears, Civil Procedure, Evidence, Costs, Strutzenberger v. Struzenberger, 2023 ONCA 755

Sky Homes Corporation v. Mah, 2024 ONCA 463

[Miller, Zarnett and Thorburn JJ.A.]

Counsel:

M. Russell, for the appellants

G. Gondosch and G. Borean, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Defences, Unconscionability, Damages, Interest, Mitigation, Farej v. Fellows, 2022 ONCA 254


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 June 3, 2024.

Continue Reading

In RH20 North America Inc. v. Bergmann, the Court upheld the motion judge’s decision striking claims on the basis that they disclosed no reasonable cause of action, and refusing to stay the claim in favour of arbitration. The party moving to stay had taken steps in the action and was therefore found to have waived the arbitration clause.

Farrell v. Riley was a breach of contract case involving the sale of a book of business between a financial adviser and portfolio manager. The Court reviewed the law relating to the intention to create binding legal relations and whether all the essential terms of the contract had been agreed upon.

Other topics covered included the contractual interpretation of a supply agreement involving mining, wrongful dismissal and extension of time to appeal and stay pending appeal in the family law context.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Collins v. Tiveron, 2024 ONCA 447

Keywords: Family Law, Child Support, Civil Procedure, Appeals, Jurisdiction, Joinder, Extension Of Time, Stay Pending Appeal, Courts of Justice Act, R.S.O. 1990, c. C-43 s. 19(1)(a.1), 6(2), 19(4), 7(3), Children’s Law Reform Act, R.S.O. 1990, c. C.12. s. 73(1)(a), Rules of Civil Procedure, rr. 61.06(1), 56.01(1), Denomme v. McArthur, 2013 ONCA 694, D.G. v. A.F., 2014 ONCA 436, Teitler v. Dale, 2021 ONCA 577, Leybourne v. Powell, 2023 ONCA 421, Enbridge Gas Distributions Inc. v Froese, 2013 ONCA 131, Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, Fontaine v. Canada (Attorney General), 2021 ONCA 931, Jadhav v. Jadhav, 2020 ONCA 19; Henderson v. Henderson, 2014 ONCA 571, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Abu-Saud v. Abu-Saud, 2020 ONCA 824

Giacomodonato v. PearTree Securities Inc, 2024 ONCA 437

Keywords: Contracts, Employment, Wrongful Dismissal, Damages, Compensatory Damages, Employment Standards Act, 2000, S.O. 2000, c. 41, Techform Products Ltd. v. Wolda, (2001), 56 O.R. (3d) 1 (C.A.), Holland v. Hostopia Inc., 2015 ONCA 762, Hobbs v. TDI Canada Ltd. (2004), 246 D.L.R. (4th) 43 (Ont. C.A.), Francis v. Canadian Imperial Bank of Commerce (1994), 21 O.R. (3d) 75 (C.A.), Loranger v. Haines (1921), 50 O.L.R. 268 (C.A.), Stott v. Merit Investment Corp. (1988), 63 O.R. (2d) 545 (C.A.), Ronald Elwyn Lister Ltd. v. Dunlop Canada Ltd., [1982] 1 S.C.R. 726, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Algra v. Comrie Estate, 2023 ONCA 811, London Eco-Roof Manufacturing Inc. v. Syson, 2020 ONSC 3101

Kinross Gold Corporation v. Cyanco Company, LLC, 2024 ONCA 441

Keywords: Contracts, Supply Agreements, Interpretation, Commercial Reasonableness, Civil Procedure, Appeals, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

RH20 North America Inc. v. Bergmann, 2024 ONCA 445

Keywords: Contracts, Arbitration Agreements, Torts, Conspiracy, Intentional Interference with Contractual Relations, Intentional Interference with Economic Relations (Unlawful Means Tort), Civil Procedure, Jurisdiction, Arbitrations, Stay, Waiver, Striking Pleadings, No Reasonable Cause of Action, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, s. 9, Model Law on International Commercial Arbitration, art. 8(1), Arbitration Act, R.S.B.C. 1996, c. 55, ss. 15(1), 15(2), Arbitration Act, S.B.C. 2020, c. 2, ss. 7(1), 7(2), Arbitration Act, 1991, S.O. 1991, c. 17, s. 7, Arbitration Act, R.S.A. 2000, c. A-43, s. 7, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Can. T.S. 1986 No. 43, art. II(3), Rules of Civil Procedure, r. 21.01.(1)(b), A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, PMC York Properties Inc. v. Siudak, 2022 ONCA 635, RWDI Air Inc. v. N-SCI Technologies Inc., 2015 ONCA 817, Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41, Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260, ABN Amro Bank Canada v. Krupp Mak Maschinenbau GmbH (1996), 135 D.L.R. (4th) 130 (Ont. Div. Ct.), Fraser v. 4358376 Canada Inc., 2014 ONCA 553, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Conconi Developments Ltd. v. DR4 Developments Ltd., 2014 BCSC 1101, Fathers of Confederation Buildings Trust et al. v. Pigott Construction Co. Ltd. (1974), 44 D.L.R. (3d) 265 (P.E. S.C.), CSI Toronto Car Systems Installation Ltd. v. Pittasoft Co., Ltd., 2021 ONSC 5117

Farrell v. Riley, 2024 ONCA 449

Keywords: Contracts, Intention to Create Binding Legal Relations, Essential Terms, Unjust Enrichment, Damages, Mitigation, Civil Procedure, Appeals, Standard of Review, Housen v. Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53,  Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, Moore v. Sweet, 2018 SCC 52, Bawitko Investments Ltd. v. Kernels Popcorn Limited (1991), 53 O.A.C. 314 (C.A.), Olivieri v. Sherman, 2007 ONCA 491, Alkin Corporation v. 3D Imaging Partners Inc., 2020 ONCA 441, Angus v. CDRW Holdings Ltd., 2023 BCCA 330

Short Civil Decisions

Bogue v. Law Society of Ontario, 2024 ONCA 452

Keywords: Regulated Professions, Lawyers, Discipline, Civil Procedure, Frivolous, Vexatious, Abuse of Process, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), Administration of Justice Act, R.S.O. 1990, c. A.6, s. 4.10, Rules of Civil Procedure, rr. 2.1.01, 2.1.02


CIVIL DECISIONS

Collins v. Tiveron, 2024 ONCA 447

[Paciocco J.A.]

Counsel:

E. C., Acting in Person

K.R., as agent for the Respondent, A.T.

Keywords: Family Law, Child Support, Civil Procedure, Appeals, Jurisdiction, Joinder, Extension Of Time, Stay Pending Appeal, Courts of Justice Act, R.S.O. 1990, c. C-43 s. 19(1)(a.1), 6(2), 19(4), 7(3), Children’s Law Reform Act, R.S.O. 1990, c. C.12. s. 73(1)(a), Rules of Civil Procedure, rr. 61.06(1), 56.01(1), Denomme v. McArthur, 2013 ONCA 694, D.G. v. A.F., 2014 ONCA 436, Teitler v. Dale, 2021 ONCA 577, Leybourne v. Powell, 2023 ONCA 421, Enbridge Gas Distributions Inc. v Froese, 2013 ONCA 131, Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, Fontaine v. Canada (Attorney General), 2021 ONCA 931, Jadhav v. Jadhav, 2020 ONCA 19; Henderson v. Henderson, 2014 ONCA 571, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Abu-Saud v. Abu-Saud, 2020 ONCA 824

facts:

The appellant, Mr. C, filed a Notice of Appeal dated March 21, 2024, of Smith J.’s Interim Child Support Appeal Decision. On March 28, 2024, Mr. C filed a Supplementary Notice of Appeal (Notice of Combined Appeal) dated March 25, 2024, from the Final Parenting Decision, requesting that this appeal be combined with the appeal of the Interim Child Support Appeal Decision. Mr. C also prepared a “Proposed” Notice of Appeal dated May 13, 2024, relating to the proposed Final Parenting Decision appeal. Mr. C initiated two motions.

In the first motion, dated May 6, 2024, Mr. C sought to stay orders made by Baker J. and Smith J. relating to the Interim Child Support Appeal Decision. In the second motion, dated May 14, 2024, Mr. C requested an order extending the time to appeal the Final Parenting Decision made by Baker J., an order combining the two appeals, and an order granting a stay pending appeal of the Final Parenting Decision.

issues:

(1) Should the Court stay the orders made by Baker J. and Smith J. relating to the Interim Child Support Appeal Decision?

(2) Should the Court grant an extension of time to appeal the Final Parenting Decision?

(3) Should the Court combine the two appeals?

(4) Should the Court grant a stay pending appeal of the Final Parenting Decision?

holding:

Motions dismissed.

reasoning:

(1) No. The Court denied the motion requesting a stay of the orders made by Baker J. and Smith J. relating to the Interim Child Support Appeal Decision. The test that governs motions to stay pending appeal is well-established, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, the Court considered and balanced the three-part test developed in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, for interlocutory injunctions:

(1) Whether the appeal raises a serious question to be tried.

(2) Whether the moving party will suffer irreparable harm if the stay is refused.

(3) Whether the balance of convenience favours granting or refusing the stay.

The first factor weighed strongly against Mr. C, given that the jurisdiction of the Court to hear the appeal was doubtful. The second factor also weighed against the requested stay. Finally, Mr. C did not satisfy the Court that the third factor, the balance of convenience, favoured him. The Court proceeded on the basis that the children will benefit from the ordered increase in support payments. The balance of convenience did not advance Mr. C’s case for a stay. The motion for the stay of the orders arising from the Interim Child Support Appeal Decision was denied.

(2) No. The Court denied Mr. C’s request for an extension of time to file a Notice of Appeal of the Final Parenting Decision. In civil litigation, the test for granting motions for extension of time requires a determination of whether an extension of time is in the interests of justice, bearing in mind (1) whether the moving party formed the requisite intention to appeal within the relevant time period, (2) the length of and explanation for the delay, (3) any prejudice to the responding party, and (4) the merits of the proposed appeal: Enbridge Gas Distributions Inc. v Froese, 2013 ONCA 131.

In family law cases affecting the rights of children, the overarching inquiry into whether the extension is in the interests of justice is whether the extension would be in the best interests of the children: Denomme v. McArthur, 2013 ONCA 694, D.G. v. A.F., 2014 ONCA 436, Teitler v. Dale, 2021 ONCA 577, and Leybourne v. Powell, 2023 ONCA 421. The Court denied the motion for extension of time because of concerns arising from the other grounds, beginning with the merits of the proposed appeal. Whatever the merits of underlying legal arguments may be, the appeal from a final family law order made in the Ontario Court of Justice would ordinarily be brought not to the Court, but to the Divisional Court, pursuant to s. 19(1)(a.1) of the Courts of Justice Act, and s. 73(1)(a) of the Children’s Law Reform Act. Mr. C sought to overcome this problem by asking that this appeal be joined with the appeal of the Interim Child Support Appeal Decision pursuant to s. 6(2) of the Courts of Justice Act.

The primary problem with a joinder request was that there were jurisdictional problems with bringing an appeal of the Interim Child Support Appeal Decision to the present Court as well. There was therefore no procedural avenue that should result in this appeal being heard in the Court. An appeal is meritless where the appeal court has no jurisdiction to hear it: see Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208. In addition, the Court found that granting of an extension of time to appeal was not in the best interests of the children, who would benefit from finality. Moreover, Mr. C’s appeal of the Final Parenting Decision had not been filed as required by the rules of the Court.

(3) No. The Court decided not to extend the time to file an appeal of the Final Parenting Order or combine it with the jurisdictionally questionable appeal of the Interim Child Support Appeal Decision.

(4) No. The Final Parenting Order did not impose an externally crafted arrangement on Mr. C. It reflected the agreement proposed and served the rights of the children. A stay of this order, was found not to be in the interests of justice.


 Giacomodonato v. PearTree Securities Inc, 2024 ONCA 437

[Harvison Young, Sossin, and Gomery JJ.A.]

Counsel:

J. Bell, N. Butz and M. Torgov, for the appellant/respondent by cross-appeal

P. Veel, A. Quinn and M. Boljevic, for the respondents/appellants by cross-appeal

Keywords: Contracts, Employment, Wrongful Dismissal, Damages, Compensatory Damages, Employment Standards Act, 2000, S.O. 2000, c. 41, Techform Products Ltd. v. Wolda, (2001), 56 O.R. (3d) 1 (C.A.), Holland v. Hostopia Inc., 2015 ONCA 762, Hobbs v. TDI Canada Ltd. (2004), 246 D.L.R. (4th) 43 (Ont. C.A.), Francis v. Canadian Imperial Bank of Commerce (1994), 21 O.R. (3d) 75 (C.A.), Loranger v. Haines (1921), 50 O.L.R. 268 (C.A.), Stott v. Merit Investment Corp. (1988), 63 O.R. (2d) 545 (C.A.), Ronald Elwyn Lister Ltd. v. Dunlop Canada Ltd., [1982] 1 S.C.R. 726, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Algra v. Comrie Estate, 2023 ONCA 811, London Eco-Roof Manufacturing Inc. v. Syson, 2020 ONSC 3101

facts:

The appellant, DG, appealed the amount of damages he was awarded in a judgment finding that he was wrongfully dismissed by the respondents. DG was awarded compensatory and punitive damages totalling $671,765, including interest, as well as partial indemnity costs of $830,761.75, including disbursements and HST. PearTree cross-appealed to seek to vary the costs award against it.

DG, who is a successful investment banker with expertise in the mining sector, was recruited by PT in early 2016 to serve as President and co-head of banking. The trial judge found that the parties entered into a binding employment contract in April 2016, and subsequently negotiated and agreed to a second employment contract in July 2016. The respondents terminated DG’s employment without cause in January 2018. DG contended that the trial judge erred in calculating wrongful dismissal damages based on the terms of the second contract rather than the first.

issues:

(1) Did the trial judge err in law by calculating the wrongful dismissal damages owed to DG based on the terms in the second contract rather than the first contract?

(2) Should the respondents have been granted leave to appeal the trial judge’s costs award in their cross-appeal?

holding:

Appeal and cross-appeal dismissed.

reasoning:

(1) No. To succeed on this ground of appeal, the appellant needed to satisfy the Court that the trial judge made a series of errors of law and mixed law and fact in finding that the second contract was valid, binding, and enforceable. He did not meet that burden.

The Court found that trial judge did not err in finding that there was fresh consideration for the second contract. He correctly recognized that employers do not have the right to alter a contract unilaterally unless something “new and of benefit” (beyond continued employment) flows to the employee in exchange for their agreement to the amended terms. As the trial judge also correctly observed, however, courts are only concerned with the existence, rather than the adequacy, of consideration. The trial judge found that there was fresh consideration for DG’s agreement to the second contract: a $40,000 payment by PearTree to DG to cover his costs of severing his contract with his previous employer, and an entitlement to two weeks additional paid vacation time. The Court was not persuaded that the trial judge erred in finding that the $40,000 payment formed part of the negotiations for the second contract. Although the trial judge mistakenly stated that PearTree made the payment in 2016 as opposed to 2017, his reasoning was premised primarily on the fact that the parties referenced this payment in discussing the second contract. In any event, the trial judge found that the additional vacation entitlement by itself constituted fresh and more than de minimis consideration. DG cited no adequate authority for his contention that the trial judge was required to conduct a comparative analysis of the overall advantages and disadvantages of the first and second contract in assessing whether there was fresh consideration for the latter. The Court also rejected his suggestion that the trial judge disregarded the power imbalance between the parties.

(2) No. Costs awards are highly discretionary. The Court noted that it does not set aside an award unless it is based on an error in principle or is plainly wrong. The trial judge applied the correct principles and took appropriate factors into account in fixing costs. He made many findings unfavourable to PearTree. He found that PearTree unnecessarily increased the costs of the proceeding, that it did not comply with its discovery obligations in a timely way, and that its counterclaim, including its claim for punitive damages, was “obviously meritless”. The trial judge concluded that, having invited the litigation, PearTree conducted it in “an unforgiving, scorched earth, and bare-knuckle manner”, missing “no opportunity to malign DG”. These findings amply justified the partial indemnity costs award.


Kinross Gold Corporation v. Cyanco Company, LLC, 2024 ONCA 441

[Huscroft, Miller and Favreau JJ.A.]

Counsel:

B. Brooksbank and D.Chu, for the appellants

D. Murdoch, S. Dukesz and E. Tessier, for the respondent

Keywords: Contracts, Supply Agreements, Interpretation, Commercial Reasonableness, Civil Procedure, Appeals, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

facts:

The appellants, KG Corporation, a global gold mining corporation, along with two of its subsidiaries, were in dispute with the respondent, CC LLC, over the supply of sodium cyanide. Sodium cyanide was either delivered in tankers as liquid or solid sodium cyanide. Where a mine received liquid sodium cyanide, it was pumped to the mine’s storage tanks and later diluted. Where a mine received solid sodium cyanide it had to first be dissolved at the mine to a 30 percent solution, and then stored in the mine’s storage tanks.

CC had entered into two contracts with KG. One contract was entered into with KG and the two appellant subsidiary mines for the supply of liquid sodium cyanide to those two mines for as long as they were in operation or a “life of mine” term (the “Liquid Agreement”). The other contract was entered into with KG and certain other mines owned by KG for the supply of solid sodium cyanide for a 5-year term (the “Solid Agreement”).

On May 11, 2020, KG issued a request for proposals for the supply of solid sodium cyanide to all of its active mines, including the two appellant mines. CC objected to this, on the basis that it had a contractual right to provide the sole supply of liquid sodium cyanide for the two appellant mines. KG then brought an application in the Superior Court for a declaration that the Liquid Agreement provided CC with the right to the sole supply of liquid sodium cyanide only, and not solid cyanide. The application was later converted to an action. The trial judge dismissed the action. He concluded that the Liquid Agreement obligated KG to purchase sodium cyanide exclusively from CC for the life of mine term for each of the two appellate mines.

issues:

(1) Did the trial judge err in failing to consider the Liquid Agreement as a whole and to give liquid sodium cyanide a consistent meaning?

(2) Did the trial judge err in failing to interpret the Liquid Agreement in light of surrounding circumstances?

(3) Did the trial judge err in failing to apply the “related contracts” principles of contractual interpretation?

(4) Did the trial judge err in failing to assess commercial reasonableness in an objective manner?

holding:

Appeal dismissed.

reasoning:

Reasoning:

(1) No. On the trial judge’s reading of the Liquid Agreement, “liquid sodium cyanide” indicated sodium cyanide in a solution (as opposed to solid form), regardless of the concentration. The complexity of the contract, specific to the gold mining industry in Nevada, required expert understanding, and the trial judge had access to expert testimony to make factual determinations. As per the principles outlined in Sattva, such interpretations were subject to deferential review by appellate courts unless a palpable and overriding error was demonstrated. Since KG failed to establish such an error, the original interpretation stood.

(2) No. The trial judge clearly had the entirety of the factual matrix in view when interpreting the contract. The trial judge’s reasons were lengthy, detailed, and demonstrated a careful command of the evidence before him, including all the circumstances leading up to the negotiation of the contract.

(3) No. The two contracts were not made between the same corporate entities. While the agreements both involved CC and KG, the other mining entities involved were different. Additionally, the Liquid Agreement contained an “entire agreement” clause that expressly excluded any contemporaneous written agreements and stated that there were no collateral contracts.

(4) No. It was clear from the trial judge’s reasons that he had assessed commercial reasonableness objectively and had considered KG’s perspective on commercial reasonableness. KG was required to identify a palpable and overriding error in the trial judge’s analysis and it had not done so.


RH20 North America Inc. v. Bergmann, 2024 ONCA 445

[Gillese, Brown and Paciocco JJ.A.]]

Counsel:

A. Tardif and J. Plotkin, for the appellant/respondent by way of cross-appeal

A. Stephens and J. Pei, for the respondents/appellant by way of cross-appeal

Keywords: Contracts, Arbitration Agreements, Torts, Conspiracy, Intentional Interference with Contractual Relations, Intentional Interference with Economic Relations (Unlawful Means Tort), Civil Procedure, Jurisdiction, Arbitrations, Stay, Waiver, Striking Pleadings, No Reasonable Cause of Action, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, s. 9, Model Law on International Commercial Arbitration, art. 8(1), Arbitration Act, R.S.B.C. 1996, c. 55, ss. 15(1), 15(2), Arbitration Act, S.B.C. 2020, c. 2, ss. 7(1), 7(2), Arbitration Act, 1991, S.O. 1991, c. 17, s. 7, Arbitration Act, R.S.A. 2000, c. A-43, s. 7, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Can. T.S. 1986 No. 43, art. II(3), Rules of Civil Procedure, r. 21.01.(1)(b), A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, PMC York Properties Inc. v. Siudak, 2022 ONCA 635, RWDI Air Inc. v. N-SCI Technologies Inc., 2015 ONCA 817, Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41, Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260, ABN Amro Bank Canada v. Krupp Mak Maschinenbau GmbH (1996), 135 D.L.R. (4th) 130 (Ont. Div. Ct.), Fraser v. 4358376 Canada Inc., 2014 ONCA 553, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Conconi Developments Ltd. v. DR4 Developments Ltd., 2014 BCSC 1101, Fathers of Confederation Buildings Trust et al. v. Pigott Construction Co. Ltd. (1974), 44 D.L.R. (3d) 265 (P.E. S.C.), CSI Toronto Car Systems Installation Ltd. v. Pittasoft Co., Ltd., 2021 ONSC 5117

facts:

Unit Precast (Breslau) Ltd. (“Unit Precast”) appealed the dismissal of its claims and sought an order dismissing the respondents’ motion to strike its claims (i) for conspiracy and intentional interference with contractual or economic relations and (ii) those asserted personally against L.B., the CEO of Bergmann North America. Click+Clean GmbH (“Click”) advanced a cross-appeal from the dismissal of its stay motion and sought an order staying the action and referring the matter to arbitration.

In the proceedings leading to the appeal, the motion judge was faced with one motion seeking two types of relief. First, the Moving Defendants, who consisted of two groups of the defendants, (a) Bergmann North America Inc., Click+Clean GmbH, and L.B. and (b) M.J.M., L.H.R, and C.F.A.P., sought to strike several claims made by the plaintiffs, RH20 North America Inc. (“RH20”) and Unit Precast. Second, Click sought an order staying the action against it by the plaintiff, RH20, on the basis that the dispute should be referred to arbitration in pursuant to an arbitration agreement between it and RH20.

The motion judge: (1) struck out all claims of the plaintiff, Unit Precast, against all the Moving Defendants, including Click, without leave to amend; (2) struck out RH20’s claim of conspiracy against all defendants, including Click, with leave to amend; (3) struck out RH20’s claims against Lars Bergmann, with leave to amend; (4) ordered that the amended statement of claim of RH20 be delivered within 45 days of the release of the decision or such later date as agreed by the parties; and (5) dismissed Click’s stay motion primarily because the arbitration agreement was incapable of performance within the meaning of art. 8(1) of the Model Law on International Commercial Arbitration (the “Model Law”).

Unit Precast only appealed the striking out of three of its claims: (i) its conspiracy claim, in combination with RH20, against the defendants; (ii) its claims against L.B. and (iii) its claim for intentional interference with contractual relations.

issues:

(1) Did the motion judge err in dismissing three of Unit Precast’s claims against the respondents?

(2) Did the motion judge err in dismissing Click’s request for an order staying the action against it and referring the dispute to arbitration pursuant to s. 9 of the International Commercial Arbitration Act, 2017, and art. 8 of the Model Law?

holding:

Appeal and cross-appeal dismissed.

reasoning:

(1) No. The Court held the motion judge correctly identified the principles to apply when considering whether Unit Precast’s pleading failed to disclose a reasonable cause of action, as well as the constituent elements of the causes of action asserted by Unit Precast against the respondents.

The Court understood that Unit Precast advanced five main grounds of appeal, who primarily asserted that Unit Precast was included in RH20’s business affairs. The Court agreed that the motion judge correctly described the relationship as one where RH20 sub-contracted work to Unit Precast and not an “affiliate.” The Court did not see an error in the conclusion that Unit Precast had not advanced a claim against L.B. in his personal capacity, nor that there could be a claim of interference with contractual relations, given that Unit Precast had not pleaded any existence of any contracts with any third parties. Unit Precast relied on A.I. Enterprises Ltd. v. Bram Enterprises Ltd., which dealt with the tort of unlawful interference with economic relations or causing loss by unlawful means. The Court agreed with the motion judge, however, that the claim was to be dealt with as stated in the statement of claim, namely that the defendants had intentionally interfered with the plaintiffs’ contractual relations. The Court agreed the Plaintiffs’ conspiracy claim should be struck given that the pleading contained no reference to Unit Precast nor did it appear in any of the pleaded particulars of the conspiracy. Finally, the Court saw no error in the motion judge’s exercise of discretion to justify interfering with his decision to decline Unit Precast leave to amend the struck claims.

(2) No. The Court held that the motion judge did not err in refusing to grant Click’s stay request. The Court saw no need to examine whether the motion judge erred in his first and second reasons for denying the stay motion since it agreed with the core conclusion in his third reason. Joining the other Moving Defendants in seeking an order to strike out the plaintiffs’ claims, Click took a step to invoke the jurisdiction of the court which was equivalent to waiving the agreement to arbitrate.

The Court gave four reasons to establish agreement with the motion judge. First, the Court applied the fourth technical requirement from the Supreme Court’s decision in Peace River Hydro Partners v. Petrowest Corp., which described that a party applying for a stay in favour of arbitration does so before taking any “step” in the court proceedings. The Court asserted that parties to an arbitration agreement must abide by a negative obligation not to seek the resolution of disputes subject to an arbitration agreement in domestic courts. Second, art. 8(1) of the Model Law gives effect to that negative obligation of the parties. Third, the motion judge correctly treated Click’s motion to strike certain parts of the plaintiffs’ claims as breaching its negative obligation under the arbitration agreement in the Licence Contract. That breach amounted to a waiver of its right to arbitrate. Fourth, Click’s waiver of its right to arbitrate rendered the arbitration agreement “inoperative”, within the meaning of art. 8(1) of the Model Law, regarding the dispute between the parties.

The Court agreed that the motion to strike that Click joined could not be characterized as a procedural step taken within the confines of the “jurisdictional” motion to stay the court proceeding in favour of arbitration. Click, together with other Moving Defendants, sought to reduce their exposure to liability by asking the court to dismiss part of the plaintiffs’ substantive claims as disclosing, at law, no reasonable cause of action.


Farrell v. Riley, 2024 ONCA 449]

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

Counsel:

S. Moreau and C. Perri, for the appellant

C. Freeman, for the respondent

Keywords: Contracts, Intention to Create Binding Legal Relations, Essential Terms, Unjust Enrichment, Damages, Mitigation, Civil Procedure, Appeals, Standard of Review, Housen v. Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53,  Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, Moore v. Sweet, 2018 SCC 52, Bawitko Investments Ltd. v. Kernels Popcorn Limited (1991), 53 O.A.C. 314 (C.A.), Olivieri v. Sherman, 2007 ONCA 491, Alkin Corporation v. 3D Imaging Partners Inc., 2020 ONCA 441, Angus v. CDRW Holdings Ltd., 2023 BCCA 330

facts:

Mr. F joined an investment firm and brought with him a portfolio of clients. Mr. F was an Investment Advisor, which contrasted with a Portfolio Manager (“PM”). Mr. F agreed that his clients would have their investments handled by a PM. Mr. R became the PM for these clients. In May 2017, Mr. R began to contact the clients of Mr. F, without informing Mr. F. Mr. F interpreted this as an attempt to take over the book of business. The parties met to discuss the situation, and several emails were exchanged in which Mr. R raised proposals to acquire Mr. F’s participation rights. These discussions culminated in a meeting on July 28, 2017, between the parties. At this meeting, they discussed the purchase of Mr. F’s participation rights, with both the firm and Mr. R co-guaranteeing the sale. However, Mr. R was asked by the firm to contact Mr. F directly to come to an arrangement themselves.

Mr. F forwarded Mr. R an email written to him by his lawyer that set out Mr. F’s position and a way “to finalize everything to mutual satisfaction all round” (the “July 31 Email”). The Email set out proposed terms for the purchase of Mr. F’s book of business. One of the terms set out in the July 31 Email was that Mr. R provide security for the purchase price. While Mr. R did receive the email, he did not acknowledge receipt at the time.

On September 27, 2017, Mr. R emailed Mr. F and offered to buy his participation rights for $90,000, payable in 36 equal monthly payments of $2,500 or, alternatively, a lump sum payment of $76,500. On October 2, 2017, the firm terminated Mr. F’s employment. On October 4, 2017, Mr. F emailed Mr. R accepting the offer. He stated that he would have his lawyer draw up a promissory note and a security agreement to sign, and that once those were signed, he would assist with client handover to encourage the clients to stay with Mr. R and the firm.

On October 5, Mr. R emailed Mr. F accusing him of not negotiating in good faith and stating that his offer was null and void. Mr. F responded the following day maintaining that there was a binding contract and attaching the promissory note and security agreement to be signed and returned to him. Mr. R stated that he and Mr. F “don’t have a firm and binding contract” but repeated his offer to pay Mr. F $2,500 a month for 36 months. Mr. R never made any payment to Mr. F. On October 26, 2018, Mr. F commenced an action against Mr. R for $90,000 in damages for breach of contract.

issues:

(1) Did the trial judge err in finding that the parties had formed the necessary intention to create a binding legal relationship?

(2) Did the trial judge err in finding the parties had agreed to all essential terms?

(3) Did the trial judge err in concluding that Mr. R was unjustly enriched at Mr. F’s expense?

(4) Did the trial judge err in finding that Mr. F mitigated his losses?

holding:

Appeal dismissed.

reasoning:

On a preliminary note, the parties differed on their view of the appropriate standard of review for the trial judge’s decision. The Court found Mr. R did not establish that there was an extricable error of law, for which there is a high bar: see Housen v. Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53. Rather, the Court saw his argument as one rooted in the trial judge’s findings of mixed fact and law. Therefore, the standard of review applied was one of palpable and overriding error.

(1) No, the trial Judge did not err in finding that the parties had formed the necessary intention to create a binding legal relationship. The trial judge did not disregard the July 31 Email because it included a reference that the terms of the proposed settlement were “without prejudice.” Rather, he concluded that the reference in the July 31 Email that, “none of the suggestions below will either individually or taken together constitute an agreement unless or until they are set out in writing and signed by all relevant parties”, had to be read together with the phrase immediately preceding it in the July 31 Email, that it be “absolutely clear that the suggestions are made on an entirely without prejudice basis”. The Court noted that this finding was open to the trial judge on the record and saw no basis to interfere with it.

(2) No, the trial Judge did not err in finding the parties had agreed to all essential terms. The trial judge rejected that security, or the promissory note raised by Mr. F constituted an “essential term.” The trial judge relied on Mr. F’s examination for discovery evidence where he was clear that the “ultimate deal breaker” was quantum, not the term for security. In summary, the Court saw no error with the trial judge’s finding with respect to the existence of a binding contract.

(3) No, the trial judge did not err in concluding that Mr. R was unjustly enriched at Mr. F’s expense. The trial judge found, as an alternate basis for recovery, that Mr. R had been unjustly enriched by keeping all of the commissions for himself and denying Mr. F the revenue that would have accrued from his participation rights. The Court noted the trial judge’s reasoning on the unjust enrichment finding was not entirely clear. However, since the Court affirmed the primary basis for the trial judge’s award of damages, it was not necessary to reach a conclusion on whether this finding should be upheld.

(4)  No, the trial judge did not err in finding that Mr. F mitigated his losses. While the Court did not necessarily agree with the trial judge’s analysis that doing nothing constituted mitigation, Mr. R did not meet his onus to show that mitigation was possible in the circumstances: Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51.


SHORT CIVIL DECISIONS

Bogue v. Law Society of Ontario, 2024 ONCA 452

[Huscroft, Coroza and Monahan JJ.A.]]

Counsel:

G.B., acting in person

J. Elcombe, for the respondent

Keywords: Regulated Professions, Lawyers, Discipline, Civil Procedure, Frivolous, Vexatious, Abuse of Process, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), Administration of Justice Act, R.S.O. 1990, c. A.6, s. 4.10, Rules of Civil Procedure, rr. 2.1.01, 2.1.02


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 27, 2024.

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In Legault v. TD General Insurance Company, the Court upheld the trial judge’s decision to deny a claim under a homeowner’s insurance Policy based on the appellant’s false declaration with respect to her additional living expenses.

In Association of Iroquois and Allied Indians v. Ontario, the appellants, certain Ontario First Nations, sought judicial review of forest management regulations and legislation set out in MNR-75 and Bill 197, arguing their exclusion from deliberations breached the Crown’s duty to consult and honour of the Crown. The Divisional Court dismissed their application, and the Court upheld this decision.

Hanson Crossborder Tax Inc. v. Bazar McBean LLP was a contractual dispute between an accountant and her firm regarding compensation owed.

Bradshaw v. Hougassian reviewed the law regarding purchase money resulting trusts and the presumption of resulting trust.

Beazley v. Johnston was a 57-page decision on whether the self-represented appellant should be granted an extension of time to pursue an appeal from the dismissal by way of summary judgment of his medical claims against 27 doctors and a hospital. In denying the extension of time, the Court reviewed the motion judge’s decision in detail and found that the proposed appeal had little merit.

Other topics covered this week included mortgage enforcement and variation of spousal support following a material change in circumstances.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Hanson Crossborder Tax Inc. v. Bazar McBean LLP, 2024 ONCA 423

Keywords: Contracts, Partnerships, Defamation, Damages

Beazley v Johnston, 2024 ONCA 430

Keywords: Torts, Professional Negligence, Medical Malpractice, Standard of Care, Negligent Misrepresentation, Breach of Fiduciary Duty, Civil Procedure, Appeals, Extension of Time, Summary Judgement, Evidence, Admissibility, Expert Evidence, Documents, Procedural and Natural Justice, Self-Represented Litigants, Reasonable Apprehension of Bias, Evidence Act, R.S.O. 1990, c. E.23, s. 32, Rules of Civil Procedure, r. 4.06(3)(b), White Burgess Langille Inman v. Abbott and Halliburton Co., 2015 SCC 23, Marshall v. Jackson, 2021 ONSC 2361, Pintea v. Johns, 2017 SCC 23, Sutton v. Sutton, 2017 ONSC 3181, Thorpe v. Honda Canada Inc., 2010 SKQB 39, Yepremian et al. v. Scarborough General Hospital et al. (1980), 28 O.R. (2d) 494 (C.A.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Issasi v. Rosenzweig, 2011 ONCA 112, Duca Community Credit Union Ltd. v. Giovanni et al. (2001), 142 O.A.C. 146 (C.A.), Liu v. Wong, 2016 ONCA 366, Jonsson v. Lymer, 2020 ABCA 167, Moore v. Apollo Health & Beauty Care, 2017 ONCA 383, R. v. Tossounian, 2017 ONCA 618, Girao v. Cunningham, 2020 ONCA 260, R. v. Morillo, 2018 ONCA 582, Gadsby v. British Columbia (Attorney General), 2019 BCSC 1596, Hryniak v. Mauldin, 2014 SCC 7, Carbone v. McMahon, 2017 ABCA 384, Wouters v. Wouters, 2018 ONCA 26, Bernard v. Canada (Attorney General), 2014 SCC 13, Sanzone v. Schechter, 2016 ONCA 566, Ter Neuzen v. Korn, [1995] S.C.R. 674, Browne v. Dunn, [1894] H.L. 67, Gibb v. Pereira, 2017 ONSC 4762, J.N. v. C.G. 2023 ONCA 77

Bradshaw v. Hougassian, 2024 ONCA 425

Keywords: Wills and Estates, Property Law, Purchase Money Resulting Trust, Presumption of Resulting Trust, Gifts, Contracts, Loans, Evidence, Admissibility, Corroboration, Evidence Act, R.S.O. 1990, c. E.23, s.13, Nishi v. Rascal Trucking Ltd., 2013 SCC 33, Pecore v. Pecore, 2007 SCC 17, Trustee of Estate of A.M.K. Investments Limited v. Kraus, (1996) 42 CBR (3d) 227, Krates Keswick Inc. v. Crate, 2017 ONSC 6195, Hornstein v. Kats, 2020 ONSC 870, Andrade v. Andrade, 2016 ONCA 368, Caroti v. Vuletic, 2022 ONSC 4695, Singh v. Kaler, 2017 ABCA 275, Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, Sands Estate v. Sonnwald, [1986] O.J. No. 478 (H.C.)

Rose-Terra Investments Inc. v. Chetti, 2024 ONCA 427

Keywords: Contracts, Real Property, Mortgages, Settlements, Defences, Undue Influence, Presumption of Undue Influence, Duress, Civil Procedure, Summary Judgment, Hryniak v. Mauldin, 2014 SCC 7, Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737, JGB Collateral v. Rochon, 2020 ONCA 464, Gold v. Rosenberg, [1997] 3 S.C.R 767, Laird v. Mulholland, [1998] OJ. No. 855

White v. White, 2024 ONCA 431

Keywords: Family Law, Spousal Support, Variation, Material Change in Circumstances, Imputed Income, Johanson v. Hinde, 2016 ONCA 430, Rados v. Rados, 2019 ONCA 627, Levin v. Levin, 2020 ONCA 604, Korman v. Korman, 2015 ONCA 578

Legault v. TD General Insurance Company, 2024 ONCA 439

Keywords: Contracts, Insurance, Fire Policy, Defences, Fraud, Remedies, Forfeiture, Civil Procedure, Evidence, Admissibility, Expert Evidence, Costs, D.W. Matheson & Sons Contracting Ltd. v. Canada (Attorney General), 2000 NSCA 44, 186 N.S.R. (2d) 62, Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.)

Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation and Parks), 2024 ONCA 436

Keywords: Aboriginal and Indigenous Law, Environmental Protection, Right to Protection, Duty to Consult, Constitution Act, 1982, R.S.C. 1985, s. 35(1), Environmental Assessment Act, R.S.O. 1990, c. E.18, ss.3.2, 33.1, Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25, ss. 1, 26, 57(1), 58(1)(b), 64(1)(b), Judicial Review Procedure Act, R.S.O. 1990, c. J.1., COVID-19 Economic Recovery Act, 2020, S.O. 2020, c. 18, Endangered Species Act, 2007, S.O. 2007, c. 6, Environmental Bill of Rights, 1993, S.O. 1993, c. 28, Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks), 2021 ONSC 452, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, R. v. Sparrow, [1990] 1 S.C.R. 1075, Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345, Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, Ermineskin Cree Nation v. Canada (Environment and Climate Change), 2021 FC 758, Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, Mi’kmaq of P.E.I. v. Province of P.E.I., 2019 PECA 26, Buffalo River Dene Nation v. Saskatchewan (Minister of Energy and Resources), 2015 SKCA 31, Hupacasath First Nation v. Canada (Minister of Foreign Affairs and International Trade Canada), 2015 FCA 4, Klahoose First Nation v. Sunshine Coast Forest District, 2008 BCSC 1642, Dene Tha’ First Nation v. Canada (Minister of the Environment), 2006 FC 1354, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, McAteer v. Canada (Attorney General), 2014 ONCA 578, Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 123, R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Assn. of Alberta, [1982] Q.B. 892, Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 FC 517, Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 123

Short Civil Decisions

Rathod v. Chijindu, 2024 ONCA 420

Keywords: Civil Procedure, Security for Costs, Rules of Civil Procedure, 61.06 (1) (a)(c), Rathod v. Chijindu, 2024 ONCA 317, Henderson v. Wright, 2016 ONCA 89

Hamilton v. Vaughan, 2024 ONCA 429

Keywords: Civil Procedure, Appeals, Extension of Time, Panel Review, Courts of Justice Act, R.S.O. 1990, c C.43., s. 137.1 and 137.4, Rules of Civil Procedure, r 15.03(1), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, The Catalyst Capital Group Inc. v. West Fact Capital Inc., 2021 ONSC 125

Lepan Estate v. Lofranco Chagpar Barristers, 2024 ONCA 442

Keywords: Costs

Hunt Family Growth Equity Trust v. Love, 2024 ONCA 434

Keywords: Torts, Professional Negligence, Accountants, Civil Procedure, Limitation Periods, Summary Judgment, Grant Thornton LLP v. New Brunswick, 2021 SCC 31

2270752 Ontario Inc. v. Century 21 New Star Realty Inc., 2024 ONCA 444

Keywords: Breach of Trust, Fraudulent Conveyances, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 Bank of Montreal v. Iskenderov, 2023 ONCA 528


CIVIL DECISIONS

Hanson Crossborder Tax Inc. v. Bazar McBean LLP, 2024 ONCA 423

[Trotter, Thorburn and Dawe JJ.A.]

Counsel:

M. Girard, for the appellants

O. Niedzviecki, for the respondents

Keywords: Contracts, Partnerships, Defamation, Damages

facts:

This appeal arose from a dispute between Ms. H and BM, a small accounting firm in Oakville, Ontario. The appellant, BM, appealed from the judgment of the trial judge that awarded damages for breach of contract to the respondent Ms. H, a certified public accountant from Illinois. Ms. H left her position as a manager at KPMG to join BM in 2012. She parted ways with BM in late 2014. This litigation was concerned with how much was owed to Ms. H for the work she performed in 2014.The respondents on appeal, Ms. H, and her professional corporation, sued the appellants, BM, and Mr. B, personally. The respondents made claims for breach of contract and other causes of action; the appellants counterclaimed and sought various forms of relief, including damages for defamation.

The parties ended up in this dispute, and in litigation, because they never entered into a written agreement about Ms. H’s role at BM. According to Ms. H, she agreed to a resource-sharing arrangement in which she would have worked out of BM’s office and grown her own book of business. She would have been paid 100% of her own clients’ billings and 50% of billings by the firm to its clients for work done by her, less a contribution by her to the firm’s expenses. She had not intended to become a partner. According to Mr. B, a partnership agreement was envisaged in which Ms. H would have become accredited in Ontario, made a capital contribution to the partnership, and then became a partner. According to BM, the clients for whom Ms. H performed services were clients of BM. They signed letters of retainer in which they retained BM. The parties had agreed that, pending a final agreement, Ms. H would be compensated for 2014 as she had been in 2013.

The trial judge ruled in favour of Ms. H, ordering BM to pay damages of $71,223 for breach of contract for Ms. H’s work in 2014. He further ordered two sums of money be returned to Ms. H: $40,000 which had been paid into court and related to Ms. H’s apparent capital contribution to BM; and $12,980.50, which was held in trust, and reflected Ms. H’s work in progress (“WIP”). Lastly, the trial judge ordered that Ms. H pay $30,000 in damages for making defamatory statements to clients about BM when their business relationship ended. The appeal focused on the amounts owed for breach of contract, and work in progress.

issues:

(1) Did the trial judge err in finding that the clients Ms. H provided services to were her clients and not the clients of BM?

(2) Did the trial judge err in his determination of Ms. H’s income for 2014?

(3) Did the trial judge err in concluding that Ms. H was entitled to be compensated for her WIP?

holding:

Appeal allowed, in part.

reasoning:

(1) No. The Court reaffirmed the trial judge’s decision that the clients Ms. H served were hers and not BM’s despite an engagement letter that suggested otherwise. The trial judge found in favour of Ms. H that the engagement letters were prepared for the convenience of managing the accounts. The appellants submitted that the trial judge erred in law in failing to give effect to an “entire agreement” clause which provided that the arrangements outlined in the engagement letter will continue in effect from year to year unless changed by mutual agreement and that the contract formed the entirety of their agreement. The “entire agreement” clause was not given weight by the Court, as it was not emphasized during trial and was buried near the end of a two-page document, in extremely small print.

(2) Yes. The trial judge erred in calculating Ms. H’s compensation for work performed in 2014. The trial judge concluded that Ms. H’s billable hours in 2014 were worth $359,345, however, there was insufficient evidence to support this finding. The trial judge relied on a document that was prepared by Ms. H for her testimony which was only admitted as an exhibit as an aide memoire. On appeal, Ms. H’s counsel was unable to provide evidence to demonstrate that Ms. H confirmed that this was the amount that she was entitled to for her work in 2014. During her testimony, Ms. H also stated that she worked 919 hours from January to October 2014. Using the formula set out in para. 19 of the trial judge’s reasons, the Court calculated that Ms. H’s compensation for 2014 should have been $157,822, or 20% less than her compensation for 2013. Subtracting the total of her monthly draws taken in 2014 of $130,000, the total compensation should be reduced from $71,223 to $27,822.

(3) Yes. The trial judge erred in awarding Ms. H her WIP in the amount of $12,980.50. In cross-examination, Ms. H admitted that she billed some of her WIP to her clients after leaving BM. On discovery, she refused to identify the amounts she billed or to whom. Thus, the appeal was allowed on this amount.


Beazley v. Johnston, 2024 ONCA 430

[Simmons J.A.]

Counsel:

C.B., acting in person/moving party

É. Roy, for the responding party, Queensway Carleton Hospital

McCarthy and A. McKenna, for the responding parties, the defendant physicians

Keywords: Torts, Professional Negligence, Medical Malpractice, Standard of Care, Negligent Misrepresentation, Breach of Fiduciary Duty, Civil Procedure, Appeals, Extension of Time, Summary Judgement, Evidence, Admissibility, Expert Evidence, Documents, Procedural and Natural Justice, Self-Represented Litigants, Reasonable Apprehension of Bias, Evidence Act, R.S.O. 1990, c. E.23, s. 32, Rules of Civil Procedure, r. 4.06(3)(b), White Burgess Langille Inman v. Abbott and Halliburton Co., 2015 SCC 23, Marshall v. Jackson, 2021 ONSC 2361, Pintea v. Johns, 2017 SCC 23, Sutton v. Sutton, 2017 ONSC 3181, Thorpe v. Honda Canada Inc., 2010 SKQB 39, Yepremian et al. v. Scarborough General Hospital et al. (1980), 28 O.R. (2d) 494 (C.A.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Issasi v. Rosenzweig, 2011 ONCA 112, Duca Community Credit Union Ltd. v. Giovanni et al. (2001), 142 O.A.C. 146 (C.A.), Liu v. Wong, 2016 ONCA 366, Jonsson v. Lymer, 2020 ABCA 167, Moore v. Apollo Health & Beauty Care, 2017 ONCA 383, R. v. Tossounian, 2017 ONCA 618, Girao v. Cunningham, 2020 ONCA 260, R. v. Morillo, 2018 ONCA 582, Gadsby v. British Columbia (Attorney General), 2019 BCSC 1596, Hryniak v. Mauldin, 2014 SCC 7, Carbone v. McMahon, 2017 ABCA 384, Wouters v. Wouters, 2018 ONCA 26, Bernard v. Canada (Attorney General), 2014 SCC 13, Sanzone v. Schechter, 2016 ONCA 566, Ter Neuzen v. Korn, [1995] S.C.R. 674, Browne v. Dunn, [1894] H.L. 67, Gibb v. Pereira, 2017 ONSC 4762, J.N. v. C.G. 2023 ONCA 77

facts:

The self-represented moving party, C.B., applied for an extension of time to file a notice of appeal from a summary judgment dated August 31, 2023. The motion judge had granted the responding parties’ summary judgment motions and dismissed C.B.’s medical malpractice action along with C.B.’s request for partial summary judgment on the issue of liability.

C.B. commenced the underlying action in 2017, claiming damages for negligence, negligent misrepresentation and breach of fiduciary duty against 27 doctors, as well as negligence and vicarious liability against Queensway Carleton Hospital. The thrust of C.B.’s claim was that the defendant doctors negligently failed to diagnose him with, and/or treat him for, Lyme disease between 2015 and 2018 and that he suffered injuries, including chronic Lyme disease, due to delayed diagnosis and treatment.

During the summary judgment hearing, the motion judge made three formal interim rulings, later contested by C.B. in his extension motion. The motion judge denied C.B.’s request to be qualified as an expert to give opinion advice on Lyme disease, deemed many documents upon which C.B. sought to rely inadmissible, and refused C.B.’s request to file a second affidavit from his proposed expert witness Dr. B.B.

In the summary judgement result, the motion judge found that all defendants had satisfied their evidentiary burden of establishing no genuine issue requiring trial with respect to any of C.B’s claims, and dismissed C.B.’s action. She based her decision on medical records, affidavits from the doctors, and affidavits from seven expert witnesses stating each respective defendant doctor met the standard of care. Regarding the negligent misrepresentation claim, the motion judge found no evidence that the doctors made any statements that were untrue, inaccurate, or misleading. The motion judge dismissed C.B.’s breach of fiduciary duty claims as inextricably linked to his failed negligence claims. She also dismissed C.B.’s vicarious liability claim, since, per Yepremian, the Hospital was not liable for the actions of doctors not employed by it.

issues:

(1) Should C.B. be granted an extension of time to appeal?

holding:

Motion dismissed

reasoning:

No. The Court reiterated the familiar test on a motion for an extension of time to file a notice of appeal: whether the justice of the case requires that the extension be granted. Per Enbridge Gas, relevant considerations include whether the moving party formed a bona fide intention to appeal within the relevant time period, the length of and any explanation for the delay in filing, any prejudice to the responding parties caused by the delay, and the merits of the proposed appeal.

Did C.B. demonstrate a bona fide intention to appeal within the 30-day time period?

The Court held that this factor favoured an extension. It was uncontested that C.B. formed an intention to appeal immediately after reasons were released and communicated this intention to the responding parties well within the appeal period.

Did the length of the delay and C.B.’s explanation for it favour granting the motion?

Yes, but barely. The Court deemed this factor as either neutral or slightly favouring an extension. The 54-day delay before C.B. served his extension motion was not unduly lengthy amid years of ongoing litigation. C.B. argued the delay was due to his mistaken belief that the summary judgment reasons were interim. Although self-represented, the Court considered C.B. an experienced litigant who ought to be familiar with appeal-related procedures, but nevertheless found his explanation not unreasonable.

Did any prejudice result to the responding parties because of the delay?

No. This factor was neutral. No prejudice was asserted and the Court saw none.

Did the merits of the proposed appeal favour granting an extension?

No. The Court concluded this important factor weighed against granting an extension. No grounds of appeal arose from the interim rulings or other alleged errors in the summary judgment decision. Per Issasi, the appeal merits factor must be assessed by determining whether the appeal is so meritless that a court could reasonably deny the important right of appeal. The defendant doctors argued there was no merit in C.B.’s appeal first because the motion judge correctly excluded Dr. B.B. as an expert. They claimed there can be no genuine issue requiring trial where a medical negligence plaintiff fails to call expert evidence. They further asserted that C.B. failed to identify any arguable ground of appeal. For his part, C.B.’s proposed grounds of appeal boiled down to the motion judge’s alleged failure to grant the procedural leniency necessary to enable a self-represented litigant to argue their case, and reasonable apprehension of bias.

The motion judge’s first formal interim ruling denied C.B.’s motion to act as an expert and ruled the “Beazley reports” he prepared inadmissible. The Court held that C.B. raised no arguable grounds of appeal related to this ruling. C.B.’s arguments did not squarely address the motion judge’s statement of trite law, citing Marshall, that a party cannot function as their own expert. Furthermore, the Court saw no error in the exclusion of the Beazley reports because they contained obvious indicators of C.B.’s inability to give fair and non-partisan opinion evidence.

In her second interim ruling, the motion judge found that 57 documents on which the appellant sought to rely were inadmissible. C.B. argued she erred in this ruling by prejudging admissibility, failing to afford sufficient leniency to a self-represented litigant, and applying a mechanical, heavy-handed approach to procedure resulting in improper exclusion of documents. The Court found little merit in these arguments especially since C.B. did not demonstrate that excluding the documents adversely impacted his case. Moreover, transcript samples alleged by C.B. to show reasonable apprehension of bias instead revealed that the motion judge carefully considered C.B.’s self-represented status and adapted procedures to accommodate him. Regarding the motion judge’s treatment of evidentiary issues generally, the Court affirmed her conclusions that C.B. failed to comply with many Evidence Act provisions, and failed to meet common law criteria for the admissibility of internet information. Unlike in Gibb and J.N. where the courts excused minor technical deficiencies in filings by self-represented litigants, here C.B. made inexcusable mistakes when he proceeded by way of a data dump of online information even after receiving guidance on proper filing.

The Court further held that the motion judge made no error concerning Dr. B.B. In her third interim ruling, the motion judge denied C.B.’s request to file a second Dr. B.B. affidavit, ruling that Dr. B.B. was not a qualified expert, since he had no recent experience treating Lyme disease and his evidence was not objective: he relied unquestioningly on C.B.’s version of events. The Court endorsed the motion judge’s opinion that the second affidavit was intended to shore up deficiencies in Dr. B.B.’s original affidavit, and that admitting it would insurmountably prejudice the responding parties.

Finally, the Court found no merit in several other alleged errors in the summary judgment ruling that C.B. argued constituted grounds of appeal. The motion judge correctly concluded that C.B. needed expert evidence to refute the defendants’ expert evidence, which he failed to provide. C.B.’s claim that the defendant expert evidence was unsubstantiated also failed: medical standard of care evidence involves assessing a physician’s conduct by considering the conduct of other physicians in the same specialty – physician experts need not refer to sources.

All factors considered, did the justice of this case require that an extension of time to appeal be granted?

No. The Court ultimately held that C.B.’s proposed appeal had such minimal merit that the justice of the case did not warrant granting an extension. C.B. did not raise an arguable ground of appeal, and his self-represented status did not permit the Court to overlook the numerous deficiencies in his case.


Bradshaw v. Hougassian, 2024 ONCA 425

[Van Rensburg, Sossin, and Dawe JJ.A.]

Counsel:

J. Postnikoff, for the appellants

L. Tupman and D. McMurtry, for the respondent

Keywords: Wills and Estates, Property Law, Purchase Money Resulting Trust, Presumption of Resulting Trust, Gifts, Contracts, Loans, Evidence, Admissibility, Corroboration, Evidence Act, R.S.O. 1990, c. E.23, s.13, Nishi v. Rascal Trucking Ltd., 2013 SCC 33, Pecore v. Pecore, 2007 SCC 17, Trustee of Estate of A.M.K. Investments Limited v. Kraus, (1996) 42 CBR (3d) 227, Krates Keswick Inc. v. Crate, 2017 ONSC 6195, Hornstein v. Kats, 2020 ONSC 870, Andrade v. Andrade, 2016 ONCA 368, Caroti v. Vuletic, 2022 ONSC 4695, Singh v. Kaler, 2017 ABCA 275, Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854, Sands Estate v. Sonnwald, [1986] O.J. No. 478 (H.C.)

facts:

The appellants appealed from a judgment finding that the respondent estate had a beneficial interest in 26% of the value of a house owned by one of the appellants.

In 1980, one of the appellants, JH, purchased a house in Cambridge, Ontario for $38,500. He and his mother (VH), both signed the agreement of purchase and sale, but only JH went on title as the legal owner of the property. At the time, JH was a 22-year-old university student, but he had money saved from summer jobs, and he contributed $8,000 of the purchase price. VH contributed $10,000, and the remaining $20,500 was financed through a mortgage in JH’s name, which VH signed as a guarantor.

JH is a successful businessman, and it was undisputed that he provided generous financial support to his mother during her lifetime. VH excluded him from her will, but the parties agreed, and the trial judge found, that this was not “because of any disaffection with JH, but rather because of VH’s recognition that her son was well-accomplished financially and his sisters were not.”

The central disputed question at trial was whether the $10,000 that VH contributed to the down payment had been a loan to JH, or whether she intended the payment to give her an equity share in the house. JH maintained that this money was a loan, and that he repaid it to his mother within one year. However, the trial judge rejected JH’s evidence on this issue. Applying the doctrine of purchase money resulting trust, he found that VH’s estate had a 26% share of the property, based on VH having contributed 26% of the original purchase price.

issues:

(1) Did the trial judge err in law by failing to consider and apply the legal requirements for finding a purchase money resulting trust?

(2) Did the trial judge err by finding that the corroboration requirement in section 13 of the Evidence Act applied to the appellants’ evidence?

holding:

Appeal dismissed.

reasoning:

(1) No. The appellants relied on a line of authority that a person claiming a resulting trust “must also prove that he or she acted throughout as a purchaser.” According to the appellants, this meant that it was the respondent’s burden to establish that VH had acted in a manner consistent with having an ownership interest in the property throughout the time that she lived there. They argued that the trial judge erred by ignoring this supposed precondition for finding a purchase money resulting trust.

The appellants’ argument reflected two misunderstandings of the applicable legal principles. First, the doctrine of purchase money resulting trust focuses on the parties’ intentions at the time the purchase money is advanced. Accordingly, to the extent that there can be said to be any requirement that the claimant has “acted … as a purchaser”, this requirement only applies at the point that the purchase money is advanced. Evidence about how a claimant conducts themselves afterwards may be relevant, but only to the degree that it sheds light on what they intended when they advanced the purchase money. The statement that the claimant must act as a purchaser “throughout” should accordingly be understood as referring only to the time of the transaction itself. Second, the requirement that the claimant has “acted … as a purchaser” means nothing more than that they must not have meant the money they advanced to be either a gift or a loan.

The Court also saw no reversible error in the trial judge’s conclusion that the appellants had not met their onus on this issue. The trial judge properly considered all of the evidence, including the evidence that JH had covered most of the expenses associated with the property for most of the years that VH lived there, and the evidence that she had not included the property among her assets when she filed for bankruptcy in 2006. This evidence was all potentially relevant to the question of what VH’s intentions had been when she paid the $10,000 down payment in 1980, but none of it was determinative.

The trial judge ultimately concluded that it would not have made sense for VH to have loaned money to her son in 1980, given their respective financial and life circumstances at the time. This was a finding that the trial judge was entitled to make on the evidence before him.

(2) Not decided. The appellants argued that because JH was not an heir under VH’s will, and was being sued on the basis that he controlled the corporation that was the disputed property’s legal owner, rather than in his capacity as one of the “heirs, next of kin, executors, administrators or assigns” of his late mother, section 13 of the Evidence Act had no application to him.

This argument was based on a misreading of section 13, which applies to actions by or against persons who fall into the listed categories. While it is true that JH was not being sued in his capacity as a person listed in section 13, his sister was suing him in her capacity as the executor of VH’s estate. This made JH “an opposite or interested party” to whom the section 13 corroboration requirement applied.

The appellants argued further that even if the section 13 corroboration requirement did apply to JH, the trial judge erred by not treating the evidence that VH had not listed the property among her assets when she filed for bankruptcy in 2006 as corroborative of JH’s evidence that the $10,000 she contributed to the house down payment was a loan.

The Court did not find it necessary to decide whether the evidence of VH’s 2006 bankruptcy filings could properly be viewed as corroborating JH’s evidence that her 1980 contribution to the purchase price was a loan. The Court came to this conclusion because the trial judge ultimately did not decide this case by applying the section 13 Evidence Act corroboration requirement to JH’s evidence.


Rose-Terra Investments Inc. v. Chetti, 2024 ONCA 427

[Roberts, Trotter and George JJ.A.]

Counsel:

E. Cherniak, J. Damstra and D. Pomer, for the appellant

M. Whelton, E. Hiutin and W. Jiang, for the respondent

Keywords: Contracts, Real Property, Mortgages, Settlements, Defences, Undue Influence, Presumption of Undue Influence, Duress, Civil Procedure, Summary Judgment, Hryniak v. Mauldin, 2014 SCC 7, Bank of Montreal v. Duguid (2000), 47 O.R. (3d) 737, JGB Collateral v. Rochon, 2020 ONCA 464, Gold v. Rosenberg, [1997] 3 S.C.R 767, Laird v. Mulholland, [1998] OJ. No. 855

facts:

The appellant owns a property with a mortgage held by the respondent. The appellant defaulted on the mortgage in September 2018, prompting the respondent to issue a notice of sale. On January 31, 2019, the parties reached a settlement agreement and entered into minutes of settlement. The details included an extension to pay a discounted $2.55 million of the $2.7 million debt, which the appellant and her husband failed to pay.

The court granted an order declaring the mortgage was valid, and the respondent obtained a writ of possession. Subsequently, the property was sold for less than the settlement amount. The respondent commenced an action to recover the shortfall of $638,800.48 as damages.

In the amended statement of defence, the appellant pleaded that she was not the beneficial property owner, citing the property was transferred into her name without her knowledge and consent, that she never received proper legal advice, and signed the minutes of settlement under duress and/or undue influence exerted by her husband. The appellant requested that the matter proceed to trial.

The motion judge awarded a summary judgment for the respondent. The motion judge concluded that independent legal advice was not a genuine issue requiring a trial because the appellant was familiar with the transaction, held title to the property, was involved in related proceedings, and was represented by experienced counsel in several legal proceedings.

issues:

(1) Did the motion judge err in applying the wrong legal test in considering the allegations of undue influence and duress?

(2) Did the motion judge err in concluding that there were no genuine issues requiring a trial concerning the appellant’s allegations of insufficient legal advice?

holding:

Appeal dismissed.

reasoning:

(1) No. The motion judge did not err in applying the legal test for undue influence and duress. The Court held that the motion judge applied the appropriate governing principles, finding that the appellant was represented by experienced counsel and entered into the minutes of settlement of her own free will.

The Court stated that when a presumption of undue influence is established, there may be a duty to inquire whether the agreement was obtained correctly (Gold at para. 78). Independent legal advice can help rebut the presumption, but it is not strictly required: see e.g., Bank of Montreal at paras. 25-27. The presumption can be rebutted if sufficient evidence shows the contract was made freely (Bank of Montreal at para. 25). The Court must assess each case’s facts to determine if undue influence is rebutted. A transaction can be valid without legal advice if it reflects a free and independent mind (Bank of Montreal, at para. 25).

(2) No. The motion judge did not err in finding no genuine issue for trial. The Court stated that the motion judge’s determination was based on the findings that the appellant was familiar with the transaction, represented by counsel, benefited materially from the settlement agreement, and had shared interests with her husband, eliminating the need for separate counsel. The Court also stated that the respondent had no duty to verify independent legal advice and could rely on the assurance of the appellant’s counsel that she agreed to the settlement freely.


White v. White, 2024 ONCA 431 

[Huscroft, Miller and Favreau JJ.A.]

Counsel:

M. Belansky, for the appellant

G. Campbell, for the respondent

Keywords: Family Law, Spousal Support, Variation, Material Change in Circumstances, Imputed Income, Johanson v. Hinde, 2016 ONCA 430, Rados v. Rados, 2019 ONCA 627, Levin v. Levin, 2020 ONCA 604, Korman v. Korman, 2015 ONCA 578

facts:

The appellant, A.W., appealed an order varying a separation agreement that significantly decreased her entitlement to spousal support.

The trial judge found that there was a material change in circumstances, given the respondent’s change in income and the change in the children’s principal residence. This led him to make an order varying the parties’ separation agreement in several respects, including by requiring that the respondent pay child support to the applicant, and by reducing the applicant’s entitlement to spousal support. The trial judge considered whether to impute income to both parties when deciding the appropriate amounts of child and spousal support. The trial judge imputed income to A.W. of $35,000 per year, and refused to impute income to the respondent, R.W., beyond his expected annual income of $80,000 at the time of trial.

issues:

(1) Did the trial judge err in imputing income to the applicant and in failing to impute any income to the respondent beyond his expected annual income for 2023?

holding:

Appeal dismissed.

reasoning:

No. The Court first acknowledged that the appellant only took issue with the trial judge’s decision about imputing income, not the findings that there was a change in circumstances that warranted altering the separation agreement. The Court owed substantial deference to the trial judge’s findings of fact and mixed fact and law. The Court also asserted that it would intervene in family law cases only when the trial judge’s decision on factual matters clearly deviated from what is considered reasonable and distinctly incorrect.

The Court agreed with the trial judge that the decision to impute income to the applicant was based on the terms of the separation agreement, and the evidence of the respondent’s efforts to find employment following their separation. The Court also agreed the appellant had not made reasonable efforts to find employment as required in the separation agreement. The imputed income of the trial judge was only an approximate equivalent to working full-time at a minimum wage. The Court found there was no basis to interfere with this aspect of the trial judge’s decision, as the amount was modest and reasonable.

Regarding the trial judge’s determination not to impute income to the respondent beyond his expected earnings, the Court found no palpable and overriding errors with respect to the respondent losing his job and his efforts to find a new one.


Legault v. TD General Insurance Company, 2024 ONCA 439

[Harvison Young, Sossin and Gomery JJ.A.]

Counsel:

A. Ismail, for the appellant

A. Odinocki and V. Dale, for the respondent

Keywords: Contracts, Insurance, Fire Policy, Defences, Fraud, Remedies, Forfeiture, Civil Procedure, Evidence, Admissibility, Expert Evidence, Costs, D.W. Matheson & Sons Contracting Ltd. v. Canada (Attorney General), 2000 NSCA 44, 186 N.S.R. (2d) 62, Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.)

facts:

The appellant appealed a judgment in favour of the respondent, TD General Insurance Company (“TD”), in relation to TD’s denial of a claim under a homeowner’s insurance Policy (the “Policy”) following a fire at the appellant’s home. The basis for TD’s denial was the appellant’s fraudulent action in making a false declaration with respect to her additional living expenses while residing outside her home, resulting in forfeiture of coverage under the Policy. The trial judge found that TD knew it had an obligation under the Policy to cover substitute housing costs and the appellant’s representation that she had found suitable housing at 268 Bay was material to TD’s decision to pay rent to W.O. The trial judge found TD was justified in treating the Policy as forfeited on a fraudulent basis and granted TD damages pursuant to a counterclaim brought against the appellant, in addition to an award of costs. The trial judge found that the lease of 268 Bay appeared to create a legitimate tenancy but was created by the appellant and W.O to secure payment from TD for purposes other than rent.

The trial judge also refused to bar two of TD’s professional witnesses from testifying on the basis that they were financially compensated for their preparation time and trial attendance in a mid-trial ruling. Even though the appellant had no right to recovery under the Policy, the trial judge proceeded with an assessment of the appellant’s alleged damages. She found that the appellant was not responsible for any additional damage caused by flooding in the house after the fire but that the financial consequences of the structural damage could not be claimed against TD. Moreover, she found that TD established its entitlement to judgment on its counterclaim in the amount of $207,767.84 plus interest.

issues:

(1) Did the trial judge err by failing to consider TD’s alleged breaches of the Policy and by finding that the appellant’s fraud erased these breaches?

(2) Did the trial judge err in her mid-trial ruling by allowing TD to pay two professional witnesses to testify?

(3) Did the trial judge err in her cost award?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court saw no error with the trial judge’s analysis or conclusions on the question of the appellant’s fraud and its effect on her ability to recover under the Policy. The appellant argued that TD should not be permitted to rely on the insurance contract because it breached the contract by 1) failing to provide a proof of loss form within 60 days of the loss; 2) failing to maintain the appellant’s normal standard of living; 3) asking her to execute an interim proof of loss without explaining its significance; and 4) conducting a less than thorough investigation. The Court agreed with the trial judge’s analysis that the fraud by the appellant vitiated TD’s obligations under the Policy.

(2) No. The Court agreed with the trial judge that the witnesses could be classified as “professional.” The appellant argued that paid professional witnesses create a reasonable apprehension of bias. The Court agreed with the trial judge’s reasoning, relying on D.W. Matheson & Sons Contracting Ltd. v. Canada (Attorney General) and other case law to provide a rationale for why it is in the interests of justice to permit testimony from professionals who have been compensated for their time. The Court also noted that the appellant had not challenged the trial judge’s factual findings, presumably including those which may have relied on the professional witnesses’ evidence.

(3) No. The Court asserted that the threshold for leave to appeal costs is a high burden, referencing Canadian Tire Corporation, Limited v. Eaton Equipment Ltd. at para. 13. The appellant argued that the trial judge “incorrectly” permitted TD to claim excessively high fees due to the novelty of the issues in the case. The appellant also argued that the novelty factor may be used to reduce a losing party’s fees, not to increase a successful party’s fees. The Court found that the trial judge’s exercise of discretion with respect to costs was entitled to deference and saw no basis to interfere with the trial judge’s decision on costs.


Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation, and Parks), 2024 ONCA 436

[Doherty, Pepall and Zarnett JJ.A.]

Counsel:

K. Hille, N. Kennedy, G. Cook and Y. Shin, for the appellants

S. Davis and I. Kamal, for the respondents

Keywords: Aboriginal and Indigenous Law, Environmental Protection, Right to Protection, Duty to Consult, Constitution Act, 1982, R.S.C. 1985, s. 35(1), Environmental Assessment Act, R.S.O. 1990, c. E.18, ss.3.2, 33.1, Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25, ss. 1, 26, 57(1), 58(1)(b), 64(1)(b), Judicial Review Procedure Act, R.S.O. 1990, c. J.1., COVID-19 Economic Recovery Act, 2020, S.O. 2020, c. 18, Endangered Species Act, 2007, S.O. 2007, c. 6, Environmental Bill of Rights, 1993, S.O. 1993, c. 28, Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks), 2021 ONSC 452, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, R. v. Sparrow, [1990] 1 S.C.R. 1075, Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345, Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, Ermineskin Cree Nation v. Canada (Environment and Climate Change), 2021 FC 758, Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, Mi’kmaq of P.E.I. v. Province of P.E.I., 2019 PECA 26, Buffalo River Dene Nation v. Saskatchewan (Minister of Energy and Resources), 2015 SKCA 31, Hupacasath First Nation v. Canada (Minister of Foreign Affairs and International Trade Canada), 2015 FCA 4, Klahoose First Nation v. Sunshine Coast Forest District, 2008 BCSC 1642, Dene Tha’ First Nation v. Canada (Minister of the Environment), 2006 FC 1354, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, McAteer v. Canada (Attorney General), 2014 ONCA 578, Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 123, R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Assn. of Alberta, [1982] Q.B. 892, Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 FC 517, Canada (Environment and Climate Change) v. Ermineskin Cree Nation, 2022 FCA 123

facts:

The appellants, First Nations from across the province, applied for judicial review concerning MNR-75 (a regulation on forest management planning under the Environmental Assessment Act (“EAA”)) and Bill 197. They argued that their exclusion from the deliberations of Bill 197 and subsequent amendments to the EAA breached (1) the Crown’s duty to consult and (2) the honour of the Crown more generally.

At the Divisional Court, the application for judicial review was dismissed. The Divisional Court was unanimous in its view that no duty to consult arose in the law-making process (Mikisew Cree First Nation). Although the Supreme Court of Canada outlined some narrow exceptions, the facts in this case did not meet any such exception. Furthermore, the court unanimously held that it was the wrong forum to consider the appellants’ substantive claims concerning Bill 197. The Divisional Court affirmed that it had no jurisdiction under the Judicial Review Procedure Act to consider whether legislation violates s. 35(1) of the Constitution Act, 1982. As to the revocation of MNR-75, the Divisional Court was divided.

The majority held that no adverse effect on the appellants’ protected rights gave rise to a duty to consult. Even if there was a duty, the majority considered that it was at the lower end of the spectrum and that the Crown’s consultation efforts were reasonable. In dissent, Corbett J. held that due to the appellants’ strong interest in forest management and Ontario’s history of mismanagement, the Crown had a duty to consult more thoroughly. Corbett J. believed the consultation efforts were inadequate and would have declared the Crown’s duty unfulfilled, rendering the revocation of MNR-75 unlawful and invalid.

issues:

(1) Did the Divisional Court err in taking a narrow view, precluding the appellants’ claim that their exclusion from deliberations on Bill 197 implicated the honour of the Crown?

(2) Did the Divisional Court majority err in failing to find that a duty to consult arose from the removal from oversight of the Ministry of Environment, Conservation and Parks (MECP), a feature of MNR-75?

(3) Did the Divisional Court majority err in ruling that the economic benefits under MNR-75 were not constitutionally protected and that their revocation did not trigger the duty to consult?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court affirmed that the Divisional Court did not err and held that the honour of the Crown is an interpretive principle, not a freestanding cause of action. This principle guides how the Crown must observe its obligations, including fiduciary duties to Aboriginal interests and treaty commitments, but does not create those obligations.

According to Mikisew Cree First Nation, the duty to consult did not apply to the law-making process. The Court found that the duty to consult did not arise from a government representative’s statement promising consultations before passing legislation. Such a statement did not create a s. 35(1) obligation to which the honour of the Crown is attached. The Court also held that if the law-making process was exempt from the duty to consult, the honour of the Crown was not engaged when changing legislative provisions that previously required consultation. The Court found no right implicated that engaged the honour of the Crown on the present facts.

(2) No. The Court held that the Divisional Court did not err in failing to find a duty to consult.

For a duty to consult to arise, Crown conduct or decisions must engage potential Aboriginal or treaty rights: Haida Nation, para. 35; Rio Tinto, at paras. 31, 51. This duty applies to executive actions, not legislative ones, as established in Mikisew Cree First Nation. The Crown’s conduct must have a direct or potential adverse impact on Aboriginal rights, and past wrongs alone are insufficient to demonstrate this: Rio Tinto, at paras. 40, 51. The possible impact must be concrete and not speculative: Rio Tinto, at para. 46; Buffalo River, at para 90. The Court of Appeal held that strategic decisions that affect regulatory regimes in a way that reduces Indigenous communities’ participation in decision-making regarding their rights will trigger the duty to consult.

On the facts, the Court affirmed that the appellants did not clearly identify a specific Aboriginal right or claim adversely impacted by the revocation of MNR-75. The historical failures of the Ministry of Natural Resources and Forestry (“MNRF”) do not create an Aboriginal right or claim.

The Court emphasized that MECP oversight itself is not an Aboriginal right. The substantive regulatory regime requires the MNRF to consult with Indigenous communities. The removal of MECP oversight did not change the legal obligations of the provincial Crown or adversely impact the appellants’ Aboriginal rights. The Court found no causal connection between the removal of oversight and any adverse impact on Aboriginal interests.

Additionally, the Court noted that the revocation of MNR-75 did not reduce the Crown’s consultation obligations for future forestry management decisions. The regulatory framework under the Crown Forest Sustainability Act still provides for meaningful consultation. The adverse impacts cited by the appellants were deemed speculative, and the MNRF remains responsible for regulatory decisions, ensuring the protection of Aboriginal rights.

(3) No. The Court held that the Divisional Court majority did not err. The Court found that Condition 56 of MNR-75 did not involve specific Aboriginal or treaty rights under s. 35(1), making the appellants’ claims speculative and unsubstantiated.

The Court noted that reliance on the Federal Court decision in Ermineskin was inappropriate, as the cases involved unsettled land claims and specific s. 35(1) rights which were not applicable here. The appellants did not connect the economic benefits in Condition 56 to any particular Aboriginal right or claim. Furthermore, the assertion that revoking MNR-75 would adversely affect economic benefits was speculative. The Court emphasized that the Sustainable Forest Licences provide a framework for cooperation with Aboriginal communities, concluding that any potential adverse impact from the revocation of Condition 56 was insufficient to establish a duty to consult.


SHORT CIVIL DECISIONS

Rathod v. Chijindu, 2024 ONCA 420

[Young, Sossin and Gomery JJ.A.]

Counsel:

I.C., acting in person/moving party

J.C. acting in person/moving party

C.C. acting in person/moving party

A. Sidhu, for responding party, H. R.

B. Belmont, for responding party, Bluekat Capital Corp.

Keywords: Civil Procedure, Security for Costs, Rules of Civil Procedure, 61.06 (1) (a)(c), Rathod v. Chijindu, 2024 ONCA 317, Henderson v. Wright, 2016 ONCA 89

Hamilton v. Vaughan, 2024 ONCA 429

[Harvison Young, Sossin and Gomery JJ.A.]

Counsel:

J.V., acting in person

C. Salazar, for the respondent/responding party

Keywords: Civil Procedure, Appeals, Extension of Time, Panel Review, Courts of Justice Act, R.S.O. 1990, c C.43., s. 137.1 and 137.4, Rules of Civil Procedure, r 15.03(1), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, The Catalyst Capital Group Inc. v. West Fact Capital Inc., 2021 ONSC 125

Lepan Estate v. Lofranco Chaqpar Barristers, 2024 ONCA 442

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

Counsel:

K. Arvai, for the appellant

J. Pedro, for the respondents

Keywords: Costs

Hunt Family Growth Equity Trust v. Love, 2024 ONCA 434

[Huscroft, Trotter and Coroza JJ.A.]

Counsel:

C. Spry, B. Monahan and A. Gold, for the appellants

M. Shortreed, M. Fenrick and E. Wall, for the respondents

Keywords: Torts, Professional Negligence, Accountants, Civil Procedure, Limitation Periods, Summary Judgment, Grant Thornton LLP v. New Brunswick, 2021 SCC 31

2270752 Ontario Inc. v. Century 21 New Star Realty Inc., 2024 ONCA 444

[Huscroft, Trotter and Coroza JJ.A.]

Counsel:

B. Radnoff and V. Ford, for the appellant A.D.

J. Levitt, for the appellant B.D.

M. Simaan, for the respondent

Keywords: Breach of Trust, Fraudulent Conveyances, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 Bank of Montreal v. Iskenderov, 2023 ONCA 528


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