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Good morning.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 6, 2024.

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In Croke v. VuPoint System Ltd., the Court upheld the dismissal of a wrongful dismissal case on the basis that the employment contract had been frustrated. The defendant employer’s only customer was Bell Canada, and during COVID-19, the employer required internet and telephone line technicians to be vaccinated. The plaintiff refused to vaccinate and was terminated. The employer successfully argued that the vaccination policy was a “supervening event” that radically altered the contract, unforeseen at the time of contracting, and outside the employer’s control. On that basis, the contract was frustrated and the employer was excused from performing (and therefore excused from being liable for termination pay).

In Kolapully v. Myles, the plaintiff was injured by a TTC bus, leading to a lengthy legal battle. The TTC fought the case vigorously, arguing the plaintiff was a malingerer. The decision discusses the admissibility of expert evidence and the calculation of damages in light of collateral benefits.

In US Steel Canada Inc (Re), the Ontario Court of Appeal dismissed Stelco Inc.’s motion for leave to appeal an order enforcing a reconveyance agreement, affirming the lower court’s authority to impose specific performance and contractual terms under the CCAA without party consent.

7868073 Canada Ltd. v. 1841978 Ontario Inc. dealt with restrictive covenants and misappropriation of corporate opportunities. The clauses in question were not found void as being an unreasonable restraint of trade.

Other topics included summary judgment and the striking of pleadings for failure to comply with a production order and for being frivolous and vexatious.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Kolapully v. Myles, 2024 ONCA 350

Keywords: Contracts, Insurance, Motor Vehicle Accidents, Damages, Collateral Benefits, Statutory Accident Benefits, Deductibility, Double Recovery, Civil Procedure, Evidence, Admissibility, Expert Evidence, Damages, Costs, Insurance Act, R.S.O. 1990, c. I.8, s. 267.8, Ontario Evidence Act, S.O. 1990, c. E.23, s. 35, 52, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), Statutory Accident Benefits Schedule, s. 35, 12(4)(c), Rules of Civil Procedure, r. 57.01, R. v. Mohan, [1994] 2 S.C.R. 9, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, R. v. J.(J.-L.), 2000 SCC 51, Frye v. United States, 293 F. 1013 (U.S. D.C. Ct. App., 1923),  Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (U.S. Cal., 1993), R. v. St. Amand, 2014 ONCJ 800, R. v. Munoz Hernandez, 2013 ONSC 4257, Mole and Mole v. Manwell, 2017 ONSC 3357,  Meade v. Hussein, 2021 ONSC 7850, Legree v. Origlieri, 2021 ONSC 7650,  Marcoccia v. Gill, 2007 CanLII 11322 (Ont. S.C.), Hornick v. Kochinsky, 2005 CanLII 13784 (Ont. S.C.), Gutfriend v. Case, 2022 BCSC 2055, Bolduc v. Stratton, 2022 BCSC 1168, R. v. Krause (1986), 54 C.R. (3d) 294 (S.C.C.), R. v. F.(C). 2017 ONCA 480, Walker v. Ritchie (2005), 197 O.A.C. 81 (C.A.), Cadieux v. Cloutier, 2018 ONCA 903, Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.), Brown v. Bouwkamp (1976), 12 O.R., (2d) 33, Bannon v. McNeely, [1998] 38 O.R. (3d) 659 (C.A.), Gilbert v. South (2015), 2015 ONCA 712, Basandra v. Sforza (2016), 130 O.R. (3d) 466 (C.A.), and El-Khodr v. Lackie (2017), 139 O.R. (3d) 659, Gurniak v. Nordquist, 2003 SCC 59,  Brad-Jay Investments Ltd. v. Szijjarto, [2006] O.J. No. 5078 (C.A), leave to appeal refused, [2007] S.C.C.A. No. 92, Young v. Young, [1993] 4 S.C.R. 3, Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771

2275518 Ontario Inc. v. The Toronto-Dominion Bank , 2024 ONCA 343

Keywords: Civil Procedure, Summary Judgment, Viva Voce Evidence, Third-Party Claims, Rules of Civil Procedure, r. 20.04(2.2), Hryniak v Mauldin, 2014 SCC 7, Ayr Farmers Mutual Insurance Company v Wright, 2016 ONCA 789, Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27

Flight (Heritage Painters & Services) v. Bank of Nova Scotia , 2024 ONCA 370

Keywords: Bankruptcy and Insolvency, Civil Procedure, Striking Pleadings, Security for Costs, Frivolous and Vexatious Proceeding, Conversion, Breach of Contract, Negligence, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Rules of Civil Procedure, rr. 21.01(b), 21.01(3)(b), and 25.11, 61.06(1)(a) or (b), Yaiguaje v Chevron Corporation, 2017 ONCA 827, Heidari v Naghshbandi, 2020 ONCA 757, Schmidt v Toronto-Dominion Bank (1995), 24 OR (3d) 1 (CA)

Croke v. VuPoint System Ltd., 2024 ONCA 354

Keywords: Contracts, Employment, Wrongful Dismissal, Defences, Frustration, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, Fraser Health Authority v. Hospital Employees’ Union (Tracy London Termination), 2022 CanLII 91089 (B.C.L.A.), Cowie v. Great Blue Heron Charity Casino, 2011 ONSC 6357 (Div. Ct.), Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201, Flieger v. New Brunswick, [1993] 2 S.C.R. 651, Munoz v. Sierra Systems Group Inc., 2016 BCCA 140, Cowie v. Great Blue Heron Charity Casino, 2011 ONSC 6357 (Div. Ct.)

U.S. Steel Canada Inc. (Re), 2024 ONCA 363

Keywords: Bankruptcy and Insolvency, Contracts, Real Property, Remedies, Specific Performance, Civil Procedure, Leave to Appeal, Companies’ Creditors Arrangement Act, RSC, 1985, c. C-36, Stelco Inc (Re) (2005), 75 OR (3d) 5 (CA), US Steel Canada Inc et al v The United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et al, 2022 ONSC 6993, US Steel Canada Inc (Re), 2023 ONCA 569, Nortel Networks Corporation (Re), 2016 ONCA 332

7868073 Canada Ltd. v. 1841978 Ontario Inc., 2024 ONCA 371

Keywords: Contracts, Interpretation, Licenses, Restrictive Covenants, Non-Competition Agreements, Enforceability, Restraint of Trade, Indefinite Contracts, Termination, Corporations, Directors, Fiduciary Duties, Corporate Opportunities, Misappropriation, Civil Procedure, Costs, Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, Tank Lining Corp. v. Dunlop Industrial Ltd. (1982), 40 O.R. (2d) 219 (C.A.), Warner Brothers Pictures Inc. v. Nelson, [1936] 3 All E.R. 160 (K.B.), MEDIchair LP v. DME Medequip Inc., 2016 ONCA 168, Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72, Elsley v. J.G. Collins Ins. Agencies Ltd., [1978] 2 S.C.R. 916, Payette v. Guay inc., 2013 SCC 45, M & P Drug Mart Inc. v. Norton, 2022 ONCA 398,  Mroz v. Mroz, 2015 ONCA 171, Conseil Scolaire Catholique Franco-Nord v. Nipissing Ouest (Municipalité), 2021 ONCA 544, Veolia ES Industrial Services Inc. v. Brulé, 2012 ONCA 173, leave to appeal refused, [2012] S.C.C.A. No. 229, GasTOPS Ltd. v. Forsyth, 2009 CanLII 66153 (Ont. S.C.), aff’d 2012 ONCA 134, Galambos v. Perez, 2009 SCC 48, Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225 (Gen. Div.), Can. Aero v. O’Malley, [1974] S.C.R. 592, John D. McCamus, The Law of Contracts, 3rd ed. (Toronto: Irwin Law, 2020)

Short Civil Decisions

Roe v. Roe, 2024 ONCA 349

Keywords: Wills and Estates, Costs, 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.), Algra v. Comrie Estate, 2023 ONCA 811

Mouralian v. Groleau, 2024 ONCA 342

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Equitable Remedies, Relief from Forfeiture, Civil Procedure, Appeals, Fresh Evidence, Stockloser v. Johnson, [1954] 1 Q.B. 476 (C.A.)

Kanata Utilities Ltd. v. 1414610 Ontario Inc. (MAG Eastwood Construction), 2024 ONCA 367

Keywords: Civil Procedure, Documentary Discovery, Orders, Enforcement, Striking Pleadings, Costs, Rules of Civil Procedure, r 30.08(2), Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310

Gray v. Gray, 2024 ONCA 375

Keywords: Wills and Estates, Estate Trustees, Removal, Trustee Act, R.S.O. 1990, c. T.23, s 38, Evidence Act, R.S.O. 1990, c. E.23, s 13, Westover Estate v. Jolicouer, 2024 ONCA 81

Bank of Nova Scotia v. Curtis, 2024 ONCA 374

Keywords: Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, RSO 1990, c C 43, s 7(5), Hililmount Capital Inc. v. Pizale, 2021 ONCA 36

Pyper v. Goble, 2024 ONCA 372

Keywords: Civil Procedure, Vexatious litigants, Courts of Justice Act, RSO 1990, c C 43, s 140


CIVIL DECISIONS

Kolapully v. Myles, 2024 ONCA 350

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

Counsel:

C. Townsend and Max Luburic, for the appellants

M. Dahab and A. Kaur, for the respondent

J. Obagi and E. Quigley, for the intervener Ontario Trial Lawyers Association

J. Tausendfreund and D. Zuber, for the intervener Canadian Defence Lawyers

Keywords: Contracts, Insurance, Motor Vehicle Accidents, Damages, Collateral Benefits, Statutory Accident Benefits, Deductibility, Double Recovery, Civil Procedure, Evidence, Admissibility, Expert Evidence, Damages, Costs, Insurance Act, R.S.O. 1990, c. I.8, s. 267.8, Ontario Evidence Act, S.O. 1990, c. E.23, s. 35, 52, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), Statutory Accident Benefits Schedule, s. 35, 12(4)(c), Rules of Civil Procedure, r. 57.01, R. v. Mohan, [1994] 2 S.C.R. 9, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, R. v. J.(J.-L.), 2000 SCC 51, Frye v. United States, 293 F. 1013 (U.S. D.C. Ct. App., 1923),  Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (U.S. Cal., 1993), R. v. St. Amand, 2014 ONCJ 800, R. v. Munoz Hernandez, 2013 ONSC 4257, Mole and Mole v. Manwell, 2017 ONSC 3357,  Meade v. Hussein, 2021 ONSC 7850, Legree v. Origlieri, 2021 ONSC 7650,  Marcoccia v. Gill, 2007 CanLII 11322 (Ont. S.C.), Hornick v. Kochinsky, 2005 CanLII 13784 (Ont. S.C.), Gutfriend v. Case, 2022 BCSC 2055, Bolduc v. Stratton, 2022 BCSC 1168, R. v. Krause (1986), 54 C.R. (3d) 294 (S.C.C.), R. v. F.(C). 2017 ONCA 480, Walker v. Ritchie (2005), 197 O.A.C. 81 (C.A.), Cadieux v. Cloutier, 2018 ONCA 903, Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.), Brown v. Bouwkamp (1976), 12 O.R., (2d) 33, Bannon v. McNeely, [1998] 38 O.R. (3d) 659 (C.A.), Gilbert v. South (2015), 2015 ONCA 712, Basandra v. Sforza (2016), 130 O.R. (3d) 466 (C.A.), and El-Khodr v. Lackie (2017), 139 O.R. (3d) 659, Gurniak v. Nordquist, 2003 SCC 59,  Brad-Jay Investments Ltd. v. Szijjarto, [2006] O.J. No. 5078 (C.A), leave to appeal refused, [2007] S.C.C.A. No. 92, Young v. Young, [1993] 4 S.C.R. 3, Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771

facts:

The respondent, S.K., was struck by a TTC bus while crossing the street at Ellesmere Road and Nielson Road in Toronto on March 6, 2012. The appellant, L.M., was driving the bus and is a TTC employee. K has sought relief in a number of forums over a lengthy period of time. All of her claims have been vigorously resisted by the TTC on its own behalf and for M. It appeared that the TTC considered K to be a malingerer and considered all the decisions to the contrary in the long litigation litany to be mistaken in whole or in part, including the jury verdict, the trial motions, and the costs decisions under appeal.

On December 3, 2013, K started an action for general and specific damages claiming that she suffered serious and permanent physical and psychological impairment. K also initiated a proceeding before the Licence Appeal Tribunal (“LAT”). In January 2018, the LAT found she was catastrophically impaired according to the Statutory Accident Benefits Schedule (the “SABS”). The TTC applied for reconsideration, which was denied. K applied for arbitration at the Financial Services Commission of Ontario. On March 9, 2018, Arbitrator Barrington found she was entitled to non-earner benefits under the SABS.

After a six-week trial in 2022, the jury awarded K $175,000 in non-pecuniary damages and $200,000 in damages for past loss of income. The jury apportioned the degree of negligence at 25% to K and 75% to the appellants. The trial judge determined that the amount K had received for non-earner benefits under the SABS – about $95,000 – was not to be deducted from the damages award for past income loss under s. 267.8 of the Insurance Act. The TTC appealed.

issues:
  1. Did the trial judge err in admitting the results of the Single Photon Emission Computed Tomography (“SPECT”) Scan?
  2. Did the trial judge err in refusing to allow the respondents to introduce the attendant care claims forms into evidence?
  3. Did the trial judge err in her jury instructions on causation and the calculation of damages?
  4. Are non-earner benefits deductible from an award for loss of income under s. 267.8 of the Insurance Act?
  5. Did the trial judge make errors in her costs award?
holding:

Appeal allowed, in part.

reasoning:
  1. No.

There are two steps in the test to admit expert evidence. The first is the threshold requirement, and the second engages the judge’s discretionary, gatekeeper function. The threshold requirement has four elements for admissibility: the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified. At the second, gatekeeping step, the trial judge must weigh the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the potential harm to the trial process that might flow from the admission of the expert evidence. Daubert holds that the reliability of expert opinion premised on novel or contested science depends on the reliability of the underlying scientific methodology.  The Court adopted the Goudge factors as a useful framework for trial judges to use in assessing the reliability of expert opinions based on novel or contested science. However, scientific techniques that are commonly used and reliable enough for clinical purposes might nonetheless be treated as novel when used for forensic or evidentiary purposes.

The TTC’s expert, Dr. RY, admitted his lack of expertise and knowledge during cross-examination, leading the trial judge to find that his evidence should be given little weight. This would have affected both the threshold decision on admissibility and the weight the jury would have given to the SPECT scan evidence. The trial judge was clearly alive to her gatekeeping role and the applicable legal principles. She ultimately admitted Dr. S’s report into evidence and permitted Dr. M to speak to it but ordered the summary portion to be fully redacted. The trial judge distinguished Meade on several bases, most particularly on the academic support Dr. M provided for the use of SPECT scans as a diagnostic tool to confirm or to add information to a provisional diagnosis.

This was a discretionary decision by the trial judge that was adequately explained. It was plain from her reasons that the trial judge kept in mind the governing principles for the admission of contested science and the need to balance the prejudicial effect and probative value of the evidence. However, it was not to be interpreted as finding that SPECT scans are reliable in detecting traumatic brain injury; the admissibility and use of the evidence was determined by the trial judge applying the proper principles.

  1. No.

The attendant care forms were not relevant to a fact in issue. What was important was whether the attendant care claim was ultimately put to the jury. The claim was not pursued and the way the blank forms were completed and processed were not relevant. There was also no error in the trial judge’s conclusion that the forms were not relevant generally to K’s disability claim.

A matter is collateral where it is “not determinative of an issue arising in the pleadings or indictment or not relevant to the matters which must be proved for the determination of the case.” The trial judge’s decision not to allow the attendant care forms to be put to K and explored further in her evidence was a reasonable exercise of her discretion under the collateral facts rule. First, the evidence about how the forms were signed and used by someone in a fraud would have diverted the jury down an exercise far from the task before it. Second, the trial judge was well placed to assess the balance of probative value and prejudicial effect in view of her awareness of the other evidence that was to be adduced. Third, this evaluation was fair and accurate, since the TTC’s case included an attack on K’s credibility on the substantive evidence before the jury. Fourth, the exclusion of the attendant care forms did not deprive the TTC of its line of attack on K’s credibility or leave the jury with a distorted perception.

The jury was well equipped to make the credibility findings and knew its task. The trial judge did not err in the exercise of her discretion in refusing to admit the blank attendant care forms into evidence.

  1. No.

There was no error in trial judge’s instruction correcting the error of K’s counsel in referring to “material contribution” as the applicable test for causation. The charge directly addressed and corrected the erroneous statements that were put to the jury and clearly set out the proper law on causation. The fact that the TTC’s counsel accepted the proposed correction and did not request a re-charge reinforced its adequacy. The trial judge’s correction of the closing statement of K’s counsel that the calculation of non-pecuniary damages should be done on a per diem basis clearly identified the offending comments, explained why they were incorrect, and instructed the jury not to follow them.

  1. Yes.

The result in Walker was overruled by the court in Cadieux and was therefore not binding on the trial judge. The trial judge did not consider the important changes to s. 267(8) of the Insurance Act and the legislature’s introduction of silos into the text of s. 267(8), and the trial judge’s failure to consider this context led her into error. The Walker court found that non-earner benefits were not only unrelated to income loss but were in fact most akin to general damages, but this reasoning was in error, was rejected by the Cadieux court, and should not be followed. The trial judge erred in characterizing as mere obiter the court’s inclusion of non-earner benefits in the silo of income replacement benefits which are to be deducted from a tort award for loss of income. She noted correctly that Cadieux made no reference to Walker. However, the court accepted the inclusion of non-earner benefits in that silo as proposed in the appellant’s factum in Cadieux. The trial judge was required to deduct the amount that K had received for non-earner benefits under the SABS.

  1. No.

The governing test is that leave to appeal costs awards is exceptional and will not be granted “save in obvious cases where the party seeking leave convinces the court there are ‘strong grounds upon which the appellate court could find that the judge erred in exercising his discretion’.” The trial judge expressly considered the relevant r. 57.01 factors but held that they did not call for a reduction in the costs award. She was entitled to exercise her discretion not to reduce the award, in part because of the impact of the “fraud lens” on the length and complexity of the trial. There was ample basis to find that the TTC took the “fraud lens” view. The prerequisite for awarding costs of the LAT hearing is a reduction of damages flowing from the LAT disposition, not a deduction. It was open to the trial judge under s. 131(1) of the Courts of Justice Act to award “costs of and incidental to a proceeding”.

The trial judge made no error in concluding that K’s successful pursuit of the catastrophic impairment designation, which gave her access to funds for medical, rehabilitation, attendant care, and housekeeping costs, narrowed the scope of her tort action and reduced the amount of damages recoverable against the TTC. The deductibility of the non-earner benefits added to the force of this argument. It was open to the trial judge to order that the TTC pay K’s costs of the LAT hearing.


2275518 Ontario Inc. v. The Toronto-Dominion Bank, 2024 ONCA 343

[Fairburn A.C.J.O., Simmons J.A. and Daley J. (ad hoc)]

Counsel:

E. Karp and I. Literovich, for the appellants

M. J. van Zandvoort and J. Suttner, for the respondent

Keywords: Civil Procedure, Summary Judgment, Viva Voce Evidence, Third-Party Claims, Rules of Civil Procedure, r. 20.04(2.2), Hryniak v Mauldin, 2014 SCC 7, Ayr Farmers Mutual Insurance Company v Wright, 2016 ONCA 789, Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27

facts:

This appeal was from a motion for summary judgment granted in favour of TD Bank against the appellants and the Guarantors who had defaulted on a loan. The Guarantors claimed their lawyer’s failure to properly register the bank’s security prevented TD from enforcing the guarantees. Despite extensive legal proceedings and a mini-trial featuring testimony from key parties in January 2023, the motion judge determined there was no genuine issue requiring a full trial and dismissed the misrepresentation and other defences. The judge also ruled that the third-party claim did not obstruct the summary judgment, leading to this appeal.

issues:
  1. Did the motion judge err by ordering oral evidence from a non-party, J.S, in violation of r. 20.04(2.2) of the Rules of Civil Procedure?
  2. In the alternative, did the motion judge err by making findings of fact and credibility relating to the appellants’ third-party claim against J.S, thereby creating a risk of inconsistent findings of fact and effectively granting partial summary judgment?
  3. In the further alternative, did the motion judge err by granting summary judgment in the main action prior to the determination of the third-party claim, thereby prejudicing the appellants’ interests?
holding:

Appeal dismissed.

reasoning:
  1. No.

The appellants argued that the motion judge erred by allowing a non-party, J.S, to testify during the mini-trial proceeding in violation of r. 20.04(2.2). The appellants submitted that a motion judge’s jurisdiction to order oral evidence on a mini-trial was limited to ordering evidence from only the parties themselves. They said that a mini-trial was not intended to be a trial that included a parade of witnesses testifying about multiple issues. The Court noted that r. 20.04(2.2) contained no limitation, such as the one advanced by the appellants, restricting the jurisdiction of the court to order evidence on a mini-trial from non-parties. On its face, the rule states that oral evidence can be “presented” by one or more parties. It does not state that evidence can only be given by parties. Furthermore, the modern approach to statutory interpretation supports that r. 20.04(2.2) permits oral evidence from non-parties if it aids in reaching a fair and just decision. Thus, the Court dismissed the first ground of appeal.

2. No.

The second ground of appeal challenged the decision to let J.S testify during the mini-trial, arguing it was inappropriate while a third-party proceeding against him was outstanding. The appellants contended that this could lead to inconsistent fact findings, particularly since the motion judge made conclusions that may have affected the third-party negligence claim against J.S without having all relevant evidence. The Court upheld the use of enhanced fact-finding processes, emphasizing the summary judgment’s role in promptly resolving creditor claims without genuine trial issues. The Court found that the negligence claim against J.S did not intersect materially with TD Bank’s claims, allowing for separate proceedings without conflicting outcomes.

3. No.

The Court affirmed that the motion judge correctly determined that it was just to grant summary judgment after a mini-trial, having fully considered the extensive evidence and complexities of the case. The trial, including all necessary witness testimony and examinations, was deemed efficient and appropriate. Furthermore, the appellants had ample opportunity to integrate their third-party claim into the main action for simultaneous resolution, but chose not to. Thus, their later objections to the process were dismissed, as they had previously declined to seek adjustments that could have addressed any procedural concerns.


Flight (Heritage Painters & Services) v. Bank of Nova Scotia, 2024 ONCA 370

[Gomery J.A. (Motions Judge)]

Counsel:

J. Wahba, for the moving party

T. Vasdani, for the responding party

J. Squire, for the third party

Keywords: Bankruptcy and Insolvency, Civil Procedure, Striking Pleadings, Security for Costs, Frivolous and Vexatious Proceeding, Conversion, Breach of Contract, Negligence, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Rules of Civil Procedure, rr. 21.01(b), 21.01(3)(b), and 25.11, 61.06(1)(a) or (b), Yaiguaje v Chevron Corporation, 2017 ONCA 827, Heidari v Naghshbandi, 2020 ONCA 757, Schmidt v Toronto-Dominion Bank (1995), 24 OR (3d) 1 (CA)

facts:

B.F sought to reinstate his lawsuit against the Bank of Nova Scotia, which was dismissed under rules 21.01(b), 21.01(3)(b), and 25.11 of the Rules of Civil Procedure by Koehnen J. His legal struggles involved several lawsuits related to funds misappropriated by his ex-spouse, J.L. B.F’s initial lawsuit against J.L was dismissed due to his status as an undischarged bankrupt. Subsequent actions included a dismissed claim against his bankruptcy trustee and an unresolved lawsuit where B.F alleged negligence by the trustee. Additionally, a default judgment B.F obtained in a trustee-initiated lawsuit was not enforceable without consent from the Court, and his attempt to enforce this judgment was later denied as the action was found time-barred. Finally, B.F initiated a lawsuit against the Bank of Nova Scotia, claiming damages for conversion, breach of contract, and negligence.

issues:

Should B.F be required to post security for its costs of the appeal?

holding:

Motion granted.

reasoning:

Yes.

Rule 61.06(1)(a) empowers the Court to order security for costs where there was good reason to believe that the appeal was frivolous and vexatious and that the appellant had insufficient assets in Ontario to pay the costs of the appeal.

The Court found that B.F’s appeal appeared to be frivolous and vexatious. B.F’s appeal had no merit. B.F attacked the motion judge’s findings without explaining in any meaningful way why they were wrong. He contended that, in declining to grant J.L any costs, the motion judge recognized that she “may well have engaged in inappropriate transactions”. But the question was not whether or not B.F could prove that J.L misappropriated funds but rather whether his action against the Bank based on that alleged misappropriation was time-barred. B.F argued that his appeal could succeed because the Bank had not abandoned its third-party claim against J.L. The Court found that the third-party claim did not amount to a concession that the action had any merit.

Second, B.F acknowledged that he did not have sufficient assets in Ontario to pay the Bank’s costs. Thus, the Court found that the Bank had met the criteria in r. 61.06(1)(a), and that it was just to order B.F to post security for costs. The Bank also sought an order for security for costs under r. 61.06(1)(b), which allowed the Court to order security for costs where such an order could be made under s. 56.01. However, given the Court’s conclusions under r. 61.06(1)(a), the Court concluded that it need not consider those submissions.


Croke v. VuPoint System Ltd., 2024 ONCA 354

[Pepall, Sossin and Dawe JJ.A.]

Counsel:

D. Share and N. Goldhawk, for the appellant

E. Campbell and C. Phelps, for the respondent

Keywords: Contracts, Employment, Wrongful Dismissal, Defences, Frustration, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, Fraser Health Authority v. Hospital Employees’ Union (Tracy London Termination), 2022 CanLII 91089 (B.C.L.A.), Cowie v. Great Blue Heron Charity Casino, 2011 ONSC 6357 (Div. Ct.), Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 201, Flieger v. New Brunswick, [1993] 2 S.C.R. 651, Munoz v. Sierra Systems Group Inc., 2016 BCCA 140, Cowie v. Great Blue Heron Charity Casino, 2011 ONSC 6357 (Div. Ct.)

facts:

The appellant, A.C., was employed by the respondent, VuPoint Systems Ltd. (“VuPoint”), as a technician. VuPoint is in the business of installing residential satellite TV and “smart home” internet services. Its main customers are Bell Canada and Bell ExpressVu (collectively, “Bell”), which provide more than 99% of VuPoint’s income. All of the appellant’s work was for Bell and it was undisputed that there was no other work VuPoint could provide to the appellant.

In 2021, Bell implemented a mandatory vaccination policy, following which VuPoint adopted its own vaccination policy. The appellant refused to comply with the VuPoint Policy by disclosing his vaccination status, which was deemed to mean that he was unvaccinated. Consequently, pursuant to the Bell Policy, he was not eligible to continue working as a technician providing services for Bell customers. VuPoint terminated the appellant’s employment, and he brought a wrongful dismissal action.

The motion judge dismissed the action, finding that the appellant’s employment contract was frustrated by the implementation of the Bell Policy. The appellant appealed that finding, arguing that the motion judge should not have applied the doctrine of frustration and, in the alternative, that the application of frustration in this case was incorrect.

issues:
  1. Did the motion judge err in law in holding that the employment contract was frustrated by the appellant’s voluntary conduct?
  2. Did the motion judge err in fact or in law in holding that the “supervening event” was not contemplated at the time of contracting?
  3. Did the motion judge err in law in finding that the “supervening event” was outside of VuPoint’s control?
  4. Did the motion judge err in finding that the appellant received a “clear and unambiguous” warning that his vaccination status would result in termination?
holding:

Appeal dismissed.

reasoning:
  1. No.

A party alleging frustration must establish that there was a “supervening event” that: (i) radically altered the contractual obligations; (ii) was not foreseeable and for which the contract does not contemplate; and (iii) has not been caused by the parties.

The appellant argued that the frustration in this case stemmed from his voluntary decision not to comply with the Policy, and therefore the third criteria above was not met. He relied on Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, where this court held that “a contract is not frustrated if the supervening event results from a voluntary act of one of the parties.” On this view, according to the appellant, an employee’s voluntary conduct should be dealt with through the law of just cause, whereby termination of employment is considered an extreme measure. The appellant asserted that applying frustration to his voluntary choice not to comply with the Policy would allow parties to tailor their behaviour, in effect, to induce frustration.

The motion judge, in applying Fraser Health Authority, did not specifically address whether the appellant’s voluntary choice to remain unvaccinated prevented the doctrine of frustration from being brought into play. However, in the Court’s view, it did not. This was not a case where the conduct of the appellant in fact frustrated the employment contract. Rather, the Court accepted, as did the motion judge, that the Bell Policy was the supervening event which frustrated the contract.

The letter informing VuPoint of the Bell Policy, dated September 8, 2021, made no reference to the conduct of employees, nor was the conduct of individual employees relevant for the application of the Bell Policy. Under the Bell Policy, it did not matter whether a person conducting field service work for Bell chose not to get vaccinated, could not obtain vaccinations in their region or could not get vaccinated due to medical or religious factors. The effect of the Bell Policy, from VuPoint’s position, was akin to that of a new regulatory requirement: absent vaccination, VuPoint’s employees were ineligible to work on Bell projects, which was nearly all of VuPoint’s work.

Whether an employee affected by such a supervening event can or will seek once again to become qualified (or, in this case, vaccinated), was not relevant to a threshold determination of whether the doctrine of frustration was applicable. This was because it is not the employee’s choice or conduct that renders them unable to work but, rather, the introduction of the new requirement that they do not satisfy. In other words, it is the new requirement that is the supervening event.

The evidence before the motion judge also indicated that the appellant’s termination may have been revoked had he responded that he intended to become vaccinated. VuPoint’s openness to allowing the appellant to rectify his ineligibility to continue to perform services for Bell did not lead to a finding that the frustration of the employment contract in this case was self-induced. However, that was clearly not the case here. The motion judge found that the appellant had not advised VuPoint that he intended to become vaccinated, despite his awareness that termination could result from non-compliance with the Policy. Furthermore, VuPoint had no knowledge of the timeline of the Bell Policy and there was no evidence in the record that the vaccination requirement would be simply a temporary or short-lived measure.

The Court held that it was not realistic to have expected VuPoint to have “bargained with Bell Canada for more discretion over matters of health and safety”, as the appellant argued. The Bell Policy was plainly motivated by a reasonable concern relating to the COVID-19 pandemic and that its customers may not want unvaccinated installation technicians entering their homes. The Court concluded that frustration was available to the motion judge, irrespective of the appellant’s conduct.

  1. No.

The motion judge found that the Bell Policy was unforeseen and not contemplated by either party when they entered into the appellant’s employment contract in 2014. The appellant argued that the motion judge erred in reaching this conclusion. Frustration cannot arise if the parties contemplated the supervening event at the time of contracting. In the appellant’s view, business exigencies are not normally considered unforeseen events giving rise to frustration, and the Bell Policy constituted such a business exigency brought about by Bell’s rights set out in the Supply Agreement between Bell and VuPoint.

Furthermore, the appellant argued that the Supply Agreement, signed prior to the announcement of the Bell Policy in 2021, contemplated that Bell could implement new “health and safety requirements.” As the supervening event in this case was Bell’s decision to change its health and safety requirements by requiring COVID-19 vaccination on the part of VuPoint employees conducting work for Bell, he argued that this was a foreseeable exercise of contractual power. As a result, according to the appellant, the doctrine of frustration did not apply.

In the Court’s view, the motion judge’s finding that the Bell Policy was an unforeseen circumstance was entitled to deference. The cases relied on by the appellant did not support the broad exception for business exigencies claimed by the appellant. In neither case was frustration raised by the parties, nor did the court in either case perform an analysis of the doctrine of frustration. Neither case has been relied on for this proposition, nor has either case been referred to in other authorities where the doctrine of frustration was raised and analysed.

Furthermore, the 2021 Supply Agreement was not relevant to the analysis of foreseeability. The focal point of the foreseeability analysis is 2014, when the employment contract was signed. The 2021 Supply Agreement was not in place at this time and there is nothing in the record establishing what agreement was in place between Bell and VuPoint in 2014.

The Court rejected the appellant’s argument with respect to the foreseeability of the Bell Policy and whether it was contemplated by the parties.

  1. No.

The appellant argued that the supervening event was not the Bell Policy but rather VuPoint’s choice to respond to the Bell Policy by terminating his employment. The Bell Policy required those performing work for Bell to be vaccinated, but it did not require the appellant to be terminated. Where the employer’s response is a dismissal, it should be subject to a just cause analysis. The appellant emphasized that VuPoint could have taken other non-disciplinary action, such as suspension without pay. It also could have given him notice of termination without cause and offered him an opportunity to mitigate his damages by becoming fully vaccinated, which would have enabled him to continue to work. The appellant’s argument was that, in effect, his termination was framed as frustration of contract after the fact but, in reality, was a termination for just cause. Further, according to the appellant, if the motion judge’s reasoning in this case was affirmed, employers would be able to use frustration as an alternative ground for any termination for cause related to ongoing misconduct, such as absences, tardiness, or negligence.

The Court rejected the appellant’s argument. Frustration of contract is a “no fault” termination of the contract. Where frustration is established, it has the effect of discharging the agreement, thereby releasing the parties from any further obligation to perform. It follows that remedies applicable to misconduct, such as progressive discipline, suspension or warnings, have no application in the context of frustration.

The possibility that an employee might be able to rectify the disruption to an employment contract caused by a supervening event is relevant to the analysis of whether the supervening event results in “a radical change to the fundamental obligations of the contract.” Similarly, determining how information about a disruption should be conveyed to an employee in the context of a particular supervening event, or how an employee should inform an employer of an intent to rectify their ineligibility to continue employment, if possible, also would relate to a determination of whether there has been a radical change. In the case at bar, however, these questions do not arise, as the appellant clearly was aware of the Bell Policy, refused to comply, knew that termination could result and never signaled any intent to become vaccinated.

Accordingly, the motion judge correctly identified the Bell Policy as the supervening event and concluded that the Policy was not foreseeable and radically altered the contractual obligations of the parties. There was no evidence in the motion record that VuPoint had any control over Bell’s decision to implement the Policy. The termination of the appellant’s employment was simply the inevitable result of this finding and of VuPoint’s corresponding entitlement to treat the contract as at an end.

  1. No.

The motion judge found that the appellant was provided with two weeks’ working notice and that he was therefore aware of the consequences of non-compliance with the Policy for at least that two-week period. The motion judge considered a letter from the appellant to his supervisor at VuPoint dated October 9, 2021, stating that the appellant would not disclose his vaccination status due to privacy laws and claiming that VuPoint was discriminating against him by terminating his employment for his decision to not become vaccinated. The motion judge found that this letter was a “clear and unequivocal” statement that the appellant would not comply with the Policy in the future.

The appellant argued that he did not receive an adequate warning that non-compliance with the Policy would result in termination. The appellant argued that the October 9th letter was written from this perspective – he believed his employment to be over, so he stood to lose little by committing to his position of non-compliance with respect to the Policy. According to the appellant, the letter was post-termination evidence that could not be used to determine whether there has been frustration.

In the Court’s view, the motion judge ascribed more significance than needed to the appellant’s October 9th letter in response to the notice of termination. Whether the appellant’s communication with VuPoint was clear or ambiguous, and indeed whether or not he communicated with VuPoint at all on this date, would have no bearing on the frustration analysis, which is to be conducted based on the information known at the point of termination: in this case, when the notice of termination letter was sent on September 28, 2021.

In any event, there was other evidence supporting that the appellant knew termination could result from non-compliance, such as the evidence that he was aware of the Policy and the need to be vaccinated, he knew there was no work he could perform without the vaccination, he began looking for other work after being advised of the Policy, and he specifically looked for a position that did not require a vaccine.

The Court was satisfied that when VuPoint sent its termination letter on September 28, 2021, it was entitled to conclude that there had been a radical alteration of its employment contract with the appellant. VuPoint’s Policy, which it implemented on September 10, 2021, required employees to advise VuPoint of their “vaccination status”. There was no evidence that the appellant ever told VuPoint that he was either fully or partially vaccinated, despite the fact that he was aware of the Policy. In short, this was not a situation where VuPoint knew that the appellant’s inability to work on Bell installation projects because he could not or would not provide proof of vaccination would be only temporary and relatively brief, and that the employment relationship would accordingly not be radically altered.


U.S. Steel Canada Inc. (Re), 2024 ONCA 363

[Roberts, Trotter and George JJ.A.]

Counsel:

G. R. Hall and J. D. Gage, for the appellant, Stelco Inc.

C. G. Smith, D. Ionis, K. B. Johnstone, R. Jaipargas and X. Yan, for the respondent, DGAP Investments Ltd.

Keywords: Bankruptcy and Insolvency, Contracts, Real Property, Remedies, Specific Performance, Civil Procedure, Leave to Appeal, Companies’ Creditors Arrangement Act, RSC, 1985, c. C-36, Stelco Inc (Re) (2005), 75 OR (3d) 5 (CA), US Steel Canada Inc et al v The United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et al, 2022 ONSC 6993, US Steel Canada Inc (Re), 2023 ONCA 569, Nortel Networks Corporation (Re), 2016 ONCA 332

facts:

Stelco Inc, the moving party, sought leave to appeal the order issued on December 12, 2023, by the CCAA supervisory judge (“the motion judge”) under the Companies’ Creditors Arrangement Act (CCAA). This was part of a contentious legal battle between Stelco Inc. and DGAP Investments Ltd. concerning a reorganization agreement. Specifically, the conflict revolved around a parcel of land Stelco Inc was obligated to return to LandCo under a reconveyance agreement dated June 5, 2018, but failed to do so. The issue centered on the failure of Stelco Inc and LandCo to finalize an agreement on shared facilities and easements necessary for the property’s operation, as required by the reconveyance agreement. Consequently, DGAP could not complete its land purchase from LandCo. The motion judge partially granted DGAP’s motion, rejecting Stelco Inc’s proposed easements that were not compliant with the agreement and declined to enforce DGAP’s proposed easement form. However, the motion judge held that, absent an agreement by a stipulated date, the court retained the authority to impose terms and conditions to bring about the reconveyance of the DGAP Parcel. Stelco Inc sought leave to appeal.

issues:
  1. Did the motion judge err in concluding that the Superior Court had the power, in the circumstances of the case, to create and impose the shared facilities and/or reciprocal easement agreements required by s. 4.1(m) of the Reconveyance Agreement notwithstanding the absence of the moving party’s consent?
  2. Did the motion judge err in concluding that s. 4.1(m) of the Reconveyance Agreement precluded the moving party from negotiating terms in the shared facilities and/or reciprocal easement agreements required by s. 4.1(m) of the Reconveyance Agreement?
holding:

Motion dismissed.

reasoning:

1 & 2) No.

The Court noted that leave to appeal was granted sparingly in CCAA proceedings and only where there were serious and arguable grounds that were of real and significant interest to the parties. The criteria for granting leave include: (1) whether the proposed appeal was prima facie meritorious or frivolous; (2) whether the points on the proposed appeal were of significance to the practice; (3) whether the points on the proposed appeal were of significance to the action; and (4) whether the proposed appeal would unduly hinder the progress of the action.

The Court found that the proposed appeal was not prima facie meritorious. The Court ruled that the motion judge’s interpretation of the Reconveyance Agreement deserved deference, and the moving party had not demonstrated any plausible errors in the interpretation. On the contentious legal issue of whether a Court can impose an agreement on a non-consenting party under section 11 of the CCAA, the court referred to its prior decision in U.S. Steel Canada Inc. et al. v. The United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et al, where it was decided that the Court could enforce specific performance of the Reconveyance Agreement regardless of unresolved issues under Article 4.1(m). It was also noted that during a previous motion, as cited in U.S. Steel Canada Inc. (Re), both parties conceded that a Commercial List judge could determine the necessary agreements if no mutual agreement was reached, indicating inconsistency in the moving party’s position opposing reconveyance.

Regarding the appeal’s relevance to legal practice, the Court found that while the interpretation of the Reconveyance Agreement was not of broad significance, the issue of a Court imposing contracts on non-consenting parties carried potential importance to the CCAA community. In terms of the appeal’s significance to the specific legal action, the Court recognized the relevance of the dispute to both parties involved but did not heavily emphasize this factor, as it was generally expected in appeal situations. The Court highlighted that further delays caused by the appeal were undesirable. The moving party had been in continuous breach of a previous court order from December 2022 to perform specific reconveyance obligations, which had been outstanding since 2018. The Court emphasized the urgency of concluding the transaction, as detailed delays were already affecting the proceedings adversely.


7868073 Canada Ltd. v. 1841978 Ontario Inc., 2024 ONCA 371

[Fairburn A.C.J.O., Simmons J.A. and Daley J. (ad hoc)]

Counsel:

M. Milne-Smith, for the appellant/respondent by way of cross-appeal(COA 22-CV-0384) and respondent/respondent by way of cross-appeal (COA 23 CV-0587), GS

H. Book and W. McLennan, for the respondents/respondents by way of cross-appeal (COA-22-CV-0384) and appellants/respondents by way of crossappeal (COA-23-CV-0587), Vacuum Metallizing Limited, RL, JS and 1841978 Ontario Limited

M. L. Whelton, E. Hiutin and M. Coker, for the respondents/appellants by way of cross-appeal (COA-22-CV-0384 & and COA 23 CV-0587), 7868073 Canada Ltd., 1841979 Ontario Limited, 1636833 Ontario Inc., Architectural Coatings Solutions Inc., Transreflect Inc., Low Risk Logistics Inc., IM and WK

Keywords: Contracts, Interpretation, Licenses, Restrictive Covenants, Non-Competition Agreements, Enforceability, Restraint of Trade, Indefinite Contracts, Termination, Corporations, Directors, Fiduciary Duties, Corporate Opportunities, Misappropriation, Civil Procedure, Costs, Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, Tank Lining Corp. v. Dunlop Industrial Ltd. (1982), 40 O.R. (2d) 219 (C.A.), Warner Brothers Pictures Inc. v. Nelson, [1936] 3 All E.R. 160 (K.B.), MEDIchair LP v. DME Medequip Inc., 2016 ONCA 168, Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72, Elsley v. J.G. Collins Ins. Agencies Ltd., [1978] 2 S.C.R. 916, Payette v. Guay inc., 2013 SCC 45, M & P Drug Mart Inc. v. Norton, 2022 ONCA 398,  Mroz v. Mroz, 2015 ONCA 171, Conseil Scolaire Catholique Franco-Nord v. Nipissing Ouest (Municipalité), 2021 ONCA 544, Veolia ES Industrial Services Inc. v. Brulé, 2012 ONCA 173, leave to appeal refused, [2012] S.C.C.A. No. 229, GasTOPS Ltd. v. Forsyth, 2009 CanLII 66153 (Ont. S.C.), aff’d 2012 ONCA 134, Galambos v. Perez, 2009 SCC 48, Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225 (Gen. Div.), Can. Aero v. O’Malley, [1974] S.C.R. 592, John D. McCamus, The Law of Contracts, 3rd ed. (Toronto: Irwin Law, 2020)

facts:

This appeal concerned two actions tried together involving RL and his former business associates. Mr. L held himself out as an expert in powder-coating substrates. He started two powder-coating business ventures after being fired from Alliance Surface Finishing Inc and transferred the business of the second venture to a third venture. The first action involved a License Agreement granting certain “Licensed Rights” in perpetuity to L’s powder-coating knowledge to 7868073 Canada Ltd. L, along with investors IM and WK, formed, and through their respective holding companies, held equal shares in, 786, the Licensee under the License Agreement. 786 owned the shares of two other companies, collectively referred to as “ACS”. The venture failed. L then formed a new joint venture, Powder Coating Solutions Inc. (PCS), with JS and GS. ACS and three others commenced an action, alleging L breached the License Agreement and fiduciary duties. In a separate action, GS alleged L and JS misappropriated PCS’ powder-coating business.

In the ACS action, the trial judge rejected the claim that License Agreement was invalid and unenforceable or had been terminated and found that L breached fiduciary duties. She assessed profits to be disgorged of $2,501,986. The trial judge concluded that the GS action was moot and dismissed it.

issues:
  1. Did the trial judge err in holding that the License Agreement was valid and enforceable?
  2. Did the trial judge err in finding that the License Agreement was not terminated?
  3. Did the trial judge err in finding that L owed the ACS plaintiffs fiduciary duties after leaving ACS?
  4. Did the trial judge err in concluding that L breached his contractual and fiduciary obligations by misappropriating corporate opportunities of ACS?
  5. Should the ACS plaintiffs be granted leave to appeal the trial judge’s costs award, and, if leave was granted, should the caps on the costs liability of JS, Vacuum Metallizing and GS be set aside?
holding:

Appeal of the ACS judgment and cross-appeal dismissed. Appeal in the GS action dismissed.

reasoning:
  1. No.

First, the appellants argued that the trial judge erred in failing to consider whether the License Agreement was void ab initio as a restraint of trade. While there is no doubt that restraint of trade principles may apply to a restrictive covenant applicable after the termination of a licensing agreement, the appellants proffered no authority to support their argument that restraint of trade principles applied to the License Agreement prior to termination or cancellation in accordance with its terms.

The principle in Warner Brothers that “[w]here, as in the present contract, the covenants are all concerned with what is to happen whilst the defendant is employed by the plaintiffs and not thereafter, there is no room for the application of the doctrine of restraint of trade” was more appropriate to the question whether restraint of trade principles should apply during the currency of the License Agreement. The restrictions on competing prior to cancellation or termination of the License Agreement were neither unreasonable to him nor contrary to public policy. That such restrictions existed made sense in the context of the business arrangement that was negotiated. L participated in the negotiations, agreed to the terms of the License Agreement, and was not hampered by inequality of bargaining power.

Assuming, without deciding, that restraint of trade principles applied, the License Agreement was reasonable between the parties and with reference to the public interest. Notwithstanding its broad geographic scope and the limits it placed on selling, distributing and putting to use the Licensed Rights, the License Agreement was temporally limited in the sense that it was subject to cancellation and termination by the Licensor, and restricted L from competing with ACS only during its currency. It did not purport to restrain him from using the Licensed Rights after its termination and went no further than necessary to protect the legitimate interests of 786, the party in whose favour it was granted.

GS also argued the trial judge erred in determining that a worldwide license in perpetuity of knowledge or know-how was permissible. An appeal is not the forum for parties to raise issues not raised in the court below. The trial judge held that the License Agreement was not void as against perpetuity. The appellants did not challenge her finding in that respect on appeal nor did they challenge on appeal her finding that the License Agreement was not unconscionable.

  1. No.

The submissions focused on three emails/letters. Addressing an email from K to contacts and potential customers of ACS and ASF, as the trial judge observed, it was not open to ACS under the terms of the License Agreement to terminate it. In any event, the fact that ACS advised its contacts and potential customers that it agreed with L’s statement that he was no longer working with ACS did not demonstrate an intention to release him from his obligations under the License Agreement. This conclusion was also consistent with the fact that L continued to hold shares in 786 after his departure.

Mr. L and GS both purported to exercise the cancellation and termination rights contained in ss. 4 and 5 of the License Agreement in two other letters. The trial judge stated that no evidence was adduced to show that any of the events triggering termination had occurred and clarified that the appellants had not proven ACS was insolvent. There was no error in the trial judge’s conclusions that the License Agreement was not terminated by any of the three e-mails/letters.

  1. No.

The trial judge’s finding that L’s fiduciary duties continued after he left ACS was a finding of mixed fact and law and was entitled to deference on appeal. ACS’ agreement with ASF did not eliminate ACS’ vulnerability vis-à-vis L. ACS remained vulnerable to L and he continued to hold power and discretion in relation to ACS, because he took with him, and continued to exploit following his departure, the knowledge and expertise he licensed to 786.

Contrary to the appellants’ submissions, L’s situation was not similar to that of a departed employee whose relationship with his former employer has terminated. Following his departure from ACS, L continued to be bound by the terms of the License Agreement. His continuing fiduciary obligations flowed, in part, from the continuing existence of that agreement, the continued power and discretion he held vis-à-vis ACS and his former partners because of his knowledge and expertise, and their vulnerability to him as a result of that knowledge and expertise. The February 14, 2012 e-mail was not enough to demonstrate that L was relieved of his fiduciary duties was not enough to demonstrate that L was relieved of his fiduciary duties.

  1. No.

The trial judge found that L breached his contractual and fiduciary obligations by misappropriating corporate opportunities that belonged to ACS (the RM2 contract and sale of three powder-coating machines), for the benefit of PCS/Vacuum Metallizing. The trial judge relied on principles set out in Can. Aero v. O’Malley for her analysis. She also accepted and quoted from a passage of Can. Aero setting out the principle that determining whether there has been a breach of fiduciary duty is a case-specific exercise requiring consideration of a variety of potential factors. “Ripeness” of the opportunity is not determinative but only one potential factor.

The trial judge considered several factors to be important in determining whether there was a sufficient causal nexus between L’s breach of fiduciary duty and profits earned on the RM2 contract. The trial judge found as a fact that the RM2 opportunity (including the RM2 contract and the sale of a powder-coating machine to RM2) was not a fresh initiative for Mr. Langlois. It was L’s relationship with R, the principal of Inline Fiberglass, nurtured over the duration of L’s tenure at ACS, which led to the RM2 opportunity.

There was no error in the trial judge’s application of the law to the facts of this case. While the passage from Can. Aero specifies that a fiduciary is precluded from usurping “a maturing business opportunity”, it indicated as well that a fiduciary is precluded from taking advantage of an opportunity “where it was his position with the company rather than a fresh initiative that led him to the opportunity which he later acquired.” Significantly, in this case, the License Agreement had not been cancelled or terminated when the appellants took advantage of the RM2 opportunities.

  1. No.

The basis for capping the awards of costs was obvious from the judgment that was awarded and the trial judge’s endorsement on costs. The ACS plaintiffs did not meet the high threshold for obtaining leave to appeal a discretionary costs award.



SHORT CIVIL DECISIONS

Roe v. Roe, 2024 ONCA 349

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

Counsel:

B. Donavan and N. Kochman, for the moving party/responding party by way of cross-motion, RMR

N. Mukherjee and A. Rogerson, for the respondent/moving party by way of cross-motion, RSR

D. N. Delagran, for the responding party/responding party by way of cross motion, RCR

Keywords: Wills and Estates, Costs, 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.), Algra v. Comrie Estate, 2023 ONCA 811

Mouralian v. Groleau, 2024 ONCA 342

[Roberts, Trotter and George JJ.A.]

Counsel:

K. Coombs, for the appellant

M. Morden, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Equitable Remedies, Relief from Forfeiture, Civil Procedure, Appeals, Fresh Evidence, Stockloser v. Johnson, [1954] 1 Q.B. 476 (C.A.)

Kanata Utilities Ltd. v. 1414610 Ontario Inc. (MAG Eastwood Construction), 2024 ONCA 367

[Roberts, Trotter and George JJ.A.]

Counsel:

M. Diegel, for the appellants

M. Benson, for the respondent

Keywords: Civil Procedure, Documentary Discovery, Orders, Enforcement, Striking Pleadings, Costs, Rules of Civil Procedure, r 30.08(2), Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310

Gray v. Gray, 2024 ONCA 375

[Roberts, Trotter and George JJ.A.]

Counsel:

J. Vickery, for the appellant Rowan A. Gray

G. Dara, for the respondents LEG, LEG, AOG and KAG

Keywords: Wills and Estates, Estate Trustees, Removal, Trustee Act, R.S.O. 1990, c. T.23, s 38, Evidence Act, R.S.O. 1990, c. E.23, s 13, Westover Estate v. Jolicouer, 2024 ONCA 81

Bank of Nova Scotia v. Curtis, 2024 ONCA 374

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

Counsel:

G.C., acting in person

D. Rankin, for the responding party

Keywords: Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, RSO 1990, c C 43, s 7(5), Hililmount Capital Inc. v. Pizale, 2021 ONCA 36

Pyper v. Goble, 2024 ONCA 372

[Roberts, Trotter and George JJ.A.]

Counsel:

T.G., acting in person

K. Shimon and N. Platte, for the respondents

Keywords: Civil Procedure, Vexatious litigants, Courts of Justice Act, RSO 1990, c C 43, s 140


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

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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of April 29, 2024.

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In Bertrand v. Academic Medical Organization of Southwestern Ontario, the appellants received medical research funding under an agreement, overseen by the respondent, despite not being a party to the agreement. The issues raised in the appeal included whether the application judge erred in applying the rule in Browne v. Dunn, whether the appellants were intended beneficiaries of the Agreement, and if the court had jurisdiction to review a decision to cease funding. The appeal was dismissed.

Hemmings v. Peng was a complex medical malpractice appeal concerning severe injuries sustained by the respondent following a C-section. In a 118-page decision, the Court allowed the appeals of one treating doctor and the hospital, but dismissed the appeal by the doctor who performed the C-section.

Surridge v. Ross was a family law dispute over the unequal division of the proceeds of sale of a home jointly owned by an unmarried couple where only one of them contributed to the down-payment and mortgage payments. The motion judge ordered an unequal division of the proceeds on the basis of unjust enrichment. The Court dismissed the appeal.

1819472 Ontario Corp. v. John SB General Contractors Limited was a case involving the enforcement of security against a corporation by its creditors (the vendors of the assets of the corporation) following default and misappropriation of funds by the corporation’s principal (the buyer of the assets).

Krmpotic v Thunder Bay Electronics Limited was a wrongful dismissal case involving a carpenter who had been employed for 30 years and who was summarily dismissed without notice or cause following a back injury. The Court upheld the award of 24 months’ pay in lieu of notice and aggravated damages of $50,000.

Jones v Quinn discusses the legal nature and characteristics of an “option” to purchase land and good faith obligations on the part of the seller to cooperate in the exercise of the option by the buyer.

Happy Easter to all those of the eastern Orthodox faiths who are celebrating today!

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Surridge v. Ross, 2024 ONCA 314

Keywords: Family Law, Property, Jointly Held Property, Unjust Enrichment, Remedies, Constructive Trust, Civil Procedure, Summary Judgment,  Family Law Rules, O. Reg. 114/99, r. 16, Kerr v. Baranow, 2011 SCC 10, Garland v. Consumers’ Gas Co., 2004 SCC 25, Pecore v. Pecore, 2007 SCC 17

Hemmings v. Peng, 2024 ONCA 314

Keywords: Torts, Negligence, Medical Malpractice, Standard of Care, Causation, ter Neuzen v. Korn, [1995] 3 S.C.R. 674, R v. Doodnaught, 2017 ONCA 781, R. v. S.A.B., 2003 SCC 60, Palichuk v. Palichuk, 2023 ONCA 116, Slocan Forest Products Ltd. v. Trapper Enterprises Ltd., 2011 BCCA 351, Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Nelson (City) v. Marchi, 2021 SCC 41, Clements v. Clements, 2012 SCC 32, Aristorenas v. Comcare Health Services (2006), 83 O.R. (3d) 282 (C.A.), Athey v. Leonati, [1996] 3 S.C.R. 458, Saadati v. Moorhead, 2017 SCC 28, Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.), Brenenstuhl v. Caldwell, 2020 ABQB 315, R. v. Côté et al., [1976] 1 S.C.R. 595, Frazer v. Haukioja, 2010 ONCA 249, Abbott and Kleysen’s Cartage Co. Ltd. v. Kasza and Ace Construction Company Limited, [1975] 3 W.W.R. 163 (Alta. S.C.), Jones v. Shafer, [1948] S.C.R. 166, Powell v. Guttman (1978), 89 D.L.R. (3d) 180 (Man. C.A.), Sacks v. Ross, 2017 ONCA 773, T.S. v. Adey, 2017 ONSC 397, Arndt v. Smith, [1997] 2 S.C.R. 539, Champoux v. Jefremova, 2021 ONCA 92, Manary v. Strban, 2013 ONCA 319, Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401, R. v. G.F., 2021 SCC 20, R. v. R.E.M., 2008 SCC 51, R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.)

Bertrand v. Academic Medical Organization of Southwestern Ontario, 2024 ONCA 319

Keywords: Contracts, Privity, Third Party Beneficiaries, Voluntary Associations, Civil Procedure, Evidence, The Rule in Browne v Dunn, Yan v. Nadarahaj, 2017 ONCA 196, Greenwood Shopping Plaza v. Neil J. Buchanan Ltd., [1980] 2 S.C.R. 228, Fraser River Pile & Dredge Ltd. v. Can-Drive Services Ltd., [1999] 1 S.C.R. 108, Karahalios v. Conservative Party of Canada, 2020 ONSC 3145

Krmpotic v Thunder Bay Electronics Limited, 2024 ONCA 332

Keywords: Contracts, Employment, Wrongful Dismissal, Damages, Mitigation, Aggravated Damages, Joint and Several Liability, Rules of Civil Procedure, r. 76, Lake v La Presse, 2022 ONCA 742, Southcott Estates Inc v Toronto Catholic District School Board, 2012 SCC 51, Lemesani v Lowery’s Inc, 2017 ONSC 1808, Sinnathamby v The Chesterfield Shop Ltd, 2016 ONSC 6966, Honda Canada Inc v Keays, 2008 SCC 39, Wallace v United Grain Growers Ltd, [1997] 3 S.C.R. 701, Matthews v Ocean Nutrition Canada Ltd, 2020 SCC 26, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419

Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks), 2024 ONCA 331

Keywords: Environmental Law, Administrative Law, Judicial Review, Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Environmental Protection Act, RSO 1990, c. E.19, s. 141, Ontario Water Resources Act, RSO 1990, c. O.40, s. 100(6), Enbridge Gas Distribution Inc v Froese, 2013 ONCA 131, Duca Community Credit Union Ltd v Giovannoli et al (2001), 142 OAC 146 (CA), Sabatino v Posta Ital Bar Inc, 2022 ONCA 208, Ventin v Director, Haldimand-Norfolk Regional Health Department, [1994] OEAB No 16, Kagawong Power Inc v Ontario (Director, Ministry of the Environment), [2009] 47 CELR (3d) 103

NWG Investments Inc. v. Fronteer Gold Inc., 2024 ONCA 331

Keywords: Torts, Misrepresentation, Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, r. 1.04(1), 24.01, Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

1819472 Ontario Corp. v. John SB General Contractors Limited, 2024 ONCA 333

Keywords: Contracts, Debtor-Creditor, Promissory Notes, Security Agreements, Default, Enforcement, Foreclosure, Fraud, Misappropriation, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory Order, Limitation Periods, Personal Property Security Act, R.S.O. 1990, c. P.10, s. 65(2), Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., s. 5(2), Rules of Civil Procedure, r. 20.05(1), 20.04(4), J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, 2650971 Ontario Inc. v. Shameti, 2022 ONCA 62, Skunk v. Ketash, 2016 ONCA 841, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), Kowal v. Shviak, 2012 ONCA 512, Vanden Bussche Irrigation & Equipment v. Kejay, 2016 ONCA 613, Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375, Walchuk Estate v. Houghton, 2015 ONCA 862, Duha Printers (Western) Ltd. v. Canada, [1998] 1 S.C.R. 975, Atlas (Brampton) Limited Partnership v. Canada Grace Park Ltd., 2021 ONCA 221, Grant Thornton LLP v. New Brunswick, 2021 SCC 31

Drag v. Mehta, 2024 ONCA 334

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Specific Performance, Abatements, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Owen Sound Public Library Board v. Mial Developments Ltd. (1979), 26 O.R. (2d) 459 (C.A.), Petridis v. Shabinsky (1982), 35 O.R. (2d) 215 (H.C.J.), Charles Rickards Ltd. v. Oppenheim, [1950] 1 K.B. 616

Yadeta v. Peel (Municipality) Police Service Board , 2024 ONCA 341

Keywords: Crown Liability, Intentional Torts, Malicious Prosecution, Misfeasance in Public Office, Bad Faith, Civil Procedure, Proceedings Against the Crown, Leave to Commence or Continue Proceedings, Striking Pleadings, No Reasonable Cause of Action, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, s. 17, Rules of Civil Procedure, r. 21

Jones v. Quinn, 2024 ONCA 315

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Options, Duty of Good Faith, Duty of Honest Performance, Civil Procedure, Orders, Enforceability, Vagueness, Collateral Attack, Costs, Statute of Frauds, R.S.O. 1990, c. S.19, Guindon v. Canada, 2015 SCC 41, 364021 Alberta Ltd. v. 361738 Alberta Ltd. (1990), 115 A.R. 333 (Q.B.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Mitsui & Co. (Canada) Ltd. v. Royal Bank of Canada, [1995] 2 S.C.R. 187, Sudbrook Trading Estate Ltd. v. Eggleton, [1983] 1 A.C. 444 (H.L), Sail Labrador Ltd. v. Challenge One (The), [1999] 1 S.C.R. 265, Jesan Real Estate Ltd. v. Doyle, 2020 ONCA 714, Gatoto v. 5GC Inc., 2024 ONCA 210, Bhasin v. Hrynew, 2014 SCC 71, 2161907 Alberta Ltd. v. 11180673 Canada Inc., 2021 ONCA 590, Lafarge Canada Inc v. Bilozir, 2018 ABCA 416, Erie Sand and Gravel Limited v. Tri-B Acres Inc, 2009 ONCA 709, Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 745, Yan v. Hutchison, 2023 ONCA 97, Garland v. Consumers’ Gas Co., 2004 SCC 25, R. v. Sarson, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Amtim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62, Carey v. Laiken, 2015 SCC 17, PrescottRussell Services for Children and Adults v. N.G. (2006), 82 O.R. (3d) 686 (C.A.), Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Wasserman, Arsenault Ltd. v. Sone (2002), 164 O.A.C. 195 (C.A.), Bondy-Rafael v. Potrebic, 2019 ONCA 1026

Short Civil Decisions

Sutherland v. Canadian Imperial Bank of Commerce, 2024 ONCA 338

Keywords: Contracts, Duty of Honest Performance, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Abuse of Process, Res Judicata

Halton Standard Condominium Corporation No. 550 v. Del Ridge (Appleby) Inc., 2024 ONCA 337

Keywords: Civil Procedure, Striking Pleadings, Documentary Disclosure, Settlements, Disclosure, Rules of Civil Procedure, R. 30.10, Skymark Finance Corporation v. Ontario, 2023 ONCA 234

Flight (Re), 2024 ONCA 336

Keywords: Bankruptcy and Insolvency, Property of the Bankrupt, Choses in Action, Assignment, Flight (Heritage Painters & Services) v. LeBlanc, 2022 ONCA 831

Dreamfund Holdings Inc. v. Yusuf, 2024 ONCA 335

Keywords: Contracts, Civil Procedure, Default Judgments, Rules of Civil Procedure, r 19.08(2), HSBC Securities (Canada) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894, Male v. The Business Solutions Group, 2013 ONCA 382

Mohammad v. Bakr, 2024 ONCA 347

Keywords: Civil Procedure, Vexatious Litigation, Rules of Civil Procedure, r 2.1, Mohammad v. McMaster University, 2023 ONCA 598, Mohammad v. Munn, 2023 ONSC 4361, Mohammad v. Springer Nature, 2023 ONSC 5523, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733

Malek v. Soliman, 2024 ONCA 330

Keywords: Torts, Negligence, MVA, Civil Procedure, Settlements, Enforcement, Adjournments, Toronto – Dominion Bank v. Hylton, 2010 ONCA 752

Vertical Horizons Contracting Inc. v. Markham (City), 2024 ONCA 359

Keywords: Contracts, Construction

Alsous v. Shahin, 2024 ONCA 358

Keywords: Family Law, Property

Kisten v. Kosewski, 2024 ONCA 346

Keywords: Real Property, Trusts, Civil Procedure, Reasons for Decision


CIVIL DECISIONS

Surridge v. Ross, 2024 ONCA 314

[Rouleau, Lauwers and Monahan JJ.A.]

Counsel:

K.V. Stewart, for the appellant

A.B. R. Drury, for the respondent

Keywords: Family Law, Property, Jointly Held Property, Unjust Enrichment, Remedies, Constructive Trust, Civil Procedure, Summary Judgment,  Family Law Rules, O. Reg. 114/99, r. 16, Kerr v. Baranow, 2011 SCC 10, Garland v. Consumers’ Gas Co., 2004 SCC 25, Pecore v. Pecore, 2007 SCC 17

facts:

The parties were in a romantic relationship but never married. They purchased a home to live in together and took title as joint tenants. The parties did not have any written agreement as to their respective interests in the property. The respondent made the down payment and made all subsequent payments related to the residence. When the parties separated, the appellant left the property while the respondent continued to reside in the home and make all payments. The home was later sold. The respondent brought an application seeking unequal division of the proceeds of the sale from the property based on unjust enrichment. Specifically, he sought reimbursement for the principal portion of the mortgage payments he made, as well as the cost of a new furnace installed as part of the agreement of purchase of sale. In her answer, the appellant sought the equal distribution of the net proceeds without deduction for the cost of the repairs and occupation rent. The respondent brought a motion for summary judgment and the appellant brought a cross-motion for partial summary judgment. The motion judge granted summary judgment in favor of the respondent on the issue of unjust enrichment.

issues:
  1. Did the motion judge err in allowing the unjust enrichment claim?
  2. Did the motion judge err in denying the appellant’s claim for occupation rent?
  3. Did the motion judge err in allowing the respondent to receive credit for the replacement of the furnace and the basement repairs?
holding:

Appeal dismissed.

reasoning:
  1. No.

The motion judge found that the respondent established a prima facie case for absence of juristic reason and the appellant had not rebutted it. There was no evidence that the parties had turned their minds to the consequences of separating, particularly in respect of servicing the mortgage debt and the outcome of the property itself.

The motion judge should have addressed in his reasons whether there was evidence of donative intent at the time the property was acquired in joint names and when the payments at issue were made. In gratuitous transfer situations, the actual intention of the grantor is the governing consideration. However, given the presumption of resulting trust where money or property is advanced by only one party, the onus was on the appellant to demonstrate donative intent. It is clear from the motion judge’s reasons as well as the record that the onus was not met.

The motion judge considered the circumstances of the parties as required by Garland and specifically, the appellant’s claim that her credit worthiness had permitted the purchase of the home. The motion judge found that this claim had not been made out and, even if it had, the appellant’s argument pertaining to her credit worthiness did not provide a juristic reason and was irrelevant to the issue of unjust enrichment. The motion judge could not be faulted for his failure to address the issue of spousal abuse, as it was not the focus of the motion.

  1. No.

There was no basis to interfere with the motion judge’s findings and conclusions. It was acknowledged that the appellant made no financial contribution to the purchase of the home nor to the mortgage and property expenses. Additionally, she profited from the increase in value of her equity in the home and she led no evidence as to what a reasonable rent would be during the period of occupation by the respondent.

  1. No.

The motion judge noted that the respondent provided proof of the cost of replacing the furnace and found that it constituted an improvement to the property. The basement repairs had been required pursuant to the agreement of purchase of sale and had to be made to complete the sale. The appellant failed to present expert evidence that the repairs were unnecessary.


Hemmings v. Peng, 2024 ONCA 318

[Brown, Trotter and George JJ.A.]

Counsel:

Clarke, K. Crain and D. Girlando, for the appellant The Scarborough Hospital

Cruz, D. Charach and A. Spiegel, for the appellants N.T.J. and L.G.P.

Embury, D. Pacheco, A. Oakley, N. Oakley, J.J. Adair and R. Stellick, for the respondents S.H., by her litigation guardian, R.B., R.B. personally, S.C.G. and M.H., minors by their litigation guardian, R.B. and S.H.

Keywords: Torts, Negligence, Medical Malpractice, Standard of Care, Causation, ter Neuzen v. Korn, [1995] 3 S.C.R. 674, R v. Doodnaught, 2017 ONCA 781, R. v. S.A.B., 2003 SCC 60, Palichuk v. Palichuk, 2023 ONCA 116, Slocan Forest Products Ltd. v. Trapper Enterprises Ltd., 2011 BCCA 351, Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Nelson (City) v. Marchi, 2021 SCC 41, Clements v. Clements, 2012 SCC 32, Aristorenas v. Comcare Health Services (2006), 83 O.R. (3d) 282 (C.A.), Athey v. Leonati, [1996] 3 S.C.R. 458, Saadati v. Moorhead, 2017 SCC 28, Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.), Brenenstuhl v. Caldwell, 2020 ABQB 315, R. v. Côté et al., [1976] 1 S.C.R. 595, Frazer v. Haukioja, 2010 ONCA 249, Abbott and Kleysen’s Cartage Co. Ltd. v. Kasza and Ace Construction Company Limited, [1975] 3 W.W.R. 163 (Alta. S.C.), Jones v. Shafer, [1948] S.C.R. 166, Powell v. Guttman (1978), 89 D.L.R. (3d) 180 (Man. C.A.), Sacks v. Ross, 2017 ONCA 773, T.S. v. Adey, 2017 ONSC 397, Arndt v. Smith, [1997] 2 S.C.R. 539, Champoux v. Jefremova, 2021 ONCA 92, Manary v. Strban, 2013 ONCA 319, Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401, R. v. G.F., 2021 SCC 20, R. v. R.E.M., 2008 SCC 51, R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.)

facts:

The respondent, S.H., suffered a cardiac arrest on the operating table during a caesarean section at the Scarborough (General) Hospital (“the Hospital”). She subsequently suffered a severe brain injury. The action went to trial solely on the issues of liability. The respondents alleged that S.H.’s injury was caused by the negligence of several of the treating health care practitioners.

S.H. was admitted to the Hospital on April 19, 2009. She was a higher risk patient given her morbid obesity. Around mid-afternoon on April 20, as the induction attempts continued, a spinal (regional) anesthetic was put in place. By early evening, a C-section was performed. The C-section began under the regional anesthetic. Unable to calm S.H., Dr. J decided to convert to a general anesthetic. The C-section continued under general anesthetic for about eight to eleven minutes until the baby, the respondent M.S., was delivered. Shortly after delivery, S.H. had a cardiac arrest that required her resuscitation. As a result of the arrest, she suffered a serious, permanent brain injury.

The trial judge dismissed the action against two of the obstetricians, Drs. O’B and Pe. The trial judge granted judgment against the appellants, Dr. Pa, Dr. J, and the Hospital for an equal share of the respondents’ agreed damages of $12 million. The physicians and Hospital appealed. They sought an order setting aside the judgment and dismissing the action against them.

issues:
  1. Did the trial judge err in finding that Dr. Pa breached the standard of care when he acted as S.H’s primary obstetrician before her admission to the Hospital?
  2. Did the trial just err in his findings of factual and legal causation regarding Dr. Pa and the Hospital’s pre-delivery acts and omissions?
  3. Did the trial judge err in finding direct liability against the Hospital?
  4. Did the trial judge err in his findings related to Dr. J?
holding:

Dr. Pa’s and Hospital’s appeals allowed. Dr. J’s appeal dismissed.

reasoning:
  1. No.

The trial judge articulated the proper standard of care against which to assess the acts and omissions of Dr. Pa. His conduct must be assessed in light of the conduct of other ordinary specialists who possess a reasonable level of knowledge, competence, and skill expected of professionals in Canada in that field.

The trial judge found that Dr. Pa breached the applicable standard of care in three respects: (1) Dr. Pa failed to order a standard pregnancy test as part of his examinations; (2) during initial consultations, Dr. Pa failed to raise with S.H. the option of terminating her pregnancy; and (3) Dr. Pa failed to document the multiple risk factors associated with S.H.’s pregnancy or a plan of management in her clinical records.

The only ground of appeal concerning the breach of standard of care was his failure to raise the option of terminating her pregnancy with S.H. during her initial consultations.

In his reasons, the trial judge relied on the 1988 CMA policy on Induced Abortion, as well as the 2006 SOGC Clinical Practice Guidelines on Induced Abortion. Dr. Pa pointed to a 2007 letter to the editor of the CMA Journal that set out the CMA’s position on how a doctor who would not provide abortions should respond to a patient’s request. Dr. Pa argued that the implication of this letter was that, in 2008, a physician was not obligated to raise the issue of abortion with a patient who did not raise the topic.

The Court was not persuaded by Dr. Pa’s submissions. The trial judge did not rest his finding of breach of the standard of care solely on the literature cited, but also relied on the evidence of obstetrical experts and their opinions about the meaning and practical application of the policy and guideline. The respondents’ obstetrical experts testified that the standard of care required Dr. Pa to initiate a non-judgmental and patient-focused discussion around the options of terminating the pregnancy and the risks of not doing so. In reaching that conclusion, both relied on the fact that S.H. had come to Dr. Pa for contraception, did not want to become pregnant, and the pregnancy carried significant risks.

Dr. Pa also submitted the trial judge improperly relied on a 2015 article regarding the incidence of abortions in unintended pregnancies to inform his determination of the standard of care applicable in 2008. The Court saw no reversible error by the trial judge in doing so. Given that the appellant’s expert relied on the 2015 article, the relevant data in the article were generated in 2005, the expert was cross-examined on the article without objection, and the article was marked as an exhibit without objection, the Court saw no basis for the appellant’s position on appeal that the trial judge somehow erred in referring to the article.

  1. Yes, in regard to the legal causation analysis.

Drs. Pa and J submitted the trial judge erred by relaxing the “but for” test for factual causation to merely require that the plaintiff demonstrate a reasonable person “would not brush aside as farfetched” the existence of a causal link.

To succeed in a negligence action a plaintiff must demonstrate that (i) the defendant owed her a duty of care, (ii) the defendant’s behaviour breached the standard of care, (iii) the plaintiff sustained damage, and (iv) the damage was caused in fact and law by the defendant’s breach. The causation analysis involves two distinct inquiries: whether the defendant’s breach was the factual cause of the plaintiff’s loss and, in addition, the legal cause of the loss.

Factual causation

The test for factual causation is the “but for” test. A plaintiff must show, on a balance of probabilities, that “but for” the defendant’s negligent act or omission, the injury would not have occurred. A plaintiff need not establish the defendant’s negligence was the sole cause of her injury.

Legal causation

To establish the defendant’s liability a plaintiff must also prove the defendant was a legal cause of her injury. The basic inquiry is: were the injuries suffered by the plaintiff linked in the right way to the carelessness of the defendant? Mere possibility that the harm would occur is not sufficient. In Mustapha, the Supreme Court stated the degree of probability or likelihood that would satisfy the reasonable foreseeability requirement is a “real risk”, that is “one which would occur to the mind of a reasonable man in the position of the defendan[t] . . . and which he would not brush aside as far-fetched”

Analysis of this ground of appeal

The appellants contended that the trial judge erroneously lessened the plaintiffs’ burden of proof to establish factual “but for” causation on the balance of probabilities. The Court was not persuaded by this submission. While the trial judge did not use the term “legal causation” in his reasons, he used other language to express his legal causation analysis. While a crisper differentiation in the reasons between factual and legal causation certainly would have been helpful, the trial judge recognized the two concepts as distinct and properly identified their main elements.

Causation grounds of appeal

The first causation ground of appeal was that there was insufficient evidence to permit the trial judge to find that S.H. would have chosen an abortion if Dr. Pa had informed her of that option.

The Court saw no reversible error in the trial judge’s conclusion that had Dr. Pa told S.H. at an early stage about the option of an abortion, S.H. would have chosen that course of action.

For the second causation ground of appeal, Dr. Pa submitted that the causation analysis was tainted by reversible error, as it was based on a breach of the standard of care that the trial judge did not find, namely a failure to advise S.H. about the multitude of risks associated with her pregnancy. The trial judge had found a different breach of the standard of care, namely a failure to document such risks.

The respondents argued that the trial judge made an implicit finding that Dr. Pa breached the standard of care by not discussing risks of the pregnancy with S.H. When the reasons in this case were approached in that manner, the Court was persuaded by the respondents’ submission.

For Dr. Pa’s legal causation ground of appeal, both he and the Hospital, in respect of Nurse S.J., submitted that the trial judge erred in conducting his legal causation analysis.

In the Court’s view, the trial judge committed reversible error on the questions of whether the breaches of the standard of care caused, in law, the damages suffered by S.H. Regarding Nurse S.J., the major error committed by the trial judge was his failure to conduct any legal causation analysis. The trial judge conducted a “but for” counter-factual exercise and set out his findings as to what probably would have happened had Nurse S.J. advised S.H. to come to the Hospital. The Hospital submitted this counter-factual exercise was tainted by legal error. The Court accepted this submission.

In the case of the trial judge’s specific analysis of whether Nurse S.J.’s breaches caused, in law, S.H.’s injuries, the Court concluded the trial judge did conflate the two concepts. Inconsistency existed in the trial judge’s reasons, not only concerning his liability conclusion in respect of Nurse S.J but also in his legal causation finding in respect of Dr. Pa.

Accordingly, the Court allowed the appeal by Dr. Pa, set aside the Judgment against him, and dismissed the action against him. Similarly, the Court allowed the appeal by the Hospital in respect of Nurse S.J.’s acts and omissions and dismissed that part of the action against the Hospital based on vicarious liability.

  1. Yes.

The Hospital submitted that the trial judge found it directly liable for negligence on the basis of its failure to assemble the records detailing S.H.’s pregnancy. The Hospital argued that it was not open to the trial judge to make such a finding in light of an agreement the parties made at the outset of the trial. The Court was persuaded by the Hospital’s submission.

The Hospital submitted the trial judge’s finding of direct liability based on its “failure to assemble the records detailing S.H.’s pregnancy” should be set aside for two reasons:

  1. The finding concerned a matter that lay outside the scope of the issue the parties placed before the trial judge for adjudication as a result of the Resolution Agreement.
  2. Alternatively, and in any event, the finding amounted to a bald conclusion by the trial judge.

A judge commits an error of law when he or she decides a proceeding “on a basis that was not ‘anchored in the pleadings, evidence, positions or submissions of any of the parties”. The Resolution Agreement between the respondents and the Hospital defined the issue those parties wanted the trial judge to adjudicate: the April 8, 2009, telephone call between S.H. and Nurse S.J.

The trial judge’s finding that the Hospital was negligent for failing to assemble the records detailing S.H.’s pregnancy rested on (i) the lack of availability of records for review by the Drs H, O’B and J, none of whom were involved in the April 8 call, and (ii) the lack of availability of the records Dr. Pa provided to S.H. to take to the Hospital on April 18. Neither of those issues concerned the April 8, 2009, call.

The Court added that the trial judge’s finding amounted to the assertion of a bald conclusion. It was not supported by the adjudicative analysis required to assess a claim of negligence. A finding of negligence unsupported by any analysis cannot stand.

  1. No, except for one of the standard of care grounds of appeal.

Dr. J was asked to participate in the C-section. The C-section proceeded under regional anesthetic and due to complications, general anesthetic drugs were administered.

The trial judge found that Dr. J fell below the standard of care in two main respects: (1) his decision to convert S.H. from a regional to a general anesthetic was made negligently in that the decision was made before he had attempted or exhausted all reasonable options to avoid administering a general anesthetic and (2) he was negligent in intubating S.H.’s airway once he began to administer the general anesthetic. The trial judge further found that Dr. J’s negligent conduct was “the direct cause” of the cardiac arrest suffered by S.H. Finally, the trial judge did not accept the defendant doctors’ submission that S.H.’s cardiac arrest resulted from a rare phenomenon called amniotic fluid embolism. Instead, he found that the arrest was the result of an “anesthetic accident or complication”.

Standard of Care grounds

The first ground of appeal was that the trial judge erred in finding that Dr. J was negligent in converting S.H. to a general anesthetic without making reasonable efforts to maintain the regional anesthetic. The Court accepted that the evidence at trial was overwhelming that delivery under regional anesthetic was the safest, converting to a general anesthetic created significant additional risks; (iii) and those risks were exacerbated by obesity. When faced with that conflicting evidence, the trial judge made specific findings of credibility regarding the testimonies of the witnesses. Those findings of credibility and the further findings of fact that flowed from them were open to the trial judge to make on the record before him. The appellant, Dr. J, did not demonstrate any palpable and overriding error in them.

The second ground of appeal was that the trial judge erred by failing to find that any error in Dr. J’s decision to convert to a general anesthetic was merely an error in judgment and did not amount to negligence. The Court saw no reversible error in the trial judge’s conclusion that Dr. J fell below the standard of care in deciding to convert to general anesthetic before all reasonable options had been attempted and exhausted.

The third ground of appeal was that there was no expert evidence to support the trial judge’s finding that Dr. J’s intubation of S.H. fell below the standard of care. The Court found that the trial judge’s reasons, when read in conjunction with the extensive record, failed to explain what act or omission of Dr. J’s during the intubation process fell below the standard of care. The Court accepted the submissions of Dr. J that the finding he was negligent in intubating S.H. lacked proper evidentiary support.

Causation Grounds

Regarding the causation grounds of appeal, the appellant submitted that the trial judge erred in finding that the cardiac arrest was the result of an anesthetic accident or complication.

Three portions of the trial judge’s reasons, when read together and in light of the record, explained the “anesthetic accident and complication” that caused the cardiac arrest. First, the reasons explained why a general anesthetic should be used only as a last resort in the case of a C-section procedure. Next, the reasons contained a specific finding of the sequence of events that accompanied the conversion to a general anesthetic. Finally, the reasons detailed the consequences of the attempts at intubation on S.H.’s blood pressure and oxygen levels. The Court was satisfied that the trial judge explained the “what” and the “why” of his conclusion that an anesthetic accident and complication caused S.H.’s cardiac arrest.

For the second ground appeal in relation to causation, the appellant argued that the trial judge failed to perform any analysis of factual causation in respect of Dr. J’s breaches of the standard of care. “But for” causation need only be established on the balance of probabilities; the law does not require demonstrating certitude or scientific precision. Accordingly, the record supported the trial judge’s conclusion that Dr. J’s negligence was the “direct cause” of S.H.’s injuries.


Bertrand v. Academic Medical Organization of Southwestern Ontario, 2024 ONCA 319

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

Counsel:

MacKenzie and J. Colangelo, for the appellants

A. Stephens, for the respondent

Keywords: Contracts, Privity, Third Party Beneficiaries, Voluntary Associations, Civil Procedure, Evidence, The Rule in Browne v Dunn, Yan v. Nadarahaj, 2017 ONCA 196, Greenwood Shopping Plaza v. Neil J. Buchanan Ltd., [1980] 2 S.C.R. 228, Fraser River Pile & Dredge Ltd. v. Can-Drive Services Ltd., [1999] 1 S.C.R. 108, Karahalios v. Conservative Party of Canada, 2020 ONSC 3145

facts:

The appellants, gynecologic oncologists, had been receiving funding for their academic services pursuant to an agreement known as the AHSC AFP Template Funding Agreement (the “Agreement”). The respondent, AMOSO, comprised of several parties to the agreement, oversees fund distribution, despite not being a party to the Agreement itself.

On April 1, 2015, several parties to the Agreement entered the Provincial Oncology Alternative Funding Plan (“POAFP”). The AMOSO’s Resource Sub-Committee subsequently recommended that the allocation of funds to members of the Obstetrics and Gynecology plan be discontinued. AMOSO’s Governing Committee accepted that recommendation. The appellants were afforded an opportunity to make submissions seeking a reversal of AMOSO’s decision. AMOSO maintained its decision to cease funding to the appellants. The appellants commenced an application in the Superior Court. The application was dismissed.

issues:
  1. Did the application judge err by failing to apply the rule in Browne v. Dunn?
  2. Did the application judge err by finding that the parties to the Agreement did not intend for the appellants to benefit from its provisions?
  3. Does the court have jurisdiction to review the correctness of AMOSO’s decision?
holding:

Appeal Dismissed.

reasoning:
  1. No.

The common law rule in Browne v. Dunn requires counsel to confront a witness they are cross-examining with any conflicting evidence they intend to call later on in the proceeding. The purpose is to alert the witness to the fact that counsel intends to impeach his or her evidence and to ensure that they are given an opportunity to respond. The appellants argued that because there was nothing to contradict their evidence that the intent of the Agreement was to benefit them individually, and because they were not cross-examined on this aspect of their evidence, the application judge had to find that they were entitled to the benefit of the Agreement. The application judge rejected the appellants’ argument that a signed declaration acknowledging their agreement to be bound by the terms of the Agreement entitled them to the benefit of the Agreement’s provisions. He interpreted it as an acknowledgment by each appellant that the physician organization represented their interests and could bind them contractually. In circumstances like these, the rule in Browne v. Dunn has no application.

  1. No.

The common law doctrine of privity of contract stands for the proposition that “no one but the parties to a contract can be bound by it or entitled to it.” The application judge recognized that there are exceptions to the doctrine, pursuant to the “principled approach” identified in Fraser River. First, he found that there was no express intention in the Agreement that an individual physician would benefit from any contractual provision, nor could one be implied. Second, he found that it “would not accord with commercial reality and common sense” if each physician had the right to commence proceedings (under either the funding agreement’s ADR provisions or in court) each time AMOSO made a decision with which they disagreed. These findings were amply supported by the record.

  1. No.

The application judge was right to conclude that a court’s review of the discretionary decision of an unincorporated association was limited to whether it acted in accordance with its internal rules, the principles of natural justice, and whether the decision was bona fide. Given the application judge’s finding that AMOSO’s decision-making process – detailed in the respondents’ affidavits and in the minutes of AMOSO’s sub-committee’s meetings – not only met, but exceeded, these requirements, he correctly concluded that it was not open to him to assess the correctness of AMOSO’s decision. In other words, the appellants’ contractual rights were satisfied by the process that AMOSO conducted, regardless of the correctness of the outcome.


Krmpotic v Thunder Bay Electronics Limited, 2024 ONCA 332

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

Counsel:

D.Zulianello, for the appellants

R. Switzer, for the respondent

Keywords: Contracts, Employment, Wrongful Dismissal, Damages, Mitigation, Aggravated Damages, Joint and Several Liability, Rules of Civil Procedure, r. 76, Lake v La Presse, 2022 ONCA 742, Southcott Estates Inc v Toronto Catholic District School Board, 2012 SCC 51, Lemesani v Lowery’s Inc, 2017 ONSC 1808, Sinnathamby v The Chesterfield Shop Ltd, 2016 ONSC 6966, Honda Canada Inc v Keays, 2008 SCC 39, Wallace v United Grain Growers Ltd, [1997] 3 S.C.R. 701, Matthews v Ocean Nutrition Canada Ltd, 2020 SCC 26, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419

facts:

D.K began working as a carpenter in 1976 and became a journeyman carpenter in 1983. In 1987, he started working in Thunder Bay, Ontario, for the appellants, Thunder Bay Electronics Limited (TBEL) and Hill Street Financial Services (Hill Street). Within 18 months of being hired, D.K was made the Building Maintenance Supervisor, a position he held until his employment ended.

On June 13, 2016, after nearly 30 years of service, the appellants terminated his employment without notice or cause. At that time, he was 59 years old and had just returned from medical leave following back surgery. D.K refused the severance package offered at the termination meeting and began this action for wrongful dismissal. The trial judge found D.K to be a loyal and responsible employee, entitled to a reasonable notice period of 24 months, but dismissed his claim for mental distress damages due to lack of medical evidence. However, the trial judge awarded D.K $50,000 for aggravated/moral damages due to the manner in which his employment was terminated. The trial judge ordered the appellants jointly and severally liable for the damage awards.

issues:

1) Did the trial judge err in finding the respondent was unable to mitigate during the reasonable notice period due to physical incapacity?

2) Did the trial judge err in awarding aggravated damages?

3) Did the trial judge err in holding the appellants jointly and severally liable?

holding:

Appeal Dismissed.

reasoning:

1) No.

The appellants asserted that the period of reasonable notice must be reduced based on D.K’s failure to mitigate damages, claiming that the trial judge erred by concluding that D.K was unable to mitigate due to physical incapacity during the reasonable notice period. They argued that the trial judge found, without medical evidence, that D.K could not work because of physical incapacity and ignored existing medical evidence suggesting otherwise. However, the trial judge’s decision was affirmed, noting that D.K’s attempts to find alternate employment were scant, yet his physical limitations during the notice period were significant due to his age, recent back surgery, and the demands of his occupation. The trial judge accepted the evidence presented by D.K, his wife, and his son, establishing that D.K could not undertake comparable employment due to his physical incapacity, supported by his failed attempt to work in his son’s business in November 2017. The Court concluded that the trial judge made no palpable and overriding error in finding that D.K was unable to mitigate during the notice period given his physical incapacity.

2) No.

The appellants argued that the trial judge erred in awarding D.K aggravated damages, contending that following the precedent set by Honda Canada Inc v Keays, aggravated damages could only be awarded if there was evidence of mental distress caused by the manner of dismissal, and that the trial judge wrongly considered mental distress and the manner of dismissal separately. The Court did not accept this narrow view of the employer’s duty of good faith and concluded that the trial judge properly identified D.C’s conduct in the termination meeting as breaching the duty of good faith and causing harm deserving of compensation. The Court found that the principles of honest performance and good faith in employment contracts supported the trial judge’s decision. The trial judge found that D.C’s conduct during the termination was neither candid nor forthright and amounted to bad faith, causing D.K significant distress, including anxiety and depression. These findings justified the award of aggravated damages, and thus, the Court saw no reason to interfere with the trial judge’s determination on this issue.

3) No.

The appellants argued that the trial judge erred in making them jointly and severally liable for the damages awards, claiming that TBEL was D.K’s sole employer at the time of his termination and that there were no grounds for joint and several liability. The Court rejected the argument. The trial judge clearly stated in his reasons that D.K was employed by both appellants for about 30 years until his termination without cause or notice. Furthermore, evidence presented by D.K and the appellants, including the testimony of D.C and the details in the Settlement Memorandum confirmed that D.K’s employment was handled between the two appellants throughout his tenure. The Settlement Memorandum drafted by the appellants and presented at the termination explicitly defined both TBEL and Hill Street as D.K’s employers. The Court found that the trial judge made no error in holding both appellants jointly and severally liable.


Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks), 2024 ONCA 328

[Roberts J.A. (Motions Judge)]

Counsel:

AS, acting in person and for Continental Imperial Exploration Ltd., moving parties

Clements and S. Valair, for the responding party, the Director, Ministry of the Environment, Conservation and Parks

Keywords: Environmental Law, Administrative Law, Judicial Review, Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Environmental Protection Act, RSO 1990, c. E.19, s. 141, Ontario Water Resources Act, RSO 1990, c. O.40, s. 100(6), Enbridge Gas Distribution Inc v Froese, 2013 ONCA 131, Duca Community Credit Union Ltd v Giovannoli et al (2001), 142 OAC 146 (CA), Sabatino v Posta Ital Bar Inc, 2022 ONCA 208, Ventin v Director, Haldimand-Norfolk Regional Health Department, [1994] OEAB No 16, Kagawong Power Inc v Ontario (Director, Ministry of the Environment), [2009] 47 CELR (3d) 103

facts:

The moving parties sought an extension of time to bring a motion for leave to appeal the January 19, 2024 order of Sheard J (the “Motion Judge”).

issues:

Does the justice of the case warrant an extension of time to seek leave to appeal?

holding:

Motion dismissed.

reasoning:

No.

The Court noted that the relevant criteria informing the question of whether the justice of the case warranted the requested extension were well known and included the following: a timely intention to appeal; the length of and explanation for the delay; prejudice to the responding party; and the merits of the appeal. The lack of merit of the proposed appeal can be determinative. The question was whether the appeal had so little merit that the moving parties should have been deprived of the important right to appeal. In the Courts view, that was the case here.

The Court found that AS’s medical issues did not adequately explain the delay in seeking leave to appeal. There was continuing prejudice to the public interest by the delay to the timely enforcement of the Director’s order under the Environmental Protection Act. The motion also faltered because the moving parties’ proposed appeal had no merit and was doomed to failure. The lack of merit alone could suffice to dismiss the motion.

The motion judge declined to exercise her discretion to extend the time for the moving parties to bring a judicial review application, dismissed the moving parties’ motion for an extension of time and granted the responding party’s motion to dismiss the application for judicial review. The motion judge determined that the moving parties had failed to establish that there were apparent grounds for relief or that there was merit to their application. She found that the application had no prospect of success. As the Tribunal found, there was no question that the moving parties had received notice of the Director’s decision. The motion judge concluded that the delay would cause prejudice to the public interest because of the delay to the enforcement of the Director’s order with which the moving parties had not complied.


NWG Investments Inc. v. Fronteer Gold Inc., 2024 ONCA 331

[Brown, Paciocco and Nordheimer JJ.A.]

Counsel:

R. Bucholz, D. Rosenbluth and M. Chowdhury, for the appellant

K.E. Thomson and A M.C. Alexander, for the respondent

Keywords: Torts, Misrepresentation, Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, r. 1.04(1), 24.01, Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

facts:

NWG Investments Inc. appealed from the motion judge’s dismissal for delay of its 2014 action, which asserted claims based on events that took place in 2007 and 2008. NWG’s claims centred on allegations that the respondent, a former officer of the respondent Fronteer Gold Inc., misrepresented to NWG the ability to extract uranium expeditiously from the ground in Nunatsiavut (Labrador).

issues:
  1. Was the motion judge’s assessment of the issue of prejudice infected by reversible error?
  2. Does the motion judge’s “theory of prejudice” reward defendants who “lie in the weeds”?
holding:

Appeal dismissed.

reasoning:
  1. No.

The legal test on a motion to dismiss for delay under r. 24.01 of the Rules of Civil Procedure is as follows: an action should not be dismissed unless the delay is (i) inordinate, (ii) inexcusable, and (iii) prejudicial to the defendants such that it gives rise to a substantial risk that a fair trial of the issues will not be possible.

The Court saw no error. In the Court’s view, at its core this ground of appeal simply reflected NWG’s disagreement with the weight the motion judge placed on the factors of document availability, witness relevance, and witness memory. While NWG may disagree with how the motion judge weighed those factors in the specific circumstances of this case, the Court saw no palpable and overriding error in her analysis, nor did the Court regard her conclusion as unreasonable in the circumstances.

  1. No.

The Court was not persuaded by this submission, especially given the motion judge’s unchallenged findings that NWG’s delay in prosecuting its action was inordinate and inexcusable. NWG’s action has not gone beyond the pleadings stage and that it was only in 2021 – seven years after the Ontario action was started and approximately 14 years after the events in question – that NWG, through new counsel, got around to suggesting that the parties should discuss a discovery plan.

By commencing an action in the Ontario courts, NWG was under the obligation to move it along to the “most expeditious” determination on its merits. The motion judge obviously concluded that NWG had failed to discharge that obligation. She did not err in so doing. Her decision to dismiss NWG’s action for delay was a reasonable one in the circumstances.


1819472 Ontario Corp. v. John SB General Contractors Limited, 2024 ONCA 333

[Miller, Favreau and Copeland JJ.A.]

Counsel:

V.S. Scalisi and R. Azimov, for the appellants

S. Tock, for the respondent

Keywords: Contracts, Debtor-Creditor, Promissory Notes, Security Agreements, Default, Enforcement, Foreclosure, Fraud, Misappropriation, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory Order, Limitation Periods, Personal Property Security Act, R.S.O. 1990, c. P.10, s. 65(2), Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., s. 5(2), Rules of Civil Procedure, r. 20.05(1), 20.04(4), J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, 2650971 Ontario Inc. v. Shameti, 2022 ONCA 62, Skunk v. Ketash, 2016 ONCA 841, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), Kowal v. Shviak, 2012 ONCA 512, Vanden Bussche Irrigation & Equipment v. Kejay, 2016 ONCA 613, Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375, Walchuk Estate v. Houghton, 2015 ONCA 862, Duha Printers (Western) Ltd. v. Canada, [1998] 1 S.C.R. 975, Atlas (Brampton) Limited Partnership v. Canada Grace Park Ltd., 2021 ONCA 221, Grant Thornton LLP v. New Brunswick, 2021 SCC 31

facts:

SB owned the common shares of John SB General Contractors Limited (“JBGC”), which owned Kleinberg Nursery, and SB’s husband owned the nursery’s lands. SB and her husband sold the business and lands to Z. Z incorporated two corporations to acquire the nursery business and lands: 1819472 Ontario Corp. (“9472”) purchased the lands with a mortgage, and 1819471 Ontario Corp. (“9471”) acquired the shares of both 9472 and JGBC.

After a default on a promissory note, 9472 sold the land, causing SB to object, as it jeopardized her collateral. Z then disbursed the sale proceeds, before assigning 9471 and JBGC into bankruptcy. Investigations revealed misuse of funds from the sale of the property by Z. SB became sole officer, director, and shareholder of 9472 and caused 9472 to commence action to recover funds disbursed by Z. The respondent corporation, 9472, brought an action alleging that Z caused it to loan approximately $2.5 million to JBGC, causing another related corporation to default on a promissory note to SB in the process.

issues:
  1. Did the court have jurisdiction to hear the appeal?
  2. Did the motion judge err in finding that the limitation period did not begin to run in May 2017, when they argue that SB first became aware of 9472’s claim?
  3. Did the motion judge err in finding that SB was reasonably diligent in making inquiries as to the appellants’ identities?
holding:

Appeal dismissed.

reasoning:
  1. Yes.

Notwithstanding that the parties took no issue with the court’s jurisdiction to hear the appeal, the form of the order under appeal did not make the legal basis of the order obvious, which necessitated some effort to determine whether the Court in fact had jurisdiction.

There is a presumption that, unless the motion judge specifically references the powers under r. 20.05(1) or r. 20.04(4) of the Rules to make binding determinations of fact or law, and specifies what material facts or questions of law are now not in dispute, the motion judge did not intend to make binding determinations of fact or law, and those determinations will remain to be made by the trial judge.

A motion judge who intends to make a final determination on a question of fact or law ought to state the rule under which the determination has been made in the order issued. Although a failure to make such a statement in the order suggests that no such determination or finding was made, this failure is not determinative: in some cases, to determine what has been decided, it is necessary to look at the reasons.

The parties understood that the motion judge had intended to decide the legal question of whether the action had been commenced within the time period stipulated by the Limitations Act, 2002, and that this was intended to be a final order. The reasons for decision made this conclusion abundantly clear, although the formal order did not. The limited scope of the motion explained why the motion judge did not grant summary judgment in favour of the plaintiff: the liability of the appellants was simply not before him for determination. The only issue was the limitations defence.

Although it would have been advisable for the motion judge to have referenced r. 20.04(4) in the order, there was no confusion about the nature of the order that was made. The order was a final order that disposed of the issue of the limitations defence. The appeal was properly brought in the Court.

  1. No.

The appellants argued that SB knew, as of May 2017, that 9472 had loaned a substantial sum of money to JBGC and that most of these monies had not been accounted for by the trustee in bankruptcy.   The appellants argued that this knowledge should have been attributed to 9472 in May 2017 when SB, as a creditor of 9471, first asserted ownership of the shares in 9472 that 9471 held.

The central issue is when SB achieved control over 9472. Under s. 65(2), SB was required to give notice of the proposal to accept the shares in satisfaction of the debt owed by 9471 to the persons mentioned in s. 63(4) (a) to (d), including the debtor, the owner of the collateral, and every person who has a security interest in the collateral. Only once that notice had been given, and no effective objection was made, was SB deemed by the PPSA to have irrevocably elected to accept the collateral in satisfaction of the debt and entitled to transfer title of the shares in 9472 from 9471 to herself. The issue confronting the motion judge was a debtor’s insistence that notice occurred over the objections of the creditor and despite the absence of foreclosure until years later.

The motion judge made findings as to the nature of the correspondence between SB’s solicitor and Zaza’s solicitor. Specifically, the motion judge found that the email communications did not amount to more than an assertion of entitlement and that they did not constitute a notice of foreclosure under the PPSA. Instead, the motion judge found that notice was provided on December 21, 2020, when SB’s lawyer wrote to the trustee in accordance with s. 65(2) of the PPSA. These were both findings of mixed fact and law, and the appellants did not identify a palpable and overriding error in the finding that the email correspondence was not notice or that the requisite notice occurred on December 21, 2020. There was no basis to interfere with the finding that SB’s knowledge could only be attributable to 9472 after foreclosure on January 6, 2021.

  1. No.

Prior to the inspector’s report, SB was unaware of the facts that would make the distributions wrongful. Her November 2017 affidavit in support of the appointment of an inspector demonstrated that she suspected and feared that Z had made fraudulent distributions, but the affidavit disclosed that she was relying on rumour and was unaware of the facts that would support this suspicion. The motion judge made no reviewable error in finding that the limitation period did not begin to run until after the inspector’s report was issued.


Drag v. Mehta, 2024 ONCA 334

[Zarnett, Coroza and Favreau JJ.A.]

Counsel:

M.Z. Tufman, for the appellant

G.M. Caplan and A. Simovonian, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Specific Performance, Abatements, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Owen Sound Public Library Board v. Mial Developments Ltd. (1979), 26 O.R. (2d) 459 (C.A.), Petridis v. Shabinsky (1982), 35 O.R. (2d) 215 (H.C.J.), Charles Rickards Ltd. v. Oppenheim, [1950] 1 K.B. 616

facts:

The parties entered into an Agreement of Purchase and Sale of land dated December 2, 2020 (the “APS”). The APS was conditional on R.M. being satisfied with the result of a home inspection by a qualified home inspector by giving notice in writing to B.D. that the condition was either (i) fulfilled or (ii) waived. Any such notice had to be delivered within five banking days of the acceptance of the APS.

The APS contained provisions about giving notice to B.D. It appointed the listing broker as B.D.’s agent for receiving notice. It provided that any notice had to be received personally or be hand delivered to an address for service provided in the APS (which was the property to be sold under the APS). Alternatively, if a facsimile number or email address was provided in the APS, then notice could be delivered by fax transmission or email to that number or address, respectively.

However, after R.M. received a home inspection report on December 8, 2020, he initially chose to seek an abatement of the purchase price on the basis of which he would agree to delete the home inspection condition and render the APS firm. At 6:59 p.m. on December 9, the purchase price was reduced by $40,000, the home inspection condition was deleted and the APS was firm and binding. The amending agreement was irrevocable until December 10 at 12:30 p.m.

There were disputes about the timing and manner of delivering the waiver and the trial judge rejected R.M,’s arguments about the acceptance date and that he served the notice of waiver by 11:59 p.m. on December 9th. However, the trial judge held that B.D.’s contractual duty of good faith was breached by his listing broker’s misrepresentations as to “an accepted amending agreement and B.D.’s unavailability to execute it until the next morning”. The misrepresentations implied “that the time period for the waiving the home inspection condition would, at least, be deferred an additional day.” The trial judge concluded that “B.D. on that basis alone should not be able to declare the APS null and void” as at 11:59 p.m. on December 9, and he held that “[t]he waiver, without a doubt, was delivered the next day [December 10] by email”.

The trial judge granted specific performance of the APS, without any abatement.

issues:

Did the trial judge err in failing to find that the APS came to an end on December 9, by virtue of the provisions of its home inspection condition?

holding:

Appeal dismissed.

reasoning:

No.

The trial judge was entitled to find the requisite degree of reliance on, and detriment arising from, the listing agent’s misrepresentations in the fact that they “delayed and compromised delivery of the waiver of the home inspection condition”.

On the trial judge’s findings, R.M. relied on the assurances that the listing agent provided to the buyer’s agent. R.M. became suspicious well into the evening of December 9, given that the listing agent did not give a written confirmation (while saying his word could be relied on).

The normal remedy for breach of the duty of honest performance is damages. However, this was not a damages case, as the parties had agreed that if the APS did not become null and void on December 9, specific performance was appropriate. The Court saw no error in the trial judge’s holding that, in light of the misrepresentations by the listing agent, B.D. was not entitled to insist on the strict timing in the APS to declare the APS became null and void at 11:59 p.m. on December 9.


Yadeta v. Peel (Municipality) Police Service Board, 2024 ONCA 341

[Rouleau, Lauwers and Monahan JJ.A.]

Counsel:

B.Y., acting in person

G. Ferguson, for the respondent The Regional Municipality of Peel Police Service Board

M. Saad, for the respondents His Majesty the King in Right of Ontario, The Attorney General of Ontario and Maplehurst Correctional Complex

Keywords: Crown Liability, Intentional Torts, Malicious Prosecution, Misfeasance in Public Office, Bad Faith, Civil Procedure, Proceedings Against the Crown, Leave to Commence or Continue Proceedings, Striking Pleadings, No Reasonable Cause of Action, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, s. 17, Rules of Civil Procedure, r. 21

facts:

The appellant faced criminal charges, including benefiting from sexual services provided by a minor and making child pornography. The appellant initiated a civil claim against various parties, alleging malicious prosecution, bad faith, and negligence. Additionally, he claimed to have been assaulted by another inmate while detained.

issues:

Did the motion judge err in refusing to grant leave under s. 17 of the Crown Liability and Proceedings Act to proceed with the claim and in dismissing his claim?

holding:

Appeal dismissed.

reasoning:

No.

The motion judge provided a comprehensive and well reasoned analysis in support of his conclusions. He correctly canvassed the statutory requirements to grant leave under s. 17 of the Crown Liability and Proceedings Act and explained how the appellant’s claims failed to meet these requirements. The appellant’s assertions of malicious prosecution, misfeasance in public office, and bad faith were deemed unsupported by evidence or material facts. The motion judge’s conclusion that the claim does not disclose a cause of action was well supported and consistent with the applicable legal principles.

There was no basis to interfere with the motion judge’s discretionary decision that leave to amend the claim should not be granted. The appellant had several opportunities to amend his claim and provide further material facts in support of his allegations. There was no basis for anticipating that further amendments could cure the fatal defects in the claim.


Jones v. Quinn, 2024 ONCA 315

[Miller, Paciocco and Coroza JJ.A.]

Counsel:

E. Savas, for the appellant

J. A. Schmidt, for the respondents

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Options, Duty of Good Faith, Duty of Honest Performance, Civil Procedure, Orders, Enforceability, Vagueness, Collateral Attack, Costs, Statute of Frauds, R.S.O. 1990, c. S.19, Guindon v. Canada, 2015 SCC 41, 364021 Alberta Ltd. v. 361738 Alberta Ltd. (1990), 115 A.R. 333 (Q.B.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Mitsui & Co. (Canada) Ltd. v. Royal Bank of Canada, [1995] 2 S.C.R. 187, Sudbrook Trading Estate Ltd. v. Eggleton, [1983] 1 A.C. 444 (H.L), Sail Labrador Ltd. v. Challenge One (The), [1999] 1 S.C.R. 265, Jesan Real Estate Ltd. v. Doyle, 2020 ONCA 714, Gatoto v. 5GC Inc., 2024 ONCA 210, Bhasin v. Hrynew, 2014 SCC 71, 2161907 Alberta Ltd. v. 11180673 Canada Inc., 2021 ONCA 590, Lafarge Canada Inc v. Bilozir, 2018 ABCA 416, Erie Sand and Gravel Limited v. Tri-B Acres Inc, 2009 ONCA 709, Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 745, Yan v. Hutchison, 2023 ONCA 97, Garland v. Consumers’ Gas Co., 2004 SCC 25, R. v. Sarson, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Amtim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62, Carey v. Laiken, 2015 SCC 17, PrescottRussell Services for Children and Adults v. N.G. (2006), 82 O.R. (3d) 686 (C.A.), Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Wasserman, Arsenault Ltd. v. Sone (2002), 164 O.A.C. 195 (C.A.), Bondy-Rafael v. Potrebic, 2019 ONCA 1026

facts:

In 2017, the respondent LG transferred a 100-acre property that consists of farmland and residential land (the “Property”) to the appellant EQ, as a temporary financing relief for her financial difficulties. This transfer was conducted pursuant to an agreement of private purchase and sale (the “APPS”). The APPS included a Buyback Provision (“BBP”), which provided that within eight years of the date of purchase, LJ may purchase the property back from EQ for an amount based on the specified formula provided in the provision.

Despite initial cooperation between the parties with regards to financing, maintaining, and improving the Property in 2017 and 2018, their relationship deteriorated amidst financial difficulties. Throughout 2020 and 2021, the respondents made attempts to initiate a buyback process. On March 24, 2021, LG delivered to HF an unconditional offer to purchase the Property for $384,000 in the form of an Agreement of Purchase (“APS”) dated March 23, 2021, with a proposed closing date of May 31, 2021. The offer was irrevocably open for acceptance until March 26, 2021. On March 26, HF acknowledged receipt, but did not sign the APS.

Three applications were commenced by the parties and the respondents prevailed on all three. The application judge found that the appellant breached the BBP of the APPS and, in the alternative, that the respondents established a constructive trust over the Property. The application judge ordered that the appellant permit LJ or an authorized third party to repurchase the Property in accordance with the BBP and that the parties take immediate steps to close the transaction. The appellant EQ sought to overturn the application judge’s orders.

issues:
  1. Is the appellant precluded from raising the option issue for the first time on appeal?
  2. Did the application judge err in failing to interpret the BBP as an option?
  3. If so, did the respondents breach the contract arising from their execution of the option?
  4. Did the application judge err in ordering the appellant to sell the Property to the respondents in accordance with the terms of the second APS, and in granting a mandatory injunction for the same?
  5. Did the application judge err in granting unpleaded, excessively vague relief in the form of an order that “any items that have been removed from the property, such as vehicles” be returned to their “rightful owner”?
  6. Did the application judge err by granting excessive costs?
holding:

Appeal allowed, in part.

reasoning:
  1. No.

Appellants are typically not permitted to raise legal issues for the first time on appeal: Guindon at para 22. However, the appellant raised the issue of option contracts before the application judge and was not raising the issue for the first time on appeal.

The Court agreed with the respondents that the appellant had not expressly set out the law of options before the application judge in his factum or oral submissions. Nor had the appellant explicitly made submissions on why the BBP qualified as an option. However, the appellant brought to the application judge’s attention cases that engaged deeply with the law of options. The application judge exhaustively canvassed all the cases that were placed before her in her comprehensive reasons. In the Court’s view, the appellant made the law of options a live issue before the application judge, albeit in a less developed way than before the Court.

  1. Yes.

The proper interpretation of the BBP was of central importance to the appeal. It was also of central importance in the argument before the application judge although, as noted above, the appellant had not explicitly argued the BBP was an option. While the Court found that the appellant was not precluded from raising this argument on appeal, in fairness to the application judge, the issue of whether this provision was an option was not directly pursued before her. Nevertheless, it was an extricable error of law for her to not consider whether the BBP was an option.

An option is generally understood in Canadian contract law to be an irrevocable offer, backed by consideration: Mitsui & Co. (Canada) Ltd. at para 27. The party making the offer is the optionor. The person obtaining the offer is the optionee or option holder. The optionee can invoke the option, according to its specifications, at which point a new contract forms between the parties. The rights and obligations of the parties to this new, bilateral contract are determined by the terms of the option: Mitsui, at para. 28

In Mitsui, at para. 26, the Supreme Court noted that there are three “principal features” of an option: 1. Exclusivity and irrevocability of the offer to sell within the time period specified in the option; 2. Specification of how the contract of sale may be created by the option holder; and 3. Obligation of the parties to enter into a contract of sale if the option is exercised.

Regarding the second principled feature, the Court agreed that the words of the BBP, read literally in isolation, did not explain with any precision the process by which LG can exercise her right to repurchase the Property from the appellant. However, the context of the agreement allowed for inferences to be drawn about what the parties intended. It was clearly intended to provide a right to repurchase, which necessitated some means of exercising the right.

Given the nature of real estate transactions, which forms part of the surrounding circumstances against which the clause must be interpreted, the option to repurchase must have been exercisable through the provision of notice to that effect. Notice allows for the parties to work out the many necessary procedural formalities, such as the requirement that all parties be represented by counsel, and that the transactions be put in writing to comply with the Statute of Frauds, R.S.O. 1990, c. S.19. The correct interpretation of the BBP thus provided LG with the right to trigger the process of the repurchase of the Property via notice. This is how the application judge interpreted the provision. The second Mitsui feature was met. The Court concluded that the BBP reflected the three principal features of options from Mitsui, and therefore, was an option.

  1. No.

In Bhasin v. Hrynew, the Supreme Court acknowledged that “good faith contractual performance is a general organizing principle of the common law of contract” and “manifests itself in various more specific doctrines governing contractual performance:” at paras. 33, 63. The list of doctrines is not closed, but includes: “1) the duty of cooperation between the parties to achieve the objects of the contract; 2) the duty to exercise contractual discretion in good faith; 3) the duty not to evade contractual obligations in bad faith; and 4) the duty of honest performance:” 2161907 Alberta Ltd. at para. 44.

As the Court read the application judge’s reasons, she was undoubtedly concerned with the appellant’s failure to cooperate by taking reasonable steps to facilitate the sale of the Property to LG.

The Court noted that parties to an option contract are subject to the same good faith obligations as the parties to other contracts. In this case, even if the appellant were correct in his assertion that the BBP did not require the parties to enter into a formal agreement of purchase and sale confirming the purchase price and closing date, his failure to respond to the second APS by refusing to sign the agreement and provide the name of the lawyer representing him before the scheduled closing belied any argument that he was proceeding in good faith.

The application judge found that the respondents did everything that could have been expected of them in the circumstances and that the appellant’s agent, HF, acted in a highly obstructionist manner. He failed to cooperate with the respondents to achieve the objects of the contract and sought to evade his contractual duties. Given his actions, it was not reasonable to expect the respondents to make tender at 6:00 p.m. on May 31, 2021, and the Court agreed with the application judge’s conclusion that the appellant was not entitled to rescind the contract on the basis of the respondents’ failure to tender on time. The appellant was in breach because he failed to discharge his obligations under the contract in good faith.

  1. No.

The appellant characterized the application judge’s order as impermissibly fashioning an agreement for the parties. However, the Court understood the order as requiring the specific performance of a contract arising out of the exercise of the option, which the parties freely entered into. The parties agreed to a contract to sell a property, via the execution of an option. The appellant breached, and the application judge ordered them to follow through with their commitment and complete the conveyance of the Property.

The Court acknowledged that the application judge did not conduct a formal specific performance analysis in her reasons. The Court concluded that specific performance was an available remedy in this case, given that the Property was of unique significance to LG: see generally Erie Sand and Gravel Limited v. Tri-B Acres Inc, at para. 117.

  1. Yes.

First, the appellant submitted that the application judge erred in making an order that the respondents did not ask for. The Court disagreed.

The injunction and its procedural history were put before the application judge and formed a significant part of her factual narrative. The application judge was thus aware that the appellant had possession of two vehicles taken from the Property, well after the court order authorizing that possession had expired. In such a circumstance, the Court noted there was no substantial unfairness in the application judge recognizing that Lavine J.’s order authorizing possession of the vehicles had expired and that the vehicles should be returned.

In any event, the appropriate remedy for a denial of procedural fairness in a first instance proceeding can be an opportunity to attack the substantive correctness of the impugned order on appeal, rather than to quash or remand the order: R. v. Nahanee, at para. 57. The appellant had been given the opportunity to make substantive submissions challenging the correctness of the order to return vehicles and items to their rightful owner before the Court and indeed, he had done so. There was thus no basis to interfere with the order for lack of procedural fairness.

Second, the appellant contended that the respondents had asked for this relief in a separate motion at the Superior Court earlier in the proceedings, but that request for relief was dismissed as abandoned. The Court disagreed. The rule against collateral attacks applies to insulate court orders that dispose of a request for relief on a substantive basis. The rule is generally invoked when a party attempts to circumvent the effect of an order rendered against it by challenging its validity in the wrong forum: see generally Yan v. Hutchison, at para. 16. In some circumstances, it might constitute an abuse of process for a party to obtain relief that they had requested and then abandoned at an earlier stage of the proceeding. This had not happened in this case.

Finally, the appellant argued that the order was impermissibly vague, since it had not defined “items”, “vehicles”, or “rightful owner”: see Carey v. Laiken. The Court agreed with the appellant that courts have a duty to ensure that their orders “state clearly and unequivocally what should and should not be done”: PrescottRussell Services for Children and Adults v. N.G. (2006), at para. 27. To be enforceable, a court order must include all essential details as to the who, what, and when of its application, and must avoid overly broad language: Carey, at para. 33. In the abstract, an order to return “vehicles” to their “rightful owner” could be considered too vague to meet the Carey standard. However, in the context of this case, and in particular in light of the lengthy factual narrative in the application judge’s reasons, the Court noted that it is clear what was required of the appellant.

While an order for the appellant to take all reasonable steps to identify the rightful owner of the vehicles may be onerous, a court order is not impermissibly vague simply for being onerous. HF had chose to remove the vehicles from the Property of his own free choice. He was not required to do so. The Court stated he must bear the consequences of his actions.

The Court came to a different conclusion with regards to the order to return “items”. The word “items” was considered exceedingly broad. And unlike with vehicles, a careful review of the application judge’s reasons had not aided in narrowing down exactly what was being asked of the appellant. There was simply no guidance for the appellant to follow to determine what “items” he had control over and was expected to return. Nor was it clear how the appellant was to determine the “rightful owner” of these “items.” The Court noted that the respondents had not defended this aspect of the application judge’s order before the Court. Accordingly, the Court quashed the application judge’s order that the appellant return “items” to their “rightful owner”. The Court clarifed that the remaining order with regard to “vehicles” related to the green flatbed truck and Airstream trailer discussed in the application judge’s reasons, over which the appellant must take all reasonable steps to ascertain their rightful owner.

  1. No.

Leave to appeal a costs award is only granted in cases where it is obvious that there are strong grounds to believe that the judge erred in exercising their discretion: Brad-Jay Investments Limited at para 21. It was not obvious that there were strong grounds in this case. The application judge’s reasons tracked the correct and relevant principles of costs awards. The respondents’ bill of costs below could have been more detailed, but $50,000 was not an unreasonable sum for a proceeding of this complexity. And while the application judge had affirmatively rejected substantial indemnity in favour of partial indemnity costs, it was not a clear error for a judge to award partial indemnity costs that were similar in quantum to what a substantial indemnity award would have been. Partial indemnity fees are not defined in terms of an exact percentage of full indemnity fees under the Rules of Civil Procedure: see generally Wasserman, Arsenault Ltd. v. Sone (2002) at para. 5; Bondy-Rafael v. Potrebic, at para. 57.

Given the numerous factors that the court must consider in the exercise of its discretion in fixing costs, a highly deferential approach is required.


SHORT CIVIL DECISIONS

Sutherland v. Canadian Imperial Bank of Commerce, 2024 ONCA 338

[Roberts, Trotter and George JJ.A.]

Counsel:

SS, self-represented

R.Aisenberg, for the respondent

Keywords:

Contracts, Duty of Honest Performance, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Abuse of Process, Res Judicata

Halton Standard Condominium Corporation No. 550 v. Del Ridge (Appleby) Inc., 2024 ONCA 337

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

Counsel:

P. Starkman, for the appellants

D.A. Schmuck and R. Taylor, for the respondent

Keywords: Civil Procedure, Striking Pleadings, Documentary Disclosure, Settlements, Disclosure, Rules of Civil Procedure, R. 30.10, Skymark Finance Corporation v. Ontario, 2023 ONCA 234

Flight (Re), 2024 ONCA 336

[Brown, Paciocco and Nordheimer JJ.A.]

Counsel:

T. Vasdani, for the appellant

K.D. Reason, for the respondent

Keywords: Bankruptcy and Insolvency, Property of the Bankrupt, Choses in Action, Assignment, Flight (Heritage Painters & Services) v. LeBlanc, 2022 ONCA 831

Dreamfund Holdings Inc. v. Yusuf, 2024 ONCA 335

[Brown, Paciocco and Nordheimer JJ.A.]

Counsel:

S. Olowolafe, for the appellants

B. Odetoyinbo and A. Appadoo, for the respondent

Keywords: Contracts, Civil Procedure, Default Judgments, Rules of Civil Procedure, r 19.08(2), HSBC Securities (Canada) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894, Male v. The Business Solutions Group, 2013 ONCA 382

Mohammad v. Bakr, 2024 ONCA 347

[Zarnett, Coroza and Favreau JJ.A.]

Counsel:

AM, acting in person

S. Murtha and C. McCormack, for the respondent

Keywords: Civil Procedure, Vexatious Litigation, Rules of Civil Procedure, r 2.1, Mohammad v. McMaster University, 2023 ONCA 598, Mohammad v. Munn, 2023 ONSC 4361, Mohammad v. Springer Nature, 2023 ONSC 5523, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733

Malek v. Soliman, 2024 ONCA 330

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

Counsel:

E.D. Freedman, for the appellant

P. Danson, for the respondent M.F.S.

D. Delaney, for the respondents A.W., J.P. and M.J.de L.C.

Keywords: Torts, Negligence, MVA, Civil Procedure, Settlements, Enforcement, Adjournments, Toronto – Dominion Bank v. Hylton, 2010 ONCA 752

Vertical Horizons Contracting Inc. v. Markham (City), 2024 ONCA 359

[Brown, Paciocco and Nordheimer JJ.A.]

Counsel:

L. Klug, for the appellant

V. Scalisi and R. Azimov, for the respondent

Keywords: Contracts, Construction

Alsous v. Shahin, 2024 ONCA 358

[Roberts, Trotter and George JJ.A.]

Counsel:

S. Garcea, for the appellant

K. Wise, for the respondent

Keywords: Family Law, Property

Kisten v. Kosewski, 2024 ONCA 346

[Brown, Paciocco and Nordheimer JJ.A.]

Counsel:

V. Pohani, for the appellant

No one appearing for the respondent

Keywords: Real Property, Trusts, Civil Procedure, Reasons for Decision


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

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

Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of April 22, 2024.

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Congratulations to our very own Reeva Finkel for the result achieved for our client in Reset Electronics Inc. v. Hydro One Networks Inc., a negligence case. The Court found that Hydro One owed the plaintiff no duty of care and was not the cause for the failure of the plaintiff’s business.

In Alford v. Canada (Attorney General), the National Security and Intelligence Committee of Parliamentarians Act, the Court found that it was not unconstitutional for Parliament to regulate the ability of MPs who become privy to state secrets affecting national security to disclose and debate those issues in the House of Commons. No constitutional amendment is required to place such limits on parliamentary privileges.

In Herold Estate v. Curve Lake First Nation, the Court varied its costs decision to make the Estate’s estate trustee personally liable for the costs awarded, after the estate trustee had caused property to be transferred to them without it being disclosed to the other side or the Court, leaving the Estate without an ability to pay the costs.

In Rogerson v. Grey Bruce Regional Health Centre, the Court dismissed the appeal and upheld the trial judge’s finding that the respondent physician did not breach a duty of care to report potential child abuse the day before the child was assaulted by his biological mother. This was a tragic case where the damages flowing from the injuries to the child were agreed to exceed $13 million.

In Ungar v MOD Developments, a developer purchased two Toronto buildings to create a 52-storey complex, agreeing to pay $75 million and transfer 100 rental units to the vendors post-registration. A dispute arose over the terms of a cost sharing agreement between the developer and the vendors after the City imposed changes to the common elements. The application judge found for the vendors on how much of the cost of common elements they should have to contribute to. The application judge also found that the vendors beneficially owned the units and, through the remedy of constructive trust to prevent unjust enrichment, were entitled to the rents pre-registration/pre-closing. The Court dismissed the developer’s appeal.

In Bethel Restoration Ministries v. Noble, two factions controlling a church entered into minutes of settlement to resolve litigation, which minutes were enforced by the court below. One side appealed, arguing that the court had no jurisdiction, as the issues related to non-jusiticiable matters regarding the internal workings of a church. The Court dismissed the appeal, finding that the matters at issue related to issues of contract and property, which were governed by civil law, not canon law.

In Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church the Court refused  to stay its order for the conduct of a governance meeting in accordance with the church’s bylaws pending an appeal to the Supreme Court of Canada.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Reset Electronics Inc. v. Hydro One Networks Inc., 2024 ONCA 311

Keywords: Torts, Negligence, Negligent Misrepresentation, Duty of Care, Damages, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Housen v. Nikolaisen, 2002 SCC 33, Edinger v. Johnston, 2013 SCC 18

Ungar v. MOD Developments, 2024 ONCA 298

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Unjust Enrichment, Remedies, Constructive Trust, Civil Procedure, Evidence, Admissibility, Parol Evidence, Appeals, Standard of Review, Vendors and Purchasers Act, R.S.O. 1990. c. V.2, s. 4(f), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Intercap Equity Inc. v. Bellman, 2022 ONCA 61, Resolute FP Canada Inc. v. Ontario (Attorney General), 2019 SCC 60, Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, Professional Institute of the Public Service of Canada v. Canada (Attorney General), 2012 SCC 71, Peter v. Beblow, [1993] 1 S.C.R. 980

Bethel Restoration Ministries v. Noble, 2024 ONCA 295

Keywords: Not-for-Profit Corporations,  Voluntary Associations, Religious Organizations, Governance, Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church, 2023 ONCA 815

Rogerson v. Grey Bruce Regional Health Centre, 2024 ONCA 303

Keywords: Torts, Professional Negligence, Medical Malpractice, Standard of Care, Child Protection, Duty to Report, Child and Family Services Act, R.S.O. 1990, c. C.11, s.72, Housen v. Nikolaisen, 2002 SCC 33, Hydro-Quebec v. Matta, 2020 SCC 37, H.L. v. Canada (Attorney General), 2005 SCC 25, Salomon v. MatteThompson, 2019 SCC 14, B.K.2 v. Chatham-Kent Children’s Services, 2016 ONSC 1921, R. v. GF, 2021 SCC 20, Sacks v. Ross, 2017 ONCA 773, Calin v. Calin, 2021 ONCA 558, Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, Homes of Distinction (2002) Inc. v. Adili, 2022 ONCA 64

Rathod v. Chijindu, 2024 ONCA 317

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, r.61.06(1), Yaiguaje et al. v. Chevron Corporation, 2017 ONCA 827, Pickard v. London Police Services Board, 2010 ONCA 643, Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, 2010 ONCA 137, Toronto Dominion Bank v. Szilagyi Farms Ltd. (1988), 65 O.R. (2d) 433 (C.A.), Schmidt v. Toronto-Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.),  Henderson v. Wright, 2016 ONCA 89

Herold Estate v. Curve Lake First Nation, 2024 ONCA 299  

Keywords:

Aboriginal Law, Civil Procedure, Orders, Variation, Transmission of Interest, Costs, Non-Parties, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), Rules of Civil Procedure, r. 59.06, 11.01, 9.01-9.03, Sturmer v. Beaverton (Town) (Re) (1911), 25 O.L.R. 190 (H.C.J.), 1318847 Ontario Ltd. v. Laval Tool & Mould Ltd., 2017 ONCA 184

Alford v. Canada (Attorney General), 2024 ONCA 306

Keywords: Constitutional Law, Parliamentary Privileges, Immunities and Powers, Freedom of Speech, Constitution Act, 1867,s. 18, Constitution Act, 1982, s. 38, The National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15, s. 12, Security of Information Act, R.S.C. 1985, c. O-5, Parliament of Canada Act, R.S.C. 1985, c. P-1, Alford v. Canada (Attorney General), 2019 ONCA 657, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, Duffy v. Canada (Senate), 2020 ONCA 536, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, Caron v. Alberta, 2015 SCC 56, R. v. Grant, 2009 SCC 32, Reference re Remuneration of Judges of Provincial Court of P.E.I., [1997] 3 S.C.R. 3, Re Clark et al. and Attorney-General of Canada (1977), 17 O.R. (2d) 593 (S.C.), Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39

Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church, 2024 ONCA 316

Keywords: Voluntary Associations, Not-for-Profit Corporations, Civil Procedure, Appeals, Stay Pending Appeal, Canadian Charter of Rights and Freedoms, s. 2, Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Iroquois Falls Power Corp. v. Ontario Electricity Financial Corp., 2016 ONCA 616, Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26

Short Civil Decisions

Preiano v. Cirillo, 2024 ONCA 312

Keywords: Civil Procedure, Costs, Pre-judgment Interest, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 127, 128(1), 131

Lahey v. Lahey, 2024 ONCA 307

Keywords: Real Property, Possession, Civil Procedure, Orders, Enforcement, Writs of Possession, Appeals, Extension of Time, Stay Pending Appeal, Paulsson v. University of Illinois, 2010 ONCA 21, Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (ONCA), 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Overtveld v. Overtveld, 2021 ONCA 930, Matos v. Driesman, 2024 ONCA 271, Lamothe v. Ellis, 2022 ONCA 789

North v. Bayerische Motoren Werke AG, 2024 ONCA 305

Keywords: Civil Procedure, Appeals, Hearing Together

Comfort Capital Inc. v. Yeretsian, 2024 ONCA 321

Keywords: Contracts, Real Property, Mortgages, Costs

Grillone (Re), 2024 ONCA 322

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Perfection

One Clarendon Inc. v. Finlay, 2024 ONCA 323

Keywords: Contracts, Real Property, Landlord and Tenant, Residential Tenancies, Civil Procedure, Orders, Enforcement, Writs of Possession, Appeals, Stay Pending Appeal, Lifting of Stay, Security for Costs, Rules of Civil Procedure, r 63.01, Bon v. Hutchens, 2021 ONSC 2076, Schwartz v. Fuss, 2021 ONSC 1159


CIVIL DECISIONS

Reset Electronics Inc. v. Hydro One Networks Inc., 2024 ONCA 311

[Benotto, Zarnett and Coroza JJ.A.]

Counsel:

Marin and A.P. Strombergsson-DeNora, for the appellant

Reeva M. Finkel, for the respondent

Keywords: Torts, Negligence, Negligent Misrepresentation, Duty of Care, Damages, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Housen v. Nikolaisen, 2002 SCC 33, Edinger v. Johnston, 2013 SCC 18

facts:

The appellant (“Reset”) held the exclusive right to distribute certain electrical components that could be used to upgrade existing fluorescent light fixtures, making them more energy efficient. The respondent (“Hydro One”) administered two programs of the Ontario Power Authority (“OPA”) that contemplated payment of financial incentives to electricity customers who replaced existing lighting with more energy efficient components. Customers who purchased Reset’s products applied for and obtained incentive payments from Hydro One, but Reset did not achieve the sales it hoped for. After its business failed, Reset brought an action against Hydro One. The trial judge dismissed the action. Seeking a new trial, Reset challenged each aspect of the trial judge’s rejection of its negligence theory of liability but conceded that Reset was not a party to a contract with Hydro One.

issues:
  1. Did the trial judge err in her duty of care analysis?
  2. Did the trial judge err in finding a lack of reasonable reliance by Reset on any undertaking of Hydro One?
  3. Did the trial judge err in her conclusion that Reset’s damages were not caused by Hydro One’s breach of duty, if there was a breach of duty?
holding:

Appeal dismissed.

reasoning:
  1. No.

The trial judge noted that for there to be a duty of care, a relationship of proximity had to exist. Where Reset alleged negligent misrepresentation or negligent performance of a service, Reset had to establish an undertaking in its favour by Hydro One that invited reliance, and that Reset reasonably relied on that undertaking to its detriment. After an assiduous review of the record, the trial judge concluded that Hydro One had given no undertaking in favour of Reset. There was no basis for appellate interference with this conclusion.

  1. No.

In the contracts between Hydro One and its customers, Hydro One reserved to itself an absolute discretion to reject any incentive application and was not bound to approve payments to any customer within any deadline. It would not have been reasonable for Reset to rely on a supposed undertaking to determine eligibility of customers and make payments to them according to criteria or deadlines inconsistent with these direct contractual arrangements. The trial judge’s finding that there was no relationship of proximity sufficient to give rise to a duty of care was fatal to Reset’s claim in negligence. The trial judge found that if there was a duty, Hydro One did not breach it. These findings were subject to a deferential standard of review on appeal and there was no basis to disturb these findings.

  1. No.

Reset’s allegation of causation was heavily dependent, at trial, on the evidence of its principal, W, whom the trial judge did not find credible. Reset did not lead the evidence of any potential customer who declined to do business with Reset due to delays in getting incentive payments.


Rogerson v. Grey Bruce Regional Health Centre, 2024 ONCA 303

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

Counsel:

J.J. Adair, J.V. Katz and D. Embury, for the appellants

Kryworuk and J. Damstra, for the respondents

Keywords: Torts, Professional Negligence, Medical Malpractice, Standard of Care, Child Protection, Duty to Report, Child and Family Services Act, R.S.O. 1990, c. C.11, s.72, Housen v. Nikolaisen, 2002 SCC 33, Hydro-Quebec v. Matta, 2020 SCC 37, H.L. v. Canada (Attorney General), 2005 SCC 25, Salomon v. MatteThompson, 2019 SCC 14, B.K.2 v. Chatham-Kent Children’s Services, 2016 ONSC 1921, R. v. GF, 2021 SCC 20, Sacks v. Ross, 2017 ONCA 773, Calin v. Calin, 2021 ONCA 558, Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, Homes of Distinction (2002) Inc. v. Adili, 2022 ONCA 64

facts:

T.R. suffered a catastrophic brain injury on December 18, 2007, when he was only 16 days old. He was assaulted by his biological mother, C.C. The parties agreed that T.R.’s damages exceed $13,000,000.

Dr. S. was C.C.’s family physician prior to T.R.’s birth. She saw both C.C. and T.R. together three times prior to the assault, including the day before it happened. Dr. N. was a paediatrician who also saw T.R. and C.C. on December 17, 2007. Dr. S. referred them to Dr. N. because she was concerned that T.R. was not gaining weight fast enough. Dr. N. suggested either that T.R. be readmitted to the hospital so that his feeding and weight gain could be monitored, or that C.C. return with him in three days for further follow-up. C.C. chose the latter.

The appellants’ central argument at trial and on appeal was that Dr. S. and Dr. N. should have reasonably suspected that T.R. was at risk of injury if he remained unsupervised in his mother’s care, and that they breached their duty of care to him by failing to report this concern to the local Children’s Aid Society (the “CAS”) as then required under s. 72 of the Child and Family Services Act. Had either of them done so, the CAS would have intervened immediately, and this intervention would have prevented the assault.

However, the trial judge found that Dr. S. conducted appropriate mental health assessments of C.C. and that she did not breach the standard of care by failing to contact the CAS prior to or after T.R.’s birth. The trial judge found that Dr. N. took an adequate mental health history of C.C. and that she did not breach the standard of care in failing to make a s. 72 report on December 17, 2007. In any event, even if either of the respondent physicians had made such a report, the trial judge found that the CAS would not have intervened in a way that would have prevented the assault.

issues:

Did the trial judge make reversible errors by misapprehending and misapplying the criteria for a mandatory report under s. 72 of the CFSA, by making findings on causation ungrounded in the evidence and by improperly failing to fully consider the appellants’ expert evidence?

holding:

Appeal dismissed.

reasoning:

No.

The trial judge did not misapprehend s. 72 by imposing too high a threshold for a duty to report or by failing to consider what the respondent physicians should have reasonably suspected, as opposed to what they actually did or did not suspect.

The trial judge did not disregard expert evidence when he concluded that Dr. S. had no obligation to make a s. 72 report. The trial judge did not require expert evidence to determine whether a set of facts gave rise to a s. 72 duty but that the standard of care of a family physician required compliance with s. 72. The trial judge’s finding that Dr. S. met the standard of care was supported by the evidence of the respondents’ expert, Dr. T.S.

Nor did the trial judge apply the wrong standard or otherwise err in assessing Dr. N.’s conduct. The trial judge considered not only Dr. N.’s subjective belief but also the reasonableness of that belief, finding that she did not have child protection concerns on December 17 and that she furthermore had no duty to make a CAS report. The trial judge concluded that there was nothing to indicate that T.R. was at possible risk in going home with C.C. and returning in three days.

The trial judge’s determination about what additional information Dr. N. might have obtained on December 17, and what she would have done with this information, were findings of fact based on the whole of the evidence at trial. They warranted deference in the absence of a palpable and overriding error. The trial judge concluded that, “even if Dr. N. had obtained CC.’s full mental health history, and conducted a detailed mental health assessment of her, she would not have had child protection concerns” and would not have been obliged to make a s. 72 report.

Overall, the appellants failed to prove that had either Dr. S. or Dr. N. alerted CAS to T.R.’s situation, the CAS would have either immediately removed T.R. from C.C.’s care or required that she be subject to full-time supervision.


Rathod v. Chijindu, 2024 ONCA 317

[Roberts J.A. (Motions Judge)]

Sidhu, for the moving party, Harsha Rathod

Belmont, for the moving party, Bluekat Capital Corp.

Keywords:  Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, r.61.06(1), Yaiguaje et al. v. Chevron Corporation, 2017 ONCA 827, Pickard v. London Police Services Board, 2010 ONCA 643, Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, 2010 ONCA 137, Toronto Dominion Bank v. Szilagyi Farms Ltd. (1988), 65 O.R. (2d) 433 (C.A.), Schmidt v. Toronto-Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.),  Henderson v. Wright, 2016 ONCA 89

facts:

These motions for security for costs arose out of mortgage disputes. The responding parties (appellants on the appeal) borrowed considerable sums from the moving parties (respondents on appeal) and gave them mortgages over two properties. The mortgages went into default. The properties were sold under power of sale and the net proceeds, after the payment of the first mortgages and related expenses, were paid into court.

The responding parties appealed the February 13, 2024 judgment of the motion judge who ordered payment of the monies paid into court to the moving parties in satisfaction of their respective mortgages and several outstanding costs orders that the responding parties failed to pay.

issues:

Should security for costs be ordered?

holding:

Motion granted.

reasoning:

Yes.

The motion judge held the moving parties met the conjunctive criteria for granting security for costs under r. 61.06(1)(a).

First, there was good reason to believe that the appeal was frivolous and vexatious. The evidence supporting the moving parties’ claims was extensive, and, to quote the motion judge from whose order the respondents were appealing, the evidence submitted by the responding parties was “entirely untrustworthy and unreliable, such that it would be unsafe to rely upon any evidence presented by them, that is not corroborated by independent evidence, or the evidence of [the moving parties].”

There was good reason to believe that the appeal was vexatious in that the responding parties’ appeal was devoid of merit and appeared to be brought for the collateral purpose of delaying payment to the moving parties. Moreover, the responding parties repeated their unfounded allegations of fraud and deceit against the moving parties and their lawyers, notwithstanding the motion judge’s findings that [the responding parties] were not credible witnesses in the proceeding, had not provided reliable evidence, and further they colluded with one another with the shared and common intent to defraud their mutual creditors, including [the moving parties], for their personal benefit.

Second, there was good reason to believe that the responding parties had insufficient assets to pay the appeal costs. There was not a sufficient surplus remaining after the mortgages were paid out to provide protection for the appeal costs. Instead, it exceeded the amounts paid into court. Further, there was no evidence that the responding parties had any available assets to pay the appeal costs if they were unsuccessful.

If all the criteria under r. 61.06(1)(a) are not satisfied, security for costs may be granted “for other good reason” under r. 61.06(1)(c). Here, if not frivolous and vexatious, the responding parties’ grounds of appeal had a very low prospect of success. Moreover, even if the responding parties had sufficient assets to pay appeal costs, their past failures to pay their mortgages and the outstanding costs orders demonstrated that they would not voluntarily pay appeal costs and that it would be “nearly impossible to collect” those costs.


Herold Estate v. Curve Lake First Nation, 2024 ONCA 299

[Fairburn A.C.J.O., Miller and Zarnett JJ.A.]

Counsel:

S. Metallic and N. Bains, for the moving parties

J. Brown and L. Findlay, for the responding parties, the Estate of W.A.H. and J.S.H.

Luxat, for the Attorney General of Canada

Keywords: Aboriginal Law, Civil Procedure, Orders, Variation, Transmission of Interest, Costs, Non-Parties, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), Rules of Civil Procedure, r. 59.06, 11.01, 9.01-9.03, Sturmer v. Beaverton (Town) (Re) (1911), 25 O.L.R. 190 (H.C.J.), 1318847 Ontario Ltd. v. Laval Tool & Mould Ltd., 2017 ONCA 184

facts:

The responding party, the Estate of W.A.H. (the “Estate”), commenced a Superior Court application asserting that it owned certain islands in the Trent-Severn Waterway (the “Islands”). It succeeded in the Superior Court, but the moving parties (the “First Nations”) successfully appealed that decision to the Ontario Court of Appeal. The Estate was ordered to pay costs totalling over $190,000 to the First Nations (the “Costs Decision”). The Court of Appeal’s costs awards were reflected in a formal order dated August 24, 2021, which was entered on January 26, 2022. The Estate unsuccessfully sought leave to appeal to the Supreme Court of Canada and was ordered by that court to pay costs of the leave application to the First Nations.

The First Nations have been unable to recover their costs. The Estate was without the means to pay them. They discovered, after the costs orders were made, that H (who is the Estate Trustee) received, in his personal capacity, a transfer of property the Estate owned (“Lot 35”) shortly after the Estate’s application was commenced. The First Nations moved to vary the costs awards to provide that J.S.H. be jointly and severally liable to pay the costs awarded against the Estate.

issues:

Should the Court grant an order to set aside or vary the costs order on the ground of fraud or of facts arising or discovered after the order was made?

holding:

Motion granted, in part.

reasoning:

Yes.

The 2015 transfer of Lot 35 to H was a fact that was discovered after the order for costs was made and was a sufficient ground in the circumstances to vary the Court of Appeal’s order. The factual assertion of current registered ownership of Lot 35 was never updated, even though the Estate was making the claim that it currently owned the Islands. The failure to update led to the application judge and the Court of Appeal being under the misapprehension that the Estate was still the registered owner at the time of the court order. The transfer of ownership engaged r. 11.01, which provides:

Where at any stage of a proceeding the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the proceeding shall be stayed with respect to the party whose interest or liability has been transferred or transmitted until an order to continue the proceeding by or against the other person has been obtained.

The application ought not to have continued in the name of the Estate after the transfer.

H could not avoid personal costs exposure because he instead continued the litigation in the name of the Estate, something he was able to do because he was Estate Trustee. An Estate litigates through its estate trustee: rr. 9.01-9.03. Although H did not name himself as a party, he alone commenced and prosecuted the application, even after the transfer. Even if H could be called a “non-party”, it would still be appropriate to order that he be liable for costs. The law generally disapproves of the real litigant being insulated from costs exposure by litigating through nominees. Courts have statutory jurisdiction to determine “by whom” the “costs of and incidental to a proceeding” shall be paid under s. 131(1) of the Courts of Justice Act. This includes jurisdiction to order a non-party to pay costs, provided that the “person of straw” test is met. That test is satisfied where: (i) the non-party had status to bring the action; (ii) the named party was not the true litigant; and (iii) the named party was a “person of straw” put forward to protect the true litigant from liability for costs.

These elements were present. First, as H had status – and was in fact required – to continue the application in his own name and on his own behalf after he obtained the transfer of Lot 35 from the Estate. Second, the Estate was no longer the true litigant, in any sense, from and after the transfer; only H had the entitlement to make a claim as current owner of Lot 35 and he alone stood to benefit from the application and any success on the appeal. Third, the position taken by the responding parties was that the effect of continuing the application and responding to the appeal putatively on behalf of the Estate – which lacked the ability to pay any costs – insulated H, the true litigant, from costs. Because of H’s close connection to the Estate, the litigation, and the transfer, it would be unjust for him to be free of the costs consequences of the litigation. He was in a position to direct the litigation and benefit from success. The claim continued, improperly, to be litigated on behalf of the Estate after the transfer when the claim was really H’s and could only have been litigated by and for him.

If the First Nations was aware of the transfer, they would have requested, and the Court of Appeal would have made, its costs awards against H. It would be contrary to the interests of justice to allow H to use the principle of finality to escape the costs consequences of the litigation.


Alford v. Canada (Attorney General), 2024 ONCA 306

[Doherty, Brown and Trotter JJ.A]

Counsel:

Gay and M. Rahman, for the appellant

R.A., acting in person

Keywords: Constitutional Law, Parliamentary Privileges, Immunities and Powers, Freedom of Speech, Constitution Act, 1867,s. 18, Constitution Act, 1982, s. 38, The National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15, s. 12, Security of Information Act, R.S.C. 1985, c. O-5, Parliament of Canada Act, R.S.C. 1985, c. P-1, Alford v. Canada (Attorney General), 2019 ONCA 657, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, Duffy v. Canada (Senate), 2020 ONCA 536, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, Caron v. Alberta, 2015 SCC 56, R. v. Grant, 2009 SCC 32, Reference re Remuneration of Judges of Provincial Court of P.E.I., [1997] 3 S.C.R. 3, Re Clark et al. and Attorney-General of Canada (1977), 17 O.R. (2d) 593 (S.C.), Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39

facts:

The National Security and Intelligence Committee of Parliamentarians Act (the “Act”) is an attempt to achieve the reconciliation between full and independent parliamentary oversight and the need to maintain the strict confidentiality of certain information and activities. The Act contemplates that members of the Committee will, in the course of performing their duties, come to know highly sensitive and classified information. The Act takes various steps to preserve the secrecy of that information.

From one perspective, the Act can be seen as a reasonable attempt by Parliament to balance legitimate and competing oversight and confidentiality concerns. The respondent, R.A., a law professor with an expertise in constitutional law and national security (the “respondent”), takes a different view. He submitted that, whatever one may say about the overall merits of the Act, s. 12 runs afoul of a fundamental constitutional principle. He argued that s. 12 eliminates freedom of speech and debate within Parliament insofar as the substance of any speech or debate is said to constitute an improper disclosure of information under the Act, or a related statutory provision. The respondent submitted that the right to freedom of speech and debate within Parliament is absolute, fundamental to Canadian democracy, constitutionally protected, and cannot be abrogated or limited, except by way of a constitutional amendment under s. 38 of the Constitution Act, 1982.

The Court, in a previous appeal, granted the respondent public interest standing to seek a declaration that s. 12 is ultra vires Parliament. Having obtained standing, the respondent was successful in challenging s. 12. The application judge declared s. 12 ultra vires and “invalid”. The Attorney General of Canada (“Canada”) appealed. Canada contended that the Constitution, and specifically s. 18 of the Constitution Act, 1867, authorizes Parliament to enact legislation defining the scope of parliamentary privileges. On Canada’s argument, s. 12 of the Act is an exercise of the constitutional authority granted under s. 18 and no amendment to the Constitution is required. Canada’s position was supported on the appeal by the Speaker of the Senate and the Speaker of the House of Commons, both of whom were granted leave to intervene. The Canadian Civil Liberties Association and the British Columbia Civil Liberties Association also intervened. They supported the position advanced by the respondent.

issue:

Can Parliament, in exercising its plenary legislative authority, limit the right to freedom of speech and debate in the manner laid out in s.12 of the Act?

holding:

Appeal allowed.

reasoning:

Yes.

The respondent argued that freedom of speech and debate in Parliament is fundamental and is constitutionally entrenched via the preamble to the Constitution Act, 1867. Consequently, freedom of speech and debate can be circumscribed only by a constitutional amendment that conforms to the amending procedures in s. 38 of the Constitution Act, 1982. Canada countered with s. 18 of the Constitution Act, 1867. Canada submitted that on a plain reading, s. 18 gives Parliament plenary power to define by legislation all parliamentary privileges, powers, and immunities. Canada maintains that s. 12 of the Act is an exercise of the constitutional power granted to Parliament by s. 18.

Parliament moved quickly to exercise the power in s. 18 by enacting s. 4 of the Parliament of Canada Act. Section 4(a) declares that Parliament holds the privileges, immunities and powers held by the House of Commons of the United Kingdom at the time of the passing of the Constitution Act, 1867. Those powers, privileges and immunities clearly included freedom of speech and debate. Section 4(b) of the Parliament of Canada Act indicates that Parliament also holds such privileges, immunities and powers as “are defined by Act of the Parliament of Canada”. This legislative power is limited only by the requirement in s. 4(b) that any privilege, immunity, or power bestowed by an Act of Parliament not exceed the powers enjoyed by the House of Commons of the Parliament of the United Kingdom at the time of the passing of the Canadian legislation purporting to define parliamentary privileges, immunities and powers.

This appeal turned on the interpretation of s. 18 of the Constitution Act, 1867. Constitutional documents must be interpreted in a large and liberal manner, bearing in mind the historical context and the entirety of the constitutional text. Interpretation must, however, begin with, and remain true to, the language of the relevant provision. Meaning comes first and foremost from the text. The language of s. 18 plainly and unequivocally gives to Parliament the plenary and continuing legislative power to define parliamentary privileges, immunities, and powers by way of duly enacted legislation. With the exception of the limitation on the expansion of those rights described in the closing language of s. 18, that section places no limit on how Parliament can “define” its privileges, immunities, and powers. To “define” in its normal meaning is to say what something is, and/or what something is not. Whether Parliament expands or limits the scope of parliamentary privileges, immunities and powers, Parliament is engaged in defining those rights.

On a plain reading, s. 18 applies to all parliamentary privileges, immunities, and powers. Nothing in the text suggests that s. 18 is limited to certain legislated parliamentary privileges, immunities, and powers. There is nothing inconsistent with recognizing that certain privileges, immunities, and powers are inherent in the role of Parliament, while at the same time acknowledging that after 1867, s. 18 of the Constitution Act, 1867 gave Parliament the authority to define its parliamentary privileges, immunities, and powers, including those inherent in the role of Parliament.

The interpretation of s. 18 does not, however, end with the text. The meaning of the words must be informed by the fundamental organizing principles of the Canadian Constitution. The independence of Parliament from executive and judicial interference is undoubtedly one of the basic principles of Canadian democracy captured by the language of the preamble. It is fundamental that Parliament control its own procedures. Without that autonomy, Parliament could not effectively perform its legislative role.

Parliamentary privilege exists to protect the independence of Parliament and thereby further Parliament’s ability to effectively oversee the activities of government. Section 18 of the Constitution Act, 1867 is consistent with, and promotes, the independence of Parliament by recognizing Parliament’s ability to define its own powers, privileges, and immunities. This interpretation of s. 18, which in the Court’s view flows easily from the language, is consistent with the principle of the independence of Parliament and facilitates Parliament’s oversight role.

The Court noted that this is a situation in which Parliament has chosen, through legislation, to limit its own privileges, powers, and immunities to enhance Parliament’s ability to oversee certain government activities. Interpreting s. 18 so as to permit legislation like s. 12 of the Act is consistent with the fundamental principles underlying Canadian democracy.

Section 12 of the Act stands as an express and crystal-clear statement of Parliament’s decision to exclude reliance on parliamentary privilege in the identified circumstances. Parliament’s intention is obvious. Once the category is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate. Freedom of speech and debate are clearly recognized categories of parliamentary privilege. Section 12 reflects Parliament’s decision that the exercise of parliamentary privilege in the circumstances governed by s. 12 was neither “necessary nor appropriate”.

The Court noted that the respondent’s submissions that s.12 of the Act prevents Parliamentarians from informing their colleagues about government abuses and “drastically” alters the “constitutional architecture” in Canada, is overstating the effect of s.12. There is nothing in the record to support the inference that in the six years since its enactment, s. 12 has had any impact on Parliamentarians, or has interfered with full debate on matters of national security.

The Court disagreed with the submission that the member’s privilege of free speech and debate would be totally abrogated in the hypothetical situation posed by the respondent. Section 11(1) prohibits disclosure of specific information, not questions or speeches about matters pertaining to national security. Because certain information may be subject to a non-disclosure obligation under the Act, does not mean that the subject matter to which that information relates cannot be the topic of questions in Parliament or a committee of Parliament. In addition, s. 12 does not limit Parliament’s lex parliamenti privilege to require the production of documents and testimony. Multiple speakers of the House of Commons have affirmed that this privilege includes a power to require production, even of documents relating to matters of national security, should members of Parliament in their wisdom pass such an order.

Therefore, the Court noted that it was fair to say that s.12 does limit the right to free speech and debate within parliament. That limitation, however, stops far short of anything approaching a constitutional renovation, or an embargo on parliamentary oversight of matters pertaining to national security.


Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church, 2024 ONCA 316

[Lauwers J.A. (Motions Judge)]

Counsel:

A.L. Morrison and E. Beygi, for the respondents/moving parties

Sischy and Y. Gal, for the appellants/responding parties

Keywords:

Voluntary Associations, Not-for-Profit Corporations, Civil Procedure, Appeals, Stay Pending Appeal, Canadian Charter of Rights and Freedoms, s. 2, Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Iroquois Falls Power Corp. v. Ontario Electricity Financial Corp., 2016 ONCA 616, Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26

facts:

The individual parties are all members of Medhanie Alem Eritrean Orthodox Tewahdo Church (the “local Church”). This is a hierarchical Church. The local Church is under the Eritrean Orthodox Tewahdo Church Diocese of North America (the “Diocese”), which is the ecclesiastical district to which the local Church belongs. The Diocese is under the Holy Synod Eritrean Orthodox Church (the “Synod”), whose governing ecclesiastical council is in Asmara, Eritrea. Their relations are governed by canon law, which is understood to be the law of the Church.

The individual parties are members of the local Church. The responding parties served as volunteer board members. There is a dispute as to whether they continue to serve in that capacity. The moving parties, who were the respondents in the appeal to the Court, are also members of the local Church and claim broad support from within its membership.

Beneath the immediate dispute is a more fundamental conflict between the two groups. It has to do with the moving parties’ challenge to the authority of the Diocese and the Synod. The moving parties objected to a decision of the Synod to excommunicate their former priest, and object to financial obligations that the Diocese has imposed on the local Church. It appears that the moving parties would prefer to withdraw from the Diocese. These broader issues were not before the Court on appeal. Neither the Diocese nor the Synod were parties.

The immediate dispute was over various internal governance issues. The application judge ordered the local Church to hold an AGM pursuant to the Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15 (the “NFPCA”) and the 2014 Bylaws, with a court-appointed neutral chair. The Court’s decision turned on the interrelationship between statute law and canon law.

The Court’s decision required that the court ordered AGM still take place, but the conditions stipulating that the AGM must accord with the 2014 Bylaws and have a court-appointed neutral chair were struck. The application judge’s order, as varied by the Court, set up the following process. The local Church was to hold a special or emergency meeting, in accordance with the 2014 Bylaws, for the purpose of voting on whether to amend the Bylaws to adopt the Canon Law Promulgation. This meeting was to have a court-appointed neutral chair. The parties were to be free to agree on a neutral chair subject to court-approval. They were to return to the application judge with a proposed name on consent for the court-appointed neutral chair, or, if there was no agreement, they were to return with proposed names from which the application judge was to appoint the neutral chair. The local Church was then to hold an AGM in accordance with whatever bylaws result from the meeting.

issues:

Should the order under appeal be stayed?

holding:

Motion dismissed.

reasoning:

No.

There is no doubt that the Supreme Court has delved into the relationship between the rules of voluntary associations having a religious purpose, on the one hand, and provincial statute and common law, on the other hand. The court handles these questions under the rubric of justiciability, albeit with a degree of diffidence, and adjudicates them in light of the commitment to freedom of religion in the Canadian Charter of Rights and Freedoms.

There are numerous religious bodies in Ontario and in Canada whose dealings can raise questions about the relationship between religious organizations and civil law. Despite the inevitably local character of any given dispute, the general issue has a measure of public importance.

The Court declined to stay the order sought to be appealed for four reasons. First, the factual situation was unclear and the evidence spotty. The application judge “found that there was an absence of evidence to support the appellants’ claim that there were two organizations (an unincorporated congregation and an associated corporation).” Second, the evidence of the applicable canon law “[was] thin”. The “rules for resolving perceived conflicts between canon law and civil law in such situations might be underdeveloped from the perspective of civil law, and expert evidence may be needed to understand the relevant canon law.” There was none. Third, the Diocese was not a party even though it is the canon law legislator. Fourth, if the process prescribed by the Court is followed, that is, the local Church is afforded an opportunity to bring its bylaws in line with the Canon Law Promulgation at a special or emergency meeting, and the AGM later occurs, then there is, on the one hand, a prospect that the immediate dispute will be resolved. On the other hand, if the “more fundamental conflict between the two groups” – that the moving parties seek to withdraw the local Church from the Diocese – lurches into view through the process leading to the AGM, then this case cannot resolve the issues between the parties in the absence of both the Diocese and the Synod, neither of which are parties. Another legal proceeding would be required.

The Court noted that, in short, the materials were underdeveloped, the events in the immediate dispute were still mid-stream, and the true nature of the fundamental conflict had not yet clearly revealed itself. In the Court’s view, these uncertainties made it unlikely that the Supreme Court would grant leave to appeal.


SHORT CIVIL DECISIONS

Preiano v. Cirillo, 2024 ONCA 312

[Roberts, Sossin and Dawe JJ.A]

Counsel:

GC, acting in person as Estate Trustee for the appellant, The Estate of GC, and as Litigation Guardian for the appellant, AC

H. McLean, for the respondents

Keywords: Civil Procedure, Costs, Pre-judgment Interest, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 127, 128(1), 131

Lahey v. Lahey, 2024 ONCA 307

[Lauwers J.A. (Motions Judge)]

Counsel:

FL and KL, acting in person

C. Rudavsky, for the responding parties

Keywords:Real Property, Possession, Civil Procedure, Orders, Enforcement, Writs of Possession, Appeals, Extension of Time, Stay Pending Appeal, Paulsson v. University of Illinois, 2010 ONCA 21, Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (ONCA), 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Overtveld v. Overtveld, 2021 ONCA 930, Matos v. Driesman, 2024 ONCA 271, Lamothe v. Ellis, 2022 ONCA 789

North v. Bayerische Motoren Werke AG, 2024 ONCA 305

[Gillese, Brown and Paciocco JJ.A.]

Counsel:

Dimson, S. Cuberovic and J. Smith for the moving parties (M54752)/responding parties (M54789)

J. Pliszka, Z. I. Maladwala and L. MacLeod, for the responding parties (M54752)/moving parties (M54789)

Keywords: Civil Procedure, Appeals, Hearing Together

Comfort Capital Inc. v. Yeretsian, 2024 ONCA 321

[Doherty, Brown and Trotter JJ.A]

Counsel:

P. Smiley, for the appellant Money Gate Corporation

E. Karp, for the respondent Curah Capital Corporation

J. Zibarras, for the respondents 239029 Ontario Inc. and World Corporation

Keywords: Contracts, Real Property, Mortgages, Costs


Grillone (Re), 2024 ONCA 322

[Benotto J.A. (Motions Judge)]

Counsel:

S. Grillone, acting in person

K. D. Kraft, M. Bacal and M. Freake, for the respondent Bluecore Capital Inc.

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Perfection

One Clarendon Inc. v. Finlay, 2024 ONCA 323

Lauwers J.A. (Motions Judge)

Counsel:

S. Sood, for the respondent/moving party

No one appearing for the appellants/responding parties

Keywords: Contracts, Real Property, Landlord and Tenant, Residential Tenancies, Civil Procedure, Orders, Enforcement, Writs of Possession, Appeals, Stay Pending Appeal, Lifting of Stay, Security for Costs, Rules of Civil Procedure, r 63.01, Bon v. Hutchens, 2021 ONSC 2076, Schwartz v. Fuss, 2021 ONSC 1159


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.