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Good evening,

Here are this week’s summaries of the civil decisions of the Court of Appeal for Ontario.

Zeppa v Woodbridge Heating & Air-Conditioning Ltd was yet another decision on discoverability. Justice Feldman dissented. The case reviews the discoverability analysis under section 5 of the Limitations Act, 2002 in detail, including the “appropriate means” test, as well as discussing the interplay between the discoverability analysis and fraudulent concealment.

In Welsh v. Ontario, the Court of Appeal held that although it was within Justice Perrell’s discretion to express concerns about the amount of class counsel’s fees, he was not permitted to modify the terms of a negotiated settlement unilaterally, without the consent of the parties and without seeking submissions from the parties on the issue. The motion judge’s decision to require more than a third of class counsel’s fees to be donated to charity was set aside, and the matter was remitted to another judge of the Superior Court. 

Other topics covered this week included commercial tenancies, residential tenancies, oppression in the condo law context, the expiry of a tolling agreement, restarting the limitation period clock, municipal law (authority to pass bylaws) and health law (OHIP).

Finally, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which will take place at the OBA, 20 Toronto Street, Toronto, on Monday, February 25. It is a three hour dinner program beginning at 5pm, which will also be available by live webcast for those who cannot attend in person.

Eliot Kolers, David Thompson and Katherine Di Tomaso will be our panelists on the first set of cases: Gillham v Lake of Bays and Mega International v Yung, and other decisions dealing with discoverability, appropriate means, and discoverability as it relates to claims for contribution and indemnity.

Tim Danson, Mark Wiffen and Peter Downard will discuss Platnick v Bent, Pointes Protection Association and the “Anti-SLAPP Sextet”.

Last, but certainly not least, Glenn Chu of the City of Toronto, Yashoda Ranganathan of MAG and Donald Eady will discuss the high-profile, real-time, high-stakes constitutional litigation that was the City of Toronto v Attorney-General (reduction of wards from 47 to 25).

The full program agenda can be found here. Please join us for what promises to be a very interesting evening.

Have a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

Rock Solid Holdings Inc. v. Shuniah (Municipality), 2019 ONCA 35

Keywords: Administrative Law, Municipal Law, By-Laws, Procedural and Natural Justice, Notice, Bad Faith, Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55

Drew v. Huskinson, 2019 ONCA 38

Keywords: Contracts, Real Property, Commercial Leases, Termination, Events of Default, Substantial Non-Performance, Place Concorde East Limited Partnership v. Shelter Corp. of Canada Ltd., 270 D.L.R. (4th) 181(Ont. C.A.)

1853491 Ontario Inc. v. Regional Waste North Inc, 2019 ONCA 37

Keywords: Contracts, Debtor-Creditor, Corporations, Shares, Beneficial Interest, Civil Procedure, Summary Judgment, Limitations Periods, Tolling Agreements, Butera v Chown, Cairns LLP, 2017 ONCA 783, Limitations Act 2002, S.O. 2002, c. 24

Misir v. Ontario (Health and Long-Term Care), 2019 ONCA 36

Keywords: Administrative Law, Health Law, Constitutional Law, Ontario Health Insurance Plan, Private Health Insurance, Civil Procedure, Orders, Collateral Attack, Health Insurance Act, RSO 1990, c H.6, s 14, Canadian Charter of Rights and Freedoms, s 7

Toronto Standard Condominium Corporation No. 2051 v. Georgian Clairlea Inc., 2019 ONCA 43

Keywords: Real Property, Condominiums, Oppression, Condominium Act, 1998, SO 1998, c 19, ss 74, 135(2), BCE Inc. v. 1976 Debentureholders, 2008 SCC 69

Welsh v. Ontario, 2019 ONCA 41

Keywords: Civil Procedure, Class Proceedings, Settlements, Approval, Class Counsel Fees, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.J. No. 1598 (Gen Div), Ford v. F. Hoffmann-La Roche Ltd. (2005), 74 O.R. (3d) 758 (SCJ), Smith Estate v. National Money Mart Co., 2011 ONCA 233

Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44

Keywords: Administrative Law, Standard of Review, Statutory Interpretation, Real Property, Residential Tenancies, Rent Control, Residential Tenancies Act, 2006, S.O. 2006, c.17, ss 3, 38, 113, 120, 116, 136, Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468, Price v. Turnbull’s Grove Inc., 2007 ONCA 408, Price v. Turnbull’s Grove Inc., 2007 ONCA 408, Nanne v. 3011650 Nova Scotia Limited (Michipicoten Forest Resources), 2015 ONCA 391

Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47

Keywords:

Keywords: Contracts, Torts, Negligence, Misrepresentation, Civil Procedure, Limitation Periods, Discoverability, Appropriate Means, Fraudulent Concealment, Summary Judgment, Limitations Act, 2002, SO 2002, c 24, Sched B, s 4, s 5(1)(a), s 5(1)(a)(iv), s 5(2), s 15, s 15(4)(c), Rules of Civil Procedure, Rule 25.06(8), Lawless v Anderson, 2011 ONCA 102, Kowal v Skyiak, 2012 ONCA 512, Lochner v Toronto (Police Services), 2015 ONCA 626, Beaton v Scotia iTrade and Scotia Capital, 2012 ONSC 7063, affirmed 2013 ONCA 554, McSween v Louis (2000), 132 OR (3d) 304 (CA), Presidential MSH Corporation v Marr Foster & Co LLP, 2017 ONCA 325, Guerin v The Queen, [1984] 2 SCR 335, Colin v Tan, 2016 ONSC 1187, Giroux Estate v Trillium Health Centre (2005), 74 OR (3d) 341 (CA), Roulston v McKenny, 2017 ONCA 9, Anderson v McWatt, 2015 ONSC 3784, Halloran v Ontario (Employment Standards Act Referee) (2002), 217 DLR (4th) 327 (CA), Dhaliwal v Lindsay, 2009 CanLII 60415, affirmed 2010 ONCA 493, leave to appeal to SCC refused, [2010] SCCA No 401, Kim v The Manufacturers Life Insurance Company, 2014 ONCA 658

Short Civil Decisions

Figueroa v. Patel, 2019 ONCA 42

Keywords: Civil Procedure, Dismissal for Delay

Barkley v. Tier 1 Capital Management Inc., 2019 ONCA 54

Keywords: Civil Procedure, Class Proceedings, Class Proceedings Act, 1992, s 5(1)(a)

Brauti Thorning Zibarras LLP v. Nguyen, 2019 ONCA 45

Keywords: Civil Procedure, Striking Pleadings, Rules of Civil Procedure, Rule 25.11(b)

Starkman Barristers v. Cardillo, 2019 ONCA 53

Keywords: Civil Procedure, Assessments, Evidence, Admissibility, Business Records

Criminal Decisions

R. v. Reid, 2019 ONCA 32

Keywords: Criminal Law, Possession of Marijuana, Failure to Comply With Firearm Prohibition, Canadian Charter of Rights and Freedoms, ss. 9 and 24(2), Trespass to Property Act, R.S.O. 1990, c. T.21, R. v. Czibulka, 2011 ONCA 82, R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.), Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), R. v. Amofa, 2011 ONCA 368, R. v. Peterkin, 2015 ONCA 8, R. v. Grant, 2009 SCC 32, R. v. Suberu, 2009 SCC 33, R. v. Mann, 2004 SCC 52, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, R. v. Chehil, 2013 SCC

R. v. Land, 2019 ONCA 39

Keywords: Criminal Law, Second Degree Murder, Defences, Provocation, Self-Defence, Criminal Code, R.S.C. 1985, c. C-46, ss. 232 (1) (2) and (3), 235(1), R. v. A.N., [1997] O.J. No. 3439 (Ct. J. (Prov. Div.)), R. v. Vaz, [2000] O.J. No. 5245 (Ct. J.), R. v. Walizadah, [2002] O.J. No. 2833 (S.C.), aff’d [2002] O.J. No. 5451 (C.A.), R. v. Suarez-Noa, 2017 ONCA 627, R. v. Gill, 2009 ONCA 124, R. v. Ariaratnam, 2018 ONCA 1027, R. v. Scorcia, 2011 ONCA 17, R. v. Mayuran, 2012 SCC 31, R. v. Cairney, 2013 SCC 55, R. v. Tran, 2010 SCC 58, R. v. Buzizi, 2013 SCC 27, R. v. Thibert, [1996] 1 S.C.R. 37, R. v. Grant, 2015 SCC 9, R. v. Cinous, 2002 SCC 29, R. v. Bulmer, [1987] 1 S.C.R. 782, R. v. Park, [1995] 2 S.C.R. 836, R. v. Hill, [1986] 1 S.C.R. 313

R. v. McWatters, 2019 ONCA 46

Keywords: Criminal Law, Criminal Negligence Causing Death, Failure to Remain at Scene of Accident, Possession of Property Obtained by Crime, Driving While Disqualified, Criminal Code, ss. 259(4), 743.6

R. v. Weir, 2019 ONCA 40

Keywords: Criminal Law

R. v. G.F., 2019 ONCA 50

Keywords: Criminal Law, Sexual Assault, Criminal Code, s. 273.1(2)(c), R. v. Lutoslawski, 2010 ONCA 217

R. v. W.R., 2019 ONCA 49

Keywords: Criminal Law, Sexual Assault, Jury Instructions

Ontario (Attorney General) v. 855 Darby Road, Welland (In Rem), 2019 ONCA 0031

Keywords: Criminal Law, Civil Forfeiture, Proceeds of Unlawful Activity, Evidence, Admissibility, Expert Evidence, Participant Experts, Hearsay, Civil Remedies Act, 2001, S.O. 2001, c. 28, ss. 2, 3(1) and 3(3), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(a), Rules of Civil Procedure, Rule 2.03, 39.01(5), 39.01(7) and 53.03, Westerhof v. Gee Estate, 2015 ONCA 2006, R. v. Abbey, [1982] 2 S.C.R. 24, R. v. Caesar, 2016 ONCA 599, R. v. Baksh (2005), 199 C.C.C. (3d) 201 (Ont. Sup. Ct.), aff’d 2008 ONCA 116, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 155, Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363, Ontario (Attorney General) v. 714 Railton Avenue, 2014 ONCA 397

Ontario Review Board

Phillip (Re), 2019 ONCA 48

Keywords: Ontario Review Board, Criminal Law, Assault, Breach of Probation


CIVIL DECISIONS

Rock Solid Holdings Inc. v. Shuniah (Municipality), 2019 ONCA 35

[Brown, Paciocco and Zarnett JJ.A.]

Counsel:

M. Holervich, for the appellants

R. Johansen, for the respondent

Keywords: Administrative Law, Municipal Law, By-Laws, Procedural and Natural Justice, Notice, Bad Faith, Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55

FACTS:

The appellants commenced an application to declare illegal, a series of by-laws under which the Municipality sought to control the weight of vehicles travelling on municipal roads. They submitted that the by-laws were enacted in bad faith because the appellants (or the previous owners of the gravel pit) were not given actual, personal notice of the Municipality’s intention to pass them and an opportunity to be heard. Second, they contended the by-laws were discriminatory and passed in bad faith because the effect was to prevent the appellants from carrying on their aggregate extraction businesses in a commercially viable manner. The application was dismissed.

ISSUES:

(1) Did the application judge misapprehend the appellants’ lack of notice argument?

(2) Did the application judge’s rejection of the argument that the by-laws were passed in bad faith rested on his erroneous finding that the by-laws did not preclude the commercial operation of the two gravel pits?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The application judge’s reasons did not disclose any misapprehension of the appellants’ notice argument. There was no suggestion that the Municipality failed to comply with its own notice requirements, but the appellants argued that that the Municipality’s failure to give them actual, personal notice of the intention to pass the by-laws was a “badge” or indicator of bad faith. The application judge properly understood this. Although in certain circumstances a municipality may have to give a form of notice of its intention to pass a by-law beyond that required by statute or its notice by-law, the cases relied upon by the appellants disclose that such circumstances generally involve attempts by municipalities to enact by-laws that seek to frustrate a specific landowner’s use of its property or regulate a particular industry. Those circumstances did not exist in this case, and the record supported that the by-laws focused more generally on the roads as opposed to targeting the appellants’ operations or aggregate extraction business. The Municipality did not have to give actual personal notice to the appellants.

(2) No. The record fully supported the application judge’s conclusion that the Municipality did not act in bad faith in passing the by-laws. The record disclosed that the Municipality acted with the degree of fairness, openness, impartiality and focus on the public interest required of a municipal government: Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55 at paras. 43-45. The application judge’s finding that the Municipality had not acted unreasonably, arbitrarily or unfairly in passing the challenged road weight by-laws was based on several factors, including evidence of the Municipality’s conduct, the Municipality enacting and amending legislation “in an effort to address all concerns”, and his conclusion that the by-laws did not preclude the commercial operation of the two gravel pits.

There was also no palpable and overriding error in the application judge’s conclusion that the by-laws did not preclude the viable operation of the two gravel pits. The application judge noted that one of the appellants had reached an agreement with the Municipality under the by-laws’ permitting process to use a road to operate one of the pits. Secondly, the other appellant purchased the pit property after the by-laws had been enacted and went into the pit purchase with “eyes wide open”. The record also detailed extensive discussions between the appellants and the Municipality to try to reach some resolution.

Drew v. Huskinson, 2019 ONCA 38

[Brown, Paciocco and Zarnett JJ.A.]

Counsel:

M. Ewart, for the appellant

W. Kelly, for the respondents

Keywords: Contracts, Real Property, Commercial Leases, Termination, Events of Default, Substantial Non-Performance, Place Concorde East Limited Partnership v. Shelter Corp. of Canada Ltd., 270 D.L.R. (4th) 181(Ont. C.A.)

FACTS:

The appellant owned farm property and signed a lease permitting the respondents to operate their farm businesses on part of her property for three crop years at a stipulated rent (the “Lease”). After the first crop year, the appellant informed the respondents that she was scrapping the Lease and called upon them to sign a new agreement that “meets the needs of both the above tenant farmers and landlord equally”. She stated that before concluding a new agreement that it was necessary to confirm in writing that the previous lease was null and void. The appellant did not specify in her letter any conduct of the respondents upon which she was relying to end the Lease. The respondents offered to engage in discussions with the appellant but she advised that she was not prepared to continue renting her farmland to them.

The trial judge did not accept the appellant’s argument that she was entitled to terminate the Lease because the respondents failed to provide her with chemical fertilizer application rates in the form she contended was required. The Lease contained a provision that stated: “Supply copy of application rates for fertilizer and chemical by 3rd party once available”. Instead, one of the respondents provided the appellant with a handwritten document providing this information. The trial judge found that this was not substantial non-performance which would justify terminating the Lease.

ISSUES:

(1) Did the trial judge err by finding that the appellant was not entitled to terminate the Lease?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The trial judge’s interpretation of the Lease as not giving the appellant a right of early termination in the event the respondents failed to provide information relating to fertilizer and chemicals in the third-party form she requested was a reasonable one and there was no palpable or overriding error. The appellant’s criticism of the trial judge’s finding was that he did not properly consider whether a failure by the respondents to provide chemical application rates from a third party amounted to a substantial failure of performance by them: Place Concorde East Limited Partnership v. Shelter Corp. of Canada Ltd., 270 D.L.R. (4th) 181 (Ont. C.A.), at para. 52. However, the trial judge’s interpretation of the Lease was reasonable in light of several factors. First, the Lease did not contain a provision defining the events of default in a way that would permit the appellant to terminate. Second, the trial judge considered the proportional effect of any breach on the total performance, and concluded that the benefit for which the appellant contracted under the Lease was the payment of rent, which the respondents duly paid. Finally, the appellant did not identify any inadequacy with the content of the handwritten disclosure in her termination letter.

1853491 Ontario Inc. v. Regional Waste North Inc., 2019 ONCA 37

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

Counsel:

M. Kestenberg, for the appellants

A. Marchioni and M. Marchioni, for the respondents

Keywords: Contracts, Debtor-Creditor, Corporations, Shares, Beneficial Interest, Civil Procedure, Summary Judgment, Limitations Periods, Tolling Agreements, Butera v Chown, Cairns LLP, 2017 ONCA 783, Limitations Act 2002, S.O. 2002, c. 24

FACTS:

The parties were involved in a waste disposal and waste transportation business from 2011 to early 2014, when the relationship broke down. By that point, the respondents alleged that the appellants owed them in excess of $350,000. When the respondents threatened to sue, the appellants responded by alleging a beneficial interest in the respondent companies. On January 14, 2014, the respondents wrote to the appellants, denying any such beneficial interest in the companies. On March 20, 2014, the respondents issued their claim for damages on various bases and for a declaration that the appellants had no beneficial interest in the respondent companies.

Those appellants defended, including by alleging they had such an interest. They did not, at that time, include any counterclaim. On March 3, 2016, the appellants issued a counterclaim, claiming for payment of landscaping services allegedly provided and for a declaration that the plaintiffs by counterclaim held a beneficial interest in various respondent companies. The defendants to the counterclaim (the respondents in this appeal) moved for summary judgment on the counterclaim on the basis that the claims advanced were time barred.

The motion judge found that the counterclaim was separate from the respondents’ claim in the action and that the respondents to the counterclaim were seeking complete summary judgment on the counterclaim. Moreover, even if the motion could be defined as a partial summary judgment motion, there was a discrete issue: whether the counterclaim was time-barred. The motion judge concluded that it was an appropriate case for partial summary judgment. The motion judge then held that the landscaping services dated from 2012 and 2013 and, as a result, the limitation period for these claims had expired before the counterclaim was issued.

As for the beneficial interest claims, the motion judge found that the limitation period began to run on January 14, 2014 following the respondents’ unequivocal denial. The motion judge, however, went on to find that the parties had reached an informal agreement to refer the dispute to a chartered accountant. This agreement, in the motion judge’s view, suspended the running of the limitation period pursuant to s. 11 of the Limitations Act 2002. The motion judge then determined that the agreement to attempt resolution was terminated by February 3, 2014 at the latest, when the respondent made it clear that he withdrew from the agreement. As a result, the tolling of the limitation period ended on that date. Because the counterclaim was issued on March 3, 2016 – beyond the two-year limitation period as extended by the period of tolling – the motion judge dismissed the counterclaim on the basis that it was statute-barred.

ISSUES:

(1) Did the motion judge err in finding that the counterclaim was statute-barred by virtue of the tolling period ending on February 3, 2014 at the latest?

(2) Did the motion judge err in granting summary judgment with respect to the counterclaim for a beneficial interest in the respondent companies?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The Court found that the motion judge was entitled to deference in his interpretation of email correspondence between the parties, which indicated that the parties had broken off their alternative dispute resolution by February 3, 2014. Further, the Court determined that it was irrelevant that the appellants referred the Court to several e-mails which suggested they were not prepared to accept that the resolution attempts were at an end. Section 11(1) of the Limitations Act, 2002 provides that a tolling period terminates when a party terminates or withdraws from an agreement to have an independent third party resolve the claim, which happened here on February 3, 2014. Accordingly, the counterclaim was statute-barred in the circumstances.

Further, the Court rejected the appellants’ argument that the motion judge ought to have left the issue of the tolling period’s conclusion to be determined at trial. While the appellants stressed that the motion judge must have rejected the affidavit evidence of one of the appellants in order to arrive at his conclusion, the Court instead found that the motion judge made no such finding and instead based his conclusion on the email correspondence.

(2) No. Given that the motion judge’s finding on the limitation issue completely resolved the counterclaim, the Court also rejected the appellants’ submission that this was not an appropriate case for summary judgment, partial or otherwise.

Misir v. Ontario (Health and Long-Term Care), 2019 ONCA 36

[Brown, Paciocco and Zarnett JJ.A.]

Counsel:

R.M., for the appellants

C. Harris and A. Bolieiro, for the respondent

Keywords: Administrative Law, Health Law, Constitutional Law, Ontario Health Insurance Plan, Private Health Insurance, Civil Procedure, Orders, Collateral Attack, Health Insurance Act, RSO 1990, c H.6, s 14, Canadian Charter of Rights and Freedoms, s 7

FACTS:

In 2008, the Ministry of Health and Long-Term Care (the “Ministry”) advised the appellants that their Ontario Health Insurance Plan (“OHIP”) coverage was under review.  The Ministry requested documents to verify, among other things, Ontario residency, which was a requirement for OHIP coverage even if the individual was a Canadian citizen.  The appellants did not respond and their OHIP coverage was cancelled.

In 2013, the appellants attempted to reinstate their OHIP coverage.  However, the appellants failed to satisfy the Ministry’s OHIP Eligibility Review Committee (the “Committee”) that they met the residency requirements.  In 2014, the appellants appealed to the Health Services Appeal and Review Board (the “Board”) from the Committee’s decision.  In 2016, the Board concluded that the appellants’ failed to satisfy the residency requirements and the appeal was dismissed.

Instead of appealing the Board’s decision, the appellants launched an application in the Superior Court.  The appellants sought a declaration that s. 14 of the Health Insurance Act (the “Act”) was “constitutionally inapplicable in the instant case” because it breached the appellants’ rights under s. 7 of the Canadian Charter of Rights and Freedoms.  Section 14 of the Act prevents persons who are Ontario residents eligible for OHIP coverage from buying private health insurance for services OHIP insures.

The appellants alleged that they had unsuccessfully attempted to buy private health insurance and that insurers refused to sell it to them because they were Canadian citizens.  The application judge dismissed the application, holding that the Board decision had determined that the appellants were not residents of Ontario in the sense necessary to be entitled to OHIP coverage and that such decision could not be collaterally attacked.  In addition, the application judge held that the Act did not prevent the appellants from buying private health insurance.

ISSUE:

(1) Did the application judge err in dismissing the application?

HOLDING:

Appeal dismissed.

REASONING:

(1) No, the application judge did not err in dismissing the application.

To be entitled to the type of relief claimed by the appellants, they would have to show that s. 14 of the Act, and not an alleged misinterpretation of it by persons not parties to this proceeding, affected them.  The Court of Appeal agreed with the application judge that this had not been shown.

If the appellants were being denied private health insurance notwithstanding their ineligibility for OHIP coverage as determined by the Board, their complaint is not against the Ministry.  Further, their complaint did not arise from or implicate s. 14 of the Act and the circumstances did not show that s. 14 of the Act deprived the appellants of anything contrary to the principles of fundamental justice.

Toronto Standard Condominium Corporation No. 2051 v. Georgian Clairlea Inc., 2019 ONCA 43

[Sharpe, Juriansz and Roberts JJ.A.]

Counsel:

A. Bernstein, J. Opolsky and S. Cumbo-Steinmetz, for the appellants/cross-respondents

M.L. Mackey and S. Dawe, for the respondent/cross-appellant

Keywords: Real Property, Condominiums, Oppression, Condominium Act, 1998, SO 1998, c 19, ss 74, 135(2), BCE Inc. v. 1976 Debentureholders, 2008 SCC 69

FACTS:

The respondent gave two vendor take-back mortgages to the developer of the respondent’s condominium, which the developer ultimately transferred to the appellant. The first mortgage related to the respondent’s HVAC equipment. Originally, the developer intended to have a third party supply the HVAC equipment and lease it to purchasers of the condominium units. The Agreements of Purchase and Sale entered into with 47 persons, who purchased units prior to the condominium’s registration, reflected this intention. Subsequently, the developer decided to purchase the HVAC equipment itself and sell it to the respondent in the form of service units. The developer-controlled board of the respondent agreed to pay for the units by giving the developer the mortgage in the amount of $2,228,100 with interest at the rate of 10% per annum.

The other mortgage related to parking and storage units that remained unsold at the time of the condominium’s registration. The developer conveyed these unsold units to the respondent. To pay for the units, the developer-controlled board gave the developer a vendor take-back mortgage in the amount of $1,026,000 with interest at the rate of 10% per annum.

The respondent brought an action seeking relief under s. 135(2) of the Condominium Act, which gives a court jurisdiction to grant an oppression remedy. In particular, s. 135(2) provides that “if the court determines that the conduct of an owner, a corporation, a declarant or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant, it may make an order to rectify the matter.”

The respondent moved for summary judgment. In granting summary judgment, the motion judge found the developer’s revised disclosure documents infringed s. 74 of the Condominium Act and that both transactions were oppressive. She reduced the principal amount of the HVAC mortgage to $652,050 and the principal amount of the parking unit mortgage to $73,000, with both accruing interest in accordance with their terms. The appellant appealed, while the respondent cross-appealed with respect to the interest rate on the mortgages.

ISSUES:

(1) Did the motion judge fail to apply the statutory standard of materiality in assessing the developer’s revised disclosure documents?

(2) Did the motion judge err in finding oppression, and in the remedies she granted?

(3) Did the motion judge err in ordering that the interest rate on the mortgages as reduced by her would continue to be payable in accordance with the terms of the mortgages?

HOLDING:

Appeal and cross-appeal dismissed.

REASONING:

(1) No. The Court observed that the appellant’s argument failed to keep distinct “materiality” and the clarity of the information about material changes that must be provided under s. 74 of the Condominium Act. Materiality has to do with the significance of changes from what the developer has provided in earlier disclosure. The motion judge took note of the relevant provision and set out the statutory definition of “material change” under s. 74(2). She found that the creation of the service units, the service unit mortgage and the parking unit mortgage were material changes, and in so doing, committed no error.

The motion judge was correct to conclude that the revised disclosure failed to clearly identify the material changes and summarize their particulars. The Court was therefore satisfied that the motion judge’s description of the various documents and her analysis thereof were accurate. Accordingly, the revised disclosure regarding both mortgages did not meet the statutory requirements.

(2) No. The Court provided three reasons for rejecting the appellant’s position that the respondent suffered no breach of its reasonable expectations with respect to the HVAC mortgage. First, the value of the pipes and wires was significant, as the HVAC appliances cost the developer only $575,000 but the developer took back a $2,122,000 mortgage. Second, whether the unit purchasers or the condominium owned the pipes and wires was material, as it could affect the determination of responsibility for repair and liability for damage. Third, and most importantly, the motion judge found the unit purchasers did not reasonably expect to be paying a mortgage in respect of items they reasonably thought they had already bought when they purchased their residential units.

The court further agreed with the motion judge that the respondent’s reasonable expectations were violated by the appellant’s conduct, thus requiring a remedy. The motion judge did not err by reducing the principal owing on the mortgage to reflect the cost of the supply and installation of the HVAC appliances plus some margin of profit.

In relation to the parking unit mortgage, the Court held that the motion judge was entitled to find the developer unfairly disregarded the respondent’s interests. There was no market for the unsold units, which were almost worthless — information the developer did not share with the respondent. Using its control of the board, the developer conveyed the unsold units to the respondent at inflated prices and concealed the cost of servicing the mortgage by including a term that specified no mortgage payments would be due in the first year. This enabled the exclusion of the annual cost from the revised budget statement, and the inclusion of a note in the budget statement that there were “no services the declarant provides, or expenses the declarant pays, that are reasonably expected to become a common expense at a subsequent time.”

The motion judge was therefore entitled to find the developer unfairly disregarded the respondent’s interests. Her remedy was based on the respondent’s reasonable expectations that the unsold units would be conveyed at fair market value, and thus was an appropriate remedy.

(3) No. Given the motion judge’s finding that the respondent would have reasonably expected the mortgages to accrue compound interest, she could not adjust the interest rate as part of the oppression remedy she granted. The Court similarly rejected the respondent’s position that it should not pay compound interest due to an oral agreement between it and the developer in which the mortgage payments would be set off against the condominium fees owed by the developer to the respondent. The Court agreed with the motion judge that the issue of set-off was not properly before her, and as such was not properly before the Court on appeal.

Welsh v. Ontario, 2019 ONCA 41

[Sharpe, Juriansz, and Roberts JJ.A.]

Counsel:

M. Eizenga, for the appellant

S. A. Wayland and J. Sydor, for the respondent

S. DiGiuseppe, for the Intervenor

Keywords: Civil Procedure, Class Proceedings, Settlements, Approval, Class Counsel Fees, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.J. No. 1598 (Gen Div), Ford v. F. Hoffmann-La Roche Ltd. (2005), 74 O.R. (3d) 758 (SCJ), Smith Estate v. National Money Mart Co., 2011 ONCA 233

FACTS:

In August 2015, a class action was commenced regarding alleged negligence in the respondent’s management and operation of three provincial schools for the deaf, and whether it breached its fiduciary duties to the class members. The class consisted of about 4,500 former students. The parties entered a settlement agreement, which was approved by the motion judge on May 24, 2018. The settlement agreement provided that the respondent would establish a $15 million settlement fund, with funds first to be applied towards payment of class counsel’s fees and disbursements, which could be up to 25% of the funds and in an amount to be approved by the court. The settlement agreement expressly provided that if any amounts remained after payment of all fees, claims and costs, and the claims period had come to an end, they were to revert to the respondent.

At the motion to approve the settlement, class counsel requested that the motion judge approve fees of $3.75 million, which represented 25% of the $15 million settlement fund. The motion judge found that this counsel fee was not fair and reasonable to all class members because “the results achieved for the whole of the Class w[ere] disappointing”, in that only about 10% of the class would benefit from the settlement. He approved the fees on the condition that class counsel would donate $1.5 million of its fees to a charity for the deaf to be approved by the motion judge, and determined that the $2.25 million balance would be subject to a proportionate reduction depending on the reversion to the respondent of the settlement funds not taken up by the class claimants.

ISSUE:

(1) Did the motion judge err in making his approval of the class counsel’s fee conditional?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes. The motion judge erred in making his approval of class counsel’s fees subject to the charitable donation, particularly in the absence of submissions from the parties.

The Court stated that by requiring class counsel to donate part of its fees to a designated charity, without the parties’ input or consent, the motion judge inserted into the settlement a material condition not agreed to by the parties. This altered the settlement provision that surplus settlement funds would revert to the respondent.

The Court found that given the motion judge’s concerns, the appropriate course of action would have been for him to allow the parties an opportunity to make submissions, and if they desired to do so to address those concerns and obtain approval of class counsel’s fees. Although it was within the motion judge’s discretion to express concerns about the amount of class counsel’s fees, he was not permitted to modify unilaterally the terms of a negotiated settlement without the consent of the parties.

The Court found that the entire analysis necessary to determine and approve class counsel’s fees had to be undertaken afresh without regards to the motion judge’s findings. A myriad of factors had to be analyzed, including the factors referenced by the motion judge and reiterated with approval in Smith Estate v. National Money Mart Co.:

(a) the factual and legal complexities of the matters dealt with;

(b) the risk undertaken, including the risk that the matter might not be certified;

(c) the degree of responsibility assumed by class counsel;

(d) the monetary value of the matters in issue;

(e) the importance of the matter to the class;

(f) the degree of skill and competence demonstrated by class counsel;

(g) the results achieved;

(h) the ability of the class to pay;

(i) the expectations of the class as to the amount of the fees;

(j) the opportunity cost to class counsel in the expenditure of time in pursuit of the litigation and settlement.

The Court declined to consider those factors under s. 134 of the Courts of Justice Act, and stated that this decision would be best made at first instance by one of the experienced and expert class action judges who regularly undertake this analysis. Accordingly, the matter was remitted to another judge of the Superior Court.

Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44

[Feldman, Pepall and Pardu JJ.A.]

Counsel:

P. A. Johnson, for the appellant

K. Hale, for the respondent, F.A. Honsberger

E. Fellman and B. Blumenthal, for the Landlord and Tenant Board

Keywords: Administrative Law, Standard of Review, Statutory Interpretation, Real Property, Residential Tenancies, Rent Control, Residential Tenancies Act, 2006, S.O. 2006, c.17, ss 3, 38, 113, 120, 116, 136, Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468, Price v. Turnbull’s Grove Inc., 2007 ONCA 408, Price v. Turnbull’s Grove Inc., 2007 ONCA 408, Nanne v. 3011650 Nova Scotia Limited (Michipicoten Forest Resources), 2015 ONCA 391

FACTS:

The respondents were tenants of the appellants. Each tenancy agreement provided for an initial fixed term of one year with 19 automatic one year renewals unless either party, at least 30 days prior to the year-end, gave notice terminating the agreement at the end of that year. The rent was fixed but could be increased annually by a percentage increase not greater than the annual increase in the Consumer Price Index. Each agreement contained a clause that provided that at the end of the 20th year, the agreement would terminate without any right of further renewal.

When the agreements expired, believing that the tenancy agreements did not fall within the scope of the Residential Tenancies Act (the “RTA”), the respondents signed new tenancy agreements. The rents were increased significantly for each of the respondents. The respondents were not served with any notices of rental increases pursuant to s. 116(1) of the RTA. The respondents paid the new increased rent to the appellant for six to eight years.

In 2010, the Court of Appeal in Matthews v. Algoma Timberlakes Corp. determined that leases for cottage sites adjacent to those in issue on this appeal were governed by the RTA and were therefore protected by its provisions. In light of that decision, the respondents applied to the Landlord and Tenant Board (the “LTB”) for a rent abatement on the basis that the rental increases were illegal. Because of the one-year limitation period under s.136 of the RTA, they only sought repayment for the one year preceding the filing of their applications.

Applying the Matthews decision, the LTB noted that the rental property was subject to the RTA. The presiding member reproduced s. 38 of the RTA, and observed that the tenancy agreement had not been renewed with the same terms and conditions, nor had the tenancy been terminated. She went on to state: “subsections 116(1) and (4) of the [RTA] prevent a landlord from increasing the rent for a rental unit without first giving at least 90 days’ written notice of the increase…if notice is not given any increase is void based on the Court of Appeal decision Price v. Turnbull’s Grove Inc.” She held that the rent increases were illegal, as no 90-day notice of rent increase had been given. She ordered repayment of the excess rent in the one year prior to the application.

The appellant appealed to the Divisional Court, but the Divisional Court concluded that the decisions of the LTB were reasonable and that the LTB decisions were therefore entitled to deference. The appellant was granted to leave to appeal

ISSUES:

(1) Did the motion judge err in finding the respondents were entitled to repayment of rent?

HOLDING:

Appeal dismissed.

REASONING:

The Court began by addressing the standard of review. Noting that it must “step into the shoes” of the Divisional Court and ask whether the Divisional Court itself identified the appropriate standard of review, the Court here observed that the Divisional Court correctly identified the standard as reasonableness. The Court then noted that the RTA has a “tenant protection focus”, and as such, any interpretation must receive “such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”. The Court then turned to the appellant’s arguments.

(1) No. The Court observed that the crux of the appellant’s argument was that when the respondents entered into new one-year tenancy agreements, the term of the tenancies was severed, and thus the rental increase and notice provisions of the RTA were inapplicable and the new rent was lawful. For several reasons, however, this interpretation of the RTA was incorrect.

First, the Court recognized that s. 113 of the RTA expressly permits the establishment of a new rental rate with a new tenant. Recognition of a similar carve-out for an existing relationship involving the same tenant, the same landlord, and the same premises would undermine the RTA’s purpose. Put differently, the appellant’s proposed statutory interpretation was inconsistent with the scheme of the RTA’s rent control provisions considered as a whole. The structure and purpose of the RTA would be undercut if at the commencement of each year, a landlord could increase the rent simply by entering into a new tenancy agreement.

Second, the Court noted that the words “during the term of their tenancy” found in s. 120(1) must be read in context. The language in this section addresses the amount that a landlord may charge; it does not detract from or limit the RTA’s other provisions, including the notice requirement. Any increase in rent requires notice under s. 116 and could not exceed the annual guideline amount.

Third, the Court observed that the appellant did not advance the s. 120(1) argument before either the LTB or the Divisional Court; as entirely new issues should typically not be entertained on appeal, the appellant was in error in this respect.

Fourth, the Court rejected the appellant’s argument that the LTB inappropriately relied on s. 38(1) of the RTA. Although the Divisional Court recognized that s. 38(1) was inapplicable, it nevertheless agreed that the landlord was required to give 90 days’ notice of an increase pursuant to Part VII of the RTA. The Court agreed with the Divisional Court’s analysis here.

Fifth, the Court dismissed the appellant’s argument that to find in favour of the respondents would infringe upon the parties’ freedom of contract. As was clear from the RTA and particularly s. 3 thereof, the parties’ freedom to contract was expressly made subject to the RTA’s application.

Lastly, the Divisional Court’s reasons were sufficient. The reasons were responsive to the live issues in the case and afforded meaningful appellate review.

Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47

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

Counsel:

E. Bisceglia and F. Souza, for the appellants

B.G. Sunohara, for the respondent

Keywords: Contracts, Torts, Negligence, Misrepresentation, Civil Procedure, Limitation Periods, Discoverability, Appropriate Means, Fraudulent Concealment, Summary Judgment, Limitations Act, 2002, SO 2002, c 24, Sched B, s 4, s 5(1)(a), s 5(1)(a)(iv), s 5(2), s 15, s 15(4)(c), Rules of Civil Procedure, Rule 25.06(8), Lawless v Anderson, 2011 ONCA 102, Kowal v Skyiak, 2012 ONCA 512, Lochner v Toronto (Police Services), 2015 ONCA 626, Beaton v Scotia iTrade and Scotia Capital, 2012 ONSC 7063, affirmed 2013 ONCA 554, McSween v Louis (2000), 132 OR (3d) 304 (CA), Presidential MSH Corporation v Marr Foster & Co LLP, 2017 ONCA 325, Guerin v The Queen, [1984] 2 SCR 335, Colin v Tan, 2016 ONSC 1187, Giroux Estate v Trillium Health Centre (2005), 74 OR (3d) 341 (CA), Roulston v McKenny, 2017 ONCA 9, Anderson v McWatt, 2015 ONSC 3784, Halloran v Ontario (Employment Standards Act Referee) (2002), 217 DLR (4th) 327 (CA), Dhaliwal v Lindsay, 2009 CanLII 60415, affirmed 2010 ONCA 493, leave to appeal to SCC refused, [2010] SCCA No 401, Kim v The Manufacturers Life Insurance Company, 2014 ONCA 658

FACTS:

In 2006, the respondent installed an HVAC system in the appellant’s home.  The system experienced problems immediately after its installation.  The appellants reported the problems to the respondent’s representative (the “Sales Manager”).  The Sales Manager denied that there were any problems with the system and contended that to the extent that there were problems, these were the result of the appellant’s failure to maintain the system.  The Sales Manager advised that if the appellants entered into a maintenance plan, any problems would be corrected.

In June 2007, the appellants and respondent entered into a two-year maintenance contract.  Throughout the maintenance program, the problems persisted and the system did not work properly.  The appellants did not renew the maintenance contract when it expired in May 2009.  The appellants advised the respondent that they no longer believed that the problems were maintenance-related and that the respondent had been lying to them since the installation.

In the fall of 2009, the appellants consulted other HVAC service providers.  The appellants ultimately contacted the system’s manufacturer (the “Manufacturer”).  In November 2010, the Manufacturer advised that it had informed the “installer” that the “cascading piping arrangement” “was not a permitted application” by the Manufacturer and that “the contractor did not follow the manufacture directions.”

In November 2010, the appellants obtained two reports from an environmental assessment company (“Advisor 1”) which assessed mould growth, made recommendations to remediate the mould, identified other deficiencies and proposed alterations.  On December 17, 2010, the appellants obtained a report from another HVAC service provider (“Advisor 2”) that identified deficiencies in the installation and recommended alterations and replacements.  On February 16, 2012, Advisor 1 provided a report in which it expressed the opinion that the mould growth in the residence was due to chronic high humidity caused by the improper installation of the HVAC system.  The appellants commenced this action on February 21, 2012.

The respondent initiated its summary judgment motion on December 12, 2016, and the motion judge granted it and dismissed the action on the basis that the appellants commenced their action outside of the limitation period.  The motion judge held that: the appellants discovered their claim well before February 2010; the appellants experienced significant problems with the system immediately after it was installed in late 2006 or early 2007 and it was clear these problems were caused by the respondent’s acts or omissions; time did not run during the maintenance contract because during that period the appellants were relying on the respondent’s superior knowledge and expertise and on the fact that the respondent engaged in good faith efforts to remedy the problems; by the fall of 2009 the appellants consulted other service providers and were no longer relying on the respondent; and even if the respondent concealed the fact that the Manufacturer told them that the system was improperly installed, this would not postpone the running of the limitation period because the appellants had discovered their claim and it was not necessary that they know why or how the claim arose.

ISSUES:

(1) Did the motion judge err in his findings concerning the appellants’ knowledge about an injury, loss or damage?

(2) Did the motion judge err in his “appropriate means” analysis?

(3) Did the motion judge err in his treatment of the appellants’ misrepresentation claim?

(4) Did the motion judge err in his treatment of the principle of fraudulent concealment?

HOLDING:

Appeal dismissed (Feldman J.A. dissenting).

REASONING:

(1) No, the motion judge did not err in his findings concerning the appellants’ knowledge about an injury, loss or damage.  The motion judge did not err in reasoning that the question of “how it happened” would be revealed through the legal proceeding and need not be known in advance for limitations purposes.  The motion judge did not make factual errors in concluding that the appellants knew they had a claim against the respondent well before February 2010.

The discoverability analysis under s 5(1) of the Limitations Act, 2002 (the “Act”) involves, in part, determining when a claimant first knew that an injury, loss or damage had occurred and was caused by an act or omission.  Discoverability means knowledge of the facts that may give rise to the claim.  The proper question is whether the prospective plaintiff knows enough facts on which to base a legal allegation against a defendant.

In this case, the motion judge clearly identified the evidence upon which he relied to make the finding that the appellants knew they had a claim against the respondent well before February 2010.  The system had not worked properly since its installation in late 2006 or early 2007 and by the time the appellants consulted other service providers in the fall of 2009, the problems with the system had been known by the appellants for almost three years.  The fact that the appellants had knowledge of a claim was confirmed by the contents of the Advisor 1 and Advisor 2 reports received in late 2010.

(2) No, the motion judge did not err in his “appropriate means” analysis.  The motion judge’s findings were firmly anchored in the evidence, particularly in the examinations for discovery.

There are two circumstances in which the issue of appropriate means under s (5)(1)(a)(iv) of the Act most often delays the date on which a claim is discovered.  First, resorting to legal action might be inappropriate in cases where the plaintiff relied on the superior knowledge and expertise of the defendant, especially where the defendant undertook efforts to ameliorate a loss.  Second, a legal action might not be appropriate if an alternative dispute resolution process presents an alternative remedy and that process has yet to be completed.

In this case, the motion judge held that the appellants did not discover their claim against the respondent during the two-year maintenance contract.  However, the motion judge found that by the fall of 2009, the appellants were no longer relying on the respondent to remedy the problems.  In mid to late 2009, the appellants had several different service providers attempt to correct the problems to no avail.  These service providers indicated that the Manufacturers system was not installed correctly.  On the basis of this evidence, it was open to the motion judge to conclude that by the fall of 2009, the appellants were no longer relying on the respondent.

(3) No, the motion judge did not err in his treatment of the appellants’ misrepresentation claim.  The motion judge considered the fact that in 2007, the respondent falsely represented that the problems were only maintenance-related.  There was no error in the motion judge’s finding that by the fall of 2009, the appellants knew that a proceeding would be an appropriate means to remedy their injury, loss or damage.

The dissent concluded that the motion judge erred by failing to address the misrepresentation claim separately.  However, the appellants’ pleading of misrepresentation was a bald one.  It was not framed in the manner the dissent presented.  The appellants did not provide full particulars of the date or content of any alleged misrepresentation, as required by Rule 25.06(8) of the Rules of Civil Procedure.  Further, throughout examinations for discovery, the appellants placed their last meeting with the Sales Manager in 2009.

(4) No, the motion judge did not err in his treatment of the principle of fraudulent concealment.  The motion judge considered the concealment argument and rejected it because the appellants had discovered their claim, and it was not necessary that they know why or how the claim arose.

Fraudulent concealment is an equitable principle and not a rule of construction of limitation statutes.  This principle can take a case outside of the effect of a limitation provision and suspend the running of the limitation clock until such time as the injured party can reasonably discover the cause of action.

There is no independent work for the principle of fraudulent concealment to perform in assessing whether a plaintiff has commenced a proceeding within the basic two-year limitation period, because the elements of discoverability in s 5(1)(a) and (b) of the Act address the situation where a defendant has concealed its wrong-doing.

If a defendant conceals that an injury has occurred, or was caused by or contributed to by its act or omission, or that a proceeding would be an appropriate means to seek to remedy it, then it will be difficult for the defendant to argue that the plaintiff had actual knowledge of those facts until the concealed facts are revealed.  Whether the plaintiff ought to have known of those matters, given their concealment, is a matter for inquiry under s 5(1)(b).

If the defendant’s concealment of facts results in a lack of actual or objective knowledge by the plaintiff of the elements set out in s 5(1)(a), then the plaintiff does not discover her claim until the date the concealed facts are revealed to or known by the plaintiff, at which point time begins to run.  The analysis required by s 5(1) captures the effect of a defendant’s concealment of facts materials to the discovery of the claim.

In this case, since the appellants had discovered their claim, the concealment would not postpone the commencement of the limitation period.

Dissent:

Feldman J.A. held that the motion judge erred in fact and in law by finding that the appellants did not need to know that the respondent had done anything to cause them damage in order to know that they had a claim in negligence, breach of contract and misrepresentation, and by finding that the fact that the respondent fraudulently concealed its wrongdoing from the appellants did not toll the running of the basic two-year limitation period.

Time only began to run on the negligence and breach of contract claims in November 2010, when the Manufacturer informed the appellants that the reason the system never worked was because the respondent had installed it incorrectly.  That information was fraudulently concealed from the appellants by the respondent.

The motion judge erred in fact on the record by finding that the appellants were no longer relying on the respondent by the fall of 2009, and by failing to give effect to the fact that the system was still working up to the fall of 2010.  The motion judge erred in law by finding that the appellants did not need to know the reason why the system was not working to discover their claim and that the respondent’s concealment of the improper installation did not postpone the running of the two-year limitation period.

Knowledge of the improper installation was an essential element of discoverability of the appellants’ claims for negligence and breach of contract.  Until the respondent’s improper installation was revealed, the appellants’ knew that the system had problems, but did not know that the problems were caused by the act of improper installation by the respondent.  They did not know of any act or omission by the respondent or the day it occurred.

The respondent knew that maintenance would not fix the system and concealed the fact that its faulty installation was the central cause of the appellants’ problems.  Until the Manufacturer revealed that fact to the appellants, the respondent’s fraudulent concealment prevented the appellants from knowing whom to hold responsible for the damage to their home and why.

The motion judge did not consider the respondent’s fraudulent concealment to be relevant to discoverability.  This was an error in law.  The effect of that approach was to allow the respondent to profit from its fraudulent concealment and obtain the benefit of the limitation period by misleading the appellants.  This approach does not strike the right balance between providing plaintiffs with sufficient time to commence claims and providing defendants with the peace of knowing they cannot be sued after a fixed period of time has passed.  Allowing a defendant to gain that peace by concealing the information the plaintiff must know to bring the action is anathema to the purpose of limitations statutes.

The motion judge also erred in fact and in law by finding that the appellants reasonably could have discovered that the respondent had improperly installed the system prior to February 2010, and by relying on that finding.  He also erred in law by failing to address the claim for misrepresentation and by failing to find that the misrepresentation claim was brought within the two-year limitation period.


SHORT CIVIL DECISIONS

Figueroa v. Patel, 2019 ONCA 42

[Sharpe, Juriansz and Roberts JJ.A.]

Counsel:

W. G. Scott, for the appellant

A.C. Gluek, for Wawanesa Insurance Company

J.K. Downing and H. Nuric, for Fenchurch General Insurance

Keywords: Civil Procedure, Dismissal for Delay

Barkley v. Tier 1 Capital Management Inc., 2019 ONCA 54

[Strathy C.J.O., Pepall and Fairburn JJ.A.]

Counsel:

M. Wine, for the appellants

R. Morris and D. Szirmak, for the respondent Olympia Trust Company

M. Stieber and C. Afonso, for the respondents KMJ & Associates Ltd. and Robert W. Gowdy

Keywords:  Civil Procedure, Class Proceedings, Class Proceedings Act, 1992, s 5(1)(a)

Brauti Thorning Zibarras LLP v. Nguyen, 2019 ONCA 45

[Strathy C.J.O., Pepall and Fairburn JJ.A.]

Counsel:

T. N., acting in person

M. Gottlieb and J. Renihan, for the respondent

Keywords:  Civil Procedure, Striking Pleadings, Rules of Civil Procedure, Rule 25.11(b)

Starkman Barristers v. Cardillo, 2019 ONCA 53

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

Counsel:

S. Turton, for the appellants

P. Starkman, for the respondent

Keywords:  Civil Procedure, Assessments, Evidence, Admissibility, Business Records


CRIMINAL DECISIONS

R. v. Reid, 2019 ONCA 32

[Watt, Huscroft and Fairburn JJ.A.]

Counsel:

M. Dineen, for the appellant

A. Cappell, for the respondent

Keywords: Criminal Law, Possession of Marijuana, Failure to Comply With Firearm Prohibition, Canadian Charter of Rights and Freedoms, ss. 9 and 24(2), Trespass to Property Act, R.S.O. 1990, c. T.21, R. v. Czibulka, 2011 ONCA 82, R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.), Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), R. v. Amofa, 2011 ONCA 368, R. v. Peterkin, 2015 ONCA 8, R. v. Grant, 2009 SCC 32, R. v. Suberu, 2009 SCC 33, R. v. Mann, 2004 SCC 52, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, R. v. Chehil, 2013 SCC

R. v. Land, 2019 ONCA 39

[Pepall, Paciocco and Harvison Young JJ.A.]

Counsel:

L. Beechener and A. Ostroff, for the appellant

R. Shallow, for the respondent

Keywords: Criminal Law, Second Degree Murder, Defences, Provocation, Self-Defence, Criminal Code, R.S.C. 1985, c. C-46, ss. 232 (1) (2) and (3), 235(1), R. v. A.N., [1997] O.J. No. 3439 (Ct. J. (Prov. Div.)), R. v. Vaz, [2000] O.J. No. 5245 (Ct. J.), R. v. Walizadah, [2002] O.J. No. 2833 (S.C.), aff’d [2002] O.J. No. 5451 (C.A.), R. v. Suarez-Noa, 2017 ONCA 627, R. v. Gill, 2009 ONCA 124, R. v. Ariaratnam, 2018 ONCA 1027, R. v. Scorcia, 2011 ONCA 17, R. v. Mayuran, 2012 SCC 31, R. v. Cairney, 2013 SCC 55, R. v. Tran, 2010 SCC 58, R. v. Buzizi, 2013 SCC 27, R. v. Thibert, [1996] 1 S.C.R. 37, R. v. Grant, 2015 SCC 9, R. v. Cinous, 2002 SCC 29, R. v. Bulmer, [1987] 1 S.C.R. 782, R. v. Park, [1995] 2 S.C.R. 836, R. v. Hill, [1986] 1 S.C.R. 31

R. v. McWatters, 2019 ONCA 46

[Simmons, Lauwers and Trotter JJ.A.]

Counsel:

R. McWatters, in person

L. Daviau, duty counsel

H. Freeman, for the respondent

Keywords: Criminal Law, Criminal Negligence Causing Death, Failure to Remain at Scene of Accident, Possession of Property Obtained by Crime, Driving While Disqualified, Criminal Code, ss. 259(4), 743.6

R. v. Weir, 2019 ONCA 40

[Doherty, Miller and Trotter JJ.A.]

Counsel:

 E. Dann and J. Shanmuganathan, for Crystal Weir (deceased)

K. Shai, for the respondent

Keywords: Criminal Law

R. v. G.F., 2019 ONCA 50

[Feldman, MacPherson and Nordheimer JJ.A.]

Counsel:

P. Copeland, for the appellant

J. Smith Joy, for the respondent

Keywords:  Criminal Law, Sexual Assault, Criminal Code, s. 273.1(2)(c), R. v. Lutoslawski, 2010 ONCA 217

R. v. W.R., 2019 ONCA 49

[Doherty, Miller and Trotter JJ.A.]

Counsel:

R. Sheppard, for the appellant

E. Whitford, for the respondent 

Keywords:  Criminal Law, Sexual Assault, Jury Instructions

 Ontario (Attorney General) v. 855 Darby Road, Welland (In Rem), 2019 ONCA 31

[Rouleau, Watt and Paciocco JJ.A.]

Counsel:

R. Naimark and A. Nikolaev, for the appellant

L. Will, for the respondent

Keywords: Criminal Law, Civil Forfeiture, Proceeds of Unlawful Activity, Evidence, Admissibility, Expert Evidence, Participant Experts, Hearsay, Civil Remedies Act, 2001, S.O. 2001, c. 28, ss. 2, 3(1) and 3(3), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(a), Rules of Civil Procedure, Rule 2.03, 39.01(5), 39.01(7) and 53.03, Westerhof v. Gee Estate, 2015 ONCA 2006, R. v. Abbey, [1982] 2 S.C.R. 24, R. v. Caesar, 2016 ONCA 599, R. v. Baksh (2005), 199 C.C.C. (3d) 201 (Ont. Sup. Ct.), aff’d 2008 ONCA 116, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 155, Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363, Ontario (Attorney General) v. 714 Railton Avenue, 2014 ONCA 397, R. v. Harrison, 2009 SCC 34, R. v. Summers, 2014 SCC 26


ONTARIO REVIEW BOARD

Phillip (Re), 2019 ONCA 48

[Doherty, Miller and Trotter JJ.A.]

Counsel:

D.R. Medd, for the appellant

J. Tatum, for the respondent Attorney General for Ontario

J.E. Blackburn, for the respondent Person in Charge of Waypoint Centre for Mental Health Care

Keywords:  Ontario Review Board, Criminal Law, Assault, Breach of Probation

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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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles professional discipline and professional negligence matters, as well as complex estates and matrimonial litigation. In addition, John represents amateur sports organizations in contentious matters, and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.