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

Good evening.

Below are summaries of the civil decisions released by the Court of Appeal for Ontario this week.

In Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), the Court considered a number of issues, including negligence, the apportionment of liability, the sufficiency of reasons, contractual exclusion clauses, and Pierringer Agreements in the context of an unfortunate and widely covered oil spill into Sturgeon Lake in 2008.
The Court grappled with appeals routes in the context of the Bankruptcy and Insolvency Act (“BIA”) in two decisions this week. In the lengthier decision, Business Development Bank of Canada v. Astoria Organic Matters Ltd., the Court held that the chambers judge did not err in finding that the appropriate appeal route in that case was governed by the BIA rather than the Courts of Justice Act. In a short unreported decision, our very own Eric Golden successfully argued that the opposing party did not have an automatic right of appeal pursuant to s. 193(c) of the BIA, and was required to seek leave.

Other topics covered this week included mortgage enforcement, privacy and freedom of information, and civil contempt.

On another note, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which has been rescheduled and will now be taking place at the OBA, 20 Toronto Street, Toronto, on Thursday, May 9, 2019. It is a three hour dinner program beginning at 5 PM, which will also be available by live webcast for those who cannot attend in person.

Our first set of panelists, Eliot Kolers, David Thompson and Katherine Di Tomaso, will discuss 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, a panel led by Glenn Chu of the City of Toronto 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

Business Development Bank of Canada v. Astoria Organic Matters Ltd. , 2019 ONCA 269

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Jurisdiction, Leave to Appeal, Inherent Jurisdiction, Statutory Interpretation, Constitutional Law, Doctrine of Paramountcy, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6 and 101, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 183(1), 193, 243(1) and 251, Bankruptcy and Insolvency General Rules, C.R.C., c. 368, r. 31(1), Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Limited, 2012 ONCA 569, Industrial Alliance Insurance and Financial Services Inc. v. Wedgemount Power Limited Partnership, 2018 BCCA 283, Trusts & Guarantee Co. v. Oakwood Clubs (1931), 40 O.W.N. 581 (H.C.J.), Hamilton Wentworth Credit Union Ltd. v. Courtcliffe Parks Ltd. (1995), 23 O.R. (3d) 781 (Gen. Div.), Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, Kingsway General Insurance Company v. Residential Warranty Co. of Canada Inc. (Trustee of), 2006 ABCA 293

B&M Handelman Investments Limited et al. v Drotos , [unreported]

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Jurisdiction, Leave to Appeal, Motions for Directions, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193(c)

Rokhsefat v. 8758603 Canada Corp., 2019 ONCA 273

Keywords: Contracts, Real Property, Mortgages, Notice of Sale under Mortgage, Discharge Statements, Civil Procedure, Jurisdiction, Applications, Findings of Fact, Costs, Assessments, Mortgages Act, RSO 1990, c. M.40 ss. 12, 17 & 43, Interest Act, R.S.C. 1985, c. I-15, Chong & Dadd v. Kaur, 2013 ONSC 6252

Wolseley Canada Inc. v. Neal Traffic Services Limited (National Traffic Services), 2019 ONCA 276

Keywords: Civil Procedure, Contempt, Sentencing, Fresh Evidence, Striking Pleadings

Barker v. Ontario (Information and Privacy Commissioner), 2019 ONCA 275

Keywords: Administrative Law, Privacy, Freedom of Information, Procedural and Natural Justice, Sufficiency of Reasons, Standard of Review, Reasonableness, Dunsmuir v. New Brunswick, 2008 SCC 9, Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M56

Tozer v Tassone, 2019 ONCA 285

Keywords: Family Law, Separation Agreements, Setting Aside, Grounds, Non-Disclosure, Civil Procedure, Summary Judgment, Family Law Act, R.S.O. 1990, c. F.3, ss. 56(4), Quinn v Epstein Cole LLP, 2009 ONCA 662

Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293

Keywords: Torts, Negligence, Contributory Negligence, Contracts, Sale of Goods, Exclusion Clauses, Environmental Law, Liability for Spills, Damages, Mitigation, Apportionment of Liability, Set-Off, Civil Procedure, Settlements, Pierringer Agreements, Sufficiency of Reasons, Costs, Environmental Protection Act, R.S.O. 1990, c. E 19, s. 100.1, Fuel Oil, O Reg 213/01, s. 19, Rule 5 of the Sale of Goods Act, RSO 1990, c S.1, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), Ingels v Tutkaluk Construction, 2000 SCC 12 2010 SCC 4 Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, R v Sheppard, 2002 SCC 26, Ratych v. Bloomer, [1990] 1 SCR 940, Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819, Canadian Natural Resources Ltd. v. Wood Group Mustang (Canada) Inc., 2018 ABCA 305

Paulin v. Keewatin Patricia District School Board , 2019 ONCA 286

Keywords: Real Property, Commercial Leases, Covenants to Insure, Indemnification, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, s. 30(1), Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246, Madison Developments Ltd. v. Plan Electric Co., (1997) 152 D.L.R. (4th) 653 (C.A.), Orion Interiors Inc. v. State Farm Fire and Casualty Company, 2016 ONCA 164, Cummer-Yonge Investments Ltd. v. Agnew Surpass Shoe Stores Ltd., [1976] 2 S.C.R. 221, Pyrotech Products Ltd. v. Ross Southward Tire Ltd., [1976] 2 S.C.R. 35, T. Eaton Co. v. Smith et al., [1978] 2 S.C.R. 749, Bell Canada v. The Plan Group, 2009 ONCA 548, Lincoln Canada Services LP v. First Gulf Design Build Inc., [2007] O.J. No. 4167 (S.C.), Royal Host Limited Partnership (General partner of) v. 1842259 Ontario Ltd., 2018 ONCA 467, Canada Steamship Lines Ltd. v. R, [1952] UKPC 1

Short Civil Decisions

2256157 Ontario Ltd. v. Fazi , 2019 ONCA 259

Keywords: Appeal Book Endorsement, Appeal Dismissed

8466718 Canada Inc. v. 1779042 Ontario Ltd., 2019 ONCA 278

Keywords: Contracts, Interpretation, Fraudulent Misrepresentation, Negligent Misrepresentation

Celik v. TD Canada Trust,, 2019 ONCA 270

Keywords: Civil Procedure, Limitation Periods

Royal Bank of Canada v. Everest Group Inc.,, 2019 ONCA 287

Keywords: Contracts, Civil Procedure, Summary Judgment

Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 283

Keywords: Torts, Defamation, Libel, Bankruptcy and Insolvency, Civil Procedure, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(8)

1303943 Ontario Inc. v. Dajlan Troka (In Trust), 2019 ONCA 280

Keywords: Contracts, Agreements of Purchase and Sale of Land, Remedies, Relief from Forfeiture, Vendors and Purchasers Act, R.S.O. 1990, c. V.2, s. 3

Goyal v. Niagara College of Applied Arts and Technology, 2019 ONCA 263

Keywords: Torts, Negligence, Duty of Care, Proximate Relationship, Damages, Pure Economic Loss

Steven v. DDR Americas Inc., 2019 ONCA 271

Keywords: Employment Law, Wrongful Dismissal

Radio 1540 Ltd. v. Muhammad, 2019 ONCA 279

Keywords: Credibility

Peters v. Chasty, 2019 ONCA 294

Keywords: Torts, Negligence, Peters v. Chasty, 2016 ONSC 4788

Criminal Decisions

R. v. Ochrym , 2019 ONCA 272

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Driving While Disqualified, Sentencing

R. v. Lynn, 2019 ONCA 277

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Sentencing, R. v. Farizeh, [1994] O.J. No. 2624 (C.A.), Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 10(1)

R. v. James, 2019 ONCA 288

Keywords: Criminal Law, Drug Offences, Firearms Offences, Canadian Charter of Rights and Freedoms, s. 8, s. 24(2), Search and Seizure, Search Warrants, R. v. Morelli, [2010] S.C.R. 253, R. v. Sadikov, [2014] O.J. No. 376, R. v. Grant, 2009 SCC 32, R. v. McGuffie, 2016 ONCA 365, R. v. Rocha, 2012 ONCA 707, R. v. Cote, 2011 SCC 46, R. v. Cole, 2012 SCC 53, R. v. Caslake, [1998] 1 S.C.R. 51

R. v. Abdelnasir, 2019 ONCA 292

Keywords: Criminal Law, Robbery, Identification Evidence

R. v. Chis, 2019 ONCA 289

Keywords: Criminal Law, First Degree Murder, Jury Instructions, R. v. Mendes, 2018 ONCA 354, R. v. Rodgerson, 2015 SCC 38

R. v. Mohenu, 2019 ONCA 291

Keywords: Criminal Law, Fraud, Sentencing, R. v. Bankay, 2010 ONCA 799, R. v. Badhwar, 2011 ONCA 266, R. v. Castro, 2010 ONCA 718, R. v. Mathur, 2017 ONCA 403, R. v. Priest, (1996) 30 O.R. (3d) 538 (C.A.), R. v. Nassri, 2015 ONCA 316, R. v. Thurairajah, 2008 ONCA 91, R. v. Laine, 2015 ONCA 519, R. v. Lacasse, 2015 SCC 64, Criminal Code, R.S.C., 1985, c. C-46, s. 380(1)(a), s. 742.1(c)

R. v. N’Kansah, 2019 ONCA 290

Keywords: Criminal Law, Importing Drugs, Jury Instructions, Evidence, Good Character Evidence, R. v. Pannu, 2015 ONCA 677, R. v. Bryan, 2013 ONCA 97, R. v. Mensah, (2003) 170 O.A.C. 244, R. v. Burnett, 2018 ONCA 790, R. v. Phillips, 2008 ONCA 726, R. v. Elmosri, (1986) 23 C.C.C. (3d) 503 (Ont. C.A.), R. v. Potts, 2018 ONCA 294, R. v. Daley, 2007 SCC 53, R. v. Jacquard, [1997] 1 S.C.R. 314, R. v. Calnen, 2019 SCC 6, R. v. Jaw, 2009 SCC 42, R. v. Speers, 2017 ONCA 333, R. v. Villaroman, 2016 SCC 333, R. v. W.(D.), [1991] 1 S.C.R. 742


CIVIL DECISIONS

Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269

[Feldman, Paciocco and Zarnett JJ.A.]

Counsel:

M.L. Solmon, F. Bennett and R. Joshi, for the moving party

S. Graff and M. Spence, for the responding party

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Jurisdiction, Leave to Appeal, Inherent Jurisdiction, Statutory Interpretation, Constitutional Law, Doctrine of Paramountcy, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6 and 101, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 183(1), 193, 243(1) and 251, Bankruptcy and Insolvency General Rules, C.R.C., c. 368, r. 31(1), Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Limited, 2012 ONCA 569, Industrial Alliance Insurance and Financial Services Inc. v. Wedgemount Power Limited Partnership, 2018 BCCA 283, Trusts & Guarantee Co. v. Oakwood Clubs (1931), 40 O.W.N. 581 (H.C.J.), Hamilton Wentworth Credit Union Ltd. v. Courtcliffe Parks Ltd. (1995), 23 O.R. (3d) 781 (Gen. Div.), Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, Kingsway General Insurance Company v. Residential Warranty Co. of Canada Inc. (Trustee of), 2006 ABCA 293

Facts:

Upon the responding party’s insolvency, one of its secured creditors applied for an order under s. 243(1) of the Bankruptcy and Insolvency Act (the “BIA”) and s. 101 of the Courts of Justice Act (the “CJA”) appointing BDO Canada Ltd. as receiver of the responding party (the “Receiver”). The receivership order stated no proceeding or enforcement process could be commenced against the Receiver except with written consent of the Receiver or with leave of the Court.

The Receiver sold assets of the responding party to the moving party under an Asset Purchase Agreement. Shortly thereafter, the moving party complained about the amount of organic waste accumulated inside one of the facilities it had purchased, and the expenses of about $750,000 consequently incurred to clean it up. The moving party claimed the Receiver had breached obligations owed to it and was responsible to compensate the moving party for its expenses. The moving party brought an application for permission to sue the Receiver under the “leave to sue” provision of the receivership order. On May 17, 2018, a Superior Court judge (the “application judge”) dismissed the application, finding that the moving party’s allegations were not supported by evidence disclosing a prima facie case. On November 8, 2018, the application judge refused the moving party’s request to reopen the application to allow the filing of fresh evidence.

The moving party appealed from both decisions. Those appeals were timely if the CJA, under which there is a 30-day limit for commencing an appeal, governed the appeal route. They were late if the BIA, which imposes a 10-day limit, governed. On a motion before a single judge of the Ontario Court of Appeal (the “chambers judge”), the moving party moved for orders a) that its notice of appeal had been properly served and filed under s. 6 of the CJA; b) in the alternative, granting it an extension of time of 19 days in order to appeal under s. 193(c) of the BIA; or c) in the further alternative, granting it an extension of time of 19 days to seek leave to appeal and granting leave to appeal pursuant to s. 193(e) of the BIA. In a separate motion, the moving party moved before the chambers judge for orders a) declaring that the appeal from the application judge’s decision denying leave to introduce fresh evidence was governed by s. 193(c) of the BIA, or in the alternative s. 6 of the CJA, such that leave to appeal was not required; or b) in the alternative, granting leave to appeal pursuant to s. 193(e) of the BIA.

The chambers judge found the BIA governed the moving party’s appeal and dismissed the motions. The reference in the receivership order to the CJA did not have the effect of ousting the BIA as the source of the appellate authority, nor could it as a matter of federal paramountcy. The provisions of the BIA providing for appeals as of right were not applicable to the appeal, and no grounds for granting leave to appeal existed. The chambers judge also held there was no reviewable error in the application judge’s discretionary decision not to admit the moving party’s proposed fresh evidence.

On appeal, the moving party argued that those conclusions were derivative of the chambers judge’s conclusion about which statute governed the appeal route, and argued that the CJA did, meaning the moving party did not require leave to appeal or an extension of time. The moving party submitted that in view of the Supreme Court’s decision in Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd, as long as there was no operational conflict between the provincial and federal law and the provincial law did not frustrate the federal law’s purpose, the provincial law would continue to apply alongside the federal law.

The Receiver argued that the proceedings giving rise to and arising out of the receivership order were BIA proceedings. Parliament had constitutional authority over the procedure in all matters relating to bankruptcy, and since the appeal provisions of the BIA and CJA were in operational conflict, the BIA provisions prevailed. Alternatively, the only way to comply with both schemes was to follow the more restrictive provisions in the BIA appeal route.

Issue:

(1) Did the chambers judge err in determining that the proper appeal route was governed by the BIA?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The Court held that where the order sought to be appealed was made in reliance on jurisdiction under the BIA, the proper appeal route is governed by the BIA. The Superior Court had dismissed the moving party’s request to sue the Receiver in reliance on the “leave to sue” provision in the receivership order. The Court’s authority to include that provision in the receivership order flowed by necessary implication from the statutory power to appoint a receiver under s. 243(1) of the BIA. Although the CJA also provided such authority under s. 101, the Receiver had been appointed under both statutes and the appeal was governed by the BIA as a matter of paramountcy.

The Court stated that determination of the applicable appeal route turned on whether the “leave to sue” provision under which the application judge had exercised authority to dismiss the moving party’s application had been included in the receivership order pursuant to jurisdiction flowing from the BIA. The Court stated that the essential and customary nature of a “leave to sue” provision in court-ordered receiverships informed the analysis of the source of the court’s authority to include it.

Before Parliament amended the BIA in 2009 to include s. 243(1), appointments of receivers under provincial legislation included “leave to sue” provisions. According to the Ontario General Division Court in Hamilton Wentworth Credit Union Ltd. v. Courtcliffe Parks Ltd., the authority to include such a provision stemmed from the court’s inherent jurisdiction and the statutory authority in the CJA to appoint a receiver. The Ontario Court of Appeal found that s. 243(1) of the BIA had been enacted against the backdrop of existing provincial legislation authorizing the appointment of receivers. However, the Supreme Court of Canada had clarified in Century Services Inc. v. Canada (Attorney General) that in the insolvency context, statutory authority is to be considered before inherent jurisdiction, and a finding of statutory authority would make any reference to inherent jurisdiction unnecessary.

In considering s. 243(1) of the BIA, the Court stated that under the modern approach to statutory interpretation the proper understanding of the section’s words in their context and in light of the purpose of the legislation led to the conclusion that Parliament must be taken to have clothed the court with the power to require leave to sue a receiver. Parliament’s purpose in enacting the provision was to eliminate the need for a patchwork of receivers appointed under provincial legislation. It follows that the court’s power to appoint a national receiver under s. 243(1) of the BIA comprehended the power to include essential receivership terms, and the power to include a “leave to sue” provision in a receivership order was necessarily implied.

The Court rejected the moving party’s argument that the fact s. 251 of the BIA specified when a receiver is to be protected from suit contradicted the notion that the BIA authorized a “leave to sue” provision. The Court stated that s. 251 deals with circumstances under which a receiver cannot be sued at all, and does not displace the right of the court to include an essential term in a receivership order requiring court permission for matters falling outside of s. 251. Nor did failure to specifically include receivers in s. 215 support a finding that s. 243(1) did not authorize a “leave to sue” provision. Section 215 of the BIA provides that certain officials cannot be sued without court permission. Contrary to those officials, s. 243(1) receivers are court-appointed and take their powers from the court appointment orders, not the BIA. When appointed under other statutes, they were historically clothed with customary and common terms essential to their appointment, such as the “leave to sue” provision. The BIA power of appointment carried with it the power to impose that type of term.

The Court concluded the moving party had failed to show an error in the underlying premise of the chambers judge’s decisions, namely that the BIA governed the proposed appeals. Although authority grounding the application judge’s refusal to grant leave to sue the Receiver was found in both the BIA and the CJA, federal paramountcy dictated that the BIA appeal provisions governed.

B&M Handelman Investments Limited et al. v Drotos, [unreported]

[Watt J.A.]

Counsel:

R.S. Baldwin, for the appellants

G.M. Sidlofsky, for Pillar Capital Corporation (Cayman)

E. Golden and D.P. Preger, for the Receiver Rosen Goldberg Inc.

M. Poliak, for Money Gate

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Jurisdiction, Leave to Appeal, Motions for Directions, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193(c)

Facts:

The Receiver brought a motion for directions following Pillar Capital’s filing of a notice of appeal from a priority order of Justice Dunphy of the Superior Court of Justice. The Receiver’s motion sought, in part, an order declaring that Pillar Capital did not have an automatic right to appeal to the Court of Appeal without first seeking leave. Pillar Capital argued that its appeal did not require leave pursuant to s. 193(c) of the Bankruptcy and Insolvency Act (the “BIA”).

Issue:

(1) Did Pillar Capital have an automatic right of appeal under s. 193(c) of the BIA?

Holding:

Motion granted.

Reasoning:

(1) No, Pillar Capital did not have an automatic right of appeal under s. 193(c) of the BIA, and was required to seek leave to appeal. In the event that Pillar Capital sought leave to appeal, leave would not be granted because the unnecessary bifurcation of the proceedings was not in the interests of justice.

Rokhsefat v. 8758603 Canada Corp., 2019 ONCA 273

[van Rensburg, Hourigan and Huscroft JJ.A]

Counsel:

Z. M. Kaslik, for the appellant

B. Salsberg, for the respondents

Keywords: Contracts, Real Property, Mortgages, Notice of Sale under Mortgage, Discharge Statements, Civil Procedure, Jurisdiction, Applications, Findings of Fact, Costs, Assessments, Mortgages Act, RSO 1990, c. M.40 ss. 12, 17 & 43, Interest Act, R.S.C. 1985, c. I-15, Chong & Dadd v. Kaur, 2013 ONSC 6252

Facts:

The respondents granted a second mortgage on their home to secure a loan from the appellant. The day before the mortgage matured, the respondents received a discharge statement by email which included an amount of $128,604.30 to be paid. The discharge statement was dated a week before the date the email was received and provided that legal enforcement would be commenced after 15 calendar days. It did not state when the 15 days would begin to run. Two days later, the respondents received a registered letter from the appellant’s counsel indicating that the mortgage was in default by reason of failure to pay the amount due on the redemption date. The letter enclosed a Notice of Sale under Mortgage which specified a discharge amount of $153,285.10 and referred to a payment date that was more than a month later. Despite this, the letter demanded payment by the day the letter was dated.

The respondents challenged the amounts claimed by the appellant and the premature notice of sale, and brought an application to the Superior Court seeking an order under s. 12 of the Mortgages Act for a discharge of the mortgage upon payment into court of an amount to be determined by the court, and a declaration that the Notice of Sale was of no force and effect. The application judge considered the affidavit evidence and determined that the amount owing was $144,886.05. He allowed certain expenses claimed by the appellant and disallowed others. He ordered that if the amount due and owing was not paid within 30 days, an interlocutory injunction that had previously been imposed prohibiting enforcement of the mortgage would be lifted. The appellant appealed this seeking an order setting aside the order of the application judge so that a new proceeding could be commenced before an assessment officer under s. 43 of the Mortgages Act.

Issue:

(1) Should the application judge have determined the application?

(2) Should the application judge have directed a trial of the issue because there were disputed facts?

(3) Did the application judge err in his treatment of various contested amounts claimed by the appellant?

Holding:

Appeal dismissed.

Reasoning:

(1) Yes. The application judge had jurisdiction in this case to address all of the issues that were before him. The appellant contended that the procedure under s. 43 of the Mortgages Act before an assessment officer was the only recourse available to the respondents, and that therefore the application judge lacked jurisdiction to determine the issues in dispute The Court rejected this argument, finding that the respondents brought their application in order to challenge the conduct of the appellant and to determine the proper discharge amount.
Because the Notice of Sale followed only two days after the discharge statement and yet demanded payment of an additional sum of nearly $25,000, there was a real question about the legality of a number of the charges. A mortgagee must be able to ascertain, assert, and finally, defend its right to the legal fees in connection with the mortgage debt. The standard charge terms of mortgage agreements are not a “carte blanche” for a mortgagee to incur and charge fees: Chong & Dadd v. Kaur, 2013 ONSC 6252, at paras. 40 and 43.

In the particular circumstances of this case, the respondents’ court application was a justifiable response to the appellant’s unreasonable conduct in refusing to explain the additional charges and its issuance of a premature Notice of Sale. Even if some of what the application judge determined in relation to the dispute about the amount owing for a discharge of the mortgage could have been addressed before an assessment officer, the matter had been determined. The matter was before a justice of the Superior Court who had jurisdiction to deal with it.

(2) No. The Court found no merit in the appellant’s argument that the application judge ought to have directed a trial of the issue because there were disputed facts. The application judge noted that the material filed on the application was not subject to cross-examination, and even though the evidence of each side was diametrically opposed on key issues, the parties maintained that the application could and should be decided on the record before him. In these circumstances, it was appropriate for the application judge to proceed and to make findings on the evidence that was available.

(3) No. The Court rejected the appellant’s argument that the application judge erred in his treatment of the various contested amounts that were claimed by the appellant. Specifically, in disallowing the mortgagee’s claim for a three-month interest penalty, the application judge indicated that he was not satisfied that there was any prepayment penalty payable under this mortgage, either on default or the failure to pay on the maturity date. Contrary to the appellant’s submission, s. 17 of the Mortgages Act does not provide to a mortgagee any unconditional right to claim such a payment based on maturity alone. With respect to the other items in dispute, the application judge allowed for certain amounts claimed by the appellant, including late payment charges, where there was substantiation for such claims and where they did not offend the Mortgages Act or the Interest Act.

Wolseley Canada Inc. v. Neal Traffic Services Limited (National Traffic Services), 2019 ONCA 276

[Simmons, Juriansz and Miller JJ.A.]

Counsel:

N. M. Abramson and R. Barbiero, for the appellants

B. Yellin and K. Carr, for the respondent

Keywords: Civil Procedure, Contempt, Sentencing, Fresh Evidence, Striking Pleadings

Facts:

The respondent commenced an action claiming that: (1) monies it had advanced to the appellants had not been properly disbursed; and (2) the appellants failed to have a proper accounting system to account for funds flowing in and out.

On April 27, 2017, an interim order was made (the “Interim Order”) that required the appellants to: (1) account for certain amounts they had received from the respondent by delivering a comprehensive spreadsheet within 15 days, and corroborating documents within 3 days of any request; (2) disclose related documents to an accounting firm to be appointed by the respondent; and (3) pay any unpaid accounts within 15 days.

In June 2017, the respondent brought a successful motion to have the appellants found in contempt of paragraphs (1) and (2) of the Interim Order. Prior to sentencing, the appellants had sought to introduce fresh evidence in order to show that they had purged their contempt. Their fresh evidence motion was dismissed.

The appellants were sentenced on March 6, 2018. They appealed on the basis that the sentence was imposed based on the mistaken conclusion that they had not purged their contempt.

Issue:

(1) Did the motion judge err in dismissing the fresh evidence motion?

(2) Did the motion judge err in finding that the appellants had not purged their contempt?

(3) In any event, was the sentence disproportionate and therefore unfit?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The question of whether the appellants had purged their contempt was relevant to, and was likely to impact the issue of sentencing. The fresh evidence dealt with that issue by addressing the appellant’s actions since their previous attendance before the motion judge. Specifically, the appellants deposed that they had fully complied with the Interim Order by December 2017, having supplied all requested documents to PriceWaterhouseCoopers (“PWC”), the firm appointed by the respondent under the Interim Order. These asserted facts would have been before the motion judge had he not erred by striking portions of the appellants’ affidavits that addressed these facts and by dismissing the fresh evidence motion.

(2) Yes. In concluding that the appellants had not purged their contempt, the motion judge cited the appellants’ failure to account for all money in and out, apparently supported by the affidavit of the respondent’s accounting expert, Ms. Patel of PWC. The motion judge mistakenly found her affidavit to be an indication that “PWC was not given all information as ordered”. Ms. Patel deposed that she had not been able to fully reconcile all monies received by the appellants from the respondent with all third-party accounts the appellants were required to pay with those funds.

The court found that Ms. Patel’s affidavit did not contradict the claim in the appellants’ fresh evidence that they had fully complied with the Interim Order. PWC’s inability to reconcile all monies did not in itself demonstrate that the appellants had not produced all documents as required. The declaration that the appellants had not purged their contempt was set aside.

(3) Yes. The order to strike the appellants’ pleadings was disproportionate and therefore set aside. The court reasoned that the Interim Order had required extensive disclosure, and that the appellants had made considerable efforts to comply with it. The fact that the appellants’ former counsel had conceded that their pleading could be struck if they failed to purge their contempt by July 15, 2017 did not alter the court’s finding.

The court also set aside the order that required the appellants to pay PWC’s costs. The Interim Order had required the respondent to pay such costs. The court concluded that the issue of PWC’s fees was a matter for the fixing of costs after trial.

Barker v. Ontario (Information and Privacy Commissioner), 2019 ONCA 275

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

Counsel:

L.H-C. Chen, for the appellant

A. V. Mayeski, for the corporate respondent

M. J. Huberman and A. Fineberg, for the personal respondent

Keywords: Administrative Law, Privacy, Freedom of Information, Procedural and Natural Justice, Sufficiency of Reasons, Standard of Review, Reasonableness, Dunsmuir v. New Brunswick, 2008 SCC 9, Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M56

Facts:

Media reported that the corporate respondent’s former CFO had a criminal record, leading the corporate respondent to retain KPMG to investigate how he was hired and whether he caused any losses. A journalist requested disclosure of KPMG’s resulting Report (“the Report”) pursuant to the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”). The personal respondent opposed disclosure, arguing that her personal information contained in the Report was exempt under s. 14 of MFIPPA. The corporate respondent determined that the entire Report should be disclosed; pursuant to s. 16, a compelling public interest in disclosure predominated, as it would shed light on the corporate respondent’s operations and would accord with MFIPPA’s purpose.

The personal respondent appealed to the Information and Privacy Commissioner of Ontario (“the Commissioner”), who upheld the release. He explained that much of the Report contained the personal respondent’s information, which was supplied with the expectation that it would be treated confidentially. He therefore concluded that disclosure would be an invasion of privacy. However, he determined that there was a compelling public interest in disclosure. The public had an interest in knowing whether there had been a conflict of interest and whether funds had been misappropriated. As her personal information was inextricably linked the conflict of interest issue, he concluded that her privacy must yield to the public interest in disclosure. The Commissioner also considered whether any portions ought to be redacted, but concluded there was a compelling public interest in total disclosure. He determined it was unnecessary to identify which portions of the Report were personal information, noting that the personal respondent did not make any submissions on s. 14. Following the decision, she requested that the Commissioner reconsider.

The personal respondent argued that the Commissioner ought to have identified each portion of the Report that constituted personal information. In her submission, without such explicit identification, he was unable to analyze whether s. 14 was overridden by the interest in disclosure. This, in her view, constituted a fundamental defect in adjudication and a failure to exercise jurisdiction. The Commissioner declined to reconsider, stating that he had specifically considered the purpose of the privacy exemption and whether the public interest in disclosure outweighed it. The Commissioner cautioned that he had specifically considered whether any portions ought to be withheld but found a compelling interest in disclosure of the entire Report. Accordingly, the failure to specify which portions of the record included personal information did not constitute a fundamental defect warranting reconsideration. He stated that the inclusion of such information in the reasons “would have been redundant in light of the application of the public interest override”.

The personal respondent sought judicial review, alleging reviewable errors including the Commissioner’s failure to identify the information that qualified for the s. 14 exemption. The Divisional Court allowed the application, quashed the decisions, and remitted the matter to the Commissioner. In the court’s view, the Commissioner’s reasons did not permit the conclusion that the decisions were reasonable. He was required to identify each piece of information that was exempted from disclosure under s. 14, and then balance each piece of information under s. 16. As his reasons did not contain this detailed analysis, his decisions were therefore unreasonable.

Issue:

(1) Did the Commissioner err in failing to identify and weigh each piece of the personal respondent’s protected information?

(2) Did the Commissioner err in failing to give sufficient weight to the purpose of s. 14 in his s. 16 balancing analysis?

Holding:

Appeal allowed.

Reasoning:

(1) No. The Court began by noting MFIPPA’s purposes and relevant provisions, including its competing interests: the right to access information, and the protection of personal information. Section 14’s prohibition of disclosure was subject to exceptions, one of which dictates that s.14 will not apply “if the disclosure does not constitute an unjustified invasion of personal privacy”. In this case, the parties agreed that the information was exempt from disclosure. However, s. 16 provides an overriding authority to disclose information. The parties agreed that the standard of review was reasonableness, with the Court noting that assessing a decision on a reasonableness standard includes the nature of the statutory task, the evidence, the parties’ submissions, and the process.

First, the Court reviewed the statutory task. Where s. 14 is engaged but there is no s. 16 issue, the Commissioner will apply s. 14 and identify the information that is protected from disclosure. The Commissioner will have to identify each piece of information protected from disclosure, because each will have to be redacted. Therefore, the reasons will set out the Commissioner’s analysis as it relates to the pieces of information to be redacted. Here, the key issue was s. 16’s application. The Court noted that when s. 16 is engaged, additional analysis is required. First, there must be a compelling public interest in disclosure, and second, that interest must clearly outweigh the purpose of the exemption. Here, the two purposes of MFIPPA conflicted. A s.16 analysis involves balancing these competing purposes, with regard to the particular circumstances of the case.

Here, there was no formula for the Commissioner to follow. The level of specificity required will depend on the circumstances, including the nature of the information and the provisions of MFIPPA that are at play. The reasons should be responsive to the issues raised and the parties’ positions. The Court cautioned, however, that this was not meant to suggest that if a party fails to raise an issue, such failure will absolve the Commissioner of his duty to properly apply the statute.

Next, the Court noted that the personal respondent’s submissions provided necessary background to understanding the Commissioner’s reasons. Given that the corporate respondent had acknowledged the exemption under s.14 applied, her submissions made no reference to what parts of the Report contained personal information or which provisions in s. 14 protected that information from disclosure. She focused on KPMG’s assurance of confidentiality prior to her giving an interview and sharing personal information, indicating that she otherwise would not have participated. She also argued that a significant amount of information was already public, and that adequately addressed public interest considerations. Lastly, she made extensive submissions concerning the application of s. 8(2)(c), raising concerns about exposure to civil liability.

The Court reviewed the reasonableness of the Commissioner’s reasons, finding that he considered the different privacy interests at play and the s. 14 factors that supported his findings, while his s. 16 analysis was alive to the potential impact of disclosure on the personal respondent. Accordingly, his approach was reasonable. As a general proposition, the interpretation of s. 16 is “at the heart of the Commissioner’s specialized expertise”. His failure to identify and balance each piece of information did not undermine the reasonableness of his decision. Although a piece-by-piece analysis might sometimes be required, this was not such a case.

(2) No. Notwithstanding the Commissioner’s failure to specify subsections within s. 14(2), the Court denied that this suggested a failure to undertake proper analysis or give proper weight to s. 14. It was apparent that he was alive to legitimate concerns raised by s. 14(2), the possibility of pecuniary harm, and the possibility of unfair reputational damage. With respect to pecuniary harm, she made her submissions based solely on s. 8(2). The Commissioner responded to this concern, explaining that s. 8(2) did not apply. He then incorporated this into his s. 14 analysis. As for potential damage to the personal respondent’s reputation, this concern was addressed by the Commissioner’s acknowledgement that the information was highly sensitive. Further, one of the personal respondent’s submissions on appeal was not raised with the Commissioner, so there was no reason for him to refer to the provisions dealing with these submissions. Lastly, it was open to the personal respondent to address alleged inaccuracies in the Report, but she failed to do so.

Regarding the weight assigned to public interest in disclosure, the Court found that the Commissioner adequately addressed the personal respondent’s concerns. The Court declined to interfere with his reliance on the corporate respondent’s disclosure assessment, with his finding that the Report contained new information that was not publicly available, and with his decision not to redact any information. Given that he indicated that he had considered whether any portion should be redacted, that finding was entitled to deference. Although not determinative, the Commissioner should also have been alive to the possible benefit of disclosure to the record holder. Lastly, the Court found that no error in the Commissioner’s reconsideration decision, since the finding that the Commissioner’s reasons were adequate meant that there was no basis to grant a reconsideration. As the Commissioner noted, the concerns raised by the personal respondent did not demonstrate a “fundamental defect in the adjudication process, or some jurisdictional defect in the decision, in relation to [the] analysis of the mandatory exemption at section 14”.

Tozer v. Tassone, 2019 ONCA 285

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

Counsel:

J.K. Hannaford and M. Solmon, for the appellant

K.H. Nathens, for the respondent

Keywords: Family Law, Separation Agreements, Setting Aside, Grounds, Non-Disclosure, Civil Procedure, Summary Judgment, Family Law Act, R.S.O. 1990, c. F.3, ss. 56(4), Quinn v Epstein Cole LLP, 2009 ONCA 662

Facts:

The appellant, Mr. Tozer, and the respondent, Ms. Tassone, signed a separation agreement (the “Agreement”) in October 2012. Mr. Tozer later brought an application to set aside the Agreement. In June 2018, the motion judge granted summary judgment to Ms. Tassone, enforcing the Agreement.

The motion judge found that the following facts were not in dispute: (i) the Agreement was a full and final settlement of all outstanding claims between the parties; (ii) under the Agreement, Mr. Tozer undertook to pay Ms. Tassone $3,400,000 by December 31, 2015 (this amount was secured by a mortgage (the “Mortgage”) against an asset; (iii) Mr. Tozer had only paid Ms. Tassone $378,491; (iv) Mr. Tozer owed Ms. Tassone $3,121,509 plus interest.

Notably, the summary judgment did not enforce the Mortgage, which was the subject of another proceeding.

Issue:

(1) Did the motion judge make palpable and overriding errors in his findings of fact?

(2) Did the motion judge have jurisdiction to grant summary judgment?

(3) Did the motion judge deny the appellant procedural fairness and natural justice?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The motion judge properly applied section 56(4) of the Family Law Act, R.S.O. 1990, c. F.3, which provides that a court may, on application, set aside a domestic contract or a provision in it:

(a) if a party failed to disclose to the other significant assets, or significant debts or liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

The appellant argued that the motion judge erred by failing to find that (i) Ms. Tassone had not disclosed all of her assets prior to signing the Agreement, and (ii) there was a genuine issue as to the significance of the assets. The court found that the motion judge correctly considered the appellant’s claim regarding non-disclosure “with great skepticism”. Mr. Tozer himself had failed to disclose the full value of his assets. Therefore, it was “disingenuous” for him to seek to justify setting aside the Agreement because of Ms. Tassone’s non-disclosure.

Courts are reluctant to interfere when parties have purported to conclusively settle their financial issues (see Quinn v Epstein Cole LLP, 2009 ONCA 662, 92 O.R. (3d) 1 at paras. 3-4). The Agreement at issue specifically stated that it was “in full and final satisfaction” of all outstanding claims between the parties and confirmed that the parties “had sufficiently disclosed their income, assets and liabilities existing at separation and the date of this Agreement.” The court concluded that in such circumstances, even if there was non-disclosure, it was not material.

The motion judge also correctly found that there was no evidence to support a finding that Mr. Tozer did not understand the nature or consequences of the Agreement. There was no allegation of duress or other misconduct, and both parties involved were sophisticated and had received independent legal advice.

In all of the circumstances, the motion judge correctly found no basis to exercise his discretion to set aside the Agreement.

(2) Yes. The motion judge correctly articulated the test for summary judgment, and it was open to him to properly conclude that there was no genuine issue requiring a trial.

(3) No.

Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293

[Hourigan, Miller and Paciocco JJ.A.]

Counsel:

A. Wallrap and D. Cook, for the appellant Thompson Fuels

A. Grant and M. Legault, for the respondent Technical Standards and Safety Authority

M. Forget and E. J. de Man, for the respondent G

Keywords: Torts, Negligence, Contributory Negligence, Contracts, Sale of Goods, Exclusion Clauses, Environmental Law, Liability for Spills, Damages, Mitigation, Apportionment of Liability, Set-Off, Civil Procedure, Settlements, Pierringer Agreements, Sufficiency of Reasons, Costs, Environmental Protection Act, R.S.O. 1990, c. E 19, s. 100.1, Fuel Oil, O Reg 213/01, s. 19, Rule 5 of the Sale of Goods Act, RSO 1990, c S.1, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), Ingels v Tutkaluk Construction, 2000 SCC 12 2010 SCC 4 Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, R v Sheppard, 2002 SCC 26, Ratych v. Bloomer, [1990] 1 SCR 940, Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819, Canadian Natural Resources Ltd. v. Wood Group Mustang (Canada) Inc., 2018 ABCA 305

Facts:

Thompson Fuels delivered 700 litres of fuel oil to two oil tanks located in the basement of a home owned by G. Almost immediately, oil began to leak from one of the tanks. G discovered the leak approximately one hour after the oil was delivered and spent the night collecting it in Tupperware containers. He thought he had collected all of the leaking oil. He was incorrect.

Hundreds of litres of oil leaked and drained through a crack between the basement wall and the floor. From there, it drained under G’s house, where some of it remained and soaked into the soil. The rest of the oil made its way through a drainage system under the house and into the city’s culvert, which carried it into nearby Sturgeon Lake. Over the next several months, a massive remediation project was undertaken as a consequence of the leak to both the contaminated land in the surrounding area and the damage to Sturgeon Lake. G’s house was demolished as part of the effort to remove contaminated soil.

G sued in negligence against Thompson Fuels, his fuel supplier and service technician, the Technical Standards and Safety Authority (the “TSSA”), which is the administrative authority responsible for regulation and enforcement of fuels in Ontario, and Les Reservoirs D’Acier de Granby Inc. (“Granby”), the manufacturer of the oil tanks.

Granby settled with G shortly after the trial began, entering into a Pierringer agreement which, in return for Granby’s settlement, released Granby from the action and removed the risk that co-defendants might have to pay Granby’s share of damages if Granby could not do so. At the conclusion of a 27-day trial, the trial judge found that Thompson Fuels was negligent for failing to perform inspections and to test the tanks, but that the TSSA was not because the inspection performed after the spill did not breach the duty of care owed to G. He also found that G had been contributorily negligent for failing to maintain his tanks by having them inspected annually, improper introduction of water into the tanks, and failure to promptly report the leak. He apportioned liability as follows: G 60% at fault and Thompson Fuels 40% at fault. Thompson Fuels was ordered to pay G $864,628 in damages and $465,000 in costs. Costs of the trial were also awarded to the TSSA. In a post-trial ruling on several motions, the trial judge held that Thompson Fuels did not have a right of set-off against the amount paid by Granby to G under the Pierringer agreement.

Thompson Fuels and G initiated separate appeals. Thompson Fuels appealed the trial decision, the post-trial ruling, and the costs awards. G appealed the trial decision only. The two appeals were heard together.

Issue:

(1) Did the trial judge err in assessing Thompson Fuels’ liability?

(2) Did the trail judge err in assessing the TSSA’s liability?

(3) Did the trial judge err in finding G contributorily negligent, or in assessing the extent of such negligence?

(4) Did the trial judge err in his apportionment of liability?

(5) Did the trial judge err in his assessment of damages?

(6) Did the trial judge fail to provide adequate reasons?

(7) Did the trial judge err in failing to reduce the amount awarded against Thompson Fuels by the amount of the Granby settlement?

(8) Did the trial judge err in dismissing the claim under s. 100.1 of the Environmental Protection Act (“EPA”) for contribution and indemnity against Thompson Fuels?

(9) Did the trial judge err in his costs award?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The trial judge did not err in assessing Thompson Fuels’ liability. Thompson Fuels argued that the trial judge made errors of fact or of mixed fact or law pertaining to whether G moved the tanks, whether a comprehensive inspection of the tanks occurred pursuant to Fuel Oil, O Reg 213/01 (the “Regulation”), and other factual issues. The Court found that the trial judge made a series of factual findings and findings of mixed fact and law that were open to him on the evidence.

Next, Thompson Fuels argued that the trial judge made legal errors by failing to (i) properly apply the “elements of negligence” and conduct a proper causation analysis, (ii) exercise his gatekeeper function with respect to opinion evidence given by G’s expert, and (iii) apply a contractual exclusion clause in the customer service agreement signed by G. The Court rejected these submissions, finding that the trial judge’s reasons on the issue of Thompson Fuels’ liability evinced a proper understanding of the principles of negligence, including causation, and were amply supported by the evidence. He also properly exercised his gatekeeper function in admitting expert evidence.

Finally, the trial judge correctly concluded that Thompson Fuels could not avoid liability on the basis of its standard form contract. The trial judge correctly applied Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 for the correct analytical approach to determining the enforceability of exclusion clauses. The trial judge correctly found that the exclusion clause does not expressly exclude liability for noncompliance under the Regulation. The trial judge correctly found that Thompson Fuels had failed to meet its obligation under the Regulation to carry out a comprehensive inspection. Exclusion clauses are to be strictly construed, and the burden is on the party relying on such a clause to prove that it is applicable in a particular case: Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210. The Court found that the trial judge had correctly concluded that it would be contrary to public policy to permit a fuel distributor to escape its legal obligation to conduct a comprehensive inspection as a precondition to supplying fuel to a customer.

(2) No. The trial judge did not err in assessing the TSSA’s liability. On appeal, Thompson Fuels and G made essentially the same arguments that they had unsuccessfully asserted at trial. They argued that the trial judge erred by not finding that the TSSA breached its duty of care to G and the public to reasonably inspect the property, monitor for any contamination escaping off site, to issue an order for remediation as required, and to ensure that G took reasonable steps to protect the environment. The Court found that the trial judge was correct in applying Ingels v Tutkaluk Construction, 2000 SCC 12 (“Ingles”) and then concluding that the TSSA owed G no private law duty of care, other than conducting an inspection with reasonable care. As the trial judge noted, neither G nor Thompson Fuels tendered any expert evidence regarding the standard of care of a prudent TSSA inspector. In these circumstances, G and Thompson Fuels failed to meet their onus to establish liability on the part of the TSSA.

(3) No. The trial judge did not err in finding G contributorily negligent or in assessing the extent of such negligence. Both G and Thompson Fuels argued that the trial judge erred in his analysis of contributory negligence. G argued that Thompson Fuels had not raised any issue when servicing the tanks. G also asserted that the trial judge erred in finding that the use of jerry cans to fill the tanks was negligent. The Court found that the trial judge properly found that G failed to take the steps of a reasonably prudent homeowner in the circumstances. Thompson Fuels argued that the trial judge erred in rejecting its argument that G was negligent in failing to disconnect a drainage pipe that connected his house to the city culvert. The Court found that the evidence did not support Thompson Fuels’ argument. The Court also rejected both G’s and Thompson Fuels’ arguments with respect to G’s mitigation efforts. The Court found that the trial judge had properly considered G’s efforts to mitigate, and did not err in finding that G was contributorily negligent for failing to report the leak.

(4) No. The trial judge did not err in his apportionment of liability. Thompson Fuels argued that the portion of liability assigned to G by the trial judge was too low given that G was involved in repeated patterns of negligent conduct. G argued that substantially more fault should be attributed to Thompson Fuels because it failed to comply with its statutory obligations. The Court found that the trial judge had carefully considered the comparative blameworthiness of the parties before correctly concluding that G was responsible for the majority of the loss. The apportionment of damages is a very fact-specific exercise. The trial judge is entitled to significant deference with respect to such findings, per Ingles. There was no basis for appellate interference with the trial judge’s apportionment of liability.

(5) No. The trial judge did not err in his assessment of damages. Thompson Fuels argued that the trial judge erred in his assessment of damages because the evidence at trial indicated that there had been pre-existing contamination on G’s property. The Court found that the trial judge conducted a detailed analysis of the remediation costs both on and off of G’s property. The trial judge had been mindful of the principle that damages should be awarded in a way that best ensures that the environment is returned to its pre-contamination condition, per Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819, at para. 63. The assessment of damages was correct, save for one adjustment. The trial judge erred in awarding damages to pay out a line of credit secured against the property because this was a “betterment”. This figure was included in the estimated cost to replace the home. The Court found that this would put G in a better position than he had been in before the leak. Therefore, damages should be reduced by deducting the line of credit payment.

(6) No. The trial judge did not fail to provide adequate reasons. Thompson Fuels had relied on R v Sheppard, 2002 SCC 26 to argue that the trial judge’s reasons were inadequate. Thomson Fuels stated that trial judges are required to provide reasons that inform the parties, the appellate court, and the public not only of the result of the case, but also shed light on how the judge reached his or her conclusion. The Court commented that inadequacy of reasons has become a boilerplate ground of appeal at the Court of Appeal. This case represented a high-water mark in this trend. The Court found that the trial judge wrote 79 pages of reasons wherein he meticulously considered both the evidence and the legal issues at play. His reasons were logically coherent, thoughtful, and clearly stated. Accordingly, this submission had no merit.

(7) No. The trial judge did not err in failing to reduce the amount awarded against Thompson Fuels by the amount of the Granby settlement. Thompson Fuels argued that the trial judge erred by failing to reduce the amount awarded against it by the amount of the Granby settlement or by failing to reduce the total damages by the settlement amount before applying the allocation of fault. The Court found that the trial judge correctly concluded that there was no double recovery until G had been fully compensated for his loss. This decision was consistent with the policy objectives underlying Pierringer agreements.

To consider the issue of overcompensation in Pierringer agreements, the Court adopted the analytical framework set out by the Alberta Court of Appeal (“ABCA”) in Canadian Natural Resources Ltd. v. Wood Group Mustang (Canada) Inc., 2018 ABCA 305, which was released after the trial judge’s decision. The Court also reviewed American case law that considered set-off in relation to Pierringer Agreements. These American cases indicated that although the liability of a non-settling defendant is limited to its proportionate share of fault, the non-settling defendant generally does not enjoy a further right of set-off against the amount of the settlement. The Court stated that although the rule in Canada is different, Canadian courts have not been indifferent to considerations of encouraging settlements and fairness to the non-settling defendant as seen in cases such as Ratych v. Bloomer, [1990] 1 SCR 940. The Court stated that determining whether the plaintiff has been overcompensated by reason of a partial settlement is not always a simple matter. In any event, courts should encourage settlements. Moreover, a responsible plaintiff who reaches a settlement agreement should not be punished for the fact that they appear to have reached a settlement for an amount greater than what the court ultimately awards.

(8) No. The trial judge did not err in dismissing the EPA, s. 100.1 claim for contribution and indemnity against Thompson Fuels. G argued that the trial judge erred in not finding Thompson Fuels liable for its proportionate share of the amount G was ordered to pay, pursuant to s. 100.1(1) of the EPA, to the City of Kawartha Lakes, which had completed the remediation. Section 100.1 of the EPA gives a municipality the right to issue orders against the “the owner of the pollutant or the person having control of the pollutant” within the meaning of the EPA. The Court found that the trial judge had properly rejected G’s argument that Thompson Fuels was the “owner” of the oil immediately before the leak. In the trial judge’s view, pursuant to s. 19, Rule 5 of the Sale of Goods Act, RSO 1990, c S.1, G became the “owner” of the oil upon delivery, rather than when payment for the oil was processed approximately five hours after delivery. Furthermore, Thompson Fuels was not in control of the pollutant immediately before the spill; it had lost control of the oil upon delivery. Thus, a claim for contribution and indemnity under the EPA was unavailable.

(9) No. The Court found that there was no basis for appellate interference with the trial judge’s costs award. Appellate courts will set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9. Having made a woefully inadequate offer to settle, Thompson Fuels could not seriously contend that the trial judge had erred by not reducing costs as a consequence of the offer.

Paulin v. Keewatin Patricia District School Board, 2019 ONCA 286

[Hourigan, Miller and Paciocco JJ.A.]

Counsel:

K. Dearlove, for the appellant

D. Lester, for the respondent
Keywords: Real Property, Commercial Leases, Covenants to Insure, Indemnification, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, s. 30(1), Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246, Madison Developments Ltd. v. Plan Electric Co., (1997) 152 D.L.R. (4th) 653 (C.A.), Orion Interiors Inc. v. State Farm Fire and Casualty Company, 2016 ONCA 164, Cummer-Yonge Investments Ltd. v. Agnew Surpass Shoe Stores Ltd., [1976] 2 S.C.R. 221, Pyrotech Products Ltd. v. Ross Southward Tire Ltd., [1976] 2 S.C.R. 35, T. Eaton Co. v. Smith et al., [1978] 2 S.C.R. 749, Bell Canada v. The Plan Group, 2009 ONCA 548, Lincoln Canada Services LP v. First Gulf Design Build Inc., [2007] O.J. No. 4167 (S.C.), Royal Host Limited Partnership (General partner of) v. 1842259 Ontario Ltd., 2018 ONCA 467, Canada Steamship Lines Ltd. v. R, [1952] UKPC 1

Facts:

A daycare employee was injured while at work, a daycare classroom operated by the appellant Corporation of the Municipality of Red Lake (“Red Lake”). Red Lake leased the space from Keewatin Patricia District School Board (the “School Board”). The employee brought action against the School Board but not Red Lake for injuries sustained. The School Board added Red Lake to the action by third party claim.

Two summary judgment motions were brought, one by each of the School Board and Red Lake. The School Board argued that pursuant to a lease agreement between the two of them, Red Lake was required to defend and indemnify the School Board for the plaintiff’s injuries. Red Lake argued the opposite: that the lease indemnified Red Lake. Red Lake also moved to strike the School Board’s third party claim.

The motion judge interpreted the lease and found in favour of the School Board, holding that Red Lake had a duty to defend and indemnify the School Board pursuant to the lease, and dismissed Red Lake’s motion to strike the third party claim. In particular, the motion judge found that a particular clause in the lease obliged Red Lake to insure against the risk of bodily injury to persons in the daycare. Furthermore, the lease provided that Red Lake was required to acquire an insurance policy and add the School Board as an “additional insured”.
Red Lake appealed the motion judge’s decision.

Issue:

(1) Did the motion judge err by failing to consider material clauses?

(2) Did the motion judge err in law by permitting insurance policy considerations relating to Red Lake’s obligation to insure to predominate over the insurance covenants?

(3) Did the motion judge err in law by concluding that Red Lake assumed the risk of the School Board’s own negligence in the absence of specific wording in the lease?

Holding:

Appeal dismissed.

Reasoning:

(1) No, the motion judge properly considered material clauses when interpreting the lease.

Red Lake argued that by finding a covenant in the lease obliged Red Lake to insure against the risk of bodily injury (Covenant 1), the motion judge failed to give meaning to the School Board’s covenant in the lease to insure against liability for bodily injuries sustained by third parties (Covenant 2).

The Court of Appeal found that Red Lake’s argument failed because the motion judge gave meaning to both Covenant 1 and Covenant 2. In particular, the motion judge interpreted the lease to provide that Covenant 2 was limited by Covenant 1. The motion judge was correct in finding that the lease obliged the School Board to insure for bodily injury to third parties generally, and obliged Red Lake to insure for particular instances of bodily injury.

(2) No, the motion judge did not permit insurance policy considerations to prevail over the obligations to indemnify under the lease. This is because the obligation for Red Lake to obtain insurance that included the School Board as an additional insured was a term of the lease itself.

(3) No, this argument has no bearing on the outcome of the motion judge’s decision. Red Lake argued that the indemnification wording in the lease was not clear enough to exempt the School Board’s liability from its own negligence. This argument did not apply where the party agreed to insure against the relevant negligence, as Red Lake had done in the lease.

SHORT CIVIL DECISIONS

2256157 Ontario Ltd v Fazi, 2019 ONCA 259

[Lauewers, Benotto and Brown JJ.A]

Counsel:

W. Kaufmann, for the respondent

Keywords: Appeal Book Endorsement, Appeal Dismissed

8466718 Canada Inc. v. 1779042 Ontario Ltd., 2019 ONCA 278

[Simmons, Juriansz and Miller JJ.A]

Counsel:

J.W.L. Griffiths, for the appellant 1447735 Ontario Ltd.

J. Laberge, for the respondent

Keywords: Contracts, Interpretation, Fraudulent Misrepresentation, Negligent Misrepresentation

Celik v TD Canada Trust, 2019 ONCA 270

[Simmons, Juriansz and Miller JJ.A]

Counsel:

J.R. Forget, for the appellant

J. Riewald, for the respondents

Keywords: Civil Procedure, Limitation Periods

Royal Bank of Canada v Everest Group Inc, 2019 ONCA 287

[Lauewers, Pardu and Nordheimer JJ.A]

Counsel:

D. Hamson, for the appellants

R. Moses, for the respondent

Keywords: Contracts, Civil Procedure, Summary Judgment

Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 283

[Doherty, Pardu and Nordheimer JJ.A]

Counsel:

K. O’Brien and K. Sachar, for the appellant

C. Martins and A. MacDonald, for the respondents

Keywords: Torts, Defamation, Libel, Bankruptcy and Insolvency, Civil Procedure, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(8)

1303943 Ontario Inc. v. Dajlan Troka (In Trust), 2019 ONCA 280

[Simmons, Juriansz and Miller JJ.A]

Counsel:

M.Z. Tufman and G.A.P. Tufman, for the appellants

M.G. Bawolska and K.L. Denny, for the respondents

Keywords: Contracts, Agreements of Purchase and Sale of Land, Remedies, Relief from Forfeiture, Vendors and Purchasers Act, R.S.O. 1990, c. V.2, s. 3

Goyal v. Niagara College of Applied Arts and Technology, 2019 ONCA 263

[Simmons, Juriansz and Miller JJ.A]

Counsel:

J. Field and D. Jozefacki, for the appellant

N. Hashemi and S. Gans, for the respondent

Keywords: Torts, Negligence, Duty of Care, Proximate Relationship, Damages, Pure Economic Loss

Steven v. DDR Americas Inc., 2019 ONCA 271

[Simmons, Juriansz and Miller JJ.A]

Counsel:

C. Foulon and B. Hassibi, for the appellants

J. Fyshe, for the respondent

Keywords: Employment Law, Wrongful Dismissal

Radio 1540 Ltd. v. Muhammad, 2019 ONCA 279

[Simmons, Juriansz and Miller JJ.A]

Counsel:

C. Cohen, for the appellants

P. Summers, for the respondent

Keywords: Credibility

CRIMINAL DECISIONS

R. v. Ochrym, 2019 ONCA 272

[Feldman, Trotter and Fairburn JJ.A]

Counsel:

J. Zita and M. Huberman, for the appellant

E. Whitford, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Driving While Disqualified, Sentencing

R. v. Lynn, 2019 ONCA 277

[Doherty, Pepall and Trotter JJ.A]

Counsel:

R. Sheppard, for the appellant

J. Mitschele and I. Glasner, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Sentencing, R. v. Farizeh, [1994] O.J. No. 2624 (C.A.), Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 10(1)

R. v. James, 2019 ONCA 288

[Pardu, Nordheimer and Harvison Young JJ.A]

Counsel:

J. Hanna, for the appellant

S. Hutchison and K. Flanagan, for the respondent

Keywords: Criminal Law, Drug Offences, Firearms Offences, Canadian Charter of Rights and Freedoms, s. 8, s. 24(2), Search and Seizure, Search Warrants, R. v. Morelli, [2010] S.C.R. 253, R. v. Sadikov, [2014] O.J. No. 376, R. v. Grant, 2009 SCC 32, R. v. McGuffie, 2016 ONCA 365, R. v. Rocha, 2012 ONCA 707, R. v. Cote, 2011 SCC 46, R. v. Cole, 2012 SCC 53, R. v. Caslake, [1998] 1 S.C.R. 51

R. v. Abdelnasir, 2019 ONCA 292

[Hoy A.C.J.O., Doherty and Zarnett JJ.A]

Counsel:

P-L. Frechette, for the appellant

K. Farrell, for the respondent

Keywords: Criminal Law, Robbery, Identification Evidence

R. v. Chis, 2019 ONCA 289

[Feldman, Fairburn and Nordheimer JJ.A]

Counsel:

A. Weisberg and M. Psutka, for the appellant

J. Cameron, for the respondent

Keywords: Criminal Law, First Degree Murder, Jury Instructions, R. v. Mendes, 2018 ONCA 354, R. v. Rodgerson, 2015 SCC 38

R. v. Mohenu, 2019 ONCA 291

[Feldman, Fairburn and Nordheimer JJ.A]

Counsel:

B. Vandebeek, for the appellant

M. Goswami, for the respondent

Keywords: Criminal Law, Fraud, Sentencing, R. v. Bankay, 2010 ONCA 799, R. v. Badhwar, 2011 ONCA 266, R. v. Castro, 2010 ONCA 718, R. v. Mathur, 2017 ONCA 403, R. v. Priest, (1996) 30 O.R. (3d) 538 (C.A.), R. v. Nassri, 2015 ONCA 316, R. v. Thurairajah, 2008 ONCA 91, R. v. Laine, 2015 ONCA 519, R. v. Lacasse, 2015 SCC 64, Criminal Code, R.S.C., 1985, c. C-46, s. 380(1)(a), s. 742.1(c)

R. v. N’Kansah, 2019 ONCA 290

[Rouleau, Miller and Fairburn JJ.A]

Counsel:

T. Yuen, for the appellant

T. Gilliam, for the respondent

Keywords: Criminal Law, Importing Drugs, Jury Instructions, Evidence, Good Character Evidence, R. v. Pannu, 2015 ONCA 677, R. v. Bryan, 2013 ONCA 97, R. v. Mensah, (2003) 170 O.A.C. 244, R. v. Burnett, 2018 ONCA 790, R. v. Phillips, 2008 ONCA 726, R. v. Elmosri, (1986) 23 C.C.C. (3d) 503 (Ont. C.A.), R. v. Potts, 2018 ONCA 294, R. v. Daley, 2007 SCC 53, R. v. Jacquard, [1997] 1 S.C.R. 314, R. v. Calnen, 2019 SCC 6, R. v. Jaw, 2009 SCC 42, R. v. Speers, 2017 ONCA 333, R. v. Villaroman, 2016 SCC 333, R. v. W.(D.), [1991] 1 S.C.R. 742

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.