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Good afternoon.

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

In Darmar Farms Inc. v Syngenta Canada Inc., the Court reinstated a claim for negligence in the premature commercialization of a genetically modified corn product that resulted in the ban of all North American corn in China. This flooded the North American market and reduced the sale price. The Court found that the motion judge should not have struck the claim as disclosing no reasonable cause of action. This was a novel claim and the full proximity analysis, known as the Anns/Cooper test, had not been performed. The Court revived the claim, to allow it to proceed to trial.


In Murphy v Savoie, the Court agreed with the trial judge that a Family Protection Coverage endorsement in a commercial auto policy extends to protect the spouse of the named insured if the accident occurred during a time when the named insured could have been using the vehicle. So long as the named insured had the ability to operate the motor vehicle at the time of the accident, it did not matter that he was not in fact “on duty”.

Other topics this week included family law, costs in the wills and estates context, contractual interpretation, assessment of accounts in the condominium law context, and stay pending leave to appeal to the Supreme Court of Canada.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

AM v CH (Publication Ban), 2019 ONCA 764

Keywords: Family Law, Custody and Access, Civil Procedure, Fresh Evidence, Divorce Act, RSC 1985, c 3 (2nd Supp), s16, Children’s Law Reform Act, RSO 1990, c C 12, s 24, s28, Health Care Consent Act, 1996, SO 1996, c 2, Sched A, s 10, Palmer v The Queen, [1980] 1 SCR 759

Lilydale Cooperative Limited v Meyn Canada Inc., 2019 ONCA 761

Keywords: Civil Procedure, Third Party Claims, Limitation Periods, Discoverability, Appropriate Means, Res Judicata, Issue Estoppel, Abuse of Process, Limitations Act, 2002, SO 2002, c 24, ss 5, 18, Toronto (City) v CUPE, Local 79, 2003 SCC 63, Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, Mega International Commercial Bank (Canada) v Yung, 2018 ONCA 429, 407 ETR Concession Co v Day, 2016 ONCA 709, Ridel   Goldberg, 2019 ONCA 636

Ting (Re), 2019 ONCA 768

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Bankruptcy and Insolvency, Bankruptcy and Insolvency Act, s. 269, Supreme Court Act, s. 65.1(1), Iroquois Falls Power Corporation v Ontario Electricity Financial Corporation, 2016 ONCA 616

Temedio v Niagara North Condominium Corporation No. 6, 2019 ONCA 762

Keywords: Real Property, Condominiums, Compliance Proceedings, Civil Procedure, Legal Fees, Assessment, Injunctions, Solicitors Act, s 4(1), 9(2), 11, Condominium Act, s 134(1) and (5), 85(1), (2), and (5), Plazavest Financial Corp. v National Bank of Canada (2000), 47 OR (3d) 641, at p 651 (CA)

Valley v. Hay, 2019 ONCA 770

Keywords: Family Law, Spousal Support, Child Support, Equalization of Net Family Property, Set-Off, Family Law Rules, O. Reg. 114/99, Hickey v Hickey, [1999] 2 SCR 518, Senos v Karcz, 2014 ONCA 459, Pirner v Pirner, [2005] OJ No 5093 (CA), Mason v Mason, 2016 ONCA 725, Ludmer v Ludmer, 2014 ONCA 827

Kahlon v ACE INA Insurance, 2019 ONCA 774

Keywords: Contracts, Interpretation, Insurance, Automobile, Coverage, Underinsurance, Contra Preferentem, Royal & Sun Alliance Insurance Company of Canada v Intact Insurance Company, 2017 ONCA 381, Progressive Homes v Lombard General Insurance Co of Canada, 2010 SCC 33, Chilton v. Cooperators General Insurance Co (1997), 32 O.R. (3d) 161 (CA), Pilot Insurance Co v Sutherland, 2007 ONCA 492, Scanlon v Castlepoint Development Corp et al, [1992] OJ No 2692 (CA)

Reynolds v Alcohol and Gaming (Registrar), 2019 ONCA 788

Keywords: Administrative Law, Alcohol and Gaming Regulation, Cannabis Regulation, Judicial Review, Civil Procedure, Appeals, Stay Pending Appeal, Crown Liability and Proceedings Act, 2019, SO 2019, c 7, Sched 17, s 11(2), Cannabis Licence Act, 2018, SO 2018, c 12, Sched. 2, s 48(1) and (2), General, O Reg 468/18, s 8 3(3)

Birtzu v McCron, 2019 ONCA 777

Keywords: Civil Procedure, Costs, Wills and Estates, Conversion, Capacity, Undue Influence, Suspicious Circumstances, Limitation Periods, Sufficiency of Reasons

Murphy v Savoie, 2019 ONCA 784

Keywords: Contracts, Insurance, Automobile, Coverage, Civil Procedure, Determination of Question of Law, Statutory Accident Benefits – accidents on or after November 1, 1996, s. 66, O.Reg. 403/96, Rules of Civil Procedure, Rule 21.01(1)(a), Intact Insurance Co. v Old Republic Insurance Co., 2016 CarswellOnt 7645 (SCJ), Royal & Sun Alliance Insurance Company of Canada v Intact Insurance Company, 2017 ONCA 381

Mississippi River Power Corporation v WSP Canada Inc., 2019 ONCA 771

Keywords: Contracts, Interpretation, Exclusion Clauses

Potentia Renewables Inc. v Deltro Electric Ltd., 2019 ONCA 779

Keywords: Contracts, Interpretation, Bankruptcy and Insolvency, Receiverships, Civil Procedure, Applications, Fresh Evidence, Rules of Civil Procedure, Rule 14.06(3), Bankruptcy and Insolvency Act, RSC 1985, c B-3, 671122 Ontario Ltd. v Sagaz Industries Canada Inc., 2001 SCC 59, Western Larch Limited v Di Poce Management Limited, 2013 ONCA 722

Central Park Ajax Developments Phase 1 Inc. v Ajax (Town)., 2019 ONCA 793

Keywords: Contracts, Interpretation, Real Property

Darmar Farms Inc. v Syngenta Canada Inc., 2019 ONCA 798

Keywords: Torts, Negligence, Duty of Care, Proximity, Anns/Cooper Test, Negligent Misrepresentation, Civil Procedure, Class Proceedings, Striking Pleadings, No Reasonable Cause of Action, Competition Act, RSC 1985, c  C-34, s 52, Rules of Civil Procedure, Rule 21.01(1)(b), Nash v. Ontario (1995), 27 OR (3d) 1 (CA), Das v George Weston Ltd., 2018 ONCA 1053, In re Syngenta AG MIR 162 Corn Litigation (2015), 131 F Supp 3d 1177 (D Kan), Kang v Sun Life Assurance Co. of Canada, 2013 ONCA 118, Mortazavi v. University of Toronto, 2013 ONCA 655, Taylor v Canada (Attorney General), 2012 ONCA 479, Pearson v Inco Ltd., [2001] OTC  919, Gaur v Datta, 2015 ONCA 151, Best v Ranking, 2015 ONSC 6269, Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 256 DLR (4th) 407, Web Offset Publications Ltd v Vickery (1999), 43 (OR) (3d) 802, R v Imperial Tobacco Canada Ltd., 2011 SCC 42, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Design Services Ltd. v. Canada, 2008 SCC 22, Martel Buildings Ltd. v. Canada, 2000 SCC 60, Sauer v Canada (Attorney General), 2007 ONCA 454, Hoffman v Monsanto, 2005 SKQB 225, Donoghue v Stevenson, [1932] AC 562

Short Civil Decisions

Apex Results Realty Inc. v Zaman, 2019 ONCA 766

Keywords: Contracts, Real Property, Buyer Representation Agreements, Civil Procedure, Summary Judgment, Counterclaims

Bennett v Bennett, 2019 ONCA 772

Keywords: Contracts, Interpretation, Civil Procedure, Settlements, Enforcement, Adjournments

Chapadeau v Devlin, 2019 ONCA 767

Keywords: Contracts, Civil Procedure, Costs

Marin v Baiu, 2019 ONCA 769

Keywords: Family Law, Custody and Access, Support, Equalization, Civil Procedure, Orders, Amending, Varying or Setting Aside, Rules of Civil Procedure, Rule 59.06(2)(a)

Konstantinopoulos v Papadopoulos, 2019 ONCA 773

Keywords: Real Property, Encroachments, Summary Judgment

Pagliuso v Primerica Financial Services Ltd., 2019 ONCA 778

Keywords: Civil Procedure, Originating Process, Statement of Claim, Service, Extension of Time

Ochnik (Trustee) v Belusa, 2019 ONCA 785

Keywords: Civil Procedure, Costs

Peoples Trust Company v Atas, 2019 ONCA 783

Keywords: Civil Procedure, Vexatious Litigants, RJR-MacDonald Inc.v Canada (Attorney General), [1994] 1 SCR 311

Raki Holdings Inc. v Lionheart Enterprises Inc., 2019 ONCA 786

Keywords: Contracts, Interpretation, Real Property

Southside Construction (London) Limited v Windsor (City), 2019 ONCA 787

Keywords: Civil Procedure, Oral Discovery, Examination of Non-Parties, R v 1504413 Ontario Limited, 2008 ONCA 253

Aljawhiri v Pharmacy Examining Board of Canada, 2019 ONCA 798

Keywords: Administrative Law, Regulated Professions, Pharmacists, Judicial Review, Jurisdiction, Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, RSO 1990, c C43, s 21(5), s 6(1)(a), Rules of Civil Procedure, Rule 3.02(1), Keewatin v Ontario (Ministry of Natural Resources) (2003), 66 OR (3d) 370 (Div Ct), Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 73 OR (2d) 73 (CA), Alliance to Protect Prince Edward County v Ontario (Environment and Climate Change), 2018 ONCA 576, 17 C.E.L.R. (4th) 167, and Predie v Ontario (Ministry of the Environment), 2006 CanLII 6450 (Ont CA), Sennek v Carleton Condominium Corporation No. 116, 2017 ONCA 154, Henderson v Henderson, 2014 ONCA 571, 324 OAC 138

Grey v TD Insurance Meloche Monnex, 2019 ONCA 795

Keywords: Civil Procedure, Appeals, Extension of Time, Small Claims Court, Courts of Justice Act, RSO 1990, c C43, s 21(5)

Criminal Decisions

R v Walker, 2019 ONCA 765

Keywords: Criminal Law, Attempted Murder, Aggravated Assault, Carrying a Concealed Weapon, Breach of Probation, Sentencing, Dangerous Offenders

R v Cafe, 2019 ONCA 775

Keywords: Criminal Law, First Degree Murder, Evidence, Admissibility, Post-Offence Conduct, Jury Instructions, Ineffective Assistance of Counsel

R v Premanthan, 2019 ONCA 780

Keywords: Criminal Law, Sexual Offences, Minors

R v SK (Publication Ban), 2019 ONCA 776

Keywords: Criminal Law, First Degree Murder, Jury Instructions, Sentencing, Youth Criminal Justice Act

R v Superales, 2019 ONCA 792

Keywords: Criminal Law, Sentencing, Victim Surcharge

R v Yehya, 2019 ONCA 781

Keywords: Criminal Law, Robbery, Jury Instructions

R v Gauthier-Carriere, 2019 ONCA 790

Keywords: Criminal Law, Impaired Driving Causing Death, Criminal Negligence Causing Death, Sentencing, Victim Surchage, Criminal Code, RSC 1985, c C-46, s 220, s 255(3), R v Lacasse, 2015 SCC 64, R v Burke, 2017 BCCA 381


CIVIL DECISIONS

AM v CH (Publication Ban), 2019 ONCA 764

[Pardu, Paciocco and Zarnett JJA]

Counsel:

J Phillips and J Tremain, for the appellant

B Ludmer, for the respondent

C Bellinger and S Stern, for the Office of the Children’s Lawyer

FACTS:

B., a 14-year-old boy, had been showing increasing resistance to visits with his father. The trial judge concluded that the mother systematically and successfully poisoned the child’s relationship with his father. The mother was clearly uninterested in participating in therapy with a view to encouraging the child to reconcile with his father.

The trial judge concluded that the child’s long-term best interests favoured a reversal of custody and a suspension of access, intended to be time-limited, to the mother and her allies, in the hopes that the father and son could achieve some rapprochement. Accordingly, by judgment dated October 30, 2018, the trial judge ordered an immediate custody reversal and prohibited contact between the child and his mother and siblings for six months, with custody and access to be reviewed at the end of the six-month period, subject to certain conditions. In his reasons on motion dated January 18, 2019, the trial judge further ordered no contact between the child and the mother’s extended family.

ISSUES:

(1) Did both parties meet the test to admit fresh evidence on appeal?

(2) Did the trial judge improperly apply the best interests of the child test?

(3) Did the judge err in imposing a reversal of custody?

(4) Did the trial judge improperly delegate decision-making power to therapists?

(5) Did the trial judge err in ordering the child to participate in reconciliation therapy without the boy’s consent to treatment?

HOLDING:

Appeal dismissed.

REASONING:

(1) Both parties met the test in Palmer v The Queen to admit fresh evidence on appeal: (1) could the evidence have been adduced by due diligence; (2) is the evidence relevant; (3) is the evidence credible; and (4) could the evidence reasonably be expected to affect the result? The Court admitted fresh evidence arising after the trial tendered by both parties, but was not in a position to weight conflicting evidence.

(2) The trial judge’s conclusions were reasonably available on the evidence and were entitled to deference. The mother and OCL do not dispute any of the factual findings that informed the best interests of the child analysis. It was therefore difficult to challenge the trial judge’s discretionary weighting of different factors, including the consequences of custody reversal, the mother’s abusive parenting, and the child’s wishes to stay with his mother despite her overt poisoning of his mind towards his father.

(3) No. The clear evidence about risks to the child if he stayed with his mother justified a change in custody and the no-contact order. The trial judge chose this remedy to promote the child’s long-term best interests, not to punish the mother. There is also no legal requirement for therapeutic support when custody reversal is contemplated, though it might be helpful in some cases. Here, it would be of doubtful utility, given the mother’s refusal to participate in that process.

(4) The Court saw no error in the trial judge setting a target date of 6 months to assess how the therapeutic process was unfolding. The therapists were to submit their reports by March 1, 2019, at which point the trial judge, not the therapists, retained ultimate authority to set a review date for custody and access.

(5) The order under appeal still left some scope for choice on the mother and son’s part as to participation in therapy and so the question of forcing treatment on an unwilling participant did not directly arise. It was true that if the child or the mother refused to participate in the therapeutic process, they would lose the opportunity to have a fixed date review of the change in custody, without the need to show a change of circumstances. However, the parties still had to consent to actual treatment. The court has broad discretion to make any orders related to custody and access, including therapeutic intervention, under both section 16(6) of the Divorce Act and section 28(1)(b) and (c) of the Children’s Law Reform Act. Section 10 of the Health Care Consent Act that prohibits a health practitioner from administering treatment to a capable person without that person’s consent is not a bar to orders for therapy because a child’s refusal to participate in a therapeutic intervention will not necessarily determine whether a court can make such an order. Rather, a court must assess the child’s maturity and weigh their wishes accordingly, in relation to the various “best interests” factors listed in section 24(2) of the Children’s Law Reform Act.

Lilydale Cooperative Limited v Meyn Canada Inc., 2019 ONCA 761

[Feldman, Roberts and Fairburn JJA]

COUNSEL:

SL Secord, for the appellants

KK Digambar and A Piotrowski, for the respondent

FACTS:

Lilydale suffered a fire in its poultry processing plant in 2004. It sued, inter alia, Meyn in both Alberta and Ontario. Meyn issued third party claims against Allied and Weishaupt. In 2010, Allied was successful in having the third party claim made against it by Meyn in Ontario struck on the ground that it was barred by the Limitations Act, 2002. Meyn took no position and did not attend the motion. In 2017, Weishaupt brought a motion to dismiss the third party claim against it on the same basis. The motion judge granted summary judgement in favour of Weishaupt but on the basis of issue estoppel, finding that the issues in Meyn’s third party claim against Weishaupt had already been litigated in the Allied motion. The motion judge declined to address the limitations period argument. Meyn appealed the decision.

ISSUES:

(1) Did the motion judge err by applying the doctrine of issue estoppel?

(2) Did the motion judge err by applying the doctrine of abuse of process?

(3) If yes, is Meyn’s third party claim against Weishaupt statute-barred?

(a) Does the risk of attornment and prejudice to the forum motion postpone the commencement of the limitation period

(b) Was it legally inappropriate to bring third party proceedings before the forum issue had been determined?

HOLDING:

Appeal dismissed.

REASONING:

(1) Yes. Issue estoppel is a branch of res judicata which requires three preconditions: the issue must be the same as one decided prior; the prior judicial decision must have been final, and the parties to both proceedings must be the same (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44). The motion judge concluded that even though Weishaupt was not a party to the Allied motion, the third issue estoppel precondition of mutuality was still met because Weishaupt was a party to the underlying proceeding commenced by Lilydale. It is unfair to bind Weishaupt to a decision that it had no right to participate in and to bind Meyn to a decision that it chose not to dispute. The mutuality precondition is not met because Weishaupt was not a party to the Allied motion.

(2) Yes. The abuse of process doctrine can be applied where the requirements of issue estoppel may not be met to prevent what is essentially the re-litigation of an issue. The motion judge found, in the alternative, that Meyn was precluded from bringing its third party claim against Weishaupt on the ground of abuse of process. The motion judge should have rejected this because by the time the Weishaupt motion was argued, the law with respect to sections 5 and 18 of the Limitations Act had changed by Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429 and because it was unfair to penalize Meyn for not participating in the Allied motion.

(3) Yes. Meyn relied under the fourth criterion that governs the discovery date for a claim under s. 5(1)(a) of the Limitations Act. Its position was that it was not legally appropriate to bring third party proceedings until the forum issue was decided in 2008 at which point, the limitation period began to run (407 ETR Concession Co v. Day, 2016 ONCA 709).

(a) No. Meyn argued that its position on the forum motion could have been prejudiced by filing the third party claim in Ontario. Tactical choices that arise during litigation do not delay the commencement of the limitation period (Federation Insurance Co of Canada v. Markel Insurance Co of Canada, 2012 ONCA 218). Meyn could have taken several avenues to avoid the consequences of a limitation period expiring and did not.

(b) No. A forum challenge does not resolve the dispute between the parties but merely moves the dispute to a court in another jurisdiction. It is thus not an alternative process (Ridel v. Goldberg, 2019 ONCA 636). In this case, there was no alternative resolution process to which Weishaupt was a party that could have resolved the issue between it and Meyn. Allowing parties to wait, at their own discretion, for other court or arbitral proceedings to conclude where the result could obviate the need to bring a claim that they know exists is inconsistent with the Limitations Act, 2002. Meyn discovered its third party claims in March 2006, did not bring them until November 2008, and was statute-barred as a result

Ting (Re), 2019 ONCA 768

[Brown JA]

COUNSEL:

R Rastorp and A Jazayeri, for the moving party A.H.T.

I Ishai, for the responding party C.B. and J.W., the Foreign Representatives and trustees in bankruptcy of J.H.T.

FACTS:

The moving party A.H.T. is the son of J.H.T., who has been adjudged bankrupt by a Hong Kong court. A judge of the Commercial List enforced letters of request from the Hong Kong court and ordered A.H.T. to produce documents relating to his father’s bankrupt estate and attend for examinations. The Court of Appeal quashed an appeal from that order. A.H.T. has applied for leave to appeal to the Supreme Court of Canada from that order. He then moved for a stay of the production and examination order pending the determination of his leave application

ISSUE:

Has the appellant met the test for granting a stay pending an application for leave to appeal to the Supreme Court?

HOLDING:

Motion granted, but on specific terms.

REASONING:

Yes. The judge applied the well-established test, which stipulates that the moving party must demonstrate: (i) there is a serious issue to be adjudicated on its proposed appeal, including that the appeal raises an issue of public or national importance; (ii) it will suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours granting the stay.

While the judge struggled to find that A.H.T.’s issue was of public importance, his submission that he would suffer irreparable harm was accepted on the basis that to refuse a stay would render A.H.T.’s appeal moot. With respect to the third consideration, the judge found that while a further four or five months in addition to the nearly two years since the Order does not constitute an unduly long delay, A.H.T.’s delays in bringing this motion weakened A.H.T.’s argument. For this reason, the judge concluded that the stay will be granted, but on terms that give some effect to the request for assistance by the Hong Kong court.

Temedio v Niagara North Condominium Corporation No. 6, 2019 ONCA 762

[Paciocco, Harvison Young and Zarnett JJA]

COUNSEL:

BJ Rutherford, for the appellant in appeal and respondent in cross appeal

E Savas, for the respondents in appeal and appellants in cross appeal

FACTS:

The appellant (“Ms. Temedio”) purchased a residential unit in Niagara North Condominium No. 6 (the “Corporation”) for her grandson and his mother, Ms. Watson. Disputes arose between Ms. Watson and the tenant of another unit in the building and the Corporation retained lawyers, giving rise to one set of legal bills (the “pre-litigation bills”). Proceedings were brought by the Corporation against Ms. Temedio and Ms. Watson seeking an order that Ms. Watson and her son permanently vacate the unit, or that she comply with the rules of the Condominium and refrain from causing undue noise (the “compliance proceeding”), giving rise to a second set of legal bills from the lawyers to the Corporation (the “compliance proceeding bills”).

Taylor J. heard the compliance proceeding and refused to order the eviction of Ms. Watson from the unit, instead ordering that Ms. Watson comply with the rules of the Condominium and that Ms. Temedio take reasonable steps to ensure that occurred. Taylor J. also dismissed Ms. Temedio’s request to remove the lien the Corporation had registered against her unit on January 20, 2015 to secure the pre-litigation bills of $1,714.20. Ms. Temedio sought to appeal the decision of Taylor J. but did so beyond the applicable time limit. Her motion to extend the time to appeal was opposed by the Corporation, and this generated a third set of legal bills from the lawyers (the “appeal bills”).

Ms. Temedio commenced an application for the assessment of legal bills rendered by the lawyers to the Corporation, on the basis that she was liable to pay the proper amount of those legal bills. She also sought an injunction restraining the Corporation from enforcing the lien it had registered against her condominium unit to secure payment of those legal bills, until after any assessment was concluded. The application judge referred the appeal bills to assessment in St. Catharines, but otherwise denied the relief Ms. Temedio had sought because she had not established special circumstances with respect to the pre-litigation bills or the compliance proceeding bills. Ms. Temedio appealed seeking the balance of the relief she sought, including that any assessment be in Toronto. The lawyers and the Corporation cross-appealed, arguing that no assessment at all should have been ordered.

ISSUES:

(1) Did the application judge err in not finding special circumstances for both the pre-litigation and compliance proceeding bills?

(2) Did the application judge err in exercising her discretion to order that the assessment take place in St. Catharines?

(3) Did the application judge err in dismissing the request for an injunction?

HOLDING:

Appeal allowed.

Cross-appeal dismissed.

REASONING:

(1) Yes. The court held that the application judge made an error in principle. The application judge failed to advert to and apply the principle that a third party should be given more favorable consideration than the client who received and paid the account: Plazavest Financial Corp. v. National Bank of Canada (2000) at p 651.

The application judge also failed to take into account the questions raised about the fees charged in Taylor J.’s finding about why the Corporation’s legal bills may have risen to what they were. Taylor J. voiced his disapproval of the conduct of the Corporation in seeking the extreme remedy of eviction and limited the Corporation to an award of $2,500 in costs for the compliance proceeding. This raised questions about the extent to which the fees charged may include amounts for pursuing the failed eviction strategy and the heavy-handed approach and the total fees of $52,000 charged for that proceeding. Taken together and viewed in light of the correct principle that a request of a third party like Ms. Temedio is entitled in law to favorable consideration, the Court found that sufficient special circumstances existed to warrant a review of the compliance proceeding bills at an assessment.

The Court also included the pre-litigation bills in the assessment because it did not view Taylor J.’s ruling about the ability of the Corporation to register a lien for those bills to be a ruling on their quantum or to preclude assessment to determine their appropriate amount. Based on the determination that the pre-litigation and compliance proceeding bills should proceed to assessment, the Court held that the cross appeal of the Corporation must fail.

(2) No. The Court declined to interfere with the order of the application judge as to the place of assessment because the application judge did not err in exercising her discretion to order that the assessment take place in St. Catharines.

(3) Yes. The application judge erred in finding that there was no irreparable harm due to an absence of evidence about Ms. Temedio’s grandson’s condition. Also, the application judge’s finding that the balance of convenience favoured the Corporation was premised on the limited assessment she ordered. Since all of the bills are to be assessed, and since according to the Corporation’s counsel an assessment in St. Catharines will not involve significant delay, the Court held that the balance of convenience favoured the granting of an injunction.

 

Valley v Hay, 2019 ONCA 770

[Juriansz, Benotto and Miller JJA]

COUNSEL:

C Dale, for the appellant

AP Williams, for the respondent on appeal

FACTS:

The parties were married in 2000 and have two children. They separated in 2014 and acrimonious litigation followed. The husband appealed the trial judge’s determination as to the wife’s entitlement to compensatory support, the attribution of income to both parties for child and spousal support purposes, the set-off of equalization and the determination not to award limited term support.

ISSUES:

(1) Did the trial judge err in determining that the wife was entitled to spousal support on a compensatory basis?

(2) Did the trial judge err in imputing income of $125,000 to the husband?

(3) Did the trial judge err by setting off the amount owing to the husband for equalization?

(4) Did the trial judge err by not awarding limited term spousal support?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The trial judge concluded that the wife “did forgo career opportunities during the marriage and that this has significantly impacted her ability to support herself”. This conclusion was open to him on the evidence that the wife moved to three cities to accommodate the husband’s career. Once the first child was born, she became the primary caregiver for the children.

(2) No. The imputation of income for support purposes is a finding of fact. It is not an exact science and the Court has repeatedly upheld findings involving a trial judge’s conclusions that “fairly reflect” parties’ financial circumstances. The fact that the self-represented parties were not precise in their evidence did not prevent the trial judge from arriving at a fair determination on the basis of the evidence accepted.

(3) No. The husband submitted that, because there was no retroactive support ordered, there should have been no set-off. The Court of Appeal disagreed with this. The trial judge stated that he took “this into account in [his] determination that no retroactive spousal support should be ordered”. Read in conjunction with his determination as to spousal support generally, the Court held that it was open to the trial judge to set off the amount owing to the husband for equalization.

(4) No. This was a 13 ½ year marriage in which the wife was the primary caregiver and entitled to support. There was no evidence that her circumstances would change at an identifiable time. It was open to the trial judge not to impose a limited term on her support.

Kahlon v ACE INA Insurance, 2019 ONCA 774

[Lauwers, Huscroft and Trotter JJA]

COUNSEL:

SA Gilbert, Q.C., for the appellant

J Adair and JA Cescon, for the respondent KSK

PJ Monaghan, for the respondent ACE INA Insurance

FACTS:

KSK was independently operating, on behalf of an Ontario company, an Ontario-based tractor with a trailer in Florida when he stepped out of the tractor to determine the cause of a traffic delay. He was subsequently struck and seriously injured by a Florida-based vehicle. The driver of the Florida-based vehicle was underinsured and the coverage was insufficient to cover the numerous economic losses KSK suffered as a result of the accident. The company he independently contracted with held a fleet insurance policy with ACE INA Insurance. KSK held a personal automobile insurance policy through AllState Insurance Company of Canada. Both policies had attached OPCF 44R Family Protection Coverage endorsements which provide insureds with coverage for a collision with an underinsured vehicle. The parties sought a determination as to whether either insurance company was obliged to provide underinsured coverage to KSK. The motion judge granted summary judgement to KSK and declared that AllState was obliged to respond to the underinsured coverage claim. It declared that ACE INA was not obliged to respond. AllState appealed. KSK cross-appealed with respect to underinsured coverage under the ACE INA policy.

ISSUES:

(1) Did the motion judge correctly hold that ACE INA is not obliged to provide underinsured coverage to KSK?

(2) Did the motion judge correctly hold that AllState is obliged to provide the underinsured coverage to KSK?

HOLDING:

Appeal allowed. Cross-appeal dismissed.

REASONING:

(1) Yes. The motion judge’s conclusion that ACE INA is not obliged to provide underinsured coverage to KSK was correct. He properly applied the reasoning in Royal & Sun Alliance Insurance Company of Canada v. Intact Insurance Company, 2017 ONCA 381 that the use of an unapproved insurance form does not necessarily render the form unenforceable. ACE INA’s endorsement applied to certain vehicles in the fleet which did not include the type of vehicle KSK was operating. Underinsured coverage is not statutorily mandated in Ontario.

(2) No. Proving a right to recover under the terms of an insurance policy is a burden which rests on the insured (Progressive Homes v. Lombard General Insurance Co of Canada, 2010 SCC 33). The interpretation of standard language of the policy, if ambiguous, should be construed against the insurer (Chilton v Cooperators General Insurance Co (1997), 32 OR (3d) 161 (CA)). Endorsements are not standalone insurance contracts but rather, are linked to the policy to which they are attached (Pilot Insurance Co v Sutherland, 2007 ONCA 492). The motion judge erred by not applying the exclusions noted expressly in the policy to the endorsements attached to the policy. His analysis rendered a term of the endorsement redundant, contrary to contract construction principles (Scanlon v  Castlepoint Development Corp et al, [1992] OJ No 2692 (CA)). While the endorsement’s language does tend to give it certain paramountcy over the policy, it is still tethered to the policy. Given that the endorsement does not qualify the term “other automobile,” the use of that term in the policy prevails. The policy excludes coverage for heavy commercial vehicles such as a tractor with a trailer.

Reynolds v Alcohol and Gaming (Registrar), 2019 ONCA 788

[Nordheimer JA (In Chambers)]

COUNSEL:

J Im, H Burnett and A Jin, for the responding party

G Finlayson, for 2707461 Ontario Inc.

G Azeff, for NG

R Linley and C DiMatteo, for SC, GM, 11522302 Canada Inc., RL and MH

W Abrams for 22008292 Alberta Ltd.

FACTS:

This matter involved the lottery process developed by the Government of Ontario to select a limited number of interested persons who may apply for a licence to operate retail cannabis stores. The moving parties are part of a group of 42 persons who were selected in the latest lottery, held on August 20, 2019, to be able to apply for licences to open such stores. After they were selected, the Registrar disqualified the moving parties on the basis that they did not provide an irrevocable letter of credit within five days of being notified of their selection. The Registrar then selected 11 new persons from the wait list to assume those available spots.

The moving parties brought an application for judicial review of the Registrar’s decision to disqualify them. They sought and obtained an order for a stay of the Registrar’s decision from a single judge of the Divisional Court pending the hearing of the application for judicial review. The Divisional Court released an endorsement dismissing the application for judicial review and lifting the stay. Prior to reasons being provided, the moving parties sought a stay of the Divisional Court’s decision pending their motion for leave to appeal being heard and determined by the Court of Appeal.

ISSUE:

Should a stay of the order of the Divisional Court be granted?

HOLDING:

Motion dismissed.

REASONING:

No. The test for a stay involves 3 factors: (1) There is a serious issue to be determined; (2) The party seeking the stay will suffer irreparable harm if a stay is not granted; (3) The balance of convenience favours the moving party: RJR-MacDonald Inc. v. Canada (Attorney General). Considering the factors as a whole, Nordheimer J.A. held that the balance favoured denying the stay.

Without the reasons for the decision of the court below, Nordheimer JA was limited in determining the apparent merits of the proposed appeal. However, he was satisfied that there was a serious issue to be tried based on the submissions that the parties made regarding the underlying dispute and the issues that were raised on the judicial review application. While not as significant of a consideration, Nordheimer J.A. also drew his conclusion from that fact that the Divisional Court reserved its decision on the matter, which, at the very least, suggested that the application raised issues that needed to be addressed.

Nordheimer JA pointed to several reasons that militated against any finding that the damages from the lost opportunity to pursue the commercial venture involved here were irreparable. First, he was not satisfied that s. 11(2) of the Crown Liability and Proceedings Act would exclude Crown liability, if the moving parties can establish that the Registrar did not act in good faith in reaching their regulatory decision. Second, he noted that counsel for the Registrar accepted that while the Registrar may not be personally liable for damages, because of s. 48(1) of the Cannabis Licence Act, the Crown would still be liable pursuant to s. 48(2) if the moving parties could eventually prove their claim. Third, he pointed to the fact that as of July 2020 the lottery process will be eliminated and any person will be able to apply for a licence to operate a retail cannabis store: General, O. Reg. 468/18, s. 8.3(3). Consequently, it was not clear that the moving parties, even if they wound up being denied a licence through this current process, would not be able to obtain a licence in the future.

Nordheimer JA found that the balance of convenience strongly favoured the responding party for at least three reasons. First, the Registrar has stipulated the process for awarding the opportunity to apply for a limited number of licences in this new market and courts should be loath to interfere with that process. Second, the public interest component favours the responding party because a stay would impede the public’s ability to purchase cannabis at a time when there is a very limited scope to do so given the limits on the retail stores that are open. Third, the moving parties were not proceeding from a position of strength when their position has already been reviewed by a court and it failed.

Birtzu v McCron, 2019 ONCA 777

[Doherty, Harvison Young and Thorburn JJA]

COUNSEL:

IM Hull and D Lok Yin So, for the appellant, CM

PM Callahan, for the respondent, JB

No one appearing for the respondent, VB

FACTS:

This is an appeal from the order of the trial judge, directing that the parties should bear their own costs of the proceeding.

CB died on April 29, 2009. He had two sons, JB and VB, and a daughter, CM. CB’s spouse had died in 2005.

In January 2006, CB executed a will, leaving his entire estate to his daughter, CM. Previous wills had distributed the estate among his three children and grandchildren. In January 2011, JB and VB commenced an action against CM and the estate. Specifically, they sought:

  • to set aside the will
  • a declaration that part of CM’s home be held in trust for the estate of CB
  • an accounting of the assets of the estate
  • damages against CM for conversion of estate property and breach of fiduciary duty

Following a 21-day trial, the trial judge ultimately dismissed all of the claims made by JB and VB. Having determined that the claims were statute-barred and that the will was valid in any event, the trial judge did not consider the merits of the other claims advanced by JB and VB.

In his brief costs endorsement, the trial judge made reference to two features of the trial proceedings before indicating that there would be no award as to costs. First, he noted that JB and VB had successfully established suspicious circumstances surrounding the 2006 will, but had failed in their claim on account of the limitation period. Second, the trial judge indicated that CM had given “misleading evidence” about her father’s mental state. He held that CM’s attempt to mislead the court could not be condoned and was “relevant” to his costs decision.

JB and VB commenced an appeal from the trial judge’s decision, which was dismissed for delay. They later unsuccessfully moved to set aside that dismissal. CM sought and obtained leave to appeal the costs order

ISSUE:

Did the trial judge err in directing that the parties should bear their own costs of the proceeding?

HOLDING:

Appeal allowed.

REASONING:

Yes. While costs awards are discretionary, the trial judge’s costs order was “plainly wrong”.

In making its determination, the court held that in suggesting that CM was successful only by virtue of the limitation period defence, the trial judge mischaracterized the detailed factual findings in his reasons for judgment. Specifically, while the trial judge accepted that JB and VB had shown suspicious circumstances in respect of the 2006 will, the trial judge ultimately found that CM had rebutted those suspicious circumstances and demonstrated her father’s testamentary capacity. The court thus held that JB and VB lost at trial on all fronts. Accordingly, the implication in the cost endorsement that success had been somehow divided at trial was not borne out by an examination of the trial judge’s reasons for judgment. CM was entirely successful at trial and in the normal course, she would have received her costs. Since CM was the sole beneficiary of the estate, this was not a case for costs payable by the estate.

The court further held the trial judge erred in law by focussing his costs analysis almost exclusively on the misleading nature of one aspect of CM’s evidence. The court noted that while misleading evidence cannot be condoned, the misleading evidence given by CM could not justify, on its own, a denial of costs in respect of a 21-day trial in which she was entirely successful in defending. CM’s misleading evidence had no effect on the length or conduct of the trial and it did not impact the trial judge’s findings. Consequently, while it was open to the trial judge to find that CM misled him concerning her recollection of the conversations with her father’s doctors, costs could not be used to punish CM.

Finally, the court noted that while trial judges need not provide a “grocery list” of the potentially relevant factors used to arrive at a costs award, it was incumbent on the trial judge in the instant case to more fully explain why, despite CM’s total success, she was denied her costs. The court noted that it was further problematic that the trial judge’s endorsement made no reference to the offers to settle made by CM or the complexity of the proceedings.

The costs order was thus varied to award costs to CM on a partial indemnity basis, fixed at $150,000. The court found that CM was further entitled to her costs of the appeal, which the court fixed at a total of $10,000, inclusive of the leave application, disbursements and relevant taxes. The costs were payable by both JB and VB

Murphy v Savoie, 2019 ONCA 784

[Lauwers, Fairburn and Zarnett JA]

COUNSEL:

AL Rachlin, for the appellant Aviva Insurance Company of Canada

S Zacharias, for the respondents

FACTS:

The appellant insurance company provided automobile insurance to Emblem Flowers, which includes a Family Protection Coverage endorsement. C.H. was the sole delivery driver of Emblem Flowers, and his spouse, E.B.M. was hit and injured by an uninsured third party driver. The appeal is on whether C.H.’s insurance extends to his spouse.

ISSUE:

Did the trial judge err in concluding that C.H.’s insurance coverage extended to his spouse?

HOLDING:

Appeal dismissed.

REASONING:

No. The trial judge concluded that since the accident occurred during a time when C.H. could have been using the vehicle, the insurance policy covered E.B.M. The appellant argued that C.H. had to actually be on duty at the time of the accident, and, since C.H. had not yet arrived to work by the time of the accident, his spouse was not covered. However, the Court agreed with the trial judge that, so long as C.H. had the ability to operate the motor vehicle at the time of the accident, it did not matter that he was not in fact “on duty”. This was also consistent with the wording in section 66 of the Statutory Accident Benefits – accidents on or after November 1, 1996.

Mississippi River Power Corporation v WSP Canada Inc., 2019 ONCA 771

[Juriansz, Benotto and Miller JJA]

COUNSEL:

HR Brodmann, for the appellant

DM Adams and ME Taft, for the respondents Michael Dent, Dent Engineering and 1009044 Ontario Ltd.

DA Tompkins, for the respondent M. Sullivan & Son Limited

CF Reil, for the respondent Harrington Plumbing and Heating Limited operating as Harrington Mechanical

JS Cavanagh, for the respondents WSP Canada Inc., Genivar Inc., William R. Walker Engineering Inc., Wm. R. Walker Engineering Inc. and Douglas Leask

FACTS:

The W respondents entered into a personal services contract (“PSC”) with the appellant which contained a clause limiting the liability of Walker. The appellant argued that the motion judge erred in her interpretation of the PSC. Specifically, the error is said to be in finding that the parties had agreed by their conduct to extend the terms of the PSC beyond design services to govern the construction phase of the project as well.

ISSUES:

(1) Did the motion judge err in her interpretation of the PSC by impermissibly using subsequent conduct of the parties to interpret that contract?

(2) Did the motion judge err in extending the benefit of the limit on liability to the remaining respondents?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The motion judge held that the PSC “was extended, by way of a stipulated price contract, so as to apply to services provided by W during the construction phase of the project.” The court was not persuaded that the motion judge made any error in principle or any other reviewable error.

(2) No. The motion judge found that the appellant and Walker intended to extend the benefit of the insurance covenant to the remaining respondents. It would have made no sense commercially for W to bargain to limit its own liability to $2 million, while leaving itself exposed to claims for contribution and indemnity from the remaining respondents.

Potentia Renewables Inc. v Deltro Electic Ltd., 2019 ONCA 779

[Tulloch, Roberts and Miller JJA]

COUNSEL:

F Platt and M Mazzuca, for the appellant

G Benchetrit and A Ziaie, for the respondent

FACTS:

The appellant, DEL, appealed from the order that it repay to the respondent, PRI, the amount in Canadian currency sufficient to purchase US$2 million and that, failing repayment, a receiver be appointed over the appellant’s assets, undertaking and property. The appeal turns on the application judge’s interpretation of documents exchanged between the parties and the procedural underpinnings of the proceedings initiated by them.

ISSUES:

(1) Did the application judge have no jurisdiction to grant any of the relief requested on the application, and should he have directed it to proceed to trial with the other two actions that were ordered to be heard together?

(2)  Did the application judge err in finding that the appellant had failed to obtain final approval of the Barbados project and had repudiated the ALOI, and in failing to admit fresh evidence and re-open the application on this issue?

(3) Did the application judge err in finding that the appellant had repudiated and breached the LOI to which it was not a party, and in failing to re-open the application on this issue?

(4) Did the application judge err in appointing KSV as receiver and in limiting KSV’s liability as receiver to gross negligence or wilful misconduct?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The application was properly brought under Rule 14 of the Rules of Civil Procedure. While, in accordance with Rule 14.06(3), the respondent should have stated the rule or statute under which the application was brought, this is a procedural, not a substantive, requirement. Its omission does not invalidate an application that otherwise complies in substance with Rule 14.02.

(2) No. It was open to the application judge to conclude that the documents proffered by the appellant, including the proposed fresh evidence, fell far short of demonstrating that final approval had been granted. His interpretation was reasonable and was owed deference on appeal. Moreover, he was not obliged to accept the fresh affidavits or re-open the application.

(3) No. The court found that the application judge had correctly observed, prior to its request to re-open the application, that the appellant had never advanced the position that it was not a party to the LOI.

(4) No. The court found that both these decisions represented a reasonable exercise of the application judge’s discretion as a case management judge of the Commercial List of the Ontario Superior Court of Justice in Toronto. There is no dispute that KSV was qualified to act as receiver. Further, the court was of the view that the application judge understood that he was not obliged to limit the receiver’s liability to gross negligence or wilful misconduct. The court agreed that KSV’s limited liability permitted the orderly execution of its duties without the concern that it would be subject to needless litigation.

Central Park Ajax Developments Phase 1 Inc. v Ajax (Town), 2019 ONCA 793

[Juriansz, Benotto and Miller JJA]

COUNSEL:

R Uukkivi and J Martin, for the appellants

JR Hard and RA Biggart, for the respondents

FACTS:

The appellants wished to develop land and entered into a development agreement with the respondent Town and its Chief Administrative Officer (the “Town”). The Town later sought to invoke the repurchase terms because the development application was incomplete. The appellants brought an action against the Town to determine whether there were grounds for termination of the agreement and repurchase. The trial judge found in favour of the Town. The appellant appealed.

ISSUES:

Did the trial judge err by concluding that the applicant’s application was incomplete and that the Town could invoke the repurchase clause?

HOLDING:

Appeal dismissed.

REASONING:

No. A term of the development agreement was that the appellant was to commence construction by a certain date. The appellant sought an extension from the Town which was refused but offered another solution whereby the appellant could submit a revised site plan to ensure a greater return on investment which the Town would consider and which extended the deadline by a year. The appellant’s revised site plan was ultimately rejected by the Town because it was incomplete and failed to respond to the Town’s stated concerns. Contrary to the appellant’s submissions, it was the Town which was awaiting further information, rending the revised site plan incomplete. The Town had the right to repurchase after it gave the proper notice.

Darmar Farms Inc. v Syngenta Canada Inc., 2019 ONCA 789

[Huscroft, Trotter and Zarnett JJA]

COUNSEL:

MJ Peerless, MD Baer and E Assini, for the appellant

B Kain, ES Block and S Sugar, for the respondents

FACTS:

The appellants brought a class action against the respondents for the commercialization of genetically modified corn, Agrisure, because it had not been approved for import by Chinese regulators and therefore led to all North American corn being barred from the Chinese market because it had intermingled with Agrisure. That in turn led to a glut of corn that could be sold only in the North American market, a fall in the price of corn, and losses to Darmar and prospective class members. Darmar alleges the losses are the result of Syngenta’s negligence in prematurely commercializing Agrisure, its negligent misrepresentations, as well as conduct that was in breach of the Competition Act, R.S.C. 1985, c. C-34.

Syngenta moved successfully under Rule 21.01(1)(b) of the Rules of Civil Procedure to dismiss the action on the basis that the statement of claim did not disclose a reasonable cause of action. The motion judge characterized Darmar’s claim as one for pure economic loss. She concluded it was plain and obvious the claims based in negligence could not succeed. And she held the conclusions that underpinned her analysis of the negligence claims were “equally dispositive” of the Competition Act claim.

ISSUES:

(1) Did the motion judge err in striking the claims of:

(a) negligent misrepresentation?

(b) negligence in prematurely commercializing Agrisure?

(2) Did the motion judge err in striking the claim for breach of s 52 of the Competition Act?

(3) Did the motion judge err in not granting leave for the appellant to amend the claim?

(4) Did the motion judge properly analyze the particulars the appellant delivered as part of its pleadings?

(5) Did the motion judge properly consider the perspective of potential class members in Quebec?

HOLDING:

Appeal allowed in part.

REASONING:

(1) (a) No. Darmar has no reasonable prospect of establishing a duty of care to support its negligent misrepresentation claims. Darmar’s allegation is that it relied on the representations to plant corn, but not to purchase and plant Agrisure. Darmar’s allegation is therefore of reliance for a purpose beyond the purpose of the Syngenta’s representations. This is beyond the scope of any relationship of proximity. Accordingly, on the facts alleged by Darmar, its reliance on Syngenta’s representations was outside the scope of any proximity between it and Syngenta; reliance by Darmar was for purposes other than that for which the representations were made. Nor could injury resulting from such reliance be reasonably foreseeable.

(1) (b) The Court disagreed with the motion judge’s characterization of the premature commercialization claim as a “misnomer” because it did not fall within a category of claim for pure economic loss which has previously been recognized. As a result, the motion judge did not properly consider whether a full proximity analysis and a consideration of reasonable foreseeability would reveal a reasonable prospect of success in establishing a duty of care sufficient to support the premature commercialization claim.

The claim for premature commercialization requires the establishment of a duty of care that is somewhat different than the duty that would support its misrepresentation claims. Darmar characterizes the duty it contends for as “a duty of reasonable care with respect to the timing, manner, and scope of Syngenta’s commercialization of its Viptera and Duracade products”, adopting that description from the US Decision In re Syngenta AG MIR 162 Corn Litigation (2015). Although the US Court did not precisely apply the Anns/Cooper test, what it did apply bears some similarity to it. More importantly though, there are several factors that Darmar pleads that, under the Anns/Cooper test, as it has been applied in the Court of Appeal, arguably support a relationship of proximity. The conclusion that these facts could arguably support a finding of the requisite proximity is supported by this court’s decision in Sauer v Canada (Attorney General).

Applying the same analysis as the Court in Sauer did to a similar case involving animal feed, the “range of persons” to whom a duty is owed by Syngenta’s product contained and imparted an attribute that would affect Darmar and its product in the same fashion by causing the closing of an important foreign market with consequential economic effects. Darmar would arguably fall within the “range of persons” to whom a duty is owed.

Foreseeability of the type of injury that occurred is expressly alleged. If Darmar is within the range of persons to whom a duty is owed, or in other words, if a relationship of proximity exists, nothing alleged takes Darmar outside the scope of the relationship of proximity. The injury that was allegedly foreseeable to Syngenta would thus be “reasonably” foreseeable.

The arguments of Syngenta that indeterminate liability concerns should prevent the finding of a duty of care not to negligently commercialize prematurely, either at the first stage of the Anns/Cooper test or as a residual policy concern at the second stage, are not persuasive at this point. In Deloitte, the majority said that where a first stage analysis results in a finding of a prima facie duty of care it will rarely be negated by indeterminate liability concerns at the second stage, because the finding of a proximate relationship and of reasonable foreseeability of injury determine in important ways the very matters that must be indeterminate for the concerns to persist: at para 44.

(2) No. The statement of claim does not identify why a Competition Act cause of action under s 36 would apply here. Indeed s 36, which provides a civil cause of action in some circumstances, is not mentioned. The only section mentioned is s 52, which does not itself create a civil cause of action.

(3) No. The motion judge’s decision not to grant leave to amend the claim, which had already been amended twice before the matter came before her, was a discretionary one subject to deference.

(4) No. The adequacy of the statement of claim here must be assessed from the standpoint of whether it discloses that Darmar has a reasonable cause of action. If Darmar does not, it does not matter that other potential class members may: Taylor v Canada (Attorney General).

(5) No. The issues here can be determined by reference to the pleading and particulars. Given that the documents appended to the particulars were advanced for points already appearing in the pleading and particulars, it was not necessary to further consider the propriety of using them: Janssen-Ortho, at para 92.


SHORT CIVIL DECISIONS

Apex Results Realty Inc. v Zaman, 2019 ONCA 766

[Juriansz, Benotto and Miller JJA]

Counsel:

S Ahmad as agent for the appellants

WR Wellenreiter, for the respondent

Keywords: Contracts, Real Property, Buyer Representation Agreements, Civil Procedure, Summary Judgment, Counterclaims

Bennett v Bennett, 2019 ONCA 772

[Huscroft, Paciocco and Nordheimer JJA]

Counsel:

M Simaan, for the appellants

MA Ross and S Walker, for the respondent

Keywords: Contracts, Interpretation, Civil Procedure, Settlements, Enforcement, Adjournments

Chapadeau v Devlin, 2019 ONCA 767

[Doherty, Harvison Young and Thorburn JJA]

Counsel:

R Chapadeau, self-represented

C Allen and M Andrews, for the respondents, MD, EV, and CB

Keywords: Contracts, Civil Procedure, Costs

Marin v Baiu, 2019 ONCA 769

[Lauwers, Fairburn and Zarnett JJA]

Counsel:

C Konstantinopolous, acting in person

P Gribilas, for the respondent

Keywords: Real Property, Encroachments, Summary Judgment

Konstantinopoulos v Papadopoulos, 2019 ONCA 773

[Lauwers, Fairburn and Zarnett JJA]

Counsel:

C Konstantinopolous, acting in person

P Gribilas, for the respondent

Keywords: Real Property, Encroachments, Summary Judgment

Pagliuso v Primerica Financial Services Ltd., 2019 ONCA 778

[Sharpe, Hourigan and Jama JJA]

Counsel:

D Yudashkin, for the appellant

CR Sainsbury and M Doherty, for the respondents

Keywords: Civil Procedure, Originating Process, Statement of Claim, Service, Extension of Time

Ochnik (Trustee) v Belusa, 2019 ONCA 785

[Lauwers, Fairburn and Zarnett JJA]

Counsel:

M Tubie, for the appellant

L Woods, for the respondent

Keywords: Civil Procedure, Costs

Peoples Trust Company v Atas, 2019 ONCA 783

[Strathy CJO, Doherty and Roberts JJA]

Counsel:

NA, acting in person

CJ Wallis, for the respondent Peoples Trust Company

Keywords: Civil Procedure, Vexatious Litigants, RJR-MacDonald Inc.v Canada (Attorney General), [1994] 1 SCR 311

Raki Holdings Inc. Lionheart Enterprises Inc., 2019 ONCA 786

[Strathy CJO, Doherty and Roberts JJA]

Counsel:

NA, acting in person

CJ Wallis, for the respondent Peoples Trust Company

Keywords: Civil Procedure, Vexatious Litigants, RJR-MacDonald Inc.v Canada (Attorney General), [1994] 1 SCR 311

Southside Construction (London) Limited v Windsor (City), 2019 ONCA 787

[Juriansz, Benotto and Miller JJA]

Counsel:

DB Williams, for the appellant, KB

JA Leber and E Grigg, for the respondent, Southside Construction (London) Limited

PJ Brunner, for the respondent, Montgomery Sisam Architects Inc. and JP Thomson Associates Ltd.

Keywords: Civil Procedure, Oral Discovery, Examination of Non-Parties, R v 1504413 Ontario Limited, 2008 ONCA 253

Aljawhiri v Pharmacy Examining Board of Canada, 2019 ONCA 798

[Nordheimer JA (Motion Judge)]

Counsel:

D Mata, for the moving party

K Byers, for the responding party

Keywords: Administrative Law, Regulated Professions, Pharmacists, Judicial Review, Jurisdiction, Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, RSO 1990, c C43, s 21(5), s 6(1)(a), Rules of Civil Procedure, Rule 3.02(1), Keewatin v Ontario (Ministry of Natural Resources) (2003), 66 OR (3d) 370 (Div Ct), Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 73 OR (2d) 73 (CA), Alliance to Protect Prince Edward County v Ontario (Environment and Climate Change), 2018 ONCA 576, 17 C.E.L.R. (4th) 167, and Predie v Ontario (Ministry of the Environment), 2006 CanLII 6450 (Ont CA), Sennek v Carleton Condominium Corporation No. 116, 2017 ONCA 154, Henderson v Henderson, 2014 ONCA 571, 324 OAC 138

Grey v TD Insurance Meloche Monnex, 2019 ONCA 795

[Nordheimer JA (Motion Judge)]

Counsel:

D Grey, in person

J Beresford, for the respondent

M Wiffin, as amicus

Keywords: Civil Procedure, Appeals, Extension of Time, Small Claims Court, Courts of Justice Act, RSO 1990, c C43, s 21(5)


CRIMINAL DECISIONS

R v Walker, 2019 ONCA 765

[Feldman, Fairburn and Nordheimer JJA]

Counsel:

F Addario and M Savard, for the appellant

J Patton, for the respondent

Keywords: Criminal Law, Attempted Murder, Aggravated Assault, Carrying a Concealed Weapon, Breach of Probation, Sentencing, Dangerous Offenders

R v Cafe, 2019 ONCA 775

[Lauwers, van Rensburg and Trotter JJA]

Counsel:

K Bailey and J Zita, for the appellant

E Nakelsky, for the respondent

Keywords: Criminal Law, First Degree Murder, Evidence, Admissibility, Post-Offence Conduct, Jury Instructions, Ineffective Assistance of Counsel

R v Premanthan, 2019 ONCA 780

[Huscroft, Paciocco and Nordheimer JJA]

Counsel:

M Halfyard, for the appellant

J Strasberg, for the respondent

Keywords: Criminal Law, Sexual Offences, Minors

R v SK (Publication Ban), 2019 ONCA 776

[Simmons, Tulloch and Brown JJA]

Counsel:

A Baiasu, for Her Majesty the Queen

J Lockyer, P Campbell, and E Tache-Green, for SK

Keywords: Criminal Law, First Degree Murder, Jury Instructions, Sentencing, Youth Criminal Justice Act 

R v Superales, 2019 ONCA 792

[Juriansz, Benotto and Miller JJA]

Counsel:

M Perlin, for the appellant

J Prosser, for the respondent

Keywords: Criminal Law, Sentencing, Victim Surcharge

R v Yehya, 2019 ONCA 781

[Juriansz, Benotto and Miller JJA]

Counsel:

N Jamaldin, for the appellant

L Bolton, for the respondent

Keywords: Criminal Law, Robbery, Jury Instructions

R v Gauthier-Carriere, 2019 ONCA 790

[Feldman, Benotto and Brown JJA]

Counsel:

M Gauthier-Carriere, in person

D Doucette, appearing as duty counsel

J Smith Joy, for the respondent

Keywords: Criminal Law, Impaired Driving Causing Death, Criminal Negligence Causing Death, Sentencing, Victim Surchage, Criminal Code, RSC 1985, c C-46, s 220, s 255(3), R v Lacasse, 2015 SCC 64, R v Burke, 2017 BCCA 381


 

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.