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Good afternoon.

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

In Thistle v Schumilias, an insurer refused to pay out on a life insurance policy on the basis that the insured had failed to disclose a pre-existing medical condition. The respondent commenced an action against the insurance company and during that litigation became aware of the potential professional negligence of the insurance agent who sold the policy.

The appellant brought a summary judgment motion to dismiss the action on the basis that any right to assert a claim against him arose when the respondent was an undischarged bankrupt, and therefore, the cause of action vested with his trustee in bankruptcy. The respondent brought a cross-motion seeking an order nunc pro tunc granting him standing to bring the action in his own name, notwithstanding his assignment in bankruptcy and subsequent discharge. The motion judge relied on section 187(9) of the Bankruptcy and Insolvency Act(“BIA”) to validate the claim and regularize the proceedings. The motion judge also found that the expiry of the limitation period was not an absolute bar to an order nunc pro tunc, and that the court could still exercise its discretion.

The Court set aside the motion judge’s decision, confirming that in circumstances where a motion is brought after the expiry of a limitation period, a nunc pro tunc order cannot be made for the simple reason that such an order is of no practical effect. It would only serve to backdate the order to the date the motion was brought, which was already beyond the expiry of the limitation period. In addition, the Court held that even if the respondent was successful in obtaining a nunc pro tunc order, the cause of action arose during the respondent’s bankruptcy, constituted property of the bankrupt under section 2 and section 67(1)(c) of the BIA, and thus vested in the trustee in bankruptcy.

Other topics covered this week included occupiers’ liability, Anti-SLAPP, a Hague Convention child abduction application, net family property, enforcement of foreign judgments, vexatious litigants and extensions of time.

Please join me and Lea Nebel at our “Top Appeals of 2019” CLE dinner program to take place at the OBA on Thursday, February 27, 2020. Three decisions will be featured. The first is Darmar Farms v Sygenta, which deals with the potential new tort of “premature commercialization” and pure economic loss in product liability context. Our panelists for that decision are Mike Peerless, who represents the plaintiff, and the President of the Advocates’ Society, Scott Maidment, who has a depth of experience litigating product liability cases. The second is The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. Counsel who acted on that case, Miranda Spence and Matthew Lerner, will be joining us. The third decision is Wright v Urbanek, which deals with the scope of the doctrines of abuse of process and collateral attack. John O’Sullivan, who acts for the appellant in seeking leave to the Supreme Court, will be speaking about this decision.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71

Keywords: Torts, Defamation, Anti-SLAPP, Trespass, Courts of Justice Act, R.S.O. 1990, c. C. 43 s. 137.1, Trespass to Property Act, R.S.O. 1990, c. T.21, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, Montour v. Beacon Publishing Inc., 2019 ONCA 246, St. Lewis v. Rancourt, 2015 ONCA 513, Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, Rainy River (Town) v. Olsen, 2017 ONCA 605

Youssef v. Misselbrook, 2020 ONCA 83

Keywords: Torts, Occupiers’ Liability, Negligence, Contributory Negligence

Kraemer v. Kraemer, 2020 ONCA 91

Keywords: Family Law, Net Family Property, Gifts

Farsi v. Da Rocha, 2020 ONCA 92

Keywords: Family Law, Custody and Access, Child Abduction, Habitual Residence, Convention on the Civil Aspects of International Child Abduction, Can. T. S. 1983 No. 35 (Hague Convention), Office of the Children’s Lawyer v. Balev, 2018 SCC 16, H.L. v. Canada (Attorney General), 2005 SCC 25, Salomon v. Matte‑Thompson, 2019 SCC 14

Thistle v. Schumilas, 2020 ONCA 88

Keywords: Torts, Professional Negligence, Insurance Brokers, Life Insurance, Bankruptcy and Insolvency, Property of Bankrupt, Choses in Action, Civil Procedure, Limitation Periods, Orders, Nunc Pro Tunc, Bankruptcy and Insolvency Act, RSC, 1985, c B-3, s2, s41(11), s67(1)(c), s187(9), Canadian Imperial Bank of Commerce v Green, 2015 SCC 60

Activa Trading Co. Ltd. v. Birchland Plywood-Veneer Limited, 2020 ONCA 93

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Fresh Evidence, Rules of Civil Procedure, Rule 2.1, Palmer v. The Queen, [1980] 1 S.C.R. 759

Dupuis v. Waterloo (City), 2020 ONCA 96

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time

Sleep Number Corporation v. Maher Sign Products Inc., 2020 ONCA 93

Keywords: Contracts, Sale of Goods, Civil Procedure, Conflict of Laws, Foreign Judgments, Enforcement, Jurisdiction, Real and Substantial Connection, Forum Selection Clause, Summary Judgment, 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA 354, Old North State Brewing Company Inc. v. Newlands Services Inc. (1998), 58 B.C.L.R. (3d) 144, Hollinger International v. Hollinger Inc., 2005 CanLII 4582 (Ont. Div. Ct.)

Short Civil Decisions

Temedio v. Niagara North Condominium Corporation No. 6, 2020 ONCA 81

Keywords: Real Property, Condominiums, Civil Procedure, Costs

Criminal Decisions

United States v. Okorhi, 2020 ONCA 89

Keywords: Criminal Law, Fraud, Extradition

R. v. D.K. (Publication Ban), 2020 ONCA 79

Keywords: Criminal Law, Evidence, Sexual Assault Causing Bodily Harm, Sexual Assault, Evidence, Credibility, Prior Inconsistent Statement, Sentencing, Pre-Sentence Custody, Criminal Code, ss. 271, 272(1)(c), 276, 278, Canada Evidence Act, R.S.C. 1985, c. C-5, s. 11, R. v. Graham, 2019 ONCA 347, R. v. Khan, 2017 ONCA 114, R. v. Stirling, 2008 SCC 10, R. v. Dinardo, 2008 SCC 24, R. v. Divitaris(2004), 188 C.C.C. (3d) 390 (Ont. C.A.), R. v. D.C., 2019 ONCA 442, R. v. S.K., 2019 ONCA 776, R. v. Fair(1993), 16 O.R. (3d) 1 (C.A.), R. v. M.C., 2014 ONCA 611, R. v. J.A.T., 2012 ONCA 177, R. v. L.S., 2017 ONCA 685, R. v. Goldfinch, 2019 SCC 38, R. v. Darrach, 2000 SCC 46, R. v. Riley(1992), 11 O.R. (3d) 151 (C.A.), R. v. C.F., 2017 ONCA 480, R. v. M.T., 2012 ONCA 511, R. v. Strojny, 2019 ONCA 329, R. v. A.C., 2018 ONCA 333

R. v. N., 2020 ONCA 85

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Sentencing, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2), Canadian Charter of Rights and Freedoms, ss. 8, 9, R. v. Lacasse, 2015 SCC 64

R. v. I., 2020 ONCA 90

Keywords: Criminal Law, Sentencing, R. v. Lifchus, [1997] 3 S.C.R. 320

R. v. V.L., 2020 ONCA 87

Keywords: Criminal Law, Sexual Assault, Sentencing, R. v. Lacasse, [2015] 3 S.C.R. 1089

Ontario Review Board Decisions

M. (Re), 2020 ONCA 80

Keywords: Ontario Review Board, Not Criminally Responsible, Detention Order, Conditional Discharge, Mental Health Act, R.S.O. 1990, c. M.7


CIVIL DECISIONS

Labourers’ International Union of North America, 2020 ONCA 71

[Rouleau, Roberts and Harvison Young JJ.A.]

Counsel:

Andrew Ostrom, for the appellant

Andrew Faith and Brookelyn Kirkham, for the respondents

Keywords: Torts, Defamation, Anti-SLAPP, Trespass, Courts of Justice Act, R.S.O. 1990, c. C. 43 s. 137.1, Trespass to Property Act, R.S.O. 1990, c. T.21, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, Montour v. Beacon Publishing Inc., 2019 ONCA 246, St. Lewis v. Rancourt, 2015 ONCA 513, Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, Rainy River (Town) v. Olsen, 2017 ONCA 605

facts:

The respondents brought a defamation action against the appellant, a former member of the respondent union, Local 183, based on internet posts that the appellant had made. The motion judge granted the respondents’ motion for summary judgment and granted them injunctive relief.

The appellant argued on appeal that the motion judge erred in her application of the weighing test to be carried out on the s. 137.1 Anti-SLAPP motion in that: first, any evidence of harm to the respondents was insufficient to outweigh the public interest in the appellant’s free expression; second, she understated the public interest value of the expressive content of the appellant’s posts. Furthermore, he argued that the injunctive relief was overly broad.

issues:

Did the motion judge err:

(1) in her dismissal of the appellant’s s. 137.1 motion?

(2) in the injunctive relief she granted?

holding:

Appeal allowed in part.

reasoning:

(1) No. The motion judge correctly articulated and applied the test set out in 1704604 Ontario Ltd. v. Pointes Protection Association. There was no identifiable legal error, nor was there a palpable and overriding factual error. The court did not see any error in her balancing of the competing interests that would permit appellate intervention. She properly considered the issue of the reputational damage to the respondents. It was not necessary for her to find monetary damages because “a serious libel does not always manifest itself in financial losses”: Montour v. Beacon Publishing Inc.

Similarly, the motion judge carefully considered the public interest in the expressive content of the appellant’s posts. Her conclusion that the harm suffered by the respondents outweighed the public interest in protecting the appellant’s expression was well-grounded in the evidence and free from error. For this reason, her decision must be granted deference.

(2) Yes. The appellant argued that the injunction prohibiting any statements or posts about any of the respondents and restricting his attendance was overly broad, and that the motion judge erred in failing to consider whether a more restricted injunction would have sufficed.

With respect to the publication injunction, the court recognized that while a broad ongoing injunction may be appropriate in some circumstances, it is an extraordinary remedy and must be broad enough to be effective, but no broader than reasonably necessary to effect compliance. The evidence before the court did not support a permanent blanket injunction enjoining the appellant from making or publishing any comments about the respondents. There was no evidence to support a finding that the appellant was incapable of discerning between defamatory comments and legitimate criticism and, therefore, the injunction should not have been cast so broadly that it captured non-defamatory statements.

The court then considered the provisions of the judgment that permanently restricted the appellant’s attendance near the respondents “and their families” and that prohibited any communications directly with the respondents. Given their potentially broad and restrictive scope, permanent injunctions must be particularly tailored to the specific circumstances of the case in which they are ordered. It is therefore incumbent on the court asked to consider such relief to conduct a careful analysis and to limit the breadth of any permanent injunction to only what is reasonably necessary to remedy the specific wrong committed and to prevent further harm to the claimant.

While the motion judge adverted to the circumstances in which permanent injunctions against the publication of defamatory statements may be warranted, she did not reference any criteria respecting the advisability of granting a permanent injunction restraining the appellant’s movements or communications. A permanent injunction is a remedy that may be granted once a legal right or a cause of action has been finally adjudicated and proven on a balance of probabilities. Since defamation was the only tort that the motion judge found to have been established, the remedy sought and granted should have been only in relation to and for the purpose of preventing a continuation of that tort. Accordingly, to justify the granting of a permanent injunction restricting the appellant’s movements or communications, the motion judge would have had to conclude that a permanent injunction restricting the appellant’s movements or communications with the respondents was reasonably necessary to remedy the defamation and to prevent the defamation campaign from continuing. She did not do so. Therefore, the motion judge erred in failing to carry out the required analysis and make appropriate findings to determine whether such a broad permanent injunction was necessary. The movement and communications paragraphs of the injunction order were set aside. The Court noted that the respondents were not without recourse. If necessary, other remedies were available to restrain the appellant’s behaviour, such as issuing a trespass notice under the Trespass to Property Act, R.S.O. 1990, c. T.21, which the respondent already did, or pursuing a peace bond under the Criminal Code(Rainy River (Town) v. Olsen, 2017 ONCA 605).


Youssef v. Misselbrook, 2020 ONCA 83

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

Counsel:

Alan L. Rachlin, for the appellant

C. Kirk Boggs and Darcy Romaine, for the respondent

Keywords: Torts, Occupiers’ Liability, Negligence, Contributory Negligence

facts:

The respondent sustained serious injuries when he lost control of his motorcycle after colliding with one of five donkeys that had escaped through a gate of the appellant’s tenanted rural property. On a motion for summary judgment, the motion judge concluded that the appellant was negligent as a residential landlord of rural property because it had no policy or procedure in place to inspect or repair the fences, although it had an obligation to do so. The motion judge reserved the issue of damages for trial.  The appellant appealed the dismissal of its motion for summary judgment and the granting of judgment in favour of the respondent.

issues:

(1) Did the motion just err in his assessment of the appellant’s liability as a landlord?

(2) Did the motion judge err in finding that it was negligent for the appellant to have failed to carry out regular inspections and notice that the gate immediately adjacent to a roadway was unlocked?

(3) Did the motion judge err in granting judgment in favour of the respondent without determining the question of contributory negligence?

holding:

Appeal allowed in part.

reasoning:

(1) No. The Court was not persuaded that the motion judge made any reversible error. The particular facts of the case drove the motion judge’s causation analysis, which was reasonable and subject to appellate deference. The appellant admitted that it was responsible for the condition of the fence. As a result, it made no difference to the outcome of the motion or this appeal whether the tenancy was treated as a residential or a commercial tenancy or whether the appellant was a landlord in or out of possession of the tenanted property. In either case, the appellant’s duties to maintain the structural integrity of the fence were the same.

(2) No. The unlocked gate created a potential hazard to motorists in that it served as a breach of the fence through which livestock could and did escape onto the roadway. The Court held that it was open to the motion judge to conclude that the appellant had failed in its undertaken duty to secure the structural integrity of the fence.

(3) Yes. The Court agreed that the motion judge did not appear to have dealt with the question of contributory negligence. However, this was not the focus of the parties’ submissions before the motion judge on the appellant’s summary judgment motion. Therefore, the issue of contributory negligence, along with damages, was remitted for determination at trial.


Kraemer v. Kraemer, 2020 ONCA 91

[MacPherson, Sharpe and Jamal JJ.A.]

Counsel:

Patrick J. Kraemer, for the appellant LK

Terrah Smith, for the respondent GS

SK, acting in person

Keywords: Family Law, Net Family Property, Gifts

facts:

LK and SK were married and jointly owned a home. SK’s parents GS and JS paid over $216,000 for improvements to the home, including a “granny suite.” LK, SK, GS, and JS all entered into an agreement where LK and SK licensed the granny suite to GS and JS for $165,000 secured by a demand mortgage agreement. LK and SK’s marriage collapsed and GS unsuccessfully sought to register the mortgage. GS and SK commenced legal proceedings against LK and all three parties agreed that a summary judgment motion was the appropriate method of resolution, the effect of which was that GS was owed $165,000 and that the mortgage would be included in the Net Family Property calculation of LK and SK as a debt owed equally to GS. At the motion hearing, however, LK argued that the $165,000 was a gift, an argument that was rejected because of the existence of a valid and enforceable license agreement. LK appealed.

issues:

(1) Did the motion judge err in determining that the license agreement was a valid license?

(2) Did the motion judge err by determining that the money paid for the construction of the granny suite was not a gift?

(3) In the alternative, if the agreement is a license and demand mortgage, should the $165,000 be discounted by the portion of time that GS had lived in the granny suite?

holding:

Appeal dismissed.

reasoning:

(1) No. The parties were all represented by counsel when drawing up the license agreement. The contention that the license agreement was actually a lease had no basis.

(2) No. If the $165,000 was intended to be a gift, there would have been no need to engage separate lawyers to negotiate what ended up as a 12-page license agreement with a mortgage agreement attached as a schedule.

(3) No. The license agreement stipulated that GS waived interest on the $165,000 while he lived in the granny suite and as a result, the principal should not be deducted.


Farsi v. Da Rocha, 2020 ONCA 92

[Gillese, Rouleau and Fairburn JJ.A.]

Counsel:

Steven M. Bookman and Gillian Bookman, for the appellant

Darlene Rites, for the respondent

Keywords: Family Law, Custody and Access, Child Abduction, Habitual Residence, Convention on the Civil Aspects of International Child Abduction, Can. T. S. 1983 No. 35 (Hague Convention), Office of the Children’s Lawyer v. Balev, 2018 SCC 16, H.L. v. Canada (Attorney General), 2005 SCC 25, Salomon v. Matte‑Thompson, 2019 SCC 14

facts:

The child in question was born in Toronto and raised there by both parents until October 2018, when she was six months old. At that time, her mother took her to France. Four months later, in February 2019, the father travelled to France and brought the child back to Ontario. The parents had very different versions of the circumstances in which the child was both taken to France and brought back to Ontario. Each says the other wrongfully took the child or wrongfully retained her or both.

The mother brought a Hague Convention application in Ontario in which she alleged that the child was habitually resident in France in February 2019 and had been wrongfully removed to Canada. She asked the court to order that the child be returned to France.

The application judge dismissed the application. She found that the child was habitually resident in Canada until October 28, 2018, when the parties’ relationship ended. She further found that the child’s habitual residence remained Canada, despite her having lived in France with her mother from mid-October 2018 to the end of February 2019. Because the child was not habitually resident in France in February 2019, the provisions of the Hague Convention did not apply.

On appeal, the mother contends that the application judge’s decision offends the Hague Convention and the principles set out by the Supreme Court in Office of the Children’s Lawyer v. Balev, 2018 SCC 16.

issues:

(1) Did the application judge err by focusing on the wrong time frame and issue?

(2) Did the application judge err in her determination of the child’s habitual residence?

(3) Did the application judge err in finding that the appellant returned to full-time employment when the child was three months old?

(4) Did the application judge err by improperly permitting the respondent to file further affidavit evidence late in the process?

holding:

Appeal dismissed.

reasoning:

(1)No. The Court did not accept the appellant’s submission that the application judge focused on an issue that she had no jurisdiction to determine: whether the child was wrongfully retained in France after the end of October 2018.

The Court agreed with the application judge that, in determining the child’s habitual residence “immediately before” the alleged wrongful removal of February 28, 2019, the hybrid approach in Balevrequired that she look at the “entirety” of the child’s situation, “unencumbered by rigid rules, formulas, or presumptions”. In this case, the entirety of the child’s situation included her habitual residence on October 28, 2018, and the circumstances under which she remained in France after that date.

Accordingly, in the Court’s view, the application judge made no error in deciding where the child was habitually resident on October 28, 2018, and her consideration of the circumstances in which the child remained in France for the ensuing four months.

(2) No. The Court disagreed with the appellant’s argument that the application judge failed to recognize that Balevsays that one parent can unilaterally change a child’s habitual residence. In Balev, a majority of the Supreme Court states that there is no rule that the actions of one parent cannot unilaterally change the habitual residence of a child. In any event, the application judge’s finding that the child’s habitual residence, on February 28, 2019, remained Canada was not based on a misguided understanding of the role that one parent’s unilateral actions might play, as submitted by the appellant.

With regard to the role of parental intention, the application judge took into account parental consent in accordance with Balev. She found that the respondent did not consent to the appellant relocating with the child to France – he consented to the child being in France with the appellant for the two-week period from October 14 to October 28, 2018. Consequently, the application judge found that when the two-week period expired at the end of October 2018, the appellant wrongfully retained the child in France. The application judge made no palpable and overriding error in these findings, nor did she place undue weight on the fact of the wrongful retention.

The application judge rejected the appellant’s argument that she was obliged to find that, on February 28, 2019, the child’s habitual residence was France because for an infant, the focal point of the infant’s life is who looked after her and in the four-month period leading up to February 28, it was the appellant who looked after the child. In the circumstances of this case, this was not a palpable and overriding error. The Court further found that there was no palpable and overriding error in the application judge’s finding in respect of the focal point of the child’s life immediately before the alleged wrongful removal. She properly articulated the legal principles that govern this matter.

(3) No. The application judge found that the appellant returned to full-time employment when the child was three months old (the first finding). She also found that the appellant vacationed in France, with the child, from July 14 to August 24, 2018 (the second finding). At that time, the appellant says the child was three months old. The appellant argued that the first finding is inconsistent with the second and must be the result of a palpable and overriding error.

The Court rejected this argument and did not accept that the application judge made a palpable and overriding error in making the first finding. The Court also rejected the appellant’s second submission on this ground of appeal that the application judge accepted the respondent’s evidence simply because she found the respondent credible. The Court found that this fundamentally misstated the way in which the application judge approached the task of making findings of fact. On every key issue, the application judge set out the main conflicts in the evidence of the parties. She then gave careful, detailed reasons explaining her finding on the issue and why she made it. Importantly, the application judge thoroughly canvassed all the evidence on each such issue, including the independent evidence of third parties and contemporary documentation. Her findings were solidly grounded in the totality of evidence before her.

(4) No, the application judge made no error in admitting the sister’s affidavit. The appellant argued that she had no opportunity to reply to the sister’s affidavit. The Court did not accept this submission. The appellant received the sister’s affidavit three days prior, and had she wished to reply to it, a responding affidavit could have been prepared. Further, if the appellant felt that she had not had sufficient time to respond to the sister’s affidavit, she could have sought an adjournment for that purpose. The application judge also gave compelling reasons for admitting the affidavit, as it provided clarity on a material issue.


Thistle v. Schumilas, 2020 ONCA 88

[Watt, Hourigan, and Trotter JJA]

Counsel:

M Sydney, for the appellant

S Zeitz, for the respondent

Keywords: Torts, Professional Negligence, Insurance Brokers, Life Insurance, Bankruptcy and Insolvency, Property of Bankrupt, Choses in Action, Civil Procedure, Limitation Periods, Orders, Nunc Pro Tunc, Bankruptcy and Insolvency Act, RSC, 1985, c B-3, s2, s41(11), s67(1)(c), s187(9), Canadian Imperial Bank of Commerce v Green, 2015 SCC 60

facts:

When the respondent’s wife died on October 14, 2010, the life insurance company denied the respondent’s claim under the policy on the basis that the wife failed to disclose a pre-existing medical condition. The respondent commenced an action against the insurance company on March 29, 2011, and during that litigation became aware, in December 2012, of the potential professional negligence of the insurance agent. The respondent commenced a claim in professional negligence on February 11, 2013, against the appellant agent.

The appellant brought a summary judgment motion to dismiss the action on the basis that any right to assert a claim against him arose when the respondent was an undischarged bankrupt and, therefore, the cause of action vested with his trustee in bankruptcy. The respondent brought a cross-motion seeking an order nunc pro tunc granting him standing to bring the action in his own name, notwithstanding his assignment in bankruptcy and subsequent discharge.

The motion judge found that she had a discretion under the Bankruptcy and Insolvency Act(“BIA”) to validate the claim and regularize the proceedings. She relied on ss 187(9) of the BIA, which provides that no bankruptcy proceeding shall be invalidated by a formal defect or irregularity. According to the motion judge, the order the respondent sought was consistent with the interests of justice and would help protect innocent third-party creditors and the respondent. To do otherwise, she reasoned, would result in a potential windfall for the appellant and a corresponding loss to the creditors.

The motion judge further found that the expiry of the limitation period was not an absolute bar to an order nunc pro tunc, and that the court could still exercise its discretion. She determined that the order would not undermine the limitation period’s purpose because it was a mere procedural irregularity and there was no intent to defraud creditors. Further, the appellant was aware of the claim within the limitation period, defended the action from the outset, and did not take the position that it relied on the limitation period or that it had been prejudiced.

The appellant appealed.

issues:

(1) Did the motion judge err in finding that the order could be made on a nunc pro tunc basis.

(2) Did the motion judge err in finding that she had the discretion to make an order regularizing the proceeding.

holding:

Appeal allowed.

reasoning:

(1) Yes. In circumstances where a motion is brought after the expiry of a limitation period, a nunc pro tunc order cannot be made for the simple reason that such an order is of no practical effect. It would only serve to backdate the order to the date of the motion, which was already beyond the expiry of the limitation period. This is consistent with the Supreme Court of Canada’s decision in Canadian Imperial Bank of Commerce v Green.

In addition, the Court held that even if the respondent was successful in obtaining a nunc pro tunc order, the cause of action arose during the respondent’s bankruptcy, constituted property under s 2 and s67(1)(c) of the BIA, and thus vested in the trustee in bankruptcy. The respondent would have had to seek an assignment and / or arrange for the reappointment of the trustee under s 41(11) of the BIA to prosecute the claim.

(2) The Court was not required to determine Issue 2 because it decided Issue 1 in the affirmative.


Activa Trading Co. Ltd. v. Birchland Plywood-Veneer Limited, 2020 ONCA 93

[Feldman, Brown and Zarnett JJ.A.]

Counsel:

PS, acting in person for himself and for the corporate appellants

Adam C. Pantel, for Wishart Law Firm LLP and JPRC

James H. Grout, for McRoberts Legal Services Inc.

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Fresh Evidence, Rules of Civil Procedure, Rule 2.1, Palmer v. The Queen, [1980] 1 S.C.R. 759

facts:

The corporate respondent obtained default judgment against the corporate appellants in respect of the supply of allegedly faulty woodworking equipment. The corporate appellants moved to set aside the default judgment, primarily on the basis that they were not properly served with the claim. The motion to set aside was dismissed for the following reasons: proper service was effected; there was considerable delay in bringing the motion to set aside; and the plaintiffs would be prejudiced because of the delay.

An appeal from the denial of the motion to set aside was dismissed for failure to perfect. Subsequently, a motion was made to set aside that dismissal. That motion was rejected and an appeal from that decision was dismissed by the Court. Following those appeal decisions, the appellants brought a new action against the corporate respondents, the law firm, a lawyer, and the process server, claiming damages for obtaining the default judgment and alleging fraud in the claim that proper service of the original statement of claim had been effected. The respondents filed a written request under rule 2.1.01 to dismiss the new action as an abuse of process. The motion judge struck out the new action, finding it to be frivolous, vexatious and an abuse of the process of the court.

issues:

(1) Did the motion judge err in his conclusion that the new action was an abuse of process?

holding:

Appeal dismissed.

reasoning:

(1) No. The purpose of Rule 2.1.01 is to allow the court to deal at the earliest stage with actions that amount to an abuse of process. In this case, the appellants were seeking to re-litigate the issues surrounding the service of the respondent’s original statement of claim and the obtaining of default judgment, a classic example of abuse of process.

As is clear from the dates on the documents, almost all this evidence would not meet the timing requirement of the test from Palmer v. The Queen, for the admission of “fresh evidence” on the motion under appeal, as the appellant obtained it before the original proceedings were completed. That is why the motion judge mentioned that if there were to be any new evidence of an alleged fraud discovered after the Court of Appeal decision in October 2018, the appellants might possibly be able to use that evidence to seek to set aside the dismissal orders.


Dupuis v. Waterloo (City), 2020 ONCA 96

[Paciocco J.A. (Motions Judge)]

Counsel:

Filipe A. Mendes, for the moving party

Matthew Reid, for the responding parties

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time

facts:

The appellant sought an extension of time to perfect an appeal that should have been perfected on May 14, 2019, some seven and a half months ago. The appellant did not take steps to perfect the appeal until after counsel for the respondents took the initiative of inquiring whether the appeal would be proceeding, and after the registrar served notice of intention to dismiss the appeal. The appellant subsequently attempted to perfect the appeal on two occasions, both times unsuccessfully because of technical deficiencies in the materials..

issues:

(1) Should the deadline to perfect the appeal be extended?

holding:

Appeal dismissed.

reasoning:

(1) No. Despite the fact that the appellant was an experienced litigant and fully represented in this action, inadequate efforts were made to ensure that this appeal was prosecuted with diligence and reasonable attention to the timelines and filing requirements imposed by the court. The Court concluded that the justice of this case would not be served if it disregarded the repeated failure by the appellant to comply with the rules and procedures of the court.


Sleep Number Corporation v. Maher Sign Products Inc., 2020 ONCA 93

[MacPherson, Sharpe and Jamal JJ.A.]

Counsel:

Mark Adilman, for the appellant

David A. Ziegler, for the respondent

Keywords: Contracts, Sale of Goods, Civil Procedure, Conflict of Laws, Foreign Judgments, Enforcement, Jurisdiction, Real and Substantial Connection, Forum Selection Clause, Summary Judgment, 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA 354, Old North State Brewing Company Inc. v. Newlands Services Inc. (1998), 58 B.C.L.R. (3d) 144, Hollinger International v. Hollinger Inc., 2005 CanLII 4582 (Ont. Div. Ct.)

facts:

The appellant did not defend an action brought by the respondent in Minnesota for damages for the supply of defective goods. The respondent obtained default judgment in Minnesota and then brought this action in Ontario to enforce the Minnesota judgment. The motion judge granted summary judgment enforcing the Minnesota judgment.

issues:

(1) Did the motion judge err by refusing to hold that a provision in the initial quotation ousted the jurisdiction of the courts of Minnesota?

(2) Did the motion judge err by holding that there was a real and substantial connection sufficient to support the jurisdiction of the Minnesota courts?

(3) Was it contrary to public policy to enforce the Minnesota judgment?

holding:

Appeal dismissed.

reasoning:

(1) No. A permissive forum selection clause does not deprive another forum of jurisdiction simpliciter, but is relevant to whether that other forum should exercise its jurisdiction. The Court found that the forum selection clause was permissive rather than exclusive, and the Court did not find it necessary to decide how this appeal would be decided if the clause did confer exclusive jurisdiction on the courts of Ontario. Further, the clause was strikingly similar to clauses that other courts have refused to characterize as conferring exclusive jurisdiction. It provided that the respondent “attorns” to Ontario jurisdiction and says nothing that excludes the jurisdiction of another possible forum. Accordingly, the forum selection clause does not rule out Minnesota jurisdiction.

(2) No, there was no error in the motion judge’s finding that there was a real and substantial connection with Minnesota. The respondent is a Minnesota corporation with its principal place of business in that state. The appellant went to Minnesota to solicit the respondent’s business. The contract was largely negotiated in Minnesota and performed by the delivery of products to Minnesota. The appellant’s effort to repair alleged defects in the products it supplied occurred in Minnesota. The motion judge did not err by concluding that those facts satisfy the real and substantial connection test.

(3) No, the Court did not accept the argument that it would be contrary to public policy to enforce the Minnesota judgment. The public policy defence is a narrow one and does not apply to the decision of a foreign court to decline jurisdiction in the face of a venue clause. Nor is it contrary to public policy for a court to entertain a case with a real and substantial connection to the forum and to apply the forum’s limitation legislation rather than that of another jurisdiction.


SHORT CIVIL DECISIONS

Temedio v. Niagara North Condominium Corporation No. 6, 2020 ONCA 81

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

Counsel:

Benjamin J. Rutherford, for appellant in appeal and respondent in cross-appeal
Erik Savas, for the respondents in appeal and appellants in cross-appeal

Keywords: Real Property, Condominiums, Civil Procedure, Costs


CRIMINAL DECISIONS

United States v. Okorhi, 2020 ONCA 89

[Miller, Fairburn and Thorburn JJ.A.]

Counsel:

Gord Cudmore, for the appellant
Roy Lee, for the respondent

Keywords: Criminal Law, Fraud, Extradition

R. v. D.K. (Publication Ban), 2020 ONCA 79

[Watt, Huscroft and Trotter JJ.A.]

Counsel:

Paul Calarco, for the appellant
Catherine Weiler, for the respondent

Keywords: Criminal Law, Evidence, Sexual Assault Causing Bodily Harm, Sexual Assault, Evidence, Credibility, Prior Inconsistent Statement, Sentencing, Pre-Sentence Custody, Criminal Code, ss. 271, 272(1)(c), 276, 278, Canada Evidence Act, R.S.C. 1985, c. C-5, s. 11, R. v. Graham, 2019 ONCA 347, R. v. Khan, 2017 ONCA 114, R. v. Stirling, 2008 SCC 10, R. v. Dinardo, 2008 SCC 24, R. v. Divitaris(2004), 188 C.C.C. (3d) 390 (Ont. C.A.), R. v. D.C., 2019 ONCA 442, R. v. S.K., 2019 ONCA 776, R. v. Fair(1993), 16 O.R. (3d) 1 (C.A.), R. v. M.C., 2014 ONCA 611, R. v. J.A.T., 2012 ONCA 177, R. v. L.S., 2017 ONCA 685, R. v. Goldfinch, 2019 SCC 38, R. v. Darrach, 2000 SCC 46, R. v. Riley(1992), 11 O.R. (3d) 151 (C.A.), R. v. C.F., 2017 ONCA 480, R. v. M.T., 2012 ONCA 511, R. v. Strojny, 2019 ONCA 329, R. v. A.C., 2018 ONCA 333

R. v. N., 2020 ONCA 85

[Doherty, Watt and Hourigan JJ.A.]

Counsel:

Breana Vandebeek, for the appellant
Sandy Thomas, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Sentencing, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2), Canadian Charter of Rights and Freedoms, ss. 8, 9, R. v. Lacasse, 2015 SCC 64

R. v. I., 2020 ONCA 90

[Miller, Fairburn and Thorburn JJ.A.]

Counsel:

Richard Litkowski, for the appellant

Bradley Reitz, for the respondent

Keywords: Criminal Law, Sentencing, R. v. Lifchus, [1997] 3 S.C.R. 320

R. v. V.L., 2020 ONCA 87

[Doherty, Watt and Hourigan JJ.A.]

Counsel:

Michael Davies, for the appellant
Nicolas de Montigny, for the respondent

Keywords: Criminal Law, Sexual Assault, Sentencing, R. v. Lacasse, [2015] 3 S.C.R. 1089


ONTARIO REVIEW BOARD DECISIONS

M. (Re), 2020 ONCA 80

[Doherty, Watt and Hourigan JJ.A.]

Counsel:

Janice E. Blackburn, for the appellant, Person in Charge of St. Joseph’s Healthcare Hamilton
Russell Browne, for the respondent, MM
Amy Alyea, for the respondent, Her Majesty the Queen

Keywords: Ontario Review Board, Not Criminally Responsible, Detention Order, Conditional Discharge, Mental Health Act, R.S.O. 1990, c. M.7


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…

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.