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Good afternoon,

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

Ingarra v. 3010999 Ontario Limited (Previn Court Homes) is a reminder to residential real estate lawyers that their clients purchasing new homes have added rights under the Tarion legislation regarding extensions of the closing date. Real estate solicitors should therefore be familiar with those provisions or risk waiving those rights when agreeing to new closing dates.

In Zhao v. Li, the Court of Appeal distinguished between singular and ongoing acts of oppression, and reminded us that a limitation period in respect of a claim for an act of oppression is not extended because a subsequent independent act of oppression takes place.

Other topics included a large fraud against a foreign pension fund, contractual interpretation in the insurance (fire loss) and mortgage contexts, commercial leases, extension of time to appeal in an Anti-SLAPP case, breach of contract in a real estate commission context, adverse possession, vexatious litigants and Crown wardship.

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 Scott Rollwagen, 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.

I hope everyone is enjoying the Family Day Long Weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Ingarra v. 301099 Ontario Limited (Previn Court Homes), 2020 ONCA 97

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Tarion Addendum, Completion Date, Extensions, Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O. 31, Sirisena v. Oakdale Village Homes Inc., 2010 ONSC 2996, aff’d ONSC 1051, Domicile Developments Inc. v. MacTavish (1999), 45 O.R. (3d) 302 (C.A.), King v. Urban & Country Transport Ltd. (1973), 1 O.R. (2d) 449 (C.A.)

P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98

Keywords: Family Law, Child Protection, Crown Wardship, Civil Procedure, Vexatious Litigants, Abuse of Process, Rules of Civil Procedure, Rule 2.1.01

Champion Products Corp. v. Intact Insurance Company, 2020 ONCA 111

Keywords: Contracts, Insurance, Interpretation, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1942] 2 S.C.R. 490, Courts of Justice Act, R.S.O. 1990, c. C.43

Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Appeals, Extension of Time, Issasi v. Rosenzweig, 2011 ONCA 112, Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131

Hurst Real Estate Services Inc. v. Great Lands Corporation, 2020 ONCA 109

Keywords: Contracts, Real Property, Commission Agreements, Breach, Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sch. C., s. 9, 36(3), O. Reg. 567/05, s. 23(1)(a)

Vivekanandan v. Terzian, 2020 ONCA 110

Keywords: Real Property, Adverse Possession, Prescriptive Easements, Land Titles Act, R.S.O. 1990, c. L.5, s. 51(1), Depew v. Wilkes (2002), 60 O.R. (3d) 499 (C.A.), Barbour v. Bailey, 2016 ONCA 98, Henderson v. Volk (1982), 35 O.R. (2d) 379 (C.A.), Kaminskas v. Storm, 2009 ONCA 318, English v. Perras, 2018 ONCA 649, Caldwell v. Elia, [2000] O.J. No. 661, Hodkin v. Bigley, 20 R.P.R. (3d) 9 (C.A.), 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, H.L. v. Canada (Attorney General), 2005 SCC 25

Stoney Creek Centre Inc. v. 2459437 Ontario Inc., 2020 ONCA 119

Keywords: Contracts, Interpretation, Real Property, Mortgages, Sattva Capital Corp. v Creston Moly Corp, 2014 SCC 53]

Sutherland v Toronto (City), 2020 ONCA 122

Keywords: Civil Procedure, No Reasonable Cause of Action, Summary Judgment, Limitation Periods, Reasonable Apprehension of Bias

Vigin G.F.R. Holdings Ltd. v. Kinder Care Children’s Centre, 2020 ONCA 120

Keywords: Contracts, Real Property, Commercial Leases, Fresh Evidence, Palmer v. The Queen, [1980] 1 S.C.R. 759

Zhao v. Li, 2020 ONCA 121

Keywords: Corporations, Oppression, Civil Procedure, Limitation Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, Business Corporations Act, R.S.O. 1990, c. B.16, s. 248, Maurice v. Alles, 2016 ONCA 287, Hryniak v. Maudlin, 2014 SCC 7, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922

Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu
Binacional v. Garcia, 2020 ONCA 124

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Breach of Fiduciary Duty, Conspiracy, Defences, Ex Turpi Causa, Corporate Identification Doctrine, Civil Procedure, Limitation Periods, Reasonable Apprehension of Bias, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63

Short Civil Decisions

Ochnik v. Ontario Securities Commission (Appeal Book Endorsement), 2020 ONCA 97

Keywords: Civil Procedure, Amending Pleadings

Marley v. Salga, 2020 ONCA 104

Keywords: Real Property, Joint Tenancies, Severance, Evidence, Admissibility

Ustymenko v. Sadochok Centre Inc. (Sadochok Preschool Centre), 2020 ONCA 123

Keywords: Corporations, Civil Procedure, Derivative Actions

Gagnon (Re) (Appeal Book Endorsement), 2020 ONCA 126

Keywords: Bankruptcy and Insolvency

Criminal Decisions

R. v. A, 2020 ONCA 101

Keywords: Criminal Law, Arrest, Reasonable and Probable Grounds

R. v. T, 2020 ONCA 100

Keywords: Criminal Law, Procedural Fairness, Reasonable Apprehension of Bias, Juries, Jury Instructions, Evidence, Identity, Sentencing

R. v. Z, 2020 ONCA 99

Keywords: Criminal Law, Evidence, Credibility

R. v. L, 2020 ONCA 102

Keywords: Criminal Law, Defences, Necessity, Sentencing, R. v. Wobbes, 2008 ONCA 567, R. v. Latimer, 2001 SCC 1, R. v. Cinous, 2002 SCC 29, R. v. Singh, 2019 ONCA 872

R. v. M, 2020 ONCA 107

Keywords: Criminal Law, Defences, Necessity, Sentencing

R. v. P, 2020 ONCA 108

Keywords: Criminal Law, Expert Evidence, Admissibility, Jury Instructions

R. c. A, 2020 ONCA 112

Keywords: Criminal Law, Appeals, Inadequate Representation

R. v. A, 2020 ONCA 106

Keywords: Criminal Law, Second-Degree Murder, Mens Rea, Severance, Evidence, Admissibility, Hearsay, Credibility, Prior Inconsistent Statements, Jury Instructions, Criminal Code, ss 21, 229, 235(1), 724(2)(a), 724(2)(b), 745(c), 745.1, 745.2, and 745.4, R. v. Spackman, 2012 ONCA 905, R. v. Pickton, 2010 SCC 32, R. v. Cooper, [1993] 1 S.C.R. 146, R. v. Williams, 2019 ONCA 846, R. v. Martineau, [1990] 2 S.C.R. 633, R. v. Kennedy, 2016 ONCA 879, R. v. Seaboyer, [1991] 2 S.C.R. 577, R. v. Crawford, [1995] 1 S.C.R. 858, R. v. Grant, 2015 SCC 9, R. v. Rojas, 2008 SCC 56, R. v. Oliver (2005), 194 C.C.C. (3d) 92 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 458, R. v. Deol, 2017 ONCA 221, W.(D.) instruction, R. v. B. (K.G.), [1993] 1 S.C.R. 740, R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal refused, [2000] S.C.C.A. No. 583, Mistrial, R. v. Khan, 2001 SCC 86, R. v. A.G., 2015 ONCA 159, R. v. Kendall (1987), 35 C.C.C. (3d) 105 (Ont. C.A.), R. v. Toten (1993), 14 O.R. (3d) 225 (C.A.), R. v. McCarroll, 2008 ONCA 715, R. v. Alvarez-Maggiani, 2018 ONSC 4834, Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2019), at p. 250, § 19.07, R. v. Atikian (1990), 1 O.R. (3d) 263 (C.A.), R. v. G.H., 2020 ONCA 1, R. v. Bevan, [1993] 2 S.C.R. 599, Sentencing, R. v. Shropshire, [1995] 4 S.C.R. 227, R. v. Salah, 2015 ONCA 23, R. v. Stiers, 2010 ONCA 656, leave to appeal refused, [2011] S.C.C.A. No. 150

R. v. AE, 2020 ONCA 117

Keywords: Criminal Law, Sentencing, R. v. Kienapple, [1975] 1 S.C.R. 729, R. v. Hayward (1993), 88 C.C.C. (3d) 193 (Ont. C.A.)

R. c. A, 2020 ONCA 118

Keywords: Criminal Law, Criminal Procedure, Self-Represented Litigant, Canadian Charter of Rights and Freedoms, ss. 8 and 19, Criminal Code, s. 579(1), Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, Ontario (Provincial Police) c. Mosher, 2015 ONCA 722, Fresh Evidence, R. v. W. (W.) (1995), 100 C.C.C. (3rd) 225 (C.A. Ont.), R. v. Joanisse (1995), 102 C.C.C. (3rd) 35 (C.A. Ont.), leave to appeal denied, [1996] S.C.C.A. No. 347

R. v. F, 2020 ONCA 115

Keywords: Criminal Law, Sentencing, R. v. Anthony-Cook, 2016 SCC 43, R. v. Nixon, 2011 SCC 34, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, the Hon. G. Arthur Martin, Chair (Toronto: Queen’s Printer for Ontario, 1993), R. v. Chuvalo (1987), 24 O.A.C. 71 (C.A.)

R. v. G, 2020 ONCA 127

Keywords: Criminal Law, Jury Instructions, Vetrovec Instruction, Sentencing, R. v. Vetrovec, [1982] 1 S.C.R. 811, R. v. Murray, 2017 ONCA 393, R. v. W.(D.), [1991] 1 S.C.R. 742

R. v. J.T., 2020 ONCA 125 (Publication Ban)

Keywords: Criminal Law, Youth Criminal Justice Act, S.C. 2002, c. 1, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan, 2016 SCC 27, R. v. K.J.M., 2019 SCC 55

Ontario Review Board Decisions

J (Re), 2020 ONCA 113

Keywords: Ontario Review Board, Appeals, Mootness

M (Re), 2020 ONCA 105

Keywords: Ontario Review Board, Not Criminally Responsible, Aggravated Assault, Assault with a Weapon, Kidnapping, Uttering Death Threats, Criminal Harassment, Breach of Probation, Criminal Code, s. 672.5401, Mental Health Act, R.S.O. 1990, c. M.7, s. 33.1


CIVIL DECISIONS

Ingarra v. 301099 Ontario Limited (Previn Court Homes), 2020
ONCA 103

[Simmons, Lauwers and Nordheimer JJ.A.]

Counsel:

Ian P. Katchin, for the appellant
Nicholas J. Cartel and Glenn Brandys, for the respondent

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Tarion Addendum, Completion Date, Extensions, Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O. 31, Sirisena v. Oakdale Village Homes Inc., 2010 ONSC 2996, aff’d ONSC 1051, Domicile Developments Inc. v. MacTavish (1999), 45 O.R. (3d) 302 (C.A.), King v. Urban & Country Transport Ltd. (1973), 1 O.R. (2d) 449 (C.A.)

facts:

On March 26, 2016, the parties entered into an Agreement of Purchase and Sale (“APS”), whereby the respondent agreed to purchase a house from the appellant, Previn Homes, in a new residential subdivision. Since the house was located in a new residential subdivision, it included a “Tarion Addendum”. The Tarion Addendum governed the relations between the parties, in part, as prescribed under the Ontario New Home Warranties Plan Act.

Under the terms of the APS and the Tarion Addendum, Previn Homes was required to provide an occupancy permit to the respondent on or before January 11, 2018 (the “Firm Closing Date”).

Neither party was in a position to close, however, by the Firm Closing Date. Previn Homes did not provide an occupancy permit to the respondent and the respondent was not in funds.

Although the Tarion Addendum prescribes a framework for changing dates, the parties did not follow that framework. Instead, by agreement between the parties’ lawyers, the closing date was extended to January 15, 2018 (the “Second Closing Date”). Although Previn Homes had provided the respondent with an occupancy before the Second Closing Date, it agreed to extend the closing date for a second time to January 17, 2018 (the “Final Closing Date”), at the request of the respondent’s counsel.

The respondent was still not in funds on the Final Closing Date. Counsel for Previn Homes, however, refused the respondent’s request to extend the date of closing beyond the Final Closing Date. The house was later sold by Previn Homes to another buyer. On March 20, 2018, the respondent brought an application seeking the interpretation of the APS and an order seeking specific performance.

The application judge ultimately held that Previn Homes breached the APS, as the parties did not have the contractual freedom to set a closing date outside of the confines of the Tarion Addendum. Specifically, she found that while Previn Homes had options available to it regarding the setting of a new closing date under s. 4 of the Tarion Addendum, it took no steps to set a new closing date before the Firm Closing Date using the framework prescribed. As a result, the application judge found that s. 3(c) of the Tarion Addendum deemed the new “Delayed Closing Date” to be April 11, 2018, being 90 days after the Firm Closing Date, which she rooted in the “consumer protection objectives” of the legislation, citing the trial decision in Sirisena v. Oakdale Village Homes Inc., 2010 ONSC 2296, aff’d 2013 ONSC 1051 (Div. Ct.). The application judge further found that the purported termination of the APS by Previn Homes on January 17, 2018, was invalid as none of the permitted grounds for termination under s. 10 were available to it. Previn Homes appealed.

issues:

Did the agreement between the lawyers (made orally and through the exchange of faxes and emails) to extend the agreed upon Firm Closing Date to the Second and Final Closing Dates (with adjustments remaining as at January 11, 2018) supersede the operation and effect of the provisions of the Tarion Addendum?

holding:

Appeal allowed.

reasoning:

Yes. Although the Court agreed that s. 3(c) of the Tarion Addendum operated to set the new “Delayed Closing Date” to April 11, 2018, being 90 days after the Firm Closing Date, the Court held that the application judge erred in finding that the parties did not have contractual freedom to set a closing date outside of the confines of the Tarion Addendum.

First, the Court noted that s. 4 of the Tarion Addendum does not render unenforceable non-compliant amendments. Despite stating that the Addendum sets out a “framework” for altering the Critical dates “which cannot be altered contractually except as set out in this section 4”, the last sentence in s. 4(a) provides: “Any amendment not in accordance with this section is voidable at the option of the Purchaser” (emphasis added by the Court). In this regard, the Court held that a non-compliant amendment altering the closing date was not “invalid” as the application judge found, rather it was merely voidable.

The Court thus held that the failure to close on the Firm Closing Date had the effect of leaving either party free to specify a new closing date on reasonable notice and restore the force of the “time is of the essence” provision: Domicile Developments Inc. v. MacTavish (1999), 45 O.R. (3d) 302 (C.A.), and King v. Urban & Country Transport Ltd. (1973), 1 O.R. (2d) 449 (C.A.). This was the effect of the letter from counsel for Previn Homes, which ultimately extended the date of closing to the Final Closing Date. The Court noted that it was not argued before the application judge nor on appeal that notice of the Final Closing Date was unreasonable or unreasonable in the circumstances.

Second, the Court noted that pursuant to the “Termination of the Purchase Agreement” provisions, s. 10(e) provided that “Nothing in this Addendum derogates from any right of termination that either the Purchaser or the Vendor may have at law or in equity on the basis of, for example, frustration of contract or fundamental breach of contract.”  Based on s. 10(e), the Court found that because the respondent was not in funds to close on the Final Closing Date, it was open to Previn Homes to terminate the APS. The Court clarified that doing so was not prohibited under the Tarion Addendum.

Based on the foregoing, the Court ultimately held that the application judge was correct in her conclusion that the purported amendments to the Firm Closing Date that were reflected in the agreement between the lawyers were voidable by the respondent by virtue of s. 4(a) of the Tarion Addendum. However, she erred in finding that the Final Closing Date was voided by the respondent’s continued efforts to complete the APS, notwithstanding Previn Homes’ termination of it. To the contrary, the Court held that since the respondent had not exercised his right to void the lawyer’s agreement, Previn Homes’ termination was valid under s. 10(e) of the Tarion Addendum.


P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98

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

Counsel:

PY, acting in person
AY, acting in person
Charles Sinclair, for the respondent H-GK
Carole Jenkins, for the respondents The Catholic Children’s Aid Society of Toronto, MM, JR and RK
Domenico Polla, for the respondents The Office of the Children’s Lawyer of Ontario and KK
Monika Korona, for the respondent MS
Erika Tower, for the respondent FK
Samaneh Frounchi, for the respondent LD
Daniel Bassili, for the respondent Conseil Scolaire Catholique Mon Avenir
Ruben Lindy, for the respondent FG
Chloe Richardson, for the respondent The Hospital for Sick Children

Keywords: Family Law, Child Protection, Crown Wardship, Civil Procedure, Vexatious Litigants, Abuse of Process, Rules of Civil Procedure, Rule 2.1.01

facts:

By order dated October 7, 2013, Curtis J. found the appellants’ four children were in need of protection and made them Crown wards, without access to the parents. The appellants’ appeal to the Superior Court of Justice was dismissed as was their further appeal to the Court of Appeal for Ontario. The Supreme Court of Canada dismissed the appellants’ application for leave to appeal.

The appellants then commenced this action on December 27, 2017. The defendants are individuals or organizations that played some role in the child protection proceedings, either as parties, counsel, witnesses, experts, or entities which provided information that was used to initiate or support the proceedings.

Two of the defendants, MS and LD, wrote to the Registrar of the Superior Court of Justice pursuant to Rule 2.1.01(6) requesting the dismissal of the proceeding on the basis that it was frivolous, vexatious or otherwise an abuse of the process of the court.

By reasons dated September 13, 2018, the motion judge directed that the registrar give the appellants notice that the court was considering making an order under Rule 2.1.01 dismissing this action against the Defendants MS and LD. Rule 2.1.01(3)2 permits a plaintiff to make written submissions to the court after receiving such a notice. The appellants wrote to the registrar on September 16, 2018, requesting more time to work on their submissions. They repeated that request in an October 4, 2018 letter to the registrar.

On November 27, 2018, the motion judge released reasons dismissing the action against MS and LD pursuant to Rule 2.1.01 as frivolous and vexatious.

The appellants appealed the motion judge’s decision.

issues:

(1) Did the motion judge err in dismissing the action against the defendants MS and LD?

(2) Did the motion judge err in expanding the dismissal of the action to include all other defendants?

holding:

Appeal allowed in part.

reasoning:

(1) No. The Court saw no error in the motion judge’s conclusion that the proceeding against MS and LD appeared on the face of the statement of claim to be frivolous, vexatious or otherwise an abuse of the process of the court. When the statement of claim was read in light of the reasons issued by three levels of court in the child protection proceeding and the “fresh evidence” tendered by the appellants, it was clear that in their action the appellants sought to relitigate the issues previously decided in the child protection proceeding. Such an effort to relitigate issues already decided constituted an abuse of the process of the court.

(2) Yes. The motion judge did not provide the appellants the required notice under Rule 2.1.01 that she was considering the dismissal of the proceeding against all defendants, depriving the appellants of procedural fairness to make submissions pursuant to Rule 2.1.01(3)2. In the circumstances of this case, those omissions amounted to reversible procedural error.


Champion Products Corp. v. Intact Insurance Company, 2020 ONCA 111

[Simmons, Pardu and Nordheimer JJ.A]

Counsel:

Paul J. Pape and Brodie Noga, for the appellants/respondents by way of cross-appeal
Myron W. Shulgan, Q.C. and Donald Leschied, for the respondents/appellants by way of cross-appeal

Keywords: Contracts, Insurance, Interpretation, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1942] 2 S.C.R. 490, Courts of Justice Act, R.S.O. 1990, c. C.43

facts:

The respondents, collectively “Champion”, are related companies that owned or occupied a commercial building in Windsor, Ontario. Much of the building was destroyed by fire on February 15, 2011. The appellants, collectively “Intact”, insured the destroyed building under a multi-peril commercial insurance policy.

The main issue on appeal was whether, on a summary judgment motion, the motion judge erred in holding Intact must indemnify Champion for recoverable depreciation (essentially, the difference between the destroyed building’s actual cash value at the time of the fire, and the cost to replace it). Under a rider to the policy, Champion was entitled to replace the destroyed building at the same or a different site and be indemnified for recoverable depreciation provided it effected replacement with “due diligence and dispatch” and a building of “like kind and quality”. Nearly two years after the fire, Champion had not replaced the destroyed building. On February 6, 2013, it issued a statement of claim seeking indemnity under its policy and damages.

On May 6, 2013, the parties entered into an agreement (the “May 6, 2013 settlement agreement”) under which they settled some of the claims in the pending action. They agreed on the actual cash value and replacement cost of the destroyed building; a formula for determining the recoverable depreciation payable if Champion replaced it; and a requirement that Champion account for land acquisition costs if it effected replacement at a different site. They also agreed that Champion would have 24 months from May 6, 2013, to proceed with replacement of the destroyed building, failing which it would be “deemed to have forever waived and forfeited” any claim for recoverable depreciation.

Champion subsequently entered into two agreements to purchase replacement properties prior to the expiry of the 24-month deadline. It terminated the first agreement in April 2014. On February 17, 2015, Champion entered into an agreement to purchase a Scarborough property to replace the destroyed building.

Without advising Intact, on November 9, 2015, Champion entered into an agreement to purchase a different replacement property, this time in Pickering. Shortly thereafter, in mid-November 2015, Champion terminated its agreement to purchase the Scarborough property.

Intact learned of these developments on November 27, 2015. Almost three months later, on February 16, 2016, Intact informed Champion that as a result of Champion failing to close the purchase of the Scarborough property, Champion had forfeited its entitlement to recoverable depreciation under the policy and the May 6, 2013 settlement agreement as quantified in the May 1, 2015 agreement.

The motion judge found that the May 6, 2013 settlement agreement required Champion to complete the purchase of another building of like kind and quality within the stipulated 24-month replacement deadline. However, he concluded the May 1, 2015 agreement effectively amended the May 6, 2013 settlement agreement through a qualified waiver of the 24-month replacement deadline, which instead required Champion to complete the purchase of the Scarborough property.

Further, the motion judge held that, by its conduct after November 27, 2015, Intact had waived Champion’s failure to complete the purchase of the Scarborough property and its right to deem that Champion had forfeited any claim for recoverable depreciation. He concluded that Champion was therefore entitled to be indemnified for recoverable depreciation. However, he also found that Intact’s waiver was limited. All that was waived was the condition that Champion had to close the Scarborough purchase to receive $3,000,000; the waiver did not extinguish the policy or subsequent agreements under which the replacement property issue was settled. The motion judge did not reach the issue of relief from forfeiture.

issues:

(1) Did the motion judge err in finding Intact waived Champion’s failure to complete the purchase of the Scarborough property by which Champion itself forever forfeited any claim to recoverable depreciation?

a)Did the motion judge err in failing to find that, by its conduct in May and June 2015, Intact waived the 24-month deadline in the May 6, 2013 settlement agreement?

b) Did the motion judge err in holding that Intact had to give notice to Champion that Champion had forfeited its entitlement to recoverable depreciation and in finding that Intact waived Champion’s failure to close the Scarborough transaction?

(2) Is Champion entitled to relief from forfeiture?

holding:

Appeal allowed.

reasoning:

(1) The court addressed this question by breaking the analysis into two issues:

a) The motion judge erred. None of the agreements or correspondence – the insurance policy, the May 6, 2013 settlement agreement, the May 1, 2015 agreement or counsel’s June 25, 2015 letter – required notice of forfeiture. On the contrary, under the May 6, 2013 settlement agreement forfeiture was automatic in the event of default.

Although Champion was correct that the May 1, 2015 agreement did not refer specifically to the May 6, 2013 settlement agreement or identify a specific date to which the 24-month replacement deadline was extended, the court found no error in the motion judge’s conclusion that the May 1, 2015 agreement effected what the court referred to as a conditional waiver of that deadline. The motion judge observed that the May 1, 2015 agreement was made just days before the expiration of the deadline specified in the May 6, 2013 settlement agreement. Further, he found “there was clear recognition that the then current agreement of purchase and sale of the Scarborough property … was not going to close by May 6, 2015.”

b) Yes. The court then turned to Intact’s argument that the motion judge erred in holding that Intact had to give notice to Champion that it had forfeited its entitlement to recoverable depreciation by failing to close the Scarborough transaction and further erred in finding Intact waived the obligation to close that transaction.

The court accepted Intact’s argument and set aside the motion judge’s finding that Intact waived Champion’s failure to close the Scarborough purchase and substitute a finding that Intact did not waive that obligation.

Reading the motion judge’s reasons as a whole, the court concluded that he proceeded on the basis that Intact was required to give notice of forfeiture for forfeiture to occur and that further, Intact had to give such notice within some reasonable length of time after Champion defaulted.

In doing so, the motion judge erred. None of the agreements or correspondence – the insurance policy, the May 6, 2013 settlement agreement, the May 1, 2015 agreement or counsel’s June 25, 2015 letter – require notice of forfeiture. On the contrary, under the May 6, 2013 settlement agreement forfeiture was automatic in the event of default.

(2) No. Although the motion judge did not address relief from forfeiture, both parties requested that the court address the issue on appeal. Champion claimed the equitable remedy of relief from forfeiture under both s. 129 of the Insurance Act and s. 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43. It argued that it had a justifiable reason not to close the Scarborough transaction and was unable to close the Pickering transaction because Intact refused to fund it. Moreover, Intact has already allocated funds for the recoverable depreciation and would therefore suffer no prejudice if relief from forfeiture was granted.

As for a remedy in damages, Intact did not waive Champion’s forfeiture of its right under the policies and agreements to recoverable depreciation. Intact was not contractually obliged to fund the Pickering transaction. Therefore, the court saw no basis on which to award relief from forfeiture.


Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116

[Roberts J.A]

Counsel:

AC, acting in person
Paul Davis, appearing as amicus curiae
Tae Mee Park, for the responding parties

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Appeals, Extension of Time, Issasi v. Rosenzweig, 2011 ONCA 112, Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131

facts:

Moving party moves for an extension of time to perfect her appeal from a dismissal of her defamation action following a successful s. 137.1 Anti-SLAPP motion. Responding party submitted that the moving party did not meet any of the criteria for an extension of time. These well-established criteria include: (i) the continuing intention to appeal during the period required for perfection; (ii) the length of and explanation for the delay; (iii) the prejudice to the respondent; and (iv) the merits of the appeal. The overarching consideration is whether the justice of the case requires the extension.

issues:

Does the moving party meet the criteria to justify an extension of time?

holding:

Motion dismissed.

reasoning:

No. The justice of the case did not warrant the requested extension. The moving party’s actions demonstrated a concerted effort to delay the perfection of the appeal. The moving party had failed to provide an adequate explanation for the delay in perfecting the appeal. She offered no concrete particulars explaining why she could not perfect her appeal within the statutory deadline. Further, the responding parties were prejudiced by her delays. Instead of perfecting her appeal, the moving party created further delay by serving a supplemental notice of appeal and notice of a constitutional question, raising new issues that were not before the motion judge. A lack of merit alone sufficed to deny the requested extension.


Hurst Real Estate Services Inc. v. Great Lands Corporation, 2020 ONCA 109

[van Rensburg, Benotto and Harvison Young JJ.A.]

Counsel:

David A. Weisman, for the appellants
Peter Manderville and Lindsay Moffatt, for the respondents

Keywords: Contracts, Real Property, Commission Agreements, Breach, Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sch. C., s. 9, 36(3), O. Reg. 567/05, s. 23(1)(a)

facts:

The appellant, SS, is a real estate developer and the sole shareholder, director and officer of the two other appellants Great Lands Corporation (“GLC”) and Great Land (Halton Hills) Industrial Park Corp. (“GLHH”). A real estate agent, DH, then the principal of Hurst Real Estate Services Inc. (“Hurst Real Estate”), engaged in discussions with SS and RS, an employee of GLC. The result of these discussions were disputed on this appeal, but the trial judge found that a binding contract was formed requiring the appellants to pay a commission of one half of the sale price over $10.3 million, capped at 5% of sale proceeds, should an offer procured by DH be accepted by them.

DH engaged in discussions with the ultimate purchaser Triovest Realty Advisors Inc. (“Triovest”) about purchasing the property. Triovest reached out directly to GLC and discussions took place without DH. Triovest purchased the property for $10.8 million. The appellants refused to pay a commission to the respondents.

The trial judge granted judgment for the respondents in the amount of $540,000. Further, the trial judge found that the appellants were jointly and severally liable for the commission. In particular, the individual SS was liable for the commission both because he had induced the corporation he wholly controlled to breach the contract, and because he was a party to the contract personally.

issues:

(1) Did the trial judge err in finding that a binding contract had formed for the payment of commission in relation to the sale?

(2) Did the trial judge err in finding that the action was not barred by the Real Estate and Business Brokers Act, 2002 (the “Act”)?

(3) Did the trial judge err in finding both GLC and SS liable for the commission?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court found no basis to interfere with the trial judge’s conclusion that a binding contract was formed under which the respondents were entitled to a commission for this sale. The appellants argued that: (a) DH did not unequivocally accept the offer; (b) even if a contract was formed, it was conditional on the execution of a formal commission agreement, and (c) even if the contract was not conditional on a formal agreement, DH was not an instrumental cause of the sale and was therefore not entitled to commission under that contract. The Court held that these arguments challenged the trial judge’s findings of fact, which were entitled to deference and disclosed no reversible error.

(2) No. The appellants argued that because Hurst Real Estate was de-registered at the time of the sale, it was barred by s. 9 of the Act from bringing this action. The Court found that Hurst Real Estate was duly registered at the time when services were rendered by DH. The fact that it was deregistered later was of no consequence to this action. The appellants also argued that the contract violated s. 36(3) of the Act, which prohibits an arrangement for the payment of commission based on the difference between the list price and the sale price. The Court agreed with the trial judge that this submission did not assist the appellants, as the property was not listed when the contract was formed, nor was it listed at the time of sale. Finally, the appellants argued that the respondents could not collect a commission because there was no signed agreement as required by O. Reg. 567/05, s. 23(1)(a), made under the Act. The trial judge concluded that an email exchange was a signed agreement for the purpose of s. 23(1)(a) because the respective emails ended with a typed version of the sender’s name, title and organization and the Court declined to disturb this finding.

(3) No. The email offer, which was sent by RS and formed the basis of the contract, identified RS as acting on behalf of GLC given his email signature. Further, the email referred to the fact that the proceeds over $10.3 million were to be split between DH and “Great Lands.” The Court found these facts sufficient to ground the trial judge’s finding that GLC was a party to the contract.

With regard the personal liability of SS, the Court found that the factual findings of the trial judge provided support for the existence of a covenant that bound SS. The evidence demonstrated that SS made the commitment personally, as the sole shareholder of GLC, and ultimately as the beneficiary of any sale of the subject lands by GLHH. As SS was in a position to cause or to withhold payment of the commission to DH, his decision not to pay the commission, and his steps to avoid payment by GLC/GLHH rendered him liable personally for the amount of the promised commission as damages for the breach.


Vivekanandan v. Terzian, 2020 ONCA 110

[Hoy A.C.J.O., van Rensburg and Roberts JJ.A.]

Counsel:

Shantona Chaudhury and Brodie Noga, for the appellants
Sarah J. Turney and Daniel T. Richer, for the respondents

Keywords: Real Property, Adverse Possession, Prescriptive Easements, Land Titles Act, R.S.O. 1990, c. L.5, s. 51(1), Depew v. Wilkes (2002), 60 O.R. (3d) 499 (C.A.), Barbour v. Bailey, 2016 ONCA 98, Henderson v. Volk (1982), 35 O.R. (2d) 379 (C.A.), Kaminskas v. Storm, 2009 ONCA 318, English v. Perras, 2018 ONCA 649, Caldwell v. Elia, [2000] O.J. No. 661, Hodkin v. Bigley, 20 R.P.R. (3d) 9 (C.A.), 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, H.L. v. Canada (Attorney General), 2005 SCC 25

facts:

This appeal involves a property dispute concerning possessory rights between next-door neighbours over an approximate two-foot wide strip that runs between the two neighbouring properties (45 and 47 Lawrence Crescent), to which the appellants have clear title.

The appellants appeal from the application judge’s declaration that the respondents enjoy a prescriptive easement over the portion of the two-foot wide strip that abuts the respondents’ driveway and ownership by way of adverse possession over the portion of the disputed strip that runs into the respondents’ backyard. The application judge found that the respondents’ predecessors in title to 47 Lawrence Crescent acquired a prescriptive easement over the portion of the disputed strip through over 20 years of open and continuous use without permission of the former owners of 45 Lawrence Crescent.

Relying on the evidence of the former owner of 45 Lawrence Crescent that he entered the disputed backyard area only with the permission of the owners of 47 Lawrence Crescent, the application judge determined that the predecessors in title to 47 Lawrence Crescent had erected a gate which effectively excluded the former owners of 45 Lawrence Crescent from entering the backyard without permission.

issues:

(1) Did the application judge err in determining that a prescriptive easement arose over the portion of the disputed strip that abuts the respondents’ driveway?

(2) Did the application judge err in determining that there was ownership by way of adverse possession over the portion of the disputed strip that runs into the respondents’ backyard?

holding:

Appeal allowed.

reasoning:

(1) Yes. The Court acknowledged that the application judge correctly set out the essential elements that the respondents, asserting a dominant tenement and easement over the disputed driveway area. However, the issue on appeal turned on the application judge’s consideration of the second factor in determining whether a prescriptive easement arose, that is, whether the alleged easement accommodated the dominant tenement. While the application judge made this determination in relation to the backyard area, he failed to determine whether the alleged easement over the disputed driveway area was “reasonably necessary” to the better enjoyment of the respondents’ property.

In the Court’s view, the predecessors in title’s evidence of historic use of the disputed driveway area fell short of establishing that it was continuous or permanent. Rather, it was tied to specific time-limited activities that by their nature are sporadic – getting small children out of the car, grocery shopping or bringing things into the house. Moreover, it was clear that this use did not always require occupation of the disputed driveway area. While the predecessors in title always used their own part of the driveway, they did not always park over the disputed driveway area or park alongside the disputed driveway area and use it to exit their vehicles. As the photographs of the disputed driveway area revealed, the driveway was wide enough that the predecessors in title could park their cars on their own driveway without occupying the disputed driveway area.

The historic use relied upon by the respondents may have been personally convenient to their predecessors in title, but it did not serve as a reasonably necessary accommodation to their property. In the Court’s view, since the alleged easement over the disputed driveway area was not reasonably necessary for the better enjoyment of 47 Lawrence Crescent, the application judge erred in finding that the respondents had demonstrated that a prescriptive easement arose.

(2) Yes. The application judge materially misapprehended the evidence of the appellants’ predecessor in title and, as such, erred in finding that the respondents had demonstrated adverse possession over the backyard portion of the disputed strip.

In the predecessor’s affidavit, he expressly disputed as inaccurate the respondents’ evidence that he never entered the disputed backyard area without permission and deposed that he did so freely. The frequency of the predecessor’s entries into the disputed area of the backyard was irrelevant, as it is well established that the true owner of the disputed property need not demonstrate the same continuous use that the adverse claimant must show. The true owner is in constructive possession of the entire property even when in actual possession of only a part of it. The application judge’s material misapprehension of the predecessor’s evidence was palpable and overriding since it was critical to his conclusion that the predecessor was effectively excluded from the backyard portion of the disputed strip. In the Court’s view, the evidence did not establish this.


Stoney Creek Centre Inc. v. 2459437 Ontario Inc., 2020 ONCA 119

[Feldman, Brown and Zarnett JJ.A.]

Counsel:

Brian N. Radnoff and Mordy Mednick, for the appellant
Chris Reed, for the respondent

Keywords: Contracts, Interpretation, Real Property, Mortgages, Sattva Capital Corp. v Creston Moly Corp, 2014 SCC 53

facts:

This appeal concerns the amount the chargor, the appellant Stoney Creek Centre Inc. (“Stoney Creek”), must pay to the chargee, 2459437 Ontario Inc. (“245”), to discharge a mortgage on a commercial property known as the Lewis Property.

In 2015 and 2016, TP, the principal of Stoney Creek, and Dr. GS, the principal of 245, were involved in two overlapping transactions.

In the first transaction, TP-related companies agreed to purchase two properties (the “Lakefront Properties”) from 245. Under those agreements, the purchasers had two conditional periods totalling 210 days in which they could end the transactions. Closing was scheduled for mid-2016.

The second transaction arose after Dr. GS learned that TP was encountering difficulties in securing financing to purchase the shares of the company that owned the Lewis Property. Dr. GS offered to assist TP to finance the share purchase, provided that TP waived the conditions on his acquisition of the Lakefront Properties.

Dr. GS initially planned to source the share purchase funding by obtaining a loan from an institutional bank. However, that source of funding did not materialize. Since the closing for TP’s share purchase was approaching, TP introduced Dr. GS to another source of funds through Toronto Capital Corp. (“Toronto Capital”). Dr. GS and 245 ultimately accepted a loan commitment from Toronto Capital for $3 million, which was secured, in part, by mortgages on the Lakefront Properties (the “Loan Commitment”). Under the terms of the Loan Commitment, the net amount advanced, after various deductions, would be close to $2.7 million.

After receiving a copy of the Loan Commitment, TP’s company, 218, entered into an agreement to borrow money from 245, in order to fund the share purchase. Under the “Use of Proceeds” section of the Loan Commitment, it stated that “The proceeds will be used as follows: Complete share purchase: $2,703,000.”  245 subsequently entered into a private mortgage financing agreement as lender with 218 as borrower (the “Mortgage Financing Agreement”).

Notably, the Mortgage Financing Agreement stated that its purpose was to provide financing for the share purchase agreement, and was made conditional on, inter alia, the waiving of all conditions associated with TP’s acquisition of the Lakefront Properties. The Mortgage Financing Agreement also contained the following relevant key terms:

  • Type of Loan: Third Mortgage. Principal and interest.
  • Term: 16 Month Term following the date of initial advance.
  • Loan Amount: $3,000,000 (Face value of the mortgage charge) is based on appraisal provided.
  • Advance Amount: $3,000,000 less the Lender’s financing charges. Due on Closing
  • Lender Fee: A lender free of 3% shall be deducted on advanced amount.
  • Legal: The borrower/project will pay the Lender’s legal fees for closing, registration and discharge.

As part of the security for the loan transaction, Stoney Creek provided 245 with a mortgage on the Lewis Property (the “Mortgage”), with a principal amount of $3 million. As additional security, 218 provided 245 with a promissory note for $3 million, guaranteed by Stoney Creek.

It was undisputed that $2,711,691.48 was advanced by Toronto Capital to 245 on its $3 million loan, net of various deductions that Total Capital was entitled to make pursuant to the Loan Commitment. The Statement of Advance for closing the Mortgage Financing Agreement showed the receipt of $2,711,691.48, from which 245 deducted its lender fee, legal costs, and title insurance cost, leaving a balance disbursed to 218 of $2,604.691.48.

In 2017, TP sought to discharge the Mortgage on the Lewis Property. 245 took the position that the amount required to discharge the Mortgage was the face amount of $3 million, together with interest. TP took the position that the principal amount due on the Mortgage was $2,711,691.48, plus interest. In order to discharge the Mortgage, Stoney Creek paid into escrow the difference between the $3 million face amount and the $2,711,691.48, plus interest (the “Disputed Amount”), which is currently being held in a lawyer’s trust account pending the determination of the within litigation.

The application judge ultimately held that 245 was entitled to the Disputed Amount, based on Stoney Creek’s obligation to pay $3 million, plus interest, to discharge the Mortgage. Stoney Creek appealed.

issues:

(1) Did the application judge err in her interpretation of the term in the Mortgage Financing Agreement by:

i) interpreting the Disputed Term as evidencing an agreement that Stoney Creek would pay all the fees and costs 245 incurred in borrowing the money from Toronto Capital that it used to consummate its loan to TP’s company, 218; and/or

ii) rejecting Stoney Creek’s argument that the reference to the “lender’s financing charges” was the same as the “lender’s fee” on the second page of the Mortgage Financing Agreement?

(2) Did the application judge err by taking into account the evidence concerning TP’s knowledge of the terms of the loan from Toronto Capital to 245 and Dr. GS?

(3) Was the application judge’s order inconsistent with her decision because she ordered Stoney Creek to repay only some, but not all, of 245’s borrowing costs?

holding:

Appeal dismissed.

reasoning:

(1) No. The application judge made no palpable and overriding error in finding that the parties agreed Stoney Creek would pay 245 the amounts that 245, in turn, was required to pay Toronto Capital in order to obtain the funds used to make the bridge loan to Stoney Creek. In making its determination, the Court held that the agreement was reflected in the language of the Loan Amount term and Disputed Term of the Mortgage Financing Agreement. The Court further found that when assessed in light of the language of the Mortgage Financing Agreement, the terms of the additional security documents and the factual matrix, the application judge’s interpretation of the phrase “the Lender’s financing charges” was commercially reasonable. The Court thus agreed with the application judge’s conclusion that Stoney Creek was required to pay 245 the amount of $3 million, plus interest, to discharge the Mortgage.

(2) No. The Court held that the application judge’s consideration of the evidence concerning TP’s knowledge of the terms of the loan from Toronto Capital to 245 and Dr. GS did not constitute an impermissible use of one party’s subjective intention. Rather, the Court found that by taking that evidence into account, the application judge considered the “surrounding circumstances known to the parties at the time of formation of the contract”, as she was required to do: Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 at para. 47.

(3) No. The parties contemplated the discharge of the Mortgage on the basis that Stoney Creek would pay into an escrow account the agreed Disputed Amount of $374,693. In this regard, the Court found that the Disputed Amount represented the difference between the discharge balance (i) calculated using the Mortgage’s stated principal amount of $3 million and (ii) that arrived at by using the amount of $2,711,691, which was the amount loaned by Toronto Capital to 245 and Dr. GS net of its financing charges. By granting judgment in favour of 245, the application judge simply ordered that the agreed Disputed Amount, together with interest, be released and paid to 245.


Sutherland v Toronto (City), 2020 ONCA 122

[Feldman, Brown, and Zarnett JJA]

Counsel:

IS, acting in person
Christopher J. Henderson, for the respondents

Keywords: Civil Procedure, No Reasonable Cause of Action, Summary Judgment, Limitation Periods, Reasonable Apprehension of Bias

facts:

The appellant has engaged in a dispute with the City of Toronto (the “City Respondents”) over the payment of property taxes since she first fell into arrears in 1998.

In 2006, the appellant commenced a Small Claims Court action in which she sought an order that her tax account for 2003 had been paid in full. The other respondent in this matter, GN (the “Respondent), was the appellant’s solicitor of record during parts of the Small Claims Court proceeding. In 2009, the Small Claims Court action was struck from the trial list. In 2016, the action was dismissed for delay. In 2017, the appellant abandoned her appeal to the Divisional Court.

About five weeks after abandoning her appeal, the appellant started this action in which she pleads that: (i) the City’s tax account for her property has been incorrect since 1998; (ii) in 2006, the City had undertaken not to take any collection efforts until the Small Claims Court action had been settled; (iii) the Respondent negligently handled her Small Claims Court action; and (iv) the City’s efforts to collect property tax arrears had caused her damage.

The City Respondents moved for summary judgment. The motion judge granted summary judgment and dismissed the action against the City Respondents, concluding that the appellant had no viable cause of action and there was no genuine issue requiring a trial. The Respondent did not join the City Respondents in seeking summary judgment.

The appellant appeals the summary judgment dismissal.

issues:

(1) Did the motion judge err in dismissing the action as having no viable cause of action against the City Respondents?

(2) Did the motion judge’s comments during the motion demonstrate a reasonable apprehension of bias?

(3) Did the motion judge err in dismissing the action against the City Respondents when her claim against the Respondent remained outstanding?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court found no error in law by the motion judge nor had the appellant persuaded the Court that the motion judge made any palpable and overriding error of fact.

(2) No. The motion judge ensured all parties received a fair hearing. While the motion judge did express frustration at some of the self-represented party’s submissions (as well as the City Respondent’s submissions), he did apologize to the appellant near the end of the motion, which she accepted on the record.

(3) No. The appellant asserted the claim quite differently against the Respondent and there was no risk of conflicting judgments.


Vigin G.F.R. Holdings Ltd. v. Kinder Care Children’s Centre, 2020 ONCA 120

[Feldman, Brown and Harvison Young JJ.A.]

Counsel:

David Fogel, for the appellants
Michael Arbutina and Sam De Caprio, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Fresh Evidence, Palmer v. The Queen, [1980] 1 S.C.R. 759

facts:

The appellants, Kinder Care Children’s Centre, Strong Foundation Inc., KO, and AO appeal from the trial judgment finding them liable for damages arising from their abandonment of a 10-year commercial lease entered into with the respondent, Vigin G.F.R. Holdings Ltd. (the “Lease”). The appellants did not appeal the damages awarded by the trial judge; their grounds of appeal were limited to his findings of liability.

issues:

(1) Did the trial judge err in finding that KO was a tenant under the lease?

(2) Did the trial judge err in determining the permitted uses under the Lease?

holding:

Appeal dismissed.

reasoning:

(1) No.  The appellants argued that the Lease’s description of the “Tenant” was ambiguous. They argued that the trial judge erred in holding that there was no ambiguity and in failing to consider the appellants’ intention regarding the parties to the Lease. The Court was not persuaded by this submission. The Court found no error in the trial judge’s finding that the Lease was not ambiguous, and that the factual matrix established that the parties had past experience negotiating and signing commercial lease agreements and business contracts. The trial judge further found that the appellants had an opportunity to negotiate the rent, the ten-year term and were asked to sign as “Tenants”. In any event, the trial judge did go on to consider the evidence of the parties’ understandings about who the Tenants were.

(2) No. The trial judge considered each of the appellants’ arguments, which they again raised on appeal: (i) the use of the Premises’ yard for outdoor storage was an implied term of the Lease; (ii) the Lease was fundamentally breached when the yard could not be used for outdoor storage; and (iii) the parties made a mutual mistake regarding the use of the yard space. The trial judge gave extensive reasons for not accepting the appellants’ submissions. The Court found no error in the legal principles that the trial judge applied.


Zhao v. Li, 2020 ONCA 121

[Feldman, Brown and Zarnett JJ.A]

Counsel:

Jean-Alexandre De Bousquet, for the appellant

Shini Bhatt, for the respondent

Keywords: Corporations, Oppression, Civil Procedure, Limitation Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, Business Corporations Act, R.S.O. 1990, c. B.16, s. 248, Maurice v. Alles, 2016 ONCA 287, Hryniak v. Maudlin, 2014 SCC 7, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922

facts:

The respondent, BW and the appellant were shareholders of a dry cleaning business operating from rented premises under the name ‘Perfect Cleaner’. The respondent was charged with assault and uttering a death threat against the appellant. Accordingly, the appellant did not attend Perfect Cleaner’s premises until the respondent signed a peace bond months later. Subsequently, the appellant regularly attended and checked on the business and testified that the business seemed to be operating normally. However, in June and July 2011, the respondent told the appellant that he had stopped paying rent because the business could not afford it. In July 2011, the appellant was told by the respondent of a proposed sale of the business for $20,000, to which she agreed. She heard nothing further about the proposed sale.

In September 2011, the appellant attended Perfect Cleaner’s premises and found a new dry cleaning business operating there. The “new owner” told her he had purchased the business from the landlord, which the appellant was “confused and shocked” by. The appellant learned that the respondent had filed Articles of Dissolution for the Corporation, without her consent, in October 2011. Further, in December 2011, the appellant was directed by the Canada Revenue Agency to pay tax on a dividend she allegedly received from Perfect Cleaner, although she received no such dividend. In January 2012, she sued the respondent in Small Claims Court and obtained judgment for the amount of the alleged dividend.

In October 2013, the appellant commenced this action claiming damages, punitive damages, and an accounting and tracing of revenues and sale proceeds generated by the Corporation. The respondent moved successfully for summary judgment on the sole basis that the action was brought after the expiration of the applicable limitation period and was thus statute-barred. Accordingly, the motion judge held that the limitation period in s. 4 of the Limitations Act, 2002 had expired before the action was commenced, and she granted summary judgment dismissing the action. The appellant appealed this decision.

issues:

(1) Is this a case alleging singular discrete oppressive acts?

(2) Does the date of the corporate dissolution or when it was discovered mean the entire action can proceed?

(3) Is the corporate dissolution claim statute-barred?

holding:

Appeal allowed in part.

reasoning:

(1) Yes. In the Court’s view, the approach in Maurice applied here because what is alleged are singular discrete oppressive acts, rather than “ongoing oppression”. These are each singular discrete oppressive acts, because they are different acts occurring at different times and because none of them is dependent upon either of the others having happened for oppression to be said to have occurred.

If the respondent had failed to distribute profits but neither transferred the business nor dissolved the Corporation, the appellant would, upon discovery, have had an oppression claim for failure to distribute profits. Similarly, if the respondent had only sold the business and kept sale proceeds, or if he had only dissolved the Corporation, the appellant would still have an oppression claim for these singular discrete acts, even if none of the others occurred. As Maurice points out, conduct may consist of singular discrete acts of oppression even where the later oppressive conduct was based on or in furtherance of the earlier oppressive conduct.

(2) No. The Court agreed with the respondent that neither the date of the corporate dissolution, nor when it was or ought to have been discovered, entails the conclusion that the entire action should have been viewed as commenced within the limitation period and not statute-barred. Even though the motion judge did not deal with whether the dissolution was a singular discrete act of oppression occurring after September 3, 2011, the failure to do so did not undermine her conclusion with regard to the discoverability of the sale claim and the profits distribution claim.

The motion judge appropriately focused on the facts of which the appellant was aware as of September 3, 2011, and was entitled to find that the sale claim and the profits distribution claim were discoverable by September 3, 2011. That the sale claim and the profits distribution claim are founded on discrete acts of oppression serves to rebut the contention that they were only discoverable when the dissolution of the Corporation occurred. The appellant did not need to know that the Corporation was dissolved to discover that she had a potential claim for oppression for an improper transfer or sale of the business, or a potential claim for oppression for a failure to pay profits. Whether the Corporation continued to exist or not, the sale claim and the profits distribution claim were actionable. The limitation period is not extended for acts of oppression that are actionable in themselves simply because a later singular discrete act of oppression occurs. Courts must be careful not to convert singular oppressive acts into ongoing oppression claims in an effort to extend limitation periods. Further, the motion judge was entitled to not give effect to the appellant’s assertions that she hoped to find the business operating elsewhere or that the respondent’s failure to account for profits or sale proceeds might be remedied.

Thus, the motion judge’s determination that the appellant’s claims were discoverable and that they should be dismissed as statute-barred, should stand in respect to the sale claim and profits distribution claim. It was grounded in the record and is not the product of any legal error and is entitled to deference.

(3) No. The corporate dissolution claim should have been allowed to proceed. The Court did not accept the respondent’s argument that once the appellant was able to discover that any oppressive acts had occurred, that started the limitation period clock for future acts of oppression, such that the corporate dissolution claim became statute-barred when the sale claim and profits distribution claims did.

Just as the other claims in the action did not depend on the later corporate dissolution, a claim concerning the dissolution of the Corporation without notice or shareholder authorization is a claim for a singular discrete act of oppression that is actionable even if the sale claim and profits distribution claim are statute-barred. The corporate dissolution claim was not discoverable on September 3, 2011, as the corporate dissolution had not yet occurred. Nor does it follow from the motion judge’s findings that the corporate dissolution claim should have been discovered before October 30, 2011.


Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional v. Garcia, 2020 ONCA 124

[Pepall, Pardu and Paciocco JJ.A.]

Counsel:

David Milosevic, for the appellants
Jacqueline L. King and Christopher Gaytan, for the respondent

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Breach of Fiduciary Duty, Conspiracy, Defences, Ex Turpi Causa, Corporate Identification Doctrine, Civil Procedure, Limitation Periods, Reasonable Apprehension of Bias, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63

facts:

This appeal involved a massive fraud against the respondent, a Paraguayan pension fund (“Cajubi”), perpetrated by the individual EG and corporate appellants. Management of Cajubi brought an action in an attempt to recover millions of dollars lost. The trial judge concluded that the appellants were variously responsible for all of Cajubi’s losses as the investments would not have been made but for their fraudulent misrepresentations. He granted judgment in favour of Cajubi against the appellants for fraudulent misrepresentation and breach of fiduciary duty in the total amount of $20,843,888 and ordered an accounting. He also ordered punitive damages of $250,000 against EG due to the brazen fraud and EG’s “vicious scorched earth campaign” to damage or seek revenge from witnesses or professionals he deemed to be his enemies. CG was ordered to pay $100,000 in punitive damages.

issues:

(1) Did the trial judge fail to consider the appellants defence based on the corporate identification doctrine?

(2) Did the trial judge neglect to address the appellants’ stand-alone limitation defence (as distinct from the limitation submission made at trial that was dependent on the success of the corporate identification ground of appeal)?

(3) Did the trial judge err by finding the appellants liable for conspiracy when it was not pleaded against them?

(4) Did the trial judge err in finding that there was reliance by Cajubi on the appellants’ representations?

(5) Did the conduct of the trial judge raise a reasonable apprehension of bias?

holding:

Appeal dismissed.

reasoning:

(1) No. The corporate identification doctrine is not a free-standing rule; rather it is used for the purposes of applying the ex turpi causa doctrine which was also relied on by the appellants. The overriding concern is whether recovery by the respondent would damage the integrity of the legal system: Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 at para. 98. While the trial judge did not refer to the corporate identification doctrine or attribution by name, the Court found that he unquestionably considered and rejected its application and that of ex turpi causa.

(2) No. Although the trial judge did not address the limitation period argument, the limited evidence relied upon by the appellants would not ground a successful claim in this regard. The trial judge found that the appellants had worked to conceal their identities from Cajubi. The Court found that the earliest that any limitation period could begin to run would have been well within the applicable limitation period.

(3) No. The Court did not find any merit in the appellants’ written submission on this issue. The judgment against the appellants was not for conspiracy but for fraudulent misrepresentation, a conclusion amply supported by the record.

(4) No. The trial judge found that the appellants were variously responsible for all of Cajubi’s net losses arising from the transactions in issue, none of which would have been entered into but for their fraudulent misrepresentations. The Court held that there was no other reasonable inference available because the evidence and the trial judge’s many findings made it abundantly clear that the appellants’ conduct caused Cajubi to act.

(5) No. A review of the closing submissions of the appellants showed that the trial judge was engaged in attempting to find answers to the shortcomings in the appellants’ case and was challenging counsel, albeit in a somewhat aggressive fashion, to provide guidance on the merits of his clients’ case. Their exchanges did not give rise to a reasonable apprehension of bias.


SHORT CIVIL DECISIONS

Ochnik v. Ontario Securities Commission (Appeal Book Endorsement), 2020 ONCA 97

[Simmons, Pepall and Trotter JJ.A.]

Counsel:

Matthew Tubie, for the appellant
Linda Fuerst, for the respondent Ontario Securities Commission
Jonathan Wansbrough, for the respondents TD Waterhouse, Toronto-Dominion Bank (TD Bank) and Hatice E. Pakdil

Keywords: Civil Procedure, Amending Pleadings

Marley v. Salga, 2020 ONCA 104

[Simmons, Pepall and Trotter JJ.A.]

Counsel:

Lionel J. Tupman, Arieh Bloom and Caroline Tarjan, for the appellant
Holly LeValliant and Joshua Eisen, for the respondents SS and MS
Anne Marie DiSanto, for the respondent HK

Keywords: Real Property, Joint Tenancies, Severance, Evidence, Admissibility

Ustymenko v. Sadochok Centre Inc. (Sadochok Preschool Centre), 2020 ONCA 123

[Simmons, Pepall and Trotter JJ.A.]

Counsel:

John W. Bruggeman, for the appellants
Derrick M. Fulton and Taras Kulish, for the respondent

Keywords: Corporations, Civil Procedure, Derivative Actions

Gagnon (Re) (Appeal Book Endorsement), 2020 ONCA 126

[Doherty, Brown and Thorburn JJ.A.]

Counsel:

Colby Linthwaite, for the appellant, PG
Miranda Spence, for the respondent, Royal Bank of Canada

Keywords: Bankruptcy and Insolvency


CRIMINAL DECISIONS

R. v. A, 2020 ONCA 101

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

Counsel:

Michael Dineen and Gabriel Catner, for the appellant
Scott Wheildon, for the respondent

Keywords: Criminal Law, Arrest, Reasonable and Probable Grounds

R. v. T, 2020 ONCA 100

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

Counsel:

Michael Lacy and Bryan Badali, for the appellant ZT
Philip Norton, for the appellant DM
Katie Doherty, for the respondent

Keywords: Criminal Law, Procedural Fairness, Reasonable Apprehension of Bias, Juries, Jury Instructions, Evidence, Identity, Sentencing

R. v. Z, 2020 ONCA 99

[Benotto, Miller and Harvison Young JJ.A.]

Counsel:

Mark Halfyard and Chris Rudnicki for the appellant
Michael Dunn, for the respondent

Keywords: Criminal Law, Evidence, Credibility

R. v. L, 2020 ONCA 102

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

Counsel:

Christopher R. Murphy, for the appellant
Ken Lockhart, for the respondent

Keywords: Criminal Law, Defences, Necessity, Sentencing, R. v. Wobbes, 2008 ONCA 567, R. v. Latimer, 2001 SCC 1, R. v. Cinous, 2002 SCC 29, R. v. Singh, 2019 ONCA 872

R. v. M, 2020 ONCA 107

[Feldman, MacPherson and Gillese JJ.A]

Counsel:

M, in person
Matthew Gourlay, duty counsel
Michael Fawcett, for the respondent

Keywords: Criminal Law, Defences, Necessity, Sentencing

R. v. P, 2020 ONCA 108

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

Counsel:

Breana Vandebeek, Mark Halfyard, for the appellant
Lisa Joyal, for the respondent

Keywords: Criminal Law, Expert Evidence, Admissibility, Jury Instructions

R. c. A, 2020 ONCA 112

[Rouleau, Benotto and Harvison Young]

Counsel:

MA, in person
Vallery Bayly, for the respondent

Keywords: Criminal Law, Appeals, Inadequate Representation

R. v. A, 2020 ONCA 106

[Strathy C.J.O., Harvison Young and Jamal JJ.A.]

Counsel:

Delmar Doucette and Angela Ruffo, for the appellant SA
Daniel Brodsky, for the appellant LJ
Dirk Derstine, for the appellant AE
Elise Nakelsky and Megan Petrie, for the respondent

Keywords: Criminal Law, Second-Degree Murder, Mens Rea, Severance, Evidence, Admissibility, Hearsay, Credibility, Prior Inconsistent Statements, Jury Instructions, Criminal Code, ss 21, 229, 235(1), 724(2)(a), 724(2)(b), 745(c), 745.1, 745.2, and 745.4, R. v. Spackman, 2012 ONCA 905, R. v. Pickton, 2010 SCC 32, R. v. Cooper, [1993] 1 S.C.R. 146, R. v. Williams, 2019 ONCA 846, R. v. Martineau, [1990] 2 S.C.R. 633, R. v. Kennedy, 2016 ONCA 879, R. v. Seaboyer, [1991] 2 S.C.R. 577, R. v. Crawford, [1995] 1 S.C.R. 858, R. v. Grant, 2015 SCC 9, R. v. Rojas, 2008 SCC 56, R. v. Oliver (2005), 194 C.C.C. (3d) 92 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 458, R. v. Deol, 2017 ONCA 221, W.(D.) instruction, R. v. B. (K.G.), [1993] 1 S.C.R. 740, R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal refused, [2000] S.C.C.A. No. 583, Mistrial, R. v. Khan, 2001 SCC 86, R. v. A.G., 2015 ONCA 159, R. v. Kendall (1987), 35 C.C.C. (3d) 105 (Ont. C.A.), R. v. Toten (1993), 14 O.R. (3d) 225 (C.A.), R. v. McCarroll, 2008 ONCA 715, R. v. Alvarez-Maggiani, 2018 ONSC 4834, Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2019), at p. 250, § 19.07, R. v. Atikian (1990), 1 O.R. (3d) 263 (C.A.), R. v. G.H., 2020 ONCA 1, R. v. Bevan, [1993] 2 S.C.R. 599, Sentencing, R. v. Shropshire, [1995] 4 S.C.R. 227, R. v. Salah, 2015 ONCA 23, R. v. Stiers, 2010 ONCA 656, leave to appeal refused, [2011] S.C.C.A. No. 150

R. v. AE, 2020 ONCA 117

[Sharpe, MacPherson and Jamal JJ.A.]

Counsel:

Matthew Gourlay and Peter Grbac, for the appellant
Roger A. Pinnock, for the respondent

Keywords: Criminal Law, Sentencing, R. v. Kienapple, [1975] 1 S.C.R. 729, R. v. Hayward (1993), 88 C.C.C. (3d) 193 (Ont. C.A.)

R. c. A, 2020 ONCA 118

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

Counsel:

Christine Mainville, for the appellant
Gabriel Poliquin, for the intervener, l’Association des juristes d’expression française de l’Ontario
Stéphane Marinier and Jessica Legrand, for the respondent

Keywords: Criminal Law, Criminal Procedure, Self-Represented Litigant, Canadian Charter of Rights and Freedoms, ss. 8 and 19, Criminal Code, s. 579(1), Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, Ontario (Provincial Police) c. Mosher, 2015 ONCA 722, Fresh Evidence, R. v. W. (W.) (1995), 100 C.C.C. (3rd) 225 (C.A. Ont.), R. v. Joanisse (1995), 102 C.C.C. (3rd) 35 (C.A. Ont.), leave to appeal denied, [1996] S.C.C.A. No. 347

R. v. F, 2020 ONCA 115

[Gillese, Rouleau and Fairburn JJ.A]

Counsel:

Michael Ellison, for the appellant
Adam Wheeler, for the respondent

Keywords: Criminal Law, Sentencing, R. v. Anthony-Cook, 2016 SCC 43, R. v. Nixon, 2011 SCC 34, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, the Hon. G. Arthur Martin, Chair (Toronto: Queen’s Printer for Ontario, 1993), R. v. Chuvalo (1987), 24 O.A.C. 71 (C.A.)

R. v. G, 2020 ONCA 127

[Lauwers, Trotter and Fairburn JJ.A.]

Counsel:

Jessica Zita, for the appellant
Catherine Weiler, for the respondent

Keywords: Criminal Law, Jury Instructions, Vetrovec Instruction, Sentencing, R. v. Vetrovec, [1982] 1 S.C.R. 811, R. v. Murray, 2017 ONCA 393, R. v. W.(D.), [1991] 1 S.C.R. 742

R. v. J.T., 2020 ONCA 125 (Publication Ban)

[Lauwers, Trotter and Fairburn JJ.A.]

Counsel:

Holly Loubert, for the appellant
Doug Baum, for the respondent

Keywords: Criminal Law, Youth Criminal Justice Act, S.C. 2002, c. 1, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan, 2016 SCC 27, R. v. K.J.M., 2019 SCC 55


ONTARIO REVIEW BOARD DECISIONS

J (Re), 2020 ONCA 113

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

Counsel:

Anita Szigeti, for the appellant
Andrew Cappell, for the Crown
Michele Warner, for the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, Appeals, Mootness

M (Re), 2020 ONCA 105

[Doherty, Watt and Hourigan JJ.A.]

Counsel:

Mercedes Perez, for the appellant
Lisa Fineberg, for the respondent, Her Majesty the Queen
Michele Warner, for the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, Not Criminally Responsible, Aggravated Assault, Assault with a Weapon, Kidnapping, Uttering Death Threats, Criminal Harassment, Breach of Probation, Criminal Code, s. 672.5401, Mental Health Act, R.S.O. 1990, c. M.7, s. 33.1


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.