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Good afternoon.

Following are our summaries of the Court of Appeal’s civil decisions released last week. There were several high profile decisions released.

In Brazeau v. Canada (Attorney General), Perrell J awarded $20 million in damages for the systemic cruel practice of solitary confinement in Canada’s prisons. However, instead of ordering that money to be paid to class members who had suffered as a result of the practice (following an individual claims process), he ordered the money to be used by the government to reform the penal system. The Court of Appeal found that the motion judge had no jurisdiction to make such an order, and that the damages had to be paid to the class members who proved their individual claims. Since the damages were determined on wrong principles, the issue of the amount of damages was remitted back to the motion judge for re-assessment.

In JB v Ontario (Child & Youth Services), a class action relating to the Motherisk scandal (where children were taken away from their parents by Children’s Aid Societies on the basis of faulty drug testing), the Court of Appeal confirmed that where government agencies exist to protect children, to avoid conflicting duties, they must only owe a duty of care to the children they serve and not to their parents as well. In addition, the Court held that the Province of Ontario does not owe a private law duty of care to child-plaintiffs to ensure child welfare agencies obtain reliable evidence. The class action on behalf of the parents whose children were taken away from them as a result of the Motherisk scandal was therefore dismissed as disclosing no cause of action. In the same proceeding, the Court released a separate decision dismissing a motion to have Benotto J recuse herself from the hearing of the appeal because she had previously heard an appeal involving the same plaintiff. There was no reasonable apprehension of bias.

In Urbancorp Cumberland 2 GP Inc. (Re), the Court applied The Guarantee Company of North America v Royal Bank of Canada, 2019 ONCA 9 in determining that the proceeds of sale of condominium units following the bankruptcy and subsequent CCAA protection of Urbancorp were trust proceeds under s 9(1) of the Construction Lien Act, and were therefore available to satisfy the claims of unpaid subcontractors that had supplied work and materials to improve the units. The Court distinguished its prior decision in Re Veltri Metal Products Co. (2005), 48 C.L.R. (3d) 161 (Ont. C.A.), which suggested a different outcome, on the facts.

Other topics covered last week included the interpretation of construction warranties, breach of a consulting contract for failure to complete a business survey, the enforceability of release provisions of a separation agreement after the parties reconciled and then subsequently separated again years later, whether there was an intention to enter into a binding settlement and the enforcement and variation of a final order for support.

By now, everyone will have heard about the announcements made by the Court of Appeal, the Superior Court, and the Ontario Court of Justice, effectively adjourning all scheduled matters and providing for the handling of only urgent matters for the time being. Our public institutions are about to be tested perhaps as never before. As officers of the court, it is our job to help the judiciary and MAG navigate this situation in a calm, cooperative and orderly fashion, while at the same time continuing to serve our clients, and ensuring that the Rule of Law remains paramount at all times. Our profession is made up of some of the brightest, most thoughtful and compassionate people within society, so I am sure that we will all be able to rise to the challenge together to get through this successfully.

Wishing everyone the best of health.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

A.A. v. Z.G. , 2020 ONCA 192

Keywords: Family Law, functus officio, Family Law Rules, Rule 15, Spousal Support, Bankruptcy

Miaskowski v. MacIntyre , 2020 ONCA 178

Keywords: Family Law, Contracts, Interpretation, Enforceability, Separation Agreements, Reconciliation, Releases, Equalization of Net Family Property, Pensions, Family Law Act, RSO.1990, c F3, s 4, Sydor v Sydor (2003), 178 OAC 155 (CA)

Rubner v. Rubner , 2020 ONCA 195

Keywords: Contracts, Enforceability, Civil Procedure, Settlements, Agency, Solicitors, Ostensible Authority, Dick v. McKinnon, 2014 ONCA 784, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

J.B. v. Ontario (Child and Youth Services) , 2020 ONCA 198

Keywords: Family Law, Child Protection, Motherisk, Torts, Negligence, Breach of Fiduciary Duty, Bad Faith, Rules of Civil Procedure, Rule 21, Child and Family Services Act, RSO 1990, c C 11, s 1(1), Laboratory and Specimen Collection Centre Licensing Act, RSO 1990, c L1, Public Hospitals Act, RSO 1990, c P40, Constitution Act, 1982, s 35(1), Canadian Charter of Rights and Freedoms, s 7, Syl Apps Secure Treatment Centre v BD, 2007 SCC 38, Anns v Merton London Borough Council, [1978] AC 728, [1977] 2 WLR 1024 (UK HL), Cooper v. Hobart, 2001 SCC 79, R v Imperial Tobacco Canada Ltd, 2011 SCC 42

J.B. v. Ontario (Child and Youth Services), , 2020 ONCA 199

Keywords: Family Law, Child Protection, Civil Procedure, Reasonable Apprehension of Bias, Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, R. v. S. (R.D.), [1997] 3 S.C.R. 484, Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, Miracle v. Miracle, 2017 ONCA 195, R. v. J.L.A., 2009 ABCA 344

Urbancorp Cumberland 2 GP Inc. (Re) , 2020 ONCA 197

Keywords: Bankruptcy and Insolvency, Priorities, Construction Law, Construction Trust, Constitutional Law, Division of Powers, Doctrine of Paramountcy, Construction Lien Act, R.S.O. 1990, c. C.30, ss. 7(2), 7(3), 8(1), and 9(1), Bankruptcy and Insolvency Act, R.S.C. 1985, c. B3, s. 67(1), Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 36(1), Re Veltri Metal Products Co. (2005), 48 C.L.R. (3d) 161 (Ont. C.A.), The Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9

RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP , 2020 ONCA 182

Keywords: Contracts, Breach, Damages, Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13, Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942, Mujagic v. Kamps, 2015 ONCA 360, Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, Place Concorde East Ltd. Partnership v. Shelter Corp. of Canada Ltd. (2006), 270 D.L.R. (4th) 181 (Ont. C.A.), S.M. Waddams, The Law of Damages, 5th ed., James Page: 20 Edelman, McGregor on Damages, 20th ed., Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

2099082 Ontario Limited v. Varcon Construction Corporation , 2020 ONCA 202

Keywords: Contracts, Interpretation, Warranties, Construction, Civil Procedure, Appeals, Final or Interlocutory, Summary Judgment, Rules of Civil Procedure, Rules 20.04(2), 62.02(4), Courts of Justice Act, s. 6(2), Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), Azzeh v. Legendre, 2017 ONCA 385, Hryniak v. Mauldin, 2014 SCC 7, All-Terrain Track Sales and Services Ltd. v. 798839, 2020 ONCA 129

Brazeau v. Canada (Attorney General), , 2020 ONCA 184

Keywords: Torts, Systemic Negligence, Solitary Confinement, Causation, Constitutional Law, Cruel and Unusual Punishment, Right to Life, Liberty and Security of the Person, Charter Damages, Civil Procedure, Class Proceedings, Summary Judgment, Limitation Periods, Canadian Charter of Rights and Freedoms, ss. 7, 12, 24(1), Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 31-37, Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, 1st Sess., 42nd Parl., 2019, Rules of Civil Procedure, Rule 20.04(2.1), Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 34, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 24-26, Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228, Hryniak v. Mauldin, 2014 SCC 7, Doig v. Canada (Minister of National Revenue), 2011 FC 371, Vancouver (City) v. Ward, 2010 SCC 27, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13, Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347, Wynberg v. Ontario (2006), 82 O.R. (3d) 561 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 441, Sagharian v. Ontario (Education), 2008 ONCA 411, 172 C.R.R. (2d) 105, leave to appeal refused, [2008] S.C.C.A. No. 350, Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667, Sansregret v. The Queen, [1985] 1 S.C.R. 570, Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921, Good v. Toronto (Police Services Board), 2016 ONCA 250, leave to appeal refused, [2016] S.C.C.A. No. 255, MacLean v. The Queen, [1973] S.C.R. 2, Cooper v. Hobart, 2001 SCC 79, Edwards v. Law Society of Upper Canada, 2001 SCC 80, Eliopoulos (Litigation Trustee) v. Ontario (Minister of Health and Long-Term Care) (2006), 82 O.R. (3d) 321 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 514

Short Civil Decisions

Moazzani v. Roudechi-Ghias , 2020 ONCA 193

Keywords: Contracts, Real Property, Mortgages, Enforceability, Redemption

Weisleder v. Ontario Secondary School Teachers’ Federation , 2020 ONCA 181

Keywords: Torts, Defamation, Defences, Qualified Privilege, Civil Procedure, Summary Judgment, Viva Voce Evidence, Baglow v. Smith, 2012 ONCA 407, McDonald v. Freedman, 2013 ONSC 6812

Caplan v. N.A. , 2020 ONCA 205

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

Criminal Decisions

R. v. D. , 2020 ONCA 179

Keywords: Criminal Law, Breach of Trust, Fraud, R. v. Boulanger, 2006 SCC 32, R. v. Mack, [1988] 2 S.C.R. 903, R. v. Villaroman, 2016 SCC 33

R. v. M., 2020 ONCA 187

Keywords: Criminal Law, Sexual Assault, Functus Officio, R. v. Griffith, 2013 ONCA 510, R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), R. v. Kippax, 2011 ONCA 766

R. v. N. , 2020 ONCA 176

Keywords: Criminal Law, Appointment of Counsel

R. v. B.-S. , 2020 ONCA 204

Keywords: Criminal Law, Advocating Genocide, Promotion of Hatred, Criminal Harassment, Reasonable Apprehension of Bias

R. v. B. , 2020 ONCA 196

Keywords: Criminal Law, Possession of a Loaded Restricted Firearm Without a License, Possession of Cocaine, R. v. Duncan, 2016 ONCA 754, R. v. Summers, 2014 SCC 26, R. v. Ward-Jackson, 2018 ONSC 178

Ontario Review Board Decisions

Koundakjian (Re), 2020 ONCA 191

Keywords: Ontario Review Board


CIVIL DECISIONS

A.A. v. Z.G., 2020 ONCA 192

Tulloch, Benotto and Jamal JJ.A

Counsel:

Lauren Daneman, Mark Russell and William Friedman, for A.A. and S.A.
David Weisman, for Z.G., for the respondents

Keywords: Family Law, functus officio, Family Law Rules, Rule 15, Spousal Support, Bankruptcy

facts:

AA and ZG were married in 1991. SA, AA’s father, advanced funds to the couple towards the construction of a new home and the couple signed a mortgage to AA’s father in the amount of $800,000.
The parties separated in 2008. In 2009, ZG purchased AA’s interest in the home from him which was held as security for support payments. ZG later sold the home to third parties, using the proceeds to pay back the mortgage in favour of SA.

The parties agreed that SA would post a letter of credit to secure ongoing support and equalization payments.
At trial, the trial judge ordered AA to pay to ZG $7,000 of support per month or, at his option, a lump sum of $585,000, $196,462 in retroactive child support, and an equalization payment of $489,354 plus interest. AA was also required to provide a letter of credit to secure the payments. AA paid nothing to ZG post-judgment and filed an assignment in bankruptcy in 2017. Upon being discharged, ZG received $44,000.

By 2019, AA’s arrears of support alone exceeded $1 million and he decided he wanted to pay the outstanding amounts for support using the lump sum option. AA brought a motion for advice and directions regarding the lump sum payment and spousal support provisions in the judgment, and an order that ZG be required to provide a satisfaction piece upon payment of certain sums and consent to release to SA the letter of credit for $800,000. ZG brought a motion to draw on the letter of credit to pay support. The motion judge dismissed AA’s motion and provided clarification that the spousal support was $7,000 per month if the lump sum was not paid and that the letter of credit was to secure payments to ZG for support and equalization. ZG’s motion was allowed and by addendum, the motion judge apportioned $20,000 in costs between the support and property claims. AA and SA appealed.

issues:

1. Was the motion judge functus officio when he varied the judgment?
2. Did the motion judge err in terminating the lump sum spousal support order and converting it into an obligation to pay periodic support indefinitely?
3. Did the motion judge err by misapprehending the impact of the bankruptcy?
4. Did the motion judge err by ordering the letter of credit to be paid to the wife?
5. Did the motion judge err in apportioning the costs order?

holding:

Appeal dismissed.

reasoning:

1. No. Even if the motion judge changed the final order, which he did not, the court has authority to change a final order pursuant to Rule 15 of the Family Law Rules.

2. No. The motion judge did not “convert” the lump sum payment to a periodic support payment. The periodic support payment was in the judgment. The husband’s failure to pay the lump sum meant that the periodic support continued.

3. No. The appellants submitted that the motion judge misapprehended the effect of the bankruptcy by explaining that the equalization payment remained owing. They submitted that the bankruptcy extinguished the obligation to make the equalization payment. The court did not agree, finding that the motion judge had indicated that the line of credit was to secure equalization and support and this “[created] an equitable trust”. As an equitable trust it did not form part of the bankrupt’s estate.

4. No. The letter of credit to ZG was released in advance of the appeal and no longer formed part of the appeal.

5. No. It was appropriate for the trial judge to allocate a portion of the trial costs to support.


Miaskowski v. MacIntyre, , 2020 ONCA 178

Feldman, Brown, and Zarnett JJA

Counsel:

M Stangarone and S Kirby, for the appellant
A Kania, for the respondent

Keywords: Family Law, Contracts, Interpretation, Enforceability, Separation Agreements, Reconciliation, Releases, Equalization of Net Family Property, Pensions, Family Law Act, RSO.1990, c F3, s 4, Sydor v Sydor (2003), 178 OAC 155 (CA)

facts:

The parties married on October 16, 1997 and separated for the first time on July 22, 1999. They entered into a separation agreement dated January 18, 2002. The separation agreement contains a number of releases including a release by the wife of her rights in the husband’s Canada Post pension:

19.3 The wife specifically releases any rights or claims she may have to a share of the husband’s Canada Post pension.
The separation agreement also has a provision that preserves the agreement in the event of reconciliation and cohabitation for less than 90 days and voids it if the parties reconcile for a longer period. The parties reconciled four years after they signed the separation agreement. They then remained together for almost nine more years.

The main issue at trial and the only issue on appeal was the extent of the appellant wife’s entitlement to share in the value of the respondent husband’s Canada Post pension. The respondent did not take the position that the appellant had no claim to any share in that pension. Rather, the parties placed two options before the court at trial for the commencement date from which to value the pension: either the appellant is entitled to an equalization payment based on the value of the respondent’s pension from the date of their marriage in 1997 to the date of the second separation ($272,161.55), or her entitlement is based on the value of the pension from the date of reconciliation in 2006 until the second separation ($139,356.14).

The trial judge held that the specific pension release clause was not voided by the parties’ reconciliation based upon the proposition from Sydor v Sydor that a separation agreement is void upon reconciliation “subject to a specific clause in the agreement that would override the common law or a clause that would be implied from the agreement that the intent of the parties was that transactions carried out under the agreement will remain in place”. The trial judge found that the appellant’s release of any claim or right to the respondent’s pension was the kind of “specific release” referred to in Sydor and survived her reconciliation with the respondent. He also found there was no evidence of the parties’ conduct that would set aside the clear terms of the agreement, and those terms were therefore a bar to the appellant’s claim to share in the respondent’s pension prior to their reconciliation.

The appellant appealed on three issues, one of which was whether the trial judge erred by failing to consider the Pension Benefits Act and its regulations that the “starting date” for a pension valuation in the family law context is the date of marriage. However, this argument was not made at trial and therefore not appealable.

issues:

(1) Did the trial judge misapprehend the evidence regarding whether there was a “payment” for the value of the pension to carry out the terms of the separation agreement?
(2) Did the trial judge err in finding that the pension release was not voided by the parties’ reconciliation contrary to the express terms of the reconciliation clause?

holding:

Appeal allowed.

reasoning:

(1) Yes. The evidence was clear that no portion of the equalization payment that the appellant received related to the value of the husband’s Canada Post pension. It was clear from the terms of the agreement, substantiated by the undisputed evidence of the appellant, was that no amount was paid to the appellant in respect of any pension entitlement as part of the equalization payment. Therefore, the trial judge’s statement that “[t]he equalization payment to her was the sort of ‘payment, conveyance or act’ envisioned by the agreement” constitutes a palpable and overriding error in the apprehension of the evidence and the application of the terms of the agreement.

(2) Yes. The language of the voiding clause in the separation agreement clearly demonstrated the intent on reconciliation to return the parties to the position they were in prior to separation. The bargain they made on separation, whereby they released each other from future rights and obligations, is set aside and becomes void. The parties are meant to regain all the rights they had as spouses that were bargained away in the separation agreement.

In addition, the Court held that there was no unfairness related to a provision that intra-spousal transfers and payments made upon initial separation, and before reconciliation, were not to be undone. It was the husband’s position that the wife should not be entitled to share in the value of his Canada Post pension for the roughly seven-year period during which they were living separate and apart. The Court explained that this did not represent an unfair “payment” or “transfer”, but rather the entitlement under section 4 of the Family Law Act, which entitles married spouses to share in net family property so long as they remain legally married. The appellant was therefore entitled to an equalization payment in respect of the pension from the date of marriage, not from the date or reconciliation.


Rubner v. Rubner, 2020 ONCA 195

Tulloch, Benotto and Jamal JJ.A.

Counsel:

Markus Kremer and Graham Splawski, for the appellant
Sean M. Grayson, for the respondent

Keywords: Contracts, Enforceability, Civil Procedure, Settlements, Agency, Solicitors, Ostensible Authority, Dick v. McKinnon, 2014 ONCA 784, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

facts:

The parties – M and J – are brothers who disputed whether they reached a binding settlement agreement of the litigation between them relating to their respective interests in a real estate business.

The application judge sided with J’s position, based on his interpretation of documents and emails relating to the alleged agreement and evidence of the surrounding circumstances preceding it. The application judge found that a handwritten document of “Deal Points” signed by J, which was provided to M and his counsel, limited the authority of J’s counsel to renegotiate the Deal Points; it merely authorized J’s counsel to negotiate comprehensive minutes of settlement implementing them. The application judge held that “no agreement was reached between [M] and [J] on the ‘Deal Points’ or material terms of the settlement. There was no mutual intention to agree and accordingly no binding settlement was reached between them”.

issues:

(1) Was a binding settlement agreement of the litigation reached between the parties?

holding:

Appeal dismissed.

reasoning:

(1) No. The application judge’s interpretation of the Deal Points in light of the surrounding circumstances to determine whether the parties reached a binding settlement agreement was a question of mixed fact and law reviewable only for palpable and overriding error. The application judge’s decision was therefore entitled to appellate deference.

The Court was not persuaded that the application judge failed to apply the correct legal test for ostensible authority. It is a settled proposition that a solicitor of record has the ostensible authority to bind his or her client and that opposing counsel is entitled to rely on that authority, absent some indication to the contrary. The application judge found an “indication to the contrary” regarding the ostensible authority of J’s counsel in J’s handwritten notation on the Deal Points, that limited his counsel’s authority to negotiating the minutes of settlement. The Court held that the application judge’s application of the settled test for ostensible authority to his findings of fact is entitled to appellate deference.


J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198

van Rensburg, Benotto and Harvison Young JJ.A.

Counsel:

K Hensel and K Unrau, for the appellant JB
J Kirkpatrick, for the appellants YM, CT, TW, CR, and MMD
E Bowker and E Xega, for the respondents Children’s Aid Society of the Regional Municipality of Waterloo, Catholic Children’s Aid Society of Toronto, Children’s Aid Society of Hamilton, Family Youth Child Services of Muskoka and Child Protection Worker(s) John Doe/Jane Doe

Keywords: Family Law, Child Protection, Motherisk, Torts, Negligence, Breach of Fiduciary Duty, Bad Faith, Rules of Civil Procedure, Rule 21, Child and Family Services Act, RSO 1990, c C 11, s 1(1), Laboratory and Specimen Collection Centre Licensing Act, RSO 1990, c L1, Public Hospitals Act, RSO 1990, c P40, Constitution Act, 1982, s 35(1), Canadian Charter of Rights and Freedoms, s 7, Syl Apps Secure Treatment Centre v BD, 2007 SCC 38, Anns v Merton London Borough Council, [1978] AC 728, [1977] 2 WLR 1024 (UK HL), Cooper v. Hobart, 2001 SCC 79, R v Imperial Tobacco Canada Ltd, 2011 SCC 42

facts:

The Motherisk Drug Testing Laboratory (“Motherisk”), housed in the Hospital for Sick Children (“SickKids”) in Toronto, performed hair follicle testing for drug and alcohol abuse. It became evident that some of the test results, used in child protection proceedings, were flawed. At issue in this appeal was the potential liability of various Children’s Aid Societies (collectively, the “CAS”), the Ontario government (“Ontario”) and certain named workers arising from the unreliable test results.

Family members of children who were the subject of protection proceedings sued the CAS and Ontario for damages as a result of the faulty test results.

The CAS and Ontario brought motions pursuant to Rule 21 of the Rules of Civil Procedure requesting that the actions be dismissed because it was plain and obvious they could not succeed. Applying the Supreme Court of Canada’s decision in Syl Apps Secure Treatment Centre v BD, the motion judge concluded that the CAS owed a duty of care to the children, not to the parents or family members. She also dismissed the actions against Ontario on the basis it did not owe a duty of care to the parents, families or children investigated or apprehended by the CAS. The motion judge further found that while Ontario has a broad duty to the public at large in the establishment and operation of laboratories, Ontario has no liability for the Motherisk testing in either its supervisory role over the CAS and Motherisk, or as a result of various statutes governing the operations of hospitals and laboratories. She struck the additional actions against the CAS and Ontario after concluding that they were based on a duty of care that did not exist.
Six of the appellants appealed.

issues:

(1) Did the motion judge err in determining on the Rule 21 motion that it was plain and obvious that there was no reasonable cause of action against the CAS and/or Ontario;
(2) Did the motion judge err in not conducting a thorough analysis according to the Anns test against the CAS;
(3) Did the motion judge err in not conducting a thorough analysis according to the Anns test against the CAS and Ontario;
(4) Did the motion judge err in rejecting the claim for bad faith;
(5) Did the motion judge err in striking the Charter claims; and
(6) Did the motion judge err in determining that Ontario did not have a fiduciary duty to aboriginal parents under section 35(1) of the Constitution Act?

holding:

Appeals dismissed.

reasoning:

(1) No. The motion judge correctly struck the appellants’ claims for failure to disclose a reasonable cause of action, even in light of the generous approach from R v Imperial Tobacco Canada Ltd.

(2) No. Both the statutory framework and jurisprudence governing child welfare proceedings make it clear that the negligence claims against the CAS cannot succeed. In addition, the underlying ratio of Syl Apps Secure Treatment Centre v BD is that where entities exist to protect and provide for children’s best interests, to avoid conflicting duties, they must only owe a duty of care to the children they serve. On this point, there is no principled reason to differentiate between a treatment centre and the CAS. Furthermore, the Court did not agree with the appellants’ distinction between the child welfare investigation stage and proceeding stage (i.e., pre- and post-apprehension) to argue that the courts have not determined whether the CAS owes a duty of care to parents at the investigation stage. Syl Apps is clear: the duty at all stages is to the child.

(3) No. Regarding the first allegation that Ontario was negligent in its supervisory role of the CAS, the Court found that the claim could succeed for the same reasons that the CAS does not owe a duty of care to parents or family members.

On the second allegation that Ontario was negligent in its supervisory role of SickKids and the MTDL, the Court found that neither the Public Hospitals Act or the Laboratory and Specimen Collection Centre Licensing Act gives rise to duties to individuals.
Finally, regarding the allegation that Ontario owed a private law duty of care to the child-plaintiffs to ensure CAS obtained reliable evidence, the Court held that the motion judge did not err in striking this claim after applying the Anns test and determining that there was no relationship of proximity from which a duty of care could arise.
(4) No. The motion judge was correct to strike the claim because the appellants were conflating the duty of care, which is necessary for the claim to succeed, with the standard of care, which may engage concepts of bad faith. Here, there is no duty of care to allow the consideration of bad faith.

(5) No. The Court found that the basis for the Charter claims was also in negligence and allegations of negligence cannot be “dressed up as Charter breaches”. Therefore, the motion judge did not err in striking these claims for failure to disclose a reasonable cause of action.

(6) No. The motion judge correctly held that the claim against the CAS Waterloo and Ontario had no chance of success because there is no fiduciary duty between them and indigenous parents or families – any duty would be owed to the indigenous child. In the context of child protection proceedings, the Court held that any duty flowing from these provisions is owed to the child, not the parent, by virtue of the Supreme Court’s decision in Syl Apps and therefore the claim had no possibility of success.


J.B. v. Ontario (Child and Youth Services), 2020 ONCA 199

van Rensburg, Benotto and Harvison Young JJ.A.

Counsel:

Katherine Hensel and Kaelan Unrau, for the appellant J.B.
Julie Kirkpatrick, for the appellants Y.M., C.T., T.W., C.R., and M.MD.
Jeremy Glick and Estée Garfin, for the respondent Her Majesty the Queen in Right of Ontario
Elizabeth Bowker and Ejona Xega for the respondents Children’s Aid Society of the Regional Municipality of Waterloo, Catholic Children’s Aid Society of Toronto, Children’s Aid Society of Hamilton, Family Youth Child Services of Muskoka and Child Protection Worker(s) John Doe/Jane Doe.

Keywords: Family Law, Child Protection, Civil Procedure, Reasonable Apprehension of Bias, Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, R. v. S. (R.D.), [1997] 3 S.C.R. 484, Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, Miracle v. Miracle, 2017 ONCA 195, R. v. J.L.A., 2009 ABCA 344

facts:

Counsel for J.B. requested that the panel be reconstituted to replace Benotto J.A. The basis for the request was her involvement in the Court’s unanimous decision in Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., which reinstated the trial judge’s no access order. Counsel for J.B. suggested that it would be “awkward” to make submissions to the same judge who had heard another appeal involving her client. Counsel did not assert actual bias, but rather the reasonable apprehension of bias.

issues:

(1) Was there a reasonable apprehension of bias?

holding:

Motion dismissed.

reasoning:

(1) No. No bias – actual or reasonably apprehended – could possibly arise and the Court denied the request. There is a strong presumption of judicial impartiality. A party who seeks to rebut this presumption bears a heavy burden. The issue is whether a hypothetical observer, who is informed of all the facts, would believe it is “more likely than not” that a judicial decision-maker “would not decide fairly”. This analysis does not engage the views or conclusions of a particular litigant before the court. A reasonable observer, informed of all the facts, would not conclude that a judge would appear to be biased only because of her involvement in another case affecting the same party.


Urbancorp Cumberland 2 GP Inc. (Re), 2020 ONCA 197

Pepall, Lauwers, van Rensburg, Zarnett and Thorburn JJ.A.

Counsel:

Kevin D. Sherkin and Jeremy Sacks, for the appellants, Toro Aluminum (A Partnership), Speedy Electrical Contractors Ltd., and Dolvin Mechanical Contractors Ltd.
Kenneth D. Kraft and Neil S. Rabinovitch, for the respondent, Guy Gissin, in his capacity as the Israeli Court Appointed Functionary Officer of Urbancorp Inc.
Adam M. Slavens and Jonathan Silver, for the respondent, Tarion Warranty Corporation
Robert J. Drake, for Fuller Landau Group Inc.
Hart Schwartz, for the intervener, the Attorney General of Ontario

Keywords: Bankruptcy and Insolvency, Priorities, Construction Law, Construction Trust, Constitutional Law, Division of Powers, Doctrine of Paramountcy, Construction Lien Act, R.S.O. 1990, c. C.30, ss. 7(2), 7(3), 8(1), and 9(1), Bankruptcy and Insolvency Act, R.S.C. 1985, c. B3, s. 67(1), Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 36(1), Re Veltri Metal Products Co. (2005), 48 C.L.R. (3d) 161 (Ont. C.A.), The Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9

facts:

The Cumberland Group, a residential condominium developer, was granted insolvency protection under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B3 (the “BIA”), which was continued under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (the “CCAA”). It owned unsold condominium units in a project it constructed. The appellants, Toro Aluminum (A Partnership), Speedy Electrical Contractors Ltd., and Dolvin Mechanical Contractors Ltd., had supplied work and material to these units. They were owed significant unpaid sums. The condominium units were ultimately sold during the insolvency proceedings. As a result of the sales, the appellants claimed that a trust arose over the proceeds to the extent of the amounts owing to them, which would give them an effective priority for these amounts. The motion judge rejected the trust claim, reasoning that he was bound to reach that conclusion due to the court-appointed Monitor’s involvement in the sale and the Court’s decision in Re Veltri Metal Products Co. (2005), 48 C.L.R. (3d) 161 (Ont. C.A.) [Veltri].

issues:

1. Does s. 9 of the Construction Lien Act (“CLA”) continue to have application following a bankruptcy or initial order under the CCAA?
2. Was the issue in Veltri decided incorrectly?
3. Did the motion judge err in applying the Veltri decision to the facts of this case and in finding no s. 9(1) trust arose?

holding:

Appeal allowed.

reasoning:

1. Yes. Under the CLA, a s. 9(1) trust is triggered by the receipt of proceeds of a sale of premises that have been improved by a contractor’s labour or materials. The question of whether a s. 9(1) trust is effective in insolvency can therefore arise in two situations. The first is when the sale precedes the insolvency filing, but the proceeds remain in the insolvent’s possession when the filing occurs. The second, more applicable situation, is when the sale that triggers the assertion of a s. 9(1) trust takes place after the insolvency filing. In The Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9, the Court found that s. 67(1)(a) of the BIA excludes property held in trust by the bankrupt from property of the bankrupt that is divisible among its creditors. However, this exception applies only if the trust satisfies the three certainties of general trust law, which s. 8(1) of the CLA does. Giving effect to a s. 8(1) trust in a bankruptcy did not conflict with or frustrate the purpose of the BIA, which was to provide for the distribution of the bankrupt’s remaining assets. In the case at bar, the Court found the same reasoning to apply to a s. 9(1) trust under the CLA. Further, the Court noted that if a s. 9(1) trust may be effective under the CLA when the insolvency is subject to the BIA, it follows that it may be effective when the insolvency is subject to the CCAA.

2. No. In Veltri, the lien claimants had provided work or materials to a specific property that Veltri had leased. The Sale Order provided that the sale proceeds, which included the sale of the leasehold interest, were to “stand in place and stead” of Veltri’s assets. The lien claimants thus had no claim to the assets because their claims were trust claims in respect of the proceeds of the sale of Veltri’s assets which were insufficient to pay the claims of Veltri’s secured creditors and were not trust monies in Veltri’s hands or received by it as owner, triggering ss. 7(2) and (3) of the CLA. The operative factors were that the sale in question was of assets that extended beyond the leasehold interest; that all of the assets sold were subject to the creditors’ security; that the assets could not be sold without the creditors’ consent; that the court order permitting the sale preserved the ability of those secured creditors to claim against the proceeds; and that the secured creditors were owed more than the amount received on the sale. Likewise, no s. 9(1) trust could arise because the amounts received from the sale of all the property were less than the amount to discharge the lenders’ security over them, and no amount was shown to be proceeds of the sale of the leasehold interest. A s. 9(1) trust only arises if the value of the consideration received by the owner from the sale of premises, which have been improved by the work or materials of the contractor, exceeds the amount of mortgage indebtedness.

3. Yes. Unlike in Veltri, this is a case where what was sold were exclusively units that were, within the meaning of the CLA, premises to which improvements had been made through the work and materials supplied by the appellants. The sales of the units that took place were sales “by the owner”. That the Cumberland Group subsidiaries entered into the agreements through a receiver representative does not detract from the fact that it was they who entered into the sale agreements as vendors. The sale by the owner was of the owner’s interest, notwithstanding that it occurred in an insolvency process which follows from s. 36(1) of the CCAA. Unlike in Veltri, the value of the consideration received on the sale was attributable to the sale of premises to which the improvement had been made, exceeded the mortgage debt, and was received by the owner, as it was deposited into bank accounts that had been opened for Cumberland Group subsidiaries in accordance with their registered ownership of the units sold. The issue under s. 9(1) of the CLA is simply whether the owner, regardless of who decides for it, had made a sale of its interest and received funds that exceeded mortgage indebtedness and the expenses of sale. Accordingly, the control the Monitor had over the process did not detract from the conclusion that the owner sold its interest and received consideration in excess of expenses and mortgage debt. Neither the BIA proposal proceedings nor the CCAA proceeding ended the existence of the Cumberland Group members, or vested their property in the Monitor. That some of the sales proceeds were spent on the expenses of the CCAA and to repay DIP loans was immaterial.


RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP, 2020 ONCA 182

Brown, Huscroft and Nordheimer JJ.A.

Counsel:

M. Philip Tunley and Jennifer P. Saville, for the appellants/respondents by way of cross-appeal
Peter Downard and Rachel Laurion, for the respondent/appellant by way of cross-appeal
Keywords: Contracts, Breach, Damages, Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13, Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942, Mujagic v. Kamps, 2015 ONCA 360, Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, Place Concorde East Ltd. Partnership v. Shelter Corp. of Canada Ltd. (2006), 270 D.L.R. (4th) 181 (Ont. C.A.), S.M. Waddams, The Law of Damages, 5th ed., James Page: 20 Edelman, McGregor on Damages, 20th ed., Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

facts:

The appellants lost several million dollars when they sold their shares in Performance Sports Group (PSG) at a loss. PSG is a sports equipment company that manufactured and sold hockey equipment. R, the previous Chairman of PSG, hired the accounting firm Grant Thornton (GT) to administer a survey of different retailers to obtain their views on PSG’s practices which he would then distribute to PSG’s board, in an attempt to win back a spot on the Board. The current Chairman of PSG requested a cessation to the survey and GT eventually withdrew its services because it determined that providing the service would negatively impact the firm’s reputation. Following this, the appellants attempted to conduct their own survey (the “SurveyMonkey”) using the same questions as the GT survey. The appellants asserted that GT caused them loss by refusing to complete the survey and refusing to provide the results of the unfinished survey.
R argued that if he had known the results of the survey, he would have arranged to sell his shares well before PSG sustained the losses that caused its share price to tumble. The appellants sued GT for breach of fiduciary duty and breach of contract; the trial judge dismissed the claim for breach of fiduciary duty but upheld the breach of contract.
The trial judge concluded that although GT breached the contract to complete the survey, the appellants did not suffer any damages as a result of the breach. The appellants argued that the trial judge erred in finding that GT’s breach did not cause their loss and in failing to award damages for lost opportunity, share loss, special damages and nominal damages.

issues:

(1) Did the trial judge err in determining causation of the loss in the value of the shares that the appellants incurred?

(2) Did the trial judge fail to award damages for lost opportunity, share loss, special damages and nominal damages?

holding:

Appeal and cross-appeal dismissed

reasoning:

(1) No. The appellants asserted that the trial judge was incorrect in determining that the SurveyMonkey information was substantially the same information that GT would have provided had it completed its report, and that the trial judge wrongly found that R subjectively believed that the SurveyMonkey results were credible information. The Court determined that the trial judge was entitled to conclude that the SurveyMonkey survey essentially obtained the same information that the GT survey would have obtained had it been completed.
Furthermore, the Court found that the trial judge was correct in finding that R subjectively believed the SurveyMonkey results were credible information, because R prepared a draft letter (that he intended to send to the Board of PSG) that amply supported this conclusion.

(2) No. The appellants argued that the trial judge erred in refusing to entertain their alternative claim for loss of opportunity; they claim that if GT had disclosed the survey results to R, R would have liquidated his PSG shares at that time, resulting in a much smaller profit loss. However, the trial judge found that R purchased additional shares of PSG even though he had information from his SurveyMonkey survey that was essentially the same as the GT survey would have revealed, and he relied on the SurveyMonkey findings as credible. The Court upheld the trial judge’s decision.

The appellants claimed special damages for professional fees, asserting that the trial judge misconstrued the case law. The Court upheld the trial judge’s decision that the appellants had failed to meet their onus to establish that they were entitled to special damages. The appellants also claimed nominal damages, but the Court found that nominal damages may be awarded where a breach of contract has been established but damages flowing from that breach have not.


2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202

Feldman, Huscroft and Harvison Young JJ.A.

Counsel:

Todd D. Storms and Zach Flemming-Giannotti, for the appellant Kenneth J. M. Coull, for the respondent

Keywords: Contracts, Interpretation, Warranties, Construction, Civil Procedure, Appeals, Final or Interlocutory, Summary Judgment, Rules of Civil Procedure, Rules 20.04(2), 62.02(4), Courts of Justice Act, s. 6(2), Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), Azzeh v. Legendre, 2017 ONCA 385, Hryniak v. Mauldin, 2014 SCC 7, All-Terrain Track Sales and Services Ltd. v. 798839, 2020 ONCA 129

facts:

This is an appeal from the motion judge’s decision, granting partial summary judgment to the respondent, 2099082 Ontario Limited, which carries on business as AWD Contractors (“AWD”).
The appellant, Varcon Construction Corporation (“Varcon”), was the general contractor for a project to construct additional buildings in a correctional facility near Joyceville, Ontario. Varcon engaged AWD as a subcontractor to supply labour and materials related to excavation, installation of a granular base, construction of pipe bedding, and installation of exterior sanitary pipe, backfilling and compaction of the backfill. The work was completed by AWD in the summer of 2013.

A dispute arose between the parties after Varcon refused to release the balance of AWD’s contract price to it. AWD commenced an action shortly thereafter, which Varcon defended. In late September 2016, after the pleadings were exchanged, the sewage system for the building failed. Varcon notified AWD that it required a remediation proposal. AWD refused do so unless Varcon established that its work was deficient.

AWD subsequently brought a motion for summary judgment, arguing that Varcon owed it the outstanding monies under the construction subcontract. In May 2017, AWD’s motion was granted, and Varcon was ordered to pay $39,064.87 into court. As a result of Varcon’s payment into court, Varcon was granted leave to issue a fresh counterclaim, which it did in June 2017.
In its counter-claim for damages, Varcon alleged, inter alia, that AWD’s work was deficient and that it failed to rectify the deficiencies. Varcon also claimed that AWD breached the warranty contained in the subcontract and was liable for the remediation work on that basis. AWD brought another motion for summary judgment to dismiss Varcon’s counterclaim in its entirety.

In granting partial summary judgment in favour of AWD, the motion judge held that AWD completed its work in compliance with the contract, and in a non-defective way, and no trial was required to determine this issue. The motion judge held that there was, however, a genuine issue requiring trial with respect to AWD’s liability under the subcontract’s warranty provisions.

Varcon appealed on the basis that the motion judge erred in granting partial summary judgment to AWD. AWD cross-appealed on the basis that the motion judge erred in holding that there was a genuine issue requiring trial with respect to the warranty issue. Specifically, AWD argued that the warranty was inapplicable in the circumstances. AWD thus took the position that Varcon’s counterclaim ought to have been dismissed in its entirety.

issues:

Appeal:
(1) Did the motion judge err in granting partial summary judgment to AWD?
Cross-Appeal:
(2) Did the motion judge err in ordering a trial on the warranty issue?

holding:

Appeal dismissed. Cross-appeal allowed.

reasoning:

(1) No. While the Court accepted that the motion judge made some unnecessary findings of fact, it held that those findings did not undermine the motion judge’s conclusion that AWD completed its work in compliance with the contract, and in a non-defective way, which was amply supported by the record. The Court further held that it was open to the motion judge to reject Varcon’s expert evidence, which she found to be unreliable and not credible.

(2) Yes. The Court held that the motion judge erred in ordering a trial on the warranty issue. In making its determination, the Court found that the record before the motion judge included all the evidence necessary to interpret the warranty and to determine whether it applied in the circumstances. Specifically, the Court found that the contractual documents contained a sufficient basis to resolve the dispute. The Court further held there was no indication that there would be better evidence or legal arguments on the issue at trial. As was noted by the Court, pursuant to Rule 20.04(2) of the Rules of Civil Procedure, summary judgment “must be granted if there is no genuine issue requiring a trial”: Hryniak v. Mauldin, 2014 SCC 7 at para. 68.

Turning to the specific wording of the warranty provision itself, the Court held that a plain reading of the terms was incapable of supporting Varcon’s position that AWD remained liable to Varcon whether or not its work was defective. As was noted by the Court, such an interpretation would effectively make AWD – one of the many subcontractors on the project – a guarantor of any or all defects in the project, which was an affront to sound commercial principles and good business sense: All-Terrain Track Sales and Services Ltd. v. 798839, 2020 ONCA 129, at para. 27. The Court further held that contrary to Varcon’s submission that that AWD “furnished” defective native soil, the terms of the contract specified that AWD was to use the native soil for backfilling. Accordingly, AWD could not be faulted for adhering to the contractual terms.

In allowing AWD’s cross-appeal, the Court rejected Varcon’s submission that the motion judge’s decision on the warranty issue was interlocutory, and AWD thus required leave to appeal. Instead, the Court held that this was a case in which the appeals from the final and interlocutory aspects of the motion judge’s order were “so interrelated” that the Court was able to hear both appeals together in accordance with s. 6(2) of the Courts of Justice Act, “on the basis that once the first issue was before this court, leave would inevitably have been granted on the second”: Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), at para. 9; Azzeh v. Legendre, 2017 ONCA 385, at para. 26.


Brazeau v. Canada (Attorney General), 2020 ONCA 184

Sharpe, Juriansz and Trotter JJ.A.

Counsel:

Gregory Tzemenakis, Eric Lafreniere, Lucan Gregory, Negar Hashemi, Sean Stynes, and Diya Bouchedid for the appellant
James Sayce, H. Michael Rosenberg, Charlotte-Anne Malischewski, Charles Hatt, Jacob Klugsberg, and Nathalie Gondek for the respondents
Andrea Bolieiro, Hera Evans, Alexandra Clark, and Matthew Chung, for the intervener, the Attorney General of Ontario

Keywords: Family Law, Contracts, Interpretation, Enforceability, Separation Agreements, Reconciliation, Releases, Equalization of Net Family Property, Pensions, Family Law Act, RSO.1990, c F3, s 4, Sydor v Sydor (2003), 178 OAC 155 (CA)

facts:

The parties married on October 16, 1997 and separated for the first time on July 22, 1999. They entered into a separation agreement dated January 18, 2002. The separation agreement contains a number of releases including a release by the wife of her rights in the husband’s Canada Post pension:

19.3 The wife specifically releases any rights or claims she may have to a share of the husband’s Canada Post pension.
The separation agreement also has a provision that preserves the agreement in the event of reconciliation and cohabitation for less than 90 days and voids it if the parties reconcile for a longer period. The parties reconciled four years after they signed the separation agreement. They then remained together for almost nine more years.

The main issue at trial and the only issue on appeal was the extent of the appellant wife’s entitlement to share in the value of the respondent husband’s Canada Post pension. The respondent did not take the position that the appellant had no claim to any share in that pension. Rather, the parties placed two options before the court at trial for the commencement date from which to value the pension: either the appellant is entitled to an equalization payment based on the value of the respondent’s pension from the date of their marriage in 1997 to the date of the second separation ($272,161.55), or her entitlement is based on the value of the pension from the date of reconciliation in 2006 until the second separation ($139,356.14).

The trial judge held that the specific pension release clause was not voided by the parties’ reconciliation based upon the proposition from Sydor v Sydor that a separation agreement is void upon reconciliation “subject to a specific clause in the agreement that would override the common law or a clause that would be implied from the agreement that the intent of the parties was that transactions carried out under the agreement will remain in place”. The trial judge found that the appellant’s release of any claim or right to the respondent’s pension was the kind of “specific release” referred to in Sydor and survived her reconciliation with the respondent. He also found there was no evidence of the parties’ conduct that would set aside the clear terms of the agreement, and those terms were therefore a bar to the appellant’s claim to share in the respondent’s pension prior to their reconciliation.

The appellant appealed on three issues, one of which was whether the trial judge erred by failing to consider the Pension Benefits Act and its regulations that the “starting date” for a pension valuation in the family law context is the date of marriage. However, this argument was not made at trial and therefore not appealable.

issues:

(1) Did the trial judge misapprehend the evidence regarding whether there was a “payment” for the value of the pension to carry out the terms of the separation agreement?
(2) Did the trial judge err in finding that the pension release was not voided by the parties’ reconciliation contrary to the express terms of the reconciliation clause?

holding:

Appeal allowed.

reasoning:

(1) Yes. The evidence was clear that no portion of the equalization payment that the appellant received related to the value of the husband’s Canada Post pension. It was clear from the terms of the agreement, substantiated by the undisputed evidence of the appellant, was that no amount was paid to the appellant in respect of any pension entitlement as part of the equalization payment. Therefore, the trial judge’s statement that “[t]he equalization payment to her was the sort of ‘payment, conveyance or act’ envisioned by the agreement” constitutes a palpable and overriding error in the apprehension of the evidence and the application of the terms of the agreement.

(2) Yes. The language of the voiding clause in the separation agreement clearly demonstrated the intent on reconciliation to return the parties to the position they were in prior to separation. The bargain they made on separation, whereby they released each other from future rights and obligations, is set aside and becomes void. The parties are meant to regain all the rights they had as spouses that were bargained away in the separation agreement.

In addition, the Court held that there was no unfairness related to a provision that intra-spousal transfers and payments made upon initial separation, and before reconciliation, were not to be undone. It was the husband’s position that the wife should not be entitled to share in the value of his Canada Post pension for the roughly seven-year period during which they were living separate and apart. The Court explained that this did not represent an unfair “payment” or “transfer”, but rather the entitlement under section 4 of the Family Law Act, which entitles married spouses to share in net family property so long as they remain legally married. The appellant was therefore entitled to an equalization payment in respect of the pension from the date of marriage, not from the date or reconciliation.


SHORT CIVIL DECISIONS

Moazzani v. Roudechi-Ghias, 2020 ONCA 193

Tulloch, Benotto and Jamal JJ.A.

Counsel:

Evan L. Tingley, for the appellant
Robert B. Cohen and Christopher Selby, for the respondent

Keywords: Contracts, Real Property, Mortgages, Enforceability, Redemption

Weisleder v. Ontario Secondary School Teachers’ Federation, 2020 ONCA 181

Feldman, Huscroft and Harvison Young JJ.A.

Counsel:

Alexander Zivkov, for the appellant
Joanna Birenbaum and Kristen Allen, for the respondent

Keywords: Torts, Defamation, Defences, Qualified Privilege, Civil Procedure, Summary Judgment, Viva Voce Evidence, Baglow v. Smith, 2012 ONCA 407, McDonald v. Freedman, 2013 ONSC 6812

Caplan v. N.A., 2020 ONCA 205

Watt, Lauwers and Fairburn JJ.A.

Counsel:

NA, acting in person
No one appearing for the respondent

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

CRIMINAL DECISIONS

R. v. D., 2020 ONCA 179

Feldman, Lauwers and Paciocco JJ.A.

Counsel:

Philip Campbell, for the appellant
Susan L. Reid, for the respondent

Keywords: Criminal Law, Breach of Trust, Fraud, R. v. Boulanger, 2006 SCC 32, R. v. Mack, [1988] 2 S.C.R. 903, R. v. Villaroman, 2016 SCC 33

R. v. M., 2020 ONCA 187

Strathy C.J.O., Miller and Trotter JJ.A

Counsel:

Mark Halfyard, for the appellant
Jennifer A.Y. Trehearne, for the respondent

Keywords: Criminal Law, Breach of Trust, Fraud, R. v. Boulanger, 2006 SCC 32, R. v. Mack, [1988] 2 S.C.R. 903, R. v. Villaroman, 2016 SCC 33

R. v. N., 2020 ONCA 176

Hoy A.C.J.O., Feldman and Gillese JJ.A.

Counsel:

Delmar Doucette, for the appellant
Hannah Freeman, for the respondent

Keywords: Criminal Law, Appointment of Counsel

R. v. B.-S., 2020 ONCA 204

Watt, Fairburn and Zarnett JJ.A.

Counsel:

Rupen Balaram-Sivaram, acting in person
Andrew Hotke, for the respondent

Keywords: Criminal Law, Advocating Genocide, Promotion of Hatred, Criminal Harassment, Reasonable Apprehension of Bias

R. v. B., 2020 ONCA 196

[Hoy A.C.J.O., Feldman and Gillese JJ.A.]

Counsel:

Jasfa Brown, acting in person
Delmar Doucette, appearing as duty counsel
Jessica Smith Joy, for the respondent

Keywords: Criminal Law, Possession of a Loaded Restricted Firearm Without a License, Possession of Cocaine, R. v. Duncan, 2016 ONCA 754, R. v. Summers, 2014 SCC 26, R. v. Ward-Jackson, 2018 ONSC 178


ONTARIO REVIEW BOARD DECISIONS

K. (Re), 2020 ONCA 191

Lauwers, van Rensburg and Roberts JJ.A.

Counsel:

Anita Szigeti, for the appellant
Ara Koundakjian Andrew Cappell, for the respondent the Attorney General of Ontario

Keywords: Ontario Review Board


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.