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Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 1, 2021.

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In Albert Bloom Limited v London Transit Commission, the Court explored limitation periods in the context of a historical environmental contamination claim.

In Pearce v. Canada (Staff of the Non-Public Funds, Canadian Forces), the Court found that under the terms of the relevant collective bargaining agreement, the Superior Court had jurisdiction to entertain a claim of constructive dismissal.

In United Mexican States v. Burr, an appeal from an international arbitral decision under NAFTA, the Court quashed the appeal on the grounds that the UNCITRAL Model Law on International Commercial Arbitration prohibited an appeal on a “preliminary question” of jurisdiction.

There were also a couple of family law decisions.

Please mark down April 27, 2021, from 5:30-7:45pm in your calendars for our fifth annual “Top Appeals” CLE, which will take place via Zoom. Justice Benjamin Zarnett will be co-chairing the event with myself and Chloe Snider of Dentons. Following is our excellent slate of decisions and speakers:

2020 Update from the Bench

The Honourable Benjamin Zarnett, Court of Appeal for Ontario

Panel 1 – Advocacy Practice Tips from the Court

Girao v. Cunningham, 2020 ONCA 260

OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532

Welton v. United Lands Corporation Limited, 2020 ONCA 322

Jordan Goldblatt, Adair Goldblatt Bieber LLP

Sara Erskine, Rueters LLP

Panel 2 – Negligently Designed Financial Products – A New Age in Product Liability?

Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337

Seumas Woods, Blake, Cassels & Graydon LLP

Alistair Crawley, Crawley MacKewn Brush LLP

Elizabeth Bowker, Stieber Berlach LLP

Panel 3 – Developments in Insolvency Law – Priority of Construction Trust Claims and Landlord Claims in Bankruptcy

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

7636156 Canada Inc. (Re), 2020 ONCA 681

Ken Kraft, Dentons LLP

Kevin Sherkin, Levine, Sherkin, Boussidan

D.J. Miller, Thornton Grout Finnigan LLP

In the meantime, please register for the program by visiting the OBA’s website.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

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Table of Contents

Civil Decisions

Bank of Montreal v Georgakopoulos , 2021 ONCA 60

Keywords: Contracts, Debtor-Creditor, Mortgages, Remedies, Equitable Mortgages, Civil Procedure, Summary Judgment, Rules of Civil Procedure, r. 20, 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280 (C.A.), Hryniak v. Mauldin, 2014 SCC 7, Elias Markets Ltd. (Re) (2006), 274 D.L.R. (4th) 166 (Ont. C.A.)

Siddiqui v Riahi , 2021 ONCA 63

Keywords: Family Law, Property, Resulting Trust, Beneficial Ownership, Net Family Property, Debts, Spousal Support, Child Support, Family Law Act, RSO 1990, c F3, “property”, ss. 4(1), Kerr v. Baranow, 2011 SCC 10, Korman v. Korman, 2015 ONCA 578

United Mexican States v Burr, 2021 ONCA 64

Keywords: International Law, Trade Law, North American Free Trade Agreement, Civil Procedure, International Arbitration, Appeals, Jurisdiction, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, s. 11, UNCITRAL Model Law on International Commercial Arbitration, arts. 16 and 34, United Mexican States v. Cargill, Inc., 2011 ONCA 622, The Russia Federation v. Luxtona Limited, 2019 ONSC 7558

Pearce v. Canada (Staff of the Non-Public Funds, Canadian Forces), 2021 ONCA 65

Keywords: Labour and Employment Law, Statutory Interpretation, Unionized Employees, Constructive Dismissal, Civil Procedure, Striking Pleadings, Jurisdiction, Rules of Civil Procedure, Rule 21.01(3)(a), Financial Administration Act, R.S.C. 1985, c. F-11, Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 236, Interpretation Act, R.S.C. 1985, c. I-21, s. 12, Bron v. Canada (Attorney General), 2010 ONCA 71, Vaughan v. Canada, 2005 SCC 11, Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, Evans v. Teamsters Local Union No. 31, 2008 SCC 20, Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10

Albert Bloom Limited v London Transit Commission, 2021 ONCA 74

Keywords: Real Property, Environmental Law, Historical Environmental Contamination, Torts, Negligence, Nuisance, Continuing Torts, Civil Procedure, Limitation Periods, Discoverability, Ultimate Limitation Period, Contribution and Indemnity, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss. 5(1)(a), 17, 18, Environmental Protection Act, R.S.O. 1990, c. E.19, s. 99, Crombie Property Holdings Limited v. McColl-Frontenac Inc., 2017 ONCA 16, Commercial Bank (Canada) v. Yung, 2018 ONCA 429, Longo v. MacLaren Art Centre, 2014 ONCA 526, Kaiman v. Graham, 2009 ONCA 77, Vellenga v. Boersma, 2020 ONCA 537, Starline Entertainment Centre Inc. v. Ciccarelli, (1995) 25 O.R. (3d) 765 (S.C), RVB Managements Ltd. v. Rocky Mountain House (Town), 2015 ABCA 188, Roberts v. City of Portage la Prairie, [1971] S.C.R. 481, Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Brozmanova v. Tarshis, 2018 ONCA 523

Short Civil Decisions

Patterson v Patterson, 2021 ONCA 70

Keywords: Wills and Estates, Attorneys for Property, Civil Procedure, Passing of Accounts, Appeals, Extension of Time, Substitute Decisions Act, s. 42(4)(6), Rules of Civil Procedure, Rules 61.07(1)(a), 61.12(6)(b), Rizzi v. Mavros, 2007 ONCA 350

Wang v Banton, 2021 ONCA 72

Keywords: Torts, Negligence, MVA, Civil Procedure, Appeals, Jurisdiction, Extension of Time, Medical Examinations, Courts of Justice Act, s. 19(1)(b), Rules of Civil Procedure, Rules 2.1.02(3), 3.02, 62.02(3), Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806

T.J.L v E.B., 2021 ONCA 75

Keywords: Publication Ban, Family Law, Divorce, Custody and Access, Joint Custody, Principal Residence, Child Support, Civil Procedure, Reasonable Apprehension of Bias, Presumption of Fairness, Children’s Law Reform Act, s. 24, Gordon v. Goertz, [1996] 2 SCR 27, Van de Perre v. Edwards, 2001 SCC 60, Perron v. Perron, 2012 ONCA 811, leave to appeal refused, [2013] SCCA No 26, Miglin v. Miglin (2001), 53 OR (3d) 641 (CA), reversed on other grounds, 2003 SCC 24, Yukon Francophone School Board, Education Areas #23 v. Yukon (Attorney General), 2015 SCC 25, Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369


CIVIL DECISIONS

Bank of Montreal v Georgakopoulos, 2021 ONCA 60

[Strathy C.J.O., Zarnett and Sossin JJ.A.]

Counsel:

P.G. and A.G., acting in person

C.J. Staples, for the respondent

Keywords: Contracts, Debtor-Creditor, Mortgages, Remedies, Equitable Mortgages, Civil Procedure, Summary Judgment, Rules of Civil Procedure, r. 20, 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280 (C.A.), Hryniak v. Mauldin, 2014 SCC 7, Elias Markets Ltd. (Re) (2006), 274 D.L.R. (4th) 166 (Ont. C.A.)

facts:

A Line of Credit Agreement had been entered into between the respondent bank and the appellants in 2008, secured by a mortgage on the appellants’ property in Oakville. The credit facility was repaid in 2015, out of the proceeds of sale of the Oakville property, and the mortgage was discharged.

The credit facility was supposed to be blocked by the respondent so that there could not be any further advances, but by mistake it was not. The appellants then drew another $295,000 from the facility, which they were not authorized to do, and which they did not repay. The evidence showed that the funds drawn from the credit facility in 2015 were used to pay off another lender’s mortgage on the appellants’ Toronto property.

The respondent brought a motion for summary judgment. The motion judge granted the motion and ordered the appellants to pay $342,316.74, representing the unauthorized credit advances and interest thereon. The motion judge’s order also declared an equitable mortgage in favour of the respondent over the Toronto property, and dismissed the appellants’ counterclaim.

issues:
  1. Did the motion judge lack jurisdiction to deal with any aspect of the respondent’s claims?
  2. Did the motion judge wrongly accept the evidence proffered by the respondent in justifying the order granting summary judgment?
  3. Did the motion judge lack the authority to declare an equitable mortgage against the Toronto property?
  4. Did the motion judge improperly dismiss the appellants’ counterclaim?
holding:

Appeal dismissed

reasoning:

(1) Did the motion judge lack jurisdiction to deal with any aspect of the respondent’s claims?

No. The respondent’s action was for: (i) repayment of unauthorized amounts drawn from the credit facility; (ii) an equitable mortgage to secure those amounts; (iii) repayment of unpaid credit card debt. The Court noted that the Superior Court of Justice has jurisdiction over all of those matters, as the Superior Court’s jurisdiction is unrestricted in substantive law in civil matters, except where there is a specific provision to the contrary (80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280 (C.A.)).

(2) Did the motion judge wrongly accept the evidence proffered by the respondent in justifying the order granting summary judgment?

No. As stated by the Court, a motion judge’s conclusion that there is no genuine issue requiring a trial is one of mixed fact and law which, in the absence of extricable legal error, will only be reversed for palpable and overriding error (Hryniak v. Mauldin, 2014 SCC 7). Contrary to the appellants’ submissions, the respondent’s evidence was not inadmissible hearsay, but rather the sworn statement of an employee discussing matters within her responsibility and personal knowledge. The Court also noted that the respondent’s evidence was more than sufficient to support the order, while the appellants offered no evidence to contradict that of the respondent’s witness.

The motion judge also applied the correct legal test in concluding that there was no genuine issue requiring a trial as to whether grant a declaration of an equitable mortgage, as set out in Elias Markets Ltd. (Re) (2006), 274 D.L.R. (4th) 166 (Ont. C.A.). In short, the evidence proffered by the respondent allowed the motion judge to infer a common intention that any advances from the credit facility would be secured against real property, and to consider the Toronto property as falling within the scope of that intention. Again, the appellants provided no coherent evidence to the contrary.

(3) Did the motion judge lack the authority to declare an equitable mortgage against the Toronto property?

No. The authority for granting such a charge is well-established, and the appellant was the owner of the Toronto property, as verified by title records.

(4) Did the motion judge improperly dismiss the appellants’ counterclaim?

No. The motion judge found that no evidence in support of the appellants’ counterclaim had been proffered, with the exception of an affidavit that did not meet the test for admission of fresh evidence, and an irrelevant document entitled “Bills of Equity”.


Siddiqui v Riahi, 2021 ONCA 63

[MacPherson, Trotter and Harvison Young JJ.A.]

Counsel:

G.S. Joseph and S.P. Kirby, for the appellant

M.H. Tweyman, for the respondent

Keywords: Family Law, Property, Resulting Trust, Beneficial Ownership, Net Family Property, Debts, Spousal Support, Child Support, Family Law Act, RSO 1990, c F3, “property”, ss. 4(1), Kerr v. Baranow, 2011 SCC 10, Korman v. Korman, 2015 ONCA 578

facts:

Family Law, Property, Resulting Trust, Beneficial Ownership, Net Family Property, Debts, Spousal Support, Child Support, Family Law Act, RSO 1990, c F3, “property”, ss. 4(1), Kerr v. Baranow, 2011 SCC 10, Korman v. Korman, 2015 ONCA 578

FACTS:

The appellant and the respondent were married for five years before separating. Both had children from previous marriage, but the appellant’s son lived with the parties during their marriage. The appellant immigrated to Canada in 2007 when her son was approximately 10 years old. The respondent immigrated to Canada in 1978 and was employed as a manager of a pharmacy from 1998 until his employment was terminated in 2016.

At trial, the two main issues were the net family property, spousal/child support payments and a restraining order. The trial judge had to make several factual findings, including the ownership of three properties, the legitimacy of certain “debts” the appellant claimed to owe her sisters and findings related to the spousal and child support claims.

The trial judge ultimately found that one of the properties, Centre Street property, was beneficially owned by the respondent prior to the marriage, despite title being held by his employer. The second property, Royal Road, was the matrimonial home and the trial judge found it was jointly owned by the parties as the respondent had contributed money for the purchase of the home and had helped pay for subsequent renovations. In relation to the debts owed to the appellant’s sisters, the trial judge was not convinced that any monies were advanced during the marriage and to the extent there was, there was no expectation of repayment. Thus, any monies advanced were not properly considered loans and so could not be deducted by the appellant in calculating her net family property. Finally, in relation to the spousal and child support claims, the trial judge held that since the child was over 18 years of age and not enrolled in post-secondary education, there was no support obligation. For spousal support, the evidence showed that the respondent had lived in his car for parts of the post separation period and barely had enough money to support himself, never mind pay support to his ex-wife. Further, the appellant had made no effort to obtain employment or support herself, thus spousal support was not payable.

The appellant appealed all of these findings.

issues:

(1) Did the trial judge err with respect to their determination of ownership of two of the properties?

(2) Did the trial judge err in the application of resulting trust principles or in finding that the appellant was not entitled to a deduction for the loans from her sisters?

(3) Did the trial judge err in failing to award spousal or child support?

(4) Did the trial judge apply an unduly more rigorous approach to assessing the credibility of the appellant than she did the respondent’s?

holding:

Appeal dismissed.

reasoning:

The respondent asserted that the appellant demonstrated no errors of law or principle and that all the alleged errors related to findings of fact. The Court of Appeal agreed with this submission. As the appeal was one of fact or mixed fact and law, the standard of review was palpable and overriding error.

(1) Did the trial judge err with respect to her determination of ownership of two of the properties?

No. In regards to the Centre Street property, the Court found that the trial judge’s finding was well grounded in the evidence available at trial. The respondent was unable to apply for a mortgage in his own name and so his employer, who he was very close with, stepped in to help him. The Court of Appeal agreed with the trial judge that the definition of “property” in s. 4(1) of the Family Law Act was sufficiently broad to cover situations where the spouse is the beneficial owner of a property. The Court saw no error in the trial judge’s finding. The appellant argued this arrangement violated the Statute of Frauds in that the sale of land was not signed by the party to be charged. However, this argument was not raised at trial so the Court dismissed the ground of appeal.

As for the matrimonial home, the Court held that the trial judge’s finding of joint ownership were well supported by the facts and saw no reason to intervene.

(2) Did the trial judge err in the application of resulting trust principles or in finding that the appellant was not entitled to a deduction for the loans from her sisters?

No. The trial judge found that the appellant had not rebutted the presumption of a resulting trust. The Court of Appeal held that the trial judge had considered the appropriate principles, namely Kerr v. Baranow and Korman v. Korman and that her application of these principles to the facts was well reasoned and amply supported so there was no reason to intervene.

The trial judge also rejected a resulting trust in favour of the appellant’s sisters for the monies advanced. The Court saw no reason to disturb the trial judge’s finding that there was no expectation of repayment, or the trial judge’s “serious doubts” as to whether any money was actually owed. The Court of Appeal also noted that family law judges are justifiably wary of claims, made after separation, that monies advanced to family members during the marriage are debts rather than gratuitous amounts. This is because acceding to such claims too readily would risk undermining the central purpose of the family property regime which is to equally divide the value of the property acquired by the marital partnership.

(3) Did the trial judge err in failing to award spousal or child support?

No. As with the other issues on appeal, the Court held that the trial judge’s findings were well supported by the trial record and that there was no palpable and overriding error. The trial judge considered the appropriate factors for assessing both compensatory and non-compensatory spousal support, including that the appellant had given no evidence that their marital roles hampered her economic circumstances.

For child support, the trial judge found no support was payable because the child was over 18 and not enrolled in full-time education and that in any event she was not satisfied that the respondent stood in loco parentis during the marriage. Each reason precluded the award of child support in this case.

(4) Did the trial judge apply an unduly more rigorous approach to assessing the credibility of the appellant than she did the respondent’s?

No. The appellant submitted that the trial judge approached the appellant’s evidence differently than the respondent’s, to the appellant’s detriment. The Court disagreed. The trial judge began with the observation that both parties had played fast and loose with the truth on some occasions in the past. However, the trial judge also stated that she found that the respondent’s evidence at trial was more credible than the appellant’s. The trial judge gave careful reasons for her findings on each issue which were open to her on the evidence before the court.

The evidence in this case was voluminous and covered a wide range of issues. The trial judge’s reasons were extensive and provided clear reasons for credibility findings throughout, all of which were well-grounded in the record before her.


United Mexican States v Burr, 2021 ONCA 64

[Lauwers, Miller and Nordheimer JJ.A.]

Counsel:

Terry and H. Allen, for the moving parties

J.C. Deane, H. Meighen and A. Thomassen, for the responding party

Keywords: International Law, Trade Law, North American Free Trade Agreement, Civil Procedure, International Arbitration, Appeals, Jurisdiction, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, s. 11, UNCITRAL Model Law on International Commercial Arbitration, arts. 16 and 34, United Mexican States v. Cargill, Inc., 2011 ONCA 622, The Russia Federation v. Luxtona Limited, 2019 ONSC 7558

facts:

The North American Free Trade Agreement gives investors the right to seek damages for the failure of a party to honour a treaty commitment. The moving parties are thirty-nine US nationals who brought claims individually and on behalf of seven Mexican companies to compensate for losses allegedly caused by Mexico’s closure of the casinos they had been operating in that country. The arbitral tribunal was established and a majority of the tribunal determined that the tribunal had jurisdiction over all but one of the moving parties’ claims. The responding party had applied to the Superior Court of Justice to set aside the tribunal’s decision under s. 11 of the International Commercial Arbitration Act, 2017 (“ICAA”) and arts. 16 and 34 of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”). The Model Law has the force of law in Ontario under s. 5 of the ICAA, subject to any modifications set out in the ICAA. The legislation specified that the Ontario Superior Court of Justice was the court with jurisdiction to review the decision of the arbitral tribunal.

The application judge dismissed the application, holding that the responding party had “not discharged its burden of proof of establishing that the Tribunal was incorrect in its conclusion that it had jurisdiction over all but one of the claims before it. The responding party appealed. The moving parties, who were the respondents in the application below, moved to quash the respondent’s appeal.

issues:
  1. Can the application judge’s ruling be appealed to the Court of Appeal?
holding:

Appeal quashed.

reasoning:

No. Whether the appeal should be quashed depended upon whether the responding party’s application was governed only by art. 16(3) of the Model Law, which would prohibit an appeal of the application judge’s decision, or if it was also governed by art. 34, which would permit an appeal.

Article 16(3) specifies how the tribunal may proceed when its jurisdiction is challenged. It also gives a role to the Ontario Superior Court of Justice and prohibits certain appeals. The text of art. 16(3) makes a clear distinction between a jurisdictional plea that is pursued “as a preliminary question” and a jurisdictional plea that is pursued “in an award on the merits”. The text of art. 16(3) requires this court to consider whether the tribunal’s ruling was on a “preliminary question” of jurisdiction. If it was, then the application judge’s ruling cannot be appealed to this court; in the language of art. 16(3), the application judge’s ruling is “subject to no appeal”. By contrast, art. 34 of the Model Law also provides for a right of recourse to a court against an arbitral award, but this language arguably contemplates only the recourses available against an award on the merits rather than on a preliminary question of jurisdiction. In an application under art. 34, the Model Law places no limits on the parties’ ability to appeal from the decision of the Superior Court.

The Court concluded that the arbitral tribunal’s ruling was on a preliminary question of jurisdiction under art. 16(3), so that a further appeal did not lie to the Court. The Court reached this conclusion for four reasons. First, the arbitral tribunal saw itself as addressing jurisdiction as a preliminary question, particularly when it noted that a hearing was held on jurisdiction and would decide three preliminary issues. Second, the arbitral tribunal’s decision did not address the substantive merits of the dispute, and the merits phase was proceeding despite the responding party’s efforts to appeal the application judge’s ruling. This sequence of proceedings is contemplated and expressly permitted by art. 16(3). Third, while there were several references to art. 34 in the pleadings, in the material, and in argument, they were scant. Fourth, neither the substantive issues before the application judge nor her decision turned on art. 34. Accordingly, the Court gave effect to the language in art. 16(3) of the Model Law that prohibits an appeal from the ruling of the application judge on the arbitral tribunal’s ruling on a preliminary question of jurisdiction.


Pearce v. Canada (Staff of the Non-Public Funds, Canadian Forces), 2021 ONCA 65

[Strathy C.J.O., Rouleau and Coroza JJ.A.]

Counsel:

A.M. Gay and A. Pullano, for the appellant

Montague-Reinholdt, for the respondent

Keywords: Labour and Employment Law, Statutory Interpretation, Unionized Employees, Constructive Dismissal, Civil Procedure, Striking Pleadings, Jurisdiction, Rules of Civil Procedure, Rule 21.01(3)(a), Financial Administration Act, R.S.C. 1985, c. F-11, Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 236, Interpretation Act, R.S.C. 1985, c. I-21, s. 12, Bron v. Canada (Attorney General), 2010 ONCA 71, Vaughan v. Canada, 2005 SCC 11, Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, Evans v. Teamsters Local Union No. 31, 2008 SCC 20, Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10

facts:

The respondent was a non-unionized, 18-year employee of a federal public service entity, the Staff of the Non-Public Funds (“SNPF”), Canadian Forces. In 2017, the respondent quit his job. Shortly after, in 2018, the respondent commenced an action against the appellant claiming he had been constructively dismissed, citing years of bullying and intimidation by his supervisor, leading to work-related stress, depression and insomnia.

The appellant brought a motion pursuant to Rule 21.01(3)(a) of the Rules of Civil Procedure to dismiss the action. The appellant argued that the respondent’s terms of employment were governed by the human resources policies of the SNPF, the Financial Administration Act, R.S.C. 1985, c. F-11 (the “FAA”), and the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22 (the “FPSLRA”). The appellant submitted that the respondent had voluntarily resigned, that the court had no jurisdiction to hear the constructive dismissal claim of a federal government employee, and that the appropriate recourse for the respondent was the grievance process set out in the FPSLRA.

Section 236(1) of the FPSLRA provides: “The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.” Further, section 236(3) of the FPSLRA provides: “Subsection (1) does not apply in respect of an employee of a separate agency that has not been designated under s. 209(3) if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.”

Employees in the federal public service are governed by a comprehensive scheme that includes, among other statutes and regulations, the FAA (Bron v. Canada (Attorney General), 2010 ONCA 71; Vaughan v. Canada, 2005 SCC 11). Subsection 11(1) of the FAA defines “public service” by distinguishing between the “core public administration” of Canada, and “separate agencies”. The SNPF is included in the latter category as an “undesignated separate agency”, and thus falls within the scope of section 236(3) of the FPSLRA, noted above. The main distinction between the categories in this context is that Parliament intended for “separate agencies” to be more nimble than the core public administration, operating more like the private sector with respect to their flexibility in hiring and firing employees.

As mentioned above, the FPSLRA further governs federal public service employment relations. In short, employees of undesignated separate agencies such as the SNPF can only refer their grievances to adjudication by the Federal Public Sector Labour Relations and Employment Board (the “Board”) if it relates to the interpretation or application of a collective agreement or arbitration award, or if it relates to a “disciplinary action resulting in termination, demotion, suspension or financial penalty”, according to ss. 201(1)(a) and (b) of the FPSLRA.

In dismissing the motion, the judge found that “even if the essential character of the dispute is a series of grievable events, if one or a combination of those events amounts to a non-disciplinary termination, then the employee has the right to sue under s. 236(3)”. Further, the motion judge concluded that s. 236(3) includes constructive dismissal as a non-disciplinary termination. In reaching this conclusion, the motion judge reasoned that Parliament could not have intended an employee of an undesignated separate agency to have the right to sue for wrongful termination, while simultaneously not having the right to sue for constructive dismissal, and instead being forced to pursue an internal grievance process.

issues:

(1) Does the expression, “termination of employment for any reason that does not relate to a breach of discipline or misconduct” in s. 236(3) of the FPSLRA include the common law concept of constructive dismissal?

holding:

Appeal dismissed.

reasoning:

(1) Does the express, “termination of employment for any reason that does not relate to a breach of discipline or misconduct” in s. 236(3) of the FPSLRA include the common law concept of constructive dismissal?

Yes. The Court’s reasoning in reaching its conclusion on this issue hinged largely on the application of well-recognized principles of statutory interpretation. In Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, the Supreme Court adopted the “modern principle” of statutory interpretation: words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. This approach is likewise adopted by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”.

(i) The context

The Court noted that in the context of s. 236(3), the phrase “termination of employment” is to be given a broad meaning (“any reason”), but that meaning will not include termination for some reasons, namely, those that relate to a breach of discipline or misconduct.

(ii) Grammatical and ordinary meaning

The Court noted that the language of s. 236(3) is intended to be broad and, on its face, excludes only terminations that are based on breach of discipline or misconduct. In Evans v. Teamsters Local Union No. 31, 2008 SCC 20, the Supreme Court confirmed that constructive dismissal is a form of termination, and can occur in one of two ways. First, constructive dismissal can occur when an employer has breached an express or implied term of the employment contract, and the breach was sufficiently serious to amount to constructive dismissal (Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10). Second, constructive dismissal can occur when the employer’s conduct generally demonstrates an intention to no longer be bound by the contract. An example of such circumstances would be treating the employee in such a way to make continued employment intolerable. The latter approach, which the respondent pleaded in this case, requires a retrospective analysis of the cumulative effects of the employer’s conduct from an objective point of view.

Accordingly, the Court concluded that the only plausible interpretation of s. 236(3) is that Parliament conceptualized “termination” in the broadest possible terms, and such conceptualization necessarily includes constructive dismissal.

(iii)The scheme of the Act, the object of the Act, and the intention of Parliament

The Court noted the purpose of the FPSLRA is to ensure the Canadian government’s commitment to the fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment. The FPSLRA provides for employees of the core public administration with an opportunity to have their grievances referred to adjudication regardless of whether the termination is disciplinary or non-disciplinary. The FPSLRA does the same for employees of “designated” separate agencies. There is no such provision for employees of undesignated separate agencies, such as the SNPF, providing access to third-party adjudication of disputes relating to non-disciplinary termination. Accordingly, it reasonable to conclude that s. 236(3) is intended to fill this gap by giving such employees access to third-party adjudication through the courts, rather than through the Board. To read the provision otherwise would be to suggest that employees of undesignated separate agencies have no access to third party adjudication for issues relating to non-disciplinary termination, which would be fundamentally incompatible with the purpose of the FPSLRA as a whole.


Albert Bloom Limited v London Transit Commission, 2021 ONCA 74

[Lauwers, Hourigan and Brown JJ.A.]

Counsel:

R.H. Cooper and D. Richer, for the appellant

R. Frank and T. Brook, for the respondent

Keywords: Real Property, Environmental Law, Historical Environmental Contamination, Torts, Negligence, Nuisance, Continuing Torts, Civil Procedure, Limitation Periods, Discoverability, Ultimate Limitation Period, Contribution and Indemnity, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss. 5(1)(a), 17, 18, Environmental Protection Act, R.S.O. 1990, c. E.19, s. 99, Crombie Property Holdings Limited v. McColl-Frontenac Inc., 2017 ONCA 16, Commercial Bank (Canada) v. Yung, 2018 ONCA 429, Longo v. MacLaren Art Centre, 2014 ONCA 526, Kaiman v. Graham, 2009 ONCA 77, Vellenga v. Boersma, 2020 ONCA 537, Starline Entertainment Centre Inc. v. Ciccarelli, (1995) 25 O.R. (3d) 765 (S.C), RVB Managements Ltd. v. Rocky Mountain House (Town), 2015 ABCA 188, Roberts v. City of Portage la Prairie, [1971] S.C.R. 481, Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Brozmanova v. Tarshis, 2018 ONCA 523

facts:

The parties owned properties in the same area. In 2011, the respondent, Albert Bloom, notified Ramsden about the existence of Trichloroethylene (“TCE”) contamination on its property. Multiple environmental reports concluded that LTC was a potential source of the contamination due in part to the westerly groundwater flow and historical operations carried out on the property by Eaton Industries (“Eaton”). LTC was advised of the contamination potentially coming from its property and was provided with five environmental reports, three of which identified Eaton as being possibly responsible. In 2013, Albert Bloom brought an action against LTC. LTC denied responsibility, but in the alternative pleaded that if the LTC property contributed to the contamination, then it was caused by the prior owner. Following a request from the Ministry of the Environment and Climate Change (the “MOE”), LTC undertook testing on its property and determined that Eaton had operated a sludge pit on the property before 1973. LTC commenced a third party claim against Eaton for damages and contribution and indemnity.

The motion judge granted summary judgment and dismissed LTC’s third party claim against Eaton on the basis that it was statute-barred pursuant to the Limitations Act. She concluded that LTC had actual knowledge of the matters in s. 5(1)(a) of the Act with respect to the claims against Eaton by May 2013. Despite finding actual knowledge, she also concluded that LTC also ought to have known that it had a claim by May 2013. According to the motion judge, the fact that LTC had asserted claims in nuisance and negligence against Eaton did not create separate causes of action with different limitation periods. She reasoned that LTC’s claims all arose from the same alleged tortious conduct by Eaton before 1973. LTC appealed that order.

issues:

1. Did the motion judge err:

a. in her conclusion regarding when LTC acquired actual knowledge of the claim?

b. in her conclusion regarding when LTC acquired constructive knowledge of the claim?

c. in finding that any claim other than a claim by LTC against Eaton for contribution and indemnity was statute-barred by operation of the absolute limitation period of 15 years in the Limitations Act?

d. when she concluded that the third party claim against Eaton was not founded on a continuing tort?

e. in rejecting the LTC’s submission that it had so-called standalone claims that were not statute-barred?

2. Had the limitation period for a section 99 Environmental Protection Act Claim expired when the LTC commenced its third party claim?

holding:

Appeal dismissed.

reasoning:

1. The LTC argued that actual knowledge of the possibility of a claim does not equate to actual knowledge of a claim. It argued that its suspicion of a claim against Eaton was only confirmed by further testing in March 2016. With respect to constructive knowledge, LTC argued that it acted diligently to retain an environmental consultant and legal counsel. Further, it claimed that its reference to a “prior owner” in its pleadings was boilerplate language not denoting knowledge. LTC also submitted that the motion judge erred in her analysis of the claims other than for contribution and indemnity. It argued that these additional claims were either continuing claims for which the limitation period had not expired or their limitation periods commenced on different dates than the claim for contribution and indemnity.

Claims for Contribution and Indemnity

The Court first reviewed the law regarding limitation periods for claims for contribution and indemnity. Such claims are governed by s. 18 of the Limitations Act, 2002. The Court noted that an absolute two-year limitation period running from the date on which the first alleged wrongdoer was served with the claim is not established by s. 18. Instead, the two-year limitation period presumptively begins on the date of service of a claim, however, that presumption can be rebutted by the discoverability principles. Once the second anniversary passes, the onus shifts to the party seeking contribution and indemnity to establish why its claim was not discoverable. The Court found that there was some confusion regarding who had the onus.

 a. Actual Knowledge

No. The Court saw no error in the motion judge’s conclusion regarding when LTC acquired actual knowledge of its claim. The motion judge undertook an examination of the matters in s. 5(1)(a) of the Act. She found that LTC first knew that the loss occurred and was caused or contributed by an act or omission when it was provided with the statement of claim. The motion judge held that LTC first knew that Eaton caused the loss in February 2012, when it was provided with reports identifying Eaton’s operations as a possible source of contamination. LTC argued that the motion judge erred in her application of s. 5(1)(a) by distinguishing Crombie Property Holdings Limited v. McColl-Frontenac Inc. on a factual basis and equating knowledge that its property was a potential source of contamination with the knowledge that it was the source of the contamination. The Court would not give effect to these submissions as the facts of Crombie were distinguishable from the case at bar. The Court emphasized that the determination of when a claimant obtains actual knowledge is case-specific. The totality of factual circumstances will dictate how and when a claimant obtains actual knowledge. In the present case, the motion judge undertook a detailed analysis of the circumstances. The evidence she relied on was uncontested, and the Court did not understand LTC to be arguing that the motion judge committed any palpable and overriding errors of fact.

b. Constructive Knowledge

No. The Court found that the motion judge’s analysis on the issue of constructive knowledge was correct. LTC had failed to meet its onus of rebutting the s. 18 presumption. The motion judge found that LTC ought to have known that it had a claim against Eaton by May 2013. First, LTC had reports by February 2012 identifying its property as a potential source of contamination. Second, LTC’s co-defendant, Ramsden, conducted a more diligent investigation immediately upon receipt of environmental reports from the plaintiff in 2011. Third, within months of its own investigation, LTC obtained results consistent with the results of the plaintiff’s and Ramsden’s consultants obtained earlier. Fourth, LTC knew the nature of Eaton’s operations. Therefore, the motion judge found that LTC did not act with the due diligence of the reasonable person with its abilities the circumstances. The Court saw no error in the motion judge’s analysis on this point. The LTC attempted to argue that the due diligence obligation was met by retaining counsel and environmental consultants. The Court disagreed, stating that the due diligence obligation imposes a heavier burden than simply hiring professional advisors. LTC also argued that the motion judge erred in relying on Ramsden’s conduct because there was no evidence about what motivated it to undertake testing. The Court disagreed. The record established that Ramsden tested its property after it was contacted by Albert Bloom. It was a reasonable inference that Ramsden tested because of this information.

c. Ultimate Limitation Period

No. The motion judge observed that any claim other than a claim by LTC against Eaton for contribution and indemnity was statute-barred by operation of the absolute limitation period of 15 years in the Act. Eaton conceded that that was an error. S.17 of the Act provides that there is no limitation period for undiscovered environmental claims. LTC did not explicitly identify how this error detracted from the motion judge’s analysis. In the Court’s view, it was inconsequential.

d. Continuing Tort

No. LTC argued that the motion judge erred in concluding that the third party claim was not founded on a continuing tort. It submitted that, because the main action alleged that LTC’s property continued to damage its neighbour’s property, Eaton was engaged in a continuous tort. The Court found that this position mischaracterized the nature of LTC’s claim against Eaton. LTC’s claim was that of a current property owner against a former property owner. Even if LTC’s property continued releasing contaminants onto its neighbour’s property, such that LTC was committing a continuous tort relative to its neighbours, that would not establish that Eaton had engaged in a continuous tort relative to LTC. For a claim to be “continuing”, the legal injury itself must continue, not merely the ill effect of the prior legal injury.

e. Standalone Claims

No. LTC submitted that the motion judge erred for two reasons in rejecting its submission that it had so-called standalone claims that were not statute-barred. First, it submitted that one of its claims was more recently discovered. Second, it asserted it had a continuous tort claim against Eaton. The recently discovered claim was for reimbursement of expenses related to investigative work required by the MOE. LTC argued that it could not have known about this claim until March 2015, when it was requested to do the work. Therefore, it submitted that the limitation period for the claim for these expenses could not begin to run until that date. The Court found that submission conflated the concept of “damage,” being the loss required to make out certain causes of action, with the concept of “damages,” which is the monetary measure of the extent of the loss. All LTC had to discover to start the limitation period was damage caused by Eaton. LTC also submitted that it had continuing causes of action against Eaton because the contamination migrated. The Court rejected this argument as it was not raised in the court below.

2. Section 99 of the Environmental Protection Act

No. During oral argument, LTC stated that it had a claim against Eaton pursuant to s. 99 of the Environmental Protection Act, (“EPA”). LTC submitted that the limitation period for this s. 99 claim had not expired when it commenced its third party claim. This argument was not raised before the motion judge and was not in LTC’s factum. The general rule is that appellate courts will not entertain entirely new issues on appeal and the Court did not believe that it was in the interests of justice to consider this new argument on appeal.

 


SHORT CIVIL DECISIONS

Patterson v Patterson, 2021 ONCA 70

[Roberts, Zarnett and Sossin JJ.A.]

Counsel:

C. Craig, for the appellants

T. Simmonds, for the respondent

Keywords: Wills and Estates, Attorneys for Property, Civil Procedure, Passing of Accounts, Appeals, Extension of Time, Substitute Decisions Act, s. 42(4)(6), Rules of Civil Procedure, Rules 61.07(1)(a), 61.12(6)(b), Rizzi v. Mavros, 2007 ONCA 350


Wang v Banton, 2021 ONCA 72

[Roberts, Zarnett and Sossin JJ.A)]

Counsel:

W.J. Jesseau, for the moving party/respondent

Y.W., acting in person

Keywords: Torts, Negligence, MVA, Civil Procedure, Appeals, Jurisdiction, Extension of Time, Medical Examinations, Courts of Justice Act, s. 19(1)(b), Rules of Civil Procedure, Rules 2.1.02(3), 3.02, 62.02(3), Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806


T.J.L. v E.B., 2021 ONCA 75

[Roberts, Zarnett and Sossin JJ.A.]

Counsel:

E.B., acting in person

M. Dwyer, for the respondent

Keywords: Publication Ban, Family Law, Divorce, Custody and Access, Joint Custody, Principal Residence, Child Support, Civil Procedure, Reasonable Apprehension of Bias, Presumption of Fairness, Children’s Law Reform Act, s. 24, Gordon v. Goertz, [1996] 2 SCR 27, Van de Perre v. Edwards, 2001 SCC 60, Perron v. Perron, 2012 ONCA 811, leave to appeal refused, [2013] SCCA No 26, Miglin v. Miglin (2001), 53 OR (3d) 641 (CA), reversed on other grounds, 2003 SCC 24, Yukon Francophone School Board, Education Areas #23 v. Yukon (Attorney General), 2015 SCC 25, Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369


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.