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Good afternoon,

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

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There was only one substantive civil decision of any length released this week. In Rusinek, the Court refused to allow the trustee in bankruptcy to bring a claim for equalization of net family property against the bankrupt’s spouse. The bankrupt husband did not make such a claim before filing an assignment in bankruptcy. While an equalization claim made by a spouse before they become a bankrupt is property that vests with the trustee which the trustee can pursue, the Court found that s. 7(2) of the Family Law Act precludes a trustee from commencing an equalization claim for the first time after the bankruptcy.

Other topics addressed this week included social host liability and interveners.

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, Weintraub Erskine Huang 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, Miller Thomson LLP

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

Table of Contents

Civil Decisions

Baldwin v. Imperial Metals Corporation, 2021 ONCA 114

Keywords: Securities, Civil Procedure, Appeals, Interveners, Rules of Civil Procedure, Rule 13.02, Securities Act, ss. 138.3(1), ss. 138.8(1), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Stadium Corp. of Ontario Ltd. v. Toronto (City), [1992] O.J. No. 1574 (Div. Ct.), rev’d on other grounds, 12 O.R. (3d) 646 (C.A.), Nakonagos v. Humphrey, [1996] O.J. No. 2002 (Gen. Div.), Peixeiro v. Haberman, [1994] O.J. No. 2459 (Gen. Div.), Dunkin’ Brands Canada Ltd. v. Bertico inc., 2013 QCCA 867, Raibex Canada Ltd. v. ASWR Franchising Corp., 2017 CarswellOnt 21537

Rusinek & Associates Inc. v. Arachchilage, 2021 ONCA 112

Keywords: Family Law, Equalization of Net Family Property, Bankruptcy and Insolvency, Property of the Bankrupt, Constitutional Law, Doctrine of Paramountcy, Civil Procedure, Appeals, Jurisdiction, Family Law Act, R.S.O. 1990, c. F.3, ss 5 & 7, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss 2, 40, 67, 71, 72 & 193, Courts of Justice Act, R.S.O. 1990, c. C.43, s 6, Rules of Civil Procedure, Rule 14.05(3)(d), The Saskatchewan Insurance Act, R.S.S. 1978, c. S-26, as repealed by The Insurance Act, S.S. 2015, c. I-9.11, s. 11-1, Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, Meisels v. Lawyers Professional Indemnity Company, 2015 ONCA 406, Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, Blowes v. Blowes (1993), 16 O.R. (3d) 318 (C.A.), Green v. Green, 2015 ONCA 541, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Jackson v. Stephen Durbin and Associates, 2018 ONCA 424, R. v. Stipo, 2019 ONCA 3, Rawluk v. Rawluk, [1990] 1 S.C.R. 70, Saulnier v. Royal Bank of Canada, 2008 SCC 58, Rondberg Estate v. Rondberg Estate (1989), 62 D.L.R. (4th) 379 (Ont. C.A.), Alberta (Attorney General) v. Moloney, 2015 SCC 51

Pipitone v. D’Amelio, 2021 ONCA 115

Keywords: Family Law, Spousal Support, Separation Agreements, Setting Aside

Jonas v. Elliott, 2021 ONCA 124

Keywords: Torts, Negligence, Occupiers’ Liability, Social Host Liability, Duty of Care, Reasonable Foreseeability, Civil Procedure, Partial Summary Judgment, Occupiers’ Liability Act, R.S.O. 1990, c. O.2

Short Civil Decisions

Kenora-Rainy River Districts Child and Family Services v. K.R., 2021 ONCA 123

Keywords: Family Law, Child Protection, Civil Procedure, Disclosure, Appeals, Jurisdiction, Final or Interlocutory, Child and Family Services Act, Courts of Justice Act, ss. 6(1)(b), ss. 19(1)(b), Family Law Rules, ss. 38(3), Higins v. Higgins, 2007 ONCA 663

Beazley v. Canada (Attorney General), 2021 ONCA 117

Keywords: Civil Procedure, Striking Pleadings, Vexatious Litigation, Res Judicata, Rules of Civil Procedure, Rule 2.1.01, 2.1.01(3), Beazley v. Canada (Attorney General), 2020 ONCA 582, Alexander v. Longo Brothers Fruit Market Inc., 2020 ONCA 590


CIVIL DECISIONS

Baldwin v. Imperial Metals Corporation, 2021 ONCA 114

[Roberts J.A. (Motions Judge)]

Counsel:

G. Myers, for the moving party/proposed intervenor, Osgoode Investor Protection Clinic

M.G. Robb and G. Hunter, for the appellant

L.E. Thacker and A. Quinn, for the respondents

Keywords: Securities, Civil Procedure, Appeals, Interveners, Rules of Civil Procedure, Rule 13.02, Securities Act, ss. 138.3(1), ss. 138.8(1), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Stadium Corp. of Ontario Ltd. v. Toronto (City), [1992] O.J. No. 1574 (Div. Ct.), rev’d on other grounds, 12 O.R. (3d) 646 (C.A.), Nakonagos v. Humphrey, [1996] O.J. No. 2002 (Gen. Div.), Peixeiro v. Haberman, [1994] O.J. No. 2459 (Gen. Div.), Dunkin’ Brands Canada Ltd. v. Bertico inc., 2013 QCCA 867, Raibex Canada Ltd. v. ASWR Franchising Corp., 2017 CarswellOnt 21537

facts:

The moving party, Osgoode Investor Protection Clinic, sought leave to intervene on this appeal as a friend of the court under Rule 13.02 of the Rules of Civil Procedure. The appeal related to various provisions of the Securities Act.

issue:

Should leave to intervene be granted?

holding:

Motion dismissed.

reasoning:

No. The test for intervention is well established. In determining whether an application for intervention should be granted, the matters to be considered are: “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd.

Rule 13 provides that a person may obtain leave to intervene in proceedings as an added party or as a “friend of the court”. The Clinic seeks to intervene as a friend of the court under rule 13.02 “for the purpose of rendering assistance to the court by way of argument”. The language of rule 13.02 reflects the historical role of a friend of the court as a neutral “person or bystander…who has no interest in the proceedings and intervenes simply to call the attention of the Court to some point in law or fact which escaped its notice”: Nakonagos v. Humphrey. A friend of the court serves the court, not the parties. The role connotes “an element of impartiality or altruism”: Peixeiro v. Haberman.

On the motion at hand, the intervener’s position was essentially the same as the appellant’s position on the appeal. No useful contribution can be offered by an intervener who essentially repeats the position advanced by a party, even with a different emphasis: Jones v. Tsige. Further, counsel for the intervener previously worked for the firm representing the appellant, and there were several other links between the two. So while the intervener may have had good intentions in seeking leave, they did not have the requisite level of useful information or independence and leave was therefore denied.


Rusinek & Associates Inc. v Arachchilage, 2021 ONCA 112

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

Counsel:

S. Sam and M. Ross, for the appellant

D.A. Schatzker and R.D. Howell, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Bankruptcy and Insolvency, Property of the Bankrupt, Constitutional Law, Doctrine of Paramountcy, Civil Procedure, Appeals, Jurisdiction, Family Law Act, R.S.O. 1990, c. F.3, ss 5 & 7, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss 2, 40, 67, 71, 72 & 193, Courts of Justice Act, R.S.O. 1990, c. C.43, s 6, Rules of Civil Procedure, Rule 14.05(3)(d), The Saskatchewan Insurance Act, R.S.S. 1978, c. S-26, as repealed by The Insurance Act, S.S. 2015, c. I-9.11, s. 11-1, Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, Meisels v. Lawyers Professional Indemnity Company, 2015 ONCA 406, Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, Blowes v. Blowes (1993), 16 O.R. (3d) 318 (C.A.), Green v. Green, 2015 ONCA 541, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Jackson v. Stephen Durbin and Associates, 2018 ONCA 424, R. v. Stipo, 2019 ONCA 3, Rawluk v. Rawluk, [1990] 1 S.C.R. 70, Saulnier v. Royal Bank of Canada, 2008 SCC 58, Rondberg Estate v. Rondberg Estate (1989), 62 D.L.R. (4th) 379 (Ont. C.A.), Alberta (Attorney General) v. Moloney, 2015 SCC 51

facts:

In 2003, the respondent and her husband were married. During their marriage, the matrimonial home was purchased and title was solely in the respondent’s name. The parties later separated and the husband left the matrimonial home.

In 2015, the husband made an assignment in bankruptcy. The appellant was appointed as the bankruptcy trustee. The appellant applied to the Superior Court for a declaration that the right to commence an equalization claim under the Family Law Act, R.S.O. 1990, c. F. 3 (“FLA”) had vested in it as the husband’s trustee in bankruptcy.

The application judge determined that unless and until the right to commence an equalization claim was exercised by a spouse, the equalization claim is “inchoate” and does not constitute “property” for the purposes of the BIA. The right to commence such a claim was not assignable and did not vest in the trustee in bankruptcy, as the decision remains “personal as between the spouses”.

issues:

(1) Was the appeal properly brought before the Court pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”)?

(2) Was the unexercised entitlement to equalization of net family properties considered “property” for the purposes of the Bankruptcy and Insolvency Act,S.C. 1985, c. B-3 (“BIA”), and if it was, may an application for equalization be initiated by a trustee in bankruptcy?

(3) If s. 7(2) of the FLA prevents a trustee in bankruptcy from initiating an application for equalization, is s. 7(2) rendered inoperative pursuant to the doctrine of federal paramountcy?

holding:

Appeal dismissed.

reasoning:

(1) Yes. The appeal was properly brought before this court pursuant to s. 6(1)(b) of the CJA. The final order was not one made in a bankruptcy proceeding nor was the application judge exercising a power conferred on her by the BIA. Further, these proceedings involved the respondent, who was a stranger to the bankruptcy. Since the respondent was not a creditor of the bankrupt estate, the bankruptcy court had no jurisdiction to hear the matter.

(2) No. While the entitlement to an equalization claim is property that vests in the Trustee in Bankruptcy, s. 7(2) of the FLA prevents a trustee in bankruptcy from initiating the claim for the recovery of the equalization entitlement during the estate-administration stage of a bankruptcy.

The Entitlement to an Equalization Claim is Property that Vests in the Trustee in Bankruptcy

It is well established in the case law that once a spouse has brought an application for the equalization of net family properties, that claim will vest in the trustee in bankruptcy upon that spouse’s assignment in bankruptcy. “Property”, as it is defined in s. 2 of the BIA, has been given a broad definition. Nothing in the BIA suggests that property is restricted to choses in action that have been commenced.

The Entitlement to Equalization Cannot be Initiated by the Trustee in Bankruptcy

A spouse makes the decision to initiate a claim for equalization, as it is something that is personal to the spouses, and that decision cannot be made by a trustee in bankruptcy or any other assignee. The words “personal as between the spouses” in s. 7(2) of the FLA limits the trustee in bankruptcy’s ability to initiate the equalization claim during the estate-administration stage of bankruptcy. This is because the required triggering event pursuant to s. 7(2) of the FLA, the initiation of the application by a spouse, has not occurred.

(3) No. Section 7(2) of the FLA is not in operational conflict with the BIA, nor does it frustrate the purpose of the BIA. Therefore, the doctrine of federal paramountcy was not applicable in the present appeal. The province that created the right to equalization is free to limit the circumstances in which an application for equalization can be commenced. A statutorily created asset subject to a condition over which the trustee in bankruptcy has no control does not make the section creating the limitation incompatible with the purpose of the BIA.


Pipitone v. D’Amelio, 2021 ONCA 115

[Fairburn A.C.J.O., Doherty and Thorburn JJ.A.]

Counsel:

A. P., acting in person

B. Tseitlin, for the respondent

Keywords: Family Law, Spousal Support, Separation Agreements, Setting Aside

facts:

The appellant brought a motion to vary a divorce order from her marriage to the respondent and to set aside the separation agreement as it related to the waiver of spousal support. She also brought an application for damages arising from alleged assault, mental abuse, and cruelty she endured from the respondent. The appellant appealed the dismissal of both claims.

issues:

Did the motion judge err in his decision to dismiss both claims?

holding:

Appeal dismissed.  

reasoning:

No. The appellant argued that, in light of her self-represented status, the motion judge failed in his obligation to provide her with the assistance she was owed. The Court disagreed and found that the appellant was provided with adequate assistance from the motion judge.

The appellant argued that the motion judge erred by rejecting her evidence about the allegations of abuse. Her complaints reflected an attempt to relitigate the credibility assessments of the motion judge. The Court noted that deference is owed to such assessments and held that the motion judge made clear and detailed credibility findings, all of which were rooted in the full evidentiary record before him.

Additionally, the appellant argued that the motion judge erred by excluding certain historical records from the proceedings. The Court saw no error in the motion judge’s decision to exclude the records as inadmissible hearsay. The Court also dismissed the appellant’s application on appeal, asking the court to admit the excluded records, because the records were not admissible.

The appellant challenged the costs award from trial. The Court found that it was not an unreasonable amount and the motion judge gave detailed reasons for that award. The Court saw no error in the costs decision and applied the principle of deference.


Jonas v. Elliott, 2021 ONCA 124

[Doherty, Pepall and Thorburn JJ.A.]

Counsel:

J.J. Mays and J.G. Langlois, for the appellants

R. Smith, for the respondents

Keywords: Torts, Negligence, Occupiers’ Liability, Social Host Liability, Duty of Care, Reasonable Foreseeability, Civil Procedure, Partial Summary Judgment, Occupiers’ Liability Act, R.S.O. 1990, c. O.2

facts:

The appellants attended a party hosted by one of the individual respondents, where one of the appellants was assaulted by another guest.

On a motion for summary judgment, the motion judge dismissed the action against the host respondent, as well as the City of Stratford (the “City”), who had rented the facility used for the party, and granted permission to serve alcohol. The claim against the aggressor survived.

issues:

(1) Did the motion judge err in finding no duty of care on the part of the host and/or the City?

(2) Did the motion judge err in granting partial summary judgment?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court of Appeal concluded that the motion judge’s findings of fact were owed deference, and in any event there was no error in the motion judge’s finding that the harm suffered by the appellant was not reasonably foreseeable. The motion judge correctly articulated the duty under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, and noted several factors in support of the finding that the harm suffered was not reasonably foreseeable. Further, there was no evidence that the altercation was caused, or contributed to, by intoxication.

(2) No. The Court concluded that the claims against the respondents could be bifurcated from the remaining claim against the aggressor in an expeditious and cost-effective manner. Any risk of inconsistent findings was immaterial.


SHORT CIVIL DECISIONS

Kenora-Rainy River Districts Child and Family Services v. K.R., 2021 ONCA 123

[Fairburn A.C.J.O., MacPherson and Gillese JJ.A.]

Counsel:

K.R., acting in person

P.N.R., acting in person

D.J. Elliott, for the respondent

Keywords: Family Law, Child Protection, Civil Procedure, Disclosure, Appeals, Jurisdiction, Final or Interlocutory, Child and Family Services Act, Courts of Justice Act, ss. 6(1)(b), ss. 19(1)(b), Family Law Rules, ss. 38(3), Higins v. Higgins, 2007 ONCA 663

Beazley v. Canada (Attorney General), 2021 ONCA 117

[Strathy C.J.O, Brown and Miller JJ.A.]

Counsel:

C.B., acting in person

M. Jeske, for the respondent, Attorney General of Canada

R. Mann, for the respondent, Her Majesty the Queen in Right of Ontario

Keywords: Civil Procedure, Striking Pleadings, Vexatious Litigation, Res Judicata, Rules of Civil Procedure, Rule 2.1.01, 2.1.01(3), Beazley v. Canada (Attorney General), 2020 ONCA 582, Alexander v. Longo Brothers Fruit Market Inc., 2020 ONCA 590


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.