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Good afternoon,

Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 17, 2021.

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Topics covered this week included the calculation of damages for breach of an agreement of purchase and sale of land, leave to appeal from a provincial offences conviction against a Town under the Endangered Species Act, striking frivolous and vexatious claims, commercial lease renewals, stay pending appeal, hearings in the absence of a party, and the capacity to execute powers of attorney.

Wishing everyone an enjoyable Victoria Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Fitzgerald v Reaume, 2021 ONCA 330

Keywords: Administrative Law, Judicial Review, Duty of Fairness, Human Rights Tribunal of Ontario, Right to Health, Civil Suit Against Administrative Actors, Immunity, Summary Disposition, Disposition Without Submissions, Improper Pleadings, Frivolous and Vexatious Pleadings, Rules of Civil Procedure, rule 2.1.01, Crown Liability and Proceedings Act, Limitations Act, Visic v. Elia Associates Professional Corporation, 2020 ONCA 690

Ontario (Natural Resources and Forestry) v South Bruce Peninsula (Town), 2021 ONCA 332

Keywords: Environmental Law, Provincial Offences, Regulatory Offences, Endangered Species, Civil Procedure, Leave to Appeal, Questions of Law, Public Interest, Administration of Justice, Expert Evidence, Endangered Species Act, 2007, S.O. 2007, c. 6, ss. 10(1), Provincial Offences Act, s. 139, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Castonguay Blasting, 2011 ONCA 292, Ontario (Labour) v. Sudbury (City), 2019 ONCA 854, R. v. Hicks, 2014 ONCA 756

Datta v Eze, 2021 ONCA 340

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Rescission, Specific Performance, Damages Civil Procedure, Summary Judgment, References, Appeals, New Issues on Appeal, Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, 7550111 Canada Inc. v. Charles, 2020 ONCA 386

Spadacini Kelava v Kelava, 2021 ONCA 345

Keywords: Family Law, Matrimonial Home, Civil Procedure, Stay Pending Appeal, Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45(2), (3) and (6), RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.)

Short Civil Decisions

Zakhour v Nayel, 2021 ONCA 339

Keywords: Family Law, Spousal Support, Equalization of Net Family Property, Civil Procedure, Summary Judgment, Jurisdiction, Family Law Act, R.S.O. 1990, c. F.3, Okmyansky v. Okmyansky (2007), 86 O.R. (3d) 587 (C.A.)

Asghar v Toronto (Police Services Board), 2021 ONCA 338

Keywords: Civil Procedure, Appeals, Extension of Time, Orders in Chambers, Motion to Review Order, Production of Documents, Standard of Review, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1, Machado v. Ontario Hockey Association, 2019 ONCA 210, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic

ElZayat v Ontario (Ombudsman), 2021 ONCA 336

Keywords: Civil Procedure, Summary Judgement, Procedural and Natural Justice, Hearing in Absentia

Lockhart v Lockhart, 2021 ONCA 329

Keywords: Wills and Estates, Powers of Attorney for Property, Powers of Attorney for Personal Care, Capacity, Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A, Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 2(3)

Horn Ventures International Inc. v. Xylem Canada Company
(ITT Canada Ltd.),
2021 ONCA 341

Keywords: Contracts, Real Property, Commercial Leases, Obligation to Purchase, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633


CIVIL DECISIONS

Fitzgerald v Reaume, 2021 ONCA 330

[Juriansz, Huscroft and Jamal JJ.A.]

COUNSEL:

M.N. Bergman, for the appellant

T. Guy, for the respondent

Keywords: Administrative Law, Judicial Review, Duty of Fairness, Human Rights Tribunal of Ontario, Right to Health, Civil Suit Against Administrative Actors, Immunity, Summary Disposition, Disposition Without Submissions, Improper Pleadings, Frivolous and Vexatious Pleadings, Rules of Civil Procedure, rule 2.1.01, Crown Liability and Proceedings Act, Limitations Act, Visic v. Elia Associates Professional Corporation, 2020 ONCA 690

FACTS:

The respondent was the Vice-Chair of the Human Rights Tribunal of Ontario and was presiding over a hearing into a human rights complaint against the appellant. The appellant alleged that the respondent failed to conduct properly and violated several of his rights. The appellant brought a civil action against the respondent which was dismissed, without hearing submissions, under rule 2.1.01 of the Rules of Civil Procedure.

The trial judge noted that the appellant’s only course of action was an application for judicial review and that the appellant’s concerns regarding the conduct of the hearing should have been raised before the tribunal. The appellant had no right to sue as the respondent had immunity from claims of this sort and so the claim was an improper pleading and frivolous action.

ISSUES:

(1) Did the judge err is dismissing the action under rule 2.1.01?

HOLDING:

Appeal dismissed.

REASONING:

  1. No

The principles governing rule 2.1 were set out in Visic v. Elia Associates Professional Corporation, 2020 ONCA 690. The decision of a judge under this rule is discretionary and entitled to deference. While the Court of Appeal acknowledged that the statement of claim was not marred by the inflammatory rhetoric or hyperbolic claims that are often associated with frivolous and vexatious claims, the fact that the claim could not succeed because of the respondent’s immunity from suit rendered the claim frivolous and incapable of being saved.

Further, the judge’s decision not to permit submissions did not violate any duty of fairness. Rule 2.1.01 is meant to be used in a summary manner and subsection (3) thereof provides that in the court’s discretion, decisions may be made without submissions. Given that there was no possibility for the action to succeed, it was open to the judge to conclude that permitting submissions would serve no purpose.


Ontario (Natural Resources and Forestry) v South Bruce Peninsula (Town), 2021 ONCA 332

[Miller J.A. (Motion Judge)]

COUNSEL:

J.C. Lisus and J. Renihan, for the moving party

N. Adamson and M. Ritchie, for the responding party

Keywords: Environmental Law, Provincial Offences, Regulatory Offences, Endangered Species, Civil Procedure, Leave to Appeal, Questions of Law, Public Interest, Administration of Justice, Expert Evidence, Endangered Species Act, 2007, S.O. 2007, c. 6, ss. 10(1), Provincial Offences Act, s. 139, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Castonguay Blasting, 2011 ONCA 292, Ontario (Labour) v. Sudbury (City), 2019 ONCA 854, R. v. Hicks, 2014 ONCA 756

FACTS:

The respondent township (the “Town”) was responsible for maintaining Sauble Beach, a popular tourist destination and a season nesting home of the piping plover. The piping plover is an endangered species under the Endangered Species Act (the “Act”), and section 10(1) of the Act makes it an offence for any person to damage or destroy the habitat of an enumerated species, of which the piping plover was one.

The Town always worked closely with the Ministry of Natural Resources and Forestry (the “MNRF”) to ensure it met its obligations to maintain the beach for safety and its obligations under the Act. However, one year the Town switched to a new raking method in the spring. In the fall of that year, the Town advised the MNRF of its plan to continue using that method and there were no objections. Subsequently, the MRNF objected and alleged the nature and extent of the maintenance exceeded what had been proposed and the Town was charged and convicted under section 10(1) of the Act, and the convictions were upheld on appeal to the Ontario Court of Justice.

The Town brought this motion for leave to appeal pursuant to section 139(1) of the Provincial Offences Act (the “POA”).

ISSUES:

(1) Should leave to appeal be granted?

HOLDING:

Motion granted.

REASONING:

  1. Yes

The threshold for granting leave to appeal under section 139 of the POA is high and leave is only available on special grounds upon question of law alone and it must be “essential in the public interest or for the due administration of justice that leave be granted.”

The Town argued that the appeal judge erred by interpreting damage too broadly, such that damage would capture any change to a habitat regardless of whether it was a trifling inconvenience or capable of having an actual impact on the protected species. Properly interpreted, the Town argued, section 10(1) would require assessment and evidence that the change had some negative impact on the viability of the species. Further, given the number of land owners and persons who are required to meet the standards of the Act, the public interest requirement should be met.

The Court of Appeal accepted the arguments of the Town and granted leave to appeal. While the appeal judge’s interpretation of section 10(1) may be found to be correct, the questions raised by the Town were serious and their resolution will make the legislation more determinate, and in turn, capable of providing greater guidance to those subject to it. The ESA is of such broad application – impacting private and public landowners as well as any member of the public using such lands – that its interpretation is a matter of public interest.

The Town also advanced an ancillary argument for leave to appeal that the appeal judge erred in his application of the test for admissibility of expert evidence in the context of regulatory offences, established by White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. While not stating the test, the Court granted leave to consider this issue as well since guidance from the Court of Appeal on such fundamental questions of law related to the administration of justice is appropriate and sufficient for leave to be granted.


Datta v Eze, 2021 ONCA 340

[Juriansz, van Rensburg and Sossin JJ.A.]

COUNSEL:

S. Presvelos and E. Presvelos, for the appellants

S. Jagpal, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Rescission, Specific Performance, Damages Civil Procedure, Summary Judgment, References, Appeals, New Issues on Appeal, Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, 7550111 Canada Inc. v. Charles, 2020 ONCA 386

FACTS:

The appellants were vendors in the sale of a residential property and shortly before closing purported to rescind the agreement. The respondents, the purchasers, were worried about being priced out of the market and so accepted the return of their deposit and proceeded to buy another property. The respondents then brought this action for breach of the agreement.

The respondents brought a summary judgment motion which was determined in their favour, with the motion judge finding that the appellants had breached the agreement and ordering a reference on damages. It was determined that the respondents’ damages were the increased value of the appellant’s property, less the increased value of the property the respondents had bought instead.

ISSUES:

(1) Did the motion judge err in finding that the respondents were entitled to specific performance or damages in lieu of, given that they had accepted the return of the deposit?

(2) Did the motion judge err in using a previous appraisal to determine the value of the respondents’ home rather than using the sale price, since the respondents had sold the house just prior to the reference?

HOLDING:

Appeal allowed in part.

REASONING:

  1. No

The appellants did not raise the issue of the effect of accepting the deposit before the motion judge on the summary judgment motion. The appellants urged the Court to exercise its discretion to hear new arguments on appeal, but the Court of Appeal declined to do so. As the Court had previously noted, “the introduction of a new issue on appeal is usually prejudicial to the respondent and runs counter to the societal interest in finality and the expectation that cases will be disposed of fairly, fully and expediently at first instance.”: 7550111 Canada Inc. v. Charles, 2020 ONCA 386.

  1. Yes

In Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, Justice Sopinka, on the topic of damages in lieu of specific performance, stated “[t]echnically speaking, the date of assessment should be the date of judgment”, however, he also recognized that practically speaking, that damages will usually be assessed as of the date of the trial. While a trial judge has discretion as to which of several competing appraisals to use, every appraisal is an estimate. Since there was recent evidence of the actual value of the property from the previous sale, the sale was the best indication of value and the motion judge erred by not explaining why the sale price was not used.

The Court proceeded to re-assess damages and found that the damages were the gain in value on the appellants’ home, less the incremental increase in value of the respondents’ home, based on the sale price.


Spadacini Kelava v Kelava, 2021 ONCA 345

[Jamal J.A. (Motions Judge)]

COUNSEL:

D. Wowk, for the moving party

M. McCarthy, for the responding party

Keywords: Family Law, Matrimonial Home, Civil Procedure, Stay Pending Appeal, Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45(2), (3) and (6), RJR – MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.)

FACTS:

The moving party was previously married to the responding party. Both parties believed that their matrimonial home was jointly owned after separation. The moving party (husband) then claimed that the matrimonial home was his alone, five years after separation.

Both parties referred the issue of ownership of the matrimonial home to arbitration. Ultimately, the Superior Court of Justice heard an appeal from the arbitrator’s decision and found that the matrimonial home should be treated as jointly owned (the “Order”).

The husband sought to appeal the Order on various grounds, and thereby moved to stay the Order requiring that the matrimonial home be listed for sale.

ISSUES:

(1) Should the Order be stayed pending a motion for leave to appeal?

HOLDING:

Motion dismissed.

REASONING:

No. The husband had not satisfied the three-part test for obtaining a stay of a judgment pending a motion for leave to appeal: RJR-Macdonald Inc. v Canada (Attorney General), [1994] 1 SCR 311.

(1) There was a serious question to be determined.

Given the low threshold to establish that there was a serious question to be determined, the husband had established that the issues were neither frivolous nor vexatious. The appeal raised several grounds, such as alleged procedural unfairness, errors of law, and errors of mixed fact and law.

(2) The husband could not establish that he would suffer irreparable harm.

There was no evidence that the matrimonial home was unique or otherwise irreplaceable. Thus, the requirement to sell the matrimonial home was essentially harm that could be quantified in monetary terms. Further, there was insufficient evidence that the children would be harmed, far less harmed irreparably, if the matrimonial home was listed for sale.

(3) The balance of convenience favoured the wife.

Without access to the equity in the matrimonial home, the wife would not be able to purchase a home to provide the children with stable and comfortable living accommodations. It was in the interests of justice that the husband immediately comply with the Order to list the matrimonial home for sale.

 


SHORT CIVIL DECISIONS

Zakhour v Nayel, 2021 ONCA 339

[Juriansz, Huscroft and Jamal JJ.A.]

COUNSEL:

M.Z., acting in person

D. Condo, for the respondent F.N.

Keywords: Family Law, Spousal Support, Equalization of Net Family Property, Civil Procedure, Summary Judgment, Jurisdiction, Family Law Act, R.S.O. 1990, c. F.3, Okmyansky v. Okmyansky (2007), 86 O.R. (3d) 587 (C.A.)

Asghar v Toronto (Police Services Board), 2021 ONCA 338

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

COUNSEL:

S.A., acting in-person

N. Salafia, for the responding parties

Keywords: Civil Procedure, Appeals, Extension of Time, Orders in Chambers, Motion to Review Order, Production of Documents, Standard of Review, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1, Machado v. Ontario Hockey Association, 2019 ONCA 210, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic

ElZayat v Ontario (Ombudsman), 2021 ONCA 336

[Huscroft, Paciocco and Jamal JJ.A.]

COUNSEL:

H.E., acting in person

E. O’Dwyer, A. Rashid and F. Cesario, for the respondent

Keywords: Civil Procedure, Summary Judgement, Procedural and Natural Justice, Hearing in Absentia

Lockhart v Lockhart, 2021 ONCA 329 

[Huscroft, Paciocco and Jamal JJ.A.]

COUNSEL:

R. L., acting in person

M. Rendely and B. Gilmartin, for the respondent

Keywords: Wills and Estates, Powers of Attorney for Property, Powers of Attorney for Personal Care, Capacity, Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A, Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 2(3)

Horn Ventures International Inc. v Xylem Canada Company (ITT Canada Ltd.), 2021 ONCA 341

[Huscroft, Paciocco and Jamal JJ.A.]

COUNSEL:

S. Kugler, J. Danahy, and C. Brennan, for the appellant Xylem Canada Company (Formerly ITT Canada Ltd.)

K. Armagon, for the respondent Horn Ventures International Inc.

Keywords: Contracts, Real Property, Commercial Leases, Obligation to Purchase, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633


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.