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Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the short week of June 28 to 30, 2021.

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Topics covered this week included security for costs in an appeal from a Mareva injunction and follow up contempt order that granted judgment for the full amount sought by the plaintiff, a custody and access, and the enforcement of a limitation of liability clause in a contract with a security alarm provider, the denial of leave to appeal in the Carillion insolvency and the quashing of an appeal by a lawyer of a party on the basis of lack of standing.

If there are any decisions released on Friday, July 2, our summaries of those decisions will be included with our posting of summaries for the week of July 5.

Wishing everyone an enjoyable Canada Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 
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Table of Contents

Civil Decisions

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Braech of Fiduciary Duty, Breach of Contract, Civil Procedure, Orders, Mareva Injunctions, Enforcement, Contempt, Appeals, Security for Costs, Stay Pending Appeal, Rules of Civil Procedure, Rules 60.18, 61.06(1), 61.06(1)(c), 63.01(1), 63.03(3), 63.01(5), 63.02(1), Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, Heidari v. Naghshbandi, 2020 ONCA 757, York University v. Markicevic, 2017 ONCA 651, Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.),  Zafar v. Saiyid, 2017 ONCA 919

M.P.M. v. A.L.M., 2021 ONCA 465

Keywords: Family Law, Custody and Access, Best Interests of Child, Appeals, Orders, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 28, s. 30, 76(2) and 76(3), Divorce Act, R.S.C., 1985, c. 3, ss. 16(1) and (6), Salehi v. Tawoosi, 2016 ONCA 986, Decaen v. Decaen, 2013 ONCA 218, Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, H.E. v. M.M., 2015 ONCA 813, leave to appeal refused, [2016] S.C.C.A. No. 63, C.S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764, Leelaratna v. Leelaratna, 2018 ONSC 5983, M.M.B (V.) v. C.M.V., 2017 ONSC 3991, Foley v. Foley, 2016 ONSC 4925

Deswal v. ADT LLC (ADT Security Services), 2021 ONCA 475

Keywords: Contracts, Interpretation, Torts, Negligence, Limitation of Liability, Sophisticated Parties, Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 34 O.R. (3d) 1 (C.A.), Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33

Carillion Canada Holdings Inc. (Re), 2021 ONCA 468

Keywords: Bankruptcy and Insolvency, Construction Law, Statutory Trusts, Remedies, Tracing, Civil Procedure, Leave to Appeal, Fresh Evidence, Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36, Construction Lien Act, R.S.O. 1990, c. C.30, s. 8, Crystallex International Corporation (Re), 2021 ONCA 87, B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 S.C.R. 805

Scetto v. Scetto, 2021 ONCA 485

Keywords: Contracts, Solicitor and Client, Solicitors’ Lien, Civil Procedure, Appeals, Standing, Solicitors Act, R.S.O. 1990, c. S.15, s. 34(1), Rules of Civil Procedure, Rule 61.04(1), Weenen v. Biadi, 2018 ONCA 288, Schmidt v. Toronto Dominion Bank, 24 O.R. (3d) 1 (C.A.)

Short Civil Decisions

Weinstein v. Toronto Standard Condominium Corporation No. 1466, 2021 ONCA 470

Keywords: Civil Procedure, Arbitration, Appeals, Jurisdiction, Arbitration Act, 1991, SO 1991, c 17, s 49

Di Franco v. Bueckert, 2021 ONCA 476

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAAP, Evidence, Credibility, Summary Judgement, Courts of Justice Act, R.S.O. 1990, c. C.43, Section 137.1, 704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22


CIVIL DECISIONS

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474

[Zarnett J.A. (Motions Judge)]

Counsel:

Radnoff and J. Suttner, for the Respondents, moving parties in M52469 and responding parties in M52474
Necpal and J. Nasseri, for the Appellants, responding parties in M52469 and moving parties in M52474

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Braech of Fiduciary Duty, Breach of Contract, Civil Procedure, Orders, Mareva Injunctions, Enforcement, Contempt, Appeals, Security for Costs, Stay Pending Appeal, Rules of Civil Procedure, Rules 60.18, 61.06(1), 61.06(1)(c), 63.01(1), 63.03(3), 63.01(5), 63.02(1), Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, Heidari v. Naghshbandi, 2020 ONCA 757, York University v. Markicevic, 2017 ONCA 651, Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.),  Zafar v. Saiyid, 2017 ONCA 919

facts:

The Respondents had commenced an action against the Appellants seeking substantial damages. The action arose out of the Respondents’ advance of $9 million to the Appellants for the purchase of certain properties. The Respondents alleged that the investment was not used for the reasons it was advanced and was misappropriated.

On April 23, 2020, the motion judge granted a Mareva injunction and related orders against the Appellants, subject to limited exceptions. On May 19, 2020, the motion judge declared that the Appellants had materially breached the orders and gave them a further opportunity to comply. On June 1, 2020, the motion judge suspended the exceptions to the Mareva injunction due to the appellants’ continuing non-compliance.

A contempt hearing was held. The motion judge found the Appellants in contempt for breach of the Mareva injunction. On November 5, 2020, the motion judge held a sentencing hearing. On January 21, 2021, he released reasons finding that the Appellants had not purged their contempt and remained in breach of his orders. He gave judgment with a number of provisions. As sanction for contempt, the Appellants were ordered to pay $8,794,606.09, to the Respondents, which was their investment less amounts recovered. The Appellants were ordered to attend a judgment debtor examination. Costs amounting to $193,971.08 were also awarded to the Respondents. The Appellant refused to attend the judgment debtor examination.

Pending the hearing of the appeal, the Respondents move for security for costs of the appeal and the costs in the court below. The Appellants sought a declaration that the order to attend the examination was automatically stayed as a result of the outstanding appeal from the money judgment, or in the alternative, an order that it be stayed pending the hearing of the appeal.

issues:

(1) Should security for costs be awarded to the Respondents for the cost of the appeal and for the cost award set out by the motion judge?
(2) Was the order of the motion judge to attend the judgment debtor examination automatically stayed upon appeal, and, if not, should the order be stayed?

holding:

Respondents’ motion granted in part.  Appellants’ motion dismissed.

reasoning:

(1) Yes.

The Respondents sought security for costs as follows: $25,000 for the appeal and $193,971.08 for the proceeding. The Respondents relied on r. 61.06(1)(c) of The Rules of Civil Procedure which provides that security may be ordered for “other good reason”. The Court stated that the ordering of security for costs is discretionary; a two-step reasoning process is involved. The first question is whether the requirements of r. 61.06(1)(a), (b), or (c) are met. If so, the second question is whether it would be just to order security, considering the circumstances and the interests of justice: Yaiguaje v. Chevron Corporation, 2017 ONCA 827.

The Court held that the list of “other good reasons” is not closed and found in favour of the Respondents. The violation of the orders under the Mareva Injunction constituted a reason to grant security that was compelling, given the serious nature of the orders and their violation, and directly related to the purpose for which security for costs may be ordered. The Appellants had been found in contempt of orders designed to ensure that they fulfill their obligations if found liable. This presented an “unacceptable risk” to whether the Appellants would pay a costs award if unsuccessful on appeal. This satisfied the first question of the test.

Relating to the second question, the Court was not satisfied that a reasonable order for security for costs would result in the Appellants being unable to pursue their appeal.

The Court found that since the appeal was not causing all the costs of the proceeding to be incurred, security should not be granted in the amount sought. The Court granted security for $25,000 for the appeal and $45,000 for the cost the of proceeding.

(2) No.

The judgment provided that the Appellants attend a judgment debtor examination even if they appealed the judgment. The Appellants submitted before the motion judge that the motion judge did not have the jurisdiction to order them to attend the examination when the judgment was under appeal. The Appellant submitted on appeal that the appeal automatically stayed any provision of the judgment for payment, and therefore stayed the examination, until the appeal was decided.

The Court found that the examination order was not stayed by r. 63.01(1) as argued by the Appellants. The order to attend the examination was not an order for the payment of money, nor was the examination a prohibited step under r. 63.03. The examination sought by the Respondents was not being pursued under the provision for the payment of money, but under the examination order, a separate provision of the judgment which was not automatically stayed.

The Court also refused to grant a stay as the Appellant identified no prejudice or irreparable harm that would be experienced if they attended the examination. The Appellants were not entitled to “keep their financial affairs secret from the Respondents” and, therefore, it was not in the interest of justice to grant the stay.


M.P.M. v. A.L.M. , 2021 ONCA 465

[Doherty, Trotter and Thorburn JJ.A.]

Counsel:

E. L. Reid and J. D. Mckie, for the appellant
A.L.M., acting in person

Keywords: Family Law, Custody and Access, Best Interests of Child, Appeals, Orders, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 28, s. 30, 76(2) and 76(3), Divorce Act, R.S.C., 1985, c. 3, ss. 16(1) and (6), Salehi v. Tawoosi, 2016 ONCA 986, Decaen v. Decaen, 2013 ONCA 218, Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, H.E. v. M.M., 2015 ONCA 813, leave to appeal refused, [2016] S.C.C.A. No. 63, C.S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764, Leelaratna v. Leelaratna, 2018 ONSC 5983, M.M.B (V.) v. C.M.V., 2017 ONSC 3991, Foley v. Foley, 2016 ONSC 4925

facts:

The parties are the parents of two children: D.M. and S.M (“the children”). The respondent mother, A.L.M, and appellant father, M.P.M. ended their eleven-year relationship in December 2017. The children have remained with the respondent since the date of separation.
Shortly after the marriage ended, the respondent had an emotional breakdown. The appellant had a new relationship and a new child born of that relationship. D.M. and S.M. were not aware that they had a half-sibling. Since the date of separation, notwithstanding concerted efforts by the appellant and the assistance offered by professionals, the children had not formed a meaningful relationship with their father.

In April 2020, the trial judge concluded that the respondent had alienated the children from the appellant. The trial judge ordered that the parties continue to have joint custody, the children would continue to reside primarily with the respondent, while the appellant would have rights of access on the terms set out in his order. All parties were ordered to undergo assessment and therapy. In his reasons, the trial judge warned that he might reverse custody if the respondent did not change her behaviour to encourage the children’s relationship with the appellant.

The appellant sought to vary the reviewing judge’s order such that:
a) the appellant will have sole decision-making responsibility for the children;
b) the children will reside exclusively with him; and
c) the children shall not have contact with the respondent for several months and in any event, not until she has engaged and “meaningfully participated” in therapy to gain insight into her alienating conduct.

issues:

(1) Should the fresh evidence be admitted?
(2) Did the reviewing judge err in concluding that the parties continuing to share custody and the children continuing to reside with the respondent was in the best interests of the children?

holding:

Appeal dismissed.

reasoning:

(1) Yes.
The appellant sought to adduce fresh evidence, an affidavit of Dr. Haner, on the appeal. The letter from Dr. Hanner to the appellants counsel was written ten days after the judge rendered his Reasons on Review and in response to the order that Dr. Haner act as a case manager for counselling and therapy “if she agrees to do so.” In her letter, Dr. Haner declined the referral on grounds that she would be willing to reconsider if the Court continued to provide continuity in oversight by a judge familiar with the case who she could report to. Dr. Haner found that without this oversight, no further progress would be made by the respondent and the children.

The Court admitted Dr. Haner’s evidence, as it could not have been provided prior to receipt of the reasons for the review order and it was credible and relevant to the welfare of the children, which was the central issue on the appeal.

(2) No.
The appellant asserted that the reviewing judge’s order that the parties continue to share custody and the children continue to reside with the respondent was contrary to the best interests of the children. He argued that (i) the reviewing judge misapprehended the evidence about the effect of the appellant’s new child – it was simply something to be navigated; (ii) there was no explanation of why the pandemic precluded the order reversing custody; and (iii) the order was incompatible with the children’s long-term mental health, which requires them to establish a healthy relationship with their father.

The Court found that the reviewing judge did not err in articulating the best interest of the children in co-parenting disputes. Dr. Haner noted that the children said they believed the appellant’s new relationship broke their family unit. Furthermore, the children expressed concerns that the appellant would replace them with a new sibling at some point, both of their mental states were very fragile, and each had expressed animosity and hostility toward the appellant. The Court found there was ample evidence to support the reviewing judge’s conclusion that the consequences of this change in the circumstances was too unpredictable for the vulnerable children. The reviewing judge did not misapprehend the evidence and his conclusion was based on the evidence before him, including the expert’s report and testimony.

The Court also found there was no error adverting to the pandemic as relevant in considering whether to disrupt one of the children’s few sources of stability – their life with the respondent in her home. Lastly, Dr. Haner’s letter, submitted as fresh evidence, did not state that the children cannot and should not continue to reside with the respondent. Dr. Haner’s concern was the termination of ongoing judicial oversight.

The Court found that the reviewing judge considered factors directly relevant to the children’s best interests and concluded that reversing the location of their primary residence was not in their best interests. There was no error in his conclusion given the combined effect of (i) the new family situation in the appellants household that is unknown to the children such that they cannot have adjusted to it; (ii) the inability to access the same resources and interact in person with those who could assist with counselling, therapy and emotional wellbeing; and (iii) the fact that reversing primary residence is almost certain to negatively affect these children in the short-term, while the social science evidence about the long-term success of such an intervention remains inconclusive.


Deswal v. ADT LLC (ADT Security Services), 2021 ONCA 475

[Doherty, Benotto and Brown JJ.A.]

Counsel:

M.A. Klaiman, for the appellants
C. M. Leddy, for the respondents

Keywords: Contracts, Interpretation, Torts, Negligence, Limitation of Liability, Sophisticated Parties, Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 34 O.R. (3d) 1 (C.A.), Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33

facts:

In 2013, the appellants bought a house equipped with a security alarm system provided by the respondents. The parties entered into a Residential Alarm Services Agreement (“Agreement”) to activate and upgrade the system. In 2015, the appellant’s house was robbed and they filed a proof of loss with their insurer. Additionally, they commenced this action against the respondents for aggravated, exemplary, or punitive damages.

The appellants argued that the security system was inoperable at the time they were robbed. The respondents moved for summary judgment dismissing the action which the motion judge granted. The motion judge rejected all the appellants’ following arguments: (1) the respondents were negligent when they failed to inform the appellants about a cellular backup option; (2) the respondents’ sales agent was under a duty to draw the appellants’ attention to the limitation of liability and entire agreement clauses in the Agreement and he failed to do so; and (3) the limitation of liability clause, which stated that “ADT is not an insurer” and limited liability to 10% of the annual service charge was unenforceable as it was unconscionable and contrary to public policy.

issues:

(1) Did the motion judge err in holding that the respondents had no duty to advise the appellants of the alarm system’s vulnerabilities and how they could be mitigated?
(2) Did the motion judge err in concluding that the limitation of liability clause was enforceable?

holding:

Appeal dismissed.

reasoning:

(1) No.

The motion judge rejected the appellants’ submissions that the agent was negligent by failing to tell them about a cell-backed communication option for their alarm system, assuring them that their house would be monitored 24/7, with no possibility of interruption when in fact an interruption happened at the time of the robbery, and by failing to explain how a security system could be circumvented. The appellants argued that these were material details that the respondents were under a duty to disclose and the trial judge erred by failing to find such a duty. The motion judge rejected this argument because the appellants did not adduce legal authority to support the contention that the respondents had a duty to advise them about other offered services and that the appellants’ position was not consistent with the general obligations between parties who have entered a written contract.

The Court stated that in a commercial setting, in the absence of fraud or other improper conduct that induced a plaintiff to enter the contract, the plaintiff bears the onus of reviewing the contract and evaluating it before signing it: Fraser Jewellers (1982) Ltd. V. Dominion Electric Protection Co. (1997), 34 O.R. (3d) 1 (C.A.). In this case, although the agreement arose in a commercial setting, the appellants were sophisticated and if they had taken the time to read the agreement, they would have understood from the first page that a cellular back-up service was available and that the operation of the system could be interrupted as identified in numerous clauses. Therefore, the Court upheld the motion judge’s reasoning that it was the appellants’ responsibility to read the agreement and ask about its terms.

(2) No.

The Court held that the motion judge did not err in her application of the analysis outlined in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, to determine the enforceability of the limitation of liability clause for the following reasons. First, the agreement’s limitation of liability clause applied in the circumstances. Second, when the motion judge’s oral reasons are considered as a whole, she held that the clause was not unconscionable as limitations on liability were clearly outlined in several clauses of the agreement in plain sight and there was no pre-existing relationship between the parties where the appellants looked to the respondents for advice, as the appellants were sophisticated.

There was also no evidence of duress or limits placed on the appellants’ time to review the agreement at the time of execution and the appellants chose not to read the agreement. Third, the Court affirmed the motion judge’s ruling that public policy favoured upholding the contract on its terms, relying on Fraser Jewellers and Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33.

The motion judge’s adoption of a public policy rational supporting the limitation of liability clauses in alarm system service contracts was set out by the Court in Fraser Jewellers. Specifically, the service provider is not an insurer and its monitoring fee bears no relationship to the area of risk and the extent of exposure ordinarily considered in the determination of insurance policy premiums.


Carillion Canada Holdings Inc. (Re), 2021 ONCA 468

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

P.H. Le Vay and C. Di Carlo, for the moving party
J. Salmas and D. Wiebe, for the responding party

Keywords: Bankruptcy and Insolvency, Construction Law, Statutory Trusts, Remedies, Tracing, Civil Procedure, Leave to Appeal, Fresh Evidence, Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36, Construction Lien Act, R.S.O. 1990, c. C.30, s. 8, Crystallex International Corporation (Re), 2021 ONCA 87, B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 S.C.R. 805

facts:

The Respondent provided banking services to the Applicant, Carillion. The Applicant received over $28 million for four construction projects. There were unpaid suppliers and subcontractors at each project. Pursuant to the cash sweep and pooling arrangements that the Applicant had with the Respondent, funds were swept from the Applicant for the unpaid suppliers and subcontractors.
The court-appointed Monitor brought a motion for a declaration that, pursuant to s. 8 of the Construction Lien Act (“CLA”), the account created from the Respondent’s sweep was subject to a statutory trust. In Companies’ Creditors Arrangement Act (“CCAA”) proceedings, the judge dismissed the motion, ruling that the Monitor had failed to establish the certainty of subject-matter requirement for a trust. The trust was not identifiable because it had been irreconcilably converted by seven different companies in two countries. Tracing in equity cannot be used to enforce a trust in an insolvency proceeding where identification of the specific trust property is impossible. Tracing the funds in common law did not apply because the payments were deposited into and transferred among mixed accounts and put to various uses.

issues:

(1) Should the Court admit fresh evidence?
(2) Is the test for leave to appeal met?

holding:

Motion dismissed.

reasoning:

(1) No.

The only substantive component of the proposed fresh evidence was a letter which contained subjective opinion evidence on the impact of the motion judge’s decision on the construction and surety industries. The letter was not appended to an affidavit sworn by its author. Therefore, it was inadmissible hearsay.

(2) No.

Leave to appeal is only granted in CCAA proceedings where there are serious and arguable grounds that are of real and significant interest to the parties. The courts will consider if: 1) the proposed appeal is prima facie meritorious or frivolous; 2) the point on the proposed appeal is of significance to the practice; 3) the point on the proposed appeal is of significance to the action; and 4) the proposed appeal will unduly hinder the progress of the action: Crystallex International Corporation (Re), 2021 ONCA 87, at para. 10.

The Court was not satisfied that the proposed appeal was prima facie meritorious or that the case was of significance to the practice. The CCAA judge is deeply knowledgeable in the relevant industry and is entitled to considerable deference. The CCAA judge found that tracing at common law and in equity fails where identification of trust property is not possible: B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, at para. 85. In addition, tracing in equity cannot be used to enforce a CLA trust in insolvency proceedings. This was the situation in this case.

Further, the Court found that the CCAA judge’s decision was not of significance to the practice for two reasons. First, the decision was fact specific: the nature and operation of the Applicant’s unique banking structure were critical factors. Second, the decision does not create uncertainty because it is consistent with established jurisprudence.


Scetto v. Scetto, 2021 ONCA 485

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

K. Preston, for the Plaintiff
M. Kersten, for the Appellant
No one appearing for the Defendant

Keywords: Contracts, Solicitor and Client, Solicitors’ Lien, Civil Procedure, Appeals, Standing, Solicitors Act, R.S.O. 1990, c. S.15, s. 34(1), Rules of Civil Procedure, Rule 61.04(1), Weenen v. Biadi, 2018 ONCA 288, Schmidt v. Toronto Dominion Bank, 24 O.R. (3d) 1 (C.A.)

facts:

The Plaintiff transferred title of a property to the Defendant in 2003. The Defendant gave no consideration for the transfer. A house was ultimately built on the property, which the Defendant occupied. The Plaintiff brought an action asking to the court to make a declaration that the Defendant was holding the property in trust. The Appellant represented the Defendant in this action. The trial judge found that a gift was not made so the Defendant was holding the property in trust. However, the Defendant was entitled to equitable set-off for contributions made to the property.

The trial judge further ordered the sale of the property, and the proceeds, after expenses, were to be divided based on the parties’ contributions. Issues arose with respect to how the net proceeds would be disbursed. The Plaintiff brought a motion for directions. At the same time, the Appellant brought motions to collect the amount owed to them in legal fees from the net proceeds and to remove itself as counsel of record for the Defendant. A Direction Order was released, which stated that the Defendant was not entitled to any of the proceeds after expenses. Furthermore, the Appellant was removed as counsel of record for the Defendant, but its motion to collect fees from the proceeds was dismissed because the Defendant did not have proceeds to collect from: Weenen v. Biadi, 2018 ONCA 288, at para. 15. The Appellant appealed the Order of Lack J. The Plaintiff moved to quash the appeal on the ground that the Appellant had no standing. The Plaintiff further argues that the appeal was devoid of merit.

issues:

(1) Should the appeal of the Appellant be quashed?

holding:

Motion granted.

reasoning:

(1) Yes.
A motion to quash may usefully be brought where the moving party contends that the court cannot or should not hear the merits of the appeal: Schmidt v. Toronto Dominion Bank, 24 O.R. (3d) 1 (C.A.), at para. 5. Schmidt goes on to say that the threshold for quashing an appeal is high, and to be exercised only in the clearest of cases where the appeal is “manifestly devoid of merit”. However, the Plaintiff did not claim that the appeal was devoid of merit. The Plaintiff moved to quash the appeal because the Appellant did not have standing to appeal. Therefore, the Court cannot and should not hear the merits of the appeal.

First, the Appellant’s contention that it has standing because it was granted by the motion judge was incorrect. The motion judge specifically stated that it was not a question of standing and proceeded to hear submissions. Second, the Defendants did not permit the Appellant to make submissions on their behalf. The Appellant had no authority to make submissions on the Directions Motion. Accordingly, the Appellant had no standing to appeal the Directions Order and appeal was quashed.


SHORT CIVIL DECISIONS

 

Weinstein v. Toronto Standard Condominium Corporation No. 14662021 ONCA 470

[Doherty, Feldman and Benotto JJ.A.]

Counsel:

T.M. Duggan, for the moving party (respondent)
S.W., acting in person

Keywords: Civil Procedure, Arbitration, Appeals, Jurisdiction, Arbitration Act, 1991, SO 1991, c 17, s 49

 

Di Franco v. Bueckert, 2021 ONCA 476

[Tulloch, Roberts and Thorburn JJ.A.]

Counsel:

D.S. Tucker-Simmons and Y. Hameed, for the appellant
J. Lalonde, for the respondent

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAAP, Evidence, Credibility, Summary Judgement, Courts of Justice Act, R.S.O. 1990, c. C.43, Section 137.1, 704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22


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.