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Good evening.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of October 18, 2021.

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In Kyko Global Inc v. M/S Crawford Bayley & Co., the Court upheld the dismissal of a motion to stay an action on the basis of a lack of jurisdiction or forum non conveniens. The claim at issue was by an Ontario corporation against its lawyers in India who had provided an opinion on the enforceability of a guarantee in India. Relevant to the Court’s decision were the fact that reliance on the opinion occurred in Ontario and the opinion related to a contract made in Ontario.

Other topics covered this week included the calculation of damages in a wrongful dismissal matter relating to stock awards plan, family law (stay pending appeal of a custody and access order and summary judgment before an answer and financial disclosure were made), interveners in a private law appeal, the interpretation of a waiver of subrogation clause in an insurance policy, summary judgment in a debtor-creditor matter and extension of time to appeal in an estates matter.

For our readers who have not yet heard about it, I would like to introduce them to a new online publication, Civil Procedure & Practice in Ontario (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. As most of our readers probably know, CanLII is a not-for-profit organization operated by the Federation of Law Societies of Canada and is dedicated to assisting with access to justice through the free and open dissemination of the laws of Canada to all members of the public. The CPPO was written by a team of 135 leading litigators and experts in Ontario civil procedure, led by Professor Noel Semple of Windsor Law School. I had the privileged to co-author two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

CPPO will serve as a guide to Ontario’s Rules of Civil Procedure, Courts of Justice Act, and Limitations Act, and will be accessible not only to practitioners, but to members of the public. It contains not only the text of all these rules and statutory provisions, but also commentary and annotations to all the relevant case law applying and interpreting each rule and section. To access Civil Procedure & Practice in Ontario, please click here, and make sure to bookmark the site for easy access.

I would encourage all of our readers to consult CPPO in their daily practice, and to spread the word among colleagues. In addition, the authors and Professor Semple would welcome any feedback and ideas for improvement.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Foxgate Developments Inc. v. Jane Doe, 2021 ONCA 745

Keywords: Civil Procedure, Interveners, Friends of the Court, Rules of Civil Procedure, Rule 13.02, Constitution Act, 1982, s. 35, Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.) Foster v. West, 2021 ONCA 263, Fraser Hillary’s Limited, 2018 ONCA 277, Halpern v. Canada (Attorney General) (2003), 169 O.A.C. 172 (C.A.), Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 CanLII 60327 (Ont. C.A.)

S. v. A., 2021 ONCA 744

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Stay Pending Appeal, Best Interests of the Child, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30, D.C. v. T.B., 2021 ONCA 562, Bors v. Bors, 2021 ONCA 513, A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, Mattina v. Mattina, 2018 ONCA 641, Goldman v. Kudelya, 2017 ONCA 300

Battiston v. Microsoft Canada Inc., 2021 ONCA 727

Keywords: Contracts, Employment, Wrongful Dismissal, Damages, Stock Awards, Employment Standards Act, 2000, S.O. 2000, c. 41, s. 60(a), (b), Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, Berlingieri v. DeSantis (1980), 31 O.R. (2d) 1 (C.A.)

Ilgner v. Box, 2021 ONCA 747

Keywords: Wills and Estates, Wills, Validity, Civil Procedure, Appeals, Perfection, Extension of Time, Chuang v. Royal College of Dental Surgeons of Ontario (2005), 77 O.R. (3d) 280 (Div. Ct.)

Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736

Keywords: Contracts, Conflict of Laws, Jurisdiction Simpliciter, Forum Non Conveniens, Standard of Review, Rules of Civil Procedure, Rule 25.10, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Ontario v. Rothmans Inc., 2013 ONCA 353, Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, Airia Brands Inc. v. Air Canada, 2017 ONCA 792, Young v. Tyco International of Canada Ltd., 2008 ONCA 709, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, Haaretz.com v. Goldhar, 2018 SCC 28, Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Central Sun Mining Inc. v. Vector Engineering Inc., 2013 ONCA 601, Sincies Chiemetin S.p.A (Trustee of) v. King, 2012 ONCA 653, Henry Estate v. Henry, 2012 MBCA 4

Hoang v. Mann Engineering Ltd., 2021 ONCA 742

Keywords: Civil Procedure, Appeals, Reconsideration, Vexatious Litigants, Rules of Civil Procedure, Rules 2.1.02, 61.16(6.1), Hoang v. Mann Engineering, 2020 ONCA 808, Trillium Motor Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, leave to appeal refused, [2017] S.C.C.A. No. 366, Owen Cornelius Mullings v. Jacqueline Alice Dian Robertson, 2020 ONCA 369, leave to appeal refused, [2020] S.C.C.A. No. 393, Collins v. Ontario, 2017 ONCA 317, leave to appeal refused, [2017] S.C.C.A. No. 245, Hoang v. Mann Engineering Ltd., 2015 ONCA 838

Hevey v. Hevey, 2021 ONCA 740

Keywords: Family Law, Equalization, Spousal Support, Civil Procedure, , Summary Judgment, Answers, Disclosure, Family Law Act, R.S.O. 1990, c. F.3, ss. 2(8), 7(3), Family Law Rules, O. Reg. 114/99, r. 16, Ramdial v. Davis, 2015 ONCA 726, Hryniak v. Mauldin, 2014 SCC 7, Housen v. Nikolaisen, 2002 SCC 33, Frick v. Frick, 2016 ONCA 799, Roberts v. Roberts, 2015 ONCA 450, Colucci v. Colucci, 2021 SCC 24, Vivier v. Vivier, 5 R.F.L. (3d) 450 (Ont. Dist. Ct.), Scherer v. Scherer (2002), 59 O.R. (3d) 393 (Ont. C.A.), Werth v. Werth, 2004 ONCJ 43, Hart v. Hart (1990), 27 R.F.L. (3d) 419 (Ont. U.F.C.), Douthwaite v. Douthwaite (1997), 32 R.F.L. (4th) 90 (Ont. Gen. Div.)

Weslease 2018 Operating LP v. Eastgate Pharmaceuticals Inc., 2021 ONCA 743

Keywords: Contracts, Debtor-Creditor, Settlement Agreements, Civil Procedure, Summary Judgment

Scaffidi-Argentina v. Tega Homes Developments , 2021 ONCA 738

Keywords: Contracts, Insurance, Interpretation, Additional Insured, Waiver of Subrogation, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Scaffidi-Argentina v. Tega Homes Developments Inc. et al., 2021 ONSC 3223

Short Civil Decisions

M.L. v. B.T., 2021 ONCA 734

Keywords: Family Law, Costs

Narwhal International Limited v. Teda International Realty Inc., 2021 ONCA 741

Keywords: Costs

Nelson v. TELUS Communications Inc. , 2021 ONCA 751

Keywords: Constitutional Law, Paramountcy, Interjurisdictional Immunity, Civil Procedure, Class Proceedings, Intervenors, Costs, Wireless Services Agreement Act, 2013, S.O. 2013, c. 8, s. 16

Pinder v. Biggar, 2021 ONCA 750

Keywords: Civil Procedure, Substantial Indemnity Costs, Delay


CIVIL DECISIONS

Foxgate Developments Inc. v. Jane Doe, 2021 ONCA 745

[Coroza J.A.]

Counsel:

B. Yellin, for the appellant, S.W

P. Demelo and K. Jennings, for the responding party, Foxgate Developments Inc.

B. Macdonald, for the responding party, Corporation of Haldimand County

R. Ogden and J. Shields, for the respondent Her Majesty the Queen in Right of Ontario

M. Eberts and J. Rogin, for the proposed intervener, 1492 Windsor Law Coalition

C. E. Kasper and J. Rudin, for the proposed intervener, Aboriginal Legal Services

C. Zwibel, for the proposed intervener, Canadian Civil Liberties Association

Keywords: Civil Procedure, Interveners, Friends of the Court, Rules of Civil Procedure, Rule 13.02, Constitution Act, 1982, s. 35, Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.) Foster v. West, 2021 ONCA 263, Fraser Hillary’s Limited, 2018 ONCA 277, Halpern v. Canada (Attorney General) (2003), 169 O.A.C. 172 (C.A.), Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 CanLII 60327 (Ont. C.A.)

facts:

The order under appeal struck out the appellant’s pleadings on an injunction motion brought by Foxgate Developments Inc. (“Foxgate”) and the Corporation of Haldimand County (“Haldimand”). The motion judge found the appellant had engaged in an abuse of process due to the appellant’s self-admitted contempt of court. The appellant also seeks leave to appeal the costs decision of the motion judge, which directed the appellant to pay Foxgate and Haldimand substantial costs. The appellant also brought a Notice of Constitutional Question and Third-Party Claim against Canada and Ontario. Both Canada and Ontario are third parties in the appeal.

The appeal is scheduled to be heard on October 26, 2021.

1492 Windsor Law Coalition (“1492 WLC”), Aboriginal Legal Services (“ALS”), and the Canadian Civil Liberties Association (“CCLA”) brought motions for leave to intervene as a friends of the court pursuant to Rule 13.02 of the Rules of Civil Procedure.

Foxgate and Haldimand opposed the motions. Canada took no position. Ontario consented to the motions to intervene by the CCLA and ALS and took no position on 1492 WLC’s motion.

issues:

(1) Should 1492 WLC, ALS, and/or CCLA be granted status to intervene in the appeal as friends of the court?

holding:

Motions dismissed.

reasoning:

(1) No.

In determining these motions to intervene as friends of the court, the court must consider the general nature of the case, the issues that arise in the case, and the contribution that the proposed intervener can make to resolving those issues without doing an injustice to the parties. Further, the Court also noted that the proposed intervener must meet a stringent standard because the appeal involves a private dispute rather than public law.

With respect to 1942 WLC and ALS, a substantial portion of their proposed submissions inappropriately seek to expand the legal issues on appeal by making submissions on injunctions. With respect to CCLA, a substantial portion of its submissions overlap with those made by the appellant. Further, granting leave to intervene at this time would, prejudicially, leave the respondents limited time to provide responding submissions. As a result of minimal contributions and the nature of prejudice that could arise from allowing such a late intervention, the Court determined the motions must be dismissed.


S. v. A., 2021 ONCA 744

[Coroza J.A. (Motion Judge)]

Counsel:

G. S. Joseph and A. Parama, for the moving party

G. Gottlieb and M. Pilch, for the responding party

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Stay Pending Appeal, Best Interests of the Child, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30, D.C. v. T.B., 2021 ONCA 562, Bors v. Bors, 2021 ONCA 513, A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, Mattina v. Mattina, 2018 ONCA 641, Goldman v. Kudelya, 2017 ONCA 300

facts:

Mr. S, the respondent, and Ms. A, the appellant, were married in 2011 and separated in 2016. They have two children, L, who is seven, and A, who is five. The parties could not resolve the parenting issues relating to their children, and the respondent issued an Application in 2016. A thirty-nine (39) day trial was held over nine (9) weeks in the Superior Court of Justice beginning in May of 2021.

On September 9, 2021, the trial judge released a very lengthy and comprehensive decision ordering that the primary care of the children be transferred to the respondent and granting him sole responsibility for decision making. The appellant sought a stay of the trial judge’s final order pending her appeal.

issues:

(1) Should a stay of the trial judge’s final order be granted pending appeal?

holding:

Motion dismissed.

reasoning:

(1) No.

It was not in the child’s best interest for the stay to be granted. In determining whether to stay an order involving the parenting of a child, the courts must consider, keeping in mind the overriding concern for the best interests of the child:

(i) whether, on a preliminary assessment, the appeal raises a serious question (low threshold);
(ii) whether the child will suffer irreparable harm if a stay is refused; and
(iii) the balance of convenience: whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal.

The test for a stay was not met in this case:

(i) Serious Question

The appellant met the low threshold for establishing that there was a serious question on appeal, through challenging the trial judge’s acceptance of the respondent’s expert witness. The Court held that the appellant could develop an argument that the expert witness, Wendy MacKenzie, provided inadmissible opinion evidence that strayed well beyond her expertise, and that a voir dire was required to determine her qualifications and the nature of the opinion that she was qualified to give to the court.

(ii) Irreparable Harm

Zoom chat conversations in which one child wrote “help call popo [police]”,“pls [please] get me out of here”, and “i hate my life” were insufficient to provide evidence of significant or irreparable harm.

The evidence of a psychologist that custody reversals are highly intrusive was also insufficient to establish irreparable harm because his research had not been subject to cross-examination, spoke only to custody orders generally, and was not clearly admissible under the test for admitting fresh evidence on appeal.

(iii) Balance of Convenience

The scale tipped in favor of the respondent. There was evidence of irreparable harm or risk of harm to the children as a result of the order, but there was also evidence of benefit to the children in continuing to have the trial judge’s order intact pending appeal. The very best outcome for the children was to first restore their parenting relationship with the respondent. To stay the order under appeal would be highly disruptive to this goal and would not be in their best interests.


Battiston v. Microsoft Canada Inc., 2021 ONCA 727

[Benotto, Brown and Harvison Young JJ.A.]

Counsel:

D. Glendinning, N. Roberts and M. Sheeley, for the appellant

A. Monkhouse and S. Lucifora, for the respondent

Keywords: Contracts, Employment, Wrongful Dismissal, Damages, Stock Awards, Employment Standards Act, 2000, S.O. 2000, c. 41, s. 60(a), (b), Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, Berlingieri v. DeSantis (1980), 31 O.R. (2d) 1 (C.A.)

facts:

The respondent was employed by Microsoft Canada Inc. for almost 23 years when he was terminated without cause and brought an action for wrongful dismissal. The trial judge found that the respondent was entitled to 24 months’ pay in lieu of reasonable notice less 1 percent contingency for re-employment during the balance of the notice period, plus 0.7 percent annual merit increase, an annual cash bonus of $12,100 and stock awards.

Microsoft Canada Inc. appealed only in respect of the trial judge’s conclusion that the respondent was entitled to unvested stock awards after his termination. The appellant relied on the Stock Award Agreement (the “Agreement”), which provided that any unvested stock awards do not vest to an employee if the employment ends for any reason. The trial judge found that the termination provisions in the Agreement were not drawn to the respondent’s attention and could not be enforced because they were harsh and oppressive.

issues:

(1) Did the trial judge err in concluding that the Agreement was unenforceable because the termination provisions in the Agreement were not brought to the respondent’s attention?

holding:

Appeal allowed.

reasoning:

The respondent received an e-mail every year outlining the stock rewards acceptance. The respondent confirmed that he received the e-mails every year for 16 years. He confirmed he clicked the link to accept the stock rewards but did not read the Agreement and did not know about the termination provisions. The trial judge found that the Agreement unambiguously excluded the respondent’s right to vest his stock awards after termination without cause. However, it was also found that the terms were unenforceable because they were harsh and oppressive and because the respondent was not given notice. The trial judge stated that “there is no dispute” that notice was not given, but later made a finding of fact which demonstrated that the appellant did not concede to the issue.

The Court found that the trial judge’s conclusion that the provisions were not brought to the respondent’s attention could not stand because it failed to address:

1. The respondent expressly agreed to the terms of the agreement for 16 years;
2. The respondent made a conscious decision not to read the Agreement despite indicating that he did read it by clicking the box confirming such;
3. By misrepresenting his assent to the appellant, he put himself in a better position than an employee who did not misrepresent, thereby taking advantage of his own wrong.

The trial judge erred by finding the respondent received no notice.


Ilgner v. Box, 2021 ONCA 747

[Brown J.A. (Motion Judge)]

Counsel:

B. B., acting in person

J. Kappy and S. Clark, for the responding party

Keywords: Wills and Estates, Wills, Validity, Civil Procedure, Appeals, Perfection, Extension of Time, Chuang v. Royal College of Dental Surgeons of Ontario (2005), 77 O.R. (3d) 280 (Div. Ct.)

facts:

Ms. P-B died on June 18, 2019. The deceased’s Will appointed her mother, the moving party’s grandmother, as estate trustee. In January 2020, B. B. and K. B., children of the deceased, filed a notice of objection in respect of the Will. They asserted their mother wanted to maintain the Property (the main estate asset) as the family home with the three children as beneficiaries.

B. B. has resided at the Property since his mother’s death, effectively treating it as his own.

The estate trustee commenced an application seeking various relief, including a direction the children provide vacant possession of the Property. Conway J. issued her first order on November 9, 2020, directing B. B. and K. B. to desist from further renovations and to account for their dealing with the Property. No appeal was taken from the First Conway Order.

The First Conway Order was ignored, which led to the Second Conway Order dated December 16, 2020, which struck out the notice of objection filed by B. B. and K. B. without leave to amend, directed issuance of a certificate of appointment of estate trustee to the grandmother, and directed B. B. and K. B. to comply with the First Conway Order. No appeal was taken from the Second Conway Order.

A Third Conway Order dated June 3, 2021, ordered B. B. to vacate the Property by July 3, 2021, failing which a writ of possession could issue. To date, B. B. remains at the property. On July 7, 2021, B. B. filed a notice of appeal from the Third Conway Order, but has not filed any materials to perfect the appeal.

Instead, B. B. brought this motion to seek an extension until the end of the year to perfect his appeal.

issues:

(1) Should the appellant be granted an extension to perfect his appeal of the Third Conway Order?

(2) Should the Court require the estate trustee to release to the appellant draft copies of the Will, the deceased’s medical records, and any insurance documents?

(3) Should the Court put in place a process that would enable the appellant to pay out his two siblings’ share of the estate from a mortgage the appellant wishes to place on the main estate asset?

holding:

Motion dismissed.

reasoning:

(1) No.

The Court began its analysis by noting that although the appellant’s delay in perfecting his appeal was not unduly long, he offered no reasonable explanation about why there was any delay. The Court noted the record strongly suggested B. B. believed he could continue living in the estate’s Property disregarding the terms of his mother’s Will. His motion for an extension of time struck the Court as “a continuation of that pattern of conduct”.
Since the Property was the main estate asset, the Court noted that any continuing delay would prejudice the estate and the other beneficiaries of the estate. Accordingly, the Court held that justice required the administration of the estate to proceed without further efforts by B. B. to delay the estate trustee.

(2) No.

The Court saw no meritorious grounds of appeal in the appeal of the Third Conway Order. Specifically, no appeal was taken from the Second Conway Order that struck out the notice of objection and directed the issuance of a certificate of appointment of estate trustee. In sum, as there was no appeal of the Second Conway Order, the Will must be taken to be proved. Accordingly, the Court noted the document request by B. B. was no longer relevant.

(3) No.

The Will did not grant B. B. a proprietary interest in the Property. Accordingly, there was no legal basis for his position that he should be allowed to take title to the Property, mortgage it, and pay out his siblings’ shares of the residue. It followed that there was no legal basis for B. B. to remain in the Property, which is the estate’s asset.


Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736

[Rouleau, Hoy and Thorburn JJ.A]

Counsel:

J. Bunting and A. Hassan, for the appellants

J. W. Thomas and L. Chiu, for the respondent

Keywords: Contracts, Conflict of Laws, Jurisdiction Simpliciter, Forum Non Conveniens, Standard of Review, Rules of Civil Procedure, Rule 25.10, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Ontario v. Rothmans Inc., 2013 ONCA 353, Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, Airia Brands Inc. v. Air Canada, 2017 ONCA 792, Young v. Tyco International of Canada Ltd., 2008 ONCA 709, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, Haaretz.com v. Goldhar, 2018 SCC 28, Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Central Sun Mining Inc. v. Vector Engineering Inc., 2013 ONCA 601, Sincies Chiemetin S.p.A (Trustee of) v. King, 2012 ONCA 653, Henry Estate v. Henry, 2012 MBCA 4

facts:

The appellants, M/S C. B. &Co. and Mr. A, are a law firm based in Mumbai, India and a senior partner of that firm. They argued that Ontario lacks jurisdiction over and is not the convenient forum for, the respondent, Kyko Global Inc.’s action against them. They appealed the motion judge’s dismissal of their motion seeking the stay or dismissal of Kyko’s action. The motion judge applied the test in Club Resorts v. Van Breda, 2012 SCC 17 and concluded that two presumptive connecting factors were present and there was a real and substantial connection between the subject matter of the litigation and Ontario.

Kyko, an Ontario corporation, had retained the appellants to provide an opinion on the enforceability of a guarantee to be provided by Sical Logistics Limited (“Sical” or the “guarantor”), a publicly-traded company in India. The guarantee was security for a trade finance facility provided by Kyko to another Indian company, West Coast Marine Private Limited. In a letter dated September 9, 2010 addressed to Kyko’s Ontario counsel, the appellants opined that the guarantee was enforceable in accordance with its terms. The guarantee had Ontario choice of law and forum provisions. Unbeknownst to Kyko, it was Mr. A’s cousin, Mr. Y.A., who effectively brokered Kyko’s agreement to provide the trade facility to West Coast Marine Private Limited. Kyko subsequently brought this action against the appellants for negligent and fraudulent misrepresentation and breach of contract. At the time the motion was heard, Sical’s injunction application was still pending before the Madras High Court. The motion judge noted that Kyko conceded that its claim against the appellants could only proceed if the guarantee is a forgery, and as a result depends on the outcome of the proceeding in the Madras High Court.

issues:

(1) What is the applicable standard of review?

(2) Did the motion judge reverse the burden of proof on the test for jurisdiction simpliciter?

(3) In his jurisdiction simpliciter analysis, did the motion judge err by accepting allegations in the statement of claim as true despite evidence to the contrary?

(4) Did the motion judge discount the appellant’s evidence on the location of their witnesses in his forum non conveniens analysis as a result of a misreading of the applicable jurisprudence?

(5) Did the motion judge fail to consider relevant factors in his forum non conveniens analysis?

(6) Was the motion judge’s decision that the appellants had not discharged their burden to show that Mumbai was a clearly more appropriate forum unreasonable?

holding:

Appeal dismissed.

reasoning:

(1) Deferential.

Whether or not a motion judge erred in the application of the test for jurisdiction simpliciter is a question of mixed fact and law, reviewable for palpable and overriding error, unless an error in the application of the test can be attributed to an extricable question of law.

The applicable of forum non conveniens is an exercise of discretion reviewable in accordance with the principle of deference to discretionary decisions. Appeal courts should intervene only if the motion judge erred in principle, misapprehended or failed to take account of material evidence or reached an unreasonable decision.

(2) No.

The motion judge held that on a jurisdiction motion brought at an early stage of a proceeding, the court does not assess the facts of a case beyond deciding whether a “good arguable case” is shown to ground jurisdiction. The motion judge considered the evidence on which the appellants rely and concluded that Kyko had a good arguable case, and that the appellants had not rebutted the presumption of jurisdiction. Furthermore, the tort of negligent or fraudulent misrepresentation occurs where the information is received and relied upon. The appellants provided the opinion with the clear understanding that it would be relied on in Ontario.

(3) No.

In context, including that the opinion was addressed to Kyko’s Ontario legal counsel, Mr. K’s evidence did not contradict Kyko’s pleading that the contract was made in Ontario. The court re-affirmed Rothmans, stating that a plaintiff asserting jurisdiction may be required to call evidence to support undenied allegations in a statement of claim either where the cause of action as pleaded appears to be devoid of merit or where the pleadings fail to demonstrate any air of reality concerning the possible existence of the presumptive connecting factor. This case was not such a case. The Court was not persuaded that the motion judge committed any palpable or overriding error of fact or any extricable error of law in finding that Ontario had jurisdiction simpliciter.

(4) No.

One of the relevant factors in determining whether a defendant has discharged its burden of showing why jurisdiction should be declined to displace the forum chosen by the plaintiff is the comparative convenience and expense for the parties to the proceeding and for their witnesses in litigation in the court or in any alternative forum. The motion judge concluded that this factor was neutral in this case. The appellants did not adduce evidence that their witnesses in India would not testify voluntarily. The motion judge did not rely on videoconferencing to overcome the problem of foreign witnesses who are unwilling to testify in the absence of evidence that those witnesses could be compelled in Ontario. The motion judge did not misapprehend the evidence and his conclusion was reasonable.

(5) No.

The motion judge’s reasons reflect that he considered and balanced the following six factors in his forum non conveniens analysis: (1) the comparative convenience and expense for the parties to the proceeding and for their witnesses in litigating in Ontario or India; (2) the law to be applied to the issues in the proceeding; (3) the desirability of avoiding a multiplicity of proceedings; (4) the desirability of avoiding conflicting decisions in different courts; (5) the enforcement of an eventual judgment; and (6) the fair and efficient working of the Canadian legal system. In the context of this case, the factors that the appellants argued the motion judge should have considered were minor, and were largely subsumed by the motion judge’s analysis of the comparative convenience and expense to the parties and witnesses in litigating in Ontario or Mumbai.

(6) No.

The motion judge considered and balanced six factors in concluding that the appellant had not met the onus of showing India to be clearly more appropriate forum for the action than Ontario. The motion judge instructed himself that having regard to the case as a whole, he “must consider and balance the broader issues of fairness and efficiency of a particular forum with the justice of that choice to the parties”. The court found the motion judge’s analysis was rigorous and much more than an instinctive favouring of his own jurisdiction.


Hoang v. Mann Engineering Ltd., 2021 ONCA 742

[Doherty, Lauwers, and Miller JJ.A.]

Counsel:

K.M.H. in person (the “appellant”)

T. Flett and D. Hassell, for the respondents

Keywords: Civil Procedure, Appeals, Reconsideration, Vexatious Litigants, Rules of Civil Procedure, Rules 2.1.02, 61.16(6.1), Hoang v. Mann Engineering, 2020 ONCA 808, Trillium Motor Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, leave to appeal refused, [2017] S.C.C.A. No. 366, Owen Cornelius Mullings v. Jacqueline Alice Dian Robertson, 2020 ONCA 369, leave to appeal refused, [2020] S.C.C.A. No. 393, Collins v. Ontario, 2017 ONCA 317, leave to appeal refused, [2017] S.C.C.A. No. 245, Hoang v. Mann Engineering Ltd., 2015 ONCA 838

facts:

The appellant and the respondents were involved in litigation for approximately 10 years. In the first action, the appellant sued the respondents for wrongful dismissal. In the second action, the appellant sued the respondents for alleged improper efforts to enforce the judgment obtained in the first action. The litigation was marked by the appellant’s repeated attempts to continue to litigate after the Court had dismissed his appeals.

The appellant’s appeal in the second action was dismissed by the Court in December 2020. The appellant immediately brought a motion asking the Court to withdraw its reasons, set aside its judgment, allow the appellant to amend his pleading, and that the motion be placed before a different panel. The Court followed usual practice and the motion was placed before the same panel. The panel held that it would hear the motion.

issues:

(1) Should the Court grant the appellant’s motion to withdraw its reasons and set aside the judgment?

holding:

Motion dismissed.

reasoning:

(1) No.

The Court found that while Rule 61.16(6.1) of the Rules of Civil Procedure provides that the Court can set aside a prior decision, the circumstances in which it would be appropriate to do so are rare. However, none of the circumstances that could justify a reconsideration of a decided appeal arose in this case. The appellant simply sought to argue before a different panel that the summary judgment motion judge was wrong and that the panel was wrong when it upheld the summary judgment motion judge’s ruling.

Under Rule 2.1.02 of the Rules of Civil Procedure, a court is allowed to dismiss a motion if the motion appears on its own face to be frivolous or vexatious or otherwise an abuse of process. The Court held that it was not enough to conclude that the appellant’s motion had no merit. A motion that has no chance of success is not necessarily frivolous, vexatious, or otherwise an abuse of process. However, the Court found that the appellant’s motion was not only without merit; it was part of a pattern of conduct by which the appellant repeatedly challenged the correctness of a decision made by the Court by way of meritless motions brought to the Court after the appeal had been decided. Thus, the Court found that the appellant’s behaviour was an abuse of process. The Court made an order prohibiting the appellant from filing any further motions in respect of the appeal without first obtaining leave of a judge of the Court.


Hevey v. Hevey, 2021 ONCA 740

[Feldman, Harvison Young and Thorburn JJ.A.]

Counsel:

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

B.R.G. Smith and S. Conlin, for the respondent

Keywords: Family Law, Equalization, Spousal Support, Civil Procedure, Summary Judgment, Answers, Disclosure, Family Law Act, R.S.O. 1990, c. F.3, ss. 2(8), 7(3), Family Law Rules, O. Reg. 114/99, r. 16, Ramdial v. Davis, 2015 ONCA 726, Hryniak v. Mauldin, 2014 SCC 7, Housen v. Nikolaisen, 2002 SCC 33, Frick v. Frick, 2016 ONCA 799, Roberts v. Roberts, 2015 ONCA 450, Colucci v. Colucci, 2021 SCC 24, Vivier v. Vivier, 5 R.F.L. (3d) 450 (Ont. Dist. Ct.), Scherer v. Scherer (2002), 59 O.R. (3d) 393 (Ont. C.A.), Werth v. Werth, 2004 ONCJ 43, Hart v. Hart (1990), 27 R.F.L. (3d) 419 (Ont. U.F.C.), Douthwaite v. Douthwaite (1997), 32 R.F.L. (4th) 90 (Ont. Gen. Div.)

facts:

The appellant, L.H., appeals from an order granting summary judgment to the respondent, C.H., dismissing L.H.’s application for equalization and other relief. At the time of L.H.’s application, the parties had been divorced for more than 10 years. The dispute arose out of a complex financial arrangement.

The appellant claimed in her application to have recently discovered that the respondent had misrepresented material facts and failed to make significant disclosure at the time of the divorce application. At the time, the parties did not pursue equalization or spousal support. In his summary judgment motion, the respondent relied heavily on his submission that the parties had agreed not to pursue either. He also argued that the appellant’s claim for equalization was barred by s. 7(3) of the Family Law Act.

The motion judge granted summary judgment against the appellant, dismissing her application. He found that the parties had agreed to proceed without the filing of an answer. The motion judge stated that an answer would have done little to enhance the respondent’s position and that the record was sufficient to deal with the merits of the motion. The motion judge also noted that the appellant’s claim for equalization was statute-barred under s. 7(3) of the FLA. To revisit the issue of equalization, the appellant needed to satisfy the conditions under s. 2(8) of the FLA, which permits the court to extend a time prescribed by the FLA if it is satisfied that there are apparent grounds for relief, relief is available because of delay that has been incurred in good faith, and no person will suffer substantial prejudice by reason of the delay. Lastly, the motion judge addressed the issue of spousal support. The parties made only limited submissions on spousal support and, in any case, those issues had been settled over 10 years earlier and there was no evidence of fraud. The motion judge concluded that there was no genuine issue requiring a trial.

issues:

(1) Whether the motion judge erred by allowing the respondent’s motion for summary judgment when the respondent had not served an answer as required by Rule 16 of the Family Law Rules.

(2) Whether the motion judge erred by misinterpreting and misapplying s. 2(8) of the FLA.

holding:

Appeal allowed.

reasoning:

(1) Yes.

Given the language of Rule 16 of the Family Law Rules and the importance of disclosure in family law, and in light of the opacity of the respondent’s financial arrangements, the motion judge made a palpable and overriding error in concluding that an answer was not required before proceeding with the summary judgment motion.

An answer was needed here as required by the Family Law Rules. In the absence of an answer and sworn financial statement, the appellant was at a significant disadvantage in the course of this summary judgment motion where she was required to put her best foot forward. It is up to the party with the assets to make the disclosure and the valuation of assets. According to the Ontario family law regime, financial disclosure is a paramount consideration. That also applies to a summary judgment motion. Moreover, it is not up to the claimant to “ferret out” information about income and assets from the other party.

(2) Yes.

First, the motion judge erred in his interpretation of s. 2(8)(b), which refers to the delay “incurred in good faith”. This clearly refers to the delay occasioned by the party claiming the extension. However, the motion judge appeared to have focused on whether the appellant had established “fraud” on the part of the respondent. The motion judge’s articulation held the appellant up to a higher standard for revisiting the limitation period than s. 2(8) sets out. Specifically, while s. 2(8) only requires apparent grounds for relief, unavailability of relief because of delay that has been incurred in good faith, and no substantial prejudice, the motion judge’s statement suggested that he was holding the appellant to a standard of “established fraud” before revisiting the limitation period question. There was no authority to support that interpretation, and it was not consistent with the clear wording of the provision.

Second, the motion judge fell into palpable and overriding error in inferring that the appellant knew or ought to have known all information about the trusts and the corporations. The appellant’s evidence explaining the delay was that she began her claim after receiving information in 2019 indicating that the respondent had been in a much stronger financial position in the period leading up to the application for divorce than he had led her to believe. If true, this explained her delay. The appellant was not in a position to “put her best foot forward” on the summary judgment motion because the respondent had not filed an answer and financial statement.

Finally, this was not simply a claim for equalization, but also a claim for spousal support, which was not subject to the same limitation period. There was no discussion of this point. It may well be that the appellant’s claim for spousal support would not be strong. That said, the circumstances of disclosure in December 2008, and the question as to whether the respondent did mislead the appellant were material issues that would be very relevant to whether the appellant could have been entitled to spousal support. Those issues could not be determined on the summary judgment motion.


Weslease 2018 Operating LP v. Eastgate Pharmaceuticals Inc.,2021 ONCA 743

[Feldman, Pepall, and Tulloch JJ.A.]

Counsel:

Y. Lipetz, for the appellants, Proactive Supply Chain Solutions Inc., SM, CP, and GS

D. Winer, for the respondent

Keywords: Contracts, Debtor-Creditor, Settlement Agreements, Civil Procedure, Summary Judgment

facts:

The respondent leased laboratory equipment to the appellants pursuant to a lease and general security agreement. The appellants defaulted in payment. The respondent commenced proceedings and successfully obtained an order to recover five of seven pieces of equipment. The respondent agreed to sell all seven pieces of equipment to a third-party purchaser. The sale was conditional on the respondent’s ability to deliver the remaining two pieces in the appellants’ possession.

The respondent brought a motion for summary judgment for damages against the appellants and an order for delivery of the two remaining pieces of equipment. The appellants argued that they had entered into a settlement agreement with the respondent which required a dismissal of the respondent’s motion. The motion judge concluded that the parties had not entered into a settlement agreement and granted the respondent’s requested relief. The appellants appealed.

issues:

(1) Did the motion judge make a palpable and overriding error in determining that the parties never entered into a settlement agreement?

(2) Did issues of credibility amount to genuine issues requiring a trial?

(3) Did the motion judge fail to adequately assess damages?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court found that neither the written nor oral evidence before the motion judge supported the finding of a settlement agreement. Thus, the motion judge correctly dismissed the appellants’ arguments in that regard.

(2) No.

The Court found that the appellants failed to identify any issues in the evidentiary record before the motion judge that engaged relevant competing issues of credibility.

(3) No.

The Court failed to see any merit in the appellants’ argument. The appellants failed to proffer any evidence of value that would dictate a different result than that reached by the motion judge.


Scaffidi-Argentina v. Tega Homes Developments, 2021 ONCA 738

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

R. Emblem and W. Plante-Bischoff, for the appellant

E. K. Ackman and S. D. McGarry, for the respondents

Keywords: Contracts, Insurance, Interpretation, Additional Insured, Waiver of Subrogation, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Scaffidi-Argentina v. Tega Homes Developments Inc. et al., 2021 ONSC 3223

facts:

The respondents served as an engineering consultant and subcontractor on a construction project in the City of Ottawa. The appellant was the owner and developer of the project and was insured under a wrap-up liability policy which contained a waiver of subrogation clause. The respondents were insured under the appellant’s policy as an “additional insured”, but the policy expressly excluded coverage for professional liability.

Both parties were sued by adjacent property owners. In response to the claim, the appellant filed a statement of defence and crossclaim. The crossclaim against the respondents sought contribution and indemnity in respect of any amounts it might be found liable to pay to the plaintiffs. The respondents then brought a summary judgment motion requesting that the crossclaim be dismissed on the basis that they were insured under the appellant’s policy and the crossclaim was prohibited by the waiver of subrogation clause in the policy.

The motion judge granted the motion and dismissed the appellant’s crossclaim. He concluded that the respondents were “additional insured” under the policy and were entitled to the waiver of subrogation provided for in the policy.

issues:

(1) Does the appellant’s insurance policy bar it from asserting a subrogated claim for indemnity against the respondents?

(2) Did the motion judge err in assuming the crossclaim was a subrogated claim?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The court held the respondents were within the definition of additional insureds under the policy and although the policy specifically excluded coverage for professional liability, the appellant contracted out of any right of subrogation against all insureds (including additional insureds) under the policy.

The court agreed with the motion judge’s conclusion that it was not his function to restructure the commercial contractual arrangement agreed upon by the sophisticated parties to achieve what might be considered a fairer result.

When read as a whole, the language of the policy was unambiguous, and the motion judge was required to give effect to the clear language.

(2) No.

The appellant’s insurer made payment to the plaintiffs after damages were assessed at the damages trial and in exchange for a full and final release. The release explicitly referred to the damage amount being consideration for the settlement of the issue of liability advanced by the plaintiffs. The court held it was self-evident that any recovery on the crossclaim would have been paid to the appellant’s insurer to cover the settlement amount. The act of seeking indemnity from a third party such as the respondents for payments is, by definition, subrogation.

Further, although the appellant alleged the crossclaim was not a subrogated claim because no payment had been made to State Farm, the court rejected that argument. Specifically, the court held that the appellant was the only defendant remaining in the action, and accordingly, the only party State Farm could obtain judgment against. Therefore, although a payment to State Farm had not yet been made, it did not change the nature of the claim being made by the appellant against the respondents.

Accordingly, the court concluded the motion judge was correct to consider the appellant’s crossclaim a subrogated claim.


SHORT CIVIL DECISIONS

M.L. v. B.T. , 2021 ONCA 734

[Paciocco J.A]

Counsel:

J. Gagné, of the applicants (appellants), M.L. and D.L.

E. R. Van Voort, for the respondent, D.C.

K. Hensel, for the respondent, Dilico Anishinabek Family Care

Keywords: Family Law, Costs

Narwhal International Limited v. Teda International Realty Inc.,2021 ONCA 741

[Strathy C.J.O., Pepall and Pardu JJ.A.]

Counsel:

G. T, acting as agent for the appellant, with leave of the Court

S. Tassopoulos, for the respondent

Keywords: Costs

Nelson v. TELUS Communications Inc. , 2021 ONCA 751

[Strathy C.J.O., Nordheimer J.A. and Wilton-Seigel J. (ad hoc)]

Counsel:

C. Beagan Flood, C. DiMatteo, and N. Cammarasana, for the appellant

D. Lennox, C. Hannouche, and A. Cleland, for the respondent

Keywords: Constitutional Law, Paramountcy, Interjurisdictional Immunity, Civil Procedure, Class Proceedings, Intervenors, Costs, Wireless Services Agreement Act, 2013, S.O. 2013, c. 8, s. 16

Pinder v. Biggar , 2021 ONCA 750

[Benotto, Brown and Harvison Young JJ.A.]

Counsel:

H. Borlack, S. Barbier, and B. Tustain, for the moving parties

D. Spiller, for the responding party, Mr. B

J. Davies, for the responding party, Hospodar Davies & Goold*

*J. Davies appeared but made no written or oral submissions on behalf of the responding party Hospodar Davies & Goold

Keywords: Civil Procedure, Substantial Indemnity Costs, Delay


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.