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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of November 8, 2021.

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In Saint Marthe v. O’Connor, an MVA case, the Court provided a helpful summary of the law of experts, specifically non-party expert opinions.

Other topics covered this week included oppression, debtor-creditor, real property, interpretation of contracts and unjust enrichment.

For our readers who are not yet aware of 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.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Thoba v. Srajeldin, 2021 ONCA 789

Keywords: Contracts, Intention to Create Binding Legal Relations, Civil Procedure, Settlements, Enforcement

St. Marthe v. O’Connor, 2021 ONCA 790

Keywords: Torts, Negligence, MVA, Civil Procedure, Evidence, Notice, Admissibility, Opinion Evidence, Non-Party Experts, Limitations Act, 2002 S.O. 2002, c. 24, Sched. B., s. 4, Rules of Civil Procedure, Rule 53.03, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Westerhof v. Gee Estate, 2015 ONCA 206, leave to appeal refused, 36445 (October 29, 2015) and 36451 (October 29, 2015), Bruff-Murphy v. Gunawardena, 2017 ONCA 502, Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888, Hoang v. Vicentini, 2016 ONCA 723, R. v. Mohan, [1994] 2 S.C.R. 9, Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, Brady v. Lamb (2005), 78 O.R. (3d) 680 (C.A.), Cowles v. Balac, leave to appeal refused, [2006] S.C.C.A. No. 496, Kostopoulos v. Jesshope (1985), 50 O.R. (2d) 54 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 93., Ault v. Canada (Attorney General) (2007), 50 C.P.C. (6th) 316 (Ont. S.C.)

Maloney v. Goodman, 2021 ONCA 792

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Settlements, Limitation Periods, Farm Debt Mediation Act, S.C. 1997, c. 21, s. 19, Mortgages Act, R.S.O. 1990, c. M.40, s. 27

Giancola v. Dobrydney, 2021 ONCA 793

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Patent Defects, Defences, Caveat Emptor, Civil Procedure, Evidence, Hearsay, Summary Judgment, Costs

DeLuca v. Grillone, 2021 ONCA 798

Keywords: Contracts, Interpretation, Civil Procedure, Settlements, Enforcement, Fresh Evidence

Samson c. Terjanian-Baro, 2021 ONCA 808

Keywords: Civil Procedure, Appeals, Dismissal for Delay, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 7(5) and 21(5), Rules of Civil Procedure, Rule 61.16 (6), Sickinger v. Sickinger, 2017 ONCA 760

Lockhart v. Lockhart, 2021 ONCA 807

Keywords: Wills and Estates, Equalization of Net Family Property, Election, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F.3, s. 6(1)

Short Civil Decisions

Elite Construction Inc. v. Canada (Attorney General), 2021 ONCA 803

Keywords: Contracts, Construction, Quantum Meruit, Unjust Enrichment, Civil Procedure, Summary Judgment, Costs, Hryniak v. Mauldin, 2014 SCC 7


CIVIL DECISIONS

Thoba v. Srajeldin, 2021 ONCA 789

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

P. Baxi, for the appellants
R. Hine, for the respondents

Keywords: Contracts, Intention to Create Binding Legal Relations, Civil Procedure, Settlements, Enforcement

facts:

In December 2019, the respondents brought an action for declaratory relief and oppression against the appellants. On January 16, 2020, appellants’ counsel confirmed with respondents’ counsel that the appellants had agreed to a settlement. After further negotiations, on February 2, 2020, the parties’ accountant confirmed to all counsel that a deal had been reached by the personal respondent and the personal appellant and his lawyers. The following day, respondents’ counsel confirmed the details. Minutes of settlement were finalized. However, prior to the exchange of the signed minutes of settlement, the personal appellant advised through counsel that his financing had fallen through.

On a motion to enforce the settlement, the motion judge held that the parties had agreed upon the essential terms of a settlement as of February 2/3, 2020 and that there was nothing in the record to indicate that minutes of settlement were required for the deal to be legally binding. She rejected the appellant’s claim that he did not intend to create a legally binding agreement in the absence of minutes of settlement.

issues:

(1) Did the motion judge make a palpable and overriding error in finding the settlement was binding despite the fact that executed minutes of settlement were not exchanged?

(2) Did the motion judge make a palpable and overriding error in finding that the parties had an intention to create a binding agreement in the face of the personal appellant’s evidence that counsel informed him the settlement would not be binding absent the exchange of minutes of settlement?

(3) If a settlement is found to exist, did the motion judge err in failing to exercise her discretion to decline to enforce the settlement?

holding:

Appeal dismissed.

reasoning:

(1) & (2) No

The Court found that it was open to the motion judge on the record before her to conclude that the communications between the parties’ representatives objectively reflected an enforceable agreement. The fact that the personal appellant may have subsequently instructed his counsel not to release his signed minutes of settlement to the respondents or received advice that the settlement was not binding in the absence of minutes of settlement did not undermine this finding. The motion judge’s findings were premised on the communications between the parties’ authorized representatives.

(3) No

The motion judge found that the agreement reached was not conditional on financing, that the personal appellant had agreed to the original terms, and that his evidence that he did not intend to create a legally binding agreement was an after-the-fact construct. These findings were open to her on the record.


St. Marthe v. O’Connor, 2021 ONCA 790

[Rouleau, Hoy and Thorburn JJ.A.]

Counsel:

A. L. Rachlin and J. Pedro, for the appellant
J. L. Vigmond, B. M. Cameron and L. J. Brown, for the respondent

Keywords: Torts, Negligence, MVA, Civil Procedure, Evidence, Notice, Admissibility, Opinion Evidence, Non-Party Experts, Limitations Act, 2002 S.O. 2002, c. 24, Sched. B., s. 4, Rules of Civil Procedure, Rule 53.03, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Westerhof v. Gee Estate, 2015 ONCA 206, leave to appeal refused, 36445 (October 29, 2015) and 36451 (October 29, 2015), Bruff-Murphy v. Gunawardena, 2017 ONCA 502, Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888, Hoang v. Vicentini, 2016 ONCA 723, R. v. Mohan, [1994] 2 S.C.R. 9, Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, Brady v. Lamb (2005), 78 O.R. (3d) 680 (C.A.), Cowles v. Balac, leave to appeal refused, [2006] S.C.C.A. No. 496, Kostopoulos v. Jesshope (1985), 50 O.R. (2d) 54 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 93., Ault v. Canada (Attorney General) (2007), 50 C.P.C. (6th) 316 (Ont. S.C.)

facts:

The action arose from a motor vehicle accident that occurred in 2011. The respondent’s bicycle was hit by the appellant’s motor vehicle. The respondent claimed that he suffered soft tissue injuries that rendered him incapable of continuing to work in the construction industry. In 2014, Dr. M, an orthopaedic surgeon, assessed the respondent at the request of his accident benefits insurer. Dr. M was also called by the respondent as a non-party expert and his report was included in the joint document brief at trial.

The appellant appealed the order of the trial judge who discharged the jury and rendered judgment in favour of the respondent. The trial judge also determined that the cross-examination of Dr. M was improper and the opinion evidence from Dr. M was inadmissible. The appellant sought an order that the judgment be set aside and that a new trial be ordered.

issues:

(1) Whether the trial judge erred in ruling that counsel for the appellant improperly elicited inadmissible opinion evidence from Dr. M. on cross-examination with respect to the respondent’s ability to work?

(2) Whether the trial judge erred in discharging the jury?

holding:

Appeal dismissed.

reasoning:

(1) No.

In civil proceedings, experts retained by a party to testify in a proceeding must prepare an expert report to be shared with all parties prior to trial. This is provided for in Rule 53.03 of the Rules of Civil Procedure. These experts are referred to as “litigation experts”. The expert report includes an outline of the litigation expert’s opinion and anticipated testimony. This sets limits on the expert testimony that may be given and ensures that all parties have proper notice of the roadmap for the opinion evidence to be provided. The report also includes an acknowledgment of the expert’s duty.

Litigation experts are distinguished from participant or non-party experts, who are defined as “a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation”. Non-party experts are subject to different rules than litigation experts.

Non-party medical experts who have special skill, knowledge, training, or experience, may give opinion evidence for the truth of its contents provided the opinion is given as part of the exercise of their skill and knowledge while observing or participating in the events at issue, the opinion is not a “complex vocational opinion requiring highly specialized expertise”, and it was disclosed to the opposing party.

Non-party expert opinions are usually contained in clinical notes and records, or reports prepared for the purpose of consultation and treatment. A non-party expert need not provide a Rule 53.03 expert report, where the opinion is based on the witness’s observation of or participation in the events at issue and the opinion was formed as part of the exercise of skill, knowledge, training, and experience while observing or participating in the events. One reason the requirement to provide a Rule 53.03 expert report does not generally apply to non-party experts, is that disclosure problems do not exist in relation to the opinions of non-party experts requiring that they comply with Rule 53.03. Non-party experts typically prepare documents summarizing their opinions contemporaneously with their involvement in the events. These summaries, or the expert’s notes and records, can be obtained through the discovery process.

Where the opinion evidence extends beyond the witness’s observation of or participation in the events and the opinion was not formed while observing the events, the expert must comply with the requirements in Rule 53.03 with respect to the portion of the opinion that exceeds these limits. Rule 53.03 provides that experts must include the instructions given, a summary of the opinion, and the reasons for the opinion, among other requirements.

Problems arise where disclosure of an opinion of a non-party expert is given only on the eve of or during the trial. It is not an error for a trial judge to prevent a non-party expert from giving opinion evidence that goes beyond the expert’s observations and comments in the original report if the opinion was not disclosed well in advance of trial.

The prejudicial effect of Dr. M’s evidence on the respondent’s employability and disability exceeded its probative value, and it did not meet the White Burgess test for admissibility.

Specifically, in the cross-examination of Dr. M at trial by the appellant’s counsel, Dr. M. gave opinion evidence for the first time that the respondent’s muscle spasm condition was not enough to prevent him from working and was not disabling. Dr. M’s opinion about the respondent’s ability to return to work was not probative, as it was not based on a current assessment of the respondent’s accident-related impairments. Dr. M had not seen the respondent for four years or reviewed his medical records.

On the other hand, his opinion was very prejudicial, as it addressed the central issue at trial of the respondent’s past and future income loss, which was contingent on the jury’s assessment of his ability to work and disability and went beyond the scope of his assessment in 2014.

(2) No.

The right to a jury trial is a substantive right. Discharging a jury is a “drastic remedy. However, a trial judge’s decision to discharge a jury is a discretionary decision that will not be interfered with on appeal unless it “was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law”.

The trial judge concluded that Dr. M’s opinion evidence could have a “serious adverse impact” on the case. He held that, “Dr. M’s evidence was simply too impactful for the jury to disregard it and it would inevitably influence their assessment of the other expert testimony in this case” and that justice to the parties would be best served by discharging the jury and continuing the trial before him alone. The trial judge was in the best position to assess the potential effect of Dr. M’s testimony on members of the jury in respect of the respondent’s claim for past and future income loss. Policy concerns about the importance of giving notice of evidence to be called and the avoidance of trial by ambush, articulated in Ault v. Canada (Attorney General) (2007), were also present in this case. There was therefore no basis to interfere with the trial judge’s discretionary decision to discharge the jury.


Maloney v. Goodman, 2021 ONCA 792

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

D. Singer and N. Condotta, for the appellants
T. Storms and K. Malcolm, for the respondents

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Settlements, Limitation Periods, Farm Debt Mediation Act, S.C. 1997, c. 21, s. 19, Mortgages Act, R.S.O. 1990, c. M.40, s. 27

facts:

This appeal arose out of the respondents’ application to discharge several mortgages registered against two farm properties they own.

A mediation took place on September 15, 2008, and resulted in an arrangement under s. 19 of the Farm Debt Mediation Act where the parties agreed on the amounts owing under each of the mortgages (the “FDMA Agreement”).

Because of poor record keeping and the confusing state of the record, the application judge was unable to resolve the question of whether the mortgages had been fully repaid. However, he made four findings in an effort to assist the parties in resolving that question. The appellant appealed the application judge’s second and fourth findings.

issues:

(1) Did the application judge err in holding that an action on the Promissory Note was statute barred?

(2) Did the application judge err in holding that the respondents were “entitled to infer that any claim for reimbursement of legal expenses was extinguished by the September 2008 FDMA Agreement”?

holding:

Appeal dismissed.

reasoning:

(1) No.

In rejecting the appellant’s argument, the Court made a number of observations. First, it noted the application judge made it clear that he was not convinced the Promissory Note was a genuine obligation.

Second, it was unclear how any amount that may ever have been owing on the Promissory Note could be added to the balance owing on the mortgages on the farm properties for which the respondents sought a discharge.

Third, and most importantly, the Court noted the Promissory Note stipulated it was due and payable on March 1, 2010. Accordingly, the two-year limitation period for suing on the Promissory Note ran from its maturity date, March 1, 2010. The Court held the appellant was not entitled to rely on his, or his father’s, purported mistake in applying the proceeds of sale from one of their properties to resurrect a claim that became statute barred in 2012.

(2) No.

In the Court’s view, the application judge’s finding was open to him on the record and was reasonable.

The legal expenses in question were from December 31, 2008, for work done prior to the mediation. The application judge found that the first communication to the respondents about this claim was a letter dated May 28, 2015, which the appellant sent on behalf of his father. The fact that the formal account predated the mediation did not mean the fees were not taken into consideration at the mediation in calculating the balance owing on the various mortgages. Further, the Court held that had legal fees not been taken into account at the mediation, the respondents were entitled to receive notice of the claim much sooner than six-and-a-half years after the fact.

Giancola v. Dobrydney, 2021 ONCA 793

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

A. Bouchelev, for the appellants
C. Belsito, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Patent Defects, Defences, Caveat Emptor, Civil Procedure, Evidence, Hearsay, Summary Judgment, Costs

facts:

The appellant had agreed to purchase a house from the respondents. The day before the closing, the appellant raised an issue about a possible problem in the basement of the home. He asked for a reduction in the purchase price and a postponement of the closing date. While the respondents were open to a postponement of the closing date, they were not prepared to reduce the purchase price. The appellant then advised that he would not close the transaction.

According to the appellant, a few days before the closing date, he visited the property and noticed a problem in the basement. He claimed that he had not noticed the problem earlier because the area had been covered with a carpet. The appellant was concerned that there was a problem with the foundation of the home. He claimed that in response to questions he asked, the respondents told him that there had been a major flood some years earlier, that the foundation walls had cracked, and that repairs had been made. The appellant claimed that the respondents refused to provide any documentation regarding the repairs or tell him who had done the work. He also claimed that the respondents admitted that the work had been done without getting a building permit. The appellant argued that these repairs were significant and ought to have been disclosed by the respondent. On the other hand, the respondent argued that the problem was obvious to anyone who viewed the property.

Summary judgment was granted in favour of the respondents, ordering the appellant to pay to the respondents the sum of $306,130.54.

issues:

(1) Did the motion judge err in the analysis undertaken in determining that the repairs were not required to be disclosed?

holding:

Appeal dismissed.

reasoning:

The Court agreed with one of the several errors that the appellant raised on appeal. That is, the motion judge erred in relying on the hearsay evidence of a home inspection that was undertaken by the subsequent purchaser of the home. However, this error was not material to the motion judge’s conclusion and did not detract from the other aspects of his analysis, including his finding that the appellant could have made his offer to purchase conditional on a home inspection but chose not to do so.
The appellant failed to demonstrate any error that went to the core of the analysis undertaken by the motion judge in arriving at the conclusion that the issue was readily apparent to any potential purchaser and therefore subject to the principle of caveat emptor.

DeLuca v. Grillone, 2021 ONCA 798

[MacPherson, Simmons, Nordheimer JJ.A.]

Counsel:

S.G., in person and for the appellant 2390215 Ontario Inc.
R.L. Youd and A.J. Wygodny, for the respondents M.D. and Rhondaroo Holdings Ltd.
R. Schliemann, for The Bank of Nova Scotia

Keywords: Contracts, Interpretation, Civil Procedure, Settlements, Enforcement, Fresh Evidence

facts:

The appellants appealed from the decision of a motion judge enforcing the terms of settlement. The appellants submitted that the words “[s]ubject to any contrary direction by His Honour” sent in an e-mail from counsel for the respondents meant there would be no settlement if the court determined monies should not be paid directly to the 2390215 Ontario Inc.

issues:

(1) Whether the motion judge erred in holding that an e-mail from counsel for the respondents confirmed that the parties had settled the proceeding on terms that would allow the motion judge to direct certain share purchase monies to be paid into court.

(2) Whether the appellants application to introduce fresh evidence should be granted.

holding:

Appeal dismissed.

reasoning:

(1) No.

The motion judge held that the words “[s]ubject to any contrary direction by His Honour” meant it was open to him to direct that the purchase monies be paid into court for the benefit of S.G.’s creditors. The Court found that the motion judge’s interpretation was open to him based on the record before him.

(2) No

The proposed evidence did not meet the test for the introduction of fresh evidence. The Court found that the first piece of evidence related to something that occurred after the settlement was made and was irrelevant to the question of whether there was a settlement. The second piece of evidence related to a matter that was fully dealt with by the terms of settlement.

Samson c. Terjanian-Baro, 2021 ONCA 808

[Thorburn J.A]

Counsel:

B. Samson, for the appellant
F. Dickson, for the respondent

Keywords: Civil Procedure, Appeals, Dismissal for Delay, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 7(5) and 21(5), Rules of Civil Procedure, Rule 61.16 (6), Sickinger v. Sickinger, 2017 ONCA 760

facts:

The appellant requests an extension of time to appeal to three judges of the Ontario Court of Appeal from the motion judge’s decision dated October 4, 2021 under section 7(5) of the Courts of Justice Act. The motion judge dismissed the request to set aside an order of the clerk dated July 6, 2020 dismissing the appeal for costs and delay.

The subject-matter of the appeal is a fee dispute between lawyer and client.

issues:

(1) Is it procedurally fair to grant a motion to extend time?

holding:

Motion dismissed.

reasoning:

(1) No.

The appellant raised several reasons for the delay but the motion judge was not convinced that, taken together, the reasons justified the accumulation of these delays. The motion judge also stated she saw no error in the decision of the initial motion judge, and found that the justice of the case favoured the respondent.

Lockhart v. Lockhart, 2021 ONCA 807

[Fairburn A.C.J.O., Roberts J.A. and Van Melle J. (ad hoc)]

Counsel:

R. L., acting in person
M. Rendely and B. Gilmartin, for the respondent
J. Kaufman, for the Estate Trustee, CIBC Trust

Keywords: Wills and Estates, Equalization of Net Family Property, Election, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F.3, s. 6(1)

facts:

This case arose out of the administration of the estate of the deceased. The appellant and respondent are siblings and were appointed as attorneys for the property for their mother, the widow of the deceased, who was found incapable of managing her property. The appellant brought a motion alleging that: (1) his father had made a Will subsequent to his 1974 Will disinheriting his mother; and (2) it would be in the best interests of his mother, as sole beneficiary under the 1974 Will, to make an election under s. 6(1) of the Family Law Act. The application judge ultimately dismissed the appellants’ motion

issues:

(1) Did the application judge err in her treatment of the evidence, her failure to provide reasons, and her refusal to entertain the appellant’s alternative relief?
(2) Should the appellant be granted leave to appeal the costs award made against him in favour of the respondent?

holding:

Appeal dismissed.

reasoning:

(1) No.

The appellant’s arguments stemmed from his disagreement with the application judge’s findings of fact. The Court held the application judge’s findings of fact were firmly grounded in the record and were open to her to make. The Court saw no error in the application judge’s “careful and thorough” reasons and decisions, and accordingly, rejected the appellant’s arguments.

The Court also saw no merit in the appellant’s allegations of bias against the application judge, which they called “groundless”.

(2) No.

The court found no error in the application judge’s costs order that would displace the high deference owed to her exercise of discretion. Accordingly, there was no basis to grant leave.


SHORT CIVIL DECISIONS

Elite Construction Inc. v. Canada (Attorney General), 2021 ONCA 803

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

J. V. Sestito, for the appellant
W. Wright, for the appellant

Keywords: Contracts, Construction, Quantum Meruit, Unjust Enrichment, Civil Procedure, Summary Judgment, Costs, Hryniak v. Mauldin, 2014 SCC 7


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.