Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good evening

Following are this week’s summaries of the Court of Appeal for Ontario for the week of December 20, 2021.

Continue Reading

In Foxgate Development Inc. v. Jane Doe, the Court considered the requirements of fairness where a court’s own motion has resulted in an order striking the pleadings of a self-represented litigant in a dispute between a land developer and First Nations. The Court found that the motion judge had erred in conflating his finding on contempt with abuse of process, and denied the appellant a fair opportunity to be heard before making an order striking his pleadings ordering significant costs against him.

In Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, the Court determined that the motion judge erred in law by finding that the plaintiff had waived automatic renewal provision of the subject Consulting Agreement.

In Hemlow Estate v. Co-operators General Insurance Company, the Court upheld the application judge’s determination that the insurer had a duty to defend an estate as a result of the alleged negligence of the deceased, and that the pollution exclusion did not negate the duty to defend.

Wishing our readers all the best for the holiday season and a very Merry Christmas to all celebrating!

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907

Keywords: Contracts, Dependent Contractors, Waiver, Civil Procedure, Limitation Periods, Summary Judgment, Limitations Act2002, S.O. 2002, s. 4, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Colautti Construction Ltd. v. City of Ottawa (1984), 46 O.R. (2d) 236 (C.A.), Shelanu Inc. v. Print Three Franchising Corp. (2003), 64 O.R. (3d) 533 (C.A.)

Hemlow Estate v. Co-operator General Insurance Company, 2021 ONCA 908

Keywords: Contracts, Interpretation, Insurance, Commercial General Liability, Coverage, Duty to defend, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, ING Insurance Co. of Canada v. Miracle, 2011 ONCA 321, Prudential Life Insurance Co. v. Manitoba Public Insurance Corp. (1976), 67 D.L.R. (3d) 521 (Man. C.A.), Zurich Insurance Co. v. 686234 Ontario Ltd. (2002), 62 O.R. (3d) 447 (C.A.), O’Byrne v. Farmers’ Mutual Insurance Company (Lindsay), 2014 ONCA 543

Sicotte v. 2399153 Ontario Ltd., 2021 ONCA 912

Keywords: Contracts, Interpretation, Real Property, Mortgages, Guarantees, Priority Agreements, Postponements, Civil Procedure, Summary Judgment, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, leave to appeal to S.C.C. refused, 36974 (March 2, 2017), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Bhasin v. Hrynew, 2014 SCC 71, Schuler A.G. v. Wickman Machine Tool Sales Ltd., [1974] A.C. 235 (H.L.)

Foxgate Development Inc. v. Jane Doe, 2021 ONCA 910

Keywords: Civil Procedure, Procedural and Natural Justice, Contempt, Sanctions, Abuse of Process, Striking Pleadings, Self-Represented Litigants, Amicus Curiae, Costs, Aboriginal Law, Courts of Justice Act, United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, leave to appeal refused, [2008] S.C.C.A. No. 506., Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, Chiang (Trustee of) v. Chiang (2009), 2009 ONCA 3, Dare Foods (Biscuit Divisions) Ltd. v. Gill, [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.), Toronto Transit Commission v. Ryan (1998), 37 O.R. (3d) 266, [1998] O.J. No. 51 (Gen. Div.), Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686, [2006] O.J. No. 2488 (C.A.), Carey v. Laiken, 2015 SCC 17,  Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 82 O.R. (3d) 721 (C.A.), Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, Morwald-Benevides v. Benevides, 2019 ONCA 1023

York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914

Keywords: Real Property, Condominiums, Compliance Orders, Condominium Act, 1998, S.O. 1998, c. 19, ss. 92(4), 93(3), 117, 134, 134(3)(b), and 134(5), Hawkins v. TSCC 1696, 2019 ONSC 2560, TSCC 1724 v. Evdassin, 2020 ONSC 1520

Overtveld v. Overtveld, 2021 ONCA 930

Keywords: Civil Procedure, Appeals, Extension of Time, Vexatious Litigants, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Beard Winter LLP v. Shekhdar, 2016 ONCA 493

Short Civil Decisions

Froom v. LaFontaine, 2021 ONCA 917

Keywords: Family Law, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b), Mantella v. Mantella, 2009 CarswellOnt 1060, Ashak v. Ontario (Director, Family Responsibility Office), 2013 ONCA 375

W.S. v. P.I.A., 2021 ONCA 923

Keywords: Family Law, Custody and Access, Divorce Act, R.S.C. 1985, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764

SS & C Technologies Canada Corp v. The Bank of New York Mellon Corporation, 2021 ONCA 913

Keywords: Civil Procedure, Appeals, Expediting Appeals, Trials, Bifurcation, Machado v. Ontario Hockey Association, 2019 ONCA 210, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

McLean v. Wolfson, 2021 ONCA 928

Keywords: Torts, Negligence, MedMal, Civil Procedure, Documentary Discovery, Orders, Enforcement, Dismissal of Action, Adjournments, Appeals, Fresh Evidence, Rules of Civil Procedure, Rules 30.04(2), 30.08 and 60.12


CIVIL DECISIONS

Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 90

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

Counsel:

P. Virc and M. Title, for the appellant

K. Prehogan and M. Skrow, for the respondent

Keywords: Contracts, Dependent Contractors, Waiver, Civil Procedure, Limitation Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, s. 4, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Colautti Construction Ltd. v. City of Ottawa (1984), 46 O.R. (2d) 236 (C.A.), Shelanu Inc. v. Print Three Franchising Corp. (2003), 64 O.R. (3d) 533 (C.A.)

facts:

J. G Consulting Ltd. (“JGC”) brought a claim for breach of contract against Recipe Unlimited Corporation, formerly known as Cara Operations Limited (“Cara”). JGC claimed that the respondent, Cara breached its signed and executed consulting agreement of March 10, 2006 (“the Agreement”). JGC claimed damages, including damages for lost stock options, and common law reasonable notice on the basis that JGC was a dependent contractor.
The motion judge dismissed the action by way of summary judgment.

Relevant Terms of the Agreement:

The Agreement stipulated that JGC was an independent contractor who would be paid an annual consulting fee of $420,000 to provide IT consulting services and an additional $250 per hour for each additional hour that services were required in excess of 180 hours. The Agreement also provided that if Cara became a public corporation with shares listed on a public stock exchange and offered an employee equity incentive plan, JGC would have the opportunity to participate in the plan on the same terms and conditions offered to its other senior management level employees. The Agreement contained an automatic renewal of the three-year term “unless terminated prior to the expiration date in accordance with this Agreement”.

Arrangement Between the Parties After August 2008:

On August 29, 2008 (12 days before the deadline to give notice that the Agreement would not be renewed), S.S, then-Chief Financial Officer of Cara, met with J.G. According to S.S, the purpose of the meeting was “to discuss the existing agreement and next steps with respect to that agreement” because “if Cara wanted to change the contract, it had to be done prior to six months otherwise it was an automatic renewal clause.”

Following the meeting, J.G sent an email to S.S advising him that, “it was a pleasure meeting with you today. I look forward to working with you and know the future is exciting. Let this email serve to remove the auto renewal from my contract. I look forward to our discussions, in early 2009, after the new HQ moves and Data Centre builds quiet down”.

S.S responded to the aforementioned email stating, “I too look forward to discussing with you the terms of our new arrangement that will take effect after your current agreement with Cara comes to an end in March 2009.

In early 2009, the parties met to discuss the terms of a new arrangement. S.S sent an email to J.G on January 26, 2009 saying that the “current agreement between [J.G] and Cara expires as scheduled March, 2009” and summarizing terms for a new agreement. S.S asked J.G to advise if there was anything that he missed and recorded that J.G. had “no additional comments to add.” No new agreement was signed.

Throughout the eight-year relationship, J.G submitted his invoices with the words: “As per Agreement dated March-10-2006”.

issues:

(1) Did the motion judge err in law by finding that J.G had waived the auto renewal provision of the consulting agreement?

(2) What terms governed the parties’ relationship after J.G sent an email purporting to remove the auto renewal provision in the Agreement?

(3) Was J.G a dependent contractor?

(4) Was the reasonable notice claim statute-barred?

(5) Did JGC plead a breach of the duty of good faith?

(6) Did the motion judge improperly shift the burden of proof to the responding party?

holding:

Appeal allowed.

reasoning:

(1) Yes.

One party to an agreement may choose to forego reliance on a contractual right but only where the party making the choice has full knowledge of the right and makes an unequivocal and conscious decision to forego that right with full understanding of the consequences. The court must apply a stringent test before finding unilateral waiver of a contractual right because “no consideration moves from the party in whose favour a waiver operates. An overly broad interpretation of waiver would undermine the requirement of contractual consideration.”
There is no question that after the parties met on August 29, 2008 (12 days before the deadline to give notice that the Agreement would not be renewed), J.G sent an email to J.Sh stating, “Let this email serve to remove the auto renewal from my contract” and indicating that he was looking forward to discussions with Cara.

The motion judge erred in law by concluding that J.G unilaterally waived the auto renewal provision of the agreement for no consideration. It was not clear from the record that J.G had full knowledge of his rights or an unequivocal and conscious intention to abandon those rights. Further, it is clear from the record, in particular the email exchange as well as the internal email quoted in para. 16, that in his discussion with S.S, J.G was asked to remove the provision as a favour to Cara, and in exchange, they would negotiate the terms of a new agreement to govern their future relationship. This was not a waiver for no consideration in accordance with the doctrine in Saskatchewan River Bungalows.

(2)
While the parties continued their relationship, they did not come to an agreement on what governed that relationship.

The following factors suggested that the terms of the Agreement were unclear until services were terminated:

1) Cara’s representative, S.S testified that the termination date of the Agreement and establishment of a new agreement were intertwined;
2) He also said that whether the Agreement was terminated is a “grey area” and that another Cara representative did not want anything changed in J.G’s contract at any time;
3) J. S testified that it was “totally uncertain” whether the arrangement going forward was a continuation of the Agreement or a new contract, and that another Cara representative, D.R, “left it that way”;
4) S.R wrote that J.G “actually does [have a contract] but he does not enforce it as he is too much of a gentleman”;
5) The recitals in the draft agreements in 2010 and 2012 refer to the Agreement and seem to indicate that the Agreement had not been terminated;
6) The invoices sent by JGC throughout the course of their relationship all read: “As per the Agreement dated March-10-2006” and the amounts billed to and paid by Cara throughout the course of their relationship were as set out in the Agreement;
7) Cara discussed reducing the remuneration from $35,000 per month to approximately $10,000 per month but the amounts paid were never reduced and JGC continued to invoice and be paid $35,000 per month until termination in 2014;
8) No new agreement was ever executed.
Moreover, there was testimony that was not adduced on the motion by either party that may assist the trier of fact to understand the contractual terms between the parties. This included:

1) S.R’s explanation of his statement that J.G had a contract but chose not to enforce it, and

2) D.R’s awareness that there was uncertainty as to whether the Agreement continued to govern the relationship but chose to leave it that way.
(3), (4), (5), (6)

The Court allowed the appeal and remitted to trial the issue of the contractual terms governing the relationship between the parties at the time services were terminated. Accordingly, the issues of whether Ganz was a dependent contractor, whether there was a breach of good faith, whether the limitation period expired, and what right to remuneration may flow from these determinations, should be addressed by the trial judge once all of the evidence has been adduced and assessed.


Hemlow Estate v. Co-operators General Insurance Company,2021 ONCA 908

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

R. Dowhan, for the appellant

C. C. Zizzo and B. J. Kurpis, for the respondent

Keywords: Contracts, Interpretation, Insurance, Commercial General Liability, Coverage, Duty to defend, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, ING Insurance Co. of Canada v. Miracle, 2011 ONCA 321, Prudential Life Insurance Co. v. Manitoba Public Insurance Corp. (1976), 67 D.L.R. (3d) 521 (Man. C.A.), Zurich Insurance Co. v. 686234 Ontario Ltd. (2002), 62 O.R. (3d) 447 (C.A.), O’Byrne v. Farmers’ Mutual Insurance Company (Lindsay), 2014 ONCA 543

facts:

An independent mechanical contractor was killed in a workplace accident that also caused extensive property damage.
Rich Products of Canada Limited (“Rich Products”) retained Wear-Check, a company that specializes in equipment oil and filter analysis, to sample and analyze the mechanical and refrigeration systems at its processing facility. Wear-Check subcontracted the deceased to carry out the sampling and analysis work. During the course of his work, the deceased opened a valve to a pipe containing pressurized ammonia, which killed him and caused significant damage to the Rich Products property.

Rich Products commenced a lawsuit against the deceased’s estate (the “Estate”) and Wear-Check in negligence, nuisance and breach of contract. The deceased had an insurance policy with Co-operators General Insurance Company (“Co-operators”) that excluded coverage for damage caused by “pollutants”. Co-operators asserted that this provision applied to the workplace accident and, accordingly, informed the Estate that it would not defend the claim. The Estate brought an application seeking a declaration that Co operators had a duty to defend the action against the Estate. The application judge granted the application. Co-operators appealed that decision.

issues:

(1) Did the Application Judge err in concluding that the Total Pollution Exclusion clause contained in the insurance policy did not apply to exclude Co operators’ duty to defend the Estate in the Rich Products action?

holding:

Appeal dismissed.

reasoning:

(1) No.

The existence of the duty to defend depends on the nature of the claim made. Here, the claim made fell within the terms of the insurance policy because it is a claim for breach of contract and negligence. The duty to defend therefore arose.

An insurer’s duty to defend arises from the claims as pleaded. The parties fixed their dispute on the interpretation of the pollution exception without giving proper consideration to the nature of the claims advanced against the Estate. Those claims were founded in negligence, nuisance, and breach of contract. There was nothing in the statement of claim that involved, or asserted, a claim arising out of “pollution”, as that term was commonly understood. Rather, the claim advanced by Rich Products was a straightforward claim for damage to its property.

It was alleged that the deceased acted in a negligent manner when he opened a valve and allowed the ammonia to escape, which caused damage to the Rich Products property. The deceased’s Estate sought coverage from his insurer should he happen to be negligent in his work and a claim was brought against him. A claim arising from negligence was precisely the type of risk that the deceased sought coverage for. The fact that the damage-causing substance was a pollutant did not change the nature of the claim. It did not distract from the proper interpretation of the insurance policy, nor whether a duty to defend arose.


Sicotte v. 2399153 Ontario Ltd., 2021 ONCA 912

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

M. Black, for the appellant

A. Christian, for the respondents 2399153 Ontario Ltd., J.V. and P.G.

N. Authier, for the respondent D.M.

Keywords: Contracts, Interpretation, Real Property, Mortgages, Guarantees, Priority Agreements, Postponements, Civil Procedure, Summary Judgment, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, leave to appeal to S.C.C. refused, 36974 (March 2, 2017), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Bhasin v. Hrynew, 2014 SCC 71, Schuler A.G. v. Wickman Machine Tool Sales Ltd., [1974] A.C. 235 (H.L.)

facts:

The appellant, J.S., brought a motion for summary judgment on a guarantee of a commercial mortgage signed by the respondents, J.V., P.G., and D.M.. The motion judge dismissed the appellant’s motion but granted summary judgment to the respondents dismissing the appellant’s action against them.

The result of the motion judge’s decision was that the appellant was prevented from enforcing the guarantee until another mortgage that the corporate respondent 2399153 Ontario Ltd. (the “Borrower”) made with the Business Development Bank of Canada (“BDC”) was paid out. By the terms of the BDC mortgage, the payout may not have occurred until 2043, or even later if BDC granted an extension.

The appellant submitted that the motion judge erred in rendering a decision that had such a drastic and unfair result for her.

issues:

(1) Did the motion judge err by failing to distinguish between a debt being “owed” and a debt being subordinated and temporarily unenforceable against the borrower?

(2) Did the motion judge err by failing to distinguish between the obligations of the primary debtor/borrower to the appellant as a lender and those of the guarantors?

(3) Did the motion judge err by applying a lease-up pre-condition to the repayment of the subject loan after such pre-condition had ceased to apply on the pay-out of the previous construction financing?

holding:

Appeal allowed.

reasoning:

(1) and (2) Yes.

The motion judge’s central error was that she confused the appellant’s rights as they related to the underlying debt with her rights as they related to the guarantee. The two were separate and distinct contractual obligations. The result arrived at by the motion judge improperly conflated the two.

The Postponement Agreement was made between the appellant, the Borrower, and the BDC. The guarantors were not parties to the Postponement Agreement. Nothing in the Postponement Agreement purported to, or did, involve, much less altere, the relationship between the appellant and the guarantors. Simply put, there was nothing in the Postponement Agreement that purported to address or affect the appellant’s rights vis-à-vis the guarantors.

The motion judge also erred in concluding that the indebtedness of the Borrower to the appellant was not “owing” to the appellant. That conclusion reflected both a factual and a legal error. The mortgage, which secured the debt due by the Borrower to the appellant, had matured in accordance with its terms. It was an error to conclude that a matured mortgage did not represent monies that are due and owing.

The Court also noted that the guarantee referred to debts “owing by the Borrower to the Lender or remaining unpaid by the Borrower to the Lender” (emphasis added). It should have been self-evident that the debt remained unpaid by the Borrower. Neither the principal amount of the mortgage had been paid nor had the monthly interest payments been made. The motion judge did not make reference to this language in her analysis. Nevertheless, the motion judge did note that section 2.02 of the guarantee entitled the appellant to demand payment or performance from the guarantors, even if she had not exhausted her remedies as against the Borrower. Yet the motion judge gave no effect to this section.

What the motion judge confused was the question of whether a debt was due and owing and whether a lender could enforce payment of a debt that was due and owing. The former addressed liability and the latter addressed enforcement. Just because a debt was due and owing did not necessarily mean that a lender could take steps to enforce payment of the debt. In this case, the appellant disentitled herself to enforce payment of the debt by the Borrower because of the contractual arrangements she entered into with the BDC, so as to permit the BDC to advance other monies to the Borrower. Understandably, the BDC insisted on being first in priority in terms of any enforcement rights against the Borrower (and its assets). The appellant contractually agreed to give the BDC that priority by postponing her enforcement rights as against the Borrower.

What the appellant did not do, and which was central to the issues in this case, was postpone or otherwise alter her rights of enforcement against the guarantors. Contrary to the finding of the motion judge, the Postponement Agreement did not do so. The first clue to that conclusion, as the Court alluded to above, ought to have arisen from the salient fact that the guarantors were not parties to the Postponement Agreement.

The motion judge’s conclusion about the Postponement Agreement was also inconsistent with the terms of the guarantee. The guarantee made it clear that the obligations of the guarantors were independent of the obligations of the Borrower.

Consistent with the interpretative principles set out in Sattva, the surrounding circumstances are relevant to a proper interpretation of the contractual document. The surrounding circumstances known to the parties here was that the Borrower needed to obtain construction financing to ensure that the vacant land that it held as its only asset could be developed so as to generate revenues to pay the Borrower’s obligations. The appellant, recognizing that reality, agreed to postpone her rights as against the Borrower to enable that financing to take place. However, there was never any agreement that the appellant’s rights against the guarantors were to be similarly postponed. That conclusion flowed inevitably from the factual record. In particular, there was an express agreement, at the time of the BDC financing, to amend the mortgage in four specific respects.

The respondents expressly agreed to these changes. If the appellant’s rights were to be, in all respects, entirely subsumed and postponed to the BDC financing, as urged by the guarantors, and as found by the motion judge, then there was no need for a one-year extension of the mortgage since, on the motion judge’s findings, the appellant was not able to enforce the mortgage, or the guarantee, until the BDC financing became due in 2043. Nor did it appear that there was much practical purpose for providing that interest-only payments were to be made since, as the respondents would have it, there was no remedy for any failure to make those payments. Indeed, those interest-only payments, that the respondents expressly agreed were to be made, stopped only three months after they began and yet, in the result, the appellant was precluded from obtaining any relief arising from the failure to make those payments.

Additionally, there was evidence in the record that at least one of the purposes of the one-year extension was to allow time for the parties to pay out the Borrower’s debt to the appellant. This intent was set out in an email from the appellant’s lawyer to the guarantors dated July 3, 2018, the same email that confirmed the guarantors’ acceptance of the terms, and the understanding upon which the appellant was postponing her rights against the Borrower to those of the BDC. If, as found by the motion judge, the appellant had waived her rights to payment of the debt, not only from the Borrower but also from the guarantors, there was no practical purpose to paying the appellant out, since the appellant had no rights of collection for the next twenty-five years. The motion judge did not address this evidence.

(3) Yes.

The third issue arose from an alternative argument advanced by the guarantors. The guarantors contended that the construction financing contained a term that the loan amount did not have to be repaid until all of the units to be constructed in the buildings were leased. That had never happened. The guarantors submitted that this was another reason that no amounts were owing by the Borrower, or by them, to the appellant.

That contention not only suffered from the same flaw of ignoring the distinction between the obligations under the principal debt and the obligations under the guarantee, but it also ignored the salient fact that the construction financing was paid out by the BDC financing. There was no basis in the record for concluding that the terms attached to the construction financing survived that payout and remained in force.

The order of the motion judge was set aside and summary judgment was granted in favour of the appellant.


Foxgate Development Inc. v. Jane Doe, 2021 ONCA 910

[Doherty, Miller and Sossin JJ.A.]

Counsel:

B.L. Yellin, W. Poziomka and N. Papageorge, for the appellant

P. Demelo, for the respondent Foxgate Development Inc.

W. McKaig, for the respondent The Corporation of Haldimand County

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

O. Young and A. Law, for the third party Attorney General of Canada

Keywords: Civil Procedure, Procedural and Natural Justice, Contempt, Sanctions, Abuse of Process, Striking Pleadings, Self-Represented Litigants, Amicus Curiae, Costs, Aboriginal Law, Courts of Justice Act, United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, leave to appeal refused, [2008] S.C.C.A. No. 506., Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, Chiang (Trustee of) v. Chiang (2009), 2009 ONCA 3, Dare Foods (Biscuit Divisions) Ltd. v. Gill, [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.), Toronto Transit Commission v. Ryan (1998), 37 O.R. (3d) 266, [1998] O.J. No. 51 (Gen. Div.), Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686, [2006] O.J. No. 2488 (C.A.), Carey v. Laiken, 2015 SCC 17, Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 82 O.R. (3d) 721 (C.A.), Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, Morwald-Benevides v. Benevides, 2019 ONCA 1023

facts:

The appeal concerned the requirements of fairness where a court’s own motion resulted in an order striking the pleadings of a self-represented party. The appellant was Haudenosaunee and resided at the reserve situated at Six Nations of the Grand River. He was added as a named defendant in interlocutory injunction proceedings brought by Foxgate Developments Inc. (“Foxgate”). The motion judge found that the appellant, an alleged leader of a group of protestors occupying land where Foxgate was developing a housing project, was in defiance of court orders. On that basis, the motion judge determined that the appellant was in contempt of court and had engaged in an abuse of process. The appellant’s pleadings, including his statement of defence, his notice of constitutional question, and third-party actions against the federal and provincial Crown, were ordered struck in the main action on the court’s own motion. The motion judge granted the permanent injunction sought by Foxgate and ordered costs in excess of $168,000 against the appellant. The appellant appealed.

issues:

(1) Whether the motion judge erred in finding the appellant in contempt without affording him the procedural safeguards required by law, and whether the motion judge conflated his finding on contempt with his finding on abuse of process?

(2) Whether the motion judge failed to consider the appellant’s status as an Indigenous person before the court?

(3) Whether the motion judge lacked impartiality and should have considered the appointment of an amicus curiae?

(4) Whether the exorbitant costs imposed on the appellant constituted an error in principle and was plainly wrong?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The Court held that the motion judge failed to afford the appellant procedural fairness. He did not take appropriate steps to put the appellant on notice as to the exact nature of the proceedings against him (whether contempt, abuse of process, or both), and the criteria to be considered in that proceeding. The motion judge did not provide particulars of the exact conduct in issue (whether the appellant’s status as the “leader” of the protestors, or his own conduct). Further, the motion judge did not give the appellant an opportunity to consult with and retain counsel in respect of the contemplated order before he actually made the order. Finally, the motion judge did not give the appellant an opportunity to respond to the particular allegations against him before making any order.

The requirement of fairness in the context of the proceeding constituted an independent right of the appellant. It was no answer to the denial of these rights to say a fair opportunity to be heard would have made no difference in the outcome. Additionally, the narrow exception to this principle did not apply, as there was no inevitable outcome to these proceedings.

(2) Not specifically addressed.

(3) No.

Although the motion judge’s failure to afford the appellant procedural fairness was sufficient to dispose of the appeal, the Court briefly addressed the other grounds of appeal.

The appointment of an amicus curiae is a rare step, wholly within the discretion of the presiding judge. The Court found that the motion judge did not commit any error in failing to consider the appointment of amicus counsel to advise the Court. While amicus counsel could have been helpful in advising the motion judge on the proper process to follow in a contempt or abuse of process motion, this was simply one of several tools at the motion judge’s disposal. There was no legal obligation on the motion judge to consider or pursue this option.

The Court noted that, given the appellant was self-represented, and that the motion at issue was by the court and so lacked an adversarial context, counsel for the respondents also could have provided guidance to the motion judge on the procedural protections to which the appellant was entitled.

(4) Yes.

While the Court found it was unnecessary to examine the cost awards in detail, as the motion judge’s orders were set aside on the basis that the motion judge erred in conflating contempt and abuse of process and denied the appellant a fair opportunity to be heard, the Court found that the motion judge’s cost awards were problematic for three reasons. First, the costs ordered included time spent by the respondents on the injunction motion prior to the appellant being added as a party to the proceeding. Second, the amount of costs appeared to be inordinate, particularly given the duplication in arguments, the absence of any adversarial context, and the fact that the appellant was self-represented. Third, the decision was made without any opportunity for the appellant to make submissions on the issue.


York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914

[Lauwers, Paciocco and Thorburn JJ.A.]

Counsel:

P. T. M. L. and M. C. L., acting in person

T. Bui, for the respondent

Keywords: Real Property, Condominiums, Compliance Orders, Condominium Act, 1998, S.O. 1998, c. 19, ss. 92(4), 93(3), 117, 134, 134(3)(b), and 134(5), Hawkins v. TSCC 1696, 2019 ONSC 2560, TSCC 1724 v. Evdassin, 2020 ONSC 1520

facts:

After plumbing leaks came to its attention, York Region Standard Condominium Corporation No. 972 (the “Corporation”) discovered that Kitec plumbing was present in the building. Kitec plumbing was recalled as faulty by the manufacturer in 2005.

Accordingly, on August 27, 2018, the Corporation issued a notice requiring all unit owners to remove Kitec plumbing. Unit owners could either: (1) use the contractors recommended by the Corporation at a set fee; or (2) use a qualified contractor of their own choosing (in which case the unit owners were still obliged to pay $750 plus HST to the Corporation to have its engineer inspect the work).

The appellants chose the second option but did not send a cheque to cover the inspection fee. On November 25, 2019, the appellants advised the Corporation the Kitec plumbing had been removed but refused access for inspection on two occasions. The Corporation subsequently obtained a compliance order that awarded costs to the Corporation on a full indemnity basis in the amount of $4,541.95.

The unit has since been inspected, and the purpose of the compliance order has been met. However, the appeal was not moot, as the appellants appealed on the merits to avoid the expense and cost consequences of the compliance order judgment.

issues:

(1) Did Kitec plumbing pose a significant risk to the building?

(2) Should the Court reject the affidavit of the Corporation’s employee?

(3) Was the Corporation entitled to use s. 117 of the Condominium Act, 1998 to require owners to remediate their units?

(4) Did the application judge err in their approach to costs?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The Court rejected the appellants’ argument that Kitec plumbing did not pose a significant risk to the building. Specifically, the Court noted there was evidence before the application judge that leaky plumbing had been discovered in the building and that Kitec plumbing had been recalled. Further, the Court noted Kitec plumbing had been recognized as a dangerous condition on two occasions by the Superior Court in prior cases.

(2) No.

The appellants’ asked the Court to infer that the witness gave false evidence and that her affidavit should therefore be entirely rejected by the Court. Specifically, the witness deposed that “the Corporation experienced two significant water damage incidents as a result of faulty Kitec plumbing.” The appellant argued, without evidence, that the failures were not significant. The Court rejected this argument, holding that in the context of a large, multi-unit residential building, pinhole leaks could well result in significant water damage.

(3) Yes.

The Court rejected the appellants’ argument that s. 117 was aimed at bad conduct on the part of unit owners, and could therefore not be used to require owners to remediate their units. The Court concluded s. 117 was aimed at curbing harmful activities, but the language also included “a condition”. The Court held a condition of faulty plumbing in danger of failure amply justified a remedial order.

(4) No.

The Court held the application judge followed a long line of precedent in ordering costs against the appellants on a full indemnity basis “because the balance of the unit owners are blameless and should not have to bear the legal costs of securing the compliance of one of the unit owners”. The Court saw no error in the application judge’s approach.


Overtveld v. Overtveld, 2021 ONCA 930

[Tulloch J.A. (Motion Judge)]

Counsel:

G.F. Windsor, for the moving parties

G.J. Tighe, for the responding parties, Blaney McMurtry LLP and T. M.

S. Trazo, for the responding parties J.O., T.O. and G. K.

J. Warwick, for the responding party Logan Katz LLP

Keywords: Civil Procedure, Appeals, Extension of Time, Vexatious Litigants, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Beard Winter LLP v. Shekhdar, 2016 ONCA 493

facts:

This motion was brought by the moving parties G.O and Gi-Las Management and Maintenance LTD., seeking an order extending the time to file a notice of appeal of an endorsement of the Superior Court of Justice dated September 27, 2021, striking out the statement of claim in the within action against all defendants. The moving party, G.O, is 93 years old and the founder of the co-moving party, Gi-Las Management and Maintenance Ltd., a real estate management company with assets valued at more than $25 million. G.O is the father of two of the responding parties, T.O. and J.O. In 2011, G.O appointed his children as his powers of attorney. A few years later, G.O. married a young woman and his children raised concerns about his mental state and capacity. Recently, G.O. has resisted his children’s interference into his personal affairs and initiated a claim against them in the Ottawa Superior Court of Justice.

In an attempt to circumvent the Superior Court of Justice in Ottawa, G.O. initiated another action in the Brampton Superior Court of Justice, repeating essentially the same allegations as those in the Ottawa action, but also alleging bias against a number of Superior Court judges who preside in Ottawa. The statement of claim in the within action was issued in the Superior Court of Justice at Brampton on May 26, 2021. The within action is related to a series of at least seven prior proceedings involving G.O and various combinations of the responding parties, all of which proceedings were issued or originated in the Superior Court of Justice at Ottawa.

As against the respondent lawyers, almost all of whom acted or continue to act for parties opposite in litigation to the plaintiffs, the statement of claim alleges that they conspired with each other, their respective clients, expert witnesses, court staff and sitting judges of the Superior Court of Justice to obtain various and endorsements that were made in the prior proceedings.

issues:

(1) Should the moving parties be granted an extension of time to file the notice of appeal with respect to their proposed appeal of the September 27, 2021 endorsement striking out the statement of claim in the within action?

holding:

Motion dismissed.

reasoning:

(1) No.

The test on a motion to extend time is well-settled. The overarching principle is whether the “justice of the case” requires that an extension be given. This proceeding remained extant before the Superior Court of Justice at Ottawa and had yet to be determined. The proposed appeal had no merit and the justice of the case did not require granting an extension.

The moving parties rolled their existing claims in the Prior Proceedings forward, naming an expanded group of defendants that included the lawyers for the opposite litigation parties in the Prior Proceedings, expert witnesses for the opposite litigation parties in the Prior Proceedings, and court staff of the Superior Court of Justice. This was one of the hallmarks of vexatious litigation. Accordingly, the motion for extension of time was denied


SHORT CIVIL DECISIONS

Froom v. LaFontaine, 2021 ONCA 917

[van Rensburg and Roberts JJ.A. and Tzimas J. (ad hoc)]

Counsel:

R. Dowhan, for the appellant

C. C. Zizzo and B. J. Kurpis, for the respondent

Keywords: Family Law, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b), Mantella v. Mantella, 2009 CarswellOnt 1060, Ashak v. Ontario (Director, Family Responsibility Office), 2013 ONCA 375

W.S. v. P.I.A., 2021 ONCA 923

[Hourigan, Trotter, and Zarnett J.A]

Counsel:

G.S. Joseph and A. Parama, for the appellant

G. Gottlieb and M. Pilch, for the respondent

Keywords: Family Law, Custody and Access, Divorce Act, R.S.C. 1985, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764

SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913

[Simmons, Pepall and Roberts JJ.A.]

Counsel:

J. T. Curry, C. Yung, E.Mogil and E.S. Chesney, for the appellants/moving parties

R. Bucholz and C. Fan, for the respondent/responding party

Keywords: Civil Procedure, Appeals, Expediting Appeals, Trials, Bifurcation, Machado v. Ontario Hockey Association, 2019 ONCA 210, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

McLean v. Wolfson, 2021 ONCA 928

[Hourigan, Trotter and Zarnett JJ.A.]

Counsel:

M. McLean, acting in person

E. Mogil and P. Leslie, for the respondent

Keywords: Torts, Negligence, MedMal, Civil Procedure, Documentary Discovery, Orders, Enforcement, Dismissal of Action, Adjournments, Appeals, Fresh Evidence, Rules of Civil Procedure, Rules 30.04(2), 30.08 and 60.12


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.

Print:
EmailTweetLikeLinkedIn
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.