In Georgian Properties Corporation v. Robins Appleby LLP, a condo corp alleged that condo disclosure prepared by the developer’s lawyer was inadequate and refused to honour payment on a promissory note in favour of the developer. Almost a year later, the court found inadequate disclosure and that the debt under the promissory note oppressive and significantly reduced the amount payable. The developer sued its lawyers outside the two years from when the condo corp’s allegations were first raised. The lawyers raised a limitation period defence. The Court did not accept the lawyers’ position that the cause of action for negligence against them arose as soon as the condo corp had called the disclosure and debt instruments into question.

In Farej v. Fellows, a tragic medical malpractice case, the Court ordered a new trial because the trial judge’s reasons on causation and standard of care were inadequate and did not permit of appellate review..

In Akelius Canada Ltd. v. 2436196 Ontario Inc., the Court confirmed that damages for breach of contract for failure to close on a real estate deal under an agreement of purchase and sale of land is the date of breach. Accordingly, if the purchaser was buying at market price, the vendor’s failure to close leaves the purchaser with no damages, save for costs thrown away in respect to aborted deal. The vendor in this case, who sold the property two years later for $56 million more, was able to keep the entire extra profit. The lesson from this decision is that a vendor who has second thoughts and decides to keep their property faces little risk by refusing to close. The traditional availability of specific performance in real estate cases kept vendors honest. However, since Semelhago v. Paramadevan, 1996 CanLII 209 (SCC), the courts have gone away from awarding specific performance in real estate transactions without uniqueness. Uniqueness can be difficult to prove when the lands at issue are development lands that are essentially viewed as a commodity with readily available substitutes.

Pine Valley Enterprises Inc. v. Earthco Soil Mixtures Inc. is a sale of goods case. The sale of topsoil was found to have been by description, and that the topsoil delivered did not conform to that description. Section 14 of the Sale of Goods Act imposes an implied condition that on a sale by description, the goods be of that description. A clause in the contract providing that if the purchaser failed to test the soil before accepting it, the vendor was not responsible for the quality of the goods. The motion judge viewed this clause as an exclusion clause that limited the vendor’s liability. The purchaser’s action was dismissed. The Court allowed the appeal. The exclusion clause did not contain explicit, clear and direct language sufficient to oust liability for breach of the implied condition in s. 14 of the Sale of Goods Act. The exclusion clause referred to the quality of the topsoil, not its identity or description. If the topsoil did not conform to the description required, the exclusion clause relating to quality had no application and could not save the vendor.

Other topics covered this week included the variation of child support and appellate jurisdiction (final or interlocutory).

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Georgian Properties Corporation v. Robins Appleby LLP, 2022 ONCA 245

Keywords: Contracts, Solicitor and Client, Torts, Solicitor’s Negligence, Civil Procedure, Limitations Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s. 5(1)(a)(i) Condominium Act, 1998, S.O. 1998, c. 19, Central Trust v. Rafuse, [1986] 2 S.C.R. 147, Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Kaynes v. BP p.l.c., 2021 ONCA 36, Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165

Farej v. Fellows, 2022 ONCA 254

Keywords: Torts, Negligence, Medical Malpractice, Civil Procedure, Adequacy of Reasons, R. v. Sheppard, 2002 SCC 26, F.H. v. McDougall, 2008 SCC 53, R. v. G.F., 2021 SCC 20, Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, Dovbush v. Mouzitchka, 2016 ONCA 381, R. v. Morrissey (1995), 22 O.R. (3d) 514, R. v. Ramos, 2020 MBCA 111, Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520, Athey v. Leonati, [1996] 3 S.C.R. 458, Donleavy v. Ultramar Ltd., 2019 ONCA 687, ter Neuzen v. Korn, [1995] 3 S.C.R. 674

Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259

Keywords: Breach of Contract, Real Property, Agreements of Purchase and Sale of Land, Vendor’s Failure to Close, Damages, Civil Procedure, Summary Judgment, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), 100 Main Street Ltd. v. W.B. Sullivan Construction Ltd. (1978), 20 O.R. (2d) 401 (Ont CA), 642947 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (Ont. CA), Asamera Oil Corporation Ltd. v. Sea Oil & General Corporation et al., [1979] 1 S.C.R. 633, Domowicz v. Orsa Investments Ltd. (1994), 20 O.R. (3d) 722 (Gen. Div.), Kipfinch Developments Ltd. v. Westwood Mall (Mississauga) Limited, 2010 ONCA 45, Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Bell Canada v. Olympia & York Developments Ltd., 111 D.L.R. (4th) 589 (Ont CA)

Pine Valley Enterprises Inc. v. Earthco Soil Mixtures Inc., 2022 ONCA 265

Keywords: Contracts, Interpretation, Sale of Goods, Implied Conditions, Sale by Description, Exclusion Clauses, Sale of Goods Act, R.S.O. 1990, c. S.1, ss 14 and 53, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Bakker v. Bowness Auto Parts Co. (1976), 68 D.L.R. (3d) 173 (Alta. S.C. (A.D.)), Ashington Piggeries Ltd. v. Christopher Hill Ltd., [1972] A.C. 441 (H.L. (Eng.)), Chabot v. Ford Motor Co. of Canada (1982), 39 O.R. (2d) 162 (H.C.), Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426, Gregorio v. Intrans-Corp. (1994), 18 O.R. (3d) 527 (C.A.), IPEX Inc. v. Lubrizol Advanced Materials Canada Inc., 2012 ONSC 2717, 4 B.L.R. (5th) 148, leave to appeal to Div. Ct. refused, 2012 ONSC 5382, Haliburton Forest & Wildlife Reserve Ltd. v. Toromont Industries Ltd., 2016 ONSC 3767

Overtveld v. Overtveld, 2022 ONCA 269

Keywords: Wills and Estates, Guardianship, Capacity, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Contempt, Striking Pleadings, Removal of Solicitor of Record, Solicitors Act, R.S.O. 1990, c. S.15, Chirico v. Szalas, 2016 ONCA 586, Simmonds v. Simmonds, 2013 ONCA 479, Hendrickson v. Kallio, [1932] O.R. 675, Aptowitzer v. Ontario (1995), 26 O.R. (2d) 254 (C.A.), Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103 (C.A.)

Licata v. Shure, 2022 ONCA 270

Keywords: Family Law, Child Support, Variation, Material Change in Circumstances, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 17, Family Law Rules, rules 14(10) and 25(1), Federal Child Support Guidelines, SOR/97-175, s. 14(b), Gray v. Rizzi, 2016 ONCA 152, Hickey v. Hickey, [1999] 2 S.C.R. 518, L.M.P. v. L.S., 2011 SCC 64, citing Willick v. Willick, [1994] 3 S.C.R. 670, Gordon v. Goertz, [1996] 2 S.C.R. 27, N.L. v. R.R.M., 2016 ONCA 915, Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C. S.C.), Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), Dring v. Gheyle, 2018 BCCA 435, 430 D.L.R. (4th) 181, Olson v. Olson, 2003 ABCA 56, 225 D.L.R. (4th) 735, W.P.N. v. B.J.N., 2005 BCCA 7

Short Civil Decisions

Donovan v. Waterloo (Police Services Board), 2022 ONCA 261

Keywords: Labour Law, Human Rights, Civil Procedure, Appeals, Temporary Stay

Andrews v. Pattison, 2022 ONCA 267

Keywords: Torts, Negligence, Medical Malpractice, Civil Procedure, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Lawless v. Anderson, 2011 ONCA 102, Dass v. Kay, 2021 ONCA 565

CIVIL DECISIONS

Georgian Properties Corporation v. Robins Appleby LLP, 2022 ONCA 245

[Simmons, Pardu and Brown JJ.A.]

Counsel:

M. Davis and R. Davis, for the appellant

P. Wardle and E. Rankin, for the respondents

Keywords: Contracts, Solicitor and Client, Torts, Solicitor’s Negligence, Civil Procedure, Limitations Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s. 5(1)(a)(i) Condominium Act, 1998, S.O. 1998, c. 19, Central Trust v. Rafuse, [1986] 2 S.C.R. 147, Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Kaynes v. BP p.l.c., 2021 ONCA 36, Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165

facts:

The appellant, Georgian Properties Corporation (“Georgian Properties”), appealed from a summary judgment dismissing its negligence action against the respondent lawyers as statute barred under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the “Limitations Act”).

The negligence claim arose from the respondent lawyers’ work in preparing disclosure documents, two mortgages, and a promissory note for the developer of a condominium project that was registered in 2010. Once the condominium was turned over to the unit holders, the condominium corporation, TSCC 2051, refused to pay the two mortgages and the promissory note. Litigation ensued. TSCC 2051 attacked the adequacy of the disclosure documents in a factum delivered in June 2017. On July 7, 2017, a judge declined to strike the factum. In May 2018, she held that the disclosure documents were insufficient, the two mortgages and the promissory note were oppressive, and that the promissory note violated the Condominium Act, 1998, S.O. 1998, c. 19 (the “Condominium Act”). She reduced the principal amount of the two mortgages and held the promissory note was void.

Georgian Properties commenced its negligence action against the respondent lawyers in November 2019. On a summary judgment to address the limitation period issue, the motion judge rejected Georgian Properties’ argument that it did not suffer a loss until the May 2018 decision. The motion judge concluded that the appellant knew or ought to have known no later than July 7, 2017, that it had a claim against the respondent lawyers for which a proceeding was an appropriate remedy. He found that Georgian Properties was suffering a loss as of April 2010, when TSCC 2051 refused to make payments under the debt instruments.

issues:

(1) Did the motion judge err in law in holding Georgian Properties had suffered a loss when TSCC 2051 failed to make payments under the debt instruments?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The motion judge erred in law in holding Georgian Properties had suffered a loss when TSCC 2051 failed to make payments under the debt instruments.
The injury, loss or damage at issue under s. 5(1)(a)(i) of the Limitations Act must be caused by or contributed to by an act or omission of the defendant in the action.

In an action for solicitor negligence, the question whether injury, loss, or damage has occurred within the meaning of s. 5(1)(a)(i) does not generally turn on compliance by third parties with their obligations under documents or instruments prepared by the solicitor. The question of whether injury, loss or damage has occurred must turn on matters such as the validity and enforceability of the documents and instruments that were prepared. Had the mortgages in this case been valid and fully enforceable, Georgian Properties could have recovered the full amount owing to it by enforcing its security. No loss would have occurred even though the mortgages had remained unpaid for many years.

It is well-established that the question when a party has, or ought to have, discovered a claim under s. 5 of the Limitations Act requires a fact-based analysis dependent on the circumstances of each case. In the overall circumstances of the case, the record did not demonstrate Georgian Properties, or a reasonable person with its abilities and in its circumstances, had all the material facts necessary to draw a plausible inference of liability with respect to any potential negligence claim against the respondent lawyers prior to November 19, 2017.

Even assuming that injury, loss or damage occurred when the debt instruments were given, the motion judge’s incorrect finding that Georgian Properties was suffering a loss when TSCC 2051 failed to pay skewed his analysis of when Georgian Properties ought to have discovered its injury, loss or damage. The loss had not crystalized as of July 7, 2017, when the judge declined to strike TSCC 2051’s factum.

Even if the respondent lawyers breached the standard of care in relation to disclosure, no injury, loss, or damage would be caused by their conduct if the debt instruments remained valid and enforceable. The principals of Georgian Properties gave unchallenged evidence that they expected to be successful on their counterclaim to enforce the debt instruments. No issue of implied waiver of privilege was raised and there was no indication in the record that anyone advised them otherwise.

In general, the mere fact that allegations are made in a proceeding that could trigger a claim for solicitor negligence does not automatically meet the requirements of s. 5(1) of the Limitations Act, such that the party with the potential claim must immediately commence action against the solicitor(s). Further investigation and assessment may be required. Here, the allegations were made in a factum delivered many years after the proceeding had been commenced, had previously been foreclosed on appeal and were only one facet of the arguments advanced.

To conclude that Georgian Properties ought to have drawn a plausible inference that it had suffered a loss and recognized that a proceeding was an appropriate remedy between July 7, 2017 and November 18, 2017 would be unreasonable.

Farej v. Fellows, 2022 ONCA 254

[Doherty, Miller and Sossin JJ.A.]

Counsel:

J. J. Adair, J. V. Katz, D. Embury, D. M. Pacheco and B. Di Domenico, for the appellants
P. W. Kryworuk and J. R.W. Damstra, for the respondent

Keywords: Torts, Negligence, Medical Malpractice, Civil Procedure, Adequacy of Reasons, R. v. Sheppard, 2002 SCC 26, F.H. v. McDougall, 2008 SCC 53, R. v. G.F., 2021 SCC 20, Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, Dovbush v. Mouzitchka, 2016 ONCA 381, R. v. Morrissey (1995), 22 O.R. (3d) 514, R. v. Ramos, 2020 MBCA 111, Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520, Athey v. Leonati, [1996] 3 S.C.R. 458, Donleavy v. Ultramar Ltd., 2019 ONCA 687, ter Neuzen v. Korn, [1995] 3 S.C.R. 674

facts:

After birth complications related to oxygen deprivation, an infant was born severely disabled. The infant will require 24-hour a day care for the rest of her life. The infant, her parents, and her two brothers sued the infant’s obstetrician, Dr. F. (the “Doctor”), and alleged he was negligent during the infant’s delivery.

At trial, the evidence focused primarily on the 26 minutes between the Doctor’s arrival in the delivery room at 11:01 p.m. and the infant’s delivery at 11:27 p.m. The Doctor faced an obstetrical emergency when he walked into the delivery room. The infant was not getting an adequate oxygen supply. The Doctor believed he had to deliver the infant as quickly as was safely possible. The Doctor elected to proceed with a vaginal delivery. After two unsuccessful attempts to deliver the infant, the Doctor was able to deliver her on his third attempt, some 26 minutes after he entered the delivery room.

The appellant’s main argument at trial was that the Doctor fell below the applicable standard of care in making his decision to deliver the infant vaginally with the assistance of forceps, as opposed to proceeding with an emergency C-section, and that this caused or materially contributed to the catastrophic injuries the infant had when she was born.

Ultimately, the trial judge dismissed the action. The appellants accepted that, on the evidence, the trial judge could have dismissed the action. However, on appeal, they submitted that the reasons of the trial judge were legally inadequate on key issues in that they did not permit meaningful appellate review, and accordingly, a new trial on liability was warranted.

The respondent submitted that if a new trial was ordered, it should be on all issues including damages. The respondent also brought a cross-appeal challenging aspects of the trial judge’s damages assessment, which was contingent upon the court both ordering a new trial on liability and rejecting the respondent’s submission that the new trial should be on all issues, including damages.

issues:

(1) What are the applicable legal principles when determining the adequacy of reasons for judgment?
(2) Were the trial judge’s reasons on causation adequate?
(3) Were the trial judge’s reasons on the standard of care issues adequate?
(4) Did the trial judge err in failing to address the issue of informed consent?
(5) What is the appropriate order?

holding:

Appeal allowed. Cross-appeal dismissed.

reasoning:

Not all of the arguments advanced by the appellants succeeded, largely based on the Court’s conclusion that a review of the reasons read in the context of the evidence on those issues provided adequate reasons. However, the Court concluded that two of the arguments advanced by the appellants succeeded, which was sufficient to justify allowing the appeal and ordering a new trial. The successful arguments are detailed below under issues (2) and (3).

(1)
In the context of the appeal process, the focus is on whether the reasons allow the Court to engage in a meaningful review of the substantive merits of the decision under appeal. A submission that trial reasons are legally inadequate does not necessarily attack the sufficiency of the evidence, the reasonableness of the factual findings, or allege legal errors in the trial judge’s analysis. Rather, the submission that reasons are inadequate amounts to a claim that proper substantive review of the trial judge’s reasons is foreclosed by the inadequacy of those reasons.

The Court held the jurisprudence addressing the sufficiency of reasons as a ground of appeal repeatedly made two important points: “First, the adequacy of reasons must be determined functionally. Do the reasons permit meaningful appellate review? If so, an argument that the reasons are inadequate fails, despite any shortcomings in the reasons. Second, the determination of the adequacy of the reasons is contextual. Context includes the issues raised at trial, the evidence adduced, and the arguments made before the trial judge.”

(2) No.
The trial judge’s reasons indicated the trial judge decided that nothing the Doctor did caused the injuries. However, the reasons did not explain how the trial judge arrived at her conclusion, or whether in doing so she addressed not only causation in the narrowest sense, but also causation by way of a material contribution to the injuries actually suffered by the infant.

Specifically, there was conflicting evidence about how long it would have taken the Doctor to deliver the infant by C-section should he have chosen to do so. The trial judge accepted the Doctor’s evidence that the estimate of 8 to 10 minutes to conduct an emergency C-section did not include preparation time. However, the trial judge made no finding as to how long the necessary preparation would take.

The Court held that this was “no minor factual matter”, and that without arriving at a time, or at least a timeframe, within which the emergency C-section could have been completed, the finding of no causal connection between the Doctor’s actions and the injuries was unintelligible.

The Court noted that, in light of the evidence that the infant’s permanent brain damage occurred over a period of time during which she was acutely oxygen deprived, and that the damage worsened the longer the deprivation lasted, it was critical to the causation inquiry that the trial judge decide when the infant could have been delivered by emergency C-section. Without a finding of at least a timeframe within which the C-section could have been completed, there could be no finding as to how long, if at all, the infant was oxygen deprived as a consequence of the failure to deliver her by way of emergency C-section. Accordingly, without that finding, there could be no meaningful inquiry into whether the delay, if any, caused or materially contributed to the infant’s injuries.

(3) No.
The Court held the trial judge’s reasons were inadequate regarding the appellants’ argument at trial that the Doctor was negligent in failing to complete delivery with the Kielland forceps, resulting in a 15-minute delay in the delivery of the infant. Specifically, the Doctor brought the infant to the crowning position using the Kielland forceps, but became concerned that if he used them to complete the delivery, the forceps would destroy or damage the mother’s perineum – as a result, the
Doctor released the forceps and had the mother push the infant out, which occurred 15 minutes later.

The Court held there was evidence supporting the appellants’ position that the Doctor acted negligently in failing to complete the delivery with the Kielland forceps. There was also evidence that his failure to do so caused a significant delay in the delivery of the infant. Further, on the causation evidence, it would have been open to the trial judge to infer that the delay resulting from the failure to complete the delivery with the Kielland forceps (about 15 minutes) caused or materially contributed to the infant’s catastrophic injuries. Accordingly, the Court held it was essential for the trial judge to address this allegation and explain why she rejected it, as it “stood on an entirely different evidentiary footing” than the other allegations of negligence advanced at trial.

Although the trial judge acknowledged that the appellants had argued the Doctor should have completed the delivery with the Kielland forceps, she never addressed the merits of the argument. Apart from a brief reference to another doctor’s evidence that the release of a forceps was “common practice”, the trial judge made no reference to any of the evidence relevant to this issue. Accordingly, the Court held the reasons as they related to the allegation that the Doctor should have delivered the infant with the Kielland forceps were inadequate and did not admit of appellate review.

(4) No.
Although the heading used by the trial judge misdescribed the informed consent issue, her analysis under that heading was directed at the evidence relevant to whether consent was given and the application of the correct legal principles to the circumstances as found by the trial judge.

(5)
The Court held the interests of justice were served by ordering a new trial, as the trial judge’s failure to give adequate reasons in respect of causation and one of the standard of care issues meant the Court could not meaningfully review either the finding the appellants failed to prove causation, or the finding the appellants failed to prove the Doctor was negligent.

The Court also accepted the respondent’s submission that the new trial should be on both liability and damages. Accordingly, the cross-appeal was dismissed as moot.

Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259

[Lauwers, Harvison Young and Sossin JJ.A.]

Counsel:

D. S. Murdoch and I. Eckler, for the appellant

M. A. Ross and E. Brousseau, for the respondents

Keywords: Breach of Contract, Real Property, Agreements of Purchase and Sale of Land, Vendor’s Failure to Close, Damages, Civil Procedure, Summary Judgment, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), 100 Main Street Ltd. v. W.B. Sullivan Construction Ltd. (1978), 20 O.R. (2d) 401 (Ont CA), 642947 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (Ont. CA), Asamera Oil Corporation Ltd. v. Sea Oil & General Corporation et al., [1979] 1 S.C.R. 633, Domowicz v. Orsa Investments Ltd. (1994), 20 O.R. (3d) 722 (Gen. Div.), Kipfinch Developments Ltd. v. Westwood Mall (Mississauga) Limited, 2010 ONCA 45, Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Bell Canada v. Olympia & York Developments Ltd., 111 D.L.R. (4th) 589 (Ont CA)

facts:

What remedies are appropriate for an innocent purchaser of real property when a breaching vendor fails to close on the closing date pursuant to the agreement of purchase and sale? In particular, is the purchaser entitled to claim the profits that the vendor made two and a half years later when the vendor sold the property for $56 million more than its value on the closing date? As the motion judge put it, “[c]an a Europe-based, worldwide real estate investor whose contract was breached by a seller in Toronto be awarded damages based on lost opportunity to cash in on the local real estate boom?”

Akelius Canada Ltd. (“Akelius”) appealed from the motion judge’s finding that it was not entitled to such damages but was restricted to its damages as at the closing date. The respondents cross-appealed the motion judge’s award to Akelius of its costs thrown away, and both parties appealed from the motion judge’s decision not to award costs to either party.

issues:

(1) Did the motion judge err in finding that he was bound by the case of Fleischer to assess damages as of the date of breach?

(2) Did the motion judge err in finding that the respondent vendors succeeded in showing that the appellant purchaser failed to mitigate or had, in fact, mitigated its damages (other than the costs thrown away)?

(3) Did the motion judge err in awarding Akelius “every dollar of its sunk costs”?

(4) Should the respondents have been awarded their costs given their success in defending the majority of the appellant’s claim for damages?

holding:

Appeal and cross-appeal dismissed.

reasoning:

It would not be fair in the circumstances to shift the date of the assessment of damages beyond the date of the breach. In short, the trial judge correctly found that there was no genuine issue requiring a trial on the date upon which the damages should be assessed. On that date, the market value and the contract price were the same; there was no loss. The appellant had not proven its loss, and the date it had chosen as the “crystallization” of its loss was not sufficiently connected to the date of breach or to the objectively understood purpose of the contract.

(2) No.

As the appellant failed to prove its losses, the Court would also not give effect to its mitigation argument because, having failed to establish that it suffered a loss as of the date of breach, there were no losses to be mitigated.

(3) No.

With respect to the claim of the costs thrown away, the trial judge clearly found that the respondents breached the APS. The appellant was entitled to these damages and the Court was not persuaded that the motion judge committed any reversible error in this respect, either in principle or in terms of the quantum.

(4) No.

Costs awards are within the discretion of the court: Courts of Justice Act, s. 131(1). In Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), the Court explained the threshold to be met before an appellate court may set aside a costs award.

Success was divided at trial. It was within the trial judge’s discretion to decline to award costs. The Court was not convinced that appellate intervention was warranted.

Pine Valley Enterprises Inc. v. Earthco Soil Mixtures Inc., 2022 ONCA 265

[Strathy C.J.O., Simmons and Zarnett JJ.A.]

Counsel:

V.S. Scalisi, for the appellant
M. Klaiman, for the respondent

Keywords: Contracts, Interpretation, Sale of Goods, Implied Conditions, Sale by Description, Exclusion Clauses, Sale of Goods Act, R.S.O. 1990, c. S.1, ss 14 and 53, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Bakker v. Bowness Auto Parts Co. (1976), 68 D.L.R. (3d) 173 (Alta. S.C. (A.D.)), Ashington Piggeries Ltd. v. Christopher Hill Ltd., [1972] A.C. 441 (H.L. (Eng.)), Chabot v. Ford Motor Co. of Canada (1982), 39 O.R. (2d) 162 (H.C.), Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426, Gregorio v. Intrans-Corp. (1994), 18 O.R. (3d) 527 (C.A.), IPEX Inc. v. Lubrizol Advanced Materials Canada Inc., 2012 ONSC 2717, 4 B.L.R. (5th) 148, leave to appeal to Div. Ct. refused, 2012 ONSC 5382, Haliburton Forest & Wildlife Reserve Ltd. v. Toromont Industries Ltd., 2016 ONSC 3767

facts:

The appellant bought topsoil from the respondent for use in a City of Toronto project designed to reduce basement flooding. The topsoil did not meet the City’s specifications. The City required the appellant to remove and replace it, causing the appellant a loss the trial judge assessed at $350,386.23.

The appellant claimed that the respondent was responsible for its loss. It asserted that the respondent breached the parties’ contract governing the sale of topsoil (the “Contract”), specifically the condition implied into the Contract by s. 14 of the Sale of Goods Act (the “SGA”). Section 14 of the SGA provides that where goods are sold by description, there is an implied condition in the contract of sale that the goods supplied correspond to that description.

The trial judge dismissed the action on the basis of exclusionary clauses in the Contract.

The Contract provided that the appellant had the right to test and approve the topsoil at its own expense at the respondent’s facility before it was shipped. It further provided that if the appellant waived its right to do so, the respondent would not be responsible for the quality of the material once it left the respondent’s facility.

The trial judge held that by these exclusionary clauses, the respondent had successfully excluded liability for failing to supply topsoil that corresponded with the description in the Contract, that is, for breach of the implied condition in s. 14 of the SGA, as the appellant failed to do its own test before taking delivery.

issues:

Whether the trial judge committed a reversible error in finding that the exclusionary clauses constituted an express agreement composed of explicit, clear, and direct language sufficient to oust liability for breach of the implied condition in s. 14 of the SGA that the topsoil supplied corresponded to the contractual description.

holding:

Appeal allowed.

reasoning:

(1) Yes.

The distinction between identity and quality is important in this case. The trial judge found a sale by description. That description was narrow. He came to these conclusions (which are not in issue on this appeal) after adverting to the difference between terms of a contract that specify the quality or standard of the goods and those that form the description. He found that the appellant did not get what was promised in terms of the identity of the goods because of the significant variation in composition.

Section 53 of the SGA permits the parties to contract out of liability implied by law, but only if they do so by “express agreement”. Section 53 provides: “Where any right, duty or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, if the usage is such as to bind both parties to the contract.” Binding case law has explained what is meant by an express agreement in this context. It must be “explicit” and “clear and direct”.

In the Court’s view, although the trial judge articulated the need for explicit language, he erred in law in finding that it was met even though the Contract did not, as he noted, explicitly address or oust the implied conditions in the SGA, or clearly articulate the intentions of the parties vis-à-vis the implied terms in the SGA.

The operative words of the exculpatory clauses were that if the appellant does not test the soil, the respondent “will not be responsible for the quality of the material”. The implied condition in s. 14 addresses responsibility for the identity of the goods, not quality. Just as an exclusion that speaks to implied warranties does not exclude implied conditions because of the legal difference between those terms, an exclusion of responsibility for quality cannot exclude an implied statutory condition imposing responsibility for the identity of the goods, which covers different legal territory.

The trial judge did not explain how the word “quality” in the exculpatory clauses could mean “identity”. Rather, in various passages of his reasons, the trial judge referred to the exculpatory clauses without referring to the “responsible for the quality” wording.
The express language could not be expanded by recourse to the factual matrix. The interpretation of a written contractual provision must be grounded in the text read in light of the entire contract. But there is a legal limit on the interpretive use of the factual matrix. The factual matrix cannot be used to overwhelm the text, or to change the meaning of the words used: Sattva, at para. 57.

The factual matrix could not change “responsible for the quality” in the exculpatory clauses to “responsible for the identity”, let alone add words to those clauses that were not used (such as “under any condition express or implied, statutory or otherwise”).

Overtveld v. Overtveld, 2022 ONCA 269

[Pardu, Paciocco and Thorburn JJ.A.]

Counsel:

G. F. Windsor, for the appellants G.O. and E.J.

E. Lay, for the respondents J.O., T.O. and G.K.

S. Jones, for the Public Guardian and Trustee

Keywords: Wills and Estates, Guardianship, Capacity, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Contempt, Striking Pleadings, Removal of Solicitor of Record, Solicitors Act, R.S.O. 1990, c. S.15, Chirico v. Szalas, 2016 ONCA 586, Simmonds v. Simmonds, 2013 ONCA 479, Hendrickson v. Kallio, [1932] O.R. 675, Aptowitzer v. Ontario (1995), 26 O.R. (2d) 254 (C.A.), Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103 (C.A.)

facts:

The motion judge was appointed to act as case management judge in this matter. The appellants, E.J. and G.O., appealed from his decisions made in that capacity on December 7, 2020. The underlying application was brought by Mr. O.’s children in their capacity as his attorneys for property and personal care. They pursued a declaration that Mr. O. was incapable of managing property or making personal care decisions.

The Court’s executive legal officer alerted the appellants to a concern that the orders from which they appealed were interlocutory, and that the Court lacked jurisdiction to hear the appeals. Mr. Windsor maintained that the Court should hear the appeals.

issues:

(1) Does the Court have jurisdiction to hear the motion to find the respondents in contempt?

(2) Does the Court have jurisdiction to hear the motion to strike the application?

(3) Does the Court have jurisdiction to hear the motion for an order that the respondents provide certain parties with access to Mr. O.?

(4) Does the Court have jurisdiction to hear the motion to have Ms. Vale Peters removed as counsel?

(5) Does the Court have jurisdiction to hear the motion for an order for payment of accounts submitted to the respondents?

holding:

Appeal quashed.

reasoning:

(1) No.

The Court did not have jurisdiction over this appeal because the order appealed from was interlocutory. Orders dismissing a contempt motion based on a failure to comply with the terms of an order are final where there are no ongoing proceedings and the party seeking the order has no other means of obtaining relief arising out of the failure to abide by the terms of the order.

(2) No.

The Court did not have jurisdiction over this appeal because the order appealed from was interlocutory. Orders dismissing a motion to strike out all or part of a pleading are interlocutory because they do not finally dispose of the rights of the parties.

(3) No.

The Court did not have jurisdiction over this appeal because the order appealed from was interlocutory. The refusal to make changes to the terms of access to Mr. O. pending the hearing of the application did not finally resolve issues at stake in these proceedings.

(4) No.

The Court did not have jurisdiction over this appeal because the order appealed from was interlocutory. Orders granting or dismissing a motion to remove or add solicitors of record are interlocutory.

(5) No.

The Court did not have jurisdiction over this appeal because the order appealed from was interlocutory. The motion judge’s refusal to order payment did not finally dispose of the rights of the parties because the attorneys asked for further information from the parties who submitted the accounts to determine whether payment could be made. Furthermore, the payments were collateral to the real dispute between the parties, which was the capacity application.

Licata v. Shure, 2022 ONCA 270

[Feldman, Roberts and Favreau JJ.A.]

Counsel:

T. Nemetz, for the appellant
K. Normandin and C. Senese, for the respondent

Keywords: Family Law, Child Support, Variation, Material Change in Circumstances, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 17, Family Law Rules, rules 14(10) and 25(1), Federal Child Support Guidelines, SOR/97-175, s. 14(b), Gray v. Rizzi, 2016 ONCA 152, Hickey v. Hickey, [1999] 2 S.C.R. 518, L.M.P. v. L.S., 2011 SCC 64, citing Willick v. Willick, [1994] 3 S.C.R. 670, Gordon v. Goertz, [1996] 2 S.C.R. 27, N.L. v. R.R.M., 2016 ONCA 915, Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C. S.C.), Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), Dring v. Gheyle, 2018 BCCA 435, 430 D.L.R. (4th) 181, Olson v. Olson, 2003 ABCA 56, 225 D.L.R. (4th) 735, W.P.N. v. B.J.N., 2005 BCCA 7 [KEYWORDS]

facts:

In 2019, the father brought a motion to change a 2017 Order. The father sought termination of child support for two of the parties’ three children, H.S.L. and A.E.L.

The motion judge terminated child support for H.S.L. The motion judge held that there was a material change in circumstances because H.S.L had reached the age of the majority and, given that H.S.L. had obtained very few credits in her university program, was not devoting herself to university studies and could instead work to support herself.

The motion judge found that A.E.L. was enrolled in a full-time university program and, accordingly, the father should continue to pay child support for her. However, as a condition of continuing child support, the motion judge directed the mother to provide proof of A.E.L.’s full-time enrolment in post-secondary studies within 45 days of the end of each academic term.

The parties were invited to make submissions on costs. The father provided some information that A.E.L. was not enrolled in full-time university studies, and therefore asked that child support for A.E.L. be terminated as well.

The motion judge awarded $80,183.06 in costs to the father.

Seven months following the release of the costs endorsement, the father filed a Form 14B notice of motion for the purpose of settling the order. The father again renewed his position that child support for A.E.L. should be terminated, and provided a draft order to that effect.

On May 11, 2021, the motion judge released an endorsement approving the order as proposed by the father, which included a provision terminating child support for A.E.L. The motion judge did not provide reasons for doing so other than stating that she had reviewed the affidavit and email materials filed on the motion.

issues:

(1) Whether the motion judge made errors in principle in terminating child support for H.S.L.?
(2) Whether the motion judge made errors in principle in terminating child support for A.E.L.?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The Court found that the motion judge erred in her articulation and application of the test on a motion to change.

In conducting an inquiry into whether there is a material change in circumstances, courts have required the party seeking the variation to demonstrate a material change of circumstances that was not contemplated by the parties at the time that the initial order was made and that, if such a change had been known, “would likely have resulted in different terms”.

The motion judge started from the premise that there had been a material change in circumstances because H.S.L. had reached the age of majority. She then required the mother to demonstrate that H.S.L. was not capable of withdrawing from parental control. This was an error in principle. H.S.L. was already over the age of majority when the 2017 Order was made, at which time she was also already attending university. There was no material change in circumstances from the time of the 2017 Order.

The motion judge further erred by placing the burden on the mother to prove that H.S.L. required continuing child support. She conducted this inquiry as though it was an initial application for child support pursuant to s. 15.1(1) of the Divorce Act, which would require a determination of whether H.S.L. was still a “child of the marriage” as defined in s. 2(1).

It was an error for the motion judge to treat this as an initial request for child support for a child who is at or above the age of majority. The parties had already agreed and obtained an order in 2017 that contemplated that support was to be paid for H.S.L. The only relevant question at the variation stage was whether the father had proven that there had been a material change in circumstances since the 2017 Order, and specifically whether it was beyond the parties’ contemplation at that time that H.S.L. would take an extended period of time to complete her university studies.

Based on the record before the motion judge, had she conducted the proper inquiry, she should have found that the father had not established a material change in circumstances.

(2) Yes.

The Court found that it was an error for the motion judge to approve the order proposed by the father, which included a provision terminating child support for A.E.L. It was not clear whether this error was inadvertent or substantive. It was nevertheless an error.

If the motion judge’s intention was to terminate A.E.L.’s child support based on the father’s position that she was not enrolled in a full-time university program, no reasons were provided for this finding.

In any event, the evidence put forward by the father did not support an unequivocal finding that A.E.L. was not enrolled in full-time university studies.

Finally, the motion judge’s initial approach to determining whether child support should be continued for A.E.L. was the same as her approach to child support for H.S.L.

SHORT CIVIL DECISIONS

Donovan v. Waterloo (Police Services Board), 2022 ONCA 261

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

Counsel:

K. D., acting in person
D. Jarvis and C. Yiu, for the respondents

Keywords: Labour Law, Human Rights, Civil Procedure, Appeals, Temporary Stay

Andrews v. Pattison, 2022 ONCA 267

[Doherty, Huscroft and Harvison Young JJ.A.]

Counsel:

B. Martin, B. Moodie and J. Dobson, for the appellants
A. Plumb and J. Petrella, for the respondent

Keywords: Torts, Negligence, Medical Malpractice, Civil Procedure, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Lawless v. Anderson, 2011 ONCA 102, Dass v. Kay, 2021 ONCA 565

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.