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

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 20 to 24, 2023.

Continue Reading

In Palichuk v. Palichuk, a series of applications were brought following a family breakdown that resulted in changes to an elderly mother’s will, powers of attorney, and title to her property. The Court held that the mother had the legal capacity to manage her affairs, which was consistent with the uncontroverted expert opinion. Furthermore, because the mother was still alive, the Court held that it was not appropriate for it to determine the validity of any of the executed documents or whether undue influence being exerted over her. This was because any of the documents, such as her Will, could be changed at any time. Where a question is hypothetical or contingent on future events, no decision should be rendered until the hypothetical set of facts comes to fruition.

In Rebuck v. Ford, the Court upheld the motion judge’s decision to grant summary judgment dismissing a class action against Ford for alleged misleading advertising in respect of the mileage achieved by its cars. Ford was found to have followed the federal government’s guidelines in publishing its EnerGuide labels on its vehicles, even though there were higher standards used to determine fuel consumption prescribed by other countries, such as the U.S.

Other topics this week included the dismissal of a motion for an interlocutory injunction by a First Nations group in order to stop the cutting down of old trees at Osgoode Hall, an appeal that overturned a motion judge’s order precluding a limitations defence on a Rule 21 motion, and a family law matter.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferriera
Blaney McMurtry LLP
416.597.4895 Email

Table of Contents

Civil Decisions

Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122

Keywords: Aboriginal Law, Real Property, Expropriation, Infrastructure, Municipal Law, Heritage Properties, Osgoode Hall, Civil Procedure, Interim and Interlocutory Injunctions, Appeals, Leave to Appeal, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a), Haudenosaunee Development Institute v. Metrolinx, 2023 ONSC 1170, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446, Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (C.A.), Denison Mines Limited v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.), Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69

Canada (Attorney General) v. M.C., 2023 ONCA 124

Keywords: Property, Firearms, Regulation, Civil Procedure, Appeals, Interveners, Firearms Act, S.C. 1995, c. 39, Rules of Civil Procedure, r. 13.01, R. v. M.C. et. al., 2022 ONSC 6299, Butty v. Butty (2009), 98 O.R. (3d) 713 (C.A.), McIntyre Estate v. Ontario (Attorney General), 2001 CanLII 7972 (Ont. C.A.), Buccilli v. Pillitteri, 2014 ONCA 337, Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839

Palichuk v. Palichuk, 2023 ONCA 116

Keywords: Wills and Estates, Powers of Attorney, Capacity, Undue Influence, Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 2, 6, 22, 32, 38, 45, 49, 55, 66, 67, Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, Courts of Justice Act, R.S.O. 1990, c. C. 43, ss. 97, 133, Succession Law Reform Act, R.S.O., 1990, c. S. 26, s. 22, Rules of Civil Procedure, r. 14.05(3)(a), Leonard v. Zychowicz, 2022 ONCA 212, Re Skinner, [1970] 3 O.R. 35 (H.C.J.), Furfaro v. Furfaro (1986), 22 E.T.R. 241, 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753, Curtis v. Sheffield (1882), 21 Ch. D. 1, Duke of Marlborough v. Lord Godlophin (1750), Ves. Sen. 61, Y.P. v. M.L.S., 2006 MBCA 32, S.A. (Trustee of) v. M.S., 2005 ABQB 549, Brandon v. Brandon, [2001] O.J. No. 2986, aff’d [2003] O.J. No. 4593, Rubner v. Bistricer, 2018 ONSC 1934, Dempster v. Dempster, 2008 CanLII 2747 (Ont. S.C), Stern v. Stern, (2003) 49 E.T.R. (2d) 129 (Ont. S.C), Foley v. McIntyre, 2015 ONCA 382, Pecore v. Pecore, 2007 SCC 17, Vanier v. Vanier, 2017 ONCA 561, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, O’Meara v. Miller, 2021 ONSC 5919, McFlow Capital Corp. v. James, 2021 ONCA 753, Gary Anthony Bennett Professional Corporation v. Triella Corp., 2019 ONCA 225, BradJay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Brian A. Schnurr, Estate Litigation, loose-leaf, 2nd ed., vol. 2, (Toronto: Thomson Reuters Canada Limited, 2021)

Toussaint v. Canada (Attorney General), 2023 ONCA 117

Keywords: Health Law, Universal Health Care, Constitutional Law, Right to Life, Security of the Person, Charter Claims, International Law, Human Rights, Customary International Law, Discrimination, Administrative Law, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Defences, Limitation Periods, Jurisdiction, Limitations Act, 2002, S.O. 2002, c. 24, s.5, Canadian Charter of Rights and Freedoms, International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can T.S. 1976 No. 47. 6 I.L.M. 368, Rules of Civil Procedure, r. 21.01, Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, Kaynes v. BP p.l.c., 2021 ONCA 36, Clark v. Ontario (Attorney General), 2019 ONCA 311, Brozmanova v. Tarshis, 2018 ONCA 523, Salewski v. Lalonde, 2017 ONCA 515, Ridel v. Goldberg, 2017 ONCA 739, Skof v. Bordeleau, 2020 ONCA 729, Hopkins v. Kay, 2014 ONCA 514

Wang v. Li, 2023 ONCA 119

Keywords: Family Law, Civil Procedure, Vexatious Litigants, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43. s. 19(1)(b), Rules of Civil Procedure, r. 2.1, Bell v. Fishka, 2022 ONCA 683, Van Delst v. Hronowsky, 2022 ONCA 881, Chirico v. Szalas, 2016 ONCA 586, Overtveld v. Overtveld, 2022 ONCA 269

Rebuck v. Ford Motor Company , 2023 ONCA 121

Keywords: Contracts, Consumer Protection, Competition Law, False or Misleading Advertising, Civil Procedure, Class Proceedings, Summary Judgment, Competition Act, R.S.C. 1985, c. C-34, s. 1.1, Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A., s. 14, s. 17, s. 52(1), s. 52(1.1)(a), s. 52(4), Guidelines for Determination and Submission of Fuel Consumption Data for Fuel Consumption Labelling, Consumer Protection Act, C.Q.L.R. c. P-40.1, Richard v. Time Inc., 2012 SCC 8

Short Civil Decisions

Assayag-Shneer v. Shneer, 2023 ONCA 127

Keywords: Family Law, Divorce, Spousal Support, Civil Procedure, Expert Evidence, Costs, Evidence Act, R.S.O. 1990, c. E.23, Rules of Civil Procedure, Tariff A, item 26, Assayag-Shneer v. Shneer, 2023 ONCA 14

CIVIL DECISIONS

Haudenosaunee Development Institute v. Metrolinx , 2023 ONCA 122

[Sossin J.A. (Motion Judge)]

Counsel:

T. Gilbert, Z. Cynader, C. Carruthers, T. Dumigan, J. MacDonald and J. Martin for the moving party

S. Batner, B. Gray, S. Rogers, B. Greenaway and C. Puskas for the responding party

Keywords: Aboriginal Law, Real Property, Expropriation, Infrastructure, Municipal Law, Heritage Properties, Osgoode Hall, Civil Procedure, Interim and Interlocutory Injunctions, Appeals, Leave to Appeal, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a), Haudenosaunee Development Institute v. Metrolinx, 2023 ONSC 1170, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446, Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (C.A.), Denison Mines Limited v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.), Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69

Facts:

The moving party, Haudenosaunee Development Institute (“HDI”), was denied leave to appeal an order of the Divisional Court dated February 10, 2023, which denied an injunction against the responding party, Metrolinx, to prevent the removal of 11 trees on Metrolinx’s property located next to Osgoode Hall.

HDI then sought to extend the interim relief ordered by the Divisional Court on February 17, 2023, which was ordered pending the outcome of the Divisional Court leave to appeal motion. HDI sought to continue the interim injunction preventing Metrolinx from taking any further actions on the Osgoode Hall site until the Court disposed of its motion for leave to appeal from the order of the Divisional Court denying leave.

Metrolinx opposed the motion for a further interim injunction, arguing that HDI satisfied none of the criteria for an injunction, has not met the requirement of providing an undertaking for damages, and that there is no serious issue to be tried as appeals to the Court of Appeal are not available from the denial of a leave to appeal from the Divisional Court.

issues:

(1) Did HDI meet the test for an interlocutory injunction?

holding:

Motion dismissed.

reasoning:

(1) No.

The Court applied the test for an interlocutory injunction as set out in RJR MacDonald Inc. v. Canada. HDI must demonstrate that there is a serious issue to be tried; irreparable harm will result if the relief is not granted; and the balance of convenience favours HDI. Though strength on one prong of the test can make up for weakness on another, each prong must be met. The Court held that the requirement of a serious issue to be tried was not met.

Further, the Court held that the exception to the general rule against hearing appeals from leave to appeal decisions at the Divisional Court is a narrow one. The Court noted that exceptions include issues of jurisdiction and statutory rights such as procedural breaches. The Court concluded that the exception did not apply, nor did it extend, to considering the merits of leave to appeal motions, no matter how important the subject matter of those merits may be.


Canada (Attorney General) v. M.C., 2023 ONCA 124

[Sossin J.A. (Case Management Judge)]

Counsel:

J. Provart, J. Schneider, and J. Stuckey, for the appellant

M.C., C.H., D.J., B.M. and R.S., acting in person

J.P., for the proposed intervener

Keywords: Property, Firearms, Regulation, Civil Procedure, Appeals, Interveners, Firearms Act, S.C. 1995, c. 39, Rules of Civil Procedure, r. 13.01, R. v. M.C. et. al., 2022 ONSC 6299, Butty v. Butty (2009), 98 O.R. (3d) 713 (C.A.), McIntyre Estate v. Ontario (Attorney General), 2001 CanLII 7972 (Ont. C.A.), Buccilli v. Pillitteri, 2014 ONCA 337, Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839

facts:

In May 2020, the Governor in Council made an order changing the classification of certain firearms from “restricted” to “prohibited”. Those who had licenses to possess the newly-prohibited firearms received letters notifying them that their licenses were no longer valid. The underlying question was whether the Order and notification letter effectively revoked the licenses of individuals who had previously valid licenses. If a license is revoked, there is a right under s. 74(1) of the Firearms Act to bring a reference to a provincial court judge. The applicants launched references in the Ontario Court of Justice (“OCJ”) challenging the purported “revocation” of their licenses. Canada took the position that the change in classification was not a “revocation”, and so there was no jurisdiction for the OCJ to hear a reference. The application judge agreed with the applicants and found that the OCJ had jurisdiction to conduct a s. 74 hearing and to make disclosure orders for any information considered relevant.

Canada appealed, challenging jurisdiction of the OCJ to hear a reference case under the Firearms Act. JP, a person also in receipt of the notice, who brought a separate s. 74 application before the OCJ, sought to intervene in the appeal. JP’s s. 74 application in the OCJ in Ottawa has been adjourned pending the outcome of this appeal. JP argued that, having brought a similar initial s. 74 application, “but having had a very different procedural journey through the lower courts,” he could bring an additional perspective to the issues as they related to the scope of the OCJ jurisdiction on a s. 74 reference, as well as the right of disclosure in a s. 74 reference hearing.

issues:

(1) Should JP be granted intervener status in the appeal?

holding:

Motion dismissed.

reasoning:

(1) No.

The Court noted that on a motion to intervene as an added party under r. 13.01 of the Rules of Civil Procedure, the proposed party must show that they have an interest in the subject-matter of the proceeding, may be adversely affected by a judgment in the proceeding, or that there is a common issue of law or fact with one of the parties, and that they will not unduly delay the proceeding or prejudice the rights of the parties.

The Court noted that the test on this motion is discretionary, and relevant considerations include the nature of the case, the issues which arise, and the likelihood that the applicant make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

While the rules do not require a party seeking to intervene to have a direct interest in the very issue to be decided, the intervention is more likely to be granted where the appeal directly bears on the proposed party’s legal interests, and not simply a potential or parallel legal proceeding.

The Court noted that JP’s interest in the proceeding was shared by many others who brought s. 74 applications in relation to the notices sent by Canada. Many, if not all, of them have their interests similarly affected by the outcome of this appeal. Therefore, the Court held that the concern was not whether JP had an interest in the appeal; rather, the issue was whether JP brought any additional perspective to the appeal that merited intervention as a party.

The Court stated that the test for intervention is ultimately fact-specific and discretionary. Accordingly, it was relevant to consider the nature of the case, the issues which arise, and the likelihood that the applicant will make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties. The Court commented that Trotter J.A. dismissed a motion to intervene by an individual whose own case, which was before the Divisional Court, raised a similar issue to that before the Court of Appeal. Trotter J.A. reasoned that granting the individual party status would effectively bypass the Divisional Court for the sake of convenience.

The Court accepted that the decision of the appeal would impact JP’s s. 74 application, however, the Court could not conclude that JP was in a meaningfully different position than the respondents, or the other (over 50) individuals in Ontario who brought s. 74 applications at the OCJ. The Court held that to the extent JP had a different experience than others who are similarly situated, granting intervention on that basis would expand the record in the appeal, and present other potential evidentiary problems.


Palichuk v. Palichuk, 2023 ONCA 116

[Doherty, Feldman and Trotter J.A.]

Counsel:

J. Figliomeni and Q. Giordano, for LP

J. Waxman and J. Chumak, for SP

M.J. Sweatman, for NP

Keywords: Wills and Estates, Powers of Attorney, Capacity, Undue Influence, Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 2, 6, 22, 32, 38, 45, 49, 55, 66, 67, Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, Courts of Justice Act, R.S.O. 1990, c. C. 43, ss. 97, 133, Succession Law Reform Act, R.S.O., 1990, c. S. 26, s. 22, Rules of Civil Procedure, r. 14.05(3)(a), Leonard v. Zychowicz, 2022 ONCA 212, Re Skinner, [1970] 3 O.R. 35 (H.C.J.), Furfaro v. Furfaro (1986), 22 E.T.R. 241, 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753, Curtis v. Sheffield (1882), 21 Ch. D. 1, Duke of Marlborough v. Lord Godlophin (1750), Ves. Sen. 61, Y.P. v. M.L.S., 2006 MBCA 32, S.A. (Trustee of) v. M.S., 2005 ABQB 549, Brandon v. Brandon, [2001] O.J. No. 2986, aff’d [2003] O.J. No. 4593, Rubner v. Bistricer, 2018 ONSC 1934, Dempster v. Dempster, 2008 CanLII 2747 (Ont. S.C), Stern v. Stern, (2003) 49 E.T.R. (2d) 129 (Ont. S.C), Foley v. McIntyre, 2015 ONCA 382, Pecore v. Pecore, 2007 SCC 17, Vanier v. Vanier, 2017 ONCA 561, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, O’Meara v. Miller, 2021 ONSC 5919, McFlow Capital Corp. v. James, 2021 ONCA 753, Gary Anthony Bennett Professional Corporation v. Triella Corp., 2019 ONCA 225, BradJay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Brian A. Schnurr, Estate Litigation, loose-leaf, 2nd ed., vol. 2, (Toronto: Thomson Reuters Canada Limited, 2021)

facts:

This case involved a dispute between LP, her sister SP, and their elderly mother, NP. On September 11, 2020, NP executed four instruments (collectively, the “impugned instruments”): (a) a will that disinherited LP and named SP as her main beneficiary, (b) a continuing power of attorney (“POA”) for property, naming SP as the sole attorney, (c) a POA for personal care, naming SP as the sole attorney, and (d) a transfer and declaration of trust transferring NP’s home to SP as a bare trustee. LP brought an application to declare NP incapable of managing her property or personal care. LP also sought the “opinion, advice, and direction of the Court” respecting the validity of the impugned instruments. NP then brought her own application to have LP removed as a joint bank account holder on her account. SP brought an application for a guardianship order.

After her husband’s passing in 2016, NP appointed LP and SP as co-attorneys for property and personal care. She also executed a will in which LP and SP were named as joint executors and beneficiaries. Things started to go wrong between the parties in 2017. LP submitted that NP does not have capacity to look after her affairs and that SP was not suitable to be a guardian. SP stated that LP disengaged from the family years ago, and denied all allegations that she had influenced NP’s decisions or tried to keep NP and LP from seeing one another. NP submitted that she does not need a guardian for personal care or property. Even if she did, she stated that she would want it to be SP. Further, NP’s will provided that she disinherited LP because she believed that she stole money from her. However, it was later proven that this was a mistaken belief.

On April 12, 2021, a geriatric psychiatrist, Dr. S, conducted a capacity assessment for NP. Dr. S prepared a capacity assessment report which found that NP had the capacity to manage property with some assistance. Furthermore, she was capable of managing finances, provided that she was given transportation to the bank. Dr. S also found that NP had the capacity to deal with shelter, clothing, and hygiene. Lastly, Dr. S concluded that NP had the capacity to grant and revoke POAs for both property and personal care.

Dr. S met with NP twice more, resulting in a second capacity assessment report. This time, he found that NP had little recollection of executing the impugned instruments. He further found that NP did not understand the concept of transferring property in trust, but was nonetheless content with the transfer of her home made to SP. Lastly, Dr. S found that NP understood why she disinherited LP, but that she also knew that the “Will is not written in stone” and that she would be willing to revise it “if [LP] treated her better.” Dr. S concluded that, at the time of his assessment, and in September of 2020, NP met the governing test for testamentary capacity.

The application judge held that NP did have capacity, and that it was not appropriate to determine whether she was unduly influenced by SP.

issues:

(1) Did the application judge err in determining that NP had capacity?

(2) Did the application judge err in failing to address the issue of undue influence?

(3) Did the application judge err in his costs award?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court noted that s. 2 of the Substitute Decisions Act (the “SDA”) presumes that a person is capable. LP did not retain an expert to conduct a capacity assessment on NP, so the expert evidence of Dr. S was uncontroverted. In addition, the application judge found that Dr. S applied the correct tests for capacity from the SDA and, based on the evidence, there was no basis for a guardianship order.

LP argued that the application judge failed to determine whether NP had capacity on the date of executing the impugned instruments. The Court noted that only capacity at the time of the application is relevant for a guardianship application. LP also submitted that the application judge erred in relying on the evidence of Dr. S because it was premised on the mistaken belief that LP stole money from NP. The Court rejected this argument, stating that this premise did not alter the opinion. A person can be mistaken and still be capable.

Overall, the Court upheld the decision of the application judge. It noted that a judge’s findings of fact based on the acceptance of expert evidence is entitled to deference and should not be disturbed in the absence of a palpable and overriding error, which did not exist in this case.

(2) No.

The application judge appreciated the fundamental distinction between capacity and undue influence. Having found that NP had capacity, the Court agreed with the application judge in that there was no need to address the issue of undue influence. The Court noted that NP has the capacity to change the impugned instruments at any time, and therefore, to question their validity at this time is a hypothetical exercise. The Court noted that, for public policy reasons, hypothetical or contingent questions should not be entertained by the courts. Otherwise, the courts would be inundated with litigation that is hypothetical during the lifetime of the testator, with the potential for re-litigation after their death. This would be at great expense to the litigants and a waste of valuable judicial resources.

Furthermore, and in general, courts do not provide their “opinion, advice, or direction”. This applied to determining the validity of a will where the testator is not deceased because a will “speaks from death”. The only exception is where the validity of the will can properly determine current rights and obligations. The Court stated that, though it did not impact the conclusion, the application judge ought not to have provided his opinion, advice or direction on what could have happened if NP did not have capacity because, as noted by Dr. S, NP could change her will at any time. The Court noted that the same logic applied to the POAs and the property transfer being held in trust. It is premature to determine the validity of any of the impugned instruments.

(3) No.

The application judge made a costs award against LP for $100,224.11. LP argued that this was excessive in the circumstances. The Court noted that a costs award should only be set aside if the judge has made an error in principle or if the costs award is plainly wrong. Further, because the substantive appeal was dismissed, LP required leave to appeal the costs award. The Court refused to grant leave in this case for two reasons. First, LP’s Bill of Costs was similar to the other parties. Second, and most importantly, once the capacity assessment reports of Dr. S were served, it was very likely that NP would be found capable.


Toussaint v. Canada (Attorney General), 2023 ONCA 117

[Huscroft, Coroza and Favreau JJ.A.]

Counsel:

D. Tyndale and A. Gafar, for the appellant

A.C. Dekany and J. Yap, for the respondent

Keywords: Health Law, Universal Health Care, Constitutional Law, Right to Life, Security of the Person, Charter Claims, International Law, Human Rights, Customary International Law, Discrimination, Administrative Law, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Defences, Limitation Periods, Jurisdiction, Limitations Act, 2002, S.O. 2002, c. 24, s.5, Canadian Charter of Rights and Freedoms, International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can T.S. 1976 No. 47. 6 I.L.M. 368, Rules of Civil Procedure, r. 21.01, Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, Kaynes v. BP p.l.c., 2021 ONCA 36, Clark v. Ontario (Attorney General), 2019 ONCA 311, Brozmanova v. Tarshis, 2018 ONCA 523, Salewski v. Lalonde, 2017 ONCA 515, Ridel v. Goldberg, 2017 ONCA 739, Skof v. Bordeleau, 2020 ONCA 729, Hopkins v. Kay, 2014 ONCA 514

facts:

The respondent lawfully entered Canada as a visitor from Grenada in 1999. The action arose out of a decision to deny the respondent healthcare coverage pursuant to the Interim Federal Health Program between 2009 and 2013. The respondent brought an application for judicial review to the Federal Court of Canada, appealed to the Federal Court of Appeal, and sought (and was refused) leave to appeal to the Supreme Court of Canada. Throughout this legal process, the respondent suffered serious and irreversible health consequences.

In 2013, the respondent made a submission to the United Nations Human Rights Committee (“UNHRC”) alleging that Canada had violated several obligations under international law including the respondent’s right to life and non-discrimination under the International Covenant on Civil and Political Rights (“ICCPR”). In 2018, the UNHRC stated that Canada had violated the respondent’s right to life recognized in the ICCPR and that Canada was required to provide the respondent with an effective remedy, including compensation and taking all steps necessary to prevent similar violations in the future. Canada disagreed with the UNHRC’s views and stated that it would not follow its recommendations.

The respondent commenced an action against the federal government on October 14, 2020. Her action included several causes of action grounded in the Canadian Charter of Rights and Freedoms, customary international law, and administrative law. She seeks several forms of relief, including general and special damages in the amount of $1,200,000.

The appellant, Canada, brought a motion to strike the proceeding under r. 21.01 of the Rules of Civil Procedure. The motion judge found it was not plain and obvious that the respondent’s action was doomed to fail. The appellant challenged the motion judge’s order concerning the limitations and jurisdiction issues.

issues:

(1) Did the motion judge err in precluding the appellant from raising the limitations defence in its Statement of Defence?

(2) Did the motion judge err in concluding that Ontario had jurisdiction?

holding:

Appeal allowed, in part.

reasoning:

(1) Yes

The Court held that the motion judge erred when he declared that the claim was not statute-barred pursuant to the Limitations Act, 2002, and precluded the appellant from raising a limitations defence at trial.

The Court noted that limitations issues should rarely be decided on pre-trial motions to strike under r. 21.01 of the Rules of Civil Procedure. According to the Court, factfinding is required to assess whether a claim is discovered under s. 5 of the Limitations Act, 2002, but factfinding is not contemplated on a pleadings motion. Accordingly, it is appropriate to address limitations issues on a pleadings motion only “where pleadings are closed and the facts relevant to the limitation period are undisputed”.

The Court found that the motion judge had erred when, instead of confining himself to this issue, the motion judge went beyond the confines of the relief sought on the motion and made a finding against the appellant that the action was not statute-barred. The Court found it difficult to conceive of a case where it would ever be appropriate to make such a finding against a moving party on a r. 21 motion.

The Court found that the facts surrounding the limitations issue were disputed and that the motion judge was not in a position to make a binding determination of fact on a pleadings motion. The Court held that the motion judge’s conclusion that it was not plain and obvious that the respondent’s action was statute-barred pursuant to the Limitations Act, 2002 did not entail the further conclusion that the action was timely.

(2) No

The motion judge had rejected the appellant’s argument that the action was in essence a matter of judicial review within the exclusive jurisdiction of the Federal Court. The appellant argued that the motion judge was asked only to dismiss the claim under r. 21.01(3)(a) of the Rules of Civil Procedure, but went further by ruling that the action was within the jurisdiction of the Ontario court.

The Court rejected the appellant’s arguments, and found that jurisdiction was an either/or concept: the decision not to dismiss the claim on the basis that it was beyond the jurisdiction of the Ontario court necessarily meant that it was within the jurisdiction of the Ontario court.
The Court held that the order allowed the action to proceed in the Superior Court of Justice in Ontario, and consequently the appellant was precluded from continuing to dispute the Ontario court’s jurisdiction over the subject-matter of the action.


Wang v. Li, 2023 ONCA 119

[Brown, Sossin and Copeland JJ.A.]

Counsel:

M.L., acting in person

F.W., acting in person

Keywords: Family Law, Civil Procedure, Vexatious Litigants, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43. s. 19(1)(b), Rules of Civil Procedure, r. 2.1, Bell v. Fishka, 2022 ONCA 683, Van Delst v. Hronowsky, 2022 ONCA 881, Chirico v. Szalas, 2016 ONCA 586, Overtveld v. Overtveld, 2022 ONCA 269

facts:

The moving party, ML, sought to quash the appeal brought by the responding party, FW. The appeal was from an endorsement of Kraft J. granting an Order in favour of ML. FW made several allegations against ML, including that she committed immigration fraud, theft of family property, and contempt of court.

The motion judge found that none of FW’s allegations were proven by the evidence. She found that the allegations were vindictive, unfounded, and made without regard for the damage caused to ML. The motion judge also stated that the relief FW sought was not within the jurisdiction of the court. She advised that if he continued bringing such allegations against ML, ML could bring a motion asking the court to declare him a vexatious litigant. Finally, the motion judge noted that ML was not in breach of any court order, so all the contempt of court relief sought was dismissed, and that FW had not raised spousal support in his application, nor had he established a prima facie case for spousal support. The only portion of the motion she granted was FW’s request that the preservation order requiring ML not to encumber or sell the matrimonial home stay in force pending the next settlement conference, but she dismissed the request to make a preservation order in connection with the investment property.

FW sought leave to appeal the endorsement to the Divisional Court, which dismissed the motion for leave. FW appealed to the Court.

issues:

(1) Did the Court have jurisdiction over this proposed appeal?

holding:

Motion granted.

reasoning:

(1) No. FW’s appeal was therefore quashed.

ML argued that FW’s appeal be quashed because it lacked merit and because the motivation for pursuing the appeal was to delay the family proceeding and his obligation to pay the substantial cost order made by the motion judge. ML argued this appeal was a continuation of FW’s frivolous and vexatious conduct motivated by his desire to destroy ML financially and emotionally and constituted an abuse of process.

As the Divisional Court concluded in its decision on the motion for leave to appeal, FW’s Notice of Appeal did not raise potential legal errors, but rather sought to re-litigate the motion judge’s findings of fact. The Court found that permitting FW to pursue his appeal would constitute an abuse of process and the motion to quash the appeal was granted on that basis.

ML also argued that the Court had no jurisdiction over the appeal, as it was an appeal from an interlocutory rather than a final order. In Chirico v. Szalas, the Court confirmed that orders dismissing a contempt motion are final only where there were no ongoing proceedings and the party seeking the order had no other means of obtaining relief arising out of the failure to abide by the terms of the order.

The Court noted that in this case, the underlying proceedings were ongoing. Accordingly, the motion judge’s contempt order did not fall into the category of cases where a motion decision dismissing allegations of contempt may be treated as a final order. Part of the relief ordered by the motion judge in her endorsement was the appointment of a case management judge to deal with various pre-trial matters which remained pending in this litigation. Consequently, the Court had no jurisdiction over FW’s appeal.


Rebuck v. Ford Motor Company, 2023 ONCA 121

[MacPherson, Hoy and Coroza JJ.A.]

Counsel:

I. Marks, D. Taub, J. Jamil, M. Peerless, and E. Assini, for the appellant

H. M. DesBrisay, J. Lawrie, C. Beagan-Flood, and L. Dougan, for the respondents

Keywords: Contracts, Consumer Protection, Competition Law, False or Misleading Advertising, Civil Procedure, Class Proceedings, Summary Judgment, Competition Act, R.S.C. 1985, c. C-34, s. 1.1, Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A., s. 14, s. 17, s. 52(1), s. 52(1.1)(a), s. 52(4), Guidelines for Determination and Submission of Fuel Consumption Data for Fuel Consumption Labelling, Consumer Protection Act, C.Q.L.R. c. P-40.1, Richard v. Time Inc., 2012 SCC 8

facts:

This appeal concerned a certified class action relating to the fuel consumption estimates affixed to vehicles manufactured by the respondents. The class claim pertains to the EnerGuide labels affixed to certain of the respondents’ vehicles in 2013 and 2014 that were false or misleading under the Competition Act and the Consumer Protection Act, 2002.
The federal government’s EnerGuide label program helps consumers compare energy efficiencies when purchasing high-energy-use products. For most products, EnerGuide labelling is required by federal regulation. In extending the use of EnerGuide labels to the sale or lease of new vehicles, the federal government had two objectives: to help consumers compare the fuel consumption of different vehicles and models before making a purchase or lease decision and to encourage fuel-efficient driving.

The EnerGuide label of the respondents (collectively “Ford”) for 2014 set out three core pieces of information: (1) the estimated fuel consumption for city driving was 24 miles per gallon (“mpg”); (2) the estimated fuel consumption for highway driving was 36 mpg; and (3) the estimated annual fuel cost was $2,600. In their marketing materials, Ford repeated the estimated fuel consumption for city and highway driving set out in the EnerGuide label. The estimates were accompanied by the statement: “Fuel consumption ratings based on Transport Canada approved test methods. Actual fuel consumption will vary”.

When the appellant leased a 2014 Ford Edge SUV, he noticed that the on-board fuel consumption display was showing only 23 miles per gallon (“mpg”) while highway driving. Class counsel discovered that Ford used a 2-Cycle Test prescribed by Department of Natural Resources (“NRCan”) for its 2013 and 2014 Canadian vehicles, while using the 5-Cycle Test adopted by the United States Environmental Protection Agency for its American vehicles. At the time the appellant leased his vehicle, the Guidelines required the use of the data from the 2-Cycle Test.

In early 2016, the appellant filed a class action alleging breaches of misleading advertising provisions and sought $1.5 billion as compensation for the proposed class for about 600,000 persons in Canada who purchased or leased a 2013 or 2014 Ford vehicle. The class action was certified in 2018.

After certification, both the appellant and Ford brought competing motions for summary judgment to resolve the matter. On June 15, 2022, Belobaba J. dismissed the appellant’s motion for summary judgment and granted Ford’s cross-motion for summary judgment. The result was the dismissal of the class action in its entirety. Belobaba J. identified three common issues and decided these issues in favour of the respondent and granted its cross-motion for summary judgment. The appellant contended that the motion judge erred in reaching all three of these conclusions.

issues:

(1) Did the motion judge err in concluding that Ford did not contravene s. 52 of the Competition Act?

(2) Did the motion judge err in concluding that Ford did not contravene ss. 14 and 17 of Ontario’s Consumer Protection Act and parallel provisions of provincial consumer protection legislation?

(3) Did the motion judge err in concluding that the class members were not entitled to damages under s. 36(1) of the Competition Act, s. 18(2) of Ontario’s Consumer Protection Act, and the parallel provisions of the consumer protection legislation in other provinces?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court held that the information Ford provided on its EnerGuide labels and in its marketing materials complied with NRCan’s mandatory directions and guidelines. In the case of new vehicles, EnerGuide labels were affixed pursuant to a Memorandum of Understanding (“MOU”) which, based on Ministerial powers provided under federal legislation, NRCan entered into with the Motor Vehicle Manufacturers’ Association, which included Ford.

The Court found that Ford was carefully complying with the MOU and the Guidelines, not, as the appellant asserts, “knowingly or recklessly” making a representation to the public that is false or misleading in a material respect. The Court further noted that a person who contravenes s. 52(1) of the Competition Act is guilty of an offense, and the federal government would not have intended to criminalize those who complied with its Guidelines regarding EnerGuide labels.

As to whether the representations were false or misleading, the Court found that the motion judge correctly applied an objective test by considering “the general impression conveyed by the EnerGuide Label to the average car-buyer.” The Court held that the motion judge did not impermissibly stray into a subjective analysis or require proof, contrary to s. 52(1.1) of the Competition Act, that anyone was deceived or misled.

(2) No.

The motion judge found that the appellant had “not established on a balance of probabilities that any of the representations on the face of the EnerGuide Label or that the overall impression conveyed by the Label was false, misleading or deceptive, even under the most generous reading of the provincial ‘unfair practice’ provisions.” He rejected the appellant’s argument that Ford failed to state material facts, and their failure to do so deceived or tended to deceive, by not providing supplemental disclosure to customers to the effect that: (1) the ratings on the label were provided for comparison purposes and not to predict actual fuel consumption; (2) the ratings, based on the 2-Cycle Test, and not the 5-Cycle Test, understated fuel consumption under real-world driving conditions by some 15%; and (3) the ratings on the label could only be achieved with fuel-efficient driving and not normal “real world” driving.

The Court held that there was no deceptive non-disclosure in breach of s. 14 of the Consumer Protection Act or the parallel provisions of the consumer protection legislation in six other provinces. Further, the Court found the motion judge did not err in finding that the absence of additional disclosure would not deceive or tend to deceive the average car-buying consumer.

(3) No.

The Court did not address the question of damages as the resolution of the first two issues fell in favour of the respondents.


SHORT CIVIL DECISIONS

Assayag-Shneer v. Shneer, 2023 ONCA 127

[Miller, Zarnett and Coroza JJ.A.]

Counsel:

H.T. Strosberg, K.C. and E. Betts, for the appellant

J.K. Hannaford, for the respondent

Keywords: Family Law, Divorce, Spousal Support, Civil Procedure, Costs, Reasonable Costs, Expert Evidence, Costs, Evidence Act, R.S.O. 1990, c. E.23, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Tariff A, item 26, Assayag-Shneer v. Shneer, 2023 ONCA 14


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:
Email this postTweet this postLike this postShare this post on LinkedIn
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 over 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 over two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, partnership, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles complex estates and matrimonial litigation involving disputes over property and businesses, as well as professional discipline and professional negligence matters for various types of professionals. In addition, John represents amateur sports organizations in contentious matters, and also advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.