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Good evening.

Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 27, 2023. It was a busy week at the Ontario Court of Appeal with many lengthy decisions released.

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In Ontario (Attorney General) v. Trinity Bible Chapel, the appellants were charged with contravening several of Ontario’s COVID-19 regulations imposing capacity restrictions on indoor and outdoor religious gatherings in late 2020 and early 2021. The appellants brought motions to set aside court orders made against them on the basis that the authorizing regulations infringed s. 2 of the Canadian Charter of Rights and Freedoms. The motion judge found the challenged regulations infringed the appellants’ right to freedom of religion under s. 2(a) of the Charter but were justified as a reasonable limit on that right in a free and democratic society. The appellants challenged the motion judge’s treatment of the expert evidence, her decision not to rely on “hindsight” evidence in evaluating the regulations, her decision not to consider the other alleged Charter breaches, and her conclusion that the regulations were justified under s. 1. The Court dismissed the appeal and found the motion judge was entitled to rely on all, part, or none of the expert evidence. The Court also saw no error in the motion judge’s overall conclusion that the challenged regulations were justified under s. 1 of the Charter.

In Park Lawn Corporation v. Kahu Capital Partners Ltd. the Court considered an appeal from a motion judge’s decision refusing to strike the respondent’s counterclaim for defamation in an Anti-SLAPP motion. The Court agreed with the motion judge that the public comments made about the respondent harmed the respondent’s reputation. Further, the Court found that the motion judge had correctly weighed the public interest of the comments against the corresponding harm that they caused. Finally, the Court agreed that the anti-SLAPP motion was inspired by strategic and tactical decisions and accordingly refused the appeal.

The Court in Sinclair v. Amex Canada Inc. considered whether the motion judge had erred in applying the fourth factor of the Van Breda test of whether a contract connected with the dispute was made in Ontario. The majority of the Court found that the motion judge had erred by failing to consider each objecting defendants’ position in disputing jurisdiction. In other words, the motion judge erred in accepting that because one defendant did not object to the jurisdiction of Ontario, all defendants were subject to the same jurisdiction. The Court further found that the motion judge had erred in failing to find that, in the event there was a presumptive connecting factor, the appellants had failed to rebut it. Young J.A. provided a concurring decision. Young J.A. disagreed with the majority that the Ontario contract could not connect all of the appellants to Ontario. However, Young J.A. agreed that the motion judge had erred in failing to find that the presumptive connection was rebutted by the appellants.

In Burr v. Tecumseh Products of Canada Limited, the respondents started an action against Venmar and Fasco for a defective ventilator that overheated, exploded and caught fire resulting in serious damage. The ventilator was manufactured and designed by Venmar and the motor was designed and manufactured by Fasco. The trial judge had found Venmar liable for negligent design and that Fasco was entitled to be indemnified by Venmar pursuant to their contract. The Court found that the trial judge did not make any palpable or overriding error and committed no legal error in his conclusions that Venmar was liable for negligent design despite not finding Venmar not liable for its duty to warn the respondents. The Court also held that the trial judge reasonably concluded that the indemnity provision in the contract was operative, such that if Fasco had been liable to the respondents, Venmar was contractually bound to indemnify Fasco for any damages payable to the respondents. However, the Court found that the trial judge failed to take into account the indemnity provisions in the contract when exercising his discretion on costs and remitted the issue of costs payable to Fasco to the trial judge.

Other topics this week include a request for leave to appeal from a motion judge’s order made under Companies’ Creditors Arrangement Act proceedings, an appeal from a motion judge’s decision refusing to strike a counterclaim for defamation in an Anti-SLAPP action, a motion to the Court alleging reasonable apprehension of institutional bias, seeking to disqualify the panel of the Court from hearing any matter related to the ongoing appeals related to the trees at Osgoode Hall, among others.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.597.4895 Email

Table of Contents

Civil Decisions

Sinclair v. Amex Canada Inc., 2023 ONCA 142

Keywords: Tort, Negligence, Personal Injury, Liability, Contract, Jurisdiction, Jurisdiction simplicitor, Presumptive Connecting Factors, Real and Substantial Connection, forum non conveniens, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 11.25 (3)(b),  Alberta Rules of Court, Alta Reg. 124/2010, Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, Jean-Gabriel Castel & Janet Walker, Castel & Walker: Canadian Conflict of Laws, loose-leaf (2022-Rel. 96), 6th ed. (Markham, ON: LexisNexis Canada, 2005), Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Hydro Aluminium Rolled Products GmbH v. MFC Bancorp Ltd., 2021 BCCA 182, Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Bazley v. Curry, [1999] 2 S.C.R. 534, Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736, Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, Dilkas v. Red Seal Tours Inc. (Sunwing Vacations), 2010 ONCA 634, Di Gregorio v. Sunwing Vacations Inc., 2018 ONCA 655, R. v. Mian, 2014 SCC 54, Quan v. Cusson, 2009 SCC 62, Hydro Aluminium Rolled Products GmbH v. MFC Bancorp Ltd., 2021 BCCA 182, Sakab Saudi Holding Company v. Jabri, 2022 ONCA 496, Forsythe v. Westfall, 2015 ONCA 810, Tamminga v. Tamminga, 2014 ONCA 478, Gajraj v. DeBernardo (2002), 60 O.R. (3d) 68 (C.A.), Doyle v. Zochem Inc., 2017 ONCA 130, Hague v. Hague, 2022 BCCA 325, R. v. G.F., 2021 SCC 20, Dreesen v. Dreesen, 2021 ONCA 557, Kringhaug v. Men, 2022 BCCA 186, Henderson v. The Manitoba Public Insurance Corporation, 2022 MBCA 57, Zhao v. Fang, 2022 BCCA 227, Flying Frog Trading Co., Ltd. v. Amer Sports OYJ, 2018 BCCA 384, Saskatchewan Power Corporation v Mitsubishi Power Canada Ltd., 2022 SKQB 147, Toews v. Grand Palladium Vallarta Resort & Spa, 2016 ABCA 408, Mantini v. Smith Lyons LLP (2003), 64 O.R. (3d) 505 (C.A.), Lawrence v. Toronto Humane Society (2006), 271 D.L.R. (4th) 329 (Ont. C.A.), Kitchener-Waterloo Real Estate Board Inc. v. Ontario Regional Assessment Commissioner, Region No. 21 (1986), 56 O.R. (2d) 94 (H.C.), Toews v. First Choice Canada Inc (Signature Vacations), 2016 ABQB 130, Slattery (Trustee Of) v. Slattery, [1993] 3 S.C.R. 430, Nowegijick v. The Queen, [1983] 1 S.C.R. 29, Colavecchia v. The Berkeley Hotel, 2012 ONSC 4747

Johwel Investments Inc. v. Welton, 2023 ONCA 132

Keywords: Real Property, Property Rights and Interests, Trust, Bare Trustee, Judgment Creditor, Trident Holdings Ltd. v. Danand Investments Ltd. (1988), 64 O.R. (2d) 65 (C.A.), John Sopinka, Mark A Gelowitz and W. David Rankin, Sopinka and Gelowitz on the Conduct of an Appeal, 4th ed. (LexisNexis, 2018, Toronto), at §1.11

Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 144

Keywords: Property Rights, Expropriation, Infrastructure, Municipal Law, Heritage Properties, Osgoode Hall, Civil Procedure, Interim and Interlocutory Injunctions, Reasonable Apprehension of ‘Institutional Bias’, Jurisdiction, Appeals, Leave to Appeal, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 6(1)(b), s. 7(5), s. 19(1)(b), s. 101, Law Society of Ontario v. Metrolinx, 2023 ONSC 1169, Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Hendrickson v. Kallio, [1932] O.R. 675, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, Soberman Isenbaum Colomby Tessis Inc. v. St. James Securities Inc. (2002), 60 O.R. (3d) 155 (C.A.), Ontario v. Shehrazad Non-Profit Holding Inc., 2007 ONCA 267, Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, Ontario Medical Association et al. v. Miller (1976), 14 O.R. (2d) 468 (C.A.), Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784

Libfeld v. Libfeld , 2023 ONCA 128

Keywords: Business Law, Partnerships, Fiduciary Duty, Oppression, Financing of Transactions, Vendor-Takeback Mortgages, Compliance with Orders, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52

Burr v. Tecumseh Products of Canada Limited, 2023 ONCA 135

Keywords: Tort, Negligence, Duty to Warn, Duty of Care, Contract, Product Liability, Indemnification, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rankin’s Garage & Sales v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587, Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, Housen v. Nikolaisen, 2002 SCC 33, [2022] 2 S.C.R. 235, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] S.C.R. 303, Ford Motor Company of Canada, Ltd. v Ontario Municipal Employees, 2006 CanLII 7665 (Ont. C.A.), 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184, 134 O.R. (3d) 641, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, 450 D.L.R. (4th) 181, Lambert v. Lastoplex Chemicals, [1972] S.C.R 569, Labrecque v. Saskatchewan Wheat Pool, (1977), 78 D.L.R. (3d) 289 (Sask. Q.B.), Ruegger v. Shell Oil Co. of Can. Ltd., [1964] 1 O.R. 88 (H.C.), Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, Nicholson v John Deere Ltd. (1986), 58 O.R. (2d) 53 (S.C.), 1986 CarswellOnt 965, Price v. Smith & Wesson Corp., 2021 ONSC 8471, Kreutner v. Waterloo Oxford Co-operative Inc. (2000), 50 O.R. (3d) 140 (C.A.), St. Isidore Co-op Limited v. AG Growth International Inc., 2020 ABCA 447, Rentway Canada Ltd./Ltee v. Laidlaw Transport Ltd. (1989), 49 C.C.L.T. 150 (Ont. H.C.), Ragoonanan Estate v. Imperial Tobacco Canada Ltd., 51 O.R. (3d) 603 (S.C.), Voss v. Black & Decker Mfg. Co. (1983), 450 N.E. 2d 204, at p. 208 (N.Y.C.A.), Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, Western Processing & Cold Storage Ltd. v. Hamilton Construction Company Ltd. (1965), 51 D.L.R. (2d) 245 (Man. C.A.), Hollis v. Down Corning Corp., [1995] 4 S.C.R. 634, Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 CanLII 307 (SCC), [1997] 3 S.C.R. 1210, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, Plas-Tex Canada Ltd. v. Dow Chemical of Canada Ltd., 2004 ABCA 309, 245 D.L.R. (4th) 650, Betker v. Williams, 86 D.L.R. (4th) 395, Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), Coventree Inc. v. Lloyds Syndicate 1221 (Millenium Syndicate), 2011 ONSC 6660, Zesta Engineering Ltd. v. David Cloutier, 2002 CanLII 25577 (Ont. C.A.), 21 C.C.E.L. (3d) 161, Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 75 O.R. (3d) 638 (C.A), McDowell v. Barker, 2012 ONCA 827, Alie v. Bertrand & Frere Construction Co. Ltd., 62 O.R. (3d) 345 (C.A.), Darling v. Kay (1993), 15 O.R. (3d) 299 (Gen. Div.), Xpert Credit Control Solutions Inc. v. Borges, 2015 ONSC 6505, United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, Bossé v. Mastercraft Group Inc., 123 D.L.R. (4th) 161, 7550111 Canada Inc. v. Charles, 2020 ONCA 505, Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2022 ONCA 411, West Van Holdings Ltd. v. Economical Mutual Insurance Company, 2019 BCCA 110

Urbancorp Inc. v. 994697 Ontario Inc., 2023 ONCA 126

Keywords: Bankruptcy and Insolvency, Corporate Restructuring, Creditor’s Rights, Chose in Actions, Assignment, Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-38, s. 13 and s. 45, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248 and s. 255, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 96, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Assignments and Preferences Act, R.S.O. 1990, c. A. 33, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b) and s. 19(1)(b), Canada Business Corporations Act, R.S.C. 1985, c. C-44, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Essar Steel Algoma (Re), 2016 ONCA 138, Redfern Resources Ltd. (Re), 2011 BCCA 333, Monarch Land Limited v. CIBC Mortgages Inc., 2014 ABCA 143, Sandhu v. MEG Place LP Investment Corporation, 2012 ABCA 91, Hemosol Corp. Re, 2007 ONCA 124, Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, Dal Bianco v. Deem Management Services Ltd., 2020 ONCA 585, Ting (Re), 2021 ONCA 425, Rusinek & Associates Inc. v. Arachchilage, 2021 ONCA 112, Kelvin Energy Ltd. v. Lee, [1992] 3 S.C.R. 235, Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, 1186708 Ontario Inc. v. Gerstein, 2016 ONCA 905, Shaw Estate v. Nichol Island DevelopmentIncorporated, 2009 ONCA 276, Toyota Canada Inc. v. Imperial Richmond Holdings Ltd. (1993), 140 A.R. 1 (K.B.), Nortel Networks Corporation (Re), 2016 ONCA 332, Urbancorp Toronto Management Inc. (Re), 2022 ONCA 181

Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129

Keywords: Defamation, Motions, Anti-SLAPP Motions, Harm, Damages, Protection of Public Participation Act, 2015, S.O. 2015, c. 23, s. 137.1, 137.2(2), Courts of Justice Act, R.S.O. 1990, c. C.43(“CJA”), 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Bent v. Platnick, 2020 SCC 23, Tamming v. Paterson, 2021 ONSC 8306, Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, Bangash v. Patel, 2022 ONCA 763, Levant v. De Melle, 2022 ONCA 79, Lascaris v. B’nai Brith Canada, 2019 ONCA 163, Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), “Canadian Anti-SLAPP Laws in Action” (2022) 100:2 Can. B. Rev. 186

Celestini v. Shoplogix Inc., 2023 ONCA 131

Keywords: Employment Law, Wrongful Dismissal, Notice Period, Reasonable Notice, Changed Substratum Doctrine, Damages Award, Bonus Payment, Employment Standards Act, 2000, S.O. 2000, c. 41, Machtinger v HOJ Industries Ltd., [1992] 1 S.C.R. 986, Wallace v. Toronto-Dominion Bank (1983), 41 O.R. (2d) 161 (C.A.), MacGregor v. National Home Services, 2012 ONSC 2042, Miller v. Convergys CMG Canada Limited Partnership, 2013 BCSC 1589, 10 C.C.E.L. (4th) 187, Schmidt v. AMEC Earth & Environment et al., 2004 BCSC 1012 , Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, Rasanen v. Lisle-Metrix Ltd. (2002), 17 C.C.E.L. (3d) 134 (Ont. S.C.), Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, 449 D.L.R. (4th) 583, Paquette v. TeraGo Networks Inc., 2016 ONCA 618, 34 C.C.E.L. (4th) 26, Lin v. Ontario Teachers’ Pension Plan, 2016 ONCA 619, 402 D.L.R. (4th) 325, SFC Litigation Trust v. Chan, 2019 ONCA 525, 147 O.R. (3d) 145, Bernier v. Nygard International Partnership, 2013 ONCA 780

Maisonneuve v. Maisonneuve, 2023 ONCA 138

Keywords: Fiduciary Duty, Negligence, Breach of Contract, Misrepresentations, Conflict of Interest, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5(1)(a)(iv), Palmer v. The Queen, [1980] 1 S.C.R. 759

Sumner v. Ottawa (Police Services), 2023 ONCA 140

Keywords: Tort, Abuse of Process, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 2.1.01(1), r. 2.1.01(3), r. 2.1.01(6), Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Khan v. Krylov & Company LLP, 2017 ONCA 625, Gao v. Ontario WSIB, 2014 ONSC 6497

Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134

Keywords: Charter of Rights and Freedom, Ontario COIVD-19 Regulations, COVID-19 Restrictions, Religious Freedoms, Oakes Test, Infringement, Reasonable Limits, Canadian Charter of Rights and Freedoms, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, Constitution Act, 1982, s. 52(1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Criminal Code, R.S.C. 1985, c. C-46, Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, Loyola High School v. Quebec (Attorney General), 2015 SCC 12, Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, Doré v. Barreau du Québec, 2012 SCC 12, R. v. Oakes, [1986] 1 S.C.R. 103, (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Hoang (Litigation guardian of) v. Vicentini, 2016 ONCA 723, Parliament (Litigation guardian of) v. Conley, 2021 ONCA 261, Beaudoin v. British Columbia (Attorney General), 2022 BCCA 427, Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, to Figueiras v. Toronto Police Services Board, 2015 ONCA 208, British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., 2009 BCCA 39, R. v. Khawaja, 2012 SCC 69, Saskatchewan v. Durocher, 2020 SKQB 224, Right to Life Association of Toronto v. Canada (Employment, Workforce and Labour), 2021 FC 1125, Canadian Union of Postal Workers v. Her Majesty in Right of Canada, 2016 ONSC 418, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Carter v. Canada (Attorney General), 2015 SCC 5, Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, R. v. Poirier, 2016 ONCA 582, R. v. Grant, 2009 SCC 32, Canada (Attorney General) v. Bedford, 2013 SCC 72, R. v. Collins, [1987] 1 S.C.R. 265, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, Harper v. Canada (Attorney General), 2004 SCC 33, Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, R. v. Sharpe, 2001 SCC 2, Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, R. v. Michaud, 2015 ONCA 585, Grandel v. Saskatchewan, 2022 SKKB 209, Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 219, “Interpreting Freedom of Thought in the Canadian Charter of Rights and Freedoms” (2019) 91 S.C.L.R. (2nd) 107, “Big M’s Forgotten Legacy of Freedom” (2020) 98 S.C.L.R. (2nd) 15; “Recovering Community: Addressing Judicial Blindspots on Freedom of Association” (2020) 98 S.C.L.R. (2nd) 399

Jovkovic v. DaSilva, 2023 ONCA 137

Keywords: Bankruptcy and Insolvency, Judgment Creditor, Property Transfer, Transfer for Undervalue, Assignment in Bankruptcy, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 38, s. 96, s. 96(1)

Aslezova v. Khanine, 2023 ONCA 153

Keywords: Family Law, Financial Disclosure, Court Orders, Non-Compliance, Motion to Strike, Family Law Rules, O. Reg. 114/99, s. 1(8), Martin v. Watts, 2020 ONCA 406, Mullin v. Sherlock, 2018 ONCA 1063, Roberts v. Roberts, 2015 ONCA 450, Purcaru v. Purcaru, 2010 ONCA 92, Kovachis v. Kovachis, 2013 ONCA 663, Ferguson v. Ferguson, 2022 ONCA 543, Manchanda v. Thethi, 2016 ONCA 909, Lalande v. Lalande, 2023 ONCA 68, Peerenboom v. Peerenboom, 2020 ONCA 240

Short Civil Decisions

Sunlight General Capital LLC v. Effisolar Energy Corporation,2023 ONCA 133

Keywords: Foreign Judgment, Recognition and Enforcement, Suspension of Limitation Periods, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, O. Reg 73/20, Practice Direction Concerning Civil Appeals, s. 13, Beals v. Saldanha, 2003 SCC 72, Independence Plaza 1 Associates L.L.C. v. Figliolini, 2017 ONCA 44

Everest Finance Corporation v. Jonker, 2023 ONCA 146

Keywords: Costs, Full Indemnity, MCAP Financial Corp. v. George Fernicola in Trust and Carrington Homes Ltd., 2010 ONSC 148

Daly v. Ontario (Landlord and Tenant Board), 2023 ONCA 152

Keywords: Landlord and Tenant Board, Sexual Harassment, Substantial Interference, Bias, No Reasonable Cause of Action, Canadian Charter of Rights and Freedoms, s. 24(1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01, Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 232(1), Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, s. 9(2)(b), Raba v. Landlord and Tenant Board, 2014 ONSC 2599, Speckling v. Kearney, 2007 BCCA 145

Adejuyigbe v. Boynton,2023 ONCA 141

Keywords: Employment Law, Severance, Full and Final Release, Discrimination, No Reasonable Cause of Action, Settlement Privilege, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b), Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19

Rudin-Brown v. Brown, 2023 ONCA 151

Keywords: Wills and Estates, Loss of Capacity, Power of Attorney for Property and Personal Care, Meritless Appeal, Costs, Substantial Indemnity, Lewis v. Lewis, 2019 ONCA 690

2343680 Ontario Inc. v. Talpade, 2023 ONCA 154

Keywords: Mortgagee and Mortgagor, Default, Enforcement, Bias and Prejudice, Procedural Fairness, Palkowski v. Ivancic, 2009 ONCA 705, Housen v. Nikolaisen, 2002 SCC 33

CIVIL DECISIONS

Sinclair v. Amex Canada Inc., 2023 ONCA 142

[Tulloch, Nordheimer, and Harvison Young JJ.A.]

Counsel:

D. Zuber and P. Essig, for the appellants
N. Paris and Z. Parrott, for the respondents

Keywords: Tort, Negligence, Personal Injury, Liability, Contract, Jurisdiction, Jurisdiction simplicitor, Presumptive Connecting Factors, Real and Substantial Connection, forum non conveniens, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 11.25 (3)(b),  Alberta Rules of Court, Alta Reg. 124/2010, Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, Jean-Gabriel Castel & Janet Walker, Castel & Walker: Canadian Conflict of Laws, loose-leaf (2022-Rel. 96), 6th ed. (Markham, ON: LexisNexis Canada, 2005), Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Hydro Aluminium Rolled Products GmbH v. MFC Bancorp Ltd., 2021 BCCA 182, Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Bazley v. Curry, [1999] 2 S.C.R. 534, Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736, Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, Dilkas v. Red Seal Tours Inc. (Sunwing Vacations), 2010 ONCA 634, Di Gregorio v. Sunwing Vacations Inc., 2018 ONCA 655, R. v. Mian, 2014 SCC 54, Quan v. Cusson, 2009 SCC 62, Hydro Aluminium Rolled Products GmbH v. MFC Bancorp Ltd., 2021 BCCA 182, Sakab Saudi Holding Company v. Jabri, 2022 ONCA 496, Forsythe v. Westfall, 2015 ONCA 810, Tamminga v. Tamminga, 2014 ONCA 478, Gajraj v. DeBernardo (2002), 60 O.R. (3d) 68 (C.A.), Doyle v. Zochem Inc., 2017 ONCA 130, Hague v. Hague, 2022 BCCA 325, R. v. G.F., 2021 SCC 20, Dreesen v. Dreesen, 2021 ONCA 557, Kringhaug v. Men, 2022 BCCA 186, Henderson v. The Manitoba Public Insurance Corporation, 2022 MBCA 57, Zhao v. Fang, 2022 BCCA 227, Flying Frog Trading Co., Ltd. v. Amer Sports OYJ, 2018 BCCA 384, Saskatchewan Power Corporation v Mitsubishi Power Canada Ltd., 2022 SKQB 147, Toews v. Grand Palladium Vallarta Resort & Spa, 2016 ABCA 408, Mantini v. Smith Lyons LLP (2003), 64 O.R. (3d) 505 (C.A.), Lawrence v. Toronto Humane Society (2006), 271 D.L.R. (4th) 329 (Ont. C.A.), Kitchener-Waterloo Real Estate Board Inc. v. Ontario Regional Assessment Commissioner, Region No. 21 (1986), 56 O.R. (2d) 94 (H.C.), Toews v. First Choice Canada Inc (Signature Vacations), 2016 ABQB 130, Slattery (Trustee Of) v. Slattery, [1993] 3 S.C.R. 430, Nowegijick v. The Queen, [1983] 1 S.C.R. 29, Colavecchia v. The Berkeley Hotel, 2012 ONSC 4747

facts:

On July 25, 2017, in Venice, Italy, the respondents, together with their son, were passengers on a water taxi that crashed into a wooden structure. The respondents were both injured, and the respondent Mr. S was seriously injured.

The respondents and their son travelled to Venice and were transported by van from the airport to the water taxi terminal where they boarded a water taxi owned by the appellant. The water taxi was operated by the defendant, CD. CD did not respond to these proceedings. The accident occurred during the trip to their hotel.

The respondents had arranged their travels through Amex Canada Inc. (“Amex Canada”) which operated under the name Centurion Travel Service. Amex Canada provides travel-related services to individuals in Canada. Mr. S used his Centurion Card membership to book the trip.

As pleaded by the defendant, Amex Canada, Centurion Card members enjoy benefits, including access to dedicated concierge and travel agent services for booking personalized travel services such as car services, flights, and hotel accommodations. All travel bookings are made through Centurion Travel Service. Centurion Travel Service routinely engages third-party travel suppliers, at the request and on behalf of Centurion Card members, for the provision of travel services to such Centurion Card members.

Centurion Travel Service contacted the defendant, Carey International, Inc., who in turn contacted the appellant, Venezia Turismo, which was a water taxi dispatching company. As pleaded, Venezia Turismo then contacted the appellant, Venice Limousine S.R.L., which was the owner of the water taxi involved in the accident. Venice Limousine S.R.L. also employed the driver of the water taxi. At the same time, the appellant Medov S.R.L. sent an e-mail to Venezia Turismo confirming the booking for the water taxi.

The three Italian companies now appeal the order of the motion judge who dismissed their motion for an order dismissing the action, or alternatively staying the action, on the basis that the Ontario Superior Court of Justice lacked jurisdiction. The action was grounded in the tort of negligence.

issues:

(1) Did the trial judge err in their application of the fourth factor from the Van Breda Test?

(2) Did the appellants rebut the establishment of a presumptive connecting factor?

holding:

Appeal allowed.

reasoning:

(1) Yes

The Court noted that the applicable standard of review is correctness as the appeal stems from allegations of a legal error in the application of the Van Breda test. The Court determined that the sole issue before the motion judge was whether the fourth presumptive connecting factor from Club Resorts Ltd. v. Van Breda, gave the Ontario Superior Court of Justice jurisdiction over the appellants with respect to the action started by the respondents. The motion judge concluded that it did. The Court disagreed and found that the motion judge erred in so concluding.

The Court listed the four presumptive connecting factors from Van Breda:

In a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

(a) the defendant is domiciled or resident in the province;

(b) the defendant carries on business in the province;

(c) the tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.

The Court found it pertinent to mention two salient facts from Van Breda, as well as its companion case, Charron, that distinguished them from the present action. First, the Court noted that, in both cases, the actions were based both in contract and in tort. The Court also noted that, in Van Breda, it appears that the defendants, other than the travel agency, were all companies related to Club Resorts.

The Court also found it important to note that the contract in Van Breda, and upon which jurisdiction was found, directly connected the plaintiffs and the objecting defendants.

The Court held that the Van Breda test was not properly applied by the motion judge. The Court stated that the application of the presumptive connecting factors is to be viewed from the perspective of the defendant who is disputing jurisdiction and while there may be a defendant who is not disputing jurisdiction, it does not mean that the court can avoid looking at the jurisdiction issue from the perspective of the defendant disputing jurisdiction. The Court found that it was the failure to examine the jurisdiction issue from the position of the appellants that constituted the error committed by the motion judge in her analysis. The fact that Amex Canada could not object to the Ontario Court’s jurisdiction did not meant that the other defendants, who had some connection with the subject matter of the claim, were then subject to the same jurisdiction.

The Court also held that there was nothing in the contractual relationship between the respondents and Amex Canada that required the appellants’ involvement. The Court noted that even if one could give the contractual arrangements the type of emphasis that the respondents attempted to do, it was hard to see how the conduct of any of the appellants could be said to be “within the scope of the contractual relationship” or that the “events that give rise to the claim flow from the relationship created by the contract”. Accordingly, the Court found that the contract between the respondents and Amex Canada did not create a contractual relationship between the respondents and the appellants.

(2) Yes.

The Court found that the appellants had rebutted the presumptive connecting factor. The Court held that it was still necessary, even with the presence of a presumptive connecting factor, to establish a “real and substantial” connection between the dispute and the court assuming jurisdiction.

The Court held that the motion judge had erred by failing to engage in this aspect of the inquiry. The Court found that the appellants had rebutted it by demonstrating that the contract between the respondents and Amex Canada, had little or nothing to do with the subject matter of the litigation. There was also nothing pleaded that would establish that the contract had any connection to the claim against the appellants. The Court noted that it was not alleged that there were any ongoing contractual relationships between these Italian companies and Amex Canada or Carey International, Inc. The Court also stated that there were no allegations that there was anything in the contractual relationship between Amex Canada and/or Carey International, Inc. and the respondents, that contemplated that the appellants would be engaged in the carrying out of that contractual relationship.

Accordingly, in the Court’s view, the contract that was made in Ontario between the respondents and Amex Canada had little relevance to the subject matter of the litigation. The Court also found that none of the appellants would reasonably be expected to be called to answer legal proceedings in Ontario, as there was simply nothing that connects the events and the appellants to Ontario.

Concurring Decision of Harvison Young J.A.

(1) No.

Young J.A. found that the issue was whether the motion judge erred by failing to look at each defendant individually is “rooted in” and a “component of” the larger issues as framed by the parties of whether the motion judge erred in her analysis that there was an Ontario contract connected to the dispute. Young J.A rejected the argument that a motion judge must “expressly and mechanically run through the Van Breda factors with respect to each defendant where the defendants are alleged to have acted in an interconnected way”.

Young J.A. found that the motion judge correctly outlined the current state of the law on jurisdiction simpliciter as she had identified that the only presumptive connecting factor relevant to this dispute was whether there was an Ontario contract connected to the dispute.

Young J.A. noted that the underlying rationale of the fourth presumptive connecting factor—a contract connected with the dispute was made in the province—is that “‘but for’ the contract made in the province the plaintiff would not have suffered the harm”

Young J.A. found that the motion judge did not err in her application of the first Van Breda step and noted that identity of the parties is fundamental to contract formation. The identity of the party with whom the respondents were dealing with was AMEX Canada for the Centurion card and for the booking of the water taxi in Venice Italy, and those contracts were formed in Ontario. Accordingly, Young J.A. agreed with the motion judge’s findings that a presumptive connecting factor between the subject of the litigation and the court’s jurisdiction had been established.

Young J.A. stated that the motion judge had correctly concluded that the appellants’ allegedly tortious conduct in their discharging of the water taxi services flowed from the Centurion Cardholder Agreement, a contract undoubtedly formed in Ontario, and which provided for the booking of services, such as the water taxi. Accordingly, Young J.A. found that the requisite threshold to establish the fourth presumptive connecting factor had been met.

Accordingly, Young J.A. found no error in the motion judge’s analysis.

(2) Yes.

Young J.A. agreed with the majority of the Court that in the event there is a presumptive connecting factor, the motion judge erred in failing to consider whether it was rebutted, and agreed that, in the circumstances, the presumption has been successfully rebutted.


Johwel Investments Inc. v. Welton, 2023 ONCA 132

[Brown, Sossin and Copeland JJ.A.]

Counsel:

S.J. Erskine and P. Healy, for the appellant

T. Pinos and M. Rourke, for the respondents Stonebrook II Limited Partnership and Johwel Investments Inc.

D.M. Golden, for Davwel Investments Inc.

Keywords: Real Property, Property Rights and Interests, Trust, Bare Trustee, Judgment Creditor, Trident Holdings Ltd. v. Danand Investments Ltd. (1988), 64 O.R. (2d) 65 (C.A.), John Sopinka, Mark A Gelowitz and W. David Rankin, Sopinka and Gelowitz on the Conduct of an Appeal, 4th ed. (LexisNexis, 2018, Toronto), at §1.11

facts:

Over a decade ago, the appellant, DW1, was employed by Stonebrook Properties Inc. (“Stonebrook”) to manage the sale of condominium units at a Mississauga condominium development known as the Stonebrook Development (the “Development”). Stonebrook was owned equally by two brothers, JW and DW2, through their holding companies, Johwel Investments Inc. and Davwel Investments Inc. DW2 was DW1’s husband until his death in 2013.

Title to the real property on which the two-tower condo Development was to be constructed was registered in the name of Stonebrook. One tower of the Development was built, and title to that portion of the property was transferred to a condominium corporation. The remaining portion of the property remained registered in the name of Stonebrook (the “Property”).

When Stonebrook did not pay DW1 the commissions she thought due to her, she started an action for damages against it in 2012. She initiated a second action against Stonebrook in 2015 seeking similar relief. In neither action did DW1 join the co-tenants, JW and DW2, as defendants. The actions were tried together in 2019, resulting in a judgment in favour of DW1 against Stonebrook (the “Judgment”). DW1 sought to execute her judgment. She obtained a writ of seizure and sale that she registered against title to the Property (the “Writ”).

Since 2013, JW and DW2 had been locked in litigation over several matters, including their interests in the Development. They reached a settlement in 2019. Under the settlement, JW planned to transfer all of DW2’s interests in the Development to the respondent, Stonebrook II Limited Partnership. However, JW and DW2 were unable to close a financing of the settlement due to the Writ registered against title to the Property.

The respondents, JW and Stonebrook II, thereupon commenced an application seeking an order lifting the Writ from title and, if necessary, the ability to pay into court the amount of DW1’s Judgment. Hainey J. granted the order sought, allowing title to the Property to be conveyed, but he ordered counsel for the respondent JW to hold in trust the amount of $235,750 to the credit of the application.

The issue of whether the Writ attached to the Property was then considered by the application judge. She concluded that the Writ did not attach to the Property held by Stonebrook and ordered the funds held in trust be released to the respondents (the “Order”). The basis of her decision was that Stonebrook held title to the Property as bare trustee for the two co-tenants, JW and DW2. As a result, Stonebrook, as bare trustee, had no interest in the property available for seizure by one of its execution creditors, such as DW1.

issues:

Did the application judge commit a palpable and overriding error in finding that because Stonebrook was a bare trustee, it was not obligated to pay DW?

holding:

Appeal dismissed.

reasoning:

No.

The Court was not persuaded by DW1’s argument that Stonebrook had various obligations as a bare trustee. The Court found the application’s reasons disclosed that she did not ignore evidence about how Stonebrook carried on its business, as contended by DW1. The Court explained that the application judge’s key factual findings were ample to support that Stonebrook was a bare trustee of the Property, as Stonebrook had no independent powers, discretions or responsibilities. Such findings were supported by the evidence reviewed by the application judge. As such, the Court held that since DW1 did not argue that the application judge applied incorrect legal principle to the facts, the Court had no basis to interfere.


Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 144

[MacPherson, van Rensburg and Benotto JJ.A.]

Counsel:

T. Gilbert, C. Carruthers, T. Dumigan, J. MacDonald, J. Martin, and Z. Cynader, for the appellant/moving party (M54052) and the appellant/responding party (M54053/M54054)

S. Batner, B. Gray, S. Rogers, B. Greenaway, and C. Puskas, for the respondent/responding party (M54052) and the respondent/moving party (M54053/M54054)

Keywords: Property Rights, Expropriation, Infrastructure, Municipal Law, Heritage Properties, Osgoode Hall, Civil Procedure, Interim and Interlocutory Injunctions, Reasonable Apprehension of ‘Institutional Bias’, Jurisdiction, Appeals, Leave to Appeal, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 6(1)(b), s. 7(5), s. 19(1)(b), s. 101, Law Society of Ontario v. Metrolinx, 2023 ONSC 1169, Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Hendrickson v. Kallio, [1932] O.R. 675, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, Soberman Isenbaum Colomby Tessis Inc. v. St. James Securities Inc. (2002), 60 O.R. (3d) 155 (C.A.), Ontario v. Shehrazad Non-Profit Holding Inc., 2007 ONCA 267, Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, Ontario Medical Association et al. v. Miller (1976), 14 O.R. (2d) 468 (C.A.), Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784

facts:

The respondent, Metrolinx, brought a motion to quash the appeal of the appellant Haudenosaunee Development Institute (“HDI”) from an order of a judge of the Superior Court of Justice dated February 10, 2023, dismissing its motion for an interlocutory injunction. Metrolinx also brought a motion seeking an order pursuant to s. 7(5) of the Courts of Justice Act, (“CJA”), setting aside the order of Gillese J.A. of this court dated February 11, 2023. In that order, on a motion brought by HDI, Gillese J.A. granted an interim injunction that, inter alia, enjoined Metrolinx from cutting down any trees on the Osgoode Hall property pending the disposition of HDI’s motion.

Gillese J.A. then adjourned the motion to February 14. On February 14, Metrolinx also raised as a preliminary matter an allegation of reasonable apprehension of institutional bias, seeking to disqualify the panel or any judge of this court from hearing any matter related to HDI’s appeal, including the pending motions. HDI, in turn, brought a motion for an extension of the Gillese J.A. interim injunction pending its appeal, or, in the event that jurisdiction lay with the Divisional Court, pending a motion for leave to appeal to that court.

issues:

(1) Is the Court of Appeal for Ontario, and are all the judges on that court, precluded from hearing the motions and the underlying appeal because of a reasonable apprehension of ‘institutional bias’?
(2) Does this court lack jurisdiction to hear this appeal because Hackland J.’s order is an interlocutory, not a final order and, therefore, any appeal must be heard and determined by the Divisional Court with leave?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court, relying on the test for reasonable apprehension of bias from Committee for Justice and Liberty v. National Energy Board, found Metrolinx’s position far removed for the stringent standard. The Court explained that most judges, particularly chief justices and associate chief justices, hold two roles: (1) an adjudicative role, and (2) administering the court role. For the latter, these judges must communicate and interact with many external constituencies such as governments (attorney generals), the Canadian Bar Association and the Law Society of Ontario, and others. As such, the Court clarified that these relationships are administrative and not adjudicative.

The Court concluded that the concerns about the practicalities of administering court hearings amidst an ongoing construction project does not cast any aspersions on the court’s ability to perform its adjudicative role.

(2) Yes.

The Court held that the order dismissing HDI’s motion was interlocutory in nature and therefore, the appeal was not within the jurisdiction of the Court. The Court relied on Paulpillai Estate v. Yusuf (“Paulpillali Estate”), which held that in order to determine whether an order under appeal is final or interlocutory, the Court must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order.

The Court first considered HDI’s Notice of Application (the “NOA”, which provided the framework of the litigation it commenced. The NOA claimed a number of declarations, including that the Haudenosaunee have treaty rights over the Osgoode Hall site, that the Ontario Line Project will infringe those rights, that Metrolinx owes a duty to engage with the Haudenosaunee and the HCCC in respect of the Project, and that Metrolinx has not adequately engaged. As such, the Court found that the, the NOA revealed that the issues in the Application concerned more than the requested injunction and that nothing in the NOA suggested that the subject matter of the application was limited to the trees at Osgoode Hall.

The Court found that the order under appeal was made in the context of the motion and nothing in the Amended Notice of Motion suggested HDI sought a final determination of any issue when it brought its motion.

Secondly, the Court found that there was nothing in the order itself suggesting that any issue in the application proceeding was determined on a final basis. The Court clarified that the order simply dismissed the motion for an interlocutory injunction. The Court also found that the reasons of Hackland J. did not indicate that he determined any issue in the NOA on a final basis.

Finally, the Court did not accept HDI’s argument that the practical effect of the order refusing an injunction to prevent the trees from being cut down was to bring an end to the litigation. The Court relied on the affidavits, which refer to a history of communications between the parties with respect to the Ontario Line Project and the Osgoode Hall site and unresolved issues that extend beyond the immediate concern respecting the trees at the Osgoode Hall site. The Court therefore held that the order was made in the context of HDI’s motion for interlocutory injunctive relief and it did not determine the real matter in dispute between the parties.


Libfeld v. Libfeld, 2023 ONCA 128

[Roberts, Miller and Nordheimer JJ.A.]

Counsel:

P. Steep, H. Kallmeyer and I. Hull, for the appellants (C69714) and respondents (C69751, C70031 and C70032), CL and 1331078 Ontario Inc.

P.H. Griffin, K. Glowach and S. Bittman, for the appellants (C69751) and respondents (C69714, C70031 and C70032), ML, 1331081 Ontario Inc., 2091170 Ontario Inc., and Vitanna Construction Ltd.

D. Chernos, P. Flaherty and B. MacLeese, for the appellants (C70031 and C70032) and respondents (C69714 and C69751), SL and 1331088 Ontario Inc.

G. Luftspring and A. Sanche, for the appellants (C70031 and C70032) and respondents (C69714 and C69751), JL and 1331091 Ontario Inc.

H. Chaiton, for the Court-Appointed Sales Officer

Keywords: Business Law, Partnerships, Fiduciary Duty, Oppression, Financing of Transactions, Vendor-Takeback Mortgages, Compliance with Orders, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52

facts:

The dispute arose from the breakdown of a business relationship of four brothers – SL, ML, JL, and CL – who were equal owners of The Conservatory Group (the “Group”), a Toronto-based real estate development partnership. There was no written partnership agreement. SL was generally responsible for the Group’s finances and was the most involved with the overall management.

Conflicts among the brothers began to surface in 2005, relating to the Group’s practice of cash distribution. The longstanding practice of the Group was to retain profits within the Group, minimizing cash distributions to each brother, and deferring income tax liability. However, ML became aware of the tax liability that his estate would face on his death. He proposed that the Group significantly increase the life insurance it provided for each of the partners. The other brothers were unwilling. Furthermore, CL wished to increase the monthly cash distributions. These proposals, among other things, resulted in ongoing conflict.

ML brought an application in 2017 seeking a declaration winding up the Group. At trial, CL backed ML’s position. JL and SL, on the other hand, sought to remain partners of the Group and proposed a buy-sell transaction. Alternatively, they sought to buy out ML and CL’s interest in the Group.

Additionally, ML sought a declaration that lands in Caledon, Ontario owned by Shanontown Developments Inc. (“Shanontown”) – itself owned by SL, JL, and CL – are assets of the Group, such that ML would be entitled to a 25% partnership interest in the Shanontown lands. At trial, the two sides also made claims of oppression and breach of fiduciary duty against each other.

The trial judge made no findings of oppression or breach of fiduciary duty against any party, and dismissed ML’s application for the declaration that Shanontown be included as an asset of the Group. Most significantly, the trial judge ordered that the Group be wound up and sold under the supervision of a court-appointed Sales Officer, with all of the brothers being permitted to participate in the sales process as potential purchasers. Lastly, the trial judge later required each brother to certify compliance with the terms of the original judgment and the Data Room Order that created an electronic repository of Group documents. The purpose of the Data Room Order was to remedy the informational asymmetry among the brothers resulting from SL’s role in the financial management of the Group.

issues:

(1) Did the trial judge err in determining that ML was not a partner in the Shanontown transaction?

(2) Did the trial judge err in not including Shanontown in the wind-up order?

(3) Did the trial judge err in requiring the brothers to certify compliance with the Data Room Order?

holding:

Appeals C69751 and C69714 are dismissed. Appeals C70031 and C70032 are allowed in part.

reasoning:

(1) No.

Due to the fact that ML refused to enter into new transaction until the cash distribution practices changed, SL proposed an “Interim Arrangement.” Per the Interim Arrangement, where an opportunity came to the Group, any brother would have the option of not participating in that transaction in exchange for a cash distribution equal to the money that each of the other brothers required from the Group to invest in the project. Shanontown was the only transaction carried out under the Interim Arrangement. SL proposed the acquisition of land in Caledon for low-rise development. Shanontown was to be financed half through cash distribution and half through a vendor-takeback (“VTB”) mortgage. ML chose not to participate. Therefore, he received a cash distribution of $15 million, and each other brother contributed $15 million each to the Shanontown transaction.

Two changes were made to the Shanontown transaction: (1) it was financed by cash contributions, bank financing, and the VTB mortgage; and (2) the cash contribution was reduced from $45 million to $17 million, meaning that each participating brother was only required to put in $5.7 million. ML opted not to participate. In 2020, SL and JL offered to let ML join the Shanontown investment as a silent partner for $5.7 million, which ML declined. However, ML was not told that the partners’ equity in Shanontown had already been written down to negative $15.4 million. Neither was ML informed – nor was his consent sought – when the other brothers transferred $64 million from Group proceeds to pay off the VTB mortgage (ML was given a distribution of $21.7 million as compensation, which he received under protest).

ML argued that the brothers owed him a fiduciary duty and breached that duty when they made the changes to the Shanontown transaction, failed to disclose the negative equity position, and when they unilaterally reached into the assets of the Group to pay down the VTB mortgage in a manner not contemplated by the Interim Arrangement. The trial judge held that no such fiduciary duty existed because the Shanontown transaction was undertaken outside of the Group and without the participation of ML, in accordance with the Interim Arrangement. The Court noted that these findings were entitled to deference. The Court further stated that it was not relevant that the financing of Shanontown changed multiple times because he opted not to participate from the outset. Therefore, ML’s ground of appeal was dismissed.

(2) No.

CL argued that Shanontown ought to have been included in the wind-up order due to the dysfunctional relationship of the brothers. He submitted that the trial judge simply overlooked Shanontown in making the wind-up order. The Court disagreed. This was a heavily case managed proceeding with sophisticated parties, each with counsel. It was not apparent from the record that Shanontown was simply overlooked. The Court noted that, even if Shanontown were overlooked, the correct procedure would have been to return to the trial judge to seek clarification of the order.

(3) Yes.

None of the brothers argued for the inclusion of the Data Room Order. It was requested by the court appointed Sales Officer. SL and JL argued on appeal that the provision requiring the brothers to certify that they had complied with the original judgment, as well as the Data Room Order (the “Certification Provision”), ought to be struck on the basis that: (1) it is insufficiently clear, legally unnecessary, and impermissibly broad; and (2) it was not relief sought by any party and there is not a sufficient basis in the reasons to justify it.

The Sales Officer proposed the Certification Provision because they relied on disclosure of the brothers and there was a serious lack of trust and respect amongst them and based on the fact that SL held an informational advantage. ML and CL agreed with the Sales Officer’s submissions on this point.

SL and JL argued that the vagueness of the provision, threatens to leave all parties vulnerable to revolving contempt proceedings at the hands of each other. The Court agreed and struck the Certification Provision. The Court noted that a provision of this nature is not inherently problematic, but can be unwise in certain circumstances. None of the brothers have any objection to being bound by any of the terms of the judgment, however, certifying compliance is a different legal obligation. Carrying out obligations that are expressed using vague standards of performance can be carried out in good conscious and still be contested.

Certification stands on a different footing. It is akin to providing a warranty. Where an obligation to certify compliance is made part of a court order, it hazards the extension of the obligation to a matter of warranting that one has satisfied every conceivable interpretation of what the vague criteria used could require. In the context of this litigation, it does not appear that the Certification Provision provides any further benefit beyond what is included in the original judgement or the Data Room Order. Furthermore, due to the hostility of the litigation, there is a prospect and indeed likelihood that certifications will be met with allegations of non-compliance and even contempt.


Burr v. Tecumseh Products of Canada Limited, 2023 ONCA 135

[Tulloch, Thorburn and George JJ.A.]

Counsel:

H. Borlack and G. Bawolska, for the appellant Venmar Ventilation Inc.
J. T. Curry, D. N. Varah and S. Bittman, for the respondents Tecumseh Products of Canada Limited and Tecumseh Products Company
R. Dowhan and M. McMahon, for the respondents L.B. and J.C.

Keywords: Tort, Negligence, Duty to Warn, Duty of Care, Contract, Product Liability, Indemnification, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rankin’s Garage & Sales v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587, Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, Housen v. Nikolaisen, 2002 SCC 33, [2022] 2 S.C.R. 235, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] S.C.R. 303, Ford Motor Company of Canada, Ltd. v Ontario Municipal Employees, 2006 CanLII 7665 (Ont. C.A.), 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184, 134 O.R. (3d) 641, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, 450 D.L.R. (4th) 181, Lambert v. Lastoplex Chemicals, [1972] S.C.R 569, Labrecque v. Saskatchewan Wheat Pool, (1977), 78 D.L.R. (3d) 289 (Sask. Q.B.), Ruegger v. Shell Oil Co. of Can. Ltd., [1964] 1 O.R. 88 (H.C.), Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, Nicholson v John Deere Ltd. (1986), 58 O.R. (2d) 53 (S.C.), 1986 CarswellOnt 965, Price v. Smith & Wesson Corp., 2021 ONSC 8471, Kreutner v. Waterloo Oxford Co-operative Inc. (2000), 50 O.R. (3d) 140 (C.A.), St. Isidore Co-op Limited v. AG Growth International Inc., 2020 ABCA 447, Rentway Canada Ltd./Ltee v. Laidlaw Transport Ltd. (1989), 49 C.C.L.T. 150 (Ont. H.C.), Ragoonanan Estate v. Imperial Tobacco Canada Ltd., 51 O.R. (3d) 603 (S.C.), Voss v. Black & Decker Mfg. Co. (1983), 450 N.E. 2d 204, at p. 208 (N.Y.C.A.), Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, Western Processing & Cold Storage Ltd. v. Hamilton Construction Company Ltd. (1965), 51 D.L.R. (2d) 245 (Man. C.A.), Hollis v. Down Corning Corp., [1995] 4 S.C.R. 634, Rivtow Marine Ltd. v. Washington Iron Works, [1974] S.C.R. 1189, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 CanLII 307 (SCC), [1997] 3 S.C.R. 1210, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, Plas-Tex Canada Ltd. v. Dow Chemical of Canada Ltd., 2004 ABCA 309, 245 D.L.R. (4th) 650, Betker v. Williams, 86 D.L.R. (4th) 395, Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), Coventree Inc. v. Lloyds Syndicate 1221 (Millenium Syndicate), 2011 ONSC 6660, Zesta Engineering Ltd. v. David Cloutier, 2002 CanLII 25577 (Ont. C.A.), 21 C.C.E.L. (3d) 161, Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 75 O.R. (3d) 638 (C.A), McDowell v. Barker, 2012 ONCA 827, Alie v. Bertrand & Frere Construction Co. Ltd., 62 O.R. (3d) 345 (C.A.), Darling v. Kay (1993), 15 O.R. (3d) 299 (Gen. Div.), Xpert Credit Control Solutions Inc. v. Borges, 2015 ONSC 6505, United Soils Management Ltd. v. Mohammed, 2019 ONCA 128, Bossé v. Mastercraft Group Inc., 123 D.L.R. (4th) 161, 7550111 Canada Inc. v. Charles, 2020 ONCA 505, Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2022 ONCA 411, West Van Holdings Ltd. v. Economical Mutual Insurance Company, 2019 BCCA 110

facts:

In 1994, the respondents installed a heat recovery ventilator (the “ventilator”) in their home. On November 5, 2012, the motor in the ventilator overheated, exploded and caught fire resulting in serious damage to their home. The unit, the motor and the cycling thermal protector had all outlived their life expectancy. The ventilator life expectancy was 15 years, and the motor life expectancy was 7 years. Because the ventilator was an unattended appliance, the respondents did not notice the malfunction for “weeks or months”. At the time of trial, there had been approximately 112 similar house fires.

The respondents’ ventilator was designed and manufactured by Venmar Ventilation Inc. (“Venmar”). The motor in the ventilator was designed and manufactured by Tecumseh Products Company (otherwise known as “Fasco”). Venmar and Fasco had a customer-supplier relationship in which Fasco built and delivered off-the-shelf motors with custom specifications requested by Venmar.

Fasco knew as early as the 1950s or 1960s the problem of overheating if the thermal protector in its motor failed. It did not relay that information to its manufacturer-customers, including Venmar. Venmar also knew there were overheating problems in 1994 but did not know they could lead to fire. Neither Fasco nor Venmar knew the root cause of the overheating problem. Venmar took many corrective steps and the relevant safety organizations approved Venmar’s corrective steps and largely left Venmar to its own devices. By the time of trial in 2021, the motors used in Venmar ventilator units had caused fires in slightly over 100 out of the 300,000 units manufactured, resulting in an effective malfunction rate of .038 percent.

The respondents brought an action against Venmar as manufacturer of the ventilator, and against Fasco as manufacturer of the motor in the ventilator. The parties agreed that the fire was caused by the end-of-life failure of the motor in the respondents’ ventilator. The cycling thermal protector used in the motor to prevent an overheating event failed in a closed position causing the motor to cycle repeatedly, overheat, and eventually ignite.

issues:

(1) Did the trial judge err in finding that Venmar was liable for the negligent design of the ventilator but not the duty to warn the respondents?

(2) Did the trial judge err in finding that Fasco was not liable for either the negligent design of the ventilator motor or the failure to warn Venmar or the respondents of the risk of its motors catching fire?

(3) Did the trial judge err in finding that even if Fasco had been found liable in negligence, Venmar was obliged to indemnify Fasco for any liability arising from Fasco motors used in Venmar ventilators?

(4) Did the trial judge err in finding that Fasco was only entitled to reduced partial indemnity costs rather than the full indemnity costs it sought?

holding:

Leave to appeal the costs order granted. Venmar’s appeal and the respondents’ cross-appeal dismissed. Fasco’s costs cross-appeal was remanded for re-determination.

reasoning:

(1) No.

First, the Court held that there was no dispute that Venmar owed a duty of care to the respondents. As such, the trial judge committed no legal error. The Court saw no palpable or overriding error in the trial judge’s determination that Venmar failed to design a ventilator that was reasonably free from fire hazard, or test its overall ventilator design and the component parts to ensure they were reasonably fit for the purpose. As such, there was no basis to interfere with the trial judge’s conclusion that Venmar was responsible for its “choice of an inappropriate component” for the ventilator which, in turn, created a substantial likelihood of harm to the respondents for which Venmar was responsible at law. Thus, the Court agreed with the trial judge’s conclusion that Venmar was liable for negligent design of the ventilator.

Second, as noted in Hollis v. Down Corning Corp., the Court reiterated the principles governing the duty to warn include the following: i) There is a duty to warn of dangers inherent in the use of a product; ii) The duty is ongoing and continues after the product is delivered; iii) Warnings must be clear and specific to the dangers that arise from ordinary use; and iv) The duty varies with the level of danger associated with ordinary use of the product.

In this case, the trial judge held that Venmar did not breach its duty to warn the respondents as, “until 2006, it was not aware of the failing that caused the fire”. Once approved and underway, the regulatory authorities in Canada and the U.S. had no complaints about the corrective steps taken by Venmar, other than some initial concerns in the early stages. The Court held that whether Venmar breached its duty to warn was a question of mixed fact and law to which deference is owed. There was evidence from Venmar representatives that Venmar did not discover that the fire was caused by the thermal protector failing in a locked rotor position until Venmar was able to make a unit catch fire in its laboratory. There was also evidence from Venmar’s representatives to confirm that the efforts taken by Venmar in 2006 were consistent with industry practice to warn consumers who had purchased its ventilators of the risk of fire.

(2) No.

The Court held that the issue of whether Fasco had a duty of care to the respondents is a question of law subject to correctness review. In determining whether “Fasco [was] liable to the [respondents] for failure to advise Venmar that the motor could catch fire”, the trial judge invoked the two-part Anns/Cooper duty of care test, that is: (i) whether a prima facie duty of care exists between the parties; and (ii) if so, whether there are any residual policy considerations which should negate or limit the scope of the duty, the class of persons to whom it is owed or the damages to which a breach of it may give rise: Deloitte & Touche v. Livent Inc. (Receiver of).

The trial judge held that Fasco did not cause or contribute to the damage as Venmar was aware, or should have been aware, of the need for one-shot thermal protectors in other Venmar products but decided not to include one with this ventilator, and Venmar rejected Fasco’s advice regarding the overheating issues, and only applied the fuse Fasco recommended after doing and relying on its own investigations.

The Court noted that manufacturers owe a duty to warn, which requires them to warn of the risks associated with the reasonably foreseeable use of their products and the Court did not see any principled reason why Fasco should be exempted from these duties.

The Court commented that it was also not clear that, as the trial judge determined, “it would not have mattered what Fasco told Venmar” as, had Venmar been alerted earlier, it could have investigated and discovered the foreseeable fire risk earlier. Nor was it clear that it would have been “commercially impractical” for Fasco to warn its manufacturer-customers of the known end-of-life risks as Fasco’s omission to inform Venmar of the risk of its motor catching fire was done in violation of its own corporate policy.

Furthermore, it was not clear whether the “learned intermediary” rule, which is an exception to the manufacturer’s duty to warn consumers about risks of a product, extended beyond cases involving a product that is “highly technical in nature and is intended to be used only under the supervision of experts, or where the nature of the product is such that the consumer will not realistically receive a direct warning from the manufacturer before using the product”, such as prescription drugs and medical devices.  Cladding used to prevent oil pipes from freezing, for example, has been found not to be “a highly technical product” requiring expert supervision. The Court stated that ventilators are ordinary consumer products.

However, the Court held that it was unnecessary to conclusively address these issues in view of its determination that the trial judge was correct in concluding that Venmar was contractually obliged to indemnify Fasco for all claims, liabilities, losses and costs resulting from a finding that Fasco was negligent.

(3) No.

Fasco and Venmar’s relationship was governed by the Terms and Conditions of their two-page contract (“the Contract”). The Contract contained the purchase acknowledgment and invoice from Fasco to Venmar. The Contract was included with each delivery order. The indemnity clause provided that it was to be interpreted and construed according to the laws of the State of Missouri. However, no evidence was adduced at trial or on appeal to suggest that this choice of law would result in a change in the right to indemnification.  The trial judge therefore reasonably concluded that the indemnity provision in the Contract was operative such that, if Fasco had been liable to the respondents, Venmar was contractually bound to indemnify Fasco for any damages payable to the respondents.

Moreover, the trial judge noted that the parties were sophisticated commercial entities, the Terms and Conditions of the Contract had remained the same for many years, they were conspicuous, bolded, reproduced and sent with every order, and therefore, “a reasonable person in Venmar’s position would have noticed them”. Venmar never objected to the indemnification provision although Venmar sought to modify another provision in the Contract relating to the terms of payment in 1997 or early 1998.

The Court found these factors constituted sufficient evidence to enable the trial judge to conclude that Venmar was aware of the agreement and consented to its terms, including Venmar’s obligation to indemnify Fasco.

(4) Yes.

The Court first reasoned that Ontario courts have consistently held that contractual terms that touch on the issue of costs do not bind the court in the exercise of judicial discretion to determine a costs award. Where the court has “good reason”, it may refuse to enforce a contractual term.

It was evident that the trial judge was clearly aware of the existence of the indemnity provision in the Contract and the position taken by Fasco that this should entitle Fasco to full indemnity costs.  He therefore made a Sanderson order that Venmar pay both the respondents and Fasco costs rather than have the respondents pay Fasco’s costs of its successful defence. While the trial judge rejected Fasco’s claim for full indemnity costs, he held that Fasco “is free to make those [further costs] claims elsewhere”.

The Court held that the trial judge mistakenly believed that in determining the scale and quantum of costs, his task did not require him to consider the terms of the Contract and how, if at all, those terms affect the exercise of his discretion. Rather, he was of the view that Fasco would be “free to make those [further costs] claims elsewhere”. The Court determined that this was a legal error and remitted the issue of costs payable to Fasco only, to the trial judge.


Urbancorp Inc. v. 994697 Ontario Inc., 2023 ONCA 126

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

Counsel:

C.E. Reed, for the appellants
J. Sacks, for the respondents

Keywords: Bankruptcy and Insolvency, Corporate Restructuring, Creditor’s Rights, Chose in Actions, Assignment, Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-38, s. 13 and s. 45, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248 and s. 255, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 96, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Assignments and Preferences Act, R.S.O. 1990, c. A. 33, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b) and s. 19(1)(b), Canada Business Corporations Act, R.S.C. 1985, c. C-44, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Essar Steel Algoma (Re), 2016 ONCA 138, Redfern Resources Ltd. (Re), 2011 BCCA 333, Monarch Land Limited v. CIBC Mortgages Inc., 2014 ABCA 143, Sandhu v. MEG Place LP Investment Corporation, 2012 ABCA 91, Hemosol Corp. Re, 2007 ONCA 124, Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, Dal Bianco v. Deem Management Services Ltd., 2020 ONCA 585, Ting (Re), 2021 ONCA 425, Rusinek & Associates Inc. v. Arachchilage, 2021 ONCA 112, Kelvin Energy Ltd. v. Lee, [1992] 3 S.C.R. 235, Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, 1186708 Ontario Inc. v. Gerstein, 2016 ONCA 905, Shaw Estate v. Nichol Island Development Incorporated, 2009 ONCA 276, Toyota Canada Inc. v. Imperial Richmond Holdings Ltd. (1993), 140 A.R. 1 (K.B.), Nortel Networks Corporation (Re), 2016 ONCA 332, Urbancorp Toronto Management Inc. (Re), 2022 ONCA 181

facts:

On October 6, 2016, Urbancorp Cumberland 2 GP Inc., Urbancorp Cumberland 2 L.P., Bosvest Inc., Edge on Triangle Park Inc., and Edge Residential Inc. (the “Urbancorp Companies”) were placed under the protection of the Companies’ Creditors Arrangement Act (“CCAA”) and The Fuller Landau Group Inc. was appointed their Monitor. The appeal concerns an order which arose in an action (“the claim”) that was originally commenced by the Monitor in April 2018. On May 9, 2018, Myers J. authorized the assignment of the Monitor’s claim to the CCAA creditors. The Monitor assigned the claim to G.G. in his capacity as the Foreign Representative of the CCAA creditors of the Urbancorp Companies (“the respondents”).

In their statement of claim, the respondents sought to set aside or invalidate transfers of condominium units to the appellants on various bases, including oppression under s. 248 of the Ontario Business Corporations Act (“OBCA”), transfers at undervalue under s. 96 of the Bankruptcy and Insolvency Act (“BIA”), fraudulent conveyances under the Fraudulent Conveyances Act, and/or fraudulent preferences under the Assignments and Preferences Act.

The respondents brought a pleadings motion to strike allegations in certain paragraphs of the appellants’ amended statement of defence on the basis that they were irrelevant in that they related to the events connected with the appointment and knowledge of the Foreign Representative. The motion judge agreed and struck certain sections of the amended statement of defence that contained the irrelevant allegations.

issues:

(1) Is leave to appeal required?

(2) Should leave to appeal be granted?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The Court concluded that the motion judge’s order was “made under” the CCAA such that leave to appeal was required pursuant to s. 13 of the CCAA. The Court clarified that the correct analytical framework, in determining whether an order requires leave to appeal under s. 13 of the CCAA, was set out in Essar Steel Algoma (Re) (“Essar”). In Essar, Brown J.A. advanced a purpose-focused inquiry informed by the legislative purpose underling the s. 13 leave requirement. As Essar concluded, the words, “made under this Act” in s. 13 must be given a broad interpretation to achieve the Act’s legislative purpose.

The Court explained that the motion judge’s order striking out the paragraphs of the amended statement of defence was bound up with and incidental to the CCAA proceedings out of which this proceeding arose. The foundation of the motion judge’s decision was that the struck paragraphs were irrelevant to the assigned claim of the Monitor that was brought for the benefit of all creditors in the CCAA proceedings.

The Court rejected the appellants’ submissions that the order in issue relates to the oppression remedy pleaded by the respondents. The Court found that such a narrow approach ignored the entirety of the respondents’ claims. Moreover, it risked devolving the requisite analysis into a parsing exercise and undermine the broad functional inquiry that the Court must apply in determining whether the order in issue was “made under” the CCAA.

The Court stated that where the jurisdiction of a court emanates from both the CCAA and another statute, it would be unhelpful to deconstruct the proceedings to determine which elements of the case fell under the CCAA and therefore require leave. Rather, the Court agreed with Sandhu v. MEG Place LP Investment Corporation, which held that “if a claim is being prosecuted by virtue of or as a result of the CCAA, section 13 applies.”

(2) No.

The Court held that the appellants met none of the criteria for leave. The Court explained that it is well-established that leave to appeal under s. 13 of the CCAA is granted sparingly. The following factors to consider in determining whether leave should be granted was recently reiterated in Urbancorp Toronto Management Inc. (Re): (a) the proposed appeal is prima facie meritorious or frivolous; (b) the points on the proposed appeal are of significance to the practice; (c) the points on the proposed appeal are of significance to the action; and (d) the proposed appeal will unduly hinder the progress of the action. The Court found no error in the motion judge’s analysis or conclusions. In addition, the Court found that the proposed appeal equally hindered the progress of the CCAA proceeding and the distribution of assets to the creditors.


Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129

[Pepall, Trotter and Thorburn JJ.A.]

Counsel:

R.W. Staley, N.J. Shaheen and A.N. Sahai, for the appellants
J. Groia and B. Pascutto, for the respondent

Keywords: Defamation, Motions, Anti-SLAPP Motions, Harm, Damages, Protection of Public Participation Act, 2015, S.O. 2015, c. 23, s. 137.1, 137.2(2), Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Bent v. Platnick, 2020 SCC 23, Tamming v. Paterson, 2021 ONSC 8306, Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555, Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529, Bangash v. Patel, 2022 ONCA 763, Levant v. De Melle, 2022 ONCA 79, Lascaris v. B’nai Brith Canada, 2019 ONCA 163, Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), “Canadian Anti-SLAPP Laws in Action” (2022) 100:2 Can. B. Rev. 186

facts:

The appellant, Park Lawn Corporation (“Park Lawn”), is Canada’s largest funeral home and deathcare enterprise. It maintains trust funds for, among other things, future care and maintenance of cemeteries, and pre-need funds deposited by consumers. These funds are held by third party trustees and managed by third party managers. The respondent, Kahu Capital Partners Ltd., an investment management company established under the laws of the Commonwealth of the Bahamas in 2017, managed certain of appellant’s trust funds.

In October 2019, the Board of Directors of the appellant appointed a Special Committee of independent directors to investigate allegations of misconduct against officers of the appellant. A third party would, in 2020, raise concerns with the appellant regarding the appellant’s relationship with the respondent.

The Special Committee and the appellant’s Investment Committee commenced an investigation into the respondent and its relationship with the appellant. As a result, Mr. CK, the appellant’s former CEO, resigned and the appellant commenced a claim for damages against him.

On May 12, 2021, the appellant sued the respondent, along with Mr. BG and Mr. AZ, for knowingly assisting Mr. CK in his alleged misdeeds with respect to trust funds held by the appellant and for repayment of consulting and management fees paid to the respondent. The appellant alleged that Mr. BG was prohibited by the Ontario Securities Commission from fund management activities in Ontario yet was the directing mind of the respondent and that Mr. AZ, the respondent’s CEO was merely the respondent’s public face. The appellant alleged that the respondent was established for the purpose of managing trust funds entrusted to Park Lawn and using the trust funds for Mr. CK.

Before the defendants had filed their defence to the action, the appellant’s new CEO, Mr. BG, made statements to Financial Service Insider, an industry newsletter available to subscribers. Mr. BG maintained that he had a moral and ethical duty to speak out about Mr. CK and his associates. He made statements about the respondent that were reported on July 12, 2021.

On July 28, 2021, the defendants delivered a statement of defence, and the respondent delivered a counterclaim alleging damages for breach of contract and defamation. The respondent joined Mr. BG as a co-defendant by counterclaim. The respondent alleges in the counterclaim that certain statements that referred to the respondent in the Funeral Service Insider article were defamatory.

The appellant brought an anti-SLAPP motion pursuant to s. 137.1 of the CJA to dismiss the defamation portion of the counterclaim.

issues:

(1) Did the motion judge err in concluding that respondent had proven sufficient harm caused by the defamatory statements?

(2) Did the motion judge err by failing to properly weigh any harm against the public interest in protecting Mr. Green’s expression on matters of public interest?

holding:

Appeal dismissed.

reasoning:

As noted by the Court, subsections 137.1(3) and (4) of the CJA set forth the test on an anti-SLAPP motion. Those subsections state:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

The Court explained the “shifting burden” under s.137.1 of the CJA:  (i) the onus is on the moving party (in this case, the appellants who were the defendants by counterclaim) to satisfy the motion judge that the proceeding arises from an expression relating to a matter of public interest; and (ii) if that burden is met, the responding party must then satisfy the motion judge that (a) there are grounds to believe that the proceeding has substantial merit and the moving party has no valid defence, and (b) the harm likely to be or that has been suffered is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

The Court noted that, pursuant to ss. 137.1(7) and (8), there is a presumption that a successful moving party will be entitled to full indemnity costs but if the responding party is successful, it is presumptively not entitled to costs of the motion. As the motion judge on this appeal was aware, the Court found that this cost regime carried the potential for litigation tactics that were tethered to costs and expense rather than the merits of the case.

The Court also reviewed the purposes of s.137.1, which are expressly set forth:

The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

In order to address the objectives of the legislation, the Court found that it bore repeating that the emphasis of the motion should be on the “crux” or “core” of the analysis, namely the weighing exercise. The Court found that this should not involve a trial of the issue or as some have put it, a “trial in a box”. In light of this, the Court suggested that, as a guideline, the costs of such a motion should not generally exceed $50,000 on a full indemnity basis, although there will be exceptions and motion judges always have the power to award less, more or nothing as they see fit in the circumstances of each case. The Court held that, typically, the conclusion should be obvious and one readily reached by a motion judge.

The Court also noted that a motion judge’s determination on a s. 137.1 motion will be entitled to deference on appeal absent an error in law or palpable and overriding error.

(1) No.

The appellant argued that the trial judge had erred by failing to identify or rely on any evidence of specific harm or causation.  It was also submitted that any reputational harm to the respondent was limited given that its reputation was already blemished, the audience for the publication was restricted to subscribers, the respondent had no clients when the article was published and, in any event, it had only ever provided services to the appellant.

The Court held that, when examining the issue of harm, there is a distinction between the establishment of harm and the magnitude of the harm. The Court noted that the latter goes to the assessment of whether the harm is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. The Court, citing Lascaris v. B’nai Brith Canada, held that in assessing whether harm is sufficiently serious such that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression, some statements are so likely to cause serious harm to a person’s reputation that the likelihood of harm being caused can be inferred.

The Court also noted that in Levant v. De Melle, the Court had held that harm can at times be presumed in defamation cases, but cautioned that presumed harm is generally insufficient for the purposes of s. 137.1, particularly where the plaintiff is a corporation whose reputation is not “unblemished”.

The Court found that the motion judge correctly described the legal principles applicable to the third part of the test on an anti-SLAPP motion and considered the appellants’ submissions on the elements of the test. The Court found that he had made numerous findings of harm and causation. First, the Court held that the motion judge found that the appellants had made an implicit concession that the respondent did suffer some damages. Second, the motion judge inferred that repetition of allegations of misconduct in the Funeral Insider Report would cause additional harm beyond the harm caused by the appellants’ lawsuit.

The Court found that it would be ironic for Mr. BG to make these statements in the hopes that they would convince others of the respondent’s misconduct, and then, for the purposes of the anti-SLAPP motion, assert that these statements could not have had any effect on the respondent’s reputation. Accordingly, the motion judge did not err regarding the harm analysis.

(2) No.

The Court held that the motion judge did not err in weighing exercise under s.137.1 of the CJA. The Court found that the motion judge wove his weighing throughout his reasons, and correctly applied the applicable law.

The Court also held that the motion judge was legitimately influenced by the fact that the litigation between the parties would not be resolved by granting the appellants’ motion, that the anti-SLAPP motion was inspired by strategic and tactical considerations, and that the appellants had assumed the risks associated with litigating outside the confines of the court proceeding.

Finally, the Court found that an anti-SLAPP motion seeking to dismiss a counterclaim may ultimately add expense and delay, which are anathema to the purposes of s.137.1 of the CJA.


Celestini v. Shoplogix Inc., 2023 ONCA 131

[Simmons, Paciocco and Zarnett JJ.A.]

Counsel:

M. A. Polvere and J. R. Leslie, for the appellants
D. Conn, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Notice Period, Reasonable Notice, Changed Substratum Doctrine, Damages Award, Bonus Payment, Employment Standards Act, 2000, S.O. 2000, c. 41, Machtinger v HOJ Industries Ltd., [1992] 1 S.C.R. 986, Wallace v. Toronto-Dominion Bank (1983), 41 O.R. (2d) 161 (C.A.), MacGregor v. National Home Services, 2012 ONSC 2042, Miller v. Convergys CMG Canada Limited Partnership, 2013 BCSC 1589, 10 C.C.E.L. (4th) 187, Schmidt v. AMEC Earth & Environment et al., 2004 BCSC 1012 , Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, Rasanen v. Lisle-Metrix Ltd. (2002), 17 C.C.E.L. (3d) 134 (Ont. S.C.), Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, 449 D.L.R. (4th) 583, Paquette v. TeraGo Networks Inc., 2016 ONCA 618, 34 C.C.E.L. (4th) 26, Lin v. Ontario Teachers’ Pension Plan, 2016 ONCA 619, 402 D.L.R. (4th) 325, SFC Litigation Trust v. Chan, 2019 ONCA 525, 147 O.R. (3d) 145, Bernier v. Nygard International Partnership, 2013 ONCA 780

facts:

Shoplogix was founded in 2002. SC was one of its co-founders, and he originally served as its CEO and then was given the position of CTO. Shoplogix and SC signed a written employment contract dated May 17, 2005 (the “2005 Contract”).

The 2005 Contract provided that Shoplogix could dismiss SC without cause by giving one month’s written notice and continuing to pay his base salary and group health coverage for 12 months from the date of termination. SC would also be entitled to be paid an amount equal to the bonus he received in the prior year, pro-rated for the period of the current year up to termination.

In 2008, SC and Shoplogix entered into an Incentive Compensation Agreement (“ICA”), a bonus plan for management-level employees. The motion judge found that it significantly changed SC’s compensation from the bonus arrangements in the 2005 Contract. Another change was the drastic reduction in the number of senior management personnel, which caused SC’s workload and responsibilities to increase substantially.

In 2017, the appellant, Shoplogix, dismissed the respondent, SC, from his employment, without cause. When it did so, Shoplogix took the position that SC’s rights were governed by an employment contract signed 12 years earlier, in 2005. The 2005 Contract provided that, upon a without cause termination, Shoplogix would pay SC’s base salary, and continue his group health insurance, for 12 months, and would make a pro-rated payment for his annual bonus accrued up to termination. It provided that these payments would be in full satisfaction of all claims arising out of the termination.

In applying the changed substratum doctrine, the motion judge found that SC’s responsibilities fundamentally and substantially increased over the course of his employment. SC was therefore entitled to damages at common law for the failure of Shoplogix to provide reasonable notice of termination. The motion judge found the appropriate notice period was 18 months. He awarded damages comprised of six additional months of base salary (in addition to the 12 Shoplogix had already paid), bonus entitlements SC would have received over the 18 month notice period less an amount for accrued bonus paid to him on termination, car allowance entitlements, and lost life insurance benefits. The total awarded was $421,043.05.

issues:

(1) Did the motion judge err in applying the changed substratum doctrine?

(2) On cross-appeal, did the motion judge err in deducting, from the damages award, the bonus payment that SC received at the time of termination?

holding:

Appeal dismissed. Cross-appeal allowed in part.

reasoning:

(1) No.

At the outset, the Court stated that the changed substratum doctrine operates as a limit on when an employee’s common law entitlements will be restricted by the express terms of a historical written contract. Given that an employer-employee relationship may evolve in a fundamental way after the written contract was made, the doctrine recognizes the potential inappropriateness and unfairness of applying the contract’s termination provisions to circumstances that were not contemplated at the time of contracting. The question of whether the changed substratum doctrine applies in any particular situation is one of mixed fact and law.

The Court held that to the extent that Shoplogix suggested that the doctrine could only apply to an employee who began in a non-executive role, there was nothing to support such a limitation either in the doctrine itself or the principle that underlies it. While the Court agreed that there must be a fundamental expansion, not a reduction, in the employee’s duties in order to engage the changed substratum doctrine, the Court held that this does not mean that in addition to that fundamental expansion of duties, a change in the employee’s formal title must also have occurred. The question of whether the “employee’s level of responsibility and corresponding status has escalated so significantly” was one of substance, not form. More important was whether there were actual increases, of a fundamental nature, in the duties and degree of responsibility of the employee. If there were, the employee was for all intents and purposes “promoted”, given their escalated status, even if the assigned title did not change.

The Court also held that the motion judge’s determination that the terms of the ICA did not clearly oust SC’s common law entitlement to damages for the loss of his ICA bonus was free of error. The motion judge properly considered this issue by applying the decision of the Supreme Court in Matthews v. Ocean Nutrition Canada Ltd. (“Matthews”). In Matthews, the Supreme Court adopted this court’s approach to interpreting bonus entitlement as set out in Paquette v. TeraGo Networks Inc., and Lin v. Ontario Teachers’ Pension Plan (“Lin”). The analysis was two-part: (1) would the employee have been entitled to the bonus or benefit as part of their compensation during the reasonable notice period?; and (2) if so, do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right?

In applying this test, the Court stated that the ICA provided that if Shoplogix terminated SC’s employment for a reason other than cause, then Shoplogix would pay the bonus earned up to the date of termination. Like the clauses considered in Matthews and Lin, s. 2 of the ICA did not unambiguously oust SC’s right to damages upon the circumstances that actually arose, that is, a without cause termination without reasonable notice − termination without cause must be taken to mean a lawful termination following the reasonable notice period. Ultimately, the Court agreed with the motion judge that the ICA did not oust the right to common law damages representing the loss of bonus over the reasonable notice period.

Lastly, the Court held that calculations of damages are entitled to considerable deference on appeal and are not be interfered with in the absence of an error of law or principle, a misapprehension of evidence, or if palpably incorrect: SFC Litigation Trust v. Chan. Accordingly, the motion judge made no reversible error in adopting an averaging approach for the bonus entitlement that would have been earned in the notice period.

(2) Yes, in part.

It was the Court’s view that the motion judge’s decision to deduct the entire bonus payment Shoplogix made on dismissal was palpably incorrect. It credited a payment made to satisfy a Shoplogix obligation to pay bonus referable to the period up to March 2, 2017, against a Shoplogix obligation to pay bonus referable to an 18 month period following March 2, 2017. Shoplogix had both obligations, and performance of one did not reduce its obligation to perform the other except to the extent Shoplogix made an overpayment of its obligations. It is clear that the damages for lost bonus the trial judge calculated was for the reasonable notice period − that is, 18 months following March 2, 2017. It did not include the period before dismissal.

SC was entitled to be paid his bonus up to March 2, 2017 according to the ICA, not under the 2005 Contract. The formula used for calculating SC’s bonus entitlement for the period of 2017 prior to his dismissal should therefore be consistent with the formula used for determining his bonus entitlement in the reasonable notice period. Using the motion judge’s methodology, SC should have been paid $37,188.61 for the period up to termination. The motion judge ought to only have deducted, from the damages award, $13,365.83, the amount by which the payment SC received on termination for pre-dismissal bonus exceeded what he should have received for the period.


Maisonneuve v. Maisonneuve, 2023 ONCA 138

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

Counsel:

S. Hutt and E.L. Lacasse, for the appellants
J.S. Schoenholz, for the respondent JM

Keywords: Fiduciary Duty, Negligence, Breach of Contract, Misrepresentations, Conflict of Interest, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5(1)(a)(iv), Palmer v. The Queen, [1980] 1 S.C.R. 759

facts:

The appellants purchased investment properties on the advice of their former accountant, JM, who at the time was an employee of the corporate respondents. The transactions were conducted in 2013 and 2014. These investments proved to be unsatisfactory, and the appellants ended their relationship with the respondents in the spring of 2016. In January 2019, the appellants commenced an action against JM and the corporate respondents alleging that they had suffered losses of $1.75 million as a result of the respondents’ negligence, breach of contract, misrepresentations, and breach of fiduciary duty arising from JM’s conflict of interest.

The respondents brought a motion for summary judgment on the basis, in part, that the claim was statute-barred. The motion judge granted the motion on that basis and dismissed the action. The appellants submitted that the motion judge erred in finding that there was no genuine issue for trial on the grounds that the limitation period had begun to run as early as March 2016 and no later than December 2016. The appellants also sought leave to introduce fresh evidence.

issues:

(1) Should the appellants be permitted to introduce fresh evidence?
(2) Did the motion judge err in finding that there was no genuine issue for trial on the ground that the limitation period had passed?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court held that the appellants did not meet the test set out in Palmer v. The Queen (the “Palmer test”). The Court explained that even if the appellant’s fresh evidence met the due diligence aspect of the test, the Court did not accept the appellants’ submission that it moved the date of discoverability of the cause of action. The Court found that the relevance of the fresh evidence was tenuous and was not a material fact in relation to the pleaded causes of action. As such, the fresh evidence could not have affected the motion judge’s determination of the summary judgment as required under the fourth branch off the Palmer test.

(2) No.

The Court did not see any reversible error in the motion judge’s determination that the action was statute-barred and that there was no genuine issue requiring a trial. The appellants argued that, as unsophisticated investors, they did not know that a proceeding would be appropriate by December 2016 and thus, argued, they fell within s. 5(1)(a)(iv) of the Limitations Act. The Court agreed with the motion judge that the fact that the appellant, GM, stated that in February 2016, he did not necessarily think that a claim against the appellants would be an “appropriate” remedy, did not fall within the discoverability exception set out in s. 5(1)(a)(iv). The Court further agreed with the motion judge that GM was aware of JM’s involvement in the company Gro-Net, via a letter dated November 22, 2016.


Sumner v. Ottawa (Police Services), 2023 ONCA 140

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

Counsel:

J.A.S, acting in person
M. Simms, for the respondent

Keywords: Tort, Abuse of Process, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 2.1.01(1), r. 2.1.01(3), r. 2.1.01(6), Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Markowa v. Adamson Cosmetic Facial Surgery Inc., 2014 ONSC 6664, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Khan v. Krylov & Company LLP, 2017 ONCA 625, Gao v. Ontario WSIB, 2014 ONSC 6497

facts:

In February 2022, the appellant brought an action against the respondent, seeking injunctive relief to prohibit the Ottawa Police Service (“OPS”) from interfering with the appellant’s attempts to arrest Prime Minister Justin Trudeau. The appellant also sought injunctive relief requiring the OPS to take Justin Trudeau into custody for the crime of extortion under the colour of official right. The appellant sought damages in the total amount of $500,000.

The respondent filed a request under r. 2.1.01(6) that the action be dismissed pursuant to r. 2.1.01(1). That rule provides that the court may stay or dismiss a proceeding “if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court”. On appeal, the appellant submitted that the motion judge was wrong to dismiss the action and that in doing so, she too committed an act of extortion that benefitted Prime Minister Trudeau.

issues:

Did the motion judge commit a reversible error in dismission the proceeding for being frivolous and vexatious?

holding:

Appeal dismissed.

reasoning:

No.

The Court found that the motion judge thoroughly assessed the appellant’s statement of claim and submissions, and that her consideration of hallmarks of frivolous and vexatious proceedings were well grounded. The Court found that the motion judge carefully and accurately: (1) applied the procedure set out in r. 2.1.01(3), and considered the submissions and addressed them clearly; (2) set out the law and policy of r. 2.1.01, and noted that the abusive nature of the proceeding must be obvious on the face of the pleadings itself; (3) considered the statement of claim through the lens of r. 2.1.01 and the considerations articulated; and, (4) summarized the appellant’s submissions, finding hallmarks of frivolous and vexatious proceeding.

The Court agreed with the motion judge that there was no legal basis under Ontario or Canadian law that enables a person to obtain an injunction to require a police officer to arrest a potential offender. In addition, the Court agreed that the statement of claim was intelligible, consisting of legal conclusions and arguments rather than facts.


Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134

[Doherty, Zarnett and Sossin JJ.A.]

Counsel:

R. Kittredge and H. Kheir, for the appellants
J. Hunter, R. Cookson, M. Stevenson, and S. Kissick, for the respondent
A. Schutten and T. Ewert, for the intervener Association for Reformed Political Action

Keywords: Charter of Rights and Freedom, Ontario COIVD-19 Regulations, COVID-19 Restrictions, Religious Freedoms, Oakes Test, Infringement, Reasonable Limits, Canadian Charter of Rights and Freedoms, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, Constitution Act, 1982, s. 52(1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Criminal Code, R.S.C. 1985, c. C-46, Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, Loyola High School v. Quebec (Attorney General), 2015 SCC 12, Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, Doré v. Barreau du Québec, 2012 SCC 12, R. v. Oakes, [1986] 1 S.C.R. 103, (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Hoang (Litigation guardian of) v. Vicentini, 2016 ONCA 723, Parliament (Litigation guardian of) v. Conley, 2021 ONCA 261, Beaudoin v. British Columbia (Attorney General), 2022 BCCA 427, Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, to Figueiras v. Toronto Police Services Board, 2015 ONCA 208, British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., 2009 BCCA 39, R. v. Khawaja, 2012 SCC 69, Saskatchewan v. Durocher, 2020 SKQB 224, Right to Life Association of Toronto v. Canada (Employment, Workforce and Labour), 2021 FC 1125, Canadian Union of Postal Workers v. Her Majesty in Right of Canada, 2016 ONSC 418, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Carter v. Canada (Attorney General), 2015 SCC 5, Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, R. v. Poirier, 2016 ONCA 582, R. v. Grant, 2009 SCC 32, Canada (Attorney General) v. Bedford, 2013 SCC 72, R. v. Collins, [1987] 1 S.C.R. 265, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, Harper v. Canada (Attorney General), 2004 SCC 33, Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, R. v. Sharpe, 2001 SCC 2, Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, R. v. Michaud, 2015 ONCA 585, Grandel v. Saskatchewan, 2022 SKKB 209, Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 219, “Interpreting Freedom of Thought in the Canadian Charter of Rights and Freedoms” (2019) 91 S.C.L.R. (2nd) 107, “Big M’s Forgotten Legacy of Freedom” (2020) 98 S.C.L.R. (2nd) 15; “Recovering Community: Addressing Judicial Blindspots on Freedom of Association” (2020) 98 S.C.L.R. (2nd) 399

facts:

The appellants were two churches and their members who were charged with contravening several of Ontario’s COVID-19 regulations imposing capacity restrictions on indoor and outdoor religious gatherings in late 2020 and early 2021. They each brought motions to set aside court orders made against them on the basis that the authorizing regulations infringed s. 2 of the Canadian Charter of Rights and Freedoms.

The regulations at issue applied to organized public events, social gatherings, and gatherings for the purposes of conducting religious services, rites, or ceremonies. The appellants did not challenge those portions of the regulations that only imposed physical distancing requirements, but rather those imposing numerical or percentage capacity restrictions on indoor and outdoor religious gatherings, that were in force between December 2020 and July 2021.

The appellants asked that the challenged regulations be declared of no force and effect under s. 52(1) of the Constitution Act, 1982 and that the resulting orders against them be set aside.

The motion judge found the challenged regulations infringed the appellants’ right to freedom of religion under s. 2(a) of the Charter but were justified as a reasonable limit on that right in a free and democratic society. She declined to determine whether the regulations also infringed ss. 2(b)-(d) of the Charter as she found those protected interests were subsumed by s. 2(a) in this case.

The motion judge’s finding that s. 2(a) was infringed was not challenged on appeal. The appellants challenged the motion judge’s treatment of the expert evidence, her decision not to rely on “hindsight” evidence in evaluating the regulations, her decision not to consider the other alleged Charter breaches, and her conclusion that the regulations were justified under s. 1. The intervener, Association for Reformed Political Action (“ARPA”), made submissions on the third and fourth issues.

issues:

(1) Did the motion judge err in her treatment of the expert evidence?

(2) Did the motion judge err in declining to evaluate the challenged regulations through the lens of hindsight?

(3) Did the motion judge err in declining to conduct separate analyses under ss. 2(b)-(d) of the Charter?

(4) Did the motion judge err in finding the challenged regulations were justified under s. 1 of the Charter?

holding:

Appeal dismissed.

reasoning:

(1) No.
The appellants argued that the motion judge erred by admitting and relying on the opinion evidence of Dr. M, particularly in support of her findings that there was any risk of COVID-19 transmission outdoors and that Ontario’s gathering restrictions reduced infection rates. They submitted that he was a fact witness, not a properly qualified expert witness, and for this reason did not complete the Acknowledgement of Expert’s Duty form under r. 53.03 of the Rules of Civil Procedure.
The respondent highlighted that the appellants did not object to the admissibility of Dr. M’s evidence in the court below. In fact, the appellants had relied on Dr. M’s evidence to support their s. 1 argument. Thus, no substantial wrong or miscarriage of justice occurred. The Court accepted that Dr. M was a participant expert who was not required to comply with r. 53.03 and whose evidence was admissible for the truth of its contents. The Court held that the motion judge was entitled to consider Dr. M’s evidence as a participant expert and stated that the time to object to evidence is when it is put before the judge, not after the judge renders a decision.
The appellant also took issue with the motion judge’s reliance on the evidence of Dr. H, an emergency physician and certified specialist in public health, as well as her failure to rely on that of Dr. C, an infectious diseases physician, and Dr. S, a doctor specializing in public health and internal medicine.
The appellant argued that Dr. H’s testimony that provincial case count numbers accounted for 90% of community cases was clearly false, calling into question his credibility and impartiality, and further pointed out that he did not in fact advise the government on the religious gathering restrictions.
The appellant noted that Dr. C worked on certain provincial COVID-19 guidelines while Dr. S was a former Chief Medical Officer of Health for Ontario. The appellant argued that the motion judge’s decision to give greater weight to the evidence of Drs. H and M while discounting other experts was a palpable and overring error.
The respondent submitted that there was no reason to interfere with the motion judge’s weighing of the expert evidence. Conflicting evidence was not sufficient to establish a palpable and overriding error. The motion judge was not required to address the specific inconsistency raised by the appellants. The issue was peripheral and both Drs. H and C agreed that the number of cases captured by testing was inherently uncertain and that different experts used different data when estimating the proportion of cases that go unreported.
The Court found the motion judge was entitled to rely on all, part, or none of the expert evidence. Her treatment of the evidence was open to her on the record before her, and the purpose of appellate review was not to reassess the weight accorded to such evidence.

(2) No.
The motion judge stated that she was not reviewing the regulations through the standard of hindsight. The appellants alleged the motion judge unduly narrowed her analysis and that this approach insulated laws from scrutiny when new information reveals they had always been unjustified.
The respondent argued that evaluating the challenged regulations based on information that was not available at the time would set an impossibly high standard for governments to justify an infringement. S. 1 should not require governments to predict the future or prevent them from acting on imperfect information.
The Court found that the motion judge had reiterated the dispute before her related to the scientific and policy understandings at the time the regulations were enacted. Additionally, the motion judge was highlighting the importance of context in the analysis, particularly the absence of scientific certainty regarding COVID-19.

(3) No.

The appellants submitted that the motion judge erred by declining to consider and rule separately on the alleged violations of the appellants’ rights to freedom of expression under s. 2(b), freedom of assembly under s. 2(c), and freedom of association under s. 2(d). First, they argued that Trinity Western, was distinguishable since the parties in that case had almost exclusively framed the dispute as centering on religious freedom whereas the appellants made full arguments before the motion judge on the other breaches. They argued that the motion judge erred by finding their s. 2(a) claim “subsumed” the others and should have instead applied the analysis from Ross v. New Brunswick School District No. 15 where the Supreme Court considered both the ss. 2(a) and 2(b) claims.

Second, the appellants and the intervener argued that the motion judge’s failure to consider each freedom separately impacted her application of the Oakes test, particularly in the final balancing of deleterious and salutary effects.

The respondent argued that the motion judge’s decision was consistent with Trinity Western and the principle that courts should decline to address constitutional issues unless it is necessary to do so. The allegations all related to the “single compendious act” of imposing limits on religious gatherings and the motion judge considered all relevant salutary and deleterious effects in the proportionality analysis. In the alternative, the respondent contended that no ss. 2(b), (c), or (d) breach occurred.

(a)          Can one Charter right “subsume” others?

The Court found the alleged infringement of the appellants’ s. 2(a) rights accounted for their related rights to express their religious beliefs, assemble for the purpose of engaging in religious activity, and associate with others who share their faith. While the appellants suggested that certain expressive activities took the form of political protest protected under s. 2(b), those activities were directly related to the government restrictions on religious gatherings. The motion judge noted that her finding that s. 2(a) was infringed accounted for these various manifestations of religious freedom, concluding, “There is no value added by repeating or repackaging the analysis under different constitutional headings.”

The Court found that the authorities relied on by the appellants did not assist them. First, none of the cases stood for the proposition that every alleged Charter infringement must always be considered. Rather, it was an inference the appellants had asked the Court to draw from the separate analysis undertaken by the court for each Charter claim. Second, the cases were distinguishable on their facts.

Therefore, where an examination of the factual matrix revealed that one claimed s. 2 right subsumes others, it was not necessary to consider the other s. 2 claims. The Court stated this approach was particularly apposite in the s. 2 context where the rights were related fundamental freedoms, whereas it may have less application across rights (for example, as between ss. 2, 7, and 15 rights).

The appellants further submitted that while the challenged regulations infringed the right to religious freedom in effect, they infringed the right to peaceful assembly in purpose. They suggested this should be given more weight in the proportionality analysis. However, the Court stated that if the appellants were correct, then the same logic could apply to the s. 2(a) infringement because the regulations specifically restrict religious gatherings. The Court noted that the appellants did not challenge the restrictions that applied to non-religious gatherings, such as social gatherings or other public events. Thus, the Court found the distinction the appellants attempted to draw was one without a difference.

(b)          Are multiple breaches considered cumulatively under the Oakes analysis?

The Court disagreed with the appellants and the intervener that the Oakes test changes where there are multiple breaches of the Charter. The appellants cited no authority to support that the s. 1 proportionality analysis must consider Charter breaches in a cumulative way. However, even if the motion judge expressly had found infringements of ss. 2(b)-(d), the Court was not persuaded that this would have led to a different result, as those same protected interests were considered at the proportionality stage.

The third step of the proportionality exercise directed that “there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ‘sufficient importance’”. Courts are directed to assess the extent, degree, and severity of the effects, but the Court cautioned that this does not mean multiple infringements necessarily enhanced the weight of the harms.

The only proffered authority for considering the cumulative effects of multiple Charter breaches came from the s. 24(2) jurisprudence, R. v. Poirier. The motion judge distinguished this case, and the applicability of s. 24(2) cases in general, on the basis that each breach stemmed from a separate act. The Court stated they would add a more fundamental difference was that the test to exclude evidence obtained in a manner that infringes the Charter, as set out in R. v. Grant, was different than the proportionality analysis in Oakes.

Section 24(2) has developed its own body of case law, distinct from remedies under s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. Analytically, the burden of proof rests on the person seeking to exclude evidence, rather than the Crown. Furthermore, the focus of s. 24(2) was solely on the administration of justice, not what was reasonable and demonstrably justified in a free and democratic society. The Court was not aware of any cases borrowing concepts from the s. 24(2) jurisprudence to inform the s. 1 analysis. In the Court’s view, neither necessary nor justified for purposes of resolving this appeal to exclude the possibility that the effects of multiple Charter infringements could have a bearing on the Oakes analysis in future cases.

(c)          Conclusion on cumulative breaches

The Court found the motion judge did not err in relying on Trinity Western for the proposition that, having found the challenged regulations infringed the appellants’ Charter right to freedom of religion, she did not need to separately consider the alleged infringements of ss. 2(b), (c), and (d).

(4) No.

The appellants contended that throughout the motion judge’s Oakes analysis, the motion judge was “excessively deferential” to Ontario, and that she erred at each step of the test.

(a)          Pressing and substantial objective

The Court saw no error in the motion judge’s identification of the objective, nor in her conclusion that it met the pressing and substantial threshold. Nor did the Court find the s. 1 analysis would substantially change if the appellants’ formulation of the objective were adopted.

The motion judge also addressed the appellants’ argument that Ontario’s objective was not legitimately connected to outdoor gatherings, observing that this was more relevant to rational connection and particularly minimal impairment, where she chose to address it. It was open to the motion judge to address this at either or both of those stages of the Oakes analysis.

(b)          Rational connection

The Court found the motion judge properly instructed herself on the test for whether a challenged law is rationally connected to its objective. She recognized that the government “must show a causal connection between the infringement and the benefit sought on the basis of reason or logic” and that it is reasonable to suppose the limit may further the objective in question.

The Court found it was open to the motion judge to accept the evidence in the record that outdoor gatherings, while reducing the risk of transmission, did not eliminate it, and that any increased risk of transmission could have consequences for the health care system more broadly. While certain experts disagreed with this assessment, merely pointing to some conflicting expert evidence was not sufficient to establish a palpable and overriding error. The Court agreed with the motion judge that Ontario was not required to scientifically prove that the challenged regulations in fact reduced the spread of COVID-19.

(c)          Minimal impairment

The appellants argued that the analogy to Hutterian Brethren was misplaced and that the challenged regulations were more akin to criminal sanctions which should attract stricter scrutiny at the minimal impairment stage.

The Court disagreed stating there were important distinctions between Hutterian Brethren, where a statute of general application (involving the requirement to have photos on driver’s licenses) adversely affected a particular religious group, and in this case, where regulations targeted religious gatherings specifically.

The Court found the motion judge did not err in identifying that deference under the minimal impairment stage of the Oakes analysis was contextual. The Court stated that deference was not a free-floating concept that moves up and down a spectrum. Nor was it a blank cheque whenever governments were faced with a challenging policy issue. Rather, it took its meaning from the context of the challenged law or state action. In this case, the COVID-19 pandemic required Ontario to act on an urgent basis, without scientific certainty, on a broad range of public health fronts. That context not only informed the degree of deference owed to government as the crisis shifted on the ground in real time, but also the heightened importance of vigilance by all branches of government over fundamental rights and freedoms during such times of crisis.

This context also represented the point of departure for the motion judge’s treatment of the precautionary principle and comparisons between the treatment of religious gatherings and other congregate settings. The appellants argued that the motion judge erred in her minimal impairment analysis by adopting the precautionary principle and rejecting the comparison between Ontario’s restrictions on religious gatherings and the retail sector.

The Court found the motion judge did not err in her treatment of the precautionary principle. The motion judge framed the question of whether the challenged regulations were minimally impairing against the evolving understanding of COVID-19 transmission when the various regulations were enacted. The Court found it was appropriate for the motion judge to consider the precautionary principle as informing whether and how the state could meet its objectives of reducing transmission risk and saving lives in a situation of scientific uncertainty. The Court held that this accords with the contextual approach to the Oakes test.

A reasoned or reasonable apprehension of harm does not mean governments can justify infringing Charter rights based on apprehension alone. The minimal impairment analysis still requires an evidentiary basis to show why a measure is a reasonable means of achieving a pressing and substantial objective. While not a constitutional standard, the precautionary principle helps inform what it means to rely on a reasoned apprehension of harm where scientific certainty is not possible. The Court found this application of the precautionary principle was consistent with the jurisprudence and did not introduce an excessively deferential standard into the s. 1 analysis.

The Court also found the motion judge did not err in rejecting the analogy between religious gatherings and the retail sector. It was open to the motion judge to reject the analogy between retail settings and religious gatherings based on the public health rationale. However, the Court noted that even if this differential treatment could not be justified on public health grounds, that would not determine whether the challenged regulations were sufficiently tailored to be minimally impairing. Ontario was entitled to balance the objective of reducing the risk of COVID-19 transmission in congregate settings with other objectives that did not arise in the context of regulating religious gatherings, such as preserving economic activity and preserving other social benefits which that activity made possible.

The Court stated that the challenged regulations included careful tailoring and that the government limited but did not ban religious gatherings. The Court noted that less restrictive measures were generally imposed for religious gatherings than for public events and the restrictions were time-limited and regularly revisited. Alternatives such as virtual or drive-in gatherings were available to permit at least some aspects of religious gatherings during the period of the restrictions.

The Court saw no error in the motion judge’s conclusion that the challenged regulations fell within a range of reasonable alternatives to address the ongoing threat of the pandemic.

(d)          Salutary and deleterious effects

The Court found the motion judge properly instructed herself on the balancing exercise at the final stage of the Oakes analysis. The motion judge stated that while the perspective of a religious claimant is important, it must be considered in the context of a multi-cultural, multi-religious society where the public interest as expressed through state action may conflict with individual beliefs.

In the Court’s view the motion judge’s reference to Ontarians’ “constitutional rights” to public health measures was not a reference to a positive s. 7 right, but rather to the potential infringement of the Charter rights of Ontarians had the government taken steps to address the COVID-19 pandemic that aggravated the threat it posed. More broadly, the motion judge considered that the salutary effects of the challenged regulations were not just beneficial to wellbeing, but potentially life-saving, both for religious congregants and for other Ontarians. The Court noted that her rhetorical flourish did not constitute an error.

The Court found the motion judge did not downplay the negative effects experienced by the appellants, including the impact on the psychological wellbeing of congregants and their ability to “facilitate dissemination of religious content” and to “engage in religious activity as a collective in-person congregation”. She did, consider those effects in the context of the burdens and sacrifices borne by many individuals and communities across Ontario in the interests of public health. Further, she balanced these burdens against the benefits of the regulations.

The Court saw no error in the motion judge’s assessment of the deleterious effects and salutary benefits of the challenged regulations, nor in her overall conclusion that the challenged regulations were justified under s. 1 of the Charter.


Jovkovic v. DaSilva, 2023 ONCA 137

[Brown, Sossin and Copeland JJ.A.]

Counsel:

M.A. van Bodegom and B.J. Carter, for the appellant
J.R.D. Clark, for the respondent

Keywords: Bankruptcy and Insolvency, Judgment Creditor, Property Transfer, Transfer for Undervalue, Assignment in Bankruptcy, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 38, s. 96, s. 96(1)

facts:

The appellant, CD, and her husband SMD, acquired property located in Cambridge, Ontario (the “Property”) as joint tenants for consideration of $237,000 in November 2004. On June 10, 2016, approximately one year after the respondent, DJ, had commenced an action against SMD, SMD transferred his one-half interest in the Property to CD for consideration of $0. At the time, the fair market value of the Property was $380,000.

On September 11, 2017, SMD granted a mortgage on the Property of $550,000 to the Royal Bank of Canada. Two months later, SMD filed for an assignment in bankruptcy.

In January 2019, the respondent obtained judgment against SMD and his corporation for approximately $427,000. In June 2021, the respondent obtained authorization under s. 38 of the Bankruptcy and Insolvency Act (the “BIA”) to commence a proceeding for an order that SMD’s transfer of his one-half interest in the Property to his wife was void as a transfer for undervalue. The respondent commenced an application and SMD’s other creditors joined. By judgment dated May 27, 2022, the application judge declared, pursuant to s. 96 of the BIA, that the Transfer was a transfer for undervalue, void against the trustee, and set it aside.

issues:

(1) Did the application judge err by declaring that the transfer was a “transfer at undervalue”?
(2) Did the application judge err in finding that SMD was insolvent at the time of the transfer?
(3) Did the application judge err in finding that SMD’s conduct was indicative of an intention to defraud, defeat or delay his creditors?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court held that the application judge did not err in finding that the transfer was at undervalue. The appellants argued that the application judge erred in finding that the transfer was at undervalue because she treated the value of her husband’s one-half interest in the Property as 50% of the gross fair market value of the Property without considering the amount of the encumbrances on the Property. The Court did not accept this argument as s. 96(1) of the BIA defines a “transfer at undervalue” as a disposition of property for which no consideration is received by the debtor or for which the consideration received is conspicuously less than the fair market value of the consideration given by the debtor.

(2) No.

The Court found no palpable and overriding error, holding that the application judge’s findings were firmly anchored in the record as a whole, including the answers given by SMD on his examination by the Official Receiver and the evidence of other creditors that SMD was insolvent.

(3) No.

The Court held that the application judge did not err in finding that SMD’s conduct was indicative of an intention to defraud, defeat or delay his creditors because the application judge did not make a finding regarding SMD’s intention to defeat creditors. The application judge’s comments in this regard were obiter.


Aslezova v. Khanine, 2023 ONCA 153

[Roberts, Nordheimer and Favreau JJ.A.]

Counsel:

E. Karp and I. Literovich, for the appellant
A. Feldstein and A. Troitschanski, for the respondent

Keywords: Family Law, Financial Disclosure, Court Orders, Non-Compliance, Motion to Strike, Family Law Rules, O. Reg. 114/99, s. 1(8), Martin v. Watts, 2020 ONCA 406, Mullin v. Sherlock, 2018 ONCA 1063, Roberts v. Roberts, 2015 ONCA 450, Purcaru v. Purcaru, 2010 ONCA 92, Kovachis v. Kovachis, 2013 ONCA 663, Ferguson v. Ferguson, 2022 ONCA 543, Manchanda v. Thethi, 2016 ONCA 909, Lalande v. Lalande, 2023 ONCA 68, Peerenboom v. Peerenboom, 2020 ONCA 240

facts:

The parties were married for about 20 years before they separated in 2017. Following a multi-day case conference before Bennett J. culminating on September 10, 2021, the parties settled the issues of parenting time, decision-making and the residence of the children. They also agreed on a detailed order providing for the appellant’s financial disclosure relating to millions of dollars in corporate and other assets (the “Disclosure Order”). The appellant was required to produce the documents or directions for their production, if they existed, within 45 days of the Disclosure Order. If the appellant could not produce them, he had to provide an affidavit explaining his efforts to obtain them and why he could not obtain them within 60 days of the Disclosure Order.

The appellant did not provide the necessary documents within the required time frame. After six months, the respondent brought a motion to strike the appellant’s pleadings based on his non-compliance with the Disclosure Order. The appellant responded by producing some, but not all, of the requested documents. Further many of the documents he provided were in Russian, without a translation. In the circumstances, based on the appellant’s ongoing refusal to comply with the clear provisions of the Disclosure Order and his noted history of non-compliance with other court orders, the motion judge struck the appellant’s pleadings.

issues:

Did the motion judge err in striking out the appellant’s pleadings?

holding:

Appeal dismissed.

reasoning:

No.

The appellant argued that the motion judge ought to have made a less onerous order giving him another chance to comply with the Disclosure Order. He argued that the striking of pleadings is a remedy of last resort that should only be ordered in the most exceptional of cases, and that his conduct did not meet this threshold.

The Court stated that the motion judge decision to strike out the appellant’s pleadings was entitled to deference and it found no reversible error. Section 1(8) of the Family Law Rules permitted the court to make any order that it considered necessary for a just determination of the matter, including an order to strike out pleadings. The Court noted that this is an extraordinary remedy, and such a decision is driven by the particular facts of each case, including the importance or materiality of the items of disclosure not produced. Further, those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.

The appellant’s submission not only ignored the plain reality that he was in ongoing breach of his disclosure obligations but also his failure to comply with other orders including support payments. Further, the respondent ought not to have been put to the expense and effort of bringing a motion to ensure the appellant’s compliance. The Court noted that the obligation to provide financial disclosure in a case such as this did not simply flow from the disclosure order, but also more broadly from fundamental principles of family law. Financial disclosure ought to be automatic and should not require a court order.

The Court concluded that the appellant’s financial disclosure obligations arose at and were ongoing from the commencement of the proceedings in 2017. As a result, his conduct as found in ignoring court orders and failing to comply with his basic disclosure obligations put him in the exceptional category of cases where the judge’s discretion to strike his pleadings was reasonably exercised.


SHORT CIVIL DECISIONS

Sunlight General Capital LLC v. Effisolar Energy Corporation, 2023 ONCA 133

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

Counsel:

A. Rouben, for the appellant
J. Wuthmann and D. Steinberg, for the respondent

Keywords: Foreign Judgment, Recognition and Enforcement, Suspension of Limitation Periods, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, O. Reg 73/20, Practice Direction Concerning Civil Appeals, s. 13, Beals v. Saldanha, 2003 SCC 72, Independence Plaza 1 Associates L.L.C. v. Figliolini, 2017 ONCA 44

Everest Finance Corporation v. Jonker, 2023 ONCA 146

[Huscroft, Miller and Nordheimer JJ.A.]

Counsel:

D.G. Boghgosian and G.M. Pakozdi, for the appellant
R.J.J., acting in person

Keywords: Costs, Full Indemnity, MCAP Financial Corp. v. George Fernicola in Trust and Carrington Homes Ltd., 2010 ONSC 148

Daly v. Ontario (Landlord and Tenant Board), 2023 ONCA 152

[Pepall, Roberts and Nordheimer JJ.A.]

Counsel:

J.D., acting in person
B. Blumenthal, for the respondent, The Landlord and Tenant Board
K. Leung, for the respondent, His Majesty the King in Right of Ontario and the Attorney General of Ontario

Keywords: Landlord and Tenant Board, Sexual Harassment, Substantial Interference, Bias, No Reasonable Cause of Action, Canadian Charter of Rights and Freedoms, s. 24(1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01, Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 232(1), Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, s. 9(2)(b), Raba v. Landlord and Tenant Board, 2014 ONSC 2599, Speckling v. Kearney, 2007 BCCA 145

Adejuyigbe v. Boynton, 2023 ONCA 141

[Pepall, Nordheimer and Favreau JJ.A.]

Counsel:

O.G. Barnwell, for the appellant
B. O’Connor and J. Hadlaw-Murray, for the respondents

Keywords: Employment Law, Severance, Full and Final Release, Discrimination, No Reasonable Cause of Action, Settlement Privilege, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b), Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19

Rudin-Brown v. Brown, 2023 ONCA 151

[Roberts, Nordheimer and Favreau JJ.A.]

Counsel:

G.R.B., acting in person
J.A. Christian, for the respondents

Keywords: Wills and Estates, Loss of Capacity, Power of Attorney for Property and Personal Care, Meritless Appeal, Costs, Substantial Indemnity, Lewis v. Lewis, 2019 ONCA 690

2343680 Ontario Inc. v. Talpade, 2023 ONCA 154

[Roberts, Nordheimer and Favreau JJ.A.]

Counsel:

T.T. and V.T., acting in person
M.I. Rotman and Y. Jaimangal, for the respondents 2343680 Ontario Inc., M.A. and L.D.
A. Sidhu, for the respondents J.P. and Canada Lend

Keywords: Mortgagee and Mortgagor, Default, Enforcement, Bias and Prejudice, Procedural Fairness, Palkowski v. Ivancic, 2009 ONCA 705, Housen v. Nikolaisen, 2002 SCC 33


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with 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.