COURT OF APPEAL SUMMARIES (February 19 – February 23)

By John Polyzogopoulos on February 25, 2024

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Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 19, 2024.

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In Shannon v Hrabovsky, a successful will-challenge case, the Court confirmed that the two-year limitation period to challenge a will starts to run from when the disappointed beneficiary applicant first obtained a copy of the will that disinherited them.

Wu v Suevilia Development Corporation interprets the notice provisions for the unilateral change of closing dates imposed by builders under the Tarion Addendum to agreements of purchase and sale of new-build homes. In this case, the buyer was not able to avoid the forfeiting of their substantial deposit.

In Los v Ross, the Court upheld the motion judge’s determination that the court had jurisdiction over a parenting dispute between a couple that lived in Montreal and whose child was born and raised there for the first six months of the child’s life. After the parties separated, the mother moved to Ontario with the child to live with her parents, with the father’s acquiescence. This acquiescence, over a period of about five months, was sufficient to support a finding that the child was habitually resident in Ontario and therefore the Ontario court had jurisdiction to determine the issues of parenting and child support.

In Gill v. Maciver, the Court a doctor sued various other doctors and other individuals over social media criticism of the doctor’s stance towards the government’s response to the COVID-19 pandemic. The motion judge dismissed the claims under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act. The criticisms of the doctor’s stance were commentaries on matters of public interest and protected by the defence of fair comment. The Court dismissed the appeal.

In Rimon v. CBC Dragon Inc., the Court upheld the motion judge’s dismissal of the appellants’ defence and counterclaim for failure to answer undertakings and produce documents.

In 8167800 Canada Inc (Lead Home Renovation) v Denison Limited, the appellant was successful in obtaining relief from forfeiture. However, in granting that relief, the motion judge found that the appellant had been manufacturing kitchen cabinets in breach of the use clause in the lease. The appellant was ordered to cease breaching the use clause and appealed that aspect of the order. The appeal was dismissed.

In 2682283 Ontario Ltd (Volcano Café and Lounge) v. Durham (Regional Municipality), the appellant, a hookah lounge, was unsuccessful in challenging a municipal smoking and vaping by-law enacted by Durham Region. The decision primarily discusses the authority of the Regional Senior Justice of the Ontario Court of Justice under the Provincial Offences Act to set fines for the breach of the by-law.

Other topics this week included a fee dispute between lawyer and client dressed up as a claim in negligence, and the dismissal of another claim against a lawyer as frivolous and vexatious.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Shannon v. Hrabovsky, 2024 ONCA 120

Keywords: Wills and Estates, Capacity, Suspicious Circumstances, Civil Procedure, Limitation Periods, Discoverability, Appeals, Fresh Evidence, Limitations Act, 2002, SO 2002, c 24, Sched B, s 4, 5(1)(a)(iv)(2), Courts of Justice Act, RSO 1990, c C 43, s 134(1), Rules of Civil Procedure, r 4.06(2), St. Amand v Tisi, 2018 ONCA 106, Palmer v The Queen, [1980] 1 SCR 759, Levy v Fitzgerald, 2012 ONSC 2105, 27 C.P.C. (7th) 225, Dean v Mister Transmission (International) Limited, 2010 ONCA 443, Iroquois Falls Power Corporation v Ontario Electricity Financial Corporation, 2016 ONCA 271, Barendregt v Grebliunas, 2022 SCC 22, Benhaim v St-Germain, 2016 SCC 48, South Yukon Forest Corp. v R., 2012 FCA 165, Grant Thornton LLP v New Brunswick, 2021 SCC 31, Leibel v Leibel, 2014 ONSC 4516, Birtzu v McCron, 2017 ONSC 1420, Sengmueller v Sengmueller (1994), 17 OR (3d) 208 (CA), Vout v Hay, [1995] 2 SCR 876, Scott v Cousins (2001), 37 ETR (2d) 113 (Ont SC), Stekar v Wilcox, 2017 ONCA 1010, Waxman v Waxman (2004), 186 OAC 201 (CA)

Wu v. Suevilia Development Corporation, 2024 ONCA 124

Keywords: Contracts, Interpretation, Standard of Review, Real Property, Agreements of Purchase and Sale of Land, New Homes, Tarion Addendum, Ontario New Home Warranties Plan Act, RSO 1990, c O 31, O Reg 165/08, Warranty For Delayed Closing or Delayed Occupancy, s 7, O Reg 273/04, Designation of Corporation, Reddy v 1945086 Ontario Inc., 2019 ONSC 2554, Canadian Imperial Bank of Commerce v Urbancorp (Leslieville) Developments Inc., 2020 ONCA 449, Housen v Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Ontario New Home Warranty Program v Lukenda (1991), 2 OR (3d) 675 (CA), Wong v Greyrock (Saddlebrook) Building Corp. (1993), 34 RPR (2d) 215 (Ont Gen Div)

Los v. Ross, 2024 ONCA 122

Keywords: Family Law, Parenting, Child Support, Civil Procedure, Jurisdiction, Children’s Law Reform Act, R.S.O. 1990, c. C.12,s.22(2), Dovigi v. Razi, 2012 ONCA 361, Zafar v. Azeem, 2024 ONCA 15, Office of the Children’s Lawyer v. Balev, 2018 SCC 16

Gu v. Huang, 2024 ONCA 129

Keywords: Contracts, Solicitor and Client, Torts, Professional Negligence, Breach of Fiduciary Duty, Standard of Care, Civil Procedure, Security for Costs, Rules of Professional Conduct

Regan v. Esterbauer, 2024 ONCA 139

Keywords: Contracts, Solicitor and Client, Torts, Professional Negligence, Civil Procedure, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, r. 21.01(3)(d), Lang Michener LLP v King, 2017 ONSC 1917

Gill v. Maciver, 2024 ONCA 126

Keywords: Torts, Defamation, Constitutional Law, Freedom of Speech, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990 C. c.43, s.137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Bent v. Platnick, 2020 SCC 23, Hansman v. Neufeld, 2023 SCC 14, Levant v. DeMelle, 2022 ONCA 79, Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129

Rimon v. CBC Dragon Inc., 2024 ONCA 128

Keywords: Civil Procedure, Documentary and Oral Discovery, Orders, Enforcement, Striking Pleadings, Rules of Civil Procedure, Rules 30.08, 60.12, Bottan v. Vroom, 2002 CanLII 41691 (Ont. C.A.), Aslezova v. Khanine, 2023 ONCA 153, Newlove v. Moderco Inc., 2002 CanLII 34748 (Ont. S.C.), Falcon Lumber Limited. v. 24803375 Ontario Inc., 2020 ONCA 310

8167800 Canada Inc (Lead Home Renovation) v Denison Limited, 2024 ONCA 146

Keywords: Contracts, Real Property, Commercial Leases, Permitted Uses, Assignments, Equitable Remedies, Relief from Forfeiture, Civil Procedure, Reasonable Apprehension of Bias, Costs, Hamilton v Open Window Bakery Ltd, 2004 SCC 9

2682283 Ontario Ltd (Volcano Café and Lounge) v. Durham (Regional Municipality) , 2024 ONCA 132

Keywords: Municipal Law, By-laws, Health, Business Regulation, Municipal Act, 2001, S.O. 2001, c. 25, s. 115(1), 115(5), 273, Durham Region Smoking By-Law No. 28-2019, s. 10.1, 11.1, Provincial Offences Act, R.S.O. 1990, P.33, ss. 3, 5, 21, 91.1(2), Health Protection and Promotion Act, R.S.O. 1990, c. H.7, Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200, Courts of Justice Act, R.S.O. 1990, c. C.43, Foley v. St. Mary’s (Town), 2016 ONCA 528, Sheilagh Stewart and Jane Moffatt, Stewart & Moffatt on Provincial Offences Procedure in Ontario, 4th ed. (Salt Spring Island: Earlscourt Legal Press Inc., 2020)

Short Civil Decisions

Sokil v. Buffone, 2024 ONCA 127

Keywords: Wills and Estates, Civil Procedure, Contempt, Appeals, Stay Pending Appeal, Costs, Succession Law Reform Act, R.S.O. 1990, c. S.26, Part II, Brad-Jay Investments Limited v. Village Developments Limited (2006), 2006 CanLII 42636 (ON CA), leave to appeal refused, [2007] S.C.C.A. No. 92

9806881 Canada Corp. v. Swan, 2024 ONCA 133

Keywords: Civil Procedure, Costs

Lengyel v. Public Guardian and Trustee, 2024 ONCA 130

Keywords: Civil Procedure, Appeals

CIVIL DECISIONS

Shannon v. Hrabovsky, 2024 ONCA 120

[Roberts, Sossin and Dawe JJ.A.]

Counsel:

N. Ronski, for the appellants

V. Msi, for the respondent

facts:

The testator A.H. (the “testator”), who died in November 2014, had two adopted children: G.S., who is the respondent in this appeal, and G.H., who is one of the two appellants. The second appellant, M.H., is the testator’s brother.

In April 2002 the testator executed a last will and testament (the “2002 Will”) which left equal bequests of ten percent of the residue of his estate to G.S and G.H’s children and divided the remainder equally between G.S. and G.H. In November 2006 the testator executed a new will (the “2006 Will”) which was even more favourable to G.S. In July 2007, the testator executed another will (the “2007 Will”) which disinherited G.S. and removed her as an executor.

After the testator’s death in November 2014, G.S. commenced an application in which she challenged the validity of the 2007 Will, contending that the testator had lacked testamentary capacity when he made it.

The application judge granted the application, set aside the 2007 Will, and restored the 2006 Will as the testator’s true last will and testament. However, he did not give effect to G.S’s alternative argument that the testator had been subject to undue influence from G.H. when he made the 2007 Will.

issues:

Did the application judge err in not finding that G.S’s application was statute-barred by the two year limitation period and should fresh evidence be allowed to establish that ground of appeal?
Did the application judge err by giving insufficient weight to the evidence supporting the appellants’ position that the testator had testamentary capacity when he made the 2007 Will and should fresh evidence be allowed to establish that ground of appeal?

holding:

Appeal and motion to adduce fresh evidence dismissed.

reasoning:

The appellants’ first ground of appeal took issue with the application judge’s conclusion that G.S’s challenge to the validity of the 2007 Will was not statute-barred. They argued that the two-year limitation period began to run on the date of the testator’s death. The application judge disagreed, finding that the principle of discoverability delayed the commencement of the running of the two years to more than two years from the testator’s death, as G.S. had not discovered the 2007 Will until January 2015.

Proposed Fresh Evidence

The appellants sought to adduce fresh evidence in the form of a new affidavit by the lawyer who executed the testator’s 2007 Will, Ms. Woodruff, which appends as an exhibit a letter that the lawyer received from another who was acting for G.S., Mr. Pease (the “Pease letter”).

The appellants argued that the Pease letter contradicted G.S’s 2016 affidavit, because it showed that she learned about the existence of the 2007 Will in a telephone conversation with Ms. Woodruff at some point before December 16, 2014.

The principles governing the admission of fresh evidence in civil appeals were summarized as follows by this court in St. Amand v. Tisi:

The party seeking to introduce the fresh evidence must show that the proposed evidence:

Is credible;
Could not have been obtained by reasonable diligence before trial or application; and
If admitted, would likely be conclusive of an issue in the appeal.

The overriding criterion is that fresh evidence will be admitted only where it is in the interests of justice to do so.

In the Court’s view, the fresh evidence in Ms. Woodruff’s 2019 affidavit bearing on the limitations issue, including the appended Pease letter, failed to meet the last two prongs of the test.

Reasonable Diligence

The appellants did not meet their burden of demonstrating that they could not have put the Pease letter or Ms. Woodruff’s evidence bearing on the limitations issue into evidence on the application if they had exercised reasonable diligence.

Impact on issue in the appeal – Not conclusive of the limitation period issue

The Court was also satisfied that the Pease letter and Ms. Woodruff’s proposed fresh evidence regarding her communications with G.S. and her lawyer after the testator’s death would not be conclusive on the issue of whether G.S’s application was statute-barred. Under ss. 5(1)(a)(iv) and 5(1)(b) of the Limitations Act, 2002, the limitations clock only starts to run once the litigant first knew, or a reasonable person with the abilities and in the circumstances of the litigant ought to have known, “that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”. It was open to the application judge to conclude that it would have been premature for G.S to have started legal proceedings to challenge the 2007 Will until she received a copy of it and could examine its terms.

The appellants argued that the Court should conclude that Ms. Woodruff gave G.S. specific information about the terms of the 2007 Will during their telephone conversation that preceded the Pease letter. The Court did not give effect to this argument for four main reasons:

The appellants’ factual claims about what Ms. Woodruff told G.S during their telephone conversation were unsupported by any evidence to this effect from Ms. Woodruff.
If the appellants were to seek to support their factual claims about what Ms. Woodruff told G.S during their telephone conversation by presenting a new affidavit from Ms. Woodruff, they would run into the same problem already discussed: namely, their inability to explain why they did not put this evidence before the application judge.
Even if Ms. Woodruff did say things to G.S during their telephone conversation that either informed G.S or implied to her that she was not a beneficiary under the 2007 Will, the Court was not satisfied that this information would have been sufficient to allow G.S to decide whether litigation to challenge the will’s validity was “appropriate”.
S’s uncontradicted evidence is that she only decided to challenge the 2007 Will after she obtained a copy of it and saw that the will not only disinherited her, but also would have eliminated her children’s contingent interest in the residue of the estate if G.H. had died before the testator.

The limitation clock in the case at bar only began to run as of the January 2015 deadline that Mr. Pease set in his letter to Ms. Woodruff, and that he later extended.

The Court was satisfied that even if the Pease letter had been put before the application judge, it would not have changed his conclusion that the limitation clock did not start to run until January 2015, and that G.S’s application was accordingly not statute-barred. If the Pease letter were admitted as fresh evidence, it would not “likely be conclusive” on the limitations issue.

The Court refused to admit the Pease letter and Ms. Woodruff’s 2019 affidavit evidence about her communications with G.S and her lawyer as fresh evidence on appeal.

The appellants’ second ground of appeal was that the application judge erred by finding that the testator did not have testamentary capacity when he executed his disputed 2007 Will. They also sought to support this ground of appeal with fresh evidence from Ms. Woodruff.

The appellants maintained that the testator changed his will in 2007 to disinherit G.S. because he was angry with her over an incident when she had allegedly put charges on his credit card without his permission.

The application judge held in accordance with the legal authorities that G.S. bore the initial burden of introducing “evidence of suspicious circumstances”. The application judge concluded that G.S. had met her threshold burden, identifying “a number of suspicious circumstances that collectively suggest that the Testator lacked testamentary capacity when he executed the 2007 Will”. The application judge’s finding that there were “suspicious circumstances” shifted the burden back to the appellants to prove on a balance of probabilities that the testator had had the necessary testamentary capacity when he signed the 2007 Will. The application judge held that the appellants had not met this burden.

Proposed Fresh Evidence

The appellants sought to adduce as fresh evidence a further affidavit from Ms. Woodruff that she swore in April 2019, several months after the application judge’s decision. Her affidavit indirectly challenged the application judge’s conclusion that the testator’s decision to disinherit G.S. was “inexplicable and out of character”.

This proposed fresh evidence from Ms. Woodruff failed the second and third prong of the test for admitting fresh evidence in civil appeals, summarized above.

Reasonable Diligence

The appellants did not provide any explanation as to why the additional evidence in Ms. Woodruff’s April 2019 affidavit was not put before the application judge.

Impact on issue in the appeal – Not conclusive of an issue in the appeal

The Court was not satisfied that the proposed fresh evidence, if admitted, “would likely be conclusive of an issue in the appeal”.

Although there was evidence that the testator had been diagnosed with “mild dementia” in September 2005, nobody was suggesting that it was proved that he had lacked testamentary capacity before 2007.

The proposed fresh evidence in Ms. Woodruff’s 2019 affidavit about the circumstances in which the testator signed the 2007 Will largely covered the same ground as her 2017 affidavit and the transcript of her cross-examination on this affidavit. As the application judge noted in his reasons, Ms. Woodruff’s evidence was that she had “interviewed [the testator] alone” and been “fully satisfied that he was giving me his clear instruction and that he did not exhibit any impairment of testamentary capacity”. All that Ms. Woodruff’s 2019 affidavit did was to expand on her confidence in the correctness of her opinion. To the extent that the fresh evidence might have shown that the application judge made errors of fact, the Court was satisfied that any such errors were not “overriding”.

The Court was not prepared to admit the appellants’ proposed fresh evidence. The interests of finality weighed strongly against its admission, given the appellants’ complete failure to explain why this evidence, all of which was or could easily have been known to them at the time of the application, was not put before the application judge.

Wu v. Suevilia Development Corporation, 2024 ONCA 124

[Simmons, Paciocco and Thorburn JJ.A.]

Counsel:

P. H. Starkman, for the appellant

P. K. Martin, for the respondent

facts:

The appellant, Z.W., agreed to purchase a pre-construction home from Suevilia Development Corporation under an agreement of purchase and sale (the “APS”). Because the APS related to the sale of a pre-construction home, Suevilia was required by O. Reg. 165/08 to attach the Tarion Addendum to the APS. The Tarion Addendum establishes procedures for setting and changing closing dates under the APS.

Under the terms of the Tarion Addendum, at the time the APS is signed, the Vendor must specify a First Tentative Closing Date in a Statement of Critical Dates. Thereafter, the Vendor has the option of unilaterally delaying Closing on up to two occasions for periods of up to 120 days each by setting a Second Tentative Closing Date and/or a Firm Closing Date. To do so, the Vendor must give written notice to the Purchaser at least 90 days prior to the immediately preceding properly set closing date. As required under the Tarion Addendum, Suevilia identified July 31, 2018, as the First Tentative Closing Date. About two months after the APS was signed, on May 30, 2017, Mr. W asked that the “Closing Date” be amended to May 31, 2018. Suevilia agreed.

The parties signed a new Statement of Critical Dates advancing the First Tentative Closing Date from July 31, 2018, to May 31, 2018, and also advancing the outer limits for the Second Tentative Closing Date, Firm Closing Date and Outside Closing Date established in the original Statement of Critical Dates.

Suevilia took the position that it subsequently sent notices to Mr. W setting a Second Tentative Closing Date, a Firm Closing Date, and two Delayed Closing Dates. Mr. W, took the position that the notices sent by Suevilia were defective, either because they did not specify which Critical Date they were setting, did not provide proper notice, did not include a revised Statement of Critical Dates and/or because they did not refer to entitlement to delayed closing compensation.

Mr. W maintained that because of the deficiencies in the notices, in accordance with the terms of the Tarion Addendum, the First Tentative Closing Date was deemed to be the Firm Closing Date, and that the other closing dates Suevilia purported to set, including the December 18, 2018 closing date, were not properly set. He submitted that Suevilia therefore repudiated the APS by serving its notice of default, and that Suevilia also breached the terms of the APS by failing to pay delayed closing compensation.

In January 2019, Suevilia commenced an action against Mr. W claiming forfeiture of the deposit and damages for its losses in reselling the property. Mr. W sued Suevilia for, among other things, return of his $300,000 deposit. Mr. W moved for summary judgment in both actions, seeking dismissal of Suevilia’s action and the return of his deposit. The motion judge dismissed both of Mr. Wu’s motions and ordered that the deposit be forfeited to Suevilia since Suevilia complied with the necessary timelines for giving notice and it was obvious in each instance which Critical Date was being set. Further, it was apparent from the record that Mr. W had not taken any steps toward closing the transaction.

issues:

Did the motion judge err in concluding that Suevilia’s notices to set Critical Dates complied with the Tarion Addendum?
Did the motion judge err in finding that Suevilia was ready, willing and able to close the transaction on December 18, 2018?
Did the motion judge err in finding that Delayed Closing Compensation was not payable to Mr. Wu?
Did the motion judge err in finding that Mr. W forfeited his deposit?

holding:

Appeal dismissed.

reasoning:

On May 30, 2017, Mr. W sent a letter to Suevilia requesting Suevilia “to amend the Closing Date to May 31, 2018. Suevilia agreed and the parties executed an undated revised Statement of Critical Dates, which, among other things, advanced the First Tentative Closing Date to May 31, 2018, and reduced the outer limits for the other Critical Dates.

The respondent subsequently sent written notices to Mr. W delaying various closing dates and, ultimately, setting the December 18, 2018 closing date. On December 17, 2018, Suevilia sent an email reminder to Mr. W of the impending December 18, 2018 closing date. Suevilia did not receive a response to its December 17, 2018 email within the specified timeframe. Suevilia served a Certificate of Default on Mr. W on January 7, 2019 and subsequently resold the home in April 2019. As noted above, Mr. W took the position that the notices sent by Suevilia were defective.

In Canadian Imperial Bank of Commerce v. Urbancorp (Leslieville) Developments Inc, the Court of Appeal identified the standard of review for interpretation of the Tarion Addendum as correctness. Questions of fact and questions of mixed fact and law are reviewable on a standard of palpable and overriding error. In the Court’s view, the motion judge made no error in holding that Suevilia’s February 26, 2018 notice, setting a “new Tentative Closing Date”, operated to set August 30, 2018 as the “Second Tentative Closing Date”. Section 1 therefore did not operate to deem May 31, 2018 as the Firm Closing Date. Consequently, the Court rejected the argument that the notice periods for Suevilia’s subsequent notices should have been calculated with reference to May 31, 2018. Under both paragraph 1 of the Tarion Addendum and the terms of the revised Statement of Critical Dates signed by the parties after Mr. W’s May 30, 2017 request to change the “Closing Date” to May 31, 2018, the only Tentative Closing Date the Vendor was entitled to set unilaterally by written notice following execution of the APS, was the Second Tentative Closing Date. As the motion judge held, it would have been patently obvious that, in stating it was setting a “new Tentative Closing Date”, Suevilia could only have been referring to setting the “Second Tentative Closing Date” as permitted under the Tarion Addendum.

The Court also agreed with the motion judge that Suevilia was not required to send a revised Statement of Critical Dates to Mr. W when sending its notices postponing Critical Dates. The Tarion Addendum explicitly required that a revised Statement of Critical Dates be prepared where the parties make changes to Critical Dates by mutual agreement under s. 4. There was no similar requirement in ss. 1 or 3, which address setting Tentative Closing Dates and the Firm Closing.

The Court also viewed that the “Note” set out at the bottom of the Statement of Critical Dates signed by the parties following Mr. W’s request to change the “Closing Date”, made it clear that, when a Critical Date is set or changed as permitted in the Addendum, it was the responsibility of both the Vendor and the Purchaser to calculate resulting changes in other Critical Dates. Thus, the Court rejected Mr. W’s argument that all of Suevilia’s notices were invalid because they did not include a revised Statement of Critical Dates.

So long as the written notice complies with the deadlines specified in the Tarion Addendum and the circumstances make it obvious which Critical Date is being set or changed by a notice, a failure to use the precise nomenclature identified in the Tarion Addendum should not in itself invalidate the notice.

Where timely notice is provided and it is obvious from the circumstances which Critical Date a Vendor is purporting to set, invalidating a notice because of an obvious nomenclature flaw would undermine the goals of providing fairness to both builders and purchasers and of recognizing the inevitability of certain delays in new home construction. Purchasers have an obligation to acquaint themselves with the scheme of, and formula for, setting Critical Dates. While Vendors have an obligation under para. 1(e) of the Tarion Addendum, to “set out the stipulated Critical Date, as applicable”, when giving a notice setting a Second Tentative Closing Date or Firm Closing Date, under para. 1(c) or (d), minor failures in nomenclature that do not create uncertainty about the Critical Date being set should not invalidate a timely notice.

Given that the Court rejected the argument that the December 18, 2018 closing date was not properly set, Mr. W’s argument that the motion judge erred in finding that Suevilia was ready, willing and able to close on December 18, 2018 turned on whether the motion judge erred in finding that it was Mr. W’s obligation under the APS to obtain the occupancy permit.

The motion judge relied on s. 9(a) of the APS to hold that it was Mr. W’s obligation to obtain the occupancy permit. Section 9(a) of the APS stipulated that unless otherwise required by the Municipality, it was the Purchaser’s obligation to obtain any occupancy permit from the Municipality.

There was no evidence that the Municipality required the Vendor to obtain the occupancy permit. Section 9 of the Tarion Addendum also addressed who had the obligation to provide an occupancy permit. Although it stipulated that the Vendor shall deliver an occupancy permit to the Purchaser prior to closing, it also allowed for “Purchaser Occupancy Obligations” to be created by mutual agreement.

The motion judge concluded that s. 9(b) of the Tarion Addendum permitted the parties to agree that Mr. W was “responsible for one or more prerequisites to obtaining permission for occupancy under the Building Code” and that, by s. 9(a) of the APS, they had placed the obligation on him to obtain the occupancy permit. She concluded that because s. 9(b) of the Tarion Addendum permitted the parties to make the purchaser responsible for such prerequisites to occupancy, s. 9(a) of the APS requiring the purchaser to obtain the occupancy permit, was not inconsistent with the Tarion Addendum.

In the Court’s view, the motion judge was correct in holding that s. 9(a) of the APS was not inconsistent with s. 9 of the Tarion Addendum. While s. 9(a) of the Tarion Addendum required the Vendor to deliver the occupancy permit, s. 9(b) contemplated the parties agreeing that the Purchaser would be responsible for one or more prerequisites to obtaining permission for occupancy under the Building Code. Based on my review of the APS and the Tarion Addendum it was difficult to understand what that could entail, other than obtaining the occupancy permit.

3 and 4. Not necessary to address

There was no need to address the remaining grounds of appeal. Under the Tarion Addendum, delayed closing compensation was payable only if the transaction closes or if it fails to close for any reason other than breach of contract by the Purchaser. The transaction did not close due to Mr. W’s default. In light of these circumstances, the Court saw no error in the motion judge’s conclusion that Mr. W forfeited his deposit.

Los v. Ross, 2024 ONCA 122

[van Rensburg, Roberts and Favreau JJ.A.]

Counsel:

S. Galarneau and B. Sharpe, for the appellant

I. Marcovitch, for the respondent

facts:

Since November 2020, the parties lived together in Montreal, Quebec, where they had one child, who was born in Montreal in August 2021. In February 2022, after a dispute between the parties, the mother left Montreal with the child to go live with her parents in Ottawa.

Toward the end of May 2022, the father went to a work camp for his employment for five weeks. The mother was unable to get a hold of the father, despite it being possible for him to communicate. The child was with the mother in Ontario throughout this time.

On July 27, 2022, the mother commenced an application in the Superior Court in Ontario, seeking primary parenting time and sole decision-making responsibility for the child. She also sought child support.

The father brought an urgent motion challenging the Ontario court’s jurisdiction. However, the Superior Court declined to hear the motion on the basis that it was not urgent. At a subsequent case conference, the court scheduled the motion for jurisdiction to be decided as a preliminary matter. The motion judge dismissed the father’s motion challenging jurisdiction. The motion judge determined that the child was habitually resident in Ontario with the implied consent or acquiescence of the father.

issue:

Did the motion judge err in finding that the father tacitly consented or acquiesced to the child’s move to Ontario?

holding:

Appeal dismissed.

reasoning:

No.

Although the motion judge erred in considering the father’s actions following the commencement of the application, including the interim consent parenting order, it did not affect the overall conclusion that the father tacitly consented or acquiesced to the child’s move to Ontario.

Section 22(1)(a) of the Children’s Law Reform Act explicitly provides that the Ontario court has jurisdiction if “the child is habitually resident in Ontario at the commencement of the application for the order”. Implicitly, this meant that the father’s conduct following the beginning of the application was presumptively not relevant to the determination. Conversely, as in this case, consent to an interim parenting order should not prejudice a parent contesting jurisdiction as this could have significant consequences on that parent’s parenting time pending the determination of a jurisdiction motion.

The consent order was only one of several factors the motion judge relied on in reaching her conclusion that the father tacitly consented or acquiesced to the child’s habitual residence in Ontario.

Many factors supported the motion judge’s finding, including her finding that the child had been living primarily with her mother in Ottawa since at least mid-May 2022, that the father left for five weeks without providing accurate information about his whereabouts or how he could be contacted, and that he did not object to or take the position that the child should remain in Montreal until after the mother commenced her application seeking sole custody and parental decision-making. Regardless of the error regarding the consent order, these circumstances were sufficient to support the motion judge’s finding that the father tacitly consented or acquiesced to the child’s move to Ottawa and that the child was therefore habitually resident in Ontario.

Gu v. Huang, 2024 ONCA 129

[Simmons, Thorburn and Favreau JJ.A.]

Counsel:

R. He, for the appellants

M. Kestenberg, for the respondents

Keywords: Contracts, Solicitor and Client, Torts, Professional Negligence, Breach of Fiduciary Duty, Standard of Care, Civil Procedure, Security for Costs, Rules of Professional Conduct

facts:

The appellants sued Ms. H for negligence, breach of fiduciary duty, and breach of contract for her legal services provided from December 2016 to August 2017, claiming she failed to proceed promptly with necessary motions, incurred unnecessary costs, and terminated her retainer unprofessionally. In July 2016, the appellants discovered a certificate of pending litigation against a property they owned and were sued by two Chinese companies. Ms. H was retained in December 2016 to bring motions, including for security for costs. In January 2017, she attended court to proceed with these motions, but faced adjournments and scheduling changes. By July 2017, some motions were resolved in the appellants’ favor, but the litigation’s financial burden led to a significant legal bill from Ms. H’s firm totaling $240,291.55.

The trial judge rejected the appellants’ claims that Ms. H was negligent in her handling of the CPL, set aside, security for costs and Mareva injunction motions. Their action was dismissed.

issues:

Did the trial judge err in fundamentally misconstruing the nature of the action as merely a fee dispute?
Did the trial judge err in failing to find that Ms. H breached her contract by not proceeding with the motions, particularly the security for costs motion, in a timely manner and that Ms. H was not negligent in handling the appellants’ motions?
Did the trial judge err in determining that expert evidence was necessary to address the standard of care regarding Ms. H’s handling of the offer to settle the security for costs motion and that she had no jurisdiction to decide violations of the Rules of Professional Conduct?
Did the trial judge err in awarding the respondents costs in the amount of $80,000?

holding:

Appeal dismissed.

reasoning:

The Court found that Ms. H was successful in her conduct of the litigation on behalf of the appellants. Although the trial judge commented that the action was a fee dispute cloaked as a negligence action, the court was satisfied that she fully and fairly considered all of the appellants’ arguments. The foregoing chronology and the trial judge’s reasons demonstrated that she carefully and accurately reviewed the events that led to the various motions being adjourned and eventually determined. The Court saw no palpable and overriding error or error in principle in the trial judge’s findings.

The Court saw no basis for interfering with the trial judge’s conclusion that Ms. H was not at fault for the delay that occurred in determining the appellants’ motions that were originally scheduled for January 17, 2017. The presiding judge on that day accepted that cross-examinations were required and took charge of determining the order in which the additional motions would be heard. Further, the Court agreed with the trial judge that Ms. H could not be faulted for the fact that different judges subsequently took different views of who should hear the various motions.

The Court noted that it was not possible for Ms. H to serve the security for costs motion until after the noting in default had been set aside. She moved promptly to do so once that order was obtained. The Court was not persuaded that Ms. H contributed to any delay in that motion being heard.

The Court saw no error in the trial judge’s conclusion that expert evidence was required to determine the standard of care in relation to the appellants’ claims about the Chinese companies’ offer to settle the security for costs motion. The Court was not persuaded that the trial judge made any error in concluding that failing to provide an affidavit in relation to the security for costs motion could be categorized as conduct that was clearly wrong or egregious. The trial judge concluded that the appellants’ remaining complaints related to professional conduct matters, none of which materially affected Ms. H’s delivery of services or caused them any damages in breach of contract or negligence.

The Court found that the appellants did not seek leave to appeal costs and were therefore not entitled to challenge the costs award made at trial.

Regan v. Esterbauer, 2024 ONCA 139

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

Counsel:

P. I. Waldmann, for the appellant

G. Tighe and K. Mooibroek, for the respondents A. J. E and Koskie Minsky LLP

facts:

R. R, a formerly licensed lawyer suspended by the Law Society of Ontario, started an action against A.E and his law firm, claiming $15 million in damages for negligent legal advice and ineffective assistance during contempt proceedings, which was dismissed as frivolous, vexatious, or an abuse of process. R.R was counsel in litigation involving the Business Development Bank of Canada, where he was ordered to provide document access but instead proposed withholding documents in exchange for outstanding legal fees, leading to a contempt motion against him. R.R retained the respondents on a limited retainer for the contempt motion defense, where a missing Undertakings and Refusals Chart crucial for demonstrating compliance was not included in the responding materials, resulting in R.R being found in contempt and sentenced to 90 days’ imprisonment, later reduced to 45 days on appeal.

issue:

Did the motion judge err in dismissing the action under r. 21.01(3)(d) of the Rules of Civil Procedure on the basis that it was frivolous, vexatious, or otherwise an abuse of process?

holding:

Appeal dismissed.

reasoning:

No.

The court rejected R.R’s argument that the respondent’s supposed missteps changed the outcome of the contempt finding and appellate decision, identifying the challenge as an impermissible collateral attack on judicial decisions. The motion judge’s findings emphasized that the respondents engagement was specifically limited to appearing at the hearing with materials prepared by R.R, highlighting R.R’s responsibility and experience in preparing the necessary legal documents. Furthermore, the motion judge determined that the omission of additional evidence by the respondents would not have altered the contempt finding, which was primarily based on Gray J.’s finding of collusion between R.R and his former client. The central issue of contemptuous collusion rendered any alleged procedural or evidentiary errors by the respondents irrelevant to the outcome, leading to the Court’s approval of the dismissal of R.R’s action.

Gill v. Maciver, 2024 ONCA 126

[Roberts, Paciocco and Monahan JJ.A.]

Counsel:

J. Saikaley and A. Brunet, for the appellant, Dr. G

H. Winkler and Eryn Pond, for the respondent, Dr. M

A. MacDonald, for the respondents, AP and CW

G. Pakozdi, for the respondent, AP

facts:

Dr. G. commenced proceedings against 23 individual and corporate defendants (the “Original Defendants”) for $12 million for defamation, conspiracy, and negligence. The claim against the Original Defendants was dismissed n the basis of s. 137.1 of the Courts of Justice Act, R.S.O. 1990 C. c.43 (the “CJA”), which permits the early dismissal of proceedings that limit debate on matters of public interest.

The appellant appealed against the dismissal of the claim against Dr. M, AP, CW and AP (collectively, the “Remaining Defendants”).

The appellant’s claim against the Remaining Defendants stemmed from two separate matters. The claim against Dr. M arose from Twitter statements he made in September 2018 in which he criticized the appellant for having previously blocked him on Twitter, thereby preventing him from responding directly to attacks that the appellant had made against the Ontario Medical Association (“OMA”).

The appellant’s claim against AP, CW and AP arose from Twitter statements they made in August and October 2020 in which they criticized the appellant’s position on the government response to the COVID-19 pandemic.

The motion judge dismissed the appellant’s claims against Dr. M on two grounds. First, the motion judge found that the offensive language used by Dr. M in his impugned tweets was not defamatory. Second, the motion judge found that the appellant had offered no evidence of any harm caused to her reputation as a result of the impugned tweets, other than “vague, unparticularized statements.” Therefore, even if the words complained of were defamatory, and some general damage to the appellant’s reputation is therefore to be presumed, any such damage is likely to be assessed as being merely nominal.

The motion judge found that the impugned tweets by AP, CW and AP all related to matters of significant public interest, namely, the development of effective treatments for COVID-19, whether a vaccine is needed, and whether HCQ is an appropriate treatment for COVID-19.

The motion judge dismissed the claim against AP, CW and AP on two separate grounds. First, the appellant failed to discharge her burden of showing that AP, CW and AP had no valid defence to her defamation claim. Accordingly, her claim against them should be dismissed on the basis of s.137.1(4)(a)(ii) of the CJA. Second, pursuant to s. 137.1(4)(b) of the CJA, because the appellant failed to provide evidence showing that she suffered any harm from the impugned tweets by AP, CW and AP.

issues:

Did the motion judge err in finding that the defence of fair comment was prima facie available to AP, CW and AP?
Did the motion judge err in the weighing exercise she engaged in under s. 137.1(4)(b)?

holding:

Appeal dismissed.

reasoning:

Section 137.1(4)(a)(ii) of the CJA requires the plaintiff to satisfy the motion judge that the defendant has no valid defence in the proceeding. The motion judge found that the appellant had failed to satisfy this requirement in respect of AP, CW and AP because the defence of “fair comment” was prima facie available to each of them.

The fair comment defence was premised on the idea that citizens must be able to openly declare their opinions on matters of public interest without fear of reprisal in the form of actions for defamation. For the fair comment defence to be successful, a defendant must prove the following: (i) the comment must be on a matter of public interest; (ii) be based on fact; (iii) be recognizable as a comment; (iv) satisfy an objective test (could any person honestly express that opinion on the approved facts?); and (v) the speaker cannot be actuated by express malice: Hansman, at para. 96. To satisfy a motion judge that a defendant has no valid defence of fair comment, the plaintiff must demonstrate that there is no prima facie basis for finding that one or more of these elements of the fair comment offence to be satisfied: Hansman, at para. 97.

There was no merit to the plaintiff’s objections that the motion judge made errors in her analysis of whether the “fair comment” defence was available to AP, CW and AP.

As the Supreme Court of Canada made plain in Hansman at paras. 99-100, the requirement that the defendant’s statements be “based on fact” does not mean that the defendant must prove that the statements they made were true. If this were so, it would collapse the distinction between the defences of “fair comment” and justification. All that is necessary to satisfy the “based on fact” element of the fair comment defence is that the defendant identify the factual foundation upon which the impugned statement is based, so that the reader can “make up their own minds as to its merits”: Hansman, at para. 99.

In this case, AP, CW and AP all expressly identified the specific statements of the appellant with which they took issue, and their basis for making those statements. Nothing further was required in order to satisfy the “based on fact” requirement of the fair comment defence.

The appellant did not advance any basis for finding that the motion judge erred in finding that AP, CW and AP were not motivated by malice. The motion judge made clear findings, based on the record, that all three of these defendants were motivated by concerns that the appellant’s public statements had the potential to mislead or misinform the public, thereby creating a potential risk to public health. Not only were these findings open to the motion judge, but the appellant has also failed to adduce any credible evidence to the contrary.

The motion judge did not err in requiring the appellant to provide evidence of a causal link between the impugned statements and any alleged harm she may have suffered. In fact, this requirement is expressly mandated by s. 137.1(4)(b) of the CJA and has been emphasized on numerous occasions by the Supreme Court of Canada. The appellant’s allegations of harm were completely undifferentiated, without any evidence linking the impugned statements to harm she might have suffered.

Further, the motion judge found that, despite the insulting words used by Dr. M, his purpose was to point out that the appellant was preventing him from responding directly to her very serious attacks on the honesty and integrity of the leadership of the OMA. It was open to the motion judge to find that there was some degree of public interest in protecting Dr. M’s right to speak out on this issue, despite the fact that the language he used to communicate his message was insulting. Since the appellant failed to adduce any evidence of “serious harm” resulting from Dr. M’s statements, it necessarily followed that she had failed to meet her burden of showing that she had suffered serious harm that outweighed the public interest in protecting Dr. M’s right to speak on the issue.

Turning to the impugned statements made by AP, CW and AP, the motion judge found that there was an extremely high public interest in protecting their right to speak out on the statements made by the appellant regarding COVID-19. As the motion judge pointed out, questions surrounding the development of effective treatments for COVID-19, including the need for vaccines, were matters of great public interest to the medical profession and the public at large. Nor did the language used by any of them in describing the appellant include the use of insults or vitriol.

Rimon v. CBC Dragon Inc., 2024 ONCA 128

[van Rensburg, Roberts and Gomery JJ.A.]

Counsel:

V. Msi, for the appellants

J. Bal and S. Maadanisani, for the respondents

facts:

The respondents initiated legal proceedings in May 2020, alleging they were induced by misrepresentations to advance funds for a property purchase by the appellants. The appellants denied the allegations and filed a defence and counterclaim. Despite undertakings, the appellants failed to provide information related to certain transactions, leading to the respondents bringing a motion to compel. Although some documents were produced, numerous undertakings remained outstanding. The respondents then moved to strike the defence and counterclaim, and the motion was adjourned, giving the appellants additional time. However, the appellants failed to fully comply, leading to a motion returned before the judge in March 2023.

The motion judge found that the appellants had failed to comply meaningfully with the court orders and remained in material default at the time of the hearing before him. The appellants appealed the motion judge’s order striking their statement of defence and counterclaim based on their failure to answer undertakings, produce relevant documents, and abide by successive court orders.

issues:

Were the C undertakings made solely on behalf of Mr. C, CBC Dragon Inc. and KBIJ Inc., and did the motion judge’s order unjustifiably “sweep up” An-Dak Trading Company and its principal AYL (the “L Defendants”)?
Did the motion judge unfairly fail to consider the efforts that the appellants had made to answer the C undertakings?
Did the motion judge fail to consider whether the appellants’ failure to comply with their production obligations meaningfully prejudiced the respondents?
Did the motion judge err by not accepting Mr. C’s evidence that he had not understood what he was undertaking to do at the October 2020 cross-examination, and that he had realized that some of the records sought could not, in fact, be produced, citing Newlove?
Did the striking of the appellant’s defence and counterclaim sanction them disproportionately?

holding:

Appeal dismissed.

reasoning:

The 2020 and 2022 disclosure orders were directed against all the appellants, and the appellants at no point prior to this appeal took the position that the L Defendants were not bound by them. It would be strange if the L Defendants were exempt from the orders compelling production of transaction records, since the statement of claim alleged that some of the funds advanced by the respondents were transferred to them.

There was no error that would justify intervention by the Court.

The motion judge found that the appellants’ failure to respect their obligations to answer undertakings and to comply with court-ordered timetables to produce records had prejudiced the respondents.

Given the history of the litigation, it was open to the motion judge to reject Mr. C’s evidence that he only belatedly realized that he could not answer some of the undertakings given. This explanation for the appellants’ non-compliance was entirely new and stood “in complete contrast to the position [the appellants] [had] maintained throughout over the last period.” The motion judge further observed that the appellants had not “put forward any evidence of good faith efforts and due diligence to obtain [..] documents from third parties.”

Newlove held that the dismissal of an action should be granted only exceptionally but that “the matter of the scope of the remedy is one within the discretion of the Court.” Rule 30.08(2) specifically contemplates an order to strike a pleading, and both Rules empower the court to make any order “as is just”.

The motion judge was alive to the particular facts of the facts. He found that Brown J.A.’s observation in Falcon Lumber about the fundamental importance of documentary production in any action was “particularly apt” where the documents go to the heart of the issues of the action.

The Rules of Civil Procedure are intended to ensure that parties to civil suits disclose all relevant information in a timely manner at all stages of a proceeding. A party’s failure to comply with their disclosure obligations increases the costs of litigation and frustrates the opposing party’s ability to move the proceeding forward. The Falcon Lumber principles apply even more forcibly when a party fails to disclose records when repeatedly ordered by the court to do so within a specific deadline. In such a case, the defaulting party does not simply delay or prevent an adjudication on the merits but undermines the court’s authority. The motion judge applied the correct principles of law and evaluated the record before determining that the order sought by the respondents was just.

8167800 Canada Inc (Lead Home Renovation) v. Denison Limited, 2024 ONCA 146

[Gillese and Copeland JJ.A. and Wilton-Siegel J. (ad hoc)]

Counsel:

S. Barbier, for the appellant

M. Wine, for the respondent

facts:

The appeal was brought by 8167800 Canada Inc., also known as Lead Home Renovation, from certain provisions of an order dated April 11, 2023, which granted the motion for relief from forfeiture of the termination of a commercial lease by Denison Limited. The appellant had entered into a lease for the premises in 2015, and upon the expiry of the original lease, a new Lease commenced on August 1, 2020, for a five-year term. The respondent purchased the building on June 22, 2022, and the relationship between the parties deteriorated, leading to the termination of the Lease on February 16, 2023. In response, the appellant sought urgent relief from forfeiture, while the respondent sought a declaration that the Lease was properly terminated. The motion judge found that the respondent was not entitled to terminate the Lease and granted the appellant’s motion for relief from forfeiture but imposed conditions in the Order objected to by the appellant. Specifically, the motion judge found the appellant was constructing kitchen cabinets in contravention of the Lease and required the appellant to adhere to the permitted uses of warehousing and distribution, providing a grace period until December 1, 2023, to adapt its business.

issue:

Did the motion judge err in finding that the appellant was engaged in the construction of kitchen cabinets in breach of the terms of the Lease?

holding:

Appeal dismissed.

reasoning:

No.

The appellant argued there was no evidence of manufacturing operations at the premises, contrary to the respondent’s claims. Yet, a 2022 MLS listing described the business for sale as including “cabinet machinery equipment” for a “Kitchen Cabinet and Home Renovation Business.” The motion judge observed table saws and a sanding machine on-site, used by the appellant for kitchen cabinet construction. Shi Xiaobin, the owner, admitted to creating or customizing kitchen cabinets for clients and had a spray booth for painting cabinets upon request. Despite the appellant’s claim that its operations did not equate to manufacturing due to the absence of mass production, the motion judge determined the business violated the Lease’s terms by constructing kitchen cabinets, indicating the premises were used more for construction than just distribution or warehousing, raising potential safety concerns.

The appellant also challenged the respondent’s refusal to consent to a Lease assignment to a prospective business buyer, a decision upheld by the motion judge based on the Lease’s terms against the premises’ use for kitchen cabinet construction. This refusal led to the lapse of a business sale offer.

Furthermore, the appellant was ordered to remove an abandoned truck from the premises, a directive supported by city by-laws and unchallenged by the appellant. Despite allegations of bias due to the motion judge’s remarks on communication styles, these comments were aimed at reducing future conflicts, not indicating bias.

Lastly, the appellant’s appeal of the motion judge’s order that each party bear its own costs was denied. There was no error in the exercise of the motion judge’s discretion on costs.

2682283 Ontario Ltd (Volcano Café and Lounge) v. Durham (Regional Municipality), 2024 ONCA 132

[Gillese and Copeland JJ.A. and Wilton-Siegel J. (ad hoc)]

Counsel:

R. Zigler, for the appellant

S. Rouleau and C. deSereville, for the respondent

facts:

The appellant appeals the order of the application judge dismissing its application to quash a municipal by-law passed by the respondent, the Regional Municipality of Durham (the “Region”). In 2019, the Health Protection Division of the Region recommended the enactment of a new smoking and vaping by-law. The by-law contains various anti-smoking and anti-vaping prohibitions.

The appellant opened a hookah lounge on February 21, 2020 – after the by-law came into effect. The Region received numerous complaints that the appellant was violating the by-law. Compliance officers attended the appellant’s premises on multiple occasions and saw evidence that the by-law was being breached. On two occasions, summonses for contravention of the by-law were served, pursuant to the Provincial Offences Act (“POA”). In addition, on two occasions, closure and other compliance orders were issued, pursuant to the Health Protection and Promotion Act.

The appellant brought an application seeking to quash the by-law, pursuant to s. 273 of the Municipal Act. In the alternative, the appellant sought a declaration that the prohibition against the use of hookahs was ultra vires on the basis that it was a disguised attempt to regulate business. The appellant also argued that the by-law was illegal because changes were made to Schedule A to the by-law (“Schedule A”) after it was passed. Schedule A addressed set fines for offences under the by-law.

issue:

Did the trial judge err in concluding that the changes made to Schedule A did not invalidate the by-law?

holding:

Appeal dismissed.

reasoning:

No.

The Court agreed with the application judge that the changes to Schedule A to the by-law after it had come into effect did not invalidate the by-law. The changes to Schedule A had been made by the local Regional Senior Justice of the Ontario Court of Justice (“RSJ”) exercising her authority to establish set fines for proceedings under s. 91.1(2) of Part I of the POA. The Schedule A appended to the by-law at the time of its passage was a placeholder until the RSJ exercised her authority under the POA to establish set fines.

The Court noted two difficulties with the appellant’s argument that changes to Schedule A invalidated the by-law. First, although the appellant had conceded that the local RSJ had the authority under s. 91.1(2) of the POA to establish set fines for municipal by-law offences, it characterized that authority too narrowly. Second, the appellant had mischaracterized the nature of the changes to Schedule A effected by the orders of the RSJ. The appellant contended that changes to the wording in Schedule A were invalid because they changed the substance of the by-law after it was enacted. The wording that the appellant referred to in Schedule A was the short form descriptions of the offences for purposes of the set fines. Deciding the wording for the short form descriptions of the offences was within the scope of the local RSJ’s authority to establish the set fines. The short form descriptions of the offences in the list of set fines in Schedule A did not change the prohibitions in the by-law or the offence of contravening them.

The appellant also argued that the reference in s. 10.1 of the by-law to Schedule A incorporated the version of Schedule A attached at the time the by-law was passed into the by-law itself. According to the appellant, the effect of this incorporation was that changes to Schedule A constituted amendments to the by-law and would invalidate the by-law. The Court disagreed. Section 10.1 of the by-law had to be read in the context of s. 91.1(2) of the POA. The reference in section 10.1 of the by-law to “set fines” could only be understood as a reference to set fines under the POA. The authority to establish set fines for municipal by-law offences rested with the local RSJ, not with the Region. Within that authority, the RSJ could change the amount of set fines and the offences for which set fines were established from time to time. In light of this context, the reference in s 10.1 of the by-law to the set fines being set out in Schedule A had to be read not as referring only to the placeholder Schedule A that was attached to the by-law at the time it was passed, but rather to the set fines established by the local RSJ from time to time under the authority in s. 91.1(2) of the POA.

Ultimately, it was clear that the changes to Schedule A had been made by the local RSJ and not by staff of the Region because the local RSJ had issued two orders changing Schedule A. The Court agreed with the application judge that it was these orders that changed Schedule A and that the process was consistent with s. 91.1(2) of the POA. The Court also agreed with the application judge that there was nothing untoward about the changes made to Schedule A after the by-law was passed by the Region and consent was given by a majority of lower-tier municipalities. As had occurred in this case, municipal staff could draft proposed short form wording and could request specific amounts as set fines. But the ultimate authority to establish set fines for by-law offences rested with the local RSJ.

The Court also rejected the appellant’s argument that the reasons of the application judge only addressed changes to the dollar values of the set fines made subsequent to the passage of the by-law and failed to address its argument that there were changes to the wording of Schedule A. Before the application judge, there had been no dispute that Schedule A had been changed as a result of the orders of the local RSJ exercising her authority to establish set fines. There had been no dispute about what the changes were – including to the wording of the short form descriptions of some of the offences for which set fines were established. The application judge was not required to enumerate in his reasons every individual change relied on by the appellant.

The Court did not find it necessary to consider the alternate argument regarding severance of s. 10.1 and Schedule A of the by-law as a remedy.

SHORT CIVIL DECISIONS

Sokil v. Buffone, 2024 ONCA 127

[Tulloch C.J.O., Hourigan and Zarnett JJ.A.]

Counsel:

B.L.S., acting in person

C. Salazar, for the respondent BMO Trust Company

J. Friedman, for the respondent E.A.B.

W.S., acting in person

9806881 Canada Corp. v. Swan, 2024 ONCA 133

[van Rensburg, Roberts and Favreau JJ.A.]

Counsel:

J. M. Wortzman and J.C. Wortzman, for the appellants

P. Virc and R. Karrass, for the respondent

Keywords: Civil Procedure, Costs

Lengyel v. Public Guardian and Trustee, 2024 ONCA 130

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

Counsel:

G.L., acting in person

S. Nestico-Semianiw, for the respondent

Keywords: Civil Procedure, Appeals

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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John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email