Congratulations to our very own Reeva Finkel for the result achieved for our client in Reset Electronics Inc. v. Hydro One Networks Inc., a negligence case. The Court found that Hydro One owed the plaintiff no duty of care and was not the cause for the failure of the plaintiff’s business.

In Alford v. Canada (Attorney General), the National Security and Intelligence Committee of Parliamentarians Act, the Court found that it was not unconstitutional for Parliament to regulate the ability of MPs who become privy to state secrets affecting national security to disclose and debate those issues in the House of Commons. No constitutional amendment is required to place such limits on parliamentary privileges.

In Herold Estate v. Curve Lake First Nation, the Court varied its costs decision to make the Estate’s estate trustee personally liable for the costs awarded, after the estate trustee had caused property to be transferred to them without it being disclosed to the other side or the Court, leaving the Estate without an ability to pay the costs.

In Rogerson v. Grey Bruce Regional Health Centre, the Court dismissed the appeal and upheld the trial judge’s finding that the respondent physician did not breach a duty of care to report potential child abuse the day before the child was assaulted by his biological mother. This was a tragic case where the damages flowing from the injuries to the child were agreed to exceed $13 million.

In Ungar v MOD Developments, a developer purchased two Toronto buildings to create a 52-storey complex, agreeing to pay $75 million and transfer 100 rental units to the vendors post-registration. A dispute arose over the terms of a cost sharing agreement between the developer and the vendors after the City imposed changes to the common elements. The application judge found for the vendors on how much of the cost of common elements they should have to contribute to. The application judge also found that the vendors beneficially owned the units and, through the remedy of constructive trust to prevent unjust enrichment, were entitled to the rents pre-registration/pre-closing. The Court dismissed the developer’s appeal.

In Bethel Restoration Ministries v. Noble, two factions controlling a church entered into minutes of settlement to resolve litigation, which minutes were enforced by the court below. One side appealed, arguing that the court had no jurisdiction, as the issues related to non-jusiticiable matters regarding the internal workings of a church. The Court dismissed the appeal, finding that the matters at issue related to issues of contract and property, which were governed by civil law, not canon law.

In Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church the Court refused  to stay its order for the conduct of a governance meeting in accordance with the church’s bylaws pending an appeal to the Supreme Court of Canada.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Reset Electronics Inc. v. Hydro One Networks Inc., 2024 ONCA 311

Keywords: Torts, Negligence, Negligent Misrepresentation, Duty of Care, Damages, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Housen v. Nikolaisen, 2002 SCC 33, Edinger v. Johnston, 2013 SCC 18

Ungar v. MOD Developments, 2024 ONCA 298

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Unjust Enrichment, Remedies, Constructive Trust, Civil Procedure, Evidence, Admissibility, Parol Evidence, Appeals, Standard of Review, Vendors and Purchasers Act, R.S.O. 1990. c. V.2, s. 4(f), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Intercap Equity Inc. v. Bellman, 2022 ONCA 61, Resolute FP Canada Inc. v. Ontario (Attorney General), 2019 SCC 60, Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, Professional Institute of the Public Service of Canada v. Canada (Attorney General), 2012 SCC 71, Peter v. Beblow, [1993] 1 S.C.R. 980

Bethel Restoration Ministries v. Noble, 2024 ONCA 295

Keywords: Not-for-Profit Corporations,  Voluntary Associations, Religious Organizations, Governance, Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church, 2023 ONCA 815

Rogerson v. Grey Bruce Regional Health Centre, 2024 ONCA 303

Keywords: Torts, Professional Negligence, Medical Malpractice, Standard of Care, Child Protection, Duty to Report, Child and Family Services Act, R.S.O. 1990, c. C.11, s.72, Housen v. Nikolaisen, 2002 SCC 33, Hydro-Quebec v. Matta, 2020 SCC 37, H.L. v. Canada (Attorney General), 2005 SCC 25, Salomon v. Matte‑Thompson, 2019 SCC 14, B.K.2 v. Chatham-Kent Children’s Services, 2016 ONSC 1921, R. v. GF, 2021 SCC 20, Sacks v. Ross, 2017 ONCA 773, Calin v. Calin, 2021 ONCA 558, Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, Homes of Distinction (2002) Inc. v. Adili, 2022 ONCA 64

Rathod v. Chijindu, 2024 ONCA 317

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, r.61.06(1), Yaiguaje et al. v. Chevron Corporation, 2017 ONCA 827, Pickard v. London Police Services Board, 2010 ONCA 643, Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, 2010 ONCA 137, Toronto Dominion Bank v. Szilagyi Farms Ltd. (1988), 65 O.R. (2d) 433 (C.A.), Schmidt v. Toronto-Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.),  Henderson v. Wright, 2016 ONCA 89

Herold Estate v. Curve Lake First Nation, 2024 ONCA 299  

Keywords:

Aboriginal Law, Civil Procedure, Orders, Variation, Transmission of Interest, Costs, Non-Parties, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), Rules of Civil Procedure, r. 59.06, 11.01, 9.01-9.03, Sturmer v. Beaverton (Town) (Re) (1911), 25 O.L.R. 190 (H.C.J.), 1318847 Ontario Ltd. v. Laval Tool & Mould Ltd., 2017 ONCA 184

Alford v. Canada (Attorney General), 2024 ONCA 306

Keywords: Constitutional Law, Parliamentary Privileges, Immunities and Powers, Freedom of Speech, Constitution Act, 1867,s. 18, Constitution Act, 1982, s. 38, The National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15, s. 12, Security of Information Act, R.S.C. 1985, c. O-5, Parliament of Canada Act, R.S.C. 1985, c. P-1, Alford v. Canada (Attorney General), 2019 ONCA 657, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, Duffy v. Canada (Senate), 2020 ONCA 536, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, Caron v. Alberta, 2015 SCC 56, R. v. Grant, 2009 SCC 32, Reference re Remuneration of Judges of Provincial Court of P.E.I., [1997] 3 S.C.R. 3, Re Clark et al. and Attorney-General of Canada (1977), 17 O.R. (2d) 593 (S.C.), Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39

Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church, 2024 ONCA 316

Keywords: Voluntary Associations, Not-for-Profit Corporations, Civil Procedure, Appeals, Stay Pending Appeal, Canadian Charter of Rights and Freedoms, s. 2, Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Iroquois Falls Power Corp. v. Ontario Electricity Financial Corp., 2016 ONCA 616, Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26

Short Civil Decisions

Preiano v. Cirillo, 2024 ONCA 312

Keywords: Civil Procedure, Costs, Pre-judgment Interest, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 127, 128(1), 131

Lahey v. Lahey, 2024 ONCA 307

Keywords: Real Property, Possession, Civil Procedure, Orders, Enforcement, Writs of Possession, Appeals, Extension of Time, Stay Pending Appeal, Paulsson v. University of Illinois, 2010 ONCA 21, Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (ONCA), 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Overtveld v. Overtveld, 2021 ONCA 930, Matos v. Driesman, 2024 ONCA 271, Lamothe v. Ellis, 2022 ONCA 789

North v. Bayerische Motoren Werke AG, 2024 ONCA 305

Keywords: Civil Procedure, Appeals, Hearing Together

Comfort Capital Inc. v. Yeretsian, 2024 ONCA 321

Keywords: Contracts, Real Property, Mortgages, Costs

Grillone (Re), 2024 ONCA 322

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Perfection

One Clarendon Inc. v. Finlay, 2024 ONCA 323

Keywords: Contracts, Real Property, Landlord and Tenant, Residential Tenancies, Civil Procedure, Orders, Enforcement, Writs of Possession, Appeals, Stay Pending Appeal, Lifting of Stay, Security for Costs, Rules of Civil Procedure, r 63.01, Bon v. Hutchens, 2021 ONSC 2076, Schwartz v. Fuss, 2021 ONSC 1159

CIVIL DECISIONS

Reset Electronics Inc. v. Hydro One Networks Inc., 2024 ONCA 311

[Benotto, Zarnett and Coroza JJ.A.]

Counsel:

Marin and A.P. Strombergsson-DeNora, for the appellant

Reeva M. Finkel, for the respondent

Keywords: Torts, Negligence, Negligent Misrepresentation, Duty of Care, Damages, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Housen v. Nikolaisen, 2002 SCC 33, Edinger v. Johnston, 2013 SCC 18

facts:

The appellant (“Reset”) held the exclusive right to distribute certain electrical components that could be used to upgrade existing fluorescent light fixtures, making them more energy efficient. The respondent (“Hydro One”) administered two programs of the Ontario Power Authority (“OPA”) that contemplated payment of financial incentives to electricity customers who replaced existing lighting with more energy efficient components. Customers who purchased Reset’s products applied for and obtained incentive payments from Hydro One, but Reset did not achieve the sales it hoped for. After its business failed, Reset brought an action against Hydro One. The trial judge dismissed the action. Seeking a new trial, Reset challenged each aspect of the trial judge’s rejection of its negligence theory of liability but conceded that Reset was not a party to a contract with Hydro One.

issues:

1. Did the trial judge err in her duty of care analysis?
2. Did the trial judge err in finding a lack of reasonable reliance by Reset on any undertaking of Hydro One?
3. Did the trial judge err in her conclusion that Reset’s damages were not caused by Hydro One’s breach of duty, if there was a breach of duty?

holding:

Appeal dismissed.

reasoning:

1. No.

The trial judge noted that for there to be a duty of care, a relationship of proximity had to exist. Where Reset alleged negligent misrepresentation or negligent performance of a service, Reset had to establish an undertaking in its favour by Hydro One that invited reliance, and that Reset reasonably relied on that undertaking to its detriment. After an assiduous review of the record, the trial judge concluded that Hydro One had given no undertaking in favour of Reset. There was no basis for appellate interference with this conclusion.

2. No.

In the contracts between Hydro One and its customers, Hydro One reserved to itself an absolute discretion to reject any incentive application and was not bound to approve payments to any customer within any deadline. It would not have been reasonable for Reset to rely on a supposed undertaking to determine eligibility of customers and make payments to them according to criteria or deadlines inconsistent with these direct contractual arrangements. The trial judge’s finding that there was no relationship of proximity sufficient to give rise to a duty of care was fatal to Reset’s claim in negligence. The trial judge found that if there was a duty, Hydro One did not breach it. These findings were subject to a deferential standard of review on appeal and there was no basis to disturb these findings.

3. No.

Reset’s allegation of causation was heavily dependent, at trial, on the evidence of its principal, W, whom the trial judge did not find credible. Reset did not lead the evidence of any potential customer who declined to do business with Reset due to delays in getting incentive payments.

Rogerson v. Grey Bruce Regional Health Centre, 2024 ONCA 303

[Harvison Young, Coroza and Gomery JJ.A.]

Counsel:

J.J. Adair, J.V. Katz and D. Embury, for the appellants

Kryworuk and J. Damstra, for the respondents

Keywords: Torts, Professional Negligence, Medical Malpractice, Standard of Care, Child Protection, Duty to Report, Child and Family Services Act, R.S.O. 1990, c. C.11, s.72, Housen v. Nikolaisen, 2002 SCC 33, Hydro-Quebec v. Matta, 2020 SCC 37, H.L. v. Canada (Attorney General), 2005 SCC 25, Salomon v. Matte‑Thompson, 2019 SCC 14, B.K.2 v. Chatham-Kent Children’s Services, 2016 ONSC 1921, R. v. GF, 2021 SCC 20, Sacks v. Ross, 2017 ONCA 773, Calin v. Calin, 2021 ONCA 558, Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, Homes of Distinction (2002) Inc. v. Adili, 2022 ONCA 64

facts:

T.R. suffered a catastrophic brain injury on December 18, 2007, when he was only 16 days old. He was assaulted by his biological mother, C.C. The parties agreed that T.R.’s damages exceed $13,000,000.

Dr. S. was C.C.’s family physician prior to T.R.’s birth. She saw both C.C. and T.R. together three times prior to the assault, including the day before it happened. Dr. N. was a paediatrician who also saw T.R. and C.C. on December 17, 2007. Dr. S. referred them to Dr. N. because she was concerned that T.R. was not gaining weight fast enough. Dr. N. suggested either that T.R. be readmitted to the hospital so that his feeding and weight gain could be monitored, or that C.C. return with him in three days for further follow-up. C.C. chose the latter.

The appellants’ central argument at trial and on appeal was that Dr. S. and Dr. N. should have reasonably suspected that T.R. was at risk of injury if he remained unsupervised in his mother’s care, and that they breached their duty of care to him by failing to report this concern to the local Children’s Aid Society (the “CAS”) as then required under s. 72 of the Child and Family Services Act. Had either of them done so, the CAS would have intervened immediately, and this intervention would have prevented the assault.

However, the trial judge found that Dr. S. conducted appropriate mental health assessments of C.C. and that she did not breach the standard of care by failing to contact the CAS prior to or after T.R.’s birth. The trial judge found that Dr. N. took an adequate mental health history of C.C. and that she did not breach the standard of care in failing to make a s. 72 report on December 17, 2007. In any event, even if either of the respondent physicians had made such a report, the trial judge found that the CAS would not have intervened in a way that would have prevented the assault.

issues:

Did the trial judge make reversible errors by misapprehending and misapplying the criteria for a mandatory report under s. 72 of the CFSA, by making findings on causation ungrounded in the evidence and by improperly failing to fully consider the appellants’ expert evidence?

holding:

Appeal dismissed.

reasoning:

No.

The trial judge did not misapprehend s. 72 by imposing too high a threshold for a duty to report or by failing to consider what the respondent physicians should have reasonably suspected, as opposed to what they actually did or did not suspect.

The trial judge did not disregard expert evidence when he concluded that Dr. S. had no obligation to make a s. 72 report. The trial judge did not require expert evidence to determine whether a set of facts gave rise to a s. 72 duty but that the standard of care of a family physician required compliance with s. 72. The trial judge’s finding that Dr. S. met the standard of care was supported by the evidence of the respondents’ expert, Dr. T.S.

Nor did the trial judge apply the wrong standard or otherwise err in assessing Dr. N.’s conduct. The trial judge considered not only Dr. N.’s subjective belief but also the reasonableness of that belief, finding that she did not have child protection concerns on December 17 and that she furthermore had no duty to make a CAS report. The trial judge concluded that there was nothing to indicate that T.R. was at possible risk in going home with C.C. and returning in three days.

The trial judge’s determination about what additional information Dr. N. might have obtained on December 17, and what she would have done with this information, were findings of fact based on the whole of the evidence at trial. They warranted deference in the absence of a palpable and overriding error. The trial judge concluded that, “even if Dr. N. had obtained CC.’s full mental health history, and conducted a detailed mental health assessment of her, she would not have had child protection concerns” and would not have been obliged to make a s. 72 report.

Overall, the appellants failed to prove that had either Dr. S. or Dr. N. alerted CAS to T.R.’s situation, the CAS would have either immediately removed T.R. from C.C.’s care or required that she be subject to full-time supervision.

Rathod v. Chijindu, 2024 ONCA 317

[Roberts J.A. (Motions Judge)]

Sidhu, for the moving party, Harsha Rathod

Belmont, for the moving party, Bluekat Capital Corp.

Keywords:  Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, r.61.06(1), Yaiguaje et al. v. Chevron Corporation, 2017 ONCA 827, Pickard v. London Police Services Board, 2010 ONCA 643, Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, 2010 ONCA 137, Toronto Dominion Bank v. Szilagyi Farms Ltd. (1988), 65 O.R. (2d) 433 (C.A.), Schmidt v. Toronto-Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.),  Henderson v. Wright, 2016 ONCA 89

facts:

These motions for security for costs arose out of mortgage disputes. The responding parties (appellants on the appeal) borrowed considerable sums from the moving parties (respondents on appeal) and gave them mortgages over two properties. The mortgages went into default. The properties were sold under power of sale and the net proceeds, after the payment of the first mortgages and related expenses, were paid into court.

The responding parties appealed the February 13, 2024 judgment of the motion judge who ordered payment of the monies paid into court to the moving parties in satisfaction of their respective mortgages and several outstanding costs orders that the responding parties failed to pay.

issues:

Should security for costs be ordered?

holding:

Motion granted.

reasoning:

Yes.

The motion judge held the moving parties met the conjunctive criteria for granting security for costs under r. 61.06(1)(a).

First, there was good reason to believe that the appeal was frivolous and vexatious. The evidence supporting the moving parties’ claims was extensive, and, to quote the motion judge from whose order the respondents were appealing, the evidence submitted by the responding parties was “entirely untrustworthy and unreliable, such that it would be unsafe to rely upon any evidence presented by them, that is not corroborated by independent evidence, or the evidence of [the moving parties].”

There was good reason to believe that the appeal was vexatious in that the responding parties’ appeal was devoid of merit and appeared to be brought for the collateral purpose of delaying payment to the moving parties. Moreover, the responding parties repeated their unfounded allegations of fraud and deceit against the moving parties and their lawyers, notwithstanding the motion judge’s findings that [the responding parties] were not credible witnesses in the proceeding, had not provided reliable evidence, and further they colluded with one another with the shared and common intent to defraud their mutual creditors, including [the moving parties], for their personal benefit.

Second, there was good reason to believe that the responding parties had insufficient assets to pay the appeal costs. There was not a sufficient surplus remaining after the mortgages were paid out to provide protection for the appeal costs. Instead, it exceeded the amounts paid into court. Further, there was no evidence that the responding parties had any available assets to pay the appeal costs if they were unsuccessful.

If all the criteria under r. 61.06(1)(a) are not satisfied, security for costs may be granted “for other good reason” under r. 61.06(1)(c). Here, if not frivolous and vexatious, the responding parties’ grounds of appeal had a very low prospect of success. Moreover, even if the responding parties had sufficient assets to pay appeal costs, their past failures to pay their mortgages and the outstanding costs orders demonstrated that they would not voluntarily pay appeal costs and that it would be “nearly impossible to collect” those costs.

Herold Estate v. Curve Lake First Nation, 2024 ONCA 299

[Fairburn A.C.J.O., Miller and Zarnett JJ.A.]

Counsel:

S. Metallic and N. Bains, for the moving parties

J. Brown and L. Findlay, for the responding parties, the Estate of W.A.H. and J.S.H.

Luxat, for the Attorney General of Canada

Keywords: Aboriginal Law, Civil Procedure, Orders, Variation, Transmission of Interest, Costs, Non-Parties, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), Rules of Civil Procedure, r. 59.06, 11.01, 9.01-9.03, Sturmer v. Beaverton (Town) (Re) (1911), 25 O.L.R. 190 (H.C.J.), 1318847 Ontario Ltd. v. Laval Tool & Mould Ltd., 2017 ONCA 184

facts:

The responding party, the Estate of W.A.H. (the “Estate”), commenced a Superior Court application asserting that it owned certain islands in the Trent-Severn Waterway (the “Islands”). It succeeded in the Superior Court, but the moving parties (the “First Nations”) successfully appealed that decision to the Ontario Court of Appeal. The Estate was ordered to pay costs totalling over $190,000 to the First Nations (the “Costs Decision”). The Court of Appeal’s costs awards were reflected in a formal order dated August 24, 2021, which was entered on January 26, 2022. The Estate unsuccessfully sought leave to appeal to the Supreme Court of Canada and was ordered by that court to pay costs of the leave application to the First Nations.

The First Nations have been unable to recover their costs. The Estate was without the means to pay them. They discovered, after the costs orders were made, that H (who is the Estate Trustee) received, in his personal capacity, a transfer of property the Estate owned (“Lot 35”) shortly after the Estate’s application was commenced. The First Nations moved to vary the costs awards to provide that J.S.H. be jointly and severally liable to pay the costs awarded against the Estate.

issues:

Should the Court grant an order to set aside or vary the costs order on the ground of fraud or of facts arising or discovered after the order was made?

holding:

Motion granted, in part.

reasoning:

Yes.

The 2015 transfer of Lot 35 to H was a fact that was discovered after the order for costs was made and was a sufficient ground in the circumstances to vary the Court of Appeal’s order. The factual assertion of current registered ownership of Lot 35 was never updated, even though the Estate was making the claim that it currently owned the Islands. The failure to update led to the application judge and the Court of Appeal being under the misapprehension that the Estate was still the registered owner at the time of the court order. The transfer of ownership engaged r. 11.01, which provides:

Where at any stage of a proceeding the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the proceeding shall be stayed with respect to the party whose interest or liability has been transferred or transmitted until an order to continue the proceeding by or against the other person has been obtained.

The application ought not to have continued in the name of the Estate after the transfer.

H could not avoid personal costs exposure because he instead continued the litigation in the name of the Estate, something he was able to do because he was Estate Trustee. An Estate litigates through its estate trustee: rr. 9.01-9.03. Although H did not name himself as a party, he alone commenced and prosecuted the application, even after the transfer. Even if H could be called a “non-party”, it would still be appropriate to order that he be liable for costs. The law generally disapproves of the real litigant being insulated from costs exposure by litigating through nominees. Courts have statutory jurisdiction to determine “by whom” the “costs of and incidental to a proceeding” shall be paid under s. 131(1) of the Courts of Justice Act. This includes jurisdiction to order a non-party to pay costs, provided that the “person of straw” test is met. That test is satisfied where: (i) the non-party had status to bring the action; (ii) the named party was not the true litigant; and (iii) the named party was a “person of straw” put forward to protect the true litigant from liability for costs.

These elements were present. First, as H had status – and was in fact required – to continue the application in his own name and on his own behalf after he obtained the transfer of Lot 35 from the Estate. Second, the Estate was no longer the true litigant, in any sense, from and after the transfer; only H had the entitlement to make a claim as current owner of Lot 35 and he alone stood to benefit from the application and any success on the appeal. Third, the position taken by the responding parties was that the effect of continuing the application and responding to the appeal putatively on behalf of the Estate – which lacked the ability to pay any costs – insulated H, the true litigant, from costs. Because of H’s close connection to the Estate, the litigation, and the transfer, it would be unjust for him to be free of the costs consequences of the litigation. He was in a position to direct the litigation and benefit from success. The claim continued, improperly, to be litigated on behalf of the Estate after the transfer when the claim was really H’s and could only have been litigated by and for him.

If the First Nations was aware of the transfer, they would have requested, and the Court of Appeal would have made, its costs awards against H. It would be contrary to the interests of justice to allow H to use the principle of finality to escape the costs consequences of the litigation.

Alford v. Canada (Attorney General), 2024 ONCA 306

[Doherty, Brown and Trotter JJ.A]

Counsel:

Gay and M. Rahman, for the appellant

R.A., acting in person

Keywords: Constitutional Law, Parliamentary Privileges, Immunities and Powers, Freedom of Speech, Constitution Act, 1867,s. 18, Constitution Act, 1982, s. 38, The National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15, s. 12, Security of Information Act, R.S.C. 1985, c. O-5, Parliament of Canada Act, R.S.C. 1985, c. P-1, Alford v. Canada (Attorney General), 2019 ONCA 657, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, Duffy v. Canada (Senate), 2020 ONCA 536, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, Caron v. Alberta, 2015 SCC 56, R. v. Grant, 2009 SCC 32, Reference re Remuneration of Judges of Provincial Court of P.E.I., [1997] 3 S.C.R. 3, Re Clark et al. and Attorney-General of Canada (1977), 17 O.R. (2d) 593 (S.C.), Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39

facts:

The National Security and Intelligence Committee of Parliamentarians Act (the “Act”) is an attempt to achieve the reconciliation between full and independent parliamentary oversight and the need to maintain the strict confidentiality of certain information and activities. The Act contemplates that members of the Committee will, in the course of performing their duties, come to know highly sensitive and classified information. The Act takes various steps to preserve the secrecy of that information.

From one perspective, the Act can be seen as a reasonable attempt by Parliament to balance legitimate and competing oversight and confidentiality concerns. The respondent, R.A., a law professor with an expertise in constitutional law and national security (the “respondent”), takes a different view. He submitted that, whatever one may say about the overall merits of the Act, s. 12 runs afoul of a fundamental constitutional principle. He argued that s. 12 eliminates freedom of speech and debate within Parliament insofar as the substance of any speech or debate is said to constitute an improper disclosure of information under the Act, or a related statutory provision. The respondent submitted that the right to freedom of speech and debate within Parliament is absolute, fundamental to Canadian democracy, constitutionally protected, and cannot be abrogated or limited, except by way of a constitutional amendment under s. 38 of the Constitution Act, 1982.

The Court, in a previous appeal, granted the respondent public interest standing to seek a declaration that s. 12 is ultra vires Parliament. Having obtained standing, the respondent was successful in challenging s. 12. The application judge declared s. 12 ultra vires and “invalid”. The Attorney General of Canada (“Canada”) appealed. Canada contended that the Constitution, and specifically s. 18 of the Constitution Act, 1867, authorizes Parliament to enact legislation defining the scope of parliamentary privileges. On Canada’s argument, s. 12 of the Act is an exercise of the constitutional authority granted under s. 18 and no amendment to the Constitution is required. Canada’s position was supported on the appeal by the Speaker of the Senate and the Speaker of the House of Commons, both of whom were granted leave to intervene. The Canadian Civil Liberties Association and the British Columbia Civil Liberties Association also intervened. They supported the position advanced by the respondent.

issue:

Can Parliament, in exercising its plenary legislative authority, limit the right to freedom of speech and debate in the manner laid out in s.12 of the Act?

holding:

Appeal allowed.

reasoning:

Yes.

The respondent argued that freedom of speech and debate in Parliament is fundamental and is constitutionally entrenched via the preamble to the Constitution Act, 1867. Consequently, freedom of speech and debate can be circumscribed only by a constitutional amendment that conforms to the amending procedures in s. 38 of the Constitution Act, 1982. Canada countered with s. 18 of the Constitution Act, 1867. Canada submitted that on a plain reading, s. 18 gives Parliament plenary power to define by legislation all parliamentary privileges, powers, and immunities. Canada maintains that s. 12 of the Act is an exercise of the constitutional power granted to Parliament by s. 18.

Parliament moved quickly to exercise the power in s. 18 by enacting s. 4 of the Parliament of Canada Act. Section 4(a) declares that Parliament holds the privileges, immunities and powers held by the House of Commons of the United Kingdom at the time of the passing of the Constitution Act, 1867. Those powers, privileges and immunities clearly included freedom of speech and debate. Section 4(b) of the Parliament of Canada Act indicates that Parliament also holds such privileges, immunities and powers as “are defined by Act of the Parliament of Canada”. This legislative power is limited only by the requirement in s. 4(b) that any privilege, immunity, or power bestowed by an Act of Parliament not exceed the powers enjoyed by the House of Commons of the Parliament of the United Kingdom at the time of the passing of the Canadian legislation purporting to define parliamentary privileges, immunities and powers.

This appeal turned on the interpretation of s. 18 of the Constitution Act, 1867. Constitutional documents must be interpreted in a large and liberal manner, bearing in mind the historical context and the entirety of the constitutional text. Interpretation must, however, begin with, and remain true to, the language of the relevant provision. Meaning comes first and foremost from the text. The language of s. 18 plainly and unequivocally gives to Parliament the plenary and continuing legislative power to define parliamentary privileges, immunities, and powers by way of duly enacted legislation. With the exception of the limitation on the expansion of those rights described in the closing language of s. 18, that section places no limit on how Parliament can “define” its privileges, immunities, and powers. To “define” in its normal meaning is to say what something is, and/or what something is not. Whether Parliament expands or limits the scope of parliamentary privileges, immunities and powers, Parliament is engaged in defining those rights.

On a plain reading, s. 18 applies to all parliamentary privileges, immunities, and powers. Nothing in the text suggests that s. 18 is limited to certain legislated parliamentary privileges, immunities, and powers. There is nothing inconsistent with recognizing that certain privileges, immunities, and powers are inherent in the role of Parliament, while at the same time acknowledging that after 1867, s. 18 of the Constitution Act, 1867 gave Parliament the authority to define its parliamentary privileges, immunities, and powers, including those inherent in the role of Parliament.

The interpretation of s. 18 does not, however, end with the text. The meaning of the words must be informed by the fundamental organizing principles of the Canadian Constitution. The independence of Parliament from executive and judicial interference is undoubtedly one of the basic principles of Canadian democracy captured by the language of the preamble. It is fundamental that Parliament control its own procedures. Without that autonomy, Parliament could not effectively perform its legislative role.

Parliamentary privilege exists to protect the independence of Parliament and thereby further Parliament’s ability to effectively oversee the activities of government. Section 18 of the Constitution Act, 1867 is consistent with, and promotes, the independence of Parliament by recognizing Parliament’s ability to define its own powers, privileges, and immunities. This interpretation of s. 18, which in the Court’s view flows easily from the language, is consistent with the principle of the independence of Parliament and facilitates Parliament’s oversight role.

The Court noted that this is a situation in which Parliament has chosen, through legislation, to limit its own privileges, powers, and immunities to enhance Parliament’s ability to oversee certain government activities. Interpreting s. 18 so as to permit legislation like s. 12 of the Act is consistent with the fundamental principles underlying Canadian democracy.

Section 12 of the Act stands as an express and crystal-clear statement of Parliament’s decision to exclude reliance on parliamentary privilege in the identified circumstances. Parliament’s intention is obvious. Once the category is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate. Freedom of speech and debate are clearly recognized categories of parliamentary privilege. Section 12 reflects Parliament’s decision that the exercise of parliamentary privilege in the circumstances governed by s. 12 was neither “necessary nor appropriate”.

The Court noted that the respondent’s submissions that s.12 of the Act prevents Parliamentarians from informing their colleagues about government abuses and “drastically” alters the “constitutional architecture” in Canada, is overstating the effect of s.12. There is nothing in the record to support the inference that in the six years since its enactment, s. 12 has had any impact on Parliamentarians, or has interfered with full debate on matters of national security.

The Court disagreed with the submission that the member’s privilege of free speech and debate would be totally abrogated in the hypothetical situation posed by the respondent. Section 11(1) prohibits disclosure of specific information, not questions or speeches about matters pertaining to national security. Because certain information may be subject to a non-disclosure obligation under the Act, does not mean that the subject matter to which that information relates cannot be the topic of questions in Parliament or a committee of Parliament. In addition, s. 12 does not limit Parliament’s lex parliamenti privilege to require the production of documents and testimony. Multiple speakers of the House of Commons have affirmed that this privilege includes a power to require production, even of documents relating to matters of national security, should members of Parliament in their wisdom pass such an order.

Therefore, the Court noted that it was fair to say that s.12 does limit the right to free speech and debate within parliament. That limitation, however, stops far short of anything approaching a constitutional renovation, or an embargo on parliamentary oversight of matters pertaining to national security.

Birhane v. Medhanie Alem Eritrean Orthodox Tewahdo Church, 2024 ONCA 316

[Lauwers J.A. (Motions Judge)]

Counsel:

A.L. Morrison and E. Beygi, for the respondents/moving parties

Sischy and Y. Gal, for the appellants/responding parties

Keywords:

Voluntary Associations, Not-for-Profit Corporations, Civil Procedure, Appeals, Stay Pending Appeal, Canadian Charter of Rights and Freedoms, s. 2, Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15, BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Iroquois Falls Power Corp. v. Ontario Electricity Financial Corp., 2016 ONCA 616, Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26

facts:

The individual parties are all members of Medhanie Alem Eritrean Orthodox Tewahdo Church (the “local Church”). This is a hierarchical Church. The local Church is under the Eritrean Orthodox Tewahdo Church Diocese of North America (the “Diocese”), which is the ecclesiastical district to which the local Church belongs. The Diocese is under the Holy Synod Eritrean Orthodox Church (the “Synod”), whose governing ecclesiastical council is in Asmara, Eritrea. Their relations are governed by canon law, which is understood to be the law of the Church.

The individual parties are members of the local Church. The responding parties served as volunteer board members. There is a dispute as to whether they continue to serve in that capacity. The moving parties, who were the respondents in the appeal to the Court, are also members of the local Church and claim broad support from within its membership.

Beneath the immediate dispute is a more fundamental conflict between the two groups. It has to do with the moving parties’ challenge to the authority of the Diocese and the Synod. The moving parties objected to a decision of the Synod to excommunicate their former priest, and object to financial obligations that the Diocese has imposed on the local Church. It appears that the moving parties would prefer to withdraw from the Diocese. These broader issues were not before the Court on appeal. Neither the Diocese nor the Synod were parties.

The immediate dispute was over various internal governance issues. The application judge ordered the local Church to hold an AGM pursuant to the Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15 (the “NFPCA”) and the 2014 Bylaws, with a court-appointed neutral chair. The Court’s decision turned on the interrelationship between statute law and canon law.

The Court’s decision required that the court ordered AGM still take place, but the conditions stipulating that the AGM must accord with the 2014 Bylaws and have a court-appointed neutral chair were struck. The application judge’s order, as varied by the Court, set up the following process. The local Church was to hold a special or emergency meeting, in accordance with the 2014 Bylaws, for the purpose of voting on whether to amend the Bylaws to adopt the Canon Law Promulgation. This meeting was to have a court-appointed neutral chair. The parties were to be free to agree on a neutral chair subject to court-approval. They were to return to the application judge with a proposed name on consent for the court-appointed neutral chair, or, if there was no agreement, they were to return with proposed names from which the application judge was to appoint the neutral chair. The local Church was then to hold an AGM in accordance with whatever bylaws result from the meeting.

issues:

Should the order under appeal be stayed?

holding:

Motion dismissed.

reasoning:

No.

There is no doubt that the Supreme Court has delved into the relationship between the rules of voluntary associations having a religious purpose, on the one hand, and provincial statute and common law, on the other hand. The court handles these questions under the rubric of justiciability, albeit with a degree of diffidence, and adjudicates them in light of the commitment to freedom of religion in the Canadian Charter of Rights and Freedoms.

There are numerous religious bodies in Ontario and in Canada whose dealings can raise questions about the relationship between religious organizations and civil law. Despite the inevitably local character of any given dispute, the general issue has a measure of public importance.

The Court declined to stay the order sought to be appealed for four reasons. First, the factual situation was unclear and the evidence spotty. The application judge “found that there was an absence of evidence to support the appellants’ claim that there were two organizations (an unincorporated congregation and an associated corporation).” Second, the evidence of the applicable canon law “[was] thin”. The “rules for resolving perceived conflicts between canon law and civil law in such situations might be underdeveloped from the perspective of civil law, and expert evidence may be needed to understand the relevant canon law.” There was none. Third, the Diocese was not a party even though it is the canon law legislator. Fourth, if the process prescribed by the Court is followed, that is, the local Church is afforded an opportunity to bring its bylaws in line with the Canon Law Promulgation at a special or emergency meeting, and the AGM later occurs, then there is, on the one hand, a prospect that the immediate dispute will be resolved. On the other hand, if the “more fundamental conflict between the two groups” – that the moving parties seek to withdraw the local Church from the Diocese – lurches into view through the process leading to the AGM, then this case cannot resolve the issues between the parties in the absence of both the Diocese and the Synod, neither of which are parties. Another legal proceeding would be required.

The Court noted that, in short, the materials were underdeveloped, the events in the immediate dispute were still mid-stream, and the true nature of the fundamental conflict had not yet clearly revealed itself. In the Court’s view, these uncertainties made it unlikely that the Supreme Court would grant leave to appeal.

SHORT CIVIL DECISIONS

Preiano v. Cirillo, 2024 ONCA 312

[Roberts, Sossin and Dawe JJ.A]

Counsel:

GC, acting in person as Estate Trustee for the appellant, The Estate of GC, and as Litigation Guardian for the appellant, AC

H. McLean, for the respondents

Keywords: Civil Procedure, Costs, Pre-judgment Interest, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 127, 128(1), 131

Lahey v. Lahey, 2024 ONCA 307

[Lauwers J.A. (Motions Judge)]

Counsel:

FL and KL, acting in person

C. Rudavsky, for the responding parties

Keywords:Real Property, Possession, Civil Procedure, Orders, Enforcement, Writs of Possession, Appeals, Extension of Time, Stay Pending Appeal, Paulsson v. University of Illinois, 2010 ONCA 21, Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (ONCA), 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Overtveld v. Overtveld, 2021 ONCA 930, Matos v. Driesman, 2024 ONCA 271, Lamothe v. Ellis, 2022 ONCA 789

North v. Bayerische Motoren Werke AG, 2024 ONCA 305

[Gillese, Brown and Paciocco JJ.A.]

Counsel:

Dimson, S. Cuberovic and J. Smith for the moving parties (M54752)/responding parties (M54789)

J. Pliszka, Z. I. Maladwala and L. MacLeod, for the responding parties (M54752)/moving parties (M54789)

Keywords: Civil Procedure, Appeals, Hearing Together

Comfort Capital Inc. v. Yeretsian, 2024 ONCA 321

[Doherty, Brown and Trotter JJ.A]

Counsel:

P. Smiley, for the appellant Money Gate Corporation

E. Karp, for the respondent Curah Capital Corporation

J. Zibarras, for the respondents 239029 Ontario Inc. and World Corporation

Keywords: Contracts, Real Property, Mortgages, Costs

Grillone (Re), 2024 ONCA 322

[Benotto J.A. (Motions Judge)]

Counsel:

S. Grillone, acting in person

K. D. Kraft, M. Bacal and M. Freake, for the respondent Bluecore Capital Inc.

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Perfection

One Clarendon Inc. v. Finlay, 2024 ONCA 323

Lauwers J.A. (Motions Judge)

Counsel:

S. Sood, for the respondent/moving party

No one appearing for the appellants/responding parties

Keywords: Contracts, Real Property, Landlord and Tenant, Residential Tenancies, Civil Procedure, Orders, Enforcement, Writs of Possession, Appeals, Stay Pending Appeal, Lifting of Stay, Security for Costs, Rules of Civil Procedure, r 63.01, Bon v. Hutchens, 2021 ONSC 2076, Schwartz v. Fuss, 2021 ONSC 1159

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.