Congratulations to Blaneys’ very own Jay Skukowski and his team, who were successful in responding to an appeal in an occupier’s liability matter.

In De Rita v. 1266078 Ontario Inc., a mortgage was paid off, but the mortgagee delayed in discharging the mortgage from title to the property, in breach of its obligation to do so. This caused the mortgagor to lose out on an opportunity to refinance the property in order to buy another property. The mortgagor successfully sued for damages arising from the loss of the opportunity to buy the second property. Citing the famous old case we all learn in first year contracts, Hadley v. Baxendale, the Court dismissed the appeal, finding that the loss arising from the secondary transaction was recoverable and not too remote. It was reasonably foreseeable that the failure to discharge a mortgage on a timely basis could harm the mortgagor in this way.

In Bayliss v Burnham, the deceased’s principal assets were his shares in his very successful tobacco exporting business. The beneficiaries of his estate moved for production of financial information by the corporation in order to assist them in determining the value of shares. The corporation opposed the request, but lost at first instance and on appeal.

In Marcellin v. London (Police Services Board), the Court allowed the appeal, finding errors in the motion judge’s dismissal of defamation claims under the anti-SLAPP provisions in s. 137.1 of the Courts of Justice Act. The judge failed to properly assess defences, harm, and malice. The lawsuit, including non-defamation claims, was ordered to proceed.

Intact Insurance Company v. Laporte was about the determination of the actual cash value of a property destroyed by fire for the purpose of determining the amount of indemnity owing by the insurer under a fire policy.

In Vento Motorcycles, Inc. v. United Mexican States, an appeal from a decision in a NAFTA arbitration against Mexico, the Court denied leave to intervene, as the issue appealed from was a fairly narrow evidentiary issue involving the credibility of a witness, whereas the proposed intervener sought to argue about the applicable test for setting aside an arbitral award under the International Commercial Arbitration Act 2017 and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards for unfairness. Granting leave to intervene would significantly expand the scope of the appeal.

Finally, in James Dick Construction Limited v. Courtice Auto Wreckers Limited, the issue was whether it was the landlord or the tenant who bore the risk of fire under the terms of a commercial lease.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Vento Motorcycles, Inc. v. United Mexican States, 2024 ONCA 480

Keywords: International Trade Law, Civil Procedure, International Arbitration, Appeals, Interveners, North American Free Trade Agreement, Investment, Chapter 11, International Commercial Arbitration Act 2017, S.O. 2017, c. 2, Sch. 5, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Rules of Civil Procedure, Rule 13, Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939, All Communications Network of Canada v. Planet Energy Corp., 2023 ONCA 319, Gol Linhas Aereas SA (formerly VRG Linhas Aereas SA) v. MatlinPatterson Global Opportunities Partners (Cayman) II LP and others, 2022 UKPC 21, Dell Computer Corp v. Union des consommateurs, 2007 SCC 34, TELUS Communications Inc. v. Wellman, 2019 SCC 19, Uber Technologies Inc. v. Heller, 2020 SCC 16, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Jones v. Tsige, 106 O.R. (3d) 721 (C.A.)

James Dick Construction Limited v. Courtice Auto Wreckers Limited, 2024 ONCA 476

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Covenants to Insure, Madison Developments Ltd. v. Plan Electric Co. (1997), 36 O.R. (3d) 80 (C.A.), Eaton Company v. Smith et al., [1978] 2 S.C.R. 749, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Royal Host GP Inc. v. 1842259 Ontario Ltd., 2018 ONCA 467, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sanofi Pasteur Limited v. UPS SCS, Inc., 2015 ONCA 88, Capital Sewer Servicing Inc. v. Crosslinx Transit Solutions Constructors, 2022 ONCA 10, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246

Marcellin v. London (Police Service Board), 2024 ONCA 468

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1, Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, Volpe v. Wong-Tam, 2023 ONCA 680, Hansman v. Neufeld, 2023 SCC 14, Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, Mondal v. Kirkconnell, 2023 ONCA 523,  Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, Nanda v. McEwan, 2020 ONCA 431, Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, Zeppa v. Rea, 2023 ONCA 668, Lascaris v. B’nai Brith Canada, 2019 ONCA 163, Levant v. DeMelle, 2022 ONCA 79, Hobbs v. Warner, 2021 BCCA 290, Thorman v. McGraw, 2022 ONCA 851, Rooney v. Galloway, 2024 BCCA 8

De Rita v. 1266078 Ontario Inc., 2024 ONCA 460

Keywords: Contracts, Real Property, Mortgages, Damages, Remoteness, Mitigation, Hadley v. Baxendale (1854), 156 E.R. 145 (Exch. Ct.), Saramia Crescent General Partner Inc. v. Delco Wire and Cable Limited, 2018 ONCA 519, Kienzle v. Stringer (1981), 35 O.R. (2d) 85 (C.A.), Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814

Crete v. Ottawa Community Housing Corporation, 2024 ONCA 459

Keywords: Torts, Negligence, Occupier’s Liability, Contracts, Real Property, Residential Leases, Statutory Interpretation, Civil Procedure, Summary Judgment, Appeals, Jurisdiction, Final or Interlocutory, Standard of Review, Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 4, 20(1), 33,  Maintenance Standards, O Reg 517/06, ss. 7, 26(1), 28, Courts of Justice Act, R.S.O 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, r. 20.04(4), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375, Housen v. Nikolaisen, 2002 SCC 33,  Montgomery v. Van, 2009 ONCA 808

Bayliss v. Burnham, 2024 ONCA 464

Keywords: Wills and Estates, Wills, Validity, Civil Procedure, Discovery, Documents, Non-Parties, Rules of Civil Procedure, r. 30.10, Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39 (C.A.)

Intact Insurance Company v. Laporte, 2024 ONCA 454

Keywords:Contracts, Interpretation, Insurance, Coverage, Property and Casualty, Fire, Indemnity, Actual Cash Value, Arbitration, Civil Procedure, Appeals, Standard of Review, Insurance Act, R.S.O. 1990, c. I.8, s. 128, Desjardins General Insurance Group v. Campbell, 2022 ONCA 128, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Ali v. Peel (Regional Municipality), 2023 ONCA 41, Re Barrett et al. v. Elite Insurance Co. et al., (1987) 59 O.R. (2d) 186 (C.A.), Canadian National Fire Ins. Co. v. Colonsay Hotel Co., [1923] S.C.R. 688, Carter v. Intact Insurance Company, 2016 ONCA 917

Short Civil Decisions

Workman Optometry Professional Corporation, 2024 ONCA 479

Keywords: Contracts, Interpretation, Insurance, Coverage, Business Interruption, COVID-19, Physical Loss or Damage, Civil Procedure, Class Proceedings, Workman Optometry Professional Corporation v. Certas Home and Auto Insurance: 2023 ONSC 3356

Mouralian v. Groleau, 2024 ONCA 485

Keywords: Civil Procedure, Costs, Offers to Settle

GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481

Keywords: Civil Procedure, Parties, Corporations, Representation by Lawyer, Law Society Act, R.S.O. 1990, c. L.8, s. 26.1(1), Rules of Civil Procedure, Rule 15.01(2), Leisure Farm Construction Limited v. Dalew Farms Inc. et.al., 2021 ONSC 105, GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONSC 4143, GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONCA 331

Allen v. Kumar, 2024 ONCA 470

Keywords: Torts, Fraud, Misrepresentation, Breach of Fiduciary Duty, Contracts, Civil Procedure, Appeals, Security for Costs, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 7(5), Rules of Civil Procedure, r. 61.06 (1)(c)

Switzer v. Petrie, 2024 ONCA 474

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment, Marshall v. Meirik, 2021 ONSC 1687

Horvat v. Alam, 2024 ONCA 471

Keywords: Civil Procedure, Representation by Lawyer, Removal of Counsel of Record, Costs, Appeals, Jurisdiction, Final or Interlocutory, Apowitzer v. Ontario, [1995] OJ No 3031, Horvat v. Alam, 2024 ONSC 51

Leonard v. Leonard, 2024 ONCA 461

Keywords: Family Law, Parenting, Conflict of Laws, Jurisdiction, Civil Procedure, Appeals, Extension of Time, Children’s Law Reform Act, R.S.O. 1990, c. C.12, SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913, Machado v. Ontario Hockey Association, 2019 ONCA 210, Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.)

Strutzenberger v. Strutzenberger, 2024 ONCA 455

Keywords: Family Law, Spousal Support, Arrears, Civil Procedure, Evidence, Costs, Strutzenberger v. Struzenberger, 2023 ONCA 755

Sky Homes Corporation v. Mah, 2024 ONCA 463

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Defences, Unconscionability, Damages, Interest, Mitigation, Farej v. Fellows, 2022 ONCA 254

CIVIL DECISIONS

Vento Motorcycles, Inc. v. United Mexican States, 2024 ONCA 480

[Fairburn A.C.J.O.]

Counsel:

A. Terry and M. Seers, for the appellant

V. DeRose, J. Radford, and S. Desjardins, for the respondent

J. Plotkin and C. March, for the proposed intervener

Keywords: International Trade Law, Civil Procedure, International Arbitration, Appeals, Interveners, North American Free Trade Agreement, Investment, Chapter 11, International Commercial Arbitration Act 2017, S.O. 2017, c. 2, Sch. 5, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Rules of Civil Procedure, Rule 13, Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A., 2017 ONCA 939, All Communications Network of Canada v. Planet Energy Corp., 2023 ONCA 319, Gol Linhas Aereas SA (formerly VRG Linhas Aereas SA) v. MatlinPatterson Global Opportunities Partners (Cayman) II LP and others, 2022 UKPC 21, Dell Computer Corp v. Union des consommateurs, 2007 SCC 34, TELUS Communications Inc. v. Wellman, 2019 SCC 19, Uber Technologies Inc. v. Heller, 2020 SCC 16, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Jones v. Tsige, 106 O.R. (3d) 721 (C.A.)

facts:

Vento Motorcycles Inc. (“Vento”) brought a claim against the United Mexican States (“Mexico”) pursuant to Chapter 11 of the North American Free Trade Agreement (“NAFTA”). The dispute at issue in the arbitration involved Mexico’s denial of NAFTA preferential import tariffs to motorcycles assembled by Vento in the United States and exported to Mexico, which Vento submitted resulted in substantial business losses and the destruction of its business. The Tribunal dismissed Vento’s claim, and the Application Judge declined to set aside the dismissal. Vento appealed. Vento submitted it had been denied procedural fairness by the Tribunal and was unable to present its case because the Tribunal precluded one of Vento’s witnesses from submitting additional evidence or testimony in response to a credibility challenge by Mexico.

The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (“CIPPIC”) provides legal assistance to under-represented organizations and individuals on law and technology issues. It brought a motion for leave to intervene in Vento’s appeal on the issue of what should be the test for procedural unfairness under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Model Law”), which is in force pursuant to the International Commercial Arbitration Act 2017. It submitted that the proper threshold for setting aside an arbitral award under the Model Law should be a “material” procedural fairness violation.

issue:

Should CIPPIC be granted a motion for leave to intervene?

holding:

Motion dismissed.

reasoning:

No. The Court was not satisfied that CIPPIC’s intervention in this case would assist. The Court considered the nature of the case, the issues that arose, and the likelihood that the applicant would make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

The Court was not satisfied that CIPPIC had provided a sufficient link between its expertise and the particular issue upon which it sought to intervene. Unlike CIPPIC’s stated mission, this case did not engage law and technology issues, or involve under-represented organizations, individuals, and consumers whose legal rights might be affected by terms in standard form contracts. Second, the nature of the case did not support CIPPIC’s intervention. No access to justice or constitutional issues were engaged. Third, CIPPIC’s intervention would have created an unjustified risk of expanding the scope of the appeal, increasing cost and complexity, and causing injustice to the immediate parties. The issue on appeal would have gone well beyond the question of whether Vento’s inability to respond to a credibility challenge left it unable to present its case.

James Dick Construction Limited v. Courtice Auto Wreckers Limited, 2024 ONCA 476

[Tulloch C.J.O., Lauwers and Miller JJ.A.]

Counsel:

J. Squire, R. Bell and R. Shoom, for the appellants/respondents

D. A. Zuber and J. B. Tausendfreund, for the respondent/appellant

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Covenants to Insure, Madison Developments Ltd. v. Plan Electric Co. (1997), 36 O.R. (3d) 80 (C.A.), Eaton Company v. Smith et al., [1978] 2 S.C.R. 749, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Royal Host GP Inc. v. 1842259 Ontario Ltd., 2018 ONCA 467, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sanofi Pasteur Limited v. UPS SCS, Inc., 2015 ONCA 88, Capital Sewer Servicing Inc. v. Crosslinx Transit Solutions Constructors, 2022 ONCA 10, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246

facts:

The respondent, Courtice Auto Wreckers Limited (“CAW”), leased two buildings from the appellant, James Dick Construction Limited (“JDC”), which it used to store newsprint for recycling. Under the terms of the lease, CAW had covenanted to insure the contents of the buildings, and JDC had covenanted to insure the buildings themselves. CAW had also covenanted to pay the expenses required to maintain and repair the buildings’ sprinkler systems. There was a dispute as to whether CAW had additionally covenanted to undertake the maintenance of the sprinkler systems.

In July 2009, a pinhole leak developed in the sprinkler system. CAW claimed it had asked JDC to repair the leak but did not receive an answer. CAW employees closed the water valve that controlled the flow of water to the sprinkler heads and attempted to repair the leak. They were unsuccessful. CAW did not notify the fire department that it had disabled the sprinkler system, which it was statutorily obligated to do. A few days later, a fire broke out in one building, destroying it and damaging the second building. The cause of the fire was unknown. JDC brought an action against CAW for breaching the lease by failing to maintain the sprinkler system. It sought damages for the cost of rebuilding the destroyed and damaged buildings. The trial judge dismissed the action.

issues:

1. Did the trial judge err in interpreting the contract by failing to apply the correct authority?
2. Did the trial judge err in failing to apply the proper principles of causation?
3. Did the trial judge err by failing to apply the correct legal test for assessing damages?

holding:

Appeal dismissed.

reasoning:

1. No. The Court rejected the submission that the trial judge had made a reviewable error in her interpretation of the agreement. When one attended to the twelve paragraphs the trial judge devoted to the interpretation of the clause in the context of the agreement, it was abundantly clear that the trial judge did not approach the interpretation of the contract as though she applied an exclusionary rule. She was attentive to the text of the clause, the broader text of the contract, and the factual context in which the agreement had been made.
2. and 3. Not Decided. It was not necessary to address the issues raised by JDC on appeal as to whether the trial judge had erred in failing to apply the proper principles of causation and whether the trial judge had erred by failing to apply the correct legal test for assessing damages. It was not the role of the Court on a question of mixed fact and law to redo factual findings. Some of the submissions, such as that the tenant CAW had undertaken to maintain the fire suppression system, contradicted findings of the trial judge that were supported in the record. Others related to provisions of the contract that the trial judge had canvassed and that she had concluded did not displace the inference that the agreement allocated the risk of fire to the landlord JDC.

Marcellin v. London (Police Service Board), 2024 ONCA 468

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

Counsel:

S. Stewart and M. Simon, for the appellant

D. Wallace and S. Miller, for the respondents M. W. and The London Abused Women’s Centre

C. DeMelo, for the respondent J.Y.

A. Frauts and A. Cameron, for the respondent ANOVA

C. Patterson, for the respondent K.W.

Keywords:

Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 137.1, Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587, Volpe v. Wong-Tam, 2023 ONCA 680, Hansman v. Neufeld, 2023 SCC 14, Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, Mondal v. Kirkconnell, 2023 ONCA 523,  Park Lawn Corporation v. Kahu Capital Partners Ltd., 2023 ONCA 129, 2110120 Ontario Inc. v. Buttar, 2023 ONCA 539, Nanda v. McEwan, 2020 ONCA 431, Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, Zeppa v. Rea, 2023 ONCA 668, Lascaris v. B’nai Brith Canada, 2019 ONCA 163, Levant v. DeMelle, 2022 ONCA 79, Hobbs v. Warner, 2021 BCCA 290, Thorman v. McGraw, 2022 ONCA 851, Rooney v. Galloway, 2024 BCCA 8

facts:

The appellant, M.M., commenced an action against the personal respondents, which included his former spouse (Dr. Y) and two former employees of not-for-profit organizations (M.W. & K.W.), for damages alleging harm to his reputation and other injuries. The organizations (London Abused Women’s Centre and ANOVA) were also sued and are respondents in the appeal.

The appellant contended that he was subjected to a deliberate campaign for several months that injured his reputation and interfered with ongoing family law proceedings. The respondents moved to dismiss the action pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, commonly known as the anti-SLAPP provision. For the purposes of the s. 137.1 motion, the Court focused on four defamatory “expressions” within the meaning of the anti-SLAPP provisions.

The first incident took place on April 26, 2018. M. W. and K.W. falsely told the appellant’s supervisor that he had assaulted Dr. Y and was pursuing family law proceedings as ongoing abuse, escalating to physical violence. The second impugned expression occurred in August 2018 when Dr. Y filed a complaint leading to the appellant’s arrest on assault charges, claiming past abuse and involving M. W. and K.W. as witnesses. The third set of impugned expressions was by M.W. in the days following the appellant’s arrest. M.W.  emailed the appellant’s supervisor about the assault charges and requested the appellant’s removal from specific initiatives. She criticized the public comments, tweeted about the charges with the appellant’s photo, and posted related content. The fourth alleged defamatory expression was in letters and emails marked “confidential.” Dr. Y sent letters and emails to various officials detailing the alleged abuse and referencing the criminal charges, aiming to mobilize support against the appellant. Subsequently, the appellant was terminated from his employment from the city.

The motion judge concluded that the appellant’s defamation claims had substantial merit. However, the judge found insufficient evidence to support valid defences, except for the letters and emails sent by Dr. Y, which were protected by qualified privilege. Notwithstanding the lack of valid defences to the defamation claims, weighing the public interest, the motion judge ultimately determined that protecting expressions on matters of public interest outweighed the interest in allowing the lawsuit to proceed. The judge characterized the lawsuit as vengeful and aimed at silencing the respondents. The motion judge dismissed the action and awarded full indemnity costs against the appellant and damages in favour of Dr. Y.

issues:

1. In considering whether the plaintiff discharged his burden under s. 137.1(4)(a)(ii), did the motion judge err in failing to find that there were grounds to believe that the respondents had no valid defence to any of the impugned expressions?
2. In considering whether the plaintiff discharged his burden under s. 137.1(4)(b), did the motion judge err: (a) in failing to apply the correct legal principles in assessing the harm to the plaintiff as a result of the impugned expressions; and (b) in failing to consider the individual expressions themselves and the motives and malice of the respondents, and in considering irrelevant factors, when weighing the value of the expressions against the harm to the plaintiff if the Action were not permitted to proceed?
3. Did the motion judge err in dismissing the non-defamation causes of action?

holding:

Appeal allowed.

reasoning:

Reasoning:

1. Yes. The Court held that the motion judge erred in determining that the appellant had not met the burden to show that there was no valid defence to the impugned expressions under s. 137.1(4)(a)(ii).The motion judge’s analysis of the defence of qualified privilege concerning Dr. Y’s police complaint was incomplete, as it did not consider whether the privilege was exceeded or defeated by malice. The Court noted that the timing of Dr. Y’s complaint and letters suggested a motive to gain an advantage in family law proceedings rather than to report crimes, indicating malice sufficient to defeat the qualified privilege defence.

The motion judge also failed to individually assess each of Dr. Y’s letters, overlooking their misleading content and the context suggesting malice. The judge did not sufficiently address the coordination and malice behind them. The evidence supported that the tweets were coordinated to portray the appellant negatively and without a valid defence.

2 (a). Yes. The Court held that the motion judge erred in applying the correct legal principles in assessing the harm to the appellant, as established in Park Lawn, at para. 46; Pointes Protection, at paras. 68-72; Bent, at paras 142-62; and Hansman, at paras. 67-68. On the facts, the motion judge failed to properly consider the substantial evidence of harm to the appellant’s reputation, employment, and job prospects, including his affidavit stating that his career and advocacy work were ruined due to the respondents’ actions. The Court held that the motion judge set the bar too high by requiring evidence of past engagements and income. By their nature, the impugned expressions were harmful and defamatory, as they accused the appellant of severe misconduct and criminal actions, likely causing significant reputational harm. The motion judge also erred in his approach to special damages by prematurely concluding that the defamatory statements did not cause the appellant’s job loss and that he had mitigated his damages by finding another job. This conclusion was based on preliminary, incomplete, and untested evidence. The motion judge ignored evidence of the appellant’s extended unemployment and the significant impact on his career prospects.

2 (b). Yes. The Court held that the motion judge erred in evaluating motive and malice. The motion judge failed to assess the value of the specific impugned expressions, focusing instead on the general public interest in discussing domestic violence. The motion judge did not consider the respondents’ motives, the quality of the expressions, or evidence of malice, which are critical to assessing the public interest in protecting those expressions, as established in Pointes Protection, at paras. 74-77; Hansman, at para. 79; and Thorman, at para. 30. Additionally, the motion judge incorrectly assessed the appellant’s harm, not giving enough weight to the evidence of employment and reputational damage. The motion judge’s focus on irrelevant factors, such as the broad scope of the appellant’s lawsuit and his criticism of the litigation strategy, further detracted from the proper weighing analysis. The Court held that the appellant demonstrated that his harm was serious enough to justify the action, outweighing the public interest in protecting the respondents’ expressions.

3. Yes. The Court found that the motion judge wrongly dismissed the non-defamation claims. Due to errors in the motion judge’s handling of the defamation claims, the entire action should proceed. The court emphasized that an anti-SLAPP motion is not the proper stage to assess the merits of each individual cause of action: Buttar at para. 57. Its purpose is solely to identify and dismiss SLAPPs, not to serve as a pleading or summary judgment motion: Pointes Protection, at para. 52; Galloway, at para. 162. Consequently, the Court held that it was inappropriate to determine the merits of the non-defamation claims at this stage.

De Rita v. 1266078 Ontario Inc., 2024 ONCA 460

[Miller, Zarnett and Thorburn JJ.A.]

Counsel:

N. Jomaa, for the appellant

C. Mackenzie, for the respondent

Keywords: Contracts, Real Property, Mortgages, Damages, Remoteness, Mitigation, Hadley v. Baxendale (1854), 156 E.R. 145 (Exch. Ct.), Saramia Crescent General Partner Inc. v. Delco Wire and Cable Limited, 2018 ONCA 519, Kienzle v. Stringer (1981), 35 O.R. (2d) 85 (C.A.), Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814

facts:

1266078 Ontario Inc. (“126”) appealed a judgment finding it liable to MDR for $150,375 in damages for failing to honour its contractual obligation to discharge in a timely manner a mortgage that 126 held on MDR’s Ouellette Avenue property in Windsor, Ontario. The application judge found that the delay in discharging the mortgage deprived MDR of the opportunity to use the Ouellette property to finance the purchase of a Bruce Avenue property, which he had contracted to buy at an extremely favourable price. By the time MDR obtained a discharge by court order, the Bruce Avenue purchase agreement had lapsed.

issues:

(1) Did the application judge err factually in finding that MDR was entirely reliant on the equity in the Ouellette property to finance the Bruce Avenue purchase?

(2) Did the application judge err by not deeming the loss arising from the incomplete Bruce Avenue purchase as too remote and thus unrecoverable?

(3) Did the application judge err on the subject of mitigation?

(4) Did the application judge err by departing from the date of the breach as the date to assess damages?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court held that on the evidentiary record, it was open to the application judge to conclude that without access to the equity in the Ouellette property, only accessible after 126’s mortgage was discharged, MDR had insufficient funds to complete the Bruce Avenue purchase.

(2) No. The Court disagreed with 126’s argument that a loss on a secondary transaction like the Bruce Avenue purchase was too remote from the mortgage contract breach and failed to satisfy either branch of the Hadley v. Baxendale remoteness test. Recoverable losses fall into two groups: i) losses arising reasonably and naturally from the contractual breach and ii) losses that are “within the reasonable contemplation of the parties at the time of contract.” The Court endorsed the application judge’s holding that parties registering a charge against title to another’s property must foresee the consequences of continuing to encumber title once the charge is spent. 126 and its directing mind were experienced real estate investors and were aware that MDR earned his living buying and selling commercial real estate in Windsor. Accordingly, 126 could reasonably have foreseen that impairing title to the mortgaged property would harm MDR’s business prospects. The Court distinguished Kienzle, cited by 126 for the proposition that losses on secondary transactions (involving land other than the mortgaged land) are unrecoverable. In Kienzle, there was no disclosure that a secondary transaction might arise from the first contemplated transaction, whereas here, 126 was specifically advised that further delay in discharging the mortgage was harming MDR’s other business endeavours. Thus, no unfairness arose from the lower court’s remoteness analysis.

(3) No. 126 submitted that the application judge should have found that MDR failed to mitigate damages by not applying for a compelled discharge sooner. The Court considered this argument meritless, since MDR applied for a court order promptly after giving 126 several opportunities to comply with its discharge obligations.

(4) No. The Court held that the application judge had a principled basis for assessing damages starting from a date other than the date of contractual breach, and that doing so was a valid exercise of her discretion.

Crete v. Ottawa Community Housing Corporation, 2024 ONCA 459

[Huscroft, Coroza and Monahan JJ.A.]

Counsel:

V. Boddy, for the appellant

Jay Skukowski, Ned Bozalo and Tyler Macks for the respondent

Keywords: Torts, Negligence, Occupier’s Liability, Contracts, Real Property, Residential Leases, Statutory Interpretation, Civil Procedure, Summary Judgment, Appeals, Jurisdiction, Final or Interlocutory, Standard of Review, Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 4, 20(1), 33,  Maintenance Standards, O Reg 517/06, ss. 7, 26(1), 28, Courts of Justice Act, R.S.O 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, r. 20.04(4), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375, Housen v. Nikolaisen, 2002 SCC 33,  Montgomery v. Van, 2009 ONCA 808

facts:

The appellant appealed a decision finding that the appellant was  responsible for injuries suffered by D.C. when he slipped and fell on ice on the front step of a townhouse the appellant had leased from the respondent. The motion judge found that the Snow Removal Provision in the lease was not inconsistent with the Residential Tenancies Act, 2006, and regulations (the “RTA”). Therefore, the Snow Removal Provision was not void pursuant to s. 4 of the RTA, and its effect was to make the appellants responsible for winter maintenance in the area where D.C. fell. The motion judge’s order made a declaration to that effect, but dismissed all other relief sought by the parties on their summary judgment motions.

The motion judge found no inconsistency between the Snow Removal Provision and s. 26(1) of O. Reg. 517/06, enacted under the RTA (the “Regulation”). Nor, in the motion judge’s view, was the Snow Removal Provision inconsistent with s. 20(1) of the RTA, which provides that a landlord is responsible for maintaining a residential complex “in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.” The motion judge found, instead, that s. 33 of the RTA, which makes tenants generally responsible for “ordinary cleanliness of the rental unit,” requires tenants to clear snow and ice from areas used exclusively by them.

issues:

(1) Is the appeal outside the jurisdiction of the court as a result of the trial judge’s order being interlocutory?

(2) Did the motion judge err in finding that the Snow Removal Provision was not inconsistent with the RTA?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court held the trial judge’s order was a final order and was appealable to the Court, in accordance with s. 6(1)(b) of the Courts of Justice Act. The Court agreed that the motion judge’s order expressly decided a legal issue by declaring that the appellants were responsible for the clearing of snow and ice from the front steps of the Rented Premises. The respondents argued that the motion judge’s order would not be binding on the trial judge in this case, since the motion judge did not invoke the power of r. 20.04(4) of the Rules of Civil Procedure. Where it used to be that the court had to invoke this rule, it was not the case for this matter. The order thereby dismissed one of the appellant’s defences to the counterclaim, with binding effect on the trial judge.

(2) No. The motion judge’s interpretation of the RTAinvolved questions of law, which were reviewed on a standard of correctness, as per Housen v. Nikolaisen. The motion judge adopted an unduly narrow interpretation of the scope of s. 20(1) of the RTAby focusing on the landlord’s obligation in that subsection to maintain a residential complex in a “good state of repair”. The Court asserted that the applicable maintenance standards are set out at. s. 26(1) of the Regulation. It follows that s. 20(1) of the RTA does encompass a landlord’s responsibility to clear snow and ice in a residential complex, albeit in accordance with the applicable standards set by the Regulation. According to the Court, the result was that the responsibility to clear snow and ice was not encompassed within the tenant’s obligation for “ordinary cleanliness of the rental unit” under s. 33 of the RTA. The Court found that while the motion judge erred in her interpretation of ss. 20(1) and 33 of the RTA, she correctly found that s. 26(1) the Regulation only requires a landlord to clear snow from exterior common areas in a residential complex, and not areas used exclusively by individual tenants.

The Court also found that the motion judge’s interpretation of the landlord’s responsibility to clear snow and ice in s. 26(1) of the Regulation was consistent with the Court’s decision in Montgomery v. Van.  In Montgomery, the court found that a lease provision requiring a tenant to clear snow from a common area in a residential complex was inconsistent with the landlord’s responsibility under the applicable maintenance regulation to clear snow from “exterior common areas.” The lease provision was therefore found to be void. However, the court clarified that the responsibility for snow clearing only extended to common areas in the residential complex. The motion judge interpreted the Snow Removal Provision as requiring the appellant to clear snow and ice only from areas reserved for their exclusive use. This was a finding of mixed fact and law, reviewable on a standard of palpable and overriding error. The appellant had not identified any basis upon which the Court could interfere with the motion judge’s conclusion.

Finally, the Court held that the Snow Removal Provision was not inconsistent with ss. 7 or 28 of the Regulation. Neither of these provisions were applicable in the circumstances of this case.

Bayliss v. Burnham, 2024 ONCA 464

[Huscroft, Coroza and Monahan JJ.A.]

Counsel:

I. Fischer and L. Kelley, for the appellant Grand River Enterprises Six Nations Ltd.

A. Turner, for the respondents R. B. personally and in her capacity as litigation guardian for E. B., and A. M. personally and in her capacity as litigation guardian for G. H.

Z. Wong, for the respondent M. M.

A. Bloom and J. Karjanmaa, for the respondent B. B. personally and in her capacity as litigation guardian for B. B.

J. Nasseri and G. Vance, for the respondent C. H. personally and in her capacity as litigation guardian for J. H. and J. H.

P. Askew, for the respondent R. B. in his capacity as Estate Trustee

A. Posno, for the non-party J. R. as Estate Trustee of the Estate of K. H.

A. Sivakumaren for the non-party K. A. personally and in her capacity as litigation guardian for J. A.

Keywords: Wills and Estates, Wills, Validity, Civil Procedure, Discovery, Documents, Non-Parties, Rules of Civil Procedure, r. 30.10, Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39 (C.A.)

facts:

The appellant, Grand River Enterprises Six Nations Ltd. (“GRE”) appealed an order for production of documents by a non-party pursuant to Rule 30.10 of the Rules of Civil Procedure. K.H. was a highly successful businessman who co-founded GRE, one of the largest exporters of tobacco products in Canada. K.H. died on January 18, 2021.

A group of the deceased’s adult children, representatives of his minor children, and his former partners (the “Moving Parties”) brought the motion for production. Although GRE was a non-party to the litigation, in the Moving Parties’ submission, production of its financial records was necessary because the GRE shares were the estate’s largest asset. Further, the complexity of the estate’s assets and their value would assist in determining the validity of the deceased’s last will. GRE opposed the motion for production. The motions judge granted the order requested by the Moving Parties. The Judge ordered GRE to produce financial statements, having established a Confidentiality Protocol to ensure that the documents produced would remain confidential. The crux of GRE’s appeal was that the motions judge misapplied the test under r. 30.10 of the Rules of Civil Procedure at both the relevance and fairness stages.

issue:

Did the motions judge misapply the test under Rule 30.10 of the Rules of Civil Procedure, at both the relevance and fairness stages?

holding:

Appeal dismissed.

reasoning:

No, the motions judge did not misapply the test under Rule 30.10 of the Rules of Civil Procedure. The motions judge’s discretionary decision was entitled to deference and there was no basis to interfere with it. The motions judge found that the documents sought were relevant to a material issue in the action and that it would be unfair to require the Moving Parties to proceed to trial without them. In reaching the decision, the motions judge considered the factors relevant to determining a production motion set out in Ontario (Attorney General) v. Stavro.

The motions judge began the analysis by recognizing that the standard for relevance of documents is elevated when they are in the hands of a non-party. At the first stage of the analysis, the motions judge concluded that “[t]he GRE shares are an asset of the Estate and must be valued like any other asset” as the value of the shares would go to “the very heart” of the triable question of whether the deceased’s last will made testamentary sense.

At the second stage of the analysis, the motions judge determined that disclosure was required for fairness to the Moving Parties. The motions judge reasoned that: the trial would inevitably be adjourned if the documents were produced at trial; the information sought could be obtained from no other source; and GRE had a connection to the litigation as the deceased had been referred to as the “face” of the company. In sum, the motions judge found that the Moving Parties had met their burden, concerns about business interests, privacy, and safety, in the Court’s view, were addressed through the Confidentiality Protocol.

GRE also argued that the terms of the motions judge’s order were unfair and overbroad. The Court disagreed, rejecting the submission that the motions judge ignored the potential for violence toward GRE’s personal stakeholders.      

Intact Insurance Company v. Laporte, 2024 ONCA 454

[Paciocco, Nordheimer and Monahan JJ.A]

Counsel:

N. Rodriguez and J. Rucci, for the appellant

A. Bedard and A. Sharpe, for the respondent

Keywords: Contracts, Interpretation, Insurance, Coverage, Property and Casualty, Fire, Indemnity, Actual Cash Value, Arbitration, Civil Procedure, Appeals, Standard of Review, Insurance Act, R.S.O. 1990, c. I.8, s. 128, Desjardins General Insurance Group v. Campbell, 2022 ONCA 128, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Ali v. Peel (Regional Municipality), 2023 ONCA 41, Re Barrett et al. v. Elite Insurance Co. et al., (1987) 59 O.R. (2d) 186 (C.A.), Canadian National Fire Ins. Co. v. Colonsay Hotel Co., [1923] S.C.R. 688, Carter v. Intact Insurance Company, 2016 ONCA 917

facts:

The appellant, JL, operated a military apparel business out of a former rural schoolhouse near a military base. On November 23, 2018, the commercial premises were extensively damaged by fire. JL had a valid insurance policy in place with the respondent, Intact. The policy provided for replacement value coverage in qualifying cases, failing which actual cash value (“ACV”) would be paid. The parties agreed that the replacement value for the buildings was $2.5 million, and that based on prior sales the market value was $265,000. Intact would not commit to paying replacement value coverage, and the process provided for under s. 128 of the Insurance Act was instituted to resolve the amount payable based on the ACV.

The umpire appointed conducted a site visit where he observed the location and structure of the business as well as the damage and the partial repairs that had been effected. Intact proposed an ACV of $390,000 based on an income approach appraisal. JL proposed an ACV of $1,084,000. After some disagreement, the umpire chose JL’s proposal and assigned $1,084,000 as the ACV.

A majority of the Divisional Court found that the record before the umpire lacked the evidence needed to establish an ACV in excess of the market value, thereby offending the indemnity principle by creating a windfall and an arbitrary award and thus, quashed the umpire’s ACV determination.

issues:

1. Did the Divisional Court give unwarranted priority to market value in assessing ACV?
2. Was there a foundation before the umpire permitting him to assign the ACV that he did?
3. Did the umpire’s award offend the indemnity principle?
4. Was the umpire’s ACV award arbitrary?

holding:

Appeal allowed.

reasoning:

1. The Court held that the Divisional Court did not apply an appropriate standard of review, and that the umpire’s decision was reasonable and warranted deference. The Court found that although the market value was an important factor to be considered, depending on the circumstances, ACV could exceed market value. Unless its meaning was altered by the policy, “actual value” meant the actual value of the property to the insured at the time of the loss. The brief furnished to the umpire described the unique location as the key to this success. It also described the functionality and utility of the adapted building to the business that affected the monetary value of the premises to JL.
2. The Court held that there was a foundation before the umpire permitting him to assign the ACV that he did. The court concluded JL had made clear his intention to continue to operate from the business location as he had been doing before the fire. This claim was supported by the fact that he still operated from the partially repaired premises. There had been no information before the umpire that JL had attempted or intended to sell the building and every indication that retaining that business location was worth enough to him to undertake the necessary expenses to keep the business operating. The policy specifically identified depreciated replacement value as a factor for consideration in assessing ACV. It was clear that the umpire did not conflate the two evaluation methods.
3. The Court held that the umpire’s award did not offend the indemnity principle. It was not disputed that there were no other similar premises available. JL could not have enjoyed the actual value that this premises had been offering him prior to the fire without some repair. There had been no evidentiary basis that the umpire’s ACV assessment was a profit or windfall that would create a moral hazard.
4. The umpire’s ACV award was not arbitrary. First, s. 128 of the Insurance Act did not call for a scientific identification of value but provided instead for an easy, expeditious, collaborative, and pragmatic dispute resolution mechanism. After his proposed ACV had been rejected, the umpire selected from the two proposed awards, as he had been entitled to do.

SHORT CIVIL DECISIONS

Workman Optometry Professional Corporation v. Certsa Home and Auto Insurance Company, 2024 ONCA 479

[MacPherson, Paciocco, and Wilson JJ.A.]

Counsel:

K. Baert, V. Calina, A. Angle, for the appellants

C. Woodin, J. Blinick, for the respondent Dominion Canada Insurance

C. Flood, N. Henderson, for the respondent Wawanesa

G. Zakaib, E. Vila, R. Ashurov, M. McCann, for the respondents Certain Underwriters

C. Rhone, R. Egit, J. Palef, for the respondents Federated Insurance Canada and Northbridge

K. Thomson, C. Cseh, C Li, for the respondent Continental Casualty Company

S. Libin, E. Adams, for the respondent Certas Home and Auto Insurance

S. Armstrong, D. Rosenbaum, J. Harper, for the respondents Intact Insurance, Novex, and Royal and Sun Alliance

K. Boggs, J. Squire, M. Dunk, for the respondent Gore Mutual

L. Fric, M. Sheeley, C. Barrowman, for the respondent Economical Mutual

G. Zacher, L. Mercer, for the respondents Co-operators and Wynward

T. Donnelly, J. Tam, for respondent Dominion of Canada Insurance

A. Petingill, for respondent SGI Canada

Keywords: Contracts, Interpretation, Insurance, Coverage, Business Interruption, COVID-19, Physical Loss or Damage, Civil Procedure, Class Proceedings, Workman Optometry Professional Corporation v. Certas Home and Auto Insurance: 2023 ONSC 3356

Mouralian v. Groleau, 2024 ONCA 485

[Roberts, Trotter, George JJ.A]

Counsel:

K. Coombs, for the appellant

M. Morden, for the respondeont

Keywords: Civil Procedure, Costs, Offers to Settle

GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A. de C.V. (Andromaco), 2024 ONCA 481

[Huscrot, Grant JJ.A]

Counsel:

K. Drizen, for the moving party

A. Moeser, D. Malone, for the responding party

Keywords: Civil Procedure, Parties, Corporations, Representation by Lawyer, Law Society Act, R.S.O. 1990, c. L.8, s. 26.1(1), Rules of Civil Procedure, Rule 15.01(2), Leisure Farm Construction Limited v. Dalew Farms Inc. et.al., 2021 ONSC 105, GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONSC 4143, GlycoBioSciences Inc. v. Herrero and Associates, 2023 ONCA 331

Allen v. Kumar, 2024 ONCA 470

[MacPherson, Paciocco, Wilson JJ.A]

Counsel:

BK, acting in person

N.Groot, A. Ferguson, for the respondents

Keywords: Torts, Fraud, Misrepresentation, Breach of Fiduciary Duty, Contracts, Civil Procedure, Appeals, Security for Costs, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 7(5), Rules of Civil Procedure, r. 61.06 (1)(c)

Switzer v. Petrie, 2024 ONCA 474

[Miller, Zarnett and Copeland JJ.A.]

Counsel:

R. Refcio and W. Chapman, for the appellants

M. Jantzi, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment, Marshall v. Meirik, 2021 ONSC 1687

Horvat v. Alam, 2024 ONCA 471

[MacPherson, Paciocco and Wilson JJ.A.]

Counsel:

B. Martin and M. Giugaru, for the respondents/moving parties

D. LaFramboise, for the appellant/responding party

Keywords: Civil Procedure, Representation by Lawyer, Removal of Counsel of Record, Costs, Appeals, Jurisdiction, Final or Interlocutory, Apowitzer v. Ontario, [1995] OJ No 3031, Horvat v. Alam, 2024 ONSC 51

Leonard v. Leonard, 2024 ONCA 461

[Miller, Zarnett and Thorburn JJ.A.]

Counsel:

M.B., CD. and D.L., acting in person for the applicant

No one appearing for the responding party L.L.

Keywords: Family Law, Parenting, Conflict of Laws, Jurisdiction, Civil Procedure, Appeals, Extension of Time, Children’s Law Reform Act, R.S.O. 1990, c. C.12, SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913, Machado v. Ontario Hockey Association, 2019 ONCA 210, Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.)

Strutzenberger v. Strutzenberger, 2024 ONCA 455

[Miller, Zarnett and Thorburn JJ.A.]

Counsel:

P.S. acting in person/appellant

No one appearing for respondent

Keywords: Family Law, Spousal Support, Arrears, Civil Procedure, Evidence, Costs, Strutzenberger v. Struzenberger, 2023 ONCA 755

Sky Homes Corporation v. Mah, 2024 ONCA 463

[Miller, Zarnett and Thorburn JJ.A.]

Counsel:

M. Russell, for the appellants

G. Gondosch and G. Borean, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Defences, Unconscionability, Damages, Interest, Mitigation, Farej v. Fellows, 2022 ONCA 254

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.