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Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of June 17, 2024.

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In Liquid Capital Exchange Corp. v. Daoust, Liquid Capital Exchange Corp. was defrauded of $757,525.50 by WF using fictitious invoices purportedly approved by Enbridge. The main issue at trial and on appeal was whether Mr. Z, an Enbridge collections manager, participated in the fraud, and if so, whether Enbridge was vicariously liable for Mr. Z’s conduct. The trial judge found Mr. Z was not involved in the fraud and dismissed the action. The Court dismissed the appeal.

1417217 Ontario Inc. v. River Trail Estates Inc., involved a joint venture between SH and SU for developing residential properties, which began to unravel in 2008 and led to legal disputes after SH’s death in 2009. The trial judge found financial mismanagement by SU, which led to an order for a detailed accounting to address discrepancies, ultimately, holding SH’s estate and family liable for mishandling funds designated for the joint venture. On appeal, the court upheld the need for an accounting but found errors in holding the estate personally liable and prematurely dismissing the estate’s set-off claims. The appeal was therefore allowed in part, requiring further examination of financial matters by an Associate Judge.

In Athanassiades v. Rogers Communications Canada Inc., the appellant sued Rogers Communications for damages due to the alleged failure to provide internet service and subsequent collection attempts, citing spoliation, intentional infliction of mental suffering, defamation, and breach of contract. Rogers was partially successful on summary judgment. The judge dismissed the spoliation and mental suffering claims but directed a mini-trial for defamation and breach of contract. The appellant appealed before completing the summary judgment process. The appeal was dismissed as premature. The appellant can appeal again after the completion of the summary judgment proceedings.

In Lesage v. Ontario (Attorney General), a lawyer sought to compel the Chief Justice and MAG to provide statistical information on the processing of civil trials in the province to assist him in his research on access to justice. The application judge dismissed his requests for mandamus and declaratory relief, finding that the declaratory relief would serve no practical purpose and that the open court principle did not extend to aggregating bulk data. The appeal was dismissed.

Wishing everyone an enjoyable weekend!

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Liquid Capital Exchange Corp. v. Daoust, 2024 ONCA 489

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Vicarious Liability, Civil Procedure, Evidence, Witnesses, Credibility, Documents, Adverse Inferences, Procedural and Natural Justice, Sufficiency of Reasons, Reasonable Apprehension of Bias, Rules of Civil Procedure, r. 57.01(1), Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, R. v. Sheppard, 2002 SCC 26, Farej v. Fellows, 2022 ONCA 254, R. v. G.F., 2021 SCC 20, Gourgy v. Gourgy, 2018 ONCA 166, FCP (BOPC) Ltd. v. Suzy Shier (Canada) Ltd., 2024 ONCA 227, Denman v. Radovanovic, 2024 ONCA 276

1417217 Ontario Inc. v. River Trail Estates Inc., 2024 ONCA 491

Keywords: Business Associations, Corporations, Joint Ventures, Fiduciary Duties, Remedies, Oppression, Accounting, Piercing Corporate Veil, Defences, Set-off, Damages, Interest, Costs, Business Corporations Act, R.S.O. 1990, c. B. 16, s. 248(3), Courts of Justice Act, R.S.O. 1990, c. 42, 130(2)(e), Rules of Civil Procedure, rr. 54, 55, 57.01, Naneff v. Con-Crete Holdings Ltd. (1995), 23 O.R. (3d) 481, Murray v. Pier 21 Asset Management Inc., 2021 ONCA 424, 156 O.R. (3d) 197, ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 26 O.R. (3d) 481, 642847 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (C.A.), Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., (1996), 28 O.R. (3d) (Gen. Div.), Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24

Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497

Keywords: Torts, Spoliation, Intentional Infliction of Mental Suffering, Defamation, Breach of Contract, Civil Procedure, Summary Judgment, Appeals, Jursidiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b)(2), 19(1)(b), Rules of Civil Procedure, r. 20.04(2.2), Cole v. Hamilton (City) (2002), 60 O.R. (3d) 284 (C.A.), Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, Brown v. Hanley, 2019 ONCA 395, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), Azzeh v. Legendre, 2017 ONCA 385, P1 v. XYZ School, 2021 ONCA 901, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, Butera v. Chown, Cairns LLP, 2017 ONCA 783

Lesage v. Ontario (Attorney General), 2024 ONCA 500

Keywords: Courts, Administration, Judicial Independence, Remedies, Mandamus, Declarations, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 97, Strickland v. Canada (Attorney General), 2015 SCC 37, Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753

Short Civil Decisions

Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation and Parks), 2024 ONCA 495

Keywords: Costs

Dramel Limited v. Multani, 2024 ONCA 502

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Security for Costs, Rule of Civil Procedure, rr. 61.06(1), Tsai v. Dugal, 2021 ONCA 170

Wasim Investments Ltd. v. Ranganathan, 2024 ONCA 505

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Striking Pleadings, Abuse of Process


CIVIL DECISIONS

Liquid Capital Exchange Corp. v. Daoust, 2024 ONCA 489

[Miller, Zarnett and Thorburn JJ.A.]

Counsel:

J. Radnoff, for the appellant

C. Argiropoulos, for the respondent F. Z.

J. Longo and P. Miehls, for the respondent Enbridge Gas Distribution Inc.

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Vicarious Liability, Civil Procedure, Evidence, Witnesses, Credibility, Documents, Adverse Inferences, Procedural and Natural Justice, Sufficiency of Reasons, Reasonable Apprehension of Bias, Rules of Civil Procedure, r. 57.01(1), Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, R. v. Sheppard, 2002 SCC 26, Farej v. Fellows, 2022 ONCA 254, R. v. G.F., 2021 SCC 20, Gourgy v. Gourgy, 2018 ONCA 166, FCP (BOPC) Ltd. v. Suzy Shier (Canada) Ltd., 2024 ONCA 227, Denman v. Radovanovic, 2024 ONCA 276

facts:

In 2013, the appellant, Liquid Capital Exchange Corp. (“Liquid Capital”) was the victim of a fraud relating to its “factoring” business. Liquid Capital advanced $757,525.50 to WF. In fact, WF was providing no services to Enbridge. The invoices were fictitious and the statements that Enbridge had approved the invoices and would make payments to Liquid Capital were not made by anyone authorized to do so by Enbridge. There was no dispute that the fraud had been perpetrated by WF’s principals, M.D., and P.C. What was in dispute was whether the respondent Mr. Z, who at the time of the fraud was a collections manager at Enbridge, was also a participant in the fraud, and whether Enbridge was vicariously liable for Mr. Z’s alleged participation.

P.C. and M.D. both testified at trial that Mr. Z did not participate in the fraud. Mr. Z also testified that he did not participate. The trial judge found that Liquid Capital had not satisfied its burden to prove that Mr. Z participated in the fraud. She also concluded that even if she had found that Mr. Z was a participant in the fraud, the Court would not have found Enbridge to be vicariously liable. She dismissed the action.

issues:
  1. Did the trial judge err in applying the wrong legal test for fraud?
  2. Did the trial judge err by misapprehending the evidence of Mr. Z’s involvement or provide insufficient reasons?
  3. Did the trial judge err by failing to draw an adverse inference from the respondents’ failure to produce certain documents?
  4. Did the trial judge err in not recusing herself?
holding:

Appeal dismissed.

reasoning:

1. No. The trial judge did not err and employed the correct legal test. The trial judge’s reasons showed that she was alive to Liquid Capital’s theory that even if Mr. Z was not the actual sender of the emails, he participated in the fraud they effected. The Judge did not misunderstand Liquid Capital’s case or apply the wrong legal theory to it. The trial judge correctly found that the theory failed on the facts, having rejected the allegation that Mr. Z was a willing accomplice in the fraud. The trial judge accepted Mr. Z’s evidence that he deleted the emails without opening the attachments because he believed they were spam, finding that doing so did not prove his participation in the fraud Liquid Capital alleged on a balance of probabilities.

The Court found that in her reasons, the trial judge did not introduce a lack of due diligence defence into her consideration of the fraud claim against Mr. Z. The trial judge concluded, in respect of that claim, that Liquid Capital had not proven that Mr. Z was a party to the fraud. The trial judge’s later reference to Liquid Capital not completing its usual due diligence was not expressed as any sort of defence to the fraud. Rather, she cited Liquid Capital’s lack of full diligence as having stemmed from its trust in P.C., leading it to become a victim of P.C. and M.D.’s fraud.

2. No. The trial judge did not err by misapprehending the evidence of Mr. Z’s involvement or in providing insufficient reasons. Although described in their factum as two separate grounds of appeal, Liquid Capital’s misapprehension and insufficient reasons arguments overlapped. In essence, Liquid Capital took aim at the trial judge’s conclusion. In coming to this determination, Liquid Capital argued that the trial judge failed to:

i. set out the legal test for fraud;

ii. show how she was applying the facts to that test;

iii. provide any meaningful analysis of the credibility of P.C. and M.D. given their denial of Mr. Z’s participation; and

iv. show how she grappled with Mr. Z’s receipt of payments from R. and with Mr. Z’s failure to alert his superiors to the emails he had received.

The Court did not accept these arguments. The primary question concerning sufficiency of reasons is whether the reasons permit meaningful appellate review: R. v. Sheppard, 2002 SCC 26. The legal test for fraudulent misrepresentation – the case pleaded against Mr. Z – was not expressly articulated by the trial judge, but it was also not found to be controversial. The trial judge’s assessment of the evidence showed that she was applying the accepted test. The Court found that the core issue here was whether Mr. Z was liable as having participated in or been a party to the making of the false statements. The trial judge’s reasons concentrated on that issue. Liquid Capital did not show that there could not be a meaningful review of her decision on the basis of a sufficiency of reasons.

As to the trial judge’s acceptance of the evidence of M.D. and P.C. about Mr. Z’s non-involvement, her reasons showed that the Court was clearly aware that they were fraudsters. The Court found that the assessment of credibility was quintessentially a matter for the trial judge as the finder of fact. The reasons demonstrated that the trial judge was alive to the fact that she was dealing with witnesses who had committed a fraud by repeatedly lying, and the reasons identify the key reason that overcame that concern and allowed her to accept their evidence. The Court did comment that the trial judge’s assessment of this issue could have been more detailed. However, in light of the evidence on this issue, and the trial judge’s other findings, the trial judge’s reasons were not inadequate.

3. No. The trial judge did not err by failing to draw an adverse inference from the respondents’ failure to produce certain documents. The Court found that whether to draw an adverse inference from a failure to produce evidence is discretionary: Gourgy v. Gourgy, 2018 ONCA 166, FCP (BOPC) Ltd. v. Suzy Shier (Canada) Ltd., 2024 ONCA 227. The Court found that the trial judge was not obliged to exercise her discretion to draw such an inference here.

4. No. The Trial Judge did not err in not recusing herself. In its factum, Liquid Capital argued that the trial judge should have recused herself because, prior to her appointment as a judge, she had, as a lawyer, done work for Enbridge. The Court saw no merit in this submission, which was not advanced in oral argument. There was no suggestion that, while the trial judge was a lawyer, either she or her former firm were involved in this case, or anything related to it.


1417217 Ontario Inc. v. River Trail Estates Inc., 2024 ONCA 491

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

Counsel:

K. Prehogan, K. Theeuwen and M. Skrow, for the appellants

A. Jiwa, for the respondents

Keywords: Business Associations, Corporations, Joint Ventures, Fiduciary Duties, Remedies, Oppression, Accounting, Piercing Corporate Veil, Defences, Set-off, Damages, Interest, Costs, Business Corporations Act, R.S.O. 1990, c. B. 16, s. 248(3), Courts of Justice Act, R.S.O. 1990, c. 42, 130(2)(e), Rules of Civil Procedure, rr. 54, 55, 57.01, Naneff v. Con-Crete Holdings Ltd. (1995), 23 O.R. (3d) 481, Murray v. Pier 21 Asset Management Inc., 2021 ONCA 424, 156 O.R. (3d) 197, ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 26 O.R. (3d) 481, 642847 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (C.A.), Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., (1996), 28 O.R. (3d) (Gen. Div.), Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24

facts:

This case involved a complex legal dispute which arose from a residential real estate joint venture formed in 2000 between SH and SU, designated under the umbrella of 1417217 Ontario Inc. (“141”). This venture was tasked with developing residential properties across southern Ontario, with profits divided between SH (two-thirds) and SU (one-third), after investors were repaid.

SH, who was a seasoned civil engineer, handled the construction through his company, RegalCraft Homes Inc., while SU, an accountant and businessman with no prior real estate experience, managed the financial operations of the joint venture through 141. The partnership began to unravel in 2008 when disagreements led SH to resign from his directorial role and terminate his involvement with 141 and associated companies. SH’s unexpected death in 2009 further complicated the venture’s operations, shifting responsibilities to his estate.

Post-2008, the joint venture ceased developing new projects and focused on completing and selling existing developments. Tensions escalated during the wind-down phase, with disputes over financial management, particularly after SH’s death when SU assumed greater control over the financial operations. These issues culminated in legal actions initiated by SU in 2012 against SH’s estate, his family, and associated entities, claiming overpayments and misappropriation of joint venture assets.

The lawsuit centered around accusations that the estate had been overpaid, and that profits from the sales of undeveloped properties (River Trail and Black Creek) were improperly retained. Counterclaims from the estate alleged that SU’s management post-2008 was oppressive and involved misappropriation of funds and poor accounting practices.

The trial judge identified significant discrepancies in the joint venture’s accounts managed by SU post-2008, constituting over $4 million, which were deemed oppressive to the joint venture, including the estate. This led to a directive for a detailed accounting to rectify these discrepancies. However, issues regarding the distribution and handling of the proceeds from property sales, particularly those controlled by MSH (SH’s daughter and the estate’s trustee), resulted in the trial judge’s decision to pierce the corporate veil, holding MSH and her mother RSH personally liable for the mishandling of funds designated for the joint venture.

The judgment included orders for the repayment of net sale proceeds and covered additional financial penalties such as pre-judgment interest and legal costs, predicated on the handling of these proceeds and the conduct of the parties involved. This decision emphasized the complexities and the need for stringent accounting and transparent management practices in joint venture operations, especially following the demise of a key partner.

issues:
  1. Did the trial judge err in ordering an accounting to remedy the oppression she found
  2. Did the trial judge err in prematurely dismissing the Estate’s claim for set-off?
  3. Did the trial judge err in finding RSH and MSH each personally liable to 141 for the Net Sale Proceeds?
  4. Did the trial judge err in finding that River Trail owed 141 a fiduciary duty?
  5. Should the interests and costs judgment be set aside?
holding:

Appeal allowed in part.

reasoning:

1. No. The Court noted that no appeal had been taken from the trial judge’s finding of oppression. Rather, the Appellants argued that the remedy did not rectify the oppression because SU had not produced records or documents to substantiate the millions of dollars of transactions which the trial judge found called for explanation, and he will not or cannot do so. The Court found that the trial judge misapprehended 141’s financial position – it has no assets, and any money it might receive had to be paid to the CRA. At trial, SU testified that he would not have been able to pay any amounts he would be ordered to pay. In these circumstances, the Appellants asked that the Court simply dismiss the Respondents’ claim in full. As for the accounting remedy, the Court saw no basis justifying appellate intervention with it. The trial judge found that deficiencies in SU’s accounting records post-2008 created prejudice for the Joint Venture and, therefore, were oppressive. She ordered an accounting to rectify the oppression that she had found. The Court found that the trial judge made no error in principle nor was the remedy unjust. Without an accounting, the claim and counterclaim could not be fairly decided. The Court noted that this point was underscored by that fact that, at trial, both the Respondents and the Appellants sought an accounting.

2. Yes. The trial judge found discrepancies in SU’s bookkeeping for the Joint Venture that created a “circumstance of prejudice”. On behalf of the Estate, MSH advanced claims of set-off. As those claims may be proven on the accounting, the Court found it was an error for the trial judge to have dismissed them.

3. Yes. It was not open to the trial judge to pierce the corporate veil of a corporation that is a non-party to the action and against whom no wrongdoing was alleged in the pleadings. As the trial judge did not have the authority to order relief against 213, she erred in ordering relief against RSH in her capacity as 213’s sole director and shareholder based on piercing the corporate veil. The first reason the trial judge gave was that MSH was acting in her capacity as the Estate trustee when she directed the Net Sale Proceeds to 213, rather than to 141. The Court found that that could not be correct: MSH was acting in her capacity as River Trail Inc’s sole officer and director throughout the sale process, including payment of the Net Sale Proceeds to 213. The Reasons given by the trial judge for piercing the corporate veil simply did not satisfy these requirements. River Trail Inc was incorporated for a legal, proper purpose: to hold title to the River Trail property. And River Trail Inc was not used as a shield for fraudulent or improper conduct. It was entitled to sell the River Trail property. As River Trail Inc’s sole officer and director, MSH was obliged to deal with the Net Sale Proceeds in accordance with her obligations as a director. She may have violated those obligations; in which case a claim may lie against her personally. However, the Respondents’ pleading failed to particularize such a claim.

4. Yes. For an ad hoc fiduciary relationship to arise, the alleged fiduciary must undertake to act in the best interests of the alleged beneficiary; the duty must be owed to a defined person or class of persons who are vulnerable to the fiduciary in the sense the fiduciary has a discretionary power in respect of them; and the fiduciary’s power may affect the legal or practical interest of the alleged beneficiary. While River Trail Inc had a contractual duty to 141, the trial judge pointed to no evidence to ground the leap from River Trail Inc owing a contractual duty to 141 to it becoming a fiduciary in respect of 141. On the record, the Court saw no basis for such a finding. Reference alone to the interconnectedness of SH, SU, 141, and the Joint Venture’s various holding companies was insufficient to ground a finding that each separate legal entity could exercise discretionary power over the others and had undertaken to act in the best interests of each and every one of the others.

5. Yes. The trial judge decided that an Associate Judge should carry out an accounting to finalize the accounts of the company 141, including clarifying any amounts payable to SU or the Estate and any debts owed to 141. However, the trial judge made several premature decisions. The judge ordered immediate payment of the Net Sale Proceeds by the Estate and other Appellants to 141 without knowing the actual financial position of 141, which has significant tax liabilities and no assets. The Court found that this raised concerns about the recoverability of any monies paid, especially if the Estate’s set-off claims were validated by the accounting.

Furthermore, the trial judge’s order regarding the costs of the action and the imposition of an 8% pre-judgment interest rate on the Net Sale Proceeds was erroneous. There was no contractual basis or specific evidence supporting this interest rate, and the decision on interest should not have been made until the completion of the accounting. The Court found that the appropriateness of pre-judgment interest and its rate should be determined after understanding the full financial outcome of the proceedings, including the amount claimed versus the amount recovered.

The Court also found fault with the trial judge’s imposition of liability and costs on MSH and RSH without sufficient basis and in light of an incomplete accounting, suggesting that these decisions should be re-evaluated after the accounting was completed by the Associate Judge. The Associate Judge should reassess the parties’ conduct and any previously made findings, particularly because some findings were made without full information, potentially leading to errors.


Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497

[Huscroft, Miller and Favreau JJ.A.]

Counsel:

R. Konduros, for the appellant

C. Spry and B. Monahan, for the respondent

Keywords: Torts, Spoliation, Intentional Infliction of Mental Suffering, Defamation, Breach of Contract, Civil Procedure, Summary Judgment, Appeals, Jursidiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b)(2), 19(1)(b), Rules of Civil Procedure, r. 20.04(2.2), Cole v. Hamilton (City) (2002), 60 O.R. (3d) 284 (C.A.), Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, Brown v. Hanley, 2019 ONCA 395, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), Azzeh v. Legendre, 2017 ONCA 385, P1 v. XYZ School, 2021 ONCA 901, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, Butera v. Chown, Cairns LLP, 2017 ONCA 783

facts:

The appellant brought an action against the respondent, Rogers Communications Canada Inc. (“Rogers”) for damages allegedly arising from Rogers’ failure to provide the appellant with internet service and its subsequent collection attempts. The appellant advanced four causes of actions against Rogers: 1) spoliation, 2) intentional infliction of mental suffering, 3) defamation and 4) breach of contract.

Rogers brought a motion for summary judgment. The motion judge dismissed the appellant’s claims for spoliation and intentional infliction of mental suffering because he was satisfied these claims did not raise genuine issues for trial. The motion judge also found that he could not decide the claim for defamation without viva voce evidence and that he required further submissions on the claim for breach of contract. On this basis, the motion judge directed that these issues be decided by way of a mini-trial pursuant to r. 20.04(2.2) of the Rules of Civil Procedure.

Rather than completing the summary judgment proceedings and participating in the mini-trial, the appellant commenced an appeal to the Court.

issues:
  1. Should the appeal be heard because of the manner in which the motion judge’s order approached the motion for summary judgment?
  2. Should the request to reopen argument be allowed?
holding:

Appeal dismissed.

reasoning:

1. No. The first concern for dismissal of the appeal was jurisdictional. The Court held it did not have jurisdiction to hear the interlocutory aspects of the order, absent an order granting leave to appeal from the Divisional Court. The appellant relied on s. 6(2) of the Courts of Justice Actas authority for the Court to hear the appeal. However, where an appeal lies to the Divisional Court and leave is required, the appellant must first obtain leave from the Divisional Court before seeking to combine an appeal that lies to the Divisional Court with an appeal that lies to the Court of Appeal. The Court also held only exceptional cases have found that leave would have been granted because the final issues that were decided were so intertwined with the interlocutory issues raised on appeal. This was not the case, as the focus of the appeal was on the interlocutory aspects of the decision, not on the final aspects.

The second concern related to how the appellant framed his appeal. Despite not having jurisdiction over the interlocutory aspects of the appeal, the Court could proceed to hear an appeal from the aspects of the order that were final. In this case, such an approach was impracticable because the crux of the appellant’s complaint is the way the motion judge approached the motion for summary judgment, not the aspects that were final.

The third concern was one of procedure and judicial economy. The motion judge’s direction for a mini-trial and further submissions on the claim for breach of contract is part of the motion for summary judgment proceeding. The Court ruled this appeal was launched before the motion for summary judgment was even completed. The Court believed this would lead to an unnecessary and wasteful fragmentation of summary judgment proceedings that are designed to resolve disputes in a timely and cost-effective manner.

2. No. The Court held there was no procedural unfairness. The Court notified counsel ahead of time regarding the concern over whether the appeal should be heard before the completion of the mini-trial. Counsel was given an opportunity to address this issue at the beginning of the hearing. The Court asserted that the dismissal of this appeal did not preclude the appellant from appealing the disposition of the motion for summary judgment at a later date once the motion for summary judgment is completed.


Lesage v. Ontario (Attorney General), 2024 ONCA 500

[MacPherson, Paciocco and Wilson JJ.A.]

Counsel:

T. Slade and C. Giordano, for the appellant

M. Sims and B. Taylor-Conboy, for the respondent

Keywords: Courts, Administration, Judicial Independence, Remedies, Mandamus, Declarations, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 97, Strickland v. Canada (Attorney General), 2015 SCC 37, Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753

facts:

The appellant, M.L., is a lawyer licensee of the Law Society of Ontario. The appeal arose out of the denial, by the Superior Court of Justice, of a request for information relating to the progress of civil trials in Ontario to facilitate research he was doing. His request made through the Ontario Ministry of the Attorney General (“MAG”) and his request for reconsideration addressed to the Chief Justice of the Superior Court of Justice were both denied.

In response, the appellant applied for declarations relating to rights of inspection and production of civil court file numbers for cases that have gone to trial. He also sought an order by mandamus compelling the production of the requested information. He named the Attorney General of Ontario, the legal entity responsible for MAG, as respondent. The application judge denied the appellant’s request for mandamus on jurisdictional and other grounds and denied the requested declarations that M.L. sought for three reasons: (1) granting the declaratory relief would serve no practical purpose; (2) the open court principle that M.L. relied upon to ground his application includes the ability of the public to view and copy court documents but does not extend to requiring the aggregation, sorting and categorization of bulk data, which is what M.L. was interested in; and (3) even if the open court principle did extend to the aggregation, sorting and categorization of bulk data, decisions relating to the access and disclosure of documentation generated by the judiciary rests exclusively with the court. M.L. did not appeal the denial of mandamus, but he did appeal the denial of the declarations.

issues:
  1. Should the appellant’s application for declarations relating to rights of inspection and production of civil court file numbers for cases that have gone to trial be allowed?
holding:

Appeal dismissed.

reasoning:

1. No. The Court held that Superior Court justices have the broadest discretion to make declarations, and the Court should not interfere with the application judge’s discretionary decision in this case. The Court believed it was unnecessary to address the second and third reasons of the motion judge. The first basis for dismissing the application was sufficient.

The Court disagreed with the appellant’s argument that it was unfair for the application judge to decide the application on the basis that the declarations would serve no practical purpose when this issue was not argued before him. Second, the Court agreed that the application judge considered the likely impact the requested declarations would have, and his finding that the declarations would have no effect on the existing parties. The Court found that MAG was not empowered to decide whether to identify, compile and produce the requested information. The Court was not persuaded that the declarations, if made, could realistically have inspired the Office of the Chief Justice to reconsider their decision. The Court was not persuaded that had the application judge considered that prospect, his decision would have been different. Moreover, the fact that the power to make this decision belonged to the Court through the Office of the Chief Justice, pursuant to the constitutionally protected principle of judicial independence, was a powerful consideration in support of the application judge’s discretionary decision not to purport to weigh in on that decision by making the requested declarations.

The Court did not agree that the discretionary decision rested on or was influenced by the application judge’s views about the scope of the open court principle. His conclusions about the reach of the open court principle played no role in his decision that the declarations would serve no practical purpose. Even if the application judge had been wrong about the scope of the open court principle, which the Court did not decide, his conclusion in this regard did not taint his discretionary decision.


SHORT CIVIL DECISIONS

Association of Iroquois and Allied Indians v. Ontario (Environment, Conservation and Parks), 2024 ONCA 495

[Doherty, Pepall and Zarnett JJ.A.]

Counsel:

K. Hille, N. Kennedy, G. Cook and Y. G. Shin, for the appellants

S. Davis and I. Kamal, for the respondents

Keywords: Costs

Dramel Limited v. Multani, 2024 ONCA 502

[Huscroft J.A.]

Counsel:

M. Taghivand and A. Quinn, for the moving party

J. Clark, for the responding parties

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Security for Costs, Rule of Civil Procedure, rr. 61.06(1), Tsai v. Dugal, 2021 ONCA 170

Wasim Investments Ltd. v. Ranganathan, 2024 ONCA 505

[Coroza, Monahan and Madsen JJ.A.]

Counsel:

D. Paul, for the appellant

P.S. Wadhwa, for the respondents

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Striking Pleadings, Abuse of Process


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

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with over two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with over two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, partnership, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles complex estates and matrimonial litigation involving disputes over property and businesses, as well as professional discipline and professional negligence matters for various types of professionals. In addition, John represents amateur sports organizations in contentious matters, and also advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.