Konstan v. Berkovits involved a scandalous turf war between two rival cash-for-gold and jewelry businesses, Omni and HJB. There were claims involving misleading advertising, diverting customers away from the opponent store, and even an alleged murder for hire plot. The trial judge awarded damages payable by Omni defendants for abuse of process, malicious prosecution, and intentional infliction of mental distress. The Court found that the trial judge misapplied and misapprehended the criteria necessary to make out an abuse of process claim, and thus granted one of the appeals in part.

Davies v. AIG Insurance Company of Canada was an insurance coverage dispute in the defence of a Ponzi scheme fraud claim. The application judge found that the insured was entitled to coverage and that the insurer could not avoid its indemnity obligations on the basis of a misrepresentation made by the insured in their application for insurance. The Court allowed the appeal, holding that the application judge erred in failing to find that there was a material misrepresentation.

Aviva Insurance Company of Canada v. 8262900 Canada Inc. (CarePartners/Community Nursing Services Foundation) is another insurance coverage case, this time in the cybersecurity class action context.

In VP Auto Sales & Service Ltd. v. Ahmed2 Inc., a commercial real estate sale failed when the intended buyer backed out soon before the planned closing, prompting the intended seller to seek summary judgement for the sale price of $4,750,000. The motion judge found the buyer at fault for not closing the deal and granted summary judgment on liability, remanding the damages determination for trial. On appeal, the Court considered whether partial summary judgment was properly granted, ultimately finding that it was and dismissing the appeal.

Wishing everyone an enjoyable Canada Day long weekend!

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Konstan v. Berkovits, 2024 ONCA 510

Keywords: Torts, Defamation, Libel, Malicious Prosecution, Abuse of Process, Conspiracy to Injure, Nuisance, Intentional Interference with Economic Relations, Intentional Infliction of Mental Distress, Damages, Punitive Damages, Aggravated Damages, Joint and Several Liability, Civil Procedure, Evidence, Witnesses, Credibility, Housen v. Nikolaisen, 2002 SCC 33, Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, Kefeli v. Centennial College of Applied Arts and Technology, 2002 CanLII 45008 (C.A.), Miazga v. Kvello Estate, 2009 SCC 51, D’Addario v. Smith, 2018 ONCA 163, Tsiopoulos v. Commercial Union Assurance Co., (1986) 57 O.R. (2d) 117 (Ont. H.C.), Bosada v. Pinos et al., (1984) 44 O.R. (2d) 789 (Ont. H.C.), McNeil v. Brewers Retail Inc., 2008 ONCA 405, Pate v. Galway-Cavendish, 2011 ONCA 329, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, Westjet Airlines Ltd. v. Air Canada, [2005] O.J. No. 2310, Plester v. Wawanesa Mutual Insurance Co. (2006), 269 D.L.R. (4th) 624, 213 O.A.C. 241 (C.A.), Whiten v. Pilot Insurance, 2002 SCC 18, Murano v. Bank of Montreal (1995), 20 B.L.R. (2d) 61, 31 C.B.R. (3d) 1 (Ont. S.C.), Rutman v. Rabinowitz, 2018 ONCA 80, Pontillo v. Zinger et al., 2010 ONSC 5537, Martin v. Goldfarb, (1998) 41 O.R. (3d) 161 (C.A.), TMS Lighting v. KJS Transport, 2014 ONCA 1

Davies v. AIG Insurance Company of Canada, 2024 ONCA 509

Keywords: Contracts, Insurance, Directors & Officers, Coverage, Defences, Misrepresentation, Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23, Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, R v. Palmer, [1980] 1 S.C.R. 759

Aviva Insurance Company of Canada v. 8262900 Canada Inc. (CarePartners/Community Nursing Services Foundation), 2024 ONCA 513

Keywords: Contracts, Interpretation, Insurance, Commercial General Liability, Cyber Liability, Coverage, Duty to Defend, Duty to Indemnify, Torts, Breach of Privacy, Intrusion Upon Seclusion, Civil Procedure, Class Proceedings, Res Judicata

VP Auto Sales & Service Ltd. v. Ahmed2 Inc., 2024 ONCA 507

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Defences, Fundamental Breach, Civil Procedure, Partial Summary Judgment, Appeals, Fresh Evidence, Rules of Civil Procedure, r. 20.04(3), Hryniak v. Mauldin, 2014 SCC 7, Palmer v. The Queen, [1980] 1 S.C.R. 759, Housen v. Nikolaisen, 2002 SCC 33, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37

Short Civil Decisions

Clost v Rennie , 2024 ONCA 514

Keywords: Contracts, Real Property, Leases, Rights of First Refusal, Civil Procedure, Arbitration, Appeals, Jurisdiction, Arbitration Act, 1991, s.17(1), s.17(8), s.17(9), Iris Technologies Inc. v. Rogers Communications Canada Inc., 2022 ONCA 634

Rahmouni c. Ontario (Procureur général), 2024 ONCA 515

Keywords: Administrative Law, Judicial Review, Procedural and Natural Justice, Civil Procedure, Appeals, Jurisdiction, French Language Services Act, R.S.O. 1990, c. F.32, Judicial Review Procedure Act, R.S.O. 1990, c. J.1, p.1, 2, 6, 8, Rules of Civil Procedure, r. 21.01(3)(a), J.N. v. Durham Regional Police, 2012 ONCA 428

CIVIL DECISIONS

Konstan v. Berkovits, 2024 ONCA 510

[Miller, Copeland, and Gomery JJ.A.]

Counsel:

S. Secter, R. Amoah, D. Naymark, for JB on all matters under appeal

M. Solomon and C. Wetmore, for HG on all matters under appeal

M. Valitutti, for the respondent, MK

Keywords: Torts, Defamation, Libel, Malicious Prosecution, Abuse of Process, Conspiracy to Injure, Nuisance, Intentional Interference with Economic Relations, Intentional Infliction of Mental Distress, Damages, Punitive Damages, Aggravated Damages, Joint and Several Liability, Civil Procedure, Evidence, Witnesses, Credibility, Housen v. Nikolaisen, 2002 SCC 33, Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, Kefeli v. Centennial College of Applied Arts and Technology, 2002 CanLII 45008 (C.A.), Miazga v. Kvello Estate, 2009 SCC 51, D’Addario v. Smith, 2018 ONCA 163, Tsiopoulos v. Commercial Union Assurance Co., (1986) 57 O.R. (2d) 117 (Ont. H.C.), Bosada v. Pinos et al., (1984) 44 O.R. (2d) 789 (Ont. H.C.), McNeil v. Brewers Retail Inc., 2008 ONCA 405, Pate v. Galway-Cavendish, 2011 ONCA 329, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, Westjet Airlines Ltd. v. Air Canada, [2005] O.J. No. 2310, Plester v. Wawanesa Mutual Insurance Co. (2006), 269 D.L.R. (4th) 624, 213 O.A.C. 241 (C.A.), Whiten v. Pilot Insurance, 2002 SCC 18, Murano v. Bank of Montreal (1995), 20 B.L.R. (2d) 61, 31 C.B.R. (3d) 1 (Ont. S.C.), Rutman v. Rabinowitz, 2018 ONCA 80, Pontillo v. Zinger et al., 2010 ONSC 5537, Martin v. Goldfarb, (1998) 41 O.R. (3d) 161 (C.A.), TMS Lighting v. KJS Transport, 2014 ONCA 1

facts:

These interrelated appeals arose from a turf war between competing cash-for-gold businesses run by HG and JB through their respective companies. HG’s business, HJB, operated through 2102503 Ontario Inc., while JB’s stores, known as Omni Jewelcrafters, operated through 1539058 Ontario Inc. and 2221652 Ontario Inc. Until 2009, Omni focused on retail jewelry.

In 2007, HG opened a new HJB storefront near an Omni location. In 2009, JB expanded into cash-for-gold, directly competing with HG. Both engaged in aggressive tactics to gain a competitive edge. HG hired individuals, some struggling with addiction or mental health issues, to divert customers from Omni to HJB. JB used misleading advertising against HJB, which he removed only after HG obtained an injunction. Attempts to mediate through a local rabbi failed. In July 2010, HG’s employee MK was charged with criminal offences, including uttering death threats, based on statements by JB and SH, a former mixed martial arts fighter. They claimed MK offered SH money to harm or even kill JB. These charges were dropped in June 2011, but not before MK was arrested for breaching her recognizance.

Media coverage of the feud followed. In November 2011, the Town Crier published an article based on an interview with HG, alleging JB attempted to bribe HJB employees to testify falsely against HG. These claims were based on fabricated messages by another individual working for HG. JB served a libel notice on HG.

The conflict escalated to the courts, with multiple lawsuits filed by both parties, including claims for abuse of process, conspiracy to injure, nuisance, interference with economic relations, and defamation. MK also sued JB and SH for malicious prosecution and other torts after the charges against her were dropped. Three actions were tried together: the “Murder for Hire Action,” the “Interference Action,” and the “Town Crier Action.” The trial judge found HG, JB, and MK generally unreliable witnesses and concluded SH’s statements were unreliable.

In the Murder for Hire Action, the trial judge ruled in favor of MK, awarding her damages from JB and SH for abuse of process, malicious prosecution, and intentional infliction of mental distress. In the Interference Action, HG and his company were ordered to pay $200,000 to JB and his companies for nuisance and intentional interference with economic relations. In the Town Crier Action, JB won his defamation claim against HG, receiving $50,000 in damages. The trial judge dismissed the remaining claims and counterclaims.

issues:

1. Did MK prove that she was a party to a legal process initiated by JB?

2. Did MK prove that JB’s predominant purpose was furthering an indirect, collateral and improper objective?

3. In HG’s cross-appeal, did the trial judge make a reversible error in finding that JB reasonably believed in the murder for hire plot when he made his KGB statement?

4. Did the trial judge make a reversible error in his analysis of HG’s conspiracy to injure and unlawful means conspiracy claims?

5. Did the trial judge err in dismissing HG’s abuse of process claim?

6. In HG’s appeal, did the trial judge’s conclusion on liability for intentional interference with economic relations affect the outcome of the action?

7. Is there a basis to interfere with the trial judge’s damages assessment?

8. In HG’s appeal and JB’s cross-appeal in the Town Crier Action, did the trial judge commit a reversible error in awarding JB non nominal damages?

9. Did the trial judge commit a reversible error in declining to award aggravated and punitive damages to JB?

holding:

JB’s appeal in Murder for Hire Action granted. All other appeals and cross-appeals dismissed.

reasoning:

1. No. The criteria for proving abuse of process require the plaintiff to be a party to a legal process initiated by the defendant, that the legal process was initiated for the predominant purpose of furthering some indirect, collateral, and improper objective, that the defendant took or made a definite act or threat in furtherance of the improper purpose, and the plaintiff must have suffered special damages as a result. The trial judge found that MK satisfied the first element of abuse of process because the criminal proceedings against her were initiated by JB and SH’s statements to the police. However, the Court held that the trial judge misapplied the criteria for the first element by wrongly using a “but for” test instead of more stringent criterion.

The Court emphasized that for a private individual to be considered as having initiated a criminal prosecution, it must be shown that the individual’s conduct compromised the police investigation and/or the independence of the decision by the police to lay charges. JB did not meet this standard, as the arrest and charges against MK were not based solely on JB’s information, and there was no evidence that he obstructed the police investigation or interfered with their discretion to lay charges. Moreover, the Court noted that the initiation requirement should not be relaxed in abuse of process claims arising from criminal complaints, as it would ensure that individuals are not discouraged from reporting crimes due to fear of potential tort claims if the information is inaccurate or the prosecution is unsuccessful.

2. No. JB’s appeal succeeded due to the trial judge’s misapprehension of the second element of abuse of process. The trial judge found JB had improper, collateral objectives but failed to determine if these were his predominant purpose. The trial judge mistakenly treated indirect motives as the predominant purpose, which is incorrect. Even though JB had collateral purposes, the trial judge found JB genuinely feared for his life when initiating the criminal process against MK. Therefore, JB’s predominant purpose was not to harm HG. Consequently, JB’s appeal in the Murder for Hire Action was granted, and MK’s abuse of process claim against him was dismissed.

3. No. The Court found that the trial judge did not make any overriding error in his reasoning. Despite concluding that there was no murder for hire plot, the judge found that MK likely did make some sort of threatening comment about JB, which SH then exaggerated to JB. The trial judge’s finding about JB’s fear was supported by evidence from JB’s employee and a police officer, even if the officer’s notes did not mention specific threats.

4. No. A claim for conspiracy to injure must prove that the defendants acted in concert with a common design. The trial judge found that HG’s counterclaim for conspiracy-based torts could not succeed, because JB and SH did not share a common design. JB aimed to harm HG, while SH sought financial gain. HG’s argument that the trial judge overlooked evidence of a conspiracy was rejected. The trial judge determined that SH fabricated the murder for hire plot to extort money and that JB genuinely believed SH’s story.

5. No. HG was not a party to the legal process initiated by JB. The Court found that it was the police, not JB, who initiated the criminal prosecution against MK, and that HG was not charged or even contacted by police, so the claim was dismissed.

6. No. HG argued the trial judge misapprehended an element of intentional interference with economic relations. The Court found that the evidence supported a finding that HG and his company engaged in conduct that would have been actionable by Omni customers subject to harassment and intimidation. Even if this were not true, the reversal of the trial judge’s finding would not change the fact that HG was still liable for the same damages in nuisance.

7. No. The trial judge’s decision was based on available financial information and did not constitute an error in law or principle.

8. No. The Court deemed the trial judge’s decision reasonable and free of error. The Court accepted the trial judge’s finding that defamation inherently presumes damage, and that even a flawed reputation deserves protection from false, damaging statements.

9. No. JB failed to show any significant error in the trial judge’s finding. The trial judge correctly applied the principles when determining whether aggravated and punitive damages should be assessed and found that HG’s actions did not warrant them.

Davies v. AIG Insurance Company of Canada, 2024 ONCA 509

[Gillese, Brown and Paciocco JJ.A.]

Counsel:

D. Vaillancourt and A. Sinojmeri, for the appellant

L. Theall and D. Cox, for the respondents

Keywords: Contracts, Insurance, Directors & Officers, Coverage, Defences, Misrepresentation, Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23, Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, R v. Palmer, [1980] 1 S.C.R. 759

facts:

Mr. D. was the principal of several interrelated Ontario real estate development companies (the “D. Companies”). AIG Insurance Company of Canada (“AIG”) issued directors’ and officers’ liability insurance policies (the “D&O Insurance Policies” or the “Policies”) to the D. Companies. Mr. D. and his spouse Ms. D. (together, the “Ds.”) are named defendants in two lawsuits alleging that Mr. D and his associates used the D. Companies to operate a Ponzi scheme. The claims further alleged that the D. Companies’ purported real estate developments were funded by millions of dollars in syndicated mortgages advanced by individual investors and that the Ds. (and others) misappropriated those monies (the “Underlying Actions”).

The Ds. sought coverage under the Policies for their legal costs of defending the Underlying Actions. Initially, AIG paid their defence costs but later resiled on the basis that their applications for coverage contained a material misrepresentation because they failed to disclose that syndicated mortgages were the source of financing for the D. Companies. The Ds. and AIG brought competing applications to determine whether AIG had a duty to pay the Ds’ defence costs in the Underlying Actions. The application judge found in favour of the Ds.

AIG first issued the D&O Insurance Policies to the D. Companies for the policy period July 2015 to July 2016. Pursuant to the D&O Insurance Policies, AIG paid over $1 million in legal costs on behalf of the Ds. in the Underlying Actions before notifying them that it was denying coverage. The application judge noted the parties’ agreement that, to avoid funding the Ds.’ defence costs, AIG had to prove the following:

1. There was a misrepresentation;
2.  The misrepresentation was in the D. Companies’ applications for coverage;
3.  The misrepresentation was material;
4.  The Underlying Actions allege, arose out of, were based upon, were attributable to, or were in consequence of the subject matter of the alleged misrepresentation; and
5.  The insured (Mr. D) knew of the misrepresentation.

The application judge found against AIG on the first and third requirements. The judge concluded by granting the Ds.’ Application and dismissing the AIG Application.

On the eve of the original hearing date of the appeal, counsel for the Ds. learned that Ms. D. was an undischarged bankrupt when she and Mr. D commenced their application in the proceeding. The parties could not agree on the procedural ramifications of Ms. D.’s bankruptcy. However, in light of AIG’s undertaking that it would apply the Appeal Court’s insurance coverage determination for Mr. D. to Ms. D., the issue of Ms. D.’s standing was of no practical significance and the Court declined to decide it.

issues:

1. Did the applications judge err in failing to find there was a misrepresentation?

2. Did the applications judge err in not finding that the misrepresentation was material?

holding:

Appeal allowed.

reasoning:

1. Yes. The applications judge erred in not finding the misrepresentation. The judge found there was a “complete absence of any mention of syndicated mortgages as the method of financing being used by Mr. D.” The Court found the judge did not consider that finding, and the evidence underlying it, when deciding whether a misrepresentation had been made. Instead, the judge considered only an email and M.M.’s failure to clarify its ambiguities. By failing to consider all evidence relevant to whether a misrepresentation had been made, the Court found that the judge fell into legal error justifying the Court’s reconsideration of the evidence.

The Court found that the D. Companies had an obligation to disclose that syndicated mortgages were the source of their financing. On the judge’s finding, they failed to disclose that information. By failing to disclose to AIG all information relevant to the nature and extent of the risk AIG was being asked to undertake, the D. Companies made a misrepresentation by omission (the “Misrepresentation”). In light of this clear Misrepresentation, the Court felt it is unnecessary to decide AIG’s alternative submission.

2. Yes. The applications judge erred in not finding that the misrepresentation was material. The Court found the judge’s materiality determination was fatally flawed because he failed to consider the Misrepresentation when making that determination. Instead, he focused on an email and M.M.’s response to it. Because the judge’s approach to materiality reflected legal error, the Court itself had to determine whether the Misrepresentation was material. The Court had no doubt that the Misrepresentation was material.

The Court read the applications judge’s reasons as finding that the objective component of the materiality test was met. The applications judge referred to the expert evidence that “determining the source and amount of financing is the cornerstone underwriting issue for a privately owned real estate development company” and concluded that “the subject of the real estate development financing is material to the decision to extend coverage”.

The Court stated that because the applications judge failed to set out the legal test for materiality, the basis on which he was assessing M.M.’s response to the email was unclear. The Court found that AIG was under no duty to advance the Ds.’ defence costs because their claims were excluded by the terms of the representations and severability clause in the Policies. Accordingly, AIG was entitled to a declaration to that effect and was entitled to recover, as damages, the $1,015,418.97 it had paid in defence costs.

Further, the Court rejected the Ds.’ challenge to the applications judge’s finding that Mr. D knew of the Misrepresentation based on agency principles. The Court saw no basis for appellate interference with that finding. The Court allowed the appeal, granted the AIG application, dismissed the Ds.’ Application, declared that AIG did not have a duty to pay the Ds.’ defence costs, and awarded damages to AIG of $1,015,418.97 plus interest and costs.

Aviva Insurance Company of Canada v. 8262900 Canada Inc. (CarePartners/Community Nursing Services Foundation), 2024 ONCA 513

[MacPherson, Paciocco and Wilson JJ.A.]

Counsel:

G.D.E. Adair, K.C., for the appellant by way of cross-appeal

S. Dewart, for the respondent by way of cross-appeal

Keywords: Contracts, Interpretation, Insurance, Commercial General Liability, Cyber Liability, Coverage, Duty to Defend, Duty to Indemnify, Torts, Breach of Privacy, Intrusion Upon Seclusion, Civil Procedure, Class Proceedings, Res Judicata

facts:

As part of its business operations, 8262900 Canada Inc. CarePartners (“CarePartners”) stored health care data and other private information concerning its patients and employees. In June 2018, CarePartners’ were the victim of a cyberattack, and private data was removed from its servers and disclosed on the internet. A class proceeding was commenced in 2020, which alleged that CarePartners were negligent in failing to properly secure and safeguard the private information stored on its computers.

Aviva Insurance Company of Canada (“Aviva”), which provided liability coverage for CarePartners, claimed the class action was not covered under the policy. In July 2021, Aviva and CarePartners entered into a without prejudice funding agreement for the defense of the action and the funding of any settlement on a 60/40 basis with Aviva funding 60%, while reserving their rights to resolve the coverage disputes in court (the “Funding Agreement”).

Aviva sought a judicial determination of its rights and obligations under the insurance policy. The application judge concluded that Aviva had a duty to defend and potentially indemnify CarePartners for bodily injury claims, but not for personal injury claims. Aviva appealed this decision, and CarePartners filed a cross-appeal. On December 11, 2023, Aviva abandoned its appeal and submitted a new application to determine its proportionate share of the settlement costs under the policy. In response, CarePartners filed a cross-appeal, asserting that certain issues raised by Aviva’s new application were res judicata. Subsequently, Aviva sought to reverse its decision to abandon the original appeal, but was unsuccessful.

issues:

1. Was Aviva obligated to reimburse CarePartners the 40% of the settlement amount pursuant to the Funding Agreement?

2. Was Aviva’s second application res judicata?

holding:

Cross-appeal dismissed.

reasoning:

1. No. The Court determined that Aviva was not obligated to reimburse CarePartners the 40% of the settlement amounts pursuant to the Funding Agreement. The application judge was tasked with determining coverage under the policy. An application to determine coverage was distinct from an application to determine apportionment of liability or the amount of indemnity payments, which required evidence on the issues of liability and damages. There was no evidentiary record before the Court to enable it to deal with the Funding Agreement or apportionment, and it would not have been appropriate, given the application judge did not determine that issue.

2. No. Aviva’s second application was not found to be res judicata. The second application sought to determine allocation between Aviva and CarePartners. The Funding Agreement had not been argued before the application judge, and he had not been asked to deal with the apportionment issue.

VP Auto Sales & Service Ltd. v. Ahmed2 Inc., 2024 ONCA 507

[Sossin, Monahan and Madsen JJ.A.]

Counsel:

S. Siddiqui and O. Ali, for the appellants

D. Brooker, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Defences, Fundamental Breach, Civil Procedure, Partial Summary Judgment, Appeals, Fresh Evidence, Rules of Civil Procedure, r. 20.04(3), Hryniak v. Mauldin, 2014 SCC 7, Palmer v. The Queen, [1980] 1 S.C.R. 759, Housen v. Nikolaisen, 2002 SCC 33, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37

facts:

This case involved a failed commercial real estate transaction. The respondent, the seller, entered into an Agreement of Purchase and Sale with the appellant on January 25, 2021, with the closing scheduled for May 2, 2022. Before the closing, the appellant raised concerns about the price being too high and requested a discount, which was refused by the respondent.

As the closing date approached, both parties’ lawyers began finalizing the closing documents. On the planned closing day, the appellant did not proceed with the transaction, claiming that the respondent had breached the Agreement. Consequently, the property remained unsold, prompting the respondent to seek summary judgment against the appellant for the purchase price of $4,750,000. The motion judge granted summary judgment on liability, finding the appellant at fault for not closing, but determined that damages would require a trial.

Disputes during the proceeding included issues over the terms of a vendor-take-back mortgage (VTB), which the appellant claimed were altered from the original agreement to require prior consent for registering a second mortgage and assigning material contracts as security. The motion judge found these changes non-fundamental and within the contractual right to protect the VTB’s priority.

Additionally, the Agreement stipulated the respondent’s obligation to use “best efforts” to secure appropriate zoning, sold as-is. The appellant subsequently waived its due diligence right regarding zoning. The motion judge ruled that the appellant’s waiver meant no breach could be claimed thereafter.

On the scheduled day for closing, the appellant noted vehicles and debris on the property. The respondent, adhering to the as-is term of the Agreement, later cleared these items after the closing date was extended. The motion judge noted that the respondent met its obligations under the terms of the Agreement. The appellants were additionally seeking to introduce fresh evidence in the form of a government notice and report.

issues:

1. Should the fresh evidence be permitted to be introduced?

2. What was the applicable standard of review?

3. Did the motion judge improperly render partial summary judgment rather than remitting the matter to trial?

4. Did the motion judge misapply the law of fundamental breach?

5. Did the motion judge err by novating a new contract without consideration?

6. Did the motion judge ignore essential evidence and fail to account for missing evidence?

7. Did the motion judge improperly make subjective findings against the appellants without any supporting law or evidence?

holding:

Appeal dismissed.

reasoning:

1. No. The appellants argued that the new evidence they sought to introduce for the first time on appeal would demonstrate the respondent’s failure to make “best commercial efforts” to secure proper zoning for the property, as required by the Agreement. The respondent did not provide materials in response to this motion, but in oral argument submitted that this new evidence would not alter the outcome. The Court agreed. Once the condition regarding zoning was waived by the appellant, no breach of that condition could be claimed. The fresh evidence was therefore irrelevant and could not alter the outcome.

2. Palpable and overriding error to the interpretation of a contract. Correctness to extricable questions of law that arise in the interpretation process. Housen v. Nikolaisen and Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.

3. No. The principle behind summary judgment is to streamline litigation, either by eliminating the need for a trial or by significantly reducing the scope of the trial. In this case, the only unresolved issue pertained to the amount of damages, which justified a partial summary judgment for efficiency and cost-effectiveness. The motion judge followed the principles of trial efficiency and proportionality, leading the Court to find no fault in the decision to grant summary judgment on liability, while leaving damages to be determined at trial.

4. to 7. No. The Court’s view was that the final four grounds of appeal should be dismissed on the basis that the appellants sought to re-litigate issues that were resolved by the motion judge and the motion judge’s findings were entitled to deference. The motion judge’s reasons were careful, thorough, and well-reasoned.

SHORT CIVIL DECISIONS

Clost v Rennie, 2024 ONCA 514

[Roberts, Miller and Coroza JJ.A.]

Counsel:

K. Black and K. Day, for the moving party/respondent

C. Baru, for the responding parties/appellants

Keywords: Contracts, Real Property, Leases, Rights of First Refusal, Civil Procedure, Arbitration, Appeals, Jurisdiction, Arbitration Act, 1991, s.17(1), s.17(8), s.17(9), Iris Technologies Inc. v. Rogers Communications Canada Inc., 2022 ONCA 634

Rahmouni c. Ontario (Procureur général), 2024 ONCA 515

[Thorburn, Copeland and Gomery JJ.A.]

Counsel:

P. Lermusieaux, for the appellant

A. Clark, D. Mayer, and M. Chung, for the respondent

Keywords: Administrative Law, Judicial Review, Procedural and Natural Justice, Civil Procedure, Appeals, Jurisdiction, French Language Services Act, R.S.O. 1990, c. F.32, Judicial Review Procedure Act, R.S.O. 1990, c. J.1, p.1, 2, 6, 8, Rules of Civil Procedure, r. 21.01(3)(a), J.N. v. Durham Regional Police, 2012 ONCA 428

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.