COURT OF APPEAL SUMMARIES (JANUARY 25 – 29, 2021)

By John Polyzogopoulos on January 31, 2021

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Good afternoon.

Following are this past week’s summaries of the civil decisions of the Court of Appeal for Ontario.

Topics covered this week included striking jury notices, oppression in the context of a public company, specific performance of an agreement of purchase and sale of a condo, quantum meruit where a contingency fee agreement was found unenforceable under the Solicitors Act, and appeal routes in class proceedings.

In a decision that was telegraphed from its earlier decision in Louis v. Poitras just before Christmas, the Court allowed the appeal from the Divisional Court decision which had set aside the motion judge’s decision to strike a jury notice in a personal injury case in order to permit the case to go to trial during the pandemic.

In Lucas, the builder of a new condo development terminated an agreement of purchase and sale because the purchaser had rented the unit during occupancy and prior to closing without the builder’s consent. The builder then sold the unit under value to relatives of the builder’s principal. The application judge granted relief and forfeiture and specific performance. The Court rightly upheld that decision. The decision illustrates that even in cases involving the purchase of condos in Toronto, which are a dime a dozen, a purchaser can still get specific performance.

In Beaudoin Estate, the Court allowed an appeal from a motion judge’s decision under Rule 21.02(1)(a) striking an action as being statute-barred under s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23. The plaintiff alleged fraudulent concealment as a basis to extend the hard two-year limitation period under the Trustee Act. The Court confirmed that the factual findings necessary to determine the fraudulent concealment issue should not have been made under Rule 21 in the absence of any evidence.

Please mark down April 27, 2021, from 5:30-7:45pm in your calendars for our fifth annual “Top Appeals” CLE, which will take place via Zoom. Justice Benjamin Zarnett will be co-chairing the event with myself and Chloe Snider of Dentons. Following is our excellent slate of decisions and speakers:

2020 Update from the Bench

The Honourable Benjamin Zarnett, Court of Appeal for Ontario

Panel 1 – Advocacy Practice Tips from the Court

Girao v. Cunningham, 2020 ONCA 260

OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532

Welton v. United Lands Corporation Limited, 2020 ONCA 322

Jordan Goldblatt, Adair Goldblatt Bieber LLP

Sara Erskine, Rueters LLP

Panel 2 – Negligently Designed Financial Products – A New Age in Product Liability?

Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337

Seumas Woods, Blake, Cassels & Graydon LLP

Alistair Crawley, Crawley MacKewn Brush LLP