Jump To: Table of Contents | Civil Decisions

Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of December 27, 2021. There were only two substantive civil decisions released this week.

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In Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., the Court clarified that for a debt to survive bankruptcy under ss. 178(1)(e) of the Bankruptcy and Insolvency Act, the debt claimed by the creditor in the bankruptcy must have arisen as a result of property or services obtained by the bankrupt by way of false pretences or fraudulent misrepresentation. The debt in this case arose out of the misappropriation of the creditor’s trade secrets and confidential information. While such conduct may have been morally or commercially reprehensible, it fell short of the definition in ss. 178(1)(e), and therefore the debt did not survive bankruptcy.

The second decision, Fontaine v. Canada (Attorney General), is yet another decision in the ongoing dispute regarding the residential school class action settlement.

Wishing you all a healthy, happy and prosperous New Year!

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925

Keywords: Bankruptcy and Insolvency, Proposals, Assignments in Bankruptcy, Automatic Stay of Proceedings, Lifting of Stay, Debts Surviving Bankruptcy, Property or Services Obtained by False Pretences or Fraudulent Misrepresentation, Statutory Interpretation, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 69(1), 69.3(1), 69.4 & 178(1)(e), Criminal Code, R.S.C. 1985, c. C-46, ss. 361 & 362, Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc. et al, 2018 ONSC 5206, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Therrien (Re), 2001 SCC 35, Celanese Canada Inc. v. Murray Demolition Corp., [2010] O.J. No. 6347 (S.C.), H.Y. Louie Co. Limited v. Bowick, 2015 BCCA 256, 386 D.L.R. (4th) 117, Szeto (Re), 2014 BCSC 1563, Water Matrix Inc. v. Carnevale, 2018 ONSC 6436, 65 C.B.R. (6th) 109, Buland Empire Development Inc. v. Quinto Shoes Imports Ltd. et al. (1999), 123 O.A.C. 288 (C.A.), Cruise Connections Canada v. Szeto, 2015 BCCA 363, Montréal (City) v. Deloitte Restructuring Inc., 2021 SCC 53, Ste. Rose & District Cattle Feeders Co-op v. Geisel, 2010 MBCA 52, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, Simone v. Daley (1999), 43 O.R. (3d) 511, Fiorito v. Wiggins, 2017 ONCA 765, Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto, Ont.: Butterworths, 1983)

Fontaine v. Canada (Attorney General), 2021 ONCA 931

Keywords: Civil Procedure, Appeals, Extension of Time, Mootness, Courts of Justice Act, R.S.O. 1990, c. C. 43, ss. 7(3) & 7(5), Obermueller v. Kenfinch Cooperative Housing Inc., 2016 ONCA 21, Willenbrecht v. Willenbrecht (1999), 120 O.A.C. 274, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62


CIVIL DECISIONS

Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc.,2021 ONCA 925

[Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. (ad hoc)]

Counsel:

I. Klaiman, for the appellant

C. Hammond, for the respondent

Keywords: Bankruptcy and Insolvency, Proposals, Assignments in Bankruptcy, Automatic Stay of Proceedings, Lifting of Stay, Debts Surviving Bankruptcy, Property or Services Obtained by False Pretences or Fraudulent Misrepresentation, Statutory Interpretation, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 69(1), 69.3(1), 69.4 & 178(1)(e), Criminal Code, R.S.C. 1985, c. C-46, ss. 361 & 362, Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc. et al, 2018 ONSC 5206, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Therrien (Re), 2001 SCC 35, Celanese Canada Inc. v. Murray Demolition Corp., [2010] O.J. No. 6347 (S.C.), H.Y. Louie Co. Limited v. Bowick, 2015 BCCA 256, 386 D.L.R. (4th) 117, Szeto (Re), 2014 BCSC 1563, Water Matrix Inc. v. Carnevale, 2018 ONSC 6436, 65 C.B.R. (6th) 109, Buland Empire Development Inc. v. Quinto Shoes Imports Ltd. et al. (1999), 123 O.A.C. 288 (C.A.), Cruise Connections Canada v. Szeto, 2015 BCCA 363, Montréal (City) v. Deloitte Restructuring Inc., 2021 SCC 53, Ste. Rose & District Cattle Feeders Co-op v. Geisel, 2010 MBCA 52, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, Simone v. Daley (1999), 43 O.R. (3d) 511, Fiorito v. Wiggins, 2017 ONCA 765, Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto, Ont.: Butterworths, 1983)

facts:

The respondent successfully sued the appellant, and others, for misappropriating the respondent’s trade secrets and confidential information. The amount of the damages and the granting of other relief was to be determined at a subsequent hearing. However, before that could occur, the appellant made a proposal to his creditors under the Bankruptcy and Insolvency Act (the “BIA”), which automatically stayed the proceedings. The proposal was rejected by a majority of those creditors; the appellant was, as a consequence, deemed to have made an assignment into bankruptcy, continuing the stay.
In the decision under appeal, the motion judge declared that the debt or liability under the trial judgment arose from the appellant having obtained property or services by false pretences, and thus would survive the appellant’s discharge from bankruptcy. He also declared that the stay that the BIA imposed on proceedings or enforcement steps against a bankrupt did not apply to the respondent’s claims against the appellant.

issues:

(1) Did the motion judge err in finding that the liability under the trial judgment comes within s. 178(1)(e) of the BIA?

(2) Did the motion judge err in declaring that the stay of proceedings in s. 69 of the BIA did not apply to the respondent’s claim against the appellant?

holding:

Appeal allowed.

reasoning:

(1) Yes.

An exception to a discharge of bankruptcy, under s. 178(1)(e) of the BIA, is “any debt or liability resulting from obtaining property or services by false pretences or fraudulent misrepresentation”. That kind of debt or liability is not released, and thus remains enforceable against the debtor post-bankruptcy. At the core of the concept of false pretences is the making of a deceitful statement – that is, a statement that is false to the knowledge of its maker (including through wilful blindness or recklessness). For s. 178(1)(e) to apply, the debt or liability to the creditor must have resulted from the bankrupt having obtained property or services by making such a statement.

The motion judge erred in two interrelated ways in deciding that s. 178(1)(e) applied in this case. First, the nature and substance of the liability of the appellant reflected in the trial judgment, lying during the proceedings (examination for discovery) is not one that arose from such a statement. Although the liability arose from morally unacceptable conduct of the appellant, that was insufficient to fit it within the exception.

For the court, this issue was a question of statutory interpretation. Legislation is to be interpreted by conducting a “textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole”. The fundamental principle is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. Reading the text of s. 178(1)(e) with the benefit of the definition of false pretences in the Criminal Code illuminates its core concept: it only applies to a debt or liability that has arisen from one or more deceitful statements, by the debtor or for which the debtor is responsible, on the basis of which the debtor obtained services or property. It does not apply to other kinds of lying or wrongdoing, no matter how morally objectionable, that do not have these basic characteristics.

Reading s. 178(1) as a whole reinforces the view that s. 178(1)(e) refers to specific types of wrongdoing, within specific parameters. Rather than legislating a catchall of debts arising from morally objectionable conduct, the BIA identifies categories of specific wrongful conduct that gives rise to debts that are not released, and specifies the criteria to be applied. In doing so, Parliament must be taken to have intended that only these specific categories, on the specific terms identified, will be given this effect, even though other forms of morally objectionable conduct giving rise to debts can easily be imagined.

The purpose of s. 178(1) and the legislation as a whole support reading s. 178(1)(e) as applying to debts or liabilities that result from the obtaining of property by the deceitful means of false statements. It does not support reading the subsection as applying to any conduct without those attributes that a court might characterize as morally objectionable or that prevents a debtor being described as honest but unfortunate.
Second, the motion judge erred in focusing on the morally objectionable nature of the appellant’s conduct in participating in the misappropriation of the respondent’s trade secrets and confidential information, elevating that to a kind of implied deceit that could be present in any objectionable commercial behaviour, but without relating the conduct to the specific requirements of s. 178(1)(e). The section applies to certain specific conduct that is morally objectionable; it does not equate all morally objectionable commercial conduct with false pretences.

(2) Yes.

Section 69(1) of the BIA stays any action or execution proceedings against a debtor in respect of a claim provable in bankruptcy on the filing of a notice of intention to make a proposal. Section 69.3(1) imposes a stay, on the same terms, upon bankruptcy. Section 69.4 permits the court to make an order that the stay no longer operates, subject to any qualifications the court considers proper. An order under s. 69.4 of the BIA declaring that a stay no longer operates is discretionary, however, here the premise of the motion judge’s order was the erroneous legal conclusion that s. 178(1)(e) applied to the appellant’s liability for the respondent’s claims. The declaration that the stay does not apply at all to the proceedings in the action as against the appellant or to enforcement of any judgment against the appellant cannot stand.


Fontaine v. Canada (Attorney General), 2021 ONCA 931

[van Rensburg and Roberts JJ.A. and Tzimas J. (ad hoc)]

Counsel:

F. K. Brunning and M. Swinwood, for the moving parties Dr. E. M. and IAP Claimants T-00185, S-20774 and S-16753

B. Thompson, for the responding party the Attorney General of Canada

Keywords: Civil Procedure, Appeals, Extension of Time, Mootness, Courts of Justice Act, R.S.O. 1990, c. C. 43, ss. 7(3) & 7(5), Obermueller v. Kenfinch Cooperative Housing Inc., 2016 ONCA 21, Willenbrecht v. Willenbrecht (1999), 120 O.A.C. 274, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62

facts:

The moving parties brought a motion to review an order of Strathy C.J.O. dated August 19, 2021, dismissing their motion to extend time to perfect their appeal. The motion was opposed by the respondent, the Attorney General of Canada (“Canada”).

The moving parties are survivors of the St. Anne’s Indian Residential Schools (“IRS”) in Fort Albany, Ontario. Their proposed appeal arises in the context of the Indian Residential Schools Settlement Agreement (the “IRSSA”), a court-supervised class action settlement agreement entered into between Canada, church defendants and plaintiff representatives in 2006. A component of the IRSSA was the independent assessment process (the “IAP”) for the adjudication of abuse claims, which has been supervised by the courts. With the completion of all IAP claims across the country, the IAP was concluded on March 31, 2021. The order under appeal is dated April 20, 2021 (the “Independent Review Order”). The order was made by Perell J. as Ontario Supervising Judge under the IRSSA in the context of a Request for Directions (“RFD”) by Canada. Canada’s RFD sought an order appointing an independent special advisor to conduct an independent review of IAP claims of the St. Anne’s IRS claimants that were settled before Canada provided additional disclosure pursuant to certain disclosure orders made by the Ontario Supervising Judge on January 14, 2014, and June 23, 2015.

The Independent Review Order directed an independent review of certain concluded claims of former St. Anne’s IRS students. The order appointed the Honourable Ian Pitfield, who had previously been appointed by the supervising courts for other purposes under the IRSSA, as ISA to conduct the review. The order required the ISA to make a report that contains his findings, conclusions and recommendations, and for the report to be provided to the court as a sealed document, and to Canada.

In August 2021, the moving parties brought a motion seeking an extension of time to perfect their appeal from the Independent Review Order. The motion judge dismissed the motion to extend time.

issues:

(1) Was the Independent Review Order final or interlocutory?

(2) If the Independent Review Order is final, does the justice of the case warrant an extension of time?

holding:

Motion dismissed.

reasoning:

(1) & (2)

As a result of developments after the hearing of the review motion, it was not unnecessary to determine whether the motion judge erred in concluding that the Independent Review Order was an interlocutory order. On a motion for an extension of time to appeal or to perfect an appeal, it is appropriate for the court to consider whether the appeal is moot. The onus is on the party seeking to permit a moot appeal to proceed to demonstrate why the court should depart from its usual practice of refusing to hear moot appeals. The Court concluded that the appeal was moot and there were no grounds for the exercise of the court’s discretion to hear the appeal.


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.

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good evening

Following are this week’s summaries of the Court of Appeal for Ontario for the week of December 20, 2021.

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In Foxgate Development Inc. v. Jane Doe, the Court considered the requirements of fairness where a court’s own motion has resulted in an order striking the pleadings of a self-represented litigant in a dispute between a land developer and First Nations. The Court found that the motion judge had erred in conflating his finding on contempt with abuse of process, and denied the appellant a fair opportunity to be heard before making an order striking his pleadings ordering significant costs against him.

In Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, the Court determined that the motion judge erred in law by finding that the plaintiff had waived automatic renewal provision of the subject Consulting Agreement.

In Hemlow Estate v. Co-operators General Insurance Company, the Court upheld the application judge’s determination that the insurer had a duty to defend an estate as a result of the alleged negligence of the deceased, and that the pollution exclusion did not negate the duty to defend.

Wishing our readers all the best for the holiday season and a very Merry Christmas to all celebrating!

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907

Keywords: Contracts, Dependent Contractors, Waiver, Civil Procedure, Limitation Periods, Summary Judgment, Limitations Act2002, S.O. 2002, s. 4, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Colautti Construction Ltd. v. City of Ottawa (1984), 46 O.R. (2d) 236 (C.A.), Shelanu Inc. v. Print Three Franchising Corp. (2003), 64 O.R. (3d) 533 (C.A.)

Hemlow Estate v. Co-operator General Insurance Company, 2021 ONCA 908

Keywords: Contracts, Interpretation, Insurance, Commercial General Liability, Coverage, Duty to defend, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, ING Insurance Co. of Canada v. Miracle, 2011 ONCA 321, Prudential Life Insurance Co. v. Manitoba Public Insurance Corp. (1976), 67 D.L.R. (3d) 521 (Man. C.A.), Zurich Insurance Co. v. 686234 Ontario Ltd. (2002), 62 O.R. (3d) 447 (C.A.), O’Byrne v. Farmers’ Mutual Insurance Company (Lindsay), 2014 ONCA 543

Sicotte v. 2399153 Ontario Ltd., 2021 ONCA 912

Keywords: Contracts, Interpretation, Real Property, Mortgages, Guarantees, Priority Agreements, Postponements, Civil Procedure, Summary Judgment, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, leave to appeal to S.C.C. refused, 36974 (March 2, 2017), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Bhasin v. Hrynew, 2014 SCC 71, Schuler A.G. v. Wickman Machine Tool Sales Ltd., [1974] A.C. 235 (H.L.)

Foxgate Development Inc. v. Jane Doe, 2021 ONCA 910

Keywords: Civil Procedure, Procedural and Natural Justice, Contempt, Sanctions, Abuse of Process, Striking Pleadings, Self-Represented Litigants, Amicus Curiae, Costs, Aboriginal Law, Courts of Justice Act, United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, leave to appeal refused, [2008] S.C.C.A. No. 506., Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, Chiang (Trustee of) v. Chiang (2009), 2009 ONCA 3, Dare Foods (Biscuit Divisions) Ltd. v. Gill, [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.), Toronto Transit Commission v. Ryan (1998), 37 O.R. (3d) 266, [1998] O.J. No. 51 (Gen. Div.), Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686, [2006] O.J. No. 2488 (C.A.), Carey v. Laiken, 2015 SCC 17,  Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 82 O.R. (3d) 721 (C.A.), Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, Morwald-Benevides v. Benevides, 2019 ONCA 1023

York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914

Keywords: Real Property, Condominiums, Compliance Orders, Condominium Act, 1998, S.O. 1998, c. 19, ss. 92(4), 93(3), 117, 134, 134(3)(b), and 134(5), Hawkins v. TSCC 1696, 2019 ONSC 2560, TSCC 1724 v. Evdassin, 2020 ONSC 1520

Overtveld v. Overtveld, 2021 ONCA 930

Keywords: Civil Procedure, Appeals, Extension of Time, Vexatious Litigants, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Beard Winter LLP v. Shekhdar, 2016 ONCA 493

Short Civil Decisions

Froom v. LaFontaine, 2021 ONCA 917

Keywords: Family Law, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b), Mantella v. Mantella, 2009 CarswellOnt 1060, Ashak v. Ontario (Director, Family Responsibility Office), 2013 ONCA 375

W.S. v. P.I.A., 2021 ONCA 923

Keywords: Family Law, Custody and Access, Divorce Act, R.S.C. 1985, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764

SS & C Technologies Canada Corp v. The Bank of New York Mellon Corporation, 2021 ONCA 913

Keywords: Civil Procedure, Appeals, Expediting Appeals, Trials, Bifurcation, Machado v. Ontario Hockey Association, 2019 ONCA 210, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

McLean v. Wolfson, 2021 ONCA 928

Keywords: Torts, Negligence, MedMal, Civil Procedure, Documentary Discovery, Orders, Enforcement, Dismissal of Action, Adjournments, Appeals, Fresh Evidence, Rules of Civil Procedure, Rules 30.04(2), 30.08 and 60.12


CIVIL DECISIONS

Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 90

[Feldman, Harvison Young and Thorburn JJ.A.]

Counsel:

P. Virc and M. Title, for the appellant

K. Prehogan and M. Skrow, for the respondent

Keywords: Contracts, Dependent Contractors, Waiver, Civil Procedure, Limitation Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, s. 4, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Colautti Construction Ltd. v. City of Ottawa (1984), 46 O.R. (2d) 236 (C.A.), Shelanu Inc. v. Print Three Franchising Corp. (2003), 64 O.R. (3d) 533 (C.A.)

facts:

J. G Consulting Ltd. (“JGC”) brought a claim for breach of contract against Recipe Unlimited Corporation, formerly known as Cara Operations Limited (“Cara”). JGC claimed that the respondent, Cara breached its signed and executed consulting agreement of March 10, 2006 (“the Agreement”). JGC claimed damages, including damages for lost stock options, and common law reasonable notice on the basis that JGC was a dependent contractor.
The motion judge dismissed the action by way of summary judgment.

Relevant Terms of the Agreement:

The Agreement stipulated that JGC was an independent contractor who would be paid an annual consulting fee of $420,000 to provide IT consulting services and an additional $250 per hour for each additional hour that services were required in excess of 180 hours. The Agreement also provided that if Cara became a public corporation with shares listed on a public stock exchange and offered an employee equity incentive plan, JGC would have the opportunity to participate in the plan on the same terms and conditions offered to its other senior management level employees. The Agreement contained an automatic renewal of the three-year term “unless terminated prior to the expiration date in accordance with this Agreement”.

Arrangement Between the Parties After August 2008:

On August 29, 2008 (12 days before the deadline to give notice that the Agreement would not be renewed), S.S, then-Chief Financial Officer of Cara, met with J.G. According to S.S, the purpose of the meeting was “to discuss the existing agreement and next steps with respect to that agreement” because “if Cara wanted to change the contract, it had to be done prior to six months otherwise it was an automatic renewal clause.”

Following the meeting, J.G sent an email to S.S advising him that, “it was a pleasure meeting with you today. I look forward to working with you and know the future is exciting. Let this email serve to remove the auto renewal from my contract. I look forward to our discussions, in early 2009, after the new HQ moves and Data Centre builds quiet down”.

S.S responded to the aforementioned email stating, “I too look forward to discussing with you the terms of our new arrangement that will take effect after your current agreement with Cara comes to an end in March 2009.

In early 2009, the parties met to discuss the terms of a new arrangement. S.S sent an email to J.G on January 26, 2009 saying that the “current agreement between [J.G] and Cara expires as scheduled March, 2009” and summarizing terms for a new agreement. S.S asked J.G to advise if there was anything that he missed and recorded that J.G. had “no additional comments to add.” No new agreement was signed.

Throughout the eight-year relationship, J.G submitted his invoices with the words: “As per Agreement dated March-10-2006”.

issues:

(1) Did the motion judge err in law by finding that J.G had waived the auto renewal provision of the consulting agreement?

(2) What terms governed the parties’ relationship after J.G sent an email purporting to remove the auto renewal provision in the Agreement?

(3) Was J.G a dependent contractor?

(4) Was the reasonable notice claim statute-barred?

(5) Did JGC plead a breach of the duty of good faith?

(6) Did the motion judge improperly shift the burden of proof to the responding party?

holding:

Appeal allowed.

reasoning:

(1) Yes.

One party to an agreement may choose to forego reliance on a contractual right but only where the party making the choice has full knowledge of the right and makes an unequivocal and conscious decision to forego that right with full understanding of the consequences. The court must apply a stringent test before finding unilateral waiver of a contractual right because “no consideration moves from the party in whose favour a waiver operates. An overly broad interpretation of waiver would undermine the requirement of contractual consideration.”
There is no question that after the parties met on August 29, 2008 (12 days before the deadline to give notice that the Agreement would not be renewed), J.G sent an email to J.Sh stating, “Let this email serve to remove the auto renewal from my contract” and indicating that he was looking forward to discussions with Cara.

The motion judge erred in law by concluding that J.G unilaterally waived the auto renewal provision of the agreement for no consideration. It was not clear from the record that J.G had full knowledge of his rights or an unequivocal and conscious intention to abandon those rights. Further, it is clear from the record, in particular the email exchange as well as the internal email quoted in para. 16, that in his discussion with S.S, J.G was asked to remove the provision as a favour to Cara, and in exchange, they would negotiate the terms of a new agreement to govern their future relationship. This was not a waiver for no consideration in accordance with the doctrine in Saskatchewan River Bungalows.

(2)
While the parties continued their relationship, they did not come to an agreement on what governed that relationship.

The following factors suggested that the terms of the Agreement were unclear until services were terminated:

1) Cara’s representative, S.S testified that the termination date of the Agreement and establishment of a new agreement were intertwined;
2) He also said that whether the Agreement was terminated is a “grey area” and that another Cara representative did not want anything changed in J.G’s contract at any time;
3) J. S testified that it was “totally uncertain” whether the arrangement going forward was a continuation of the Agreement or a new contract, and that another Cara representative, D.R, “left it that way”;
4) S.R wrote that J.G “actually does [have a contract] but he does not enforce it as he is too much of a gentleman”;
5) The recitals in the draft agreements in 2010 and 2012 refer to the Agreement and seem to indicate that the Agreement had not been terminated;
6) The invoices sent by JGC throughout the course of their relationship all read: “As per the Agreement dated March-10-2006” and the amounts billed to and paid by Cara throughout the course of their relationship were as set out in the Agreement;
7) Cara discussed reducing the remuneration from $35,000 per month to approximately $10,000 per month but the amounts paid were never reduced and JGC continued to invoice and be paid $35,000 per month until termination in 2014;
8) No new agreement was ever executed.
Moreover, there was testimony that was not adduced on the motion by either party that may assist the trier of fact to understand the contractual terms between the parties. This included:

1) S.R’s explanation of his statement that J.G had a contract but chose not to enforce it, and

2) D.R’s awareness that there was uncertainty as to whether the Agreement continued to govern the relationship but chose to leave it that way.
(3), (4), (5), (6)

The Court allowed the appeal and remitted to trial the issue of the contractual terms governing the relationship between the parties at the time services were terminated. Accordingly, the issues of whether Ganz was a dependent contractor, whether there was a breach of good faith, whether the limitation period expired, and what right to remuneration may flow from these determinations, should be addressed by the trial judge once all of the evidence has been adduced and assessed.


Hemlow Estate v. Co-operators General Insurance Company,2021 ONCA 908

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

R. Dowhan, for the appellant

C. C. Zizzo and B. J. Kurpis, for the respondent

Keywords: Contracts, Interpretation, Insurance, Commercial General Liability, Coverage, Duty to defend, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, ING Insurance Co. of Canada v. Miracle, 2011 ONCA 321, Prudential Life Insurance Co. v. Manitoba Public Insurance Corp. (1976), 67 D.L.R. (3d) 521 (Man. C.A.), Zurich Insurance Co. v. 686234 Ontario Ltd. (2002), 62 O.R. (3d) 447 (C.A.), O’Byrne v. Farmers’ Mutual Insurance Company (Lindsay), 2014 ONCA 543

facts:

An independent mechanical contractor was killed in a workplace accident that also caused extensive property damage.
Rich Products of Canada Limited (“Rich Products”) retained Wear-Check, a company that specializes in equipment oil and filter analysis, to sample and analyze the mechanical and refrigeration systems at its processing facility. Wear-Check subcontracted the deceased to carry out the sampling and analysis work. During the course of his work, the deceased opened a valve to a pipe containing pressurized ammonia, which killed him and caused significant damage to the Rich Products property.

Rich Products commenced a lawsuit against the deceased’s estate (the “Estate”) and Wear-Check in negligence, nuisance and breach of contract. The deceased had an insurance policy with Co-operators General Insurance Company (“Co-operators”) that excluded coverage for damage caused by “pollutants”. Co-operators asserted that this provision applied to the workplace accident and, accordingly, informed the Estate that it would not defend the claim. The Estate brought an application seeking a declaration that Co operators had a duty to defend the action against the Estate. The application judge granted the application. Co-operators appealed that decision.

issues:

(1) Did the Application Judge err in concluding that the Total Pollution Exclusion clause contained in the insurance policy did not apply to exclude Co operators’ duty to defend the Estate in the Rich Products action?

holding:

Appeal dismissed.

reasoning:

(1) No.

The existence of the duty to defend depends on the nature of the claim made. Here, the claim made fell within the terms of the insurance policy because it is a claim for breach of contract and negligence. The duty to defend therefore arose.

An insurer’s duty to defend arises from the claims as pleaded. The parties fixed their dispute on the interpretation of the pollution exception without giving proper consideration to the nature of the claims advanced against the Estate. Those claims were founded in negligence, nuisance, and breach of contract. There was nothing in the statement of claim that involved, or asserted, a claim arising out of “pollution”, as that term was commonly understood. Rather, the claim advanced by Rich Products was a straightforward claim for damage to its property.

It was alleged that the deceased acted in a negligent manner when he opened a valve and allowed the ammonia to escape, which caused damage to the Rich Products property. The deceased’s Estate sought coverage from his insurer should he happen to be negligent in his work and a claim was brought against him. A claim arising from negligence was precisely the type of risk that the deceased sought coverage for. The fact that the damage-causing substance was a pollutant did not change the nature of the claim. It did not distract from the proper interpretation of the insurance policy, nor whether a duty to defend arose.


Sicotte v. 2399153 Ontario Ltd., 2021 ONCA 912

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

M. Black, for the appellant

A. Christian, for the respondents 2399153 Ontario Ltd., J.V. and P.G.

N. Authier, for the respondent D.M.

Keywords: Contracts, Interpretation, Real Property, Mortgages, Guarantees, Priority Agreements, Postponements, Civil Procedure, Summary Judgment, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, leave to appeal to S.C.C. refused, 36974 (March 2, 2017), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Bhasin v. Hrynew, 2014 SCC 71, Schuler A.G. v. Wickman Machine Tool Sales Ltd., [1974] A.C. 235 (H.L.)

facts:

The appellant, J.S., brought a motion for summary judgment on a guarantee of a commercial mortgage signed by the respondents, J.V., P.G., and D.M.. The motion judge dismissed the appellant’s motion but granted summary judgment to the respondents dismissing the appellant’s action against them.

The result of the motion judge’s decision was that the appellant was prevented from enforcing the guarantee until another mortgage that the corporate respondent 2399153 Ontario Ltd. (the “Borrower”) made with the Business Development Bank of Canada (“BDC”) was paid out. By the terms of the BDC mortgage, the payout may not have occurred until 2043, or even later if BDC granted an extension.

The appellant submitted that the motion judge erred in rendering a decision that had such a drastic and unfair result for her.

issues:

(1) Did the motion judge err by failing to distinguish between a debt being “owed” and a debt being subordinated and temporarily unenforceable against the borrower?

(2) Did the motion judge err by failing to distinguish between the obligations of the primary debtor/borrower to the appellant as a lender and those of the guarantors?

(3) Did the motion judge err by applying a lease-up pre-condition to the repayment of the subject loan after such pre-condition had ceased to apply on the pay-out of the previous construction financing?

holding:

Appeal allowed.

reasoning:

(1) and (2) Yes.

The motion judge’s central error was that she confused the appellant’s rights as they related to the underlying debt with her rights as they related to the guarantee. The two were separate and distinct contractual obligations. The result arrived at by the motion judge improperly conflated the two.

The Postponement Agreement was made between the appellant, the Borrower, and the BDC. The guarantors were not parties to the Postponement Agreement. Nothing in the Postponement Agreement purported to, or did, involve, much less altere, the relationship between the appellant and the guarantors. Simply put, there was nothing in the Postponement Agreement that purported to address or affect the appellant’s rights vis-à-vis the guarantors.

The motion judge also erred in concluding that the indebtedness of the Borrower to the appellant was not “owing” to the appellant. That conclusion reflected both a factual and a legal error. The mortgage, which secured the debt due by the Borrower to the appellant, had matured in accordance with its terms. It was an error to conclude that a matured mortgage did not represent monies that are due and owing.

The Court also noted that the guarantee referred to debts “owing by the Borrower to the Lender or remaining unpaid by the Borrower to the Lender” (emphasis added). It should have been self-evident that the debt remained unpaid by the Borrower. Neither the principal amount of the mortgage had been paid nor had the monthly interest payments been made. The motion judge did not make reference to this language in her analysis. Nevertheless, the motion judge did note that section 2.02 of the guarantee entitled the appellant to demand payment or performance from the guarantors, even if she had not exhausted her remedies as against the Borrower. Yet the motion judge gave no effect to this section.

What the motion judge confused was the question of whether a debt was due and owing and whether a lender could enforce payment of a debt that was due and owing. The former addressed liability and the latter addressed enforcement. Just because a debt was due and owing did not necessarily mean that a lender could take steps to enforce payment of the debt. In this case, the appellant disentitled herself to enforce payment of the debt by the Borrower because of the contractual arrangements she entered into with the BDC, so as to permit the BDC to advance other monies to the Borrower. Understandably, the BDC insisted on being first in priority in terms of any enforcement rights against the Borrower (and its assets). The appellant contractually agreed to give the BDC that priority by postponing her enforcement rights as against the Borrower.

What the appellant did not do, and which was central to the issues in this case, was postpone or otherwise alter her rights of enforcement against the guarantors. Contrary to the finding of the motion judge, the Postponement Agreement did not do so. The first clue to that conclusion, as the Court alluded to above, ought to have arisen from the salient fact that the guarantors were not parties to the Postponement Agreement.

The motion judge’s conclusion about the Postponement Agreement was also inconsistent with the terms of the guarantee. The guarantee made it clear that the obligations of the guarantors were independent of the obligations of the Borrower.

Consistent with the interpretative principles set out in Sattva, the surrounding circumstances are relevant to a proper interpretation of the contractual document. The surrounding circumstances known to the parties here was that the Borrower needed to obtain construction financing to ensure that the vacant land that it held as its only asset could be developed so as to generate revenues to pay the Borrower’s obligations. The appellant, recognizing that reality, agreed to postpone her rights as against the Borrower to enable that financing to take place. However, there was never any agreement that the appellant’s rights against the guarantors were to be similarly postponed. That conclusion flowed inevitably from the factual record. In particular, there was an express agreement, at the time of the BDC financing, to amend the mortgage in four specific respects.

The respondents expressly agreed to these changes. If the appellant’s rights were to be, in all respects, entirely subsumed and postponed to the BDC financing, as urged by the guarantors, and as found by the motion judge, then there was no need for a one-year extension of the mortgage since, on the motion judge’s findings, the appellant was not able to enforce the mortgage, or the guarantee, until the BDC financing became due in 2043. Nor did it appear that there was much practical purpose for providing that interest-only payments were to be made since, as the respondents would have it, there was no remedy for any failure to make those payments. Indeed, those interest-only payments, that the respondents expressly agreed were to be made, stopped only three months after they began and yet, in the result, the appellant was precluded from obtaining any relief arising from the failure to make those payments.

Additionally, there was evidence in the record that at least one of the purposes of the one-year extension was to allow time for the parties to pay out the Borrower’s debt to the appellant. This intent was set out in an email from the appellant’s lawyer to the guarantors dated July 3, 2018, the same email that confirmed the guarantors’ acceptance of the terms, and the understanding upon which the appellant was postponing her rights against the Borrower to those of the BDC. If, as found by the motion judge, the appellant had waived her rights to payment of the debt, not only from the Borrower but also from the guarantors, there was no practical purpose to paying the appellant out, since the appellant had no rights of collection for the next twenty-five years. The motion judge did not address this evidence.

(3) Yes.

The third issue arose from an alternative argument advanced by the guarantors. The guarantors contended that the construction financing contained a term that the loan amount did not have to be repaid until all of the units to be constructed in the buildings were leased. That had never happened. The guarantors submitted that this was another reason that no amounts were owing by the Borrower, or by them, to the appellant.

That contention not only suffered from the same flaw of ignoring the distinction between the obligations under the principal debt and the obligations under the guarantee, but it also ignored the salient fact that the construction financing was paid out by the BDC financing. There was no basis in the record for concluding that the terms attached to the construction financing survived that payout and remained in force.

The order of the motion judge was set aside and summary judgment was granted in favour of the appellant.


Foxgate Development Inc. v. Jane Doe, 2021 ONCA 910

[Doherty, Miller and Sossin JJ.A.]

Counsel:

B.L. Yellin, W. Poziomka and N. Papageorge, for the appellant

P. Demelo, for the respondent Foxgate Development Inc.

W. McKaig, for the respondent The Corporation of Haldimand County

R. Ogden and J. Shields, for the third party Her Majesty the Queen in Right of Ontario

O. Young and A. Law, for the third party Attorney General of Canada

Keywords: Civil Procedure, Procedural and Natural Justice, Contempt, Sanctions, Abuse of Process, Striking Pleadings, Self-Represented Litigants, Amicus Curiae, Costs, Aboriginal Law, Courts of Justice Act, United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, leave to appeal refused, [2008] S.C.C.A. No. 506., Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, Chiang (Trustee of) v. Chiang (2009), 2009 ONCA 3, Dare Foods (Biscuit Divisions) Ltd. v. Gill, [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.), Toronto Transit Commission v. Ryan (1998), 37 O.R. (3d) 266, [1998] O.J. No. 51 (Gen. Div.), Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686, [2006] O.J. No. 2488 (C.A.), Carey v. Laiken, 2015 SCC 17, Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 82 O.R. (3d) 721 (C.A.), Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, Morwald-Benevides v. Benevides, 2019 ONCA 1023

facts:

The appeal concerned the requirements of fairness where a court’s own motion resulted in an order striking the pleadings of a self-represented party. The appellant was Haudenosaunee and resided at the reserve situated at Six Nations of the Grand River. He was added as a named defendant in interlocutory injunction proceedings brought by Foxgate Developments Inc. (“Foxgate”). The motion judge found that the appellant, an alleged leader of a group of protestors occupying land where Foxgate was developing a housing project, was in defiance of court orders. On that basis, the motion judge determined that the appellant was in contempt of court and had engaged in an abuse of process. The appellant’s pleadings, including his statement of defence, his notice of constitutional question, and third-party actions against the federal and provincial Crown, were ordered struck in the main action on the court’s own motion. The motion judge granted the permanent injunction sought by Foxgate and ordered costs in excess of $168,000 against the appellant. The appellant appealed.

issues:

(1) Whether the motion judge erred in finding the appellant in contempt without affording him the procedural safeguards required by law, and whether the motion judge conflated his finding on contempt with his finding on abuse of process?

(2) Whether the motion judge failed to consider the appellant’s status as an Indigenous person before the court?

(3) Whether the motion judge lacked impartiality and should have considered the appointment of an amicus curiae?

(4) Whether the exorbitant costs imposed on the appellant constituted an error in principle and was plainly wrong?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The Court held that the motion judge failed to afford the appellant procedural fairness. He did not take appropriate steps to put the appellant on notice as to the exact nature of the proceedings against him (whether contempt, abuse of process, or both), and the criteria to be considered in that proceeding. The motion judge did not provide particulars of the exact conduct in issue (whether the appellant’s status as the “leader” of the protestors, or his own conduct). Further, the motion judge did not give the appellant an opportunity to consult with and retain counsel in respect of the contemplated order before he actually made the order. Finally, the motion judge did not give the appellant an opportunity to respond to the particular allegations against him before making any order.

The requirement of fairness in the context of the proceeding constituted an independent right of the appellant. It was no answer to the denial of these rights to say a fair opportunity to be heard would have made no difference in the outcome. Additionally, the narrow exception to this principle did not apply, as there was no inevitable outcome to these proceedings.

(2) Not specifically addressed.

(3) No.

Although the motion judge’s failure to afford the appellant procedural fairness was sufficient to dispose of the appeal, the Court briefly addressed the other grounds of appeal.

The appointment of an amicus curiae is a rare step, wholly within the discretion of the presiding judge. The Court found that the motion judge did not commit any error in failing to consider the appointment of amicus counsel to advise the Court. While amicus counsel could have been helpful in advising the motion judge on the proper process to follow in a contempt or abuse of process motion, this was simply one of several tools at the motion judge’s disposal. There was no legal obligation on the motion judge to consider or pursue this option.

The Court noted that, given the appellant was self-represented, and that the motion at issue was by the court and so lacked an adversarial context, counsel for the respondents also could have provided guidance to the motion judge on the procedural protections to which the appellant was entitled.

(4) Yes.

While the Court found it was unnecessary to examine the cost awards in detail, as the motion judge’s orders were set aside on the basis that the motion judge erred in conflating contempt and abuse of process and denied the appellant a fair opportunity to be heard, the Court found that the motion judge’s cost awards were problematic for three reasons. First, the costs ordered included time spent by the respondents on the injunction motion prior to the appellant being added as a party to the proceeding. Second, the amount of costs appeared to be inordinate, particularly given the duplication in arguments, the absence of any adversarial context, and the fact that the appellant was self-represented. Third, the decision was made without any opportunity for the appellant to make submissions on the issue.


York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914

[Lauwers, Paciocco and Thorburn JJ.A.]

Counsel:

P. T. M. L. and M. C. L., acting in person

T. Bui, for the respondent

Keywords: Real Property, Condominiums, Compliance Orders, Condominium Act, 1998, S.O. 1998, c. 19, ss. 92(4), 93(3), 117, 134, 134(3)(b), and 134(5), Hawkins v. TSCC 1696, 2019 ONSC 2560, TSCC 1724 v. Evdassin, 2020 ONSC 1520

facts:

After plumbing leaks came to its attention, York Region Standard Condominium Corporation No. 972 (the “Corporation”) discovered that Kitec plumbing was present in the building. Kitec plumbing was recalled as faulty by the manufacturer in 2005.

Accordingly, on August 27, 2018, the Corporation issued a notice requiring all unit owners to remove Kitec plumbing. Unit owners could either: (1) use the contractors recommended by the Corporation at a set fee; or (2) use a qualified contractor of their own choosing (in which case the unit owners were still obliged to pay $750 plus HST to the Corporation to have its engineer inspect the work).

The appellants chose the second option but did not send a cheque to cover the inspection fee. On November 25, 2019, the appellants advised the Corporation the Kitec plumbing had been removed but refused access for inspection on two occasions. The Corporation subsequently obtained a compliance order that awarded costs to the Corporation on a full indemnity basis in the amount of $4,541.95.

The unit has since been inspected, and the purpose of the compliance order has been met. However, the appeal was not moot, as the appellants appealed on the merits to avoid the expense and cost consequences of the compliance order judgment.

issues:

(1) Did Kitec plumbing pose a significant risk to the building?

(2) Should the Court reject the affidavit of the Corporation’s employee?

(3) Was the Corporation entitled to use s. 117 of the Condominium Act, 1998 to require owners to remediate their units?

(4) Did the application judge err in their approach to costs?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The Court rejected the appellants’ argument that Kitec plumbing did not pose a significant risk to the building. Specifically, the Court noted there was evidence before the application judge that leaky plumbing had been discovered in the building and that Kitec plumbing had been recalled. Further, the Court noted Kitec plumbing had been recognized as a dangerous condition on two occasions by the Superior Court in prior cases.

(2) No.

The appellants’ asked the Court to infer that the witness gave false evidence and that her affidavit should therefore be entirely rejected by the Court. Specifically, the witness deposed that “the Corporation experienced two significant water damage incidents as a result of faulty Kitec plumbing.” The appellant argued, without evidence, that the failures were not significant. The Court rejected this argument, holding that in the context of a large, multi-unit residential building, pinhole leaks could well result in significant water damage.

(3) Yes.

The Court rejected the appellants’ argument that s. 117 was aimed at bad conduct on the part of unit owners, and could therefore not be used to require owners to remediate their units. The Court concluded s. 117 was aimed at curbing harmful activities, but the language also included “a condition”. The Court held a condition of faulty plumbing in danger of failure amply justified a remedial order.

(4) No.

The Court held the application judge followed a long line of precedent in ordering costs against the appellants on a full indemnity basis “because the balance of the unit owners are blameless and should not have to bear the legal costs of securing the compliance of one of the unit owners”. The Court saw no error in the application judge’s approach.


Overtveld v. Overtveld, 2021 ONCA 930

[Tulloch J.A. (Motion Judge)]

Counsel:

G.F. Windsor, for the moving parties

G.J. Tighe, for the responding parties, Blaney McMurtry LLP and T. M.

S. Trazo, for the responding parties J.O., T.O. and G. K.

J. Warwick, for the responding party Logan Katz LLP

Keywords: Civil Procedure, Appeals, Extension of Time, Vexatious Litigants, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Beard Winter LLP v. Shekhdar, 2016 ONCA 493

facts:

This motion was brought by the moving parties G.O and Gi-Las Management and Maintenance LTD., seeking an order extending the time to file a notice of appeal of an endorsement of the Superior Court of Justice dated September 27, 2021, striking out the statement of claim in the within action against all defendants. The moving party, G.O, is 93 years old and the founder of the co-moving party, Gi-Las Management and Maintenance Ltd., a real estate management company with assets valued at more than $25 million. G.O is the father of two of the responding parties, T.O. and J.O. In 2011, G.O appointed his children as his powers of attorney. A few years later, G.O. married a young woman and his children raised concerns about his mental state and capacity. Recently, G.O. has resisted his children’s interference into his personal affairs and initiated a claim against them in the Ottawa Superior Court of Justice.

In an attempt to circumvent the Superior Court of Justice in Ottawa, G.O. initiated another action in the Brampton Superior Court of Justice, repeating essentially the same allegations as those in the Ottawa action, but also alleging bias against a number of Superior Court judges who preside in Ottawa. The statement of claim in the within action was issued in the Superior Court of Justice at Brampton on May 26, 2021. The within action is related to a series of at least seven prior proceedings involving G.O and various combinations of the responding parties, all of which proceedings were issued or originated in the Superior Court of Justice at Ottawa.

As against the respondent lawyers, almost all of whom acted or continue to act for parties opposite in litigation to the plaintiffs, the statement of claim alleges that they conspired with each other, their respective clients, expert witnesses, court staff and sitting judges of the Superior Court of Justice to obtain various and endorsements that were made in the prior proceedings.

issues:

(1) Should the moving parties be granted an extension of time to file the notice of appeal with respect to their proposed appeal of the September 27, 2021 endorsement striking out the statement of claim in the within action?

holding:

Motion dismissed.

reasoning:

(1) No.

The test on a motion to extend time is well-settled. The overarching principle is whether the “justice of the case” requires that an extension be given. This proceeding remained extant before the Superior Court of Justice at Ottawa and had yet to be determined. The proposed appeal had no merit and the justice of the case did not require granting an extension.

The moving parties rolled their existing claims in the Prior Proceedings forward, naming an expanded group of defendants that included the lawyers for the opposite litigation parties in the Prior Proceedings, expert witnesses for the opposite litigation parties in the Prior Proceedings, and court staff of the Superior Court of Justice. This was one of the hallmarks of vexatious litigation. Accordingly, the motion for extension of time was denied


SHORT CIVIL DECISIONS

Froom v. LaFontaine, 2021 ONCA 917

[van Rensburg and Roberts JJ.A. and Tzimas J. (ad hoc)]

Counsel:

R. Dowhan, for the appellant

C. C. Zizzo and B. J. Kurpis, for the respondent

Keywords: Family Law, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b), Mantella v. Mantella, 2009 CarswellOnt 1060, Ashak v. Ontario (Director, Family Responsibility Office), 2013 ONCA 375

W.S. v. P.I.A., 2021 ONCA 923

[Hourigan, Trotter, and Zarnett J.A]

Counsel:

G.S. Joseph and A. Parama, for the appellant

G. Gottlieb and M. Pilch, for the respondent

Keywords: Family Law, Custody and Access, Divorce Act, R.S.C. 1985, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764

SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913

[Simmons, Pepall and Roberts JJ.A.]

Counsel:

J. T. Curry, C. Yung, E.Mogil and E.S. Chesney, for the appellants/moving parties

R. Bucholz and C. Fan, for the respondent/responding party

Keywords: Civil Procedure, Appeals, Expediting Appeals, Trials, Bifurcation, Machado v. Ontario Hockey Association, 2019 ONCA 210, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

McLean v. Wolfson, 2021 ONCA 928

[Hourigan, Trotter and Zarnett JJ.A.]

Counsel:

M. McLean, acting in person

E. Mogil and P. Leslie, for the respondent

Keywords: Torts, Negligence, MedMal, Civil Procedure, Documentary Discovery, Orders, Enforcement, Dismissal of Action, Adjournments, Appeals, Fresh Evidence, Rules of Civil Procedure, Rules 30.04(2), 30.08 and 60.12


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.

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good evening.

Following are our summaries of the civil decisions of the Ontario Court of Appeal for the weeks of December 6-10 and 13-17, 2021.

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Congratulations to our very own Barry Prentice for his successful defence of the appeal in Stericycle ULC v. HealthPRO Procurement Services Inc. The Court dismissed the appeal in this contract case, determining that our client did not act in bad faith or in breach of contract by awarding the primary supplier designation to another biomedical waste management services provider rather than the appellant following a tendering process.

In Ontario (Labour) v Miller Group Inc., a workplace safety provincial offences matter, the Court allowed the Crown’s appeal and ordered a new trial. The Justice of the Peace had erred in finding an infringement of s. 11(d) of the Charter as a result of the destruction of evidence. It was the defendant who had destroyed the evidence. The decision also confirms that the Ministry of Labour does not have to allow a defendant or its counsel to participate or be present in any investigation of the physical evidence.

In Murphy v. Mullen, the appellants appealed the trial judge’s assessment of damages relating to liability for trespassing on the respondent’s property by cutting down trees in order to address a drainage issue. The damages awarded were largely the cost of replacing the trees.

In P1 v XYZ School, a tort case relating to the assault of a student by classmates, the Court held that a publication ban and sealing order is a final order as far as the media is concerned, but is an interlocutory order as far as the parties themselves are concerned. Since the newspaper’s appeal could proceed to the Court of Appeal as of right, the related appeal by some of the parties should also proceed at the same time without the need for them to seek leave.

In Mihoren v. Quesnel, a family law decision, the majority held that the motion judge erred in in refusing to set aside an administrative dismissal, given the explanation of lawyer inadvertence and given that the limitation period had not expired and a new claim could be commenced in any event. In dissenting reasons, Brown J.A. held the motion judge correctly refused to set aside the dismissal order and properly exercised her discretion to weigh the factors in the way she did. Even if the majority would have exercised its discretion differently, that was not a sufficient ground for appellate intervention. Brown J.A. remarked that the Court should resist the temptation to finely parse a judge’s reasons in search of error.

Other topics included the extension of time to appeal, the refusal to adjourn a Will challenge application (the appeal was allowed), striking pleadings, the dismissal of a request to transfer a matter from Small Claims Court to Superior Court, agreement on essential terms, and the assignment of an exclusive use benefit by a tenant renting a commercial condominium unit.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Stericycle ULC v. HealthPRO Procurement Services Inc., 2021 ONCA 878

Keywords: Contracts, Duty of Good Faith, Contractual Interpretation, Tendering, Tantramar Sanitation & Trucking Ltd. v. Sackville (Town), 2006 NBQB 13, Aquatech v. Alberta (Minister of Environment and Parks), 2019 ABQB 62, Double N Earthmovers Ltd. v. Edmonton (City), 2007 SCC 3, Ledcor Construction Ltd. v. Northridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, Charter Building Company v. 1540957 Ontario Inc. (Mademoiselle Women’s Fitness & Day Spa), 2011 ONCA 487, Bhasin v. Hrynew, 2014 SCC 71, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Wastech Services Ltd. v. Greater Vancouver Sewage and Drainage District, 2021 SCC 7, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4

Ontario (Labour) v. Miller Group Inc., 2021 ONCA 879

Keywords: Provincial Offices, Employment Law, Workplace Health and Safety, Evidence, Investigation, Lost Evidence, Unreasonable Search and Seizure, Presumption of Innocence, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, ss. 25(1) and 27(1)(a), CanadianCharter of Rights and Freedoms, ss. 8, 11(d), 24(1), 24(2), Provincial Offences Act, R.S.O. 1990, c. P. 33, ss. 121, 126, 131, 134, Criminal Code, R.S.C. 1985, c. C-46, s. 320.13(2), Ontario (Ministry of Labour) v. JR Contracting Property Services et al., 2011 ONCJ 316, R. v. Grant, 2009 SCC 32, R. v. Harrer, [1995] 3 S.C.R. 562, R. v. Spackman, 2012 ONCA 905, R. v. Darwish, 2010 ONCA 124, R. v. La, [1997] 2 S.C.R. 680, R. v. McCarthy (1996), 91 O.A.C. 348 (C.A.), rev’d [1996] 2 S.C.R. 460, R. v. Jageshur (2002), 169 C.C.C. (3d) 225 (Ont. C.A.), R. v. Dallas, 2002 BCSC 760, R. v. Egger, [1993] 2 S.C.R. 451, R. v. Abreha, 2019 ONCA 392, R. v. Hersi, 2019 ONCA 94, R. v. Stinchcombe, 1994 ABCA 113, aff’d [1995] 1 S.C.R. 754, R. v. Bero (2000), 137 O.A.C. 336, R. v. Knox (2006), 80 O.R. (3d) 515 (C.A.), R. v. Murray (1994), 75 O.A.C. 10, Ontario (Ministry of Labour) v. Lee Valley Tools Ltd., 2009 ONCA 387, R. v. White, [1999] 2 S.C.R. 417, R. v. Flis (2006), 205 C.C.C. (3d) 384 (Ont. C.A.), R. v. Devitt (1999), 139 C.C.C. (3d) 187 (Ont. C.A.)

Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Defences, Non est factum, Civil Procedure, Appeals, Extension of Time, Evidence, Affidavits, Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17, s. 9(3), Rules of Civil Procedure, Rule 25.07(4), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, Bobel v. Humecka, 2021 ONCA 757

Edgeworth v. Shapira, 2021 ONCA 871

Keywords: Torts, Unlawful Means Conspiracy, Intrusion Upon Seclusion, Conspiracy to Injure, Misrepresentation, Civil Procedure, Offers to Settle, Striking Pleadings, No Reasonable Cause of Action, Frivolous, Vexatious, Abuse of Process, Evidence, Medical Reports, Witnesses, Counsel, Removal of Solicitor of Record,  Rules of Civil Procedure, Rules 21, 25, 33.06, Agribrands Purina Canada Inc. v. Kasamekas et al., 2011 ONCA 460, Beaird v. Westinghouse, 43 O.R. (3d) 581

Segura Mosquera v. Rogers Communications Inc., 2021 ONCA 876

Keywords: Civil Procedure, Small Claims Court, Transfer, Rules of the Small Claims Court, O. Reg 258/98, r. 13.05(2), Autometric Autobody Inc. v. High Performance Coatings Inc., 2014 ONSC 6073, Crane Canada Co. v. Montis Sorgic Associates Inc., [2006] O.J. No. 1999, Farlow v. Hospital for Sick Children, 100 O.R. (3d) 213, Vigna v. Toronto Stock Exchange (1998)115 O.A.C. 393, Livingston v. Ould, 2 C.P.C. 41

Murphy v. Mullen, 2021 ONCA 872

Keywords: Torts, Trespass, Reasonable Foreseeability, Damages, Drainage Act, R.S.O. 1990, c. D.17, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, Michel v. Spirit Financial Inc., 2020 ONCA 398, 151 O.R. (3d) 583, Kates v. Hall, 1991 CanLII 1127 (B.C.C.A.), aff’g [1989] B.C.J. No. 1358 (S.C.), Wood Mountain Lakota First Nation No. 160 v. Goodtrack, 2020 SKCA 10, at paras. 24-26, leave to appeal refused, [2020] S.C.C.A. No. 345, De Wurstemberger v. Royalite Oil Co., [1935] 2 D.L.R. 177 (Alta. S.C. (A.D.)), Buckingham v. Graham (1996), 174 N.B.R. (2d) 330 (Q.B.), Shewish v. MacMillan Bloedel Ltd. (1990), 48 B.C.L.R. (2d) 290 (C.A.), Marsan v. G. T. P. Ry. Co. (1912), 4 Alta. L.R. 167 (S.C. (A.D.)), G.T. v. D. Saunders, 2014 ONSC 4422, Costello v. Calgary (City) (1995), 163 A.R. 241 (Q.B.), rev’d in part, 1997 ABCA 281, 152 D.L.R. (4th) 453, leave to appeal refused, [1997] S.C.C.A. No. 566., G.H.L., Allan v. New Mount Sinai Hospital (1980), 28 O.R. (2d) 356 (H.C.J.), rev’d (1981), 33 O.R. (2d) 603 (C.A.), Bettel v. Yim (1978), 20 O.R. (2d) 617 (Co. Ct.), Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.), Dykhuizen v. Saanich (District) (1989), 63 D.L.R. (4th) 211 (B.C.C.A.), Carr-Harris v. Schacter and Seaton, [1956] O.R. 994 (H.C.J.), Livingstone v. The Rawyards Coal Company (1880), 5 App. Cas. 25, Allen M. Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters, 2010)

Ruparell v. J.H. Cochrane Investments Inc., 2021 ONCA 880

Keywords: Contracts, Letters of Intent, Agreement on Essential Terms, Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.)

P1 v. XYZ School , 2021 ONCA 901

Keywords: Torts, Assault, Constitutional Law, Freedom of the Press, Civil Procedure, Open Court Principle, Publication Bans, Sealing Orders, Appeals, Jurisdiction, Orders, Final or Interlocutory, Canadian Charter of Rights and Freedoms, Hendrickson v. Kallio, [1932] O.R. 675, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Houle v. St. Jude Medical Inc., 2018 ONCA 88, Scherchanski v. Lewis (1980), 20 O.R. (2d) 370, Morse Shoe (Canada) Ltd. v. Zellers Inc., (1997) 100 O.A.C. 116, Pennington v. Hawley, [2005] O.J. No. 3591, CanWest MediaWorks Inc v. Canada (Attorney General), 2007 ONCA 567, Enterprise Fund (Trustee of) v. Fisherman (2009), 55 O.R. (3d) 794 (C.A.), Dagenais v. Canadian Broadcasting Corp. (1994), O.R. (3d) 816), Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, Sherman Estate v. Donovan, 2021 SCC 25, Hollinger Inc. v. The Ravelston Corporation, 2008 ONCA 207, Blair v. Ford, 2021 ONCA 841, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.)

Hordo v. Zweig , 2021 ONCA 893

Keywords: Civil Procedure, Appeals, Extension of Time, Jurisdiction, Orders, Removing Solicitors of Record, Final or Interlocutory, Rules of Civil Procedure, Rules 40, 61.16 (2.2), 61.16(4)(ii),  Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 7(5), 101, 102(10), D.G. v. A.F., 2014 ONCA 436, R. v. Gatfield, 2016 ONCA 23, Sun Life Assurance Co. v. York Ridge Developments Ltd., (1998), 116 O.A.C. 103 (C.A.), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784, Paulpillai Estate v. Yusuf, 2020 ONCA 655

Mihoren v. Quesnel , 2021 ONCA 898

Keywords: Family Law, Civil Procedure, Administrative Dismissal for Delay, Setting Aside, Standard of Review, Family Law Act, R.S.O. 1990, c. F.3, s. 29, Family Law Rules, O. Reg. 114/99, r. 2(2), 2(3), 2(4), 17(8), 41(5), 41(6), 41(6.1), 41(6.2), 41(9), Rules of Civil Procedure, Rule 48.14(1), Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 16(1)(c), H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, Reid v. Dow Corning Corp., 11 C.P.C. (5th) 80, Chrisjohn v. Riley, 2015 ONCA 713, Williams v. Williams, 2010 ONSC 2636, MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, R. v. G.F., 2021 SCC 20, Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, Hryniak v. Mauldin, 2014 SCC 7, R. v. Jordan, 2016 SCC 27, Louis v. Poitras, 2020 ONCA 815, Louis v. Poitras, 2021 ONCA 49

McTavish v. Reed , 2021 ONCA 885

Keywords: Wills and Estates, Will Challenges, Capacity, Real Property, Joint Ownership, Right of Survivorship, Personal Property, Insurance Proceeds, , Civil Procedure, Adjournments, Estate Administration Act, R.S.O. 1990, c. E. 22, ss. 2(1), Dhingra v. Dhingra, 2012 ONCA 261, Finlay v. Paassen, 2010 ONCA 204, Wood v. Farr Ford Ltd., 2008 CanLII 53848 (Ont. S.C.), Hansen Estate v. Hansen, 2012 ONCA 112

Urmila Holding, Inc. v. Anand Holdings Inc. , 2021 ONCA 886

Keywords: Contracts, Interpretation, Real Property, Condominiums, Declarations, Commercial Leases, Exclusive Use Clauses, Assignments, Nemo Dat Principle, Condominium Act, 1998, S.O. 1998, c. 19, ss. 134, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, All-Terrain Track Sales and Services Limited v. 798839 Ontario Limited, 2020 ONCA 129, Richcraft Homes Ltd. v. Urbandale Corporation, 2016 ONCA 622, Metropolitan Toronto Condominium Corporation No. 590 v. The Registered Owners and Mortgagees of Metropolitan Condominium Corp. No. 590, 2020 ONCA 471, Seto v. Peel Condominium Corporation No. 492, 2016 ONCA 548, Green v. Green, 2015 ONCA 541

Short Civil Decisions

Telus Communications Inc. v. Marche, 2021 ONCA 873

Keywords: Civil Procedure, Default Judgments, Costs

Michail v. London District School Board, 2021 ONCA 882

Keywords: Civil Procedure, Case Management, Appeals, New Issue on Appeal, Constitutional Law, Courts of Justice Act, RSO 1990, c C43, s 136

Herold Estate v. Canada (Attorney General), 2021 ONCA 883

Keywords: Civil Procedure, Costs, Herold Estate v. Canada (Attorney General), 2021 ONCA 579

Adam v. Ledesma-Cadhit , 2021 ONCA 891

Keywords: Civil Procedure, Costs, Public Interest Litigation

Patterson v. Patterson , 2021 ONCA 911

Keywords: Wills and Estates, Passing of Accounts, Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 42(4)(6), Lewis v. Lewis, 2020 ONCA 56


CIVIL DECISIONS

Stericycle ULC v. HealthPRO Procurement Services Inc., 2021 ONCA 878

[Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. (ad hoc)]

Counsel:

J. T. Curry, M. J. Jilesen and Z. Rosen, for the appellant, Stericycle ULC

D. Barry Prentice, for the respondent, HealthPRO Procurement Services Inc.

J. Parla, K. Booth and A. Butler, for the respondent, Provincial Health Services Authority

R. Sutton and J. Smith, for the respondent, Daniels Sharpsmart Canada Limited

Keywords: Contracts, Duty of Good Faith, Contractual Interpretation, Tendering, Tantramar Sanitation & Trucking Ltd. v. Sackville (Town), 2006 NBQB 13, Aquatech v. Alberta (Minister of Environment and Parks), 2019 ABQB 62, Double N Earthmovers Ltd. v. Edmonton (City), 2007 SCC 3, Ledcor Construction Ltd. v. Northridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, Charter Building Company v. 1540957 Ontario Inc. (Mademoiselle Women’s Fitness & Day Spa), 2011 ONCA 487, Bhasin v. Hrynew, 2014 SCC 71, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Wastech Services Ltd. v. Greater Vancouver Sewage and Drainage District, 2021 SCC 7, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4

facts:

In 2013, the respondent HealthPRO Procurement Services Inc. (“HealthPRO”) awarded the appellant Stericycle ULC (“Stericycle”) a contract for biomedical waste management services under which Stericycle provided such services to HealthPRO members, including the respondent Provincial Health Services Authority (“PHSA”). The 2013 Contract had an expiry date of May 31, 2020, and contained the following provision, referred to as the “Six Month Provision”:

AWARDED SUPPLIER: Agrees to hold the then current contract pricing firm for committed members up to a period of six (6) months beyond the expiry date (or any option years exercised) to allow, if required, for the implementation of a new contract to a different supplier.

In 2019, HealthPRO issued a request for qualification for a new national contract for biological waste management services. Both Stericycle and the respondent Daniels Sharpsmart Canada Limited (“Daniels”), a competitor of Stericycle, responded and qualified to bid when HealthPRO issued the public tendering process. The tendering process contemplated the award of 2020 Contracts to multiple eligible suppliers from which a HealthPRO member would select a “primary supplier” and could also designate a “secondary supplier” if more than one 2020 Contract was awarded.

Ultimately, both Stericycle and Daniels were awarded a 2020 Contract, referred to as the “Stericycle 2020 Contract” and the “Daniels 2020 Contract”. The 2020 Contracts contemplated a contractual “start date” of June 1, 2020. On June 2, 2020, HealthPRO advised Daniels that PHSA had selected it as PHSA’s primary supplier. However, in view of the fact that Daniels would not have a commissioned waste facility operating in British Columbia on June 1, 2020, PHSA insisted that Stericycle provide all of the waste management services required by its members pursuant to the terms of the Six Month Provision under the 2013 Contract. Subsequently, Daniels commenced providing services on December 1, 2020 after the expiration of the period covered by the Six Month Provision.

Stericycle brought an application alleging that HealthPRO and PHSA acted in bad faith and in breach of contract by awarding the primary supplier designation to Daniels. The application was dismissed by an order dated November 25, 2020.

Subsequently, Stericycle appealed.

issues:

(1) Did the application judge err in holding that Stericycle was obligated to provide services under the Six Month Provision without engaging in a formal exercise of contractual interpretation in reaching that conclusion?

(2) Did the application judge fail to consider the legal significance of two concurrent contracts for the same services?

(3) Did the application judge err in failing to consider that PHSA irrevocably elected Stericycle as PHSA’s primary supplier through its conduct?

(4) Did the application judge err in failing to properly apply the principles pertaining to the duty of good faith to the circumstances of this case?

(a) Did the application judge fail to consider a number of alleged breaches of the obligation to exercise the contractual discretion to select a primary supplier reasonably?

(b) Did the application judge err in failing to find that HealthPRO and PHSA breached the duty of honest performance of the Stericycle 2020 Contract?

holding:

Appeal dismissed.

reasoning:

(1) No.

The correct standard of review was palpable and overriding error. The Court held the application judge properly applied the well-established principles of contractual interpretation as set out in Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, regarding the Six Month Provision and the start date under the 2020 Contracts. Accordingly, the application judge’s conclusions did not reflect any palpable and overriding errors.

Respecting the Six Month Provision, the Court held the finding of the application judge that Stericycle was obligated to supply services under the Provision was entirely reasonable for several reasons. First, on its plain language the Six Month Provision applied in the case of “implementation of a new contract to a different supplier”. The Court held that in this case, PHSA implemented a new contract, the Daniels 2020 Contract, and selected a new supplier: Daniels.

Second, the Court rejected Stericycle’s argument that paragraph 2(s) of the terms and conditions of the 2013 Contract, rather than the Six Month Provision, governed transition arrangements. Specifically, the Court held that nothing in paragraph 2(s) suggested it was intended to be the exclusive provision regulating transition arrangements, and further, it appeared to be directed towards different situations altogether.

Third, the Court saw no error in the application judge not considering the 2020 Contract’s equivalent Six Month Provision, as the newer provision dealt with multiple suppliers and did not add anything of interpretive value in respect of the 2013 Contract.

Fourth, the Court rejected Stericycle’s argument that the Six Month Provision was solely a pricing provision, as such an interpretation would render the provision redundant as it would have no practical utility unless accompanied by an obligation to supply. Further, the factual matrix supported such a conclusion, as the introduction of a new supplier would require a considerable transition period and it would be neither “efficient nor realistic” to require a new supplier to begin supplying services on the start date of the 2020 Contracts.

(2) No.

The Court noted both this issue, and the third issue below, were effectively determined by the conclusion on the first issue, as Stericycle’s position was predicated on acceptance of its interpretation of the Six Month Provision.

The Court rejected Stericycle’s submission that the circumstances of two agreements dealing with the same subject matter created an inference that the later was intended to displace the earlier. Specifically, the Court held the concept of the Six Month Provision necessarily entailed the possibility of concurrent contracts for the duration of the Six Month Provision. Accordingly, PHSA had a correlative right to require services under both the Six Month Provision and the 2020 Contract.

(3) No.

After referencing the doctrine of election as set out in Charter Building Company v. 1540957 Ontario Inc. (Mademoiselle Women’s Fitness & Day Spa), 2011 ONCA 487, the Court held that, contrary to Stericycle’s assertions, PHSA was not faced with “two inconsistent courses of action” regarding the options under the 2020 Contract to designate Stericycle as either the primary or secondary supplier. Rather, a third option existed: the exercise of the Six Month Provision. Accordingly, PHSA’s exercise of the Six Month Provision did not amount to an election that Stericycle was the primary supplier under the 2020 Contract.

(4) No.

Stericycle argued the application judge erred in failing to recognize that performance of the Stericycle 2020 Contract and, in particular, PHSA’s exercise of its discretion in selecting the primary supplier, was subject to the organizing principle of good faith. The Court set out the two existing doctrines as manifestations of the principle of good faith recognized by the Supreme Court: (a) the duty to exercise a contractual discretion in good faith; and (b) the duty of honest performance of a contract. The Court addressed each in turn, set out below.

(a) No.

The Court held the essence of Stericycle’s ground of appeal on this issue was that the application judge erred in failing to find that, in excusing Daniels from its obligations to commence providing services under the Daniels 2020 Contract on June 1, 2020, HealthPRO and PHSA breached a duty of good faith owed to Stericycle.

The Court held that, in the circumstances, it was not necessary to determine whether HealthPRO or PHSA owed a duty of good faith to Stericycle to exercise a contractual discretion reasonably in the selection of the primary supplier. Further, even if such a duty was assumed, the Court held neither HealthPRO nor PHSA breached that duty for two reasons.

First, Stericycle could not assert a breach of a duty of good faith in respect of the selection of Daniels as the principal supplier for two alternative reasons: (1) Stericycle was not a party to the Daniels 2020 Contract, and accordingly could not assert a breach of a duty of good faith in the performance of that contract; and (2) even if Stericycle had standing, the application judge’s determination that the start date in the 2020 Contracts did not relate to the provision of services excluded a finding of any such breach. The Court held the application judge’s contractual interpretation on this point was free of reversible error.

Second, PHSA was entitled to make the election it did on the legal basis of the Six Month Provision, and therefore did not breach any obligation owed to Stericycle in requiring it to continue to supply under the Six Month Provision.

(b) No.

Stericycle alleged HealthPRO acted dishonestly in providing information about the Six Month Provision to Daniels, in relying on said provision, and in relying on the fact that Daniels would be able to obtain expedited authorization with PHSA’s assistance. Stericycle also alleged PHSA acted dishonestly by not informing Stericycle much earlier than June 2, 2020 of its intended reliance on the Six Month Provision.

The Court held that none of the allegations satisfied the test set out in C.M. Callow for demonstration of dishonest performance of the Stericycle 2020 Contract. Specifically, the Court held none of the allegations involved lying to or misleading Stericycle. Further, HealthPRO was entitled to advise PHSA, as its member, of its rights under the 2013 Contract, and the evidence did not establish such communication directly resulted in PHSA’s decision to select Daniels as primary supplier. Finally, the evidence also failed to establish bad faith in the communication of PHSA’s position to Stericycle regarding their decision to exercise the Six Month Provision.


Ontario (Labour) v. Miller Group Inc., 2021 ONCA 879

[Watt, Benotto and Trotter JJ.A.]

Counsel: 

G. Ferraro, for the appellant

N. Keith and M. Lipinski, for the respondents

Keywords: Provincial Offices, Employment Law, Workplace Health and Safety, Evidence, Investigation, Lost Evidence, Unreasonable Search and Seizure, Presumption of Innocence, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, ss. 25(1) and 27(1)(a), CanadianCharter of Rights and Freedoms, ss. 8, 11(d), 24(1), 24(2), Provincial Offences Act, R.S.O. 1990, c. P. 33, ss. 121, 126, 131, 134, Criminal Code, R.S.C. 1985, c. C-46, s. 320.13(2), Ontario (Ministry of Labour) v. JR Contracting Property Services et al., 2011 ONCJ 316, R. v. Grant, 2009 SCC 32, R. v. Harrer, [1995] 3 S.C.R. 562, R. v. Spackman, 2012 ONCA 905, R. v. Darwish, 2010 ONCA 124, R. v. La, [1997] 2 S.C.R. 680, R. v. McCarthy (1996), 91 O.A.C. 348 (C.A.), rev’d [1996] 2 S.C.R. 460, R. v. Jageshur (2002), 169 C.C.C. (3d) 225 (Ont. C.A.), R. v. Dallas, 2002 BCSC 760, R. v. Egger, [1993] 2 S.C.R. 451, R. v. Abreha, 2019 ONCA 392, R. v. Hersi, 2019 ONCA 94, R. v. Stinchcombe, 1994 ABCA 113, aff’d [1995] 1 S.C.R. 754, R. v. Bero (2000), 137 O.A.C. 336, R. v. Knox (2006), 80 O.R. (3d) 515 (C.A.), R. v. Murray (1994), 75 O.A.C. 10, Ontario (Ministry of Labour) v. Lee Valley Tools Ltd., 2009 ONCA 387, R. v. White, [1999] 2 S.C.R. 417, R. v. Flis (2006), 205 C.C.C. (3d) 384 (Ont. C.A.), R. v. Devitt (1999), 139 C.C.C. (3d) 187 (Ont. C.A.)

facts: 

The appeal arose from a workplace accident that injured two individuals.

Miller Group Inc. ( “Miller”) was contracted to pave a road in Northern Ontario. G.F., an employee of Miller, supervised the job. A piece of heavy equipment, a rubber tire roller, was used in the paving project. The roller went out of control and it ended up in a ditch. The operator of the roller was hospitalized for 11 days; another employee suffered less serious injuries.

The incident was reported to the Ministry of Labour (“MOL”). Investigators attended at the scene and seized the roller under the Occupational Health and Safety Act (“OHSA”). Before the roller was inspected, a lawyer for Miller wrote to the MOL inspectors and alleged that the machinery had been unlawfully seized. He further directed that no inspection could be performed unless his client consented.

Despite the lawyer’s letter, the inspection proceeded. This involved disassembling the roller. Before releasing the roller back to Miller, the inspectors offered to re-assemble it. Miller declined the offer and gave the roller away as scrap without conducting any testing of its own.

Miller (as an employer) and G.F. (as a supervisor) were charged with workplace safety offences under ss. 25(1) and 27(1)(a) of the OSHA, respectively. Miller brought a pre-trial Charter application alleging infringements of its rights under ss. 8 and 11(d) of the Charter.

The Justice of the Peace dismissed the s. 8 claim, but found that the conduct of the inspectors infringed s. 11(d) because: (a) they should have halted their inspection in light of the lawyer’s letter; (b) they failed to keep proper notes; (c) they did not follow internal policy manuals; and (d) their testimony was conflicting. The Justice of the Peace excluded the results of the inspection under either ss. 24(1) or (2) of the Charter. The Crown called no further evidence and the charges were dismissed against Miller and G.F.

The Crown’s appeal to a judge of the Ontario Court of Justice (“the appeal judge”) was dismissed. She found that the Justice of the Peace made no legal errors in excluding the evidence as a remedy for the breach of s. 11(d) of the Charter. She determined that it was unnecessary to address the submissions of Miller and G.F. that there was also a breach s. 8 of the Charter.

Nordheimer J.A. granted the Crown’s application for leave to appeal under s. 131 of the Provincial Offences Act.

issues:

(1) Did the Justice of the Peace err in finding that the lawyer’s letter required the inspectors to only conduct an examination of the machine in the presence of the representative(s) of Miller?

(2) Did  both courts below err in their methodological approach to the claim that the disassembly of the roller amounted to a breach of s. 11(d) of the Charter?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The lawyer’s letter insisted on the rights of knowledge and consent in the investigative process. This assertion morphed into an insistence on the right to be present during the inspection. The lawyer’s letter never made such an extravagant claim.

In the criminal law context, the right to make full answer and defence in s. 11(d) of the Charter does not extend so far: R. v. Darwish, 2010 ONCA 124, at paras. 29-31. An accused person does not have a “constitutional right to direct the conduct of a police investigation of which she or he is the target”: Spackman, at para. 108. The police are not required to obtain the consent of the accused person before taking investigative steps. An accused person has no right to insist that further or other investigative steps be taken. Nor are the police required to permit the target of an investigation to be present during the inspection or testing of physical evidence.

Criminal investigations carry the potential for much more significant consequences than OHSA investigations. If the former does not attract such a right, no such right should exist in the latter context. It would be unreasonable to conclude that the subjects of OHSA investigations have Charter rights above and beyond those afforded to subjects of true criminal investigations.

Moreover, as the Crown submits, a requirement of knowledge and consent, let alone presence, could thwart or stall timely investigations, potentially endangering the very people the OHSA is meant to protect (i.e. workers) and the public in general.

The reach of the OHSA is broad. Section 1 of the Act defines a “workplace” as “any land, premises, location or thing at, upon, in or near which a worker works.” Investigators must be permitted to respond to workplace incidents swiftly and efficiently. Serious disruption to the OHSA mandate could result if investigators were constitutionally required to accommodate the type of request made in this case.

(2) Yes.

Ultimately, this was a case of lost or destroyed evidence. The procedure for adjudicating these types of claims has long been established. Lost or destroyed evidence claims are governed by ss. 7 and 11(d) of the Charter, tied to an individual’s right to a fair trial and right to make full answer and defence. In this case, both courts below erred in finding a breach of s. 11(d) in the absence of a finding of prejudice. Moreover, the appeal judge further erred in relying on R. v. Harrer as a route to exclude the evidence.

(a) The Appropriate Legal Principles: the Lost Evidence Regime

As part of its disclosure obligations under s. 7 of the Charter, the Crown has a duty to preserve relevant evidence: R. v. Egger, at para. 17. When relevant evidence is lost or destroyed, the Crown must satisfy the court that it was not lost or destroyed as a result of unacceptable negligence: La, at para. 20. If the Crown satisfies this threshold, s. 7 has not been breached; conversely, a failure to establish that the destruction was not due to unacceptable negligence will amount to an infringement of s. 7. Depending on the circumstances, it may also amount to an abuse of process: La, at para. 23.

In order to obtain a stay of proceedings, it must be established that the loss or destruction of evidence compromises the ability of the accused to make full answer and defence, or that irreparable harm would be caused to the integrity of the justice system if the prosecution were allowed to continue: La, at para. 24. However, “[a] stay of criminal proceedings is the appropriate remedy only in extraordinary circumstances”: Hersi, at para. 25.

(b) The Timing of the Application and the Need for Actual Prejudice

The timing of the application is critical. Generally speaking, a motion for a stay based on lost or destroyed evidence should not be brought at the outset of the trial. It should be brought at the end of trial.

In this case, the appropriateness of a stay was not “manifest” at the outset of the proceedings for the simple reason that there was no evidence that the right to make full answer and defence had been impaired by the conduct of the investigators. Miller and G.F. failed establish any prejudice at all. Miller refused the offer to reassemble the roller and gave it away for scrap without further inspection.

The Court has previously recognized that failure to pursue disclosure with reasonable diligence may weigh against a claim that the Crown’s failure to preserve evidence resulted in a breach of s. 7 Charter rights. In this case, the lawyer’s letter, albeit misguided, was a timely attempt to exert some control over the integrity of the roller. However, this was all undone by the manner in which the roller was disposed of – something entirely of Miller’s own doing.

Both the Justice of the Peace and the appeal judge erred in not following the approach dictated in Bero and subsequent decisions. The motion should not have been addressed at the beginning of the trial. Moreover, even though the Justice of the Peace refused to stay the proceedings, there was no basis to grant any remedy without evidence that the right to full answer and defence had been compromised by the MOL’s handling of the roller. At best, the Justice of the Peace speculated on the issue.

(c) The Reliance on Harrer was Misplaced

Resort to the Harrer line of cases was inappropriate in this case. It amounted to a circumvention of the principles in Darwish and Spackman. Those cases held that there is no right of an accused person to direct an investigation. Purporting to apply Harrer, the appeal judge achieved the opposite result by justifying a Charter remedy for this very reason.

Even if the Harrer line of cases was applicable, Miller and G.F. run into the same problem – there was no evidence of prejudice to their right to make full answer and defence. In Spackman, Watt J.A. held that “The remedy of evidentiary exclusion under s. 24(1) is not for the asking. An accused who seeks this remedy must establish a breach of his or her Charter rights: the right to a fair trial in accordance with ss. 7 and 11(d) of the Charter.” Miller and G.F. failed to do so. Any prejudice they suffered was self-inflicted – they declined the offer to have the roller reassembled and then they got rid of it. The Justice of the Peace found that this conduct seemed “odd.” In fact, it was fatal to any claim to Charter relief.

In the result, a new trial was ordered.


Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870

[Nordheimer J.A.]

Counsel:

P. Robson, for the moving party

A. Moten, for the responding party

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Defences, Non est factum, Civil Procedure, Appeals, Extension of Time, Evidence, Affidavits, Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17, s. 9(3), Rules of Civil Procedure, Rule 25.07(4), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, Bobel v. Humecka, 2021 ONCA 757

facts:

The defendant brought this motion for an order extending the time for her to appeal the trial judgment.

The action arose out of a failed residential real estate transaction. The moving party (defendant) agreed to purchase a new home built by the responding party in the City of Vaughan. The moving party failed to close, and the responding party sued her for damages. The responding party brought a motion for summary judgment, which the motion judge dismissed. The motion judge directed the trial of certain issues, which came on for trial before the same judge as had heard the summary judgment motion. After a two-day trial, the trial judge found in favour of the responding party and awarded damages of approximately $200,000. The trial judge’s reasons are dated February 2, 2021. The parties disagreed on the calculation of the damages, and the issue was resolved on March 2, 2021, when the judgment was signed and entered. The signed and entered judgment bears the date of February 2, 2021.

issues:

Preliminary Issues:

(1) Should the responding party be permitted to include in its responding material reference to certain settlement discussions that occurred between the parties after the trial judgment?

(2) Should the appeal period run from the March 2, 2021 date, rather than February 2, 2021 date?

Primary Issue:

(3) Should the time for appeal be extended?

holding:

Motion dismissed.

reasoning:

(1) Yes.

Discussion in the responding material referencing certain settlement discussions that occurred between the parties after the trial judgment cannot be included in the record. Settlement discussions are presumptively privileged, and cannot be considered.

(2) No.

The appeal period runs from the time when the reasons determining the appeal are released. Procedural issues that may arise after the reasons are released, including disagreements over calculations or dates or interest or the like, do not change the date when the action was determined, which was February 2, 2021, not March 2, 2021.

(3) No.

The moving party did not satisfy her obligation to meet the four factors considered in the well-established test for extending the time for an appeal:

i. whether the moving party formed a bona fide intention to appeal within the relevant time period;

The moving party’s evidence as to the intention to appeal was unclear. It is not apparent why neither of her previous nor current lawyer pursued an appeal if that was her desire. In her affidavit, the moving party ties her intention to appeal to her communications with her current counsel in April 2021, two months after the trial decision was released. That date is questionable, as the moving party did not sign a retainer agreement with her current counsel until May 19, 2021. Her current lawyer did not contact the responding party’s lawyers until June 15, 2021.

The moving party’s affidavit cannot be relied on as she does not speak English, and her counsel did not follow proper procedure in its production. When Justice Nordheimer inquired how the moving party swore her affidavit, her counsel stated that “everyone” knows that affidavits are prepared by lawyers and clients simply sign what the lawyers tell them to sign. This is not how any affidavit is properly prepared. If the deponent does not understand English, the affidavit must be translated for the deponent and the jurat on the affidavit must be changed to reflect that fact.

ii. the length of, and explanation for, the delay in filing;

There was no reasonable explanation for the delay in launching this motion until July 23, 2021. The moving party, at best, formed her intention to appeal in April 2021. The only explanation for why the motion was not launched until July 2021 is an asserted delay in getting the file from trial counsel, which is not a satisfactory explanation. The moving party had the trial judge’s reasons for a couple months by April, the time to appeal was already passed, and steps ought to have been taken immediately to address that delay.

iii. any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay;

There was no prejudice here that would preclude an extension of time. The fact that the responding party may be delayed in enforcing its judgment, and will incur legal expenses responding to the appeal, is not the type of prejudice this factor is directed at, otherwise every respondent to a proposed appeal would be able to satisfy the prejudice factor.

iv. the merits of the proposed appeal.

There was very little merit in this appeal. Three grounds of appeal were urged on the motion: (1) non est factum; (2) lack of independent legal advice; and (3) a conflict between the trial evidence and the Agreed Statement of Facts filed. First, affirmative defences must be pleaded. Non est factum was not pleaded, thus was not considered by the trial judge. Second, the moving party contracted directly to purchase the home, thus there was no requirement on the responding party to ensure that she had independent legal advice before signing the agreement. Last, the trial judge decided on the facts the parties agreed to, and this was not an error, even if a non-party had a different position.

The moving party failed to meet her obligations to satisfy the necessary factors that would warrant extending the time for an appeal.


Edgeworth v. Shapira, 2021 ONCA 871

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

R. Galati, for A.M.E.

T. M. Slahta, for K.S. and A. E.

T. Burke, for B.L

D. Zuber and D. Olevson, for Northbridge Insurance Company

Keywords: Torts, Unlawful Means Conspiracy, Intrusion Upon Seclusion, Conspiracy to Injure, Misrepresentation, Civil Procedure, Offers to Settle, Striking Pleadings, No Reasonable Cause of Action, Frivolous, Vexatious, Abuse of Process, Evidence, Medical Reports, Witnesses, Counsel, Removal of Solicitor of Record,  Rules of Civil Procedure, Rules 21, 25, 33.06, Agribrands Purina Canada Inc. v. Kasamekas et al., 2011 ONCA 460, Beaird v. Westinghouse, 43 O.R. (3d) 581

facts:

A.M.E. appeals an order which dismissed most of the claims in her action. A.M.E. was injured in a bicycle accident and commenced an action against a person who was insured by Northbridge General Insurance. C. LLP was retained by A.M.E. and an offer to settle was made. Later, a defence medical assessment was conducted and completed by Dr. L. No medical report was delivered. Afterwards, the outstanding settlement offer was accepted by the defence and the action was formerly dismissed.

Two years later, A.M.E. brought the action against counsel for Northbridge, Northbridge, and Dr. L. She alleged that the respondents conspired to suppress Dr. L’s expert report. She sought damages for unlawful means conspiracy, intrusion upon seclusion, conspiracy to injure, and misrepresentation. The respondents moved to strike the pleadings under Rules 21 and 25 of the Rules of Civil Procedure and to have the plaintiff’s C. LLP removed as solicitor of record. The motion judge dismissed the action against Dr. L, Northbridge and the named partner of the firm representing Northbridge. The claims against counsel for Northbridge, K.S., were dismissed, except for the claim for misrepresentation. C. LLP was removed as solicitor of record.

issues:

(1) Did the motion judge err in striking the claims for conspiracy and intrusion upon seclusion?

(2) Did the motion judge apply the wrong test on a motion to strike?

(3) Did the motion judge disregard the facts alleged in the pleadings?

(4) Did the motion judge err in removing C. LLP as solicitor of record?

holding:

Appeal dismissed.

reasoning:

(1) No.

Rule 33.06 requires that the examining health practitioner prepare a written report of any examination and share it with the parties. The motion judge held that the failure to prepare such a report was not the kind of “wrongful act” envisioned in the jurisprudence dealing with unlawful means conspiracy.

The appellant had submitted to the medical examination requested by the defence willingly and with justification, in the context of her own personal injury claim. The tort of intrusion upon seclusion was not made out. The damages in this case were the result of the plaintiff’s choice with the advice of counsel, to finalize the settlement even though she knew that a written medical report had not been completed.

(2) & (3) No.

The motion judge correctly identified the essential elements of each cause of action, considered the facts and applied the correct test under the rules.

(4) No.

The misrepresentation claim turns on what was said between C. LLP and K.S. There is an obvious conflict requiring that C be removed from the record because C will likely be required to testify.


Segura Mosquera v. Rogers Communications Inc., 2021 ONCA 876

[Lauwers, Paciocco and Thorburn JJ.A.]

Counsel:

G. M. S. M., acting in person

M.-E. Jean and K. Lambert, for the respondent Rogers Communication Inc.

S. Musallam, for the Attorney General of Canada representing the respondent the Canadian Radio-Television and Telecommunications Commission

J. Wilson, for the respondent Commission for Complaints for Telecom-Television Services

Keywords: Civil Procedure, Small Claims Court, Transfer, Rules of the Small Claims Court, O. Reg 258/98, r. 13.05(2), Autometric Autobody Inc. v. High Performance Coatings Inc., 2014 ONSC 6073, Crane Canada Co. v. Montis Sorgic Associates Inc., [2006] O.J. No. 1999, Farlow v. Hospital for Sick Children, 100 O.R. (3d) 213, Vigna v. Toronto Stock Exchange (1998)115 O.A.C. 393, Livingston v. Ould, 2 C.P.C. 41

facts:

In January 2017, G. S. commenced a Small Claims Court action against Rogers Communications Inc. (“Rogers”) alleging she was overcharged, her services were improperly terminated, and she received a different phone after bringing in her phone to a mall kiosk for repair.

On June 16, 2018, G. S. filed a notice of application seeking a transfer of her Small Claims Court action to the Superior Court and the addition of the Canadian Radio-Television and Telecommunications Commission (CRTC) and Commission for Complaints for Telecom-Television Services (CCTTS) as defendants.

In her notice of application G. S. also sought orders for disclosure of information from the respondent Rogers and her landlord, a waiver of the fees for the audio digital records in relation to hearings, an order that the Ministry of the Attorney General disclose the legislation supporting a denial of a fee waiver, and an order that Rogers not reassign her phone number to other subscribers until the matter was dealt with.

Further, G. S. indicated she also sought additional damages for malice and intentional infliction of emotional distress as a result of Rogers’ assignment of her cellphone number to other users and possible violations of her constitutional and privacy rights, equitable remedies, and she intended to take advantage of pre-trial discovery rights unavailable to her in a Small Claims action. G. S. also argued that her claim raised issues of public importance, because many Canadians were disadvantaged by the current system in place for consumer complaints about the practices of wireless service providers.

After carefully outlining the principles governing the transfer of cases from the Small Claims Court to the Superior Court, the application judge declined to order the transfer. Subsequently, G. S. appealed.

issues:

(1) Should G. S. be permitted to transfer her Small Claims Court action to the Superior Court of Justice?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court repeated the reasoning of the application judge and saw no error in her conclusion that G. S. had not shown that a transfer to the Superior Court was required for the just and fair resolution of her claim. The reasoning is set out below.

The application judge noted that transfers are permitted only where a claim is not capable of being justly and fairly resolved using the procedures available in Small Claims Court, and further, the onus is on the party seeking the transfer. The application judge set out that the considerations in such a case include:

a)   the complexity of the litigation,

b)   the role and importance of pre-trial discovery and expert evidence,

c)    whether the case raises issues of general importance, and

d)   the desire for a just and fair determination.

After reviewing the evidence before her and noting that no statement of claim had been provided by G. S. despite Master Kaufman’s order requiring her to do so, the application judge concluded G. S. had not demonstrated her claim could not be justly and fairly resolved by the Small Claims Court. The Court noted there were ample grounds to support the application judge’s conclusion.

First, the application judge noted G. S.’s failure to file a proposed statement of claim with the application to transfer made it difficult for her to argue that her claim exceeded the Small Claims Court monetary cap. The Court concluded the application judge correctly held that, “She is…asking the court to speculate about what she could claim, based on her notice of application, supporting affidavit and factum.”

Second, the materials G. S. provided did not support a claim for equitable relief.

Third, G. S. failed to provide material facts to support a proposed claim against either the CCTTS or the CRTC or what relief she would seek if such an order were granted.

Fourth, G. S. contended that she required pre-trial discovery from Rogers and other third parties such as her landlord, but it was not clear what discovery G. S. could obtain in a Superior Court action that she could not obtain in the Small Claims Court. Further, G. S. failed to provide the application judge with any basis upon which any such orders could be made, and in any event, G. S. had not sought a production order at any time during the Small Claims Court action.

Fifth, the waiver of fees for audio digital recordings, the order permitting her to produce documents in digital format only, and the addition of proposed defendants and costs where warranted, could be addressed by the Small Claims Court.

Finally, although G. S. claimed her experience with Rogers’ billing practices and the CCTTS complaints process were issues common to many Canadians, the Court held the application judge correctly noted that, “I cannot, however, gauge whether [G. S.’s] grievances amount to a viable claim that would engage broader public interests, in the absence of a draft statement of claim that would set out exactly what she is complaining about and what remedies she is seeking.”

G. S. also submitted the application judge erred in law by denying her the right to file reply costs submissions. However, the application judge noted the appellant did not file any costs submissions. Accordingly, the Court saw no error with the application judge’s reasons.

Therefore, the appeal was dismissed.


Murphy v. Mullen, 2021 ONCA 872

[Rouleau, Hoy and Thorburn JJ.A.]

Counsel:

L. M. Najjar, for the appellants

N. Jomaa, for the respondents

Keywords: Torts, Trespass, Reasonable Foreseeability, Damages, Drainage Act, R.S.O. 1990, c. D.17, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, Michel v. Spirit Financial Inc., 2020 ONCA 398, 151 O.R. (3d) 583, Kates v. Hall, 1991 CanLII 1127 (B.C.C.A.), aff’g [1989] B.C.J. No. 1358 (S.C.), Wood Mountain Lakota First Nation No. 160 v. Goodtrack, 2020 SKCA 10, at paras. 24-26, leave to appeal refused, [2020] S.C.C.A. No. 345, De Wurstemberger v. Royalite Oil Co., [1935] 2 D.L.R. 177 (Alta. S.C. (A.D.)), Buckingham v. Graham (1996), 174 N.B.R. (2d) 330 (Q.B.), Shewish v. MacMillan Bloedel Ltd. (1990), 48 B.C.L.R. (2d) 290 (C.A.), Marsan v. G. T. P. Ry. Co. (1912), 4 Alta. L.R. 167 (S.C. (A.D.)), G.T. v. D. Saunders, 2014 ONSC 4422, Costello v. Calgary (City) (1995), 163 A.R. 241 (Q.B.), rev’d in part, 1997 ABCA 281, 152 D.L.R. (4th) 453, leave to appeal refused, [1997] S.C.C.A. No. 566., G.H.L., Allan v. New Mount Sinai Hospital (1980), 28 O.R. (2d) 356 (H.C.J.), rev’d (1981), 33 O.R. (2d) 603 (C.A.), Bettel v. Yim (1978), 20 O.R. (2d) 617 (Co. Ct.), Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.), Dykhuizen v. Saanich (District) (1989), 63 D.L.R. (4th) 211 (B.C.C.A.), Carr-Harris v. Schacter and Seaton, [1956] O.R. 994 (H.C.J.), Livingstone v. The Rawyards Coal Company (1880), 5 App. Cas. 25, Allen M. Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters, 2010)

facts:

The appellants appeal the trial judge’s assessment of damages relating to liability for trespassing on the respondent’s property.

The respondent owns a farm property, with a drainage ditch and column of trees approximately 2,000 ft long and 60ft deep on the property line. The appellants entered the respondent’s property and cut and removed half the trees to improve drainage on their property and its viability for farming. After the respondent complained, the appellants petitioned the town for a municipal drain to address the issue on their property, which was eventually constructed. The costs assessed were $77,032 for the respondent’s property and $24,968 for the appellants’ property.

The trial judge found the appellants had not established any licence to do any work on the respondent’s property, thus were liable for trespass. The appellants were ordered to pay the respondent $213,471.27 in damages. This amount was based on the trees’ value, placement, size, and replacement cost, as well as the cost of surveying the land and the loss of amenities. The trial judge found that trees were important to the respondent, who intended to build a house on the property near the tree line and retire there. The trial judge rejected the appellants’ argument that the trees would have had to be removed regardless given the subsequent placement of the open drain on the property line, because the municipality could have placed the drain in a different location or considered different options.

issues:

(1) Foreseeability-related arguments:

(a) Did the trial judge err in finding it was foreseeable that a person building a house on the property would have an affinity for trees, and would use farming land to plant replacement trees?

(b) Did the trial judge in not assuming that the respondent would have used her land in the usual way it was being used at the time of the trespass?

(2) Other arguments related to the respondent’s intention to build a house on her property and her affinity for trees:

(a) Did the trial judge err by not finding the respondent, as the plaintiff had the onus of providing the court with cogent evidence on which to assess damages?

(b) Did the trial judge erred in her application of the test in Kates v. Hall through use of a subjective standard and infusing the reasonable person with the respondent’s alleged affinity for tree?

(c) Should the trial judge have discounted the damages award to reflect the low probability that the respondent would actually build a house?

(3) Drainage-related arguments:

(a) Did the trial judge engage in improper judicial speculation when she rejected the argument that the trees would have had to have been removed regardless, given the subsequent placement of the municipal drains?

(b) Should the trial judge have reduced the damages awarded to account for the “high probability” that the trees would, in any event, have had to have been removed?

(c) Did the trial judge err in accepting the respondent’s evidence that her property had sufficient drainage, over that of another witness that it did not?

(4) Other arguments:

(a) In assessing damages, did the trial judge err by simply taking one third of the respondent’s arborist’s estimated cost for replacing the entire tree line?

(b) Did the trial judge err in preferring the evidence of the respondent’s arborist that a deer fence was necessary to protect the new trees, over that of the appellants’ arborist that it was not?

(c) Was the trial judge’s choice of 200 metres as the length of the fence line on which the trees should be replaced and her award of $75,000 for loss of amenities arbitrary and unsupportable?

(d) Was the award of $213,471 inequitable and wholly erroneous, thus justifying appellate intervention?

holding:

Appeal dismissed.

reasoning:

(1) Foreseeability-related arguments:

(a) No.

There was no merit to the appellants’ foreseeability argument. The trial judge assessed damages from the perspective of a reasonable person in the respondent’s position. It is difficult to imagine that the actions of a reasonable person would not be reasonably foreseeable. A reasonable person would wish to replace the privacy and the sound screen of the tree line along the property adjacent to the proposed building area for the home, plus an additional length. The trial judge considered that any replacement trees would occupy land that could be used for agriculture, thus did not accept that a reasonable person would extend the trees for the entire length of the former tree line.

(b) No.

There is no merit to the appellants’ argument that the trial judge was required to assume that the plaintiff would use her land in the usual way it was used at the time of trespass. None of the appellants’ authorities establish that the trial judge was under an obligation to “assume” that the respondent would only use the land for farmland. The trial judge accepted the respondent’s evidence that she intended to build a house on the corner of the property close to the tree line, and that a reasonable person in the respondent’s position would replace a portion of the tree line that the appellant removed.

(2) Other arguments related to the respondent’s intention to build a house on her property and her affinity for trees:

(a) No.

The trial judge recognized that the respondent had the onus of establishing the damages arising from the appellants’ trespass. The trial judge was entitled to rely on the respondent’s evidence that she intended to build a house on her property, and would act on her intention. The trial judge did not reverse the onus of proof.

(b) No.

The trial judge’s conclusion that a reasonable person would replace 200 metres of the tree line was grounded in multiple factors, including privacy, the natural habitat, and the screen against noise and light that the trees provided. It was open to the trial judge to conclude that a reasonable person who intended to build a house would value these elements and want them restored, to a reasonable degree.

(c) No.

It is not clear that the trial judge thought there was a low probability that the respondent would build a house. It is implicit from the trial judge’s reasons as a whole that she accepted that the respondent would probably act on her intention to build a house on her property. In any event, it was not relevant whether the house will ultimately be built, but rather what remedial work the respondent would reasonably undertake.

(3) Drainage-related arguments:

(a) No.

The trial judge found that, if the trees remained in place, the respondent would most likely have opposed their removal to accommodate a municipal drain, which could possibly have been placed in a different location, or different drainage options could have been considered. This was not improper judicial speculation, but instead reflected the appellants’ failure to adduce evidence to support their assertion.

(b) No.

The loss of the trees was a past, certain loss and it was open to the trial judge to apply the approach in Kates v. Hall in assessing the respondent’s damages for that past, certain loss.

(c) No.

The trial judge’s finding was supported by the record and the path to her conclusion is apparent. The respondent’s evidence that the drainage was sufficient was supported by the appellants’ own evidence that drainage was a much larger issue on their side. It was after the trees were cut down that the respondent’s property had drainage problems.

(4) Other Arguments:

(a) No.

There was no basis to interfere with the trial judge’s calculation of the cost of replacing the trees along one third of the tree line. The expert evidence was that 480 smaller trees were required to replace the tree screen that was removed from the property. This number was well in excess of the number of trees removed because the replacement trees were much smaller and the larger number was required to generate an equivalent screen within a reasonable period of time.

(b) No.

There was evidence supporting the trial judge’s finding. She was entitled to prefer the evidence of the respondent’s expert over that of the appellants. This was not a basis for interfering with the trial judge’s damages assessment.

(c) No.

These determinations are not arbitrary. The respondent testified that she wanted to replace the entire tree line, which the trial judge concluded was unreasonable, which is why she chose 200 metres. The trial judge explained the rationale for the $75,000 amount and how she determined it.

(d) No.

This argument was unfounded. The appellants did not identify any reviewable error in the trial judge’s assessment of damages and the assessment was not palpably incorrect or wholly erroneous.


Ruparell v. J.H. Cochrane Investments Inc., 2021 ONCA 880

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

J. Doris and A. Vaidyanathan, for the appellants

P. Fruitman and V. Calina, for the respondent

Keywords: Contracts, Letters of Intent, Agreement on Essential Terms, Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.)

facts:

The appellants were negotiating the sale of their car dealership to the respondent. Negotiations continued over several months and agreement was reached on a number of terms. The appellants then received an unsolicited offer from a third party for more money, which they accepted. The respondent sued for breach of contract, seeking specific performance.

The trial judge determined that there had been a breach of contract and awarded damages in lieu of specific performance.

issues:

(1) Did the trial judge err in finding that the parties had reached an agreement?

(2) Did the trial judge err in her calculation of damages?

holding:

Appeal dismissed.

reasoning:

(1) No.

It is not unusual for contracts to be made by agreement on the essential terms, which are later incorporated into a formal written document. Whether the parties reached a binding contract depends on the circumstances of the case, and in particular on the intention of the parties.

The parties had been negotiating pursuant to the terms of a non-binding letter of intent that described the terms of engagement for a due diligence and financial information review, expectations on closing, purchase price, and a deposit of $1 million. The letter required share purchase agreements and contained an exclusivity clause preventing the appellants from negotiating with other parties, but that clause expired on April 15, 2020.

After the commercial purposes of the LOI expired, the parties continued to negotiate a new deal, and it was determined that they had agreed to terms on April 24, 2020. Further, it was determined that the parties had carried on as if they had reached a deal.

(2) No.

There was no basis to interfere with the trial judge’s award of damages.


P1 v. XYZ School , 2021 ONCA 901

[Doherty, Benotto and Huscroft JJ.A]

Counsel:

G. A. Hamilton, for D2, a Minor by his Litigation Guardian, Parent D2

B. F. Morrison, a Minor by his Litigation Guardian, Parent D1

E. Carver, for Toronto Star Newspapers Ltd.

B. Masters, for the plaintiffs

K. McCulloch, for XYZ School, A.A., B.B., C.C., and E.E.

Keywords: Torts, Assault, Constitutional Law, Freedom of the Press, Civil Procedure, Open Court Principle, Publication Bans, Sealing Orders, Appeals, Jurisdiction, Orders, Final or Interlocutory, Canadian Charter of Rights and Freedoms, Hendrickson v. Kallio, [1932] O.R. 675, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Houle v. St. Jude Medical Inc., 2018 ONCA 88, Scherchanski v. Lewis (1980), 20 O.R. (2d) 370, Morse Shoe (Canada) Ltd. v. Zellers Inc., (1997) 100 O.A.C. 116, Pennington v. Hawley, [2005] O.J. No. 3591, CanWest MediaWorks Inc v. Canada (Attorney General), 2007 ONCA 567, Enterprise Fund (Trustee of) v. Fisherman (2009), 55 O.R. (3d) 794 (C.A.), Dagenais v. Canadian Broadcasting Corp. (1994), O.R. (3d) 816), Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, Sherman Estate v. Donovan, 2021 SCC 25, Hollinger Inc. v. The Ravelston Corporation, 2008 ONCA 207, Blair v. Ford, 2021 ONCA 841, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.)

facts:

This action was brought by a minor and their litigation guardian parents (collectively, the “plaintiffs”). The claim arose out of an alleged sexual assault on the child by classmates during an overnight school trip. The claim was against the classmates, the school and three school employees who, it is alleged, failed to protect and adequately respond to the assault (collectively, “the school defendants”). The minor defendants moved for a non-publication and sealing order.

The school supported the minors’ position. The plaintiffs opposed the ban with respect to the name of the school and/or those employed by the school. The minor defendants moved for a non-publication and sealing order and the motion judge granted an interim partial sealing order and publication ban pending a full hearing of the motion. He made further orders continuing the publication ban and anonymizing certain terms to be used in the action. The sealing order and publication ban were continued. On June 4, 2021, the motion judge imposed a publication ban over the identity of the school and sealed the court file. He concluded that the terms of the previous orders “shall remain in place, subject to further order of the Court.”

The plaintiffs and the Toronto Star newspaper appealed the June 4 order which deals with the identity of the school defendants.

The minor defendants (not the school defendants) moved to quash the appeal because they took the position that it was not a final order and that, therefore, there was no automatic right of appeal to the Court of Appeal.

issues:

(1) Is the order under appeal final or interlocutory?

holding:

Motion dismissed.

reasoning:

(1) The nonpublication and sealing order as it applied to the Toronto Star was final. The non-publication and sealing order as it applied to the plaintiffs was interlocutory.

A final order must deal with substantive rights. All orders directed to non-parties are not necessarily final, but can be. To be final, an order directed to non-parties must determine the non-parties’ substantive rights.

The Toronto Star has no interest in the outcome of the litigation between the plaintiffs and the defendants. The Toronto Star’s interest is to be able to perform its function as the “eyes and ears” of the public.

The legal nature of the order under appeal finally determined the constitutional rights of the media and thus was a final order for the purposes of appeal. Although the order was interlocutory with respect to the other appellants, the Court nonetheless directed that the appeals be heard together. In the unique circumstances of this case, it made no administrative sense to have one portion of the appeal proceed, and to require that leave be sought for the interlocutory portion. Inevitably, leave would be granted because the Toronto Star portion of the appeal will proceed, and the two appeals are substantively the same.


Hordo v. Zweig , 2021 ONCA 893

[Lauwers, Paciocco and Thorburn JJ.A.]

Counsel:

D.H. and M.H., acting in person

P.H. Smiley, for the responding party

D. Eveleigh, for Lawyer’s Professional Indemnity Company

I. Sinke, for the Law Society of Ontario

Keywords: Civil Procedure, Appeals, Extension of Time, Jurisdiction, Orders, Removing Solicitors of Record, Final or Interlocutory, Rules of Civil Procedure, Rules 40, 61.16 (2.2), 61.16(4)(ii),  Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 7(5), 101, 102(10), D.G. v. A.F., 2014 ONCA 436, R. v. Gatfield, 2016 ONCA 23, Sun Life Assurance Co. v. York Ridge Developments Ltd., (1998), 116 O.A.C. 103 (C.A.), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784, Paulpillai Estate v. Yusuf, 2020 ONCA 655

facts:

The moving parties commenced an action against the responding party in 2013. In 2018, on the consent of all parties, the moving parties’ lawyer, R.B., successfully removed himself from the record. Following R.B.’s removal, the moving parties alleged that the responding party’s lawyer, L.Y. and his firm, as well as LawPro and the LSO had engaged in a conspiracy to remove R.B. from the record. The moving parties sought to have L.Y. and his firm removed from the record and to put LawPro and the LSO into receivership. The motion was dismissed by Associate Justice Muir. The moving parties appealed to the Superior Court and their appeal was dismissed. The moving parties sought to appeal to the Court of Appeal.

The Registrar of the Court contacted counsel for the responding party by telephone, to inquire about the seemingly interlocutory nature of the proposed appeal and then refused to accept the moving parties’ documents. The moving parties brought a motion for directions seeking that they be permitted to file their appeal, as the Registrar had erred in rejecting the filing of their material on the ground that the decision below was interlocutory. Fairburn A.C.J.O. dismissed the motion for directions and all other requests for relief brought by the moving parties, and held that the Registrar was correct to reject the filing. The moving parties sought an order from the Court to set aside or vary Fairburn A.C.J.O.’s order, but failed to file their material in time. They sought an order to extend the time to file their materials, which was dismissed by Zarnett J.A.

The moving parties sought to set aside or vary Zarnett J.A.’s order under s. 7(5) of the Courts of Justice Act and Rule 61.16 (2.2) of the Rules, an application for certiorari and mandamus, resolution of constitutional questions, a stay of the costs orders, and other relief.

issues:

(1) Was it an error to deny the application for an extension of time?

holding:

Motion dismissed.

reasoning:

(1) No

There was no reason to vary the order of Zarnett J.A., as his conclusion that there was no arguable merit to the moving parties’ challenge to the decision of Fairburn A.C.J.O was correct. The Court only has jurisdiction to hear appeals from final orders of a Superior Court judge. Appeals from interlocutory orders of a Superior Court judge should be brought before the Divisional Court. An order refusing to remove a lawyer from the record is not a final order. It is an interlocutory order as it does not determine the essential matter in dispute among the parties.

Moreover, s. 101 of the Courts of Justice Act addresses the Superior Court’s power to grant an interlocutory injunction and appoint a receiver by interlocutory order; it does not create an appeal route directly to the Court. An order dismissing a request for injunctive relief is an interlocutory order, not a final one, and cannot be appealed to the Court. Similarly, since the appointment of a receiver on an interlocutory motion is an interlocutory order, the refusal to appoint a receiver on an interlocutory motion is also an interlocutory order.


Mihoren v. Quesnel , 2021 ONCA 898

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

M. Zalev and K. Warren, for the appellant

S. Mossman, for the respondent

Keywords: Family Law, Civil Procedure, Administrative Dismissal for Delay, Setting Aside, Standard of Review, Family Law Act, R.S.O. 1990, c. F.3, s. 29, Family Law Rules, O. Reg. 114/99, r. 2(2), 2(3), 2(4), 17(8), 41(5), 41(6), 41(6.1), 41(6.2), 41(9), Rules of Civil Procedure, Rule 48.14(1), Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 16(1)(c), H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, Reid v. Dow Corning Corp., 11 C.P.C. (5th) 80, Chrisjohn v. Riley, 2015 ONCA 713, Williams v. Williams, 2010 ONSC 2636, MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, R. v. G.F., 2021 SCC 20, Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, Hryniak v. Mauldin, 2014 SCC 7, R. v. Jordan, 2016 SCC 27, Louis v. Poitras, 2020 ONCA 815, Louis v. Poitras, 2021 ONCA 49

facts:

The appellant’s application for payment of support by the respondent was administratively dismissed under r. 41(6) of the Family Law Rules. The appellant’s lawyer subsequently brought a motion to set aside the dismissal order under r. 41(9).

In determining whether to set aside the dismissal order, the motion judge considered and applied the four Reid factors initially set out in Reid v. Dow Corning Corp., and articulated in H.B. Fuller Company v. Rogers (Rogers Law Office): (1) whether there was an explanation for the delay that led to the dismissal order; (2) whether the deadline set out in the notice was missed due to inadvertence; (3) whether the motion to set aside the dismissal was prompt; and (4) whether there had been prejudice to the responding party.

On the first factor, the motion judge found the appellant had not provided an adequate explanation for the delay. On the second factor, the motion judge accepted the evidence of the legal assistant of the appellant’s lawyer that she had inadvertently failed to diarize the dismissal date, and that the appellant had been in touch with her lawyer’s office up to that date and never indicated an intention to discontinue her proceeding. On the third factor, the motion judge noted respondent’s counsel “fairly conceded” this factor was met. On the fourth factor, the motion judge considered the only prejudice to be that arising from the passage of time.

Ultimately, even though the only identifiable prejudice to the respondent was the passage of time, the motion judge declined to set aside the dismissal order. The appellant appealed from the motion judge’s decision.

issues:

Zarnett J.A. (Majority)

(1) Did the motion judge err in applying the Fuller principles?

(a) Did the motion judge ignore two factors rather than treating the factors contextually?

(b) Did the motion judge err in her analysis of prejudice?

(c) Did the motion judge fail to consider whether setting aside the dismissal was just in all the circumstances?

(2) Should the dismissal order be set aside?

Brown J.A. (Dissenting)

(1) Did the motion judge properly recognize and apply the overarching “big picture” principles regarding whether or not to uphold the dismissal order?

(2) Was the motion judge entitled to emphasize the appellant’s unexplained delay?

(3) Did the motion judge err in her treatment of prejudice?

holding:

Appeal allowed (Brown J.A. dissenting).

reasoning:

Zarnett J.A. (Majority):

(1) Yes.

The majority agreed with the motion judge’s conclusion that the principles derived in the context of civil cases, such as Fuller, were appropriate to inform the approach to motions under r. 41(9) of the Family Law Rules. Although Fuller held that the court should consider the Reid factors on a motion to set aside an administrative dismissal, Fuller made it clear that the Reid factors were not to be treated as a rigid set of hurdles the moving party must meet. Rather, an overall contextual approach that took into account the Reid factors and all of the relevant circumstances was required. The majority held that the motion judge made three errors in her application of the Fuller principles, set out below.

(a) Yes.

The majority noted the existence of a procedural step that could get an action back on track and avoid a dismissal from delay, and the reason why it was not taken, were relevant to whether it is just in the circumstances to uphold a dismissal. Further, Fuller indicated the preference of the court for deciding matters on their merits is “all the more pronounced” where an error of inadvertence of counsel is involved.

The majority outlined that after accepting that the lawyer’s inadvertence was the explanation for why no step was taken to deal with the approaching dismissal, the motion judge did not refer to the loss of the opportunity the appellant had to avoid dismissal, nor did she refer to the significance of the lawyer’s inadvertence having made the court’s preference for the determination of the matter on its merits “more pronounced”. Accordingly, the majority held the motion judge effectually ignored the significance of the fact the deadline was missed due to lawyer inadvertence.

(b) Yes.

The majority noted that the motion judge appeared to have considered the passage of time to support a presumption of prejudice because it could be presumed that a witness’ recollections would be somewhat dimmed over time, and because the existence of a family law case may mean the parties are unable to move forward with their lives. In the majority’s view, the motion judge erred in both presumptions.

First, the majority held that although the passage of significant time can result in prejudice in certain circumstances, the motion judge did not explain how the respondent would be worse off, from the standpoint of witnesses’ ability to recall, then he was before the dismissal. Further, the motion judge did not make any finding that fair trial rights were affected. Accordingly, the majority concluded that the finding of prejudice was tainted by legal error.

Second, the majority held that the finding of prejudice as it related to the nature of family law proceedings was also tainted by error. Although the respondent gave evidence that the proceeding was stressful and that he was relieved it was over, he gave no evidence that he was unable to move on with his life if it continued. The majority held that the prejudice alleged by the motion judge in this regard required evidence that the respondent had been so affected, of which there was none.

Further, the motion judge noted that since no limitation period had expired, the appellant could start another proceeding. The majority held that since a new proceeding could be brought, upholding the dismissal order would not remedy either fading memories or lack of closure for the parties, the impacts identified by the motion judge arising from the passage of time. Accordingly, the majority held there was no prejudice to the respondent.

(c) Yes.

The majority held that the motion judge failed to take into account the appropriate factors contextually, and then failed to consider whether the preferred policy of allowing actions to be determined on their merits should, in this particular case, bow to considerations of timely administration of justice.

(2) Yes.

Due to the errors articulated above, the majority held it was necessary to re-weigh the factors and consider whether it was just to uphold the dismissal order. The majority held that the appellant moved promptly enough to set aside the dismissal order that her right to proceed with her claim ought not, in the circumstances, yield to what under other circumstances might be the respondent’s right to rely on the finality of the dismissal. Further, there was no prejudice to the respondent, and no basis to conclude that his fair trial rights had been compromised. Accordingly, the majority held that the just result was to set aside the dismissal order.

Brown J.A. (Dissenting):

In Brown J.A.’s view, there was no basis to interfere with the motion judge’s decision. Specifically, Brown J.A. held his colleagues had run afoul of the direction from the Supreme Court of Canada to “resist the temptation to finely parse a judge’s reasons in search of error”.

(1) Yes.

Brown J.A. saw no error with the motion judge’s evaluation of the Reid factors and consideration of whether upholding the dismissal order would constitute a just result in all the circumstances. Specifically, Brown J.A. held that the motion judge was alive to the Family Law Rules policy of quicker “in and out of court” times, which informed the motion judge’s understanding of the context and the “justice of the case”.

Brown J.A. held that the motion judge properly recognized the appellant’s litigation failure was not missing a mere deadline, but rather, was a failure to complete her application within the time stipulated by the Family Law Rules. Brown J.A. concluded the starting point of the motion judge’s analysis was faithful to the legislative scheme for family law proceedings, and she did not make the errors attributed to her by the majority.

(2) Yes.

Brown J.A. noted that the motion judge considered a broad array of factors related to litigation delay, not just the failure to diarize the dismissal date, in concluding the appellant had not provided an adequate explanation for the delay. Specifically, Brown J.A. held that although the motion judge accepted the assistant’s explanation of “inadvertence”, she properly pointed out that there was more to consider because no explanation was provided for why “no real steps were taken in the almost 12 months prior to the dismissal date”.

Accordingly, Brown J.A. noted there was a much larger history of litigation delay than just the failure to diarize, and the motion judge properly made the finding of fact that “the applicant simply did not move forward with her claim after the first order was made extending the timelines”. Brown J.A. held that the motion judge did not fall into reversible error.

(3) No.

Brown J.A. held the motion judge’s presumption that the passage of time would “somewhat” dim the recollection of witnesses was a common-sense presumption. Further, he held the differences between the motion judge and the majority’s reliance on the respondent’s evidence as it pertained to the impact of the family law proceedings were “mere quibbles” that did not rise to the level of reversible error.

Brown J.A. concluded that the motion judge had the discretion to weigh the factors in the way she did, and the majority’s exercise of its discretion in a different way was not a basis for appellate reversal.


McTavish v. Reed , 2021 ONCA 885

[Fairburn A.C.J.O., Roberts J.A., and Van Melle J. (ad hoc)]

Counsel:

D.M. Sundin, for the appellant

D.A. Sulman, for the respondent

Keywords: Wills and Estates, Will Challenges, Capacity, Real Property, Joint Ownership, Right of Survivorship, Personal Property, Insurance Proceeds, , Civil Procedure, Adjournments, Estate Administration Act, R.S.O. 1990, c. E. 22, ss. 2(1), Dhingra v. Dhingra, 2012 ONCA 261, Finlay v. Paassen, 2010 ONCA 204, Wood v. Farr Ford Ltd., 2008 CanLII 53848 (Ont. S.C.), Hansen Estate v. Hansen, 2012 ONCA 112

facts:

W.A. and M.A. were married. Near the end of his life, W.A. suffered from severe dementia, paranoia, and hallucinations, which resulted in him killing M.A. and setting fire to their house. W.A. was found not criminally responsible on account of mental disorder (“NCRMD”) in the death of his wife and was detained in the custody of a psychiatric hospital. W.A. remained in custody until his death on March 19, 2018.

While detained, W.A. purportedly made a new Will in which he removed the appellant as a beneficiary and named as Estate Trustees three of his children from whom he had been estranged for many years. The appellant made repeated requests to see the purported Will. However, the respondents did not provide her with a copy.

On March 9, 2018, an action was commenced in W.A.’s name, without a litigation guardian, against the insurer for payment of the insurance proceeds arising from the fire damage to the house and its contents. Following W.A.’s death, an order to continue the action in the names of the respondents was obtained. On June 7, 2019, in settlement of the action, the insurer agreed to pay the amount into court.

On March 16, 2020, the appellant commenced an application in Windsor as Estate Trustee of M.A. for directions on whether W.A. was without the requisite capacity to make the subsequent Will (the “Will application”). If the appellant succeeded on the Will application, the original will would remain the last will and testament of W.A., which would leave the appellant as a beneficiary under both M.A. and W.A.’s wills.

Due to complications caused by COVID-19, the appellant asserted that she was not able to serve the application or transfer it to Chatham in time to be heard with the respondent’s application. As a result, the appellant requested an adjournment of the respondent’s application.

The application judge dismissed the appellant’s adjournment request on the basis that the application had not yet been served and that there was no formal application filed to join the applications, nor had the appellant taken any other steps to bring such an application before the court. The application judge further rejected the appellant’s submission that the Estate of M.A. was not entitled to a 50% share of the insurance proceeds held in court because any interest in the proceeds would have passed on her death.

issues:

(1) Did the application judge err in failing to adjourn the respondent’s application to be heard at the same time as the Will application?

(2) Did the application judge err in her determination of insurable interest under the insurance contract?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The Court found that by refusing an adjournment and determining the respondents’ application for release of the insurance funds, the application judge had decided the respondents’ application under a Will that remained in dispute. The appellants’ request for an adjournment was not only reasonable, but to proceed otherwise was unreasonable in the circumstances. While decisions regarding adjournment requests attract a high degree of deference, the application judge’s approach was overly technical and not in keeping with the general principles set out in Rule 1.04 of the Rules of Civil Procedure.

(2) Yes.

The Court found that the application judge erred in how she approached the issue involving who should receive the insurance proceeds held in court. Specifically, the application judge erred in her conclusion that, following M.A.’s death, only W.A. had an interest in the insurance proceeds because he had sole legal ownership of the insured house by right of survivorship. The right of survivorship applies only to interests in property. The application judge failed to consider whether M.A. had an interest in the insurance proceeds in issue, as opposed to an interest in the house itself. As a result, the application judge failed to: (1) resolve the timing of M.A.’s death relative to the fire and (2) appreciate that even if the Estate did not have an interest in the insurance proceeds related to the home, the Estate may have an interest in the insurance proceeds related to its contents.


Urmila Holding, Inc. v. Anand Holdings Inc., 2021 ONCA 886

[Gillese, Trotter and Nordheimer JJ.A.]

Counsel:

M. H. Arnold, for the appellants

A. Sternberg and E. Hives, for the respondent

Keywords: Contracts, Interpretation, Real Property, Condominiums, Declarations, Commercial Leases, Exclusive Use Clauses, Assignments, Nemo Dat Principle, Condominium Act, 1998, S.O. 1998, c. 19, ss. 134, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, All-Terrain Track Sales and Services Limited v. 798839 Ontario Limited, 2020 ONCA 129, Richcraft Homes Ltd. v. Urbandale Corporation, 2016 ONCA 622, Metropolitan Toronto Condominium Corporation No. 590 v. The Registered Owners and Mortgagees of Metropolitan Condominium Corp. No. 590, 2020 ONCA 471, Seto v. Peel Condominium Corporation No. 492, 2016 ONCA 548, Green v. Green, 2015 ONCA 541

facts:

Urmila Holding, Inc. (“Urmila”) purchased a unit in a commercial condominium plaza. It paid a premium for a unit that was designated for its exclusive use as a dental clinic. No other unit in the plaza could be used for this purpose.

When the plaza was marketed by the developer, Dr. A., a dentist, attempted to purchase a unit designated for exclusive use as a dental clinic. But he was too late – Dr. A. was advised that Urmila had already secured such a unit. Dr. A. then approached Urmila and arranged to lease its unit for a period of ten years, with an option to renew for five years. As the term neared its end, Dr. A. sought a ten-year extension of the lease. Urmila was only prepared to extend the lease for five years.

Unbeknownst to Urmila, Dr. A. purchased the unit next door. He moved his dental practice into that unit and purported to assign the exclusive use benefit purchased by Urmila to himself.

Urmila applied under s. 134 of the Condominium Act, 1998 for a determination of its rights under the exclusive use provisions of the condominium’s Declaration. The application judge held that Dr. A., as tenant, could convey the exclusive use benefit to himself, but only for the duration of the unexpired term of the extended lease with Urmila. Dr. A. appealed this ruling.

issues:

(1) Did the application judge err in allowing the contractual interpretation principles in Sattva to guide his approach to the interpretation of the Declaration?

(2) Did the application judge err in finding that Dr. A. could assign the exclusive usage benefit at all?

holding:

Appeal dismissed.

reasoning:

(1) No.

The application judge properly identified the background factors that were known or ought to have been known by the parties when they entered into the lease and subsequent extension. Importantly, the Declaration was incorporated into the lease between Dr. A and Urmila.

Another factor to consider was that Urmila, as owner of the exclusive use unit, was not obliged to carry on the exclusive use business itself. It only covenanted to ensure that the unit would be used for the designated purpose; otherwise, it would lose its exclusive use designation. In order to preserve this exclusive use benefit, Urmila leased the unit to Dr. A. It would make no commercial sense if, in fulfilling this contractual obligation in the way that it did, Urmila risked losing a valuable property right to its tenant.

Consequently, the parties could not have reasonably intended that Dr. A., as tenant, could arrogate to himself the exclusivity benefit in Unit 20, forever divesting Urmila of something it had purchased.

Moreover, as the application judge observed, the bulk of the language in the exclusive use provisions of the Declaration signalled that the use attaches to the unit itself. This was also reflected in the language of the Reservation Form and in the APS. Moreover, Urmila covenanted in the lease that, if its sole principal (or her husband) acquired another unit in the plaza, they would not permit the operation of a dental clinic therein, further supporting the interpretation that the exclusive usage right attached to the unit. It belonged to the owner/landlord, Urmila, not Dr. A.

The application judge bolstered his conclusion through his reliance on the nemo dat principle. In Green v. Green, in the family law context, the Court had said: “at common law, an assignor may not assign more than it has, or put differently, nemo dat quod non habet, no one gives who does not possess.” Applying this principle, the application judge held that, although the exclusive usage right belonged to Urmila as the owner of Unit 20, as a tenant, Dr. A. had a limited right to assign the exclusive usage for as long as he was entitled to the benefit of the exclusive use under the lease.

(2)

Because Urmila was content with the current arrangements, it did not seek to improve its position by cross-appealing this aspect of the application judge’s order. Similarly, Urmila did not attempt to achieve the same result by urging upon the Court that the application judge’s alternative mode of analysis (i.e., that Dr. A could not assign or convey exclusive usage to himself). In the circumstances, it was neither appropriate nor necessary to resolve these issues. However, nothing in the Court’s reasons should be taken as endorsing these aspects of the application judge’s decision. The resolution of both issues was best left for another day when they were squarely before the Court.


SHORT CIVIL DECISIONS

Telus Communications Inc. v. Marche, 2021 ONCA 873

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

B. Illion, for the appellants P. M. and 1261140 Ontario Inc.

L. Lung, for the respondent Telus Communications Inc.

No one appearing for the respondent S. W.

Keywords: Civil Procedure, Default Judgments, Costs

Michail v. London District School Board, 2021 ONCA 882

[Simmons, Roberts and Trotter JJ.A.]

Counsel:

M.M. in person

L. Ledgerwood, for the responding party London District Catholic School Board

R. Cookson, for the intervenor Attorney General of Ontario

Keywords: Civil Procedure, Case Management, Appeals, New Issue on Appeal, Constitutional Law, Courts of Justice Act, RSO 1990, c. C43, s. 136

Herold Estate v. Canada (Attorney General), 2021 ONCA 883

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

Counsel:

R. Janes, C. Metallic, and A. Charette, for the appellants (C68393)/respondents (C68467) Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation

D. E. Luxat, for the appellant (C68467)/respondent (C68393) Attorney General of Canada

D. J. Brown, for the respondent (C68393/C68467) Estate of W.A Herold

Keywords: Civil Procedure, Costs, Herold Estate v. Canada (Attorney General), 2021 ONCA 579

Adam v. Ledesma-Cadhit , 2021 ONCA 891

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

J.M. Ghosn, for the appellants

R.C. Sutton, K. Findlay and J. Smith, for the respondent GlaxoSmithKline Inc.

Keywords: Civil Procedure, Costs, Public Interest Litigation

Patterson v. Patterson , 2021 ONCA 911

[Hourigan, Trotter and Zarnett JJ.A.]

Counsel:

R. Murray, for the appellants

T. Simmonds, for the respondent

Keywords: Wills and Estates, Passing of Accounts, Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 42(4)(6), Lewis v. Lewis, 2020 ONCA 56


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