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Good afternoon.

Following are summaries of the decisions of the Court of Appeal for Ontario for the week of April 18, 2022.

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In Waxman v. Waxman, the Court upheld the permanent stay of the action as a result of the failure to disclose a Mary Carter type of settlement agreement between the plaintiff and some of the defendants. In arriving at this conclusion, the Court determined that the motion judge did not err in applying Handley Estate and the requirement that any agreement which changes the landscape of the litigation by altering the adversarial position of the litigants must be disclosed immediately, not months later.

In Render v. ThyssenKrupp Elevator (Canada) Limited, a just cause dismissal case, the Court upheld the trial judge’s finding that the employer had just cause to terminate the employee. However, the Court also found that the trial judge erred by not awarding the employee his termination entitlements under the ESA. In addition, the Court was of the view that, as a result of litigation misconduct, the respondent employer should not have received any costs of the trial (the trial judge had awarded costs on a 50% reduced basis as a result of that conduct).

In Ontario (Natural Resources and Forestry) v. Town of the South Bruce Peninsula, the Court upheld the lower court’s conviction of the Town of the South Bruce Peninsula on two counts of damaging the habitat of an endangered species, after finding that the trial judge correctly interpreted the Endangered Species Act and correctly qualified an expert witness at trial.

Other topics included business interruption insurance coverage for COVID-19 and vexatious litigants.

Wishing everyone celebrating a Happy Orthodox Easter.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

202135 Ontario Inc. v. Northbridge General Insurance Corporation , 2022 ONCA 304

Keywords: Contracts, Insurance, Interpretation, Coverage, Business Interruption Loss, COVID-19, Civil Procedure, Appeals, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245, Surespan Structures Ltd. v. Lloyds Underwriters, 2021 BCCA 65, Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7

Render v. ThyssenKrupp Elevator (Canada) Limited , 2022 ONCA 310

Keywords: Employment Law, Dismissal for Cause, Punitive Damages, Civil Procedure, Costs, Litigation Misconduct, Employment Standards Act, 2000, S.O. 2000, c. 41, Termination and Severance of Employment, O. Reg. 288/01, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), McKinley v. BC Tel, 2001 SCC 38, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Carscallen v. FRI Corp., 2005 C.L.L.C. 210-038 (Ont. S.C.), Housen v. Nikolaisen, 2002 SCC 33, Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McCallum v. Saputo, 2021 MBCA 62, Plester v. Polyone Canada Inc., 2011 ONSC 6068, Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 8049, Cummings v. Quantum Automotive Group Inc., 2017 ONSC 1785, Ojo v. Crystal Claire Cosmetics Inc., 2021 ONSC 1428, Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, McCabe v. Roman Catholic Episcopal Corp., 2019 ONCA 213, Tadayon v. Mohtashami, 2015 ONCA 777, Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, Hobbs v. Hobbs, 2008 ONCA 598, Pinder Estate v. Farmers Mutual Insurance Company (Lindsay), 2020 ONCA 413, Georg v. Hassanali (1989), 18 R.F.L. (3d) 225 (Ont. S.C.), Andrews v. Andrews (1980), 32 O.R. (2d) 29 (C.A.)

Ontario (Natural Resources and Forestry) v. Town of the South Bruce Peninsula , 2022 ONCA 315

Keywords: Environmental Law, Provincial Offences, Statutory Interpretation, Evidence, Expert Witnesses, Qualifications, Endangered Species Act, 2007, S.O. 2007, c. 6, ss. 2, 9, 10 and 17, Fisheries Act, R.S.C. 1985, c. F-14, Endangered Species Act, 2007, S.O. 2007, c. 6, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. High, 2003 BCSC 1723, R. v. Rhodes, 2007 BCPC 1, R. v. Live Nation, 2016 ONCJ 223, R. v. Abbey, 2017 ONCA 640, R. v. Mills, 2019 ONCA 940, R. v. Natsis, 2018 ONCA 425, Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., [2015] O.J. No. 6130 (C.J.), Bruff-Murphy v. Gunawardena, 2017 ONCA 502, leave to appeal refused, [2017] S.C.C.A. No. 343, R. v. Tang, 2015 ONCA 470, leave to appeal refused, [2015] S.C.C.A. No. 486, R. v. McManus, 2017 ONCA 188, R. v. T.A., 2015 ONCJ 624, R. v. Livingston, 2017 ONCJ 645, 356 C.C.C. (3d) 514, R. v. Tesfai, 2015 ONSC 7792, Moore v. Getahun, 2015 ONCA 55, leave to appeal to refused, [2015] S.C.C.A. No. 119

Mukwa v. Farm Credit of Canada , 2022 ONCA 320

Keywords: Civil Procedure, Abuse of Process, Vexatious Litigants, Provincial Public Transportation Act and Highway Improvement Act, R.S.O. 1990, c. P.50, Rules of Civil Procedure, Rules 2.1.01(1), 2.1.01(3) and 15.01(3), Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Khan v. Krylov & Company LLP, 2017 ONCA 625, Rallis v. Myers, 2019 ONCA 437, Khan v. Law Society of Ontario,2020 ONCA 320, Mukwa v. Farm Credit of Canada,2021 ONSC 1632, Sarac v. Wilstar Management Ltd., 2021 ONSC 7776, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 3820, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 2541, National Bank of Canada v. Guibord, 2021 ONSC 6549, Guibord v. National Bank, 2021 ONSC 5408, Trinity Western University v. Law Society of Upper Canada,2018 SCC 33, Groia v. Law Society of Upper Canada, 2018 SCC 27, R. v. Cunningham, 2010 SCC 10, R. v. Anderson, 2014 SCC 41

Waxman v. Waxman , 2022 ONCA 311

Keywords: Civil Procedure, Settlements, Duty to Disclose, Summary Judgment, Permanent Stays, Abuse of Process, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Housen v. Nikolaisen, 2002 SCC 33, Carotiv. Vuletic, 2021 ONSC 2778, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66

CIVIL DECISIONS

202135 Ontario Inc. v. Northbridge General Insurance Corporation , 2022 ONCA 304

[Feldman, Pepall and Favreau JJ.A.]

Counsel:

A. Evangelista, J. Kent and N. Dehnashi, for the appellant

D. Muise, for the respondents

Keywords: Contracts, Insurance, Interpretation, Coverage, Business Interruption Loss, COVID-19, Civil Procedure, Appeals, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245, Surespan Structures Ltd. v. Lloyds Underwriters, 2021 BCCA 65, Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7

facts: 

The respondents operate seven daycare centres called Helping Hands outside the Toronto area. Their business at the seven locations was insured through a Business Choice Policy from the appellant Northbridge from February 2020 to February 2021. The policy included a special endorsement to cover business losses arising from a pandemic. The business loss portion of the original insuring agreement is contained in Part II of the policy, and originally did not include coverage in the case of a pandemic. That coverage was added by a special endorsement titled the A.D.C.O. Program Endorsement, which amended the Part I – Property Insured, Part II – Business Income, and Part III – Commercial General Liability coverages.

The respondents made a claim in relation to COVID-19 closures from March 17, 2020 to June 22, 2020. The application judge concluded that the limit of liability clause provides coverage of $50,000 on a per location basis, for a total exposure of $350,000.

The appellants argued that the proper interpretation of the policy translates to $50,000 as a global total for the seven locations.

issues:

(1) Did the application judge err in her interpretation of the limit of liability clause contained in the “Outbreak & Negative Publicity” coverage extension for business losses suffered during a pandemic?

holding:

Appeal dismissed.

reasoning:

(1) No.

The standard of review was correctness, on the basis that the insurance policy was a standard form policy. The insurance policy under review was clearly a bespoke policy that included and excluded defined coverages for specified amounts in respect of each of the respondents’ seven business locations. However, the clauses within the policy were standard, unmodified clauses that were also offered to similar businesses. In that way, they were in a standard form.

The court outlined six reasons for its decision:

(a) The internal wording of the limit of liability clause was unambiguous. While the application judge was incorrect in finding that the limit of liability clause was ambiguous, her overall interpretation of coverage found in the limit of liability clause was correct. The court stated that looking only at the words of the limit of liability clause itself, the maximum amount is stated to be “or as otherwise indicated on the ‘schedule’”. As in this policy there are seven separate schedules, one for each scheduled risk location, therefore the reference to “the ‘schedule’” can only mean to each individual schedule for each risk location. The only reference in the schedules to a limit of liability for business losses is the “Actual Loss Sustained”, which applies to the business losses not referred to in the extended endorsement.

(b) The respondent insured’s interpretation was reinforced by the language of the indemnity agreement for pandemic loss coverage in the A.D.C.O. Program Endorsement. In accordance with the interpretive principles from the governing case law, as both the indemnity agreement and the limit of liability clause were subclauses of the “Outbreak & Negative Publicity” extension of coverage, they were to be read together (exclusions should be read in light of their initial grant of coverage). The indemnity agreement provided coverage for loss of business income as a result of a pandemic outbreak “at your ‘scheduled risk location’”. Being in the singular rather than the plural, it was referring to each single scheduled risk location (i.e., each of the seven daycare centres).

(c) In regards to the appellant’s argument that the court was reading in the word each, the court stated that the singular reference to “scheduled risk location” indicated that the indemnity was for losses at the location listed on the schedule. In this case, there were seven separate schedules, one for each risk location. It was not necessary to read in the word “each” because the use of the singular performs the same function.

(d) The indemnity and limit of liability provisions were consistent with the structure of the entire policy, which insured each location for its losses, as defined precisely in the separate schedules.

(e) The appellant had not referenced any provisions of the insurance agreement or the applicable endorsements that provided coverage based on losses or damage at a scheduled risk location where the limit of liability for such coverage applied to all locations on an aggregate basis, rather than on a per location basis.

(f) The premium the respondents paid for the extended coverage was based on and divided among the seven risk locations in different amounts.


Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 3102022 ONCA 310

[Feldman, Pepall and Tulloch JJ.A.]

Counsel:

C. Foulon and B. Hassibi, for the appellant

D. G. Cowling and A. J. Sinclair, for the respondent

Keywords: Employment Law, Dismissal for Cause, Punitive Damages, Civil Procedure, Costs, Litigation Misconduct, Employment Standards Act, 2000, S.O. 2000, c. 41, Termination and Severance of Employment, O. Reg. 288/01, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), McKinley v. BC Tel, 2001 SCC 38, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Carscallen v. FRI Corp., 2005 C.L.L.C. 210-038 (Ont. S.C.), Housen v. Nikolaisen, 2002 SCC 33, Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McCallum v. Saputo, 2021 MBCA 62, Plester v. Polyone Canada Inc., 2011 ONSC 6068, Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 8049, Cummings v. Quantum Automotive Group Inc., 2017 ONSC 1785, Ojo v. Crystal Claire Cosmetics Inc., 2021 ONSC 1428, Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, McCabe v. Roman Catholic Episcopal Corp., 2019 ONCA 213, Tadayon v. Mohtashami, 2015 ONCA 777, Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, Hobbs v. Hobbs, 2008 ONCA 598, Pinder Estate v. Farmers Mutual Insurance Company (Lindsay), 2020 ONCA 413, Georg v. Hassanali (1989), 18 R.F.L. (3d) 225 (Ont. S.C.), Andrews v. Andrews (1980), 32 O.R. (2d) 29 (C.A.)

facts:

The appellant employee appealed the judgment that upheld his dismissal for cause by the respondent employer. The appellant was a 30-year employee in a managerial role. His dismissal followed a single incident that occurred in the workplace where the appellant slapped a female co-worker, Ms. V, on her buttocks. The trial judge found that the incident caused a breakdown in the employment relationship that justified dismissal for cause.

Although he rejected the motorboating embellishment by Ms. V, the trial judge found, based on the appellant’s own evidence, that his face was in close proximity to Ms. V’s breasts for two to three seconds, and concluded that he was invading her personal space, and that it was inappropriate conduct. The trial judge found that the slap was sufficient to cause Ms. V to be shocked and upset. He concluded that a light tap would not have caused her to react the way she did. The trial judge found that the appellant did not appreciate the seriousness of his action. Although he apologized, he did not believe that what he did amounted to sexual harassment. He confirmed at trial that he still held that belief. The trial judge found that the respondent had met its onus and established that summary dismissal was the appropriate response in all the circumstances. Although he dismissed the appellant’s action on the merits, the trial judge devoted eight paragraphs at the end of his reasons to expressing his serious concerns about the litigation conduct of the respondent and Ms. V.

In the appeal, the appellant disputed two of the trial judge’s factual findings – that the appellant’s contact with his co-worker was not accidental and that the appellant’s remorse was not genuine. The appellant also sought a finding that he was entitled to benefits under the Employment Standards Act, 2000, S.O. 2000, c. 41, which was not addressed by the trial judge. Additionally, the appellant appealed from the trial judge’s failure to award punitive damages for the independent actionable wrong arising from the respondent’s litigation conduct, or in the alternative, he sought leave to appeal the award of costs, which the trial judge used to address the litigation misconduct.

issues:

(1) Did the trial judge err by making findings of fact that were not supported by the evidence or that involved inconsistent credibility findings?

(2) Did the trial judge err in law by finding that there was just cause for termination of the appellant’s employment?

(3) Did the trial judge err by failing to award the appellant his entitlements under the ESA?

(4) Did the trial judge err by failing to award punitive damages for litigation misconduct?

(5) Did the trial judge err in his award of costs?

holding:

Appeal allowed in part.

reasoning:

(1) No.

The appellant did not identify a palpable and overriding error. Instead, his submission amounted to an argument that the trial judge should have accepted certain evidence and rejected other evidence, an argument that does not allow appellate intervention. As the trier of fact, it is for the trial judge to hear and see the evidence and draw conclusions from it.

(2) No.

The standard of review played an important role in considering the argument that the evidence showed there was no breakdown in the employment relationship and that there were other disciplinary measures available. The appellant did not say that the trial judge did not apply the correct legal test or case law. In effect, he submitted that the trial judge failed to give sufficient weight to certain evidence in his analysis. With respect to the appellant’s argument that the respondent had treated other employees more leniently in the past, it must be remembered that each case is to be examined on its own particular facts and circumstances. The court found no error in the trial judge’s approach or analysis. The trial judge considered and weighed all of the relevant factors. His conclusion was entitled to deference.

(3) Yes.

Under the ESA, employees who have been employed for eight years or more are entitled to eight weeks of termination pay, unless they are disentitled to such pay under the statute. The evidentiary basis for the ESA entitlement claim was also established at trial, where the appellant testified that he received no compensation or severance when his employment was terminated.

The appellant’s conduct did not rise to the level of wilful misconduct required under the Termination and Severance of Employment, O. Reg. 288/01. While the trial judge found that the touching was not accidental, he made no finding that the conduct was preplanned. The appellant proved his entitlement to eight weeks of termination pay. However, the Court was not directed to anywhere in the record of evidence that the respondent has a $2.5 million payroll, as required under s. 64(1)(b). Accordingly, the Court was not in a position to award the requested 26 weeks of severance pay.

(4) No. (5) Yes.

The Court addressed these questions together. The appellant asked the trial judge to award punitive damages against the respondent for trial misconduct. The misconduct arose as a result of the finding that the respondent retained a trial publicist who facilitated the breach of the witness exclusion order, thereby tainting the evidence of a number of witnesses, and whose “inflammatory and sensationalist” press release contained unproven allegations and was intended to possibly pressure the appellant and influence the trial judge.

The litigation misconduct at this trial was particularly egregious, as described by the trial judge. Litigation misconduct can be an independent actionable wrong that can give rise to an award of punitive damages. The trial judge declined to deal with the issue in that way, and instead determined that the respondent’s litigation misconduct could be addressed in the context of entitlement to costs. The trial judge was entitled to take that approach and his decision on this point was entitled to deference. As to costs, the trial judge granted costs to the respondent but reduced the amount to 50% of what it would otherwise have been entitled to but for the litigation misconduct. The litigation misconduct in this case undermined the fairness and integrity of the judicial system. It should not be tolerated or condoned. The trial misconduct disentitled the respondent to all of its costs of the trial. The appeal from the costs award was therefore allowed and the respondent was denied all of its costs of the trial.


Ontario (Natural Resources and Forestry) v. Town of
the South Bruce Peninsula
, 2022 ONCA 315

[Lauwers, Pardu and Sossin JJ.A.]

Counsel:

J. C. Lisus and C. Chen, for the appellant

N. Adamson and M. Ritchie, for the respondent

L. Beck, B. Roe and Z. Biech, for the interveners, Environmental Defence and Ontario Nature

Keywords: Environmental Law, Provincial Offences, Statutory Interpretation, Evidence, Expert Witnesses, Qualifications, Endangered Species Act, 2007, S.O. 2007, c. 6, ss. 2, 9, 10 and 17, Fisheries Act, R.S.C. 1985, c. F-14, Endangered Species Act, 2007, S.O. 2007, c. 6, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. High, 2003 BCSC 1723, R. v. Rhodes, 2007 BCPC 1, R. v. Live Nation, 2016 ONCJ 223, R. v. Abbey, 2017 ONCA 640, R. v. Mills, 2019 ONCA 940, R. v. Natsis, 2018 ONCA 425, Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., [2015] O.J. No. 6130 (C.J.), Bruff-Murphy v. Gunawardena, 2017 ONCA 502, leave to appeal refused, [2017] S.C.C.A. No. 343, R. v. Tang, 2015 ONCA 470, leave to appeal refused, [2015] S.C.C.A. No. 486, R. v. McManus, 2017 ONCA 188, R. v. T.A., 2015 ONCJ 624, R. v. Livingston, 2017 ONCJ 645, 356 C.C.C. (3d) 514, R. v. Tesfai, 2015 ONSC 7792, Moore v. Getahun, 2015 ONCA 55, leave to appeal to refused, [2015] S.C.C.A. No. 119

facts:

The Piping Plover is an endangered species protected by the Endangered Species Act (the “Act”). Its habitat is protected under s. 10(1)(a) of the Act. The appellant, the Town of the South Bruce Peninsula (the “Town”), was convicted of two (2) counts of damaging the habitat of the Piping Plover (the “Plover”) at Sauble Beach.

First, in April 2017, the Town used heavy equipment to mechanically rake and flatten the entire width and length of the beach, which spanned approximately 11 kilometres. The maintenance work far exceeded what had been approved by the Ministry of Natural Resources (“MNR”). Two (2) expert witnesses at trial testified that these actions damaged the Plover habitat by removing areas and features that Plover have used for nesting, foraging, feeding, shelter, and camouflage, as well as damaging the ecosystem’s viability.

Second, between August 23, 2017 and September 7, 2017, the Town used a bulldozer and agricultural cultivator to work the full length of the beach. The Town cut into foredunes and dunes, removed several feet of vegetated dune, levelled elevated areas and depressions in the sand and lowered the grade of the beach. The two (2) experts testified that this work, which MNR had not approved, damaged or destroyed Plover habitat by removing features used for nesting, foraging, shelter and camouflage, as well those which were crucial to the ecosystem’s sustainability.

Prior to the trial, the trial justice qualified biologist S. R. as one of the expert witnesses, despite the Town’s objection that she lacked the independence and impartiality, due to being an MNR employee since 2003. She has worked on the protection of the Piping Plover and the application of the Act since 2008. She had developed protocols for avoiding harm to the species and its habitat, at Sauble Beach and elsewhere. S. R. prepared a memorandum for Director of Enforcement for the Midhurst office of the MNR, to provide an opinion as to whether the Piping Plover habitat was damaged or destroyed by the Town in 2017. S. R. was also involved in the 2018 review of a stop order preventing the Town from undertaking similar beach maintenance.

On the first count, the trial judge concluded that the mechanical raking of Sauble Beach just prior to the arrival of the Plover caused damage to its habitat, and convicted the Town on the first count. On the second count, the trial judge found that the bulldozing and levelling parts of Sauble Beach caused damage to the Plover habitat, and convicted the Town on the second count. The Town contravened its own bylaw by failing to stay outside of the 30 historical dunes and causing “long-lasting or even permanent” damage to the foredune and beach dunes. The Town could not establish a due diligence defence because the work contravened its bylaw and lacked MNR authorization.

The Town appealed the convictions on three grounds: (1) that the trial judge erred in his interpretation of “damage” under the Act; (2) that the trial judge erred in interpreting “habitat” under the Act as any area that the at-risk species made use of; and (3) that the trial judge erred in qualifying S. R. as an expert. The appeal judge refused to overturn the convictions and dismissed the appeal.

The Town appealed further. The appellant submitted that, in interpreting s. 10(1) of the Act, the question was not whether the Piping Plover sustained damage, but rather whether its habitat sustained damage. The appellant also reiterated its arguments that the trial judge ought not to have qualified an MNR biologist to give expert evidence.

issues:

(1) Did the trial judge err in his interpretation of s. 10(1) of the Act?

(2) Did the trial judge err in qualifying S. R. as an expert?

holding:

Appeal dismissed.

reasoning:

(1) No.

The trial justice considered the legislative purposes and the factual context in his interpretation of s. 10(1) of the Act. There was no basis to conclude that the trial judge’s ultimate findings on questions of mixed fact and law were tainted by palpable and overriding error.

The trial justice considered the text of the legislative prohibition and adopted a dictionary definition of damage as to do something physical that causes a feature to be less attractive, useful or valuable. “Habitat” is defined in s. 2(1) to mean “an area on which the species depends, directly or indirectly, to carry on its life processes, including life processes such as reproduction, rearing, hibernation, migration or feeding”.

The statutory regime creates an absolute prohibition against damage to the habitat of an endangered species but allows the Minister to permit some intrusion where the public interest so requires. The Act should be given a generous interpretation in light of its remedial nature and its objective of environmental protection. The Court did not accept the argument of the appellant that there was no evidence of any link between the actions of the Town and any effect on the Plover habitat. The trial judge was entitled to and did accept the evidence of the other prosecution expert, aside from S. R., that the Town’s actions damaged the habitat of the Plover. The work done by the appellant went well beyond that performed in earlier years, in consultation with the MNR, and could not be characterized as a minimal interference with the Plover habitat.

(2) No.

The Court owes significant deference to a trial judge’s decision on the admissibility of expert opinion evidence absent an error of principle, a material misapprehension of evidence or an unreasonable conclusion. The trial justice concluded that this was not one of the rare cases where the evidence of a proposed expert should be excluded because he or she was unwilling or incapable of carrying out his or her duty reasonably. The trial judge’s decision was reasonable and there was no basis to intervene.

There was nothing unreasonable about S. R. expressing an opinion that the Town’s actions damaged the habitat before she physically attended at the beach, provided that she was given an accurate description of the Town’s actions. There was no context provided to permit the trier to conclude that there was evidence of bias. The fact that S. R. was called as a witness in relation to the 2018 stop work order said nothing about her ability to fulfil her duty to the court. S. R.’s commitment to the welfare of the Plover was not a basis to disqualify her. Her concern mirrored explicit legislative goals.


Mukwa v. Farm Credit of Canada, 2022 ONCA 320

[MacPherson, van Rensburg and Roberts JJ.A.]

Counsel:

Grand Chief W. M., acting in person

No one else appearing for the appellants

Keywords: Civil Procedure, Abuse of Process, Vexatious Litigants, Provincial Public Transportation Act and Highway Improvement Act, R.S.O. 1990, c. P.50, Rules of Civil Procedure, Rules 2.1.01(1), 2.1.01(3) and 15.01(3), Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Khan v. Krylov & Company LLP, 2017 ONCA 625, Rallis v. Myers, 2019 ONCA 437, Khan v. Law Society of Ontario,2020 ONCA 320, Mukwa v. Farm Credit of Canada,2021 ONSC 1632, Sarac v. Wilstar Management Ltd., 2021 ONSC 7776, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 3820, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 2541, National Bank of Canada v. Guibord, 2021 ONSC 6549, Guibord v. National Bank, 2021 ONSC 5408, Trinity Western University v. Law Society of Upper Canada,2018 SCC 33, Groia v. Law Society of Upper Canada, 2018 SCC 27, R. v. Cunningham, 2010 SCC 10, R. v. Anderson, 2014 SCC 41

facts:

The appellants in the appeals in issue claimed to be members of the Anishinabek Solutrean Métis Indigenous Nation (“ASMIN”). The appeals further shared the ASMIN Grand Chief W. M. (“Grand Chief”) as either an appellant, a purported appellant by inserting himself into the title of proceedings on appeal, or a purported representative of the appellant(s).

In response to the Court’s notices to the appellants, pursuant to Rule 2.1.01(3) of the Rules of Civil Procedure, that the Court was considering dismissing or staying any or all of the subject appeals, written submissions were provided by the Grand Chief on behalf of the appellants for all of the appeals. Beyond the ten pages of submissions that are permitted for each appeal pursuant to Rule 2.1.01(3), the Grand Chief provided the Court with ten additional submissions totaling over a hundred pages for the appeals. No other submissions were received from any of the appellants; that is, the Grand Chief purported to respond to the Court’s notices on behalf of the appellants in each of the appeals.

The Court was tasked with determining whether any or all of these appeals should be dismissed or stayed pursuant to Rule 2.1.01(1).

issues:

(1) Should the appeals be dismissed pursuant to Rule 2.1?

holding:

Appeals dismissed.

reasoning:

(1) Yes.

The Court noted that although the application of Rule 2.1 was “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”, a review of the materials and communications filed by the Grand Chief made it obvious that there were no issues raised or arguments made that were relevant to any of the orders under appeal.

Further, the Court identified that the appeals exhibited many of the features the Court had recognized as characteristic of vexatious litigation. The Court characterized the material filed as “bald assertions” that were wholly unrelated to the orders under appeal. The Court also noted the Grand Chief had made “spurious allegations and objections” against multiple judges of the Court of Appeal and the Superior Court of Justice.

The Grand Chief also had a history of vexatious litigation conduct. Prior Superior Court of Justice decisions involving the Grand Chief repeatedly found that, rather than pursuing legitimate Indigenous rights claims, the Grand Chief was engaged in abusive litigation tactics in order for the appellants to avoid their financial or other legal obligations.

The Court was also concerned with the Grand Chief’s false attempts to act as a party to the appeals. Accordingly, in addition to dismissing all of the appeals in issue, the Court barred the Grand Chief from making any further filings or communications in the Court of Appeal unless he, himself, was a party to the appeal and obtained prior leave to confirm such.


Waxman v. Waxman, 2022 ONCA 311

[Fairburn A.C.J.O., Paciocco and Sossin JJ.A.]

Counsel:

E. Cherniak, W. Pepall, R. Swan, and G. Forrest, for the appellants M.S. as assignee of the Estate of I. Waxman & Sons Limited, M.S., and Solid Waste Reclamation Inc.

G. Capern, J. Killey, and H. Bruckner, for the respondents Elko Industrial Trading Corp., and A.S.

Keywords: Civil Procedure, Settlements, Duty to Disclose, Summary Judgment, Permanent Stays, Abuse of Process, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Housen v. Nikolaisen, 2002 SCC 33, Carotiv. Vuletic, 2021 ONSC 2778, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66

facts:

This was an appeal from the order of the motion judge dismissing the appellants’ motion for summary judgment, and instead granting summary judgment to the respondents dismissing the action against them and granting the respondents’ motion for a permanent stay of the action against them.

The decisions on appeal arose out of two judgments of approximately $10,000,000 each that the appellant, the late M.W. (here represented by his estate), obtained against his late brother C.W. and the W. family company, I. Waxman & Sons Ltd. (“the first Waxman company”). After the judgment against him, C.W. entered into a scheme with his son W.W., grandson A.W., and brother-in-law S.K. to direct business away from the first Waxman company and towards a company started by A.W. known as Waxman Industrial Services Corp. (“the second Waxman company”). This scheme was intended to deprive M.W. of the benefit of the judgment against C.W. and the first Waxman company.

The appellants commenced an action in 2007 against C.W., W.W., A.W. S.K., and others and amended their statement of claim in 2012 to name the respondents Elko Industrial Trading Corp. (“Elko”) and Elko’s principal, the late A.S., as parties.

After the respondents’ discoveries were completed in early 2015, the action appeared, from the respondents’ point of view, to have gone dormant. They heard nothing from the appellants until November 2018, when the appellants advised Elko of having resolved their claims with several parties and provided a draft notice of motion for summary judgment. The draft notice referred to settlements the appellants had reached with W.W, A.W., and S.K. The settlements came as news to the respondents.

In December 2019, the respondents brought a motion to stay the action as against them for the appellants’ failure to disclose the settlements, which were alleged to have changed the landscape of the litigation so as to require immediate disclosure as set out in Handley Estate v. DTE Industries Limited. In April 2019, the appellants moved for summary judgment against the respondents. The motions were heard together, at which time the respondents, in turn, also requested summary judgment against the appellants.

issues:

(1) Did the motion judge err in granting a stay of the action against the respondents?

(2) Did the motion judge err in granting summary judgment in favour of the respondents?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court did not accept the appellants’ submissions distinguishing this case from Handley Estate.

The rule in Handley Estate did not turn on contingencies in an agreement that must be met to fulfill the terms of that agreement or the confidential nature of the agreement. Rather, the key question for the court in applying Handley Estate was whether the agreement, at the time it was entered into, changed the litigation landscape and, in so doing, altered the adversarial position of the parties to one of cooperation. The motion judge found in this case that it did. The Court saw no error in this finding.

Finally, even if the appellants were successful in arguing that the agreements only changed the litigation landscape once all the conditions of the settlement agreements were fulfilled, this would still have left an unacceptable delay in disclosing the agreements to the respondents.

The Court has made it clear in Handley Estate and subsequent cases that the duty to disclose is immediate. That the respondents may have been alive to the settlement agreements at some earlier point – in this case, the appellants allege that a letter dated November 2, 2018, advised the respondents of the settlements – was of no assistance. The obligation was to disclose immediately, not simply to provide notice of the agreement, information about the agreement or what has been referred to as “functional disclosure”.

In this case, disclosure of the terms of the settlement agreements, and evidence obtained as part of the settlement process, occurred on December 20, 2019, pursuant to an endorsement by Hainey J. Taking this date as the date of disclosure, the delay in disclosing the agreement was 1.5 years for S.K., and almost 2 years for W.W. and A.W.. Even if the earlier date of November 2018 was used, the delay still amounted to 5 months for S.K. and approximately 10 months for W.W. and A.W. On this record, there was no question that the appellants failed to immediately disclose the agreements.

Turning to the remedy, citing Aecon, the motion judge reiterated, “The Court of Appeal described the obligation to disclose as clear and unequivocal and noted that its breach constituted an abuse of process. Only by imposing a stay is the court able to control and enforce its own process to ensure that justice is done.”

The Court saw no basis on the facts of this case to depart from the clear consequences for a breach of this principle set out by the Court in Aecon and affirmed a number of times since then, including in Handley Estate, and most recently in Tallman. In Tallman, after imposing the automatic stay as the only remedy appropriate for an undisclosed settlement agreement, the Court added “This remedy is designed to achieve justice between the parties. But it does more than that – it also enables the court to enforce and control its own process by deterring future breaches of this well-established rule.”

(2)

As the Court was of the view that the analysis of the stay resolved the appeal, there was no need to examine the motion judge’s summary judgment decision.


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 afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of April 11, 2022.

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Topics covered this week included a claim to professional fees charged for litigation support in a family law case, police liability for false arrest, negligent investigation and malicious prosecution, adding parties in a MVA/road maintenance case, and summary judgment dismissing claims as an abuse of process because they raised issues already dealt with in prior proceedings that had been settled.

Wishing everyone celebrating a Happy Easter and Passover.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Marmer Penner Inc. v. Vacaru, 2022 ONCA 280

Keywords: Contracts, Debtor-Creditor, Professional Fees, Solicitor’s Negligence, Civil Procedure, Appeals, Fresh Evidence, R. v. O’Brien, [1978] 1 S.C.R. 591

Hall v. Niagara (Police Services Board), 2022 ONCA 288

Keywords: Torts, Police Liability, False Arrest, Negligent Investigation, Malicious Prosecution, Civil Procedure, Costs, Criminal Code, R.S.C. 1985, c. C-46, s. 463(d), Rules of Civil Procedure, Rule 57.01, Nelles v. Ontario, [1989] 2 S.C.R. 170, R. v. Storrey, [1990] 1 S.C.R. 241, R. v. Shepherd, 2009 SCC 35, Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Taylor v. Mayes, 2022 ONCA 297

Keywords: Torts, Negligence, MVA, Crown Liability, Road Maintenance, Civil Procedure, Adding Parties, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385

Ntakos Estate v. Ntakos, 2022 ONCA 301

Keywords: Contracts, Settlements, Releases, Rescission, Fraud, Civil Procedure, Abuse of Process, Summary Judgement, Limitation Periods, Fraudulent Concealement, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, the Trustee Act, R.S.O. 1990, c. T.23, Rules of Civil Procedure, Rule 20.04(2.2), Ntakos Estate v. The Queen, 2012 TCC 409, Ntakos Estate v. The Queen, 2018 TCC 224, York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, 84 O.R. (3d) 414, leave to appeal to S.C.C. refused, 31950 (September 6, 2007), Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, leave to appeal refused, [2019] S.C.C.A. No. 91, Housen v. Nikolaisen, 2002 SCC 33, Hryniak v. Mauldin, 2014 SCC 7, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, leave to appeal refused, [2019] S.C.C.A. No. 284; Behn v. Moulton Contracting Ltd., 2013 SCC 26, Winter v. Sherman Estate, 2018 ONCA 703, leave to appeal to S.C.C. refused, 38899 (March 19, 2020), D’Addario v. EnGlobe Corp., 2012 ONSC 1918, aff’d 2014 ONCA 376, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), rev’d for the reasons of Goudge J.A., 2002 SCC 63, 790668 Ontario Inc. v. D’Andrea Management Inc., 2015 ONCA 557

Short Civil Decisions

1116227 Ontario Ltd. v. Telus Communication Company, 2022 ONCA 287

Keywords: Civil Procedure, Dismissal for Delay, Costs, Rules of Civil Procedure, Rules 48.14(1), 48.14(5), and 48.14(6), Faris v. Eftimovski, 2013 ONCA 360

Hornepayne First Nation v. Ontario First Nations (2008) Limited Partnership, 2022 ONCA 299

Keywords: Civil Procedure, Leave to Appeal, Costs, Arbitration Act, 1991, S.O. 1991, c. 17, s. 49, Rules of Civil Procedure, Rule 61.03.1(3)

Grillo Barristers P.C. v. Kagan Law Firm P.C., 2022 ONCA 303

Keywords: Civil Procedure, Orders, Dismissal for Delay, Setting Aside, Costs, Reid v. Dow Corning Corp. (2002), 48 C.P.C. (5th) 93 (Ont. S.C.)

Collins v. Canada Post Corporation, 2022 ONCA 295

Keywords: Civil Procedure, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1.01, Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, Wilson v. The Queen, [1983] 2 S.C.R. 594


CIVIL DECISIONS

Marmer Penner Inc. v. Vacaru, 2022 ONCA 280

[Doherty, Huscroft and Harvison Young JJ.A.]

Counsel:

F. V., self-represented as the appellant

T. Pagliaroli, for the respondents Legge & Legge and J.L.

M. E. Girard, for the respondent, Marmer Penner Inc.

Keywords: Contracts, Debtor-Creditor, Professional Fees, Solicitor’s Negligence, Civil Procedure, Appeals, Fresh Evidence, R. v. O’Brien, [1978] 1 S.C.R. 591

facts:

The respondent, J.L. and his law firm Legge & Legge (“Legge”), acted for the appellant, F.V., in her divorce proceedings. The respondent, Marmer Penner Inc. (“Marmer”), was retained to provide forensic accounting advice during the divorce proceedings. F.V. paid substantial fees to Marmer but not all of the fees claimed. Marmer sued F.V. for the outstanding balance and sued Legge on the basis that counsel had given Marmer a personal undertaking to honour the fees. F.V. defended on the basis that there was an oral agreement that Marmer would limit its fees to a specified amount and that in any event, Marmer had overcharged for some of the services provided. F.V. also counterclaimed alleging negligence by Marmer. Additionally, F.V. crossclaimed against her co-defendant, Legge, alleging negligence by Legge in the course of the divorce proceedings and maintained that proper steps to prevent her husband from dissipating his assets during the proceedings.  The negligence allegations focused on one specific property owned by the husband and his girlfriend and events in early June 2018.

Marmer was successful in the main action and was granted judgment against F.V. and Legge. F.V. abandoned her counterclaim against Marmer on the eve of the trial. The trial judge also dismissed F.V.’s crossclaim against Legge. The trial judge found the crossclaim failed for several reasons. He held F.V. failed to prove Legge breached the applicable standard of care and also failed to prove any causal link between Legge’s alleged negligence and F.V.’s damages. The trial judge further held that F.V.’s claim was statute-barred.

F.V. appealed the judgment in the main action and the judgment dismissing her crossclaim. She also sought leave to appeal the costs awarded to Marmer.  F.V. also brought a motion to adduce fresh evidence on the appeal. The fresh evidence related to both the appeal in the main action and the appeal from the dismissal of the crossclaim.

issues:

(1) Can the court accept fresh evidence consisting of Legge’s discovery evidence attached on the main action?

(2) Can the court accept fresh evidence on the appeal in the crossclaim consisting of emails from two former employees of Legge and two opinion letters from a person identified as a “court qualified, certified questioned document examiner”?

(3) Did the trial judge err in finding that Marmer did not in fact agree to a fixed fee for its services prior to trial, and did not overcharge or double-bill F.V.?

(4) Did the trial judge fail to ensure that they had access to the written version of the agreement between Legge and Marmer concerning Legge’s position in the main action?

(5) Can the court consider F.V.’s argument Legge was negligent in failing to register a temporary non-depletion order made by Justice Jarvis in respect of the husband’s property?

(6) Should the appellant be granted leave to appeal the costs order made in the main action?

holding:

Appeals and motions dismissed.

reasoning:

(1) No.

There was no basis upon which it could reasonably be said that the contents of Legge’s discovery could be expected to have any impact on the trial judge’s decision in the main action. Legge’s discovery evidence was not admissible as fresh evidence on the appeal in the main action.

(2) No.

F.V. did not satisfy the court that the proposed evidence would have made any difference to the outcome. F.V.’s case on the crossclaim failed for many reasons, some of which had nothing to do with Legge’s credibility. The fresh evidence offered to attack Legge’s credibility could not possibly have had any effect on the trial judge’s findings on those matters that did not turn in any way on Legge’s credibility.

(3) No.

F. V. did not demonstrated any palpable or overriding error in the trial judge’s factual analysis.

(4) No.

There was nothing capable of attributing any misunderstanding F.V. may have had to anything said or done by the trial judge. Nor was there anything indicating the trial judge may have been aware that F.V. was under any misunderstanding.

(5) No.

There could be no finding that the failure to register the order of Justice Jarvis constituted negligence. The trial judge’s findings are findings of fact. The trial judge’s findings of fact are reasonable and reflect no misapprehension of the evidence. There was no basis upon which the Court could interfere with those findings. The issue was what a reasonable solicitor could be expected to do or not do in the particular circumstances. That inquiry usually hinges on expert evidence and not on submissions about the kinds of orders that a particular rule may or may not contemplate.

(6) No.

Leave to appeal costs is granted sparingly. As there was no reason to doubt the correctness of the award of costs on a substantial indemnity basis, and there was no reason to grant leave exclusively on the quantum question.


Hall v. Niagara (Police Services Board), 2022 ONCA 288

[Brown, Paciocco and Sossin JJ.A.]

Counsel:

Eugene G. Mazzuca and Rafal Szymanski, for the appellants/respondents by way of cross-appeal

P. I. Waldmann and C. Suliman, for the respondent/appellant by way of cross-appeal

Keywords: Torts, Police Liability, False Arrest, Negligent Investigation, Malicious Prosecution, Civil Procedure, Costs, Criminal Code, R.S.C. 1985, c. C-46, s. 463(d), Rules of Civil Procedure, Rule 57.01, Nelles v. Ontario, [1989] 2 S.C.R. 170, R. v. Storrey, [1990] 1 S.C.R. 241, R. v. Shepherd, 2009 SCC 35, Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

facts:

The respondent, J. H., was acquitted at a criminal trial where he was accused of stealing a copper bar from the General Motors plant in St. Catharines, Ontario. The respondent subsequently brought a civil suit arising out of the police investigation that resulted in J. H.’s arrest.

At the civil trial, the trial judge considered the four elements of malicious prosecution as set out in Nelles v. Ontario, and focused her analysis on the latter two elements: (1) the plaintiff must show that the proceedings were instituted without reasonable cause, and (2) the defendant was actuated by malice.

The trial judge found that Detective S. M. lacked objective reasonable and probable grounds given the incomplete and improper investigation against J. H. and the challenges with the circumstantial evidence gathered in that investigation. The trial judge further found that Detective S. M. was not credible regarding his assertion that he believed he had reasonable and probably grounds for the arrest.

Further, with respect to malice, the trial judge found that Detective S. M. acted with an improper purpose in the prosecution of J. H. She found that after the Crown and the defence inaccurately answered a question posed by the criminal trial judge, Detective S. M. did not meet his obligation of notifying the Crown of the correct answer, which would have assisted J. H. in his defence. The trial judge also found that Detective S. M. engaged in inappropriate conduct in “high fiving” a Crown witness, and that inaccuracies in his police notes and testimony went beyond carelessness and amounted to deliberate falsehoods.

Accordingly, the trial judge found the appellants, Regional Municipality of Niagara Police Services Board and Detective S. M., liable for $686,216.92 in damages for false arrest, negligent investigation, and malicious prosecution.

The appellants appealed from the decision of the trial judge. The respondent cross-appealed the trial judge’s award of costs in his favour.

issues:

(1) Did the trial judge misapply the law relating to reasonable and probable grounds in the context of malicious prosecution?

(2) Did the trial judge misapply the law relating to malice in the context of malicious prosecution?

(3) Did the trial judge err in her award of damages?

(4) Did the trial judge err in her award of costs?

holding:

Appeal and cross-appeal dismissed.

reasoning:

(1) No.

The trial judge’s conclusion that Detective S. M. lacked subjective reasonable and probable grounds was based on her assessment of Detective S. M.’s credibility, which was entitled to deference. The conclusion was based on the trial judge’s finding that the circumstantial case against J. H. was insufficient, which was buttressed by Detective S. M.’s concession that prior to interviewing J. H. he did not have reasonable and probable grounds to arrest him. After reviewing the interview, the trial judge concluded that nothing occurred during the interview to furnish additional grounds.

The appellants focused their arguments on the trial judge’s conclusion that the objective ground for arrest was insufficient. However, the Court noted that it did not need to decide whether any of the alleged errors regarding the objective analysis occurred because the subjective and objective components of the reasonable and probable grounds test were conjunctive. Accordingly, since both elements must be satisfied for reasonable and probable grounds to exist, given the finding that Detective S. M. lacked subjective reasonable and probable grounds for the arrest, the Court saw no basis for disturbing the trial judge’s conclusion with respect to the third element of the test for malicious prosecution.

(2) No.

In concluding the test for malice was met, the trial judge relied on the following facts: (1) Detective S. M. failed to intervene in the criminal trial to correct flawed evidence that was put to the judge; (2) Detective S. M. and one of the GM witnesses for the prosecution were seen giving each other a “high five” outside the courtroom at the criminal trial; and (3) Detective S. M. deliberately lied in his characterizing of the evidence of Mr. G., a key witness at trial.

The Court saw no errors in the findings made by the trial judge, which were available on the record, nor in her conclusion in light of the findings that Detective S. M.’s prosecution of J. H. was motivated by an improper purpose sufficient to meet the threshold of malice with respect to liability for malicious prosecution.

(3) No.

The Court saw no basis to interfere with the trial judge’s award of damages. Specifically, the Court held the trial judge’s finding that the costs of J. H.’s disability dispute was related to the prosecution was entitled to deference, as was the trial judge’s finding that the loss of income was connected to the prosecution, as but for the prosecution, there was no evidence for why J. H. would be terminated by his employer.

(4) No.

The Court held the trial judge considered the bills of costs of each party and properly considered the criteria under r. 57.01 of the Rules. The Court saw no error in the approach taken or in the result reached by the trial judge. Accordingly, the Court had no reason to interfere with the costs award.


Taylor v. Mayes, 2022 ONCA 297

[MacPherson, Paciocco and George JJ.A]

Counsel:

R. Moss and A. Dylewski, for the proposed third party (appellant), Cruickshank Construction Limited

R. Baldwin, for the respondents

C. Dorey, for G.T

A. Choi, for Her Majesty the Queen, in Right of Ontario, Represented by the Ministry of Transportation of Ontario.

Keywords: Torts, Negligence, MVA, Crown Liability, Road Maintenance, Civil Procedure, Adding Parties, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385

facts:

S.M’ vehicle rear-ended G.T’s vehicle on Highway 401 in February 2013. G.T commenced a lawsuit against the defendants. The defendants, in turn, filed a Statement of Defence in which they blamed the accident on the condition of snow and slush on Highway 401 owned by Her Majesty the Queen, as Represented by the Ministry of Transportation of Ontario (“MTO”). The defendants then issued a third-party claim against MTO in 2016.

On October 1, 2019, the defendants obtained an order from Justice Ryan Bell of the Superior Court of Justice compelling MTO to attend discoveries and deliver productions. During the examination for discovery of MTO on November 19, 2019, MTO identified Cruickshank Construction Limited (“Cruickshank”) as the contractor responsible for the relevant winter maintenance of the section of Highway 401 where the accident occurred. The defendants brought a motion to add Cruickshank as a party. Cruickshank and MTO opposed the motion on the basis that the proposed claim against Cruickshank was statute-barred by virtue of the Limitations Act, 2002.

issues:

(1) Did the motion judge err in determining that the defendants’ third party claim against Cruickshank was not statute-barred by virtue of the Limitations Act, 2002?

(2) Did the motion judge err in determining that Cruickshank was not at liberty to plead a limitation defence to the third-party claim?

holding:

Appeal dismissed.

reasoning:

(1) No.

Cruickshank argued that the motion judge erred by not concluding that the defendants ought to have known of the potential claim against Cruickshank once it was served with the Statement of Claim. However, the motion judge pointed out that MTO’s “defence to third party claim makes no mention of an independent contractor whatsoever.” Moreover, MTO completely refused to participate in the proceedings for a very long period of time. The failure of MTO to make timely and appropriate documentary disclosure and MTO’s initial refusal to produce a representative for an examination for discovery should not be to the detriment of the defendants.

(2) No.

In an appropriate case, a motion judge can make a final determination on a limitation period issue. The Court determined that it was just for the motion judge to do so. The parties provided a comprehensive record and made full submissions on the limitation period issue. The litigation was on the cusp of being seven years old. The motion judge’s legal analysis in support of her decision to add Cruickshank as a third party was sound.


Ntakos Estate v. Ntakos, 2022 ONCA 301

[Trotter, Coroza and Favreau JJ.A.]

Counsel:

N. C. Tibollo, for the appellants

D. Steinberg, for the respondent K. N.

M. Kestenberg, for the respondent Fogler Rubinoff LLP

W. Pepall and R. Shoom, for the respondent P. R.

Keywords: Contracts, Settlements, Releases, Rescission, Fraud, Civil Procedure, Abuse of Process, Summary Judgement, Limitation Periods, Fraudulent Concealement, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, the Trustee Act, R.S.O. 1990, c. T.23, Rules of Civil Procedure, Rule 20.04(2.2), Ntakos Estate v. The Queen, 2012 TCC 409, Ntakos Estate v. The Queen, 2018 TCC 224, York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, 84 O.R. (3d) 414, leave to appeal to S.C.C. refused, 31950 (September 6, 2007), Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, leave to appeal refused, [2019] S.C.C.A. No. 91, Housen v. Nikolaisen, 2002 SCC 33, Hryniak v. Mauldin, 2014 SCC 7, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, leave to appeal refused, [2019] S.C.C.A. No. 284; Behn v. Moulton Contracting Ltd., 2013 SCC 26, Winter v. Sherman Estate, 2018 ONCA 703, leave to appeal to S.C.C. refused, 38899 (March 19, 2020), D’Addario v. EnGlobe Corp., 2012 ONSC 1918, aff’d 2014 ONCA 376, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), rev’d for the reasons of Goudge J.A., 2002 SCC 63, 790668 Ontario Inc. v. D’Andrea Management Inc., 2015 ONCA 557

facts:

Brothers J. N., N. K., and T. N. owned a construction supply business, Dupont Construction Supplies Ltd. (“Dupont”). Dupont was a wholly-owned subsidiary of Ntakos Holdings Ltd. (“Holdings”), of which the three brothers were equal shareholders. J. N. died in 1995, and his shares in Holdings were transferred to his wife, A. N. After J. N. died, there were disagreements between N. K. and T. N. over various financial issues related to Dupont and Holdings. In 2003, Dupont and Holdings retained a lawyer, Mr. Rooney, who worked with the companies’ accountants, initially Rubinovich Newton LLP and later Shimmerman Penn LLP, to address the issues. In July 2004, pursuant to Mr. Rooney’s advice, the parties reached an agreement that involved N. K., T. N. and A. N. signing acknowledgments of the amounts they each received from and owed to Dupont and Holdings.

A. N. died in October 2004, and her shares in Holdings were transferred to her and J. N.’s children, P. N., O. F., and T. B. All three children worked at Dupont. In 2005, N. K., P. N., O. F., and T. B. bought T. N. out of Dupont and Holdings and signed releases. As a result of their agreement, N. K. held 50% of the shares in Holdings, while P. N., O. F., and T. B. jointly held the other 50%. All parties were represented by counsel. N. K. was represented by Fogler Rubinoff LLP.

Despite this resolution, in February 2006, P. N., O. F., T. B., and A. N.’s Estate started an action against N. K., Mr. Rooney and Shimmerman Penn LLP (the “2006 Action”). They alleged that N. K. misappropriated money from Dupont. Fogler Rubinoff LLP defended N. K. in the 2006 Action.

In 2012, the plaintiffs settled the 2006 Action with N. K. and Mr. Rooney. The plaintiffs signed a broad release that released N. K. and his agents, employees, representatives and solicitors from all current and future claims relating in any manner whatsoever to the 2006 Action. In 2015, the plaintiffs settled the 2006 Action with Mr. Rooney, and signed a broad release with terms that largely reflected the language in the agreement releasing N. K.

In May 2019, N. K. and his numbered company, 2324973 Ontario Ltd., brought an application against Holdings and P. N. to enforce an arbitration agreement related to a mortgage held by the numbered company.

Two weeks later, A. N.’s Estate and Dupont commenced an action against N. K., Mr. Rooney, Fogler Rubinoff LLP, and Rubinovich Newton LLP (the “Estate Action”), relating to events between 1995 and 2005. The plaintiffs allege that N. K. misappropriated funds from Dupont, and induced A. N. to sign documents acknowledging that she received management fees that she never received. The plaintiffs alleged that the other defendants assisted and conspired with N. K.

In November 2019, Dupont, Holdings, and P. N., O. F., and T. B., in their personal capacities and as Trustees of A. N.’s Estate, brought an application against N. K., 2324973 Ontario Ltd., Mr. Rooney, and Shimmerman Penn LLP, seeking a declaration that the 2012 settlement with N. K. and the 2015 settlement with Mr. Rooney were void ab initio because they were induced by fraud (the “Estate Application”).
In December 2019, T. N. brought an action against N. K., Rubinovich Newton LLP, Fogler Rubinoff LLP and Mr. Rooney, alleging wrongdoing by the defendants between 1997 and 2004 (“T. N.’s Action”).

N. K., Mr. Rooney and Fogler Rubinoff LLP brought motions for summary judgment in all three proceedings. The motion judge found that the proceedings were an abuse of process because they raised issues that had been dealt with in prior proceedings. The motion judge also found that the claims were barred by statutory limitation periods. The motion judge dismissed the actions and application against N. K., Mr. Rooney and Fogler Rubinoff LLP. The appellants appealed.

issues:

(1) Did the motion judge err in finding that this was an appropriate case for summary judgment?

(2) Did the motion judge err in finding that the proceedings were an abuse of process?

(3) Did the motion judge err in finding that the releases signed by the appellants were a bar to the 2019 proceedings?

(4) Did the motion judge err in finding that the 2019 proceedings were statute-barred?

(5) Did the motion judge err in finding that T. N. was an undischarged bankrupt?

(6) Did the motion judge err in finding that Fogler Rubinoff LLP did not owe the appellants a duty of care?

holding:

Appeal dismissed.

reasoning:

(1) No.

There was no error in the motion judge’s finding that this was an appropriate case for summary judgment. The motion judge found that the appellants’ evidence did not support their position that the Estate Action, the Estate Application, and T. N.’s Action should not be dismissed on the basis of the “threshold” issues advanced by the respondents. His findings of fact were entitled to deference, as there was no error in his assessment of the appellants’ evidence.

The allegations of fraud in the Estate Action were the same ones made in the prior proceedings. There was no evidence that the respondents obtained the settlements or releases by fraud. With respect to T.N.’s Action, there was also no evidence the settlements were obtained by fraud. The appellants were unable to identify any evidence to defeats these findings made by the motion judge.

There was no merit to the appellants’ argument that the motion judge should have allowed them to conduct a viva voce cross-examination of N. K. On a motion for summary judgment, Rule 20.04(2.2) gives a motion judge the power to order oral evidence. However, this is an exercise of discretion.

(2) No.

The motion judge applied the correct legal principles in finding that the Estate Action was an abuse of process. There was no evidence that the 2006 settlement was tainted by fraud, and there was no air of reality to the claim against Fogler Rubinoff LLP was entitled to deference. These findings are well supported by the record, and there was no palpable and overriding error.

The motion judge properly stated that “[t]he law is clear that it is an abuse of process to relitigate a determination by a court in the hope of a different outcome”. There are limited circumstances where a party may relitigate an issue, such as “when the first proceeding is tainted by fraud or dishonesty” The motion judge compared the 2006 Action to the 2019 Estate Action and found that all the wrongful acts pleaded in 2019 were already pleaded in 2006. There was no evidence the settlements were obtained by fraud.

Further, the fact that Fogler Rubinoff LLP was not a party to the 2006 Action did not affect his conclusion that the Estate Action was an abuse of process, based on the flexibility of the doctrine in preventing the litigation of claims that have already been determined. Adding Fogler Rubinoff LLP to the claim did not change the nature of the claim. Regardless, there was insufficient evidence to support the claim against Fogler Rubinoff LLP.

(3) No.

The motion judge found that the releases signed by the parties had the effect of releasing the respondents from the 2019 proceedings. With respect to the 2006 Action, the release signed in 2012 in N. K.’s favour expressly released him and Fogler Rubinoff LLP from “unknown claims arising in the future with respect to all matters raised or which could have been raised in the [2006 Action]”. The release signed in 2015 in Mr. Rooney’s favour released him from “not only all known injuries, losses and damages, but also injuries, losses and damages not now known or anticipated but which may later develop or be discovered, including all the effects and consequences thereof”.
There was no error in the motion judge’s finding that the Estate Action was barred by the releases signed by the appellants. The 2006 Action was not tainted by fraud, therefore there was no basis for disregarding or setting aside the releases.

There was no error in the motion judge’s conclusion that T. N.’s Action was covered by the broad release he signed in 2005. T. N. released N. K. and Mr. Rooney from “any and all Claims … which the Releasor has now, or may have in the future … relating to or arising out of any cause, matter or thing whatsoever existing up to and including the date hereof”.

(4) No.

The motion judge considered the appellants’ evidence and concluded that there was no evidence that the settlements were obtained by fraud. Under the circumstances, there was no basis for him to find that fraudulent concealment was a triable issue. Therefore, there is no error in the motion judge’s finding that all the claims were statute-barred.

(5) No.

There was no need to address this issue given the conclusion that the motion judge made no error in finding that the 2005 release and limitation periods each presented a bar to T.N.’s Action.

(6) No.

There was no error in the motion judge’s conclusion that the appellants did not have a cause of action against Fogler Rubinoff LLP. The motion judge made a finding of fact that represented K. N., and no one else, and therefore did not owe a duty of care to any individual other than K.N. This finding of fact was supported by the record and was entitled to deference.


SHORT CIVIL DECISIONS

1116227 Ontario Ltd. v. Telus Communication Company, 2022 ONCA 287

[MacPherson, Paciocco and George JJ.A.]

Counsel:

M. Seddigh, for the appellants

R. Laurion, for the respondents

Keywords: Civil Procedure, Dismissal for Delay, Costs, Rules of Civil Procedure, Rules 48.14(1), 48.14(5), and 48.14(6), Faris v. Eftimovski, 2013 ONCA 360

Hornepayne First Nation v. Ontario First Nations (2008) Limited Partnership, 2022 ONCA 299

[MacPherson, Paciocco and George JJ.A.]

Counsel:

D. Outerbridge, for the moving party

Chief R.B.K., acting in person for the responding party

Keywords:Civil Procedure, Leave to Appeal, Costs, Arbitration Act, 1991, S.O. 1991, c. 17, s. 49, Rules of Civil Procedure, Rule 61.03.1(3)

Grillo Barristers P.C. v. Kagan Law Firm P.C., 2022 ONCA 303

[van Rensburg, Nordheimer and Harvison Young JJ.A.]

Counsel:

G. Sidlofsky and P. Neufeld, for the appellant

B.F. Morrison and S. Hale, for the respondents

Keywords: Civil Procedure, Orders, Dismissal for Delay, Setting Aside, Costs, Reid v. Dow Corning Corp. (2002), 48 C.P.C. (5th) 93 (Ont. S.C.)

Collins v. Canada Post Corporation, 2022 ONCA 295

[Roberts, Miller and Zarnett JJ.A.]

Counsel:

R.M.C., acting in person

M.R. Kestenberg and D.S. Lipkus, for the respondent, Norton Rose Fulbright Canada

T. Brook, for the respondent, Canada Post Corporation

Keywords: Civil Procedure, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1.01, Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, Wilson v. The Queen, [1983] 2 S.C.R. 594


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 April 4, 2022.

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Topics covered this week included striking pleadings as disclosing no reasonable cause of action against CRA to recover the costs and interest incurred in respect of a successful tax appeal, a landlord’s refusal to consent to an assignment of a lease, adverse possession, family law (variation of support and parenting) and security for costs in a defamation case.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Tabriz Persian Cuisine Inc. v. Highrise Property Group Inc., 2022 ONCA 272

Keywords: Contracts, Real Property, Commercial Leases, Assignments, Landlord’s Consent, Reasonableness, 1455202 Ontario Inc. v. Welbow Holdings Ltd. (2003), 33 B.L.R. (3d) 163 (Ont. S.C.), Housen v. Nikolaisen, 2002 SCC 33, Royal Bank of Canada v. Oxford Medical Inc., 2019 ONSC 1020, Royal Bank cites St. Jane Plaza Ltd. v. Sunoco Inc. (1992), 24 R.P.R. (2d) 161 (Ont. C.J. (Gen. Div.)), 1497777 Ontario Inc. v. Leon’s Furniture Ltd. (2003), 176 O.A.C. 380 (C.A.), Lehndorff Canadian Pension Properties Ltd. v. Davis Management Ltd. (1989), 59 D.L.R. (4th) 1 (B.C. C.A.), Tradedge Inc. (Shoeless Joe’s) v. Tri-Novo Group Inc., 2007 ONCA 562, Federal Business Development Bank v. Starr (1986), 28 D.L.R. (4th) 582, No. 1 West India Quay (Residential) Ltd. v. East Tower Apartments Ltd., [2018] EWCA Civ 250

Billimoria v. Mistry , 2022 ONCA 276

Keywords: Real Property, Adverse Possession, Partition and Sale, Civil Procedure, Appeals, New Issue on Appeal, Real Property Limitations Act, RSO 1990, c L15, ss. 4, 5 and 15, Land Titles Act, RSO 1990, c L5, s. 51, Partition Act, RSO 1990, c P4, s. 2, Cavanaugh v. Grenville Christian College, 2013 ONCA 139, Housen v. Nikolaisen, 2002 SCC 33, H.L. v. Canada (Attorney General), 2005 SCC 25, Whitby (Town) v. G & G 878996 LM Ltd., 2020 ONCA 654, Kaiman v. Graham, 2009 ONCA 77, Vivekanandan v. Terzian, 2020 ONCA 110, Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265, Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), Brienza v. Brienza, 2014 ONSC 6942

Vale v. Vale, 2022 ONCA 278

Keywords: Family Law, Child Support, Variation, Civil Procedure, Orders, Interim or Final, Costs, Federal Child Support Guidelines, SOR/97-175 section 7, 3(1) and 10, Family Law Act, R.S.O. 1990, c. F.3 section 35, 37, 39.1, 56(1), Bouchard v. Sgovio, 2021 ONCA 709

Jayco Inc. v. Canada (Revenue Agency) , 2022 ONCA 277

Keywords: Tax Law, Torts, Crown Liability, Negligence, Duty of Care, Remoteness, Public Policy Considerations, Agency Law, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Appeals, Standard of Review, Correctness, Rules of Civil Procedure, Rule 21.1(1)(b), Excise Tax Act, R.S.C., 1985, c. E-15, s. 221(1), Income Tax Act, R.S.C., 1985, c. 1, Quebec (Revenue) v. Caisse populaire Desjardins de Montmagny, 2009 SCC 49, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Reference re Goods and Services Tax, [1992] 2 S.C.R. 445, Re Statutes of Manitoba relating to Education (1894), 22 S.C.R. 577, Reference re Secession of Quebec, [1998] 2 S.C.R. 217, Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, Reference re Broome v. Prince Edward Island, 2010 SCC 11, Eliopoulos v. Ontario (Minister of Health & Long Term Care) (2006), 82 O.R. (3d) 321 (Ont. C.A.), River Valley Poultry Farm Ltd. v. Canada (Attorney General), 2009 ONCA 326, McCreight v. Canada (Attorney General), 2013 ONCA 483, Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, Leroux v. Canada Revenue Agency, 2012 BCCA 63, Grenon v. Canada Revenue Agency, 2017 ABCA 96, Odhavji Estate v. Woodhouse, 2003 SCC 69

A.C.V.P. v. A.M.P., 2022 ONCA 283

Keywords: Family Law, Decision Making, Parenting, Best Interests of the Child, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30, Palmer v. The Queen, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300, Children’s Aid Society of Owen Sound v. R.D. (2003), 178 O.A.C. 69 (C.A.), S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, V.S.J. v. L.J.G. (2004), 5 R.F.L. (6th) 319, (Ont. S.C.), Merkand v. Merkand, 2006 CanLII 3888 (Ont. C.A.), leave to appeal refused, [2006] S.C.C.A. No. 117, Young v. Young, 2013 ONSC 4423, Kucan v. Santos, 2017 ONSC 6725, Children’s Aid Society of London and Middlesex v. B.(C.C.), 2007 CanLII 66699 (Ont. S.C.), Glick v. Cale, 2013 ONSC 893, A.A. v. D.S., 2022 ONSC 1389, Kramer v. Kramer (2003), 37 R.F.L. (5th) 381 (Ont. S.C.), Parniak v. Carter (2002), 30 R.F.L. (5th) 381 (Ont. C.J.); Glance v. Glance (2000), 10 R.F.L. (5th) 276 (Ont. S.C.)

Lavallee v. Isak, 2022 ONCA 290

Keywords: Torts, Defamation, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rules 61.06(1)(a) and (c), Grant v. Torstar, 2009 SCC 61, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Schmidt v. Toronto Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.), Pickard v. London Police Services Board, 2010 ONCA 643, York University v. Markicevic, 2017 ONCA 651, Henderson v. Wright, 2016 ONCA 89, Heidari v. Naghshbandi, 2020 ONCA 757

Short Civil Decisions

Marshall v. Meirik, 2022 ONCA 275

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Costs

X.H. v. Cota, 2022 ONCA 274

Keywords: Torts, Negligence, Civil Procedure, Summary Judgment, Striking Pleadings, Limitation Periods, Limitations Act, 2002, S.O. 2002 c. 24, Sch. B., s. 16, Jane Doe v. Weinstein, 2018 ONSC 1126

Goguen v. Baptiste, 2022 ONCA 284

Keywords: Civil Procedure, Mareva Injunctions, Jurisdiction, Chevron Corp. v. Yaiguaje, 2015 SCC 42

Rieder zu Wallburg v. Plista Gmbh, 2022 ONCA 281

Keywords: Contracts, Civil Procedure, Jurisdiction, Forum Non Conveniens, Costs, Club Resorts Ltd. v. Van Breda, 2012 SCC 17


CIVIL DECISIONS

Tabriz Persian Cuisine Inc. v. Highrise Property Group Inc., 2022 ONCA 272

[Feldman, MacPherson and Lauwers JJ.A.]

Counsel:

E. Mehrabi, for the appellant

A. Assuras, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Assignments, Landlord’s Consent, Reasonableness, 1455202 Ontario Inc. v. Welbow Holdings Ltd. (2003), 33 B.L.R. (3d) 163 (Ont. S.C.), Housen v. Nikolaisen, 2002 SCC 33, Royal Bank of Canada v. Oxford Medical Inc., 2019 ONSC 1020, Royal Bank cites St. Jane Plaza Ltd. v. Sunoco Inc. (1992), 24 R.P.R. (2d) 161 (Ont. C.J. (Gen. Div.)), 1497777 Ontario Inc. v. Leon’s Furniture Ltd. (2003), 176 O.A.C. 380 (C.A.), Lehndorff Canadian Pension Properties Ltd. v. Davis Management Ltd. (1989), 59 D.L.R. (4th) 1 (B.C. C.A.), Tradedge Inc. (Shoeless Joe’s) v. Tri-Novo Group Inc., 2007 ONCA 562, Federal Business Development Bank v. Starr (1986), 28 D.L.R. (4th) 582, No. 1 West India Quay (Residential) Ltd. v. East Tower Apartments Ltd., [2018] EWCA Civ 250

facts:

This appeal centered on the reasonableness of a landlord’s refusal to consent to a tenant’s lease assignment.

The appellant, Tabriz Persian Cuisine Inc., owned a Persian restaurant in premises leased from the respondent, Highrise Property Group Inc. In 2018, the appellant decided to sell its business, and, on three occasions, tried to assign its lease. Section 10.01 of the lease prohibited the respondent from unreasonably withholding or delaying its consent, and stated it would not be unreasonable for the respondent to consider the proposed transfer’s conformity with the lease, the assignee’s business fundamentals, and the availability of other premises. The respondent refused to consent to the assignment of its lease unless the appellant removed a patio it had built on the condominium’s property, and met a series of other conditions.

The appellant brought an action for damages after the third refusal. Akbarali J. found that the patio was the respondent’s primary reason for the refusal, and that the appellant had not shown that the respondent acted unreasonably. The appellant had built the patio outside the leased premises without the respondent’s consent. The appellant understood that the patio did not conform with the lease, and the respondent was merely insisting that the appellant restore the leased premises before it left. While, the respondent’s insistence that the appellant discontinue its parallel lawsuit was not reasonable, this collateral purpose did not render the respondent’s refusal unreasonable, viewed holistically.

issues:

(1) Did the trial judge err by finding that the respondent did not impose a pre-condition to considering the appellant’s assignment request?

(2) Did the trial judge err by finding that the respondent’s refusal to consent to the assignment was reasonable?

(3) Did the trial judge err by finding that the reasonable purpose saved the collateral purpose?

holding:

Appeal dismissed.

reasoning:

(1) No.

The landlord was not unreasonable in placing “preconditions” before considering the assignment of the lease. A landlord’s refusal to consider an offer for a lease assignment is not unreasonable in itself. It is unreasonable if the court is unable to appreciate the reasons motivating the refusal. A landlord’s silence is tantamount to an unreasonable refusal. The correspondence between the parties highlighted the basis of the landlord’s refusal in palpable detail and allowed the trial judge to find that the patio was the only default “that really mattered”.

(2) No.

Reasonableness is a question of fact, dependent on the surrounding circumstances, the commercial realities of the marketplace, and the economic impact of the assignment on the respondent. There was no basis to disturb the trial judge’s analysis and conclusion on this issue.

The appellant’s refusal to remove the patio had imposed economic loss on the respondent. This detriment was legitimately recognized as a reasonable objection to the assignment. The appellant acknowledged that the patio was contrary to the lease through its many unfulfilled promises to remove it. The appellant’s assurances that the purchaser of its business could use the patio showed that it never intended to rectify its breach. The respondent’s refusal was motivated by a desire to avoid “perpetuat[ing] the patio problem.”

The respondent’s insistence that the appellant rectify its breach fell squarely within the field of reasonableness. The respondent’s desire to compel the appellant to restore the integrity of the leased premises was entirely consistent with the parties’ bargain as expressed by the lease. The landlord’s obligation to withhold consent on reasonable grounds is unqualified: “which consent may not be unreasonably withheld or delayed.” Three provisions are included in a distinct sentence that states “it will not be considered unreasonable for the Landlord to take into account the following factors”. This language is expansive, not exclusive, and clarifies conditions that may be unreasonable without limiting the generality of the first clause.

(3) No.

There was a linkage between the respondent’s reasonable condition (remove the patio) and the improper collateral purpose (discontinue the parallel lawsuit). While the trial judge’s statement that “a reasonable basis to refuse consent saves a co-existing tainted purpose” was too broad a proposition, the collateral purpose did not “infect” the reasonable condition in this case. The respondent’s principal focus throughout its dispute with the appellant was the removal of the improper patio. The respondent had every right to seek the removal of the patio as a condition of agreeing to the assignment of the lease to a potential buyer. A reasonable person could have withheld consent on the basis that the appellant had not properly restored the property to the condition required by the lease, as it had promised to do.


Billimoria v. Mistry , 2022 ONCA 276

[Pardu, Paciocco and Thorburn JJ.A.]

Counsel:

M. S. Deverett, for the appellant

T. Evangelidis and E. Blay, for the respondents

Keywords: Real Property, Adverse Possession, Partition and Sale, Civil Procedure, Appeals, New Issue on Appeal, Real Property Limitations Act, RSO 1990, c L15, ss. 4, 5 and 15, Land Titles Act, RSO 1990, c L5, s. 51, Partition Act, RSO 1990, c P4, s. 2, Cavanaugh v. Grenville Christian College, 2013 ONCA 139, Housen v. Nikolaisen, 2002 SCC 33, H.L. v. Canada (Attorney General), 2005 SCC 25, Whitby (Town) v. G & G 878996 LM Ltd., 2020 ONCA 654, Kaiman v. Graham, 2009 ONCA 77, Vivekanandan v. Terzian, 2020 ONCA 110, Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265, Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), Brienza v. Brienza, 2014 ONSC 6942

facts:

The appeal arose from a dispute between two owners of a residential in Mississauga. At the summary trial, the appellant, H.M., sought a declaration that he was the sole owner of the property by virtue of ss. 4, 5, and 15 of the Real Property Limitations Act, R.S.O. 1980, c. L.15 (“RPLA”). The appellant pointed to his exclusive possession of the property for more than ten years, the fact that he paid expenses throughout, the respondents had not inspected the property for more than ten years and that the respondents had done nothing to protect their property interest for more than ten years. He denied that there was a verbal agreement allowing him to stay in the home in exchange for paying carrying costs, with the expectation that the property would eventually be sold. He said that this alleged verbal agreement was incomplete, missing essential terms, and unenforceable. The appellant commenced an action seeking a declaration that he was the sole owner of the property because he was in exclusive possession of it for more than ten years and paid the carrying costs. The respondents brought a counterclaim asking the property to be sold pursuant to the Partition Act.

The trial judge held that the appellant had not established exclusive possession of the property under the RPLA. The trial judge also dismissed the appellant’s claim of proprietary estoppel, as there was never an express or implied representation that the appellant was to become sole owner, and there was no basis to find that the respondent’s behaviour has been unconscionable. The trial judge held that the appellant had a 65% interest in the property, the respondents had a 35% interest in it, and that it should be sold.

issues:

(1) Does s. 51 of the Land Titles Act bar the appellant’s claim?

(2) Did the trial judge err in assessing the appellant’s actual possession of the property under the RPLA?

(3) Did the trial judge err in ordering the sale of the property pursuant to the Partition Act?

holding:

Appeal dismissed.

reasoning:

(1) See below.

The new issue the respondents raised on appeal, that s. 51 of the Land Titles Act bars the appellant’s claim, was properly before the court and was dispositive. While the effect of s. 51 of the Land Titles Act was not raised at trial by different counsel for the respondents, it was a legal issue which did not depend on findings of fact, nor was there any suggestion that prior counsel failed to raise it for tactical reasons or that the interests of justice weighed in favour of not considering it. Accordingly, and with the consent of the appellant, the respondents satisfied their burden and the court exercised its discretion to allow this issue to be raised on appeal. The property was already registered in Land Titles at the time it was purchased by the parties, and thus, the appellant could not have obtained title to it by adverse possession. The appellant could not make out a claim of adverse possession regardless of how long the appellant actually occupied the home.

(2) No.

The trial judge held that as a factual matter, the respondents never lost possession of the property, either by dispossession or discontinuance of possession. She held that the appellant therefore failed to meet his burden of showing that he had successfully dispossessed the respondents of their interest in the property or that the respondents had discontinued their possessory interest in the property such that their rights in the property were extinguished. There was no error in the conclusion that the appellant had failed to establish his claim under the RPLA.

(3) No.

Section 2 of the Partition Act provides that a joint tenant or tenant in common may be compelled to make partition or sale. The onus is on the party resisting sale to demonstrate reasons why it ought not to be sold. There must be malicious, vexatious or oppressive conduct to justify the refusal to sell. While the trial judge accepted that there was an agreement among the parties in 1991, she also accepted that, “there was an expectation on the [respondents’] part that the [appellant] would move into the property for a much shorter period than ended up happening. There was an expectation that the property would be sold much earlier.” Moreover, there was evidence that the agreement changed when the respondents discovered that they had been removed from title without being told, and steps had to be taken to rectify this.


Vale v. Vale , 2022 ONCA 278

[Pardu, Paciocco and Thorburn JJ.A.]

Counsel:

A. Towlson, for the appellant

C. Kim, for the respondent

D. McInnis, for the Office of the Children’s Lawyer

Keywords: Family Law, Child Support, Variation, Civil Procedure, Orders, Interim or Final, Costs, Federal Child Support Guidelines, SOR/97-175 section 7, 3(1) and 10, Family Law Act, R.S.O. 1990, c. F.3 section 35, 37, 39.1, 56(1), Bouchard v. Sgovio, 2021 ONCA 709

facts:

The parties had three children: Z, E, and N. The parties separated on December 9, 2016. The parties entered into a comprehensive separation agreement on December 12, 2018. The terms of the separation agreement were not incorporated into a final order in the divorce proceedings. In March 2020, E stopped staying with the appellant father and began living full time with the respondent mother. The respondent requested a change in child support to $1,244 per month because of the change in E’s residence. The respondent said because Z was an adult child and because of substantial s. 7 expenses for counseling, he wanted to “take a holistic approach to child support” and pay $1,000 per month instead of $1,244.

The motion judge made the following final orders:

1. The child E shall primarily reside with the respondent.
2. The appellant shall exercise access to E in accordance with E’s wishes.
3. Child support, commencing January 1, 2021, shall be in the guideline amount of $1,244 per month, payable by the appellant father to the respondent mother.
4. Child support arrears as of December 9, 2020 were set at $3,678, payable by the appellant to the respondent.
5. The respondent shall have the right to send medical receipts for the children directly to the father’s health insurance company and receive the reimbursement money directly.

The motion judge awarded costs to the respondent in the amount of $22,541.81.

issues:

(1) Did the motion judge err by varying support?

(2) Did the motion judge err in quantifying support?

(3) Did the motion judge lack jurisdiction to vary parenting time?

(4) Did the motion judge err in issuing a final order?

(5) Should leave to appeal costs be granted, and the appeal of costs be allowed?

holding:

Appeal allowed in part.

reasoning:

(1) No.

The respondent was not attempting to vary the provisions for child support contained in the separation agreement. She was attempting to enforce them. Contrary to the appellant’s arguments, a motion to change support was not required in these circumstances: Bouchard v. Sgovio, 2021 ONCA 709.

(2) No.

The preamble to the Family Law Act notes the need for the orderly and equitable settlement of the affairs of the spouses and the equitable sharing by parents of responsibility for their children. The motion judge had all the information he needed to decide the issues. No one asked for a trial of that issue or objected to the motion judge deciding it. Moreover, section 3(1) of the Child Support Guidelines provides that unless otherwise provided, the amount of an order for child support for children under the age of majority is the table amount plus s. 7 expenses.

(3) No.

The motion judge had jurisdiction to make an interim variation of custody on a motion brought in these proceedings, where the best interests of the child demanded it. No final order had been taken out in these proceedings. Section 56(1) of the Family Law Act provides that in the determination of a matter respecting parenting time with respect to a child, the court may disregard any provision of a domestic contract where in the opinion of the court, to do so is in the best interests of the child.

(4) Yes.

Having indicated that he would make the order on an interim basis, the motion judge erred in making it final. Procedural fairness was denied to the parties, who had no reason to believe that the finality of the order should be addressed during the hearing. The Court varied the motion judge’s order that “the child [E] shall be primarily a resident with the mother” and “[t]he father shall exercise access to E in accordance with her wishes” by adding “on an interim basis” to both of those aspects of the order.

(5) Yes.

The Court accepted that the award of costs in favour of the respondent may have been affected by the final nature of the disposition of parenting time for E. The Court granted leave to appeal costs and vary the costs awarded in favour of the mother by reducing it by $2,000 to $20,541.81.


Jayco Inc. v. Canada (Revenue Agency), 2022 ONCA 277

[Pardu, Paciocco and Thorburn JJ.A.]

Counsel:

D. Robertson, J. Ip and B. Rossler for the appellant

N. Arnold, K. Dias and B. Chamberland, for the respondents

Keywords: Tax Law, Torts, Crown Liability, Negligence, Duty of Care, Remoteness, Public Policy Considerations, Agency Law, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Appeals, Standard of Review, Correctness, Rules of Civil Procedure, Rule 21.1(1)(b), Excise Tax Act, R.S.C., 1985, c. E-15, s. 221(1), Income Tax Act, R.S.C., 1985, c. 1, Quebec (Revenue) v. Caisse populaire Desjardins de Montmagny, 2009 SCC 49, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Reference re Goods and Services Tax, [1992] 2 S.C.R. 445, Re Statutes of Manitoba relating to Education (1894), 22 S.C.R. 577, Reference re Secession of Quebec, [1998] 2 S.C.R. 217, Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, Reference re Broome v. Prince Edward Island, 2010 SCC 11, Eliopoulos v. Ontario (Minister of Health & Long Term Care) (2006), 82 O.R. (3d) 321 (Ont. C.A.), River Valley Poultry Farm Ltd. v. Canada (Attorney General), 2009 ONCA 326, McCreight v. Canada (Attorney General), 2013 ONCA 483, Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, Leroux v. Canada Revenue Agency, 2012 BCCA 63, Grenon v. Canada Revenue Agency, 2017 ABCA 96, Odhavji Estate v. Woodhouse, 2003 SCC 69

facts:

Jayco, Inc. (“Jayco”) manufactures recreational vehicles in the United States and sells them to Canadian dealers. The CRA took the position that delivery occurred in Canada and that Jayco was obliged to and failed to collect and remit GST/HST from the dealers. It assessed Jayco for almost $14 million in taxes.

While Jayco was successful in having the assessment set aside, it incurred legal costs in contesting the assessment and interest charges on the security posted for taxes claimed pending appeal. Jayco brought an action for recovery of these expenses but it was struck pursuant to Rule 21.1(1)(b) of the Rules of Civil Procedure as disclosing no reasonable cause of action. Jayco appealed.

issues:

(1) Did the motion judge err in finding that the respondents, as principal, did not owe a duty to indemnify their agent (the appellant) for damages caused as a result of the agent following the principal’s instructions?

(2) Did the motion judge err in finding that the respondents did not owe a duty of care to GST/HST registrants who are appointed under the ETA to be agents of Her Majesty the Queen in right of Canada?

holding:

Appeal dismissed.

reasoning:

The standard of review was correctness, and the legal test for determining whether a claim should be struck under Rule 21.01(1)(b) is whether it is plain and obvious that the statement of claim discloses no reasonable cause of action, or put another way, that the claim has no reasonable prospect of success.

(1) No.

The appellant argued that s. 221(1) of the ETA, which requires a supplier to collect the tax payable by a recipient, made it an agent of the respondents when it carried out the instructions of the CRA to either pay or secure the taxed claimed.

The court determined that it was plain and obvious that this claim could not succeed. The court stated that in these circumstances, there was no question of express or implied contractual entitlement to reimbursement. There was no tortious liability to a third party which was the subject of a claim for indemnification. Section 221(1) of the ETA limits the agency to the “collection” of the tax from a recipient of a supply.

Both the ITA and the ETA rely on self-reporting by taxpayers. Those Acts establish administrative structures for the assessment and audit of taxpayers. When the CRA delivers a Notice of Assessment or Reassessment claiming that more taxes are owing and the taxpayer delivers a Notice of Objection, the parties are taking opposing positions. Under these circumstances, it cannot be said that the taxpayer is acting as agent of the tax authority when it incurs interest or legal costs in the course of asserting its position.

Interest paid to post security for the taxes claimed, and legal fees incurred to contest the assessment, are not incurred for the “collection” of the tax from a recipient of a supply.

In the face of the comprehensive statutory scheme providing for Notices of Objection, appeals to the Tax Court of Canada, judicial review and some remedies for overpayment, such as interest on refunds and awards of costs, the absence of statutory provisions for indemnification for other interest paid and other legal costs is telling. Section 221 does not provide a basis to infer a statutory entitlement to more costs and interest beyond that provided in the ETA and the Tax Court of Canada Act.

(2) No.

This issue turned on whether there is sufficient proximity between a taxpayer and the CRA to establish a prima facie duty of care. The relationship between the parties and broad questions of policy are relevant. The second stage of the inquiry asks whether there are residual policy considerations which should negate or limit that duty of care.

Where a statutory regulator is mandated to protect the public interest, the creation of a private law duty of care may conflict with the regulator’s public duties. In this case, the mandate of the CRA is to ensure that taxpayers pay taxes that are lawfully owed, for the benefit of all taxpayers and the country as a whole. The ETA establishes a comprehensive regime to deal with disputes over taxes owing, including appeals and judicial review. Recognition of a private law duty here would conflict with the agency’s duty to the public; there is nothing in the legislative scheme to suggest that such a duty was contemplated.

The Court stated that there are many instances where courts have held that broad statutory public duties foreclose a private law duty of care, and that such public duties do not generally, in and of themselves, give rise to private law duties of care. Further, the Court went on to state that there is nothing in the specific relationship between the appellant and the CRA to suggest that a finding of sufficient proximity would be appropriate. It is not sufficient that the CRA was ultimately shown to have been wrong to assess the appellant for the taxes it claimed.

Policy reasons also favour rejection of a private law duty of care in relation to administrative assessments and audits. Such a duty would expose the government to unlimited liability to a practically unlimited class, i.e taxpayers.


A.C.V.P. v. A.M.P., 2022 ONCA 283

[Trotter, Coroza and Favreau JJ.A.]

Counsel:

J. Montes, for the appellant

W. R. Clayton, for the respondent

Keywords: Family Law, Decision Making, Parenting, Best Interests of the Child, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 30, Palmer v. The Queen, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300, Children’s Aid Society of Owen Sound v. R.D. (2003), 178 O.A.C. 69 (C.A.), S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, V.S.J. v. L.J.G. (2004), 5 R.F.L. (6th) 319, (Ont. S.C.), Merkand v. Merkand, 2006 CanLII 3888 (Ont. C.A.), leave to appeal refused, [2006] S.C.C.A. No. 117, Young v. Young, 2013 ONSC 4423, Kucan v. Santos, 2017 ONSC 6725, Children’s Aid Society of London and Middlesex v. B.(C.C.), 2007 CanLII 66699 (Ont. S.C.), Glick v. Cale, 2013 ONSC 893, A.A. v. D.S., 2022 ONSC 1389, Kramer v. Kramer (2003), 37 R.F.L. (5th) 381 (Ont. S.C.), Parniak v. Carter (2002), 30 R.F.L. (5th) 381 (Ont. C.J.); Glance v. Glance (2000), 10 R.F.L. (5th) 276 (Ont. S.C.)

facts:

The parties married in May 2005, had two children, and separated in May 2014. Until November 2014, the appellant mother had primary care of the children while the respondent father had regular parenting time. In November 2014, the father brought a motion seeking, among other things, sole custody of the children with supervised access for the mother. The father alleged that the mother has serious mental health issues, including suicidal ideation and depression. In response, the mother alleged that the father had physically and verbally abused her during their marriage. The motion judge ordered custody on the terms sought by the father and requested that the Office of the Children’s Lawyer (“OCL”) conduct an investigation and prepare a report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). That report was prepared in 2015, and the temporary custody order remained in place until the start of the trial in September 2018.

The trial judge ordered sole custody of the children to the father with supervised access for the mother on March 11, 2019. He denied the mother’s request for unsupervised access because he had not been provided evidence about her mental health. He held that it was appropriate to direct the mother to obtain a psychiatric assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), and/or s. 105 of the CJA. On December 3, 2020, at which point the mother had still not completed the assessment, the trial judge found that compliance with his psychiatric assessment order had been long overdue. Accordingly, he finalized his previous order of supervised access for the mother.

The mother appealed from the final orders of the trial judge. She requested that she have unsupervised access to the children every other weekend and one Wednesday evening per week, or that the children have primary residence with her.

issues:

(1) Did the trial judge err by applying a misguided approach to the best interests of the children by ignoring and misapprehending the evidence tendered at trial?

(2) Did the trial judge err by ordering the mother to obtain a psychiatric assessment at the end of the trial pursuant to s. 30 of the CLRA?

holding:

Appeal dismissed.

reasoning:

(1) No.

There was no basis to interfere with the trial judge’s assessment of the best interests of the children.

The determination of parenting orders involves issues of mixed fact and law, and intervention on appeal is only warranted where there is a material error, a serious misapprehension of the evidence, or an error of law. Appellate courts must approach an appeal with considerable respect for the trial judge’s task in difficult family law cases, especially those involving parenting issues. One must be mindful of the inherently discretionary nature of making parenting orders.

The trial judge presided over 30 days of trial, made detailed findings of fact on all of the issues, and remained focused on the children throughout his reasons. The trial judge recognized that the mother was the primary caregiver until November 2014, and engaged with the views of the children. The trial judge summarized the evidence provided in the OCL report, which was prepared by an experienced social worker. The trial judge acknowledged the mother’s allegations of the father’s physical and verbal abuse, but found that concerns no longer existed. The trial judge also found that there was no suggestion that the father demonstrated inappropriate or unfit parenting.

The trial judge noted the importance of the mother’s conduct since November 2014. She had not complied with court orders, frequently misinterpreting them in her favour, and had not supported the children’s relationship with their father. The mother had not acted in the children’s best interests. Alternatively, the father had generally supported the mother having a parenting role in the lives of the children. The trial judge determined that this had in the past, and would continue to have, a significant impact on the children.

The father was given sole decision-making responsibility based on all of this evidence, including the children’s views, preferences, and what was in their best interests.

(2) No.

The Court declined to interfere with the trial judge’s discretionary decision to require the mother to undergo a psychiatric assessment.

The trial judge had jurisdiction to order an assessment pursuant to s. 30 of the CLRA and/or s. 105 of the CJA. A plain reading of these provisions and a review of the case law supports the trial judge’s request for a psychiatric assessment in this case. An assessment can be ordered where there is sufficient evidence that such an assessment would be directly pertinent to determining the best interests of the child. The trial judge held that the best interests of the children required information about the mother’s mental health for the court to assess any effect on the children, and explained clearly why this was the case.

The trial judge determined that there were clinical issues identified at trial that had, and may continue to have, a direct impact on the children. Regardless, there are no hard and fast rules in determining whether to order an assessment under s. 30 of the CLRA. The inquiry is fact-driven and flexible. The trial judge was justifiably concerned about the direct effect on the children of the mother’s mental health. The author of the OCL report testified that she was more concerned about the mother’s mental health now than in 2015, at which time she had recommended sole custody to the father.

As for the timing of the order, the trial judge noted that neither party had requested a s. 30 assessment at trial. There is nothing in s. 30 of the CLRA that prohibits the trial judge from ordering an assessment at the end of the trial, especially in light of the trial judge’s willingness to revisit his preliminary conclusion about access upon obtaining the results of the assessment. Section 30 of the CLRA is silent as to when assessments may be ordered, giving the trial judge discretion to do so at the end of trial.


Lavallee v. Isak, 2022 ONCA 290

[Roberts J.A. (Motion Judge)]

Counsel:

C. R. Daoust, for the moving parties

C. Nahum, for the responding party

Keywords: Torts, Defamation, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rules 61.06(1)(a) and (c), Grant v. Torstar, 2009 SCC 61, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Schmidt v. Toronto Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.), Pickard v. London Police Services Board, 2010 ONCA 643, York University v. Markicevic, 2017 ONCA 651, Henderson v. Wright, 2016 ONCA 89, Heidari v. Naghshbandi, 2020 ONCA 757

facts:

The moving parties, S.L. and J.L. (“The L’s”), sought an order that the responding party, S.I., post security for their costs: $30,0000 as security for the $20,0000 cost award granted to them in their successful defamation action and $10,000 for their estimated appeal costs. The L’s argued that they should not be subjected to the costs of an unmeritious appeal that they will not be able to compel S.I. to pay.

S.I. did not file any evidence in response to the motion. Counsel for S.I. submitted that S.I. is impecunious and did not dispute that S.I. had insufficient funds to pay the L’s costs. There was no objection to the amount requested as security for costs or that it covered both the trial and estimated appeal costs. S.I. did submit that her appeal was meritorious and brought in good faith and no security of costs should be ordered. The L’s argued in the alternative, if security for costs was not granted, the parties agreed that the L’s may have an extension of time to file a cross-appeal and file their factum.

The action was brought against S.I. for defamation seeking damages and a permanent injunction. S.I. defended the action, initially including and then abandoning a counterclaim. The L’s brought a motion for summary judgment and filed affidavits. S.I. was examined for discovery but did not examine the L’s. The motion judge concluded that it was an appropriate case for summary judgment because there were no material facts in dispute and notes S.I. did not challenge the appropriateness of summary judgment. The motion judge found that the three elements of defamation were met and S.I.’s online posts were defamatory. The motion judge rejected S.I.’s defences of justification and fair comment. The motion judge allowed the motion for summary judgment and granted judgment to the L’s in the amount of $50,000 to each party plus costs. S.I. appealed. The basis of the appeal being that the motion judge erred in finding that there was no provable, factual basis supporting her opinion.

issue:

Should security for costs be ordered?

holding:

Motion granted.

reasoning:

Yes.

The ordering of security for costs is discretionary and not routine. It involves the consideration of the criteria under rule 61.06(1) and requires the overarching assessment of whether it would be just to order security, having regard to the particular circumstances of the case and the interests of justice. S.I. did not put forward an arguable basis to interfere with the trial judge’s findings. There was good reason to believe that the appeal was vexatious. S.I. did not pursue her appeal or follow the rules with diligence which resulted in unexplained and unnecessary delay and costs. As S.I. conceded that she did not have sufficient assets to satisfy the L’ costs, it would prove practically impossible for them to compel payment of their costs. There was no evidence, however, that S.I. does not have any means to pay costs. Considering the lack of the appeal’s merit and S.I’ s delay in pursuing it, it would be unfair to expect the L’s to shoulder the burden of the costs of an unmeritorious appeal.


SHORT CIVIL DECISIONS

Marshall v. Meirik, 2022 ONCA 275

[Doherty, Huscroft and Harvison Young JJ.A.]

Counsel:

M. Bookman, for the appellants

C. Linthwaite, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Costs

X.H. v. Cota, 2022 ONCA 274

[Doherty, Huscroft and Harvison Young JJ.A.]

Counsel:

N. Groot and E. Stoik, for the appellant R.C.

S. Kar and M. Saad, for the defendant Her Majesty the Queen

D. Zacks, C. Valiquette and J. Herbert, for the respondents

Keywords: Torts, Negligence, Civil Procedure, Summary Judgment, Striking Pleadings, Limitation Periods, Limitations Act, 2002, S.O. 2002 c. 24, Sch. B., s. 16, Jane Doe v. Weinstein, 2018 ONSC 1126

Goguen v. Baptiste, 2022 ONCA 284

[MacPherson, Paciocco and George JJ.A.]

Counsel:

S. Zucker and N. J. Tourgis, for the appellants

M. Jilesen and S. Talebi, for the respondent

Keywords: Civil Procedure, Mareva Injunctions, Jurisdiction, Chevron Corp. v. Yaiguaje, 2015 SCC 42

Rieder zu Wallburg v. Plista Gmbh, 2022 ONCA 281

[Doherty, Huscroft and Harvison Young JJ.A.]

Counsel:

D. J. Spiller, for the appellants

E. Kurz, for the respondents

Keywords: Contracts, Civil Procedure, Jurisdiction, Forum Non Conveniens, Costs, Club Resorts Ltd. v. Van Breda, 2012 SCC 17


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