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Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the short week of June 28 to 30, 2021.

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Topics covered this week included security for costs in an appeal from a Mareva injunction and follow up contempt order that granted judgment for the full amount sought by the plaintiff, a custody and access, and the enforcement of a limitation of liability clause in a contract with a security alarm provider, the denial of leave to appeal in the Carillion insolvency and the quashing of an appeal by a lawyer of a party on the basis of lack of standing.

If there are any decisions released on Friday, July 2, our summaries of those decisions will be included with our posting of summaries for the week of July 5.

Wishing everyone an enjoyable Canada Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 
Email


Table of Contents

Civil Decisions

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Braech of Fiduciary Duty, Breach of Contract, Civil Procedure, Orders, Mareva Injunctions, Enforcement, Contempt, Appeals, Security for Costs, Stay Pending Appeal, Rules of Civil Procedure, Rules 60.18, 61.06(1), 61.06(1)(c), 63.01(1), 63.03(3), 63.01(5), 63.02(1), Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, Heidari v. Naghshbandi, 2020 ONCA 757, York University v. Markicevic, 2017 ONCA 651, Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.),  Zafar v. Saiyid, 2017 ONCA 919

M.P.M. v. A.L.M., 2021 ONCA 465

Keywords: Family Law, Custody and Access, Best Interests of Child, Appeals, Orders, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 28, s. 30, 76(2) and 76(3), Divorce Act, R.S.C., 1985, c. 3, ss. 16(1) and (6), Salehi v. Tawoosi, 2016 ONCA 986, Decaen v. Decaen, 2013 ONCA 218, Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, H.E. v. M.M., 2015 ONCA 813, leave to appeal refused, [2016] S.C.C.A. No. 63, C.S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764, Leelaratna v. Leelaratna, 2018 ONSC 5983, M.M.B (V.) v. C.M.V., 2017 ONSC 3991, Foley v. Foley, 2016 ONSC 4925

Deswal v. ADT LLC (ADT Security Services), 2021 ONCA 475

Keywords: Contracts, Interpretation, Torts, Negligence, Limitation of Liability, Sophisticated Parties, Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 34 O.R. (3d) 1 (C.A.), Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33

Carillion Canada Holdings Inc. (Re), 2021 ONCA 468

Keywords: Bankruptcy and Insolvency, Construction Law, Statutory Trusts, Remedies, Tracing, Civil Procedure, Leave to Appeal, Fresh Evidence, Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36, Construction Lien Act, R.S.O. 1990, c. C.30, s. 8, Crystallex International Corporation (Re), 2021 ONCA 87, B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 S.C.R. 805

Scetto v. Scetto, 2021 ONCA 485

Keywords: Contracts, Solicitor and Client, Solicitors’ Lien, Civil Procedure, Appeals, Standing, Solicitors Act, R.S.O. 1990, c. S.15, s. 34(1), Rules of Civil Procedure, Rule 61.04(1), Weenen v. Biadi, 2018 ONCA 288, Schmidt v. Toronto Dominion Bank, 24 O.R. (3d) 1 (C.A.)

Short Civil Decisions

Weinstein v. Toronto Standard Condominium Corporation No. 1466, 2021 ONCA 470

Keywords: Civil Procedure, Arbitration, Appeals, Jurisdiction, Arbitration Act, 1991, SO 1991, c 17, s 49

Di Franco v. Bueckert, 2021 ONCA 476

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAAP, Evidence, Credibility, Summary Judgement, Courts of Justice Act, R.S.O. 1990, c. C.43, Section 137.1, 704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22


CIVIL DECISIONS

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474

[Zarnett J.A. (Motions Judge)]

Counsel:

Radnoff and J. Suttner, for the Respondents, moving parties in M52469 and responding parties in M52474
Necpal and J. Nasseri, for the Appellants, responding parties in M52469 and moving parties in M52474

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Braech of Fiduciary Duty, Breach of Contract, Civil Procedure, Orders, Mareva Injunctions, Enforcement, Contempt, Appeals, Security for Costs, Stay Pending Appeal, Rules of Civil Procedure, Rules 60.18, 61.06(1), 61.06(1)(c), 63.01(1), 63.03(3), 63.01(5), 63.02(1), Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, Heidari v. Naghshbandi, 2020 ONCA 757, York University v. Markicevic, 2017 ONCA 651, Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.),  Zafar v. Saiyid, 2017 ONCA 919

facts:

The Respondents had commenced an action against the Appellants seeking substantial damages. The action arose out of the Respondents’ advance of $9 million to the Appellants for the purchase of certain properties. The Respondents alleged that the investment was not used for the reasons it was advanced and was misappropriated.

On April 23, 2020, the motion judge granted a Mareva injunction and related orders against the Appellants, subject to limited exceptions. On May 19, 2020, the motion judge declared that the Appellants had materially breached the orders and gave them a further opportunity to comply. On June 1, 2020, the motion judge suspended the exceptions to the Mareva injunction due to the appellants’ continuing non-compliance.

A contempt hearing was held. The motion judge found the Appellants in contempt for breach of the Mareva injunction. On November 5, 2020, the motion judge held a sentencing hearing. On January 21, 2021, he released reasons finding that the Appellants had not purged their contempt and remained in breach of his orders. He gave judgment with a number of provisions. As sanction for contempt, the Appellants were ordered to pay $8,794,606.09, to the Respondents, which was their investment less amounts recovered. The Appellants were ordered to attend a judgment debtor examination. Costs amounting to $193,971.08 were also awarded to the Respondents. The Appellant refused to attend the judgment debtor examination.

Pending the hearing of the appeal, the Respondents move for security for costs of the appeal and the costs in the court below. The Appellants sought a declaration that the order to attend the examination was automatically stayed as a result of the outstanding appeal from the money judgment, or in the alternative, an order that it be stayed pending the hearing of the appeal.

issues:

(1) Should security for costs be awarded to the Respondents for the cost of the appeal and for the cost award set out by the motion judge?
(2) Was the order of the motion judge to attend the judgment debtor examination automatically stayed upon appeal, and, if not, should the order be stayed?

holding:

Respondents’ motion granted in part.  Appellants’ motion dismissed.

reasoning:

(1) Yes.

The Respondents sought security for costs as follows: $25,000 for the appeal and $193,971.08 for the proceeding. The Respondents relied on r. 61.06(1)(c) of The Rules of Civil Procedure which provides that security may be ordered for “other good reason”. The Court stated that the ordering of security for costs is discretionary; a two-step reasoning process is involved. The first question is whether the requirements of r. 61.06(1)(a), (b), or (c) are met. If so, the second question is whether it would be just to order security, considering the circumstances and the interests of justice: Yaiguaje v. Chevron Corporation, 2017 ONCA 827.

The Court held that the list of “other good reasons” is not closed and found in favour of the Respondents. The violation of the orders under the Mareva Injunction constituted a reason to grant security that was compelling, given the serious nature of the orders and their violation, and directly related to the purpose for which security for costs may be ordered. The Appellants had been found in contempt of orders designed to ensure that they fulfill their obligations if found liable. This presented an “unacceptable risk” to whether the Appellants would pay a costs award if unsuccessful on appeal. This satisfied the first question of the test.

Relating to the second question, the Court was not satisfied that a reasonable order for security for costs would result in the Appellants being unable to pursue their appeal.

The Court found that since the appeal was not causing all the costs of the proceeding to be incurred, security should not be granted in the amount sought. The Court granted security for $25,000 for the appeal and $45,000 for the cost the of proceeding.

(2) No.

The judgment provided that the Appellants attend a judgment debtor examination even if they appealed the judgment. The Appellants submitted before the motion judge that the motion judge did not have the jurisdiction to order them to attend the examination when the judgment was under appeal. The Appellant submitted on appeal that the appeal automatically stayed any provision of the judgment for payment, and therefore stayed the examination, until the appeal was decided.

The Court found that the examination order was not stayed by r. 63.01(1) as argued by the Appellants. The order to attend the examination was not an order for the payment of money, nor was the examination a prohibited step under r. 63.03. The examination sought by the Respondents was not being pursued under the provision for the payment of money, but under the examination order, a separate provision of the judgment which was not automatically stayed.

The Court also refused to grant a stay as the Appellant identified no prejudice or irreparable harm that would be experienced if they attended the examination. The Appellants were not entitled to “keep their financial affairs secret from the Respondents” and, therefore, it was not in the interest of justice to grant the stay.


M.P.M. v. A.L.M. , 2021 ONCA 465

[Doherty, Trotter and Thorburn JJ.A.]

Counsel:

E. L. Reid and J. D. Mckie, for the appellant
A.L.M., acting in person

Keywords: Family Law, Custody and Access, Best Interests of Child, Appeals, Orders, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 28, s. 30, 76(2) and 76(3), Divorce Act, R.S.C., 1985, c. 3, ss. 16(1) and (6), Salehi v. Tawoosi, 2016 ONCA 986, Decaen v. Decaen, 2013 ONCA 218, Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, H.E. v. M.M., 2015 ONCA 813, leave to appeal refused, [2016] S.C.C.A. No. 63, C.S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764, Leelaratna v. Leelaratna, 2018 ONSC 5983, M.M.B (V.) v. C.M.V., 2017 ONSC 3991, Foley v. Foley, 2016 ONSC 4925

facts:

The parties are the parents of two children: D.M. and S.M (“the children”). The respondent mother, A.L.M, and appellant father, M.P.M. ended their eleven-year relationship in December 2017. The children have remained with the respondent since the date of separation.
Shortly after the marriage ended, the respondent had an emotional breakdown. The appellant had a new relationship and a new child born of that relationship. D.M. and S.M. were not aware that they had a half-sibling. Since the date of separation, notwithstanding concerted efforts by the appellant and the assistance offered by professionals, the children had not formed a meaningful relationship with their father.

In April 2020, the trial judge concluded that the respondent had alienated the children from the appellant. The trial judge ordered that the parties continue to have joint custody, the children would continue to reside primarily with the respondent, while the appellant would have rights of access on the terms set out in his order. All parties were ordered to undergo assessment and therapy. In his reasons, the trial judge warned that he might reverse custody if the respondent did not change her behaviour to encourage the children’s relationship with the appellant.

The appellant sought to vary the reviewing judge’s order such that:
a) the appellant will have sole decision-making responsibility for the children;
b) the children will reside exclusively with him; and
c) the children shall not have contact with the respondent for several months and in any event, not until she has engaged and “meaningfully participated” in therapy to gain insight into her alienating conduct.

issues:

(1) Should the fresh evidence be admitted?
(2) Did the reviewing judge err in concluding that the parties continuing to share custody and the children continuing to reside with the respondent was in the best interests of the children?

holding:

Appeal dismissed.

reasoning:

(1) Yes.
The appellant sought to adduce fresh evidence, an affidavit of Dr. Haner, on the appeal. The letter from Dr. Hanner to the appellants counsel was written ten days after the judge rendered his Reasons on Review and in response to the order that Dr. Haner act as a case manager for counselling and therapy “if she agrees to do so.” In her letter, Dr. Haner declined the referral on grounds that she would be willing to reconsider if the Court continued to provide continuity in oversight by a judge familiar with the case who she could report to. Dr. Haner found that without this oversight, no further progress would be made by the respondent and the children.

The Court admitted Dr. Haner’s evidence, as it could not have been provided prior to receipt of the reasons for the review order and it was credible and relevant to the welfare of the children, which was the central issue on the appeal.

(2) No.
The appellant asserted that the reviewing judge’s order that the parties continue to share custody and the children continue to reside with the respondent was contrary to the best interests of the children. He argued that (i) the reviewing judge misapprehended the evidence about the effect of the appellant’s new child – it was simply something to be navigated; (ii) there was no explanation of why the pandemic precluded the order reversing custody; and (iii) the order was incompatible with the children’s long-term mental health, which requires them to establish a healthy relationship with their father.

The Court found that the reviewing judge did not err in articulating the best interest of the children in co-parenting disputes. Dr. Haner noted that the children said they believed the appellant’s new relationship broke their family unit. Furthermore, the children expressed concerns that the appellant would replace them with a new sibling at some point, both of their mental states were very fragile, and each had expressed animosity and hostility toward the appellant. The Court found there was ample evidence to support the reviewing judge’s conclusion that the consequences of this change in the circumstances was too unpredictable for the vulnerable children. The reviewing judge did not misapprehend the evidence and his conclusion was based on the evidence before him, including the expert’s report and testimony.

The Court also found there was no error adverting to the pandemic as relevant in considering whether to disrupt one of the children’s few sources of stability – their life with the respondent in her home. Lastly, Dr. Haner’s letter, submitted as fresh evidence, did not state that the children cannot and should not continue to reside with the respondent. Dr. Haner’s concern was the termination of ongoing judicial oversight.

The Court found that the reviewing judge considered factors directly relevant to the children’s best interests and concluded that reversing the location of their primary residence was not in their best interests. There was no error in his conclusion given the combined effect of (i) the new family situation in the appellants household that is unknown to the children such that they cannot have adjusted to it; (ii) the inability to access the same resources and interact in person with those who could assist with counselling, therapy and emotional wellbeing; and (iii) the fact that reversing primary residence is almost certain to negatively affect these children in the short-term, while the social science evidence about the long-term success of such an intervention remains inconclusive.


Deswal v. ADT LLC (ADT Security Services), 2021 ONCA 475

[Doherty, Benotto and Brown JJ.A.]

Counsel:

M.A. Klaiman, for the appellants
C. M. Leddy, for the respondents

Keywords: Contracts, Interpretation, Torts, Negligence, Limitation of Liability, Sophisticated Parties, Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 34 O.R. (3d) 1 (C.A.), Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33

facts:

In 2013, the appellants bought a house equipped with a security alarm system provided by the respondents. The parties entered into a Residential Alarm Services Agreement (“Agreement”) to activate and upgrade the system. In 2015, the appellant’s house was robbed and they filed a proof of loss with their insurer. Additionally, they commenced this action against the respondents for aggravated, exemplary, or punitive damages.

The appellants argued that the security system was inoperable at the time they were robbed. The respondents moved for summary judgment dismissing the action which the motion judge granted. The motion judge rejected all the appellants’ following arguments: (1) the respondents were negligent when they failed to inform the appellants about a cellular backup option; (2) the respondents’ sales agent was under a duty to draw the appellants’ attention to the limitation of liability and entire agreement clauses in the Agreement and he failed to do so; and (3) the limitation of liability clause, which stated that “ADT is not an insurer” and limited liability to 10% of the annual service charge was unenforceable as it was unconscionable and contrary to public policy.

issues:

(1) Did the motion judge err in holding that the respondents had no duty to advise the appellants of the alarm system’s vulnerabilities and how they could be mitigated?
(2) Did the motion judge err in concluding that the limitation of liability clause was enforceable?

holding:

Appeal dismissed.

reasoning:

(1) No.

The motion judge rejected the appellants’ submissions that the agent was negligent by failing to tell them about a cell-backed communication option for their alarm system, assuring them that their house would be monitored 24/7, with no possibility of interruption when in fact an interruption happened at the time of the robbery, and by failing to explain how a security system could be circumvented. The appellants argued that these were material details that the respondents were under a duty to disclose and the trial judge erred by failing to find such a duty. The motion judge rejected this argument because the appellants did not adduce legal authority to support the contention that the respondents had a duty to advise them about other offered services and that the appellants’ position was not consistent with the general obligations between parties who have entered a written contract.

The Court stated that in a commercial setting, in the absence of fraud or other improper conduct that induced a plaintiff to enter the contract, the plaintiff bears the onus of reviewing the contract and evaluating it before signing it: Fraser Jewellers (1982) Ltd. V. Dominion Electric Protection Co. (1997), 34 O.R. (3d) 1 (C.A.). In this case, although the agreement arose in a commercial setting, the appellants were sophisticated and if they had taken the time to read the agreement, they would have understood from the first page that a cellular back-up service was available and that the operation of the system could be interrupted as identified in numerous clauses. Therefore, the Court upheld the motion judge’s reasoning that it was the appellants’ responsibility to read the agreement and ask about its terms.

(2) No.

The Court held that the motion judge did not err in her application of the analysis outlined in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, to determine the enforceability of the limitation of liability clause for the following reasons. First, the agreement’s limitation of liability clause applied in the circumstances. Second, when the motion judge’s oral reasons are considered as a whole, she held that the clause was not unconscionable as limitations on liability were clearly outlined in several clauses of the agreement in plain sight and there was no pre-existing relationship between the parties where the appellants looked to the respondents for advice, as the appellants were sophisticated.

There was also no evidence of duress or limits placed on the appellants’ time to review the agreement at the time of execution and the appellants chose not to read the agreement. Third, the Court affirmed the motion judge’s ruling that public policy favoured upholding the contract on its terms, relying on Fraser Jewellers and Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33.

The motion judge’s adoption of a public policy rational supporting the limitation of liability clauses in alarm system service contracts was set out by the Court in Fraser Jewellers. Specifically, the service provider is not an insurer and its monitoring fee bears no relationship to the area of risk and the extent of exposure ordinarily considered in the determination of insurance policy premiums.


Carillion Canada Holdings Inc. (Re), 2021 ONCA 468

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

P.H. Le Vay and C. Di Carlo, for the moving party
J. Salmas and D. Wiebe, for the responding party

Keywords: Bankruptcy and Insolvency, Construction Law, Statutory Trusts, Remedies, Tracing, Civil Procedure, Leave to Appeal, Fresh Evidence, Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36, Construction Lien Act, R.S.O. 1990, c. C.30, s. 8, Crystallex International Corporation (Re), 2021 ONCA 87, B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 S.C.R. 805

facts:

The Respondent provided banking services to the Applicant, Carillion. The Applicant received over $28 million for four construction projects. There were unpaid suppliers and subcontractors at each project. Pursuant to the cash sweep and pooling arrangements that the Applicant had with the Respondent, funds were swept from the Applicant for the unpaid suppliers and subcontractors.
The court-appointed Monitor brought a motion for a declaration that, pursuant to s. 8 of the Construction Lien Act (“CLA”), the account created from the Respondent’s sweep was subject to a statutory trust. In Companies’ Creditors Arrangement Act (“CCAA”) proceedings, the judge dismissed the motion, ruling that the Monitor had failed to establish the certainty of subject-matter requirement for a trust. The trust was not identifiable because it had been irreconcilably converted by seven different companies in two countries. Tracing in equity cannot be used to enforce a trust in an insolvency proceeding where identification of the specific trust property is impossible. Tracing the funds in common law did not apply because the payments were deposited into and transferred among mixed accounts and put to various uses.

issues:

(1) Should the Court admit fresh evidence?
(2) Is the test for leave to appeal met?

holding:

Motion dismissed.

reasoning:

(1) No.

The only substantive component of the proposed fresh evidence was a letter which contained subjective opinion evidence on the impact of the motion judge’s decision on the construction and surety industries. The letter was not appended to an affidavit sworn by its author. Therefore, it was inadmissible hearsay.

(2) No.

Leave to appeal is only granted in CCAA proceedings where there are serious and arguable grounds that are of real and significant interest to the parties. The courts will consider if: 1) the proposed appeal is prima facie meritorious or frivolous; 2) the point on the proposed appeal is of significance to the practice; 3) the point on the proposed appeal is of significance to the action; and 4) the proposed appeal will unduly hinder the progress of the action: Crystallex International Corporation (Re), 2021 ONCA 87, at para. 10.

The Court was not satisfied that the proposed appeal was prima facie meritorious or that the case was of significance to the practice. The CCAA judge is deeply knowledgeable in the relevant industry and is entitled to considerable deference. The CCAA judge found that tracing at common law and in equity fails where identification of trust property is not possible: B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, at para. 85. In addition, tracing in equity cannot be used to enforce a CLA trust in insolvency proceedings. This was the situation in this case.

Further, the Court found that the CCAA judge’s decision was not of significance to the practice for two reasons. First, the decision was fact specific: the nature and operation of the Applicant’s unique banking structure were critical factors. Second, the decision does not create uncertainty because it is consistent with established jurisprudence.


Scetto v. Scetto, 2021 ONCA 485

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

K. Preston, for the Plaintiff
M. Kersten, for the Appellant
No one appearing for the Defendant

Keywords: Contracts, Solicitor and Client, Solicitors’ Lien, Civil Procedure, Appeals, Standing, Solicitors Act, R.S.O. 1990, c. S.15, s. 34(1), Rules of Civil Procedure, Rule 61.04(1), Weenen v. Biadi, 2018 ONCA 288, Schmidt v. Toronto Dominion Bank, 24 O.R. (3d) 1 (C.A.)

facts:

The Plaintiff transferred title of a property to the Defendant in 2003. The Defendant gave no consideration for the transfer. A house was ultimately built on the property, which the Defendant occupied. The Plaintiff brought an action asking to the court to make a declaration that the Defendant was holding the property in trust. The Appellant represented the Defendant in this action. The trial judge found that a gift was not made so the Defendant was holding the property in trust. However, the Defendant was entitled to equitable set-off for contributions made to the property.

The trial judge further ordered the sale of the property, and the proceeds, after expenses, were to be divided based on the parties’ contributions. Issues arose with respect to how the net proceeds would be disbursed. The Plaintiff brought a motion for directions. At the same time, the Appellant brought motions to collect the amount owed to them in legal fees from the net proceeds and to remove itself as counsel of record for the Defendant. A Direction Order was released, which stated that the Defendant was not entitled to any of the proceeds after expenses. Furthermore, the Appellant was removed as counsel of record for the Defendant, but its motion to collect fees from the proceeds was dismissed because the Defendant did not have proceeds to collect from: Weenen v. Biadi, 2018 ONCA 288, at para. 15. The Appellant appealed the Order of Lack J. The Plaintiff moved to quash the appeal on the ground that the Appellant had no standing. The Plaintiff further argues that the appeal was devoid of merit.

issues:

(1) Should the appeal of the Appellant be quashed?

holding:

Motion granted.

reasoning:

(1) Yes.
A motion to quash may usefully be brought where the moving party contends that the court cannot or should not hear the merits of the appeal: Schmidt v. Toronto Dominion Bank, 24 O.R. (3d) 1 (C.A.), at para. 5. Schmidt goes on to say that the threshold for quashing an appeal is high, and to be exercised only in the clearest of cases where the appeal is “manifestly devoid of merit”. However, the Plaintiff did not claim that the appeal was devoid of merit. The Plaintiff moved to quash the appeal because the Appellant did not have standing to appeal. Therefore, the Court cannot and should not hear the merits of the appeal.

First, the Appellant’s contention that it has standing because it was granted by the motion judge was incorrect. The motion judge specifically stated that it was not a question of standing and proceeded to hear submissions. Second, the Defendants did not permit the Appellant to make submissions on their behalf. The Appellant had no authority to make submissions on the Directions Motion. Accordingly, the Appellant had no standing to appeal the Directions Order and appeal was quashed.


SHORT CIVIL DECISIONS

 

Weinstein v. Toronto Standard Condominium Corporation No. 14662021 ONCA 470

[Doherty, Feldman and Benotto JJ.A.]

Counsel:

T.M. Duggan, for the moving party (respondent)
S.W., acting in person

Keywords: Civil Procedure, Arbitration, Appeals, Jurisdiction, Arbitration Act, 1991, SO 1991, c 17, s 49

 

Di Franco v. Bueckert, 2021 ONCA 476

[Tulloch, Roberts and Thorburn JJ.A.]

Counsel:

D.S. Tucker-Simmons and Y. Hameed, for the appellant
J. Lalonde, for the respondent

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAAP, Evidence, Credibility, Summary Judgement, Courts of Justice Act, R.S.O. 1990, c. C.43, Section 137.1, 704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22


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

Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of June 21, 2021.

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In Manastersky v. Royal Bank of Canada, the Court dealt with a wrongful dismissal appeal on damages that was remanded by the Supreme Court of Canada with the directive of applying the recent decision of Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26. The Court affirmed its original decision.

In Moore v. 7595611 Canada Corp., the Court refused to set aside the damage awards the jury made at trial. Of note, the Court refused to reduce an award for loss of care, guidance and companionship, despite it exceeding the “upper limit” prescribed in To v. Toronto Board of Education (2001), 204 D.L.R. (4th) 704 (Ont. C.A.). The Court held that since the award did not “shock the conscience of the court” it should not be reduced.

In Krebs v. Cote, the Court refused to extend to cohabitation agreements the rule that provides that a separation agreement becomes void upon reconciliation of the parties.

In Bayford v Boese, the Court found that the trial judge erred in finding that the respondent had discharged her burden to prove the formal validity of the will due to a misapprehension of the content and significance of expert evidence.

Other topics covered this week included subrogation rights of an insurer to SABs, the admission of fresh expert evidence in a medmal matter resulting in the setting aside of summary judgment dismissing the claim, breach of contract in respect of consulting services, the refusal of leave to appeal in the Laurentian University CCAA proceeding, contempt in the custody and access context, the negligence of a landlord in respect of the death of a tenant in a house fire, mitigation in respect of a claim for breach of an APS of land and extension of time to perfect an appeal in the family law context.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Burns v. Brown, 2021 ONCA 450

Keywords: Family Law, Civil Procedure, Appeals, Perfection of Appeal, Extension of Time, Rules of Civil Procedure, Rule 61.05(5), Issasi v. Rosenzweig, 2011 ONCA 112

El-Khodr v. Northbridge Commercial Insurance Company , 2021 ONCA 440

Keywords: Torts, Negligence, MVA, Statutory Accident Benefits, Subrogation, Assignment, Contracts, Interpretation, Minutes of Settlement, Insurance Act, R.S.O. 1990, c. I.8, s. 267.8, Statutory Accident Benefits Schedule, O. Reg. 34/10, El-Khodr v. Lacki 2017 ONCA 716, 139 O.R. (3d) 659, leave to appeal refused, [2017] S.C.C.A. No. 461, El-Khodr v. Lackie, 2015 ONSC 5244, 79 C.P.C. (7th) 356, Carroll v. McEwen, 2018 ONCA 902, Cadieux v. Cloutier, 2018 ONCA 903, leave to appeal to refused, [2019] S.C.C.A. No. 63, Gilbert v. South, 2014 ONSC 3485, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Environs Wholesale Nursery LTD. v. Environs Landscape Contracting LTD., 2019 ONCA 547, 3113736 Canada Ltd. v. Cozy Corner Bedding Inc., 2020 ONCA 235, Angus v. Port Hope (Municipality), 2017 ONCA 566, leave to appeal refused, [2017] S.C.C.A. No. 382

Bayford v. Boese , 2021 ONCA 442

Keywords: Wills and Estates, Wills, Formal Validity, Civil Procedure, Expert Evidence, Fresh EvidenceSuccession Law Reform Act, R.S.O. 1990, c. S.26, s. 4(1), Housen v. Nikolaisen, 2002 SCC 33, R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), Waxman v. Waxman, 2004 CanLII 39040, leave to appeal refused, [2004] S.C.C.A. No. 291; Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, leave to appeal refused, [2020] S.C.C.A. No. 409, Vout v. Hay, [1995] 2 S.C.R. 876, Palmer v. The Queen, [1980] 1 S.C.R. 759, Sengmueller v. Sengmueller (1994), 111 D.L.R. (4th) 19 (Ont. C.A.)

Pichelli v. Kegalj , 2021 ONCA 445

Keywords: Torts, Fraud, Deceit, Misrepresentation, Breach of Trust, Unjust Enrichment, Civil Procedure, Summary Judgment, Fresh Evidence, Rules of Civil Procedure, Rules 20.04(2.1), 20.04(2.2), 21, 25, 25.06(8), Hryniak v. Mauldin, 2014 SCC 7, Trotter Estate, 2014 ONCA 841, Royal Bank of Canada v 164397 Ontario Inc, 2021 ONCA 98, Sengmueller v. Sengmueller, 1994 111 D.L.R. (4th) 19 (Ont. C.A.)

Johnson v. Rajanna, 2021 ONCA 453

Keywords: Torts, Negligence, Medmal, Dentists, Civil Procedure, Summary Judgment, Expert Evidence, Standard of Care, Adjournments, Fresh Evidence, Experts, Expert Report, Rules of Civil Procedure, Rule 53.03(2.1), R. v. Palmer, [1980] 1 S.C.R. 759

Laurentian University of Sudbury (Re), 2021 ONCA 448

Keywords: Bankruptcy and Insolvency, Restructuring, Notice of Disclaimer, Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-3, Laurentian University of Sudbury v. University of Sudbury, 2021 ONSC 3392, Laurentian University of Sudbury (Re), 2021 ONCA 199, 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10, Edgewater Casino Inc. (Re), 2009 BCCA 40, Nortel Networks Corp. (Re), 2016 ONCA 332

Manastersky v. Royal Bank of Canada, 2021 ONCA 458

Keywords: Contracts, Employment, Wrongful Dismissal, Reasonable Notice, Damages, Supreme Court Act, R.S.C. 1985, c. S-26, s. 43(1.1), Manastersky v. Royal Bank of Canada, 2019 ONCA 609, Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, Paquette v. TeraGo Networks Inc., 2016 ONCA 618, Lin v. Ontario Teachers’ Pension Plan, 2016 ONCA 619, Taggart v. Canada Life Assurance Co. (2006), 50 C.C.P.B. 163 (Ont. C.A.)

Krebs v. Cote , 2021 ONCA 467

Keywords: Family law, Contracts, Interpretation, Cohabitation Agreements, Separation, Reconciliation, Civil Procedure, Summary Judgment, Determination of Question of Law, Family Law Act, RSO 1990, c. F3, ss 52 to54, Family Law Rules, Rule 16(12)(a), Montague Lush and Walter Hussey Griffith, Law of Husband and Wife within the Jurisdiction of the King’s Bench & Chancery Divisions, 3rd ed. (London: Stevens and Sons, Limited, 1910), Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, Ernikos v. Ernikos, 2017 ONCA 347, Sydor v. Sydor (2003), 178 O.A.C. 155 (C.A.), Bailey v. Bailey (1982), 37 O.R. (2d) 117 (C.A), Bebenek v. Bebenek (1979), 24 O.R. (2d) 385 (C.A.), Nicol v. Nicol (1885), 30 Ch. D. 143, Langdon v. Langdon, 2015 MBQB 153, Sandrelli v. Sandrelli, 2015 ONSC 7913, Hartshorne v. Hartshorne, 2004 SCC 22

Leslie v. Encanto Potash Trading Corporation, 2021 ONCA 464

Keywords: Contracts, Breach of Contract, Summary Judgment, Evidence, Cross-appeal, Costs, Interlocutory Appeal, Courts of Justice Act, R.S.O. 1990, c.43, Section 6(2), Rules of Civil Procedure, Rule 39.03

Moncur v. Plante, 2021 ONCA 462

Keywords: Family Law, Custody and Access, Civil Procedure, Orders, Enforcement, Civil Contempt, Carey v. Laiken, 2015 SCC 17, Greenberg v. Nowack, 2016 ONCA 949, Chong v. Donnelly, 2019 ONCA 799, Valoris pour enfants et adultes de Prescott-Russell c.K.R., 2021 ONCA 366, Ruffolo v. David, 2019 ONCA 385

Moore v. 7595611 Canada Corp., 2021 ONCA 459

Keywords: Torts, Negligence, Occupier’s Liability, Standard of Care, Damages, Mental Distress, Loss of Care, Guidance, and Companionship, Cost of Future Care, Civil Procedure, Jury Selection, Fresh Evidence, Juries Act, R.S.O. 1990, c. J.3, s. 44(1), Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, s. 76, Fire Code, O. Reg. 213/07, Fatal Accidents Act, R.S.A. 2000, c. F-8, s. 8(2), To v. Toronto Board of Education (2001), 204 D.L.R. (4th) 704 (Ont. C.A.), Young v. Bella, 2006 SCC 3, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, Fiddler v. Chiavetti, 2010 ONCA 210, Vokes Estate v. Palmer, 2012 ONCA 510, Rodrigues v. Purtill, 2019 ONCA 740, Gervais v. Richard (1984), 48 O.R. (2d) 191 (H.C.), Mason v. Peters (1982), 139 D.L.R. (3d) 104 (Ont. C.A.), Rodrigues v. Purtill, 2019 ONCA 740, Palmer v. The Queen, [1980] 1 S.C.R. 759

Tribute (Springwater) Limited v. Atif, 2021 ONCA 463

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Prejudgment Interest, Postjudgment Interest, Rules of Civil Procedure, Rule 25.06(9)(b), Courts of Justice Act, RSO 1990, c C43, ss 127, 128, 129, 130(1) and 130(2), Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, 100, Main Street East Ltd. v. W.B. Sullivan Construction Ltd. (1978), 20 O.R. (2d) 401 (C.A.), 642947 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (C.A.), Tribute (Springwater) Limited v. Sumera Anas, 2020 ONSC 5277, McKnight v. Ontario (Transportation), 2018 ONSC 52, Gyimah v. Bank of Nova Scotia, 2013 ONCA 252, Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R. (2d) 601 (C.A.), MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139, Forest Hill Homes v. Ou, 2019 ONSC 4332

CIVIL DECISIONS

Burns v. Brown, 2021 ONCA 450

[Brown J.A. (Motions Judge)]

Counsel:

J.A.B., acting in person
C. Doris, for the responding party
Keywords: Family Law, Civil Procedure, Appeals, Perfection of Appeal, Extension of Time, Rules of Civil Procedure, Rule 61.05(5), Issasi v. Rosenzweig, 2011 ONCA 112

facts:

The appellant brought a motion seeking an order to extend the time for the perfection of his appeal. The parties agreed to a settlement conference in March 2020. However, that conference was delayed due to the pandemic. Court timelines were reinstated on July 16, 2020, but the appellant did not contact the court to renew his request for a settlement conference until November 2020. Although the appellant did not receive a response until May 14, 2021, on January 4, 2021, the court sent the parties a Notice of Intention to Dismiss Appeal for Delay if the appeal was not perfected by April 27, 2021. The appellant deposed that he did not receive this notice.
The respondent no longer consented to a settlement conference. Therefore, Benotto J.A. advised the appellant that he must perfect his appeal by May 25, 2021. The appellant could not do so because he unilaterally suspended preparation of the trial transcript. The appellant reinstated the request for the transcripts and anticipated delivery by the end of June 2021.

issues:

(1) Would it be just under the circumstances to grant the appellant’s request for an extension of time to perfect his appeal?

holding:

Motion dismissed.

reasoning:

(1) No.
The appellant did not provide an adequate explanation for the delay. The court stated in January 2020 that to hold a settlement conference, the Joint Request for Pre-hearing Settlement Conference form had to be submitted, which it was not. Further, the appellant had breached Rule 61.05(5) of the Rules of Civil Procedure because the respondent did not consent to the suspension of the request for transcripts. This unilateral act materially contributed to the delay. In addition, the appellant did not act prudently when court timelines were reinstated in July 2020. He waited months to follow up with the court and then waited until May 2021 for a response. There was also evidence that the appellant used several delay tactics at trial that amounted to litigating in bad faith.
The court also considered the merits of the appeal in determining if an extension ought to be granted. There was no evidence that the trial judge made a palpable and overriding error. The trial judge dealt with both the amount of child support and parenting time at length. The appellant’s notice of appeal did not identify any legal or factual errors made by the trial judge. Therefore, the merits to the appeal were weak and the prejudice to the appellant did not outweigh the lack of reasonable explanation for the delay.


El-Khodr v. Northbridge Commercial Insurance Company, 2021 ONCA 440

[Doherty, Pepall and Thorburn JJ.A.]

Counsel:

J. Y. Obagi and E. A. Quigley for the appellant
H. Klein, for the respondent
Keywords: Torts, Negligence, MVA, Statutory Accident Benefits, Subrogation, Assignment, Contracts, Interpretation, Minutes of Settlement, Insurance Act, R.S.O. 1990, c. I.8, s. 267.8, Statutory Accident Benefits Schedule, O. Reg. 34/10, El-Khodr v. Lacki 2017 ONCA 716, 139 O.R. (3d) 659, leave to appeal refused, [2017] S.C.C.A. No. 461, El-Khodr v. Lackie, 2015 ONSC 5244, 79 C.P.C. (7th) 356, Carroll v. McEwen, 2018 ONCA 902, Cadieux v. Cloutier, 2018 ONCA 903, leave to appeal to refused, [2019] S.C.C.A. No. 63, Gilbert v. South, 2014 ONSC 3485, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Environs Wholesale Nursery LTD. v. Environs Landscape Contracting LTD., 2019 ONCA 547, 3113736 Canada Ltd. v. Cozy Corner Bedding Inc., 2020 ONCA 235, Angus v. Port Hope (Municipality), 2017 ONCA 566, leave to appeal refused, [2017] S.C.C.A. No. 382

facts:

In Ontario, parties injured in an automobile accident can receive “no fault” first-party benefits through receipt of statutory accident benefits (“SABs”). SABs provide a person injured in an accident, (whether or not) they are at fault, access to medical, rehabilitation, and other benefits to assist with their recovery. An injured person may also bring a legal action against the “at fault” driver in tort (“the tort defendant”).
The appellant suffered catastrophic injuries in a motor vehicle accident. The appellant’s insurer was Royal & Sun Alliance Insurance Company of Canada (“Royal”). The respondent, Northbridge Commercial Insurance Company (“Northbridge”), was the insurer for the tort defendant and conducted the defence on the tortfeasor’s behalf.
The jury awarded the appellant substantial damages payable by the tortfeasor. The respondent, as insurer for the tortfeasor, sought an assignment of certain accident benefits payable by Royal to the appellant. While the trial judge assigned some benefits, the assignment of benefits for future medication and assistive devices and future professional services was denied.
The respondent appealed the decision (“the Assignment Appeal”). After the Assignment Appeal was heard, Royal, the respondent, and the appellant entered into Minutes of Settlement. Under the Minutes of Settlement, Royal settled $385,000 into a trust for the benefit of the appellant and the respondent in “full and final satisfaction of any and all entitlement to medical and rehabilitations benefits.” The Minutes of Settlement provided that the sum would be held by Hughes Amys LLP, counsel to the respondent, and released either to the appellant or the respondent depending on the outcome of the Assignment Appeal. Specifically, the respondent would receive the funds “in the event that the said appeal is allowed and an assignment of Kossay El-Khodr’s entitlement to medical and rehabilitation benefits is granted to Northbridge.”
In September 2017, the Assignment Appeal was granted, and the court ordered that the amounts payable be assigned to the respondent. The appellant argued that in the Assignment Appeal, the court did not order “assignment of Mr. El-Khodr’s entitlement of medical and rehabilitation benefits” as it assigned only part of those benefits and, as such, the second precondition to the transfer of funds was not satisfied. The application judge rejected this argument and held that the conditions set out in the Minutes of Settlement were met.

issues:

(1) Did the application judge make a palpable and overriding error of fact or an extricable error of law in failing to properly construe the preconditions for payment to Northbridge in the Minutes of Settlement?

holding:

Appeal dismissed.

reasoning:

(1) No
To assess whether the application judge erred in her interpretation of the Minutes of Settlement, it was necessary to understand (a) the available approaches to the assignment of the SABs benefits, (b) the background facts and terms of the Minutes of Settlement, (c) the decision of the Court on the Assignment Appeal, and (d) the reasons of the application judge.
A. The Available Approaches to the Assignment of SABs
One of the methods to address the overlap between damages awarded and SABs received is the “silo” approach. Which only includes three broad categories of SABs under the Insurance Act: income replacement benefits, health care benefits, and other pecuniary losses. Under the “silo” approach, tort damages are only required to match generally with a corresponding SABs category.
In Carroll and Cadieux, the court adopted the “silo” approach to the treatment and matching of SABs to tort damages under section 267.8 of the Insurance Act. Carroll and Cadieux were rendered after the Assignment Appeal was decided in September 2017.
B. Background Facts
In January 2007, the appellant was awarded damages for an action against the tortfeasor. After the verdict, no SABs relating to future professional services and medications and assistive devices were assigned. In denying the assignment of these benefits, the trial judge reasoned those benefits should be assigned only if the plaintiff’s entitlement to such benefits is certain and that the plaintiff received compensation for the same benefits in the tort judgment. The trial judge found that “the Defendants are now unable to meet their onus to demonstrate that the jury award compensated the Plaintiff for the same loss in respect of which the Defendants now claim an assignment of benefits.”
In its Supplementary Notice of Appeal, the respondent argued that the approach taken by the trial judge effectively allowed double recovery and took the position that the “silo” approach to the assignment of accident benefits should be taken. The appellant took the position that the match approach should be followed.
C. Disposition of the Assignment Appeal
The Court rendered its judgment in the Assignment Appeal on September 19, 2017. The Court allowed the appeal and amended the trial judge’s order so that Royal’s future payments to the appellant for medication and assistive devices up to a total of $82,429.00 (i.e., the amount the jury had awarded for medication and assistive devices) and future payments for specified professional services up to a total of $424,550.00 (i.e., the amount the jury had awarded for professional services) be assigned to the respondent.
D. The Application Judge’s Order
The issue in this appeal turned upon the interpretation of a contract. The appellant had to establish a palpable and overriding error of fact or an extricable error of law. Such errors include the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 52-53.
The application judge was correct to hold the terms of the Minutes of Settlement were satisfied and the contract was not frustrated because the only issue on the Assignment Appeal was the assignment of the appellant’s entitlement to future benefits for medications and assistive devices, and for professional services. The parties understood, when the Minutes of Settlement were signed, that because of the Assignment Appeal, these benefits would either be assigned to Northbridge or the trial judge’s decision not to assign these benefits would be upheld.
The appellant was aware that the amount in the Minutes of Settlement was a full and final settlement subject only to the outcome of the Assignment Appeal and the Assignment Appeal was only in respect of future medication and assistive device and professional services. The application judge did not order the assignment of all settlement amounts for these benefits. The application judge only assigned medical and rehabilitation benefits in the amount of $385,000 as per the Minutes of Settlement. The appellant was awarded and paid $82,429 for future medication and assistive devices and $424,550 for professional services before the settlement was reached. Those sums exceeded the $385,000 settlement amount for medical and rehabilitation benefits set out in the Minutes of Settlement by $121,979.
For these reasons, the court did not agree with the appellant’s argument that the outcome of the Assignment Appeal was not contemplated by the parties at the time they entered the Minutes of Settlement and, thus, the settlement agreement was frustrated. The application judge’s interpretation was consistent with the reasoning of the Court on the Assignment Appeal.


Bayford v. Boese, 2021 ONCA 442

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

Counsel:

E.A. Cherniak, Q.C., I.M. Hull and D. Lok Yin So, for the appellant
T. Simmonds, for the respondent
Keywords: Wills and Estates, Wills, Formal Validity, Civil Procedure, Expert Evidence, Fresh EvidenceSuccession Law Reform Act, R.S.O. 1990, c. S.26, s. 4(1), Housen v. Nikolaisen, 2002 SCC 33, R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), Waxman v. Waxman, 2004 CanLII 39040, leave to appeal refused, [2004] S.C.C.A. No. 291; Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, leave to appeal refused, [2020] S.C.C.A. No. 409, Vout v. Hay, [1995] 2 S.C.R. 876, Palmer v. The Queen, [1980] 1 S.C.R. 759, Sengmueller v. Sengmueller (1994), 111 D.L.R. (4th) 19 (Ont. C.A.)

facts:

The deceased owned a farm, was never married, and had no children. The respondent was a long-time friend of the deceased and assisted him with the operation of his farm for two decades prior to his death. The deceased executed a will in 1992 which passed his estate on to his parents; however, as his parents had both passed away before the deceased, in the absence of a subsequent valid will, his estate would pass on an intestacy to his brother, the appellant, and the two daughters of his deceased sister.
In 2009, the deceased gave the respondent a power of attorney over his property and personal care. In 2013, the deceased worked with his lawyer to draft a new will naming the respondent as the sole beneficiary of his estate, but did not execute this will before passing away. This draft will is dated August 15, 2013, and has the word DRAFT on every page. Two versions of the 2013 will were marked as exhibits at trial, Version 1 with only the deceased’s signature and Version 2, which includes the deceased’s signature and the signature of two witnesses. The central factual issue was whether Version 2 had been signed by the witnesses prior to the deceased’s death, or afterwards, when the respondent realized it needed witness signatures to be valid.
The respondent’s evidence, accepted by the trial judge, was that she ran into one of the witnesses who testified that they witnessed the deceased sign the will on August 15, 2013, then searched through the house again before finding Version 2 of the will on top of a kitchen cupboard.
The appellant’s position was that the respondent, with the cooperation of the two witnesses, created Version 2 after learning that Version 1 was invalid. This was supported by the fact that the original Version 1 was never produced at trial and that the respondent’s evidence at trial was inconsistent and lacked credibility. The appellant maintained that the reason Version 1 was never produced at trial is because it is the same document that became Version 2 when “witnessed” in the weeks following the deceased’s death. His central argument was that the trial judge misapprehended the expert evidence, which was that the deceased’s signatures on Version 1 and Version 2 were copies of one another, and this misapprehension tainted the rest of the trial judge’s findings. At trial, the original copies of both Version 1 and Version 2 were unavailable so the judge and expert had to rely on photocopies.
Version 2 has since been found, and the respondent filed a motion to introduce it as fresh evidence.

issues:

(1) Did the trial judge err in finding that the respondent had discharged her burden to prove the formal validity of the will, which she claimed to have found a number of weeks after his death in June 2015?
(2) Can the respondent introduce Version 2 of the will as fresh evidence on this appeal?

holding:

Appeal allowed.

reasoning:

(1) Yes.
The trial judge erred in finding that the respondent had discharged her burden to prove the formal validity of the will due to a misapprehension of the content and significance of expert evidence. The trial judge made a number of palpable and overriding errors throughout the trial, with the main error being misapprehending the expert’s evidence.
The trial judge was not alive to the essence of the respondent’s claim that Version 1 and Version 2 of the will were the same document, or that the witnesses had signed Version 1, making it Version 2, after the deceased’s death. The expert concluded that the signatures on the photocopies of Version 1 and Version 2 were copies of one another, and testified, as a handwriting expert, that no two signatures are exactly alike because of natural variations in writing. The trial judge did not appreciate the significance of the expert’s evidence that the signatures were copies and failed to infer that this meant the deceased could not have signed both copies. The trial judge specifically observed that it was difficult to understand how the expert evidence supported the appellant’s theory.
The misapprehension of the expert evidence in this case was a significant error. Had the trial judge understood the implications of the expert evidence, she would likely have approached the rest of the evidence differently. For example, she may have given more weight to the fact that Version 1 was missing.
Twice, the trial judge stated that the fact that Version 1 was missing was irrelevant to the validity of Version 2, but the significance and relevance stems from the possibility that Version 1 had become Version 2. If the respondent’s theory was correct, and the appellant had arranged to have “witnesses” sign the will after the deceased’s death, then it would make sense that there would be no Version 1. However, the trial judge stated that it was up to the respondent to produce the original Version 1 of the will and call evidence as to why the expert was working with photocopies. The trial judge further erred with this expectation, as the onus of proving the validity of a will lies on the propounder of the will, in this case the respondent. The very fact that the respondent could not produce the original Version 1 is what gave rise to the issue of the validity of Version 2.
The respondent did not meet her onus of establishing the formal validity of the will.
(2) No.
The respondent did not meet the test for the admission of fresh evidence because the admission of the original Version 2 is not conclusive as to whether Version 2 of the will is valid or as to what happened to the original Version 1. Admitting Version 2 was not necessary to deal fairly with the issues on appeal and declining to admit it would not result in substantial injustice.


Pichelli v. Kegalj, 2021 ONCA 445

[Roberts, Zarnett and Sossin JJ.A.]

Counsel:

D. M. Cunningham, for the appellants
N. Paris, for the respondent
Keywords: Torts, Fraud, Deceit, Misrepresentation, Breach of Trust, Unjust Enrichment, Civil Procedure, Summary Judgment, Fresh Evidence, Rules of Civil Procedure, Rules 20.04(2.1), 20.04(2.2), 21, 25, 25.06(8), Hryniak v. Mauldin, 2014 SCC 7, Trotter Estate, 2014 ONCA 841, Royal Bank of Canada v 164397 Ontario Inc, 2021 ONCA 98, Sengmueller v. Sengmueller, 1994 111 D.L.R. (4th) 19 (Ont. C.A.)

facts:

The appellants invested money in a land development that never came to fruition. The appellants argued that the respondent, together with the defendants, carried out a fraudulent scheme for their own personal enrichment. The appellants claimed judgment against the respondent and other defendants jointly and severally for general and punitive damages for breach of contract, misrepresentation, deceit, fraud, conversion, detinue, breach of fiduciary duty, breach of trust, and unjust enrichment.
The appellants’ action was case managed with an action brought by other investors who had also lost money in the land development. These plaintiffs advanced similar claims against the respondent and defendants. However, the respondent only pursued summary judgment in this action. In response, the appellants moved to adjourn the motion until the documentary and oral discoveries in both actions were completed due to the risk of adverse factual and legal consequences for the absent plaintiffs. The appellants argued the respondent sought an impermissible form of partial summary judgment. The motion judge dismissed this argument and granted summary judgment. The motion judge’s analysis turned on the appellants’ admissions that they had no knowledge of the respondent’s alleged role in the fraudulent scheme during the relevant period. The motion judge concluded that the appellants’ recourse was against the other defendants and there was no genuine issue requiring a trial.
The appellants appealed the dismissal of their action and argued the motion judge erred in his application of the analytical framework set out in Hryniak v. Mauldin, 2014 SCC 7 (Hryniak), and in concluding that there were no genuine issues requiring a trial. Additionally, the appellants move to admit fresh evidence on appeal.

issues:

(1) Can the appellant submit fresh evidence on appeal?
(2) Did the motion judge err in his analytical approach to summary judgment?
(3) Did the motion judge err in concluding that there were no genuine issues requiring a trial?

holding:

Appeal allowed.

reasoning:

(1) Yes.
The Court held that the appellants could submit fresh evidence on the appeal, as it was highly relevant to ascertaining the respondent’s role in the fraudulent scheme. The Court further held that the admission of fresh evidence was necessary to deal fairly with the issues on appeal and declining to admit the evidence could lead to a substantial injustice: Sengmueller v. Sengmueller, 1994 111 D.L.R. (4th) 19 (Ont. C.A.).
(2) Yes.
The motion judge erred in his analytical approach to summary judgment, and therefore was not afforded deference on appeal: Hryniak; Trotter Estate, 2014 ONCA 841. The motion judge did not fully follow the framework set out in Hryniak and subsequent case law, and failed to engage in a broad assessment of the entire record to determine whether summary judgment was appropriate. Instead, he focused on the adequacy of the pleadings and the appellant’s admissions that they had no contact with or knowledge of the respondent.
The motion judge’s approach caused him to reject the appellants’ contention that a trial was required and conclude that there was no need to resort to the fact-finding powers available under rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. Additionally, the motion judge’s approach caused the nature of the appellants’ fraud allegations and the relevant evidentiary support to be misapprehended. The motion judge erred when finding that the appellant’s claim was limited to fraudulent misrepresentation, and that there was no evidence that the respondent was unjustly enriched or had received any funds the defendant’s received from the appellants. The Court ruled that the fact that the appellants did not frame their fraud allegations in perfectly pleaded causes of action should not have been the focus of the motion judge’s analysis. The Court held there was no suggestion the appellants failed to plead fraud with sufficient particularity as per Rule 25.06(8) of the Rules. The Court held that the motion judge was required to determine whether it was appropriate to grant summary judgment by engaging with the Hryniak framework and taking a comprehensive look at the entire record.
The Court held that the motion judge relied too heavily on the fact that that the appellants did not know or have dealings with the respondent at the relevant time, causing him to ignore evidence that supported the respondent’s participation in the alleged fraudulent scheme and his unjust enrichment at the appellants’ expense. The motion judge was incorrect when he accepted that there was no factual basis to support any of the causes of action pleaded based only on the appellant’s admissions. The Court held that it was likely the appellants would not know who the respondent was at the relevant time due to the nature of a fraudulent scheme and that the appellants were not required to prove they knew who the respondent was or the role he assumed in the scheme to make out their claims.
When the relevant evidence was brought before the motion judge, he failed to explain why he rejected it or why he preferred the respondent’s evidence when conflict arose. The motion judge was required to determine if he could resolve this conflict by recourse under Rules 22.04(2.1) and (2.2) of the Rules or whether they raised genuine issues of credibility that required a trial.
(3) Yes.
The motion judge erred when concluding that there were no genuine issues requiring a trial. The Court held that the trial judge did not seriously engage with the Hryniak analytical framework and the record and did not properly analyze the evidence: Royal Bank of Canada v 164397 Ontario Inc, 2021 ONCA 98. The Court held that after the correct application of the Hryniak framework, there are genuine issues requiring a trial concerning the respondent’s alleged role in the fraudulent scheme.


Johnson v. Rajanna, 2021 ONCA 453

[Rouleau, Hoy and van Rensburg JJ.A.]

Counsel:

D. Ambrosini, for the appellant
M. Tessier, for the respondents
Keywords: Torts, Negligence, Medmal, Dentists, Civil Procedure, Summary Judgment, Expert Evidence, Standard of Care, Adjournments, Fresh Evidence, Experts, Expert Report, Rules of Civil Procedure, Rule 53.03(2.1), R. v. Palmer, [1980] 1 S.C.R. 759

facts:

The appellant commenced an action against the respondents for dental malpractice arising out of the extraction of a molar in April 2013. In February 2016, the respondents gave the notice of their intention to seek a summary dismissal of the action because the appellant had failed to obtain an expert report.
The appellant asked for an adjournment to provide time to retain an expert, this was granted on a peremptory basis, and a timetable was imposed that required the appellant to have the necessary information by September 2019. When the motion was heard in March of 2020, no expert report had been obtained. Instead, the appellant produced an unsigned, undated, two-page document from an unnamed retired dentist which stated that discrepancies suggesting negligence and malpractice were present. The motion judge concluded the appellant was unable to obtain an expert report to support her claim. Given the complexity of determining liability in such cases and the respondent’s favourable expert report, the summary dismissal was granted.
After the hearing, the appellant produced the expert report, prepared by Dr. Kellen, who had produced the previous documents. The opinions expressed in the report suggested that the conduct of the respondent’s indicated negligence. The appellant appealed the motion judge’s summary dismissal.

issues:

(1) Should the admission of fresh evidence, the expert report, be allowed?

holding:

Appeal allowed.

reasoning:

(1) Yes
The Court found that each of the four steps for the admissibility of fresh evidence in R. v. Palmer, [1980] 1 S.C.R. 759, had been met.
First, the appellant had attempted to obtain an expert report. She spoke of her difficulty in finding someone to opine that a fellow dentist was negligent. She only succeeded in finding Dr. Kellen days before the scheduled summary judgment motion. Therefore, even with the appellant’s due diligence, the evidence was incapable of being adduced at trial.
The second factor, that the evidence be relevant, was not in dispute.
Third, despite the lack of a Form 53, the evidence of Dr. Kellen was believable. However, certain deficiencies in the report, such as “assumptions” made by the doctor, could prove fatal if not rectified before trial.
Finally, the Court found that if the motion judge had had the benefit of Dr. Kellen’s affidavit, the judge would not have found in the respondents’ favour. The respondents had the onus of establishing there was no genuine issue requiring a trial. The affidavit would have shown that the appellant suffered real injury. The motion judge, with the benefit of the report, would have found it in the interest of justice to adjourn to allow the appellant to fix the deficiencies in the expert report.


Laurentian University of Sudbury (Re), 2021 ONCA 448

[Hoy, Pepall and Zarnett JJ.A.]

Counsel:

A. Hatnay, D. Yiokaris, and S. Edmonds, for the moving party, Thorneloe University
D. Miller, S. McGrath and D. Harland, for the responding party, Laurentian University of Sudbury
V. DaRe, for the responding party, Firm Capital Mortgage Fund
Keywords: Bankruptcy and Insolvency, Restructuring, Notice of Disclaimer, Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-3, Laurentian University of Sudbury v. University of Sudbury, 2021 ONSC 3392, Laurentian University of Sudbury (Re), 2021 ONCA 199, 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10, Edgewater Casino Inc. (Re), 2009 BCCA 40, Nortel Networks Corp. (Re), 2016 ONCA 332

facts:

On February 1, 2021, Laurentian University of Sudbury (“Laurentian”) obtained protection under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“CCAA”), to permit it to restructure to emerge as a sustainable university for the benefit of all stakeholders. Laurentian, with assistance of the Monitor, decided to downsize its programs and realign its arrangements with three Federated Universities, Thorneloe University (“Thorneloe”) being one of them.
The relationship between Laurentian and the Federated Universities consisted of the Federated Universities offering courses to students through Laurentian and Laurentian distributing a portion of its revenue to the Federated Universities. The Federated Universities do not admit or register their own students, nor do they grant their own degrees, and all students apply to Laurentian.
Laurentian was not successful in reaching the required readjustments with the Federated Universities by way of court-ordered mediation. Laurentian and the DIP Lender, Firm Capital Mortgage Fund Inc., entered into a DIP Loan Amendment Agreement, under the condition that the disclaimers would be issued on April 1, 2021, and become effective, binding and final on May 1, 2021. With approval of the Monitor, Laurentian sent notices of disclaimer of the Federation Agreements and Financial Distribution Notices to the Federated Universities.
In its report, the Monitor stated that the notices of disclaimer would enhance the prospects of a viable compromise and that, without them, Laurentian was unlikely to be able to complete a viable plan.
Thorneloe brought a motion pursuant to s. 32(2) of the CCAA challenging its disclaimer notice. The CCAA judge dismissed Thorneloe’s motion. Thorneloe sought leave of appeal on the ground that allowing the disclaimer will result in Thorneloe’s insolvency and provide only de minimis financial benefit to Laurentian. Additionally, Thorneloe submitted that the motive for the disclaimer is the elimination of competition, which is inconsistent with the duty to act in good faith.

issues:

(1) Should leave to appeal be granted?

holding:

Motion dismissed.

reasoning:

(1) No
The Court found no error in the CCAA judge’s conclusion that upholding the notice of disclaimer is the “least undesirable choice” that would enhance the prospects of a viable restructuring. The Court recognized the serious financial implications of the disclaimer for Thorneloe, but was not persuaded that there was any basis for interfering with the CCAA judge’s factual findings or legal conclusions.
The Court pointed to the high deference that is owed to discretionary decisions made by judges supervising CCAA proceedings and recognized that appellate intervention is justified only where the judge erred in principle or exercised its discretion unreasonably, see 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10.
The court refused to grant leave based on four factors set out in Nortel Networks Corp. (Re), 2016 ONCA 332. First, the proposed appeal was not prima facie meritorious and Thorneloe’s grounds of appeal included factual assertations that ran contrary to the CCAA judge’s factual findings. Second, the Court was not convinced that the appeal was of significance to the practice of insolvency law, as the issues raised turned on the application of existing law to the particular facts of the case. Third, in the Court’s view, granting leave would unduly hinder the progress of the action and would be a distraction from the real-time restructuring efforts. Finally, the Court agreed that the proposed appeal was of significance to the action, but this factor alone was no found to be sufficient basis on which to grant leave.


Manastersky v. Royal Bank of Canada, 2021 ONCA 452

[Feldman, Brown and Miller JJ.A.]

Counsel:

J. Devereux and G. Mens, for the appellant
N. Shapiro, for the respondent
Keywords: Contracts, Employment, Wrongful Dismissal, Reasonable Notice, Damages, Supreme Court Act, R.S.C. 1985, c. S-26, s. 43(1.1), Manastersky v. Royal Bank of Canada, 2019 ONCA 609, Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, Paquette v. TeraGo Networks Inc., 2016 ONCA 618, Lin v. Ontario Teachers’ Pension Plan, 2016 ONCA 619, Taggart v. Canada Life Assurance Co. (2006), 50 C.C.P.B. 163 (Ont. C.A.)

facts:

The respondent brought a wrongful dismissal claim against the appellant. At trial, the appellant conceded that it had terminated the respondent’s employment without cause. During his employment, the respondent participated in a profit-sharing plan called the Mezzanine Carried Interest Plan (“MCIP”). At the date of termination, the MCIP had two funds. Each had a designated Investment Period. The respondent carried his interest in the funds from 2008-2014. Months after termination of the respondent, the appellant wound up the two funds in the MCIP and approved termination of future Investment Periods. The respondent was compensated for his interest.
The trial judge awarded the respondent 1) $953,392.50 in respect of “the lost opportunity to earn entitlements under” the MCIP during the 18-month reasonable notice period, and 2) $190,789 in respect of the respondent’s share of investment proceeds under the MCIP for the period 2005 to 2013, as calculated using his foreign exchange methodology.
The Court allowed the appellant’s appeal regarding the damages under the reasonable notice period and dismissed the appeal regarding the investment proceeds using the foreign exchange methodology: Manastersky v. Royal Bank of Canada, 2019 ONCA 609 (the “Original Decision”). Pursuant to s. 43(1.1) of the Supreme Court Act, the case was remanded to the Court with the direction to dispose of it in accordance with the Supreme Court’s recent decision in Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26.

issues:

(1) Should the Original Decision of thr Court be altered on remand in light of the Supreme Court’s decision in Matthews?

holding:

Original Decision affirmed.

reasoning:

(1) No.
Matthews stands for two key principles: 1) When employees sue for wrongful dismissal, they are claiming for damages as compensation for the income, benefits, and bonuses they would have received had the employer not breached the implied term to provide reasonable notice; and 2) an employment contract “remains alive” for the purposes of assessing the employee’s damages. The employee is entitled to damages for bonuses or incentives if they would have been entitled to the same as part of their compensation during the reasonable notice period and if the terms of the contract or bonus plan does not take away this common law right: Matthews, para. 55.
In the Original Decision, the majority concluded that the respondent was entitled to benefits during the reasonable notice period with respect to the two funds because the terms of the MCIP created a link to specific Investment Periods. The terms further stated that the fact that the respondent has rights to money from the two funds in the relevant Investment Periods does not give him rights under any future Investment Period. Therefore, the MCIP terms unambiguously restrict the respondent’s common law right to compensation beyond what was provided with respect to his interest in the funds in the two Investment Periods.
The respondent argued that he deserved his payout from the two funds as well as $953,392.50 in damages for the reasonable notice period, historically annualized to the previous payout on a pro rata basis. The Court disagreed. This recharacterized the common law right provided by the MCIP terms to some form of annual bonus. In fact, it is a “carried interest” plan that makes it clear that annual payments were not made. The MCIP’s formula for calculating a bonus remains relevant to the inquiry into what benefit the employee would have been entitled to as part of his or her compensation during the reasonable period of notice: Paquette v. TeraGo Networks Inc., 2016 ONCA 618, at para. 18. The Matthews decision did not change this.


Kerbs v. Cote, 2021 ONCA 450

[Tulloch, Pardu and Roberts JJ.A.]

Counsel:

D. Goodman, for the appellant
A. Gibson and A. Reitboeck, for the respondent
Keywords: Family law, Contracts, Interpretation, Cohabitation Agreements, Separation, Reconciliation, Civil Procedure, Summary Judgment, Determination of Question of Law, Family Law Act, RSO 1990, c. F3, ss 52 to54, Family Law Rules, Rule 16(12)(a), Montague Lush and Walter Hussey Griffith, Law of Husband and Wife within the Jurisdiction of the King’s Bench & Chancery Divisions, 3rd ed. (London: Stevens and Sons, Limited, 1910), Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, Ernikos v. Ernikos, 2017 ONCA 347, Sydor v. Sydor (2003), 178 O.A.C. 155 (C.A.), Bailey v. Bailey (1982), 37 O.R. (2d) 117 (C.A), Bebenek v. Bebenek (1979), 24 O.R. (2d) 385 (C.A.), Nicol v. Nicol (1885), 30 Ch. D. 143, Langdon v. Langdon, 2015 MBQB 153, Sandrelli v. Sandrelli, 2015 ONSC 7913, Hartshorne v. Hartshorne, 2004 SCC 22

facts:

The parties began an “off-and-on-again” relationship in 2006, with numerous separations. This continued in 2012-2013 when the parties separated on a few occasions. In December 2012 or January 2013, the parties decided to resume cohabitation and, during this period, entered into the cohabitation agreement (“the Agreement”) that was the subject of this appeal. The respondent moved out of the home shortly after.
In 2014, the two reconciled and in June of 2014 married, moving back into the appellant’s home. The parties discussed adding the respondent to the title to the matrimonial home in 2016, but that was ultimately not pursued. The relationship broke down in 2019.
The respondent brought a motion for summary judgment, specifically, for an Order declaring the Cohabitation Agreement invalid, non-binding, and of no force or effect. The motion judge was meant to decide the question of law of whether separation followed by reconciliation terminated the Agreement. Although the notice of motion was confined to a question of law, the motion judge went on to make findings about the subjective intentions of the parties.
The motion judge found the Agreement to be of no force or effect for three reasons. First, that the common law principle holding that reconciliation terminated a separation agreement applied to cohabitation agreements. Second, the discussion about transferring title to the matrimonial home showed that the parties did not subjectively intend that the Agreement would continue to apply in the event of a separation and reconciliation. Finally, the motion judge held that the consideration for the $5,000 payment was the respondent’s relocation from the matrimonial home and that, since that triggering event had occurred and payment made, the terms of the Agreement were exhausted.

issues:

(1) Did the motion judge err in concluding that a reconciliation terminates a cohabitation agreement?
(2) Did the motion judge err in failing to interpret the whole of the plain language of the contract in the factual context existing when it was signed?
(3) Did the motion judge err in concluding that a payment made pursuant to the agreement exhausted the terms of the rest of the agreement.

holding:

Appeal allowed.

reasoning:

(1) Yes
It is well-established that, at common law, a separation agreement becomes void upon reconciliation of the parties, subject to any clause in the separation agreement overriding the common law rule: Ernikos v. Ernikos, 2017 ONCA 347. However, the Court refused to extend this rule to cohabitation agreements.
The Court found that where the raison d’être of a separation agreement is separation, and the parties then reconcile, the foundation for the separation agreement dissolves. There was no basis to extend this logic so as to void a cohabitation agreement following reconciliation of the parties. Under such circumstances, the reconciled parties have returned to the very state contemplated by the cohabitation agreement.
The Court, citing Langdon v. Langdon, 2015 MBQB 153, held that reconciliation leading to renewed cohabitation is more reflective of an intention to return to a relationship where one’s rights were formerly delineated by the agreement. Therefore, the reconciliation did not terminate the Agreement.
(2) Yes
The Court found that the motion judge had made extricable errors of law in his interpretation of the Agreement. He approached the interpretive process with the idea that the Agreement had to gainsay application of the common law test. He did not analyse the intentions of the parties at the time they entered into the agreement nor the contractual language itself. He made a finding about their subjective intentions not feasible on the record before him.
The Agreement envisaged cohabitation, marriage, divorce, separation, and death of a party. It provided that “the parties intend by this Agreement to outline their respective rights and obligations while cohabiting, before or during marriage, upon death and in the event of separation”. Further, the Agreement specifically contemplated that the one party could transfer property to the other. To this extent, the 2016 discussion of transfer of some part of title to the matrimonial home was entirely consistent with the cohabitation agreement.
Reading the contract as a whole, the Court concluded that the Agreement was intended to apply despite a separation and subsequent reconciliation preceding the final separation.
(3) Yes
The motion judge relied on Sandrelli v. Sandrelli, 2015 ONSC 7913, in holding that “if the parties intend the agreement to continue after they reconcile the agreement needs to state that”. Sandrelli was a case about a cohabitation agreement that explicitly contained a clause providing for disposition of property upon the happening of certain “triggering events”, including separation. The respondent, relying on Sandrelli, argued that the payment by the appellant to the respondent of $5,000 was a similar triggering event which brought the agreement to an end.
The Court disagreed and found that the broad language of the agreement evinced an objective intention to have the agreement apply in general to cohabitation, including that which follows a separation and reconciliation. One could reasonably conclude that the $5,000 payment was intended to assist the respondent with a move to her own accommodation. There was no presumption that reconciliation brings an end to cohabitation agreements.


Leslie v. Encanto Potash Trading Corporation, 2021 ONCA 432

[Doherty, Benotto and Thorburn JJ.A.]

Counsel:

S. Hutt and M. Desforges, for the appellants
J. E. MacDonnell, for the respondent
Keywords: Contracts, Breach of Contract, Summary Judgment, Evidence, Cross-appeal, Costs, Interlocutory Appeal, Courts of Justice Act, R.S.O. 1990, c.43, Section 6(2), Rules of Civil Procedure, Rule 39.03

facts:

The appellants, Ms. L and her company, Grip Fast Strategies Corp. (“Grip Fast”), provided consulting services to the respondent. The respondent stopped paying her invoices and the appellants alleged that the respondents reneged on a stock option promised to the appellants. The appellants sued the respondent, Encanto, its affiliated company, Encanto Potash Trading Corp. (“EPTC”) and its CEO, Mr. D. All of the defendants, including the respondents, moved for summary judgment. The motion judge allowed the motion brought by the respondents’ affiliate company and CEO and dismissed the action against them. The motion judge dismissed the motion brought by the respondents and ordered the claim against them to proceed to trial. The respondents moved successfully for security costs against the appellant, Grip Fast.
The appellants appealed the order dismissing the action against Mr. D and the order for security for costs. Encanto cross appealed the refusal of the motion judge to grant summary judgment dismissing the claim against Encanto. All parties submitted that the appeals from interlocutory orders were so interrelated with the issues arising on appeal from the dismissal of the action against Mr. D that the Court of Appeal should exercise its jurisdiction under s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c.43 and hear the interlocutory appeals.

issues:

(1) Should the Court hear an appeal from the interlocutory orders granting security for costs and dismissing Encanto’s motion for summary judgment?
(2) Did the motion judge err in dismissing the claim against Mr. D?

holding:

Appeal from interlocutory orders quashed. Appeal dismissed.

reasoning:

(1) No.
The order requiring Grip Fast to post security for costs was interlocutory, as was the order dismissing Encanto’s motion for summary judgment. Interlocutory orders are not appealable in the normal course to the Court of Appeal. The Court held that the dismissal of the appeal as it related to the action against Mr. D did not require the determination of any issues that were integral to the other appeals. Therefore, there was no basis to invoke the Court’s jurisdiction under s. 6(2) of the Courts of Justice Act to hear Grip Fast’s appeal or Encanto’s cross appeal. Therefore, the appeal by Grip Fast and the cross appeal by Encanto were quashed as interlocutory.
(2) No.
The order dismissing the action against Mr. D was a final order and the appellants did have a right of appeal from that order. The evidence before the motion judge indicated that Ms. L dealt with Mr. D in his capacity as CEO of Encanto and the evidence spoke of an agreement between the two parties with detailed corresponding documentation supporting this contractual relationship. Based on the evidence, the Court upheld the motion judge’s decision that there was no genuine issue of the identity of the contracting parties.
The Court had an issue with the allegation that Mr. D had provided a personal guarantee in respect to any consulting fees owed to Ms. L. The Court held there were no details provided in the pleadings, Ms. L’s affidavit, or the evidence that would support this claim. The Court found that many of the appellant’s personal claims against Mr. D were unsupported by evidence. There was no evidence that Mr. D misrepresented his background to Ms. L, or if he did, that Ms. L could reasonably rely on any representation as to the enforceability of the agreement with Encanto. Furthermore, the Court held there was no basis to hold that anything done by him in respect of non-payment of the invoices was done in any capacity other than as CEO of Encanto. For these reasons, the Court dismissed the appeal from the dismissal of the claim against Mr. D.


Moncur v. Plante, 2021 ONCA 432

[Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.]

Counsel:

M. H. Twyman, for the appellant
M. Marrello, for the respondent
Keywords: Family Law, Custody and Access, Civil Procedure, Orders, Enforcement, Civil Contempt, Carey v. Laiken, 2015 SCC 17, Greenberg v. Nowack, 2016 ONCA 949, Chong v. Donnelly, 2019 ONCA 799, Valoris pour enfants et adultes de Prescott-Russell c.K.R., 2021 ONCA 366, Ruffolo v. David, 2019 ONCA 385

facts:

The appellant appeals (1) the motion judge’s order finding her in contempt of court for four breaches of the final parenting order made on consent in November 2018 (“parenting order”); and (2) the order of the motion judge ordering the appellant to comply strictly with the parenting order and to pay the respondent $2,500 as sanctions for contempt and $10,000 in costs.
The parties married in 2007, had a child together in 2010, and separated in 2015. Parenting issues were resolved through the parenting order in 2018, which governs the parties’ joint decision-making responsibilities and parenting time, parenting schedule, communication between the parties, residence, travel, documents and registrations. It also provides for resolving parenting disputes by negotiation, then mediation, and finally arbitration.
In November 2019, the respondent sought an order that the appellant be found in contempt of court for breaching the parenting order ten times between December 2018 and July 2019. The respondent alleged that the appellant overheld the child twice, attended the child’s activities and school several times during the respondent’s parenting time, unilaterally changed the date of the child’s First Communion without advising the respondent, and failed to provide him with a copy of the child’s Social Insurance Number (“SIN”) card. The motion judge held the matter in abeyance until the parties completed arbitration in the best interests of the child and the parties’ relationship. However, the parties did not proceed to arbitration and appeared before the motion judge again. The respondent argued that by the motion judge delaying his ruling, the court was causing more conflict while the appellant argued that the contempt motion was being “weaponized” against her and used to avoid the arbitration.
The motion judge found the appellant in contempt for four of the ten alleged breaches of the parenting order and ruled that the appellant violated the parenting order by: unilaterally modifying the child’s schedule twice, unilaterally changing the child’s First Communion date without effective notice or consultation with the respondent and failing to provide the respondent with a copy of the child’s SIN card as required. The motion judge stated the monetary sanctions were appropriate “given the extent of the contempt” and to impress upon the appellant her obligation to abide by the parenting order.

issues:

(1) Did the motion judge err in ruling that the appellant intentionally breached the parenting order?
(2) Did the motion judge err in failing to consider discretionary factors before making findings of contempt?

holding:

Appeal allowed.

reasoning:

(1) No.
The Court reviewed general principles that govern the use of the court’s power to find a party in contempt for breach of a court order. For a party to be found in contempt, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have actual knowledge of it; and (3) the party who allegedly breached must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17; Greenberg v. Nowack, 2016 ONCA 949.
Furthermore, the Court outlined that the exercise of contempt power is discretionary, and it should be used as a last resort. Before making a contempt finding, a judge should consider other options: Carey; Chong v. Donnelly, 2019 ONCA 799 (“Chong”); Valoris pour enfants et adultes de Prescott-Russell c.K.R., 2021 ONCA 366 (“Valoris”); Ruffolo v. David, 2019 ONCA 385 (“Ruffolo”). Last, the Court stated that when the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, Chong.
The Court upheld the motion judge’s finding that the appellant intentionally breached the parenting order in four respects.
The Court rejected the appellant’s arguments to the first and second breaches regarding the child being overheld. The appellant argued that she was justified in overholding the child in June 2019, as the respondent had not informed her which camp the child would attend in June. Further, the appellant argued that she was justified in overholding the child in July 2019, when she booked the camp after having received no response from the respondent. The Court upheld the motion judge’s conclusion that the respondent was not required to comply with the appellant’s pre-conditions for the exchange to take place and that overholding in June was unnecessary, unjustified and in deliberate defiance of the parenting order. Furthermore, the Court held that in July, the respondent did object and the appellant was in violation and deliberate defiance of the parenting order.
Third, the Court held that the motion judge was correct in finding that the appellant breached the parenting order by unilaterally changing the date of the child’s First Communion. The Court did not accept the appellant’s argument that the breach was unintentional because she moved the date to avoid traffic and had attempted to contact the respondent but had the wrong email address.
Last, the Court found that the motion judge was correct in finding a breach of the parenting order when the appellant refused to provide a copy of the child’s SIN card to the respondent. The Court held that the parenting order specifically stated that “all of the child’s government issued identification documents” must be shared with the respondent and did not accept the appellant’s argument that the card was not government issued and that the respondent already knew the number; thus, she was not required to provide him with a copy. The Court upheld the motion judge’s reasoning that the copy of SIN card was required by the parenting order to be provided in a timely exchange and this obligation was not met, resulting in an intentional breach.
(2) Yes.
The Court held that the motion judge considered the best interests of the child but failed to consider whether a declaration of contempt was a remedy of last resort or whether there were alternative enforcement options. The Court held that the motion judge did not consider any alternatives and proceeded directly from conclusions that the appellant intentionally breached the parenting order to declarations of contempt. The motion judge was required to consider not only when he should issue his decision on the contempt motion, but also whether he should exercise his discretion to resort to a less severe enforcement option. The Court concluded that this resulted in an error of law and it was especially important for courts to consider alternatives in high-conflict family disputes such as this one: Chong, at para 12; Valoris, at para 41.
The Court set aside the findings of contempt of court and the related sanctions and replaced them with declarations that the appellant intentionally breached the parenting order in four respects.


Moore v. 7595611 Canada Corp., 2021 ONCA 432

[Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.]

Counsel:

K. L., acting in person for the appellants
C.I.R. Morrison, M. Smitiuch and L. Hamer, for the respondents
Keywords: Torts, Negligence, Occupier’s Liability, Standard of Care, Damages, Mental Distress, Loss of Care, Guidance, and Companionship, Cost of Future Care, Civil Procedure, Jury Selection, Fresh Evidence, Juries Act, R.S.O. 1990, c. J.3, s. 44(1), Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, s. 76, Fire Code, O. Reg. 213/07, Fatal Accidents Act, R.S.A. 2000, c. F-8, s. 8(2), To v. Toronto Board of Education (2001), 204 D.L.R. (4th) 704 (Ont. C.A.), Young v. Bella, 2006 SCC 3, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, Fiddler v. Chiavetti, 2010 ONCA 210, Vokes Estate v. Palmer, 2012 ONCA 510, Rodrigues v. Purtill, 2019 ONCA 740, Gervais v. Richard (1984), 48 O.R. (2d) 191 (H.C.), Mason v. Peters (1982), 139 D.L.R. (3d) 104 (Ont. C.A.), Rodrigues v. Purtill, 2019 ONCA 740, Palmer v. The Queen, [1980] 1 S.C.R. 759

facts:

The Respondents’ daughter, A, died from severe injuries suffered in a fire. The fire broke out while the Respondent’s daughter was asleep in the bedroom of her basement apartment located in a rooming house. That apartment was owned by the landlord Appellants, KL and his numbered corporation.
The secondary exit of the apartment and the apartment’s windows were blocked off, leaving the apartment’s main entrance, which was blocked by fire, the only exit. The Respondents’ daughter suffered severe burns and after several days the Respondents were forced to remove her from life support.
The Respondents commenced an action against the Appellants in negligence. The jury found the Appellants fell below the standard of care of a reasonable landlord and found them responsible for the death. The jury awarded the following heads of damage:
1. Loss of care, guidance, and companionship: $250,000 to each Respondent;
2. Mental distress: $250,000 to each Respondent;
3. Future costs of care for the Respondent father: $174,800; and
4. Future costs of care for the Respondent mother: $151,200.

issues:

(1) Was the jury improperly selected due to an irregularity that occurred before trial?
(2) Does s. 76 of the Fire Protection and Prevention Act preclude the Respondents’ action in this case?
(3) Was the jury’s verdict unreasonable?
(4) Were the various damage awards too high?
(5) Should the Appellants be allowed to admit fresh evidence?

holding:

Appeal dismissed.

reasoning:

(1) No
The Appellant argued that there was an irregularity in jury selection. There were 41 prospective jurors who had been inadvertently released from the jury pool. Technically, those 41 prospective jurors should have been in the jury pool used to select the jury in this case. The trial judge learned of this and asked the parties for their input. The Respondents made no objection. The Appellants objected, noting they would want a new jury selection or to proceed with a judge alone.
The Court stated that section 44(1) of the Juries Act makes it clear that any omission to observe a provision of the Juries Act respecting the selection of jurors is “not a ground for impeaching or quashing a verdict or judgment in any action.” At most, the release was a minor irregularity that resulted in no prejudice to the Appellants. Therefore, no effect was given to this ground of appeal.
(2) No
The Appellants argued that s. 76 of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, precluded the Respondents’ action in this case because it was not proven that the fire started from anything other than an accidental source. Section 76 reads as follows:
No action shall be brought against any person in whose house or building or on whose land any fire accidentally begins, nor shall any recompense be made by that person for any damage suffered thereby; but no agreement between a landlord and tenant is defeated or made void by this Act.
The Court held that at minimum the genesis of a fire does not immunize a landlord from a failure to take reasonable precautions to protect the occupants of a building from a fire, even if that fire breaks out accidentally. The jury found that the Appellants were responsible for the death for the following reasons: the failure to ensure that a safety plan for the building was prepared, approved, and implemented; the failure to maintain smoke alarms in operating condition; and the failure to provide at least two exits from each “floor area” of the rooming house. Therefore, the jury’s finding of negligence had nothing to do with the source of the fire. The ground of appeal was, therefore, given no effect.
(3) No
The jury’s verdict listed three bases upon which they found the Appellants responsible for A’s death: a lack of a properly implemented safety plan; inoperative smoke alarms; and insufficient exits. The Court held that there was a clear factual foundation for those findings. There was therefore no basis to find the jury’s verdict unreasonable.
(4) No
Regarding the mental distress damages award, the Appellants’ argument suggested that the award was directed at the Respondents’ grief, and should not have been awarded. The Court disagreed, as there was clear psychological damage inflicted due to the death of the Respondents’ daughter. This psychological damage was supported by expert testimony. The Court found no basis to interfere with this head of damage.
The Appellants also objected to the future cost of care award, stating that the Respondents had not shown they would require a damage award for such care. The Court again disagreed. Expert evidence had suggested a much higher amount for future care was warranted, and the jury had awarded significantly less than those amounts. The awards were therefore based upon the evidence adduced at trial. Further, the Appellants did not object to the jury charge. Therefore, the Court found no basis to interfere with the awards.
The Appellants also challenged the jury’s award for loss of care, guidance, and companionship. This argument was based on the ruling in To v. Toronto Board of Education (2001), where the court held that the upper limit for such awards was $100,000.
The Court denied this ground of appeal. It found that caselaw held that an appellate court should only interfere with a jury’s assessment where it “shocks the conscience of the court”: Young v. Bella, 2006 SCC 3. Further, since there is no legislative cap on such awards, “each case must be given separate consideration” by the courts to determine the appropriate quantum of damages: To v. Toronto Board of Education (2001), 204 D.L.R. (4th) 704 (Ont. C.A.).
The Court held that while there was no question that the jury award for loss of care, guidance, and companionship in this case was high, in light of the factual backdrop of the case, it did not constitute an amount that “shocks the conscience of the court”: Young v. Bella, 2006 SCC 3.
(5) No
Applying the criteria from Palmer v. The Queen, [1980] 1 S.C.R. 759, the Court found that the subject evidence was not sufficiently cogent to have in any way impacted the result at trial.


Tribute (Springwater) Limited v. Atif, 2021 ONCA 432

[Strathy C.J.O., Feldman and van Rensburg JJ.A.]

Counsel:

A. Flesias, for the appellants/respondents by way of cross-appeal
C. Steven and K. Chaytor, for the respondent/appellant by way of cross-appeal
Keywords: : Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Prejudgment Interest, Postjudgment Interest, Rules of Civil Procedure, Rule 25.06(9)(b), Courts of Justice Act, RSO 1990, c C43, ss 127, 128, 129, 130(1) and 130(2), Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, 100, Main Street East Ltd. v. W.B. Sullivan Construction Ltd. (1978), 20 O.R. (2d) 401 (C.A.), 642947 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (C.A.), Tribute (Springwater) Limited v. Sumera Anas, 2020 ONSC 5277, McKnight v. Ontario (Transportation), 2018 ONSC 52, Gyimah v. Bank of Nova Scotia, 2013 ONCA 252, Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R. (2d) 601 (C.A.), MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139, Forest Hill Homes v. Ou, 2019 ONSC 4332

facts:

This was an appeal from a summary judgment awarding the respondent damages, interest, and costs for the appellants’ failure to close a residential real estate transaction. The respondent cross-appealed the motion judge’s order respecting prejudgment and postjudgment interest.
On March 25, 2017, the appellants signed an agreement of purchase and sale (“APS”) for a new home to be built by the respondent. The purchase price was $1,115,490 with an initial deposit of $90,000 and a further deposit of $50,312.50. The appellants failed to close on the extended closing date of December 17, 2018, and the APS was terminated by the respondents in January 2019.
In February 2019, the respondents commenced an action claiming damages for breach of contract. The appellants denied the respondent’s allegations and pled that they had complied with their obligations under the APS, that the property was not built to specifications, and that the respondent’s damages were excessive and exaggerated.
On November 2, 2019, the respondent sold the property for $985,000 then moved for summary judgment. The motion judge granted summary judgment for $383,636.47, with prejudgment interest fixed at $90,717.36, costs of $20,000, and a postjudgment interest rate of 4.45%.
On appeal, the appellants no longer disputed their liability for breaching the APS but rather appealed the amount of the judgment and claimed that the respondent did not take reasonable steps to mitigate its damages. They contended that the motion judge did not address mitigation and erred by awarding damages in excess of the amount sought in the statement of claim.

issues:

(1) Did the respondents fail to mitigate their damages?

(2) Did the motion judge err in granting judgment for an amount that exceeded the respondent’s claim for damages in the statement of claim?

(3) Did the motion judge err in departing from the contractual interest rate of prime plus 5% when fixing an interest rate for pre and postjudgment interest?

holding:

Appeal and cross-appeal dismissed.

reasoning:

(1) No.
The respondents did not fail to mitigate their damages. If they had placed the property on the market nine months earlier, as the appellants argued they should have, it may have sold for a lower selling price, as the average market value of similar homes increased by $100,000 during those nine months. The respondent’s vice president of marketing and sales deposed that they marketed the property internally before placing it on the market to avoid the additional expense of paying a commission on the sale and to avoid a reduction in the value of other homes they were selling in the same community.
Where it is alleged that the plaintiff failed to mitigate damages, the onus is on the defendant to prove that the plaintiff failed to mitigate its damages. The appellants did not challenge the respondent’s evidence on cross-examination or provide their own evidence to demonstrate a lack of mitigation.
Damages in respect of a failed real estate transaction are generally the difference between the agreed sale price under the APS and the market value of the property on the closing date. In this case, the property was appraised on the closing date at $890,000 and was sold 12 months later at $985,000. The appellant argued that the respondent’s delay in listing the property for sale was a failure to mitigate; however, in this circumstance, it resulted in an increased selling price and reduced the damages payable by the appellant.
(2) No.
In the respondent’s statement of claim, it claimed “damages in the amount of $200,000 for breach of contract, or such further or other amount as may be determined and particularized at or before trial.” Rule 25.06(9)(b) provided that the amounts and particulars of special damages only needed to be pleaded to the extent they were known on the date of the pleading with notice of any further damages being delivered as they become known, not less than ten days before trial. The statement of claim was issued before the property had been resold and the appellants were always apprised of the particulars of the respondent’s claim, in compliance with rule 25.06.
(3) No.
Section 130 of the Courts of Justice Act, which speaks to the court’s discretion to depart from prejudgment and postjudgment interest under ss. 128 and 129, is not exhaustive of the court’s discretion. Courts have discretion to depart from contractual interest rates where there are special circumstances. Here, the special circumstances that justified a departure from the contractual interest rate were that the respondent did not put the property on the market for nine months after terminating the APS. During these nine months, interest accrued on the total purchase price rather than the difference in the purchase price and selling price, and the respondent incurred carrying costs. These circumstances justified the motion judge’s decision to award prejudgment interest at the prime plus 2% rate and postjudgment interest at 4.45% rather than the contractual interest rate of prime plus 5% interest.


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 this week’s summaries of the Court of Appeal for Ontario for the week of June 14, 2021.

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In Kelava v. Spadacini, the Court found that a Deputy Judge of the Small Claims Court has the jurisdiction to make a representation order relying on Rule 12 of the ordinary Rules of Civil Procedure by analogy. The overriding consideration in Small Claims Court matters is access to justice.

In Loan Away Inc. v. Facebook Canada Ltd., the Court enforced Facebook’s forum selection clause requiring a lender who advertised and made loans through Facebook to sue in California.

In Johnson v Ontario, the dispute was whether a party could include an affidavit from its lawyer in their Appeal Book and Compendium (“ABC”) that spoke to the appellant’s request to extend the time to opt out of a class action. The Court permitted the filing of the affidavit, indicating that it was not its practice to consider, in advance of the hearing of an appeal, whether any specific document included in an ABC was relevant or not. The Court lamented the fact that this motion was characteristic of far too many civil motions brought that take up precious court time and could have been avoided if counsel acted reasonably.

Other topics covered this week included insurance coverage for water damage under a homeowners’ policy, appeals under s. 193 of the BIA, security for costs of an appeal in the mortgage enforcement context, the oppression remedy, the interpretation of a real estate commission agreement and vexatious litigants in the family law context and judicial immunity context.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Tataryn v. Axa Insurance Canada, 2021 ONCA 413

Keywords: Contracts, Interpretation, Insurance, Homeowners’ Policy, Coverage, Exclusions, Water Damage, Civil Procedure, Summary Judgment, Wilson v. INA Insurance Co. of Canada (1993), 80 B.C.L.R. (2d) 361 (C.A.), Dodge v. York Fire Insurance Co., 1911 CarswellOnt 41 (C.A.), Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33

Ting (Re), 2021 ONCA 425

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Bankruptcy and Insolvency Act, s. 193, 270 and s. 272(1)(b), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 and 6(1), Winding-up Act, R.S.C., 1985, c. W-11, s. 103, Rules of Civil Procedure, Rule 14.05(3)(d), Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Limited, 2012 ONCA 569, Wallace (Re), 2016 ONCA 958, Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 202, 2003945 Alberta Ltd. v. 1951484 Ontario Inc., 2018 ABCA 48, Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, Rusinek & Associates Inc. v. Arachchilage, 2021 ONCA 112, RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, Elias v. Hutchison, 1981 ABCA 31, Re Ravelston Corp. (2005), 24 C.B.R. (5th) 256, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Canada Deposit Insurance Corp. v. Commonwealth Trust Co. (1993), 35 C.B.R. (3d) 208, Simonelli v. Mackin, 2003 ABCA 47

Sub-Prime Mortgage Corporation v. Kaweesa, 2021 ONCA 431

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Security for Costs, Stay of Enforcement, Rules of Civil Procedure, Rules 50.10(1) and 61.06(1), Heidari v. Naghshbandi, 2020 ONCA 757

Murray v. Pier 21 Asset Management Inc., 2021 ONCA 424

Keywords: Corporations, Oppression, Contracts, Share Purchase Agreements, Remedies, Equitable Damages, Civil Procedure, Fresh Evidence, Costs, Canada Business Corporations Act, R.S.C. 1985, c. C-44, Palmer v. The Queen, [1980] 1 S.C.R. 759, Wilson v. Alharayeri, 2017 SCC 39, Ford Motor Co. of Canada, Ltd. v. Ontario Municipal Employees Retirement Board (2006), 263 D.L.R. (4th) 450 (Ont. C.A.), BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Eastern Power Limited v. Ontario Electricity Financial Corporation, 2012 ONCA 366

Harvey Kalles Realty Inc. v. BSAR (Eglinton) LP, 2021 ONCA 426

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Commission Agreement, Conditional Offer, Commercial Reasonableness, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Resolute FP Canada Inc. v. Ontario (Attorney General), 2019 SCC 60

Kelava v. Spadacini, 2021 ONCA 428

Keywords: Civil Procedure, Small Claims Court, Jurisdiction, Representation Orders, Small Claims Court Rules, O. Reg. 258/98, Rule 1.03(2), Rules of Civil Procedure, R. 12.07, Van de Vrande v. Butkowski, 2010 ONCA 230, Riddel v. Apple Canada Inc., 2017 ONCA 590, Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599

Hart v. Fullarton, 2021 ONCA 438

Keywords: Family Law, Spousal Support, Civil Procedure, Appeals, Vexatious Litigants, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 6(1)(b), 140(1), section 140(3), 140(4)(e), Family Law Act, Part III, Rules of Civil Procedure, Rule 1.03, Varma v. Rozenberg, [1998] O.J. No. 4183 (C.A.), Kalaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont. C.A.), Vermette v. Nassr, 2016 ONCA 658, Chavali v. The Law Society of Upper Canada, 2007 ONCA 482

Johnson v. Ontario , 2021 ONCA 443

Keywords: Civil Procedure, Class Proceedings, Appeals, Appeal Books and Compendia, Rules of Civil Procedure, Rule 61.10(1)(i), R. v. Smith, (2001), 154 O.A.C. 51, (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 156

Loan Away Inc. v. Facebook Canada Ltd., 2021 ONCA 432

Keywords: Contracts, Commercial, Forum Selection Clauses, Enforceability, Civil Procedure, Jurisdiction, Stay of Proceedings, Strong Cause Test, Romanko v. Aviva Canada Inc., 2018 ONCA 663, Estrada v. Estrada, 2016 ONCA 697, Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, Douez v. Facebook, Inc., 2017 SCC 33, GreCon Dimter inc. v. J.R. Normand Inc., 2005 SCC 46

Short Civil Decisions

Berman v. Berman, 2021 ONCA 439

Keywords: Family Law, Evidence

Gorman v. Sadja, 2021 ONCA 430

Keywords: Family Law, Contracts, Evidence

Ahmed v. Ontario (Attorney General), 2021 ONCA 427

Keywords: Civil Procedure, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, Judicial Immunity, Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 20, Rules of Civil Procedure, Rules 2.1.01, 2.1, 2.1.01, Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, National Bank of Canada v. Guibord, 2020 ONCA 677, Rallis v. Myers, 2019 ONCA 437, Morier and Boily v. Rivard, [1985] 2 S.C.R. 716, Ernst v. Alberta Energy Regulator, 2017 SCC 1, Fitzgerald v. Reaume, 2021 ONCA 330, Beazley v. Canada (Attorney General), 2021 ONCA 117

Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446

Keywords: Provincial Offences, Civil Procedure, Appeals, Leave to Appeal, Fresh Evidence, Striking Documents, Rules of Civil Procedure, Rule 25.11, Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 322, Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 135 D.L.R. (4th) 471 (Ont. C.A.), Denison Mines Limited v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.)

2650971 Ontario Inc. v. Shameti, 2021 ONCA 433

Keywords: Civil Procedure, Appeals, Extension of Time, Partition Act, R.S.O. 1990, c. P.4, Rules of Civil Procedure, Rules 63.01(1), 66, Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, Duca Community Credit Union Limited. V. Giovannoli (2001), 142 O.A.C. 146 (C.A.)


CIVIL DECISIONS

Tataryn v. Axa Insurance Canada, 2021 ONCA 413

[Roberts, Miller and Thorburn JJ.A.]

Counsel:

A.L. Barber, for the appellant
B.C. Elkin, for the respondents, S. T. and S.G. Tataryn Professional Corporation
P. Santini, for the respondents, I. H. and Cohen & Lord Insurance Brokers Limited
K. Dow, for the respondent, C. M., making no submissions

Keywords: Contracts, Interpretation, Insurance, Homeowners’ Policy, Coverage, Exclusions, Water Damage, Civil Procedure, Summary Judgment, Wilson v. INA Insurance Co. of Canada (1993), 80 B.C.L.R. (2d) 361 (C.A.), Dodge v. York Fire Insurance Co., 1911 CarswellOnt 41 (C.A.), Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33

facts:

The Respondent’s property was insured under a Homeowners Comprehensive policy with the appellant (“the Policy”). The Respondent purchased an additional Business Interruption Endorsement, as the property was also the Respondent’s place of business. The Respondent renovated part of the property, and during these renovations two instances of water damage occurred.

The Respondent sought coverage under the Policy. The Appellant made some payments for the first loss but denied the second. The Appellant cited the exclusion clause of the Policy that denied payment for damages for property “under construction” as justification for denying coverage of the second claim.

The Respondent commenced an action against the Appellant. The Respondent brought a motion to declare that the “under construction” exclusion clause did not apply. The motion judge granted the motion. The Appellant now appeals the motion judge’s ruling.

issues:

(1) Did the motion judge err in his interpretation of the terms “under construction” because he failed to construe them in the entire context of the Policy and the limited risk covered under a homeowner’s policy of insurance?
(2) Did the motion judge fail to consider the entirety of the evidence and focus too narrowly on the state of renovations following the second loss?
(3) What is the proper definition of “under construction” in the context of insurance?

holding:

Appeal dismissed.

reasoning:

(1) No.
The motion judge properly instructed himself on the applicable rules of contractual interpretation, including that he was required to “give effect to the clear language of the policy, reading it as a whole”. He considered the plain meaning of the term “under construction”, which he found to be unambiguous, and applied it to the entirety of the evidence of the state of the renovations to the Respondent’s property. The finding as to whether a property is “under construction” is a question of fact and the fact that a house is under renovation does not mean it is “under construction”: Wilson v. INA Insurance Co. of Canada (1993), 80 B.C.L.R. (2d) 361 (C.A.). The Court accepted the motion judge’s conclusion that the extent of renovations was not sufficient to support a finding that the house was “under construction”.

(2) No.
The motion judge applied the term “under construction” to the entirety of the evidence of the state of renovations of the property.

(3) Declined.
The court declined to give a proper definition of “under construction”. It was not possible nor desirable for the Court to give a definition that would apply to all cases: Dodge v. York Fire Insurance Co., 1911 CarswellOnt 41 (C.A.).


Ting (Re), 2021 ONCA 425

[Rouleau, Hoy and van Rensburg JJ.A.]

Counsel:

I. Ishai for the moving parties
A. Rogerson and A. Jazayeri for the responding party

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Bankruptcy and Insolvency Act, s. 193, 270 and s. 272(1)(b), Courts of Justice Act, R.S.O. 1990, c. C.43, sections 6 and 6(1), Winding-up Act, R.S.C., 1985, c. W-11, s. 103, Rules of Civil Procedure, Rule 14.05(3)(d), Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Limited, 2012 ONCA 569, Wallace (Re), 2016 ONCA 958, Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 202, 2003945 Alberta Ltd. v. 1951484 Ontario Inc., 2018 ABCA 48, Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, Rusinek & Associates Inc. v. Arachchilage, 2021 ONCA 112, RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, Elias v. Hutchison, 1981 ABCA 31, Re Ravelston Corp. (2005), 24 C.B.R. (5th) 256, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Canada Deposit Insurance Corp. v. Commonwealth Trust Co. (1993), 35 C.B.R. (3d) 208, Simonelli v. Mackin, 2003 ABCA 47

facts:

The appellant sought to appeal two orders made against him in the context of bankruptcy proceedings in Ontario involving his father. His father was adjudged bankrupt by a Hong Kong court in 2016. The bankruptcy order was recognized by the Ontario Superior Court of Justice in 2017, and the moving parties, who are trustees in bankruptcy of the bankrupt, were appointed as “foreign representatives”.
In January 2019, the appellant failed to attend an examination and the trustee brought a motion for contempt. Dietrich J. found the appellant in contempt and allowed him to purge his contempt within 10 days. The appellant delivered a notice of appeal of that order. The appellant was sentenced to seven days’ incarceration for contempt that came into effect seven days after the final adjudication of the appellant’s appeal. The appellant served an additional notice of appeal in respect of the penalty order. The appellant’s notices of appeal assert that he has a right of appeal under s. 193(a) of the Bankruptcy and Insolvency Act (“BIA”). The trustee moved to quash the appeal.

issues:

(1) Did the appellant have a right to appeal the motion judge’s contempt order and the penalty order under s. 193(a) of the BIA?

holding:

Motion granted.

reasoning:

(1) No.
The Court of Appeal has repeatedly held that an appeal from an order made in bankruptcy proceedings is governed by s. 193 of the BIA. An order will also be subject to the appeal routes under s. 193 (rather than under s. 6 of the Courts of Justice Act (the “CJA”) where the order is made by a judge exercising powers conferred by the BIA. While an order may involve a bankrupt, or be made during the currency of bankruptcy proceedings, that is not determinative of whether an appeal from that order is governed by the BIA or CJA.

In the case at hand, the orders were subject to the appeal routes under s. 193 of the BIA. The appellant was brought into his father’s bankruptcy proceedings through the order of Penny J., with which he failed to comply leading to the contempt order and penalty order.

The appellant contended that he had a right to appeal the motion judge’s contempt order and the penalty order under s. 193(a) of the BIA, which provides for an appeal to this court “if the point at issue involves future rights”. The appellant asserted that the appeal involved future rights because his appeal raised matters of procedural fairness. Future rights have been described as “rights which could not at the present time be asserted but which will come into existence at a future time”: Elias v. Hutchison, 1981 ABCA 31, 37 C.B.R. (N.S.) 149, at para. 28, cited with approval in Re Ravelston Corp. (2005), 24 C.B.R. (5th) 256 (Ont. C.A.), at para. 19.

Recent case law applying s. 193 of the BIA confirms that issues of procedural fairness typically engage a party’s present, and not future rights. In this case, the appellant’s right to procedural fairness was a present right that existed at the time of the hearing before the motion judge. His appeal of the contempt order and the penalty order did not engage future rights within the scope of s. 193(a) of the BIA. For these reasons, the appeal was quashed.


Sub-Prime Mortgage Corporation v. Kaweesa, 2021 ONCA 431

[Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.]

Counsel:

M. Tubie, for the moving parties
R. Das, for the responding party T. W.
G. Cohen, for the responding parties Sub-Prime Mortgage Corporation and Elle Mortgage Corporation

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Security for Costs, Stay of Enforcement, Rules of Civil Procedure, Rules 50.10(1) and 61.06(1), Heidari v. Naghshbandi, 2020 ONCA 757

facts:

The moving parties were the owners of a heavily encumbered house. A mortgage enforcement action was brought by a number of mortgagees. The mortgagees obtained an order of security for costs of their appeal from Paciocco J.A., who also lifted the temporary stay on the enforcement of the writ of possession which the motion judge, Stinson J., had granted for 90 days, expiring May 11, 2021.
The moving parties sought to set aside both orders of Paciocco J.A and asked the court to grant an order to stay Stinson J.’s order.

issues:

(1) Did Paciocco J.A. err in granting the security for costs motion?
(2) Did Paciocco J.A. err in his application of Rule 61.06(1)(a) of the Rules?
(3) Did Paciocco J.A. err in failing to continue the stay of enforcement?

holding:

Motion dismissed.

reasoning:

(1) No.
The Court found no error of law or fact in relation to the finding made by both Stinson J. and Paciocco J.A. that the pandemic did not frustrate the minutes of settlement. Further, there was no error on the part of Paciocco J.A. with respect to his treatment of the ground of appeal that the responding parties had failed to comply with the terms of the minutes, as there was no evidentiary basis for that argument.

Further, Paciocco J.A. specifically noted that Rule 50.10(1) of the Rules of Civil Procedure permits pre-trial conference judges to preside at the trial of an action with the written consent of the parties. Counsel had consented to Stinson J. hearing the underlying motion.

Finally, Paciocco J.A.’s finding that the moving parties’ appeal was “vexatious” was well grounded in the record and the Court owed deference to those findings in the absence of palpable and overriding error.

(2) No.
Paciocco J.A. did not err in his application of Rule 61.06(1)(a). There was sufficient basis to find that the moving parties had insufficient assets in Ontario, as they had failed to make payment on the encumbrances on the property in question for some time.

(3) No.
The stay had expired. This ground of appeal was therefore found to be moot.


Murray v. Pier 21 Asset Management Inc., 2021 ONCA 424

[Pepall, Roberts and Thorburn JJ.A.]

Counsel:

I. Ellyn and K.J. Manning, for the appellants
E.J. Babin, C.L. Spy, and M. Bookman, for the respondents

Keywords: Corporations, Oppression, Contracts, Share Purchase Agreements, Remedies, Equitable Damages, Civil Procedure, Fresh Evidence, Costs, Canada Business Corporations Act, R.S.C. 1985, c. C-44, Palmer v. The Queen, [1980] 1 S.C.R. 759, Wilson v. Alharayeri, 2017 SCC 39, Ford Motor Co. of Canada, Ltd. v. Ontario Municipal Employees Retirement Board (2006), 263 D.L.R. (4th) 450 (Ont. C.A.), BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Eastern Power Limited v. Ontario Electricity Financial Corporation, 2012 ONCA 366

facts:

The appellants, D.S. and Pier 21 Asset Management (“Pier 21”), appealed the judgment and orders of Penny J and sought leave to appeal the costs award. In 2005, D.S. launched Pier 21 and started an affair with the respondent, E.M. E.M. agreed to join D.S. in launching Pier 21 in exchange for 300,000 Class A shares.

In 2012, E.M. entered into a Share Purchase Agreement, whereby Pier 21 redeemed 142,250 Class A shares at $3.42 per share. As a result, E.M. owned 9.1% of Class A shares. By the end of 2014, Pier 21 had $3.2 billion in assets under management and $15 million in revenue for the year. E.M. left Pier 21 in December of 2014, but the appellant refused to buy out her remaining interest in the company.

In response to E.M.’s three requests made in her oppression claim, the trial judge held that: a) beyond the fact that the two-year limitation period passed, the 2012 Share Purchase Agreement should not be reversed because it was not oppressive, unfairly prejudicial, or unfairly disregarded her interests, b) the appellant was ordered to purchase E.M.’s remaining interest in the company for $3,576,300 (based on the expert evidence regarding Pier 21’s fair valuation), and c) E.M. was awarded $605,579 in equitable damages.

issues:

(1) Should the Court accept fresh evidence from the appellants regarding the independence of the respondent’s expert witness?
(2) Did the trial judge err in failing to consider the appellants’ Rule 59.06(2)(a) motion to re-open trial?
(3) Did the award of equitable damages provide the respondent with a windfall?
(4) Did the trial judge err in equating the experience of the two expert witnesses?
(5) Does the respondent have valid grounds for appeal?
(6) Did the trial judge err with respect to his costs award?

holding:

Appeal and cross-appeal dismissed. Leave to appeal costs refused. Motions for the admission of fresh evidence dismissed.

reasoning:

(1) No.
The dockets of the respondent’s expert witness on the valuation of Pier 21 noted that he reviewed a letter written by the husband of the respondent. However, the dockets do not pass the test for admitting fresh evidence because it would not likely be conclusive of any issue on appeal: Palmer v. The Queen, [1980] 1 S.C.R. 759, at para 775. The mere fact that the husband of the respondent may have provided some comments to the expert does not mean that the expert became an advocate or lacked independence.

(2) No.
The trial judge had the jurisdiction to write an endorsement in which he declined to hear the motion. It was clear that the arguments for the motion were similar to that of fresh evidence, and it was evident from a review of the fresh evidence that it would not meet the threshold for admission.

(3) No.
The appellants argued that the order to purchase the shares of the respondent sufficiently addressed the oppression. The Court noted that the Canada Business Corporations Act vests the trial judge with broad discretion when dealing with the oppression remedy. Appellate courts should adopt a deferential stance in the absence of reviewable error or a manifestly unjust result: Wilson v. Alharayeri, 2017 SCC 39, at para 59. The trial judge found that the respondent’s termination and status as shareholder was “closely connected” and her reasonable expectations regarding the manner in which she was terminated were thwarted. Therefore, there was no reason to interfere with the equitable remedy ordered by the trial judge.

The respondent argued that the equitable damages ought to have been increased because the appellants have had the respondent’s capital since 2015. The trial judge was correct in that these issues arose after the conclusion of evidence at trial and to permit the claims at this stage would have been seriously prejudicial to the appellants. Though the trial judge had discretion in awarding higher equitably damages, he was under no such obligation: Ford Motor Co. of Canada, Ltd. v. Ontario Municipal Employees Retirement Board (2006), 263 D.L.R. (4th) 450 (Ont. C.A.), at para. 181.

(4) No.
The trial judge reviewed all of the expert evidence and reached a reasonable conclusion regarding the valuation of the company. There was no palpable and overriding error.

(5) No.
The trial judge did not err in concluding that there was no fiduciary relationship between D.S. and the respondent. They were not in a partnership or trust relationship but were merely shareholders of the same corporation: BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, at paras. 37, 66.
Further, the trial judge did not err in finding that there was insufficient evidence of her opposition to the 2012 Share Purchase Agreement. There was no evidence provided to show that the respondent had concerns before the shares were purchased in 2012, so she did not meet the burden of proof.
Lastly, the trial judge did not err in deciding on the structure of the transaction for the respondent’s remaining shares. There was no evidence to support a reasonable expectation that she would be entitled to a structure that would minimize her tax liability.

(6) No.
Absent an error in principle or an award that is plainly wrong, a trial judge’s exercise of discretion in the award of costs is entitled to deference: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, at para. 27. Further, Eastern Power Limited v. Ontario Electricity Financial Corporation, 2012 ONCA 366 provides that a consideration of the relative success of the parties may be appropriate in determining quantum of the entitlement to costs. The trial judge did so here without an error in principle.


Harvey Kalles Realty Inc. v. BSAR (Eglinton) LP, 2021 ONCA 426

[Rouleau, Hoy and van Rensburg JJ.A.]

Counsel:

J. Wortzman and S. Malthouse, for the appellant
I. Cantor, for the respondent

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Commission Agreement, Conditional Offer, Commercial Reasonableness, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Resolute FP Canada Inc. v. Ontario (Attorney General), 2019 SCC 60

facts:

The appellant appeals the trial judge’s decision awarding the respondent real estate brokerage commission with costs and interest pursuant to its claim as assignee of the commission payable under a Commission Agreement. The appellant submitted that no commission was owing because one of the two conditions set out in the Commission Agreement was not met. The first condition required that an offer to lease be entered into between the appellant and a “Tenant”, defined as “Loblaw Companies Limited or any associated, affiliated, related company or individual, nominees or any principals, partnerships, joint ventures, corporations, affiliates or associates for whom it is a nominee or to whom it is directly or indirectly related” within 24 months of the Commission Agreement. The second condition required that the “Tenant” subsequently enter a final form of lease with all conditions of the offer met or waived. The appellant argued that the trial judge erred in finding that the second condition was met because the eventual tenant, Shoppers Drug Mart, only became a Loblaws entity after the offer to lease was signed.

issues:

(1) Did the trial judge err in law when she found that Shoppers met the definition of “Tenant” in the offer to lease and in the Commission Agreement?
(2) Did the trial judge err in failing to find that the offer to lease had been automatically terminated?
(3) Did the trial judge make a series of palpable and overriding errors in reaching her decision?

holding:

Appeal dismissed.

reasoning:

(1) No.
The trial judge did not err in finding that Shoppers met the definition of “Tenant” in the relevant agreements. The trial judge’s findings constituted a commercially reasonable interpretation of a provision in the context of the entire Commission Agreement and the factual matrix. The Court disagreed with the appellant’s submission that because the definition of “Tenant” in the Commission Agreement included an entity to whom Loblaws “is” directly or indirectly related, the Commission Agreement contemplated only entities in existence at the time it was signed. The trial judge’s conclusion did not constitute a palpable and overriding error or a failure to give effect to the words of the agreement.

(2) No.
There was no reasonable basis for the trial judge to find that the offer to lease had been automatically terminated. The parties conducted themselves on the basis that the offer to lease had not been terminated and that a final form of lease would be signed. It was only in the alternative that the trial judge turned to the issue of whether the automatic termination provision may have been triggered. The trial judge found no supporting documentation or evidence setting out the timing, terms, and conditions under which the transaction continued after the point at which the appellant argued the offer to lease automatically terminated. Therefore, there were no reasonable basis for a finding of automatic termination.

(3) No.
The appellant did not demonstrate any palpable or overriding errors in any of the trial judge’s findings. The trial judge heard the evidence and made the factual findings that naturally flowed from the record before her.


Kelava v. Spadacini , 2021 ONCA 428

[Benotto, Miller and Trotter JJ.A.]

Counsel:

M.L. Solmon and L.J. Paddock, for the appellants
D. Spadacini, acting in person

Keywords: Civil Procedure, Small Claims Court, Jurisdiction, Representation Orders, Small Claims Court Rules, O. Reg. 258/98, Rule 1.03(2), Rules of Civil Procedure, Rule 12.07, Van de Vrande v. Butkowski, 2010 ONCA 230, Riddel v. Apple Canada Inc., 2017 ONCA 590, Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599

facts:

The respondent brought a wrongful termination claim against the appellants in Small Claims Court. The deputy judge ordered an amendment to the style of the action by adding D.S. as the named representative for the defendant Union. As the Rules of the Small Claims Court (“RSCC”) do not reference representation orders, the deputy judge relied on Rule 1.03(2), which vests the discretion to defer to the Rules of Civil Procedure (“RCP”). Rule 12.07 of the RCP was relied upon, which provides that one or more persons may be authorized by the court to defend an action when numerous persons have the same interest.

On judicial review, the Divisional Court held that the deputy judge did not err in deferring to the RCP. The appellants appealed on the ground that the deputy judge did not have the jurisdiction because the RSCC had an “omission” as opposed to a “gap.” They maintained that a gap is something that is covered inadequately by the RSCC, whereas an omission is not addressed in the RSCC at all: Van de Vrande v. Butkowski, 2010 ONCA 230.

issues:

(1) Is the Small Claims Court prevented from naming a representative defendant in an action?
(2) Does the Small Claims Court have jurisdiction over unincorporated associations?

holding:

Appeal dismissed.

reasoning:

(1) No.
The RSCC is to be read in light of the overall objective of the Small Claims Court, which is access to justice. The RSCC provide for broad discretion to achieve this objective. If the rules do not directly address a matter, the court has the discretion to make “any order that is just”. Therefore, an order can be made even without reference to the RCP if it is just. The representative order was consistent with access to justice because an application to the Ontario Superior Court of Justice can be expensive and cause delay.

(2) Yes.
The fact that the RSCC does not reference jurisdiction over unincorporated associations does not constitute an omission. To constitute an omission, and therefore preclude the Small Claims Court from deferring to the RCP, there needs to be a marker of “deliberate legislative intent to omit”: Riddel v. Apple Canada Inc., 2017 ONCA 590, at para. 7. For example, in Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, section 137.1 of the Courts of Justice Act explicitly permitted summary dismissal by a “judge”, not “deputy judge” or “court”. There is no such marker in this case. Therefore, the deputy judge did not err in making the representation order.

 


Hart v. Fullarton, 2021 ONCA 438

[Brown J.A. (Motions Judge)]

Counsel:

M. Hart, acting in person
S, Benmor, for the responding party

Keywords: Family Law, Spousal Support, Civil Procedure, Appeals, Vexatious Litigants, Courts of Justice Act, R.S.O. 1990, c. C.43, sections 6(1)(b), 140(1), 140(3), 140(4)(e), Family Law Act, Part III, Rules of Civil Procedure, Rule 1.03, Varma v. Rozenberg, [1998] O.J. No. 4183 (C.A.), Kalaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont. C.A.), Vermette v. Nassr, 2016 ONCA 658, Chavali v. The Law Society of Upper Canada, 2007 ONCA 482

facts:

The Appellant had applied to the Superior Court of Justice for spousal support from the Respondent. The Respondent had asked the court to dismiss the application on the grounds that the Appellant was a “vexatious litigant”. In the Final Order, the trial judge dismissed the application and, pursuant to Courts of Justice Act (“CJA”) s. 140(1), ordered that the Appellant not commence any further proceeding against the Respondent in any court without leave from an Ontario Superior Court (“ONSC”) judge.

In response to several motions by the Appellant, the trial judge released an endorsement stating that the Appellant did not require leave from an ONSC judge to file an appeal of the trial decision.

The Appellant next filed a notice of appeal from the Final Order with the Divisional Court. The resulting endorsement stated that (i) any appeal from the vexatious litigant order was with the Ontario Court of Appeal and (ii) an appeal of any other part of the judgment required leave under s.140(1) of the CJA. The Appellant then attempted to file a notice of appeal of the Final Order. This was denied as it was beyond the 30-day appeal limit. The Appellant moved for an order extending the time period.

issues:

(1) Should the time to file a notice of appeal from that part of the Final Order which dismissed the Appellant’s application for spousal support be extended?

holding:

Motion dismissed.

reasoning:

(1) No.
Leave to appeal a vexatious litigant order is not required. Such an order is final in nature and appealable as of right to the Ontario Court of Appeal pursuant to s. 6(1)(b) of the CJA.

However, the Appellant was appealing the part of the Final Order that denied her spousal support. The Appellant sought leave to proceed with an appeal of the spousal support aspect of the Final Order from the Divisional Court. CJA s. 140(4)(e) states that no appeal lies from a refusal to grant leave to proceed: Chavali v. The Law Society of Upper Canada, 2007 ONCA 482. Consequently, there was no merit to the appeal that the Appellant sought to bring before the Court. The motion for an extension of time was dismissed.


Johnson v. Ontario, 2021 ONCA 443

[Brown J.A. (Motions Judge)]

Counsel:

N.S. Barkhordari, N.S. Gosai, and M.R. Sharp, for the moving party/appellant, D.P., class member
S. Pottle and R.V. Bambers, for the responding party, Her Majesty the Queen in Right of Ontario

Keywords: Civil Procedure, Class Proceedings, Appeals, Appeal Books and Compendia, Rules of Civil Procedure, Rule 61.10(1)(i), R. v. Smith, (2001), 154 O.A.C. 51, (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 156

facts:

The appellant, a class member in a class proceeding defended by the respondent, appealed an order that denied him an extension of time to opt out of the class proceeding and moved for two orders. First, the appellant sought an extension of time to perfect his appeal until June 30, 2021. This order was unopposed and granted. The appellant also sought an order permitting him to include a short affidavit from his counsel in his Appeal Book and Compendium (“ABC”). This order was opposed by the respondent.

issues:

(1) Is the appellant permitted to include the affidavit from his counsel in his ABC?

holding:

Motion granted.

reasoning:

(1) Yes.

The affidavit falls into the category of “any other documents relevant to the hearing of the appeal that are referred to in the appellant’s factum” in Rule 61.10(1)(i) of the Rules of Civil Procedure. This rule permits the appellant to include the affidavit in his ABC.

It is not the practice of the Court to consider, in advance of the hearing of an appeal, whether any specific document included in an ABC is relevant or not. A panel ultimately forms its own view about the relevance or utility of any such document, such as the affidavit the appellant proposes to include. If a party includes irrelevant documents in an ABC, it is open to the panel to sanction that practice by an award of costs against the offending party.

The Court then observed that this motion was characteristic of far too many civil motions brought. This motion was characteristic of the type of procedural motion – the contents of an ABC – that counsel, acting reasonably, should be able to settle without consuming judicial time.


Loan Away Inc. v. Facebook Canada Ltd., 2021 ONCA 432

[Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.]

Counsel:

M. Crampton, for the appellant
M. Spence, for the respondent
P. Underwood, for Facebook Canada Ltd., making no submissions

Keywords: Contracts, Commercial, Forum Selection Clauses, Enforceability, Civil Procedure, Jurisdiction, Stay of Proceedings, Strong Cause Test, Romanko v. Aviva Canada Inc., 2018 ONCA 663, Estrada v. Estrada, 2016 ONCA 697, Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, Douez v. Facebook, Inc., 2017 SCC 33, GreCon Dimter inc. v. J.R. Normand Inc., 2005 SCC 46

facts:

The appellant is a commercial online lender whose business largely derives from advertising on the respondent’s website. Upon signing up for the respondent’s website, users must agree to the respondent’s “Terms of Service” which contain forum selection and governing law clauses that provide any disputes with commercial users to be resolved exclusively before the U.S. District Court for the Northern District of California or a state court in San Mateo County under California law. Commercial users, like the respondent, must reaffirm these Terms of Service each time they buy advertising from the respondent.

In October 2018, the respondent suspended the appellant’s advertising. The appellant failed to resolve the issue by writing to the respondent’s related Canadian company. In December 2018, the appellants began to seek injunctive relief and damages from the respondent’s related Canadian company before the Ontario Superior Court of Justice which was later amended to seek relief from the respondent, as it solely operated the advertising platform. In May 2019, the respondent asked the court to stay the appellant’s application based on the forum selection clause. Before the return of the stay motion, the respondent suspended the appellant’s business page. At the return of the motion, the motion judge refused to adjourn at the appellant’s request to file this additional evidence and stated that the appellant’s application did not concern this issue.

The motion judge granted the respondent’s stay motion, as the appellant did not dispute the enforceability of the forum selection clause. The motion judge held that the appellant did not show “strong cause” to not enforce the clause because (1) it was a commercial contract, (2) the appellant filed no evidence addressing the convenience of the parties, fairness between the parties or interests of justice, and (3) the application sought no relief against the respondent’s related Canadian company. The appellant appealed the motion judge’s order to stay the appellant’s application seeking injunctive relief and a damages reference against the respondent for having suspended the appellant’s advertising.

issues:

(1) Did the motion judge err in refusing to adjourn the stay motion?
(2) Did the motion judge err in granting a stay based on the forum selection clause?

holding:

Appeal dismissed.

reasoning:

(1) No.
The appellant argued it should have been able to introduce new evidence, the shutdown of its business page, as the event occurred prior to the motion. The appellant asserted that by failing to allow this, the motion judge had decided the motion on an incomplete record.

An appellate court can intervene with a motion judge’s discretionary decision on whether to grant an adjournment only if the discretion is not exercised judicially based on proper principles, after considering all relevant factors: Romanko v. Aviva Canada Inc., 2018 ONCA 663. The Court found that the motion judge had made no such error. Since the appellant’s application did not concern the shutdown of its business page, and neither counsel was prepared to deal with the development, the motion judge was also entitled to find that the evidentiary record on the stay motion was complete.

Further, evidence about the substantive legal issues underlying the dispute between the parties was not relevant to the motion to enforce the forum selection clause: Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27. Therefore, the Court found no basis to interfere with the motion judge’s decision.

(2) No.
The appellant’s second ground of appeal asserted that the motion judge erred in enforcing the forum selection clause and staying the Appellant’s application.
In commercial contexts, absent exceptional circumstances, forum selection clauses are generally enforced to hold sophisticated parties to their contractual bargain: Douez v. Facebook, Inc., 2017 SCC 33. The Court applied a two-step test to determine whether to enforce a forum selection clause and stay an action brought contrary to it:
i. At the first step, the party seeking a stay must establish that the forum selection clause is valid, clear, and enforceable, and that it applies to the cause of action before the court.
ii. At the second step, the plaintiff must establish “strong cause” not to enforce the forum selection clause. A court exercising its discretion at this step must consider all the circumstances, including the convenience of the parties, fairness between the parties, the interests of justice, and public policy.

The appellant accepted that the first step had been met but argued that the motion judge had erred in her application of the second step. First, the appellant asserted that there was a prima facie injustice in allowing the respondent to rely on the clause, as the appellant should not have to sue in California to learn why its advertising had been removed. The Court did not accept this submission, as the appellant’s application sought injunctive relief and a damages reference. To achieve this, it must sue in California as it agreed to in the “Terms of Service”.
Second, the appellant submitted that the motion judge had failed to consider that the appellant would have to engage in a multiplicity of proceedings against the respondent in California, and its subsidiary in Ontario. The Court disagreed with this submission as no relief was sought against the Canadian subsidiary and the appellant acknowledged it had no contract with the latter.

Finally, the appellant submitted that there was “strong cause” not to enforce the clause due to an inequality in bargaining power between the parties. The Court stated that even in the consumer context, inequality in bargaining power itself is not determinative. The motion judge had considered the relevant circumstances of the case and found that the “strong cause” criteria were not met by the appellant. The Court found those findings “unassailable” and therefore found no reason to intervene.


SHORT CIVIL DECISIONS

Berman v. Berman, 2021 ONCA 439

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

A. Franks, M. Zalev, and C. Wile, for the appellant
D.Z. Frodis and A. Tint, for the respondent

Keywords: Family Law, Evidence

Gorman v. Sadja, 2021 ONCA 430

[Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.]

Counsel:

G.R. Hall and B. Cerqua, for the appellant
D. Frodis and K. Levitt, for the respondent

Keywords: Family Law, Contracts, Evidence

Ahmed v. Ontario (Attorney General), 2021 ONCA 427

[Fairburn A.C.J.O, Harvison Young and Jamal JJ.A.]

Counsel:

L. Ahmed, acting in person
M. Chung, for the respondent

Keywords: Civil Procedure, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, Judicial Immunity, Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 20, Rules of Civil Procedure, Rules 2.1.01, 2.1, 2.1.01, Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, National Bank of Canada v. Guibord, 2020 ONCA 677, Rallis v. Myers, 2019 ONCA 437, Morier and Boily v. Rivard, [1985] 2 S.C.R. 716, Ernst v. Alberta Energy Regulator, 2017 SCC 1, Fitzgerald v. Reaume, 2021 ONCA 330, Beazley v. Canada (Attorney General), 2021 ONCA 117

Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446

[Fairburn A.C.J.O., Harvison Young and Jamal JJ.A.]

Counsel:

P. Starkman and C. Zhang, for the moving party
T. Gordner, for the responding party

Keywords: Provincial Offences, Civil Procedure, Appeals, Leave to Appeal, Fresh Evidence, Striking Documents, Rules of Civil Procedure, Rule 25.11, Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 322, Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 135 D.L.R. (4th) 471 (Ont. C.A.), Denison Mines Limited v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.)

2650971 Ontario Inc. v. Shameti, 2021 ONCA 433

[Brown J.A. (Motions Judge)]

Counsel:

H. Singh and O. Hoque, for the moving parties
M. Katzman, for the responding parties

Keywords: Civil Procedure, Appeals, Extension of Time, Partition Act, R.S.O. 1990, c. P.4, Rules of Civil Procedure, Rules 63.01(1), 66, Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, Duca Community Credit Union Limited. V. Giovannoli (2001), 142 O.A.C. 146 (C.A.)


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.