Please find below our summaries of last week’s civil decisions of the Court of Appeal for Ontario.
Topics covered last week included:
a. contractual interpretation of agreements of purchase and sale of land;
b. a priority dispute between an Ontario and Nunavut insurer with respect to SABs paid by an Ontario insurer in respect of an MVA in Nunavut involving a driver also insured in Ontario;
c. a decision in French relating to jurisdiction/real and substantial connection;
d. raising new issues on appeal in the context of the enforcement of a mortgage and new allegations of a criminal interest rate being charged;
e. the duty to defend under a CGL policy for failure to supervise an employee in a sexual abuse claim;
f. security for costs;
g. the presumption of resulting trust in respect of the family residence (and whether the home constituted a matrimonial home);
h. the enforceability of a lawyer’s contingency fee agreement with a client under disability without court approval;
i. limitation periods on demand debts; and
j. the determination of the date of separation for the purpose of arriving at a valuation date and calculating the equalization of net family property.
CIVIL DECISIONS
Ju v. Tahmasebi , 2020 ONCA 383
[Doherty, Hourigan and Fairburn JJ.A.]
COUNSEL:
Julian Binavince, for the appellants
Pathik Baxi, for the respondent
Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase of Sale of Land, Duty of Good Faith, Bhasin v. Hrynew 2014 SCC 71
FACTS:
The appellants and individual respondent (“respondent”) entered into two agreements of purchase and sale (“agreements”) for a property that the appellants were responsible for having severed into two lots. The respondent provided a $100,000 deposit at the time that the agreements were entered into. The respondent agreed to pay a second total deposit of another $100,000 ($50,000 per lot) “after the seller provides City or OMB severance approval to the buyer’s lawyer.” Over two years after the agreements had been entered into, the appellants informed the respondent that the lots had been severed. Shortly after having told the respondent about the severance, the appellants insisted on payment of the second deposit “ASAP”. When the respondent did not comply with the appellants’ unilaterally imposed deadline for payment, the appellants terminated the agreements and relisted the properties for sale. When the specified closing date finally arrived, neither party tendered to close.
The appellants brought an application a declaration that the respondent had repudiated the agreements by failing to pay the second deposit and that the $100,000 deposit that had been paid be forfeited to the appellants. They also asked for a trial with respect to the damages caused by the respondent’s purported repudiation of the agreements. The application was dismissed.
ISSUES:
Did the application judge err in any of the following respects?
- Misapprehending the date on which the approval for severance had been obtained.
- Misapprehending the date on which the second deposit should have been paid.
- Misapplying the doctrine of good faith performance.
HOLDING:
Appeal dismissed.
REASONING:
1. No. The application judge determined that the City had approved the severance on the date of the TLAB decision granting the severance. In any event, even if the date of the City’s approval was later (when a Certificate of Offical was obtained), the decision did not turn on this point. Once the respondent was finally informed of the severance, she asked for an indulgence because she was out of the country. When faced with a request for an indulgence, the appellants behaved unreasonably. That finding is not fixed in the date of the city approval, but in the appellants’ behaviour in the over six months preceding their sudden insistence upon payment of the second deposit.
2. No. Where there is no express reference in an agreement to the time of performance, the law requires performance within a reasonable time. What is reasonable will be determined upon the facts of the individual case. The application judge was under no obligation to set out what date would have been reasonable. The key is that, in light of all of the operative facts, she concluded that August 7, 2018 was not reasonable.
3. No. It was a violation of the principle of good faith and unreasonable to proceed as the appellants did: ignore the respondent’s repeated requests for an update for many months, withhold critical information about the city approval, and then demand immediate payment by an arbitrarily set date when the respondent said she was not in a position to pay because she was out of the country and needed an indulgence.
Travelers Insurance Company of Canada v. CAA Insurance Company, 2020 ONCA 382
[Lauwers, Paciocco and Fairburn JJ.A.]
COUNSEL:
Daniel Strigberger and Julianne Brimfield, for the appellant
Jamie R. Pollack and Stacey A. Morrow, for the respondent
Keywords: Insurance Law, Automobile, Statutory Accident Benefits, Priority Dispute, Statutory Interpretation, Standard of Review, Insurance Act, RSO 1990, c I8, s. 224, 226, 226.1, 268, Disputes Between Insurers Regulation, O. Reg. 283/95, Statutory Accidents Benefits Schedule, O. Reg. 34/10, s. 3(7)(f), Unifund Assurance Company of Canada v. Insurance Corporation of British Columbia, 2003 SCC 40, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Intact Insurance Company v. Allstate Insurance Company of Canada, 2016 ONCA 609, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. , 2016 SCC 37, MacDonald v. Chicago Title Insurance Co. of Canada, 2015 ONCA 842, leave to appeal refused, [2016] S.C.C.A. No. 39, Benson v. Belair Insurance Company Inc., 2019 ONCA 840, Ontario (Finance) v. Echelon General Insurance Company, 2019 ONCA 629, Allstate Insurance Company of Canada v. Motor Vehicle Accident Claims Fund, 2007 ONCA 61, Young v. Ontario (Minister of Finance) (2003), 68 O.R. (3d) 321 (C.A.), Potts v. Gluckstein (1992), 8 O.R. (3d) 556 (C.A.), leave to appeal refused, [1992] S.C.C.A. No. 42, Corbett v. Co-operative Fire & Casualty Co. (1984), 34 Alta. L.R. (2d) 158 (Q.B.), MacDonald v. Proctor (1977), 19 O.R. (2d) 745 (C.A.), aff’d [1979] 2 S.C.R. 153, Primmum Insurance Co. v. Allstate Insurance Co. , 2010 ONSC 986, aff’d 2010 ONCA 756, leave to appeal refused, [2011] S.C.C.A. No. 13,
FACTS:
The claimant was catastrophically injured in an accident in Nunavut, where she was temporarily employed as a nurse supervisor. She was driving a Nunavut-plated vehicle owned by the Government of Nunavut (GN) and covered by a Nunavut motor vehicle insurance policy issued by Travelers Insurance Company of Canada to the GN. Under that policy the claimant was entitled to Nunavut statutory accident benefits (SABs).
The claimant was ordinarily resident in Ontario. She owned a car plated in Ontario and insured by CAA Insurance Company under the terms of the Ontario Standard Automobile Policy (“OAP”), which included coverage for prescribed SABs. Ontario SABs are more generous than those of Nunavut.
Under the terms of her Ontario insurance policy, the claimant was contractually entitled to claim Ontario SABs from CAA. The OAP covers an insured wherever he or she drives in North America. The CAA coverage therefore followed the claimant to Nunavut. This was the basis on which the claimant was entitled to seek SABs under the CAA policy, even though the accident that led to her injuries occurred in Nunavut and did not involve her Ontario-insured car. CAA has been paying those benefits.
CAA pursued Travelers for reimbursement for some or all of the benefits CAA paid to the claimant under Ontario’s legislated motor vehicle insurance regime as a form of a “statutory cause of action”: Unifund Assurance Company of Canada v. Insurance Corporation of British Columbia, 2003 SCC 40.
CAA succeeded in its claim against Travelers in an arbitration under s. 268 of the Insurance Act. The arbitrator required Travelers to reimburse CAA for the benefits CAA had paid to the claimant and to assume responsibility for paying the benefits to her in the future. The appeal judge upheld the arbitrator’s decision, accepting the arbitrator’s analysis. Travelers appealed. Nothing in this decision affects the claimant’s entitlement to Ontario SABs. The only question is which insurer must pay them.
ISSUES:
Is CAA entitled to recover from Travelers some or all of the SABs paid to the claimant?
HOLDING:
Appeal allowed.
REASONING:
No. In a lengthy decision analyzing the Unifund decision and other caselaw, and the relevant provisions of the Insurance Act and applicable regulations, the Court determined that the arbitrator erred in law in finding that Travelers was an Ontario insurer required to arbitrate priorities with CAA under s. 268 of the Insurance Act. Further, if the arbitrator had been correct in that finding, he misapplied the section by failing to give effect to Nunavut law regarding the claimant’s status and the limits on her entitlement to Nunavut benefits under Nunavut legislation. The arbitrator should have found that s. 268(5.1) applied so that the claimant’s decision to seek statutory accident benefits from CAA was final and binding on CAA.
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