In Friendly v. 1671379 Ontario Inc., a dispute arose among various judgment creditors of 1671379 Ontario Inc. (“167”) asserting priority claims to garnishment funds. The motion judge had considered the interplay of s. 20(1)(a) of the PPSA and s. 2(1) of the Creditors’ Relief Act. The general rule under the Creditors’ Relief Act is that there is no priority among creditors for garnished funds, but the PPSA permits priority claims. On the issue of priority, the Court upheld the motion judge’s findings that a mortgagee with registered PPSA had priority. However, the Court found that the other judgment creditors who were not given an opportunity to make submissions at the garnishment proceeding on certain new issues that were only uncovered during the appeal were entitled to do so, and thus, remitted the issue back to the motion judge for determination.
We would like to congratulate Blaney’s very own Varoujan Arman for successfully responding to the appeal in Friendly v. 1671379 Ontario Inc.
In Trillium Power Wind Corporation v. Ontario, the Court dealt with the issue of spoliation. While the appellant lost on the appeal from the dismissal of its main claim against the Ontario government, the Court allowed the appeal in respect of the claim for spoliation. Ontario had destroyed relevant records with knowledge of the appellant’s claim. As a remedy, the Court denied Ontario over $750,000 in costs that had been awarded to it by the motion judge, and awarded $30,000 in costs of the appeal to the appellant.
In a very lengthy 99-page decision in Lauzon v Ontario (Justices of the Peace Review Council), the Appellant, a Justice of the Peace, appealed a Hearing Panel’s finding that she committed judicial misconduct. The Appellant wrote an article published in the National Post criticizing the operation of bail courts and the conduct of some Crown prosecutors. Following complaints made to the Justices of the Peace Review Council, the Hearing Panel asserted that the Appellant’s misconduct indicated “a reasonable apprehension of bias, if not actual bias”, and recommended the Appellant’s removal from office. The Divisional Court dismissed a judicial review application. Thankfully, the Court set aside the disposition that removed the Appellant from office and substituted it with a reprimand and 30-day suspension without pay.
In Raponi v. Olympia Trust Company, the Court upheld the decision of the motion judge to dismiss the motion for certification of a class action.
Other topics covered this week include defamation, constructive dismissal, and vexatious litigants.
Table of Contents
Civil Decisions
Trillium Power Wind Corporation v. Ontario, 2023 ONCA 412
Keywords: Torts, Misfeasance in Public Office, Spoliation, Remedies, Civil Procedure, Summary Judgment, Costs, Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, Trillium Power Wind Corp. v. Ontario, 2021 ONSC 6731, McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, Spasic Estate v. Imperial Tobacco Ltd. (2000), 49 O.R. (3d) 699 (C.A.), Casbohm v. Winacott Spring Western Star Trucks, 2021 SKCA 21, St. Louis v. Canada (1896), 25 S.C.R. 649, Armstrong v. Moore, 2020 ONCA 49, R. v. Livingston, 2018 ONCJ 25
Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425
Keywords: Professional Discipline, Justices of the Peace, Reasonable Apprehension of Bias, Administrative Law, Judicial Review, Constitutional Law, Freedom of Speech, Canadian Charter of Rights and Freedoms, ss. 1 and 2, Justices of the Peace Act, R.S.O. 1990, c. J.4., Justices of the Peace Review Council Procedures Document, s. 17.3, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 6(1)(a), Baron v. Canada [1993] 1 S.C.R. 416., Doré v. Barreau du Québec 2012 SCC 12, Moreau-Bérubé v. New Brunswick (Judicial Council) 2002 SCC 11, Law Society of British Columbia v. Trinity Western University 2018 SCC 32, Loyola High School v. Quebec (Attorney General) 2015 SCC 12, R. v. Oakes [1986] 1 S.C.R. 103, R. v. Singh 2018 ONSC 5336, R. v. Zora 2020 SCC 14, R. v. Antic 2017 SCC 27, R. v. Lippé [1991] 2 S.C.R. 11, Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65, Ruffo v. Conseil de la magistrature 1995 SCC 267, Agraira v. Canada (Public Safety and Emergency Preparedness) 2013 SCC 36, Northern Regional Health Authority v. Horrocks 2021 SCC 42, Ottawa Police Services v. Diafwila 2016 ONCA 627, Conférence des juges de paix magistrats du Québec v. Québec (Attorney General) 2016 SCC 39, Wewaykum Indian Band v. Canada 2003 SCC 45, Committee for Justice and Liberty et al. v National Energy Board et al. [1978] 1 S.C.R. 369, Re Paroian , Courey, Cohen & Houston and The Queen, Boucher v. The Queen (1980) ONCA 471, Boucher v The Queen [1955] S.C.R. 16, R v McNeil 2009 SCC 3, Re Bienvenue (Can. Judicial Council, 1996), Re Camp (Can. Judicial Council, 2017), Re Zabel (Ont. Judicial Council, 2017), Re Philips (Ont. Justices of the Peace Review Council, 2013), Re Foulds (Ont. Justices of the Peace Review Council, 2018), Re Welsh (Ont. Justices of the Peace Review Council, 2009 and 2018), Re Matlow (Can. Judicial Council, 2003), Re Winchester (Ont. Justices of the Peace Review Council, 2020), Ruffo (Re) 2005 QCCA 1197, Re Massiah (Ont. Justices of the Peace Review Council, 2012), Groia v Law Society of Upper Canada 2015 ONSC 686, R v Valentini 1999 ONCA 178, R v Reeve 2020 ONCA 381, Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, Cooper v Canada (Human Rights Commission) 1996 SCC 854, Slaight Communications v Davidson 1989 SCC 1038, Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, Alberta v Hutterian Brethren of Wilson Colony 2009 SCC 37, Flynn (Can. Judicial Council, Report by the Inquiry Committee, 2003), Ethical Principles for Judges, Commentary 1.A.1, 1.A.3, 1.A.6, 1.C.1, Judiciaries in Comparative Perspective, “The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr. Justice Berger”, “Judicial Free Speech and Accountability: Should Judges Be Seen but Not Heard?”, “Time, Place, and Manner Restrictions on Extrajudicial Speech by Judges”, “Courting Controversy: The Problems Caused by Extrajudicial Speech and Writing”, “Must a Judge be a Monk – Revisited”
Raponi v. Olympia Trust Company, 2023 ONCA 428
Keywords: Breach of Fiduciary Duty, Breach of Trust, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Class Proceedings Act, 1992, S.O. 1992, c. 6, Income Tax Act, R.S.C. 1985, 15, c. 1, Mortgage Brokerages, Lenders and Administrators Act, 2006, S.O. 2006, c. 29, Income Tax Regulations, C.R.C., c. 945, Income Tax Folio S3-F10-C1, Hollick v. Toronto (City), 2001 SCC 68, Bowman v. Ontario, 2022 ONCA 477, Leroux v. Ontario, 2023 ONCA 314, Froese v. Montreal Trust Company of Canada (1996), 137 D.L.R. (4th) 725 (B.C.C.A.), Ivany et al. v. Financiere Telco Inc., et al., 2013 ONSC 6347, Das v. George Weston Limited, 2018 ONCA 1053, McCreight v. Canada (Attorney General), 2013 ONCA 483, Waters’ Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984)
Friendly v. 1671379 Ontario Inc., 2023 ONCA 423
Keywords: Judgment Creditors, Consent Judgment, General Security Agreement, Priorities, Interpretation, Enforcement, Garnishment, Personal Property Security Act, R.S.O. 1990, c. P.10 Creditors’ Relief Act, 2010, S.O. 2010, Assignments and Preferences Act, R.S.O. 1990, 1889072 Ontario Limited v. Globealive Wireless Management Corp. et al, 2016 ONSC 3578
Short Civil Decisions
Bell v. Garden River First Nation, 2023 ONCA 424
Keywords: Torts, Defamation, Defences, Justification, Civil Procedure, Summary Judgment, Appeals, Fresh Evidence
Morey v. C.A.T. Inc., 2023 ONCA 422
Keywords: Contracts, Employment, Constructive Dismissal, Civil Procedure, Evidence, Hearsay, Fresh Evidence, Evidence Act, R.S.O. 1990, c. E.23, s. 20, Rules of Civil Procedure, r. 25.11, 76, Farber v. Royal Trust Co., [1997] 1 S.C.R. 846
Samra v. Ontario (Attorney General), 2023 ONCA 420
Keywords: Civil Procedure, Appeals, Frivolous and Vexatious, Abuse of Process, Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, Rules of Civil Procedure, r. 2.1, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720
Monterosso v. Metro Freightliner Hamilton Inc., 2023 ONCA 413
Keywords: Contracts, Interpretation, Breach, Defences, Mitigation, Howard v. Benson Group Inc., 2016 ONCA 256, Mohamed v. Information Systems Architects Inc., 2018 ONCA 428
Aplyn Estate v. Aplyn, [2023 ONCA 429]
Keywords: Wills and Estates, Intention, Gifts, Resulting Trust
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