Articles 2023

Topics covered this week: Family law, bankruptcy, stay of pending appeal to the SCC, torts, and real estate. In the Israel Estate decision, Justice Laskin discusses the difference between an option to purchase and a right of first refusal. In coming to its decision, the court commented on the implied contractual obligation to exercise contractual discretion reasonably and in good faith as well as the deferential standard of review of contractual interpretation imposed by Sattva.

Topics included medmal (limitation periods and need for expert evidence on standard of care and causation), the standard of proof of misconduct in police disciplinary hearings, the onus of proof on an insurer alleging material misrepresentation, family law (variation of custody order, property claim, extension of time to appeal), an appeal from an arbitrator’s ruling on the interpretation of a contract, and amending judgments to add judgment-debtors omitted because of alleged misrepresentations.

The Court of Appeal had a busy week and released a number of civil decisions, many of which were procedural in nature - extension of time, leave to appeal, limitation periods, Rule 21. One of these procedural decisions was in the Nortel case, in which the court denied leave to appeal Justice Newbould’s trial decision, apparently bringing the matter substantially closer to a conclusion.

Should independence and impartiality be considered at the threshold admissibility stage, or only in the weight given to the evidence?

Following are this week’s summaries of civil decisions released by the Court of Appeal. Topics covered include contract issues, insurance, environmental regulations, summary judgment and oppression. For me, the most interesting decision was a very short decision in Miller Canfield v BDO Dunwoody. The decision highlights the importance of understanding the difference between contract repudiation and contract termination.

In Deslauriers Custom Cabinets and Howard v Benson Group, the Court further chipped away at Sattva and the Supreme Court’s pronouncement in that case that contractual interpretation is now an issue of mixed fact and law and therefore subject to a more deferential standard of review. Other decisions this week involve the class action brought against the Toronto Police as a result of Charter breaches perpetrated during the G20 Summit and the Residential Schools class action.

There was only one civil decision released by the Court of Appeal this week long enough to summarize. The rest were very short endorsements and criminal decisions.

The Court of Appeal only released civil law decisions this week. Topics covered included whether or not leave to appeal a vesting order made on a receivership sale under the Bankruptcy and Insolvency Act is required (it is), an ironic case in which a lawyer initially resisted a professional negligence claim for missing a limitation period by arguing the limitation period had been missed (nice try), insurance law and adjournments.