Court of Appeal Summaries (December 9-13)

December 19, 2024
John Polyzogopoulos

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The headline decision of the week is Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town), a 121-page decision in which the Court upheld the trial judge’s decision that approximately 1.4 miles of coastline was improperly excluded from the Saugeen Indian Reserve No. 29 subject to Treaty 72 of 1854. All the appeals were dismissed except Canada’s cross-appeal on the application judge’s finding that it was 100% responsible for the pre-Confederation conduct of the Crown, with the provincial Crown having been found to have no responsibility. The application judge erred in making this determination without inviting submissions from the provincial or federal Crown on the issue.

In The Personal Insurance Company v Tagoe, the Court confirmed that the doctrine of discoverability applied in the context of the limitation period for making accident benefit claims.

In West Whitby Landowners Group v Elexicon Energy, the Court granted the moving party leave to appeal the Divisional Court’s decision that it lacked jurisdiction to consider the moving party’s application for judicial review of a decision of the Ontario Energy Board regarding electrical grid access. The respondent relied on the Court’s 1973 decision in Re Sault Dock Co. Ltd. and City of Sault Ste. Marie to oppose leave to appeal the Divisional Court’s decision being granted. The Court cautioned against allowing certain judicial decisions taking on the reputation as eternal pronouncements carved in tablets of stone. While Re Sault Dock Co. Ltd. and City of Sault Ste. Marie is often cited as setting a stringent test for leave to appeal in judicial review cases by citing the multi-factor test set out in the decision, the flexibility of the decision is forgotten.

In Canada Life Assurance Company v. Aphria Inc., the Court affirmed the precedent set by Highway Properties that a landlord has no obligation to mitigate its damages and find a new tenant if it does not accept a tenant’s repudiation of a lease and continues to hold the contract open and the lease alive.

In Essex Condominium Corporation No. 125 v. Heritage Park Villas Inc., the Court allowed the appeal, finding that the motion judge had reversed the burden of proof to establish a limitations defence and improperly placed this onus on the appellants.

In Singh v. Khalil, the Court dismissed an appeal from a summary judgment dismissing an application to set aside a domestic contract.

Wishing everyone an enjoyable weekend.

Civil Decisions

The Personal Insurance Company v Tagoe, 2024 ONCA 894

Keywords: Contracts, Insurance, Automobile Insurance, Statutory Accident Benefits, Civil Procedure, Limitation Periods, Insurance Act, R.S.O. 1990, c. I.8, ss. 280, 281.1(1), Statutory Accident Benefits Schedule, O. Reg. 34/10, ss. 5(1), 6(1)(2), 7(3), 47, 51(1), 56, Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Schedule G, s. 11(6), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(4), Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111, Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, Pioneer Corp. v. Godfrey, 2019 SCC 42, Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165, Turner v. State Farm Mutual Automobile Insurance Co. (2005), 195 O.A.C. 61 (C.A.)

West Whitby Landowners Group Inc. v Elexicon Energy Inc., 2024 ONCA 910

Keywords: Administrative Law, Judicial Review, Electricity Regulation, Civil Procedure, Leave to Appeal, Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a), Canadian Charter of Rights and Freedoms, Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.)

Chippewas of Saugeen First Nation V. South Bruce Peninsula (Town), 2024 ONCA 884

Keywords:  Aboriginal Law, Land Treaties, Interpretation, Honour of the Crown, Fiduciary Duties, Defences, Bona Fide Purchaser For Value Without Notice, Civil Procedure, Procedural Fairness, Costs, Constitution Act, 1867, s. 91(24), Indian Act, R.S.C. 1927, c. 98, Indian Act, R.S.C. 1985, c. I-5, Southwind v. Canada, 2021 SCC 28, R. v. Badger, [1996] 1 S.C.R. 771, Benzie v. Hania, 2012 ONCA 766, Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 51 O.R. (3d) 641 (C.A.), Ontario (Attorney General) v. Restoule, 2024 SCC 27, Hopton v. Pamajewon (1993), 16 O.R. (3d) 390 (C.A.), Moore v. Wienecke, 2008 ONCA 162, R. v. Marshall, [1999] 3 S.C.R. 456, Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, Restoule v. Canada (Attorney General), 2021 ONCA 779, R. v. Simon, [1985] 2 S.C.R. 387, Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, R. v. R.E.M., 2008 SCC 51, R. v. Laba, [1994] 3 S.C.R. 965, Kerk-Courtney v. Security National Insurance Company (TD General Insurance Company), 2024 ONCA 676, Giesbrecht v. Stettner, 2023 SKCA 52, Greenwood v. Greenwood, 2023 SKCA 87, Sutherland v. Reeves, 2014 BCCA 222, Kuang v. Young, 2023 ONSC 2429, Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, i Trade Finance Inc. v. Bank of Montreal, 2011 SCC 26, Pilcher v. Rawlins (1872), L.R. 7 Ch. App. 259 (Eng. C.A.), Canadian Imperial Bank of Commerce v. Pena, 2022 ONSC 6941, Urban Metal Contracting Ltd. v. Zurich, 2022 ONCA 589, Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Legault v. TD General Insurance Company, 2024 ONCA 439, Housen v. Nikolaisen, 2002 SCC 33, Fraser v. Desmond (1996), 24 R.F.L. (4th) 365 (B.C.C.A.), Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2021 ONCA 381, Aurora (Town) v. Lepp, 2020 ONCA 528, John Sopinka, Mark A. Gelowitz & W. David Rankin, Sopinka, Gelowitz and Rankin on the Conduct of an Appeal, 5th ed. (Toronto: LexisNexis, 2022)

Canada Life Assurance Company v. Aphria Inc., 2024 ONCA 882

Keywords:  Contracts, Real Property, Commercial Leases, Repudiation, Defences, Mitigation, Commercial Tenancies Act, R.S.O. 1990, c. L.7, Residential Tenancies Act, 2006, S.O. 2006, c.17, Highway Properties v. Kelly, Douglas & Co., [1971] S.C.R. 562, Almad Investments Ltd. v. Mister Leonard Holdings Ltd., 1996 CanLII 412 (Ont. C.A.), TNG Acquisition Inc. (Re), 2011 ONCA 535, Canadian Medical Laboratories Ltd. v. Stabile (1997), 98 O.A.C. 3, R. v. Kirkpatrick, 2022 SCC 33, R. v. Henry, 2005 SCC 76, Keneric Tractor Sales Ltd. v. Langille, [1987] 2 S.C.R, Anthem Crestpoint Tillicum Holdings Ltd. v. Hudson’s Bay Company ULC Compagnie de la Baie D’Hudson SRI, 2022 BCCA 166, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37

Essex Condominium Corporation No. 125 v. Heritage Park Villas Inc., 2024 ONCA 889

Keywords:  Real Property, Condominiums, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Burden of Proof, Condominium Act, 1998, S.O. 1998, c. 19, s. 2, s. 43, s. 93, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s. 5(1), 5(2), Essex Condominium Corporation No. 125 v. Heritage Park Villas Inc., 2024 ONSC 849 (Div. Ct.), AssessNet Inc. v. Taylor Leibow Inc., 2023 ONCA 577, Shukster v. Young et al., 2012 ONSC 4807, Roni Excavating v. Paccar, 2013 ONSC 5192, Ramdial v. Davis, 2015 ONCA 726, Fennell v. Deol, 2016 ONCA 249, Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47

Short Civil Decisions

Wilson v. Fatahi-Ghandehari, 2024 ONCA 895

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Rules of Civil Procedure, Rule 2.1

Lawyers’ Professional Indemnity Company v. Sochnyeva, 2024 ONCA 896

Keywords: Civil Procedure, Leave to Appeal, Stay Pending Appeal, Review

Spasiw v. Law Society of Ontario, 2024 ONCA 888

Keywords:  Charter Claims, Civil Procedure, Applications, Striking Pleadings, No Reasonable Cause of Action, Frivolous, Vexatious, Abuse of Process, Canadian Charter of Rights and Freedoms, 2(b), 7, 15(1) and s. 24(1), Rules of Civil Procedure, Rule 2.1

Evangelisti v. Canadian Broadcasting Corporation, 2024 ONCA 903

Keywords:  Torts, Defamation, Remedies, Injunctions, Civil Procedure, Evidence, Cross-examination, Procedural Fairness, Reasonable Apprehension of Bias

World Medpharm Inc. v. York Region Standard Condominium Corporation No. 1279, 2024 ONCA 907

Keywords: Real Property, Condominiums, Contracts, Commercial Leases, Exclusive Use Clauses, Remedies, Compliance Orders, Condominium Act, 1998, S.O. 1998, c. 19, s. 134

Pinsky v. 2479420 Ontario Inc., 2024 ONCA 901

Keywords:  Contracts, Solicitor and Client, Civil Procedure, Striking Pleadings, Abuse of Process, Procedural Fairness, Solicitors Act, R.S.O. 1990, c. S.15, ss. 2(1), 8

Augusta Studios Inc. v. 8699011 Canada Inc., 2024 ONCA 906

Keywords:  Contracts, Real Property, Commercial Leases, Leased Premises, Calculation of Rent

CIVIL DECISIONS

The Personal Insurance Company v Tagoe, 2024 ONCA 594

[Huscroft, Sossin and Dawe JJ.A.]

Counsel:

P. M. Baker, for the appellant
S. Alexanian and D. Kapanadze, for the respondent
D. Lee and T. McGee, for the intervener Licence Appeal Tribunal

facts:

The respondent was involved in an automobile accident in 2016. He applied for accident benefits from the appellant, The Personal Insurance Company (“TPIC”). The appellant denied benefits and issued an “Explanation of Benefits” (“EOB”) form to the respondent on May 20, 2016. Following a second application, the appellant issued a second refusal and sent the respondent an EOB on June 17, 2020. The respondent filed an application to challenge TPIC’s refusals with the Licence Appeal Tribunal (“LAT”) on February 3, 2021, more than two years after the May 20, 2016 EOB, but less than two years after the June 17, 2020 EOB. The LAT adjudicator ruled that the respondent was statute-barred from challenging TPIC’s refusal. The Divisional Court remitted the matter to the LAT for a new hearing. The Court of Appeal granted TPIC leave to appeal.

issues:

Did the Divisional Court err in finding that the doctrine of discoverability applied to the limitation period governing applications to the LAT under s. 280 of the Insurance Act when a dispute arises in respect of an insured’s entitlement to income replacement benefits under the SABS?

holding:

Appeal dismissed.

reasoning:

No. At the Divisional Court, Ramsay J. cited the Court’s decision in Tomec v Economical Mutual Insurance Company. The Court explained that Tomec concerned a claim by an insured person who was injured by a motor vehicle. She had received attendant care and housekeeping Statutory Accident Benefits Schedule (“SABS”) benefits, but her statutory entitlement to these benefits ended after 104 weeks. Five years later her medical condition worsened, and she became “catastrophically impaired” within the meaning of s. 3.1 of the SABS. This made her eligible once again to receive SABS benefits. However, the LAT held that s. 281.1(1) of the Insurance Act (now repealed) and the predecessor to the current limitation period provision in s. 56 of the SABS created a “hard” two-year limitation period that precluded her from claiming these benefits from her insurer. The Divisional Court agreed and dismissed her appeal. The Court explained that Hourigan J.A. found that in this context a hard two-year limitation period would create a “Kafkaesque regulatory regime” in which people who asserted their statutory right to receive benefits after an accident would be penalized if they then became catastrophically impaired more than two years later: Tomec.

The Court accepted TPIC’s concession that the discoverability rule applies to IRB claims, and explained that claims for SABS benefits, whether during the 104 weeks after an accident or later, are both subject to the two-year limitation period in s. 56 of the SABS. The Court held that the provision is essentially like the former s. 51(1), which the Court held in Tomec did not establish a hard limitation period.

The Court also accepted TPIC’s concession that the LAT adjudicator erred by reasoning that TPIC could start the limitation clock by issuing a pre-emptive denial of IRBs to the respondent, whether or not he had actually applied for these benefits. The Court held that if the respondent was ineligible to receive IRBs in May 2016, and thus did not apply for them at that time, his claim for IRBs only became discoverable after he became eligible to receive them. However, the Court did not agree with TPIC that the fact that the respondent’s May 17, 2016 application for benefits checked off the box stating that he was statutorily eligible for IRBs inevitably led to the conclusion that he was applying for these benefits at that time.

The Court noted that, while there is a distinction between meeting the statutory threshold eligibility for receiving IRBs and establishing an entitlement to receive these benefits, the respondent’s statement in his application that his injuries were not preventing him from working implied that he did not meet the threshold eligibility criterion of suffering “a substantial inability” to perform the essential tasks of his employment. The Court did not suggest that the evidence automatically compelled the conclusion that the respondent was not applying for IRB benefits in May 2016, but that there was conflicting evidence about his intentions at that time.

The Court also disagreed with TPIC’s argument that the LAT adjudicator’s reasons could be read as implicitly rejecting the respondent’s contention that he had not applied for IRBs in May 2016. Rather, the Court held that the LAT adjudicator’s reasons showed that she found it unnecessary to decide this point, because she believed that TPIC was entitled to pre-emptively deny benefits. Therefore, the Court rejected TPIC’s argument that the Divisional Court improperly substituted its own finding of fact for a contrary factual finding that had been made by the LAT adjudicator.

The Court was not persuaded to set aside the Divisional Court’s finding that the respondent had not applied for IRBs in May 2016, and vary the Divisional Court’s remittal order to leave this factual issue to be determined by the LAT. The Court noted that TPIC chose to litigate the case on the basis that it was entitled to pre-emptively deny the respondent IRBs, whether or not he had applied for them. The Court held that this argument was no longer tenable in light of Tomec and concluded that it would not be fair to the respondent to grant TPIC a remedy that it did not seek in the court below, based on a new argument that it made for the first time on appeal.

West Whitby Landowners Group Inc. v Elexicon Energy Inc., 2024 ONCA 910

[Brown, Huscroft and Miller JJ.A..]

Counsel:

C. Lee and K. Purba, for the moving party
L. M. Wagner, T. Markin and P. J. Leger, for the responding party Elexicon Energy Inc.
M. P. Tunley, for the responding party Ontario Energy Board

facts:

The moving party develops residential lots in Whitby that require connection to the provincial electricity grid made through the distribution facilities of the respondent. A dispute arose regarding the allocation of costs between the parties for a substation to service the connection. The moving party applied to the Divisional Court for judicial review of decisions made by the Ontario Energy Board (the “Board”), and subsequently sought leave to appeal to the Court.

issues:

Did the Divisional Court err in finding that it lacked jurisdiction to consider the application for judicial review?

holding:

Leave to appeal granted.

reasoning: 

Yes. The respondents relied on Re Sault Dock Co. Ltd. and City of Sault Ste. Marie for the proposition that decisions of the Divisional Court – whether in the exercise of its original or appellate jurisdiction – are intended to be final and not reviewable by the Court save in exceptional cases. The Court held that the Sault Dock decision has been regarded by some as establishing a stringent test for leave to appeal. The Court explained that the panel in Sault Dock recognized that “it may not be desirable to attempt to formulate a catalogue of the circumstances under which leave to appeal would be granted by this Court”, as any such endeavour carries the risk of a judicial walk on thin ice.

The Court explained that the panel in Sault Dock identified key consideration underpinning any decision to grant leave to appeal. Pursuant to s. 6(1)(a) of the Courts of Justice Act, an appeal from an order of the Divisional Court lies, with leave, “on a question that is not a question of fact alone”. The Court noted that the consequence of that statutory limit is that “[e]very decision of a Court is of importance to the parties affected but when no appeal is allowed on questions involving fact alone, then the importance of the decision to the individual is not to be the sole or perhaps the paramount consideration”: Sault Dock. The Court held further that the heart of the consideration of an application for leave is not whether the issue falls into some pigeon-hole on a checklist, but “the impact which the decision on the question will have on the development of the jurisprudence of Ontario.”

The Court held that another problem with adhering to Sault Dock’s “checklist” approach is that it is old, even pre-dating the Charter, which now plays an important role in judicial review litigation before the Divisional Court, from which there is no right of appeal.

The Court held that it is no secret that federal and provincial governments are pursuing polices to promote greater use of electricity in the economy, and that the Ontario government is pursuing an aggressive policy to support the construction of more residential accommodation, including subdivision projects such as those being pursued by the Landowners. Against that backdrop, the Court held that the question of whether decisions of the state actor responsible for regulating the allocation of costs associated with the greater use of electricity are immune from judicial review is one of great public importance.

In applying a more flexible approach to the leave application, the Court held that the Divisional Court’s decision insulated certain decisions of the Board from judicial review, something that has impact well beyond the immediate case. Therefore, the Court concluded that the questions on which the Landowners sought leave to appeal merited consideration by the Court.

Chippewas of Saugeen First Nation V. South Bruce Peninsula (Town), 2024 ONCA 884

[George, Copeland and Dawe JJ.A.]

Counsel:

N. Frame, M. Gibson and A. DeParde for the respondent, Chippewas of Saugeen First Nation

J. C. Lisus, Z. Naqi, J. C. Mastrangelo and A. Winton for the appellants and the respondents, the Town of South Bruce Peninsula, the Estate of B. T. and A. L

R. Ogden, S. Figliomeni, and M. M. Salama for the respondents and the appellants/respondents by way of cross-appeal, His Majesty the King in Right of Ontario and the Attorney General of Ontario

M. Beggs, J. Brooks, B. Ennis, and M. Torrie for the respondents and the respondents/appellants by way of cross-appeal, His Majesty the King in Right of Canada and the Attorney General of Canada

B. Kain and B. Gary for the intervenor, the Ontario Landowners Association

facts:

The respondent, Chippewas of Saugeen First Nation (“Saugeen”), assert that approximately 1.4 miles of coastline, known as Chi-Gmiinh, was improperly excluded from Saugeen Indian Reserve No. 29 (the “Reserve”). Treaty 72 of 1854 (the “Treaty”) specified that the eastern boundary of the Reserve was to run south in a line drawn from a spot on the coast at a distance of about 9.5 miles from the western boundary. Saugeen contend that the Provincial Land Surveyor (“PLS”) C. R., who surveyed the boundaries of the Reserve in 1855, fixed the northern terminus of the eastern boundary of the Reserve approximately 1.4 miles south of the place it ought to have been located. In doing so, he deprived the Saugeen of part of their unceded coastline.

The town of South Bruce Peninsula (the “Town”), A.L. and the Estate of B. T. (the “Families”) own property alongside the disputed area. Saugeen brought this action seeking a declaration that the excluded coastline (the “Disputed Beach”) formed part of the Reserve, that no third parties have any interest in the Disputed Beach, and that the honour of the Crown and its fiduciary duties were breached by the wrongful demarcation of the Reserve boundaries. Saugeen also sought damages for these breaches.

The trial judge made three important findings. First, the trial judge found that C. R. did fix the northern terminus of the eastern boundary of the Reserve approximately 1.4 miles south of the place it should have been. Second, the trial judge found that the Imperial Crown acted dishonourably and breached the crown’s fiduciary duty to Saugeen by failing to properly demarcate the Reserve’s boundaries to include the Disputed Beach, and then by failing to protect and preserve Saugeen’s unceded land in its entirety. Third, the trial judge found that Saugeen’s claim to the Disputed Beach was neither barred nor extinguished by any defences, such as the bona fide purchaser for value defence.

The Attorney General of Ontario and His Majesty the King in Right of Ontario (“Ontario”), the Town, and the Families, appealed. Ontario argued that the trial judge made several errors in both law and fact in her interpretation of the Treaty, including failing to reconcile the Treaty parties’ interests and choosing an interpretation that favoured Saugeen. The Town and Families submitted that the trial judge erred by granting a remedy on an “unpleaded theory” that moves the entire eastern boundary of the Reserve further east and affects an unknown number of private landowners. The Families also contend that the trial judge misapplied their bona fide purchaser for value defence, and the Town appealed the trial judge’s costs order. Lastly, Canada cross-appealed the trial judge’s determination that it alone is responsible for the pre-Confederation Crown’s liability.

It should also be noted that this litigation is proceeding in two phases. Phase 1 of the trial, which is the subject of these appeals and cross-appeal, deals with the issues discussed herein. Phase 2 of the trial, which is set to occur after any appeals have been exhausted, will determine remaining issues, including damages and the parties’ remaining cross-claims and counterclaims.

issues: 

1. Did the trial judge err in her interpretation of the Treaty by misapplying the principles of treaty interpretation?

2. Did the trial judge err in her interpretation of the Treaty by making factual errors in her analysis of the cultural and historical record?

3. Did the trial judge err in her interpretation of the Treaty by granting judgment on an unpleaded theory and issuing a declaration that affects the interests of nearby property owners who did not participate in these proceedings?

4. Did the trial judge err in misapprehending the bona fide purchaser for value defence and dispossessing innocent landowners in order to remedy the Crown’s breach?

5. Should the Town be granted leave to appeal the costs order? If leave is granted, did the trial judge err in her award of costs?

6. Did the trial judge deny procedural fairness by determining responsibility for pre-Confederation Crown liability in Phase 1 of the trial? Alternatively, did the trial judge err in finding that Canada inherited the entirety of the pre-Confederation Crown liability?

holding: 

Appeals dismissed. Canada’s cross-appeal allowed.

reasoning: 

1. No.

The Court found that the trial judge did not err with respect to the legal principles she applied to interpreting the Treaty. Ontario focused on two arguments, both of which the Court rejected.

First, Ontario argued that the trial judge erred in law by choosing an interpretation that favoured the interests of Saugeen. The Court reviewed established principles of treaty interpretation and found the trial judge correctly identified her task as choosing the interpretation of the Treaty that best reconciled the interests of Saugeen and the Crown. Ontario’s argument hinged on three sentences drawn from the trial judge’s decision. The Court found that when read in the context of the whole decision, the trial judge did not err and sought an interpretation which looked for the common intention of the parties.

Second, Ontario argued that the trial judge erred by relying on principles of treaty interpretation set out in the dissenting reasons of R v. Marshall. The Court found that the trial judge did not err. The Court cited Restoule (SCC) affirming that some of McLaughlin J.’s enunciation of legal principles in the dissent of Marshall, reflected the current state of the law. On the principles discussed in the dissent in Marshall, Ontario asserted that the trial judge placed undue emphasis on the text of the Treaty to the detriment of the historical and cultural record. The Court asserted that Ontario’s submission improperly relied on pointing to isolated passages of the reasons rather than reading the reasons as a whole.

2. No.

The Court found that the trial judge did not make palpable and overriding factual errors in her treaty interpretation analysis of the cultural and historical record. Ontario argued that the trial judge erred in three factual findings. The Court disagreed.
First, Ontario argued that there was no evidence that Saugeen knew the location of the “spot upon the coast” referred to in the Treaty text. The Court found that there was ample evidence to support the trial judge’s finding, including expert evidence from historians, historical and cultural evidence, and the history of negotiations. Second, Ontario argued that the trial judge erred in failing to find that the Trace Map reflected the Treaty parties’ common intention. Specifically, in finding there was nothing to suggest that the Trace Map’s eastern boundary represented the eastern boundary agreed to in the Treaty. Ontario asserted that the trial judge ignored three pieces of archival evidence relevant to the issue. The trial judge did not specifically reference the evidence pointed to by Ontario, but it was not sufficient to show palpable and overriding factual error given that the reasons for judgment showed that the trial judge carefully considered the evidence as a whole on the issue. Third, Ontario argued that the trial judge erred in finding that Saugeen could not have referred to a copy of the Sketch Map in a petition sent to the Governor General dated June 26, 1855. Ontario argued that the trial judge erred by not considering evidence that it was likely that Saugeen had a copy of the Sketch Map in its June 1855 petition. The Court found that the trial judge carefully considered the facts and issue in her reasons and made no palpable error.

Overall, the Court found that the findings made by the trial judge were open to her on the record and Ontario showed no basis to disturb the trial judge’s factual findings.

3. No.

The Court found the trial judge did not grant judgment on an unpleaded theory and issue a declaration affecting non-party landowners.

The Town and Families took a common position that the trial judge erred by granting judgment on an unpleaded theory that would add to the Reserve a narrow strip of land along the eastern boundary which would affect private landowners whose properties abut the existing boundary. The Court rejected the Town and Families argument and instead found that the declaration mirrors the claim for relief set out in Saugeen’s pleadings and did not imply that the entire eastern boundary must be moved further east. The trial judge’s declaratory orders with respect to the Disputed Beach necessarily implied that the Reserve boundaries must be resurveyed to bring the beach into the Reserve. This plainly requires that the northern terminus of the eastern boundary be moved further north from its present location. However, the Court found that this did not imply that there is also land to the east of the existing boundary that must also now be recognized as unsurrendered territory.

Thus, the Court found that the Town and Families’ appeal on the issue must fail because the declaration was not as geographically broad as contended and the wording of the declaration in the context of the reasons did not affect the non-party landowners south of the road allowance.

4. No.

While the Court did find that the trial judge improperly limited the availability of the bona fide purchaser defence, she did not err in balancing the competing interests.
Both A. L. and the Estate of B. T. inherited their land. The trial judge held that those who inherit property cannot avail themselves of the bona fide purchaser defence because they personally did not pay valuable consideration. The Court found that the trial judge erred in limiting the availability of the bona fide purchaser defence to exclude the Families because the defence is not lost when property passes from an estate to its beneficiaries without consideration. However, the Court found that the trial judge did not err in balancing the interests under the principles of reconciliation to deny applying the bona fide purchaser defence. The Court concluded that because the defence is an equitable doctrine and there was no principled reason that a treaty-protected reserve interest of a First Nation should give way to the property interest of a private purchaser, there was no basis to interfere with the trial judge’s exercise of discretion.

5. No.

The Court denied the Town’s request for leave to appeal costs. The Town argued that the trial judge erred in principle by characterizing Canada as a “successful” defendant and subsequently apportioned 50 percent of Saugeen’s costs to the Town. The Court found that the trial judge’s determination was entitled to deference absent error in principle or palpable and overriding error. The Court concluded that the Town did not demonstrate that the trial judge’s assessment was unworthy of deference.

6. Yes.

The Court found that the trial judge erred in determining responsibility for pre-Confederation crown liability in Phase 1.

Canada cross-appealed on two grounds. First, Canada argued that the trial judge denied procedural fairness by, without notice, determining the allocation of pre-Confederation liability in Phase 1, and not reserving the issue until Phase 2. The Court found that the allocation of pre-Confederation liability is a matter of constitutional significance and the trial judge erred by making a determination without providing Ontario and Canada the opportunity to make submissions. Second, Canada argued that the trial judge erred by finding that Canada inherited 100 percent of the pre-Confederation Crown’s liability. The Court found that the trial judge acted contrary to procedural fairness in failing to inform the parties of her intention to do so and/or without inviting submissions from them on that question. Neither Ontario nor Canada committed the initial breaches; agents of the Imperial Crown did. Thus, the parties were entitled to make submissions, pursuant to the Phasing Order, in the context of their cross-claim and counterclaim about how liability should be apportioned for acts committed before Ontario or Canada existed.

Canada Life Assurance Company v. Aphria Inc., 2024 ONCA 882

[Pepall, Nordheimer and Zarnett JJ.A.]

Counsel:

D. J. Bell and C. Liang, for the appellant
G. Galati and W. Kaufmann, for the respondents
J. Opolsky, J. Silver and D. B. Bish, for the Intervener Real Property Association of Canada
M. Latella and P. Chopra, for the Intervener Better Way Alliance

facts:

The appellant, Aphria Inc. (“the Tenant”) entered into a ten-year lease for commercial office premises in downtown Toronto in 2018. The building was sold in 2019 and the new landlords and successors to the lease were the respondents, Canada Life Assurance Company, LG Investment Management, Ltd. as trustee for IG Mackenzie Real Property Fund, and OPTrust Office Inc. (collectively, the “Landlord”).

In 2021, the Tenant served a notice of repudiation on the Landlord and vacated the premises. The Landlord responded that it was under no obligation to accept and did not accept the Tenant’s repudiation of the lease. It stated that the lease remained in effect and reminded the Tenant that it was obliged to fulfill its covenants under the lease including its obligation to pay the full rent as it came due throughout the term of the lease. The Tenant answered by saying that it had vacated the premises and the Landlord had a duty to mitigate its damages. The Landlord disagreed and persisted in treating the lease as continuing. The Tenant’s real estate broker provided leads to potential tenants to the Landlord. The Landlord took no steps to re-let the premises. It reminded the Tenant of its rights to sub-let the premises under the terms of the lease. Ultimately, the Landlord sued the Tenant for rents owing since January 1, 2022.

The Landlord brought a motion for summary judgment for the rent owing of $638,171.40 plus interest and for future rent as it came due. The Tenant opposed the motion on the basis that the Landlord was required to mitigate but had failed to do so. The Tenant brought a cross-motion for summary judgment for a declaration that if rent was owing, the amount was capped at rent owing for two years from the date of default pursuant to s. 19.03 of the lease.

The motion judge declined to deviate from the Supreme Court’s decision in Highway Properties and granted the Landlord summary judgment for $638,171.40 plus interest. He also declined to grant the Landlord judgment for future rent on the basis that it would be premature to do so as the Landlord would still have an obligation to account for any mitigation that might in fact take place in the future. In granting summary judgment to the Landlord, he provided a very detailed discussion of any duty of mitigation owed by a landlord when it does not accept the repudiation of a commercial lease by its tenant. The motion judge stated that it did appear anomalous that there was no such obligation. He also dismissed the Tenant’s cross-motion based on s. 19.03 of the lease. The motion judge considered that the two-year limitation in s. 19.03 applied only if the Landlord had terminated the lease. As the Landlord kept the lease alive after the Tenant’s default, its entitlement was not capped.

issues: 

1. Did the motion judge err in failing to recognize a duty to mitigate on the Landlord?

2. Did the motion judge err in his interpretation of s. 19.03 of the lease?

holding: 

Appeal Dismissed.

reasoning: 

1. No.

The Court held that the motion judge did not err in determining that he was bound to follow Highway Properties and that therefore the Landlord did not have a duty to mitigate in this case.

The Court noted that the Intervener, BWA, directed the panel to the Court’s decision in Canadian Medical Laboratories, a case that was not brought to the attention of the motion judge and which BWA submitted supported its position.

The Court disagreed with the proposition advanced by BWA. Its facts did not fall within the first scenario described in Highway Properties which was an issue on this appeal. It involved an offer to lease where at trial the tenant took the position that it was void due to misrepresentation and mistake. The court rejected that argument and treated the lease as having been repudiated and the landlord as having accepted the repudiation when it leased the premises to a third party. The Court also noted that Canadian Medical Laboratories pre-dated TNG Acquisition.

The Court further held it was not persuaded by the appellant’s other arguments that would avoid the application of stare decisis. The Court was of the view that there was no compelling basis on which to interfere with the motion judge’s conclusion on the issue of stare decisis. He was bound by authoritative jurisprudence to hold that where a landlord refuses to accept a tenant’s repudiation of a commercial lease and insists on performance, there is no duty on the landlord to mitigate. The motion judge correctly decided that rejection of the principle in Highway Properties would create uncertainty and instability in a manner contrary to the doctrine of stare decisis.

2. No.

Regarding the standard of review, the Court held that this was not a standard form contract. Rather, as found by the motion judge, it was “an arms-length commercial lease negotiated by two sophisticated parties”. Moreover, the Tenant did not point to any extricable error of law nor did the Court see one. The motion judge properly instructed himself on the applicable legal principles. His interpretation of the lease was to be reviewed for palpable and overriding error.

The Court held that the motion judge considered the whole contract and the plain wording of s. 19.03. He considered that the latter had to be read in context. He reasoned that the “notwithstanding” sentence was in the context of the landlord terminating the lease for default. As there was no termination, the provision did not apply. Furthermore, he reasoned that this interpretation was also supported by ss. 12.04, 19.06, and 20.10 of the lease. He determined that it would not make commercial sense for the lease to limit the Landlord’s remedies without expressly saying so. The Court saw no palpable and overriding error.

Essex Condominium Corporation No. 125 v. Heritage Park Villas Inc., 2024 ONCA 889

[Miller, Monahan and Dawe JJ.A.]

Counsel:

J. Van Bakel and J. Vanderzwet, for the appellant
S. Pickard, for the respondent, Heritage Park Villas Inc.
E. M. Reynolds, for the respondents, 2043571 Ontario Inc., 1287678 Ontario Inc. and D. C.

facts:

The respondent Heritage Park Villas Inc. (“HPVI”) was a property developer, with D.C. as the directing mind of HPVI, 204 Ontario, and 128 Ontario. D.C. also acted as an officer and director of each corporation. HPVI built a residential condominium building and registered a declaration under s. 2 of the Condominium Act, creating the appellant, Essex Condominium Corporation No. 125 (“ECC 125”). While D.C.’s corporations, 128 and 204 Ontario, were acting as property managers for the building, they did not collect common expense fees from HPVI. Due to the shortfall of common expenses collected, ECC 125 was unable to provide sufficient money to the statutorily required reserve fund. Accordingly, ECC 125 claimed against the defendants for breach of contract and negligence in relation to the deficits.

The respondents successfully brought a summary judgment motion with respect to two of the three claims brought by the appellants. The appellants appealed the summary judgment regarding the motion judge’s determination that the claim was barred by the Limitations Act, 2002.

issues: 

Did the motion judge err in finding that the claim was statute barred under the Limitations Act 2002?

holding: 

Appeal allowed.

reasoning: 

Yes. The Court held that the motion judge incorrectly reversed the onus on ECC 125 to show that its claim was not reasonably discoverable more than two years before the claim was brought. The Court first conducted an analysis of section 4 of the Limitations Act, 2002 and found that defendants who move for summary judgment on the basis of a limitations defence bear the burden of demonstrating that their defence can be made out without the need for a trial. However, the motion judge incorrectly reversed this onus, and found that the plaintiff had failed to discharge its burden of demonstrating that its claim could not reasonably have been discovered when the cause of action arose. The motion judge fell into this error by following a line of lower court cases, pre-dating the Court’s judgment in AssessNet, that incorrectly treated the presumption in s. 5(2) as applying to the issue of constructive knowledge under s. 5(1)(b), rather than only to the issue of actual knowledge under s. 5(1)(a).

Since the respondents did not dispute that ECC 125 had no actual knowledge of its claim until the discovery in 2016, their limitations defence could only succeed if they established on a balance of probabilities that a reasonable person in ECC 125’s position ought to have acquired this knowledge before December 30, 2014, the date two years before ECC 125 commenced it action. However, the motion judge erroneously reversed the burden and granted summary judgment in favour of the respondents on the basis that ECC 125 had “failed to discharge its burden of demonstrating that its claim could not reasonably have been discovered when the cause of action arose.”

The Court rejected the respondents’ two arguments that even though the motion judge incorrectly reversed the onus, that this did not affect the decision that the claim was statute-barred. First, the respondents argued that the motion judge correctly analyzed and applied the burden of proof when dealing with the discoverability of the claim. The Court did not agree and found that the motion judge had expressly misdirected the burden of proof requirement onto the plaintiffs. Second, the respondents argued that the motion judge’s misallocation of the burden of proof did not matter because of his affirmative finding that the appellant had not been duly diligent. The Court rejected this as well and determined that the motion judge’s findings of fact could not be extricated from his legal error. Further, the Court was not satisfied that the findings of fact would have been themselves sufficient to support the conclusion that the respondents met their burden to establish a limitations defence.

Singh v. Khalil, 2024 ONCA 909

[Nordheimer, Copeland and Madsen JJ.A.]

Counsel:

S. Joshi and J. Eensild, for the appellant
E. Cobbina and N. Love, for the respondent

Keywords:  Family Law, Marriage Contracts, Setting Aside, Spousal Support, Family Law Act, R.S.O. 1990, c. F.3 s. 56(4), Family Law Rules, O. Reg. 114/99 rr. 2(3)-(5), 16(6.1)-(6.2), 17(18), 24(10)-(11), Hryniak v. Mauldin, 2014 SCC 7, Harnett v. Harnett, 2014 ONSC 359, Mundinger v. Mundinger, [1969] 1 O.R. 606 (Ont. C.A.), Miglin v. Miglin, 2003 SCC 24, Fielding v. Fielding, 2015 ONCA 901, M. (C.A.) v. M. (D.) (2003), 67 O.R. (3d) 181 (ON CA)

facts:

The parties were married in 2016 and separated in 2020. In 2017, the Respondent became concerned with the parties’ relationship and prepared a marriage contract. After being provided a copy, the Appellant signed and notarized the agreement before a lawyer. The Appellant did not ask for or receive legal advice. Nevertheless, the lawyer signed a Certificate of Acknowledgment confirming that the Appellant understood the contents of the agreement he was signing and that he was signing voluntarily and without compulsion by the Respondent. The contract stated that the parties are separate as to property and that there shall be no support payable by either party.

The Appellant’s affidavit also stated that post-separation, he was involved in a motor vehicle accident, sustaining significant injuries, which he said have impacted his ability to earn an income. It appears that he wished to seek spousal support from the Respondent, however, he did not claim spousal support in his application or on the motion.

issues: 

1. Did the motion judge err by declining to set aside the marriage contract and by not hearing oral evidence?

2. Did the motion judge err by not sending the Appellant’s spousal support claim to trial?

3. Did the motion judge err in their costs award?

holding: 

Appeal dismissed

reasoning: 

1. No.

The motion judge correctly set out the law governing setting aside a marriage contract under s. 56(4) of the Family Law Act and accurately summarized the factors for consideration. For instance, he appropriately considered whether the party seeking to set aside the agreement is not the victim of the other party, but rather of his or her own failure to self-protect.
The Court held that oral evidence was not required to make the determinations made on the motion. There was no need for either a “mini-trial” under r. 16(6.1) of the Family Law Rules (the “FLR”) or a trial. Nor was there any error in making findings of fact and credibility findings on the written materials before the motion judge.

On the Appellant’s evidence, the motion judge was able to make central findings of fact such as the fact that the Appellant “had not bothered” to read the contract before signing it. Furthermore, to the extent that the motion judge made credibility findings against the Appellant, they arose directly from conflicts and contradictions in his own evidence. The Court also found that to the extent that there were conflicts in the evidence, they were not material. The motion judge found no credible evidence that the Respondent had exploited the Appellant or that she had taken advantage of any unequal bargaining power. The Appellant’s evidence was that he was at least as well off as the Respondent when they married. The motion judge declined to set aside the marriage contract and the Court saw no error in this conclusion nor in the process used to arrive at it.

2. No.

The Court found that the Appellant did not claim spousal support either in his application or on the motion. Furthermore, the motion judge found that there was a lack of evidence supporting the Appellant’s injury or its impact. Accordingly, there was no basis for this ground of appeal and that no error was made by the motion judge.

3. No.

The motion judge ordered costs in the amount of $15,000. Five thousand dollars was in relation to the costs of the motion before him, and $10,000 was in relation to costs of four prior appearances, for which the total amount claimed was $14,911.49. Those appearances included two conferences. The Appellant argued that the motion judge erred in awarding costs in relation to the conferences in the face of r. 17(18) of the FLR which states that costs shall not be awarded at a conference unless a party is not prepared, did not serve the required documents, did not make the required disclosure, or otherwise contributed to the appearance being unproductive. The Appellant further emphasizes the presumption set out in r. 24(10) of the FLR, that costs are to be determined at each stage of the proceeding. Finally, the Appellant said that the motion judge erred in not considering his inability to pay.

The Court did not accept the Appellant’s submissions. First, the determination of costs is discretionary and entitled to significant deference from this court. Second, at the appearances in question, costs were reserved, as is explicitly permitted under r. 24(11). Third, three endorsements indicated that the Appellant had yet to serve his financial statement, as is required under the FLR. Finally, whether to address the Appellant’s ability to pay was a discretionary consideration within the purview of the motion judge. Thus, the Court dismissed the appeal and the request for leave to appeal costs.

SHORT CIVIL DECISIONS

Wilson v. Fatahi-Ghandehari , 2024 ONCA 895

[Nordheimer, Copeland and Madsen JJ.A]

Counsel:

S. W. and E. W., acting in person
J. J.D. MacKenzie, for the respondent, S. F-G.
B. Phillips, for the respondent, Abrahams LLP

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Rules of Civil Procedure, Rule 2.1

Lawyers’ Professional Indemnity Company v. Sochnyeva , 2024 ONCA 896

[Nordheimer, Copeland and Madsen JJ.A.]

Counsel:

H. S. and D. S., acting in person
M. Bradley, for the responding party

Keywords: Civil Procedure, Leave to Appeal, Stay Pending Appeal, Review

Spasiw v. Law Society of Ontario , 2024 ONCA 888

[Nordheimer, Copeland and Madsen JJ.A.]

Counsel:

A. S., acting in person
B. Kates and N. Novac, for the respondent, Law Society of Ontario
J. Goldblatt and R. Allen, for the respondents, McMillan LLP and B. B.
J. Brown, for the respondent, D. M.

Evangelisti v. Canadian Broadcasting Corporation,, 2024 ONCA 903

[Fairburn A.C.J.O., Trotter and Zarnett JJ.A.]

Counsel:

G. E., acting in person
R. Gilliland and M. Robson, for the respondent

Keywords:  Torts, Defamation, Remedies, Injunctions, Civil Procedure, Evidence, Cross-examination, Procedural Fairness, Reasonable Apprehension of Bias

World Medpharm Inc. v. York Region Standard Condominium Corporation No. 1279,2024 ONCA 907

[Brown, Huscroft and Miller JJ.A.]

Counsel:

B. J. Rutherford, for the appellants
D. M. Golden and M. Hochberg, for the respondents
C. R. Dunn, for York Region Standard Condominium Corporation No. 1247

Keywords:  Real Property, Condominiums, Contracts, Commercial Leases, Exclusive Use Clauses, Remedies, Compliance Orders, Condominium Act, 1998, S.O. 1998, c. 19, s. 134

Pinsky v. 2479420 Ontario Inc., 2024 ONCA 901

[Brown, Huscroft and Miller JJ.A.]

Counsel:

A. P., acting in person
M. J. Holervich, for the respondents

Keywords:  Contracts, Solicitor and Client, Civil Procedure, Striking Pleadings, Abuse of Process, Procedural Fairness, Solicitors Act, R.S.O. 1990, c. S.15, ss. 2(1), 8

Augusta Studios Inc. v. 8699011 Canada Inc., 2024 ONCA 906

[Brown, Huscroft and Miller JJ.A.]

Counsel:

S. J. Erskine and A. Zaya, for the appellant
D. Baker and R. Azimov, for the respondent

Keywords:  Contracts, Real Property, Commercial Leases, Leased Premises, Calculation of Rent

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