Court of Appeal Summaries (November 25-29)

December 05, 2024
John Polyzogopoulos

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The most interesting decision of the week for students of the Court was Heegsma v. Hamilton (City). In that case, the Ontario Human Rights Commission appealed an order of the Superior Court that dismissed its motion for leave to intervene as a friend of the court. The intervener motions of the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association and the Women’s Legal Action Fund were also dismissed, but they did not appeal. The case involves a constitutional challenge to municipal by-laws that evicted homeless people who were living in tents and other shelters in various public parks in Hamilton. It is scheduled to be heard on December 16. The OHRC’s appeal was quashed for want of jurisdiction after the Court found that the order was interlocutory, not final. However, in doing so, the Court had to distinguish dismissals of motions to intervene as a party from motions to intervene as a friend of the court. Prior case law of the Court treats the former as final orders, and therefore there is an automatic right of appeal from the dismissal of motions to intervene as a party. The reason given by the Court for distinguishing between the two is that a litigant who seeks to intervene as a party could potentially be affected by the result and therefore such an order is final as it relates to their interests. The focus on such motions is whether the proposed intervener’s interests will be affected, such that they should be given intervener status. However, a motion to intervene as a friend of the court does not affect the proposed intervener’s interests, and therefore is an interlocutory order. The focus of motions to intervene as a friend of the court is on whether the proposed intervener can be of assistance to the court, not whether their substantive rights might be impacted by the decision in the case.

In coming to its conclusion, the Court had to decline to follow its own decision in Bedford v. Canada (Attorney General), 2009 ONCA 669 (which was a constitutional challenge to the criminalization of prostitution that was successful all the way up to the Supreme Court of Canada). The Court in Bedford had allowed an appeal from the dismissal of a motion by various public interest groups to intervene as friends of the court in that case. There was no discussion in that decision about whether the order appealed from was final or interlocutory or whether the Court had jurisdiction to hear the appeal. Citing prior case law, the Court in Heegsma confirmed that a decision by the Court in one appeal where the issue of jurisdiction is not considered or discussed (such as in Bedford) is not authority to establish the Court’s jurisdiction in a similar subsequent appeal. The lesson is that counsel need to beware of relying on decisions in support of the Court’s jurisdiction where the issue of jurisdiction was not discussed, as those decisions are of no precedential value.

I don’t comment very often on whether the Court got it right (it usually does). However, I feel compelled to provide my thoughts on this decision (they are my own). With respect, it seems to me that the Court could have just as easily decided the other way and found that the dismissal of both types of motions are final orders, since they both finally decide that someone cannot be an intervener. That would have resulted in more consistency in the law regarding what is and is not a final order, since both types of intervener motions seek the same ultimate relief and are bought under the same rule (Rule 13). Moreover, I would have thought that such a result would have been preferable from a policy perspective. Interveners should be encouraged to come forward in public interest litigation, and this decision discourages interveners from pressing their request to be heard. On the facts of this case, it seems like a lost opportunity that there will be no intervener at the hearing of the application in what appears to be a very important case regarding the rights of indigent people and the use of public spaces. It would have been easy to justify allowing the appeal in this case. The decision of the motion judge who dismissed the intervener motions was one paragraph long. The proposed intervener in this case was not just any proposed intervener. One would have thought that the Human Rights Commission would have had something useful to say about the issues in this case. Whether intentional or not, the effect of this decision is to make it more difficult to intervene in public interest litigation. There is a good chance this case ends up in the Court of Appeal again following a decision by the Superior Court on the merits. The OHRC and the other advocacy groups whose motions were dismissed will have another opportunity to seek intervener status on the appeal.

In Trop v. Trop, Blaney McMurtry’s very own Jim Edney successfully argued that a husband’s motion for a stay of a financial disclosure order pending an appeal in a family law case should be dismissed. The Court held that the husband was not attorning to the jurisdiction by complying with the order and could continue with his jurisdictional challenge.

In Temagami Barge Limited v. Ontario, the Court dismissed an appeal for a stay of an injunction that barred the appellants from conducting certain commercial activities on their property that had been found to be in breach of a municipal bylaw. The Court found no irreparable harm if the stay was not granted and emphasized that the public interest in enforcing the bylaw tipped the balance of convenience scales in favour of the municipality.

Other topics covered this week included equalization of net family property, enforcement of evictions orders under the Residential Tenancies Act due to non-payment of rent, MVA, summary judgment and security for costs.

Civil Decisions

Trop v. Trop, 2024 ONCA 855

Keywords: Family Law, Motions, Duty to Disclose Financial Disclosure, Production Order, Jurisdiction, Stay, Interlocutory Injunction, RJR-MacDonald Inc. v. Canada (Attorney General), [1994], 1 S.C.R. 311, Pannone v. Peacock, 2022 ONCA 520, Fatahi-Ghandehari v. Wilson, 2016 ONCA 921, Wachsberg v. Wachsberg, 2018 ONCA 508, M. v. H., [1996] O.J. No. 540 (Ont. C.A. – In Chambers), Yaiguaje v. Chevron Corporation, 2014 ONCA 40, leave to appeal dismissed, [2018] S.C.C.A. No. 255, Sakab Saudi Holding Company v. Al Jabri, 2021 ONCA 548, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Van Damme v. Gelber, 2013 ONCA 388, leave to appeal refused, [2013] S.C.C.A. No. 342, Roberts v. Roberts, 2015 ONCA 450, Husid v. Daviau, 2012 ONCA 469, Dickie v. Dickie, 2007 SCC 8

Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859

Keywords: Municipal Law, Land Use Planning, By-Laws, Enforcement, Remedies, Injunctions, Civil Procedure, Appeals, Stay Pending Appeal, Municipal Act, 2001, S.O. 2001, c. 25, s. 447.1, Planning Act, R.S.O. 1990, c. P.13, s. 34(9), Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Longley v. Canada (Attorney General), 2007 ONCA 149, Zafar v. Saiyid, 2017 ONCA 919, Saint-Romuald (City) v. Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898, Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441, Syntex Inc. v. Novopharm Ltd. (1991), 36 C.P.R. (3d) 129, Daniel v. Canada (Minister of Citizenship and Immigration), 2007 FC 392, M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, Maple Ridge (District of) v. Thornhill Aggregates Ltd. (1998), 54 B.C.L.R. (3d) 155 (C.A.), Saskatchewan (Minister of Environment) v. Redberry Development Corp., [1987] 4 W.W.R. 654 (Sask. Q.B.), Royal Canadian Horse Artillery Brigade Assn v. Kingston (City), 2003 CanLII 49319 (Ont. S.C.)

Heegsma v. Hamilton (City), 2024 ONCA 865

Keywords: Civil Procedure, Jurisdiction, Leave to Intervene as Friend of the Court, Appeals, Canadian Charter of Rights and Freedoms, ss. 7 and 15, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 6(1)(b(), Rules of Civil Procedure, rr. 13.01 and 13.02, Maybank Foods Inc. Pension Plan v. Gainers Inc. (1990), 77 D.L.R. (4th) 236 (Ont. C.A.), Bedford v. Canada (Attorney General), 2009 ONCA 669, Smerchanski v. Lewis (1980), 30 O.R. (2d) 370 (C.A.), Royal Trust Corporation v. Fisherman (2001), 55 O.R. (3d) 794 (C.A.), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Paulpillai Estate v. Yusuf, 2020 ONCA, Hendrickson v Kallio, [1932] O.R. 675 (C.A.), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, P1 v. XYZ School, 2021 ONCA 901, Hollinger Inc. v. The Ravelston Corp., 2008 ONCA 207, Hollinger Inc. v. Ravelston Corporation Ltd., 83 O.R. (3d) 258 (S.C.), Singh v. Heft, 2022 ONCA 135, CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare, 2015 ONCA 846

Short Civil Decisions

Potofsky v. Chen, 2024 ONCA 862

Keywords: Contracts, Real Property, Leases, Residential Tenancies, Default, Non-Payment of Rent, Enforcement, Eviction Orders, Civil Procedure, Leave to Appeal, Extension of Time, Stay Pending Appeal, Rules of Civil Procedure, r. 61.03.1(3)(a), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.), Shearer v. Oz, 2021 ONSC 7844 (Div.Ct.), RJR-Macdonald v. Canada (Attorney General), [1994] 1 S.C.R. 311, Louis v. Poitras, 2020 ONCA 815

Leith v. Leith Estate, 2024 ONCA 863

Keywords: Family Law, Wills and Estates, Property, Equalization of Net Family Property, Remedies, Constructive Trusts, Civil Procedure, Directions, Appeals, Extension of Time, Stay Pending Appeal, Family Law Act, R.S.O. 1990, c. F.3, ss. 5-7

Asghar v. Dial and File Process Servers Inc., 2024 ONCA 864

Keywords: Consumer Protection, Deceptive Marketing, Torts, Fraud, Misrepresentation, Malicious Falsehoods, Breach of Contract, Duty of Good Faith, Consumer Protection Act, 2002, S.O. 2002, c. 30, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922

Morales v. Laguardia, 2024 ONCA 869

Keywords: Torts, Negligence, MVA, Civil Procedure, Summary Judgment, Standard of Review, Expert Evidence, Housen v. Nikolaisen, [2002] 2 S.C.R. 235, Gill v. Canadian Pacific Railway, [1973] S.C.R. 654

Grillone (Re), 2024 ONCA 870

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Security for Costs, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 71, Rules of Civil Procedure, rr. 61.13(3.1) and r. 72.03(1)

CIVIL DECISIONS

Trop v. Trop, 2024 ONCA 855

[Roberts J.A. (Motions Judge)]

Counsel:

G. Karahotzitis and C. Amiri, for the moving party

James B.C. Edney, for the responding party

facts:

The moving party husband, Mr. T, sought a stay of the September 2024 order of McKenzie J. pending the disposition of his appeal of that order. McKenzie J. ordered Mr. T to produce an updated financial statement to the responding party wife, Ms. T, within 30 days.

In July 2024, Mr. T filed an Answer and Financial Statement in which he challenged the jurisdiction of the court to hear Ms. T’s application. His jurisdiction motion was scheduled for hearing during the Welland sittings of November 18^th. He maintained that the issues should be determined in Texas where he had commenced proceedings and where Ms. T has brought a motion to challenge the court’s jurisdiction over the dispute.

issues:

Does the circumstance of the case warrant the granting of a stay pending appeal?

holding:

Motion dismissed.

reasoning:

No. The Court held that Mr. T did not satisfy that he would suffer irreparable prejudice if the stay was not granted. The Court disagreed with Mr. T’s argument that his compliance with McKenzie J.’s production order would be treated as attornment to Ontario’s jurisdiction and render his jurisdiction motion moot. Compliance with court orders in the face of an ongoing jurisdictional challenge is not attornment. A party must take a voluntary step to indicate attornment to the jurisdiction: Sakab Saudi Holding Company v. Al Jabri. If Mr. T’s delivery of an Answer and Financial Statement is not attornment to Ontario’s jurisdiction, his compliance with an order to produce an updated version of the financial statement was also not attornment. The delivery of pleadings and productions to facilitate the efficient exchange of information in which a party clearly raises the issue of jurisdiction has not generally, without more, been treated as attornment.

The balance of convenience favoured Ms. T. A party has an ongoing obligation to provide financial disclosure and that complete and current financial disclosure is essential in family law proceedings. Ms. T was entitled to financial disclosure notwithstanding the dispute over the court’s jurisdiction. Mr. T did not argue that he would not be required to make the same disclosure in Texas if he is successful on his jurisdiction motion and the proceedings are adjudicated in Texas instead of Ontario. There was therefore no prejudice to him in complying with McKenzie J.’s production order.

Temagami (Municipality) v. Temagami Barge Limited, 2024 ONCA 859

[Gomery J.A. (Motions Judge)]

Counsel:

L. F. Longo and B. Chung, for the appellants/moving parties, Temagami Barge Limited and D.L.D.

C. M. Loopstra and J. Westworth, for the respondent, Corporation of the Municipality of Temagami

E. Machado, for the respondent Crown, present but making no submissions

facts:

The appellants, Temagami Barge Limited and its principal, D.L.D. (“Mr. D”), moved for a stay of an order granted by the application judge for a permanent injunction under the Municipal Act. This injunction restrained Temagami and Mr. D from conducting thirteen specific commercial activities on the subject Property. Justice Richard held that these uses of the Property are not permitted under By-Law No. 06-650, as amended, and the uses are not grandfathered under this By-Law or s. 34(9) of the Planning Act.

The appellants appealed the application judge’s order on the basis that she misapprehended the applicable legal tests and principles, made procedural errors, and made errors of fact and mixed fact and law. They also argued that she erred in awarding substantial indemnity costs against them without first seeking submissions on this issue or giving reasons.

issues:

Is there a serious issue to be determined on the appeal?
If a stay is not granted, will the moving party suffer irreparable harm?
Does the balance of convenience favour a stay?

holding:

Motion dismissed.

reasoning:

The test for staying an order pending appeal is the same as the test for an interlocutory injunction, which was set out in RJR-MacDonald: (1) there is a serious issue to be determined; (2) if a stay is not granted, the moving party will suffer irreparable harm; and (3) the balance of convenience favours a stay

Yes.

The threshold for finding a serious issue is low and can be satisfied if the application is neither vexatious nor frivolous. Without commenting on the relative strength of the arguments, the Court found that the grounds of appeal raised were not frivolous and met this threshold.

2. No.

Mr. D’s affidavits in support of the stay focused on potential harm to the appellants’ customers and not on the appellant themselves, and the only evidence of harm to the appellants was customer loss. The evidence of harm arising from a customer loss due to the appellants’ inability to perform the prohibited activities was not convincing to the Court, as it was vague and uncorroborated, and only based on a single email exchange with one customer.

The Court rejected the appellants’ submission that irreparable harm would occur because of an inability to move and deliver hazardous or contaminated waste. Only a resulting permanent loss of business pending the adjudication of the appeal would meet the irreparable harm test.

The Court also rejected the appellants’ assertion that irreparable harm will arise since the appellants’ customers will be harmed if they cannot offer sewage pump out services nor propane deliveries. There was evidence of other companies that offered those services to these customers, which undercut the argument that customers may be injured if a stay was not granted. Moreover, the appellants’ customers are strangers to this litigation with no direct potential interest in its outcome and therefore their interests were not relevant.

3. No.

The balance of convenience part of the test requires “a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”. Courts are generally reluctant to grant a stay or an injunction that would prevent the government from enforcing the law, and harm to the public interest as a result of a stay is presumed and need not be established by evidence. The public interest of enforcing the By-Law outweighed the appellants’ evidence of harm.

The Court dismissed the motion but directed that a date for an appeal hearing be set on an expedited basis once the appeal is perfected.

Heegsma v. Hamilton (City), 2024 ONCA 865

[Fairburn A.C.J.O., Coroza and Sossin JJ.A.]

Counsel:

R. Khawja and A. Krishna, for the appellant, Ontario Human Rights Commission

S. Choudhry, for the individual respondents

J.L. King, for the respondent, City of Hamilton

facts:

The applicants/respondents to this appeal, are 19 individuals who erected tents or shelters (encampments) in various public parks in Hamilton, Ontario. The applicants were evicted from those encampments by the respondent, the City of Hamilton, pursuant to several municipal by-laws. The applicants challenge the constitutionality of various sections of those by-laws under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms.

Along with the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association and the Women’s Legal Action Fund, the Ontario Human Rights Commission (“OHRC”) sought leave to intervene as friends of the court in the underlying application. Both the applicants and the respondent consented to the motion. However, the motion judge dismissed the motion, finding that the proposed intervenors did not have much to add in this context.

The appellant, the OHRC, appealed from the order dismissing its motion to intervene.

issues:

Does the Court of Appeal have jurisdiction to hear an appeal from the dismissal of a motion for leave to intervene as a friend of the court?

holding:

Appeal quashed.

reasoning:

No. The Court does not have jurisdiction to hear an appeal from the dismissal of a motion for leave to intervene as a friend of the court.

The Court has jurisdiction to hear appeals of final of the Superior Court, not interlocutory orders. At the hearing, the OHRC submitted that the decision denying leave to intervene was a final order because it disposed of its ability to participate in the application. Accordingly, the Court gave consideration to whether the order following a motion for leave to intervene as a friend of the court, was final or interlocutory. The Court was of the view that an order remains interlocutory if the substantive matters lying at the heart of the subject matter of the litigation remain undecided. Looking to the order, the reasons for the order, and contextual factors, the Court found that the order in this case was interlocutory.

The Court reviewed case law that suggested that denials of leave to intervene that found such orders were final orders and appealable to the Court. However, those cases were distinguished on the basis that the intervention in those cases were to intervene as a party, not, as in the case at bar, as a friend of the court. The denial of leave to intervene as a friend of the court not have the effect of impacting the non-party’s substantive rights. On the other hand, the denial of intervener status to a proposed party would preclude them from participating in the litigation that might indirectly impact them at some level.

The Court then addressed Bedford v. Canada (Attorney General), 2009 ONCA 669, in which an appeal from the denial of leave to intervene as a friend of the court was allowed by the Court. The fact that the Court in Bedford exercised jurisdiction should not be taken to pronounce any principle of law relating to jurisdiction to hear such appeals, as the issue of jurisdiction was not raised nor decided in the Bedford appeal.

SHORT CIVIL DECISIONS

Potofsky v. Chen, 2024 ONCA 862

[Roberts J.A. (Motions Judge)]

Counsel:

J. Potofsky, acting in person

D. M. Jafari, for the responding party

Leith v. Leith Estate, 2024 ONCA 863

[Roberts J.A. (Motions Judge)]

Counsel:

T. Ivanina, for the moving party/responding party by way of cross-motion, L. M. L.

R. H. Thomson, for the responding party/moving party by way of cross-motion, J. W. C. L.

C. Leifso, for the responding party, L. E., Executor of the Estate of W. G. A. L.

Asghar v. Dial and File Process Servers Inc, 2024 ONCA 864

[MacPherson, Roberts and Wilson JJ.A.]

Counsel:

S. A., acting in person

A. S., for the respondent

Morales v. Laguardia, 2024 ONCA 869

[MacPherson, Roberts and Wilson JJ.A.]

Counsel:

D. W. Lee and N. E. Walker, for the appellants

D. Vihvelin and E. Levin, for the respondent

Grillone (Re), 2024 ONCA 870

[Miller, Harvison Young and Gomery JJ.A.]

Counsel:

S. Grillone, acting in person

K. D. Kraft and M. Bascal, for the responding party/respondent, Bluecore Capital Inc.

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.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.

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Civil Decisions

Short Civil Decisions

CIVIL DECISIONS

SHORT CIVIL DECISIONS