Court of Appeal Summaries (October 7 – October 11)

October 18, 2024
John Polyzogopoulos

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Civil Decisions

Truong v. Jeweler’s Mutual Insurance Company, 2024 ONCA 734

Keywords: Contracts, Insurance, Theft, Coverage, Damages, Compensatory Damages, Replacement Value, Actual Cash Value, Punitive Damages, Insurance, Kosmopoulos v. Constitution Insurance Co., [1987] 1 S.C.R. 2, Assaad v. Economical Insurance Group (2002), 59 O.R. (3d) 641 (CA), Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, SFC Litigation Trust v. Chan, 2019 ONCA 525, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, Rougemount Capital Inc. v. Computer Associates International Inc., 2016 ONCA 847, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2024 ONCA 675, Lieberman v. Federation Insurance Company of Canada, 2004 BCSC 572, Black’s Law Dictionary

Curtis v. McCague Borlack LLP, 2024 ONCA 729

Keywords: Torts, Professional Negligence, Lawyers, Defamation, Malicious Prosecution, Conspiracy, Fraudulent Misrepresentation, Intentional Infliction of Emotional Distress, Duty of Care, Defences, Absolute Immunity, Civil Procedure, Amending Pleadings, Absolute Privilege, Rules of Civil Procedure, r. 21,01(1)(b), Gagne v. Harrison, 2024 ONCA 82, Fernandez Leon v. Bayer, 2023 ONCA 629, Amato v. Welsh, 2013 ONCA 258, Bluteau v. Griffiths, 2023 ONSC 1004, Munster v. Lamb (1883), 11 Q.B.D. 588 (Eng. C.A.), Hamouth v. Edwards & Angell, 2005 BCCA 172, Nelles v. Ontario, [1989] 2 S.C.R. 170, Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669, Curley v. Taafe, 2019 ONCA 368, Chaudhry v. Khan, 2015 ONSC 1847

Le v. Norris, 2024 ONCA 741

Keywords: Family Law, Summary Judgment, Spousal Support, Child Support, Parenting Time, Parenting Authority, Joint Tenants, Tenants in Common, Property Claims, Family Law Act, R.S.O. 1990, c. F.3 ss. 1, 29 and 30, Children’s Law Reform Act, R.S.O. 1990, c. C.12 ss. 4 and 7, All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, S.O. 2016, c. 23, Citizenship Act, R.S.C. 1985, c. C-29, Chartier v. Chartier, [1999] 1 S.C.R. 242, Ballmick v. Ballmick, 2005 ONCJ 101, Cornelio v. Cornelio (2008), 94 O.R. (3d) 213 (S.C.), Boivin v. Smith, 2013 ONCJ 426, Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267, Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, Malik v. Attia, 2020 ONCA 787, VP Auto Sales & Service Ltd. v. Ahmed Inc., 2024 ONCA 507, A.A. v. B.B., 2007 ONCA 2, Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, Richardson v. Richardson, [1987] 1 S.C.R. 857, D.B.S. v. S.R.G., 2006 SCC 37, A.W.M. v. T.N.S., 2014 ONSC 5420, Hyrniak v. Mauldin, 2014 SCC 7

Hoffelner v. Whiteley, 2024 ONCA 753

Keywords: Family Law, Property, Civil Procedure, Appeals, Perfection, Extension of Time, Rules of Civil Procedure, rr. 1(8.4), 10(5), and 61.13, Family Law Rules, O. Reg. 114/99, r. 22, Belton v. Spencer, 2020 ONCA 623, Fontaine v. Attorney General of Canada, 2020 CanLII 64770 (Ont. C.A.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Sickinger v. Sickinger, 2017 ONCA 760

Loney v. John Doe, 2024 ONCA 748

Keywords: Torts, Negligence, MVA, Civil Procedure, Amending Pleadings, Misnomer, Limitation Periods, Rules of Civil Procedure, rr. 4.04(2), 48.04(1), Horani v. Manulife Financial Corporation, 2023 ONCA 51, Spirito Estate v. Trillium Health Centre, 2007 CanLII 41901 (ON SC), Essar Algoma Steel Inc. v. Liebherr (Canada) Co., 2011 ONSC 1688, Stechyshyn v Domljanovic, 2015 ONCA 889, Kitcher v. Queensway General Hospital (1997), 44 O.R. (3d) 589 (C.A.), O’Sullivan v. Hamilton Health Sciences Corp., 2011 ONCA 507, Davies v. Elsby Brothers Ltd., [1960] 3 All E.R. 672, Moreau v. Northwestern General Hospital (1988), 65 O.R. (2d) 128 (S.C.), Rakowski et al. v. Mount Sinai Hospital et al. (1987), 59 O.R. (2d) 349 (S.C.), McArthur v. Kaal (2006), 30 C.P.C. (6th) 150 (Ont. S.C.), Lyman v. Chan, 2018 ONSC 4037, 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, Mohabir v. Mohabir, 2014 ONSC 5484, Brown-Vidal v. Doe, 2015 ONSC 3362, Mazzuca v. Silver Creek Pharmacy Ltd. (2001), 56 O.R. (3d) 768 (C.A.)

Short Civil Decisions

Mohammad v. Springer Nature, 2024 ONCA 745

Keywords: Torts, “Fraudulent Research”, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Vexatious Litigation, Rules of Civil Procedure, r. 2.1.01, 2.1.01(3), Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Mohammad v. McMaster University, 2023 ONCA 598; Mohammad v. Bakr, 2024 ONCA 347, Mohammad v. Munn, 2023 ONSC 4361; Mohammad v. Springer Nature, 2023 ONSC 5523

Boltyansky v. Joseph-Walker, 2024 ONCA 743

Keywords: Costs

Grand River Conservation Authority v. Kentner, 2024 ONCA 742

Keywords: Costs

Conte v. Pettle, 2024 ONCA 733

Keywords: Wills and Estates, Fraudulent Conveyances, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Cambone v. Okoakih, 2016 ONSC 792

Macera v. Niagara Regional Police Service, 2024 ONCA 756

Keywords: Civil Procedure, Appeals, Orders, Costs, Enforcement

TriDelta Investment Counsel Inc. v. GTA Mixed-Use Developments GP Inc., 2024 ONCA 746

Keywords: Contracts, Limited Partnership Agreements, Defences, Estoppel by Representation, Promissory Estoppel

Zhao v. Fan, 2024 ONCA 759

Keywords: Corporations, Remedies, Oppression

Hogg v. Wealthsimple Inc., 2024 ONCA 749

Keywords: Civil Procedure, Originating Process, Statements of Claim, Service, Extension of Time, Validation, Orders, Without Notice, Setting Aside, Full and Fair Disclosure

George v. 2411363 Ontario Inc. (Ontario Health Clinics Brantford FHO Inc.), 2024 ONCA 752

Keywords: Contracts, Employment, Wrongful Dismissal, Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, s. 5(1)(a)(iii), s. 5(2), Levac v. James, 2023 ONCA 73, O’Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385, Downtown Eatery (1993) Ltd. v. Ontario, 54 O.R. (3d) 161 (C.A.)

Ali v. Irfan, 2024 ONCA 758

Keywords: Torts, Negligence, MVA, Damages, Loss of Competitive Advantage, Lazare v. Harvey, 2008 ONCA 171, Kerr v. Loblaws Inc., 2007 ONCA 371, McCannell v. McLean, [1937] S.C.R. 341

CIVIL DECISIONS

Truong v. Jeweler’s Mutual Insurance Company, 2024 ONCA 734

[Zarnett, Monahan and Pomerance JJ.A.]

COUNSEL:

J. Tam and N. O’Toole, for the appellant

W. Wolfe, for the respondents

FACTS:

In 2014 the appellant, Jeweler’s Mutual Insurance Company (“Jeweler’s Mutual”), issued a policy of insurance (the “Policy”) to the respondents. The Policy insured six pieces of jewelry against various risks, including theft.

In 2015, the respondents filed a proof of loss with Jeweler’s Mutual seeking payment of $502,100 because the jewelry was stolen while they were travelling in Vietnam. Jeweler’s Mutual requested information from the respondents, conducted interviews and questioned them under oath about when and where they acquired the jewelry. Then, it did not pay anything on account of the claimed loss.

The respondents commenced an action. At trial, Jeweler’s Mutual took the position that the respondents needed to prove they actually owned the jewelry. The trial judge was of the view that the respondents should have never been put to the proof of their pre-Policy ownership of the jewelry because Jeweler’s Mutual accepted the respondent’s ownership when it issued the Policy. The trial judge found in favour of the respondents and awarded $502,100 as compensatory damages for the loss of jewelry and $45,000 as punitive damages.

On appeal, Jeweler’s Mutual did not challenge the trial judge’s finding that the respondents owned the jewelry, nor that it was stolen from them. Jeweler’s Mutual appealed on the grounds that the trial judge erred in awarding punitive damages and that the compensatory damages were assessed in reliance on an incorrect principle.

ISSUES:

Did the trial judge err in awarding punitive damages?
Did the trial judge err in principle in their assessment of compensatory damages?

HOLDING:

Appeal dismissed.

REASONING:

No, the trial judge did not err in awarding punitive damages.

The trial judge found that a mere denial of claim that ultimately succeeds does not in itself constitute bad faith. Especially where an insurer acted on a possibly reasonable interpretation of its policy. However, the trial judge found that in the case of Jeweler’s Mutual, it put forward a purposeful and unreasonable defence in an attempt to impose unbargained for obligations onto the respondents.

The Policy issued by Jeweler’s Mutual did not request evidence of ownership or insurable interest apart from the respondent’s attestation in the online application. The Policy provided for a proof of loss provision where in the case of loss the respondents were to provide a “signed, sworn, proof of loss” which the respondents provided after the theft occurred. The trial judge found that the Policy issued by Jeweler’s Mutual did not require the respondents, when submitting a claim, to prove that they owned the jewelry at the time of the Policy.

The Court found that it was open to the trial judge to find that Jeweler’s Mutual had accepted the respondent’s ownership at the time the Policy was issued. It was also open to the trial judge to interpret the Policy as not requiring substantiation of pre-Policy ownership and to consider demands to prove pre-Policy ownership to go beyond information that Jeweler’s Mutual could reasonably require. Yet at trial, Jeweler’s Mutual continued to advance the argument that the respondents needed to provide pre-Policy ownership.

Accordingly, the Court found that the trial judge’s conclusion that Jeweler’s Mutual breached its duty of good faith was based on a thorough review of evidence. Absent legal error, the Court affirmed that the trial judge’s award of punitive damages was entitled to deference.

No, the trial judge did not err in the assessment of compensatory damages.

Jeweler’s Mutual argued that the trial judge erred in finding that the appellants could not rely on terms of the Policy that stipulated what would be paid in the event of a loss, and instead valued the loss in accordance with the appraisals submitted at the time of the Policy. The Policy included various payment options, one of which reflected the replacement value of the items and the other reflected the actual cash value of the jewelry. The value of loss calculation was based on the appraised value and it reflected the replacement value of the jewelry.

The Court recognized that where there are several ways for a contract to be performed, damages are to be assessed on the basis of the mode of performance that would be the least costly for the defendant.

Accordingly, the trial judge’s articulation of the measure of damages could only have led to an erroneous result if the actual cash value was the less costly alternative. At trial, Jeweler’s Mutual did not plead in its statement of defense that actual cash value should have been the basis of the calculation, nor did it lead evidence to demonstrate the actual cash value.

The Court found that even if the argument that the cash value was less costly was considered on appeal, the evidence did not support the conclusion the cash value was lower than the appraised value.

Curtis v. McCague Borlack LLP, 2024 ONCA 729

[Lauwers, Zarnett and Pomerance JJ.A.]

COUNSEL:

G.C. and T.R., acting in person

M. R. Kestenberg, for the respondents

FACTS:

The appellants brought this action against McCague Borlack LLP, one of its lawyers and his wife pertaining to the lawyer’s conduct in a prior lawsuit brought by one of the appellants in which he acted for the party adverse in interest. According to the appellants, the lawyer knowingly allowed false statements to be made in an affidavit for the purpose of harming the appellants.

The respondents moved to strike the appellants’ statement of claim as disclosing no cause of action under r. 21.01(1)(b) of the Rules. The appellants brought a cross-motion to stay the respondents’ motion and to set a hearing date for their own motion for default judgment against the respondents. The motion judge struck the statement of claim without leave to amend and dismissed the appellants’ cross-motion.

ISSUES:

Did the motion judge err in finding that it was improper for the appellants to have noted the respondents in default in the face of the respondents’ motion to strike the statement of claim under r. 21.01(1)(b)?
Did the motion judge err in finding that the claim against McCague Borlack and its lawyer in relation to his conduct as counsel for other clients was barred by absolute privilege?
Did the motion judge err in exercising the court’s inherent jurisdiction to prevent abuse of the court’s process by prohibiting the appellants from bringing further proceedings against the respondents without leave of the court?

HOLDING:

Appeal allowed in part.

REASONING:

The Court held that the motion judge was right to set aside the noting in default. The appellants were well aware that doing so was improper and had no excuse for failing to follow the usual practice. The appellants included the lawyer’s wife as a defendant in the action even though she had no association with McCague Borlack LLP. They included her only because she jointly owned assets with the lawyer and wanted to prevent him from transferring his assets to his wife to avoid judgment. The Court explained that the motion judge did not err in finding that the claim against the wife should be struck because, as he noted, “[t]he simple fact that spouses hold joint title to assets cannot, without anything more, form the basis of a claim against a spouse who is in no way otherwise involved in the allegations on which the action is based.”

The Court held that the lawyer owed no duty to the appellants in the former action. The motion judge was right to strike the statement of claim based on absolute privilege, and he did not err in refusing leave to amend except in one respect. The Court held that the motion judge erred in refusing G.C. leave to amend against the respondents in relation to the tort of malicious prosecution, which was alluded to, but imperfectly pleaded, in the statement of claim. The Court explained that the usual practice is to grant leave to amend, as many authorities confirm: Gagne v. Harrison.

In refusing leave to amend the claim, the motion judge cited the doctrine of absolute privilege as explained in Amato v. Welsh and quoted LaBrosse J. in Bluteau v. Griffiths, who said that “[i]t is well established that the doctrine of absolute privilege prevents claims based on communications that take place during, incidental to, and in furtherance of a court proceeding. It makes no difference if the words used are knowingly false and spoken with malice: they are subject to immunity from suit.”

The Court explained that the doctrine of absolute privilege is deeply rooted in Canadian common law. The policy basis for the doctrine is the protection of vigorous and undistracted advocacy, on which the adversarial system turns.

G.C. argued that the doctrine’s limited purpose is to provide counsel with immunity only from defamation actions. In the Court’s view, although the contours of the doctrine are not fixed, as Cronk J.A. observed in Amato, it plainly applies beyond defamation. Citing Levine J.A. in Hamouth v. Edwards & Angell, the Court noted that “[g]ranting absolute privilege to lawyers when they act in the course of their duties to their clients is for the public benefit. It frees lawyers from fear that in advocating their client’s cause they will be sued if what they say on behalf of a client is found not to be true.”

G.C. did not sue the lawyer in his malicious prosecution action. Further, the Court held that G.C.’s allegations in the statement of claim were not sufficient to ground such a claim, which, according to Nelles, has four necessary elements: (1) the proceedings must have been initiated by the defendant; (2) the proceedings must have terminated in favour of the plaintiff; (3) the absence of reasonable and probable cause; and (4) malice, or a primary purpose other than that of carrying the law into effect.

Plainly, the lawyer in this case did not initiate G.C.’s prosecution, but the Court explained that the test is more circumstantial: Pate Estate v. Galway-Cavendish and Harvey (Township). Citing Curley v. Taafe, the Court explained that it has previously qualified Pate Estate, noting that “while the prosecution would not have been initiated but for the appellant’s complaint to the police, ‘the evidence shows that the decision to initiate the prosecution was nonetheless within the discretion of, and exercised, by the police in this case,’” citing Chaudhry v. Khan. In that case, the initiation element was accordingly not met. But on a motion to strike, where the facts alleged (or which by amendment might be alleged) in the pleading must be accepted as true, the Court was not able to determine that G.C.’s possible malicious prosecution claim against the lawyer would be doomed to fail because of this type of consideration.

Accordingly, the Court held that G.C. should have the opportunity to amend the statement of claim if he wished to pursue a malicious prosecution claim against the respondent lawyer. The Court found that there was enough of a factual basis in the statement of claim to justify granting him leave to amend, and explained that he must deliver any amended statement of claim, limited to asserting a claim for malicious prosecution against the respondents, McCague Borlack and the lawyer, within 30 days of the release of the Court’s reasons, failing which the appeal would be dismissed. However, in permitting this procedural step, the Court offered G.C. no comfort that the amended statement of claim would survive another pleadings motion by the respondents, or that his claim was destined for success.

The Court also explained that the statement of claim included the causes of action of negligence and/or gross negligence, conspiracy to injure by lawful and unlawful means, fraudulent misrepresentation, and negligent and/or intentional infliction of emotional distress, mental anguish, psychological suffering, injury to dignity, embarrassment, and humiliation. The Court stated that none of these could be pursued against the respondents in the face of absolute privilege.

While Court held that the motion judge did not err with respect to the third issue, it revised the motion judge’s order precluding G.C. from bringing any further proceedings against the respondents to permit him to amend the statement of claim to pursue only a malicious prosecution cause of action as described.

Subject to allowing G.C. to amend his statement of claim, the Court allowed the appeal in part, allowing G.C. to pursue further action only on a very limited basis.

Le v. Norris, 2024 ONCA 741

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

COUNSEL:

A. Rouben, for the appellant

R. N., acting in person

FACTS:

The Appellant and the Respondent engaged in a romantic relationship characterized as “on and off”. In June 2016, the Appellant became pregnant with a child who was born in February 2017. They attempted to purchase a house together but could not agree on if they should purchase it as tenants in common or as joint tenants, and in the end the Respondent purchased the house on his own. The relationship ended in the summer of 2019. The Appellant commenced an application for spousal support and child support and parenting authority. She also claimed recovery of costs related to the failed joint purchase of the house.

The Respondent initially paid child support after the parties ceased living together until the summer of 2021, when a DNA test established that he was not the father of the child. As a result of this, the Respondent brought a summary judgment motion in which he sought the dismissal of the Appellant’s claims for spousal and child support on the basis that they did not disclose a genuine issue requiring a trial.

The motion judge allowed the Respondent’s summary judgment motion on the spousal support issue, as the respondent did not qualify as a “spouse” within the meaning of the Family Law Act (“FLA”) and therefore could not be liable for spousal support. The motion judge, however, dismissed the respondent’s motion for summary judgment on the child support issue, finding that the application raised a genuine issue requiring a trial. The motion judge dismissed both the Appellant’s and the Respondent’s damages claims with respect to the failed joint purchase of the house.

ISSUES:

Did the motion judge err in awarding partial summary judgment?
Did the motion judge err in finding that the appellant was not a spouse within the meaning of the FLA?
Did the motion judge err in dismissing both parties’ claims related to the purchase of the house?

HOLDING:

Appeal allowed, in part.

REASONING:

1. No.

The Court explained that partial summary judgment should be granted only in the clearest of cases and only if doing so does not give rise to any of the associated risks of delay, expense, inefficiency, and inconsistent findings. Further, partial summary judgment should not be granted where there is a real risk of inconsistent or duplicative facts in the context of the litigation as a whole. However, the Court then noted that it is appropriate to grant partial summary judgment where three conditions are established, citing Malik v. Attia.

(i) The determination of the case in several parts will prove cheaper for the parties;

(ii) Partial summary judgment will get the parties’ case in and out of the court system more quickly; and

(iii) Partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

The Court noted that motion judges in family law matters must consider the factors that weigh for and against granting partial summary judgment. As a matter of best practices, they should explain why they find it appropriate. Furthermore, when unrepresented parties are involved, as in this case, concerns about the efficiency of the process may take on particular importance. In such matters, however, it may be particularly important to narrow the issues for trial, particularly where one or more parties are self-represented.

The Court was satisfied that an order of partial summary judgment was appropriate in this case for two principal reasons. First, the costs of litigating this matter had been high and disproportionate. Second, the issue of spousal support involved the application of statutory language to uncontested facts. There was no risk of inconsistent findings or outcomes because the legal definitions of spouse and parent are distinct and serve different purposes.

2. No.

The Court stated that the definitions of “spouse” and “parents” are distinct. The Court held that the Appellant does not fall under the definition of spouse for the purpose of spousal support. The Court found no error on the part of the motion judge’s finding that the Appellant was not a spouse within the meaning of the FLA. The conclusion was drawn from undisputed facts, the parties’ relationship was tumultuous, and they only lived together for six months. Furthermore, while the child was born, she was not born or conceived during that period of cohabitation.

3. Yes.

The Court noted that there is no genuine issue requiring a trial when the judge can make the necessary findings of fact, the judge can apply the law to the facts, and the process is a proportionate, more expeditious, and less expensive means to achieve a just result. While the motion judge identified the correct test, the Court found that the motion judge did not make the necessary findings of fact, nor was any law applied to those facts.

The Appellant claimed that she was owed damages in the amount of $150,570.49 flowing from the failed joint purchase of the house. Additionally, she claimed damages and costs for legal fees, moving fees, lender fees, babysitting costs, travel costs, home rental costs, storage rental fees, lost/sold furniture, and payment for mental distress and pain and suffering.

The Respondent, in turn, claimed costs for the additional expenses incurred as a result of the Appellant’s breach of the APS resulting in the Respondent being the sole purchaser to avoid legal action by the vendor. In doing so, he claimed he was required to obtain a mortgage that was $150,000 higher and ten years longer than anticipated. He also claimed damages and costs for legal fees, moving fees, and storage fees.

The Court explained that the record indicated factual disagreement that was not appropriately addressed in the motion judge’s decision. The motion judge acknowledged that disagreement on the property issue was likely. However, this was not an assessment of the evidence as to whether damages were owed. Accordingly, the Court found that the motion judge erred in dismissing both parties’ claims related to the purchase of the house and this was a genuine issue requiring a trial.

Hoffelner v. Whiteley, 2024 ONCA 753

[Madsen J.A. (Motions Judge)]

COUNSEL:

H. P. L. W., acting in person

A. Macri, for the respondents

FACTS:

This appeal was from a final order made on November 1, 2023, following an uncontested trial in a family matter. The order addressed certain payments to be made from proceeds of sale of a property jointly owned between the appellant, his former spouse, and his mother-in-law (now deceased). The moving partyk, H.W., was in default in that proceeding, not having filed an Answer.

H.W.’s appeal was dismissed for delay by the Court registrar’s order dated September 3, 2024. H.W. moved to set aside the dismissal for delay and an extension of time to perfect his appeal within seven days. This was the moving party’s second motion for an extension of time to perfect his appeal. On March 25, 2024, Coroza J.A. granted an order allowing H.W. ten days to perfect the appeal. He did not do so. On August 22, 2024, the registrar advised H.W. that the court administratively dismissed the appeal for delay pursuant to r. 61.13 of the Rules of Civil Procedure, and that he may bring a motion to re-open the matter and seek an extension of time.

ISSUES:

Should the registrar’s order dismissing the appeal for delay be set aside?

HOLDING:

Motion dismissed.

REASONING:

No. The test to set aside an order administratively dismissing an appeal is set out in Sickinger v. Sickinger, at paras. 13-14. The overriding consideration is the justice of the case, which entails a consideration of the merits of the appeal. Further, the court considers factors analogous to those typically considered on a motion to extend time to appeal: (1) the explanation for not perfecting the appeal within the stipulated timelines; (2) the length of and explanation for the delay; and (3) prejudice to the respondent.

The Court rejected H.W.’s argument that he was found by the trial judge to have demonstrated an intention to appeal on a timely basis; that there was no prejudice to the respondent because they filed their factum with the court after being served with his materials; that he took prompt steps when he became aware that his materials had not been filed; and that the trial judge already found that there was merit to his appeal. The Court did not agreed that Coroza J.A. had found that the appeal had merit. Instead, in granting the first extension of time, he held that the “merit of this appeal does not weigh heavily against granting an extension of time to perfect.” This appeal, brought by the appellant who had no standing below for failure to file an Answer, was difficult at best. Among the consequences of not filing an Answer are that a party is not entitled to participate in the case in any way, and that the court may deal with the case in the party’s absence: rr. 1(8.4) and 10(5) of the Rules.

The Court also rejected H.W.’s assertion that his failure to file the documents with the court was through inadvertence and was not intentional. Since H.W. was a lawyer, who ought to be familiar with both serving and filing documents, this claim must be assessed in the context of the motion materials as a whole and the path of this litigation. In this case, H.W. had been benefitting for over ten months from the automatic stay of the order of Bruhn J., which directed various payments by him and from his share of funds in trust to the respondents. He has repeatedly been found not to have met his obligations under the Rules and has failed to respect several court orders. The Court found this context as relevant to assess the claim of inadvertence, and accordingly, did not accept H.W.’s explanation.

As setting aside the administrative dismissal at this late stage, after an indulgence was already granted by the Court, would prejudice the respondents on the motion, the Court found that the respondents were entitled to finality.

Loney v. John Doe, 2024 ONCA 748

[Miller, Zarnett and Thorburn JJ.A.]

COUNSEL:

B. Martin and R. Moodie, for the appellants

G. D. Bodnaryk, C.S. and J. A. Stolberg, for the respondents G. A. M. and 564242 Ontario Limited

FACTS:

One of the appellants was injured in a single vehicle motorcycle accident while driving his motorcycle behind a tractor-trailer that suddenly veered into the shoulder of the road causing debris and gravel to fly into his path. The appellants issued a statement of claim alleging the above facts, however, as they did not know the identity of the driver or owner, they listed the defendants as John Doe, ABC Corporation, and Intact Insurance Company (“Intact”).

More than three years after the trial record was served setting the action down for trial and almost ten years after the accident, the appellants sought to change the names of John Doe and ABC Corporation to the respondents. They brought a motion for (i) an order granting leave to have the motion heard after setting down the action for trial pursuant to Rule 48.04(1) of the Rules of Civil Procedure, and (ii) an order granting leave to amend the statement of claim on the basis of misnomer pursuant to Rule 5.04(2).

The motion judge dismissed the motion, refusing leave to have the motion heard after setting the action down for trial and refused leave to amend the statement of claim. The appellants claimed that the motion judge made three errors of fact and law: first, the motion judge incorrectly imposed an obligation on the appellants to exercise due diligence in order to discover the identity of the respondents. They claimed due diligence was not relevant to the misnomer analysis in Rule 48.04(1), as shaped by consideration of Rule 5.04. Second, the appellants argued that the motion judge erred in finding that the respondents would suffer actual prejudice if the motion was granted. Third, the appellants maintained that the motion judge failed to consider the appellants’ evidence that they had rebutted the presumption of non-compensable prejudice.

ISSUES:

Did the motion judge err by imposing a duty to exercise due diligence to discover the respondents’ identities?
Did the motion judge err in finding that the appellants did not rebut the presumption of non-compensable prejudice caused by the delay; and err in finding that the respondents would suffer actual prejudice if the motion were granted such that leave to amend should be denied?

HOLDING:

Appeal dismissed.

REASONING:

The Court first outlined the test for granting leave to amend pleadings after an action has been set down for trial. Rule 48.04(1) provides that “a party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.” Some courts have required the moving party to show a “substantial or unexpected change in circumstances” while others have granted leave even in the absence of such a change, if granting the order is “necessary in the interests of justice”. Under either analysis, the interpretation of Rule 48.04(1) and the decision as to whether to grant leave is shaped by the rule governing the proposed amendment.

In this case, the rule governing the proposed amendment was Rule 5.04(2), which provides that “[a]t any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment”. This is a permissive provision. There are two considerations under Rule 5.04(2) that must be met: (i) the moving party must satisfy the “litigating finger” test, and (ii) the amendment must not result in non-compensable prejudice.

First, the “litigating finger” test will be satisfied if a person with knowledge of the facts would be aware of the true identity of a misnamed party by reading the statement of claim. If the “litigating finger” test is met, a plaintiff seeking to correct a misnamed party need not establish due diligence in its efforts to identify the true defendant where the claim was brought within the limitation period.

Second, the defendant will be substituted unless there is evidence of non-compensable prejudice. Non-compensable prejudice may include the inability to conduct a timely investigation into the circumstances of the incident, to take contemporaneous witness statements and preserve evidence, the inability to conduct early surveillance, to obtain a timely defence medical assessment, and diminished witness recollection and memory. Where the delay between the initiation of proceedings and the filing of the motion to amend is “exceptional” or “inordinate”, courts will presume prejudice to the responding party. This presumption can be rebutted by an adequate explanation for the delay or evidence of no non-compensable prejudice based on the facts.

The Court rejected the appellants’ claim that the motion judge’s decision rested on a finding that the appellants had simply failed to exercise “due diligence”. First, the motion judge held that the appellants’ counsel provided “no good explanation” for why the appellants “made no efforts to act on the information prior to passing the trial record”, knowing that once an action is set down for trial, the parties cannot take any further steps without leave of the court. Second, she noted that the purpose of originally using placeholder names was to preserve the limitation period against those parties and this motion was long after the limitation period had expired. She noted that “significant unexplained delay in bringing a misnomer motion long past the expiry of a limitation period” has, in other cases, resulted in denial of the motion for leave. Third, the motion judge held that “it would be unjust to grant the relief in this case because of the unexplained, significant delay after learning of the correct name” and considering “the public policy reasons for adhering to limitation periods”.

The Court agreed with the motion judge that the unexplained significant delay in moving to amend the pleading long after learning of the respondent’s name, coupled with the public policy reasons for adhering to limitation periods, would render it unjust to grant the relief sought. While such amendments are granted in certain circumstances, “amendments to pleadings which [have] the effect of relieving against a limitation period” are generally not allowed.

The Court’s “second” issue on appeal included two questions but addressed them together, as they were interrelated. Notably, the Court stated that the onus to provide evidence of actual prejudice lies with the responding party. In this case, the motion judge held that the respondents, “have led evidence of both actual non-compensable prejudice caused by the lengthy delay in bringing this motion, and have raised a presumption of prejudice due to the passage of time.”

The appellants conceded that “at a certain point, after an exceptional delay, non-compensable prejudice will be presumed absent evidence to the contrary” and that there was presumed prejudice because the respondents were not advised of the intention to add them as parties to the appellants’ proceeding until almost nine years after the accident and two years after knowing the respondent’s identity. Further, the appellants correctly noted that the motion judge mischaracterized the test to determine if the presumption of prejudice had been rebutted, and the correct test was disjunctive, in that the moving party must provide an adequate explanation of the delay or an absence of prejudice. It is not necessary to provide evidence of both.

Applying the test, there was no dispute that the appellants did not satisfy the first prong, however, they claim that they have satisfied the second prong of the test by demonstrating that there was no non-compensable prejudice. The appellants submitted that the appellant’s medical records, police records, and damage documents have been preserved, and Intact conducted an examination for discovery of the appellant in 2016 for which there is a transcript, such that there would be no non-compensable prejudice from granting the motion. Despite the preservation of some evidence, the Court agreed with the motion judge that the lengthy delay in this case would create non-compensable prejudice, as the lawsuit had proceeded for more than nine years and numerous steps had already been taken in the litigation. Further, the motion judge was not required to simply assume that the examination for discovery conducted by Intact as a defendant was sufficient from the standpoint of the respondents. As a result of the delay, the respondents had been denied the opportunity to employ important discovery tools in a timely fashion. The loss of these opportunities related to proper discovery constituted actual prejudice that could not be compensated for by costs or an adjournment.

SHORT CIVIL DECISIONS

Mohammad v. Springer Nature, 2024 ONCA 745

[Huscroft, Harvison Young and Copeland JJ.A.]

COUNSEL:

A. M., acting in person

E T. Leinveer and Z. W. Totzke, for the respondent

Boltyansky v. Joseph-Walker, 2024 ONCA 743

[Lauwers, Paciocco and Harvison Young JJ.A.]

COUNSEL:

S Alexanian, for the appellants

A Freedland, for the respondents

Keywords: Costs

Grand River Conservation Authority v. Kentner, 2024 ONCA 742

[Hourigan, Huscroft and Coroza JJ.A.]

COUNSEL:

J. Damstra and G. Cherniak, for the appellants

S. O’Melia, for the respondent

Keywords: Costs

Conte v. Pettle, 2024 ONCA 733

[Hourigan, Trotter and Gomery JJ.A.]

COUNSEL:

W. Morris and E. Oghenejakpor, for the appellant

M. Cohen, for the respondents, M. P., R. P., and R. P., as estate trustees of the Estate of S. P., deceased

G. Sternberg, for the respondent, G. P.

Keywords: Wills and Estates, Fraudulent Conveyances, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Cambone v. Okoakih, 2016 ONSC 792

Macera v. Niagara Regional Police Service, 2024 ONCA 756

[Simmons, Gillese and Coroza JJ.A.]

COUNSEL:

G. Macera, acting in person

M. Cruickshank, for the respondents

Keywords: Civil Procedure, Appeals, Orders, Costs, Enforcement

TriDelta Investment Counsel Inc. v. GTA Mixed-Use Developments GP Inc., 2024 ONCA 746

[Huscroft, Harvison Young and Copeland JJ.A.]

COUNSEL:

S. Bieber, C. Rempel and E. Parry, for the appellants

C. P. Naudie, L. Tomasich, G. Buitenhuis and J. Cooke, for the respondents

Keywords: Contracts, Limited Partnership Agreements, Defences, Estoppel by Representation, Promissory Estoppel

Zhao v. Fan, 2024 ONCA 759

[Huscroft, Harvison Young and Copeland JJ.A.]

COUNSEL:

L. He and J. Hodder, for the appellant

E. Farrell and G. Li, for the respondent

Keywords: Corporations, Remedies, Oppression

Hogg v. Wealthsimple Inc., 2024 ONCA 749

[Huscroft, Harvison Young and Copeland JJ.A.]

COUNSEL:

S. Dewart and M. Bélanger, for the appellant

K. Dekker and A. Sinojmeri, for the respondents

Keywords: Civil Procedure, Originating Process, Statements of Claim, Service, Extension of Time, Validation, Orders, Without Notice, Setting Aside, Full and Fair Disclosure

George v. 2411363 Ontario Inc. (Ontario Health Clinics Brantford FHO Inc.), 2024 ONCA 752

[Roberts, George and Wilson JJ.A.]

COUNSEL:

M. A. Jaeger, for the appellant

P. Hancock, for the respondent, R. H. L. G.

D. Touesnard, for the respondent, T. L. S.

L. Singer, for the respondent, J. S. D.

Ali v. Irfan, 2024 ONCA 758

[Roberts, George and Wilson JJ.A.]

COUNSEL:

D. Singer, A. Cocunato, and J. Carrington, for the appellant

R. Truax, for the respondents

Keywords: Torts, Negligence, MVA, Damages, Loss of Competitive Advantage, Lazare v. Harvey, 2008 ONCA 171, Kerr v. Loblaws Inc., 2007 ONCA 371, McCannell v. McLean, [1937] S.C.R. 341

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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