Court of Appeal Summaries (September 23 – 27)

September 30, 2024
John Polyzogopoulos

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Civil Decisions

EPRF Holdings Limited v Fergus Bloor Inc., 2024 ONCA 707

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Good and Marketable Title, Civil Procedure, Appeals, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, 2651171 Ontario Inc. v. Brey, 2022 ONCA 148, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Himidian v. Farquharson, 2019 ONCA 575, Bennett Law Chambers Professional Corporation v. Camcentre Holdings Inc., 2022 ONCA 658, Stefanovska v. Kok (1990),73 O.R. (2d) 368 (H.C.), Thomas v. Carreno, 2013 ONSC 1495, Bronfman-Thomas v. Carreno, 2013 ONCA 566, 1854822 Ontario Ltd. v. Estate of Manual Martins, 2013 ONSC 4310, Holmes v. Graham (1979), 21 O.R. (2d) 289 (C.A.)

Soave v Stahle Construction Inc., 2024 ONCA 706

Keywords: Contracts, Employment, Long Term Disability Benefits, Civil Procedure, Evidence, Credibility, Soave v. Stahle Construction Inc., 2023 ONCA 265, Mathers v. Sun Life Assurance of Canada, 1999 BCCA 292

Williams v VAC Developments Limited, 2024 ONCA 713

Keywords: Contracts, Employment, Wrongful Dismissal, Torts, Defamation, Anti-SLAPP, Courts of Justice Act, R.S.O 1990, c. C.43, s. 137.1, Employment Standards Act, 2000, S.O. 2000, c. 41, Infectious Disease Emergency Leave, O. Reg. 228/20, Human Rights Code, R.S.O 1990, c. H.19, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Hansman v. Neufeld, 2023 SCC 14

Rebello v Ontario (Community Safety and Correctional Services), 2024 ONCA 718

Keywords: Torts, Negligence, Police, Human Rights, Civil Procedure, Procedural and Natural Justice, Self-represented Litigants, Motions, Summary Judgment, In Person Hearings, Adjournments, Costs, Canadian Charter of Rights and Freedoms, ss. 7 and 15, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131, Solicitor’s Act, RSO 1990, c. S.15, Rules of Civil Procedure, r. 57.01(1), Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999], Bank of Montreal v. Cadogan, 2021 ONCA 405, Galganov v. Russell (Township), 2012 ONCA 410, Ontario v. Rothmans Inc., 2012 ONSC 1804

Pleterski (Re), 2024 ONCA 711

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Breach, Deposits, Forfeiture, Torts, Fraud, Remedies, Relief from Forfeiture, Bankruptcy and Insolvency, Priority Dispute, Tang v. Zhang, 2013 BCCA 52, Howe v. Smith (1884), 27 Ch. D. 89 (C.A.), Frechette (Re) (1991), 3 O.R. (3d) 664 (Gen. Div.), Naeem v. Bowmanville Lakebreeze West Village Ltd., 2024 ONCA 383, Ching v. Pier 27 Toronto Inc., 2021 ONCA 551, Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282

Toronto Standard Condominium Corporation No. 2299 v. Distillery SE Development Corp., 2024 ONCA 712

Keywords: Real Property, Condominiums, Contracts, Arbitration Clauses, Statutory Interpretation, Civil Procedure, Applications, Arbitrations, Arbitrator, Appeals, Jurisdiction, Arbitration Act, 1991, S.O. 1991, c. 17, s. 10, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 6(1)(b), Rules of Civil Procedure, 14.05(3)(d), R. v. Basque, 2023 SCC 18, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Toronto Standard Condominium Corporation No. 2130 v. York Bremner Developments Limited, 2014 ONCA 809, J. Brian Casey, Arbitration Law of Canada: Practice and Procedure, 4th ed. (Huntington, N.Y.: Juris, 2022)

Short Civil Decisions

Stayside Corporation Inc. v Cyndric Group Inc., 2024 ONCA 708

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Severances, Repudiation, Remedies, Specific Performance, Spirent Communications of Ottawa Limited v. Quake Technologies (Canada) Inc., 2008 ONCA 92

Tewari v Hillyer, 2024 ONCA 705

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C-43, ss. 19(1)(b), 110, Rules of Civil Procedure, r. 39.03, 2602203 Ontario Inc. v. Bjian Design Inc., 2023 ONCA 81

Perks v Hetti Group Inc., 2024 ONCA 709

Keywords: Corporations, Piercing the Corporate Veil, Torts, Fraud, Contracts, Debtor-Creditor, Interest, Civil Procedure, Limitation Periods, Acknowledgment of Debt, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, ss. 4, 13, Middleton v Aboutown Enterprises Inc., 2009 ONCA 466, 642947 Ontario Ltd. v Fleischer et al., (2001) 56 O.R. (3d) 417 (C.A.), Shoppers Drug Mart Inc. v 6470360 Canada Inc., 2014 ONCA 85

Benzacar v Terk, 2024 ONCA 714

Keywords: Costs

Rathod v Chijindu, 2024 ONCA 715

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Summary Judgment, Appeals, Orders, Costs, Enforcement, Dismissal of Appeal, Rathod v. Chijindu, 2024 ONCA 625, Rathod v. Chijindu, 2024 ONCA 633

Saffih v Sbih, 2024 ONCA 710

Keywords: Family Law, Parenting, Civil Procedure, Appeals, Review, Perfection, Extension of Time, Stay Pending Appeal, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), Student A v. Toronto French School, 2024 ONCA, Weidenfeld v. Weidenfeld, 2022 ONCA 860

CIVIL DECISIONS

EPRF Holdings Limited v Fergus Bloor Inc., 2024 ONCA 707

[Nordheimer, Gomery and Wilson JJ.A.]

Counsel:

A. B. Dryer and O. Kahane-Rapport, for the appellant
R. G. Plate, for the respondents

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Good and Marketable Title, Civil Procedure, Appeals, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, 2651171 Ontario Inc. v. Brey, 2022 ONCA 148, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Himidian v. Farquharson, 2019 ONCA 575, Bennett Law Chambers Professional Corporation v. Camcentre Holdings Inc., 2022 ONCA 658, Stefanovska v. Kok (1990), 73 O.R. (2d) 368 (H.C.), Thomas v. Carreno, 2013 ONSC 1495, Bronfman-Thomas v. Carreno, 2013 ONCA 566, 1854822 Ontario Ltd. v. Estate of Manual Martins, 2013 ONSC 4310, Holmes v. Graham (1979), 21 O.R. (2d) 289 (C.A.)

Facts:

The respondent, Fergus Bloor Inc. entered into an APS for the purchase of a property it agreed to buy from the appellant, EPRF Holdings Limited. The APS provided for a $350,000 deposit. The APS contained a standard term allowing the buyer to require the seller to remove or remedy “any valid objection to title or … any outstanding work order or deficiency notice” within a set deadline, and providing for the termination of the agreement and return of the deposit if the seller did not do so and the buyer refused to waive its rights.

On February 21, 2020, Fergus advised EPRF in writing that it had discovered that there were two outstanding work permits issued by the City of Toronto with respect to the Property. Fergus asked EPRF to remove them as the title insurer would not extend coverage to them. EPRF told Fergus that both permits had been removed. Approximately one month later, Fergus advised EPRF that, contrary to EPRF’s representation, one of the open work permits had not been deleted. Fergus advised that it remained willing to close but would not do so until this issue had been resolved. Later that day, it delivered a notice of assignment of the APS to a newly incorporated company, the respondent Storekey Holdings Inc.

On April 1st, 2020, Storekey advised EPRF that it was terminating the APS due to EPRF’s failure to remove the outstanding work permit. It took this step even though EPRF offered an undertaking and indemnity with respect to the permit. The permit was in fact deleted on April 6, 2020. Following the termination, EPRF sued the respondents for payment of the $350,000 deposit, damages for breach of the APS, and punitive damages, alleging assignment of the APS in bad faith to divert liability. The respondents counterclaimed for return of the deposit.

The motion judge held that the outstanding work permit entitled the respondents to terminate the APS. Having failed to remove the second permit despite two written requisitions to do so, the appellant could not convey good and marketable title. Under the APS, it was EPRF’s obligation to either have the work permit removed or to offer insurance. It could have also delayed the closing date for a few days, as suggested by the respondents. The respondents were not obliged to accept EPRF’s undertaking and indemnity as an alternative solution. As a result, the motion judge found that the respondents were entitled to the return of the $350,000 deposit. She rejected EPRF’s claim that Fergus had assigned the APS in bad faith to Storekey.

Issues:

What is the appropriate standard of review?
Did the motion judge commit a reversible error in finding that the outstanding work permit entitled the respondents to terminate the APS?
If so, did she err in finding that the respondents forfeited the deposit?

Holding:

Appeal dismissed.

Reasoning:

Mixed fact and Law.

The Court disagreed with the appellant’s position that the standard of review was correctness and found that the motion judge correctly determined the matter on a mixed fact and law basis. In this case, the court must defer to the motion judge’s decision where it turns on a determination of fact and law and there is an absence of error of principle or palpable and overriding error of fact.

Although standard form contracts—such as an APS—are typically reviewed on a correctness standard, the question before the court was whether an open building permit constituted a valid objection to title. This question required the motion judge to make a mixed finding of fact and law with respect to the parties’ rights and obligations under a contract based on her assessment of the evidence.

2. No.

The Court agreed with the motion judge’s finding that Fergus had delivered two proper requisitions with respect to the outstanding work permits and that the appellant had until March 27, 2020, to either have them closed or deleted or to obtain insurance over them for the respondents’ benefit. Since the appellant did neither, the respondents were entitled to treat the APS as being at an end and recover their deposit. Particularly, the inability of EPRF to deliver good and marketable title entitled the respondents to terminate the APS.

The Court rejected the appellants’ argument that the test to determine whether a seller can deliver good and marketable title is objective, and little or no weight should be given to a purchaser’s subjective views. The Court stated that this argument mischaracterized the test to be applied, which was that the materiality of a deficiency should accordingly be assessed with regard to how, objectively speaking, the defect could impede the peaceful enjoyment of property. But, if a buyer has a legitimate and specific intended use for the property, their subjective expectations and concerns may also be relevant.

The existence of the open permit gave rise to three legitimate and non-trivial concerns for the respondents. First, they could not obtain title insurance. Second, they intended to sell or lease the Property, and an open work permit could impede this. Third, if the City did not voluntarily remove the work permit, the respondents would have to bring a court application, something they wished to avoid. On this evidence, it was open to the motion judge to find that EPRF could not deliver peaceful possession of the Property. An open permit could expose a property owner to work orders, expensive remedial work, and potential litigation. Where “the purchaser’s right to enjoyment of the property is by no means certain”, the open building permit is not a “minor defect” but rather goes to the root of title.

The Court held that the motion judge’s finding about litigation risk was not speculative, and she was entitled to infer that litigation was a real possibility on the evidence before her.

3. Not Considered.

The Court determined it did not need consider the third issue given the conclusion on the second issue.

Soave v Stahle Construction Inc., 2024 ONCA 706

[Miller, Trotter and Copeland JJ.A.]

Counsel:

J. Heimpel, for the appellant
L. Parsons and D. Thomas, for the respondent

Facts:

The Respondent was hired by the Appellant as a construction site supervisor in October 2013. Under his employment contract, he was required to participate in a group health benefits insurance plan administered by Mercon Benefit Services. This plan entitled the Appellant’s employees to reimbursement for prescription costs and long-term disability benefits (“LTD”) provided by Great-West Life. Eligibility for coverage was set out in a booklet issued by Mercon (the “Mercon Booklet”).

On January 27, 2014, the Respondent requested and was granted leave from his job pending surgery to repair a hernia. On March 13, 2014, while still awaiting surgery, he was seriously injured in a car accident and became totally disabled. When he tried to pay for medication through the Appellant’s group plan, the pharmacy advised that his benefits had been terminated. When the Respondent contacted the Appellant, they took the position that he had quit his job on January 27, 2014, and so the Appellant had terminated his coverage.

The Respondent sued the Appellant for breach of contract and negligence, and at the trial the judge held that the Appellant had improperly terminated the Respondent’s coverage. In April 2023, the Court of Appeal held that the trial judge should not have granted judgment in the Respondent’s favor without determining whether he would have been eligible to apply for LTD under the policy in March 2014. This question was remitted back to the trial judge. The trial judge then affirmed her first judgment, which is the subject of this appeal.

Issues:

Did the trial judge err in finding that the Respondent was disabled prior to the car accident?
Did the trial judge err in finding that the Respondent was disabled even though this was not pleaded in his statement of claim?

Holding:

Appeal dismissed.

Reasoning:

To be eligible for LTD benefits, the Respondent had to prove that he was already disabled when he went on leave from work on January 27, 2014, and that he remained disabled up to the time of the motor vehicle accident. This is due to the Mercon Booklet limiting an employee’s eligibility for LTD benefits if they were on leave from work when the incident rendering them disabled took place. The Booklet provided that, in order to qualify for benefits, an employee had to be either “actively at work” or, if on leave, eligible for a continuation of coverage. The trial judge found the Respondent’s evidence credible. The trial judge’s conclusion about the Respondent’s disability was open to her on the evidence, and, as a result, this ground of appeal failed.

The Court rejected this ground of appeal. The trial judge did not err by determining the very issues remitted to her by the Court for her determination.

Williams v VAC Developments Limited, 2024 ONCA 713

[Miller, Trotter and Copeland JJ.A.]

Counsel:

T. McRae, for the appellant

M. Mustafa, for the respondent

Facts:

The respondent was employed by the appellant. Multiple racially motivated threats against his life were made by unknown person(s) at his workplace. The respondent requested that the appellant involve the police, which it did. Police attended but the investigation was fruitless. The respondent was dissatisfied with the appellant’s response.

Shortly after these events, the appellant advised the respondent that he was being laid off. The reasons for the layoff were disputed. The appellant stated that the layoff was due to a temporary slowdown in business resulting from lockdown related disruptions. The respondent believed the layoff to be permanent, and that he had been dismissed as a reprisal for having requested that the appellant involve the police in investigating the threats made against his life.

About a week later, the respondent approached CTV News and other news agencies with the story that his employer had failed to take racist threats against him seriously and had dismissed him as a reprisal for insisting the police be involved. CTV News subsequently published an article on its website.

Three months after his lay off, the respondent brought an action against the appellant seeking damages for wrongful dismissal. The appellant responded with a $1,500,000 counterclaim for defamation, interference with economic relations, and punitive, aggravated, and exemplary damages.

The respondent then brought a motion to have the counterclaim dismissed under the Anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act. The motion judge granted the motion and dismissed the appellant’s counterclaim as an abuse of process.

Issues:

Did the motion judge err in the assessment of the substantive merits of the defamation claim?
Did the motion judge carry out the public interest balancing inquiry incorrectly when considering both the harm to the appellant and the public interest in the respondent’s expression?

Holding:

Appeal dismissed.

Reasoning:

The Court disagreed with the appellant’s argument that the motion judge’s analysis of the s. 137.1 test was faulty and intermittently departed from the path of analysis set out in 704604 Ontario Ltd. v. Pointes Protection Association.

The Court acknowledged there were issues with the motion judge’s analysis at the merits stage. The analysis of whether the statements would tend to lower the appellant’s reputation was underdeveloped and included discussion of extraneous issues. It also rested on a contested assumption – without an evidentiary basis in the record – that racist abuse in the workplace of the type alleged by the respondent was so ubiquitous, inevitable, and unremarkable that such occurrences would not cause a reasonable person to form a low view of management. However, the Court held that the motion judge did not make a reversible error.

The Court held that the motion judge made no error in finding that the public interest in protecting the expression outweighed the public interest in allowing the action to proceed. The Court noted that the motion judge identified the single greatest obstacle to the appellant: its inability to identify sufficiently serious harm. The Court held that the appellant had simply provided nothing beyond the assertion that it will likely suffer commercial loss because its reputation has been besmirched and the CTV article – which it had taken no steps to have removed or amended – remained publicly accessible. This was not enough to outweigh the competing public interest.

Rebello v Ontario (Community Safety and Correctional Services), 2024 ONCA 718

[Hourigan, Trotter and Gomery JJ.A.]

Counsel:

R., acting in person

Mortimer and B. Lekhi, for the respondent

Facts:

The appellant appealed the dismissal of her lawsuit alleging that the OPP breached common law and statutory duties they owed to her. The appellant alleged that the police failed to meaningfully investigate complaints she made about potential criminal activity in her neighborhood and on her property, and that the OPP otherwise engaged in conduct that caused the appellant mental anguish, breached her privacy rights, defamed her, and violated her rights under ss. 7 and 15 of the Charter.

Issues:

Did the motion judge err in their analysis of the claim?
Should the motion judge not have granted the summary judgment motion without ordering examinations for discovery and a summary trial?
Did the motion judge deny the appellant procedural fairness by ordering the parties to attend the motion hearing in person?
Did the motion judge err in ordering the appellant to pay costs?

Holding:

Appeal dismissed.

Reasoning:

The motion judge did not err in their analysis of the claim. The appellant did not identify any reversible error in the motion judge’s reasoning. The motion judge did not make any legal errors or any palpable and overriding errors of fact or mixed fact and law.

The Court did not find merit in this argument. The motion judge found that the appellant’s affidavits contained virtually no details to support their conclusory assertions; their allegations were implausible and inconsistent; and they were contradicted by evidence that the motion judge found reliable and credible.

A judge has broad discretion to manage proceedings as appropriate in any specific case. This includes the discretion to determine the mode of hearing. The motion judge’s reasons in determining that an in-person hearing was warranted were sound. The reasons included the issues raised in the summary judgment motion, the length of the hearing, the evidentiary record, the complexity of the legal issues, and difficulties the motion judge had in hearing and communicating with the appellant in a previous hearing which she had attended with audio-only Zoom.

The appellant had no right to insist on a virtual hearing and failed to attend the in-person motion. The Court recognized that whether to grant an adjournment in a civil proceeding is “a highly discretionary decision, and the scope for appellate intervention is limited”: Bank of Montreal v. Cadogan. Given the history of the litigation, the motion judge’s decision to proceed was based on relevant factors and was consistent with the interests of justice.

The Court held that contrary to the appellant’s submissions, a self-represented litigant is not exempt from costs nor is it inappropriate for a court to order costs for work done by salaried Crown counsel: Courts of Justice Act, s. 131(2); Solicitor’s Act, c. S.15; Ontario v. Rothmans Inc. The Court held that the costs awarded by the motion judge were reasonable given the volume of pleadings and evidence, lengthy cross-examinations, the causes of action asserted by the appellant, and the number of case management attendances required.

Pleterski (Re), 2024 ONCA 711

[Miller, B.; Copeland, J. M.; Dawe, J.]

Counsel:

Preston, for the appellant 2649360 Ontario Inc.

McGrath and L. M. Williams, for the respondent Grant Thornton Limited, in its capacity as Trustee in Bankruptcy of the Estates of AP Private Equity Limited and AP

Facts:

In October 2021, AP – the self-styled “Crypto King” – and CM agreed to buy a commercial property on Westney Road in Ajax from the appellant for $5.5 million. AP paid a $500,000 deposit. Nearly all of this money came from funds he had obtained from investors, who believed he would be investing their money in cryptocurrency, and who had not authorized him to instead use their funds to buy real estate for himself and CM. The transaction was scheduled to close on September 28, 2022. However, before the scheduled closing date, some of AP’s creditors successfully applied to have him and his company, AP Private Equity Limited, declared bankrupt. Grant Thornton was appointed as the Trustee in Bankruptcy for both AP and his corporation. A few weeks before the closing date, Grant Thornton and CM advised the appellant vendor that they would not be completing the transaction. The appellant treated this as an anticipatory breach, and a few months later it sold the property to another purchaser for $300,000 more than AP and CM had agreed to pay for it. On motion, Justice Osbourne, ordered that the $500,000 deposit, which was being held in trust by the appellant’s real estate lawyer, be returned to Grant Thornton for the benefit of the creditors of AP and his company.

Issues:

Was it an error for the motion judge to take the interests of the creditors into account when assessing the equities in the situation?
Did the motion judge err in describing this case as a dispute between two innocent parties?

Holding:

Appeal dismissed.

Reasoning:

The motion judge was not obliged to focus his attention as narrowly as the appellant contended.

Decisions under section 98 of the Courts of Justice Act granting relief from forfeiture are discretionary and ordinarily command appellate deference. The motion judge was entitled to take into account his findings that 99.8% of the deposit funds came from misappropriated investor funds. Relief from forfeiture would allow the deposit money to flow back to AP’s creditors, who had never meant for their money to be used to purchase the property.

2. No.

The Court held that the motion judge correctly instructed himself about the applicable legal principles.

The appellant argued that if the motion judge had focused his attention on Grant Thornton rather than on AP’s investors, he would not have characterized Grant Thornton as “innocent”, since Grant Thornton had deliberately caused the breach of contract by choosing not to complete the transaction. The Court rejected the appellant’s argument that there is an absolute rule that bars a party who has caused a breach of contract from ever obtaining relief from forfeiture of a deposit.

The appellant also argued that even if the motion judge did not err in granting relief from forfeiture, he should have allowed the appellant to keep some of the deposit funds as compensation for the purchasers’ damage to the property, which they were contractually obliged to “repair and restore” under the agreement of purchase and sale. The motion judge did not give effect to this argument, noting that the appellant would still “realize a net profit of $135,500” even if the full amount of the deposit was returned to Grant Thornton. This was a discretionary choice the motion judge was entitled to make in the circumstances.

Toronto Standard Condominium Corporation No. 2299 v. Distillery SE Development Corp., 2024 ONCA 712

[Zarnett, Monahan and Pomerance JJ.A.]

Counsel:

R. Macklin, for the appellant

R.P. Agarwal and B. Bohn, for the respondent

Facts:

The respondent, Condo Corp,) and the appellant, Distillery SE Development Corp. (“Distillery”) were parties to a Shared Facilities Agreement (“SFA”). The SFA provided for a dispute resolution process with timelines for negotiations and mediation. Failing settlement of a dispute, the SFA provided for resolution of the dispute by binding arbitration.

In 2018, after negotiation and mediation failed to resolve disputes that had arisen, the Condo Corp served a 2018 Notice of arbitration. The parties reached an agreement that C.C. would serve as arbitrator. Four years later, the Condo Corp served a fresh and amended 2022 Notice of arbitration which generated disagreement about the arbitrator and scope of the arbitration. The Condo Corp would not confirm the agreement to appoint C.C. but stated its willingness to proceed before him if the arbitration were to include the matters in the 2022 Notice. Distillery purported to agree that there was no agreement to appoint C.C. while maintaining its objection to the 2022 Notice.

The Condo Corp brought an application seeking an order from the application judge appointing C.C. as arbitrator. Distillery took the position that the agreement to appoint C.C. had been repudiated by the Condo Corp. Further, Distillery demanded the 2022 Notice be quashed because it raised claims which were not yet eligible for arbitration. The application judge rejected Distillery’s argument that the respondent had repudiated the agreement for C.C. to be arbitrator, and left the other issues regarding the 2022 Notice to be decided by C.C.

Distillery appealed the application judge’s decision on two grounds. First, it submitted that the application judge erred in law in failing to find that the agreement to appoint C.C. was repudiated. Second, it argued that even if there was a subsisting agreement to appoint C.C. for the disputes in the 2018 Notice, the application judge erred in failing to limit C.C.’s appointment to those issues. The Condo Corp resisted the appeal and moved to quash it on the ground that there was no right to appeal an order that appointed an arbitrator in the circumstances.

Issues:

Did the application judge err in appointing an arbitrator under the power to do so in s. 10 of the Arbitration Act, 1991 and its corresponding preclusion of appeals?

Holding:

Motion granted.

Reasoning:

No. The question before the Court on appeal turned on whether the application judge had the power to appoint an arbitrator under s 10(1) of the Act and whether s 10(2) of the Act precluded an appeal.

The Court found the application judge correctly used its power to appoint C.C. as arbitrator under s 10(1) of the Act. Turning to statutory interpretation, the Court considered that the Act contemplated an important but limited role for the court in matters that are the subject of the arbitration agreement. The power of the court to appoint an arbitrator under s 10(1) of the Act exists when parties jointly have the power to appoint an arbitrator and they either fail to agree on the arbitrator, or having reached an agreement, one party then refuses to follow through on it. The Court affirmed that the application judge correctly found this to be the case in the circumstances of the matter.

Given that the application judge’s authority to make the appointment arose under s 10(1) of the Act, s 10(2) applied to preclude the appellant’s appeal. The Court rejected the appellant’s submission that the order was made under r 14.05(3)(d) of the Rules of Civil Procedure, which permits a court, on application, to determine the rights under a contract. By extension, the appellant argued that the order was appealable by right under ss 6(1)(b) of the Courts of Justice Act. The Court found that the notice of application was brought under the Arbitration Act, 1991 and accordingly, was governed by s 10 of that Act.

SHORT CIVIL DECISIONS

Stayside Corporation Inc., 2024 ONCA 708

[Miller, Trotter and Copeland JJ.A.]

Counsel:

C. Guilbault, for the appellant
S. E-C, for the respondents

Tewari v Hillyer, 2024 ONCA 705

[Miller, Trotter and Copeland JJ.A.]

Counsel:

I. Breneman and J. Annisette, for the respondents/moving parties
G.T, acting in person
B. Wong, for the respondent Multi-Sorb Technologies

Perks v Hetti Group Inc., 2024 ONCA 709

[Hourigan, Trotter and Gomery JJ.A.]

Counsel:

D. Saverino, for the appellants

F. Spizzirri, for the respondents

Benzacar v Terk, 2024 ONCA 714

[Lauwers, Zarnett and Thorburn JJ.A.]

Counsel:

C.A.L. Caruana, for the moving party

C. MacLead and N.J. Kasozi, for the respondent

Keywords: Costs

Rathod v Chijindu, 2024 ONCA 715

[Hourigan, Trotter and Gomery JJ.A.]

Counsel:

B. Belmont, for the moving party

A. Sidhu, for the moving party

C.C.C., acting in person

N.C. and J.C., acting in person

I.C., acting in person

Saffih v Sbih, 2024 ONCA 710

[Lauwers, Zarnett and Pomerance JJ.A.]

Counsel:

F.S., acting in person

E.M. Dupuis, for the respondent

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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