Court of Appeal Summaries (September 9- September 13)

September 20, 2024
John Polyzogopoulos

Share
- Facebook
- Twitter
- Linked In
- Google+
- E-Mail

Civil Decisions

Muslim Association of Canada v. Canada (Attorney General), 2024 ONCA 663

Keywords: Administrative Law, Taxation, Charities, Constitutional Law, Charter Claims, Freedom of Religion, Freedom of Expression, Freedom of Association, Freedom from Discrimination, Civil Procedure, Sealing Orders, Costs, Muslim Association of Canada v. Canada (Attorney General), 2024 ONCA 54, Muslim Association of Canada v. Attorney General of Canada, 2023 ONSC 1923, Sherman Estate v Donovan, 2021 SCC 25, Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23

Benzacar v. Terk, 2024 ONCA 679

Keywords: Civil Procedure, Appeals, Motion, Reconsideration, Garnishment, Rules of Civil Procedure, r. 60.08(17), Wages Act, ss. 7(2) & 7(4), R.S.O. 1990, c. W.1, Rules of the Supreme Court of Canada, SOR/2002-156, r. 25(1), Benzacar v. Terk, 2023 ONCA 773, McGrath v. Joy, 2023 ONCA 46, Meridian Credit Union Limited v. Baig, 2016 ONCA 942

Ingram v. Kulynych Estate, 2024 ONCA 678

Keywords: Estates, Real Property, Civil Procedure, Limitations Period, Trustee, Equitable Trust, Unjust Enrichment, Real Property Limitations Act, R.S.O. 1990, c. L.15, Trustee Act, R.S.O. 1990, c. T.23, s. 38, Succession Law Reform Act, R.S.O. 1990, c. S.26, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss. 2(1)(a), Limitations Act, R.S.O. 1990, c. L.15, Family Law Act, R.S.O. 1990, c. F.3, Estates Administration Act, R.S.O. 1990, c. E.22, Rules of Civil Procedure, r. 21.01(1)(a), Wilkinson v. The Estate of Linda Robinson, 2020 ONSC 91, McConnell v. Huxtable, 2014 ONCA 86, Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, Bank of Montreal v. Iskenderov, 2023 ONCA 528, Waschkowski v. Hopkinson Estate (2000), 47 O.R. (3d) 370 (C.A.), Appleyard v. Zealand, 2022 ONCA 570, Omiciuolo v. Pasco, 2008 ONCA 241, Euring Estate (Re), (1997), 31 O.R. (3d) 777 (C.A.), Roth v. Weston Estate, [1997] O.J. No. 4445 (C.A.), Ryan v. Moore, 2005 SCC 38, Levesque v. Crampton Estate, 2017 ONCA 455, Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44, Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, Smallman v. Moore, [1948] S.C.R. 295, Bikur Cholim Jewish Volunteer Services v. Penna Estate, 2009 ONCA 196, Lafrance Estate v. Canada (Attorney General) (2003), 64 O.R. (3d) 1 (C.A.), Swain Estate v. Lake of the Woods District Hospital, [1992] O.J. No. 1358 (C.A.), Camarata v. Morgan (2009), 94 O.R. (3d) 496 (C.A.), Hartman Estate v. Hartman Holdings Ltd. (2006), 263 D.L.R. (4^th) 640 (C.A.), Edwards v. Law Society of Upper Canada (No. 1), [2000] O.J. No. 2084 (C.A.), Bruyninckx v. Bruyninckzx, [1995] B.C.J. No. 524 (C.A.), R. v. Greenwood (1992), 7 O.R. (3d) 1 (C.A.), Bhuthal v. Sahsi, 2024 BCCA 73, Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, 792266 Ontario Ltd. v. Monarch Trust Co. (Liquidator of), [1996] O.J. No. 3913 (C.A.), York (Township) v. North York (Township) (1925), 57 O.R. 644 (C.A.)

Canada Forgings Inc. v. Atomic Energy of Canada Limited, 2024 ONCA 677

Keywords: Contracts, Procurement, Civil Procedure, Procedural and Natural Justice, Sufficiency of Reasons for Judgment, Evidence, Admissibility, Limitation Periods, Costs, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5, Competition Act, R.S.C. 1985, c. C-34., Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293, leave to appeal refused, [2019] S.C.C.A. No. 228, Farej v. Fellows, 2022 ONCA 254, eave to appeal refused, [2022] S.C.C.A. No. 180, F.H. v. McDougall, 2008 SCC 53, R. v. Gagnon, 2006 SCC 17, Massoudinia v. Volfson, 2013 ONCA 29, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), The Queen (Ontario) v. Ron Engineering & Construction (Eastern) Ltd., [1981] 1 S.C.R. 111, M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619

Kerk-Courtney v. Security National Insurance Company (TD) General Insurance Company, 2024 ONCA 676

Keywords: Contracts, Insurance, Interpretation, Coverage, Duty to Defend, Duty to Indemnify, Exclusions, Entire Agreement Clauses, Remedies, Relief from Forfeiture, Civil Procedure, Appeals, Standard of Review, Courts of Justice Act, 2000 SCC 24 RSO 1990, c. C.43, Monk v Farmers’ Mutual Insurance Company (Lindsay), 2019 ONCA 616, Pinder Estate v Farmers Mutual Insurance Company (Lindsay), Gregor Homes Ltd v Woodyer, 2022 ONSC 4089, Spot Coffee Park Place Inc v Concord Adex Investments Limited, 2021 ONSC 6629, Progressive Homes Ltd v Lombard General Insurance Co. of Canada, 2010 SCC 3, Ledcor Construction Ltd v Northbridge Indemnity Insurance Co., 2016 SCC 37, MDS Inc v Factory Mutual Insurance Company, 2021 ONCA 594, Soboczynski v Beauchamp, 2015 ONCA 282, Tedford v TD Insurance Meloche Monnex, 2012 ONCA 429, Non-Marine Underwriters, Lloyd’s of London v Scalera, 2000 SCC 24

SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2024 ONCA 675

Keywords: Contracts, Interpretation, Damages, Minimum Performance Principle, Negotiated Damages, Civil Procedure, Limitation Periods, Evidence, Adverse Inferences, Spoilation, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 128(4)(b), Interest Act, R.S.C. 1985, C. I-15, Limitations Act, 2002, S.O. 2002, Sched B, ss. 5(1)(a)(b) and 5(2), Rules of Civil Procedure, SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation 2021 ONSC 2657, Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273, Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Ottawa (City) v. ClubLink Corporation ULC, 2021 ONCA 847, Samson Cree Nation v. O’Reilly & Associés, 2014 ABCA 268, 3091‑5177 Québec inc. (Éconolodge Aéroport) v. Lombard General Insurance Co. of Canada, 2018 SCC 43, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Harvey Kalles Realty Inc v. BSAR (Eglinton) LP, 2021 ONCA 426, Atos IT Solutions v. Sapient Canada Inc., 2018 ONCA 374, Kentucky Fried Chicken Canada v. Scott’s Food Services Inc. (1998), 114 O.A.C. 357 (C.A.), Montreal Trust Co. of Canada v. Birmingham Lodge Ltd. (1995), 24 O.R. (3d) 97 (C.A.), National Trust Co. v. Mead, [1990] 2 S.C.R. 410, Malik (18A application of Talisman Energy Inc.), 2007 BCSC 739, Genstar Development Partnership v. The Roman Catholic Episcopal Corporation of the Diocese of Hamilton in Ontario, 2019 ONCA 506, Brunette v. Legault Joly Thiffault, s.e.n.c.r.l., 2018 SCC 55, Fuller v. Aphria Inc., 2020 ONCA 403, NexJ Systems Inc. (Re), 2023 ONCA 451, Taggart v. McLay, 1998 CanLII 5541 (B.C.C.A.), Geophysical Service Incorporated v. Plains Midstream Canada ULC, 2023 ABCA 277, Simex Inc. v. Imax Corporation (2005), 206 O.A.C. 3 (C.A.), Manitoba Netset Ltd. v. High Speed Mole Inc., 2013 MBQB 205, Anderson v. Bell Mobility Inc., 2015 NWTCA 3, Bhasin v. Hrynew, 2014 SCC 71, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517, Jardine v. General Hydrogen Corp., 2007 BCSC 119, Canadian Premier Holdings Ltd. v. Winterthur Canada Financial Corp. (2000), 132 O.A.C. 172 (C.A.), Kilitzoglou v. Curé, 2018 ONCA 891, John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 63 O.R. (3d) 304 (C.A.), 202135 Ontario Inc. v. Northbridge General Insurance Corporation, 2022 ONCA 304, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Riddell Kurczaba Architecture Engineering Interior Design Ltd v. University of Calgary, 2019 ABCA 195, British Columbia Hydro & Power Authority v. Cominco Ltd., 1985 CarswellBC 2783 (S.C.), Angus v. CDRW Holdings Ltd., 2023 BCCA 330, Apotex Inc. v. Nordion (Canada) Inc., 2019 ONCA 23, AssessNet Inc. v. Taylor Leibow Inc., 2023 ONCA 577, Presley v. Van Dusen, 2019 ONCA 66, Kumarasamy v. Western Life Assurance Company, 2021 ONCA 849, Clarke v. Sun Life Assurance of Canada, 2020 ONCA 11, Porter v. Metropolitan Life Insurance Co. (1985), 70 N.S.R. (2d) 248 (C.A.), Kaiman v. Graham, 2009 ONCA 77, Espartel Investments Limited v. Metropolitan Toronto Condominium Corporation No. 993, 2024 ONCA 18, Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, Streisfield v. Goodman (2004), 8 E.T.R. (3d) 130 (Ont. C.A.), Abrahamovitz v. Berens, 2018 ONCA 252, McDiarmid Lumber Ltd v. Letandre, 2003 MBQB 99, Rocco v. Northwestern National Insurance Co. (1929), 64 O.L.R. 559 (C.A.), Bank Leu AG v. Gaming Lottery Corp. (2003), 231 D.L.R. (4th) 251 (Ont. C.A.), Cataraqui Cemetery Company v. Cyr, 2017 ONSC 5819, Concentra Financial Services Assn. v. Rawling, 2017 ONCA 348, Montague v. Bank of Nova Scotia, (2004), 69 O.R. (3d) 87 (C.A.), Holmes Foundry Ltd. v. Village of Point Edward, [1963] 2 O.R. 404 (C.A.), Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942, Mujagic v. Kamps, 2015 ONCA 360, First Elgin Mills Developments Inc. v. Romandale Farms Ltd., 2015 ONCA 54, 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, Harrison v. Harrison, [1955] 1 Ch. 260 (C.A.), Gore Mutual Insurance Co. v. 1443249 Ontario Ltd. (2004), 70 O.R. (3d) 404 (S.C.), ATU, Local 615 v. Saskatoon (City), 2021 SKCA 93, FS Partnership/UPI Energy FS v. Mr. Refuel Inc., 2022 ONCA 612, Dunsmuir v. New Brunswick, 2008 SCC 9, Dnaagdawenmag Binnoojiiyag Child and Family Services v. V.S. et al, 2021 ONSC 5562, Scott, Pichelli & Easter Ltd. v. Dupont Developments Ltd. et al., 2019 ONSC 6789, 1854329 Ontario Inc. v Cairo, 2022 ONCA 744, Housen v. Nikolaisen, 2002 SCC 33, Southwind v. Canada, 2021 SCC 28, TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, Whitefish Lake Band of Indians v. Canada (Attorney General), 2007 ONCA 744, Extreme Ventures Partners Fund I LP v. Varma, 2021 ONCA 853, Guerin v. The Queen, [1984] 2 S.C.R. 235, Martin v. Goldfarb (1998), 41 O.R. (3d) 161 (C.A.), Morris-Garner and another v. One Step (Support) Ltd., [2018] UKSC 20, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Alkok v. Grymek, [1968] S.C.R. 452, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Cockburn v. Alexander (1848), 6 C.B. 791, Withers v. General Theatre Corp. Ltd., [1933] 2 K.B. 536 (C.A.), Radikov v. Premier Project Consultants Ltd., 2017 ONSC 7192, Jaremko v. A.E. LePage Real Estate Services Ltd. (1989), 69 O.R. (2d) 323 (C.A.), Geophysical Service Incorporated v. Total SA, 2020 ABQB 730, XY, Inc. v. International Newtech Development Incorporated, 2012 BCSC 319, St. Louis v. The Queen, [1896] 25 S.C.R. 649, Trillium Power Wind Corporation v. Ontario, 2023 ONCA 412, Stamatopoulos v. The Regional Municipality of Durham, 2019 ONSC 603, McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, Doust v. Schatz, 2002 SKCA 129, The Cambie Malone’s Corporation v. British Columbia (Liquor Control and Licensing Branch), 2016 BCCA 165, Parris v. Laidley, 2012 ONCA 755, Canadian Contractual Interpretation Law, 4th ed., Geoff R. Hall, Markham: LexisNexis, 2020, Canadian Contractual Interpretation Law, 1st ed., Geoff R. Hall, Markham: LexisNexis, 2007, The Law of Damages, Stephen Waddams and Patrick Healy, Toronto: Thomson Reuters, 1991, “A ‘Century’ Overdue: Revisiting the Doctrine of Spoliation in the Age of Electronic Documents”, Gideon Christian, (2022) 59:4 Alta. L. Rev. 901

Grand River Conservation Authority v. Kentner, 2024 ONCA 689

Keywords: Provincial Offences, Environmental Regulation, Appeals, Ineffective Assistance of Counsel, Conservation Authorities Act, R.S.O. 1990, c. C.27. s. 28(16), Provincial Offences Act, R.S.O. 1990, c. P.33 s. 111(1), Grand River Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses, O. Reg. 150/06 s. 2(1), Town of Erin Site Alteration By-Law16-30, s. 6, R. v. White, 2022 SCC 7, R. v. D.M.G., 2011 ONCA 343

Boltyansky v. Joseph-Walker, 2024 ONCA 682

Keywords: Contracts, Real Property, Mortgages, Torts, Fraud, Civil Procedure, Partial Summary Judgement, Rules of Civil Procedure, r. 2.01(1)(a), r. 20.04(2), Hryniak v. Mauldin, 2014 SCC 7, Malik v. Attia, 2020 ONCA 787, Combined Air Mechanical Services Inc. et al. v. Flesch, 2011 ONCA 764, Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2021 ONCA 589

Carcillo v. Ontario Major Junior Hockey League, 2024 ONCA 685

Keywords: Interrelated Final and Interlocutory Orders, Transition Orders, Motions, Appeals, Leave, Class Proceedings, Certification Orders, Dismissal Orders, Civil Procedure, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 5, 7, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6, 19, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3, s. 147, Rules of Civil Procedure, r. 63.02(1)(b), Blair v. Ford, 2021 ONCA 841, Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), AIC v. Fisher Limited, 2013 SCC 69, Cole v. Hamilton (City) (2002), 60 O.R. (3d) 284 (C.A.), Brown v. Hanley, 2019 ONCA 395, P1 v. XYZ School, 2021 ONCA 901, 2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202, Martin v. 11037315 Canada Inc. 2021 ONCA 246, Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166, Azzeh v. Legendre, 2017 ONCA 385, Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497

Short Civil Decisions

Ogunmekan v. Ogunmekan, 2024 ONCA 673

Keywords: Family Law, Equalization of Net Family Property, Child Support, Spousal Support, Civil Procedure, Appeals, Adjournments

M.T. Johnstone Construction Ltd. v. Rashidi, 2024 ONCA 670

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Appeals, Adjournments

Master Tech Inc. v. Wajeb Assaf, 2024 ONCA 671

Keywords: Civil Procedure, Appeals, Extension of Time, Representation by Lawyer, Vexatious Litigation, Rules of Civil Procedure, r. 2.1.01, 15.01(2)

Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre), 2024 ONCA 681

Keywords: Costs

T.O. Estate v. D.O., 2024 ONCA 683

Keywords: Costs

Anani v. Sharawy, 2024 ONCA 686

Keywords: Civil Procedure, Appeals, Perfection, Orders, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364

200 Ferrand Realty Limited v. 1284225 Ontario Limited, 2024 ONCA 684

Keywords: Contracts, Implied Terms, Privity of Contract, Civil Procedure, Procedural and Natural Justice, M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Bhasin v. Hrynew, 2014 SCC 71, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, 2161907 Alberta Ltd. v. 11180673 Canada Inc., 2021 ONCA 590

CIVIL DECISIONS

Muslim Association of Canada v. Canada (Attorney General), 2024 ONCA 663

[Sossin, Monahan and Madsen JJ.A.]

Counsel:

G.R. Hall, A. Koshal, A. Kanji and A. MacDonald, for the appellant

L. Marchildon, K. Palframan and M. Meraw, for the respondent

facts:

This main decision of the Court dismissed the appeal challenging the constitutionality of a CRA audit of the charitable status of the appellant organization.

Following the dismissal, the parties were invited to make submissions on costs and whether a sealing order was necessary for the fresh evidence both sides unsuccessfully sought to adduce on appeal.

issues:

Should the parties be awarded costs?
Should the evidence filed with the fresh evidence motions be sealed?

holding:

No costs of the appeal ordered. No sealing order granted.

reasoning:

The Court was of the view that it was appropriate that each party bear its own costs of the appeal.

The appellant argued that no costs should be ordered in respect of the appeal but sought its costs in respect of the unsuccessful fresh evidence motion. With respect to the appeal, the appellant argued that since success on appeal was divided and they were a public interest appellant, it should not be required to bear any costs for pursuing its Charter rights. The appellant sought $15,000 in costs in respect of the fresh evidence motion on the basis that it was an unnecessary step instigated by the respondent.

The respondent argued that, as the successful party on appeal they should be awarded $50,000 in partial indemnity costs. Regarding the fresh evidence motions, they argued that no costs should be awarded because both sides acted reasonably in bringing those motions.

Although the application judge’s dismissal of the application was upheld and the appeal was dismissed, the Court disagreed with his finding that the only remedy available for a CRA penalty assessment is an appeal to the Tax Court. Thus, success on the appeal was divided and a no-costs order was appropriate. Further, both parties acted reasonably in bringing their fresh evidence motions, although the court found it unnecessary to consider that evidence. The Court held that each party should bear their own costs of those motions.

2. No.

The Court found no reason to depart from Justice Centa’s order making redactions to certain parts of the application record filed in the Superior Court portion of the matter and thus adopted the same approach for the fresh evidence.

The appellant sought an order sealing the fresh evidence in its entirety or in the alternative, making redactions similar to those ordered by Justice Centa. The respondent opposed the sealing order, arguing that it was inconsistent with the open court principle and that the safety and privacy interests raised by the appellant could be adequately addressed by applying the redactions similar to those ordered by Justice Centa.

Referencing, Sherman Estate v Donovan, the Court noted that court openness is protected by the constitutionally entrenched right of freedom of expression and is essential to the proper functioning of Canadian democracy and there is a strong presumption in favor of open courts, limited only in exceptional circumstances where there is a demonstrated and serious risk to an important public interest. Further, the Court noted that such restrictions must be no greater than necessary to protect competing public interests. Therefore, the Court adopted Justice Centa’s conclusion that the appellant’s privacy and safety concerns could be adequately addressed by redacting from the CRA’s Administrative Fairness Letter and the appellant’s letters responding the names and personal information of individuals who were only peripherally involved in the litigation. However, no redactions were ordered to the parties’ factums or affidavits as those appeared to already be a part of the public record.

Benzacar v. Terk, 2024 ONCA 679

[Lauwers, Zarnett and Thorburn JJ.A.]

Counsel:

A.L. Caruana, for the moving party 6044402 NB Ltd.

MacLeod and N. J. Kasozi, for the responding party A. B.

facts:

The moving party in this case, 604402 NB Ltd. (“604”), unsuccessfully resisted an appeal concerning its obligations in a garnishment proceeding, and unsuccessfully sought leave to appeal that decision to the Supreme Court of Canada. 604 then moved for reconsideration of the Court’s decision. Asserting that reconsideration is open to it because no formal order reflecting the Court’s decision has been taken out, 604 wants a “do-over” of the mathematics that underlie the calculation of the amount it must pay, and the substitution of a lower amount.

issues:

Should the Court reconsider its prior decision?

holding:

Motion dismissed.

reasoning:

No.

While the Court had the jurisdiction to reconsider its decision before a formal order has been taken out, the circumstances in which it would do so were narrow and limited. The Court will re-open an appeal prior to the entering of the order only in the rare circumstance where it is in the interests of justice to withdraw the reasons of the Court and re-hear the case on the merits.

There were three reasons why 604’s request for a reconsideration failed in this case. First, there was an absence of arguable merit in the substance of the request. Second, the request was simply an attempt to repackage and reargue matters that were clearly in issue in the original appeal hearing. Third, the interests of finality strongly favoured the rejection of the motion.

The Court disagreed with 604’s calculation of the amount payable..

The availability and applicability of the remedy against a garnishee as set out in r. 60.08(17) was front and center in this appeal from the motion judge’s order. 604 had the full opportunity to argue that if the remedy was applicable, the amount payable should be calculated as lower than that in the respondent, A.B.’s notice of garnishment at the hearing. 604 was not entitled to simply reorganize the material that was already in evidence and try again.

The Court expressed the view that 604 was not really raising issues of mathematical calculation, but rather, was indirectly attempting to skirt around the findings underlying and driving the result of the mathematics. The losing party’s disagreement with the Court’s reasons was not a rare circumstance in appellate litigation justifying reconsideration.

The “normal and proper” recourse for a party who wishes to challenge the Court’s order and reasons was to seek leave to appeal to the Supreme Court of Canada. 604 did that, but was denied leave to appeal by the SCC. The narrow path to reconsideration left open by the absence of a formal order became, if anything, even narrower when a party has had a lengthy opportunity to take out a final order and does not do so while pursuing leave to appeal to the Supreme Court. At some point, the interests of finality trump the desire of a litigant to keep the litigation pot boiling.

Ingram v. Kulynych Estate, 2024 ONCA 678

[Roberts, Miller and Gomery JJ.A.]

Counsel:

A.D. Felker, for the appellants

J.M. Friedman and C. Martino, for the respondent

I.M. Hull and D. L. Yin So, for the intervener, Toronto Lawyers Association

facts:

This appeal arose from a dispute about the estate of H.K. It turns on whether the ten-year limitation period under s. 4 of the Real Property Limitations Act (“RPLA”), rather than the two-year limitation period under s. 38(3) of the Trustee Act, applies to the respondent’s claim for compensation against H.K.’s estate.

H.K. died in February 2017, leaving a last will and testament. H.K. left his estate to his first wife, or, if she died first, which she did, to his three children. His daughter, the appellant, was appointed as the Estate Trustee pursuant to a certificate of appointment in July 2018. The will left nothing to the respondent, K.I. The respondent claimed she had been in a common law relationship with H.K. from 1999 to his death in 2017, and that she supported him financially and emotionally.

It was not until March 10, 2021, more than four years after H.K.’s death, that the respondent commenced an application against the estate for dependent’s support under the Succession Law Reform Act (“SLRA”). The respondent also brought an equitable trust claim for a share of the estate and claimed that the Estate Trustee was personally liable for having distributed the estate despite her claims. The appellants opposed the claim on the grounds that it was limitations-barred. The motion judge found that the ten-year limitation period under the RPLA applied and that the respondent’s claim was not statute-barred.

The appellants and the intervener submitted that the motion judge erred in concluding that the ten-year limitation period under s. 4 of the RPLA applied to the respondent’s equitable trust claim. They argued that the respondent did not have an equitable trust claim and that the respondent’s equitable trust claim fell within the claims described under s. 38(2) of the Trustee Act that are subject to the two-year limitation period under s. 38(3).

The respondent submitted that there was no policy reason to distinguish between the applicable limitation period for inter vivos equitable trust claims and estate equitable trust claims. It was simply a matter of statutory interpretation that equitable trust claims are claims to recover land as defined in the case law, and, as such, clearly fall within s. 4 of the RPLA and are subject to the ten-year limitation period.

issues:

Did the motion judge err in concluding that the ten-year limitation period under s. 4 of the RPLA applied to the respondent’s equitable trust claim?

holding:

Appeal allowed.

reasoning:

Yes. The Court agreed with the appellants’ and intervener’s submissions that the inapplicability of the discoverability principle and the clear two-year limit for bringing an action under s. 38 of the Trustee Act demonstrated the legislative intent that actions against estates be subject to the shorter limitation period. The shorter, two-year limitation period for estate matters reflected the long-established duty of estate trustees to administer estates promptly and diligently, including ascertaining the estate’s liabilities and debts as quickly as possible, as the expeditious administration of estates is in the interests of justice. Further, the duty to administer estates promptly and the interest in finality militated in favour of shorter limitation periods in this context.

The legislative intent of a shorter limitation period for estate matters permeated related estate and family law legislation. The interpretation of s. 38(3) of the Trustee Act, as part of the contextual and purposive approach to statutory interpretation, was informed by the presumption of coherence among related statutes. This approach seeks to avoid contradictions or inconsistencies among parts of the same body of legislation and presumes that constituent elements of a legislative scheme are meant to work together logically and purposively, each contributing to the achievement of the legislature’s goal. As a result, interpretations favouring harmony among related statutes rather than conflict better reflect the legislature’s intent. Furthermore, consistent with the shorter limitation period under s. 38(3) of the Trustee Act, s. 44 of the Estates Act provides for a strict 30-day time limit following the receipt of the estate’s contestation of a claim.

Does the Equitable Trust Claim Fall Under the Trustee Act? – Yes

The Court found the motion judge’s construction of a “wrong” in the context of equitable trust claims for unjust enrichment against an estate was too narrow, where the motion judge limited the term “wrong” as referencing tortious conduct by the deceased. Instead, the Court determined that the “wrong” in s. 38(2) is not restricted to tortious conduct committed by the deceased but refers to all actionable wrongs for which the deceased may be found liable. Accordingly, unjust enrichment is appropriately construed as a “wrong” falling under s. 38(2) of the Trustee Act. The elements of unjust enrichment are a benefit, a corresponding deprivation and the absence of juristic reason for the benefit and the loss.

The Court found that the respondent’s claim for unjust enrichment fell neatly within s. 38(2) of the Trustee Act. The respondent asserted that during their relationship, H.K. financially benefited at her expense by living rent-free in her house, while renting out his own house and retaining the rental income for himself. She alleged that H.K.’s financial benefit at her expense amounted to an unjust enrichment in respect of which she sought the imposition of a constructive trust over the entirety of the estate’s assets. In other words, the respondent claimed that she has been wronged by H.K.’s unjust enrichment (i.e., “at her expense”), which she sought to have remedied by way of a constructive trust or a resulting trust.

Does the Equitable Trust Claim also Fall Under s. 4 of the RPLA? – No

In applying the presumption of coherence in statutory interpretation, the Court held it must also consider whether the inclusion of equitable trust claims under s. 38(2) of the Trustee Act can stand together with s. 4 of the RPLA. The Court found that it can, using the well-recognized principle of statutory interpretation generalia specialibus non derogant. This principle provides that special or more specific legislation overrides general legislation in the case of a conflict on the same subject so that the two statutes are brought into harmony.

Interpreting s. 4 of the RPLA to include equitable trust claims against estates ignores the language, legislative history, purpose, and judicial treatment of s. 38 of the Trustee Act. It also requires the inclusion of language that the legislature did not intend. Moreover, this interpretation would be inconsistent with the overarching interests of justice that estates be efficiently and quickly administered. This latter goal is reflected in the provisions for the timely administration of estate assets under the Estates Administration Act (“EAA”). In particular, s. 9(1) of the EAA undercuts the suggestion that the longer ten-year limitation period under s. 4 of the RPLA was intended to apply to equitable trust claims against estates. Under s. 9(1) of the EEA, in the absence of a registered caution, all real property not disposed of within three years of the deceased’s death automatically vests, without any conveyance by the deceased’s personal representative, in the persons beneficially entitled to it under the deceased’s will or upon his or her intestacy.

The respondent’s equitable trust claim crystallized on the death of H.K. At that point, H.K.’s assets became the estate’s assets and vested in his executrix: see s. 2(1) of the EAA. Moreover, the respondent’s equitable trust claim is not in the nature of the exceptions earlier noted of an express trust claim, a dower right or a statutory entitlement. It is a claim in relation to H.K.’s assets that have devolved to his estate.

The respondent submitted that the outcome of this appeal was governed by the Court’s decision in McConnell that equitable trust claims are subject to the ten-year limitation period under s. 4 of the RPLA. The Court was of the view that McConnell did not assist the respondent because it did not involve a claim against the estate of a deceased person. Moreover, Wilkinson, which was an estates case that followed McConnell, was wrongly decided, as the judge in McConnell did not conduct the proper analysis of the legislative history and policy and judicial treatment of s. 38 of the Trustee Act and related statutory provisions that the Court referenced. Moreover, the judge’s reading in Wilkinson of the provisions of s. 38(2) and (3) of the Trustee Act was in error. The legislative history and purpose of s. 38 of the Trustee Act and its judicial treatment distinguish claims against and by an estate from claims unrelated to estates. Unless specifically exempted, the legislature clearly intended that equitable trust claims against an estate should fall within s. 38(2) and be subject to the two-year limitation period under s. 38(3) of the Trustee Act.

Canada Forgings Inc. v. Atomic Energy of Canada Limited, 2024 ONCA 677

[van Rensburg, Zarnett and George JJ.A.]

Counsel:

G. R. Hall, for the appellant

R. Gillot, L. Bruschetta and H. Davis, for the respondent

facts:

The Appellant, Canada Forgings Inc., is a forge shop based in Welland, Ontario. It produces custom steel forgings, including end fitting forgings for use in the nuclear industry. The Respondent, Atomic Energy Canada Ltd., designs, constructs and refurbishes nuclear reactors. The Appellant sued the Respondent for defamation and a procurement law claim for an alleged breach of the duty of fairness during a procurement process. In August of 2013, the Respondent was granted partial summary judgment dismissing the Appellant’s claim for defamation, which left only the procurement law claim for trial.

The trial judge dismissed the action. He found that the Appellant’s procurement law claim was statue-barred by the two-year limitation period. While the limitations question was dispositive, the trial judge also went on to address the procurement law issues and rejected the Appellant’s arguments. In dismissing the action, the trial judge ruled as inadmissible a report on the Respondent’s procurement process a privileged prepared by Deloitte on behalf of the Respondent in another context.

issues:

Were the trial judge’s reasons insufficient?
Was the trial judge’s treatment of the limitations issue inadequate?
Were the trial judge’s reasons insufficient on the procurement law question?
Did the trial judge err by finding the Deloitte Report to be inadmissible?
Was the costs award excessive, representing an error in principle?

holding:

Appeal dismissed.

reasoning:

The overarching question was whether the reasons functionally permitted meaningful appellate review. Even if the reasons were deficient, this ground of appeal will fail if despite the shortcomings, a meaningful review can be conducted. Second, in determining whether the reasons are sufficient, they must be considered contextually. Relevant context includes the issues raised, the evidence adduced, and the arguments made at trial.

The Court noted that the duty to provide adequate reasons has four objects: 1) to justify and explain the result; 2) to explain to the unsuccessful party why they were unsuccessful; 3) to provide for an informed consideration of the grounds of appeal; and 4) to satisfy the public that justice has been done. Furthermore, the Court stated that while these principles apply to both criminal and civil appeals, courts have traditionally been reluctant to order a new trial in civil matters, unless the interests of justice plainly require it, which would only follow a finding that a substantial wrong or miscarriage of justice had occurred.

The Court held that the trial judge was under no obligation to refer to every piece of evidence in their reasons; they are only required to refer to evidence, and to resolve conflicts in evidence, that is material to the issues to be determined. An appellate court cannot disturb a trial judge’s findings simply because they failed to refer to some of the evidence. Likewise, it is not the appellate court’s function to second-guess how the trial judge weighed the evidence.

2. No.

The Court held that the trial judge’s treatment of the limitations issue was adequate and that the trial judge’s reasons revealed an understanding of the issues and the proper application of section 5 of the Limitations Act, 2002. Similarly, the reasons demonstrated careful consideration of the factual question of when the appellant, or its counsel, discovered or ought to have discovered its procurement law claim.

The Court held that the trial judge thoroughly reviewed the evidence he relied on to find that the appellant and its lawyer at the time had the requisite knowledge of the material facts to ground a plausible inference of liability on the respondent’s part in December 2005, January 2006, February 2006 and March 2006 (when it filed its original statement of claim). The Court concluded that the trial judge’s analysis of the limitations issue, and his ultimate decision that the procurement law claim was statute-barred, was not conclusory. In short, his reasons allowed for meaningful appellate review. The Court stated that the limitations issue was dispositive.

3. No.

The Court explained that when a business wishes to procure services, and issues a “request for proposal”, or “RFP”, inviting suppliers to bid for a contract, the law divides the procurement process into two separate contracts: “Contract A” and “Contract B”. Contract A is the agreement entered into when a bidder submits a compliant bid in response to an invitation to tender. It imposes certain obligations on the procuring authority about how bidders will be treated. Contract B is the agreement between the procuring authority and the winning bidder. A procuring authority is contractually obliged, by Contract A, to accept only compliant bids and, more importantly for present purposes, only compliant bidders have legal remedies arising from the procurement process as against the procurement authority. Whether Contract A is formed depends on the parties’ intentions to create a legal relationship through a call for tenders and the submission of a compliant bid. In the Court’s view the trial judge’s reasons demonstrated a thorough understanding of these principles and their proper application.

4. No.

The Deloitte Report was a report unrelated to this litigation and it was found to be a privileged document. Furthermore, the Appellant moved for production of the report several years before the trial, but the Respondent refused to voluntarily produce it. As a result, the Appellant brought a refusals motion to seek a court order mandating its production, and the motion was dismissed. Then, nine days before the commencement of the trial, the Appellant advised that it would be calling the report’s author as a witness. The trial judge concluded that the author of the report would not be permitted to produce the Deloitte Report and held that the earlier refusals motion had already determined the report’s admissibility and he also found that the report was a privileged document. The Court saw no error in the trial judge’s conclusion that, by reason of the earlier decision in the proceedings, which had not been appealed, the Appellant was precluded from seeking admission of the Deloitte Report through the author of the report’s evidence at trial.

5. No.

The Court noted that an award of costs by a trial judge is an exercise in discretion and will only be set aside when the trial judge has made an error in principle or if the costs award is plainly wrong. The Court stated that the proceedings were lengthy and the dispute complex. The Court held that the trial judge committed no error in principle and the costs award was not plainly wrong and the costs awarded by the trial judge were reasonable and were owed deference. The Court granted the Appellant leave to appeal the trial judge’s costs award but dismissed the costs appeal.

Kerk-Courtney v. Security National Insurance Company (TD) General Insurance Company, 2024 ONCA 676

[van Rensburg, K., Sossin, L., Dawe, JJ.A.]

Counsel:

L. Kruse and G. Freitag, for the appellants

M. D. Isaacs and E. L. Shum, for the respondent

facts:

This appeal arose out of the sale of a residential property by the appellants in 2016. In 2018, the purchasers sued the appellants, alleging that there were several problems with the house, and that the appellants had mispresented its condition at the time of the sale. However, the agreement of purchase and sale (“APS”) contained an entire agreement clause. Before the appellants sold the property, they had home insurance coverage with the respondent insurance company. In 2021 (over two years later), they reported the purchasers’ lawsuit to the respondent and requested defence and indemnity protection pursuant to their home insurance policy (“the Policy”).

The insurance policy provided coverage to the appellants with respect to money they became legally liable to pay “as compensatory damages because of unintentional bodily injury or property damage arising out of” their personal actions anywhere in the world, and their ownership, use or occupancy of the Property. The policy defined “property damage” as “physical damage to, or destruction of, tangible property” or the “loss of use of tangible property”. The policy excluded coverage for liability that the appellants “have assumed by contract unless [the appellants’] legal liability would have applied even if no contract had been in force”, as well as coverage for any intentional act, or failure to act, by the appellants.

The respondent denied coverage, and in 2022, the appellants commenced an application seeking a declaration that the respondent has a duty to defend and indemnify them in the purchasers’ action (the “Underlying Action”). The application judge dismissed the application, finding that the respondent had no duty to defend or indemnify the appellants.

issues:

Did the application judge apply the proper legal test for determining an insurer’s duty to defend?
Did the application judge err in finding that the allegations made in the Underlying Action were not unambiguously excluded from the coverage for “property damage” in the Policy?
Did the application judge err in finding that the “entire agreement” clause in the APS precluded the Purchasers from successfully claiming damages in tort against the appellants for negligent oral misrepresentation, and that coverage for the Purchasers’ other claims was excluded by the Policy?
Did any alternative grounds raised by the respondent for denying coverage to the appellants relieve the respondent of its obligation to indemnify and defend?

holding:

Appeal dismissed. Cross-appeal allowed.

reasoning:

1. Yes

The Court addressed the standard of review. The interpretation of a contract generally is a question of mixed fact and law reviewable on a standard of palpable and overriding error. However, here, the standard of review was correctness because the Policy in question is a standard form contract, the interpretation of which has precedential value. Furthermore, there was no meaningful factual matrix specific to the parties to assist the interpretation process.

The application judge correctly instructed himself on the legal test to determine an insurer’s duty to defend. The Court outlined that the three-step test for this analytic framework comes from Non-Marine Underwriters, Lloyd’s of London v Scalera and the principles flowing from the framework, as set out by the Court in Tedford v TD Insurance Meloche Monnex.

As set out in Tedford, the court must consider if the pleadings in the underlying action allege facts that, if true, would be covered by the Policy.

2. Yes.

The application judge correctly found that the Policy did not exclude coverage for the alleged property damage.

The respondents cross-appealed on the application judge’s acceptance that the appellants’ exposure to liability “[did] not fit neatly into the property damage definition in the policy” and conclusion that the Policy did not “unambiguously exclude coverage on the facts of this case”. The application judge therefore rejected reliance on the exclusion as a basis for the respondent’s denial of their duty to defend.

The respondent argued that the purchasers’ claim that the property was bought for a higher price because of misrepresentations by the appellants does not constitute “physical damage to, or destruction of tangible property”, or a “loss of use of tangible property” within the meaning of the Policy. According to the respondent, in order to be covered for legal liability, “the [a]ppellants’ actions, or their ownership, use or occupancy of the premises, must cause physical damage to tangible property or loss of use of that tangible property” and the appellants’ alleged misrepresentations only caused the Purchasers to have a “different, and perhaps erroneous, perception of the state of the Property and its corresponding economic value.”

The Court rejected this argument, holding that in the leading case on the matter, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, Justice Rothstein of the Supreme Court commented that it was not obvious that defective property cannot constitute “property damage.” Thus, the Court found no error in the application judge’s conclusion and clarified that the application judge did not find that the alleged damage did not fall within the Policy’s meaning of “property damage”. The application judge only found that he could not conclude that it was unambiguously excluded.

3. Yes.

The application judge erred in relying on the “entire agreement” clause to determine the contractual liability exclusion.

The appellants argued that the application judge’s finding that the entire agreement clause on the APS would preclude the purchasers from succeeding on their claim based on alleged negligent misrepresentation. Specifically, they argued that the judge’s speculation on how the clause would be treated in the Underlying Action was an error because it was open to the judge to look at the APS as a document referred to in the pleadings, but not to make a factual finding about how a trial judge hearing the Underlying Action would interpret the provisions of the APS. Further, relying on several cases, the appellants argued that the presence of an “entire agreement” clause does not necessarily preclude a successful claim made outside of the contract. They took issue with the application judge’s consideration of the appellants’ pleadings in their statement of defence in the Underlying Action.

The respondent argued that the application judge properly relied on the court’s interpretation of an identical entire agreement clause in another case and did not make factual findings about how a trial judge would interpret the APS.

The Court agreed with the appellants’ argument, finding that the application judge erred by improperly predetermining an issue in the Underlying Action – whether the “entire agreement” clause in the APS would defeat the Purchasers’ claim, to the extent that it was based on the alleged oral misrepresentations by the appellant’s spouse. that issue was not relevant to whether there was coverage for claims made in that action. In short, the Court found that the fact that the insured may ultimately succeed in defending the Underlying Action based on the “entire agreement” clause in the APS in no way precluded coverage under the Policy.

Despite stating that he must not assume the clause would be found enforceable in the Underlying Action, the application judge’s conclusion turned on that very assumption. This was an error because whether a defence will be successful at trial is not a basis for the denial of coverage in the context of a duty to defend. Thus, because of the application judge’s conclusion about the entire agreement clause, he found that the rest of the claim flowed from contractual provisions or was captured by the Policy’s exclusion for intentional torts, leaving no room for any insured loss or damage. The Court determined that because this conclusion rested on the foundation of an erroneous finding about the “entire agreement” clause, it also could not stand as a basis for denying coverage. Further, the Court held that claims for pre-contractual negligent misrepresentation provided the basis for coverage under the Policy, and they were not precluded by the exclusion for contractual liability.

4. Yes.

The Court held that the late notice of the claim given by the appellants to the respondent justified the denial of coverage. The Court disagreed with the appellants’ argument made to justify their delay in giving notice of the claim. They argued that it was only during examinations for discovery that it became clear that the Underlying Action related to allegations of negligence, and not only to intentional acts, which are not covered by the Policy. they then promptly gave notice to the respondent despite the claim having started over two a half years before. In rejecting this explanation for the delay, the Court found that a claim for negligent misrepresentation was clearly asserted in the statement of claim. Therefore, the appellants’ conduct in delaying notice to the respondent for two and a half years clearly constituted a breach of its prompt notice obligation under the Policy.

The appellants also argued that in the event of a finding of a breach of the notice requirement, they should be granted relief against forfeiture under s. 129 of the Insurance Act. They argued that the late notice constituted “imperfect compliance” as opposed to non-compliance with the policy, and that they were not acting in bad faith.

The Court cited other decisions in which it affirmed that relief from forfeiture requires the consideration of three factors: 1) the reasonableness of the insured’s conduct; 2) the gravity of the breach; and 3) the disparity, if any, between the value of the property forfeited and the damages caused by the breach. The Court emphasized that the reasonableness of the insured’s conduct lies at the heart of the relief from forfeiture analysis and that a party whose conduct is not seen as reasonable will face great difficulty in obtaining relief from forfeiture. The Court concluded that on the record that was before the application judge, there was no basis for the discretionary relief against forfeiture sought by the appellants and accepted the respondent’s argument that the decisions undertaken with respect to the defence of the Underlying Action by the appellants during the period prior to notice to the respondent constrained and prejudiced the respondent’s ability to defend the claim successfully. Consequently, there was no duty to defend arising in this case. The Court found it unnecessary to address the remaining issue of whether the Policy was breached by the appellants’ alleged misrepresentation about the use of the property when the policy was taken out.

SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2024 ONCA 675

[Tulloch C.J.O., Hourigan and Miller JJ.A.]

Counsel:

J. T. Curry, E. Mogil, B. Kain, B. Kolenda, E. Chesney, C. Yung, and A. Locatelli, for the appellant/respondent by way of cross-appeal

C. G. Paliare, R. Bucholz, G. Hawe, C. Fan, and J. L. Song, for the respondent/appellant by way of cross-appeal

facts:

This case involved a contract dispute between the Canadian affiliate of the world’s largest hedge fund and private equity administrator, SS&C Technologies Canada Corp. (“SS&C”), and the world’s largest custodial bank, Bank of New York Mellon Corporation (“BNY”), and required the Court to determine and enforce the bargain they struck.

The parties agreed in 1999 that SS&C would provide market pricing data to a singular client, Mellon Trust, but, after more than one and a half decades of doing business together, they now could not agree on who that client was. SS&C argued that “Mellon Trust” is a single legal entity, namely BNY, and that BNY breached the contract by redistributing the data SS&C provided to CIBC Mellon Global Securities Company (“CIBC Mellon”) and other BNY affiliates. BNY, in turn, claimed that the singular word “Client” actually means many different entities, namely both BNY and its numerous affiliates.

issues:

Part A: Liability

On Appeal by BNY:

Should the trial judge have interpreted the Mellon Trust Agreement to authorize CIBC Mellon and all other BNY custodial entities to access data?
Were SS&C’s claims limitations-barred, and did the trial judge lack jurisdiction to change his unentered judgment to hold BNY liable for redistributing data to CIBC Mellon?

On Cross-Appeal by SS&C:

Should the trial judge have ruled that the Mellon Trust Agreement only authorized BNY, and not also Mellon Financial’s custodial entities at the time of contracting, to access data?

Part B: Damages

On Appeal by BNY:

Did the trial judge err in awarding more than nominal damages after SS&C waived negotiating damages at trial?
Was the minimum performance principle ignored?
Did the trial judge err in his damages award by measuring SS&C’s damages based on revenues rather than net profits?
Were the damages awarded regarding sharing of data with CIBC Mellon free of any error in principle?

On Cross-Appeal by SS&C:

Did the trial judge err in not awarding damages based on the Mellon Trust Agreement, which required an award of damages tied to the number of unlicensed entities?
Did the trial judge compound that error by not finding, as part of drawing an adverse inference, that the unlicensed entities made extensive use of the data?
Did the trial judge err in finding that there was insufficient evidence regarding how a multi-enterprise entity like BNY is charged for data?
Did the trial judge err in failing to award damages for the late fees.

holding:

Liability: BNY appeal dismissed; SS&C cross-appeal allowed.

Damages: BNY appeal allowed in part; SS&C cross-appeal dismissed.

reasoning:

Part A: Liability

Should the trial judge have interpreted the Mellon Trust Agreement to authorize CIBC Mellon and all other BNY custodial entities to access data? NO.

The Court held that the contract barred redistributing data to CIBC Mellon. Furthermore, the Court held Mellon Financial’s custodial entities at the time of contracting were not the “Client.” This conclusion eliminated any potential contradiction between CIBC Mellon’s contractual rights and the rights of other Mellon Financial custodial entities. The Court stated that the trial judge reasonably distinguished CIBC Mellon from Mellon Financial’s other custodial entities at the time of contracting. The Court held that trial judge looked to the CIBC Mellon Agreement to interpret the Mellon Trust Agreement because Mellon Financial and its affiliate, CIBC Mellon, made these Agreements with SS&C in the same year to meet their data needs. He also found that treating CIBC Mellon as the “Client” under the Mellon Trust Agreement would render the CIBC Mellon Agreement redundant. This finding justified treating CIBC Mellon differently from Mellon Financial’s other custodial entities, which did not have their own data purchase contracts with SS&C.

The Court further rejected BNY’s argument that the Mellon Trust Agreement’s successorship clause, which provided that the contract binds and grants rights to each party’s “successors”, demonstrated that the number of custodial entities that the term “Client” included was intended to change over time because mergers could add additional subsidiaries to the successor entity. The Court held that the term “successors” in the clause presumptively carries its legal meaning and thus refers to corporate successors, which means corporations that assume the rights and liabilities of other corporations through merger, amalgamation, or other means: Heritage Capital Corp. v. Equitable Trust Co. Because companies have separate legal personalities, a parent company does not become a successor simply because its subsidiary succeeds another company.

Were SS&C’s claims are limitations-barred, and did the trial judge lack jurisdiction to change his unentered judgment to hold BNY liable for redistributing data to CIBC Mellon? NO.

The Court first held that the trial judge’s findings displaced the presumption of knowledge in ss. 5(2) of the Limitations Act, 2002. Because BNY began committing these breaches in 1999, subsection 5(2) triggered a presumption that SS&C discovered its claims then. But the trial judge found that SS&C only discovered the breaches in Fall 2016. This finding displaced the presumption by establishing that SS&C discovered the claims on a different date from when the breaches began and shifted the burden of proof back to BNY.

The Court held that the trial judge applied the correct legal test to determine whether to impute the knowledge of SS&C’s employees to SS&C. The Court held that Rocco v. Northwestern National Insurance Co.I was the governing case on this question. The trial judge correctly stated, citing Rocco, that information known to non-management employees is not automatically imputed to the company. The Court held that this statement accurately summarized Rocco’s holding that those employees’ knowledge is only imputed to the company if they “would be likely to communicate [it] to those in charge of the affairs of the company”.

The Court held that the trial judge properly changed his unentered judgment. The Court stated that the trial judge had broad discretion to reconsider and change his judgment before its entry. The trial judge properly exercised that discretion to correct his initial conclusion that CIBC Mellon breached its separate contract with SS&C, which overlooked SS&C’s actual breach of contract claim against BNY and was an outcome-determinative error.

Should the trial judge have ruled that the Mellon Trust Agreement only authorized BNY, and not also Mellon Financial’s custodial entities at the time of contracting, to access data? YES.

The Court held that the trial judge correctly instructed himself to interpret the contract’s text in light of its commercial purpose and examine the parties’ course of performance to resolve any ambiguity. The Court stated that because these findings all pointed in the same direction, applying the law of contractual interpretation to them should have led the trial judge to conclude that the contract only authorized BNY to receive data. The Court held that the trial judge incorrectly determined that the contract authorized not only BNY but also Mellon Financial’s custodial entities at the time of contracting to access data.

The Court held that the trial judge used BNY’s individualized version of the background facts to interpret the contract. Sattva Capital Corp. v. Creston Moly Corp. held that courts can only consider background facts within the parties’ common knowledge, meaning those facts that both parties knew or should have known at the time of entering into the contract, as surrounding circumstances. This rule prohibits considering a party’s subjective intention. The Court held that the trial judge violated this rule.

The Court stated that the trial judge’s conclusion that courts can consider individualized background facts to establish commercial purpose was incorrect. Rather, Sattva’s rule against individualized background facts applies globally, including when parties seek to use them to advance commercial reasonableness arguments. The Court held that the trial judge was incorrect to suggest that not considering these individualized background facts was unfair.

The Court further held that trial judge overlooked the focal point of contractual interpretation: the text, and the constraints it imposes on commercial reasonableness. The Court stated that courts can legitimately use commercial reasonableness as a tool to interpret the text because parties are unlikely to have intended to strike bargains that make no business sense. But the text, in turn, helps courts determine which interpretations are commercially reasonable and prevents using this factor to rewrite contracts that, in hindsight, appear improvident or inconvenient. Because the trial judge did not consider these textual constraints, he misinterpreted the contract. He overlooked his findings that the text showed that “Client” referred to a single legal entity that, unlike an amorphous brand comprising numerous entities, had a specific address and could become insolvent and assign its assets. The text’s reference to “Client,” “either party,” and “the other party” in the singular instead of the plural confirmed this conclusion: 202135 Ontario Inc. v. Northbridge General Insurance Corporation.

Lastly, the Court held the trial judge failed to square his conclusion with his course of performance findings. While the law approaches this type of evidence cautiously, it can attract significant weight if it is unequivocal, consistent, mutual, close to the time of contracting, is based on the actions of the contracting companies’ chief representatives for a given matter, and is not self-serving: Shewchuk v. Blackmont Capital Inc. The Court held that the trial judge failed to consider these principles because he misapprehended his course of performance findings.

Part B: Damages

Did the trial judge err in awarding more than nominal damages after SS&C waived negotiating damages at trial? NO.

The Court noted that SS&C was initially seeking damages on the basis of negotiated damages, but it later advised the court unequivocally that it was not claiming negotiated damages. The trial judge found that SS&C was not seeking damages based on this theory and, therefore, prohibited BNY from adducing evidence in this regard.

The Court rejected BNY’s argument the trial judge had rejected the applicability of negotiated damages, yet he proceeded to award damages on that basis. The Court held that the trial judge explicitly found that there was insufficient evidence to understand what the parties might have negotiated in circumstances where a multi-entity enterprise entered into an agreement for the provision of data.

The Court further rejected BNY’s argument that the trial judge erred in ordering that the evidentiary record for the damages trial could only be expanded on the consent of the parties. The Court agreed with the trial judge’s statement that parties are entitled to assume that when a case comes on for hearing, the record is closed. The Court held that the trial judge was under no obligation to permit the parties to expand the evidentiary record.

Was the minimum performance principle was ignored? NO.

The Court stated that the doctrine of minimum performance applies where there has been a repudiation of a contract by a defendant and there are several ways the defendant could have performed the contract. In such circumstances, the plaintiff is only entitled to damages based on the minimum performance provided for under the agreement.

The Court rejected BNY’s submission that the doctrine applied in this case and the trial judge erred in failing to rely on it in his analysis. The Court held that this case did not trigger the doctrine because BNY never wrongfully repudiated the contract, and the expansion of the doctrine to fit the facts of this case would lead to absurd and perverse results that were contrary to the policy underlying the doctrine.

Did the trial judge err in his damages award by measuring SS&C’s damages based on revenues rather than net profits? NO.

The Court stated that where an aggrieved party to a contract claim for damages for a contract that was not performed, they are generally entitled to only the net profits for that contract: Jaremko v. A.E. LePage Real Estate Services Ltd. However, the Court noted that the facts of the present case were different. Here, SS&C performed the contract. In order to obtain the data, it had to pay its suppliers and it did so. Thus, the court did not have to determine what its notional costs were because the costs were actually incurred. Therefore, there was no need to make a deduction to put SS&C in the position it would have been had the contract been performed because it performed the contract and incurred the cost of obtaining data from its suppliers.

Were the damages awarded regarding sharing of data with CIBC Mellon free of any error in principle? NO.

The Court held that the trial judge’s award of damages for sharing data with CIBC Mellon amounted to an error in principle because the damages award in addition to the contractual payments constituted double compensation. Therefore, the CIBC Mellon damages award of $922,887 was struck.

Did the trial judge err in not awarding damages based on the Mellon Trust Agreement, which required an award of damages tied to the number of unlicensed entities? NO.

The Court noted SS&C’s submission that because the Mellon Trust Agreement is a licensing agreement, each unauthorized entity that received data should have paid fees to SS&C equal to the fees required under the Mellon Trust Agreement. The Court rejected SS&C’s argument that this involved a real-world contract that generated the theoretical maximum and theoretical minimum models, which the trial judge should have followed in assessing damages. The Court held that the difficulty the trial judge faced was that there was no quantification of damages within the Mellon Trust Agreement for the impermissible use of data. These were sophisticated parties and there was no reason why such a term could not have been included in the Mellon Trust Agreement. Further, SS&C failed to produce compelling evidence regarding how multi-entity enterprises are charged for data. Consequently, the trial judge was forced to develop his own theory of damages.

Did the trial judge compound that error by not finding, as part of drawing an adverse inference, that the unlicensed entities made extensive use of the data? NO.

The Court noted that SS&C asserted a claim of spoliation regarding the missing usage data. It stated that spoliation is an evidentiary rule that allows the court to remedy abuses of its process, although whether it is also a free-standing tort claim remains unresolved: Trillium Power Wind Corporation v. Ontario.

The Court noted that the trial judge rejected SS&C’s spoliation claim on the grounds that “spoliation as a standalone tort is one for which the wrongdoer can be liable for damages. The applicant seeks no such remedy here. The applicant seeks an adverse inference.” He also stated that “adverse inferences of that sort have nothing to do with spoliation but have to do with party’s failure to produce evidence to support a proposition that it is advancing.” The Court held that if the trial judge meant that the remedy for spoliation was limited to damages or that an adverse inference is not an available remedy where spoliation is established, he erred in law. Regardless of whether spoliation is only an evidentiary rule or is also a standalone tort claim, an adverse inference is an available remedy where spoliation has been established: Doust v. Schatz.

The Court held that in the circumstances of this case, BNY’s conduct and the trial judge’s errors regarding the law of spoliation made no difference to the ultimate result.

Did the trial judge err in finding that there was insufficient evidence regarding how a multi-enterprise entity like BNY is charged for data? NO.

The Court rejected SS&C’s position that when the trial judge rejected SS&C’s damages model, he erred by faulting SS&C for not leading evidence that each entity would pay the same as the primary licensed entity, and in suggesting that the agreements before him contradicted that assertion. The Court rejected SS&C’s position that BNY would have paid roughly 65 times what it was paying for the supply of data by entering into multiple contracts. The Court held that the onus lay with SS&C to produce evidence of such contractual arrangements with a multi-entity corporation and it failed to do so.

Did the trial judge err in failing to award damages for the late fees.

The Court rejected SS&C’s argument the trial judge erred by finding there was no late payment, by mischaracterizing the late payment as compound interest, and by failing to engage with the analysis on the enforceability of penalty clauses. The Court held that the late fee provision as not meant to apply to notional invoices, which provide no notice to the payor of an amount due.

Grand River Conservation Authority v. Kentner, 2024 ONCA 689

[Hourigan, Huscroft and Coroza JJ.A.]

Counsel:

J. R.W. Damstra and G. A. Cherniak, for the appellants

S. J. O’Melia, for the respondent

facts:

The Appellants are mother and son residing on a farm property in the Town of Erin, Wellington County. Beginning in 2005, the Appellant son started importing fill onto the property, allegedly to rehabilitate the land so it could be used for agriculture. He originally worked with the Ministry of Environment to supervise and monitor the fill operation. In 2008, he began communicating with the Grand River Conservation Authority (the “GRCA”) and the Town of Erin (the “Town”) about the permits required to continue the fill operation.

The Appellant son was advised by the GRCA and the Town that two permits would be required to continue the fill operation and he obtained the first permit from the GRCA that covered work from 2009 until 2012. A second permit was never granted. In 2013, the GRCA sent the Appellants a letter alerting them to the fact that the first permit had expired and that a new permit application was required. The Appellants never acquired the new permit. The Appellants started to allow others to dump fill on their property, and this was found to be unlawful. The filling operation continued on the property until December 13, 2016, when the GRCA obtained an injunction from the Superior Court to restrain the unlawful activity.

The Appellants retained a paralegal in the fall of 2016 to assist them in relation to the charges at trial and on the first appeal. On this appeal, the Appellants asserted that the paralegal provided ineffective assistance during their appeal to the Provincial Offences Appeal Court (“POAC”). They also made submissions attacking the findings of guilt and the sentence imposed on them. The paralegal’s evidence was that he advised the appellants that they were required to pay the fines ordered against them as a mandatory condition for proceeding with an appeal to the POAC, but the appellants chose not to pay the fines. Leading up to the appeal, the paralegal encountered medical issues; he accepted full responsibility for ineffective counsel during the POAC appeal as a result from his decline in health. No application was brought to obtain a waiver order to relieve the appellants of their obligation to pay the fine as a condition of bringing an appeal.

issues:

Was there ineffective assistance of counsel by the paralegal?
Was the summary dismissal of the appeal a miscarriage of justice?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court explained that ineffective assistance has a “performance component” and a “prejudice component”. This ground of appeal can succeed only if the appellant establishes that: (1) counsel’s acts or omissions constituted incompetence (the performance component); and (2) that a miscarriage of justice resulted (the prejudice component).

The Court found that the Appellant’s deliberate choice not to pay the fine was wholly unrelated to the services provided by the paralegal, and that it was the failure to pay that led to the appeal being summarily dismissed. Furthermore, the Court held that the Appellants suffered no prejudice due to the failure of the paralegal to seek a waiver as there was no reasonable prospect of succeeding on the waiver application.

2. No.

In the Court’s view, the summary dismissal of the appellants’ appeal also did not cause a miscarriage of justice because the appeal was entirely lacking in merit. Regarding the conviction appeal, the appellants asserted a single ground of appeal: that the trial judge reversed the onus of proof by relying on the Regulation maps to establish the boundaries of the GRCA regulated area. This was incorrect. The court was entitled to rely on the Regulation maps, which are approved by the Ministry of Natural Resources and incorporated by reference into the Regulation, for the purpose of establishing GRCA jurisdiction. Further, the Court held that there was no basis to interfere with the sentence imposed. The total fine of $25,000 was a fraction of the illegal profits earned by the appellants and, in the Court’s view, was very low in the circumstances. The Court also stated that there could also be no debate that the property remediation order was required.

Boltyansky v. Joseph-Walker, 2024 ONCA 682

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

Counsel:

S. Alexanian, for the appellants

A. Freedland, for the respondents

facts:

This appeal related to a Mortgage Action. The respondents sought payment of the principal and interest as well as an order of vacant possession and writs of possession. Even though the real remedies the respondents were requesting would affect the interests of the other syndicated mortgage lenders, the respondents did not add them as parties to the action nor did they serve notice on them. Concurrently, the appellants brought their Fraud Action alleging fraud against the mortgage brokers and nine of the other lenders. No fraud allegations were made against the respondents in that application.

The respondents moved for summary judgment in the Mortgage Action, leading to the provisional summary judgment order that was the subject of this appeal. Before the summary judgment motion was heard, the appellants expanded the Fraud Action to include fraud allegations against additional parties, including the six respondents. The Mortgage Action and the Fraud Action, along with a related “Receivership Application”, were consolidated by a consent Consolidation Order. The respondents’ summary judgment motion then continued within the consolidated action.

In defence of the summary judgment motion, in addition to numerous other objections, the appellants repeated the fraud allegations in their Fraud Action against the respondents and sought declarations of invalidity and removal of the mortgages, as well as damages for slander of title. In support of their fraud claims the appellants relied upon some documentation that had been filed by other parties in the Mortgage Action, namely, trust and banking records as well as an email in which one of the defendants in the Mortgage Action claimed to have discovered an apparent $200,000 fraud. It is on this record that the motion judge provisionally ordered summary judgment in favour of the respondents.

In making this provisional summary judgment order, the motion judge concluded, as required by r. 20.04(2) of the Rules of Civil Procedure, that there was no genuine issue requiring a trial with respect to the entitlement of each of the respondents. The motion judge found she was able to make the necessary factual findings on the record before her without employing enhanced fact-finding powers granted to motion judges in r. 20.04(2)(1) and was able to apply the law to the facts. The motion judge overall found “that summary judgment is the proportionate, most expeditious and least expensive way to address the claims and defences” between the parties. The motion judge concluded that, given the facts, summary judgment would simplify and refocus future proceedings by reducing the number of parties in the Fraud Action.

issues:

Did the motion judge err by granting a summary judgment given the pending Fraud Action and context of the consolidated action?

holding:

Appeal dismissed.

reasoning:

No. First, the Court did not accept the appellants’ claims that summary judgment was inappropriate given the pending Fraud Action or that the motion judge failed to consider the context of the consolidated action. As indicated, the motion judge carefully considered and rejected the risk that giving summary judgment in the Mortgage Action could result in inconsistent findings with those that may be made subsequently in the Fraud Action, concluding reasonably that dismissing the allegations against the respondents would not affect the outstanding fraud allegations the appellants were making against the other Fraud Action defendants. She also recognized that steps could be taken to have the proceeds of a mortgage sale held in trust pending the outcome of the Fraud Action to protect the interest of the other lenders.

Second, the Court also rejected the appellants’ related submission that summary judgment was based on a “future contingent evidentiary record”, a characterization the appellants based on the prospect that “more expansive” evidence could emerge from the Fraud Action. Despite being given the benefit of opportunities for discovery that delayed the summary judgment motion, the appellants offered no realistic, non-speculative basis for their assertion that evidence could emerge during the Fraud Action to support their fraud theory against the respondents. They were not entitled to waylay access to summary judgment based on the speculative hope that future evidence might materialize. The appellants failed to raise any realistic prospect that the respondents were complicit in the alleged fraud. The motion judge was entitled to proceed on the evidence before her.

Third, the Court rejected the submission that there were irregularities in the documentation that should have served as red flags of impropriety or potential fraud, alerting the motion judge that a trial was required. It was unclear whether the concerns of the appellants were argued before the motion judge, and none of those “irregularities” offered any support for the suggestion that the respondents were parties to any fraud that may have been occurring within the mortgage syndicate.

Fourth, the appellants also argued that the motion judge erred by, in effect, granting “partial summary judgment”. The Court held that to address this ground of appeal it did not need to decide whether this characterization was correct. Even if the order under appeal was, in form or substance, a partial summary judgment, no error occurred. If partial summary judgment does not present a risk of duplicative proceedings or inconsistent findings of fact, and resolving the claim could significantly advance access to justice and be the most proportionate, timely and cost-effective approach, it may be in the interests of justice to grant partial summary judgment.

Fifth, the Court was unpersuaded by the appellants’ submission that the motion judge exceeded her jurisdiction by granting summary judgment, given the respondents’ failure to serve the seven syndicated mortgage lenders who were not parties to the consolidated action. Although she recognized that these mortgage lenders were necessary parties to the Mortgage Action and should have been added by the respondents as defendants, she was entitled to exercise discretion to invoke the curative provision in r. 2.01(1)(a). The failure to add them as parties did not prevent the appellants from presenting any evidence that these seven lenders may have been able to contribute.

Finally, the appellants argued that the motion judge erred by treating the summary judgment motion as a motion for default judgment by failing to require proof that the mortgage costs were appropriate, and that the terms of the mortgage commitments were as claimed. The Court did not agree with this and held that the record before the motion judge contained the necessary documentation, and she made specific findings of fact on each of the issues that were open to her to make. The appellants did not show any palpable or overriding errors in any of these findings.

Carcillo v. Ontario Major Junior Hockey League, 2024 ONCA 685

[Trotter, Thorburn and Dawe JJ.A.]

Counsel:

G. Beaulne, E. Schiff, N. Butz, and M. Torgov, for the moving parties

J. Sayce, V. Calina, and C. Leach, for the responding parties

Keywords: Interrelated Final and Interlocutory Orders, Transition Orders, Motions, Appeals, Leave, Class Proceedings, Certification Orders, Dismissal Orders, Civil Procedure, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 5, 7, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6, 19, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3, s. 147, Rules of Civil Procedure, r. 63.02(1)(b), Blair v. Ford, 2021 ONCA 841, Mader v. South Easthope Mutual Insurance Co., 2014 ONCA 714, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), AIC v. Fisher Limited, 2013 SCC 69, Cole v. Hamilton (City) (2002), 60 O.R. (3d) 284 (C.A.), Brown v. Hanley, 2019 ONCA 395, P1 v. XYZ School, 2021 ONCA 901, 2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202, Martin v. 11037315 Canada Inc. 2021 ONCA 246, Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166, Azzeh v. Legendre, 2017 ONCA 385, Athanassiades v. Rogers Communications Canada Inc., 2024 ONCA 497

facts:

This motion arose from related appeals of an order refusing to certify a class proceeding: an appeal of the order refusing certification, an appeal of the order dismissing the action as against certain parties, and an appeal of the order transitioning the litigation from a proposed class action to multiple joinder actions (the “Transition Order”) pursuant to s. 7 of the Class Proceedings Act, 1992.

The moving party defendants sought to quash the third appeal, the appeal of the Transition Order, on the basis that the order was interlocutory, not final, and could only be appealed to the Divisional Court with leave pursuant to s. 19(1)(b) of the Courts of Justice Act. They also claimed that the order did not finally resolve part or all of the dispute between the parties, only changing the format by which the substantive issues in the proceeding would be determined.

The responding party plaintiffs submitted that the motion be denied because (1) the order was final, as some aspects finally disposed of the responding parties’ rights; (2) the Transition Order was so interrelated with the other orders on appeal that the Court should hear all three appeals together; and (3) the motion to quash “encroaches on the merits of the appeal” of the order refusing certification. If the motion was granted, the responding parties submitted that the Court should continue the stay of the Transition Order pending determination of the related appeals.

issues:

Was the Transition Order under appeal final, or was the Transition Oder significantly interrelated to the other two appeals such that the appeal of the Transition Order should not be quashed?

holding:

Motion dismissed.

reasoning:

The three appeals were interrelated such that they should be heard together.

There was no dispute that the other two appeals were properly before the Court. The central issues in those appeals were whether the motion judge erred (i) in refusing to certify the proceeding as a Class Action, and (ii) in ordering that some claims should be dismissed for failure to include a representative plaintiff for each claim against each proposed defendant.

The Court noted that, in deciding whether to certify the proceeding as a class proceeding, the motion judge was required to consider whether “a class proceeding would be the preferable procedure for the resolution of the common issues”: Class Proceedings Act, 1992, s. 5(1)(d). The Court explained that this is a “comparative exercise”: AIC v. Fisher Limited.

The Court explained that the proposed class action and the Section 7 Plan were mutually exclusive alternatives. The Transition Order required the responding parties to abandon their appeal of the certification order. If the appeal of the certification order is granted, the Section 7 Plan must be vacated. The appeal of the Transition Order must therefore be determined in a way that does not interfere with the legal questions to be resolved in the two appeals presently before the Court. The Court therefore held that there was a significant interrelationship between the appeal of the Transition Order and the other two appeals.

The Court explained that where an appeal lies to the Divisional Court and leave is required from that court, the appellant must first obtain leave from the Divisional Court before seeking to combine the appeal that lies to the Divisional Court with an appeal that lies to the Court as of right: Cole v. Hamilton (City); Mader v. South Easthope Mutual Insurance Co.; Brown v. Hanley.

However, Section 6(2) of the Courts of Justice Act provides that the Court has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal. Thus, the Court explained, if the interrelated final and interlocutory orders are “so interrelated that leave would inevitably have been granted on the interlocutory issue”, the Court can assume jurisdiction over the appeal under s. 6(2) even if leave has not been sought from the Divisional Court: P1 v. XYZ School, citing Lax v. Lax.

The Court cited its decision in Lax, where it held that although the second issue in that case would, if brought as a stand-alone appeal to the Divisional Court, require leave of that court, because the two issues were so interrelated, the Court heard the two appeals together on the basis that once the first issue was before the Court, leave would inevitably have been granted on the second.

Similarly, in 2099082 Ontario Limited v. Varcon Construction Corporation, the Court allowed appeals to proceed from both the final and interlocutory aspects of the motion judge’s order as they were so interrelated that “once the first issue was before the court, leave would inevitably have been granted on the second.”: 2099082 Ontario; Martin v. 11037315 Canada Inc.; Cooper v. The Laundry Lounge, Inc.; Azzeh v. Legendre.

The Court ultimately agreed that the Transition Order had both final and interlocutory aspects. However, the Court explained that the focus of the appeal was on the aspects of the Transition order that directed the responding parties to abandon their appeal of the Certification Order if no party appealed the Transition Order; directed the recommencement of limitations periods; and dismissed the Class Proceeding by a certain date prescribed by the Section 7 Plan. The Court held that those aspects were closely interrelated with the Certification and Dismissal appeals, and hearing this appeal with the appeals of the Certification and Dismissal orders would promote, not take away from, the time and cost-effective resolution of disputes. Accordingly, the Court held that this case was distinguishable from the Court’s recent decision in Athanassiades v. Rogers Communications Canada Inc. In that case, the focus of the appeal was on the interlocutory aspects of the decision at issue. Hearing the appeal of the final aspects only was therefore impracticable, and would lead to “an unnecessary and wasteful fragmentation of summary judgment proceedings that are designed to resolve disputes in a timely and cost-effective manner.”: Athanassiades.

Therefore, the Court held that the appeal should not be quashed, whether or not leave from the Divisional Court may have been required had the appeal been brought as a standalone appeal. The Court noted that the significant interrelationship between the three appeals was such that leave would have inevitably been given, and thus the fact that the responding parties did not obtain leave should not bar the Court from hearing the appeal.

SHORT CIVIL DECISIONS

Ogunmekan v. Ogunmekan, 2024 ONCA 673

[Pepall, Miller and Wilson JJ.A.]

Counsel:

G. Cadogan, for the appellant

E. Clemence, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Child Support, Spousal Support, Civil Procedure, Appeals, Adjournments

M.T. Johnstone Construction Ltd. v. Rashidi, 2024 ONCA 670

[Pepall, Miller and Wilson JJ.A.]

Counsel:

WR, acting in person

M. McCluskey, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Appeals, Adjournments

Master Tech Inc. v. Wajeb Assaf, 2024 ONCA 671

[Pepall, Miller and Wilson JJ.A.]

Counsel:

F. T. acting in person, for the appellants

M. Kestenberg and H. Norwick, for the respondents

Keywords: Civil Procedure, Appeals, Extension of Time, Representation by Lawyer, Vexatious Litigation, Rules of Civil Procedure, r. 2.1.01, 15.01(2)

Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre), 2024 ONCA 681

[Roberts, Coroza and Gomery JJ.A.]

Counsel:

J. Y. Obagi and E. A. Quigley, for the appellants

J. Lin and R. McIntyre, for the respondents

Keywords: Costs

T.O. Estate v. D.O., 2024 ONCA 683

[Roberts, Zarnett and Favreau JJ.A.]

Counsel:

T.A. Pagliaroli and V. Mishra, for the appellant

R.N. Kostyniuk, for the respondents

Keywords: Costs

Anani v. Sharawy, 2024 ONCA 686

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

Counsel:

Appellant, Z.A., acting in person

Keywords: Civil Procedure, Appeals, Perfection, Orders, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364

200 Ferrand Realty Limited v. 1284225 Ontario Limited, 2024 ONCA 684

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

Counsel:

G. Limberis and K. Mitchell for the appellant

C. Reed 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.

Tracking Preferences

Table of Contents

Civil Decisions

Short Civil Decisions

CIVIL DECISIONS

SHORT CIVIL DECISIONS