Hello everyone,

Below are summaries of the few civil decisions released by the Court of Appeal this week, followed by a list of short endorsements and criminal decisions.  Topics covered include contract interpretation, limitation periods in the context of statutory accident benefits claims, and injunctions for zoning by-law violations.

Enjoy the weekend.

John Polyzogopoulos

Blaney McMurtry LLP

JPolyzogopoulos@blaney.com

Tel: 416.593.2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents

Civil Cases:

1289012 Ontario Ltd v 2251420 Ontario Inc (click on case name to read the summary)

Keywords: Endorsement, Commercial Tenancies, Contract Interpretation, Franchise Agreement, Commercial Lease, Sub-Lease, Sattva Capital Corp v. Creston Moly Corp

Bustamante v The Guarantee Company of North America (click on case name to read the summary)

Keywords: Endorsement, Insurance Law, Statutory Accident Benefits, Insurance Act, Statutory Accident Benefits Schedule, s. 51(1), Summary Judgment, Limitation Period

Whitchurch-Stouffville (Town) v Bolender (click on case name to read the summary)

Keywords:  Municipal Law, Zoning By-laws, Illegal Waste Disposal, Municipal Act, 2001, s. 440, Legal Non-Conforming Use, Planning Act, s. 34(9)

For a list of Short Endorsements, click here.

For a list of Criminal Law decisions, click here.

1289012 Ontario Ltd. v. 2251420 Ontario Inc., 2015 ONCA 524

[Strathy C.J.O., Epstein and Huscroft JJ.A.]

Counsel:

P. Bosman, for the appellant.

L. Klug, for the respondents.

Keywords: Endorsement, Commercial Tenancies, Contract Interpretation, Franchise Agreement, Commercial Lease, Sub-Lease, Sattva Capital Corp v. Creston Moly Corp

Facts:

The appellant 2251420 Ontario Inc. (“225”) asserted the trial judge erred in finding that the Associates Lease, between it and the respondent 1289012 Ontario Ltd. (“128”) was a valid and enforceable lease and in awarding damages for rent due under the lease. It claims that the Associates Lease was void ab initio because 128 had previously leased the service station to Imperial Oil and was collecting rent from Imperial. In a counterclaim, it sought the return of the rent it paid to 128 and damages for wrongful taking of possession.

Throughout the material time, 128 was the head tenant of the premises, which were owned by a third party. In 2001, concurrent with its Dealer Sales Agreement with Imperial, 128 leased the premises to Imperial (“the Imperial Lease”) in return for a payment of 1.5 cents per litre for all fuel sold on the premises. Imperial then sub-leased or cross-leased the premises to 128 for $1.00 per year (“the Sublease”). The lease and leaseback were common in the industry: they secured Imperial’s right to supply gasoline and controlled the dealer’s use of the premises.

As the service centre business was transferred to successive companies over the years, the Sublease, Dealer Sales Agreement and related agreements were assigned to the new dealer. However, these contractual arrangements changed when the business was transferred to an unrelated company: the respondents entered into a separate sublease (“Associates Lease”) with the new operator as well as a form of franchise agreement (“Associates Agreement”). Thus, there were two “leases” of the premises: the Sublease and the Associates Lease. 225’s position is that the form and plain language of the Imperial Lease should determine its legal effect and that 128 had no right to lease the premises because it had previously leased them to Imperial.

Issues:

Did the trial judge err in finding the Associates Lease was valid and enforceable, and in awarding damages for rent due under the lease?

Holding: Appeal dismissed, with costs to the respondent fixed at $18,000, inclusive of disbursements and all applicable taxes.

Reasoning:

The Court stated that it was required to have regard to the nature of the documents and the words used by the parties to determine their contractual intent. It cited Sattva Capital Corp v. Creston Moly Corp for the proposition that the meaning of words is determined from a number of contextual factors, including the nature of the relationship and the purpose of the agreement. The Supreme Court in Sattva stated the importance of the history of the transaction, the background, context and the market in which the parties were operating.

The Court also cited Salah v. Timothy’s Coffees of the World Inc: “Where a transaction involves the execution of several documents that form parts of a larger composite whole – like a complex commercial transaction – and each agreement is entered into on the faith of the others being executed, then assistance in the interpretation of one agreement may be drawn from the related agreements.”

The Court concluded that the factual matrix in this case included not only the Imperial Lease, the Sublease, and the Dealer Sales Agreement entered into between 128 and Imperial, but also the suite of contracts entered into by 225 when it acquired the gas station business. This set of interrelated agreements included the Associates Lease, the Associates Agreement and other agreements between 225 and the previous operator of the gas station business.

The trial judge was entitled to find, as she did, that the expectations of 128 and 225 were reflected in the Associates Lease. She was also entitled to find, as she did, that the effect of the various agreements was that 128 had the right to lease the premises. In sum, the trial judge was entitled to give effect to substance over form.

Bustamante v. The Guarantee Company of North America, 2015 ONCA 530

[Hoy A.C.J.O., Epstein and Huscroft JJ.A.]

Counsel:

A. L. Rudder, for the appellant.

R. Bilash and C. Theriault, for the respondent.

Keywords: Endorsement, Insurance Law, Statutory Accident Benefits, Insurance Act, Statutory Accident Benefits Schedule, s. 51(1), Summary Judgment, Limitation Period

Facts:

The appellant was involved in a car accident on June 3, 2004. The appellant’s insurance policy provided for statutory accident benefits as set out in the Statutory Accident Benefits Schedule, O. Reg. 403/96 (the “SABS”).

On August 18, 2004, the appellant, then represented by counsel, filed an Application for Accident Benefits (OCF-1) and a Disability Certificate (OCF-3) with the respondent insurer. The respondent sent the appellant an Election of Benefits form (OCF-10). The appellant returned the OCF-10 on August 20, 2004, indicating she elected income replacement benefits as opposed to non-earner benefits. On September 1, 2004, the respondent advised the appellant via an Explanation of Benefits form (OCF-9) that it would pay weekly income replacement benefits of $344.87. The respondent also told the appellant that she did not qualify for the non-earner benefit, which would have paid $185 per week, as she qualified for the income replacement benefit.

A post-104 week disability assessment found that the appellant no longer met the disability test for entitlement. As a result, the respondent stopped paying the benefits on July 26, 2006.  On September 25, 2009, counsel for the appellant notified the respondent that the appellant intended to pursue a claim for non-earner benefits. The respondent advised the appellant by letter dated January 19, 2010 that she was not entitled to non-earner benefits. The appellant initiated a claim against the respondent on November 28, 2012, claiming damages for breach of contract in refusing accident benefits and for mental distress.

The respondent moved under Rule 20 for summary judgment to dismiss the appellant’s action. The motion judge granted summary judgment, dismissing the appellant’s claim for statutory accident benefits as time-barred. She appeals.

Issue:

Did the motion judge correctly grant the summary judgment motion on the basis that the appellant’s claim was outside the limitation period?

Holding:

The appeal is dismissed. In accordance with counsel’s agreement, the respondent was entitled to its costs of the appeal fixed at $6,000, including disbursements and HST.

Reasoning:

Yes, the appellant’s claim for non-earner benefits was time-barred. Section 281.1(1) of the Insurance Act, R.S.O. 1990, c. I.8, and s. 51(1) of the SABS establish a two-year limitation period for the commencement of litigation or arbitration after the insurer’s refusal to pay a benefit claimed. Additionally, the respondent gave the appellant the OCF-9 form, which had a heading that stated “WARNING: TWO YEAR TIME LIMIT”. Under the heading, the form explained that she had two years from the insurer’s refusal to pay a benefit, or from the reduction of a benefit, to arbitrate or commence a lawsuit.

The appellant argued that the respondent could not rely on its September 1, 2004 denial of the non-earner benefit as triggering the limitation period as she was not eligible for the non-earner benefit at that time. The Court rejected this argument in light of the decisions in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111, and Sagan v. Dominion of Canada General Insurance Co., 2014 ONCA 720. In Sietzema, the Court held that claim was brought outside the limitation period because the refusal to pay non-earner benefits in the OCF-9 form triggered the limitation period in s. 51(1) of the SABS. Any other result would defeat one of the primary purposes of the SABS regime, namely, to ensure the timely submission and resolution of claims for accident benefits.

Therefore, the respondent’s refusal to pay non-earner benefits in the OCF-9 form triggered the limitation period in s. 51(1) of the SABS.  The appellant re-asserted her claim for non-earner benefits well in excess of the limtation period of two years following the termination of her benefits.

Whitchurch-Stouffville (Town) v. Bolender, 2015 ONCA 533

[Hoy A.C.J.O., van Rensburg and Brown JJ.A.]

A. Burton and D. Germain for the appellant

J. R. Hart for the respondent

Keywords:  Municipal Law, Zoning By-laws, Illegal Waste Disposal, Municipal Act, 2001, s. 440, Legal Non-Conforming Use, Planning Act, s. 34(9)

Facts: This appeal concerned activities at two contiguous properties (referred to as the “North Property” and the “South Property”) in the Town of Whitchurch-Stouffville. The respondent Town claimed that the appellant was operating an illegal waste disposal and waste transfer business on both properties. As a result of complaints that fill was being illegally dumped at the properties, the Town brought an application under s. 440 of the Municipal Act, 2001 to enjoin the appellant’s contravention of its zoning and site alteration (fill and dumping) by-laws.

The appellant contended that he has operated a peat moss extraction and triple mix soil preparation business on the South Property on a continuous and uninterrupted basis from the time of its acquisition in 1971 to the present, and that the same business has been operated on the North Property since its acquisition in 1977. The appellant argued that his use of the properties was either a permitted agricultural use or was a legal non-conforming use pursuant to ss. 34(9) of the Planning Act, 1990. Hence, there has been no contravention of the zoning by-law. The appellant also contended that the “fill” activities at the site are part of its operations and not in contravention of the site alteration by-law.

The appellant sought to set aside the order of the trial judge restraining him from contravening the site alteration by-law. He asked for a declaration that his use of the properties for his peat moss and triple mix business dos not contravene the Town’s zoning or site alteration by-laws.

Issues:

  1. Did the application judge err in his approach to and evaluation of the evidence respecting the use of the properties, and if so, should the application judge have converted the application to an action for the trial of certain issues?
  2. Were there findings to support the application judge’s order restraining contravention of the site alteration by-law?

Holding: Appeal allowed.

Reasoning: The application judge erred in concluding that the appellant was operating only a waste disposal business. Further, the order restraining the appellant from violating the site alteration by-law was not supported by any findings, and cannot stand.

(1) In order to obtain an injunction to restrain the violation of its zoning by-law, it was incumbent on the Town to establish that the appellant was in breach of the by-law. The application judge erred, on the record before him, in concluding that the appellant was not carrying on a peat moss or triple mix business at the property, and therefore that the zoning by-law had been contravened. There were three fundamental problems with his approach to and evaluation of the evidence.

  1. The application judge conducted his analysis on the basis that the Town’s evidence was entirely in support of the Town’s position, and that the appellant’s evidence was entirely to the contrary. The judge then rejected the appellant’s evidence in favour of the Town’s. In reality, the evidence of both sides was largely consistent. Many aspects of the Town’s evidence were corroborative of the appellant’s position.
  2. The application judge erred in resolving contradictions in the evidence by characterizing the Town’s evidence as “objective”, “objectively assembled” and “independent verification”. However, all five of the affidavits from the appellant’s witnesses offered personal observations from their direct dealings with the appellant’s business, and four of the affiants were arm’s length. The Town’s evidence was no more objective and independent than the evidence offered by the appellant.
  3. The application judge appears to have taken into account irrelevant considerations. He appears to have been influenced by the Town’s materials evidencing alleged Environmental Protection Act violations. However, the issue before the judge was not whether the appellant violated environmental laws administered by the Ministry of the Environment, but whether and in what respect the Town’s by-laws were being contravened.

Furthermore, the judge was faced with a dispute over two pieces of evidence. Instead of directing a testing of the evidence through the trial of an issue, he erroneously attempted to resolve the conflicting positions solely on the written record.

(2) The judge erred in restraining violations of the site alteration by-law without making the necessary factual findings. He restricted his factual findings to those in support of his conclusion that the properties were being used for waste disposal rather than peat moss and triple mix. He did not make any findings about the site alteration by-law, and therefore his order in that regard was in error and must be set aside.

Gill v Iqbal, 2015 ONCA 503

[Doherty, Pepall and Huscroft JJ.A.]

Counsel:

S. S. Merwar, for the plaintiffs (appellants)

J. S. Winny, for the defendants (respondents)

Keywords: Endorsement, Summary Judgment, Adjournment

Glasford v Canadian Imperial Bank of Commerce, 2015 ONCA 523

[Doherty, Pepall and Huscroft JJ.A.]

Counsel:

K. O. Glasford (n/k/a K. O. Vinton), appearing in person

B. Shaw, appearing for the respondents (defendants) CIBC and FirstCaribbean International Bank (Barbados) Limited

Keywords: Contracts, Torts, Jurisdiction, Presumptive Connecting Factor, Appropriate Forum, Forum Non Conveniens

R v Nwagwu, 2015 ONCA 526

[Strathy CJO, MacPherson and Benotto JJ.A.]

Counsel:

H. Pringle, for the appellant, on the conviction appeal

L. P. Strezos and M. Austen, duty counsel on behalf of the appellant, on the sentence appeal

The appellant, Chibuike Alen Nwagwu, appearing in person by video conference

C. L. Tier, for the respondent

Keywords: Criminal law, Carrying a Concealed Weapon, Possession of a Weapon for a Dangerous Purpose, Criminal Code, s. 684, Ineffective Assistance of Counsel, Unreliability of Verdict, Sentencing, Totality Principle

R v Zachariou, 2015 ONCA 527

[Strathy C.J.O., MacPherson and Benotto JJ.A.]

Counsel:

D. E. Harris, for the appellant D. Zacharious

M. Halfyard, for the appellant J. R. Petersen

J. C. Klukach, for the respondent

Keywords: Criminal Law, Sexual Assault, Consent, Evidence, Admissibility, Credibility of Complainant, Criminal Code, s. 276(2), Relevance of Past Sexual Activity, Jury Charge, Complainant’s Prior Consistent Statements, Probative Value, Prejudicial Effect,  Risk of Stereotypical Reasoning

R v H E, 2015 ONCA 531

[Hoy A.C.J.O., Doherty and Benotto JJ.A.]

Counsel:

P. G. Cowle, for the appellant

S. Wilson, for the respondent

Keywords: Criminal Law, Sentencing, Sexual Assault, Assault, Concurrent Sentences, Sentence Demonstratively Unfit, Reincarceration, Mitigating Factors, No Injuries, Risk to Re-offend, Credit for Pre-Sentence House Arrest, Irrelevant Considerations, Cultural Impact

R v Edwards, 2015 ONCA 537

[Hoy A.C.J.O and Simmons and Blair JJ.A.]

Counsel:

P. J. I. Alexander, for the appellant.

R. A. Pinnock, for the respondent.

Keywords: Endorsement, Criminal Law, Sentencing, Fresh Evidence on Appeal, Fraud Over $5000, Credit for Pre-Sentence Custody, Deportation Order

R v Hafizi, 2015 ONCA 534

[MacPherson, Simmons and LaForme JJ.A.]

Counsel:

T. Harrison and A. Christian-Brown, for the appellant.

D. Lamb and S. Friedman, for the respondent.

Keywords: Endorsement, Criminal Law, Rowbotham Application, R. v. Peterman, Publicly Funded Counsel, Right to Choose Counsel, Fisher Order, Criminal Code, s 676.1, Costs

R v Woodcock, 2015 ONCA 535

[MacPherson, Simmons and LaForme JJ.A.]

Counsel:

J. Lockyer and M. Caterina, for the appellant.

L. Cecchetto, for the respondent.

Keywords: Criminal Law, Second Degree Murder, Manslaughter, Aggravated Assault, Causation, Expert Evidence, Self-Defence, Instructions to Jury