Good evening.

The Court of Appeal’s civil decisions this week covered a number of areas including insurance, securities (secondary market misrepresentations), dismissal for delay, family, debtor-creditor, limitation periods, summary judgment and franchising in the class action context.  There were also numerous short civil and criminal law endorsements.

Please 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 Decisions

Conundrum Capital Corporation v. Century Plumbing and Heating, 2016 ONCA 20

Keywords: Real Property, Negligence, Summary Judgment, Evidence

McLean v. Boettcher, 2016 ONCA 14

Keywords:  Real Estate, Dismissal for Delay, Setting Aside, Settlement Discussions, Reid v. Dow Corning Corp. Factors

Cross Bridges Inc. v. Z-Teca Foods Inc., 2016 ONCA 27

Keywords: Debtor-Creditor, Loan Agreements, Limitation Periods, Extension, Acknowledgment of Debt, Limitations Act, 2002, section 13, Summary Judgment, Costs

Goldsmith v. National Bank of Canada, 2016 ONCA 22

Keywords: Securities Law, Ontario Securities Act, Part XXIII.1, ss. 138.3, Secondary Market Misrepresentations, Definition of “Promoter” and “Influential Person”

Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33

Keywords: Contracts, Exculpatory Clause, Inducement, Misrepresentation, Estoppel, Summary Judgment

1250264 Ontario Inc. v. Pet Valu Canada Inc., 2016 ONCA 24

Keywords: Franchising Law, Arthur Wishart Act, sections 3 and 5, Franchise Disclosure, Material Changes, Duty of Fair Dealing, Class Actions, Common Issues, Procedural Fairness, Right to be Heard

Bonaccorso v. Optimum Insurance Company Inc., 2016 ONCA 34

Keywords: Insurance Law, MVA, Statutory Accident Benefits, Limitation Period, Summary Judgment

Cohen v. Matlofsky, 2016 ONCA 29

Keywords: Family Law, Spousal Support, Material Change in Circumstances, Compensatory Claim, Adverse Inference, Family Law Rules, Bias

ResQ Auto Glass Inc. v. Co-operators General Insurance Company, 2016 ONCA 30

Keywords: Contracts, Breach, Insurance, Whether Rights Assigned, Breach, Torts, Intentional Interference with Economic Interests, Unlawful Acts with the Intention of Causing Harm Doctrines of Estoppel by Convention and Representation

1871335 Ontario Limited v. Acce International Ltd., 2016 ONCA 41

Keywords: Debtor-Creditor, Promissory Notes, Acceleration Clause, Default, Civil Procedure, Applications, Rules of Civil Procedure, Rule 14.05(3)(d), Determination of Rights, Interpretation of Instrument

For a list of Civil Law Endorsements, click here

For a list of Criminal and Capacity decisions, click here

Civil Decisions 

Conundrum Capital Corporation v. Century Plumbing and Heating, 2016 ONCA 20

[MacPherson, Pepall and Hourigan JJ.A.]

Counsel:

Christopher Morrison and Joel Cormier, for the appellant

John Downing, for the respondents

Keywords: Real Property, Negligence, Summary Judgment, Evidence

Facts:

The appellant, Century Plumbing and Heating, is a defendant in several actions relating to a flood in the TD Canada Trust Tower in Toronto owned by Brookfield.  The respondents, ADT Security Services Canada Inc., brought five motions for summary judgment seeking orders removing them as a party from all actions relating to the flood.  All of the other parties consented to the removal except the appellant.  The motion judge awarded summary judgment dismissing the claims against ADT and the appellant appeals the decision on three grounds.

Issues:

  1. Did the motion judge err by stating that all parties agreed that the Building Automation System (“BAS”) on the premises had frozen on the night of the flood?
  2. Did the motion judge err by not considering video evidence tendered by the appellant?
  3. Did the motion judge err in relying on inadmissible evidence including a letter produced by Brookfield to make factual findings against the appellant’s position on the issue of the 1:06 AM alarm?

Holding: Appeal Dismissed

Reasoning:

  1. The court did not accept the appellant’s submission. It noted that the evidence also included the defendant Brookfield’s admission, which was very much against its interest, that its BAS system had frozen at the relevant time.
  2. The court agreed with the motion judge, stating that the motion judge pointed out that there was about a six hour difference between the flood time and the time shown on the video.  The video failed to establish a genuine issue requiring trial.
  3. The court ruled that irrespective of that evidence, there was other admissible evidence to support the motion judge’s conclusion that the 1:24 AM alarm related to low water pressure, whereas, the 1:06 AM alarm could not have related to anything serious.  Further, there was no reliable evidence to the contrary.

McLean v. Boettcher, 2016 ONCA 14

[Juriansz, Hourigan and Brown JJ.A.]

Counsel:

William G. Scott, for the appellants

Suzanne E. Hunt, for the respondent The Corporation of the Township of Cramahe

Tanisha G. Tulloch, for the respondents William Taggart and Taggart & Carroll LLP

No one appearing for the respondents Tracy Boettcher, Elizabeth Boettcher and John Boettcher

Keywords: Real Estate, Dismissal for Delay, Setting Aside, Settlement Discussions, Reid v. Dow Corning Corp. Factors

Facts:

The appellants appeal the order of the motion judge dismissing their motion to set aside the registrar’s dismissal of their action for delay. The action relates to a residential real estate purchase agreement dated February 24, 2006. The appellants commenced an action on June 2, 2008 against the defendants. In January 2010, the parties mutually agreed to postpone litigation to investigate an alternative solution to the dispute. The registrar dismissed the action for delay on November 15, 2011. The motion to set aside the registrar’s dismissal was served March 22, 2012. However, there were a series of adjournments. On July 29, 2013, the motion was dismissed, with leave to the appellants to bring a new motion. The appellants did not did not bring the second motion to set aside the dismissal for delay for another 14 months. The motion judge dismissed the second motion for delay because the presumed prejudice to the defendants that had not been rebutted and there was actual prejudice because a witness had died.

Issues:

  1. Did the motion judge err in finding that the death of a witness resulted in actual prejudice?
  2. Did the motion judge err in finding that the 14-month delay was fatal to the claim?

Holding: Appeal dismissed.

Reasoning:

  1. No. Although it was possible that the trial would not have been held before the witness’ death, the court was satisfied there was ample other evidence upon which the trial judge could find the actual prejudice that had not been rebutted.
  2. No. The motion judge applied the correct test, carefully considering the factors set out in Reid v. Dow Corning Corp. Although part of the delay was the due to the entirely laudable effort to pursue a cost-effective solution outside of the courts, this did not excuse the failure to move the action forward. The Reid factors provide a structured approach to reconciling the principle that civil actions should be decided on their merits, with the principles that civil actions should be resolved within a reasonable timeframe and that the public interest is served by promoting the timely resolution of disputes. It was for the motion judge to balance these competing principles and weigh the 14 month delay in the context of the entire delay and all the circumstances.

Cross Bridges Inc. v. Z-Teca Foods Inc., 2016 ONCA 27

[MacPherson, Pepall and Hourigan JJ.A.]

Counsel:

Romesh Hettiarachchi, for the appellant Julian Binavince, for the respondent

Keywords: Debtor-Creditor, Loan Agreements, Limitation Periods, Extension, Acknowledgment of Debt, Limitations Act, 2002, section 13, Summary Judgment, Costs

Facts:

The appellant, Cross Bridges Inc. (“Cross Bridges”) loaned money to the respondent, Z-Teca Foods Inc. (“Z-Teca”) pursuant to the terms of a loan agreement.  Cross Bridges made demand for payment and pursuant to the loan agreement, payment was required within 60 days of demand.  Z-Teca made some payments, the last being a cheque for the payment of interest.  The cheque was deposited by Cross Bridges at TD Bank on January 10, 2011.  Two days after deposit, TD Bank returned the cheque as NSF.

Cross Bridges issued a statement of claim on January 17, 2013, for claims including damages for the debt owing under the parties’ loan agreement.  Z-Teca pleaded that the claim was barred due to the expiry of the two-year limitation period under the Limitations Act, 2002.  Cross Bridges brought a summary judgement motion requesting an order declaring that it had brought its claim within the limitation period and that the only genuine issue was the amount of its entitlement.

The motion judge held that the limitation period started to run on January 10, 2011, when the cheque was presented to the bank for payment making the January 17, 2013 claim statute barred.

Issues:

  1. Did the motion judge err in finding that the limitation period ran from the date of presentation of the cheque to the bank on January 10, 2011, meaning that the limitation period expired on January 10, 2013?
  2. Is the limitation defence unavailable?
  3. Did the motion judge err in not permitting a set-off of the adverse costs award against the indebtedness?

Holding: Appeal dismissed.

Reasoning:

  1. No.  The limitation period began to run on December 20, 2009 which was 60 days after demand was made.  However, s. 13 of the Limitations Act, 2002 provides that the limitation clock can be reset by an acknowledgement of debt prior to the expiry of the limitation period.  Z-Teca last acknowledged its indebtedness on January 10, 2011, the date the cheque was presented to TD Bank for payment.  The motion judge correctly concluded that the two-year limitation period was restarted for a further two-year period on January 10, 2011.
  2. No.  Cross Bridges argued that the limitation defence should not be allowed because Z-Teca acknowledged its indebtedness in cross-examination on its affidavit filed on the summary judgment motion. When read in its totality, the admission of indebtedness by Z-Teca was qualified and stated to be subject to the limitation period defence. For an acknowledgement to reset the limitation clock under ss. 13(9) of the Limitations Act, 2002, it cannot be made after the expiry of the limitation period. In this instance, the cross-examination occurred well after the expiry date.
  3. No. The motion judge was not required to order a set-off. There were no supporting materials provided to him on this point and in light of Cross Bridges’ lack of success on the motion, there was no reason to interfere on the issue of costs.

Goldsmith v. National Bank of Canada, 2016 ONCA 22

[Weiler, Pardu and Benotto JJ.A.]

Paul J. Bates, Daniel E.H. Bach and S. Sajjad Nematollahi, for the appellant

R. Paul Steep, Eric S. Block, Byron Shaw and Jessica Laham, for the respondent

Keywords: Securities Law, Ontario Securities Act, Part XXIII.1, ss. 138.3, Secondary Market Misrepresentations, Definition of “Promoter” and “Influential Person”

Facts:

Poseidon Concepts Corp. (“Poseidon”) was created in 2011 through a reorganization of Open Range Energy Corp (“Open Range”). In a series of corrective disclosures, Poseidon revealed that it had materially overstated revenues and accounts receivable. In 2013, it filed for protection under the Companies’ Creditors Arrangement Act. Poseidon was subsequently delisted from public offering and its shares became worthless. Part XXIII.1 of Ontario’s Securities Act (“OSA“), provides a right of action against an “influential person” who “knowingly influenced” the release of a document containing a misrepresentation. The appellant argued that the National Bank of Canada (“NBC”) was liable for those misrepresentations because it was a “promoter” (and, consequently, an “influential person”) that “knowingly influenced” the release of the impugned documents – a Circular and Prospectus. The motion judge dismissed this argument on the basis that the appellant had not offered a plausible interpretation of the term “promoter” in the OSA. The motion judge concluded that to succeed at trial, the plaintiff would have to show that the defendant bank or professional adviser provided more than just conventional banking or advisory services – rather that it directly or indirectly took the initiative in founding, organizing or substantially reorganizing the business of the issuer.

Issues:

  1. Did the motion judge err in concluding that the promoter provisions cannot capture the ordinary functions discharged by banks or financial advisors?

Holding: Appeal dismissed.

Reasoning:

  1. No. OSA, Part XXIII.1, ss.138.3 provides a carefully calibrated head of liability for secondary market misrepresentations, striking a delicate balance between various market participants. The text, context, and purpose of the promoter provisions all support the conclusion that a person or company that merely provides advice for or assists during an issuer’s organization or reorganization cannot be a promoter. A promoter is someone who plays a vital or leading role in the organization or reorganization of an issuer’s business. Anything less is insufficient. An expansive definition of promotor would capture (and impose the risk of liability on) ordinary, everyday activities of many capital market participants. This interpretation would risk doing significant harm to the capital markets and would undermine the legislative purposes of the OSA set out at ss.1.1:
    1. to provide protection to investors from unfair, improper or fraudulent practices; and
    2. to foster fair and efficient capital markets and confidence in capital markets.

A nebulous, indeterminate, and far-reaching basis for liability does not respect the careful balance struck in Part XXIII.1.

The court agreed with the motion judge that “something more” was required before NBC could be found to be a promoter. The motion judge suggested that a plausible interpretation would require a plaintiff to show that a defendant “took steps, directly or indirectly, to (actually) found or organize the business in question – for example, by funding the required incorporations, organizing the board of directors, actively managing the company or making the key business.” The evidence offered by the appellant was insufficient to establish that NBC was a promoter.

 Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33

[Juriansz, Hourigan and Brown JJ.A.]

Counsel: Marek Z. Tufman and Eleonora Izmaylov, for the appellant

Christopher R. Dunn and Jordan M. Black, for the respondent

Keywords: Contracts, Exculpatory Clause, Inducement, Misrepresentation, Estoppel, Summary Judgment

Facts:

The respondent had supplied security and alarm monitoring services to the appellant. The appellant’s jewelry business was robbed, and the appellant claimed that the system failed when it was robbed. The motion judge granted summary judgment in favour of the respondent because the contract included a clause that noted the possibility of system failure, recommended that the appellant obtain insurance to cover property loss and finally provided that the respondent would not be liable for any loss arising from the provision of the products and services. The appellant sought to set aside the summary judgment.

Issues: Should the summary judgment be set aside?

Holding: Appeal Dismissed.

Reasoning:

No.  The exculpatory clause is a part of a commercial contract between two corporate entities. The evidence did not suggest that the appellant was induced to enter into the contract by a misrepresentation.  The motion judge’s decision was entirely consistent with the decision in Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co., which provided that, in the commercial setting, in the absence of fraud or other improper conduct inducing a plaintiff to enter into a contract, the onus must rest upon the plaintiff to review the document and satisfy itself of its advantages and disadvantages.

An estoppel argument also failed on the basis there was no misrepresentation on the evidence.

1250264 Ontario Inc. v. Pet Valu Canada Inc., 2016 ONCA 24

[Hoy A.C.J.O., MacFarland and Lauwers JJ.A.]

Counsel:

Geoffrey B. Shaw, Derek Ronde and Eric Mayzel, for the appellant/respondent by way of cross-appeal

Louis Sokolov and Jean-Marc Leclerc, for the respondent/appellant by way of cross-appeal

Keywords:   Franchising Law, Arthur Wishart Act, sections 3 and 5, Franchise Disclosure, Material Changes, Duty of Fair Dealing, Class Actions, Common Issues, Procedural Fairness, Right to be Heard

Facts:

The plaintiff, 1250264 Ontario Inc., commenced a class action against Pet Valu alleging, among other things, that Pet Valu had not shared volume rebates it received from suppliers with franchisees. The certification judge concluded that the only claim advanced by the plaintiff that was appropriate for certification was its claim in relation to the volume rebates. He identified the common issues arising out of the plaintiff’s volume rebates claim and invited the parties to reach appropriate language to express those issues. The parties were unable to agree upon the wording of the common issues and, after a further hearing, the certification judge released reasons defining “Volume Rebates” and setting out the seven common issues in relation to the volume rebates claim. Pet Valu brought a motion for summary judgment on the seven common issues.

The motion judge released reasons dismissing the claims regarding common issues 1 through 5. The motion judge suggested to counsel that the common issues be amended to add a new one, dealing specifically with the plaintiff’s new “focus” on purchasing power. The plaintiff brought a motion to amend the statement of claim and add an 8th common issue dealing with purchasing power. The motion judge dismissed the motion to amend on the ground of prejudice. The motion judge read additional language into common issue 6(i), as framed by the certification judge. The motion judge also concluded that Pet Valu had breached s. 3 of the Arthur Wishart Act (AWA).  Pet Valu appealed and the plaintiff cross-appealed.

Issues:

  1. Did the motion judge err in dismissing the plaintiff’s motion to amend to add an 8th common issue?
  2. Did the motion judge err in interpreting issue 6(i) as also asking if “significant volume discounts” were received by the franchisor?
  3. Did the motion judge err in concluding that Pet Valu breached s. 3 of the AWA?

Holding: Appeal allowed. Cross-appeal dismissed. Common issues 6(i), (iii) and (iv) found in favour of Pet Valu. Plaintiff’s action against Pet Valu dismissed.

Reasoning:

  1. No, the motion judge did not err in denying the plaintiff’s motion to amend its statement of claim to add an 8th common issue. The Court of Appeal in Brown v. Canada (Attorney General) stated that, in the class action context, the power to amend the statement of claim and other aspects of the claim, such as the proposed common issues, “should be exercised with caution and restraint”. When the amendment is sought at the conclusion of an otherwise dispositive summary judgment motion, even greater caution and restraint is called for. The court agreed with the motion judge, who found that allowing a pleadings amendment and the addition of the newly proposed common issue 8 would cause actual prejudice to Pet Valu that was not compensable in costs. Absent the motion judge’s intervention to suggest the adding of a new common issue, the litigation would have concluded and the defendant would have been in a position to obtain complete summary judgment on the existing common issues. Certifying a new common issue that was fundamentally different than the issues certified more than three years earlier would have been fundamentally unfair to Pet Valu.
  2. Yes. The precise wording of common issue 6(i) was determined by the certification judge after submissions by the parties and after careful consideration. The addition of the words “significant volume discounts” was material. They parrot the “significant volume discount” language in the rejected proposed amendments to the statement of claim and the proposed common issue 8. The addition of these words was tantamount to an amendment of common issue 6(i). The motion judge recast common issue 6(i) on his own initiative, following the completion of argument on the summary judgment motion, without advising Pet Valu that he proposed to make this change and affording Pet Valu the opportunity to make submissions. In effect, he gave judgment on an issue that was never certified. Doing so was fundamentally unfair to Pet Valu. Pet Valu’s submissions would undoubtedly have been different if it were addressing a proposed change to the language of common issue 6, and not the proposed addition of another common issue.
  3. Yes. The motion judge effectively found that Pet Valu had breached s. 3 of the AWA by failing to disclose information necessary for the appellants to verify whether or not Pet Valu had breached a representation under the franchise agreement that Pet Valu received “significant volume discounts”. It is akin to the pre-litigation duty of disclosure that went well beyond the scope of s. 3 which was rejected in Spina v. Shoppers Drug Mart Inc. Section 3 imposes a duty of fair dealing on the franchisor in the “performance and enforcement” of the franchise agreement. If non-disclosure can result in a breach s. 3, it did not do so in this case. The disclosure was not withheld in bad faith in connection with Pet Valu’s performance or enforcement of the franchise agreement. A failure to include all material facts in a disclosure document should not be characterized as unfair dealing in the “performance” of a franchise agreement. According to s. 5, the franchisor is required to provide a disclosure document before the prospective franchisee signs the franchise agreement and to disclose any material change. Moreover, ss. 6 and 7 of the AWA provide specific remedies for the franchisor’s failure to comply with s. 5.

Bonaccorso v. Optimum Insurance Company Inc., 2016 ONCA 34

[Cronk, Tulloch and van Rensburg JJ.A]

Counsel:

Daniel Roncari, for the appellant

Amanda M. Lennox and Rebecca J. Brown, for the respondent

Keywords: Insurance Law, MVA, Statutory Accident Benefits, Limitation Period, Summary Judgment

Facts:

In 2008, the appellant was injured in a car accident.  She received income replacement benefits until she returned to work in 2009.  The insurance company sent her a letter in 2010, notifying her that no further benefits would be payable and her benefits were going to be discontinued.

The appellant was employed until 2011, when she stopped working, allegedly due to the injuries she sustained in the accident.  The appellant requested a reinstatement of replacement benefits in 2012.   The respondent denied the request on the basis that the limitation period had passed.

The appellant brought an action, and the motion judge concluded that the appellant’s claim for further replacement benefits was statute-barred and granted the insurance company summary judgment.

Issues:

Did the motion judge err in finding that the appellant’s claim for income replacement benefits was statute-barred?

Holding:

Appeal Dismissed

Reasoning:

No.  The court held that the motion judge was correct in determining that this was an appropriate case for summary judgment.  The court held that the motion judge had sufficient material before him to make a decision on the merits of the claim, and in particular on the defence that the claim was statute barred.The court held that the insurer’s refusal to grant the appellant’s benefits was not premature.  The insurer’s letter from 2010 was a valid termination of benefits and the two-year limitation period began to run on this date.  For those reasons the appeal was dismissed.

Cohen v. Matlofsky, 2016 ONCA 29

[Simmons, LaForme and Huscroft JJ.A.]

Counsel:

Claude Cohen, in person, by telephone

Gerald Matlofsky, in person

Keywords: Family Law, Spousal Support, Material Change in Circumstances, Compensatory Claim, Adverse Inference, Family Law Rules, Bias

Facts:

The appellant, Mr. Matlofsky, appealed an order dismissing his motion to change the amount of spousal support he pays to the respondent, Ms. Cohen.  The parties consented to an order in 2011 that requires Mr. Matlofsky to pay $1800/month based on his $100,000/year income and Ms. Cohen’s annual income of $39,000.  Mr. Matlofsky wanted to terminate the spousal support payable because his income had declined to an average of about $86,000 per year over the preceding three years. Also, he had evidence that Ms. Cohen had recently purchased a home in Paris, France worth over $700,000 Canadian.

Issues:

  1. Did the motion judge err in failing to draw an adverse inference against Ms. Cohen?
  2. Did the motion judge err in failing to find a material change in circumstances?
  3. Did the motion judge act as an advocate for Ms. Cohen and succumb to bias in her favour?

Holding: Appeal Dismissed.

Reasoning:

  1. No.  The motion judge did draw an adverse inference against Ms. Cohen by refusing to accept her position that she was now almost completely dependent on Mr. Matlofsky’s spousal support and denied Ms. Cohen’s request to increase spousal support for that reason.  However, there was no evidence to support the argument that Ms. Cohen was in a position to earn more than $39,000.
  2. No.  There was no evidence to show that Mr. Matlofsky’s current financial situation was a basis for a finding of a material change in circumstances.  Mr. Matlofsky experienced a bad year in 2012 but at the time of the motion, his income was trending upwards.
  3. No.  Mr. Matlofsky argued that the motion judge improperly treated Ms. Cohen’s request for an increase in spousal support in response to Mr. Matlofsky’s motion as a cross-motion.  The Family Law Rules allow a responding party to make a request to amend an existing order in response to a moving party’s motion.

The motion judge was entitled to rely on the existence of a compensatory aspect to Ms. Cohen’s support even where she did not use the term “compensatory”.  Ms. Cohen’s supporting affidavit referred to the parties having a traditional marriage in which she sacrificed her own career to support Mr. Matlofsky’s.  This amounted to a claim that there was a compensatory aspect to her spousal support.

The only instances where the motion judge relied on the unsworn statements of Ms. Cohen were where they assisted Mr. Matlofsky.  The motion judge was alive to the issue of Ms. Cohen making unsworn statements and made no error in her approach.  Finally, nothing on the record suggested that the motion judge was biased in favour of Ms. Cohen.

ResQ Auto Glass Inc. v. Co-operators General Insurance Company, 2016 ONCA 30

[Simmons, LaForme and Huscroft JJ.A.]

H. Richard Bennett and Joseph Figliomeni, for the appellant

Derek V. Abreu, for the respondent

Keywords: Contracts, Breach, Insurance, Whether Rights Assigned, Breach, Torts, Intentional Interference with Economic Interests, Unlawful Acts with the Intention of Causing Harm, Doctrines of Estoppel by Convention and Representation

Facts:

In its statement of claim, ResQ claimed $208,359.57 on account of windshield repairs to 1,844 automobiles insured by Co-operators effected between February 2012 and July 2014. ResQ asserted that it had obtained assignments from the automobile owners of their right to receive direct payments for the repairs from their insurer by means of an assignment clause. ResQ asserted that Co-operators breached its contract with ResQ by paying less than the market rate, alleged to be $100. In addition, ResQ claimed that Co-operators were liable for the tort of intentional interference with economic interests. The motion judge dismissed ResQ’s motion for summary judgment and granted Co-operators motion for dismissal of ResQ’s action. ResQ Auto Glass Inc. appealed.

Issues:

  1. Did the motion judge err in failing to construe the transaction between ResQ and the insured as a valid assignment at law?
  2. Did the motion judge err in failing to consider: Co-operators’ duty to assess the cost of damage in each particular case; Co-operators’ deemed admission that the cost of damage was $100; and the doctrines of estoppel by convention and representation?
  3. Did the motion judge err in failing to find the January 23, 2012 letter was an enforceable promise to pay ResQ the market rate for windshield repairs and in failing to draw an adverse inference against Co-operators concerning what the market rate was because of Co-operators’ refusal to disclose relevant information?
  4. Did the motion judge err in failing to address its claim in tort and in failing to find that Co-operators engaged in unlawful acts with the intention of causing harm to ResQ and that it did in fact cause harm to ResQ?

Holding: Appeal dismissed.

Reasoning:

  1. No. The windshield repairs at issue were completed under individual contracts between Co-operators and ResQ and that in each case, prior to the repair being undertaken, Co-operators offered to pay for the repair by issuing a repair authorization for $50. ResQ accepted the offer by completing the repair. The purported assignment of the right to receive proceeds of insurance was ineffective because, in the context of these particular transactions, the car owners had paid nothing, had no claim against Co-operators and therefore had nothing to assign.
  2. No. Co-operators gave clear notice of its intention not to continue its previous practice of paying $100 for windshield repairs in a letter dated January 23, 2012. ResQ chose to continue to provide repair services to Co-operators’ insureds after receiving the letter and continued to act on repair authorizations received from Co-operators specifying a price of $50. There was an individual contract for each windshield repair at a specified price. There was no basis on which ResQ could assert that Co-operators were bound by the terms of prior dealings in relation to new contracts or that Co-operators had any additional duties to its insureds.
  3. No. The motion judge construed the effect of the January 23, 2012 letter as being notice to ResQ that Co-operators would no longer pay the amount it had been paying for windshield repairs and that, in future, it would pay $50. The statement about paying market rate for windshield repairs did not derogate from the specificity of this notice.
  4. No. ResQ failed to demonstrate that Co-operators engaged in any unlawful conduct vis-à-vis its insureds. In relation to each automobile, Co-operators arranged to have the automobile repaired and to pay the cost of the repair directly to the repairer, ResQ. In these circumstances, Co-operators breached no duties to its insureds. Co-operators entered into individual contracts with ResQ at a price Co-operators quoted in each case. ResQ was free to accept or reject the price that was offered. ResQ failed to establish any basis for asserting Co-operators’ conduct in this regard was unlawful.

1871335 Ontario Limited v. Acce International Ltd., 2016 ONCA 41

[Pepall, Pardu and Roberts JJ.A.]

Peter M. Callahan, for the appellants

Stephen M. Turk, for the respondent

Keywords: Debtor-Creditor, Promissory Notes, Acceleration Clause, Default, Civil Procedure, Applications, Rules of Civil Procedure, Rule 14.05(3)(d), Determination of Rights, Interpretation of Instrument

Facts:

Joan Berta sold her shares in Applied Consumer & Clinical Evaluations Inc. to the appellant ACCE. Part of the purchase price was paid by a Vendor Take Back Note (“VTB”) payable to the respondent, 1831335 Ontario Ltd. After some initial payments, the appellants were required to make quarterly payments. The VTB also contained an acceleration clause for payments in default. When payments were not received, counsel for the respondent sent a letter to the appellants, informing them that they were in default. As there were no facts in dispute, this case was resolved via an application pursuant to rule 14.05(3)(d) of the Rules of Civil Procedure. The application judge decided that the appellants were in default of two quarterly payments, and that written notice had been provided through the letter. The decision was appealed.

Issues:

  1. Did the application judge err in concluding that the acceleration clause in the VTB had been triggered, and giving judgment for the balance of the quarterly payments due under the note?

Holding: Appeal dismissed.

Reasoning:

  1. No. The application judge’s interpretation of the promissory note in this specific factual context was entitled to deference. His conclusion that failure to make the full payment due October 1, 2014 and the payment due January 1, 2015 amounted to default in making two quarterly installments was reasonable. Although part payment was made after notice was given, the full default which triggered the notice was not cured and it was reasonable for the application judge to conclude that this entitled the respondent to enforce the acceleration clause. Since the VTB note only required that notice of default be in writing, notice was properly given. The application judge’s conclusions were all reasonable on the evidence before him.

Civil Endorsements

Longaphie v. Canerector Inc., 2016 ONCA 26

[Weiler, LaForme and Huscroft JJ.A.]

Counsel:

Matthew R. Vella, for the appellant

Lia Moody, for the respondent

Keywords: Employment Law, Summary Judgment, Reasonable Notice, Mitigation Income, Appeal Dismissed

Obermuller v. Kenfinch Co-operative Housing Inc., 2016 ONCA 21 (Appeal Book Endorsement)

[Weiler, LaForme and Huscroft JJ.A.]

Counsel:

Cheryl Obermuller, acting in person

Celia Chandler, for the respondent

Keywords: Real Property, Co-Operative Housing, Eviction, Extension of Time to Appeal, Appeal Dismissed

Hodder v. Lindhorst, 2016 ONCA 42

[Pepall, Pardu and Roberts JJ.A.]

Robert Maki, for the appellant

Brian A. Pickard, for the respondents

Keywords: Civil Procedure, Vexatious Litigants, Appeal Dismissed

Ontario Review Board Decisions

Halat (Re), 2016 ONCA 32

[Cronk, Juriansz and Tulloch JJ.A.]

Counsel: Stephen F. Gehl, for the appellant Derek Halat

Michael Callaghan, for the respondent Crown

Gavin S. MacKenzie, for the respondent Person in Charge of Centre for Addiction and Mental Health

Keywords: Criminal Law, Detention Order, Mental Health,, Risk to Public Safety, Appeal Dismissed

Conway (Re), 2016 ONCA 36

[MacPherson, Watt and Miller JJ.A.]

Counsel:

Suzan E. Fraser, for the appellant

Kevin Rawluk, for the respondent Crown

Janice Blackburn, for the Person in Charge of St. Joseph’s Healthcare

Keywords: Criminal Law, Detention Order, Mental Health, Risk to Public Safety, Fresh Evidence, Appeal Dismissed

Criminal Decisions

R. v. Amante, 2016 ONCA 18

[Cronk, Tulloch and van Rensburg JJ.A.]

Counsel:

Christopher D. Hicks, for the appellant

Andrew Nisker, for the respondent

Keywords: Criminal Law, Possession of Cocaine for Purposes of Trafficking, Sentencing Appeal, Appeal Dismissed

R. v. Desmanche, 2016 ONCA 17

[Cronk, Tulloch and van Rensburg JJ.A.]

Counsel:

Pamela Munn, for the appellant

Joanne Stuart, for the respondent

Keywords: Criminal Law, Manslaughter, Misapprehension of Trial Testimony, Sentencing, Enhanced Credit, Sentencing Appeal Allowed, Conviction Appeal Dismissed

 R. v. Downey, 2016 ONCA 19

[Cronk, Tulloch and van Rensburg JJ.A.]

Counsel:

Tyler R. Botten, for the appellant

Gillian Roberts, for the respondent

Keywords: Criminal Law, Procurement of Prostitution, Corrective Jury Instructions, Appeal Dismissed

R. v. Gatfield, 2016 ONCA 23

[Cronk, Tulloch and van Rensburg JJ.A.]

Counsel:

Mark Halfyard and Breana Vandebeek, for the applicant

Michael Bernstein, for the respondent

Keywords: Criminal Law, Second Degree Murder, Life Imprisonment, Review of Order, Application for Extension, No Reasonable Explanation for Delay, Appeal Dismissed

R. v. Johnson, 2016 ONCA 31

[MacPherson, Watt and Miller JJ.A.]

Counsel:

Heather Pringle, for the appellant

Lorna Bolton, for the respondent

Keywords: Criminal Law, Attempted Murder, Attempted Robbery, Firearms Offences, Fresh Evidence, Appeal Dismissed

R. v. Smith, 2016 ONCA 25

[Watt, Lauwers and Brown JJ.A.]

Counsel:

Paul Burstein, for the appellant

Jason A. Gorda, for the respondent

Keywords: Criminal Law, Firearms Offences, Possession of Marijuana for Purpose of Trafficking, Unreasonable Verdicts, Circumstantial Evidence, Conviction Appeal Dismissed, Sentence Appeal Allowed

 R v. Malcolm-Evans, 2016 ONCA 28

[Cronk, Tulloch and van Rensburg JJ.A.]

Counsel:

Breana Vandebeek, for the appellant

James D.M. Clark, for the respondent

Keywords: Criminal Law, Possession of Cocaine for the Purposes of Trafficking, Possession of Proceeds of Crime, Evidence, Admissibility, Reasonable Doubt, Jury Instructions, Appeal Dismissed

R. v. Hayes, 2016 ONCA 47

[MacPherson, Watt and Miller JJ.A.]

Counsel:

Robert C. Sheppard, for the appellant

Chris Chorney, for the respondent

Keywords: Criminal Law, Robbery, Sentencing, Pre-Sentence Custody Credit, Principle of Proportionality, Principle of Totality, Appeal Dismissed

R. v. Khanna, 2016 ONCA 39

[MacPherson, Watt and Miller JJ.A.]

Counsel:

Kristin Bailey, for the appellant

John McInnes, for the respondent

Keywords: Criminal Law, Summary Conviction, Assault with a Weapon, Collateral Facts Rule, Leave to Appeal Refused

 R. v. McLean, 2016 ONCA 38

[MacPherson, Watt and Miller JJ.A.]

Counsel:

Giuseppe Cipriano, for the appellant

John McInnes, for the respondent

Keywords: Criminal Law, Summary Conviction, Failing to Stop Vehicle, Police Pursuit, Leave to Appeal Refused

 R. v. Shakir, 2016 ONCA 45

[Feldman, Hourigan and Roberts JJ.A.]

Counsel:

Mohammed Shakir, in person

Vincenzo Rondinelli, duty counsel

Tanit Gilliam, for the respondent

Keywords: Criminal Law, Summary Conviction, Customs Act, Leave to Appeal Refused

 R. v. Tran, 2016 ONCA 48

[MacPherson, Watt and Miller JJ.A.]

Counsel:

Lisa Csele, for the appellant

Ian Carter, for the respondent

Keywords: Criminal Law, Crown Appeal, Possession of Marijuana for the Purpose of Trafficking, Production of Marijuana, Theft of Electricity, Reasonable and Probable Grounds for Arrest, Canadian Charter of Rights and Freedoms, s. 8, s. 9, Appeal Dismissed