Good evening.

Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 16, 2022.

In McCoy v. Choi, the Court agreed with the motion judge that a claim by a professional athlete against the team doctor for medical malpractice was not covered by the collective agreement and was therefore not within the exclusive jurisdiction of a labour arbitrator.

In GFL Infrastructure Group Inc. v. Temple Insurance Company, the Court determined that the application judge did not err in concluding that the insurers had a duty to defend the insured in relation to claims for construction deficiencies. The duty to defend is engaged by the mere possibility that there may be coverage for property damage.

In M & P Drug Mart Inc. v. Norton, the Court upheld the application judge’s conclusion that a non-compete covenant was unenforceable due to ambiguity.

In Barsoski Estate v. Wesley, the Court reviewed law relating to interpretation of wills in considering whether the respondent had a valid life estate or licence and whether it was void for uncertainty. The Court found that the trial judge erred in finding that the bequest was a licence rather than a life interest.

Other topics covered this week included anti-SLAPP, dismissal for delay and extension of time for leave to appeal.

Wishing everyone a Happy Victoria Day long weekend!

Table of Contents

Civil Decisions

Henderson v. Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387

Keywords: Civil Procedure, Dismissal for Delay, Status Hearings, Limitation Periods, Rules of Civil Procedure, rules 1.04, 2.01, 37.14 and 48.14, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, S.O. 2016, c. 2, , Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Trustee Act, R.S.O. 1990, c. T.23, Faris v. Eftimovski, 2013 ONCA 360, Prescott v. Barbon, 2018 ONCA 504, R. v. Dinardo, 2008 SCC 24, R. v. Alekozai, 2021 ONCA 633, Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671

GFL Infrastructure Group Inc. v. Temple Insurance Company, 2022 ONCA 390

Keywords: Contracts, Insurance, Coverage, Duty to Defend, “Mere Possibility” test, Negligence, Property Damage, Defence Costs,  Condominium Act, 1998, S.O. 1998, c.19, s 44, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33

Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Standard of Review, Costs, Courts of Justice Act, R.S.O. 1990, c C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, Raymond J. Pilon Enterprises Ltd. v. Village Media Inc., 2019 ONCA 981, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303

M & P Drug Mart Inc. v. Norton, 2022 ONCA 398

Keywords: Employment Law, Restrictive Covenants, Non-Competition Agreements, Enforceability, Civil Procedure, Appeals, Mootness, Standard of Review, Working for Workers Act, 2021, S.O. 2021, c. 35, ss. 67.2(1) and (2), Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, Elsley v. J.G. Collins Ins. Agencies, [1978] 2 S.C.R. 916

Barsoski Estate v. Wesley, 2022 ONCA 399

Keywords: Wills and Estates, Wills, Interpretation, Life Estates, Licences, Powell v. Powell [(1988), 62 Alta. L.R. (2d) 379 (Q.B.), Moore et al. v. Royal Trust Co. et al., [1956] S.C.R. 880, Re McColgan, [[1969] 2 O.R. 152 (H.C.), Kaptyn Est., (Re), 2010 ONSC 4293, Re Down (1968), 68 D.L.R. (2d) 30 (Ont. C.A.), Sifton v. Sifton, [1938] 3 D.L.R. 577 (P.C.), Lecky Estate v Lecky, 2011 ABQB 802, McKay v. Henderson Estate, 113 N.B.R. (2d) 308 (Q.B.), Re Essex County Roman Catholic School Board and Antaya (1977), 80 D.L.R. (3d), Spence v. BMO Trust Co., 2016 ONCA 196

McCoy v. Choi, 2022 ONCA 403

Keywords: Labour and Employment, Collective Agreements, Jurisdiction, Torts, Negligence, MedMal, Rules of Civil Procedure, Rule 21.01(3)(a), Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Northern Regional Health Authority v. Horrocks, 2021 SCC 42, Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14

828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412

Keywords: Civil Procedure, Dismissal for Delay, Appeals, Leave to Appeal, Extension of Time, Rules of Civil Procedure, r. 61.03.1(3), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479, Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

Short Civil Decisions

Vinczer v. 7084421 Canada Ltd., 2022 ONCA 400

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Frivolous, Vexatious,  Abuse of Process, Rules of Civil Procedure, Rule 2.1, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

Martin v. 11037315 Canada Inc., 2022 ONCA 407

Keywords: Contracts, Real Property, Mortgages, Remedies, Foreclosure, Civil Procedure, Default Judgements, Costs, Land Titles Act, R.S.O. 1990, c. L.5., s. 78(4)

Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2022 ONCA 411

Keywords: Costs

The Calbot Group Ltd. v. NSR Toronto Holdings Ltd., 2022 ONCA 410

Keywords: Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21.01(1)(b), Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354


CIVIL DECISIONS

Henderson v. Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387

[Lauwers, Nordheimer and Zarnett JJ.A.]

COUNSEL:

J. Van Bakel and S. Gordon, for the appellants

H. Stone and J.T. Yuan, for the responding party Kenora-Rainy River Districts Child & Family Services

R. Sinding, for the responding parties the Estates of B.Z. and M.Z.

D. Fernandes, for the third party the Attorney General of Canada

R. Li and N. Laeeque, for the third party Her Majesty the Queen in Right of Ontario

Keywords: Civil Procedure, Dismissal for Delay, Status Hearings, Limitation Periods, Rules of Civil Procedure, rules 1.04, 2.01, 37.14 and 48.14, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, S.O. 2016, c. 2, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Trustee Act, R.S.O. 1990, c. T.23, Faris v. Eftimovski, 2013 ONCA 360, Prescott v. Barbon, 2018 ONCA 504, R. v. Dinardo, 2008 SCC 24, R. v. Alekozai, 2021 ONCA 633, Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671

FACTS:

The Appellants’ action was dismissed for delay after a status hearing under r. 48.14(7) of the Rules of Civil Procedure, on the basis that they had not provided an acceptable explanation for their delay in prosecuting the action. The Appellants sought to set aside the status hearing order.

ISSUES:

(1) Did the status hearing judge fail to take into account as a contextual factor in assessing the delay that there was no limitation period applicable to their claims?

(2) Did the status hearing judge err in finding that the Appellants’ “former counsel essentially suspended the prosecution of this action indefinitely” while she was considering starting a class action as the better way to proceed?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The legislation does permit abuse victims to bring an action at anytime, without regard to a limitation period. However, the Court found it does not give them a licence to ignore the requirements of the Rules of Civil Procedure once the action is started. The Court agreed that the nature of the action is a contextual factor that can affect the exercise of a status hearing judge’s discretion in deciding whether to dismiss an action for delay or to let it continue. However, this did not assist the appellants.

The status hearing judge was alive to the issue and did take the absence of a limitation period into account. He stated: “The plaintiffs submit that the essence of their claim is historic sexual and physical abuse and that in such cases, different considerations apply with respect to the prejudice analysis”. He also noted: “KRRDCFS submits that there are limitation periods applicable to the plaintiffs’ claims which have passed, including under the Trustee Act and the Limitations Act, 2002”. There is no doubt the status hearing judge was fully conversant with the law.

(2) No.

The Appellants showed no legal error in the status hearing judge’s reasoning or in any of his self-instruction on the applicable law. There was a sense of exasperation that was completely justified. As the Court noted in Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671: “There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay”.


GFL Infrastructure Group Inc. v. Temple Insurance Company, 2022 ONCA 390

[MacPherson, Paciocco and George JJ.A.]

COUNSEL:

R. Emblem, J. Spotswood and C. Beaudoin, for the appellants (C69317, C69328, C69344 & C69351)/respondent by way of cross-appeal (C69351) Temple Insurance Company and Aviva Insurance Company of Canada

J. Meadows and E. Leduc, for the respondents (C69317) GFL Infrastructure Group Inc. and (C69328) Ashland Construction Group Ltd.

J. MacQuarrie and D. Chung, for the respondent (C69344) Rite- Air Mechanical Co. Ltd.

J. Brown and D. Cox, for the respondents/appellants by way of cross-appeal (C69351) Distillery S.E. Development Corp., Cityscape Development Corporation and Dream Asset Management Corporation

Keywords: Contracts, Insurance, Coverage, Duty to Defend, “Mere Possibility” test, Negligence, Property Damage, Defence Costs,  Condominium Act, 1998, S.O. 1998, c.19, s 44, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33

FACTS:

Distillery S.E. Development Corp., Cityscape Development Corporation and Dream Asset Management Corporation (the “Distillery parties”) undertook the Clear Spirit Condominium Project to build a residential condominium tower in the Distillery District of downtown Toronto. The condominium tower came to be owned by Toronto Standard Condominium Corporation No. 2299 (“TSCC 2299”).

The Distillery parties hired GFL Infrastructure Group Inc. (“GFL”) to complete temporary shoring work during the construction of the building, Ashland Construction Group Ltd. (“Ashland”) to supply and install asphalt for the floor surface of the parking garage, and Rite-Air Mechanical Co. Ltd. (“Rite-Air”) to perform the HVAC work. The construction was completed in 2013.

An engineering firm retained by TSCC 2299 discovered several deficiencies in the construction of the condominium building. The retention of additional experts revealed further deficiencies. TSCC 2299 claimed that it brought the deficiencies to the attention of the Distillery parties who did nothing to fix them. In 2015, TSCC 2299 sued the Distillery parties for $9,913,169.25 for property damage caused by negligence and defects in the construction of the building. In 2017, the Distillery parties commenced an action seeking contribution and indemnity from 38 contractors, including GFL, Ashland and Rite-Air, with respect to any liability the Distillery parties may have to TSCC 2299 in respect of the 2015 action.

This grouped appeal is from four applications seeking declarations that Temple Insurance and Aviva Insurance, the appellant insurers, have a duty to defend the respondent corporations. The condominium corporation sued one of the respondent corporations for deficiencies in the condominium construction and that respondent corporation commenced an action seeking contribution and indemnity from the other respondent corporations. All respondent corporations then sought coverage from the appellant insurers under an insurance policy issued for the condominium project, were denied coverage, and brought the present applications.

The application judge granted the applications and issued a declaration that the insurers have a duty to defend the corporations. He found that the respondents established that there was a “mere possibility” that the claims fell within the insurance policy as claims for “Property Damage”

ISSUES:

Appeal

(1) Did the application judge err by concluding that the duty to defend was triggered?

(2) Did the application judge err by concluding that the appellants have a duty to defend all the Distillery parties’ claims against GFL, Ashland and Rite-Air?

(3) Did the application judge err in finding that there was a duty to defend claims entirely within the deductible?

(4) Did the application judge err by effectively ordering pre-notification defence costs?

Cross-Appeal

(5) Did the application judge err in making the payment of past defence costs subject to the right of the appellants to have those costs assessed forthwith?

HOLDING:

Appeal dismissed. Cross-appeal dismissed.

REASONING:

(1) No.

The appellants submitted that the application judge erred in his duty to defend analysis by not considering the true nature and substance of the claims made in the TSCC 2299 actions. That is, that the allegations must be taken as pleaded, irrespective of their length and level of detail. However, while a court may consider documents incorporated by reference into the pleadings to assist in determining the true nature of the claims, the Court should not prematurely assess evidence and make factual findings on matters in issue in the underlying litigation, including causation. The application judge cited the test from Monenco and determined, as he was entitled to, that the pleadings established the mere possibility that the claims fell within liability coverage.

The appellants also contended that the application judge misstated the duty to defend test by concluding that the “mere possibility” test also accounts for the potential application of exclusions withdrawing coverage. However, the Court stated that there is no case law to support the argument that the “mere possibility” test must be abandoned when the issue in play is an exclusion clause. On the contrary, the “mere possibility” test is the anchor for consideration in all duty to defend cases.

(2) No.

This issue was not raised before the application judge as against Ashland and GFL. Thus, the Court did not have the benefit of a record from these respondents prepared with this issue in mind or the benefit of the application judge’s consideration of the issue in his second decision. In any event, the Court stated that on the basis of the record to which the Court had access and the submissions that have been heard, it would not give effect to this ground of appeal. There was nothing in the appellants’ position or submissions that demonstrated a fair and workable methodology for allocating defence costs in advance of trial. Further, the notion that potentially covered and uncovered claims could be identified at this juncture was illusory.

(3) No.

TSCC 2299’s claimed $9,913,169.25 in damages. The appellants conceded that at least $8,507.66 of this claim comes within the insurance coverage. Therefore, the Court stated that the question was whether there was the possibility of another $1,492.35 of “Property Damage” in an almost $10 million claim. The Court agreed with the application judge in that the duty to defend is engaged by the mere possibility that there may be coverage for Property Damage.

(4) No.

The appellants submitted that this component of the formal judgment was made in error because, per Condition 5(c) of the Project Policy, the Distillery parties were not to incur any expenses before notification. The Court determined that it would be unfair to allow the appellants to rely on this provision in a case where they deny their duty to defend the claim. The appellants do not argue that they would have retained less expensive counsel or pursued a different strategy had they been notified sooner. Moreover, the modest nature of the costs incurred by the Distillery parties pre-notification (about 11 per cent of total defence costs up to the time the application was heard) did not suggest that the appellants had been prejudiced.

(5) No.

The Court stated that it was within the application judge’s discretion to determine the appropriate route for the assessment of past defence costs in this proceeding.


Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391

[Huscroft, Thorburn and George JJ.A.]

COUNSEL:

L. R. Rothstein, A. V. Singh, and R. Bucholz, for the appellant

C. Lonsdale and W. Main, for the respondents

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Standard of Review, Costs, Courts of Justice Act, R.S.O. 1990, c C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, Raymond J. Pilon Enterprises Ltd. v. Village Media Inc., 2019 ONCA 981, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303

FACTS:

The appellant, Glassdoor Inc., appealed the motion judge’s order denying its request to dismiss the respondent’s defamation action under s. 137.1 of the Courts of Justice Act (the “Act”).

John Doe published an anonymous critical review on the appellant’s website about his employer, the respondent, Echelon Environmental Inc. (“Echelon”).

The appellant argued that this was a workplace review, not a private dispute between two parties, and that employee reviews of employers and working conditions that are communicated on a public site are of public interest to a segment of the public, namely, potential employees. The appellant stated that there was no meaningful distinction between customer reviews of businesses, which have been held to be a matter of public interest, and employee reviews of workplaces, and that the motion judge erred in not following the customer review cases. The appellant further argued that the motion judge erred in making a qualitative assessment of the expression by criticizing the fact that it was an anonymous reviewer.

ISSUES:

(1) Did the motion judge err in finding that the expression at issue did not relate to a matter of public interest as required by s. 137.1(3) of the Act?

(2) Did the motion judge err in his costs order?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The appellant failed to establish that the motion judge made any errors, and, therefore, there was no basis for the Court to interfere with his decision.

On a motion under s. 137.1, the expression is to be assessed as a whole. The essential question is: Understood in its context, what is the impugned expression really about? The motivation behind the expression is not legally relevant, nor are the merits of the expression and the manner in which the expression is conveyed, as there is no qualitative assessment of expression at this stage.

Although the public interest is to be interpreted broadly, not everything in which some members of the public are interested is a matter of public interest for the purpose of s. 137.1. Whether an expression relates to a matter of public interest involves a question of mixed fact and law that attracts a deferential standard of review. Provided that the motion judge made no extricable errors of law and no palpable and overriding errors of fact, the decision is entitled to deference.

The motion judge determined that the anonymous review on Glassdoor’s website concerned an individual’s complaints about such things as Echelon’s pay and benefit levels, work requirements, and the company’s infrastructure. These were complaints that, while anonymous, reflected a private dispute with no real impact on others. Echelon was not engaged in providing services to the public; it was providing specialized services to a small number of customers.

In these circumstances, it was open to the motion judge to conclude that the employee review did not relate to a matter of public interest. The motion judge was not required to conclude that expression about workplaces is a matter of public interest simply because some courts have concluded that reviews of businesses by consumers are a matter of public interest. Whether expression relates to a matter of public interest is determined by consideration of the particular expression in question, not the topic of that expression.

(2) No.

There was no error that would allow the Court to disturb the motion judge’s costs award.

The award of costs is a discretionary decision that is entitled to deference. Leave to appeal a costs order is granted only where there are strong grounds upon which the court could find that the motion judge made an error in principle or the costs award is plainly wrong.

The Act reverses the ordinary presumption that the successful party is entitled to costs. Section 137.1(8) of the Act empowers the motion judge to award costs to the successful party if the motion judge finds that costs are appropriate in the circumstances. Thus, the decision to award costs is discretionary and the same deferential standard applies on appeal.


M & P Drug Mart Inc. v. Norton, 2022 ONCA 398

[Lauwers, Nordheimer and Zarnett JJ.A.]

COUNSEL:

A. Farooq and S. Balcharan, for the appellant

A. Doxtdator and C. Valiquette, for the respondent

Keywords: Employment Law, Restrictive Covenants, Non-Competition Agreements, Enforceability, Civil Procedure, Appeals, Mootness, Standard of Review, Working for Workers Act, 2021, S.O. 2021, c. 35, ss. 67.2(1) and (2), Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, Elsley v. J.G. Collins Ins. Agencies, [1978] 2 S.C.R. 916

FACTS:

In September 2020, the respondent, S. N., left the employ of the appellant, M & P Drug Mart Inc. (“M & P”) and went to work at another pharmacy. M & P alleged that this constituted a breach of a non-competition covenant in his employment agreement and brought proceedings against S. N.

The covenant relevant is reproduced below (the “Covenant”):

The Employee agrees that during the Employee’s employment with the Company and during the one year period following the termination of the Employee’s employment with the Company, for any reason whatsoever, the Employee shall not carry on, or be engaged in, concerned with, or interested in, directly or indirectly, any undertaking involving any business the same as, similar to or competitive with the business within a fifteen (15) kilometre radius of the business located at 10 Main Street East, Huntsville, Ontario P1H 2C9.

After resigning from M & P, S. N. went to work at the Campus Trail Pharmacy, which was located less than three kilometres from the pharmacy he was previously employed at with M & P. After being reminded of the Covenant by counsel for M & P, S. N. took the position, through his counsel, that the Covenant was unenforceable. Litigation ensued.

As these events occurred prior to the coming into force of the Working for Workers Act, 2021, S.O. 2021, c. 35 (the “WWA”), which prohibits employers from obtaining non-competition agreements from employees, the parties’ rights were governed by the common law principles regarding whether such a Covenant was unenforceable.

The application judge found the non-competition Covenant in S. N.’s employment agreement to be unreasonable as between the parties because it was ambiguous or because the scope of the prohibited activities was overly broad, and therefore unenforceable. M & P appealed.

ISSUES:

(1) Is the appeal moot?

(2) What is the correct standard of review?

(3) Did the application judge err in finding the covenant unreasonable as between the parties?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

S. N. argued the appeal was moot because the Covenant expired in September 2021, and the WWA now prohibited employers from entering into non-competition agreements.

The Court concluded that the appeal was not moot because the relief sought by M & P’s application included an order directing a trial on the issue of damages. Accordingly, whether the application judge erred in finding the Covenant unenforceable was a determination with practical and direct consequences for the rights of M & P. Specifically, if the Covenant was found to be valid, its expiry would not absolve S. N. of liability for damages resulting from a breach of the Covenant.

(2) Both on a Correctness and Deferential Standard.

The Court noted that prior to assessing whether the Covenant was reasonable, which was reviewable on a correctness standard, there was a preliminary issue to be addressed: a determination as to what the Covenant meant in terms of the conduct it did and did not restrict. The Court held a determination of what the Covenant meant was a question of contractual interpretation that, absent an extricable error of law, was subject to a deferential standard of review, that is to say, it was reviewable as a question of mixed fact and law.

The determination of whether the properly interpreted Covenant was reasonable was reviewable on a correctness standard.

(3) No.

The general common law rule is that, on public policy grounds, a provision in a contract that restrains an employee upon leaving employment from competing with the employer, is prima facie unenforceable. The exception to the general rule is that the provision will be upheld if it is reasonable in reference to the interests of the parties and the public, judged in light of the circumstances at the time the covenant is made.

When determining whether a non-competition agreement is reasonable, the extent of the activity sought to be prohibited, the geographic coverage of the restriction, and its duration are all relevant. Further, the Court is not empowered to rewrite a Covenant to reflect its own view of what the parties’ consensus might have been.

A covenant that is ambiguous as to activity, time, and geography is prima facie unenforceable because it is not possible to show, in the face of the ambiguity, that the covenant is reasonable.

Applying the above framework to the case at bar, the Court held that M & P had the onus of showing that the clear meaning of the Covenant was a demonstrably reasonable restriction of activity. The Court held M & P failed in their onus.

The starting point of the interpretive process were the words used. The Covenant stated that S. N. “shall not carry on, or be engaged in, concerned with, or interested in, directly or indirectly, any undertaking involving any business the same as, similar to or competitive with the business”. The application judge concluded that the Covenant might extend to working in a job other than a pharmacist for a supermarket that included a pharmacy department, even if the job was in a completely different department. The Court saw no error in the application judge’s conclusion.

The Court concluded that M & P was essentially asking the Court to read the Covenant as applying only to S. N. acting as a pharmacist for a pharmacy or a store that included a pharmacy – however, the Covenant was not worded in such a restricted manner. The factual matrix surrounding the Covenant could not change the words used, and the Court was not permitted to rewrite the Covenant. Accordingly, the appeal was dismissed.


Barsoski Estate v. Wesley, 2022 ONCA 399

[Simmons, Harvison Young and Zarnett JJ.A.]

COUNSEL:

D. Wozniak, for the appellant

L-A. F. Farrell, for the respondent

Keywords: Wills and Estates, Wills, Interpretation, Life Estates, Licences, Powell v. Powell [(1988), 62 Alta. L.R. (2d) 379 (Q.B.), Moore et al. v. Royal Trust Co. et al., [1956] S.C.R. 880, Re McColgan, [[1969] 2 O.R. 152 (H.C.), Kaptyn Est., (Re), 2010 ONSC 4293, Re Down (1968), 68 D.L.R. (2d) 30 (Ont. C.A.), Sifton v. Sifton, [1938] 3 D.L.R. 577 (P.C.), Lecky Estate v Lecky, 2011 ABQB 802, McKay v. Henderson Estate, 113 N.B.R. (2d) 308 (Q.B.), Re Essex County Roman Catholic School Board and Antaya (1977), 80 D.L.R. (3d), Spence v. BMO Trust Co., 2016 ONCA 196

FACTS:

D. B. died in June 2017. She and R.W., the appellant, were close long-term friends although they were never romantic partners. In her will, D.B. was very generous to R.W. In addition to some other bequests, she provided that the trustees were to hold her home and contents “as a home” for the appellant during his lifetime “or for such shorter period as [he] desires”. The will also provided $500,000 to be held in trust for the maintenance of the home and, in the event that the appellant “is no longer able” or no longer wished to live in the house, was to be used for his living expenses, nursing or retirement home expenses, or all funeral expenses. Any amount remaining after his death would be delivered to St. Stephen’s.

After D.B. died, a question arose as to whether the appellant was in fact “living” in the home as required by the will. The appellant continued to work full time in Toronto while his acquaintance was living in the London home. In November 2019, the appellant started a full-time job in Sault Ste. Marie. He maintained that he used the home as his primary residence for matters like his driver’s licence and income tax, and spent his weekends there once or twice a month.

The application judge determined that the interest bequeathed to the appellant was a licence and not a life interest. She went on to find that the condition that the appellant live in the home was uncertain and, because of the nature of his interest, the entire bequest failed.

ISSUES:

(1) Did the trial judge err in finding that the bequest in issue was a licence rather than a life interest?

(2) Did the trial judge err determining whether the condition that the appellant live in the house was void for uncertainty?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes.

The application judge ultimately rested her conclusion that the will grants a licence on three pillars, two textual and one contextual. The application judge, having recognized the challenges in reconciling the cases on the basis of the wording in the will, relied on the fact that the will, like that in Moore, directed the trustees the “hold” the house for the appellant’s benefit: the will could not grant an estate to the beneficiary because it was already vested in the trustees. However, this is not a factor that has been determinative in many other subsequent cases, including Re McColgan. There was no indication that the proceeds of renting the home in the event that he needed in the future to move into some form of institutional care in the future would have been sufficient to pay his expenses if and when they arose. Accordingly, the fund reinforced D.B.’s commitment to giving the appellant a home, whether he was well enough to live in her home or not. The application judge’s decision effectively ignored that courts have given effect to life interests to friends. There was no basis for any presumption favouring a license rather than a life interest when the intended beneficiary is a friend.

(2) No.

There is no dispute that if a subsequent condition contained in a grant of a life interest is found to be void for uncertainty, the gift is effective without the limiting conditions. A condition subsequent is not integral to the interest and, therefore, the gift can exist without the condition. Accordingly, the uncertain condition is struck, and the gift survives free and clear of any condition.


McCoy v. Choi, 2022 ONCA 403

[Huscroft, Thorburn and George JJ.A.]

COUNSEL:

A. Tardif and B. Brannagan, for the appellant, Dr. C.

D. Bagambiire and R. Perron, for the respondents

Keywords: Labour and Employment, Collective Agreements, Jurisdiction, Torts, Negligence, MedMal, Rules of Civil Procedure, Rule 21.01(3)(a), Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Northern Regional Health Authority v. Horrocks, 2021 SCC 42, Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14

FACTS:

The respondent C.M. brought an action for damages against the appellant, Dr. C., for misdiagnosing his football injury. As a Canadian Football League (“CFL”) player for the Ottawa Redblacks, C.M. was a signatory to a 2014 Collective Agreement between the CFL, the Canadian Football League Players’ Association (the “Players’ Association”), and the Canadian Football League Player Relations Committee (the “Player Relations Committee”). The Collective Agreement requires any dispute between a player and his team or the CFL to be settled through grievance and arbitration.

Dr. C. brought a motion to dismiss C.M.’s claim pursuant to r. 21.01(3)(a) of the Rules of Civil Procedure on the basis that it fell within the scope of the Collective Agreement and could only be settled by an arbitrator.

The motion judge dismissed Dr. C.’s motion and held that the claim should be allowed to proceed in the Superior Court because, in his view, the essence of the claim was outside the scope of the Collective Agreement. Moreover, Dr. C. was not an agent of the CFL nor was he a party to the 2014 Collective Agreement, and C.M. would be unable to obtain effective redress against him through the arbitration process.

Dr. C. appealed the motion judge’s order allowing the claim to proceed. He said the claim must be resolved by arbitration as this was a workplace injury sustained while C.M. was playing football for the Redblacks.

ISSUES:

(1) What is the “essential character” of the dispute?

(2) Does the dispute fall outside the ambit of the Collective Agreement because Dr. C. is not a party to the Agreement?

(3) Are there costs that C.M. would not be able to recover if the matter were to proceed by arbitration such that he would be denied effective redress?

HOLDING:

Appeal dismissed.

REASONING:

(1)

The inquiry into “essential character” is factual. It is directed at whether the dispute is factually related to the rights and obligations in the collective agreement, not at the legal character the dispute has taken; for instance, as an action in tort: WeberHorrocks.

In the Court’s view, the dispute in the appeal was not factually related to the rights and obligations in the collective agreement. It did not arise from the Collective Agreement and therefore was not within the exclusive jurisdiction of an arbitrator.

In essence, this was a dispute over a misdiagnosis of an injury by an outside physician who was not affiliated with the Redblacks, which injury was treated in accordance with the misdiagnosis, which allegedly caused damages.

(2) Yes.

Dr. C. was not a servant or agent of the Redblacks team. He was an independent contractor. Nor was there any evidence that he was an agent for the Redblacks. The clinic at which he was working, Merivale, was not owned, controlled or directed by the Redblacks team, and neither Dr. C. nor Merivale was party to, or agent of a party to, the Collective Agreement.

Section 20 of the Standard Contract gave C.M. the right to demand that the Redblacks pay his medical expenses for up to a year after the injury, but after that point relieved the Redblacks of liability in connection with the injury. He retained a right to make a claim for negligence by the team’s servants or agents.

Accordingly, this was not a question of the responsibility of “a team’s agent in treating player injuries” and this action for negligence was not related to C.M.’s s. 20 right to make a claim for negligence by the team’s servants or agents. The dispute over Dr. C.’s misdiagnosis was not, in essence, factually related to any right or obligation C.M. possessed under the Collective Agreement.

Moreover, neither Dr. C. nor Merivale were bound by the rights and obligations set out in the Collective Agreement. A dispute concerning Dr. C.’s alleged negligence fell outside the ambit of the Collective Agreement and contemplation of the parties to the Agreement. These conclusions were sufficient to dispose of the appeal.

(3) Yes.

The Collective Agreement did not offer effective redress against an outside party. There would therefore be deprivation of a remedy if this dispute, which was not covered by the Collective Agreement, were to proceed by arbitration.


828343 Ontario Inc. v. Demshe Forge Inc.,2022 ONCA 412

[Gillese J.A. (Motion Judge)]

COUNSEL:

A. Hershtal, for the moving party

A. Max and A. Eke, for the responding parties

Keywords: Civil Procedure, Dismissal for Delay, Appeals, Leave to Appeal, Extension of Time, Rules of Civil Procedure, r. 61.03.1(3), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479, Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

FACTS:

The moving party, 828343 Ontario Inc., started an action against the responding parties in May 2011. By decision dated January 18, 2022 (the “Decision”), the Divisional Court dismissed the action for delay. The moving party intended to appeal the Decision but, due to the inadvertence of counsel, missed the deadline for filing for leave to appeal by eight days.

The moving party asked the Court for an extension of time to file a notice of motion for leave to appeal. The responding parties acknowledged that the court often exercises its discretion to extend deadlines missed due to inadvertence of counsel. However, they submitted that this was a rare case in which the moving parties’ long history of procedural misconduct and its resulting impact on the responding parties, particularly J.M, should preclude the Court’s indulgence.

ISSUE:

Should the motion to extend time be granted?

HOLDING:

Motion dismissed.

REASONING:

(1) No.

The Court applied the test on a motion to extend time and analyzed the relevant considerations including the following:

Whether the moving party formed a bona fide intention to appeal within the relevant time period and the length of, and explanation for the delay in filing

The Court found the record showed that the moving party had the requisite intention within the relevant time period and that the period of delay was brief and the explanation satisfactory.

Any prejudice to the responding parties caused, perpetuated, or exacerbated by the delay

Prejudice to the responding parties in this case was more properly considered in the analysis of the justice of the case, rather than in the context of the third consideration.

The merits of the proposed appeal

The proposed appeal lacked merit and, in any event, did not raise an arguable question of the sort contemplated in Sault Dock. The questions which would be addressed were of interest only to the parties – they were not matters of public importance.

The justice of the case weighed against an extension

Any adjudication on the merits of this proceeding could only be unfair to the responding parties. The integrity of the civil justice process demanded that the proceeding end.


SHORT CIVIL DECISIONS

Vinczer v. 7084421 Canada Ltd., 2022 ONCA 400

[Benotto, Zarnett and Copeland JJ.A.]

COUNSEL:

A.V., acting in person

J. Goldblatt, for the respondents D. John Peirce Professional Corporation, Peirce McNeeley Associates, D.J.A.P. and R.A.M.

A. Sidhu, for the respondents 1229393 Ontario Ltd. and O/A I Finance Construction and Jac.H, S.H., Jam.H.

J. R. G. Cook and E. Bordman, for the respondent D.V.

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Frivolous, Vexatious,  Abuse of Process, Rules of Civil Procedure, Rule 2.1, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

Martin v. 11037315 Canada Inc., 2022 ONCA 407

[Simmons, Harvison Young and Zarnett JJ.A.]

COUNSEL:

P. Robson and S. Chhina, for the appellants

D. Van Sickle, for the respondent

M. Whiteley and M. Dhaliwal, for the non-party 1614358 Ontario Ltd.

K. Randhawa, for the non-party R.S.P.

Keywords: Contracts, Real Property, Mortgages, Remedies, Foreclosure, Civil Procedure, Default Judgements, Costs, Land Titles Act, R.S.O. 1990, c. L.5., s. 78(4)

Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2022 ONCA 411

[Feldman, Lauwers and Trotter JJ.A.]

COUNSEL:

B. Marks, for the appellants

C. L. Merovitz, D. Sayer and E. Lay, for the respondents

Keywords: Costs

The Calbot Group Ltd. v. NSR Toronto Holdings Ltd., 2022 ONCA 410

Benotto, Zarnett and Copeland JJ.A.

COUNSEL:

A. Conte, for the appellant

M. Schafler and A.J. Freedman, for the respondents

Keywords: Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21.01(1)(b), Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354