Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 25, 2021.

In Cirillo v. Ontario, the Court concluded that this class action claiming redress for the criminal justice system’s failure to hold timely bail hearings for accused persons fell squarely within “core policy” decisions of the government and the Crown was therefore immune from liability in negligence or breach of fiduciary duty. Moreover, while there may have been a viable claim for breach of Charter rights, there was no adequately identifiable class or common issues. A class proceeding was therefore not the preferable procedure to hear that claim.

In Rooplal v Fodor, the Court concluded that the limitation period with respect to actions against insurers for uninsured motorist coverage under section 265 of the Insurance Act is triggered when the claimant’s demand for indemnification is refused by the insurer.

Other topics included anti-SLAPP in a quite personal context that nonetheless was found to be a matter relating to the public interest, summary judgment in respect of the breach of an an agreement of purchase and sale of land, stay in favour of arbitration in the condominium context, and the dismissal of a motion for leave to appeal under s. 193 of the Bankruptcy and Insolvency Act in the receivership context

Wishing everyone an enjoyable weekend.

Table of Contents

Civil Decisions

Mazhar v Farooqi, 2021 ONCA 355

Keywords: Torts, Defamation, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, United Soils Management Ltd. v. Mohammed, 2019 ONCA 128

Cirillo v Ontario, 2021 ONCA 353

Keywords: Torts, Negligence, Breach Fiduciary Duty, Breach of Charter Rights, Crown Liability, Criminal Justice, Bail Within Reasonable Time, Core Policy Decisions, Duty of Care, Civil Procedure, Class Proceedings, Certification, Identifiable Class, Common Issues, Preferable Procedure, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, subsection 11(4) and (5), Canadian Charter of Rights and FreedomsClass Proceedings Act, 1992, S.O. 1992, c. 6, Section 5(1), Criminal CodeRules of Civil Procedure, Rules 21.01, Phaneuf v. Ontario, 2010 ONCA 901, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hinse v. Canada, 2015 SCC 35, Hollick v. Toronto, 2001 SCC 68, Ragoonanan Estate v. Imperial Tobacco (2005), 78 O.R. (3d) 98 (S.C.), Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Thorburn v. British Columbia, 2013 BCCA 480, Dennis v. Ontario Lottery and Gaming Corp., 2013 ONCA 501, Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2016 ONCA 404, Leroux v. Ontario, 2021 ONSC 2269, Francis v. Ontario, 2021 ONCA 197

Spiridakis v Li, 2021 ONCA 359

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Anticipatory Breach, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR. 87, Butera v. Chown, Cairns LLP, 2017 ONCA 783

Hillmount Capital Inc v Pizale, 2021 ONCA 364

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Reviews of Decisions, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Romspen Investment Corporation v. Courtice AutoWreckers Limited, 2017 ONCA 301, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

Rooplal v Fodor, 2021 ONCA 357

Keywords: Torts, Negligence, MVA, Insurance, Unidentified Motorist Coverage, Civil Procedure, Adding Parties, Limitation periods, Insurance Act, R.S.O. 1990, c I.8, s. 265, Uninsured Automobile Coverage, R.R.O. 1990, Reg. 676 (Section 6 of Schedule), Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4 and 5, Longo v. MacLaren Art Centre, 2014 ONCA 526, Apotex Inc. v. Nordion (Canada) Inc., 2019 ONCA 23, July v. Neal (1986), 32 D.L.R. (4th) 463 (Ont. C.A.), Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, leave to appeal refused, [2014] S.C.C.A. No. 143, Chahine and Al-Dahak v. Grybas, 2014 ONSC 4698, Platero v. Pollock, 2015 ONSC 2922, Sukhu v. Bascombe, 2018 ONSC 2878, Johnson v. Wunderlich (1986), 34 D.L.R. (4th) 120 (Ont. C.A.), Hier v. Allstate Insurance Co. of Canada (1988), 51 D.L.R. (4th) 1 (Ont. C.A.), Chambo v. Musseau (1993), 106 D.L.R. (4th) 757 (Ont. C.A.), Morrison v. Barzo, 2018 ONCA 979, Kosanovic v. Wawanesa Mutual Insurance Co. (2004), 237 D.L.R. (4th) 441 (Ont. C.A.), Galego v. Pereira (2005), 207 O.A.C. 384 (Div. Ct.), Bhatt v. Doe, 2018 ONSC 950, Wilkinson v. Braithwaite, 2011 ONSC 2356, Tucker v. Unknown Person, 2015 NLCA 21, leave to appeal refused, [2015] S.C.C.A. No. 250

Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2021 ONCA 360

Keywords: Real Property, Condominiums, Oppression, Contracts, Cost-Sharing, Common Facilities, Civil Procedure, Stay in favour of Arbitration, Fresh Evidence, Costs, Condominium Act, 1998, S.O. 1998, c. 19, s. 132(1), s. 132, ss. 133 and 135, Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(2), TELUS Communications Inc. v. Wellman, 2019 SCC 19, Uber Technologies Inc. v. Heller, 2020 SCC 16, MTCC No. 965 v. MTCC No. 1031 and No. 1056, 2014 ONSC 5362, Deluce Holdings Inc. v. Air Canada (1992), 98 D.L.R. (4th) 509 (Gen. Div.), Palmer v. The Queen, [1980] 1 S.C.R. 759

Short Civil Decisions

Cheng v Sze, 2021 ONCA 346

Keywords: Family Law, Equalization of Net Family Property, Child Support, Civil Procedure, Standard of Review, Evidence, Family Law Act, R.S.O. 1990, c. F.3, ss. 4(3), Child Support Guidelines O. Reg 391/97, s. 19, Hickey v. Hickey, [1999] 2 SCR 518, Jonas v. Pacitto, 2020 ONCA 727, Drygala v. Pauli (2002), 219 D.L.R. (4th) 319 (Ont. C.A.)

Subway Franchise Restaurants of Canada Ltd. v. BMO Life Assurance Company, 2021 ONCA 349

Keywords: Contracts, Real Property, Commercial Leases, Renewal, Duty of Good Faith, CM Callow Inc. v. Zollinger, 2018 ONCA 896, C.M. Callow Inc. v. Zollinger, 2020 SCC 45

C.C. v J.B., 2021 ONCA 363

Keywords: Family Law, Custody and Access, Civil Procedure, Jurisdiction, Forum Non ConveniensFamily Law Act, R.S.O. 1990, c. F.3, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16.1, 3 and 4, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 21 and 72, Family Law Rules, O. Reg. 114/99, Rule 16(12), Lilydale Cooperative Limited v. Meyn Canada Inc., 2019 ONCA 761, Kunuthur v. Govindareddigari, 2018 ONCA 730, Club Resorts Ltd. v. Van Breda, 2012 SCC 17

Walcott v Toronto Transit Commission, 2021 ONCA 358

Keywords: Intellectual Property, Copyright, Civil Procedure, Summary Judgment, Harte-Eichmanis v. Fernandes, 2012 ONCA 266


CIVIL DECISIONS

Mazhar v Farooqi, 2021 ONCA 355

[Juriansz, van Rensburg and Sossin JJ.A.]

COUNSEL:

M. M, acting in person

N. R. Hasan and C. Di Carlo, for the respondent

Keywords: Torts, Defamation, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, United Soils Management Ltd. v. Mohammed, 2019 ONCA 128

FACTS:

The respondent had refused the appellant’s marriage proposals numerous times in the past. After the respondent became engaged to her long-term partner, the appellant sent the respondent a lengthy email detailing his hatred for her and the negative thoughts he had against her and her family. The email prompted the respondent to report her concerns about the appellant to the chair of the Muslim Awards for Excellence (“MAX”), an organization both the appellant and respondent volunteer with. The appellant commenced an action in defamation against the respondent based on the complaint.

The respondent successfully brought a motion to have the action dismissed pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the anti-SLAPP provision). The legislation encourages individuals to express themselves on matters of public interest, to promote broad participation in debates on matters of public interest, to discourage the use of litigation as a means of unduly limiting expression on matters of public interest, and to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

The motion judge found that the respondent met her onus to show the impugned expression related to a matter of public interest under s. 137.1(3), and that the respondent could establish the defence of justification as her comments were substantially true, that the defence of fair comment was established, and that all the elements of the defence of qualified privilege were satisfied.

ISSUES:

(1) Did the motion judge engage in a one-sided consideration of the facts? (2) Did the motion judge err in his application of the test applicable to motions under s. 137.1 of the Courts of Justice Act? (3) Did the motion judge err in awarding the respondent full indemnity costs and s. 137.1(9) damages?

HOLDING:

Appeal dismissed.

REASONING:

1. No. The Court of Appeal does not revisit the findings of fact made by the court below absent palpable and overriding error. In this case, the motion judge’s findings were fully supported by the record. After reviewing the entire record, the Court found the appellant’s persistent and frustrated romantic attachment to the respondent provided the proper context for the motion judge’s decision. A significant finding of fact was that the appellant brought his defamation action in bad faith and for an improper purpose. The motion judge characterized the appellant’s defamation action as a “reprisal”.

2. No. The Court found that MAX was mistaken to regard the respondent’s expression to its Special Committee as relating to a private and personal matter. MAX had a duty to provide an environment to its volunteers that was free from harassment. As the Supreme Court said at para. 28 of Pointes Protection Association, it is not legally relevant whether the expression is “desirable or deleterious, valuable or vexatious” or “whether it helps or hampers the public interest”, as long as it pertains to a matter of public interest. The making of a complaint of harassment to those in charge of the environment in which it has allegedly occurred is a matter of public interest.

The action had substantial merit as the trial judge found that the respondent’s communications with MAX about the appellant could be found to be defamatory in that they amounted to alleging he had consistently harassed her, gave her concern to fear for her safety, and alleged he was unstable. Under Pointes Protection Association, the appellant would have had to show that none of the defences have a “real prospect of success”. This standard, established after the motion was heard, had no effect on the appeal, as the motion judge found it clear that the defences “would succeed”.

The Court agreed with the motion judge in his finding that the public interest will not be served by allowing a defamation action to proceed that was brought in bad faith for the purpose of punishing a person who had made a good faith complaint of harassment in a common volunteering environment.

3. No. The motion judge awarded the respondent $10,000 in damages, citing the Court’s decision in United Soils Management Ltd. v. Mohammed, 2019 ONCA 128. This was appropriate where the “action has been brought in bad faith or for an improper motive, such as punishing, silencing or intimidating the defendant rather than any legitimate pursuit of a legal remedy”.

The record before the motion judge provided ample support for his finding that the appellant brought the action in this case in bad faith, with the improper motive of punishing, silencing or intimidating the respondent. The Court found that there was no basis for disagreeing with the motion judge’s characterization of the appellant’s defamation action as a “reprisal” and his award of damages under s. 137.1(9).

Section 137.1(7) creates a presumption that a party who succeeds in having an action dismissed under the section is entitled to full indemnity costs. The motion judge properly applied the presumption and awarded full indemnity costs in a fair and reasonable amount. Costs of the appeal close to the full indemnity amount sought by the respondent were also awarded.


Cirillo v Ontario, 2021 ONCA 353

[Benotto, Rouleau and Thorburn JJ. A.]

COUNSEL:

K.M Baert, C. Poltak, C. Hatt, S.C. Hutchison and L.M. Taylor, for the appellant

C.A. Wayland, J. Claydon and S.Z. Green, for the respondent

Keywords: Torts, Negligence, Breach Fiduciary Duty, Breach of Charter Rights, Crown Liability, Criminal Justice, Bail Within Reasonable Time, Core Policy Decisions, Duty of Care, Civil Procedure, Class Proceedings, Certification, Identifiable Class, Common Issues, Preferable Procedure, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, subsection 11(4) and (5), Canadian Charter of Rights and FreedomsClass Proceedings Act, 1992, S.O. 1992, c. 6, Section 5(1), Criminal CodeRules of Civil Procedure, Rules 21.01, Phaneuf v. Ontario, 2010 ONCA 901, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hinse v. Canada, 2015 SCC 35, Hollick v. Toronto, 2001 SCC 68, Ragoonanan Estate v. Imperial Tobacco (2005), 78 O.R. (3d) 98 (S.C.), Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Thorburn v. British Columbia, 2013 BCCA 480, Dennis v. Ontario Lottery and Gaming Corp., 2013 ONCA 501, Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2016 ONCA 404, Leroux v. Ontario, 2021 ONSC 2269, Francis v. Ontario, 2021 ONCA 197

FACTS:

The plaintiff/appellant sought to certify a class proceeding claiming redress for the Crown’s failure to hold timely bail hearings for accused persons. The claim was in negligence, breach of fiduciary duty and breach of Charter rights.

The motion judge found that certification should be denied because: (i) the pleadings did not disclose a cause of action in negligence; (ii) it was plain and obvious that the claims based on breach of fiduciary duty had no prospect of success; (iii) the appellant’s claims for breach of Charter rights were not common to class members; and (iv) a class proceeding was not the preferable procedure. The motion judge concluded that underfunding alone cannot create a civil cause of action: Phaneuf v. Ontario, 2010 ONCA 901. The impugned government actions were “core policy decisions”, and therefore the respondent was immune from liability in negligence: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42. The motion judge held that the fiduciary claims were also doomed to fail. Finally, the motion judge concluded that the only possible cause of action pleaded was for breach of Charter rights. However, he concluded that there were no common issues to be certified.

The appellant appealed the motion judge’s certification decision to the Divisional Court. The Divisional Court remitted the question of whether the Crown Liability and Proceedings Act, 2019 (“CLPA”) was a bar to certification of the negligence claims to the motion judge. Relying on his original findings of fact, the motion judge held that the impugned decisions were “core policy decisions” and the CLPA applied to the appellant’s certification motion.

The appellant’s Divisional Court certification appeal and CLPA appeal were heard together.

ISSUES:

(1) Did the motion judge err in finding that the appellant’s claims related to core policy decisions?

(2) Were the criteria in subsection 5(1) of the Class Proceedings Act, 1992 satisfied by the appellant’s Charter claim?

HOLDING:

Appeal dismissed.

REASONING:

(1) No The Court of Appeal agreed with the motion judge that the appellant’s claims related to “core policy” decisions of the government. The appellant alleged that the respondent had failed to meet the standard of care through failing to provide: (1) adequate transportation; (2) adequate interpretation services; and (3) counsel access to putative class members prior to their arrival at bail court. The Court of Appeal found that the appellant’s claim reflected policy decisions that could not ground an action in tort: R v. Imperial Tobacco, 2011 SCC 42.

The Court found no error with the decision of the motion judge, as the claims against the respondent in the proposed class action related to resource allocation for bail hearings and staffing. The Court held that the claims focused on the role of government wielding its executive authority to determine the allocation and adequacy of resources devoted to the criminal justice system.

The appellant also submitted that the motion judge failed to consider that the operational failures were as a result of bad faith on the part of the government. The Court of Appeal found that the motion judge correctly found that bad faith was not alleged in the pleadings and no particulars were pleaded.

(2) No To be certified as a class proceeding, the claim must comply with section 5(1) of the Class Proceedings Act, 1992.

The Court of Appeal agreed with the motion judge in that although the Charter claims could satisfy the cause of action criteria, they failed to raise common issues for an identifiable class. A class proceeding was therefore not the preferable procedure.

The subsection 5(1)(b) criterion of the CPA was not met (identifiable class). A class definition must be defined by reference to objective criteria, without reference to the merits of the action: Hollick v. Toronto 2001 SCC 68. The appellant’s putative class included all persons within the class period who did not get a bail hearing within 24 hours “as a result of” certain criteria. A causation criterion is inherently merit-based. The appellant’s claim required a factual determination as to the cause of the delay beyond 24 hours and would have resulted in a class definition that would be based on individual assessments and would be incapable of objective determination.

The common issue criterion in subsection 5(1)(c) was also not met. The Court found that there was no single course of conduct giving rise to the alleged breaches, and that the Charter claims were not capable of common determination: Thorburn v. British Columbia, 2013 BCCA 480.

Finally, given the conclusions above, a class proceeding was not the preferable procedure, thus the criterion in subsection 5(1) (d) of the CPA was not met.


Spiridakis v Li, 2021 ONCA 359

[Juriansz, van Rensburg and Sossin JJ.A.]

COUNSEL:

V. Leung, and C. Lau, for the appellant

A. Price, and M. Aronoff, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Anticipatory Breach, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR. 87, Butera v. Chown, Cairns LLP, 2017 ONCA 783

FACTS:

After agreeing to an extended closing date, the appellants advised the respondents that they were unable to close on the purchase of the respondent’s residential property. The respondents’ counsel advised that this was an anticipatory breach. The appellants’ counsel requested a further extension, which the respondents accepted, on proposed modest terms. The appellants did not respond to the modest terms proposed and did not complete the purchase.

The respondents sued the appellants for damages for breach of the agreement of purchase and sale. The appellants defended the action and counterclaimed for the return of their deposit and a declaration that the purchase and sale agreement had expired as of October 30, 2017. They also commenced a third-party action against their real estate agent and lawyer and the parties who had agreed and then failed to complete the purchase of their home. The respondents moved for summary judgment on their claim in the main action and to dismiss the appellants’ counterclaim, and judgment was granted in their favour for $298,847.67.

ISSUES:

(1) Did the motion judge err in concluding that there was no genuine issue requiring a trial with respect to the appellants’ defences of non est factum and the respondents’ failure to tender? (2) Did the motion judge err in granting “partial summary judgment” in the face of an outstanding third party claim? (3) Did the motion judge err in the assessment of damages, in particular by concluding that the respondents’ bridge financing costs were foreseeable? (4) Did the motion judge err in concluding that the respondents took reasonable steps to mitigate their damages?

HOLDING:

Appeal dismissed.

REASONING:

1. No. The motion judge’s findings and his rejection of the defence of non est factum were entirely supported by the record. The appellants, who had purchased two previous properties, understood they were purchasing the property in question, that there was a financing condition, and that the agreement of purchase and sale would remain binding after they waived that condition.

This was a case of anticipatory breach and in circumstances of anticipatory breach, the innocent party need not go through the meaningless exercise of tendering. When the appellants’ lawyer communicated that they were unable to close on the scheduled date, the respondents’ lawyer correctly identified that communication as an anticipatory breach and the respondents were released thereby from any obligation to tender.

The motion judge’s finding that the appellants manifested an intention not to complete the transaction on October 30 was fully supported by the evidence: their lawyer sent a letter advising that they would be unable to close that day, prompting a response by the respondents’ lawyer that this was an anticipatory breach. If, as the appellants contended, they did not know about some of the lawyers’ correspondence at the time, that was a matter for their third party claim, and did not assist in their defense.

2. No. Motions for partial summary judgement should be reserved for an issue or issues that may be bifurcated from those in the main action and that may be dealt with expeditiously and readily in a cost effective manner: Butera v. Chown, Cairns LLP, 2017 ONCA 783 at para. 34. The motion judge undertook the appropriate analysis. He concluded that the respondents’ claims against the third parties were distinct and severable from the issues in the main action. Contrary to the appellants’ argument, the defences are not inextricably intertwined with the claims made in the third party action. There was no risk of an inconsistent finding on the issues in the third party claim.

3. No. There was no error in the motion judge’s conclusion that there was no genuine issue for trial concerning the amount of the respondents’ damages, or the issue of mitigation. The amount included the minimum monthly payments made by the respondents on two lines of credit they had accessed for bridge financing to complete the purchase of their new home at the end of October 2017 until they managed to sell the property in question in June 2018. There was no error in the motion judge’s conclusion that such costs were objectively foreseeable in the circumstances, where both the appellants and the respondents were purchasing a new home at the same time that they were selling their respective properties.

4. No. The only evidence the appellants offered on mitigation was a letter of opinion from a real estate agent, which spoke to the market value of the property at the end of October 2017, in March 2018 and in June 2018 when it was finally sold. The motion judge properly considered that the appellants had chosen not to cross-examine the respondents on why the property was listed for so long, when he concluded that mitigation was not a genuine issue for trial.


Hillmount Capital Inc. v Pizale, 2021 ONCA 364

[Strathy C.J.O., Brown and Miller JJ.A.]

COUNSEL:

J. Spotswood and R. Migicovsky, for the moving parties/appellant

R. Macdonald and T. Prpa, for the receiver

B. Conroy, for the purchasers

T.M. Walman, for the first mortgagee

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Reviews of Decisions, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Romspen Investment Corporation v. Courtice AutoWreckers Limited, 2017 ONCA 301, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

FACTS:

The appellants owned a partially renovated residential property in Toronto. The respondent is the first mortgagee of the property and applied for an order appointing Zeifman Partners Inc. (the “Receiver”), as receiver of the property. This order was granted by Koehnen J. The property was then sold on an “as is” basis, following an approval order from Conway J. A further administrative order was granted to extend the Receiver’s borrowing authority to $250,000.

The appellants filed a notice of appeal of both the approval and the administrative order. This was followed by two motions. The Receiver moved for orders declaring that the appellants did not have an automatic right of appeal under ss. 193(a)-(d) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 (the “BIA”) and denying them leave to appeal the approval order under the BIA s. 193(e). The appellants brought a motion for a declaration that they had the right to appeal the approval order under either s. 193(c) or 193(e) of the BIA. After the chambers judge ruled that the appellants did not have an automatic right of appeal and that the sale should proceed, the appellants brought an urgent motion to review that decision under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

ISSUES:

(1) Did the chambers judge err in applying the legal principles concerning s. 193(c) of the BIA too narrowly? (2) Did the chambers judge misapprehend the appellants’ key arguments? (3) Did the chambers judge err in failing to grant leave to appeal pursuant to s. 193(e) of the BIA? (4) Was the administrative order extending the Receiver’s borrowing power unreasonable?

HOLDING:

Motion dismissed.

REASONING:

(1) No. 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225 established that s. 193(c) of the BIA does not apply to orders that (i) that are procedural in nature, (ii) that do not bring into play the value of the debtor’s property or (iii) do not result in a loss. As the Court stated in Romspen Investment Corporation v. Courtice AutoWreckers Limited, 2017 ONCA 301, s. 193(c) of the BIA is to be narrowly construed.

(2) No. The appellants argued that the chambers judge erred in holding that they did not suffer a loss greater than $10,000 as a result of the approval order. They further argued that the Chambers Judge misapprehended their ground of appeal, which was not based on procedure. Rather, it was based on a failure of the Motion Judge to properly weigh the interests of the creditors and debtor.

The appellants stated that they lost more than $10,000 in equity due to the “as is” sale, as opposed to letting them complete renovations and sell “as completed.” However, the chambers judge clearly understood this argument, but held that it was not relevant to the s. 193(c) analysis. This was because the terms of sale were set in the appointment order of the Receiver, not in the approval order. Therefore, it was the appointment order that gave rise to risk of loss, but it was not contested at the time.

(3) No. The appellants argued that the chambers judge ought to have granted leave to appeal under s. 193(e) of the BIA. The Court held that the chambers judge properly applied the test from Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282 and gave appropriate deference to the motions judge in concluding that the proposed appeal 1) would have little importance to bankruptcy/insolvency matters beyond the parties, 2) did not raise a serious issue for appeal, and 3) would hinder the receivership and risk losing the sale to the purchasers.

(4) No. The appellants argued that extending the Receiver’s borrowing power to $250,000 created a loss. However, the purpose of the further borrowing power was to enable the Receiver to complete its efforts to sell the property on an “as is” basis. The increased borrowing power was ancillary to the exercise of the Receiver’s powers under the appointment order and did not result in any further jeopardy of value than that worked by the appointment order. The chambers judge was reasonable in dismissing the appellants’ motion.


Rooplal v Fodor, 2021 ONCA 357

[Rouleau, Benotto and Thorburn JJ.A.]

COUNSEL:

J.T. Curry, A.H. Kanji, and C. Townsend, for the appellants

R.R. Patterson and N.C. Misir, for the respondent

Keywords: Torts, Negligence, MVA, Insurance, Unidentified Motorist Coverage, Civil Procedure, Adding Parties, Limitation periods, Insurance Act, R.S.O. 1990, c I.8, s. 265, Uninsured Automobile Coverage, R.R.O. 1990, Reg. 676 (Section 6 of Schedule), Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4 and 5, Longo v. MacLaren Art Centre, 2014 ONCA 526, Apotex Inc. v. Nordion (Canada) Inc., 2019 ONCA 23, July v. Neal (1986), 32 D.L.R. (4th) 463 (Ont. C.A.), Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, leave to appeal refused, [2014] S.C.C.A. No. 143, Chahine and Al-Dahak v. Grybas, 2014 ONSC 4698, Platero v. Pollock, 2015 ONSC 2922, Sukhu v. Bascombe, 2018 ONSC 2878, Johnson v. Wunderlich (1986), 34 D.L.R. (4th) 120 (Ont. C.A.), Hier v. Allstate Insurance Co. of Canada (1988), 51 D.L.R. (4th) 1 (Ont. C.A.), Chambo v. Musseau (1993), 106 D.L.R. (4th) 757 (Ont. C.A.), Morrison v. Barzo, 2018 ONCA 979, Kosanovic v. Wawanesa Mutual Insurance Co. (2004), 237 D.L.R. (4th) 441 (Ont. C.A.), Galego v. Pereira (2005), 207 O.A.C. 384 (Div. Ct.), Bhatt v. Doe, 2018 ONSC 950, Wilkinson v. Braithwaite, 2011 ONSC 2356, Tucker v. Unknown Person, 2015 NLCA 21, leave to appeal refused, [2015] S.C.C.A. No. 250

FACTS:

On May 4, 2012, the respondent, was injured while riding a Toronto Transit Commission (“TTC”) bus when an unidentified motorist cut off the bus, causing the driver to brake suddenly and causing R to be propelled forward and hit her head. The respondent brought a claim against the unidentified motorist, the unidentified owner, the TTC, and the TTC bus driver on March 26, 2014. The respondent also sought a declaration and indemnification from her insurer, Novex, under her Family Protection Coverage which provides coverage for injuries sustained as a result of the actions of unidentified motorists.

On September 11, 2014, Novex served its Statement of Defence and Crossclaim against the TTC and its driver for denying the respondent’s claim for uninsured motorist insurance. On December 10, 2015, Novex’s counsel wrote to the respondent and TTC counsel questioning why TTC Insurance was not yet included as a defendant to the action.

The respondent served her motion to add TTC Insurance as a defendant on May 4, 2017, five years after the accident and three years after she commenced her claim. TTC Insurance opposed the motion on the ground that the limitation period had expired.

The motion judge permitted the claim against TTC Insurance to proceed on the basis that the two-year limitation period for commencing a claim set out in s. 4 of the Limitations Act, 2002 had not expired as, under the criteria set out in s. 5, the respondent had not yet discovered her claim against the insurer. The Divisional Court upheld that decision.

ISSUES:

(1) Is the respondent’s claim against TTC Insurance for unidentified motorist coverage statute barred by sections 4 and 5 of the Limitations Act, 2002?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The respondent’s claim against TTC Insurance was not barred by sections 4 and 5 of the Limitations Act, 2002 because her claim will only be discovered once TTC Insurance fails to indemnify the respondent for the damage caused by the unidentified motorist. As the respondent had not made any demand for indemnification, the two-year limitation period had not yet begun, nor had it expired.

Section 5 of the Limitations Act, 2002 provides that a claim is only discovered when the plaintiff knows or ought to know that she has suffered loss or injury by an act or omission of the person against whom the claim is made, and that a proceeding would be appropriate. Here, the respondent discovered her claim against the unidentified motorist on the day of the accident; however, she will only discover her claim against TTC Insurance upon a declaration that the TTC and TTC bus driver were not contributorily negligent for even 1% of her losses. This is because of the 1% rule where if any other defendant is found contributorily negligent for 1% of the plaintiff’s losses, the plaintiff would have no right to declaratory relief or indemnification from TCC Insurance under section 265 of the Insurance Act.

TTC Insurance argued that this analysis of section 5 of the Limitations Act, 2002 brings about a policy concern, as insured parties have control over when to trigger the limitation period by holding off on making a demand for indemnification. The Court disagreed. The Schedule contained in Regulation 676 of Uninsured Automobile Coverage, R.R.O. 1990 requires insured parties who commence legal action to provide a writ of summons to the insurer along with written notice of the claim within thirty days of the accident. Therefore, the insurer is apprised of the claim against uninsured motorists and may take steps to protect its interests, such as by refusing to indemnify a section 265 claimant, and retains control of the commencement of the limitation period.


Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2021 ONCA 360

[Huscroft, Nordheimer and Harvison Young JJ.A.]

COUNSEL:

A. Sternberg and E. Hives, for the appellants

C.A. Dirks, R. Fielding and R. Davis, for the respondent

Keywords: Real Property, Condominiums, Oppression, Contracts, Cost-Sharing, Common Facilities, Civil Procedure, Stay in favour of Arbitration, Fresh Evidence, Costs, Condominium Act, 1998, S.O. 1998, c. 19, s. 132(1), s. 132, ss. 133 and 135, Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(2), TELUS Communications Inc. v. Wellman, 2019 SCC 19, Uber Technologies Inc. v. Heller, 2020 SCC 16, MTCC No. 965 v. MTCC No. 1031 and No. 1056, 2014 ONSC 5362, Deluce Holdings Inc. v. Air Canada (1992), 98 D.L.R. (4th) 509 (Gen. Div.), Palmer v. The Queen, [1980] 1 S.C.R. 759

FACTS:

The respondent and appellant condominium corporations entered into a cost-sharing agreement (the “Reciprocal Agreement”) wherein they agreed to contribute to the costs of the operation and maintenance of defined Common Facilities. TSCC 1636, upon its creation, assumed all the appellant’s rights and obligations under the Reciprocal Agreement. The appellant alleged that the respondent owed $362,290.88 for its proportionate share of the costs relating to the use of three units in TSCC 1636.

The respondent commenced an application for various forms of relief. In response to the Notice of Application, the appellant brought a motion to stay the application in favour of arbitration. The motion judge dismissed the appellant’s motion for a stay. The motion judge found that the essence of the claim was the appellant’s allegedly oppressive conduct. The motion judge concluded that while some aspects of the dispute could be handled via arbitration, the core of the application needed to proceed in court in order to be resolved.

ISSUES:

Did the motion judge err in dismissing the appellant’s motion to stay the application in favour of arbitration? (2) Did the motion judge err in finding that the “pith and substance” of the dispute was the asserted oppression claim? (3) Can the respondent introduce fresh evidence on appeal?

HOLDING:

Appeal allowed.

REASONING:

Yes. The Court does not have discretion to refuse to stay claims that are dealt with in an arbitration agreement: TELUS Communications Inc. v. Wellman, 2019 SCC 19. The dispute between the respondent and appellant was covered by the broad language of the arbitration clause, that is, “any dispute that may arise under this Agreement”. The motion judge, therefore, should have stayed that portion of the application instituted by the respondent.

(2) Yes. The Court found that the core dispute was with respect to the interpretation and application of the Reciprocal Agreement. If the issues relating to the Reciprocal Agreement were ultimately determined in favour of the appellant, there would be little left of the claims advanced by the respondent.

The motion judge erred in his interpretation of the oppression section of the Condominium Act, 1998. The language of subsection 135(1) is permissive, not mandatory. Section 135(1) does not oust the jurisdiction of an arbitrator to consider the same relief, if that relief is part of the dispute in question that properly falls within the terms of the arbitration provision. There was nothing that would preclude an arbitrator from considering the alleged oppressive conduct advanced by the respondent.

(3) No. The fresh evidence introduced by the respondent did not meet the test for the admission of fresh evidence: Palmer v. The Queen, [1980] 1 S.C.R. 759. None of the fresh evidence was relevant to the issue of the applicability of the arbitration clause, nor could it have affected the result on that issue.


SHORT CIVIL DECISIONS

Cheng v Sze, 2021 ONCA 346

[Strathy C.J.O., Feldman and Sossin JJ.A]

COUNSEL:

R. A. Gosbee, for the appellant

K. H. Nathens and D. Duong, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Child Support, Civil Procedure, Standard of Review, Evidence, Family Law Act, R.S.O. 1990, c. F.3, ss. 4(3), Child Support Guidelines O. Reg 391/97, s. 19, Hickey v. Hickey, [1999] 2 SCR 518, Jonas v. Pacitto, 2020 ONCA 727, Drygala v. Pauli (2002), 219 D.L.R. (4th) 319 (Ont. C.A.)

Subway Franchise Restaurants of Canada Ltd. v. BMO Life Assurance Company, 2021 ONCA 349

[Juriansz, Huscroft and Jamal JJ.A.]

COUNSEL:

C.J. Cosgriffe and M.T. Dzurman, for the appellant

M. Koczerginski, for the respondents

Keywords: Contracts, Real Property, Commercial Leases, Renewal, Duty of Good Faith, CM Callow Inc. v. Zollinger, 2018 ONCA 896, C.M. Callow Inc. v. Zollinger, 2020 SCC 45

C.C. v J.B., 2021 ONCA 363

[Huscroft, Paciocco and Jamal JJ.A.]

COUNSEL:

R. Niman and B. Purdon-McLellan, for the appellant

A. Kirschbaum, for the respondent J.B.

K. A. Cooligan, for the respondents P.B. and L.B.

Keywords: Family Law, Custody and Access, Civil Procedure, Jurisdiction, Forum Non ConveniensFamily Law Act, R.S.O. 1990, c. F.3, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16.1, 3 and 4, Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 21 and 72, Family Law Rules, O. Reg. 114/99, Rule 16(12), Lilydale Cooperative Limited v. Meyn Canada Inc., 2019 ONCA 761, Kunuthur v. Govindareddigari, 2018 ONCA 730, Club Resorts Ltd. v. Van Breda, 2012 SCC 17

Walcott v Toronto Transit Commission, 2021 ONCA 358

[Strathy C.J.O, Feldman and van Rensburg JJ.A.]

COUNSEL:

A.T. Walcott, acting in person

J. Lim, for the respondent

Keywords: Intellectual Property, Copyright, Civil Procedure, Summary Judgment, Harte-Eichmanis v. Fernandes, 2012 ONCA 266