Good afternoon.

Following are summaries of the decisions of the Court of Appeal for Ontario for the week of April 18, 2022.

In Waxman v. Waxman, the Court upheld the permanent stay of the action as a result of the failure to disclose a Mary Carter type of settlement agreement between the plaintiff and some of the defendants. In arriving at this conclusion, the Court determined that the motion judge did not err in applying Handley Estate and the requirement that any agreement which changes the landscape of the litigation by altering the adversarial position of the litigants must be disclosed immediately, not months later.

In Render v. ThyssenKrupp Elevator (Canada) Limited, a just cause dismissal case, the Court upheld the trial judge’s finding that the employer had just cause to terminate the employee. However, the Court also found that the trial judge erred by not awarding the employee his termination entitlements under the ESA. In addition, the Court was of the view that, as a result of litigation misconduct, the respondent employer should not have received any costs of the trial (the trial judge had awarded costs on a 50% reduced basis as a result of that conduct).

In Ontario (Natural Resources and Forestry) v. Town of the South Bruce Peninsula, the Court upheld the lower court’s conviction of the Town of the South Bruce Peninsula on two counts of damaging the habitat of an endangered species, after finding that the trial judge correctly interpreted the Endangered Species Act and correctly qualified an expert witness at trial.

Other topics included business interruption insurance coverage for COVID-19 and vexatious litigants.

Wishing everyone celebrating a Happy Orthodox Easter.

Table of Contents

Civil Decisions

202135 Ontario Inc. v. Northbridge General Insurance Corporation , 2022 ONCA 304

Keywords: Contracts, Insurance, Interpretation, Coverage, Business Interruption Loss, COVID-19, Civil Procedure, Appeals, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245, Surespan Structures Ltd. v. Lloyds Underwriters, 2021 BCCA 65, Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7

Render v. ThyssenKrupp Elevator (Canada) Limited , 2022 ONCA 310

Keywords: Employment Law, Dismissal for Cause, Punitive Damages, Civil Procedure, Costs, Litigation Misconduct, Employment Standards Act, 2000, S.O. 2000, c. 41, Termination and Severance of Employment, O. Reg. 288/01, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), McKinley v. BC Tel, 2001 SCC 38, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Carscallen v. FRI Corp., 2005 C.L.L.C. 210-038 (Ont. S.C.), Housen v. Nikolaisen, 2002 SCC 33, Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McCallum v. Saputo, 2021 MBCA 62, Plester v. Polyone Canada Inc., 2011 ONSC 6068, Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 8049, Cummings v. Quantum Automotive Group Inc., 2017 ONSC 1785, Ojo v. Crystal Claire Cosmetics Inc., 2021 ONSC 1428, Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, McCabe v. Roman Catholic Episcopal Corp., 2019 ONCA 213, Tadayon v. Mohtashami, 2015 ONCA 777, Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, Hobbs v. Hobbs, 2008 ONCA 598, Pinder Estate v. Farmers Mutual Insurance Company (Lindsay), 2020 ONCA 413, Georg v. Hassanali (1989), 18 R.F.L. (3d) 225 (Ont. S.C.), Andrews v. Andrews (1980), 32 O.R. (2d) 29 (C.A.)

Ontario (Natural Resources and Forestry) v. Town of the South Bruce Peninsula , 2022 ONCA 315

Keywords: Environmental Law, Provincial Offences, Statutory Interpretation, Evidence, Expert Witnesses, Qualifications, Endangered Species Act, 2007, S.O. 2007, c. 6, ss. 2, 9, 10 and 17, Fisheries Act, R.S.C. 1985, c. F-14, Endangered Species Act, 2007, S.O. 2007, c. 6, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. High, 2003 BCSC 1723, R. v. Rhodes, 2007 BCPC 1, R. v. Live Nation, 2016 ONCJ 223, R. v. Abbey, 2017 ONCA 640, R. v. Mills, 2019 ONCA 940, R. v. Natsis, 2018 ONCA 425, Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., [2015] O.J. No. 6130 (C.J.), Bruff-Murphy v. Gunawardena, 2017 ONCA 502, leave to appeal refused, [2017] S.C.C.A. No. 343, R. v. Tang, 2015 ONCA 470, leave to appeal refused, [2015] S.C.C.A. No. 486, R. v. McManus, 2017 ONCA 188, R. v. T.A., 2015 ONCJ 624, R. v. Livingston, 2017 ONCJ 645, 356 C.C.C. (3d) 514, R. v. Tesfai, 2015 ONSC 7792, Moore v. Getahun, 2015 ONCA 55, leave to appeal to refused, [2015] S.C.C.A. No. 119

Mukwa v. Farm Credit of Canada , 2022 ONCA 320

Keywords: Civil Procedure, Abuse of Process, Vexatious Litigants, Provincial Public Transportation Act and Highway Improvement Act, R.S.O. 1990, c. P.50, Rules of Civil Procedure, Rules 2.1.01(1), 2.1.01(3) and 15.01(3), Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Khan v. Krylov & Company LLP, 2017 ONCA 625, Rallis v. Myers, 2019 ONCA 437, Khan v. Law Society of Ontario,2020 ONCA 320, Mukwa v. Farm Credit of Canada,2021 ONSC 1632, Sarac v. Wilstar Management Ltd., 2021 ONSC 7776, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 3820, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 2541, National Bank of Canada v. Guibord, 2021 ONSC 6549, Guibord v. National Bank, 2021 ONSC 5408, Trinity Western University v. Law Society of Upper Canada,2018 SCC 33, Groia v. Law Society of Upper Canada, 2018 SCC 27, R. v. Cunningham, 2010 SCC 10, R. v. Anderson, 2014 SCC 41

Waxman v. Waxman , 2022 ONCA 311

Keywords: Civil Procedure, Settlements, Duty to Disclose, Summary Judgment, Permanent Stays, Abuse of Process, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Housen v. Nikolaisen, 2002 SCC 33, Carotiv. Vuletic, 2021 ONSC 2778, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66

CIVIL DECISIONS

202135 Ontario Inc. v. Northbridge General Insurance Corporation , 2022 ONCA 304

[Feldman, Pepall and Favreau JJ.A.]

COUNSEL:

A. Evangelista, J. Kent and N. Dehnashi, for the appellant

D. Muise, for the respondents

Keywords: Contracts, Insurance, Interpretation, Coverage, Business Interruption Loss, COVID-19, Civil Procedure, Appeals, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245, Surespan Structures Ltd. v. Lloyds Underwriters, 2021 BCCA 65, Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7

FACTS: 

The respondents operate seven daycare centres called Helping Hands outside the Toronto area. Their business at the seven locations was insured through a Business Choice Policy from the appellant Northbridge from February 2020 to February 2021. The policy included a special endorsement to cover business losses arising from a pandemic. The business loss portion of the original insuring agreement is contained in Part II of the policy, and originally did not include coverage in the case of a pandemic. That coverage was added by a special endorsement titled the A.D.C.O. Program Endorsement, which amended the Part I – Property Insured, Part II – Business Income, and Part III – Commercial General Liability coverages.

The respondents made a claim in relation to COVID-19 closures from March 17, 2020 to June 22, 2020. The application judge concluded that the limit of liability clause provides coverage of $50,000 on a per location basis, for a total exposure of $350,000.

The appellants argued that the proper interpretation of the policy translates to $50,000 as a global total for the seven locations.

ISSUES:

(1) Did the application judge err in her interpretation of the limit of liability clause contained in the “Outbreak & Negative Publicity” coverage extension for business losses suffered during a pandemic?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The standard of review was correctness, on the basis that the insurance policy was a standard form policy. The insurance policy under review was clearly a bespoke policy that included and excluded defined coverages for specified amounts in respect of each of the respondents’ seven business locations. However, the clauses within the policy were standard, unmodified clauses that were also offered to similar businesses. In that way, they were in a standard form.

The court outlined six reasons for its decision:

(a) The internal wording of the limit of liability clause was unambiguous. While the application judge was incorrect in finding that the limit of liability clause was ambiguous, her overall interpretation of coverage found in the limit of liability clause was correct. The court stated that looking only at the words of the limit of liability clause itself, the maximum amount is stated to be “or as otherwise indicated on the ‘schedule’”. As in this policy there are seven separate schedules, one for each scheduled risk location, therefore the reference to “the ‘schedule’” can only mean to each individual schedule for each risk location. The only reference in the schedules to a limit of liability for business losses is the “Actual Loss Sustained”, which applies to the business losses not referred to in the extended endorsement.

(b) The respondent insured’s interpretation was reinforced by the language of the indemnity agreement for pandemic loss coverage in the A.D.C.O. Program Endorsement. In accordance with the interpretive principles from the governing case law, as both the indemnity agreement and the limit of liability clause were subclauses of the “Outbreak & Negative Publicity” extension of coverage, they were to be read together (exclusions should be read in light of their initial grant of coverage). The indemnity agreement provided coverage for loss of business income as a result of a pandemic outbreak “at your ‘scheduled risk location’”. Being in the singular rather than the plural, it was referring to each single scheduled risk location (i.e., each of the seven daycare centres).

(c) In regards to the appellant’s argument that the court was reading in the word each, the court stated that the singular reference to “scheduled risk location” indicated that the indemnity was for losses at the location listed on the schedule. In this case, there were seven separate schedules, one for each risk location. It was not necessary to read in the word “each” because the use of the singular performs the same function.

(d) The indemnity and limit of liability provisions were consistent with the structure of the entire policy, which insured each location for its losses, as defined precisely in the separate schedules.

(e) The appellant had not referenced any provisions of the insurance agreement or the applicable endorsements that provided coverage based on losses or damage at a scheduled risk location where the limit of liability for such coverage applied to all locations on an aggregate basis, rather than on a per location basis.

(f) The premium the respondents paid for the extended coverage was based on and divided among the seven risk locations in different amounts.


Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 3102022 ONCA 310

[Feldman, Pepall and Tulloch JJ.A.]

COUNSEL:

C. Foulon and B. Hassibi, for the appellant

D. G. Cowling and A. J. Sinclair, for the respondent

Keywords: Employment Law, Dismissal for Cause, Punitive Damages, Civil Procedure, Costs, Litigation Misconduct, Employment Standards Act, 2000, S.O. 2000, c. 41, Termination and Severance of Employment, O. Reg. 288/01, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), McKinley v. BC Tel, 2001 SCC 38, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Carscallen v. FRI Corp., 2005 C.L.L.C. 210-038 (Ont. S.C.), Housen v. Nikolaisen, 2002 SCC 33, Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McCallum v. Saputo, 2021 MBCA 62, Plester v. Polyone Canada Inc., 2011 ONSC 6068, Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 8049, Cummings v. Quantum Automotive Group Inc., 2017 ONSC 1785, Ojo v. Crystal Claire Cosmetics Inc., 2021 ONSC 1428, Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, McCabe v. Roman Catholic Episcopal Corp., 2019 ONCA 213, Tadayon v. Mohtashami, 2015 ONCA 777, Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, Hobbs v. Hobbs, 2008 ONCA 598, Pinder Estate v. Farmers Mutual Insurance Company (Lindsay), 2020 ONCA 413, Georg v. Hassanali (1989), 18 R.F.L. (3d) 225 (Ont. S.C.), Andrews v. Andrews (1980), 32 O.R. (2d) 29 (C.A.)

FACTS:

The appellant employee appealed the judgment that upheld his dismissal for cause by the respondent employer. The appellant was a 30-year employee in a managerial role. His dismissal followed a single incident that occurred in the workplace where the appellant slapped a female co-worker, Ms. V, on her buttocks. The trial judge found that the incident caused a breakdown in the employment relationship that justified dismissal for cause.

Although he rejected the motorboating embellishment by Ms. V, the trial judge found, based on the appellant’s own evidence, that his face was in close proximity to Ms. V’s breasts for two to three seconds, and concluded that he was invading her personal space, and that it was inappropriate conduct. The trial judge found that the slap was sufficient to cause Ms. V to be shocked and upset. He concluded that a light tap would not have caused her to react the way she did. The trial judge found that the appellant did not appreciate the seriousness of his action. Although he apologized, he did not believe that what he did amounted to sexual harassment. He confirmed at trial that he still held that belief. The trial judge found that the respondent had met its onus and established that summary dismissal was the appropriate response in all the circumstances. Although he dismissed the appellant’s action on the merits, the trial judge devoted eight paragraphs at the end of his reasons to expressing his serious concerns about the litigation conduct of the respondent and Ms. V.

In the appeal, the appellant disputed two of the trial judge’s factual findings – that the appellant’s contact with his co-worker was not accidental and that the appellant’s remorse was not genuine. The appellant also sought a finding that he was entitled to benefits under the Employment Standards Act, 2000, S.O. 2000, c. 41, which was not addressed by the trial judge. Additionally, the appellant appealed from the trial judge’s failure to award punitive damages for the independent actionable wrong arising from the respondent’s litigation conduct, or in the alternative, he sought leave to appeal the award of costs, which the trial judge used to address the litigation misconduct.

ISSUES:

(1) Did the trial judge err by making findings of fact that were not supported by the evidence or that involved inconsistent credibility findings?

(2) Did the trial judge err in law by finding that there was just cause for termination of the appellant’s employment?

(3) Did the trial judge err by failing to award the appellant his entitlements under the ESA?

(4) Did the trial judge err by failing to award punitive damages for litigation misconduct?

(5) Did the trial judge err in his award of costs?

HOLDING:

Appeal allowed in part.

REASONING:

(1) No.

The appellant did not identify a palpable and overriding error. Instead, his submission amounted to an argument that the trial judge should have accepted certain evidence and rejected other evidence, an argument that does not allow appellate intervention. As the trier of fact, it is for the trial judge to hear and see the evidence and draw conclusions from it.

(2) No.

The standard of review played an important role in considering the argument that the evidence showed there was no breakdown in the employment relationship and that there were other disciplinary measures available. The appellant did not say that the trial judge did not apply the correct legal test or case law. In effect, he submitted that the trial judge failed to give sufficient weight to certain evidence in his analysis. With respect to the appellant’s argument that the respondent had treated other employees more leniently in the past, it must be remembered that each case is to be examined on its own particular facts and circumstances. The court found no error in the trial judge’s approach or analysis. The trial judge considered and weighed all of the relevant factors. His conclusion was entitled to deference.

(3) Yes.

Under the ESA, employees who have been employed for eight years or more are entitled to eight weeks of termination pay, unless they are disentitled to such pay under the statute. The evidentiary basis for the ESA entitlement claim was also established at trial, where the appellant testified that he received no compensation or severance when his employment was terminated.

The appellant’s conduct did not rise to the level of wilful misconduct required under the Termination and Severance of Employment, O. Reg. 288/01. While the trial judge found that the touching was not accidental, he made no finding that the conduct was preplanned. The appellant proved his entitlement to eight weeks of termination pay. However, the Court was not directed to anywhere in the record of evidence that the respondent has a $2.5 million payroll, as required under s. 64(1)(b). Accordingly, the Court was not in a position to award the requested 26 weeks of severance pay.

(4) No. (5) Yes.

The Court addressed these questions together. The appellant asked the trial judge to award punitive damages against the respondent for trial misconduct. The misconduct arose as a result of the finding that the respondent retained a trial publicist who facilitated the breach of the witness exclusion order, thereby tainting the evidence of a number of witnesses, and whose “inflammatory and sensationalist” press release contained unproven allegations and was intended to possibly pressure the appellant and influence the trial judge.

The litigation misconduct at this trial was particularly egregious, as described by the trial judge. Litigation misconduct can be an independent actionable wrong that can give rise to an award of punitive damages. The trial judge declined to deal with the issue in that way, and instead determined that the respondent’s litigation misconduct could be addressed in the context of entitlement to costs. The trial judge was entitled to take that approach and his decision on this point was entitled to deference. As to costs, the trial judge granted costs to the respondent but reduced the amount to 50% of what it would otherwise have been entitled to but for the litigation misconduct. The litigation misconduct in this case undermined the fairness and integrity of the judicial system. It should not be tolerated or condoned. The trial misconduct disentitled the respondent to all of its costs of the trial. The appeal from the costs award was therefore allowed and the respondent was denied all of its costs of the trial.


Ontario (Natural Resources and Forestry) v. Town of the South Bruce Peninsula, 2022 ONCA 315

[Lauwers, Pardu and Sossin JJ.A.]

COUNSEL:

J. C. Lisus and C. Chen, for the appellant

N. Adamson and M. Ritchie, for the respondent

L. Beck, B. Roe and Z. Biech, for the interveners, Environmental Defence and Ontario Nature

Keywords: Environmental Law, Provincial Offences, Statutory Interpretation, Evidence, Expert Witnesses, Qualifications, Endangered Species Act, 2007, S.O. 2007, c. 6, ss. 2, 9, 10 and 17, Fisheries Act, R.S.C. 1985, c. F-14, Endangered Species Act, 2007, S.O. 2007, c. 6, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. High, 2003 BCSC 1723, R. v. Rhodes, 2007 BCPC 1, R. v. Live Nation, 2016 ONCJ 223, R. v. Abbey, 2017 ONCA 640, R. v. Mills, 2019 ONCA 940, R. v. Natsis, 2018 ONCA 425, Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., [2015] O.J. No. 6130 (C.J.), Bruff-Murphy v. Gunawardena, 2017 ONCA 502, leave to appeal refused, [2017] S.C.C.A. No. 343, R. v. Tang, 2015 ONCA 470, leave to appeal refused, [2015] S.C.C.A. No. 486, R. v. McManus, 2017 ONCA 188, R. v. T.A., 2015 ONCJ 624, R. v. Livingston, 2017 ONCJ 645, 356 C.C.C. (3d) 514, R. v. Tesfai, 2015 ONSC 7792, Moore v. Getahun, 2015 ONCA 55, leave to appeal to refused, [2015] S.C.C.A. No. 119

FACTS:

The Piping Plover is an endangered species protected by the Endangered Species Act (the “Act”). Its habitat is protected under s. 10(1)(a) of the Act. The appellant, the Town of the South Bruce Peninsula (the “Town”), was convicted of two (2) counts of damaging the habitat of the Piping Plover (the “Plover”) at Sauble Beach.

First, in April 2017, the Town used heavy equipment to mechanically rake and flatten the entire width and length of the beach, which spanned approximately 11 kilometres. The maintenance work far exceeded what had been approved by the Ministry of Natural Resources (“MNR”). Two (2) expert witnesses at trial testified that these actions damaged the Plover habitat by removing areas and features that Plover have used for nesting, foraging, feeding, shelter, and camouflage, as well as damaging the ecosystem’s viability.

Second, between August 23, 2017 and September 7, 2017, the Town used a bulldozer and agricultural cultivator to work the full length of the beach. The Town cut into foredunes and dunes, removed several feet of vegetated dune, levelled elevated areas and depressions in the sand and lowered the grade of the beach. The two (2) experts testified that this work, which MNR had not approved, damaged or destroyed Plover habitat by removing features used for nesting, foraging, shelter and camouflage, as well those which were crucial to the ecosystem’s sustainability.

Prior to the trial, the trial justice qualified biologist S. R. as one of the expert witnesses, despite the Town’s objection that she lacked the independence and impartiality, due to being an MNR employee since 2003. She has worked on the protection of the Piping Plover and the application of the Act since 2008. She had developed protocols for avoiding harm to the species and its habitat, at Sauble Beach and elsewhere. S. R. prepared a memorandum for Director of Enforcement for the Midhurst office of the MNR, to provide an opinion as to whether the Piping Plover habitat was damaged or destroyed by the Town in 2017. S. R. was also involved in the 2018 review of a stop order preventing the Town from undertaking similar beach maintenance.

On the first count, the trial judge concluded that the mechanical raking of Sauble Beach just prior to the arrival of the Plover caused damage to its habitat, and convicted the Town on the first count. On the second count, the trial judge found that the bulldozing and levelling parts of Sauble Beach caused damage to the Plover habitat, and convicted the Town on the second count. The Town contravened its own bylaw by failing to stay outside of the 30 historical dunes and causing “long-lasting or even permanent” damage to the foredune and beach dunes. The Town could not establish a due diligence defence because the work contravened its bylaw and lacked MNR authorization.

The Town appealed the convictions on three grounds: (1) that the trial judge erred in his interpretation of “damage” under the Act; (2) that the trial judge erred in interpreting “habitat” under the Act as any area that the at-risk species made use of; and (3) that the trial judge erred in qualifying S. R. as an expert. The appeal judge refused to overturn the convictions and dismissed the appeal.

The Town appealed further. The appellant submitted that, in interpreting s. 10(1) of the Act, the question was not whether the Piping Plover sustained damage, but rather whether its habitat sustained damage. The appellant also reiterated its arguments that the trial judge ought not to have qualified an MNR biologist to give expert evidence.

ISSUES:

(1) Did the trial judge err in his interpretation of s. 10(1) of the Act?

(2) Did the trial judge err in qualifying S. R. as an expert?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The trial justice considered the legislative purposes and the factual context in his interpretation of s. 10(1) of the Act. There was no basis to conclude that the trial judge’s ultimate findings on questions of mixed fact and law were tainted by palpable and overriding error.

The trial justice considered the text of the legislative prohibition and adopted a dictionary definition of damage as to do something physical that causes a feature to be less attractive, useful or valuable. “Habitat” is defined in s. 2(1) to mean “an area on which the species depends, directly or indirectly, to carry on its life processes, including life processes such as reproduction, rearing, hibernation, migration or feeding”.

The statutory regime creates an absolute prohibition against damage to the habitat of an endangered species but allows the Minister to permit some intrusion where the public interest so requires. The Act should be given a generous interpretation in light of its remedial nature and its objective of environmental protection. The Court did not accept the argument of the appellant that there was no evidence of any link between the actions of the Town and any effect on the Plover habitat. The trial judge was entitled to and did accept the evidence of the other prosecution expert, aside from S. R., that the Town’s actions damaged the habitat of the Plover. The work done by the appellant went well beyond that performed in earlier years, in consultation with the MNR, and could not be characterized as a minimal interference with the Plover habitat.

(2) No.

The Court owes significant deference to a trial judge’s decision on the admissibility of expert opinion evidence absent an error of principle, a material misapprehension of evidence or an unreasonable conclusion. The trial justice concluded that this was not one of the rare cases where the evidence of a proposed expert should be excluded because he or she was unwilling or incapable of carrying out his or her duty reasonably. The trial judge’s decision was reasonable and there was no basis to intervene.

There was nothing unreasonable about S. R. expressing an opinion that the Town’s actions damaged the habitat before she physically attended at the beach, provided that she was given an accurate description of the Town’s actions. There was no context provided to permit the trier to conclude that there was evidence of bias. The fact that S. R. was called as a witness in relation to the 2018 stop work order said nothing about her ability to fulfil her duty to the court. S. R.’s commitment to the welfare of the Plover was not a basis to disqualify her. Her concern mirrored explicit legislative goals.


Mukwa v. Farm Credit of Canada, 2022 ONCA 320

[MacPherson, van Rensburg and Roberts JJ.A.]

COUNSEL:

Grand Chief W. M., acting in person

No one else appearing for the appellants

Keywords: Civil Procedure, Abuse of Process, Vexatious Litigants, Provincial Public Transportation Act and Highway Improvement Act, R.S.O. 1990, c. P.50, Rules of Civil Procedure, Rules 2.1.01(1), 2.1.01(3) and 15.01(3), Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Khan v. Krylov & Company LLP, 2017 ONCA 625, Rallis v. Myers, 2019 ONCA 437, Khan v. Law Society of Ontario,2020 ONCA 320, Mukwa v. Farm Credit of Canada,2021 ONSC 1632, Sarac v. Wilstar Management Ltd., 2021 ONSC 7776, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 3820, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 2541, National Bank of Canada v. Guibord, 2021 ONSC 6549, Guibord v. National Bank, 2021 ONSC 5408, Trinity Western University v. Law Society of Upper Canada,2018 SCC 33, Groia v. Law Society of Upper Canada, 2018 SCC 27, R. v. Cunningham, 2010 SCC 10, R. v. Anderson, 2014 SCC 41

FACTS:

The appellants in the appeals in issue claimed to be members of the Anishinabek Solutrean Métis Indigenous Nation (“ASMIN”). The appeals further shared the ASMIN Grand Chief W. M. (“Grand Chief”) as either an appellant, a purported appellant by inserting himself into the title of proceedings on appeal, or a purported representative of the appellant(s).

In response to the Court’s notices to the appellants, pursuant to Rule 2.1.01(3) of the Rules of Civil Procedure, that the Court was considering dismissing or staying any or all of the subject appeals, written submissions were provided by the Grand Chief on behalf of the appellants for all of the appeals. Beyond the ten pages of submissions that are permitted for each appeal pursuant to Rule 2.1.01(3), the Grand Chief provided the Court with ten additional submissions totaling over a hundred pages for the appeals. No other submissions were received from any of the appellants; that is, the Grand Chief purported to respond to the Court’s notices on behalf of the appellants in each of the appeals.

The Court was tasked with determining whether any or all of these appeals should be dismissed or stayed pursuant to Rule 2.1.01(1).

ISSUES:

(1) Should the appeals be dismissed pursuant to Rule 2.1?

HOLDING:

Appeals dismissed.

REASONING:

(1) Yes.

The Court noted that although the application of Rule 2.1 was “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”, a review of the materials and communications filed by the Grand Chief made it obvious that there were no issues raised or arguments made that were relevant to any of the orders under appeal.

Further, the Court identified that the appeals exhibited many of the features the Court had recognized as characteristic of vexatious litigation. The Court characterized the material filed as “bald assertions” that were wholly unrelated to the orders under appeal. The Court also noted the Grand Chief had made “spurious allegations and objections” against multiple judges of the Court of Appeal and the Superior Court of Justice.

The Grand Chief also had a history of vexatious litigation conduct. Prior Superior Court of Justice decisions involving the Grand Chief repeatedly found that, rather than pursuing legitimate Indigenous rights claims, the Grand Chief was engaged in abusive litigation tactics in order for the appellants to avoid their financial or other legal obligations.

The Court was also concerned with the Grand Chief’s false attempts to act as a party to the appeals. Accordingly, in addition to dismissing all of the appeals in issue, the Court barred the Grand Chief from making any further filings or communications in the Court of Appeal unless he, himself, was a party to the appeal and obtained prior leave to confirm such.


Waxman v. Waxman, 2022 ONCA 311

[Fairburn A.C.J.O., Paciocco and Sossin JJ.A.]

COUNSEL:

E. Cherniak, W. Pepall, R. Swan, and G. Forrest, for the appellants M.S. as assignee of the Estate of I. Waxman & Sons Limited, M.S., and Solid Waste Reclamation Inc.

G. Capern, J. Killey, and H. Bruckner, for the respondents Elko Industrial Trading Corp., and A.S.

Keywords: Civil Procedure, Settlements, Duty to Disclose, Summary Judgment, Permanent Stays, Abuse of Process, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Housen v. Nikolaisen, 2002 SCC 33, Carotiv. Vuletic, 2021 ONSC 2778, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66

FACTS:

This was an appeal from the order of the motion judge dismissing the appellants’ motion for summary judgment, and instead granting summary judgment to the respondents dismissing the action against them and granting the respondents’ motion for a permanent stay of the action against them.

The decisions on appeal arose out of two judgments of approximately $10,000,000 each that the appellant, the late M.W. (here represented by his estate), obtained against his late brother C.W. and the W. family company, I. Waxman & Sons Ltd. (“the first Waxman company”). After the judgment against him, C.W. entered into a scheme with his son W.W., grandson A.W., and brother-in-law S.K. to direct business away from the first Waxman company and towards a company started by A.W. known as Waxman Industrial Services Corp. (“the second Waxman company”). This scheme was intended to deprive M.W. of the benefit of the judgment against C.W. and the first Waxman company.

The appellants commenced an action in 2007 against C.W., W.W., A.W. S.K., and others and amended their statement of claim in 2012 to name the respondents Elko Industrial Trading Corp. (“Elko”) and Elko’s principal, the late A.S., as parties.

After the respondents’ discoveries were completed in early 2015, the action appeared, from the respondents’ point of view, to have gone dormant. They heard nothing from the appellants until November 2018, when the appellants advised Elko of having resolved their claims with several parties and provided a draft notice of motion for summary judgment. The draft notice referred to settlements the appellants had reached with W.W, A.W., and S.K. The settlements came as news to the respondents.

In December 2019, the respondents brought a motion to stay the action as against them for the appellants’ failure to disclose the settlements, which were alleged to have changed the landscape of the litigation so as to require immediate disclosure as set out in Handley Estate v. DTE Industries Limited. In April 2019, the appellants moved for summary judgment against the respondents. The motions were heard together, at which time the respondents, in turn, also requested summary judgment against the appellants.

ISSUES:

(1) Did the motion judge err in granting a stay of the action against the respondents?

(2) Did the motion judge err in granting summary judgment in favour of the respondents?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The Court did not accept the appellants’ submissions distinguishing this case from Handley Estate.

The rule in Handley Estate did not turn on contingencies in an agreement that must be met to fulfill the terms of that agreement or the confidential nature of the agreement. Rather, the key question for the court in applying Handley Estate was whether the agreement, at the time it was entered into, changed the litigation landscape and, in so doing, altered the adversarial position of the parties to one of cooperation. The motion judge found in this case that it did. The Court saw no error in this finding.

Finally, even if the appellants were successful in arguing that the agreements only changed the litigation landscape once all the conditions of the settlement agreements were fulfilled, this would still have left an unacceptable delay in disclosing the agreements to the respondents.

The Court has made it clear in Handley Estate and subsequent cases that the duty to disclose is immediate. That the respondents may have been alive to the settlement agreements at some earlier point – in this case, the appellants allege that a letter dated November 2, 2018, advised the respondents of the settlements – was of no assistance. The obligation was to disclose immediately, not simply to provide notice of the agreement, information about the agreement or what has been referred to as “functional disclosure”.

In this case, disclosure of the terms of the settlement agreements, and evidence obtained as part of the settlement process, occurred on December 20, 2019, pursuant to an endorsement by Hainey J. Taking this date as the date of disclosure, the delay in disclosing the agreement was 1.5 years for S.K., and almost 2 years for W.W. and A.W.. Even if the earlier date of November 2018 was used, the delay still amounted to 5 months for S.K. and approximately 10 months for W.W. and A.W. On this record, there was no question that the appellants failed to immediately disclose the agreements.

Turning to the remedy, citing Aecon, the motion judge reiterated, “The Court of Appeal described the obligation to disclose as clear and unequivocal and noted that its breach constituted an abuse of process. Only by imposing a stay is the court able to control and enforce its own process to ensure that justice is done.”

The Court saw no basis on the facts of this case to depart from the clear consequences for a breach of this principle set out by the Court in Aecon and affirmed a number of times since then, including in Handley Estate, and most recently in Tallman. In Tallman, after imposing the automatic stay as the only remedy appropriate for an undisclosed settlement agreement, the Court added “This remedy is designed to achieve justice between the parties. But it does more than that – it also enables the court to enforce and control its own process by deterring future breaches of this well-established rule.”

(2)

As the Court was of the view that the analysis of the stay resolved the appeal, there was no need to examine the motion judge’s summary judgment decision.