Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of November 22, 2021.

In Blair v Ford, the Court dismissed an appeal by Brad Blair from the dismissal of his defamation claim against Premier Doug Ford. In the process, the Court again summarized the law applicable to Anti-SLAPP motions brought under section 137.1 of the Courts of Justice Act. Even though Mr. Blair’s action against the Premier was not a classic form of strategic litigation against public participation, the Anti-SLAPP provisions were still available to protect the Premier’s speech and to dismiss the action against him at the preliminary stage.

In Ottawa (City) v. ClubLink Corporation ULC, the provisions of an agreement requiring a golf course owner and operator to convey the land to the City if it ceased to operate the golf course created an interest in land in favour of the City. However, given that the operator ran the golf course for 24 years, the interest did not vest with the City until after the expiry of the 21 year period prescribed by the rule against perpetuities. Accordingly, the City’s interest in the land was void and unenforceable as being contrary to that rule. The appeal was allowed.

In Baldwin v. Imperial Metals Corporation, the Court considered the role of “public correction” in a shareholder’s proposed class action for misrepresentation in the secondary securities market pursuant to s.138.3 of the Securities Act. The Court concluded that there need not be facial symmetry between the public correction and the alleged misrepresentation or omission for the action to be allowed to proceed. While most of the secondary market misrepresentation cases that have come before the courts in Canada have involved express public corrections of prior representations, an express correction is not required. A plaintiff is not precluded from asking the court to infer a correction based on something other than an express statement by the issuer. The appeal was allowed and the matter remitted to the Superior Court for a determination of the motion for leave to commence the proceeding.

In a sad case, Adam v. Ledesma-Cadhit, the appellant’s five year old daughter died five days after being administered a swine flu vaccine manufactured and distributed by the respondent GSK. The Court upheld the trial judge’s dismissal of this product liability action on the basis that GSK had fulfilled its duty to warn of the risks of the vaccine by relying on the prescribing doctor to explain the risks to the patient (the learned intermediary rule).

In Mandel v. 1909975 Ontario Inc., the Court held that the application judge made no error in exercising his discretion to decline jurisdiction to determine whether the issuance of shares in a corporation was void because the shares were never paid for. The only dispute was with CRA, and the application judge was therefore correct to decline jurisdiction in favour of the Tax Court of Canada.

For our readers who are not yet aware of it, I would like to introduce them to a new online publication, Civil Procedure & Practice in Ontario (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. CanLII is a not-for-profit organization operated by the Federation of Law Societies of Canada and is dedicated to assisting with access to justice through the free and open dissemination of the laws of Canada to all members of the public. The CPPO was written by a team of 135 leading litigators and experts in Ontario civil procedure, led by Professor Noel Semple of Windsor Law School. I had the privileged of co-writing two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

CPPO will serve as a guide to Ontario’s Rules of Civil ProcedureCourts of Justice Act, and Limitations Act, and will be accessible not only to practitioners, but to members of the public. It contains not only the text of all these rules and statutory provisions, but also commentary and annotations to all the relevant case law applying and interpreting each rule and section. To access Civil Procedure & Practice in Ontario, please click here, and make sure to bookmark the site for easy access.

I would encourage all of our readers to consult CPPO in their daily practice, to spread the word among colleagues, and to provide any feedback they may have.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email


Table of Contents

Civil Decisions

MDS Inc. v. Factory Mutual Insurance Company , 2021 ONCA 837

Keywords: Contracts, Interpretation, Insurance, Coverage, Civil Procedure, Trials, Costs, Disbursements, Expert Fees, Courts of Justice Act, RSO 1990, c C43, ss 131(1), Rules of Civil Procedure, Rule 57.01(1), Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 542, leave to appeal S.C.C. requested, 39818, Fan (Guardian ad litem of) v. Chana, 2011 BCCA 516

Adam v. Ledesma-Cadhit , 2021 ONCA 828

Keywords: Torts, Negligence, Product Liability, Duty of Care, Duty to Warn, Standard of Care, Learned Intermediary, Causation, Civil Procedure, Costs, Public Interest Litigation, Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, Housen v. Nikolaisen, 2002 SCC 33, R. v. G.F., 2021 SCC 20, F.H. v. McDougall, 2008 SCC 53, Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424, Dickie v. Minett, 2014 ONCA 265, Clements v. Clements, 2012 SCC 32, Rothwell v. Raes (1990), 2 O.R. (3d) 332 (CA)

Caruso v. Bortolon , 2021 ONCA 842

Keywords: Corporations, Fraud, Civil Procedure, Summary Judgment, Limitation Periods, Adjournments, Fresh Evidence, Limitations Act, 2002, SO 2002, c 24, Sch B, Rules of Civil ProcedureLaski v. BMO Nesbitt Burns Inc., 2020 ONCA 300

Mandel v. 1909975 Ontario Inc., 2021 ONCA 844

Keywords: Corporations, Shares, Issuance, Consideration, Tax Law, Tax Planning, Deemed Dispositions, Taxable Benefits, Remedies, Rectification, Civil Procedure, Applications, Appeals, Jurisdiction, Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), ss. 3, 12(1), 15(1), Business Corporations Act (Ontario), R.S.O. 1990, c. B.16, ss. 17(3), 23(3), 130(1), 250(1), 255, Retail Sales Tax Act, R.S.O. 1990, c. R.31, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2), 97, Tax Court of Canada Act, R.S.C. 1985, c. T-2, Rules of Civil Procedure, Rule 14.05, Baxter v. Attorney General of Canada, 2013 ONSC 3153, GLP NT Corp. v. Canada (Attorney General) (2003), 65 O.R. (3d) 840 (S.C.), Danso-Coffey v. Ontario, 2010 ONCA 171, Orman v. Marnat Inc., 2012 ONSC 549, Juliar v. Canada (Attorney General) (2000), 50 O.R. (3d) 728 (C.A.), Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, Dunham v. Apollo Tours Ltd. (1978), 20 O.R. (2d) 3 (H.C.), Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Ewert v. Canada, 2018 SCC 30, Holmes v. Schoenfeld Inc., 2016 ONCA 148

Blair v. Ford, 2021 ONCA 841

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Appeals, Interlocutory Orders, Jurisdiction, Police Services Act, R.S.O. 1990, c. P.15, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2), s. 19(1)(b), s. 137.1, Rules of Civil Procedure, Rules 57.01 and 61.03(1)(b), PSA Code of Conduct, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Mader v. South Easthope Mutual Insurance Company, 2014 ONCA 714, Brown v. Hanley, 2019 ONCA 395, Cole v. Hamilton (City) (2002), 2002 60 O.R. (3d) 284, Brown v. Hanley, 2019 ONCA 395, Azzeh v. Legendre, 2017 ONCA 385, Platnick v. Bent, 2018 ONCA 68, Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166

Baldwin v. Imperial Metals Corporation, 2021 ONCA 838

Keywords: Securities, Secondary Market Misrepresentations, Civil Procedure, Class Proceedings, Leave to Commence Proceedings, Securities Act, R.S.O. 1990, c.S.5, ss. 138.3 and138.8, Class Proceedings Act, 1992 S.O. 1992, Drywall Acousting Lathing Insulation, Local 675 Pension Fund v. Barrick Gold Corporation, 2021 ONCA 104, Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, Rahimi v. SouthGobi Resources Ltd., 2017 ONCA 719, Swisscanto v. Blackberry, 2015 ONSC 6434, The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2016 ONSC 5784, Cappelli v. Nobilis Health Corp., 2019 ONSC 2266, Kauf v. Colt Resources, Inc., 2019 ONSC 2179, Toward Improved Disclosure: A Search for Balance in Corporate Disclosure, interim report (Toronto: Toronto Stock Exchange, 1995), Ironworkers Ontario Pension Fund (Trustee of) v. Manulife Financial Corp., 2013 ONSC 4083, Mask v. Silvercorp Metals Inc., 2015 ONSC 5348

Ottawa (City) v. ClubLink Corporation ULC, 2021 ONCA 847

Keywords: Contracts, Real Property, Contingent Interests in Land, Rule against Perpetuities, City of Ottawa Act, 1999, S.O. 1999, c. 14, Sched. E, Canadian Long Island Petroleums Ltd. et al. v. Irving Industries Ltd., [1975] 2 S.C.R. 715, 2123201 Ontario Inc. v. Israel Estate, 2016 ONCA 409, London and South Western Railway Co. v. Gomm (1882), 20 CH. D. 562 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, City of Halifax v. Vaughan Construction Company Ltd. and the Queen, [1961] S.C.R. 715, Weinblatt v. Kitchener (City), [1969] S.C.R. 157, Jain v. Nepean (City) (1992), 9 O.R. (3d) 11 (C.A.), leave to appeal refused, [1992] S.C.C.A. No. 473, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246, aff’d 2017 ONCA 293, leave to appeal refused, [2016] S.C.C.A. No. 249, Loyalist (Township) v. The Fairfield-Gutzeit Society, 2019 ONSC 2203, Manchester Ship Canada Company v. Manchester Racecourse Company, [1901] 2 Ch. 37 (C.A.), Weber v. Texas Co., 83 F.2d 807 (5th Cir. 1936), Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007, 3869130 Canada Inc. v. I.C.B. Distribution Inc., 2008 ONCA 396, Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673, Fuller v. Aphria Inc., 2020 ONCA 403, Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, Thomas Edward Scrutton, Land in Fetters, (Cambridge: Cambridge University Press, 1896)

D.C. v. T.B., 2021 ONCA 850

Keywords: Family Law, Custody and Access, Parental Alienation, Costs, A.A. v. S.N.A., 2007 BCCA 363, A.M. v. C.H., 2019 ONCA 764

Short Civil Decisions

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 846

Keywords: Civil Procedure, Judgments, Enforcement, Contempt, Costs

Environmental Waterproofing Inc. v. Huron Tract Holdings Inc., 2021 ONCA 835

Keywords: Bankruptcy and Insolvency, Receiverships, Priority, Civil Procedure, Judgments, Enforcement, Garnishment Proceedings


CIVIL DECISIONS

MDS Inc. v. Factory Mutual Insurance Company, 2021 ONCA 837

[Feldman, Harvison Young and Thorburn JJ.A.]

COUNSEL:

P.J. Pape, D.E. Liblong, S. Chaudhury, and C. Senese, for the appellant

B.J.E. Brock, Q.C., for the respondents

G.A. Smith and N. Bombier, for the intervenor

Keywords: Contracts, Interpretation, Insurance, Coverage, Civil Procedure, Trials, Costs, Disbursements, Expert Fees, Courts of Justice Act, RSO 1990, c C43, ss 131(1), Rules of Civil Procedure, Rule 57.01(1), Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 542, leave to appeal S.C.C. requested, 39818, Fan (Guardian ad litem of) v. Chana, 2011 BCCA 516

FACTS:

The appeal concerned whether the appellant insurer was required to provide insurance coverage for losses arising from an unplanned shutdown of the Atomic Energy of Canada Limited Nuclear Research Universal reactor. The appeal was allowed. The parties were unable to agree on the amount of costs to be awarded to the appellant for the trial. The appellant sought costs in the amount of $561,103.95, which was approximately 25% of the costs awarded to the respondent by the trial judge.

ISSUES:

(1) What amount of costs should be awarded to the appellant for the trial?

HOLDING:

The appellant was awarded partial indemnity costs and disbursements in the amount of $561,103.95.

REASONING:

The Court considered the factors set out in r. 57.01(1) of the Rules of Civil Procedure, including the importance of the issues, the conduct of the parties, the principle of indemnity including the lawyer’s experience, rates charged and hours spent, the fact that the appeal was neither improper nor vexatious, and the amount the losing party could reasonably expect to pay.

First, the Court found that the issues pursued at trial and on appeal were both complex and important. Over $56 million was at stake, several experts were engaged, and the Court’s interpretation of the disputed policy was of precedential value.

Second, the Court found that the hourly rates of appellant’s counsel were reasonable and the fees requested by the appellant reflected a partial indemnity rate.

Third, the Court agreed that the appellant should be allowed to recover disbursements for expert advice regardless of whether expert reports were introduced at trial and relied on by the trial judge. As per Charlesfort Developments Limited v. Ottawa (City), reasonable expert fees for export reports reasonably necessary for the conduct of the proceeding are recoverable whether or not the expert is called to give evidence. However, the fact that the expert was not called to give evidence is a factor to be taken into account in determining the reasonableness of the overall fees charged. Further, the reasonableness of retaining the expert is to be considered at the time the expense is incurred, not in hindsight: Fan (Guardian ad litem of) v. Chana.


Adam v. Ledesma-Cadhit, 2021 ONCA 828

[Brown, Roberts and Zarnett JJ.A.]

COUNSEL:

J. M. Ghosn, for the appellants

R. C. Sutton, K. Findlay and J. Smith, for the respondent GlaxoSmithKline Inc.

Keywords: Torts, Negligence, Product Liability, Duty of Care, Duty to Warn, Standard of Care, Learned Intermediary, Causation, Civil Procedure, Costs, Public Interest Litigation, Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, Housen v. Nikolaisen, 2002 SCC 33, R. v. G.F., 2021 SCC 20, F.H. v. McDougall, 2008 SCC 53, Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424, Dickie v. Minett, 2014 ONCA 265, Clements v. Clements, 2012 SCC 32, Rothwell v. Raes (1990), 2 O.R. (3d) 332 (CA)

FACTS:

A., the daughter of the appellants, died on November 28, 2009 at age five, 5-days after receiving a vaccine called Arepanrix. The vaccine was manufactured and distributed by the respondent GlaxoSmithKline (“GSK”).

An autopsy concluded the cause of death was unascertained, with sudden arrhythmic death syndrome not excluded. The investigating coroner found the most likely cause of death was sudden arrhythmic death syndrome, however, the ultimate classification of A.’s cause of death was “undetermined”.

A.’s parents commenced this action against GSK, Dr. C. J. L.-C., their family physician who had administered the vaccine, Her Majesty The Queen in Right of Canada, and Her Majesty The Queen in Right of Ontario, alleging that Arepanrix had caused A.’s death. The appellants discontinued the action against Dr. C. J. L.-C. prior to trial, and the action was dismissed against the two government defendants in 2014.

The trial judge dismissed the action against GSK following a three-week trial after concluding the appellants had not introduced evidence that would demonstrate, on a balance of probabilities, that GSK breached the applicable standard of care or that Arepanrix caused A’s death.

The appellants appealed from the trial judge’s decision.

ISSUES:

(1) Did the trial judge err in finding that GSK provided an adequate warning to A. and her mother, as caregiver to A., with respect to Arepanrix?

(2) Did the trial judge err in finding that GSK discharged its duty to warn by relying on the “learned intermediary rule”?

(3) Did the trial judge err in failing to find that GSK did not meet the standard of care required of it with respect to its “post-marketing commitments” in terms of its continuing duty to the consumer to evaluate adverse events?

(4) Did the trial judge err in failing to find that the circumstantial evidence in this case raised an inference of negligence that called for an explanation from GSK?

(5) Did the trial judge err in failing to award the unsuccessful appellants their full indemnity costs on the basis that this case required adjudication by the courts because it was novel public interest litigation?

HOLDING:

Appeal dismissed.

REASONING:

(1) and (2) No.

The general principles governing the duty to warn are summarized by the Supreme Court of Canada in Hollis v. Dow Corning Corp. The Supreme Court in Hollis narrowed down the overarching question as to whether the manufacturer owed the patient a duty to warn of a specific risk, which the SCC broke down into two sub-questions. The Court adopted that approach, and set out the two questions in this case as follows:

(i) Did the trial judge err by concluding that GSK could satisfy its duty to warn recipients of Arepanrix by warning a learned intermediary physician, in this case A.’s family doctor, Dr. L.-C.?

(ii) If GSK could properly discharge its duty by warning the physician, did the trial judge err in concluding that GSK adequately warned Dr. L.-C. of the relevant risks of Arepanrix in light of its state of knowledge at that time?

Whether GSK discharged its duty of care was a question of mixed fact and law as it involved applying legal principles to facts, which attracted a standard of review of palpable and overriding error.

(i) No.

The appellants submitted that since A.’s mother learned about the vaccine and sought it out for her children independently, the learned intermediary rule did not apply. The Court rejected this argument, stating the vaccine was a product highly technical in nature which could only be obtained and used under the supervision of an expert, which brought the vaccine squarely within the ambit of the learned intermediary rule.

The appellants next argued that A.’s family doctor did not possess the same level of information as GSK regarding the risk of a high fever in a child after receiving the vaccine and how to treat such a high fever. This argument was based on: (1) a Health Canada email sent to GSK about a week before A. received her vaccine, asking for more information about three cases of significant or high-level fever observed in children, yet GSK did not publish any advisory regarding fever to the public; and (2) a communication from GSK to about 50,000 physicians advising them to consult a product information leaflet for detailed information about the vaccine, which contained information about common side effects, including fever, that was not included in the product monograph placed in boxes of Arepanrix distributed to physicians.

The trial judge did not accept that either consideration prevented GSK from relying on A’s family doctor to satisfy its duty to warn, and the Court found no reversible error, as the record disclosed two pieces of evidence as to why the trial judge reached that conclusion. First, Dr. L.-C. testified that she told A.’s mother the side effects included fever, and if fever appeared, she should administer Tylenol and return to her office if the children experienced any side effect the mother considered to be serious. Second, Dr. L.-C. confirmed that before administering the vaccine to A., she had read the GSK product monograph for Arepanrix, and the adverse reactions section of that document was identical to that in the product information leaflet.

(ii) No.

The appellants listed eight matters they alleged GSK should have disclosed to A.’s mother, including the risk of a high fever. The Court held that the product monograph accompanying the vaccine identified in some detail known adverse reactions to the vaccine, and that the appellants had not pointed to any evidence that GSK failed to disclose adverse risks that were known or ought to have been known at the time.

The Court noted that, as a practical matter, expert evidence concerning the complex area of vaccine manufacture and distribution was necessary in the circumstances of this case for the Court to reach a conclusion of a breach in the standard. As the plaintiffs led no such evidence, the Court saw no reversible error in the trial judge’s conclusion that the appellants had failed to establish that GSK breached the applicable duty to warn.

(3) No.

The trial judge held that although GSK did not learn of A.’s death until the lawsuit started, Dr. L.-C. had filed an adverse event report regarding A.’s death with the Toronto Public-Health Authorities. Further, the trial judge found there was no evidence to suggest the tracking system GSK or any of the public health authorities established somehow fell short of the standard of care applicable.

The appellants repeated their submission on appeal, and further alleged GSK’s failure to investigate A.’s severe adverse event amounted to bad faith and ought to have attracted punitive damages awarded to A.’s estate. The Court rejected the appellants’ submissions for three reasons.

First, the Court held the appellants submissions confused the purpose of a civil trial with the purpose of a public inquiry or coroner’s inquest. The record fully supported the trial judge’s conclusion that the appellants failed to establish identifiable legal wrongdoing on the part of the defendant.

Second, as the appellants’ action alleged the administration of Arepanrix caused A.’s death, establishing liability for A.’s death would require the appellants to demonstrate that some act or omission of GSK that took place prior to A.’s death caused her death. Further, even if the appellants contended that GSK’s post-marketing activities failed to disclose a risk that should have been known to GSK before the vaccine was administered to A., that argument would fail in light of the trial judge’s findings to the contrary, which the appellants had not demonstrated were tainted by palpable and overriding error.

Third, GSK’s November 19, 2009 Letter to health care professionals asked physicians to report any case of serious or unexpected adverse events to their local public health authorities, the Public Health Agency of Canada, or GSK. Dr. L.-C. sent an adverse event report to Toronto Public Health, and although it was not passed on to GSK, the Court held the failure to do so did not cause or contribute to A.’s death and, therefore, could not be a basis for civil liability in negligence against GSK.

(4) No.

In following the approach directed by Fontaine v. British Columbia (Official Administrator), the trial judge concluded there was no direct or circumstantial evidence from which he could infer GSK breached its standard of care. The Court held the appellants had not established that the conclusions of the trial judge rested on any misunderstanding of the applicable law, misapprehension of the evidence, or palpable and overriding error of fact.

Further, the Court held the trial judge carefully and accurately reviewed the evidence of the expert and lay witnesses and held there was no evidence the vaccine was capable of causing death and there was an absence of medical evidence that the vaccine caused or contributed to A.’s death. On a review of the evidence, the Court concluded it provided no assistance to the appellants’ task of establishing that the vaccine caused A.’s death, and accordingly, this ground of appeal did not succeed.

(5) No.

The Court saw no basis to interfere with the trial judge’s discretionary award of costs to GSK. The trial judge considered the relevant factors on a request for costs by an unsuccessful party and explained why those factors did not justify departing from the generally applicable principle that costs follow the cause.


Caruso v. Bortolon, 2021 ONCA 842

[Gillese, Trotter and Nordheimer JJ.A.]

COUNSEL:

M. Kersten, for the appellant

A. Jarvis, for the respondents

Keywords: Corporations, Fraud, Civil Procedure, Summary Judgment, Limitation Periods, Adjournments, Fresh Evidence, Limitations Act, 2002, SO 2002, c 24, Sch B, Rules of Civil ProcedureLaski v. BMO Nesbitt Burns Inc., 2020 ONCA 300

FACTS:

The appellant commenced an action against the defendants alleging that they defrauded him out of shares he claimed to own in 1947755 Ontario Limited (“the company”). The appellant pleaded that R.B. executed documents that stripped him of his shares on January 25, 2017. The appellant commenced his action more than two years later, on April 23, 2020. The respondents asserted that the appellant was never a shareholder in the company and that the action was statute barred as per the Limitations Act, 2002. The respondents successfully moved for summary judgment on the basis that there was no genuine issue for trial on the limitation period issue. The appellant challenged the fairness of the proceedings, the correctness of the decision to dismiss the action, and applied to adduce fresh evidence.

ISSUES:

(1) Whether the motion judge erred in not granting him an adjournment to file further documentation to demonstrate fraudulent activity on the part of the respondents in January 2017?

(2) Whether the action was statute-barred?

(3) Whether the appellant’s application to adduce fresh evidence should be granted?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The Court found that in refusing the adjournment, the motion judge had carefully examined the lengthy history of the proceedings leading up to the hearing date. Moreover, the motion judge observed that the issue for the motion was not whether the appellant had been deprived of his shares, but whether he should have brought the action before it was commenced in April 2020. Therefore, the Court saw no error in the motion judge’s decision to refuse an adjournment. This was a discretionary decision that was entitled to substantial deference on appeal.

(2) Yes.

The Court found that the motion judge reviewed the documents tendered by the parties and concluded that the appellant’s injury, loss or damage was discoverable by February 2017. Further, the Court found that the totality of the evidence supported the motion judge’s conclusion that the action was statute-barred.

(3) No.

The appellant’s application to adduce fresh evidence was nothing more than an attempt to circumvent the motion judge’s refusal to grant an adjournment, which refusal was justified. Through proper diligence, the material could have been tendered on the summary judgment motion. In any event, the new material did not bear on the correctness of the motion judge’s analysis of the limitation period issue.


Mandel v. 1909975 Ontario Inc., 2021 ONCA 844

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

COUNSEL:

P.H. Griffen, M.B. Lerner and A.H. Kanji, for the appellants

D. Aird and M. Ding, for the respondent, Attorney General of Canada

M.A. Ross, for the respondents 1909975 Ontario Inc., 2458730 Ontario Inc., 2458721 Ontario Inc., H. Inc. and M. Inc.

Keywords: Corporations, Shares, Issuance, Consideration, Tax Law, Tax Planning, Deemed Dispositions, Taxable Benefits, Remedies, Rectification, Civil Procedure, Applications, Appeals, Jurisdiction, Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), ss. 3, 12(1), 15(1), Business Corporations Act (Ontario), R.S.O. 1990, c. B.16, ss. 17(3), 23(3), 130(1), 250(1), 255, Retail Sales Tax Act, R.S.O. 1990, c. R.31, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2), 97, Tax Court of Canada Act, R.S.C. 1985, c. T-2, Rules of Civil Procedure, Rule 14.05, Baxter v. Attorney General of Canada, 2013 ONSC 3153, GLP NT Corp. v. Canada (Attorney General) (2003), 65 O.R. (3d) 840 (S.C.), Danso-Coffey v. Ontario, 2010 ONCA 171, Orman v. Marnat Inc., 2012 ONSC 549, Juliar v. Canada (Attorney General) (2000), 50 O.R. (3d) 728 (C.A.), Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, Dunham v. Apollo Tours Ltd. (1978), 20 O.R. (2d) 3 (H.C.), Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Ewert v. Canada, 2018 SCC 30, Holmes v. Schoenfeld Inc., 2016 ONCA 148

FACTS:

The appellants restructured their family trusts in 2014 and 2015 to avoid a deemed disposition of the assets after 21 years and to maintain control of the underlying assets. As part of the restructuring arrangements, the appellants incorporated holding companies for their adult children (the “Child Corporations”) in which the appellants each subscribed for Class A voting shares and Class B convertible shares for a subscription price of $10 for the Class A shares and $100 for the Class B shares. The corporate documents stated that all the issued shares were fully paid. However, the appellants say that payment of $110 for the shares was never actually made.

In 2019, the Canada Revenue Agency (CRA) reassessed the appellants for the tax years 2014 and 2015, increasing each appellant’s taxable income by close to $15,000,000 on the basis that their receipt of shares in the Child Corporations constituted a taxable benefit under s. 15(1) of the Income Tax Act.

The appellants brought an application in the Superior Court of Justice for a declaration that because the shares were not paid for before they were issued, as required by s. 23(3) of Ontario’s Business Corporations Act (OBCA), they were not validly or lawfully issued, and the appellants were never shareholders of the Child Corporations. They also sought an order for rectification of the share registers of the Child Corporations under s. 250(1) of the OBCA.

The application judge declined to exercise jurisdiction over the application, deferring to the jurisdiction of the Tax Court of Canada. He also found that he would not have granted the declaration or ordered rectification had he assumed jurisdiction. The appellants appealed.

ISSUES:

(1) Was the appeal from the application judge properly brought to the Ontario Court of Appeal, or should it have been brought to the Divisional Court?

(2) Did the application judge err in law in declining jurisdiction over the application in favour of the Tax Court?

(3) Does a corporation’s failure to comply with s. 23(3) of the OBCA by issuing shares without payment make the issuance of such shares invalid and void?

(4) Did the application judge err in declining to order rectification of the share register under s. 250(1) of the OBCA?

HOLDING:

Appeal dismissed.

REASONING:

(1) The appeal was properly brought to the Ontario Court of Appeal.

The Court found that it had jurisdiction to hear the appeal. Section 255 of the OBCA provides that an appeal lies to the Divisional Court from any order made by the Superior Court under the OBCA. While the appellants sought relief under s. 250(1) of the OBCA, they were obliged to seek a declaration under s. 97 of the Courts of Justice Act in order to obtain the relief they sought as a result of the application of s. 23(3), because no order for relief for failure to comply with that section is mandated by the OBCA. An appeal from an order that grants or refuses a declaration of the Superior Court lies to the Court of Appeal. in addition, subsection 6(2) of the Court of Justice Act states that “The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.”

(2) No.

The Court stated that on matters of judicial discretion, the Court will defer to the application judge unless the judge misdirected himself, gave no or insufficient weight to relevant considerations, or came to a decision that was clearly wrong, amounting to an injustice.

The application judge gave one reason for declining jurisdiction in favour of the Tax Court, and three additional reasons why declining a declaration would not cause injustice, which reinforced his discretionary decision to decline to exercise jurisdiction. The main reason the application judge gave for deferring to the Tax Court was that the only dispute in the case was between the appellants and the CRA, and that dispute was within the expertise of the Tax Court. In terms of why declining a declaration would not cause injustice, the application judge first found that the Child Corporations supported the appellants in their request for relief. Therefore, the parties did not require an order to correct mistakes and amend the register. Second, the application judge found the factual record was unclear. He concluded that factual findings should be made within the tax appeal context. Third, the application judge found that if he were to accede to the appellant’s position that shares issued but not paid for are void ab initio, that finding could have unintended consequences regarding the status of transactions and other steps taken by the corporation and its directors before the shares were declared void.

The Court held that the application judge made no error in considering the factors he did in exercising his discretion to decline jurisdiction in favour of the Tax Court (although the Court slightly differed with the application judge on the third reason given to decline to make the order sought – unintended consequences).

In circumstances where parties to an action have a dispute that requires the court to interpret the meaning and effect of a statutory provision, the court is not being asked to exercise a discretionary jurisdiction. It is required to answer the questions necessary to decide the dispute. However, where a party seeks a declaration of right, the court will only assume jurisdiction to decide the issue where the nature of the request meets criteria defined in the Rules or in a statutory provision. In such cases, the court has the discretion to decline jurisdiction. The Court found that this case was such a case.

(3) & (4) Not addressed.

The Court found it was neither necessary nor appropriate to address these issues in light of its conclusion that the application judge made no error by declining jurisdiction.


Blair v. Ford, 2021 ONCA 841

[Benotto, Miller and Sossin JJ.A.]

COUNSEL:

J. N. Falconer, R. Gilliland and A. James, for the appellant

G. Tighe and A. Melfi, for the respondent

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Appeals, Interlocutory Orders, Jurisdiction, Police Services Act, R.S.O. 1990, c. P.15, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2), s. 19(1)(b), s. 137.1, Rules of Civil Procedure, Rules 57.01 and 61.03(1)(b), PSA Code of Conduct, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Mader v. South Easthope Mutual Insurance Company, 2014 ONCA 714, Brown v. Hanley, 2019 ONCA 395, Cole v. Hamilton (City) (2002), 2002 60 O.R. (3d) 284, Brown v. Hanley, 2019 ONCA 395, Azzeh v. Legendre, 2017 ONCA 385, Platnick v. Bent, 2018 ONCA 68, Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166

FACTS:

In 2018, Premier Doug Ford announced that an OPP Commissioner had been appointed. Interim Commissioner Brad Blair was not chosen. The new Commissioner was a friend of the Ford family. Brad Blair wrote a scathing letter on official police letterhead to the provincial Ombudsman alleging improprieties in the selection process and requesting an independent review. The letter was made public. When reporters questioned premier Ford about the letter, he suggested that Mr. Blair had breached the Police Services Act. Mr. Blair sued premier Ford for defamation. The premier brought an Anti-SLAPP motion under s.137.1 of the Courts of Justice Act to dismiss the action.

The motion judge dismissed preliminary motions on November 23 and 30, 2020. He heard the s. 137.1 motion on December 4, 2020, and dismissed the defamation action. The motion judge deviated from the presumptive award of full indemnity costs and awarded premier Ford partial indemnity costs based on the motion judge’s own calculations. He also ordered that half of the costs be paid immediately with the other half payable when Mr. Blair’s separate action for wrongful dismissal, misfeasance in public office and other claims was settled or disposed of.

Mr. Blair appealed the preliminary motions and the main motion. Premier Ford cross-appealed the order for costs on the main motion.

ISSUES:

(1) Does this court have jurisdiction to hear the appeal from the preliminary orders?

(2) Did the motion judge err in his consideration of s.137.1?

(3) Did the motion judge err in his determination with respect to costs?

HOLDING:

Appeal dismissed. Cross-appeal allowed in part.

REASONING:

(1) No.

The preliminary orders were with respect to refusals to answer questions and to provide certain legal documents and with respect to further cross-examination. They were interlocutory orders. An appeal from an interlocutory order of a judge lies to the Divisional Court with leave pursuant to s. 19(1)(b) of the Courts of Justice Act. Leave must be sought within 15 days pursuant to Rule 61.03(1)(b) of the Rules of Civil Procedure. Leave was not sought.

The Court also rejected the appellant’s submission that the interlocutory orders were interrelated with the appeal and that leave would “inevitably” have been granted for two reasons. First, this proposal would have been repeatedly rejected by the Court. Second, the preliminary orders were dated November 23 and 30, 2020. The s. 137.1 motion was heard on December 4, 2020. Had the interim relief sought been integral to the main motion, the appellant could have – but did not – ask for an adjournment so that leave to the Divisional Court could be sought. It is not appropriate to await the outcome of the motion to then assert that the issue is intrinsically interrelated.

For these reasons, the appeals from the preliminary orders were quashed.

(2) No.

The Court provided a helpful overview of the nature of the s. 137.1 motion, which was meant to address SLAPP lawsuits. Section 137.1 allows a defendant to move at an early stage to dismiss such a lawsuit. A motion under s.137.1 involves a shifting burden and a framework that was set out in Pointes Protection. Often, an Anti-SLAPP motion is used to protect speech and combat a power imbalance sometimes present in defamation cases, where the plaintiff has significant resources and the defendant is vulnerable.

The Court rejected the arguments put forward by Mr. Blair that that the motion judge erred by : (i) ignoring the indicia of a SLAPP in his s. 137.1 analysis; (ii) using the wrong test for “no valid defence” and then misconstruing the defence of “fair comment”; and (iii) incorrectly finding that the public interest in permitting the proceeding to continue outweighed the public interest in protecting the expression. The Court addressed Mr. Blair’s arguments as follows:

(i) Ignoring the indicia of a SLAPP in his s. 137.1 analysis

The Court rejected the appellant’s submission that the indicia of a SLAPP should have been specifically addressed at each step in the judge’s analysis. Pointes Protection requires the motion judge to “scrutinize” what is really going on in the case before them. The reasons of the motion judge read as a whole indicate that he did just that. The motion judge’s comment that the “defamation action is not, strictly speaking a SLAPP” because “the plaintiff is not a large and powerful entity that is using litigation to intimidate a smaller and more vulnerable opponent” confirmed that he was alive to any perceived power imbalance that the appellant referenced.

(ii) Using the wrong test for “no valid defence” and then misconstruing the defence of a fair comment

The Court did not agree that the motion judge used the wrong test or raised the bar for Mr. Blair with respect to “valid defence.” The motion judge’s analysis made it clear that he found that Mr. Blair did not demonstrate that premier Ford’s defence of fair comment had no real prospect of success.

(iii) Incorrectly finding that the public interest in permitting the proceeding to continue outweighed the public interest in protecting the expression

Balanced against the importance of freedom of expression, the matters raised are of considerable public interest that justified expression and debate in the public forum. The motion judge’s finding – that the harm suffered as a result of premier Ford’s expression was not sufficiently serious that the public interest in permitting the action to continue outweighed the public interest in protecting that expression – was a discretionary finding entitled to deference.

(3) Yes.

The Court saw no error in the motion judge’s determination that the appropriate amount for premier Ford’s partial indemnity cost was $130,000, which was entitled to a high degree of deference.

However, the order tethering the costs to another action was made in error. The motion judge gave no reasons for the order requiring half of the costs to be paid immediately and the other half to be paid when Mr. Blair’s “wrongful dismissal action is settled or finally adjudicated”. This condition was added by the motion judge in the last substantive paragraph of his reasons. The parties had no opportunity to address this extraordinary order. The “wrongful dismissal” action had not even been commenced at the time of the reasons for decision. The Court granted the cross-appeal on this basis and amended the costs order to provide that the entire $130,000 award be payable in full as of the date of the order.


Baldwin v. Imperial Metals Corporation, 2021 ONCA 838

[Strathy C.J.O., Pepall and Pardu JJ.A]

COUNSEL:

M. G. Robb, K. Richard, G. Hunter and B. Pascutto, for the appellant

L. E. Thacker, A. Quinn and K. Glowach, for the respondents

Keywords: Securities, Secondary Market Misrepresentations, Civil Procedure, Class Proceedings, Leave to Commence Proceedings, Securities Act, R.S.O. 1990, c.S.5, ss. 138.3 and138.8, Class Proceedings Act, 1992 S.O. 1992, Drywall Acousting Lathing Insulation, Local 675 Pension Fund v. Barrick Gold Corporation, 2021 ONCA 104, Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, Rahimi v. SouthGobi Resources Ltd., 2017 ONCA 719, Swisscanto v. Blackberry, 2015 ONSC 6434, The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2016 ONSC 5784, Cappelli v. Nobilis Health Corp., 2019 ONSC 2266, Kauf v. Colt Resources, Inc., 2019 ONSC 2179, Toward Improved Disclosure: A Search for Balance in Corporate Disclosure, interim report (Toronto: Toronto Stock Exchange, 1995), Ironworkers Ontario Pension Fund (Trustee of) v. Manulife Financial Corp., 2013 ONSC 4083, Mask v. Silvercorp Metals Inc., 2015 ONSC 5348

FACTS:

The respondent, Imperial Metals Corporation (“Imperial”), is a reporting issuer in Ontario. Its shares trade on the Toronto Stock Exchange. The appellant is an individual shareholder and pleaded that she acquired shares of Imperial during the class period (defined as August 15, 2011 to August 14, 2014, inclusive) and held some or all of those shares at the end of the class period.

On August 4, 2014, Imperial issued a press release reporting that the tailings storage facility (the “TSF”) at its Mount Polley gold and copper mine in British Columbia had been breached, releasing an “undetermined amount of water and tailings”. The press release stated that the cause of the breach was unknown. Following the disclosure, Imperial’s share price declined by 40% and the company lost about $500 million in market capitalization.

The action was commenced pursuant to s.138.3 of the Securities Act, which creates a cause of action for misrepresentation in the secondary securities market. The appellant alleged that the breach of the TSF was caused by deficiencies in its design, construction and operation.

The motion judge dismissed the appellant’s motion for leave to pursue the statutory remedy under s. 138.8(1) of the Securities Act. He found that to obtain leave under the Act, the plaintiff must allege not only a misrepresentation but also some discrete and identifiable public correction. The motion judge found that the press release issued on August 4, 2014 could not be a public correction because it said nothing more than (1) the TSF had been breached; (2) the cause of the breach was unknown; and (3) the company was working with the authorities to assess the damage. The motion judge concluded that the required public correction had not been established and there was no reasonable possibility that the appellant could show otherwise at trial.

ISSUES:

(1) Did the motion judge err in determining whether the alleged public correction was reasonably capable of being understood in the secondary market as correcting what was misleading in the impugned statement?

(2) Would this case have at least a reasonable possibility to satisfy the statutory test?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes.

The motion judge set the bar too high by requiring that the public correction be express and directly linked to a specific misrepresentation. There need not be facial symmetry between the public correction and the alleged misrepresentation or omission. While public correction is a necessary part of the statutory scheme, its role, at least at the leave stage, is a modest one.

(2) Yes.

This was not a case in which the motion judge could fairly and safely dispose of the requirement to determine whether the issuer released a document that contains a misrepresentation and conclude that there is no reasonable possibility that the action will be resolved at trial in favour of the plaintiff. Depending on what had been said, or not said, in Imperial’s public disclosures over the years concerning its waste management practices and environmental compliance measures, and the context in which the representations and the alleged public correction were made, a motion judge could find that the press release could be understood by the market as corrective and that there was a reasonable possibility that the action would be resolved in favour of the plaintiff at trial.

Accordingly, the appeal was allowed and the leave motion was remitted to the Superior Court for determination.


Ottawa (City) v. ClubLink Corporation ULC, 2021 ONCA 847

[Juriansz, Tulloch and Roberts JJ.A.]

COUNSEL:

M. P. Gottlieb, J. Renihan, M. R. Flowers and J. C. Mastrangelo, for the appellant

K. Crain, E. Blanchard, K. Takagi and T. Boro, for the respondent

Keywords: Contracts, Real Property, Contingent Interests in Land, Rule against Perpetuities, City of Ottawa Act, 1999, S.O. 1999, c. 14, Sched. E, Canadian Long Island Petroleums Ltd. et al. v. Irving Industries Ltd., [1975] 2 S.C.R. 715, 2123201 Ontario Inc. v. Israel Estate, 2016 ONCA 409, London and South Western Railway Co. v. Gomm (1882), 20 CH. D. 562 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, City of Halifax v. Vaughan Construction Company Ltd. and the Queen, [1961] S.C.R. 715, Weinblatt v. Kitchener (City), [1969] S.C.R. 157, Jain v. Nepean (City) (1992), 9 O.R. (3d) 11 (C.A.), leave to appeal refused, [1992] S.C.C.A. No. 473, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246, aff’d 2017 ONCA 293, leave to appeal refused, [2016] S.C.C.A. No. 249, Loyalist (Township) v. The Fairfield-Gutzeit Society, 2019 ONSC 2203, Manchester Ship Canada Company v. Manchester Racecourse Company, [1901] 2 Ch. 37 (C.A.), Weber v. Texas Co., 83 F.2d 807 (5th Cir. 1936), Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007, 3869130 Canada Inc. v. I.C.B. Distribution Inc., 2008 ONCA 396, Salah v. Timothy’s Coffees of the World Inc., 2010 ONCA 673, Fuller v. Aphria Inc., 2020 ONCA 403, Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, Thomas Edward Scrutton, Land in Fetters, (Cambridge: Cambridge University Press, 1896)

FACTS:

The appellant, ClubLink Corporation ULC (“ClubLink”), acquired property subject to various historical land development agreements affecting its use, between Campeau Corporation (“Campeau”) and the former City of Kanata (“Kanata”) (“the Agreements”). Subsection 5(4) and 9 of the 1981 Agreement stated: Campeau, or its successors and assigns, must operate a golf course on the property in perpetuity, failing which, the golf course lands are to be conveyed at no cost to Kanata, now part of the respondent, the City of Ottawa (“the City”); and, if the golf course lands are conveyed, the City is obliged to continue using the golf course lands for recreation or natural environmental purposes, failing which, they are to be reconveyed to Campeau.

ClubLink operated the golf course for over 24 years then submitted planning applications for a zoning by-law amendment and approval of a plan of subdivision and publicly accessible green space on the golf course lands. The City brought an application for an order requiring ClubLink to withdraw its applications. Alternatively, it claimed ClubLink’s applications triggered its right to demand conveyance of the golf course lands to the City at no cost. The City requested a declaration that ClubLink’s obligations remain valid and enforceable, and that if the golf course lands were conveyed to the City, the City would not be required to reconvey the golf course lands, so long as they were used for recreation and natural environmental purposes. ClubLink argued the City’s right to call on a conveyance had not vested within the 21 years following the 1981 Agreement, therefore the provisions requiring the operation of a golf course in perpetuity were void, as contrary to the rule against perpetuities.

In the decision under appeal, the application judge determined that the parties did not intend to create an interest in land because they never intended for the conveyances to materialize. The 1981 Agreement was declared valid and binding, and ClubLink was required to operate the golf course in perpetuity or convey the golf course lands to the City if it ceased to do so. In the event the golf course lands were conveyed to the City, the City is not required to operate the golf course in perpetuity so long as it uses the lands for recreation and natural environmental purposes.

ISSUES:

(1) Did the application judge err in finding that ss. 5(4) and 9 of the 1981 Agreement are not void for violating the rule against perpetuities?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes.

Sections 5(4) and 9 f the 1981 Agreement are void and unenforceable as being contrary to the rule against perpetuities, because the City’s right to call upon a conveyance of the golf course lands did not vest during the perpetuity period.

The application judge erred in his determination that because the parties never intended the rights to the conveyances to “crystallize”, there was no intention to create an interest in land. When the correct legal principles are applied, in the context of all the Agreements, the plain language of ss. 5(4) and 9 creates a contingent interest in land. The application judge made an extricable error of law in his interpretation of ss. 5(4) and 9 of the 1981 Agreement in concluding that contracting parties must intend a contingent interest in land to materialize in order to create a contingent interest in land.

The parties intended by ss. 5(4) and 9 of the 1981 Agreement to create contingent interests in the golf course lands. Under s. 5(4) of the 1981 Agreement, the City’s interest in the golf course lands was contingent on Campeau (or its successor or assign in title) ceasing to operate the golf course. Under s. 9, the reconveyance was contingent on, first, the conveyance under s. 5(4), and, second, the City ceasing to use the lands as prescribed. The owners operated the golf course for more than 21 years. Neither the City’s right to a conveyance nor ClubLink’s right to a reconveyance vested within the perpetuity period. As a result, the contingent interests in the golf course lands were void.


D.C. v. T.B., 2021 ONCA 850

[Roberts and Thorburn JJ.A. and Tzimas J. (ad hoc)]

COUNSEL:

M. J. Stangarone and A. MacEachern, for the appellant

C. Doris and J. Luscombe, for the respondent

Keywords: Family Law, Custody and Access, Parental Alienation, Costs, A.A. v. S.N.A., 2007 BCCA 363, A.M. v. C.H., 2019 ONCA 764

FACTS:

The appellant mother appealed from the final order of the trial judge granting the respondent father sole custody/decision making responsibility with respect to their 12-year-old child, R. The order appealed from also temporarily suspended contact between R. and the appellant or members of the appellant’s family.

ISSUES:

(1) Did the trial judge misapply the best interests of the child test, particularly in the absence of expert evidence, by making the order he did?

(2) Did the trial judge fail to give adequate weight to R.’s views and preferences?

(3) Did the trial judge misapprehend and fail to give appropriate weight to evidence, specifically, that the appellant attempted to facilitate the relationship between R. and the respondent?

(4) Should the appellant be granted leave to appeal the costs award?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The Court held the trial judge’s thorough reasons left no doubt as to the clear basis for his decision. Expert evidence was not required to permit the trial judge to come to his determination of parental alienation based on the evidence that he heard and accepted at trial. There was no error in the trial judge’s treatment of Dr. F.’s evidence, which was appropriate in the context of the entirety of the evidence. Further, the trial judge was alert to the fact that the order would represent a drastic change, and his reasoning followed the appropriate authorities.

(2) No.

The Court held that given the trial judge’s finding the appellant engaged in parental alienation and manipulation of R., it would not have been particularly useful to ascertain R.’s views and preferences by way of a further assessment or having her testify.

(3) No.

The Court noted the appellant was dissatisfied with the trial judge’s findings, particularly those adverse to her credibility, and asked the Court to reweigh the evidence and revisit those findings. The Court saw no error that would permit appellate intervention.

(4) No.

The Court saw no error in the trial judge’s costs award that would warrant leave being granted.


SHORT CIVIL DECISIONS

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 846

[Strathy C.J.O., Pepall and Pardu JJ.A.]

COUNSEL:

J. Necpal, J. Nasseri and J. Ng, for the appellants

B. N. Radnoff and J. Suttner, for the respondents

Keywords: Civil Procedure, Judgments, Enforcement, Contempt, Costs

Environmental Waterproofing Inc. v. Huron Tract Holdings Inc., 2021 ONCA 835

[Gillese, Trotter and Nordheimer JJ.A.]

COUNSEL:

S. Zeitz, for the appellant

M. Cook, for the respondents

Keywords: Bankruptcy and Insolvency, Receiverships, Priority, Civil Procedure, Judgments, Enforcement, Garnishment Proceedings