Following are this week's summaries of the Court of Appeal for Ontario for the week of September 25, 2023. It was another fairly light week.
Topics covered this week included: stay pending appeal to the Supreme Court of Canada of a constructive trust claim arising out of fraud, adverse possession, a dispute over the purchase of a Ferrari, extension of time to appeal in a class action against Amazon, and a breach of contract case involving the lease of solar panel equipment.
Table of Contents
Civil Decisions
Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644
Keywords: Torts, Fraud, Breach of Fiduciary Duty, Remedies, Constructive Trust, Unjust Enrichment, Civil Procedure, Stay Pending Appeal, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1(1), Sase Aggregate Ltd. v. Langdon, 2023 ONCA 554, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 919, Hollinger Inc. (Re), 2011 ONCA 765, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, B.M.P Global Distribution Inc. v. Bank of Nova Scotia, 2007 BCCA 52, ICBO v. Lo, 2006 BCCA 584, Donovan v. Sherman Estate, 2019 ONCA 465, Ting (Re), 2019 ONCA 768, Ducharme v. Hudson, 2021 ONCA 151, Yaiguaje v. Chevron Corporation, 2014 ONCA 40
Hitti v Maranello Sports Inc (Ferrari of Ontario), 2023 ONCA 633
Keywords: Civil Procedure, Consent Order, Agreement of Purchase and Sale, Continuation Order, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 59.06(2)(a),
Davis v. Amazon Canada Fulfillment Services, ULC, 2023 ONCA 634
Keywords: Civil Procedure, Class Proceedings, Appeals, Joinder, Transfer, Extension of Time, Class Proceedings Act, 1992, S.O. 1992, c 6, Arbitration Act, 1991, S.O. 1991, c. 17, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1), Cavan augh v. Grenville Christian College, 2013 ONCA 139
MacQuarrie v. Proulx, 2023 ONCA 625
Keywords: Real Property, Adverse Possession, Barbour v. Bailey, 2016 ONCA 98, Laing v. Moran, [1952] O.R. 215 (C.A.), Mueller v. Lee (2007), 59 R.P.R. (4th) 199 (Ont. S.C.), Tramonti v. Lombardi (1997), 12 R.P.R. (3d) 105 (Ont. C.A.)
Grasshopper Solar Corporation v. Palmer, 2023 ONCA 631
Keywords: Breach of Contract, Damages, Civil Procedure, Appeals, Rules of Civil Procedure, Rule 61.04(1), Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Kaiman v. Graham, 2009 ONCA 77, Syndicate 1221 (Millennium Syndicate) v. Coventree Inc., 2012 ONCA 341
Short Civil Decisions
Sase Aggregate Ltd. v. Langdon, 2023 ONCA 643, 2023 ONCA 643
Keywords: Civil Procedure, Costs
Collins v. Ontario, 2023 ONCA 646
Keywords: Civil Procedure, Vexatious Litigation, Canadian Charter of Rights and Freedoms, s 15, 24(1), Rules of Civil Procedure, Rule 2.1, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720
CIVIL DECISIONS
Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644
[MacPherson J.A. (Motion Judge)]
COUNSEL:
C. G. Carter, for the moving party
J. Montgomery, for the responding party
Keywords: Torts, Fraud, Breach of Fiduciary Duty,
Remedies, Constructive Trust, Unjust Enrichment, Civil Procedure,
Stay Pending Appeal, Supreme Court Act, R.S.C. 1985, c.
S-26, s. 65.1(1), Sase Aggregate Ltd. v. Langdon, 2023
ONCA 554, RJR-MacDonald Inc. v. Canada (Attorney General),
[1994] 1 S.C.R. 311, BTR Global Opportunity Trading Ltd. v. RBC
Dexia Investor Services Trust, 2011 ONCA 620, Livent Inc.
v. Deloitte & Touche, 2016 ONCA 395, Thunder Bay
(City) v. Canadian National Railway Company, 2018 ONCA 919,
Hollinger Inc. (Re),2011 ONCA 765, Circuit World Corp.
v. Lesperance(1997), 33 O.R. (3d) 674 (C.A.), Alectra
Utilities Corp. v. Solar Power Network Inc.,2019 ONCA 332,
Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, B.M.P
Global Distribution Inc. v. Bank of Nova Scotia, 2007 BCCA 52,
ICBO v. Lo, 2006 BCCA 584, Donovan v. Sherman
Estate, 2019 ONCA 465, Ting (Re), 2019 ONCA 768,
Ducharme v. Hudson, 2021 ONCA 151, Yaiguaje v. Chevron
Corporation, 2014 ONCA 40
FACTS:
The moving party was defrauded by its manager for over $2.1 million. It sought to recover stolen funds from the manager's wife (the responding party), alleging the money was used to buy and renovate a property she owned. The Court acknowledged the moving party was indeed defrauded, but dismissed its appeal for a constructive trust over the property's net sale proceeds. The application judge previously found that only $177,632.38 of the moving party's funds were traceable to the property, with the responding party unaware of the fraud and using legitimate funds for the property's purchase and renovation. The moving party's appeal contested the need for a fiduciary relationship and the adequacy of fund tracing but was rejected, with the Court citing an ill-suited application procedure and incomplete records, making the movement of fraudulently-obtained funds unclear. Justice van Rensburg found no legal error or significant factual error in the application judge's decision.
The moving party, Sase Aggregate Ltd., sought a stay of an Order of the Court dated August 21, 2023, pending its application for leave to appeal to the Supreme Court of Canada.
ISSUES:
Should a stay of the order of the Court dismissing the appeal be granted pending the application for leave to appeal to the Supreme Court of Canada?
HOLDING:
Motion granted.
REASONING:
Yes.
Pursuant to s. 65.1 (1) of the Supreme Court Act(the "SCA"), a judge or panel of the Court of Appeal may hear a motion to stay a judgment of the Court of Appeal pending leave to appeal to the Supreme Court of Canada. The moving party indicated it can file its materials with the Supreme Court of Canada within 14 days if pressed, and 30 days comfortably. The Court was satisfied that the moving party intended to apply for leave to appeal at the Supreme Court of Canada and will do so in a timely fashion.
In RJR-MacDonald Inc. v. Canada (Attorney General), the Supreme Court of Canada outlined a three-part test for obtaining a stay of a judgment pending appeal: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
(1) Serious Question: The moving party asserted that the decision of the Court for which it now sought leave to appeal represented a narrower interpretation of the law of constructive trusts in relation to unjust enrichment and was inconsistent with leading cases of the British Columbia Court of Appeal and the Supreme Court of Canada itself. The Court found that there was a legitimate debate as to the proper scope of the constructive trust remedy, which militated in favour of granting the stay motion.
(2) Irreparable Harm: The moving party asserted that it would suffer irreparable harm if the funds over which it claimed a constructive trust were released to the respondent before these issues were finally determined on the proposed appeal, rendering the proposed appeal moot. The Court found that the irreparable harm faced by the moving party should a stay not be granted militated in its favour.
(3) Balance of Convenience: The Court found that the balance of convenience favoured the moving party. The moving party must comply with the statutory timelines for filing its leave to appeal application. Should the moving party be unsuccessful in obtaining leave, the funds would become available to the respondent immediately. The inconvenience of an extra few months maintaining the status quo of the past two years was not sufficient to overcome the interests of justice, which called for a stay.
Hitti v Maranello Sports Inc (Ferrari of Ontario), 2023 ONCA 633
[Gillese, Trotter and Coroza JJ.A.]
COUNSEL:
R. H., acting in person
D. A. Brooker, for the moving party
Keywords: Civil Procedure, Consent Order, Agreement of Purchase and Sale, Continuation Order, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 59.06(2)(a),
FACTS:
R.H. entered into an agreement of purchase and sale with the Respondent (the "Agreement") for a new Ferrari (the "Vehicle"). Title to the Vehicle was to be taken in the name of the 285 Spadina SPV Inc. ("285"). R.H. stated that he was the beneficial owner of 285 and his mother was its sole director. The Respondent agreed that 285 could take title to the Vehicle provided R.H. could demonstrate that he controlled or otherwise owned 285. R.H was unable to provide the necessary corporate records for 285 and was unable to confirm he had the requisite funds to complete the purchase. Thus, the Respondent refused to transfer the Vehicle to 285 or to R.H.
R.H and 285 (together the "Appellants") brought an application seeking specific performance of the Agreement (the "Application"). By judgment dated January 3, 2023, the Application was dismissed (the "Judgment").
On March 10, 2023, the parties entered into a Consent Order. Under its terms, the Respondent agreed not to sell or transfer the Vehicle until final determination of the appeal. When the Respondent entered into the Consent Agreement, it was not aware that, on February 13, 2023, the Superior Court of Justice had issued an order removing R.H. from all positions of authority with 285 (the "February 2023 Order"). The Registrar had also issued an order on July 4, 2023 (the "Registrar's Continuation Order"), permitting R.H. to continue the interest of 285 in the appeal by 15080525 Canada Corp. ("150").
The Respondent brought two motions: 1. That the underlying appeal be dismissed or stayed or in the alternative, that the Consent Order be set aside or varied; and 2. To set aside the Registrar's Continuation Order.
ISSUES:
(1) On the first motion, did R.H. have authority to commence or continue the appeal on behalf of 285?
(2) On the second motion, should the Registrar's Continuation Order be set aside?
HOLDING:
Motions granted.
REASONING:
(1) No.
The February 2023 Order stripped R.H. of any authority to commence
or continue the appeal on behalf of 285. Even if the appeal were
successful, the management of 285 had indicated that 285 did not
want to continue with the appeal and would not pay for the Vehicle
nor take possession of it. Since the Agreement was for 285 to take
title to the Vehicle, the appeal was moot.
The Consent Order was set aside pursuant to r. 59.06(2)(a) of the Rules of Civil Procedure because of fraud or facts the Respondent discovered after it was made. R.H. knew of the February 2023 Order when the Consent Order was being negotiated. He hid its existence from the Respondent and his own lawyer. Had the Respondent been aware of the February 2023 Order, it would not have entered into the Consent Order. Thus, the Court concluded that the Consent Order must be set aside.
(2) Yes.
R.H. made an ex parte application to the Registrar asking that the interest of 285 in the appeal be continued by 150. His affidavit in support stated that on February 11, 2023, by purported resolutions, all of 285's assets and interests were assigned to him in trust for the shareholders and, on June 2, 2023, he assigned the interest in the appeal to 150, a corporation he caused to be incorporated one day earlier. The assignment from 285 to R.H. was allegedly made two days before the February 13 Order revoking any authority that he might have had over 285 and appointing new officers and directors of 285. The Court found that the alleged assignment of interest by 285 to R.H. was invalid. The Court was satisfied that the steps taken to transfer the interest in 285 to 150 were made after the February 2023 Order and designed to thwart it.
Davis v. Amazon Canada Fulfillment Services, ULC, 2023 ONCA 634
[Zarnett J.A. (Motion Judge)]
COUNSEL:
L. Sokolov and J.M. Leclerc, for the moving party
D. Di Paolo, N. Effendi, and L.M. Wagner, for the responding parties
Keywords: Civil Procedure, Class Proceedings, Appeals, Joinder, Transfer, Extension of Time, Class Proceedings Act, 1992, S.O. 1992, c 6, Arbitration Act, 1991, S.O. 1991, c. 17, Courts of Justice Act,R.S.O. 1990, c. C.43 ,s. 6(1), Cavanaugh v. Grenville Christian College, 2013 ONCA 139
FACTS:
The moving party was the representative plaintiff in a proposed class action commenced on June 12, 2020, against the responding parties ("Amazon"). The proposed class consisted of approximately 73,000 delivery drivers. The gist of the claim was that the delivery drivers were, in fact and law, employees of Amazon, liable for overtime and other entitlements. On June 19, 2023, the class action judge dismissed the plaintiff's motion to certify the action as a class proceeding (the "certification decision"). The plaintiff appealed the certification decision to the Divisional Court, governed by Ontario's Class Proceedings Act, 1992 (the "CPA").
The class action judge also granted a motion by Amazon to stay some members' claims with arbitration provisions (the "stay decision"). The appeal route for the Arbitration Act decisions was not governed by the CPA. Subject to an extension of time to file a notice of appeal, the plaintiff sought to appeal the stay decision under s. 6(1) of the Courts of Justice Act(the "CJA").
ISSUES:
(1) Should an order extending the time for the plaintiff to deliver his notice of appeal from the stay decision be granted?
(2) Should an order under ss. 6(2) and (3) of the CJA transferring, to the Court, the appeal from the certification decision that was currently pending in the Divisional Court and combining it with the appeal from the stay decision be granted?
HOLDING:
Motion granted.
REASONING:
(1) Yes.
Amazon consented to the extension of time to appeal the stay decision, without prejudice to its position that the Court was without jurisdiction to hear all or parts of that appeal and to its arguments on the merits of the appeal. The Court was satisfied that it was in the interests of justice to extend the time in accordance with Amazon's consent.
(2) Yes.
Sections 6(2) and (3) of the CJA provide that the Court of Appeal has jurisdiction over certain appeals and may transfer appeals for certain purposes. The fact that one appeal was with the Court and another to the Divisional Court were necessary but not sufficient conditions for transfer. Such an order is discretionary, and the overriding consideration is whether separate appeals or combining them better comports with the administration of justice. Relevant factors include the risk of inconsistent results and the extent of overlap in the matters.
The class action judge heard the plaintiff's certification motion and Amazon's motion to stay together. He outlined the effects decisions in one had on the other. Amazon's motion to stay was part of its resistance to certification. The effect of his finding was that those with arbitration agreements could not be class members. It was only because of the certification consideration that the court could decide on claims of drivers with arbitration agreements.
These considerations favored combining the appeals in the same court for consistent management and decisions. The different issues in the two appeals, given their connection, did not contradict joining them. The legislative choice was based on both the CPA and CJA provisions for appeals to be combined in the Court.
MacQuarrie v. Proulx, 2023 ONCA 625
[Feldman, Paciocco and Sossin JJ.A]
COUNSEL:
M. L. Riddell, for the appellant appearing by video
conference
M. C. Brown, for the respondents
Keywords:
Real Property, Adverse Possession, Barbour v. Bailey, 2016 ONCA 98, Laing v. Moran,[1952] O.R. 215 (C.A.), Mueller v. Lee (2007), 59 R.P.R. (4th) 199 (Ont. S.C.), Tramonti v. Lombardi (1997),12 R.P.R. (3d) 105 (Ont. C.A.)
FACTS:
The parties were neighbours in the Town of Port Stanley. The appellant owned the property known municipally as 171 Norma Place. The respondents owned the adjacent property known municipally as 173 Norma Place. Their dispute was over a small triangular strip of the respondents' land at the boundary of their properties. The boundaries of the disputed triangular strip were the actual property line between 171 and 173 Norma Place on one side, the road on one side, and a white fence that ran along approximately half of the strip on the third side. The triangular strip was addressed as two separate parcels: a triangular parcel that was bordered by the property line on one side and the white fence on the other, and a roughly rectangular parcel that began where the white fence stopped and runs to the road. The appellant claimed adverse possession over the entire strip consisting of both parcels.
The respondents purchased their property on December 1, 2006. The appellant's mother and her spouse obtained title to the appellant's property in July, 1995, and the appellant became the sole owner in September, 2011. On February 19, 2007, all the lands came under the Land Titles system. When the respondents purchased their property, they obtained a declaration of possession from the vendor attesting that there was no adverse possession of any part of the property. However, because of the partial fence, the respondents conceded in their written materials that the area enclosed on one side by the fence had been effectively possessed by the appellant's mother as his predecessor in title, and therefore they conceded possessory title to that portion of the claimed land.
The application judge applied the three-pronged test for determining adverse possession, the onus being on the party asserting the adverse possessory claim: Did the respondent establish: 1) actual possession of the property over a ten-year period prior to February, 2007? 2) the intention to exclude the true owner? 3) effective exclusion of the true owner?: Barbour at para 35. The application judge concluded his analysis by finding that the appellant had not met his onus to prove any of the three prongs of the test and rejected the claim. The application judge also rejected the appellant's claim for proprietary estoppel.
ISSUES:
1. Did the application judge err in failing to find adverse
possession had occurred?
2. Did the application judge err on the proprietary estoppel issue
by requiring representations to be express rather than by
conduct?
HOLDING:
Appeal dismissed.
REASONING:
1. No
The Court rejected the appellant's submission that the application judge was required to draw the inference that once the appellant had established adverse possession of the area bordered by the fence, that possession extended to the other contiguous area demarcated by the imaginary projection of the fence line to the road. He argued that it was an error for the trial judge to treat the claimed area as two separate areas, one bounded by the fence and the other not. The application judge had carefully applied the three-pronged test and considered the relevant evidence regarding the parties' use of the disputed, unfenced area over the relevant period, and came to the conclusion that the evidence did not establish adverse possession of that area.
Further, the Court noted that adverse possession claims frequently required courts to divide disputed areas and conduct distinct analyses: Laing at paras 27-40; Mueller at paras 4-5, 57-61. The Court distinguished this case with the facts of Tramonti, where the trial judge erred by failing to treat enclosing the entire area with a fence as evidence of intent to exclude. In the present case, the application judge declined to infer an intent to exclude by an imaginary, projected line with no actual fence.
In respect of the appellant's mother's use as
predecessor in title of his lands, the application judge found that
what she did with respect to lawn maintenance was not sufficient to
meet the test for adverse possession: open, notorious constant use
that excluded the true owner. That finding was subject to deference
by the Court and was borne out by the evidence.
The Court further rejected the appellant's submission that the
application judge erred by using evidence of activity after 2007 to
determine the issue of adverse possession before that date and that
he was confused about the evidence. The application judge
reiterated a number of times that the relevant 10-year period was
before 2007 when the lands were converted to the Land Titles
system. The Court also disagreed with the appellant's
submission that the application judge failed to recognize that the
respondents did not adduce evidence of use and possession during
the relevant 10-year time-period. To the contrary, the respondents
adduced a sworn declaration from the predecessor title holder
regarding her use and possession of the disputed lands, evidence of
their use in 2006 after the purchase, as well as post-2007
circumstantial evidence speaking to their understanding of their
entitlement to the disputed land. The application judge reasonably
concluded that the appellant's evidence of use during the
10-year period was insufficient to meet his burden of establishing
actual possession, intention to exclude, or effective
exclusion.
2. No.
The Court rejected the appellant's submission that the application judge erred on the proprietary estoppel issue by requiring representations to be express rather than by conduct. The application judge had found no evidence of encouragement of the appellant by the respondents and concluded that the appellant made assumptions and was mistaken regarding his rights. Those assumptions had not constituted encouragement by the respondents. The judge had found no conduct by the respondents that could or had amounted to a representation. There were no acts of encouragement and no evidence of detrimental reliance.
Grasshopper Solar Corporation v. Palmer, 2023 ONCA 631
[Fairburn A.C.J.O., Feldman and Sossin JJ.A.]
COUNSEL:
C. E. Reed, for the appellants
V. Tsou, for the respondent
Keywords: Breach of Contract, Damages, Civil Procedure, Appeals, Rules of Civil Procedure, Rule 61.04(1), Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Kaiman v. Graham, 2009 ONCA 77, Syndicate 1221 (Millennium Syndicate) v. Coventree Inc., 2012 ONCA 341
FACTS:
The respondent, Grasshopper Solar Corporation ("Grasshopper"), operated a business of leasing space on residential rooftops where it then installs solar panels. On August 9, 2012, the appellants, Neil Palmer and Michaele Hall, entered into a 20-year lease agreement with Grasshopper, pursuant to which Grasshopper would pay an annual rent of $700 to the appellants. The energy generated from the solar panels would be sold as part of the Independent Electrical System Operator, Feed-in Tariff Program (the "microFIT Program").
Grasshopper registered a Notice of Lease on title to the appellants' property and in October 2015 Grasshopper similarly registered a Notice of Security Interest. In 2016, the appellants sought to refinance their home. The refinancing required certain documents and the assistance of Grasshopper, given Grasshopper's security interest registered on the appellants' home, and required Grasshopper's security on the house to be postponed, to which Grasshopper agreed.
The appellants then sought reimbursement for the postponement registration fee and a portion of their lawyer's costs respecting the refinancing process. Grasshopper declined, to which the appellants responded by terminating the contract and instructing the Local Distribution Company ("LDC") to redirect monthly payments for the solar energy to them, rather than Grasshopper. Grasshopper subsequently commenced an action claiming the appellants breached their contractual obligations under the lease, and the appellants counterclaimed by stating the lease was breached by Grasshopper in the first instance.
The motion judge granted summary judgment in favour of Grasshopper, finding that the appellants breached the lease agreement by purporting to terminate the agreement and redirecting payments from the LDC to themselves. The motion judge found that there was no breach on the part of Grasshopper to warrant the appellants' actions, nor was there any basis in the lease agreement for them to have lawfully terminated the agreement at that point.
In a separate decision dealing with damages, the motion judge ordered the appellants to pay $51,356.24 in equitable damages, $2,191.37 in prejudgment and postjudgment interest, and $25,000 in costs. The motion judge calculated these damages based on the amount stipulated in Grasshopper's lease agreements with other parties (but not the one signed by the appellants) for a buyout of the solar panels. The appellants appealed from both the liability and damages judgments.
ISSUES:
1. Was the liability appeal out of time?
2. Is the lease void for being illegal or against public
policy?
3. Did the motion judge err in his interpretation of the lease
agreement?
4. Was the damages appeal out of time?
5. Did the motion judge err in imposing a buy-out on the
parties?
6. Should damages have been awarded to Grasshopper?
HOLDING:
Appeal allowed in part.
REASONING:
1. No
Grasshopper took the position that the appellant's appeal was late and should not be considered. According to Grasshopper, the appellants acknowledged that they appealed from the decision of the motion judge dated March 8, 2021, and therefore were beyond the 30-day time period for serving a notice of appeal set out in r. 61.04(1) of the Rules. The Court rejected this submission, stating that it was appropriate for the appellants to wait until after the damages decision before deciding to appeal the motion judge's orders both on the summary judgment and damages.
2. No.
The motion judge had not addressed this issue as it was not raised by the appellants. Therefore, the Court declined to consider this argument pursuant to the Court's discretion recognized in Kaiman, para 18. In this case, the failure to raise the issue meant that the record was insufficient to make any determination relating to potential improper motives or conduct on Grasshopper's part in relation to the microFIT program.
3. No
The motion judge's interpretation of the lease was entitled to deference: Deslaunier Custom Cabinets Inc. at para 49; Sattva Capital Corp. at paras 50, 52. The motion judge committed no error in turning first to the written terms of the agreement and applying them to the circumstances of this case: Coventree Inc. at para 16. Moreover, while it was true that the lease was offered on a take-it-or-leave-it basis, this did not rise to the level of an impermissible power imbalance between the parties.
4. No
Firstly, respondent argued that the appellants' supplementary notice of appeal was late. It was served over a month and a half after a notice of appeal was due. The supplementary notice of appeal had not added new details concerning the appeal of the damages decision, but it had included a request for an extension of time for the service and filing of the notice of appeal and the supplementary notice of appeal. The respondent took this request for an extension as evidence that the appeal was late.
The Court disagreed. There was no question with respect to the appellants intention to appeal within the 30-day timeframe. There was a clear explanation for the supplemental notice of appeal, and there was no prejudice resulting from the additional period between the original notice of appeal and the supplemental notice. In light of the court's test for extensions of time, the appellants' requested extension of time was granted: Paulsson at para 2.
5. Yes.
The motion judge had found that damages were to be based on the buy-out formula, and that such a calculation was fair and reasonable for both parties. The appellants argued that it was not open to the motion judge to impose damages that were not rooted in the lease that he had found to be breached.
The Court agreed that it was neither necessary nor justified for the motion judge to impose a buy-out on the parties, and it was an error to do so. While subsequent contracts entered into by Grasshopper included a buy-out provision, that provision was neither negotiated nor agreed to by these parties, it had not formed part of the parties' reasonable expectations, nor was there any independent evidence as to the value of the solar equipment that might inform an equity-based buy-out price.
6. No.
The Court rejected the appellants' argument that no damages should be awarded to Grasshopper. Damages arising from the appellants' breach of the lease were to be found in the lease agreement itself. Per the 'Termination and Remedy Provision', Grasshopper was entitled to remove the solar equipment, and any obligations owed by Grasshopper towards the appellants were at an end at the date of breach. Grasshopper, however, forfeited that right by failing to remove the solar panels.
Therefore, because the appellants had not owned the solar panels from the date of breach to the damages hearing, the appellants were wrongfully directing payments from the LDC to themselves. By the date of the damages decision, the motion judge accepted that the amount of these payments was $30,700.68. The Court ordered that this sum be returned to Grasshopper, amending the damages judgment accordingly. Further, the solar equipment was treated as abandoned by Grasshopper, entitling the appellants to have it removed at any time or to make use of it. Grasshopper was also ordered to remove the encumbrances registered on title to the appellants' property.
SHORT CIVIL DECISIONS
Sase Aggregate Ltd. v. Langdon, 2023 ONCA 643
[van Rensburg, Miller and Nordheimer JJ.A.]
COUNSEL:
C. Carter, for the appellant
J. Montgomery, for the respondent
Keywords: Civil Procedure, Costs
Collins v. Ontario, 2023 ONCA 646
[Harvison Young, Thorburn and Favreau JJ.A.]
COUNSEL:
R. M. Collins, acting in person
E. Guilbault, for the respondent
Keywords: Civil Procedure, Vexatious Litigation, Canadian Charter of Rights and Freedoms, s 15, 24(1), Rules of Civil Procedure, Rule 2.1, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720
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