Court Of Appeal Summaries (January 24-28, 2022) - Trials & Appeals & Compensation

Good evening.

Following are summaries of the civil decisions of the Ontario Court of Appeal for the week of January 24-28, 2022. There were 15 substantive civil decisions released this week.

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In the 85-page decision of Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), the majority of the Court determined the Information and Privacy Commissioner of Ontario was correct in ordering the disclosure to CBC of letters sent by the Premier to cabinet ministers, as the letters did not fall under the exemption found at s. 12(1) of the Freedom of Information and Protection of Privacy Act. Lauwers J.A. penned a substantial dissent in which he concluded the letters were exempted from disclosure under s. 12(1).

In Levant v. Demelle, the Court dismissed two appeals arising from two separate successful Anti-SLAPP motions against the online media outlet, Rebel News. The Court also allowed the two cross-appeals on costs, increasing the scale of costs awarded from partial indemnity to the presumptive full indemnity provided by s. 137.1 of the Courts of Justice Act.

In Laurentide Kitchens Inc. v. Homestars Inc., the Court held that the Administrative Judge of the Small Claims Court does not have jurisdiction to make an order under s. 137.1 of the Courts of Justice Act on the basis that the Administrative Judge lacks statutory authority – only Superior Court judges possess jurisdiction, and the s. 137.1 process is not consistent with the rules and procedures of Small Claims Court.

Other topics included liability under personal guarantees, an insurer's duty to defend a copyright infringement claim in the software/gaming industry, fraudulent conveyances, summary judgment, the duty to immediately disclose to the court and non-settling defendants a settlement agreement with a defendant (failing which a claim will be dismissed), a motion to amend a notice of appeal, loan defaults, breach of contract and extension of time to appeal.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Laurentide Kitchens Inc. v. Homestars Inc., 2022 ONCA 59

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Jurisdiction, Small Claims Court, Administrative Judges, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 22(3), 24, 42(2), 87.2, 137.1, and 327.1, Burden Reduction Act, 2017, S.O. 2017, c. 2, Rules of the Small Claims Court, Rule 1.03(1), Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599, 439 D.L.R. (4th) 193, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, Nanda v. McEwan, 2020 ONCA 431, Ontario College of Teachers v. Bouragba, 2021 ONCA 508

Bouji v. Poonai , 2022 ONCA 49

Keywords: Contracts, Debtor-Creditor, Promissory Note, Evidence, Credibility Findings, R. v. R.E.M., 2008 SCC 51

K.K. v. M.M., 2022 ONCA 72

Keywords: Family Law, Custody and Access, Best Interest of the Child, Evidence, Admissibility, Witnesses, Expert Reports, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Children's Law Reform Act, R.S.O. 1990, c. C. 12, Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Welton v. United Lands Corporation Limited, 2020 ONCA 322, R.F. v. J.W., 2021 ONCA 528, N. v. F., 2021 ONCA 614, 62 R.F.L. (8th) 7, leave to appeal granted, [2021] S.C.C.A. No. 364, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, A.M. v. C.H., 2019 ONCA 764, Van de Perre v. Edwards, 2001 SCC 60, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, F. (M.) v. Sutherland (2000), 188 D.L.R. (4th) 296 (Ont. C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531, Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, Ontario v. Lipsitz, 2011 ONCA 466, leave to appeal refused, [2011] S.C.C.A. No. 407, Armitage v. Brantford General Hospital (2004), 71 O.R. (3d) 44 (S.C.), Therrien (Re), 2001 SCC 35, ShaverKudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925

Flight (Re), 2022 ONCA 77

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Amending Notices of Appeal, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3, ss. 193(b), 193(c), 193(e), 215, Rules of Civil Procedure, r. 39.01(4), Yar. v. Yar (2012), 24 R.F.L. (7th) 101, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

Ghasempoor v. ICapital Financial Services Corp., 2022 ONCA 60

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Procedural and Natural Justice, Orders, Summary Judgment, Setting Aside, Fresh Evidence, Rules of Civil Procedure, Rule 59.06(2)

Homes of Distinction (2002) Inc. v. Adili , 2022 ONCA 64

Keywords: Breach of Contract, Construction, Expert Evidence, Housen v. Nikolaisen, 2002 SCC 33

Intercap Equity Inc. v. Bellman , 2022 ONCA 61

Keywords: Contracts, Interpretation, Debtor-Creditor, Guarantees, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, King v. Operating Engineers Training Institute of Manitoba Inc., 2011 MBCA 80, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Royal Bank of Canada v Samson Management & Solutions Ltd., 2013 ONCA 313, Royal Bank v. Poisson (1977), 26 O.R. (2d) 717 (H.C.), Granata Family Trust (Trustee of) v. Royal Bank, [2000] O.J. No. 4239 (Ont. S.C.), Mantini v. Smith Lyons LLP (2003), 64 O.R. (3d) 505 (C.A.), Lawrence v. Toronto Humane Society (2006), 271 D.L.R. (4th) 329 (Ont. C.A.), Kitchener-Waterloo Real Estate Board Inc. v. Ontario Regional Assessment Commissioner, Region No. 21 (1986), 56 O.R. (2d) 94 (H.C.), Dhawan v. Shails et al., 2018 ONSC 7116 (Div. Ct.), Kevin McGuinness, The Law of Guarantee, 3rd ed. (Markham, Ontario: LexisNexis Canada Inc., 2013)

Tall Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66

Keywords: Contracts, Real Property, Rights of First Refusal, Civil Procedure, Settlements, Disclosure, Stay of Proceedings, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Laudon v. Roberts, 2009 ONCA 383

IT Haven Inc. v. Certain Underwriters at Lloyd's, London , 2022 ONCA 71

Keywords: Contracts, Insurance, Interpretation, Coverage, Duty to Defend, Rescission, Misrepresentation, Extrinsic Evidence, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, Panasonic Eco Solutions Canada Inc. v. XL Specialty Insurance Company, 2021 ONCA 612, Non-Marine Underwriters, Lloyd's of London v. Scalera, [2000] 1 S.C.R. 551, Trafalgar Insurance Co. of Canada v. Imperial Oil Ltd. (2001), 57 O.R. (3d) 425 (C.A.), 1540039 Ontario Limited v. Farmers' Mutual Insurance Company (Lindsay), 2012 ONCA 210, Family and Children's Services of Lanark, Leeds and Grenville v. Co-operators General Insurance Company, 2021 ONCA 159, McLean (Litigation Guardian of) v. Jorgenson (2005), 78 O.R. (3d) 308 (C.A.), Halifax Insurance Co. of Canada v. Innopex Ltd. (2004), 72 O.R. (3d) 522, Longo v. Maciorowski (2000), 50 O.R. (3d) 595 (C.A.), Drane v. Optimum Frontier Insurance Co., 2004 NBCA 52, 272 N.B.R. (2d) 241, Gordon G. Hilliker, Liability Insurance Law in Canada, 7th ed. (Toronto: LexisNexis Canada, 2020), Mark G. Lichty & Marcus B. Snowden, Annotated Commercial General Liability Policy, loose-leaf (2021-Rel. 2) (Toronto: Thomson Reuters Canada Ltd., 2021), Craig Brown et al., Insurance Law in Canada, loose-leaf (2021-Rel. 8) (Toronto: Thomson Reuters Canada Ltd., 2021), Craig Brown & Julio Menezes, Insurance Law in Canada: A Treatise on the Principles of Indemnity Insurance as Applied in the Common Law Provinces of Canada, 2nd ed. (Toronto: Carswell, 1991)

Midland Resources Holding Limited v. Bokserman , 2022 ONCA 73

Keywords: Civil Procedure, Debtor-Creditor, Orders, Enforcement, Fraudulent Conveyances, Summary Judgment, Fresh Evidence, Substantial Indemnity Costs, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, s. 2, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 4, Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 4,Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137, Rules of Civil Procedure, Rules 4.03 and 20.04, Purcaru v. Seliverstova, 2016 ONCA 610, Outfront Media Canada LP v. Clarity Outdoor Media Inc., 2017 ONSC 2136, Anisman v. Drabinsky, 2020 ONSC 1197, aff'd 2021 ONCA 120, Grant Thornton v. New Brunswick, 2021 SCC 3, McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2008 ONCA 597

Dagenais v. Pellerin , 2022 ONCA 76

Keywords: Employment Law, Torts, MVA, Vicarious Liability, Respondeat Superior, Battistoni v. Thomas, [1932] S.C.R. 144, Smith v. Stages and another, [1989] 1 All E.R. 833 (H.L.), Bazley v. Curry, [1999] 2 S.C.R. 534, Sickel Estate v. Gordy, 2008 SKCA 100

Levant v. DeMelle , 2022 ONCA 79

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Costs, Courts of Justice Act, ss. 131 and 137.1, Rules of Civil Procedure, Rules 1.03, 57.01 and 57.01(3), Bent v. Platnick, 2020 SCC 23, Grant v. Torstar Corp., 2009 SCC 61, 704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), Montour v. Beacon Publishing Inc., 2019 ONCA 246, Levant v. Day, 2019 ONCA 244, Lascaris v. B'nai Brith Canada, 2019 ONCA 163, WIC Radio Ltd. v. Simpson, 2008 SCC 40, Ross v. New Brunswick Teachers' Assn., 2001 NBCA 62, Blair v. Ford, 2021 ONCA 841, Lachaux v. Independent Print Ltd., [2017] EWCA Civ. 1334, Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, Platnick v. Bent, 2018 ONCA 687, Carter-Ruck on Libel and Slander, 5th ed. (London: Butterworths, 1997), The Law of Defamation in Canada (Scarborough: Carswell, 1994) (loose-leaf updated 2007, release 4), Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Toronto: Carswell, 1994) (loose-leaf updated 2020, release 5)

Oxygen Working Capital Corp. v. Mouzakitis , 2022 ONCA 90

Keywords: Contracts, Debtor-Creditor, Guarantees, Civil Procedure, Summary Judgment, Rules of Civil Procedure, Rule 20, Hryniak v. Mauldin, 2014 SCC 7, Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) , 2022 ONCA 74

Keywords: Administrative Law, Public Law, Constitutional Law, Cabinet Privilege, Media Law, Freedom of Information, Statutory Interpretation, Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 12(1), Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 16, s. 12(1), Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy, vol. 2 (Toronto: Queen's Printer of Ontario, 1980), Peter W. Hogg, Constitutional Law in Canada, loose-leaf, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2007), Ivor Jennings, Cabinet Government, 2nd ed. (Cambridge: Cambridge University Press, 1951), Official Report of Debates (Hansard), 33rd Parl., 1st Sess., No. 113 (10 February 1986), at p. 3955 (Norman Sterling), Order PO-1725, [1999] O.I.P.C. No. 153, Order P-266, [1991] O.I.P.C. No. 10, Order 22, [1988] O.I.P.C. No. 22, Order P-901, [1995] O.I.P.C. No. 148, Order PO-2707; Ministry of Education, [2008] O.I.P.C. No. 166, Order PO-3973; Cabinet Office (Re), [2019] O.I.P.C. No. 155, Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553, Longueépée v. University of Waterloo, 2020 ONCA 830, Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, Wells v. Newfoundland, [1999] 3 S.C.R. 199, Babcock v. Canada (Attorney General), 2002 SCC 57, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Aquasource Ltd. v. British Columbia (Freedom of Information and Protection of Privacy Commissioner), 58 B.C.L.R. (3d) 61, O'Connor v. Nova Scotia (Deputy Minister of the Priorities & Planning Secretariat), 2001 NSCA 132, Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, [2010], Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, Carey v. Ontario, [1986] 2 S.C.R. 637, Conway v. Rimmer, [1968] A.C. 910 (H.L.), Ontario (Ministry of Finance) (Re), [2017] O.I.P.C. No. 58, Greater Sudbury (City) (Re), [2013] O.I.P.C. No. 254, North Bay (City) (Re), [2018] O.I.P.C. No. 236, Ontario (Ministry of Energy), [2017] O.I.P.C. No. 145, Ontario (Ministry of Finance), [2004] O.I.P.C. No. 201, Ministry of Education, [2008] O.I.P.C. No. 166, Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, [2020] F.C.J. No. 671, Mobil Oil Canada Ltd. v. CanadaNewfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, Giguère v. Chambre des notaires du Québec, 2004 SCC 1, Administrative Law, A Treatise, 2nd ed. (Toronto: Carswell, 1985)

Sheth v. Randhawa , 2022 ONCA 89

Keywords: Contracts, Real Property, Mortgages, Enforcement, Power of Sale, Civil Procedure, Appeals, Dismissal for Delay, Setting Aside, Perfection, Extension of Time, Rules of Civil Procedure, Rules 61.09 and 60.10, Mortgages Act, R.S.O. 1990, s. 42(1), Paulsson v. University of Illinois, 2010 ONCA 21, Krawczynski v. Ralph Culp and Associates Inc., 2019 ONCA 399, Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.), Enbridge Gas Distribution v. Froese, 2013 ONCA 131, Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, Dupuis v. Waterloo (City), 2020 ONCA 96, Di Trapani v. 9706151 Canada Ltd., 2019 ONSC 7311, Centurion Farms Ltd. v. Citifinancial Canada Inc., 2013 ONCA 79, Gowling Lafleur Henderson LLP, Marriott and Dunn: Practice in Mortgage Remedies in Ontario, looseleaf, 5th ed. (Toronto: Carswell, 1995)

Short Civil Decisions

Froud v. Froud , 2022 ONCA 59

Keywords: Wills and Estates, Insurance Policy

Canada Mortgage and Housing Corporation v. Hart , 2022 ONCA 51

Keywords: Civil Procedure, Default Judgments, Setting Aside, Vexatious Litigation, Rules of Civil Procedure, Rules 2.1.01 and 59.06(2)

Amrane c. Ontario (Enseignement supérieur et de la formation professionnelle), 2022 ONCA 52

Keywords: Civil Procedure, Striking Pleadings, Rules of Civil Procedure, Rules 21 and 25

Amrane c. Girlando , 2022 ONCA 53

Keywords: Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Conway v. The Law Society of Upper Canada, 2016 ONCA 72, Mortazavi v. University of Toronto, 2013 ONCA 655, Rules of Civil Procedure, Rule 21.01(b)

Amrane c. Abraham , 2022 ONCA 54

Keywords: Civil Procedure, Dismissal for Delay, Appeals, Perfection, Extension of Time, Vancouver (City) v. Ward, 2010 SCC 27, Machado v. Ontario Hockey Association, 2019 ONCA 210, City of Toronto Act, 2006, S.O. 2006, c. 11, appendix A, Ontario Works Act, 1997, S.O. 1997, c. 25, appendix A, Courts of Justice Act, R.S.O. 1990, Chapter C.43, s. 7(5)

2650971 Ontario Inc. v. Shameti , 2022 ONCA 62

Keywords: Civil Procedure, Appeals, Jurisdiction, Webster v. Groszman, 2021 ONCA 55, Partition Act, R.S.O. 1990, c. P.4, s. 7

Pal v. Bhatia , 2022 ONCA 68

Keywords: Family Law, Custody and Access, Parenting Time, Child Support

Hoang v. Mann Engineering Ltd., 2022 ONCA 82

Keywords: Employment Law, Civil Procedure, Appeals, Amending Pleadings, Vexatious Litigants, Rules of Civil Procedure, r. 2.1.02, 2.1.02(1), 2.1.02(3), 37.16, 61.16(6.1), Huang v. Braga, 2020 ONCA 645, Evans v. Snieg, 2019 ONSC 7270, Hoang v. Mann Engineering Ltd., 2021 ONCA 742

CIVIL DECISIONS

Laurentide Kitchens Inc. v. Homestars Inc., 2022 ONCA 59

[Benotto, Huscroft and Miller JJ.A.]

Counsel:

G.J. Tighe and D. Risteska, for the appellants

M. Zemel, for the respondent

facts:

The respondent operated a website on which consumers posted reviews of contractors and providers of home improvement services. Negative reviews were posted against the appellants. The appellants sued the respondent in Small Claims Court. The respondent brought motions against the appellants to dismiss their actions under the Anti-SLAPP provisions in s. 137.1 of the Courts of Justice Act (CJA). The motions were scheduled to be heard before a deputy judge.

Following the scheduling of the motions, the Court of Appeal for Ontario released its decision in Bruyea v. Canada (Veteran Affairs). The Court concluded that deputy judges do not have jurisdiction to make orders under s. 137.1 of the CJA. Since its release, Bruyea has been followed by the Court in other cases which have confirmed that only Superior Court judges can make orders under s. 137.1.

The respondent applied to the Superior Court and sought to have a Superior Court judge assigned to hear the motions. On October 17, 2019, the matter came before a Superior Court judge, who endorsed the record that the action would remain in Small Claims Court and the Administrative Judge of the Small Claims Court would hear the motions.

On February 27, 2020, the motions came before the Administrative Judge of the Small Claims Court. The appellants challenged her jurisdiction. The Administrative Judge concluded that the Superior Court judge's endorsement settled the issue of jurisdiction, and she would hear the motions when the court resumed operations. The appellants appealed.

The appellants submitted that the Administrative Judge of the Small Claims Court did not have jurisdiction because the issue was determined by the Court in Bruyea. The respondent submitted that the jurisdiction issue decided in Bruyea was limited to deputy judges of the Small Claims Court and did not extend to the Administrative Judge.

issues:

(1) Does the Administrative Judge of the Small Claims Court have jurisdiction to make an order pursuant to s. 137.1 of the CJA?

holding:

Appeal allowed.

reasoning:

(1) No.

The Court found that the Administrative Judge did not have the authority to make an order under s. 137.1 for three reasons.

First, an administrative judge does not have statutory authority. In 2017, the Burden Reduction Act amended the CJA to create the position of Administrative Judge. Section 137.1 had already been in effect for two years. Although the legislature made other consequential amendments to the CJA to reflect this change, the legislature did not amend s. 137.1(3) to include the Administrative Judge.

Second, the Court of Appeal for Ontario has determined that only Superior Court judges have jurisdiction to make orders under s. 137.1. The analysis in Bruyea is equally applicable to the Administrative Judge. In any event, post-Bruyea the Court has stated that only Superior Court judges have jurisdiction to make orders under s. 137.1: Nanda v. McEwan, at para. 12 and Ontario College of Teachers, at para. 7. The Administrative Judge is not a Superior Court judge.

Third, the s. 137.1 process is not consistent with the rules and procedures of the Small Claims Court. The Small Claims Court embodies the foundations of access to justice, informality, affordability, timely resolution, accessibility for self-represented people and active judicial engagement. These hallmarks of the Small Claims Court, as enshrined in its rules, are incompatible with the provisions of s. 137.1. A s. 137.1 analysis requires the detailed process of shifting burdens with respect to merits, proportionality and public interest, which involves exchange of affidavits and cross-examinations. Motions are not encouraged in Small Claims Court. The Rules of Small Claims Court do not provide for cross-examination on affidavits. Under s. 137.1, costs of an unsuccessful motion are presumptively full indemnity. The limit on costs for a motion in Small Claims Court, absent special circumstances, is $100. The limit on costs after trial is 15% of the award. Small Claims Court jurisdiction is limited to $35,000. Contrary to these limits of Small Claims Court, s. 137.1 provides extensive powers with respect to damages. The s. 137.1 motion must be heard within 60 days and stays the underlying action. Appeals go directly to the Court of Appeal. This does not comply with r. 1.03(1) of the Rules of the Small Claims Court.

Bouji v. Poonai , 2022 ONCA 49

[Strathy C.J.O., Harvison Young and Zarnett JJ.A.]

Counsel:

E. Bhattacharya and M. Rodriguez, for the appellant

M. Dusseault, for the respondent

Keywords: Contracts, Debtor-Creditor, Promissory Note, Evidence, Credibility Findings, R. v. R.E.M., 2008 SCC 51

facts:

In 2016, the appellant introduced the respondent to an opportunity to invest $400,000 and acquire shares in Metrozen (Canada) Inc. ("Metrozen") which had a real estate project located in Scarborough, Ontario. The appellant was told by the principal of Metrozen that the funds were required to bring a mortgage on the project back into good standing and to help keep it current.

The respondent was prepared to invest $200,000, but only if the appellant invested the same amount. The appellant agreed to do so, but as she did not have that amount on hand, the respondent agreed to advance it on her behalf. The motion judge found that the agreement between the appellant and respondent was that the appellant would receive three percent of the shares of Metrozen, and the respondent seven percent.

On May 31, 2016, the parties went together to the respondent's bank to arrange for the $400,000, and then to Metrozen's lawyer, who deposited the funds into his trust account. In return, two documents were provided: (i) a note dated May 31, 2016 (the "Metrozen Note") by which Metrozen and its principal promised to pay the respondent's corporation $400,000 by December 1, 2016; and (ii) a Share Agreement whereby Metrozen and its principal agreed that seven percent of the shares of Metrozen would be transferred to the respondent's corporation and the balance of the shares would be pledged as security for repayment under the Metrozen Note. Although the appellant is not mentioned in the Metrozen Note or Share Agreement, she witnessed the execution of both. No document mentioning the appellant's three percent was provided by Metrozen.

On August 31, 2016, the parties executed the promissory note which is the subject of the action (the "August Note"). Under it, the appellant promised to pay to the respondent the sum of $200,000. The August Note recited that this amount had been loaned to the appellant by the respondent to purchase three percent of the shares of "metro ZEN [sic] for the project.

The parties later discovered that the funds that had been advanced on May 31, 2016 were misappropriated by Metrozen or its principal. The funds did not go into the project, and neither of the parties received any shares in Metrozen or any payments from it in return for the advance.

In 2019, the respondent commenced an action against the appellant to recover on the August Note and the oral agreement for interest. The respondent then successfully moved for summary judgment.

The appellant appeals from the summary judgment that ordered her to pay the respondent $200,000, with interest, under the promissory note and related oral agreement.

issues:

(1) Did the motion judge fail to consider all of the evidence, specifically the transcripts of the cross-examinations of the parties, and thereby commit an error of law?

(2) Did the motion judge fail to give adequate reasons as to why he declined to make credibility findings?

(3) Did the motion judge make palpable and overriding errors of fact?

holding:

Appeal dismissed.

reasoning:

(1) No.

The motion judge was not required to mention each item of evidence. The absence of an express reference to the cross-examinations in the reasons does not translate into a failure to consider them.

For example, the appellant places reliance on a statement in the respondent's cross-examination to the effect that the parties were to be equal partners in the transaction. However, the reference is clear that the respondent meant that both would be equally responsible for the sum advanced to Metrozen. The respondent went on to explain that she was to receive a greater percentage of shares because she was advancing the appellant's portion for her. There is nothing in this exchange inconsistent with the trial judge's findings or that would suggest he lost sight of, or did not consider, this evidence.

(2) No.

The motion judge's reasons were adequate, as they permitted meaningful appellate review. The motion judge explained why he could determine the issues without a credibility finding, namely that the documentary record was clear. Moreover, in addition to making the statements the appellant points to about why the case could be decided without an express credibility determination, the motion judge also indicated that the outcome would be no different if he decided the matter on the basis of credibility. The motion judge gave detailed reasons for his conclusions.

(3) No.

The divergence complained of by the appellant between the motion judge's finding that she was "promised" a commission by Metrozen that was never paid, and the appellant's evidence that she was "offered" a commission but never received it, was more superficial than real and could have no impact on the outcome.

K.K. v. M.M., 2022 ONCA 72

[Paciocco, Nordheimer and Coroza, JJ. A.]

Counsel:

G. S. Joseph, for the appellant

A. Pasha, for the respondent

Keywords: Family law, Custody and Access, Best Interest of the Child, Evidence, Admissibility, Witnesses, Expert Reports, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Children's Law Reform Act, R.S.O. 1990, c. C. 12, Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Welton v. United Lands Corporation Limited, 2020 ONCA 322, R.F. v. J.W., 2021 ONCA 528, N. v. F., 2021 ONCA 614, 62 R.F.L. (8th) 7, leave to appeal granted, [2021] S.C.C.A. No. 364, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, A.M. v. C.H., 2019 ONCA 764, Van de Perre v. Edwards, 2001 SCC 60, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, F. (M.) v. Sutherland (2000), 188 D.L.R. (4th) 296 (Ont. C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531, Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, Ontario v. Lipsitz, 2011 ONCA 466, leave to appeal refused, [2011] S.C.C.A. No. 407, Armitage v. Brantford General Hospital (2004), 71 O.R. (3d) 44 (S.C.), Therrien (Re), 2001 SCC 35, ShaverKudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925

facts:

The parties married in India in 2003. They immigrated to Canada so that the appellant could practice medicine. The parties separated in 2012 and engaged in high-conflict litigation regarding their children, V. K. and J. K.

The motion judge granted sole custody to the appellant father based on an interim finding of parental alienation by the respondent in March 2014. The motion judge relied on opinion evidence by Dr. G., a court-appointed assessor, in finding that both V.K. and the respondent mother conspired to alienate J. K. from the appellant. For the next six and a half years, the children resided with the appellant, and the respondent had limited parenting time, with lengthy periods of no contact.

The trial started November 30, 2020. The appellant intended to call Dr. G. as a witness to testify about the assessment, but he did not appear to trial despite being served with a summons to attend. The appellant sought to admit Dr. G's s. 30, Children's Law Reform Act ("CLRA") reports into evidence. The responded objected to the admissibility of the reports, based on serious concerns about Dr. G.'s approach to the s. 30 assessment. The trial judge held that no weight would be given to Dr. G.'s recommendations.

The trial judge found that the appellant was not a credible witness, and the respondent was a credible witness. The respondent had not engaged in alienating conduct, but had been the target of vilification and the victim of parental alienation created by the appellant. The trial judge concluded the children had been subject to physical, emotional, and psychological abuse by the appellant.

The trial judge directed that the children's principle residence would be with the respondent, who would have sole responsibility for making all day-to-day and significant decisions, without the appellant's consultation. On appeal, the appellant focused on his son, J. K., submitting his primary residence should be with him.

issues:

(1) Did the trial judge err in her application of the best interest test as set out in s. 16 of the Divorce Act?

(2) Did the trial judge fail to meaningfully consider the recommendations of the court-appointed assessor, Dr. G., who prepared reports during the litigation pursuant to s. 30 of the CLRA?

holding:

Appeal dismissed.

reasoning:

(1) No

The trial judge found that the appellant was an incredible witness. In contrast, she found that the respondent was a credible witness and that her evidence was corroborated by other credible evidence at trial. These unequivocal findings were amply supported in the record, and there was no basis to interfere with any of them.

The Court rejected the appellant's submission that the trial judge failed to give adequate weight to J.K.'s views and preferences, as required by law. The trial judge's reasons demonstrated common sense and a reasoned approach to the children's views. The trial judge recognized that J.K. had a strong emotional attachment to the appellant but felt that his views had been manipulated by the appellant. The trial judge's reasons were given deference.

(2) No

The trial judge's decision in this case was justified. The College of Physician and Surgeons ("CPSO") conducted an investigation on Dr. G. following the respondent's complaint, and found that there were serious concerns about Dr. G.'s approach to the s. 30 assessment. The public undertakings restricted Dr. G.'s practice such that he undertook not to conduct any new assessments of individuals he believes have been subject to or have engaged in parental alienation and to terminate any ongoing practice related to parental alienation. The fact of the complaint, the fact that an investigation was conducted and a decision given, and the content of the public undertakings were all admissible and sufficient to support the decision to give Dr. G.'s opinions no weight.

It was also by no means clear that Dr. G.'s opinions, even if they were given weight, would have affected the trial judge's overall decision to reverse the status quo parenting arrangement. The trial judge was aware that the opinion likely supported the status quo because Dr. G.'s reports were used by the motion judge in making an interim order. However, the trial judge gave detailed reasons for why she did not agree with maintaining the status quo. The Court was satisfied that the trial judge's findings against the respondent's credibility and the best interests of J.K. were clearly supported by the record.

Flight (Re), 2022 ONCA 77

[Simmons J.A. (Motions Judge)]

Counsel:

N. Kluge and C. Haddon Murray, for the moving parties/appellants, Adamson & Associates Inc. and J. A.

T. Vasdani, for the responding party/respondent, B. W. F.

J. Pollice, for the intervener Superintendent of Bankruptcy

facts:

The appellants moved in writing for an order permitting them to amend their notice of appeal dated June 24, 2021, to add a request, in the alternative, for leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act (the “BIA“).

The motion judge required the parties to make oral submissions, as he was concerned with the admissibility of some of the material filed on the motion. Ultimately, following submissions from counsel, the motion judge struck out portions of the moving parties' factum, the entirety of the moving parties' letter to the court, and portions of the responding party's affidavit.

Following the striking of the foregoing material, the parties agreed that the motion should proceed in writing.

issues:

(1) Should the appellants be granted permission to amend their notice of appeal?

holding:

Motion granted.

reasoning:

(1) Yes.

The motion judge considered the five factors relevant to the determination of whether to grant leave to amend a notice of appeal after an appeal has been perfected, as set out in the case of Yar v. Yar:

(a) Whether the appellant formed an intention to appeal within the relevant period

The motion judge concluded the appellants formed an intention to appeal within the relevant period because they had already perfected their appeal under ss. 193(b) and (c) of the BIA.

(b) The length of the delay and any explanation for the delay

The motion judge rejected the moving parties' explanation that it was the responding parties' failure to notify them of the requirement to seek leave that caused the delay. Ultimately, the motion judge concluded there was no reasonable explanation for the moving parties' delay.

(c) Any prejudice to the respondent

The motion judge concluded there would be no prejudice to the responding party if permission to amend was granted, as there was a pending appeal regardless.

(d) The merits of the appeal

The motion judge noted the fact that the Superintendent had been permitted to intervene and the evidence the Superintendent filed on the motion to intervene supported the likelihood that the appeal raised an issue of general importance and indicated the panel might choose to address it whatever the level of merit. Accordingly, the motion judge concluded the merits supported granting permission to amend.

(e) Whether the "justice of the case" requires an extension

Although the motion judge held the moving parties should have addressed the alternative request earlier, he concluded that, given the lack of prejudice to the responding party and the merits of the alternative request, the justice of the case warranted granting permission to amend.

Ghasempoor v. ICapital Financial Services Corp., 2022 ONCA 60

[Pardu, Roberts and Miller JJ.A.]

Counsel:

A.G., acting in person and for the appellant, Atciti Corp.

P. Smiley, for the respondent, iCapital Financial Services Corp.

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Procedural and Natural Justice, Orders, Summary Judgment, Setting Aside, Fresh Evidence, Rules of Civil Procedure, Rule 59.06(2)

facts:

The appellant, A.G., was the principal and president of the appellant, Atciti. In November 2018, Atciti and the respondent, iCapital, entered a Term Loan Agreement ("TLA") by which iCapital agreed to advance $40,000 to Atciti and Atciti agreed to repay the sum plus a $12,000 fee by making daily payments. The TLA provided that in the event of default, all of Atciti's indebtedness would become immediately due and payable at the option of iCapital. A.G. personally guaranteed the TLA. iCapital obtained a consumer report on A.G.

In February 2019, Atciti and iCapital entered into a new loan agreement which was incorporated by reference into the TLA (the "Renewal"). The loan amount was increased to $70,000 in exchange for a fee of $21,000 to be paid in weekly installments. This subsumed the amounts that were outstanding under the prior TLA. The guarantee remained in effect. iCapital obtained a second consumer report on A.G.

Atciti made the required weekly payments for five weeks. On April 4, 2019, A.G. commenced the action, alleging that iCapital had damaged his personal credit and made an "unreasonable payment demand". The next day, Atciti failed to make the required payment. The outstanding sum owing under the TLA became due and payable. iCapital counterclaimed against A.G. and commenced a third party claim against Atciti. It alleged that Atciti defaulted in its weekly payments required under the Renewal, which triggered an acceleration of the balance of the debt and A.G.'s personal guarantee of the loan.

iCapital brought a motion for summary judgment dismissing A.G.'s action against it and granting judgment against A.G. and Atciti Corp. in the amount of $82,250 on a joint and several liability basis. The motion was granted.

The motion judge determined that A.G.'s position was that: (a) by making a "premature" demand for payment, iCapital was deprived of seeking payment of the accelerated outstanding indebtedness under the Renewal and the Guarantee; (b) the outstanding indebtedness was $51,000, not $82,250, as was claimed by iCapital; and (c) iCapital obtained a second consumer report from Equifax which caused damage to A.G.'s financial credit standing.

The motion judge rejected all three of these arguments. She found that A.G. consented to iCapital obtaining a second credit report, did not quantify the damages he was seeking or adduce any evidence in support of his allegations that iCapital's request for a second consumer report was improper or gave rise to damages, and did not adduce any evidence justifying his "bald allegation" that the outstanding indebtedness was only $51,000. Furthermore, she rejected A.G.'s argument that a letter from iCapital dated April 1, 2019 amounted to a demand for payment.

issues:

(1) Were the appellants denied procedural fairness?

(2) Was the claim unfit for summary judgment?

(3) Did the motion judge err in finding that the outstanding loan amount was $82,250?

(4) Should the appellants' fresh evidence be admitted?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court was not persuaded that the proceeding was procedurally unfair to the appellants. The appellants refused to attend cross-examinations, even though they were required to by an agreed-upon timetable set in Civil Practice Court. Moreover, after the date set for argument of the summary judgment motion was cancelled, iCapital offered seven different dates for the argument of the motion and one date for cross-examination. The appellants did not respond. A date was set and the endorsement warned A.G. that he was to advise of a date on which he could be cross-examined and stipulated that if he failed to do so or attend his affidavit could be struck. The endorsement was provided by both registered mail and email.

A.G. indicated that he was unavailable to attend the summary judgment motion due to medical reasons. The proposed fresh evidence did not establish that he was unable to attend and argue the motion, which was conducted virtually. The motion judge was satisfied A.G. had notice of the hearing. The motion judge waited for A.G. to attend. Counsel for iCapital called A.G. and left a voice message. Moreover, the motion judge did not strike A.G.'s affidavit but weighed it in evaluating arguments made on the motion.

(2) No.

The action in debt was well-suited for summary judgment. Moreover, the motion judge carefully considered A.G.'s affidavit filed on the motion, despite his absence.

(3) Not addressed.

(4) No.

The evidence related to the merits of the summary judgment motion would have been available with reasonable diligence and could have been provided at the time of the motion. The evidence related to the reasons why A.G. did not attend the hearing did nothing to dispel the impression that the decision was tactical on his part and was not credible.

Homes of Distinction (2002) Inc. v. Adili , 2022 ONCA 64

[Huscroft, Trotter and Coroza JJ.A.]

Counsel:

D. Fridmar, for the appellants

D. Thompson and M. Grant, for the respondents

Keywords: Breach of Contract, Construction, Expert Evidence, Housen v. Nikolaisen, 2002 SCC 33

facts:

The appellants decided to renovate their home in 2007 and contracted the respondent who was a builder carrying on business as Homes of Distinction (2002) Inc ("HoD"). The builder's principal is the respondent R.V. The parties reached an oral agreement for the project in the spring of 2008. The relationship between the parties fell apart in 2010 and HoD withdrew its services and registered a construction lien on the property to secure outstanding payment for work completed. The appellants advised HoD that the contract was terminated and alleged that its work was deficient and non-compliant with the Ontario Building Code, O. Reg 332/12. The appellants hired other contractors to complete the renovation and to rectify some of the alleged deficiencies.

The respondents commenced a construction lien action and sought to recover from the appellants the balance claimed as owing. The appellants denied they owed anything and brought their own action, alleging incomplete and deficient work and seeking over $1,450,000 from the respondents for amounts they incurred or would need to incur to complete the project and rectify the respondents' work. The trial judge found the appellants liable to the respondent for most of the amount claimed.

The trial judge dismissed the claims of the appellants, E.A and A.A, against the respondent and the city. The trial judge found there was an oral contract between the appellants and HoD, that the parties had not agreed to an enhanced standard of construction, and that "there was no meeting of the minds with respect to the specific level of the allowances" but that "the parties agreement contemplated some reasonable limit" for expenditures, and that excesses of these amounts would be the appellants' responsibility as an "extra". Finally, the trial judge found that the respondents had not breached the contract and, after reviewing the evidence, held that the respondents were not liable for alleged deficiencies.

issues:

(1) Did the trial judge make an overriding error in disregarding uncontroverted expert evidence that HoD breached the Ontario Building Code when finding that HoD complied with the standard of construction required by the building contract?

(2) Did the trial judge err in relying on a previous contract that the parties had entered into in 1995 when interpreting the scope of allowances in the present building contract?

(3) Did the trial judge make a palpable and overriding error in calculating the respondents' damages?

holding:

Appeal dismissed.

reasoning:

(1) No.

There was no palpable and overriding error in the trial judge's treatment of the expert evidence. The trial judge provided cogent reasons for why he discounted the evidence of the appellants' expert. The Court could not intervene simply because the appellants asked it to weigh the evidence differently and arrive at alternative factual findings.

(2) No.

The trial judge was entitled to consider the fact that the parties had used allowances in the 1995 agreement in understanding their common knowledge and intentions alongside the other evidence he considered.

(3) No.

The trial judge was entitled to accept the respondents' calculations as reasonable based on all the evidence before him.

The appellant's submissions as a whole were a request from the Court to redo the careful work and analysis of the trial judge who presided over a highly contentious trial that took 43 days. That was not the function of the Court of Appeal. There was simply no basis to interfere with the trial judge's conclusions, which were all firmly anchored in the evidence.

Intercap Equity Inc. v. Bellman , 2022 ONCA 61

[Doherty, Tulloch and Thorburn JJ.A.]

Counsel:

J. Thomas Curry and D. Knoke, for the appellants

J. Larry and D. Rosenbluth, for the respondent

facts:

Intercap is a merchant bank that invests in private and public companies. Capsule is an Ontario corporation in the business of cloud-based media management. On April 5, 2018, Intercap and Capsule entered into a loan agreement (the "First Loan Agreement"), whereby Intercap agreed to lend Capsule $250,000. The loan agreement included a right to convert the loan into common shares of Capsule based on a conversion price formula set out in the loan agreement.

On April 5, 2018, the appellants, MB and DFM provided Intercap with a joint and several personal guarantee of the initial $250,000 loan agreement (the "First Guarantee"). Paragraph 14 of the guarantee provides that Intercap may vary the terms and conditions of the loan without the guarantors' consent provided the principal amount of the loan is not increased.

In August of 2018, it became clear that Capsule would not be able to repay the loan by the maturity date of October 5, 2018, and that it required further funds. On August 27, 2018, Intercap and Capsule entered into an Amended and Restated Loan Agreement (the "Second Loan Agreement") to increase the loan amount from $250,000 to $450,000 and extend the maturity date. The parties also entered into an Amended and Restate Personal Guarantee (the "Second Guarantee").

The parties failed to repay the loan by the new maturity date, and subsequently entered into another agreement that further extended the maturity date and provided for an additional $20,000 to the total amount due (the "Amending Agreement"). It further provided that the Second Guarantee would continue in full force and effect.

Once again, Capsule failed to repay the loan by the new maturity date, and subsequently entered into a Second Amended and Restated Loan Agreement (the "A&R No.2"). A&R No.2 provided that the Second Loan Agreement was supplanted, no new money was advanced, Capsule had spent the money, that the principal and accrued interested remained unpaid, and an entire agreement clause.

On a motion for summary judgment, Intercap sought to enforce a debt and the guarantee signed by the appellants as principals of the corporate debtor, Capsule Media Inc. The appellants appealed the motion judge's order granting the respondent Intercap summary judgement against them pursuant to this guarantee.

issues:

(1) Did the motion judge fail to address the hallmarks of continuing guarantees, err in finding that the debt under A&R No.2 was connected to the debt under the Second Loan Agreement, and fail to read the Second Guarantee in accordance with the proper principles of contract interpretation?

(2) Did the motion judge fail to appreciate that the terms of the Second Guarantee were ambiguous, fail to appreciate the effect of ambiguity on the law of personal guarantees, and misconstrue the extrinsic evidence?

holding:

Appeal dismissed.

reasoning:

In this case, there were no extricable questions of law. The questions on this appeal involved the interpretation of provisions of negotiated agreements. As such, the standard of review was the deferential standard of palpable and overriding error.

(1) No.

The Court stated that there are no fixed and definite rules to determine whether a guarantee is a continuing guarantee; hallmarks provide assistance rather than strict rules. A court is to look at the language of the agreements, giving the words their ordinary and grammatical meaning, consistent with surrounding circumstances known to the parties at the time of contract formation. In this case, the Second Guarantee specifically provided that it was "a continuing guarantee" that applied to the specific liabilities under the Second Loan Agreement and all liabilities incurred "in connection with" the Second Loan Agreement. However, the fact that it applied to specific liabilities did not mean that it was not a continuing guarantee.

The Court determined that a review of A&R No.2 and the Second Guarantee as a whole, giving the words their ordinary and grammatical reading, consistent with the objectives of the parties, led to the conclusion that this was a continuing guarantee and that the liabilities under A&R No.2 were connected to the liabilities under the Second Loan Agreement.

The terms of the Second Guarantee permitted Intercap to "terminate" the Second Loan Agreement, without releasing the guarantors, provided the liabilities under A&R No.2 "aris[e] out of" and are "in connection with" the Second Loan Agreement. Although the Second Loan Agreement provided that no other loan agreements were binding on Capsule, a "renew[al]" of loan agreements is provided for at paragraph 14 of the Second Guarantee.

In this situation, the condition in the Second Guarantee that the debt obligation "aris[es] out of" and was "in connection with" the Second Loan Agreement was met, and the guarantors' obligations were not extinguished. That is because the loan advanced pursuant to the Second Loan Agreement remained unpaid A&R No.2 was executed, no new funds were advanced, interest on the principal under A&R No.2 had begun accruing before A&R No.2 was executed, and there was no notional advance such that the monies were considered a new loan.

(2) No.

The Court found the wording in the Second Guarantee to be clear and unambiguous. Moreover, A&R No.2 and the Second Guarantee contain entire agreement clauses such that all terms were set out in the written agreements.

Tall Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66

[Huscroft, Trotter and Coroza JJ.A.]

Counsel:

J.T. Curry, D.N. Varah and S. Lewis, for the appellant

J.E. Feiner, for the respondent

facts:

Tallman Truck Centre Limited ("Tallman") appealed from an order staying its action on the basis that it failed to immediately disclose to one defendant, K.S.P. Holdings Inc. ("K.S.P."), that it had entered into a settlement agreement with the other defendant, Secure Capital Advisors Inc. ("Secure"). Under this settlement agreement, Secure reversed its pleaded position and joined cause with Tallman. The agreement was not disclosed until three weeks after it was made.

K.S.P successfully moved to stay the action, based on the principles in Handley Estate v. DTE Industries Limited, 2018 ONCA 324. In the underlying action, Tallman sought to enforce a right of first refusal against K.S.P. in the context of a complex real estate transaction. It claimed damages against Secure in relation to a leaseback agreement that it alleged existed between the defendants, which they both denied in their pleadings.

Tallman brought a summary judgment motion for specific performance of the right of first refusal against K.S.P. Tallman then engaged in settlement discussions with Secure, whereby Secure would support Tallman's summary judgment motion by providing affidavit evidence in which it acknowledged the existence of the leaseback arrangement. In return, Tallman agreed to discontinue the claim against Secure.

If the summary judgment motion was unsuccessful, and the action continued, Secure had a "continuing obligation to provide support and cooperation to Tallman throughout the Litigation". Only then would it receive a full and final release, which was being held in escrow by Tallman's counsel. Tallman's counsel held back the release it held in escrow pursuant to the written settlement agreement. Tallman disclosed the document only after being ordered to do so following a contested motion before a Master.

On the motion to stay the proceedings, counsel for K.S.P. asserted that there was at least an oral agreement as of May 22, 2018, that should have been immediately disclosed. The motion judge did not necessarily reject this submission. Instead, he preferred to base his decision to stay the action on the June 7, 2018 written agreement.

issues:

(1) Did the motion judge err by mischaracterizing the nature of the dispute between the parties and err in finding that the settlement agreement changed the entire litigation landscape between the parties?

(2) Did the motion judge err in finding that the settlement agreement was not disclosed immediately as contemplated in Handley?

(3) Did the motion judge err in finding that Handley applied to the Pierringer-type agreement in this case and in finding that the factual circumstances fell within the ambit of Handley?

(4) Did the motion judge err in failing to impose a more measured remedial response, short of a stay of proceedings to the extent that the facts of this case crossed the line drawn in Handley?

holding:

Appeal dismissed.

reasoning:

(1) No.

It was open to the motion judge to make these findings. The lack of crossclaims between the defendants was not a necessary condition to the application of Handley. The motion judge did not misapprehend the nature of the relationship between the defendants.

(2) No.

An obligation of such importance cannot turn on hints offered by opposing counsel. This would leave the matter to guesswork, an especially hazardous situation where counsel is less experienced or when parties are self-represented. There was no evidence that service of the notice of discontinuance and the delivery of the Secure affidavit were meant to function as disclosure.

(3) No.

The motion judge quoted the following passage from para. 39 of Handley: "The obligation of immediate disclosure is not limited to pure Mary Carter or Pierringer agreements. The disclosure obligation extends to any agreement between or amongst parties to a lawsuit that has the effect of changing the adversarial position of the parties set out in their pleadings into a cooperative one". Although the failure to immediately disclose a settlement agreement may adversely affect other parties to the litigation, judges may also be impacted. The standard is "immediate"; it is not "eventually" or "when it is convenient".

(4) No.

To redress the wrong of the abuse of process, the only remedy was to stay the claim asserted by the defaulting, non-disclosing party. This remedy is designed to achieve justice between the parties and enables the court to enforce and control its own process by deterring future breaches of this well-established rule.

IT Haven Inc. v. Certain Underwriters at Lloyd's, London , 2022 ONCA 71

[Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. (ad hoc)]

Counsel:

J. Spotswood and C. Beaudoin, for the appellant

R. Huang and V. DeMarco, for the respondents

facts:

The insured, the respondent IT Haven Inc. ("IT Haven"), was incorporated in 2016 and engaged in the information technology business. The respondent, R.H., was the principal and directing mind of IT Haven. Immediately after its incorporation, IT Haven applied for and obtained an errors and omissions and comprehensive liability insurance policy from the appellant (the "Policy"). The Policy covered the period of September 2, 2016 to September 2, 2017. It was automatically renewed for one-year periods in each of September 2017 and 2018.

When the Policy was automatically renewed in 2018, and presumably in the prior year, a "Renewal Conditions Endorsement" was appended to it. The appellant acknowledged in oral argument that there was no evidence that the Renewal Conditions Endorsement was ever delivered to IT Haven or brought to its attention. In April 2019, the respondents' insurance agent emailed the appellant's insurance manager, updating the respondent's address and advising, "No change in operations at all, just change in location."

On June 14, 2018, Niantic Inc. ("Niantic") commenced a claim against R.H. and an entity called "Global++" in the United States District Court for the Northern District of California, seeking damages and injunctive relief. Niantic was a producer of computer games played on mobile devices such as cell phones. The core of Niantic's complaint was that Global++, IT Haven, R.H. and the other defendants infringed its copyright in its mobile applications. Niantic alleged that the defendants created, distributed, and profited from "unauthorized derivative versions" of Niantic's computer applications and, in doing so, incorporated substantial portions of Niantic's copyrighted computer code.

The appellant refused to defend IT Haven and R.H. against Niantic's claim, alleging that they had made misrepresentations when they applied for the Policy, failed to inform them of material changes in IT Haven's business, and breached conditions of the Policy.

Although the appellant argued that Niantic's claim was excluded from coverage based on the language of the Policy, it sought to introduce extrinsic evidence to establish that the claim was excluded based on the "Material Information" clause, arguing that the respondents had misrepresented their operations in the application for insurance, and failed to correct the misrepresentations during the policy period.

The application judge found that there was no need to rely on extrinsic evidence to determine the nature of the claim as considering extrinsic evidence would "turn what should be a relatively simple pleadings type motion into a trial within a trial." The application judge concluded that the appellant had a duty to defend the respondents. The respondents met the definition of insured, the Niantic proceedings fell within the coverage afforded by the Policy, and the wrongful act fell within the coverage period. Furthermore, no exclusions applied to negate the duty to defend.

The appellant appealed, contending that the Policy contained an obligation to accurately describe IT Haven's business at the time of the application for insurance, and to disclose material changes in the business at the time of each annual review. The appellant also relied on Clause 4.9 to contend that the Policy specifically excluded coverage claims arising from undisclosed material changes to any facts, activity or circumstances described in the application for insurance. The appellant submitted that, even without the extrinsic evidence, the questions in the application form were material to the risk accepted by the underwriters and, based on the pleadings and the Policy alone, the claim did not fall within the Policy. In the alternative, the appellant submitted that when non-disclosure or misrepresentation is at issue, extrinsic evidence can and should be considered by the court in determining whether the insurer has a duty to defend.

issues:

(1) Did the motion judge err in finding that the appellant had a duty to defend?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court found that the claim did not fall within the classic "duty to defend" case in which courts apply the "pleadings rule".

The "pleadings rule" has been summarized as: "[w]hen the pleadings allege facts which, if true, would require the insurer to indemnify the insured in respect of the claim, the insurer must provide a defence". According to the rule, the court may look only to the provisions of the insurance policy and to the pleadings in the underlying action to determine whether the insurer has a duty to defend the insured. The onus is on the insured to establish that the allegations made by the plaintiff, if proven, would bring the claim within the four corners of the policy. Once that threshold is met, the onus shifts to the insurer to show that the claim falls outside the coverage provided by the policy, because of an applicable exclusion.

Two reasons have been identified for judicial reluctance to consider extrinsic evidence to resolve duty to defend applications at an early stage. First, the use of extrinsic evidence to determine whether the insurer owes the insured a duty to defend could require findings of fact or the resolution of live issues in the underlying litigation. Second, excluding extrinsic evidence reflects the practical need for an expeditious determination of the issues.

The appellant alleged that the court should treat the claim like a typical duty to defend case. However, unlike a typical duty to defend case, the appellant's claim was that the insured made misrepresentations in the application for insurance and breached a policy condition that required it to inform the insurer of any material change in the information set out in the application.

At this stage, Niantic's claims were simply unproven allegations. The existence of misrepresentations or breaches of policy conditions are factual issues that cannot be determined simply by looking to Niantic's pleadings. Moreover, whether the respondents were involved in the electronic gaming industry in the US, and violated Niantic's copyright while doing so, was the central issue in Niantic's lawsuit. Determining whether IT Haven made misrepresentations about its business, or failed to correct the representations at the time of the renewal, would therefore require a determination of some of the very issues at play in the Niantic action. Furthermore, as the appellant itself pointed out, to enable the insurer to void the policy, the misrepresentation must be "material", in the sense of affecting the insurer's decision whether to underwrite the risk, on what conditions and at what premium. While the appellant tendered both expert and lay evidence on this issue, it was not amenable to summary disposition, and would likely require a trial.

The Court held that the judgment in Longo v. Maciorowski was instructive in this case. Catzman J.A. had concluded in that case that there should be no hard and fast rule for determining whether an insurer is required to provide a defence where the insurer alleges a breach of condition, but rather the court should adopt a flexible approach. Depending on the circumstances, a hard and fast rule might be unfair to either the insured or to the insurer. A rule that the insurer was never obliged to defend once it alleged breach of condition would be unfair to an impecunious insured. Conversely, a rule that automatically required the insurer to defend in spite of the breach of condition could work to the prejudice of the insurer, which provided a defence to an impecunious insured, but was unable to recover the costs from the insured after the breach of condition was made out.

Ultimately, the Court found that the case at bar was fundamentally a misrepresentation case, rather than one of breach of condition, because the condition was founded on the existence of a misrepresentation. However, the Court found that the flexible approach of Longo was appropriate in determining whether the appellant had a duty to defend. The Court held that in each case, the issue is whether the actions of the insured have invalidated coverage that would otherwise be applicable on the face of the policy, given the nature of the claim in the underlying litigation. The Court concluded that the motion judge had correctly found that the appellant had a duty to defend the respondents against Niantic's claim.

Midland Resources Holding Limited v. Bokserman , 2022 ONCA 73

[Pardu, Roberts and Miller JJ.A.]

Counsel:

G. Sidlofsky, for the appellants

K. Prehogan and K. Theeuwen, for the respondent

M.S., acting in person as intervenor

facts:

On February 19, 2014, the appellant learned that judgment would soon issue against him for $1,500,000 in favour of Midland Guernsey. On March 4, 2014, the appellant and his wife transferred their jointly held home [Rollscourt] into her name alone. The home was the appellant's only significant asset.

In 2018, Midland Guernsey started a fraudulent conveyance action against the appellant and his wife, after discovering that the transfer of title had occurred, apparently for no consideration.

In 2019, Midland Guernsey assigned its rights to the original judgment to a British Virgin Islands company, Midland BVI. Midland BVI obtained an order in this action to continue the proceedings in late 2019 and served the order on the appellant and his wife. Midland Guernsey was wound up and dissolved in accordance with an order of the Royal Court of Guernsey dated November 13, 2019.

The respondent moved successfully for summary judgment. At the hearing, the motion judge refused to admit fresh evidence proffered by the appellants. The appellants attempted to demonstrate that Midland Guernsey had not complied with the legal requirements of its home jurisdiction, Guernsey, to validly transfer its interest in the judgment to Midland BVI because it had failed to give notice of the assignment to the judgment debtors.

The summary judgment motion had been set for an earlier date, but the appellants fired their lawyers on the eve of that hearing and moved for an adjournment, which Pinto J. granted on the condition that they not file any additional material on the summary judgment motion.

The motion judge found that the Rollscourt conveyance was fraudulent and granted Midland BVI a tracing order and constructive trust over a portion of a new property purchased by the appellant's wife with proceeds from a later sale of Rollscourt. He found that the appellant's wife must have known that the conveyance was intended to defeat Midland BVI's claim; this was clear from her instructions to her lawyer to complete the conveyance quickly and her failure to advise the lawyer of the 2014 judgment. The motion judge held there was no proof the appellant's wife actually paid the appellant $391,625 as she claimed, and there was no proof that any money paid was not simply returned to their joint family funds. The land transfer tax document claimed the consideration was for $2.00 and "natural love and affection."

issues:

(1) Did the motion judge err in concluding on the summary judgment motion that the transfer was fraudulent?

(2) Did the motion judge err in refusing to admit the fresh evidence?

(3) Did the motion judge err in concluding that the action was not barred by the expiry of a limitation period?

(4) Did the motion judge erred by awarding Midland BVI $175,000 in costs on a substantial indemnity basis?

holding:

Appeal dismissed.

reasoning:

(1) No.

This was not a trial requiring assessment of competing narratives of an event or of opposing parties' credibility. The appellants failed to satisfy the motion judge that they lacked a wrongful intent. They had full opportunity to advance any evidence about their intent that was relevant. They were cross-examined and the motion judge was well equipped to evaluate their evidence. A summary judgment motion was a proportionate and efficient way to deal with the dispute.

The motion judge's conclusion that the appellant's wife had not proven that she really paid the appellant for the transfer and that the impugned transfer was intended to shield the appellant's interest in Rollscourt from enforcement of the judgment against him was amply supported by the evidence, and no error on his part has been shown. Although the agreement stated that "[t]he parties are signing this separation agreement voluntarily" the parties never separated. This provided further support to the motion judge's conclusion that the agreement did not reflect reality.

(2) No.

This discretionary decision to refuse to admit the fresh evidence was entitled to deference. Informed by the context, and reading the reasons as a whole, the Court was not persuaded that the motion judge erred in principle or misapprehended the evidence, or that his decision to refuse to admit the evidence was unreasonable. In the absence of the fresh evidence and of an order setting aside the order to continue, his conclusion that Midland BVI had standing to continue the action was appropriate.

(3) No.

Here the argument turned upon a finding as to when the respondent ought to have known of the material facts upon which a plausible inference of liability on the part of the appellants could be drawn: Grant Thornton v. New Brunswick. This was not a determination made upon an assessment of the actual subjective intention of a party, but rather was founded on largely uncontested facts. Moreover, the motion judge was not obliged to accept the evidence of a lawyer that the respondent ought to have begun a title search for any properties in which the appellant may have had an interest as soon as it filed a writ of seizure and sale against him.

This determination was suitable for a summary judgment motion, and the motion judge did not err in dealing with the issue.

(4) No.

The Court would not grant leave to appeal the award of substantial indemnity costs in the sum of $175,000 against the appellants. A successful prosecution of an action to set aside a fraudulent conveyance was by its nature suitable for an award of substantial indemnity costs. The Court was not persuaded that there were strong grounds upon which this court could find that the motion judge erred in exercising his discretion: McNaughton Automotive Ltd. v. Co-operators General Insurance Co.

Nor would the Court accede to the intervenor's request that the Court grant leave to appeal the $30,000 in costs ordered against him. The arguments he made before the motion judge were lengthy and went well beyond what was in issue in this case.

Dagenais v. Pellerin , 2022 ONCA 76

[Feldman, MacPherson and Thorburn JJ.A.]

Counsel:

P. C. Peloso and J. Wilson, for the appellant

W. R. Hunter and P. Simon, for the respondents A.D. and R.D.

M. T. Grodzki and A. N. Elkin, for the respondents J.M. and J.M. as Litigation Administrator of the Estate for A.T.

facts:

The respondents, A. D. and J. M., were the driver and passenger in a car that was in an accident with a car driven by G.P., an employee of the appellant, Slavko Concrete Finishing Inc. ("Slavko"), who was on his way to a job site. G.P. admitted liability for the accident. The respondents' claims for damages, which will be determined by a jury, exceeded the amount of G.P's liability insurance coverage. They therefore also claimed against the appellant on the basis of the doctrines of vicarious liability and respondeat superior. On summary judgment, the appellant was found to be responsible for the respondents' damages on both bases. The appellant challenged both findings on this appeal.

issues:

(1) Whether the motion judge erred in fact and law by finding that the first branch of the Salmond test applied.

(2) Whether the motion judge should not have relied on the Saskatchewan Court of Appeal decision in Sickel Estate v. Gordy, 2008 SKCA 100.

holding:

Appeal dismissed.

reasoning:

(1) No.

The motion judge's reasons were thorough and comprehensive. He fully applied the Salmond test and found the facts that supported the legal conclusion that G.P., while employed as a cement finisher, was specifically authorized to drive in his own car to the job site at Petawawa and was entitled to a mileage allowance and up to four hours of wages for the driving time. Furthermore, he found, again based on the evidence and legal precedent, that the authorization included the employee taking a coffee break and stretching his legs during the drive. The small detour taken by G.P. was not a "frolic of his own", as in Battistoni, where the employee went off to socialize for a lengthy period during the drive. There was no basis to interfere with his findings or his conclusion.

(2) No.

The Court saw no error in the motion judge's reliance on Sickel as an example of employee conduct authorized by the employer, and therefore falling within the first branch of the Salmond test for imposing vicarious liability for the accident on the employer.

Because the Court agreed with the motion judge's conclusion that G.P. was authorized to drive to the job site in Petawawa as part of his employment, and therefore the appellant was vicariously liable under the first part of the Salmond test, it was unnecessary to address the second part of the Salmond test, and the two policy criteria from Bazley. However, the Court added that they saw no error in the alternative analysis conducted by the motion judge on this issue. The Court also affirmed the motion judge's finding that the appellant was also liable for the negligence of G.P. on the basis of the application of the doctrine of respondeat superior.

Levant v. DeMelle , 2022 ONCA 79

[Gillese, Trotter and Nordheimer JJ.A.]

Counsel:

A. I. Schein and T. Markovic, for the appellants/respondents by way of cross-appeal

M. P. Tunley, for the respondents/appellants by way of cross-appeal

facts:

This was an appeal of two separate Anti-SLAPP decisions wherein both defamation actions were dismissed on motion pursuant to s. 137.1 of the Courts of Justice Act ("CJA"). In each appeal, there was also a motion for leave to cross-appeal from the motion judge's award of costs. The appeals and cross-appeals were heard together.

Rebel News commenced a proceeding against Al Jazeera seeking damages for defamation. Mr. L. and Rebel News also commenced a simplified procedure action against Mr. D. and The Narwhal News Society for defamation. Al Jazeera and Mr. D. each brought motions pursuant to s. 137.1(3) of the CJA for orders dismissing the plaintiffs' actions (the "Al Jazeera Motion" and the "Mr. D. Motion", respectively).

The allegedly defamatory statements included statements indicating the content posted on Rebel News was capable of radicalizing the views of those that watched it and even driving some of them to acts of violence.

On the Al Jazeera Motion, the motion judge dismissed the underlying action after finding that Rebel News failed to show that none of the defences raised were valid, and that a weighing favoured the public interest in protecting Al Jazeera's expression and public debate.

On the Mr. D. Motion the motion judge found that none of the defences raised were valid. However, he nevertheless dismissed the action after holding that Rebel News had not led any evidence of specific harm or damage to their reputation, and therefore could not show the necessary harm that would outweigh the public interest in permitting public expression.

The motion judge acknowledged that s. 137.1(7) of the CJA provides that, if the motion is granted, the moving party is entitled to its costs on a full indemnity basis, unless the judge determines that "such an award is not appropriate in the circumstances". On both motions, the motion judge found that an award of costs on a full indemnity basis was not appropriate, and he awarded each successful moving party its costs on a partial indemnity scale.

The appellants appealed from the decision of the motion judge to dismiss the actions, and the respondents cross-appealed from the motion judge's decisions on costs.

issues:

The Al Jazeera Motion

(1) Did the motion judge err in finding that the defence of responsible journalism might succeed?

(2) Did the motion judge err in his weighing of interests under s. 137.1(4)(b)?

The Mr. D. Motion

(1) Did the motion judge err in concluding that Mr. D.'s expressions related to a matter of public interest?

(2) Did the motion judge err in his weighing of interests under s. 137.1(4)(b)?

The Cross-Appeals on Costs

(1) Should leave to appeal the costs awards be granted?

(2) Should the costs be awarded on the presumptive full indemnity scale?

holding:

Both appeals dismissed.

Both cross-appeals allowed.

reasoning:

The Al Jazeera Motion

(1) No.

The Court did not find a reviewable error in the motion judge's analysis of the defence of responsible journalism. The Court concluded Rebel News failed to show any palpable and overriding error in the motion judge's determination of the adequacy of the steps taken to verify the accuracy of the content that was posted on its site. Accordingly, the motion judge's conclusion was entitled to deference.

(2) No.

The Court held that it was incumbent on Rebel News to lead evidence, either of business lost because of the impugned expressions, or at least evidence that its reputation had been harmed in some respect by them. Rebel News failed to lead specific evidence of harm. Given the absence of such evidence, the Court agreed with the conclusion of the motion judge that weighing the two public interests favoured protecting the expression of Al Jazeera. Any harm to Rebel News appeared slight whereas the harm that arose from interfering with publications by the media on matters of public interest was significant.

The Mr. D. Motion

(1) No.

The Court held that the appellants' argument was flawed because it isolated a specific statement from the article, as opposed to considering the article as a whole. The Court held that the proper approach when considering whether the impugned expressions related to a matter of public interest was to consider the entire expression as a whole. Taken as a whole, the Court concluded the article "clearly related to a matter of public interest".

The Court did, however, hold that the motion judge erred in concluding that the defence of fair comment was not available, but nevertheless concluded he arrived at the correct result.

(2) No.

The Court concluded that the appellants failed to lead evidence of any specific harm or any level of serious harm. Accordingly, the Court agreed with the motion judge that the appellants failed to establish, in the words of s. 137.1(4)(b), that "the harm likely to be or have been suffered by the [appellants] as a result of [the respondent's] expression [was] sufficiently serious that the public interest in permitting the proceeding to continue outweigh[ed] the public interest in protecting that expression".

The Cross-Appeals on Costs

(1) Yes.

The Court concluded leave to appeal the costs awards was warranted because there were strong grounds upon which the appellate court could find that the judge erred in exercising his discretion. The Court based that conclusion on the lack of reasons provided by the motion judge for his costs awards.

(2) Yes.

The Court held that merely concluding that there are countervailing determinations on the factors that are required to be considered under s. 137.1 is an insufficient basis to make a finding that it is not appropriate to award full indemnity costs.

In an attempt to provide some guidance on the appropriateness exception, the Court indicated that the presence or absence of factors that might drive an award of costs on a higher scale in regular civil litigation might be relevant, such as claims borne of ulterior motives (of which a SLAPP lawsuit represents). Turning to the cases at bar, the Court held that they bore the indicia of a SLAPP lawsuit, and therefore the purpose behind the presumptive full indemnity costs award applied.

Oxygen Working Capital Corp. v. Mouzakitis , 2022 ONCA 90

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

Counsel:

J. S. Contini, for the appellants

S. Rappos, for the respondent

facts:

The appellant, Mr. M, is the directing mind and will of Scoby Kombucha Inc. ("Scoby"). The other appellant is his sister, Ms. M. On November 20, 2019, Scoby and the respondent entered into a master factoring agreement ("MFA"). In connection with the MFA, the appellants entered into separate guarantees of the indebtedness of Scoby. Mr. M's guarantee was dated November 20, 2019, and Ms. M's guarantee was dated November 26, 2019. Each guarantor promised to guarantee "all indebtedness, liabilities and obligations of any kind whatsoever" that Scoby "has incurred or may incur or be under" to the respondent.

It was intended that the loans would be repaid from Scoby's collected accounts receivable. If the accounts receivable remained unsatisfied, Scoby was required to repay the loans. If Scoby failed to do so, the appellants were required to repay them under the guarantees. Scoby factored its accounts receivable with the respondent and received funds in about November 2019 and June 2020. Scoby's indebtedness under the November 2019 loan was satisfied. The June 2020 loan went into default.

After making demand, the respondent commenced an action against the appellants under their guarantees to recover the amounts outstanding under the June 2020 invoices and brought a motion for summary judgment. The motion judge granted summary judgment in favour of the respondent in the amount of $289,190.59, including prejudgment interest at 27% per annum. He awarded the respondent $16,000 in costs on a substantial indemnity basis in accordance with the guarantees' provisions.

issues:

(1) Did the motion judge err in his application of the requisite analytical framework from Hryniak v. Mauldin?

(2) Did the motion judge err in his consideration of the appellants' allegations that the respondent's interference led to their customer refusing to pay the factored June 2020 accounts receivable?

(3) Was a trial required to determine which rate of pre-judgment interest should apply?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court noted that "absent an error of law, a misdirection, or the creation of an injustice through a decision that is clearly wrong, a motion judge's determination of these questions is generally entitled to considerable deference on appeal". The Court saw no error with the motion judge's "careful and detailed analysis".

Specifically, the Court held that the motion judge's interpretation of the MFA and guarantees based on their plain wording was unassailable. Further, absent Mr. M's new affidavit evidence, the motion judge concluded he did not see a credibility issue requiring resolution. After considering the new evidence, the motion judge chose not to accept it. The Court held that the motion judge did not err in rejecting the evidence.

(2) No.

While the motion judge was correct in describing Mr. M's repetition in his affidavit of his customer's alleged statements as inadmissible hearsay, the motion judge's primary reason for rejecting the appellants' evidence was because the evidence was bald and unsupported. The Court held this finding was open to the motion judge and free of error.

(3) No.

The Court held it was open to the motion judge to interpret the MFA and determine that the interest rate was 27%. There was no error.

Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74

[Gillese, Lauwers and Sossin JJ.A]

Counsel:

J. Im and N. Laeeque, for the appellant

J. Safayeni and S. Bass, for the respondent Canadian Broadcasting Company

W. S. Challis, for the respondent Information and Privacy Commissioner

D. Sheppard, for the interveners Centre for Free Expression, Canadian Journalists for Free Expression, The Canadian Association of Journalists, Aboriginal Peoples Television Network, and News Media Canada

facts:

A journalist with the CBC requested access to the 23 letters sent by the newly elected Premier, Doug Ford, to Ontario's Cabinet ministers who, together with him, comprise the Executive Committee, commonly known as the Cabinet.

Cabinet Office refused the CBC's request. The CBC appealed the refusal to the Information and Privacy Commissioner of Ontario (the "IPC"). Mediation did not resolve the issues and so the parties proceeded to the adjudication stage. The Cabinet Office opposed disclosure of the letters on the basis of the Cabinet privilege exemption under s. 12(1) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. Section 12(1) provides:

12(1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees...

The Commissioner ordered the letters to be disclosed to the CBC. The Divisional Court dismissed the Attorney General for Ontario's (the "AGO") application for judicial review of the IPC Order. The AGO appealed.

issues:

Sossin J.A. (majority):

(1) Did the IPC err in exercising the statutory authority to grant a right of access that is inconsistent with the purposes of the Act and Cabinet records exemption?

(2) Did the IPC err in exercising the statutory authority to grant a right of access based on an erroneous interpretation of s. 12(1) of the Act?

(3) Did the IPC err in exercising the statutory authority to grant a right of access based on an erroneous injection of a balancing test into s. 12(1) of the Act?

Lauwers J.A. (dissenting):

(1) What are the relevant principles of statutory interpretation and what is the applicable standard of review?

(2) What is the pertinent context within which s. 12(1) of the Act is to be interpreted?

(3) What is the purpose of s. 12(1)?

(4) In light of that context and that purpose, what interpretation of the text of s. 12(1) should the Commissioner have adopted?

(5) Is the Commissioner's new test compatible with s. 12(1)?

(6) Should the disclosure of the mandate letters be remitted to the Commissioner for disposition in accordance with these reasons?

holding:

Appeal dismissed, Lauwers J.A. dissenting.

reasoning:

Sossin J.A. (majority):

(1) No.

The Court considered two approaches: (1) the "illustrative approach" advanced by the AGO, wherein the AGO argued the use of the term "including" in the introductory portion of s. 12(1) made it clear that the records set out in the subparagraphs constituted records "whose disclosure would reveal the substance of deliberations of the Executive Council or its committees"; and (2) the "expansive approach" advanced by the CBC, wherein the CBC argued that the use of the term "including" indicated that the records specified in the subparagraphs expanded on the general language of the introduction portion of s. 12(1) by setting out records which, while not necessarily revelatory of the deliberations of Cabinet or its committees, might be so in certain circumstances and would, therefore, be exempt from disclosure.

The Court noted that the expansive approach was in keeping with a long line of IPC decisions dealing with s. 12(1). Further, although the previous IPC decisions did not bind the IPC in relation to future interpretations, the Court held the IPC's consistency in its approach could be taken as an indicator of the reasonableness of the decision. The Court concluded that even if the expansive approach was not a long-standing approach in prior IPC decisions, the IPC would be acting reasonably by adopting it. Specifically, the Court held that the use of the term "including" was ambiguous, and in the face of the ambiguity the administrative decision-maker is to provide a reasoned explanation for the interpretation adopted – which IPC did.

(2) No.

The AGO argued that the letters met the threshold for excluded records because they were the subject of deliberations at the meeting of Cabinet where the letters were placed on the agenda.

The Court noted that the issue for the IPC was not whether records which disclose the deliberations of the Premier were caught by the exclusion under s. 12(1), but rather whether the Letters and the agenda constituted sufficient evidence that the deliberations of the Premier would be revealed by disclosure of the Letters. The IPC concluded that disclosure of the letters would not provide any insight into the deliberative considerations or consultative process by which the Premier arrived at them.

The Court agreed with the IPC's conclusion, and held that the Letters were the culmination of the deliberative process. While they highlighted decisions the Premier ultimately made, they did not shed light on the process used to make those decisions, and therefore did not fall under the exclusion of s. 12(1).

(3) No.

The Court held IPC did not inject a new balancing test into the analysis of s. 12(1). Rather, the IPC recognized that s. 12(1) itself strikes a balance between a citizen's right to know what government is doing and a government's right to consider what it might do behind closed doors. The Court held that the reference to that balance was appropriate in the context of this case.

Lauwers J.A. (dissenting):

(1)

Lauwers J.A. noted the interpreter's task in statutory interpretation is to discern the legislature's intention in order to give effect to it. Although the standard of review to be applied to a specialized tribunal's statutory interpretation is ordinarily reasonableness, when the interpretation engages a constitutional question, the standard is correctness.

Lauwers J.A. held that this case presented a conundrum, as constitutional conventions were engaged. However, he ultimately left for another day the "thorny question" of whether the constitutional overlay in this case required the Commissioner to be correct, and concluded the Commissioner's interpretation was unreasonable.

(2)

Lauwers J.A. held there was both an external and internal dimension to the context within which s. 12(1) of the Act was to be interpreted. The external dimension involved considerations of the Westminster model of responsible government in Canada, the separation of powers, the executive-legislative separation, the Cabinet, and the policy context for access to information. The internal dimensions involved the text and legislative history of s.12(1) of the Act.

(3)

Lauwers J.A. held that a consideration of the external and internal contextual dimensions led to the conclusion that the purpose for the exemption from the disclosure of Cabinet records in s. 12(1) of the Act is to establish a robust and well protected sphere of confidentiality within which Cabinet can function effectively, one that is consistent with the established conventions and traditions of Cabinet government.

Lauwers J.A. noted the policy work behind the Act was largely done by the Commission on Freedom of Information and Individual Privacy. Lauwers J.A. considered the report produced by the Commission and noted the enacted language of s. 12(1) was more protective of Cabinet records than the proposed language in the report.

(4)

Lauwers J.A. found that that the "illustrative approach" best achieved the purpose of s. 12(1). This result flowed from the purpose of the legislation and the legislative history of s. 12(1) of the Act, and from the functional and purposive approach taken in the cases on the operation of the separated powers, and the particular role assigned to the Premier.

The mandate letters were analogous to the records listed in ss. 12(1)(d) and (e), respectively: "a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy", there being no doubt that the Premier is a Cabinet minister; and "a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committee".

(5) No.

Lauwers J.A. held the Commissioner's new test for an exemption from disclosure was fundamentally incompatible with the text, context, and purpose of s. 12(1) of the Act. The Commissioner's approach would engage the IPC and the court in a deconstructive exercise in which every questioned record would be parsed and pared down to some irreducible core of actual communications at the Cabinet table, with everything else being disclosable. Lauwers J.A. found that the degree of micromanagement implicit in the Commissioner's new test was palpable and entirely inconsistent with functional Cabinet government.

(6) No.

The standard remedy in cases where the reviewing court has determined that an administrative decision-maker's statutory interpretation cannot be sustained is for the court to remit the matter back to the decision-maker for reconsideration. However, Lauwers J.A. stated that remedies are discretionary. When it is evident "that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose", the court may decline to remit the matter. In this case, remitting the matter for reconsideration would serve no useful purpose.

Sheth v. Randhawa , 2022 ONCA 89

[Simmons J.A. (Motions Judge)]

Counsel:

D. LaFramboise, for the moving party

D. Yiokaris, for the responding parties A. S.D and TSD Law Professional Corporation

A. Hershtal, for the responding party K.R

P. Robson, for the responding parties 11035738 Canada Inc., S.M and G.S

M. Harris, for the responding parties A.K, Bindaas Capital, S.P and Dr. M.I Medicine Professional Corporation

facts:

On March 9, 2020, Bindaas Capital ("the "charge") and B. N. transferred the subject property to 11035738 Canada Inc. (the "purchaser") pursuant to a power of sale contained in the first charge against the property. This property was owned by and the residence of the appellant.

The appellant asserted that she did not learn of the March 9, 2020 transfer until May 2020. Soon after learning of the transfer, she commenced the underlying action and brought a motion, originally returnable on May 21, 2020, to set aside the transfer.

Following cross-examinations, the appellant's motion in some form was heard on June 9, 2021. On the hearing date, the appellant sought an adjournment to conduct a further examination of the principal of the Chargee. The responding parties opposed the request. The motion judge denied the adjournment for reasons provided orally.

The appellant filed her notice of appeal on July 14, 2021. Under rule 61.09(1)(a), the appeal should have been perfected on or before August 13, 2021. On August 16, 2021, the Registrar sent a notice to the appellant advising that her appeal would be dismissed unless perfected by September 7, 2021. The Registrar subsequently dismissed the appellant's appeal on November 5, 2021. Appellant's counsel apparently received notice of the dismissal on November 9, 2021.

The order under appeal was made on a motion the appellant brought in her underlying action to set aside a transfer of property and/or for damages. The motion judge treated the appellant's motion as a motion for partial summary judgment. She dismissed the appellant's motion and granted reverse summary judgment in favour of the responding parties dismissing the appellant's action. Now, the moving party/appellant requests an order: i) setting aside the Registrar's order dismissing her appeal for delay, and ii) granting her seven days from the date of the order on this motion to perfect her appeal.

issues:

(1) Does the justice of the case warrant setting aside an administrative dismissal for delay and extending the time for perfection? Factors to be considered in making the decision are:

(a) whether the appellant formed an intention to appeal within the appeal period;

(b) the length of the delay;

(d) the merits of the proposed appeal; and

(e) prejudice to the responding parties.

holding:

Motion granted.

reasoning:

(1)

(a), (b), (c)

The first criterion was met because the appellant had served the notice of appeal within the appeal period. However, as noted above, the appellant failed to perfect this appeal within the required time period. The court determined that the period of delay would amount to being just short of four months, being the period from August 13, 2021, the date the appellant should have perfected, to December 6, 2021, the first date on which the appellant was prepared to proceed with this motion.

The court agreed with the responding parties in that the appellant did not move efficiently or with dispatch in attempting to perfect this appeal, however, the court determined that there was no evidence demonstrating the appellant had abandoned her intention to appeal or that the delay should be characterized as inordinate or point strongly to the dismissal of the motion.

The court reached this conclusion by considering each factor in the context of the overall circumstances of the case and may carry more or less weight in a particular case depending on the circumstances. First, the appellant's counsel believed, albeit incorrectly, that the time for perfecting the appeal was governed by rule 61.09(1)(b). Second, the action had proceeded slowly, and there was nothing on the record showing that the responding parties attempted to bring this matter to fruition more quickly. Third, the responding parties failed to demonstrate any urgency when consulted about the scheduling of this motion.

(d)

The court stated that the appellant was unlikely to succeed in any proposed fresh evidence application or in overturning the motion judge's ruling that the tendered valuation evidence was inadmissible. Nonetheless, the court was satisfied that the appellant has arguable grounds of appeal concerning whether the motion judge properly weighed the evidence concerning potential badges of fraud and fair market value to support her summary dismissal of the appellant's claims for damages and/or a reconveyance of the property based on fraud and conspiracy. Further, the Court questioned whether the trial judge assessed the evidence bearing in mind the particular context of power of sale proceedings and a chargee's duties in that context, potentially calling into question the motion judge's explanations for excusing the secrecy and haste of this transaction.

(e)

The Court did not believe that the perceived prejudice relating to the purchaser should translate into favouring foreclosing the appellant's right of appeal. The purchaser was not in a position to immediately obtain court-enforced possession of the property if the appellant's motion was dismissed. Further, the carrying costs with respect to the property were currently being offset to some degree by the rental payments ordered by Woollcombe J. commencing September 2021 (in the amount of $4,500 per month).

SHORT CIVIL DECISIONS

Froud v. Froud , 2022 ONCA 59

[Strathy C.J.O., Harvison Young and Zarnett JJ.A.]

Counsel:

J. W. Switzer, for the appellant

D. Harris-Lowe, for the respondent, S. M. F.

No one appearing for the respondent, the Estate of M. F.

Keywords: Wills and Estates, Insurance Policy

Canada Mortgage and Housing Corporation v. Hart , 2022 ONCA 51

[Strathy C.J.O., Harvison Young and Zarnett JJ.A.]

Counsel:

M. H., acting in person

No one appearing for the appellant, P. H.

I. Houle, for the respondent

Keywords: Civil Procedure, Default Judgments, Setting Aside, Vexatious Litigation, Rules of Civil Procedure, Rules 2.1.01 and 59.06(2)

Amrane c. Ontario (Enseignement supérieur et de la formation professionnelle), 2022 ONCA 52

[Judges Roberts, Harvison Young and Tzimas (ad hoc)]

Counsel:

T. A., acting in person

D. Mayer, for the respondent

Keywords: Civil Procedure, Striking Pleadings, Rules of Civil Procedure, Rules 21 and 25

Amrane c. Girlando , 2022 ONCA 53

[Judges Roberts, Harvison Young and Tzimas (ad hoc)]

Counsel:

T. A., acting in person

M. Bélanger, for the respondent

Amrane c. Abraham , 2022 ONCA 54

[Judges Roberts, Harvison Young and Tzimas (ad hoc)]

Counsel:

T. A., acting in person

N. Rolfe, for the respondent

2650971 Ontario Inc. v. Shameti , 2022 ONCA 62

[Pardu, Roberts and Miller JJ.A.]

Counsel:

H. Singh and O. Hoque, for the appellants

M. A. Katzman, for the respondents

Keywords: Civil Procedure, Appeals, Jurisdiction, Webster v. Groszman, 2021 ONCA 55, Partition Act, R.S.O. 1990, c. P.4, s. 7

Pal v. Bhatia , 2022 ONCA 68

[Pardu, Roberts and Miller JJ.A.]

Counsel:

M. H. Tweyman, for the appellant

A. P., acting in person

Keywords: Family Law, Custody and Access, Parenting Time, Child Support

Hoang v. Mann Engineering Ltd., 2022 ONCA 82

[Tulloch J.A. (Motion Judge)]

Counsel:

K. M. H., appearing in person

T. Flett, for the responding parties

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.

Canada: Court Of Appeal Summaries (January 24-28, 2022) Blaney's Appeals

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CIVIL DECISIONS

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The Al Jazeera Motion

The Mr. D. Motion

The Cross-Appeals on Costs

holding:

reasoning:

The Al Jazeera Motion

The Mr. D. Motion

The Cross-Appeals on Costs

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facts:

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Sossin J.A. (majority):

Canada: Court Of Appeal Summaries (January 24-28, 2022)
Blaney's Appeals

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email