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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of March 18, 2024.

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Preiano v. Cirillo is useful in understanding the measure of damages on a claim by purchasers against vendors in a failed real estate transaction. The trial judge found that the purchasers were not entitled to specific performance and awarded damages instead. However, the Court found that the measure of damages awarded was wrong. The purchasers were not entitled  to the difference between the purchase price under the APS and the value of the property at the date of trial. That would have been the measure of damages in lieu of specific performance, had the purchasers been entitled to specific performance. However, since they were not entitled to specific performance (lack of uniqueness), the purchasers were only entitled to the difference between the value of the property at the date of breach and the purchase priced under the APS. While the trial judge also erred in finding that that the purchasers did not have a duty to mitigate their damages (which was inconsistent with the finding that they were not entitled to specific performance), that did not affect the result, as the vendors had failed to put meet their onus of putting forward any evidence that the purchasers failed to take reasonable steps to find a substitute property or that there were substitute properties available.

In Jarvis v Oliveira, J.J, a minor, sued S.O for negligence after suffering severe injuries after being struck by S.O’s car. The jury absolved S.O of liability, but the trial judge refused to award S.O their costs. The appellants contested the verdict, arguing the trial by jury was tainted by unfairly admitted evidence that maligned J.J’s character. The Court agreed and ordered a new trial, criticizing the trial judge’s handling of the character evidence. The decision to award no costs was also contested, but the Court did not need to address this issue in light of the order for a new trial.

In De Cerigo Properties Inc. v. Raffan, a claim for negligence and fraud against an accountant, the Court allowed the appeal and ordered a new trial. The trial judge incorrectly refused to admit the evidence of the appellant’s expert on the standard of care of professional accountants.

Other topics included the failure to exercise an option to purchase a residential property contained in a residential lease, and the interpretation of an employment termination clause.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

De Cerigo Properties Inc. v. Raffan, 2024 ONCA 215

Keywords: Torts, Professional Negligence, Accountants, Standard of Care, Fraud, Fraudulent Misrepresentation, Intentional Interference with Economic Relations, Evidence, Admissibility, Expert Evidence

Gatoto v. 5GC Inc., 2024 ONCA 210

Keywords: Contracts, Real Property, Residential Leases, Options to Purchase, Civil Procedure, Applications, Actions, Residential Tenancies Act, 2006, S.O. 2006, c. 17, Rules of Civil Procedure, r. 38.10(1),  Jesan Real Estate Ltd. v. Doyle, 2020 ONCA 714, Sail Labrador Ltd. v. Challenge One (The), [1999] 1 S.C.R. 265

Jarvis v. Oliveira, 2024 ONCA 200

Keywords: Torts, Negligence, MVA, Civil Procedure, Trials, Juries, Evidence, Admissibility, Character Evidence, Probative Value vs Prejudicial Effect, Costs, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 193(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s.134(1), Jarvis v Oliveira, 2023 ONSC 101, Jarvis v Oliveira, 2022 ONSC 1982, Jarvis v Oliveira, 2022 ONSC 1972, Landolfi v Fargione (2006), 79 O.R. (3d) 767 (C.A.), Fiddler v Chiavetti, 2010 ONCA 210, Willick v Willick, 2023 ONCA 792, Bruno v Dacosta, 2020 ONCA 602, Nemchin v Green, 2019 ONCA 634, Stilwell v World Kitchen Inc, 2014 ONCA 770, Deep v Wood et al (1983), 143 D.L.R. (3d) 246 (Ont. C.A.), Mood Music Publishing Co Ltd v De Wolfe Ltd, [1976] 1 All E.R. 763 (C.A.), Penate v Martoglio, 2024 ONCA 166, Bruff-Murphy v Gunawardena, 2017 ONCA 502, R v Giesecke (1993), 13 O.R. (3d) 553 (C.A.), Brochu v Pond (2002), 62 O.R. (3d) 722 (C.A.), Gilbert v South, 2015 ONCA 712, Marshall v Watson Wyatt & Co (2002), 57 O.R. (3d) 813 (C.A.), Hoang v Vincentini, 2016 ONCA 723, Iannarella v Corbett, 2015 ONCA 110

Kopyl v. Losani Homes (1998) Ltd., 2024 ONCA 199

Keywords: Contracts, Employment, Fixed Term Employment, Termination, Damages, Mitigation, , Employment Standards Act, 2000, SO 2000, c 41, Waksdale v Swegon North America Inc., 2020 ONCA 391, Howard v Benson Group Inc., 2016 ONCA 256

McFadden v. Psutka, 2024 ONCA 203

Keywords: Civil Procedure, Amending Pleadings, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure, rr. 26.01, Polla v. Croatian (Toronto) Credit Union Limited, 2020 ONCA 818, leave to appeal refused, [2021] S.C.C.A. No. 64, Marks v. Ottawa (City), 2011 ONCA 248, Avedian v. Enbridge Gas Distribution Inc., 2023 ONCA 289

Preiano v. Cirillo, 2024 ONCA 206

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Striking Pleadings, Rules of Civil Procedure, rr. 2.03, 15.01(1), Tribute (Springwater) Limited v. Atif, 2021 ONCA 463, Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, leave to appeal refused, [2022] S.C.C.A. No. 183, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814, Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, Sivasubramaniam v. Mohammad, 2018 ONSC 3073 aff’d, 2019 ONCA 242, Wood v. Grand Valley Rway. Co., (1915) 51 S.C.R. 283, Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51

Short Civil Decisions

M. Singh Law Professional Corporation v. River Green (Thunder Bay) Inc., 2024 ONCA 201

Keywords: Contracts, Solicitor and Client, Solicitors’ Liens, Charging Orders, Solicitors Act, R.S.O. 1990, c. S.15., s.34(1), Weenen v. Biadi, 2018 ONCA 288

Los v. Ross, 2024 ONCA 208

Keywords: Costs

1261271 B.C. Ltd. v. Hanover PV Limited Partnership, 2024 ONCA 207

Keywords: Corporations, Remedies, Oppression, FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92

Teljeur v. Aurora Hotel Group, 2024 ONCA 213

Keywords: Contracts, Employment, Damages, FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92

CIVIL DECISIONS

De Cerigo Properties Inc. v. Raffan, 2024 ONCA 215

[Lauwers, Roberts and Monahan JJ.A.]

Counsel:

Mazzuca and B. Masters, for the appellants

Berlach and N. Eklove, for the respondent

L. Melconian, for KC

Keywords: Torts, Professional Negligence, Accountants, Standard of Care, Fraud, Fraudulent Misrepresentation, Intentional Interference with Economic Relations, Evidence, Admissibility, Expert Evidence

facts:

The appellants, De Cerigo Properties Inc., Studio Pyramid Inc. and MP, appealed the dismissal of their action. In their statement of claim, they sought, among other things, damages for $2 million against the respondent, CR, for negligence, fraud, fraudulent misrepresentation, and intentional interference with economic relations. The trial judge dismissed the action after deciding that the appellants’ accounting expert, Dr. LR, would not be permitted to testify because he had not set out the expected standard of care of a certified general accountant in his reports.

issues:

Did the trial judge err in dismissing the action and rejecting the appellant’s expert?

holding:

Appeal allowed.

reasoning:

Yes

The trial judge erred. The opinions expressed in Dr. R’s reports clearly addressed all the appellants’ claims. While Dr. R might not have expressly used the specific words, “standard of care”, it was not necessary for him to do so given the nature of the allegations and the contents of his reports, including the unambiguous opinions he expressed about the negligence and impropriety of the respondent’s actions. It was not a case involving a debate over the exercise of professional judgment concerning the implementation of a legitimate accounting approach where expert evidence is required to explain why that approach falls below the requisite standard. The alleged failings could not be more fundamental to the duties and obligations of a professional accountant. A professional accountant who is found to be in a conflict of interest and to have engaged in accounting negligence and actions that might amount to fraud, as Dr. R opined in his reports, has fallen below the relevant professional standard of care. On their own, Dr. R’s reports plainly and amply provided evidentiary support for the appellants’ claims. However, the trial judge clearly erred in refusing to permit Dr. R to testify because his evidence, on its face, was relevant and necessary. The trial judge’s premature and erroneous dismissal of the action in the circumstances amounted to a miscarriage of justice and could not be permitted to stand.


Gatoto v. 5GC Inc., 2024 ONCA 210

[Pepall, George and Dawe JJ.A.]

Counsel:

Rouben, for the appellant

Argiropoulos, for the respondent

Keywords: Contracts, Real Property, Residential Leases, Options to Purchase, Civil Procedure, Applications, Actions, Residential Tenancies Act, 2006, S.O. 2006, c. 17, Rules of Civil Procedure, r. 38.10(1),  Jesan Real Estate Ltd. v. Doyle, 2020 ONCA 714, Sail Labrador Ltd. v. Challenge One (The), [1999] 1 S.C.R. 265

facts:

The appellant and the respondent entered into a Lease and an Option Agreement relating to property in which the appellant resided. The Lease had a 36-month term, and thereafter it was a month-to-month tenancy. Under the Option Agreement, the appellant could exercise an option to purchase the property for a fixed amount, provided she complied with the Lease. The closing of an agreement of purchase and sale arising from the exercise of the Option was to occur within 30 days of the expiration of the Lease.

In 2016, the appellant advised the respondent that her income tax filings were not completed due to missing rent receipts that the respondent had not provided to her. She maintained that she needed the income tax information to apply for mortgage financing. The respondent offered to extend the Option Agreement at a higher price based on the current value of the property. The respondent advised the appellant that if she did not agree to the extension, the Option would expire and her ability to purchase the property would disappear. The appellant refused the offer.

The appellant sought an order permitting her to purchase a residential property pursuant to the Option Agreement or, in the alternative, an order that a $25,000 downpayment be returned to her together with interest. She appealed from the dismissal of her application.

issues:

1. Did the application judge err in her interpretation and approach to determining that the Option had expired?

2. Did the application judge err in her causation analysis?

3. Did the application judge err in failing to convert the application into an action?

holding:

Appeal dismissed.

reasoning:
  1. No.

The appellant argued that the Option Agreement was a bilateral contract and, therefore, the appellant could only be deprived of its benefit if she substantially breached its terms. The appellant said that as no such breach occurred, the Option was available to her at a date later than the expiry date of October 31, 2016.

The Court disagreed. The Option Agreement clearly spelled out the terms that governed the parties. The month-to-month tenancy that ensued after the fixed term ended did not operate to extend the Option Agreement expiry or the availability of the fixed Option purchase price. Nor did the Option continue until 30 days from the expiration of the Lease. The 30 days was the time within which the agreement of purchase and sale was to close once the Option had been exercised. The Option Agreement set out a deadline by which the Option and accompanying purchase price had to be exercised.

The Court noted that the Option Agreement did not contain a mechanism to calculate the purchase price after the expiry of the stipulated time period. The parties could not have intended that they be required to attend at the Superior Court to ask a judge to fix the purchase price, as the appellant suggested. Rather, the Option Agreement relied on clear time limits that had to be respected. The appellant was not in a financial position to exercise the Option and failed to do so. There was no error in the application judge’s interpretation or her finding that the Option had expired.

  1. No.

The application judge held that the appellant had failed to establish a causal relationship between the respondent’s failure to provide rent receipts and the appellant’s failure to file income tax returns for 2014 and 2015 or to obtain mortgage financing. There was no evidence that the Canada Revenue Agency had refused to accept the rent amounts submitted nor any evidence that the appellant ever submitted a mortgage application for consideration. The Court held that it was open to the application judge to conclude that causation had no been proven due to the failure of the appellant to adduce any evidence that established causation. The appellant simply was never in a position to exercise the Option and purchase the property on the terms stipulated in the Option Agreement.

  1. No.

The Court noted that it did not appear that the appellant asked for the application judge to convert her application to an action. As a result, the application judge could hardly be faulted for failing to do so. In any event, rule 38.10(1) is discretionary in nature.


Jarvis v. Oliveira, 2024 ONCA 200

[Gillese, Trotter and Coroza JJ.A.]

Counsel:

Todorovic and R. Trenker, for the appellants/respondents by way of cross-appeal

Rollo and R. Bowman, for the respondents/appellants by way of cross-appeal

Keywords: Torts, Negligence, MVA, Civil Procedure, Trials, Juries, Evidence, Admissibility, Character Evidence, Probative Value vs Prejudicial Effect, Costs, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 193(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s.134(1), Jarvis v Oliveira, 2023 ONSC 101, Jarvis v Oliveira, 2022 ONSC 1982, Jarvis v Oliveira, 2022 ONSC 1972, Landolfi v Fargione (2006), 79 O.R. (3d) 767 (C.A.), Fiddler v Chiavetti, 2010 ONCA 210, Willick v Willick, 2023 ONCA 792, Bruno v Dacosta, 2020 ONCA 602, Nemchin v Green, 2019 ONCA 634, Stilwell v World Kitchen Inc, 2014 ONCA 770, Deep v Wood et al (1983), 143 D.L.R. (3d) 246 (Ont. C.A.), Mood Music Publishing Co Ltd v De Wolfe Ltd, [1976] 1 All E.R. 763 (C.A.), Penate v Martoglio, 2024 ONCA 166, Bruff-Murphy v Gunawardena, 2017 ONCA 502, R v Giesecke (1993), 13 O.R. (3d) 553 (C.A.), Brochu v Pond (2002), 62 O.R. (3d) 722 (C.A.), Gilbert v South, 2015 ONCA 712, Marshall v Watson Wyatt & Co (2002), 57 O.R. (3d) 813 (C.A.), Hoang v Vincentini, 2016 ONCA 723, Iannarella v Corbett, 2015 ONCA 110

facts:

J.J was 16 years old when she ran intoxicated across the street from a taxi without paying and collided with a vehicle driven by S.O, suffering severe brain injuries, skull fractures, and other injuries. Due to her injuries, J.J had no memory of the collision. J.J sued S.O in negligence, but the jury found S.O not liable, resulting in no award of damages.

Both sides appealed, with the appellants challenging the jury’s verdict, contending that the trial was unfair due to the admission of prejudicial evidence about J.J. The trial judge had admitted this evidence for narrative purposes only, but it was used to smear J.J’s character, and the appellants argued that the jury instructions failed to address this issue adequately. The respondents cross-appealed the trial judge’s decision to award no costs, arguing that the judge erred in considering the tragic circumstances and the claimed unfair handling of evidence by the respondent’s counsel.

issues:

1) Should the jury’s verdict be set aside because the manner in which the taxi fare evidence against J.J was handled resulted in an unfair trial?

2) Did the trial judge err in awarding no costs based on the tragic circumstances of the case and based on the unfair conduct of the respondent’s counsel in handling the taxi fare evidence?

holding:

Appeal allowed. Cross-appeal dismissed.

reasoning:

1) Yes.

The appellants submitted that the jury’s verdict be set aside due to an unfair trial, primarily because of how the taxi fare evidence was handled. They cited the Court’s authority to order a new trial if a substantial wrong or miscarriage of justice occurred, as per section 134 of the Courts of Justice Act.

The Court deemed the trial unfair as the respondent’s counsel impugned the character of J.J, a minor at the time, with evidence of marginal probative value. The evidence was about why J.J was running and was used to suggest she was careless, impacting her credibility and the jury’s assessment despite her inability to remember the incident. The Court determined that the probative value of such evidence was overshadowed by its prejudicial impact, thereby contravening the general exclusion of character evidence in civil litigation and failing to meet any established exceptions for its admissibility.

In addressing the fairness of the trial, the Court focused on the delayed judicial ruling regarding the contested taxi fare evidence. The delay left the legal representatives, especially those for the appellants, in a precarious position regarding the strategic presentation of their case. The Court pointed out that this delay effectively allowed the respondent’s counsel to introduce the taxi fare issue pre-emptively, potentially biasing the jury’s perception even before the judge had formally ruled on its admissibility. The Court expressed concern over the trial judge’s failure to provide a clear, decisive ruling on the evidence, which could have prevented its prejudicial use. Furthermore, the Court criticized the trial judge’s lack of a corrective jury instruction regarding the misuse of such character-impugning evidence. The Court concluded that the interests of justice justified allowing the appeal and thus ordered a new trial.

2) The Court did not address the cross-appeal

The Court found that, given the conclusion on the main appeal, addressing the trial judge’s decision to award no costs was deemed unnecessary. However, the costs decision highlighted issues from the trial, particularly criticizing the respondent’s counsel for prematurely introducing taxi fare evidence, which the trial judge later inconsistently deemed entirely admissible, revealing the trial’s pervasive lack of clarity and fairness. The Court found that the inconsistency in the trial judge’s ruling emphasized the trial’s overall unfairness.


Kopyl v. Losani Homes (1998) Ltd., 2024 ONCA 199

[Lauwers, Roberts and Monahan, JJ.A.]

Counsel:

L. Dye, for the appellant

Van Kralingen and V. Gairola, for the respondent

Keywords: Contracts, Employment, Fixed Term Employment, Termination, Damages, Mitigation, , Employment Standards Act, 2000, SO 2000, c 41, Waksdale v Swegon North America Inc., 2020 ONCA 391, Howard v Benson Group Inc., 2016 ONCA 256

facts:

The appellant hired the respondent on a one-year fixed term contract from July 6, 2022, to July 6, 2023, (the “Term”) at an annual salary of $150,000. The employment agreement included both for-cause and without-cause termination clauses (collectively, the “Termination Clauses”).

On January 9, 2023, the appellant purported to terminate the respondent’s employment on a without-cause basis and paid her four weeks salary, equal to $11,538.46. The respondent argued that the Termination Clauses in the contract were void on the basis that they contravened requirements set out in the Employment Standards Act. Therefore, the respondent claimed that the appellant did not have the right to terminate her employment prior to the expiry of the Term and that she was entitled to be paid her salary for the Term’s unexpired portion, without a duty to mitigate her damages.

The appellant did not dispute the fact that the Termination Clauses contravened the ESA and were therefore void. However, relying upon Waksdale v. Swegon North America Inc., the appellant argued that, where one termination clause in an employment contract contravenes the ESA, all the termination clauses in the contract are automatically voided. The appellant further argued that the clause establishing a one-year limit to the respondent’s employment (the “Fixed Term Clause”) was in effect a termination clause. Thus, because the Termination Clauses in the contract were void, so too was the Fixed Term Clause. The legal consequence was that the respondent’s employment was not subject to a fixed term but, rather, was terminable upon the provision of “reasonable notice” at common law, subject to a duty on the respondent to mitigate her damages.

The application judge rejected the appellant’s position and found that the invalidity of the Termination Clauses did not affect the validity of the Fixed Term Clause. Relying on Howard v. Benson Group Inc, the application judge found that a contractual provision providing for a fixed term of employment was not a termination clause since, upon the expiry of said fixed term, the employment relationship automatically terminates without any obligation on the employer to provide notice or payment in lieu of notice. Therefore, despite the invalidity of the Termination Clauses, the Fixed Term Clause remained in effect. The legal consequence was that the respondent’s employment had been wrongfully terminated and she was entitled to receive payment equal to her salary and benefits for the unexpired portion of the Term, less any amounts paid by the appellant, without any duty to mitigate.

issues:

1. Did the application judge fail to properly apply Waksdale?

a. Should the invalidity of the Termination Clause have voided the Fixed Term Clause and was the respondent was entitled only to the provision of reasonable notice, rather than compensation for the unexpired portion of the Term?

holding:

Appeal dismissed.

reasoning:

1. No.

a. No.

The application judge made no error in finding the Court’s decision in Benson Group Inc. to be dispositive of the application. In Benson Group Inc., the invalidity of a clause providing for early termination of the employment agreement on a without cause basis did not alter the legal effect of the provision fixing the term of the contract. Because there was no enforceable provision providing for early termination without cause, the employee was entitled to receive the compensation they would have earned to the end of the term, without any duty to mitigate.

Waksdale, which did not involve a fixed-term employment agreement, involved entirely different circumstances and had no application to this case. Waksdale merely held that the invalidity of a particular termination clause in an employment contract voided other termination provisions in the agreement, with the result that the employee was entitled to reasonable notice upon termination of their employment. Waksdale made no reference to Benson Group Inc., nor did it suggest that the invalidity of the termination clause in an employment contract had the effect of converting a fixed term contract into one terminable on reasonable notice.


McFadden v. Psutka, 2024 ONCA 203

[Pepall, Sossin and Dawe JJ.A.]

Counsel:

Legge, for the appellants

Lundy and E. Eski, for the respondent

Keywords: Civil Procedure, Amending Pleadings, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure, rr. 26.01, Polla v. Croatian (Toronto) Credit Union Limited, 2020 ONCA 818, leave to appeal refused, [2021] S.C.C.A. No. 64, Marks v. Ottawa (City), 2011 ONCA 248, Avedian v. Enbridge Gas Distribution Inc., 2023 ONCA 289

facts:

The underlying action was a dental malpractice action in which SM sued the respondent oral surgeon, Dr. DP, alleging negligence in the treatment provided and surgery performed. The motion judge dismissed the appellants’ motion to amend their claim after finding that the purported amendments constituted new claims, that these claims were statute barred by the Limitations Act, 2002, and that this resulted in prejudice that could not be compensated for by costs or an adjournment. The appellants appealed the dismissal.

issues:

Did the motion judge err in dismissing the appellants’ motion to amend their claim?

holding:

Appeal dismissed.

reasoning:

No.

Rule 26 of the Rules of Civil Procedure states that courts shall grant leave to amend a pleading on such terms as are just, unless prejudice would result which could not be compensated for by costs or an adjournment. However, “although the general rule is that amendments are presumptively approved[…], [t]he court has a residual right to deny amendments where appropriate.”

There was no error in the motion judge’s conclusion that the amendments sought created a new claim. Furthermore, the motion judge’s finding of actual prejudice was tied to her conclusion that the amendments raised a new negligence claim that would otherwise be statute barred. This finding was entitled to deference. Moreover, the limitation period for the respondent to claim contribution and indemnity had passed.


Preiano v. Cirillo, 2024 ONCA 206

[Roberts, Sossin and Dawe JJ.A.]

Counsel:

G.C., acting in person as Estate Trustee for the appellant, The Estate of G.C., and as Litigation Guardian for the appellant, A.C.

T.H. McLean, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Striking Pleadings, Rules of Civil Procedure, rr. 2.03, 15.01(1), Tribute (Springwater) Limited v. Atif, 2021 ONCA 463, Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, leave to appeal refused, [2022] S.C.C.A. No. 183, The Rosseau Group Inc. v. 2528061 Ontario Inc., 2023 ONCA 814, Semelhago v. Paramadevan, [1996] 2 S.C.R. 415, Sivasubramaniam v. Mohammad, 2018 ONSC 3073 aff’d, 2019 ONCA 242, Wood v. Grand Valley Rway. Co., (1915) 51 S.C.R. 283, Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51

facts:

The proceedings arose out of a failed real estate transaction in which the late GC and his wife, AC, agreed to sell their home to the respondents, S and GP, for $480,000. The sale was not completed on the scheduled closing date of November 20, 2013, because the appellants refused to close the transaction. The respondents brought an action for specific performance, or in the alternative, damages.

issues:

1. Did the trial judge err in determining after trial that Ms. C had no standing to represent the appellants and in striking the appellants’ statement of defence?

2. Did the trial judge err in his assessment of damages, including his determination that the respondents were not required to mitigate?

holding:

Appeal allowed in part.

reasoning:
  1. No

The trial judge erred in concluding, on an alternative basis, that he could strike the appellants’ statement of defence and grant summary judgment on the basis that Ms. C, the appellants’ daughter, had “no status to act in this litigation for either of the elder [C]” because she was not a lawyer. However, the trial judge primarily based his judgment on his determination of the merits of the action after thoroughly reviewing the evidence and the submissions of the parties. His judgment on the merits was not tainted by his error regarding Ms. C’s standing. As a result, no trial unfairness, prejudice, or miscarriage of justice resulted from the trial judge’s error. His error did not affect the outcome of his decision on the issue of the appellants’ breach of the agreement of purchase and sale. The appellants did not point to any reversible error in the trial judge’s factual and credibility findings, which were anchored firmly in the evidence and fully grounded his conclusion that the appellants breached the agreement. There was no basis to order a new trial.

  1. Yes

The trial judge erred in awarding the respondents the difference between the contract price and the market value of the property at the time of trial. It is well-established that absent special circumstances, which were not present in this case, the ordinary measure of damages arising from a breach of an agreement of purchase and sale is the difference between the contract price of the property and the value of the property as at the date of the breach of the agreement of purchase and sale. The trial judge’s application of the law was based on an erroneous interpretation of Semelhago and Sivasubramaniam. In both those cases, the damages awarded were in lieu of the remedy of specific performance that the court was prepared to grant. The trial judge expressly determined that the respondents were not entitled to specific performance but that they were entitled to damages. However, the damages were not awarded in lieu of specific performance as he determined that they were not entitled to that remedy. The Court assessed the respondents’ damages as the difference between the contract price and the value of the property at the date of breach to be in the amount of $70,000, with a further $25,000 reduction for the return of deposit.

While the trial judge’s conclusion that the respondents did not need to mitigate appeared inconsistent with his finding that specific performance was not available to the respondents as a remedy, the apparent inconsistency in his reasoning did not affect the result. To meet their onus on a balance of probabilities that the respondents failed to mitigate their damages, the appellants had to establish not only that the respondents failed to take reasonable efforts to find a substitute, but also that a reasonable substitute could be found. The appellants did not put forward any evidence that the respondents could have purchased or rented a comparable property. As a result, the appellants did not meet their onus to demonstrate that the respondents failed to mitigate their damages.


SHORT CIVIL DECISIONS

M. Singh Law Professional Corporation v. River Green (Thunder Bay) Inc., 2024 ONCA 201

[Pepall, Sossin and Dawe JJ.A.]

Counsel:

M. Singh, for the appellant

No one appearing for the respondent

Keywords: Contracts, Solicitor and Client, Solicitors’ Liens, Charging Orders, Solicitors Act, R.S.O. 1990, c. S.15., s.34(1), Weenen v. Biadi, 2018 ONCA 288

Los v. Ross, 2024 ONCA 208

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

Counsel:

Galarneau and B. Sharpe, for the appellant

Marcovitch, for the respondent

Keywords: Costs

1261271 B.C. Ltd. v. Hanover PV Limited Partnership, 2024 ONCA 207

[Miller, Copeland and Gomery JJ.A.]

Counsel:

Levine, for the appellant

C. Burr and J. Harris, for the respondents

Keywords: Corporations, Remedies, Oppression, FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92

Teljeur v. Aurora Hotel Group, 2024 ONCA 213

[Miller, Copeland and Gomery JJ.A.]

Counsel:

Gayed, for the appellants

Nolan, for the respondent

Keywords: Contracts, Employment, Damages, FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good morning.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 11, 2024.

Continue Reading

In Beshay v Labib, the appellant had purchased a business and subsequently sued for breach of contract and misrepresentation, alleging the business was not as profitable as had been claimed. The case was dismissed for delay, as the appellant failed to provide a sufficient explanation for the litigation’s lack of progress, despite the extended deadlines due to the COVID-19 pandemic. The appeal was also dismissed, with the Court emphasizing the necessity of an acceptable explanation for delay with supporting evidence (which was lacking in this case).

In Jacob v Canada (Attorney General), the Court granted leave to intervene to the Canadian Civil Liberties Association and the Income Security Advocacy Center in an appeal. The case relates to a claim of discrimination against people with disabilities by the Federal Government in its implementation of the following emergency COVID-19 benefit programs: Canada Emergency Response Benefit, the Canada Recovery Benefit and the Canada Recovery Sickness Benefit.

In Roe v. Roe, a mother disinherited one of her four sons. He unsuccessfully challenged the Will at trial on the basis of a lack of capacity or undue influence. His appeal was dismissed.

In Scheibler v. Scheibler, a wife was ordered at trial to pay support to her husband. Her appeal was dismissed, partly on the basis that she had acquiesced in the husband’s failure to “get a job”.

In Frenkel v. Frenkel, the Court allowed an appeal, in part, from a property equalization order in a family law case. The trial judge had made calculation errors.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Beshay v Labib, 2024 ONCA 186

Keywords: Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, r. 48.14(7)(a), 1196158 Ontario Inc v 6274013 Canada Limited, 2012 ONCA 544, Windebank v Toronto East General Hospital, 2022 ONSC 6913, Yang v The Christian World Korea Inc, 2019 ONSC 6131, Burgess v University Health Network, 2022 ONCA 105

Jacob v Canada (Attorney General), 2024 ONCA 195

Keywords: Civil Procedure, Interveners, Canadian Charter of Rights and Freedom, s. 15, R v Sharma, 2022 SCC 39, Fraser v Canada (Attorney General), 2020 SCC 28

Roe v. Roe, 2024 ONCA 179

Keywords: Wills and Estates, Capacity, Undue Influence, Suspicious Circumstances, Vout v. Hay, [1995] 2 S.C.R. 876, Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Ont. S.C.), Boughton v. Knight (1873) L.R. 3 P. & D. 64 (U.K.), Tate v. Gueguegirre, 2015 ONSC 844 (Div. Ct.), Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225

Scheibler v. Scheibler, 2024 ONCA 191

Keywords: Family Law, Property, Matrimonial Home, Occupation Rent, Equalization of Net Family Property, Spousal Support, Family Law Act, R.S.O. 1990, c. F.3, s. 14(a), Hickey v. Hickey, [1999] 2 S.C.R. 518, Kerr v. Baranow, 2011 SCC 10, D.B.S. v. S.R.G., 2006 SCC 37

Frenkel v. Frenkel, 2024 ONCA 193

Keywords: Family Law, Property, Equalization of Net Family Property, Civil Procedure, Evidence, Witnesses, Credibility

Short Civil Decisions

Buduchnist Credit Union Limited v 2321197 Ontario Inc, 2024 ONCA 190

Keywords: Civil Procedure, Orders, Injunctions, Mareva Orders, Enforcement, Costs, Trade Capital Finance Corp v Cook, 2017 ONCA 281

Ekum-Sekum Incorporated (Brantco Construction) v. Lanca, 2024 ONCA 189

Keywords: Contracts, Construction, Breach of Trust, Construction Lien Act, R.S.O. 1990, c. C.30

9806881 Canada Corp. v. Swan, 2024 ONCA 187

Keywords: Contracts, Security Agreements, Repair and Storage Liens, Priority, Personal Property Security Act, Civil Procedure, Appeals, Orders, Directions

Shannon v. Hrabovsky, 2024 ONCA 188

Keywords: Civil Procedure, Appeals, Costs, Enhanced Costs, Substantial Indemnity, Rules of Civil Procedure, rr 1.03, 57.01(1), Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 29, Unisys Canada Inc. v. York Three Associates Inc. (2001), 150 O.A.C. 49, Davies v. Clarington (Municipality) et al., 2009 ONCA 722, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, Sawdon Estate v. Sawdon, 2014 ONCA 101, Westover Estate v. Jolicouer, 2024 ONCA 81, Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, Yan v. Hutchinson, 2024 ONCA 158

Kesete v. Gaspar, 2024 ONCA 198

Keywords: Torts, Negligence, MVA, Damages, Civil Procedure, Costs


CIVIL DECISIONS

Beshay v Labib, 2024 ONCA 186

[Pepall, George and Dawe JJ.A.]

Counsel:

A. Katzman, for the appellant

G. Honickman, for the respondents

Keywords: Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, r. 48.14(7)(a), 1196158 Ontario Inc v 6274013 Canada Limited, 2012 ONCA 544, Windebank v Toronto East General Hospital, 2022 ONSC 6913, Yang v The Christian World Korea Inc, 2019 ONSC 6131, Burgess v University Health Network, 2022 ONCA 105

Facts:

The appellant purchased Forest Grove Academy of Arts & Technology Inc. from A.L and H.L in December 2015 and sued them in December 2016 for breach of contract and misrepresentation, claiming the business was less profitable than represented. The appellant sought to rescind the purchase agreement or receive damages, while the respondents denied the claims. Despite occasional correspondence between counsel, the appellant made no significant effort to advance the litigation. The efforts to arrange a settlement were unproductive, and the appellant’s counsel was unresponsive for years. The legal deadline for setting the action for trial was extended due to the COVID-19 pandemic, but the appellant’s motion to avoid dismissal for delay was unsuccessful, leading to the dismissal of the action in May 2023. The appellant appealed from the dismissal order.

Issues:

Did the motion judge fail to properly apply the established legal test for dismissing actions for delay?

Holding:

Appeal dismissed.

Reasoning:

This legal test as per 1196158 Ontario Inc v 6274013 Canada Limited required the plaintiff to establish that there was “an acceptable explanation” for the delay, and also to demonstrate that the defendant would not suffer any non-compensable prejudice if the action was allowed to proceed. The Rules of Civil Procedure had previously required dilatory plaintiffs to bring a motion under r. 48 if an action had not been set down for trial within two years, but this deadline had been extended to five years.

The appellant contended that the motion judge made errors by setting an overly high standard for an “acceptable” explanation for delay, improperly evaluating his reasons for not advancing the litigation, and incorrectly assessing the prejudice to the respondents. The appellant attributed his inaction to family deaths, mental health issues, and financial strains, but the motion judge found these explanations unsupported by evidence, particularly noting his active business engagements during the period of alleged incapacity. The Court also rejected the appellant’s claim that financial difficulties due to the preschool’s profitability and the COVID-19 pandemic were to blame, pointing out his significant income and assets.

The Court concluded that the motion judge did not err in her decisions, highlighting the appellant’s failure to present convincing evidence for his delay and the respondents’ potential prejudice due to faded memories and missing records. The appellant’s argument that the motion judge should have considered the respondents’ inactivity and his proposed litigation timetable was dismissed, with the Court emphasizing the primary responsibility of the party initiating the proceeding to advance it. The dismissal of the action for delay was seen as justified, considering the appellant’s insufficient explanations for his inaction and the clear prejudice to the respondents.


Jacob v Canada (Attorney General), 2024 ONCA 195 

[Fairburn A.C.J.O. (Motion Judge)]

Counsel:

M. Chowdhury, E. Krajewska, É. Arsenault and A. Bakshi, for the proposed intervener, the Income Security Advocacy Centre

S. Choudhry, for the appellant

B. Sunallah and M. Ambwani, for the respondent

Keywords: Civil Procedure, Interveners, Canadian Charter of Rights and Freedom, s. 15, R v Sharma, 2022 SCC 39, Fraser v Canada (Attorney General), 2020 SCC 28

Facts:

The appeal arose from an unsuccessful s. 15 Charter challenge relating to benefit programs during the COVID-19 pandemic: the Canada Emergency Response Benefit (“CERB”), the Canada Recovery Benefit (“CRB”) and the Canada Recovery Sickness Benefit (“CRSB”). The programs were offered to workers who lost employment income as a result of the pandemic. To be considered a “worker”, the claimant must have earned at least $5,000 from specified income in the 12 months prior to the claim. Income from federal or provincial disability support benefits did not qualify as income. The appellant challenged the $5,000 threshold, claiming that it discriminated against people living with disabilities.

The Canadian Civil Liberties Association (“CCLA”) and the Income Security Advocacy Centre (“ISAC”) sought leave to intervene in the appeal as friends of the court. The appellant, V.J, consented to both interventions. The Respondent, Attorney General of Canada, took no position in relation to the CCLA’s motion for leave to intervene and opposed the motion brought by the ISAC.

Issue:

Should the CCLA and the ISAC be granted leave to intervene in the appeal as friends of the court?

Holding:

Motion granted.

Reasoning:

Yes.

The CCLA, recognized for its expertise in constitutional issues, was deemed capable of making a unique contribution to the appeal, especially regarding the issues of remedy and retroactivity in legal declarations. The ISAC, despite opposition from the respondent, was acknowledged for its potential to contribute valuable insights into substantive equality, particularly in the context of income security and disability. They aimed to enrich the Court’s understanding of the substantive equality analysis, which had not been extensively explored by the parties. The Court found the ISAC’s expertise relevant for addressing the legal challenges of adverse-impact discrimination and substantive equality affecting low-income individuals with disabilities. It was determined that their involvement would assist the Court without them overstepping into the decision-making process. Consequently, both CCLA and ISAC were granted permission to intervene under specific conditions, including limiting their submissions and oral presentation time, and they were not allowed to incur or be subject to any costs associated with the motions or the appeal.


Roe v. Roe, 2024 ONCA 179

[Tulloch C.J.O., Hourigan and Dawe JJ.A.]

Counsel:

B. Donavan and N. Kochman, for the appellant RMR

N. Mukherjee and A. Rogerson, for the respondent RSR

D.N. Delagran, for the respondent RCR

Keywords: Wills and Estates, Capacity, Undue Influence, Suspicious Circumstances, Vout v. Hay, [1995] 2 S.C.R. 876, Banton v. Banton (1998), 164 D.L.R. (4th) 176 (Ont. S.C.), Boughton v. Knight (1873) L.R. 3 P. & D. 64 (U.K.), Tate v. Gueguegirre, 2015 ONSC 844 (Div. Ct.), Orfus Estate v. The Samuel and Bessie Orfus Family Foundation, 2013 ONCA 225

Facts:

BGR died on July 12, 2014, at the age of 90. Her Last Will and Testament dated August 24, 2005 (the “2005 Will”), named three of her four sons as beneficiaries – RTR, RSR, and RCR. Her fourth son, RMR, was excluded. The exclusion of RMR was a change from her previous wills, which provided for her assets to be split equally among her four sons.

RMR applied to have the 2005 Will declared invalid on the basis that BGR lacked testamentary capacity. In a related action, RMR sued RTR, RSR, and RCR to set aside monetary gifts that BGR made prior to her death. However, RMR conceded that if he was not successful in setting aside the 2005 Will, he had no standing to challenge the gifts.

The application judge dismissed the application and the action. RMR challenged all of the application judge’s findings on appeal.

Issues:

  1. Did the application judge err in finding that the 2005 Will was made under suspicious circumstances, but that BGR had the requisite testamentary capacity to make it and was not operating under “insane delusions” when she disinherited RMR?
  2. Did the application judge err in finding that BGR was not unduly influenced by RTR when she instructed counsel on the 2005 Will?
  3. Did the application judge err in finding that BGR understood the extent of her property?

Holding:

Appeal dismissed.

Reasoning:

Regarding insane delusions, the application judge adopted the approach in Banton v. Banton that the fundamental question regarding the issue was “whether the belief should be characterized merely as being quite unreasonable, on the one hand, or as something that, in the particular circumstances, no one ‘in their senses’ could believe.” The application judge engaged in a detailed review of the circumstances, which she found provided a factual basis to explain the disinheritance. The application judge also found that there was a tendency in the family for members to “hold onto beliefs that can be countered by more reasonable and objective facts” and that the “[R]’s appear to be a passionate family who think and feel deeply about the issues that affect them.”  While the application judge found that BGR acted irrationally and hyperbolically at times, she held that there was a factual foundation to ground her views. There was no error in the analysis and no basis for appellate interference.

Contrary to RMR’s submission citing Tate v. Gueguegirre, there is no set list of considerations that must be considered in all cases when considering an allegation of undue influence. Instead, the analysis of the issue is case specific and should examine the circumstances to understand the nature of the relationship between the alleged influencer and the deceased.

The application judge focused on the evidence of RMR’s expert on elder abuse to determine whether RTR unduly influenced BGR to disinherit RMR. There was nothing impermissible in the application judge relying on this evidence to understand the nature of the relationship between RTR and his mother. She concluded that the facts did not support the inference that BGR was susceptible to RTR’s influence and that BGR was not particularly vulnerable to him. The application judge also found that “BGR and RTR had a symbiotic relationship that seemed to work” and that she was able to manage RTR. There was no error in that analysis, which was well rooted in the evidence.

The application judge was entitled to rely on the evidence of the geriatric psychiatrists and conclude that BGR understood the nature and extent of her property. A competent testator does not have to know the precise make up of her estate, only in a general way the nature and extent of her property: Orfus Estate v. The Samuel and Bessie Orfus Family Foundation. There was no basis for appellate interference.


Scheibler v. Scheibler, 2024 ONCA 191

[Tulloch C.J.O., Hourigan and Dawe JJ.A.]

Counsel:

A. I. Jiwa, for the appellant

P. Howie, for the respondent

Keywords: Family Law, Property, Matrimonial Home, Occupation Rent, Equalization of Net Family Property, Spousal Support, Family Law Act, R.S.O. 1990, c. F.3, s. 14(a), Hickey v. Hickey, [1999] 2 S.C.R. 518, Kerr v. Baranow, 2011 SCC 10, D.B.S. v. S.R.G., 2006 SCC 37

Facts:

The parties were married in August 2000 and separated on December 31, 2013. It was a third marriage for both. Following the separation, the respondent husband remained in the matrimonial home and operated a wildlife sanctuary, which he had opened in 2003, on the surrounding property. The respondent eventually applied for a divorce in February 2017, which led to the order which is the subject of the appeal.

Throughout the marriage, both before and after the separation, the appellant wife worked as a grocery store clerk. On appeal, she challenged the trial judge’s order requiring her to pay retroactive non-compensatory spousal support to the respondent totaling $39,000 for the years 2014 to 2016, and the trial judge’s determinations concerning ownership of, expenses for, and occupancy rent in relation to, the matrimonial home.

Issues:

  1. Did the trial judge err in ordering that the appellant pay to the respondent transitional retroactive non-compensatory spousal support for the three-year period following the separation?
  2. Did the trial judge err in failing to order that the respondent pay occupation rent for his exclusive occupation of the matrimonial home post separation and/or in failing to order that he reimburse the appellant for expenses relating to the matrimonial that she paid post separation?
  3. Did the trial judge err in dismissing the appellant’s claim for sole ownership of the matrimonial home?

Holding:

Appeal dismissed.

Reasoning:

A high level of deference is owed to a trial judge’s determination of appropriate spousal support because of its fact-based and discretionary nature. The appellant invited the reweighing of evidence and retrying of the case, which is not the function of an appellate court.

It was open to the trial judge to come to the determination that the respondent was financially dependent on her during the marriage. There was ample evidence to support the trial judge’s this finding, and that the appellant acquiesced in that dependence, even though she had actively encouraged the respondent to “get a job”.

As for the appellant’s second submission that the trial judge erred by ordering her to pay retroactive spousal support for a period prior to the date on which the respondent’s divorce application was issued and before any notice of his claim for spousal support, the amount ordered was only notionally “retroactive”, since the appellant had in fact supported the respondent by paying significant expenses during the relevant time. The trial judge set off the $43,243 he ordered the respondent to repay the appellant against the amount owing for retroactive support and a portion of the equalization payment the appellant owed the respondent. It was implicit in the trial judge’s reasoning that he was satisfied that the appellant had effective notice of the respondent’s claim for spousal support by virtue of the payments she already made on his behalf for living expenses. Moreover, the fact of those payments adequately explained the respondent’s delay in making a formal application for support.

The trial judge was not asked to reduce the amount of support for transitional retroactive non-compensatory spousal support to reflect tax consequences. The failure to do so did not reflect an error in principle.

The trial judge reviewed the principles applicable to the equitable remedy of requiring payment of occupation rent in circumstances where one joint owner of property occupies the property to the exclusion of another. There was no error in the trial judge’s exercise of discretion not to award occupation rent where he was faced with an unusual set of circumstances. The parties had no children and the appellant was the primary income earner, acquiescing in the respondent’s failure to seek remunerative employment. Both parties were dilatory in seeking any remedy through legal action. The trial judge was entitled to exercise his discretion in balancing the parties’ competing claims for spousal support, occupancy rent and reimbursement of expenses.

The appellant’s evidence did not rise to the level of asserting that the parties had agreed that the matrimonial home would be registered in their names as joint tenants conditional on the respondent contributing to the payments. In the absence of direct evidence of the mutual intentions of the parties, it was open to the trial judge to rely on the inferences to be drawn from the actions of the parties. In the circumstances, there was no error in the trial judge’s finding that the appellant failed to rebut the presumption of joint tenancy that arises under s. 14(a) of the FLA. It was therefore unnecessary that he resolve the conflict in the evidence concerning the parties’ respective contributions to the purchase price of the matrimonial home.


Frenkel v. Frenkel, 2024 ONCA 193

[Trotter, Zarnett and Sossin JJ.A]

Counsel:

EF, acting in person

VF, acting in person

Keywords: Family Law, Property, Equalization of Net Family Property, Civil Procedure, Evidence, Witnesses, Credibility

Facts:

The issues on appeal stemmed from the equalization of net family properties following a marriage breakdown, with the appellant challenging the trial judge’s order to pay the respondent $210,665.48, reflecting an adjusted equalization payment of $233,363.02 minus certain child support arrears and s. 7 expenses. The dispute, litigated over an eight-day trial, centered on who removed $314,945.25 in precious metals and $60,000 in cash from the apartment, items stored in safes by the respondent. The trial judge, after evaluating the evidence, concluded that the appellant retained these valuables and, consequently, adjusted her net family property statement, leading to the appellant owing $23,918.79 in equalization payments, further adjusted for the precious metals value, culminating in the final adjusted equalization payment owed by the appellant. The appellant appealed.

The respondent filed a very late motion for an order that the appellant be enjoined from dissipating any of her assets. He also sought an order for security for costs.

Issues:

1) Did the trial judge improperly engage in a criminal investigation and find the appellant guilty of theft?

2) Did the trial judge err in finding that the appellant retained or removed the disputed items from the apartment?

3) Did the trial judge make a mathematical error in the final calculation of the adjusted equalization payment?

4) Should the appellant be enjoined from dissipating her assets?

5) Should the appellant be ordered to pay security for the costs of the appeal?

Holding:

Appeal allowed, in part.

Reasoning:

1) No.

The trial judge was not engaged in a criminal investigation. The appellant was not found guilty of “theft”. In addressing the equalization of net family property and the required post-separation adjustments, the trial judge was required to determine which party retained which assets. Although the factual background of the case may have been somewhat unique, the trial judge was engaged in a routine task of family law judges – tracing the assets of the parties in the determination of net family property. The Court found that the trial judge did not exceed her jurisdiction in doing so.

2) No.

The Court saw no error in the trial judge’s resolution of the factual dispute. As she noted in her reasons, the case turned on the credibility of the witnesses. The Court noted that credibility findings of a trial judge must be afforded substantial deference on appeal unless an appellant can demonstrate a material misapprehension of the evidence, an error in principle, or that the findings are clearly unreasonable. The Court concluded that the appellant has not demonstrated any such deficiency in the trial judge’s findings on this issue.

3) Yes.

The Court agreed with the appellant that the trial judge erred in calculating the post-separation adjustment based on her finding that the appellant had retained all the jointly owned precious metals valued at $314,945.25. The Court found that the trial judge should have adjusted for each party to receive half the value, or $157,472.50, of the precious metals. Instead, an incorrect adjustment of $232,077.47 was made, favoring the respondent unfairly. Further, the trial judge incorrectly deducted amounts related to joint BMO and Effective Technologies bank accounts from what the appellant owed, when these amounts should have increased her payable sum. Correcting these errors, the adjusted equalization payment was $168,282.39, not $233,363.02 as originally determined, leading to a net amount due of $145,584.85 after accounting for child support and s. 7 expense arrears.

4) and 5) No.

There was no basis to grant any of the requested relief. The motions for non-dissipation of assets and for security for costs were dismissed.


SHORT CIVIL DECISIONS

Buduchnist Credit Union Limited v 2321197 Ontario Inc, 2024 ONCA 190

[Roberts, Trotter and Sossin JJ.A.]

Counsel:

P. Carey and C. Lee, for the appellant/respondent by way of cross-appeal

B. Grossman and S.A Wilson, for the respondent/appellant by way of cross-appeal

Keywords: Civil Procedure, Orders, Injunctions, Mareva Orders, Enforcement, Costs, Trade Capital Finance Corp v Cook, 2017 ONCA 281

Ekum-Sekum Incorporated (Brantco Construction) v. Lanca, 2024 ONCA 189

[Rouleau, Lauwers and Monahan JJ.A.]

Counsel:

A. J. Gabriele and A. M. Beney, for the appellant

D. Touesnard, for the respondents

Keywords: Contracts, Construction, Breach of Trust, Construction Lien Act, R.S.O. 1990, c. C.30

9806881 Canada Corp. v. Swan, 2024 ONCA 187

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

Counsel:

J. M. Wortzman and J. C. Wortzman, for the appellants

P. Virc and R. Karrass, for the respondent

Keywords: Contracts, Security Agreements, Repair and Storage Liens, Priority, Personal Property Security Act, Civil Procedure, Appeals, Orders, Directions

Shannon v. Hrabovsky, 2024 ONCA 188

[Roberts, Sossin and Dawe JJ.A.]

Counsel:

N. Ronski, for the appellants

V. Msi, for the respondent

Keywords: Civil Procedure, Appeals, Costs, Enhanced Costs, Substantial Indemnity, Rules of Civil Procedure, rr 1.03, 57.01(1), Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 29, Unisys Canada Inc. v. York Three Associates Inc. (2001), 150 O.A.C. 49, Davies v. Clarington (Municipality) et al., 2009 ONCA 722, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, Sawdon Estate v. Sawdon, 2014 ONCA 101, Westover Estate v. Jolicouer, 2024 ONCA 81, Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, Yan v. Hutchinson, 2024 ONCA 158

Kesete v. Gaspar, 2024 ONCA 198

[Fairburn A.C.J.O., Simmons J.A. and Daley J. (ad hoc)

Counsel:

M. Stoiko, for the appellant

M. Kennedy and G. Harper, for the respondent

Keywords: Torts, Negligence, MVA, Damages, Civil Procedure, Costs



The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 4, 2024. There were only two civil decisions this week.

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In Halton (Regional Municipality) v. Canadian National Railway Company, the Regional Municipality of Halton was unsuccessful in blocking the construction of a large intermodal hub by CN for the carriage of goods by rail that was approved by the federal government. The Region and residents of Milton are strongly against the project for traffic, noise and environmental reasons. The application judge dismissed Halton’s application to stop the project until its land use planning bylaws and a myriad of other provincial laws were complied with. The Court dismissed the appeal. The Constitution gives jurisdiction over interprovincial railways to the federal government and the constitutional law doctrines of interjurisdictional immunity and paramountcy mean that the federal law prevails over provincial and local laws.

In La Française IC 2 v Wires, a foreign arbitral award was enforced.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Halton (Regional Municipality) v. Canadian National Railway Company, 2024 ONCA 174

Keywords: Constitutional Law, Federal Undertakings, Interprovincial Railways, Division of Powers, Interjurisdictional Immunity, Paramountcy, Municipal Law, Land Use Planning, Civil Procedure, Issue Estoppel, Abuse of Process, Pesticides Act, RSO 1990, c. P.11 Courts of Justice Act, RSO 1990, c. C.43, Constitution Act 1867, CN Commercialization Act, S.C. 1995, c. 24, Quebec Environment Quality Act, C.Q.L.R. c. Q-2, Halton v CNR, 2018 ONSC 6095, Halton (Regional Municipality) v Canada (Environment), 2024 FC 348, Carmichael v GlaxoSmithKline Inc, 2020 ONCA 447, Kelly v Palazzo, 2008 ONCA 82, Chippewas of Mnjikaning First Nation v Chiefs of Ontario, 2010 ONCA 47, Canadian Western Bank v Alberta, 2007 SCC 22, Rogers Communications Inc v Châteauguay (City), 2016 SCC 23, Bank of Montréal v Marcotte, 2014 SCC 55, Québec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39, Marine Services International Ltd v Ryan Estate, 2013 SCC 44, Desgagnés Transport Inc v Wärtsilä, 2019 SCC 58, Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, British Columbia (Attorney General) v Lafarge Canada Inc, 2007 SCC 23, Ontario (Attorney General) et al v Winner et al, [1954] 4 DLR 657 (PC), Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 OR (3d) 641 (CA), Toronto Corporation v Bell Telephone Co of Canada, [1905] AC 52 (PC), Canadian Pacific Railway Company v Corporation of the Parish of Notre Dame de Bonsecours, [1899] AC 367 (PC), Clark v Canadian National Railway Co, [1988] 2 SCR 680, R v TNT Canada Inc (1986), 58 OR (2d) 410 (CA), Ontario v Canada Pacific Ltd (1993), 13 OR (3d) 389 (CA), Johannesson v Rural Municipality of West St Paul, [1952] 1 SCR 292, Attorney General of Quebec v IMTT-Québec Inc, 2019 QCCA 1598, Commission de Transport de la Communauté Urbaine de Québec v Canada (National Battlefields Commission), [1990] 2 SCR 838, Toronto (City) v CUPE, Local 79, 2003 SCC 63, Catalyst Group Inc v VimpelCom Ltd, 2019 ONCA 354, Heynen v Frito Lay Canada Ltd (1999), 45 O.R. (3d) 776 (CA), Dosen v Meloche Monnex Financial Services Inc (Security National Insurance Company), 2021 ONCA 141, Strickland v Canada (Attorney General), 2015 SCC 37, Operation Dismantle v The Queen, [1985] 1 SCR 441, Hofer v Hofer et al, 2022 MBCA 99, SA v Metro Vancouver Housing Corp, 2019 SCC 4, Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, Solosky v The Queen, [1980] 1 SCR 821, Gook Country Estates Ltd v Quesnel (City of), 2008 BCCA 407, Bunker v Veall, 2023 ONCA 501, Bryton v Capital Corp GP Ltd v CIM Bayview Creek Inc, 2023 ONCA 363, William v British Columbia, 2012 BCCA 285, Tsilhqot’in Nation v British Columbia 2014 SCC 44, Doria v Warner Bros Entertainment Canada Inc, 2023 ONCA 321, Feinstein v Freedman, 2014 ONCA 205, Hamilton v Open Window Bakery Ltd, 2004 SCC 9, Association des parents de l’école Rose-des-vents v British Columbia (Education), 2015 SCC 21

La Française IC 2 v. Wires, 2024 ONCA 171

Keywords: Contracts, Arbitration Agreements, Civil Procedure, Arbitration Awards, Enforcement, Behn v Moulton Contracting Ltd, 2013 SCC 26, Canam Enterprises Inc v Coles (2000), 51 O.R. (3d) 481 (CA), R v Scott, [1990] 3 SCR 979, Law Society of Saskatchewan v Abrametz, 2022 SCC 29


CIVIL DECISIONS

Halton (Regional Municipality) v. Canadian National Railway Company, 2024 ONCA 174

[Simmons, Paciocco and Thorburn JJ.A.]

Counsel:

K. E. Thomson, S. G. Frankel, C. Li, R. Northey and H. Machum, for the appellants

S. Block, A. Bernstein, Y. Bienenstock, J. Silver and C. Koopman, for the respondent

J. Cheng, A. Law and M. Cormack, for the intervener, Attorney General of Canada

P. Ryan and A. Ralph, for the intervener, Attorney General of Ontario

Keywords: Constitutional Law, Federal Undertakings, Interprovincial Railways, Division of Powers, Interjurisdictional Immunity, Paramountcy, Municipal Law, Land Use Planning, Civil Procedure, Issue Estoppel, Abuse of Process, Pesticides Act, RSO 1990, c. P.11 Courts of Justice Act, RSO 1990, c. C.43, Constitution Act 1867, CN Commercialization Act, S.C. 1995, c. 24, Quebec Environment Quality Act, C.Q.L.R. c. Q-2, Halton v CNR, 2018 ONSC 6095, Halton (Regional Municipality) v Canada (Environment), 2024 FC 348, Carmichael v GlaxoSmithKline Inc, 2020 ONCA 447, Kelly v Palazzo, 2008 ONCA 82, Chippewas of Mnjikaning First Nation v Chiefs of Ontario, 2010 ONCA 47, Canadian Western Bank v Alberta, 2007 SCC 22, Rogers Communications Inc v Châteauguay (City), 2016 SCC 23, Bank of Montréal v Marcotte, 2014 SCC 55, Québec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39, Marine Services International Ltd v Ryan Estate, 2013 SCC 44, Desgagnés Transport Inc v Wärtsilä, 2019 SCC 58, Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, British Columbia (Attorney General) v Lafarge Canada Inc, 2007 SCC 23, Ontario (Attorney General) et al v Winner et al, [1954] 4 DLR 657 (PC), Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 OR (3d) 641 (CA), Toronto Corporation v Bell Telephone Co of Canada, [1905] AC 52 (PC), Canadian Pacific Railway Company v Corporation of the Parish of Notre Dame de Bonsecours, [1899] AC 367 (PC), Clark v Canadian National Railway Co, [1988] 2 SCR 680, R v TNT Canada Inc (1986), 58 OR (2d) 410 (CA), Ontario v Canada Pacific Ltd (1993), 13 OR (3d) 389 (CA), Johannesson v Rural Municipality of West St Paul, [1952] 1 SCR 292, Attorney General of Quebec v IMTT-Québec Inc, 2019 QCCA 1598, Commission de Transport de la Communauté Urbaine de Québec v Canada (National Battlefields Commission), [1990] 2 SCR 838, Toronto (City) v CUPE, Local 79, 2003 SCC 63, Catalyst Group Inc v VimpelCom Ltd, 2019 ONCA 354, Heynen v Frito Lay Canada Ltd (1999), 45 O.R. (3d) 776 (CA), Dosen v Meloche Monnex Financial Services Inc (Security National Insurance Company), 2021 ONCA 141, Strickland v Canada (Attorney General), 2015 SCC 37, Operation Dismantle v The Queen, [1985] 1 SCR 441, Hofer v Hofer et al, 2022 MBCA 99, SA v Metro Vancouver Housing Corp, 2019 SCC 4, Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, Solosky v The Queen, [1980] 1 SCR 821, Gook Country Estates Ltd v Quesnel (City of), 2008 BCCA 407, Bunker v Veall, 2023 ONCA 501, Bryton v Capital Corp GP Ltd v CIM Bayview Creek Inc, 2023 ONCA 363, William v British Columbia, 2012 BCCA 285, Tsilhqot’in Nation v British Columbia 2014 SCC 44, Doria v Warner Bros Entertainment Canada Inc, 2023 ONCA 321, Feinstein v Freedman, 2014 ONCA 205, Hamilton v Open Window Bakery Ltd, 2004 SCC 9, Association des parents de l’école Rose-des-vents v British Columbia (Education), 2015 SCC 21

facts:

The respondent, Canadian National Railway Company (“CN”) was in the process of constructing an “intermodal hub” on a 485-hectare parcel of land in the town of Milton. The intermodal hub project had affected many local residents adversely, including through the disruption caused by ongoing construction, the noise and heavy truck traffic it will generate, its environmental impact, and the demands it will impose on local infrastructure. The project generated fierce local opposition.

While federal approval was under consideration, Halton applied for declarative relief on issues relating to the applicability of provincial and local laws to the intermodal hub. Halton identified fewer than 20 specific local laws that it said applied, and sought, among other relief, a declaration that “[v]alid provincial and municipal by-laws of general application apply to the [intermodal train hub] unless they (a) impair a vital or essential aspect of a federal railway, or (b) conflict with a federal statute, regulation or approval.” CN secured a temporary stay of the initial application pending disposal of the federal approval process.

In 2021, federal approval for the construction of the intermodal hub on CN’s property in the Halton Region was granted by the Governor in Council, CTA and the Minister. The temporary stay of Halton’s initial application for declaratory relief issued by the stay motion judge ended with the federal approval.

In 2022, Halton amended that application, for the second time, expanding the reach of the relief it was seeking. This second amended application was the one that was before the application judge and that was the subject of the current appeal. Halton was seeking declarations that CN “is obligated to seek and obtain all requisite approvals under each of the [listed] provincial laws … prior to constructing and operating the [intermodal hub].”

issues:
  1. Did the application judge misapprehend the evidence relating to CN’s claim to absolute immunity?
  2. Did the application judge misapprehend the evidence in finding that Halton wished to block the intermodal hub, or make and base his decision on unfair and unjustified findings concerning the conduct of elected officials?
  3. Did the application judge err in law by misapplying the law of interjurisdictional immunity to the three bylaws?
  4. Did the application judge err by failing to apply the stay motion judge’s finding that Halton’s applications were not hypothetical or premature?
  5. Did the application judge err in law or in fact by declining to address the constitutional applicability and operability of the overwhelming majority of the listed local laws?
  6. Should leave to appeal the costs award be granted and the appeal from the costs decision be allowed?
holding:

Appeal dismissed.

reasoning:
  1. No.

The application judge did not find that CN never denied that local laws apply to the project. His comment in his Reasons for Judgment that the federal approval of the project “does not mean that CN was immune to any or all local or provincial laws” showed that he attended to the evidence before him on this point. It was clear from the context that he was simply describing the position that CN took before him. Whatever Halton may think of the sincerity of the position CN took before the application judge, the application judge was entitled to accept it, and the Court saw no basis for interfering with his decision to do so.

  1. No.

Halton argued that during the application hearing, it “made clear that their purpose in pursuing the Application is not to block the intermodal hub from proceeding, but rather to ensure that CN complies with local enactments…”. It argued that the application judge misapprehended its position by finding that the Regional Municipality of Halton and the other applicants “wish to prevent CN from constructing the intermodal hub until it complies with municipal planning processes”.

The Court did not agree with this submission. The application judge based his conclusion about Halton’s position not only on the historical opposition of Halton to the intermodal hub, but also on his observation that most of the materials that Halton filed dealt with complaints about the federal approval, and on the implications of the requests for relief that were before him. Halton was seeking an injunction that would have prevented further construction until application processes relating to curb cutting and regional roads that required official plan amendments were completed. The application judge had an evidentiary basis before him for the conclusions reached. His factual findings were entitled to deference.

  1. No.

Cooperative federalism holds that statutes enacted by both levels of government should be permitted to operate, where possible. The doctrine of “interjurisdictional immunity” serves to qualify the operation of cooperative federalism by preventing concurrent jurisdiction in limited circumstances. Interjurisdictional immunity prevents laws validly enacted by one order of government from impairing the “unassailable core” content of a head of power or a vital or essential aspect of an undertaking that is specified as exclusive under the Constitution Act, 1867.

Limits are imposed on interjurisdictional immunity in two ways. First, the doctrine is to be used with restraint. Second, to prevent interjurisdictional immunity from being given broad sweep the doctrine is applied strictly. To be rendered ineffective under this doctrine a law must: (1) impair, (2) a “core” or “vital and essential” element of the exclusive power.

There are two steps in an interjurisdictional immunity inquiry. The first step is to determine whether the impugned law trenches on the protected core of the other level of government’s legislative jurisdiction. If interjurisdictional immunity could apply based on this inquiry because the impugned law will intrude upon the protected undertaking, the second step is launched, which is to resolve whether the impugned law’s intrusion on the exercise of the protected undertaking is sufficiently serious to invoke the doctrine.

  • Did the application judge err in deciding that the three bylaws intruded upon a “core” federal undertaking?

The parties agreed that the federal government had jurisdiction over interprovincial railways. However, Halton argued that the three bylaws do not intrude upon the core of the railway undertaking that is protected by interjurisdictional immunity and submitted that the application judge erred in finding otherwise.

First, the Court was not persuaded that the application judge erred in treating the intermodal hub as a vital part of a railway undertaking. There was ample evidence before the application judge establishing that the function of the intermodal hub was to enable the transport of goods in and out of the Greater Toronto Area by rail. The involvement of the trucks did not alter the function of the intermodal hub as an essential part of the railway undertaking. The intermodal hub served the railway in the same way a more conventional railway station does, as a location to embark and disembark cargo.

Second, Halton argued that the application judge erred by finding there was “ample precedent for interjurisdictional immunity in relation to the location and operation of interprovincial railway undertakings and undertakings declared to be of national import”. Its position was that absent precedents establishing that the construction and operation of an intermodal hub lies at the “core” of federal railway jurisdiction, the rigorous precedential limitation on the application of interjurisdictional immunity cannot be met. The Court held that Halton’s position was unduly rigid. The fact that there may not be precedents was not enough on its own to oust interjurisdictional immunity, even leaving aside that in some cases interjurisdictional immunity claims could be recognized without precedent. Even if there had not been precedents directly on point, the application judge would not have erred by considering analogous precedents. The analogous precedents the application judge considered supported his decision.

Third, Halton argued that the application judge erred by applying interjurisdictional immunity where there was a “double aspect” that arose from the concurrent jurisdiction that CN had over railroads, on the one hand, and municipalities had, on the other hand, over local environmental matters. Not only can interjurisdictional immunity apply in double aspect cases, but a finding of interjurisdictional immunity could obviate the need to resolve double aspect issues. The Court therefore rejected this submission.

Fourth, Halton relied on the recital in the Minister Decision Statement that Ministry approval did “not relieve [CN] from any obligation to comply with other legislative or other legal requirements of the federal, provincial, or local governments” as supporting its position that interjurisdictional immunity should not be applied. The Court found this statement irrelevant. The Minister did not purport to describe what provincial or local laws qualified as legal requirements relating to this project. The Minister was expressing the caveat that Ministry approval did not absolve CN from complying with any other legal requirements that apply.

  • Did the application judge err in determining that the three bylaws “impair” the core of the federal undertaking?

The application judge based his decision on his conclusion that in order to comply with those bylaws “prior to building the intermodal hub CN was required to apply for exemptions from curb cut and grading bylaws by applying for and obtaining official plan amendments.” The Court saw two strains of reasoning in this explanation. First, the official plan approval that he found to be required under each of the three bylaws confers broad discretion on municipal officials that effectively authorizes them to prohibit the construction of the intermodal hub. The power to prevent the project was impairing. Second, he found that the official plan approval would require years of proceedings. Although he did not articulate it, it was clear from his reasoning that he found this delay would itself constitute an impairment of the core federal power.

Not all local or provincial legislation requiring permits will impair the exercise of the federal power or a vital or essential part of an undertaking. If a provincial law purports to claim the authority to impair a federal undertaking, the doctrine is available, especially in the context of a case such as this where Halton had asked a court to grant prophylactic declarations and injunctions on the strength of its assertion of authority to regulate. The Court therefore rejected Halton’s position that a finding of impairment was premature.

In the Court’s view there could be no realistic issue taken with the breadth of discretion that operates when an official plan amendment is being considered. Official plans, by their very nature, reflect planning objectives and priorities that local governments choose, an inherently discretionary determination. The application judge could not be faulted for not stating the obvious in his decision.

The Court saw no error in the application judge’s interpretation of bylaw 32-17 as requiring official plan compliance. The Court was not persuaded that the application judge erred in finding that the relief Halton sought under all three bylaws impaired the core of exclusive federal jurisdiction, which includes CN’s constructing and operating the intermodal hub in a location approved by the federal government. Even in the absence of a broad discretion to refuse permit approval, imposing an overlong approval delay pending official plan amendments is sufficiently serious to constitute an impairment.

  1. No.

The application judge did not err by “ignoring” the stay motion judge’s conclusion that Halton’s application was not “premature” or “too hypothetical or lacking a concrete factual foundation”. The underlying principles of res judicata, issue estoppel and abuse of process that Halton was invoking did not apply. The application judge’s task was to determine if, on the factual record before him, the much broader declarations sought in the second revised application were premature or too hypothetical to adjudicate after the hearing, where CN was not claiming absolute immunity as a federal undertaking from all provincial legislation.

The Court had recognized that even where the requirements of issue estoppel are not met, it may be appropriate to bar re-litigation using the abuse of process doctrine. However, given the starkly different issue the application judge was facing, there can be no principled basis for holding, based on the principles of abuse of process, that the application judge erred in failing to prevent re-litigation as an abuse of process.

  1. No.

Halton argued that the application judge erred by denying its requests for declaratory relief without addressing the applicability and operability of most of the listed local laws it had identified. The Court found that the application judge’s conclusions that Halton’s application for declaratory relief lacked the factual underpinnings to demonstrate a live controversy warranting such relief, and also lacked the specific information required to resolve whether interjurisdictional immunity applied to these remaining laws, leading him to decline to consider the “premature” and “hypothetical questions” that Halton had posed. The Court found that the application judge applied the correct legal tests, placing the burden on Halton to establish the evidentiary foundation for the declarations it sought. His conclusion that the necessary factual underpinnings were lacking was supported by the record and provided an appropriate basis for his decision to deny the relief requested.

  1. No.

The Court did not grant Halton leave to appeal the $2.3 million costs award, despite the imposing amount of that award. Costs decisions are highly discretionary and afforded significant deference. The Court found that the decision by the application judge was entirely understandable given his findings that Halton’s application was overreaching, and that Halton was using the litigation to shut down the construction of the intermodal hub. CN’s claim to absolute immunity was not litigated, as it conceded during the litigation that it did not have absolute immunity and ultimately prevailed on all of the issues that were in dispute. Halton’s assertion that the costs award was clearly excessive and inflated lacked a factual basis, especially considering Halton’s tactical decision to raise more than 65 laws for consideration and to seek sweeping relief relating to a project of obvious importance.


La Française IC 2 v. Wires, 2024 ONCA 171

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

Counsel:

P. Michell, for the appellant

M. Seers, for the respondent

Keywords: Contracts, Arbitration Agreements, Civil Procedure, Arbitration Awards, Enforcement, Behn v Moulton Contracting Ltd, 2013 SCC 26, Canam Enterprises Inc v Coles (2000), 51 O.R. (3d) 481 (CA), R v Scott, [1990] 3 SCR 979, Law Society of Saskatchewan v Abrametz, 2022 SCC 29

facts:

The appellant appealed from a judgment that recognized and enforced an Arbitration Award dated April 7, 2021, where the arbitrator had dismissed the appellant’s claims and ordered them to pay various fees, including the arbitrator’s fee of EUR 44,541.25, the Stockholm Chamber of Commerce (“SCC”) Administrative fee of EUR 14,412.50, and the respondent’s costs of GBP 112,107.38. The dispute originated from a Bespoke Funding Agreement between the appellant and Profile Investment on behalf of IC2 Fund, SICAV-FIS, leading to an arbitration in London against the respondent to recover damages. Throughout the arbitration, the appellant faced a series of setbacks including being ordered to pay security for costs, failing to pay, challenging the arbitrator’s appointment unsuccessfully, and attempting to discontinue the arbitration. Eventually, the arbitrator ruled in favor of the respondent, dismissing the arbitration and awarding costs. The appellant contested the enforcement of the award, arguing that it should be set aside and reconsidered due to alleged judicial errors.

issues:
  1. Did the application judge err in failing to address the appellant’s argument that the arbitral tribunal was improperly constituted as a result of an alleged lack of independence and impartiality and also erred in finding that it was an abuse of process for the appellant to relitigate this issue.
  2. Did the application judge err in finding that the respondent had standing to bring the application and correcting the misnaming of the respondent in the Award?
  3. Did the application judge err in upholding the arbitrator’s award of costs to the respondent that included costs settled by the parties?
holding:

Appeal dismissed.

reasoning:
  1. No.

The Court found that the appellant was not entitled to re-raise issues about the arbitral tribunal’s propriety because they had not pursued further appeals in England against the SCC’s decision. The court supported the application judge’s view that allowing such a challenge would constitute an abuse of process, considering the doctrine’s role in preserving the fairness and integrity of judicial proceedings. The court noted that the appellant’s objections appeared to stem more from dissatisfaction with the arbitrator’s decisions rather than genuine concerns about impartiality or independence. The issues had been discoverable at the time of appointment, and the SCC had already dismissed the appellant’s late allegations as unfounded. The Court agreed that revisiting these challenges would be an abuse of process, especially given the earlier opportunity to rectify any valid issues through an appeal, which the appellant neglected to pursue.

  1. No.

The Court affirmed the application judge’s decision that correctly identified the respondent as the party to the arbitration and the judgment. The judge’s determination was based on evidence, including the appellant’s own arbitration request, which consistently named the respondent. An isolated mis-reference to a different corporation number was deemed a minor error without impact. Consequently, the respondent was rightfully recognized as a party entitled to enforce the Award, and the judge had the authority to confirm the parties to the Award and to mandate its recognition and enforcement.

  1. No.

The Court found that the application judge made no error in recognizing and enforcing the costs in the Award. The arbitrator distinguished between the settled costs of the respondent’s counterclaim and the costs of the arbitration. He applied a discount to the costs of the arbitration to account for the distinction. There was no double-counting or overcompensation.


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