Court Of Appeal Summaries (January 23 – 27, 2023) - Civil Law

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of January 23, 2023. It was a very busy week.

The Court in Rabin v. 2490918 Ontario Inc. considered an appeal from a tenant concerning s.23 of the Commercial Tenancies Act and whether consent to an assignment had been unreasonably withheld by their landlord. The application judge had found that the appellant had waived the requirement under the lease and that the appellant had failed to show that the respondent had either refused to consent to the assignment or unreasonably withheld its consent. The Court found that the application judge had incorrectly addressed and applied the doctrine of waiver, which was not raised by the parties. In applying the doctrine, the application judge erred in construing delay (the landlord's failure to provide a timely response to the tenant's request for consent) as a waiver. Ultimately, the Court found that the landlord had unreasonably withheld consent when they failed to provide a response to the request for consent within the 15-day time period contemplated under the lease.

In Costanza v. Dejardins Financial Security Life Assurance Company, the appellant insurer appealed from the judgment of the application judge declaring that the life insurance policy of which the respondent, as beneficiary, was valid, subsisting and binding on the insurer. The issues raised in the appeal concerned the duty of an insured to disclose material facts to their insurer and incontestability once a policy has been in force for two years or more during the life of the insured. The Court dismissed the appeal and declined to admit fresh evidence on the basis that the fresh evidence could not reasonably be expected to have affected the result of the application. The Court found that, while the application judge erred in disregarding admissions by witnesses that the deceased was convicted of an assault which could lead to invalidating the policy, the Court found no error in the application judge's finding that even if accepting the conviction had been proven on the application, the insurer had failed to establish that the deceased had the intent required for civil fraud at the time he completed the application for insurance. The Court held that, in absence of palpable and overriding error, the finding by the application judge was entitled to deference.

In Continental Currency Exchange Canada Inc. v. Sprott, the Court upheld the motion judge's decision to grant the respondents a stay of proceedings due to the appellants' access to documents and emails belonging to the respondents that were confidential and privileged. The Court held that the motion judge correctly applied the test from Celanese Canada Inc. v. Murray Demolition Corp., to assess whether privileged and confidential information attributable to a solicitor and client relationship will prejudice the party possessing the privilege. The Court found that the motion judge's conclusion that the appellants' access to privileged information regarding the litigation was a serious risk to the respondents' privilege and the appropriate remedy was a stay of proceedings.

There were two subsidized housing judicial review appeals (MacKenzie v. Ottawa Community Housing Corporation and Ali v. Peel). Both appeals were dismissed and the initial decisions of the governmental authorities were upheld.
Other topics covered this week included granting an application for intervenor status in a case involving habeas corpus, an appeal of a dismissal of a motion to strike out pleadings, a trial decision determining issues of civil fraud and conspiracy and a refusal of leave to amend pleadings.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Corrigan v. Ontario, 2023 ONCA 39

Keywords: Crown Liability, Civil Procedure, Striking Pleadings, Nullity, Notice of Claim, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, Human Rights Code, R.S.O. 1990, c. H.19, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, r. 19.02(1)(b), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Zeus v. Spick, [2000] O.J. No. 3758 (S.C.), aff'd [2001] O.J. No. 2848 (C.A.), Beardsley v. Ontario (2001), 57 O.R. (3d) 1 (C.A.), Miguna v. Ontario (Attorney General) (2005), 262 D.L.R. (4th) 222 (Ont. C.A.), Noddle v. The Ontario Ministry of Health, 2019 ONSC 7337, Aba-Alkhail v. University of Ottawa, 2012 HRTO 656, Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319

Wong v. Li, 2023 ONCA 42

Keywords: Torts, Fraud, Misrepresentation, Breach of Fiduciary Duty, Law Society of Upper Canada v. Oscar Choi-Wah Wong, 2012 ONLSHP 0180, Law Society of Upper Canada v. Oscar Choi-Wah Wong, 2013 ONLSAP 0031, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, F.H. v. McDougall, 2008 SCC 53, R. v. G.F., 2021 SCC 20, R. v. Dinardo, 2008 SCC 24

Benbella v. The National Dental Examining Board of Canada , 2023 ONCA 56

Keywords: Administrative Law, Regulated Professions, Civil Procedure, Appeals, Standard of Review, Correctness, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21.01(1)(b), McCreight v. Canada (Attorney General), 2013 ONCA 483, Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618

Ali v. Peel (Regional Municipality), 2023 ONCA 41

Keywords: Administrative Law, Judicial Review, Standard of Review, Reasonableness, Remedies, Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1, O. Reg. 367/11, s. 1(1)-1(2), s.47, s.48, s.54, s.58, Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, Briggs v. Durham (Police Services Board), 2022 ONCA 823, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

Horani v. Manulife Financial Corporation, 2023 ONCA 51

Keywords: Torts, Occupier's Liability, Slip and Fall, Civil Procedure, Amending Pleadings, Appeals, Jurisdiction, Final or Interlocutory, Rules of Civil Procedure, rr. 26.01, 48.04(1), Hendrickson v. Kallio, [1932] O.R. 675 (C.A), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Denton v. Jones, 13 O.R. (2d) 419 (S.C.), Ontario (Securities Commission) v. McLaughlin, 2009 ONCA 280, 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, Trillium Power Wind Corp. v. Ontario, 2019 ONSC 6905, Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740, LML Investments Inc. v Choi (2007), 85 O.R. (3d) 351 (S.C.), Jetport v Jones Brown Inc., 2013 ONSC 2740, Lugen Corporation v Starbucks Coffee Canada Inc., 2014 ONSC 7141, Denis v Lalonde, 2016 ONSC 5960, Secure Solutions Inc. v. Smiths Detection Toronto Ltd., 2017 ONSC 2401, A.G.C. Mechanical Structural Security Inc. v. Rizzo, 2013 ONSC 1316, BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, Fruitland Juices Inc. v. Custom Farm Service Inc. et al., 2012 ONSC 4902, Cromb v. Bouwmeester, 2014 ONSC 5318, Alofs v. Blake, Cassels & Graydon LLP, 2017 ONSC 950, Chokler v. FCA Canada Inc. 2017 ONSC 4494, Conway v. Law Society of Upper Canada, [2016] O.J. No. 451, Gloucester Organization Inc. v. Canadian Newsletter Managers Inc. (1995), 21 O.R. (3d) 753, Ginkel v. East Asia, 2010 ONSC 905, Whiten v Pilot Insurance Co., [2002] S.C.J. No. 19, Family Delicatessen Ltd. V. London (City), 2006 CanLII 5135 (Ont. C.A), John Sopinka, Mark Gelowitz and David W. Rankin, The Conduct of an Appeal, 5th ed. (Toronto: Lexis Nexis, 2022)

MacKenzie v. Ottawa Community Housing Corporation, 2023 ONCA 43

Keywords: Administrative Law, Judicial Review, Standard of Review, Reasonableness, Statutory Interpretation, Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1, Part V, s 38, s 42(1), s 43(1), s 45, s 46(1), s 52(1), Ontario Regulation 367/11, made under the Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1, Sched. 2, s 28(1), s 28(2), Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, Briggs v. Durham (Police Services Board), 2022 ONCA 823, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Ali v. Peel (Regional Municipality), 2023 ONCA 41

McGrath v. Joy , 2023 ONCA 46

Keywords: Wills and Estates, Testamentary Capacity, Holographic Wills, Codicils, Civil Procedure, Appeals, Motions, Reconsideration, Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 6, Rules of Civil Procedure, rr. 37.14(6), 57.03(1) and 59.06(2), Pastore v. Aviva Canada Inc., 2012 ONCA 887, Mujagic v. Kamps, 2015 ONCA 360, Meridian Credit Union Limited v. Baig, 2016 ONCA 942, First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54, Antonyuk v. Antonyuk, 2022 ONCA 145, Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743

Sigma Capital Management Group Inc. v. Benzer Limited , 2023 ONCA 65

Keywords:Security for Costs, Legal Costs, Settlement Funds, Contractual Interpretation, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Edelstein v. Monteleone, 2017 ONSC 2717

Costanza v. Dejardins Financial Security Life Assurance Company , 2023 ONCA 54

Keywords: Insurance, Duty to Disclose, Civil Fraud, Evidence, Standard of Review, Insurance Act, R.S.O. 1990, c. I.8, s. 178, s. 183(1), ss. 183(3), s. 184(2), 189.1, Evidence Act, R.S.O. 1990, c. E.23, s. 22.1, Gregory v. Jolley (2001), 54 O.R. (3d) 481 (C.A.), Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, Palmer v. The Queen, [1980] 1 S.C.R. 759, F.(K.) v. White (2001), 53 O.R. (3d) 391 (C.A.), Andreadis v. Pinto (2009), 98 O.R. (3d) 701 (S.C.J.), Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, Frohlich v. Ferraro, 2017 ONCA 978

Dorsey v. Canada (Attorney General) , 2023 ONCA 64

Keywords: Constitutional Law, Habeas Corpus, Deprivation of Liberty, Intervenor Status, Friend of the Court, Public Importance, Habeas Corpus Act, R.S.O. 1990, c. H.1, Canadian Charter of Rights and Freedoms, ss. 7, 9, 10(c), and 12, Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 28, 29, Rules of Civil Procedure, r. 13, Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Chippewas of Nawash Unceded First Nation v. Canada (AG), 2022 ONCA 755, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, Foster v. West, 2021 ONCA 263, Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Huang v. Fraser Hillary's Limited, 2018 ONCA 277, R. v. Doering, 2021 ONCA 924, Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 749

Rabin v. 2490918 Ontario Inc. , 2023 ONCA 49

Keywords:Contracts, Commercial Leases, Assignment of Lease, Consent to Assignment, Withholding Consent, Reasonableness, Landlord and Tenant, Waiver, s. 23, Commercial Tenancies Act, R.S.O. 1990, c. L.7, Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P., 2011 ONCA 511, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, 1455202 Ontario Inc. v. Welbow Holdings Ltd. (2003), 33 B.L.R. (3d) 163 (Ont. S.C.), 2197088 Ontario Limited v. Cadogan Corporation, 2018 ONSC 3070, 6791971 Canada Inc. v. Eli Messica, 2020 ONSC 1642, Zellers Inc. v. Brad-Jay Investments Ltd., [2002] O.J. No. 4100 (Ont. S.C.), Jo-Emma Restaurants Ltd. v. A. Merkur and Sons Ltd. (1989), 7 R.P.R. (2d) 298 (Ont. S.C.), Tradedge Inc. (Shoeless Joe's) v. Tri-Novo Group Inc., 84 R.P.R. (4th) 84 (Ont. S.C.), Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2020 ONCA 453, Ruth Sullivan, Sullivan on the Construction of Statutes, 7th ed. (Toronto: LexisNexis Canada, 2022)

National Industries Inc. v. Kirkwood , 2023 ONCA 63

Keywords:Civil Procedure, Amending Pleadings, Motion to Strike, Jurisdiction, Res Judicata, Issue Estoppel, Abuse of Process, Plain and Obvious Test, Rules of Civil Procedure, rr. 21.01, 25.11, 26.01, Toronto (City) v. CUPE., Local 79, 2003 SCC 63, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, McIntosh v. Parent, [1924] 4 D.L.R. 420 (Ont. C.A.), Transamerica Life Canada Inc. v. ING Canada Inc. (2003), 68 O.R. (3d) 457 (C.A.), F.H. v. McDougall, 2008 SCC 53

Continental Currency Exchange Canada Inc. v. Sprott , 2023 ONCA 61

Keywords:Solicitor-Client Privilege, Litigation Privilege, Breach of Privilege, Stay of Proceedings, Presumed Prejudice, Rebuttable Presumption, Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, Etco Financial Corp. v. Ontario, [1999] O.J. No 3658 (S.C.), R. v. Babos, 2014 SCC 16, Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, R. v. Bruce Power Inc., 2009 ONCA 573, Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, O'Dea v. O'Dea, 2019 NLSC 206, Morneault v. Dynacorp Acquisition Ltd., 2006 ABQB 831, Dixon v. Lindsay, 2021 ONSC 1360

Short Civil Decisions

5000933 Ontario Inc. v. Mahmood , 2023 ONCA 58

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Breach, O. Reg. 332/12 Ontario Building Code

Bitaxis Estate v. Bitaxis, 2023 ONCA 66

Keywords: Wills and Estates, Certificates of Appointment of Estate Trustee with a Will, Testamentary Capacity, Civil Procedure, Notices of Objection, Neuberger v. York, 2016 ONCA 191, Johnson v. Johnson, 2022 ONCA 682

Austin v. House , 2023 ONCA 55

Keywords: Family Law, Custody and Access, Parenting Time, Decision-Making Responsibility, Variation, Civil Procedure, Motions to Change, s. 30 Assessment Motions, Costs, Appeals, Security for Costs, Summary Judgment, Vexatious Litigants, Fresh Evidence, Children's Law Reform Act, R.S.O. 1990, c. C.12., s.30, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140, Palmer v. The Queen, [1980] 1 S.C.R. 759, Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1

Lalande v. Lalande, 2023 ONCA 68

Keywords: Family Law, Financial Disclosure, Duty to Disclose, Non-Compliance, Motion to Strike, Roberts v. Roberts, 2015 ONCA 450, Family Law Rules, O. Reg. 114/99, r.1(8).

Hategan v. Frederiksen, 2023 ONCA 57

Keywords: Perfecting Appeal, Extension of Time, Delay, Setting aside Registrar's Dismissal, Prejudice, Oliveira v. Oliveira, 2022 ONCA 218, Issai v. Rosenzweig, 2011 ONCA 112

Ducharme v. Thibodeau, 2023 ONCA 60

Keywords: Wills and Estate, Notice of Objection, Withdrawal of Notice of Objection, Standing, Costs, Substantial Indemnity.

CIVIL DECISIONS

Corrigan v. Ontario , 2023 ONCA 39

[Doherty, Zarnett and Sossin JJ.A]

Counsel:

H. Mackay and H. McIvor, for the appellant
K.C., acting in person

facts:

In May 2020, the respondent commenced an action against the Crown, including a claim for damages. The respondent did not comply with the terms of s. 18(1) of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7 ("CLPA"), which provided that no proceeding that includes a claim for damages may be brought against the Crown unless, at least 60 days before the commencement of the proceeding, the claimant serves a specified form of notice on the Crown. S. 18(6) of the CLPA provided that an action commenced without complying with the notice requirements is a nullity "from the time the proceeding is brought".
In July 2020, Crown counsel requested the respondent discontinue her action due to non-compliance, but the respondent could start a new action 60 days after the discontinuance of the existing one, as the Crown would treat the service of the claim issued in May 2020 as the prior notice required under the CLPA. In August 2021, the respondent wrote to Crown counsel advising that she had brought a motion for default judgment and had been instructed to serve the motion on the Crown. Crown counsel advised that a motion to strike the claim would be brought at the same time as the motion for default judgment.

The motion judge found that the respondent failed to comply with the CLPA requirements, but dismissed the motion on the ground that the Crown had delayed in bringing its motion. The Crown appealed from the dismissal of its motion to have the respondent's statement of claim struck out as a nullity due to the failure of the respondent to comply with provisions of the CLPA.

issues:

Did the motion judge err in not striking the action?

holding:

Appeal allowed.

reasoning:

Yes.
Prior to the enactment of the CLPA, s. 7(1) of the Proceedings Against the Crown Act, provided that no action could be brought against the Crown unless prior notice of 60 days was given. It was consistently held under that legislation that proper notice was a precondition to a claim in damages against the Crown, that this requirement could not be abridged, and that an action commenced without proper prior notice was a nullity. It was also held that the requirement could not be waived.
The Court stated that the same approach should be followed under the CLPA. The Court found the motion judge's conclusion that the Crown was not entitled to have the action struck as a nullity for delay rewrites the legislation. It conditions the Crown's right to have the action treated as a nullity on the timing of the motion, a condition not found in the text. The Court further stated that this reasoning introduces a notion of waiver by delay that is inconsistent with the judicial interpretation of the prior legislation, which held that its requirements could not be abridged or waived.
The respondent argued that the motion judge was right to dismiss the Crown's motion because she had noted the Crown in default, and r. 19.02(1)(b) of the Rules of Civil Procedure prevents a defendant who has been noted from bringing a motion without leave. The Court rejected this argument. The procedural rule relied on by the respondent cannot trump the clear effect of the CLPA provision that required the Court to treat the action as a nullity. Moreover, s. 25 of the CLPA states that the Crown may not be noted in default without leave of the court, obtained on a motion made with notice to the Crown, and there was no evidence such leave was obtained.
The respondent also argued that an effect of the noting in default was that the defendant was deemed to admit the allegations in the claim. Since r. 21.01(1)(a), under which the Crown moved, is available only for questions of law that arise from the pleadings, and the only pleading was the claim, there was no basis to consider facts surrounding the failure to give notice. The Court disagreed, stating that a motion under r. 21.01(1)(a) permits evidence to be admitted at the discretion of the court. The Court concluded that the motion judge properly exercised his discretion to consider such evidence.
The respondent also argued that estoppel should operate to prevent the Crown from asserting that the action is a nullity. The respondent had brought an application to the Human Rights Tribunal of Ontario ("HRTO") which was dismissed because of the existence of the Superior Court action. Section 34(11) of the Human Rights Code, bars an HRTO application where there is an existing civil action dealing with the same alleged rights infringement. The respondent argued that the Crown got the benefit of the existence of the action for the purpose of the dismissal of the HRTO application and should be estopped from claiming the action was a nullity.
The Court was not satisfied that estoppel could have any effect on the operation of the CLPA given s. 18(6). Even assuming it could operate, the Court was not satisfied it would operate here. The motion judge made no findings that the respondent changed her position based on anything the Crown said to her or to anyone else, and he found the Crown acted in good faith throughout. The Court stated that the record was clear that the Crown unequivocally told the respondent that it considered the existing action against it to be a nullity. The Court noted that it was the respondent who not only persisted in maintaining the action but also commenced concurrent HRTO proceedings which created the overlap in proceedings. The Court struck out the statement of claim as against the Crown as a nullity.

Wong v. Li, 2023 ONCA 42

[Huscroft, Trotter and Harvison Young JJ.A.]

Counsel:

O.C. Wong, acting in person
D. Lawson, for the respondents

Keywords:Torts, Fraud, Misrepresentation, Breach of Fiduciary Duty, Law Society of Upper Canada v. Oscar Choi-Wah Wong, 2012 ONLSHP 0180, Law Society of Upper Canada v. Oscar Choi-Wah Wong, 2013 ONLSAP 0031, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, F.H. v. McDougall, 2008 SCC 53, R. v. G.F., 2021 SCC 20, R. v. Dinardo, 2008 SCC 24

facts:

The appellant OW is a real estate lawyer and the respondents JL and JY worked for OW as real estate clerks. The respondent RH is JL's husband. From about 2003 to 2010, both JL and JY worked for OW and were paid a percentage of fees collected from each real estate transaction. In 2007, the Law Society of Upper Canada ("Law Society"), now the Law Society of Ontario, began investigating OW's practice and commenced an application against OW based on his failure to supervise 24 transactions involving 12 properties. The transactions contained some irregularities, including a failure to advise lending institutions of financing details and a failure to obtain consent when acting for the lender, vendor, and purchaser on the same transaction.
OW admitted engaging in professional misconduct, including a failure to adequately supervise his staff, and the Law Society Hearing Panel ("Hearing Panel") initially suspended OW for four months and ordered $10,000 in costs. Upon the Law Society's appeal, the costs award was increased to $50,000 but the Hearing Panel dismissed the Law Society's appeal on the length of the OW's suspension, finding that although there was an egregious degree of abdication, which was systemic and troubling, the abdication was not total.
The appellant commenced an action against JL, JY, and RH alleging fraud, deceit/fraudulent misrepresentation, conspiracy, and breach of fiduciary duty relating to 14 transactions pertaining to 6 properties. The appellant alleged that the respondents used his law office as a platform to promote and facilitate fraudulent schemes and conspiracies.
At trial, the appellant had no independent recollection of the events concerning the processing of the impugned transactions. The respondents presented their interpretation of events and claimed they had done nothing wrong. The trial judge found for the respondents and dismissed all OW's claims against JL, JY, and RH.

issues:

(1) Did the trial judge err in his application of the test for civil fraud?
(2) Did the trial judge err in failing to adequately address the respondent JL's credibility?
(3) Did the trial judge err in not finding that the appellant was wronged by JL on the basis of equitable fraud?

holding:

Appeal dismissed.

reasoning:

(1) No.
The Court held that the trial judge correctly applied the test for civil fraud as set out in Bruno Appliance and Furniture, Inc. v. Hryniak after reviewing the transactions relating to the six properties in great detail. The elements of civil fraud are: (i) a false representation made by the defendant; (ii) some level of knowledge (or recklessness) of the representation on the part of the defendant; (iii) the false representation caused the plaintiff to act; and (iv) the plaintiff's actions resulted in a loss.
The Court noted that the trial judge found that some of the respondents' actions were disconcerting and their goal appeared to be inducing lenders to advance funds without full awareness of the circumstances; however, no false statements or misrepresentations were made to OW. There was no evidence that the respondent JL failed to respond to inquiries, lied, failed to provide information, or provided half-truths to OW. In two of the more problematic transactions, the respondent RH provided loans to a purchaser to assist with the purchaser's deposit obligations and there was a notation in the client's ledger that the loan was a deposit from the purchaser's lawyer. Though problematic, there was no evidence connecting the loan to JL and no evidence that she made a false misrepresentation pertaining to the transactions and thus the claim failed on this basis.
The Court held that although the transactions each had questionable features, the trial judge found no direct evidence that the appellant was defrauded by the respondents and the appellant failed to identify an overriding and palpable error in the trial judge's analysis.
(2) No.
The Court held that although the trial judge could have provided more detailed reasons on his acceptance of JL's evidence, insufficiency in this regard did not compromise the Court's ability to meaningfully review the trial judge's conclusions. A trial judge's credibility findings are owed considerable deference on appeal and any deficiencies in respect of a trial judge's credibility findings will rarely merit appellate intervention.
(3) No.
The Court upheld the trial judge's finding that JL did not engage in unconscionable conduct related to the appellant. The Court's holding on this issue was based on the appellant's failure to identify any legal error or a palpable and overriding error relating to the claim that the trial judge erred in not finding that JL engaged in equitable fraud as against OW.

Benbella v. The National Dental Examining Board of Canada, 2023 ONCA 56

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

Y. Hameed, for the appellant
M. Song and S. Coutu, for the respondent

facts:

The appellant was a dental school graduate. He was required to pass the certification process administered by the respondent, the National Dental Examining Board of Canada, to qualify for admission to the profession of dentistry in Canada. This certification process had two components: a written exam and an Objective Structured Clinical Examination ("OSCE").
The appellant attempted the certification process in November 2018. He passed the OSCE but failed the written exam. He re-wrote the written exam in March 2019 but again failed.
The respondent's by-laws entitled the appellant to have his written exams manually remarked. They were, but the results did not change. The appellant then sought to appeal the results of his written exam. He cited the respondent's by-laws in support of his claim that he was entitled to a "Special Appeal" before the respondent's Appeal Committee.

The "Special Appeal" rule provided that "The Appeals Committee has the power to establish procedures for the conduct of Appeals or Special Appeals. In making a determination, a panel will determine that the Appeal be upheld or dismissed, or make such other determinations that it deems reasonable and just." The respondent denied the appellant's request for a Special Appeal. It advised him that the only appeal available to him was the manual rescoring, which had already been done for both of his written exams. In response, the appellant commenced legal action against the respondent. The respondent filed a motion to strike the application, which was subsequently granted. The motion judge ordered that the application be struck in its entirety pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure as it disclosed no reasonable cause of action.

issues:

Did the trial judge err in granting a motion to strike?

holding:

Appeal dismissed.

reasoning:

No.
The Court confirmed that the standard of review is correctness and held that the motion judge correctly found it was plain and obvious that the appellant's application disclosed no reasonable cause of action.

The Court determined that the provisions of the by-laws must be read as a whole. The Court found that the appeal mechanisms are clearly stated in the by-laws. Nowhere within these provisions were there any stated substantive grounds of appeal from the failure of a written examination.

Accordingly, the Court agreed with the interpretation of the motion judge that when the by-laws are read as a whole, the appeal provisions must be distinguished from the clearly procedural "Special Appeals" provisions, which led to the ultimate conclusion that there is no right to a "Special Appeal". Thus, the Court held that there was no substantive right of appeal and the injunctive relief sought was rightly dismissed.

Ali v. Peel (Regional Municipality), 2023 ONCA 41

[Zarnett, Coroza and Favreau JJ.A.]]

Counsel:

A. Rosenbluth and R. Thompson, for the appellant
J. Bruce, for the respondent

facts:

The appellant appealed an order of the Divisional Court dismissing her application for judicial review of a decision by the respondent, the Regional Municipality of Peel (the "Region"). In its decision, the Region denied the appellant's request to be given special priority status on the waitlist for subsidized housing in Peel.

The appellant, who worked as a live-in caregiver, had sought special priority status because her employer had abused her. The appellant relied on a regulatory provision, made under the Housing Services Act, 2011, that gave special priority status for subsidized housing to people who have been abused. The provision defined abuse as including controlling behaviour, and included in the list of possible abusers those on whom people applying for subsidized housing are financially dependent.

The Region found that the appellant met the criteria for rent-geared-to-income housing, but denied her request to be placed on the special priority status list. The Region denied the appellant's special priority status because she was not in a familial relationship with her abuser and because her economic dependence on her abuser ended with the end of the employment relationship. The Divisional Court held that the Region's decision was reasonable because it was consistent with the relevant statutory scheme. The Divisional Court also noted that the Region's mandate was to allocate scarce resources amongst people with competing interests.

issues:

(1) What is the appropriate standard of review?
(2) Was the Region's decision reasonable?
(3) Did the divisional Court err in inserting its own rationale for denying the appellants request to be placed on the special priority list?

holding:

Appeal dismissed.

reasoning:

(1) The Reasonableness Standard is appropriate.
On an appeal from a decision of the Divisional Court on judicial review, the Court stated that it was to decide whether the Divisional Court identified the appropriate standard of review and applied it correctly. The Court held that the Divisional Court applied a reasonableness standard of review to the Region's decision. The Court, citing Canada (Minister of Citizenship and Immigration) v Vavilov, held that there was a presumption that the reasonableness standard applied unless a statute provided otherwise or a correctness standard is required by the rule of law. The Court noted no exceptions applied and the reasonableness standard was appropriate.

(2) Yes.
Prior to determining whether the Region's decision was reasonable, the Court reviewed the statutory scheme under the Housing Services Act. The Court found that section 47(1) of the Housing Services Act required the service manager to create "a system for selecting households from those waiting for rent-geared-to-income assistance in the housing projects in the service manager's service area." Section 47(2) of the Act specified that the system is to include "priority rules for households waiting for rent-geared-to-income assistance".
The Court found that the Regulation sets out the provincial eligibility rules for rent-geared-to income, including for placement on the special priority list. Section 54(1) of the Regulation specified that:(1) A household is eligible to be included in the special priority household category if,
(a) a member of the household has been abused by another individual;
(b) the abusing individual is or was living with the abused member or is sponsoring the abused member as an immigrant; and
(c) the abused member intends to live permanently apart from the abusing individual.
The Court noted that Section 1(2) prescribed the list of people who can be considered as abusers, and includes a person on whom the applicant is "financially dependent":
For the purpose of the definition of "abuse" in subsection (1), abuse is done by any of the following persons against an individual: [...]
3. A person on whom the individual is emotionally, physically or financially dependent. [Emphasis added.]
The Court stated that section 54(2) of the Regulation set out the conditions under which a person no longer living with an abuser can apply to be placed on the special priority list. This included where the application was made within three months of the person no longer living with the abuser.

The appellant argued that the Region's decision was unreasonable because 1) the Region improperly stated that the special priority list was limited to familial relationships; and 2) there was no basis for excluding employer/employee relationships from the category of financial dependence in the definition of abuser in s. 1(2) of the Regulation. The Court rejected these arguments.

First, the Court held that it was evident that the Region's reason for rejecting the appellant's request to be placed on the special priority list was not restricted to the fact that she was not in a familial relationship with her abuser. Rather, the Court held that the Region also rejected the appellant's request because it decided that employer/employee relationships are not the types of relationships that are meant to be given special priority status. The Court noted that in both the original decision and the appeal decision, the Region did refer to the appellant not being in a familial relationship with her abuser. The Court found that the Region had explained that the appellant was in an employee/employer relationship with him, and that this disqualified her from being placed on the special priority list.

The Court did not accept the appellant's argument that the Region's own policy improperly limits inclusion on the special priority list to people in a familial relationship with their abuser. While the title of the Region's policy refers to "victims of family violence", the Court held that the policy as a whole referred to all categories of potential abusers listed in s. 1(2) of the Regulation and did not restrict eligibility to circumstances where the abuser and applicant are in a familial relationship.

Second, the Court rejected the appellant's argument that the reference to financial dependence in s. 1(2) of the Regulation included employer/employee relationships. The Court held that in making this argument, the appellant improperly invited the Court to undertake its own interpretation of the Regulation. The Court noted that it was not the task of the Court to decide how the terms "financially dependent" should be interpreted and applied, but rather whether the Region's interpretation of those terms was reasonable in the context of the legislative scheme and the facts of the case.

The Court held that the terms "financially dependent" could not be considered in isolation but must be reviewed in the context of the legislative scheme as a whole. The Region was responsible for administering subsidized housing, including the special priority list. The Court held that the Region understood the historical context and purpose of special priority status. Thus, the Court found that it was reasonable for the Region to decide that an employee/employer relationship was not the type of financial dependence contemplated by the Regulation which would allow for placement on the special priority list.

(3) No.
The appellant argued that the Divisional Court improperly amplified the Region's decision by providing a rationale for the decision that the Region itself did not provide.
The Court held that the Court's role is to step into the shoes of the Divisional Court and review whether the Region's decision was reasonable. In light of that, the Court had no concerns with the Divisional Court's decision and found that it correctly applied the reasonableness standard of review in the circumstances of the case. The Court held that the Divisional Court did not give a different rationale or arrive at the outcome through a different analytical route than the Region. Rather, the Court found that the Divisional Court gave legislative and factual context to the Region's reasons for denying the appellant's request.

Horani v. Manulife Financial Corporation, 2023 ONCA 51

[Zarnett, Thorburn and Copeland JJ.A]

Counsel:

G.D.E. Adair, for the appellants
D.A. Zuber and N. Searles, for the respondent

facts:

The appellant tripped and fell at his workplace on August 5, 2014. The Statement of Claim was issued on November 20, 2015, and amended on January 19, 2017 to name a litigation guardian. The action was set down for trial on April 27, 2018. Pretrial conferences were held on January 7, 2021 and March 22, 2022. On both occasions, counsel for the parties advised the pre-trial judge that "pleadings were in order". Due to the COVID-19 pandemic, trial was pushed from March 2021 to May 16, 2022.

On April 1, 2022, roughly six and a half years after the action was commenced, and six weeks before the 32-day trial was to commence, the appellants sought leave to (1) add a claim for punitive damages in the amount of $2 million, and (2) increase the amount of damages claimed from $4 million to $7 million pursuant to Rule 48.04(1) of the Rules of Civil Procedure. The motion judge dismissed the appellants' request, but the trial date was lost due to the appeal.

The appellant submitted that (1) the motion judge's order was a final order that entitled them to bring their appeal to the Court, and that (2) the motion judge erred in law as "there was neither prejudice nor presumed prejudice causally related or flowing from the proposed amendment" that was non-compensable, as any delay or extra work that would result from the amendment were matters compensable in costs.

issues:

(1) Was the decision of the motion judge a final order?
(2) Did the motion judge err in refusing leave to amend the appellants' pleadings?

holding:

Appeal dismissed.

reasoning:

(1) Yes.

The Court stated that an appeal of the motion judge's decision was properly before the Court because the order finally disposed of the appellants' substantive right to claim punitive damages. In particular, orders refusing to permit a party to amend a pleading to advance an additional substantive claim or defence are final orders.

(2) No.

The Court stated that rule 48.04(1) provides that a party who has set an action down for trial shall not initiate or continue any motion or discovery without leave of the court. Under Rule 26.01, the court shall grant leave to amend a pleading unless it would result in prejudice that "could not be compensated for by costs or an adjournment". However, after an action has been set down for trial, some courts have required the moving party to show "a substantial or unexpected change in circumstances such that a refusal to make an order under Rule 48.04(1) would be manifestly unjust". Others courts have determined that leave be granted if the moving party can demonstrate that "the interlocutory step is necessary in the interests of justice". Without deciding which test is correct, the Court held that the appeal must be dismissed because the motion judge properly determined that allowing the appellants' proposed amendment would result in non-compensable prejudice.

The Court noted that, while the onus to prove actual prejudice lies with the responding party, the onus to rebut presumed prejudice arising from delay lies with the moving party. At some point, the delay will be so lengthy and the justification so inadequate that prejudice will be presumed. The motion judge made several findings in this regard, including: (1) the new claim included new facts and legal arguments, (2) responding to the new claim would require further production, discovery, and preparation, and (3) the appellants provided no explanation for the inordinate delay or any change in circumstances since the trial record was served. Based on these findings, the motion judge held that prejudice was presumed and that the appellants failed to rebut this presumption.

The Court found that the motion judge did not err in her analysis and the appellants offered no clear reason for the delay at the motion and no explanation was offered on appeal other than counsel's inattention. Further, the Court held that the motion judge correctly found that the prejudice was causally connected to the proposed amendment and was not compensable in costs because it would change the respondent's litigation strategy and potentially jeopardize an already delayed trial date. Finally, the Court noted that, although the motion judge did permit the amendment to the amount of regular damages, she offered a balanced approach and there was no evidence that she acted arbitrarily or capriciously in exercising her discretion to deny leave to bring a motion to add a claim for punitive damages.

MacKenzie v. Ottawa Community Housing Corporation, 2023 ONCA 43

[Zarnett, Coroza and Favreau JJ.A.]

Counsel:

L. Bisgould, S. Chapman and A. Rosenbluth, for the appellant

G. Langlais, for the respondent City of Ottawa

G. Cormier, for the respondent Ottawa Community Housing Corporation

J. Esmonde, D. Bisnar and A. Hanif, for the intervener Canadian Centre for Housing Rights (formerly the Centre for Equality Rights in Accommodation)

facts:

The appellant, CM, was eligible for rent-geared-to-oncome pursuant to the Housing Services Act (the "Act") and occupied a unit administered by the respondent, Ottawa Community Housing Corporation, with his two daughters. Recipients of the rent-geared-to-income subsidy are subject to annual review to ensure their continued eligibility, one requirement for eligibility is that recipients must report changes to their household composition within 31 days of the change and must not be absent from their unit for more than 60 consecutive days or 90 days in a year.

In 2018, CM faced criminal charges and his bail conditions required him to live with his surety, who was his mother, and prohibited him from having contact with his two daughters or residing or being alone with anyone under 16 years of age. CM's daughters were placed in the case of the Children's Aid Society. CM did not inform the respondents of his bail conditions and the resulting household changes.

In 2019, the respondents terminated CM's rent-geared-to-income subsidy because he failed to report the change to his household composition within 31 days and because his household had been absent from the unit for more than 60 consecutive days.

CM requested a review of the respondents' decision and a hearing was held before a three-member panel, which dismissed CM's review request (the "Review Decision"). In the Review Decision, the Review Panel found that CM failed to report the household change within the required 31 days and was absent from the unit for more than 60 consecutive days, contrary to the eligibility requirements. CM argued that the respondents' decision was not reasonable because he still resided in the unit during the day but spent the nights at his surety's house, and further that the removal of the children was only temporary. The Panel concluded that visiting his unit and storing his food and belongings there did not amount to living there as CM was legally bound to reside at his surety's residence. The Panel further held that a household occupying a unit for non-residential purposes is contrary to the purpose of the legislation, which is to provide rent subsidies to eligible households. Finally, there were no exceptional circumstances that would have justified CM's failure to report the change in his household composition or his extended absence from the unit. As a result, CM was required to pay full rent for his unit which, at the time of the decision, was an increase from $222 to $1,279 per month.

CM appealed the Review Decision to the Divisional Court, which dismissed CM's application for judicial review, finding that the respondents' decision was reasonable as it was based on the respondents' interpretation of the relevant statutory and regulatory provisions and the application of those provisions to CM's circumstances.

issues:

(1) What is the applicable standard of review?
(2) What is the statutory and regulatory scheme?
(3) Was the City respondents' finding that CM failed to report the change in his household's composition reasonable?
(4) Was the respondents' finding that CM was absent from the unit reasonable?
(5) Was the respondents' finding that there were no extenuating circumstances reasonable?
(6) What was the impact of the submissions made by the intervener?

holding:

Appeal dismissed.

reasoning:

(1)
The Court, citing Canada v. Vavilov, held that the appropriate standard of review was a reasonableness standard of review. On an appeal from a Divisional Court decision, the Court must conduct a de novo review of the administrative decision maker's decision and step into the shoes of the Divisional Court. In doing so, there is a presumption that the reasonableness standard of review applies unless a statute provides otherwise or a correctness standard is required by the rule of law. CM and the respondents agreed that no such exceptions apply. The Court held that the Divisional Court identified the appropriate standard of review of reasonableness.

(2)
The Court stated that Part V of the Act addresses the rent-geared-to-income assistance regime in Ontario. Pursuant to s. 43(1) of the Act, service managers are responsible for establishing "occupancy standards for determining the size and type of unit permissible for a household receiving rent-geared-to-income assistance." Section 46(1) of the Act also requires service managers to determine the size and type of unit an eligible household is entitled to occupy. Section 52(1) of the Act requires service managers to conduct periodic reviews to ensure that households receiving rent-geared-to-income assistance remain eligible for the assistance. Section 53 requires service managers to provide written notice when they determine that a household is no longer eligible for rent-geared-to-income assistance. Further, Ontario Regulation 367/11, under the Act sets out the provincial eligibility rules for receiving and continuing to receive rent-geared-to-income assistance (the "Regulation").

(3) Yes.
The Court held that the respondent City's determination that CM failed to report the change in his household composition was reasonable. CM argued that he did not report the change because he expected his daughters to be returned to him at the conclusion of the criminal proceedings and therefore that the change was temporary.

Section 28(1) of the Regulation provides that a household ceased to be eligible for rent-geared-to-income assistance if the household fails to notify the service manager of a change described in section 28(2), a change relevant to a household's eligibility. Pursuant to section 28(3), this change must be reported within 30 days and the respondents' rules state that a notice of change must be provided within 31 days.

The Court noted that a change in household composition is significant because of the amount of assistance each household receives is dependent in part on the number of people in the household. There was no dispute that CM's children stopped living with him in June 2018 due to his bail conditions and that he did not notify the respondents of this change. However, CM argued that the temporary nature of the change meant that he was not required to report it. The Court held that the respondent City's decision was reasonable as its reasoning and conclusion was logical and accords with the applicable factual and legal context of the case. There was no information as to whether or when the children would return to live with CM, as such the Court found it was reasonable for the respondent City to treat this as a change CM was required to report.

(4) Yes.
The Court held that the respondent City's determination of the meaning of "absent" in the rule that a resident must not be absent from their unit for 60 consecutive days or 90 days in a year was reasonable. CM argued that it was unreasonable for the City to find that he was absent from the unit given that he was present in the home throughout the day, and used the unit for all aspects of his daily life except for sleeping.

The Court held that the respondent City considered these facts but found that it did not amount to occupying the unit for residential purposes, which is what the rent-geared-to-income assistance is meant to assist with. The Court found this to be a reasonable interpretation as the respondent City considered the purpose of the legislative scheme and the factual context that includes: (1) providing housing assistance to people who have a low income and do not have another residence; and (2) a long waiting list for a limited number of available units.

The Court held that the benefits conferred under the Act are different from those conferred by other types of benefit conferring legislation. Due to the limited number of subsidies available for public housing and limited number of public housing units, allowing CM to maintain his unit for an extended period of time while unable to reside in it deprives another eligible household from residing at the unit. The Court further held that the respondents' role is to make decisions about eligibility and continued eligibility in the context of these competing interests. As such, the Court found that the respondent City's interpretation of the word "absent" was reasonable, given the circumstances.

(5) Yes.
The Court held that the respondent city's finding that there were no extenuating circumstances was reasonable because it considered whether there were extenuating circumstances and because CM did not provide any information that would give rise to extenuating circumstances. The Court further held that it was evident from the decision that the respondent City was aware of CM's criminal proceedings and the impact on his children, but it was entitled to conclude that these were not extenuating circumstances that would justify waiving the notice requirement. The Court stated that the decision was not unreasonable and was owed deference.

The Court further found that the presence of extenuating circumstances would have only impacted the issue of notice and not the issue of CM's absence from the unit and, in any event, CM's absence from the unit for more than the prescribed amount of time would justify terminating his rent-geared-to-income assistance.

(6)
The Court rejected the intervener's arguments. The Court reiterated that its role is not to interpret the Act afresh, but to decide whether the respondents' decisions are reasonable. The respondents arrived at a defensible interpretation of the Act, and the decisions were justified based on the factual circumstances of the case. The Court found that the respondents' decisions were reasonable and the international legal instruments relied on by the intervener did not affect that conclusion.

McGrath v. Joy, 2023 ONCA 46

[Gillese, Trotter and Nordheimer JJ.A.]

Counsel:

O. Niedzviecki, for the moving party D.R.
K.P. Nagrani, for the responding party M.R.M.

facts:

JPJ died by suicide on July 13, 2019. He left a signed two-page note, wholly in his own handwriting, in the pocket of his shorts (the "Suicide Note"). JPJ had previously made two wills: one in 2014 and another in 2016.

MRM is JPJ's stepson and one of two named beneficiaries in the Suicide Note. MRM brought an application to have the Suicide Note declared JPJ's valid will and admitted to probate (the "Application").

DR was a beneficiary under the 2016 will. Under its terms, DR was to receive JPJ's shares in two corporations. DR along with JPJ's wife, opposed the Application on the basis that MRM had failed to prove that JPJ had testamentary capacity to make a will when he wrote the Suicide Note. DR also took the position that, if the Suicide Note was valid, it should be considered to be a codicil to the 2016 will and not affect his inheritance.

The application judge noted that there was no dispute that the Suicide Note met the requirements in s. 6 of the Succession Law Reform Act (the "SLRA"), for a valid holographic will – the only issue was whether JPJ had testamentary capacity to make a will when he wrote the Suicide Note. Based largely on JPJ's consumption of alcohol and drugs the day before his death, the application judge held that MRM, as the propounder of the will, had not met the evidentiary burden of establishing JPJ's testamentary capacity when he wrote the Suicide Note and dismissed the Application. Consequently, the application judge said, it was not necessary that he consider DR's alternate submission that the Suicide Note should be considered a codicil to the 2016 will.

MRM appealed, raising two issues: did the application judge err in (1) determining that JPJ lacked testamentary capacity when he wrote the Suicide Note; and (2) his costs orders.
DR argued that, if the Suicide Note were found to be valid, it was "more correctly characterized" as a codicil to the 2016 will. The Court allowed the appeal and held that JPJ had testamentary capacity because he had a "sound disposing mind" when he wrote the Suicide Note: he understood the nature and effect of a will; he recollected the nature and extent of his property; he understood the extent of what he was giving under the will; and, he understood the nature of the claims that might be brought by a person excluded from the will.
Before an order reflecting the Court's decision had been taken out, DR brought a Motion asking the Court to re-open the appeal and re-hear submissions on whether the Suicide Note was a codicil to the 2016 will, rather than JPJ's will. He acknowledged that he had taken the position on the appeal that the Suicide Note could be a codicil and was "obviously not intending to disinherit DR" but did so without reference to statute and case law supporting his position. He also contended that para. 88 of the reasons implied there is no legal authority for a testator to create a handwritten codicil and, thus, has thrown this area of law into disarray.

issues:

(1) Does the Court have jurisdiction to reconsider its decision before a formal order is issued?
(2) What is the test to meet to reconsider a decision?
(3) Did DR meet the test for a reconsideration of the decision?

holding:

Motion dismissed.

reasoning:

(1) Yes.
The Court held that it had jurisdiction to reconsider its decision before a formal order had been taken out and, accordingly, the Court was not functus officio.

(2)
The Court stated that the party seeking to re-open an appeal after the appeal decision has been rendered faces a "high hurdle". Further, the Court stated that it will re-open an appeal prior to the entering of an order only in rare circumstance where it is in the interests of justice to withdraw the reasons of the Court and re-hear the case on the merits.

(3) No.
The Court found that DR had not raised the kind of "rare circumstance" where the interests of justice would require the Court to withdraw its reasons and re-hear the issue of whether the Suicide Note was JPJ's final will or a codicil to his 2016 will. The Court stated that DR had argued this issue on appeal and the Court had already expressly addressed the matter in its reasons.

Further, the Court held it would not be in the interests of justice to permit the matter to be re-argued. DR argued that para. 88 of the Court's reasons can be read as implying that, pursuant to s. 6 of the SLRA, a testator cannot make a holograph codicil. The Court clarified that para. 88, read in context, did not do this. The Court stated that in addressing whether the Suicide Note was more correctly characterized as a codicil, the Court had already determined that the Suicide Note was JPJ's valid will. Having left "everything" to two named beneficiaries by means of the Suicide Note, the Court determined that the Suicide Note could not be construed as a codicil to the 2016 will. However, the Court clarified, that it does not mean that a holograph will could never be construed to be a codicil pursuant to s. 6 of the SLRA.

Sigma Capital Management Group Inc. v. Benzer Limited, 2023 ONCA 65

[MacPherson, Hoy and Coroza JJ.A.]

Counsel:

M. Doyle and S. Jamshidimoghadam, for the appellants
C. Statham, for the respondent

facts:

The appellants, Benzer Ltd. ("Benzer") and its controlling shareholder, R. M., were ordered to distribute funds held in trust by Friedman Law Professional Corporation ("Friedman") following the settlement of two actions. The funds were paid to Freidman following the settlement of two related actions against KPMG for professional negligence: one commenced by the appellants (the "Benzer Action"), and the second by Komtech Inc. ("Komtech" and the "Komtech Action"). The two actions were consolidated.

Shortly before commencing the Komtech Action, Komtech had filed a notice of intention to make a proposal under the Bankruptcy and Insolvency Act. In connection with its insolvency, Komtech entered into an asset purchase agreement with 2279591 Ontario Inc. ("227") with respect to Komtech's assets, including the Komtech Action. 227 subsequently assigned the Komtech Action to Sigma Capital Management Group Inc. ("Sigma") in trust for the shareholders of Komtech and Sigma agreed "to assume all of the costs and expenses pertaining to [the Komtech Action] except for $200,000 of such costs and expenses, which shall be paid for by [227]" pursuant to s. 2 of an agreement dated April 26, 2011 (the "Assignment Agreement").

Section 2 of the Assignment Agreement further provided that "[f]or greater certainty at no time shall [227] have any liability for payment of any costs and expenses including legal fees and disbursements exceeding the sum of $200,000, Plus Taxes, if any."

The Assignment Agreement also provided, in s. 3, how 227 was to be compensated for undertaking this funding obligation, where it stated: "... to a maximum of the amount of the legal costs awarded, if any, and (ii) in addition to the amount referred to in paragraph 3(i), to pay to [227] 15% of the net amounts recovered from, in connection with or out of, the [Komtech] Action, minus the legal costs awarded to [Sigma]."

In a second agreement (the "Assumption Agreement"), Benzer assumed 227's funding obligation under the Assignment Agreement in consideration of the assignment to it of 227's rights under s. 3 of the Assignment Agreement.

In October 2016, KPMG moved for security for costs against Sigma and Sigma was ordered to pay, and paid, $250,000 into court in respect of the Komtech Action. It raised this amount from its shareholders. The appellants were not ordered to pay security for costs in respect of the Benzer Action; however, Benzer is a shareholder of Sigma and paid its proportionate share of the security for costs Sigma was ordered to pay.

In 2019, the appellants and Sigma accepted KPMG's offer to settle the Benzer Action and the Komtech Action. The offer was that 1) KPMG would pay to the plaintiffs the all-inclusive sum of $130,000 and consent to an order in the Komtech Action releasing the monies posted as security for costs to the plaintiffs, and 2) the actions would be dismissed on a without costs basis and the parties would exchange full and final releases.

On May 24, 2019, the appellants, Sigma, and KPMG signed a Mutual Full and Final Release and the sum of $130,000 (the "Settlement Funds") was paid to Friedman. The monies that had been posted as security for costs in respect of the Komtech Action, plus accrued interest (the "Security Funds"), were paid out of court and deposited in trust by Friedman.
No agreement was ever reached by the parties as to how the funds were to be apportioned. Friedman was paid $44,780.10 on account of unpaid legal fees with respect to the Benzer Action and the Komtech Action and Sigma brought the application for an order as to the distribution of the remaining funds.

The appellants appealed the judgment of the application judge which found 1) Benzer was not entitled to be reimbursed for the costs and expenses pertaining to the Komtech Action that it had paid under s. 3(i) of the Assignment Agreement because no costs had been awarded and 2) the Security Funds should not be included in calculating Benzer's entitlement under s. 3(ii) of the Assignment Agreement.

issues:

(1) Did the application judge err in concluding that Benzer was not entitled to be reimbursed for the costs and expenses pertaining to the Komtech Action that it had paid under s. 3(i) of the Assignment Agreement?
(2) Did the application judge err in concluding that the Security Funds should not be included in calculating Benzer's entitlement under s. 3(ii) of the Assignment Agreement?

holding:

Appeal dismissed.

reasoning:

(1) No.
The Court held that the application judge carefully instructed herself as to the applicable principles of contractual interpretation. Her interpretation was a question of mixed fact and law subject to appellate review on the deferential standard of palpable and overriding error, unless there was an extricable error of law: Sattva Capital Corp. v. Creston Moly Corp. The Court held that the appellants failed to identify a palpable and overriding error or an extricable error of law.

The Court held that the application judge did not commit an extricable error of law by failing to consider the wording of the Assumption Agreement in concluding that Benzer was not entitled to reimbursement pursuant to s. 3(i) of the Assignment Agreement. Pursuant to the Assumption Agreement, 227 assigned to Benzer, all of 227's "rights, title and interest in and to the reimbursement of the Costs [...]". Costs are defined in the Assumption Agreement as the expenses and costs pertaining to the Komtech Action. 227's right to reimbursement of the Costs is pursuant to the Assignment Agreement between 227 and Sigma. 227 could not assign a greater right of reimbursement to Benzer under the Assumption Agreement than it had bargained for under the Assignment Agreement. The Court found that Sigma was not a party to the Assumption Agreement.

The appellants argued that the phrase "to a maximum of the legal costs awarded, if any" found in the Assignment agreement only applies where legal costs are awarded. In other words, "if any" only modifies "to the maximum of the legal costs awarded" and has no application if no costs are awarded. The appellants submitted that application judge's interpretation leads to an absurdity because percentage of compensation in s. 3(ii) does not, in all cases, provide adequate compensation to a litigation funder required to advance up to $200,000.

The Court agreed with the application judge stating that the fact that an agreement provides for different levels of compensation to a litigation funder depending on whether costs were awarded was not an absurdity.

(2) No.
The Court held that there was no basis to interfere with the application judge's characterization of the security for costs paid as analogous to a litigation expense. Further, the Court noted that the application judge had reviewed the cases cited by the parties, but their usefulness was limited given that the cases were fact and contract specific and did not provide assistance as to how the specific agreements were to be interpreted in light of the circumstances of the case. The Court concluded that there was no reviewable error.

Costanza v. Dejardins Financial Security Life Assurance Company, 2023 ONCA 54

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

Counsel:

N. Bonder and A. White, for the appellant
A.L. McFadden and J.P. Cavanagh, for the respondent

Keywords:Insurance, Duty to Disclose, Civil Fraud, Evidence, Standard of Review, Insurance Act, R.S.O. 1990, c. I.8, s. 178, s. 183(1), ss. 183(3), s. 184(2), 189.1, Evidence Act, R.S.O. 1990, c. E.23, s. 22.1, Gregory v. Jolley (2001), 54 O.R. (3d) 481 (C.A.), Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, Palmer v. The Queen, [1980] 1 S.C.R. 759, F.(K.) v. White (2001), 53 O.R. (3d) 391 (C.A.), Andreadis v. Pinto (2009), 98 O.R. (3d) 701 (S.C.J.), Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, Frohlich v. Ferraro, 2017 ONCA 978

facts:

On January 9, 2012, DC ("the deceased" or "the insured") applied for life insurance. Question 21(a) of the application asked the following question: "In the last 3 years, have you been convicted of or pleaded guilty to any criminal offence or any moving violations or driving under the influence of alcohol or drugs?" The deceased answered "no". On February 9, 2012, the insurer issued the life insurance policy to the deceased ("the policy"). The policy contained a life insurance benefit of $500,000 and designated the respondent, JPC, as the primary beneficiary. The respondent is the deceased's son.

On December 3, 2017, DC was shot and killed. On December 4, 2017, the respondent made a claim under the insurance policy. The insurer refused the claim and took the position that the deceased made a material and fraudulent misrepresentation on his application for life insurance asserting that the deceased's answer to Question 21(a) was false. The insurer claimed that the deceased was convicted of assault causing bodily harm and sentenced to 90 days imprisonment on March 11, 2009 – 2 years, 9 months, and 29 days prior to the day he submitted the application for insurance.

The policy contained an incontestability clause, which stated: "Except for nonpayment of premiums, we will not contest the Basic Plan after it has been in force during the Insured's lifetime for 2 years from the Policy Date." At the time of the deceased's death, the policy had been in effect for more than five years. The deceased paid all premiums as required on the policy.

The respondent sought a declaration that the policy was valid, subsisting, and binding on the insurer. The insurer argued that the policy was voidable due to fraudulent non-disclosure or misrepresentation by the deceased in the application for insurance.

The application judge found that the insurance policy was valid and concluded that the insurer had not proven on a balance of probabilities that the deceased obtained the insurance through fraudulent non-disclosure or misrepresentation.

The application judge noted that an insured has a duty to make full disclosure of material facts to an insurer and that the duty is codified under s. 183(1) of the Insurance Act (the "Act"). She recognized that a failure to disclose or a misrepresentation of material fact renders the contract voidable pursuant to ss. 183(3) and 184 of the Act. However, s. 184(2) establishes that, where a contract has been in effect for two years during the lifetime of the person whose life is insured, a failure to disclose a material fact or misrepresentation of fact does not, in the absence of fraud, render the contract voidable.

The insurer argued that the policy was voidable on two bases. First, the insurer argued that the deceased had made a fraudulent material misrepresentation in answering "no" to question 21(a), which asked if he had "been convicted of or pleaded guilty to any criminal offence or any moving violations or driving under the influence of alcohol or drugs" in the last three years. Second, the insurer argued that the deceased was obliged to disclose the fact that he had a "criminal history" or "criminal background", and had failed to do so. The insurer argued that this was a material non-disclosure.

The insurer had filed a partial printout from the Canadian Police Information Centre, purporting to list information of criminal convictions of the deceased (the "CPIC printout"). The CPIC printout included the following entry: "2009-03-11. Brampton, ON. Assault CBH, SEC 267 (B) CC, 90 days and mandatory weapons prohibition SEC 109 CC".

The application judge found that the CPIC printout was not sufficient evidence to prove that the deceased was convicted of assault on March 11, 2009, because it was not authenticated in any way. The application judge found that there was no evidence to confirm whether the March 11, 2009 date represented a date of conviction, imposition of sentence, or some other date. She noted that a CPIC printout is a police record, not a court record and the insurer had chosen not to file a certified copy of the Information or Indictment or any other court record.
The application judge was not satisfied on a balance of probabilities that any misrepresentation by the deceased in his answer to question 21(a) was made with knowledge that it was false or with recklessness as to its truth or falsity. The insurer had argued that the deceased must have known that the conviction was within three years of the application because he served time in custody. The application judge found that this argument was based on a misconception of the criminal process. She found that the deceased could have been mistaken in calculating when he was convicted due to multiple court appearances that are part of criminal proceedings. She found that it was at least as likely, if not more likely, that the deceased was mistaken or merely negligent as to the date of conviction when he filled out the application for insurance.

The application judge then considered the insurer's argument that the deceased made a material non-disclosure in failing to disclose a "criminal history" or "criminal background". The insurer relied on two printouts of online news articles posted days after the deceased was killed.

Based on these news articles, the insurer argued that the deceased was known to police, that his murder was believed to be targeted and related to a dispute over money or drugs. The application judge ruled the news articles to be inadmissible and unreliable. They were a "dangerous" type of hearsay, "namely rumour and unsubstantiated innuendo." She found that the fact that the news articles asserted that "the police" said the deceased was involved in criminal activity was not evidence that the deceased was, in fact, involved in criminal activity.
As a result of the inadmissibility and unreliability of the news articles, the application judge was not satisfied that the deceased had a criminal history or background or that the insurance policy was voidable for failure to disclose it.

issues:

(1) Should the Court grant the motion to admit fresh evidence?
(2) Did the application judge err in finding that the insurer had not proven that the deceased had been convicted of assault causing bodily harm in the three years preceding his application?
(3) Did the application judge err in law in her application of the test for civil fraud?
(4) Did the application judge err in finding that the deceased's representation that he had not been convicted of a criminal offence in the three years preceding his application had not been proven by the insurer to have been made with knowledge that it was false or with recklessness as to its truth or falsity?
(5) Did the application judge err in finding that the insurer had not proven that the deceased had a "criminal history" or "criminal background" that he failed to disclose?

holding:

Appeal dismissed.

reasoning:

(1) No.
The Court clarified that the four-part test for admissibility of fresh evidence is well-established: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result (the "Palmer test").

The insurer sought to introduce a certified copy of an Indictment relating to the deceased. The certified copy of the Indictment establishes the fact that the deceased was convicted of assault on February 2, 2009, and was sentenced to imprisonment. February 2, 2009 is over 2 years prior to the submission of the insurance application by the deceased.
The respondent conceded that the fresh evidence met the second and third branches of the Palmer test. Thus, the Court only addressed the first and fourth branches of the test. The Court found that the first branch of the Palmer test was complicated by admissions made by BS, the ex-common-law partner of the deceased, and the mother and litigation guardian of the respondent. The Court noted that in cross-examination, BS agreed that the deceased was convicted of assault in March of 2009.

The Court agreed with the insurer that it had satisfied the due diligence branch of the Palmer inquiry. In her evidence on the application, BS admitted the fact of the deceased's assault conviction, but took the position that any incorrect statement in the insurance application was made by mistake. It was in the Court's view, given BS's unequivocal admissions about the conviction, there was no failure of due diligence by the insurer in not obtaining and filing a certified copy of the Indictment before the application judge. Based on the admissions made by BS, the Court found that the insurer was entitled to rely on the admissions by BS on behalf of the respondent.

In regards to the fourth branch, the Court found that fresh evidence could not reasonably be expected to affect the result of the application. The Court found that the fresh evidence would not materially change the factual basis relied on by the application judge to find that the insurer failed to meet its burden to prove that if there was a misrepresentation in the answer to question 21(a) it was made fraudulently.

(2) Yes.
The Court agreed with the insurer that the application judge made a palpable and overriding error of fact when she did not address admissions made by BS. However, the Court noted that the error was more of a fundamental error of procedural unfairness to the insurer. In the Court's view, the failure of the application judge to address the admissions of BS in relation to the conviction constituted a palpable and overriding error in the application judge's conclusion that the insurer had not proven that the deceased was convicted of a criminal offence in the three years preceding the insurance.

The Court found it was procedurally unfair to disregard the clear admissions by BS about the conviction, which the insurer had relied on, without giving the insurer an opportunity to provide further evidence on the issue. However, the Court clarified that their conclusion should not be read as suggesting that a CPIC printout is sufficient proof of a prior conviction in the absence of an admission. The Court explained that the proper method to prove the existence of a criminal conviction, if not admitted, is with a certified copy of the Indictment or Information. The Court held that the fresh evidence could not reasonably be expected to affect the result of the application.

(3) No.
The Court found that the argument raised a question of law and the standard of review was correctness. The Court found that there can be no doubt that the application judge applied the correct legal standard for the intent for civil fraud and held that the fresh evidence had no bearing on the ground of appeal. Thus, the Court found that the insurer's grounds provided no basis to conclude that the fresh evidence could reasonably be expected to affect the result of the application.

(4) No.
The Court stated that the issue regarding whether knowledge or recklessness had been proven by the insurer are questions of fact or mixed fact and law and are reviewed on a palpable and overriding error standard. The Court established that the insurer bore the burden of proof to establish that the deceased made the incorrect representation in his answer to question 21(a) knowingly or recklessly. The Court concluded that the insurer failed to show any palpable and overriding error in the findings of fact and the application judge's findings were entitled to deference.

(5) No.
The Court clarified that an appeal is not a forum to advance new arguments. The Court found that the insurer did not rely on the CPIC printout or any specific criminal conviction(s) in its argument before the application judge that the deceased failed to disclose his "criminal history" or "criminal background". Rather, the Court found that insurer chose to rely only on the news articles. The Court held that it would be inappropriate to allow the insurer on appeal to fundamentally change the basis on which their argument was made.

Dorsey v. Canada (Attorney General), 2023 ONCA 64

[Sossin J.A. (Case Management Judge)]

Counsel:

J. Orkin, A. Weaver, S. Borys, and K. Mitchell, for the appellants
J. Provart and W. Wright, for the respondent
P. Quick, for the intervener John Howard Society of Canada
G. Philipupillai and S. Moyo, for the proposed intervener the Black Legal Action Centre
J.D. Rose, for the proposed intervener the Canadian Association of Elizabeth Fry Societies
N.R. Hasan and D. Goudge, for the proposed intervener the Canadian Civil Liberties Association
A. Craig, for the proposed intervener the Canadian Prison Law Association

facts:

This case involved a challenge to the application of the law of habeas corpus. The appellants applied for a writ of habeas corpus ad subjiciendum for orders that they be transferred to minimum-security institutions unless the respondent, on behalf of he Correctional Service of Canada, can justify their continued detention in a medium-security institution. The Canadian Civil Liberties Association (the "CCLA"), the Black Legal Action Centre (the "BLAC"), the Canadian Association of Elizabeth Fry Societies (the "CAEFS"), and the Canadian Prison Law Association (the "CPLA") sought leave to intervene as friends of the court.

Canada opposed these motions either on the basis that the interveners would introduce new issues on appeal or that their proposed submissions are duplicative of the appellants' argument. The moving parties each argue that the nature of the issues before the court are of constitutional and public importance, which transcend the immediate parties.

The CCLA is a well-recognized national organization dedicated to the furtherance of civil liberties in Canada. One of CCLA's major objectives is the protection of the rights of prisoners and detainees from arbitrary or excessive use of power, with a focus on issues and cases that result in broad, systemic change. The CCLA submitted that any state decision, which results in an ongoing deprivation of liberty and is substantially inconsistent with the least restrictive option, always triggers habeas corpus.

The BLAC is a not-for-profit legal clinic with the mandate to address individual and systemic anti-Black racism in Ontario. The BLAC has specialized knowledge on anti-Black racism in the criminal system. Given its expertise, the BLAC can provide the court with the unique perspective of the impact of denying access to habeas corpus review for a denial of a transfer to a lower security institution on Black inmates. The BLAC submitted that it would make a useful contribution by focusing its arguments on the impacts of denying habeas corpus review on Black inmates, through the lens of substantive equality and s. 15 Charter values.

CAEFS is the non-profit association of the community-based Elizabeth Fry Societies. The objective of the CAEFS includes addressing and promoting the human rights of criminalized women, trans, non-binary and Two-Spirit people. CAEFS also has significant involvement with Indigenous women who are disproportionately represented among the women CAEFS serves. CAEFS submitted that it will make a useful contribution by submitting that the court should consider substantive equality as a factor in their determination of whether a particular continuing deprivation of liberty attracts Charter protection.

The CPLA is a national organization made up of lawyers, paralegals, and academics who work on behalf of federal and provincial inmates in the provision of legal services, research on prison law issues, and in making representations to legislative and government bodies. The CPLA submitted that it would make a useful contribution by contrasting the constitutional and statutory protection of the liberty interests at stake in transfer decisions, and why such interests may be disregarded in light of the asymmetrical, policy-based decision-making structures and the institutional factors that may often pull against the least restrictive principle.

issues:

Should intervenor status as friends of the court be granted for the moving parties?

holding:

Motions granted.

reasoning:

Yes.

The Court noted that there are four criteria in determining whether to grant intervenor status: (1) the nature of the case, (2) whether contributions will be useful, (3) potential injustice to the parties, and (4) the terms of intervention. The Court held that each of the criteria favour granting intervention in this case.

First, the Court held that the issue before the court is whether refusal of transfers to a lower security institution amounts to a deprivation of liberty such that the writ of habeas corpus is available. Habeas corpus is a constitutional right entrenched in s. 10(c) of the Charter and is a legal remedy that is fundamental to the protection from unlawful deprivations of liberty. The issue before the court is of public importance and transcends the immediate parties. Furthermore, the Court noted that as a dispute involving the state, the more onerous standard for interventions in private disputes does not apply. Canada argued that the nature of this case was not suited for intervenors because habeas corpus applications are meant to be an expeditious process. The Court disagreed stating that this is not a standard habeas corpus application and relates to a threshold issue regarding what constitutes a "deprivation of liberty" such that that habeas corpus is available.

Second, the Court stated that each proposed intervenor is well-positioned to assist the court as they are all established and reputable organizations with specialized knowledge and expertise. Third, the Court noted that there is no injustice to the parties from the positions of the proposed interveners as they do not inappropriately weigh in on the actual merits of the appeal. Rather, the proposed interveners are advancing legal arguments that are properly the subject of an intervention. Canada argued that it would face injustice because each proposed intervenor is aligned in interest with the appellants. The Court disagreed for three reasons: (1) intervenors do not need to be disinterested to obtain status, (2) it is particularly important in appeals involving the state and raising issues of public importance that the court hear from different perspectives, and (3) any potential injustice can be cured through appropriate terms of intervention.

Rabin v. 2490918 Ontario Inc., 2023 ONCA 49

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

M. Drudi, for the appellant
P. Gribilas, for the respondent

Keywords: Contracts, Commercial Leases, Assignment of Lease, Consent to Assignment, Withholding Consent, Reasonableness, Landlord and Tenant, Waiver, s. 23, Commercial Tenancies Act, R.S.O. 1990, c. L.7, Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P., 2011 ONCA 511, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, 1455202 Ontario Inc. v. Welbow Holdings Ltd. (2003), 33 B.L.R. (3d) 163 (Ont. S.C.), 2197088 Ontario Limited v. Cadogan Corporation, 2018 ONSC 3070, 6791971 Canada Inc. v. Eli Messica, 2020 ONSC 1642, Zellers Inc. v. Brad-Jay Investments Ltd., [2002] O.J. No. 4100 (Ont. S.C.), Jo-Emma Restaurants Ltd. v. A. Merkur and Sons Ltd. (1989), 7 R.P.R. (2d) 298 (Ont. S.C.), Tradedge Inc. (Shoeless Joe's) v. Tri-Novo Group Inc., 84 R.P.R. (4th) 84 (Ont. S.C.), Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2020 ONCA 453, Ruth Sullivan, Sullivan on the Construction of Statutes, 7th ed. (Toronto: LexisNexis Canada, 2022)

facts:

The appellant tenant had run a dentistry practice from the leased premises throughout his 44-year tenancy. The respondent acquired the building with the view of demolishing it and redeveloping the property at some time in the future. The appellant's lease expired on December 31, 2025. There was a five-year option to renew.

The appellant wished to semi-retire, and sought to sell his business to two dentists. As part of the sale of his practice, the appellant sought the respondent's consent, as landlord, to the assignment of the lease under article 11.1 of the lease. Article 11.1 stated that the respondent shall, within 15 days, notify the tenant whether or not it consented to the assignment of the lease. In accordance with the lease, on February 2, 2021, the appellant, through his real estate lawyer, gave the respondent the requisite formal written notice of the assignment. The respondent did not provide any response within the 15-day deadline. The respondent, several days after the deadline, stated that consent would be provided if a demolition clause was added to the lease. This was not accepted by the appellant.

On March 12, 2021, after the respondent had reviewed the proposed purchaser's credit application, the respondent informed the appellant that it was not consenting to the assignment. The appellant, after several more attempts to secure consent, commenced an application.

The application judge concluded that the appellant had waived the requirement under article 11.1(a) of the lease that the respondent provide its consent within 15 days of receiving the appellant's notice of its intent to assign the lease. The application judge determined that the appellant had failed to show that the respondent had either refused to consent to the assignment or unreasonably withheld its consent. As a result, the application was dismissed without prejudice.

The appellant appealed the dismissal of his application for an order under s. 23(2) under the Commercial Tenancies Act ("CTA") to require the respondent landlord to consent to the assignment of the lease. The appellant submitted that the application judge erred in finding that the appellant had waived the respondent's neglect or refusal to provide its consent within the 15-day deadline set out in the lease or at all, and in failing to find that the respondent had unreasonably withheld its consent to the requested assignment.

issues:

(1) Did the application judge err in finding that the appellant had waived the 15-day notice period under article 11.1(a) of the lease?
(2) Did the application judge err in not focusing his analysis on s.23 of the CTA?

holding:

Appeal allowed.

reasoning:

(1) Yes
The Court held that the application judge applied the doctrine of waiver when it was not raised or argued by the parties and had erred in his application of the doctrine of waiver. The Court held that the application judge correctly found that the respondent had failed to respond to the appellant's request for its consent to the assignment of the lease, but failed to consider the consequences of that failure to provide a timely response.

The Court held that it is not open to a judge to dispose of a material issue in a proceeding on a basis that has not been raised or argued by the parties. The Court held that the application judge relied on the doctrine of waiver to dispose of the material issue of the respondent's compliance with article 11.1(a) of the lease without giving the parties the opportunity to make appropriate submissions. The Court found that this alone warranted the setting aside of the application judge's decision.

The Court held that the application judge had erred when he made no reference to this "stringent test" in determining whether waiver had occurred. The Court held that he failed to consider whether the February 18 follow-up email by the appellant's real estate lawyer amounted to an unequivocal and conscious intention to abandon the appellant's right to insist on the respondent's compliance with article 11.1(a) and to rely on the consequences when the respondent failed to respond. The Court found that when the doctrine of waiver is correctly applied, the February 18 email could not be construed as a waiver. The Court noted that, as the appellant's real estate lawyer attempted to resolve the respondent's failure to respond in order to close the transaction for his client did not amount, without more, to a waiver of the appellant's rights or of the respondent's defective performance.

(2) Yes
The Court held that as neither party had raised the issue of waiver, the application judge's analysis should have focussed on the relevant lease provisions and s. 23 of the CTA to determine whether the respondent had neglected or refused to give its consent to the requested assignment, and, if so, whether consent was unreasonably withheld. Subsection 23(1) of the CTA stipulates that a landlord's consent to an assignment is not to be unreasonably withheld, unless the lease expressly provides to the contrary.

The Court held that article 11.1 of the lease provided that the respondent's consent to any assignment by the appellant was required but that the respondent's consent was not to be unreasonably withheld, subject only to article 11.1(a), which required the appellant to provide written notice of the assignment to the respondent and certain additional information if required by the respondent, and which required the respondent to advise the tenant if it would consent or not within 15 days. The Court noted that, as the CTA did not define refusal, neglect, or consent, those words were presumed to have their ordinary meaning.
The Court, citing 1455202 Ontario Inc. v. Welbow Holdings Ltd., held that there were six principles to be applied in determining whether a landlord reasonably withheld consent to an assignment:

i. The burden is on the tenant to satisfy the court that the refusal to consent was unreasonable.
ii. It is the information available to – and the reasons given by – the landlord at the time of the refusal – and not any additional, or different, facts or reasons provided subsequently to the court – that is material.
iii. The question must be considered in the light of the existing provisions of the lease that define and delimit the subject matter of the assignment as well as the right of the tenant to assign and that of the landlord to withhold consent.
iv. A probability that the proposed assignee will default in its obligations under the lease may, depending upon the circumstances, be reasonable ground for withholding consent.
v. The financial position of the assignee may be a relevant consideration.
vi. The question of reasonableness is essentially one of fact that must be determined on the circumstances of the particular case, including the commercial realities of the marketplace and the economic impact of an assignment on the landlord.
Applying these principles, the Court held that the appellant had met his burden to satisfy the court that the respondent neglected and also refused to consent unreasonably. The Court held that this was evidenced by the respondent's neglect to respond to the request for consent within the 15-day time limit.

In determining whether that amounted to an unreasonable withholding of consent, the Court considered the reasons offered by the respondent for its failure to respond within the 15-day period provided for in the lease. The Court found that, given that the appellant had notified the respondent in December that he was going to seek the assignment and that time was of the essence, the formal request in February should have come as no surprise nor should the necessity of responding within the 15-day period. In the Court's view, the neglect to consent within time amounted to an unreasonable withholding of consent.

The Court also found that the application judge had erred by failing to find that the respondent had subsequently refused its consent and that its consent was unreasonably withheld, as indicated in its real estate lawyer's emails of February 24 and March 12 and by its unreasonable and last-minute request for financial information in its litigation lawyer's email of March 23. The Court noted that the respondent had sought only the insertion of a demolition clause within the 15-day response period. This, the Court held, was a landlord's attempts to obtain an amendment to the lease for its own benefit in exchange for providing consent, which has consistently been characterized as an unreasonable withholding of consent. As such, the respondent was not entitled to require a demolition clause as a precondition to giving consent, and the Court held that this "conditional consent" amounted to an unreasonable withholding of consent.

National Industries Inc. v. Kirkwood, 2023 ONCA 6

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

Counsel:

J.R. Morse, D. Trafford and E.A. Cherniak, for the appellants
R.W. Traves and N.D. Kolos, for the respondents

facts:

In 2007, the appellants decided to build a new plant in Alabama. In 2013 the appellants' CEO was indicted on securities fraud offences in Alabama in connection with the operation of the project. In 2014, those charges were settled by the payment of USD $22 million, which the appellants funded. The appellants sought indemnification for the settlement payment pursuant to Directors and Officers liability ("D&O") insurance policies that the appellants had arranged through their long-standing insurance broker, the respondent.

In 2016, the appellants issued a statement of claim against the respondents alleging that the non-disclosure occurred because of the respondents' negligence and the breach of their fiduciary duty. In 2017, the appellants brought a motion to amend their statement of claim, which was denied because the Master found that the proposed amendments constituted new causes of action outside of the limitation period. The appellants' appeal to the Divisional Court was denied.

The respondents subsequently consented to certain amendments to the statement of claim. However, when the appellants served them a copy, there was an omission that would have made it clear that the agreed upon timeframe for the claim was limited to 2010 and 2011. Therefore, the respondents delivered a Demand for Particulars seeking the time period for allegations of negligence pleaded. In response, the appellants identified the time frame being 2007 to 2011. The respondents brought a motion to strike out the certain portions of the Response and Reply based on the doctrines of res judicata, issue estoppel, and abuse of process. The motion judge granted the relief sought because the appellants attempted to relitigate issues resolved by the Master in the pleadings motion.

issues:

(1) Did the motion judge err in deferring to the Master?
(2) Did the motion judge err by effectively giving the Master's decision effect beyond her jurisdiction?
(3) did the motion judge err in a Rule 21 motion by applying res judicata, issue estoppel, and abuse of process to a pleadings decision of an associate justice?
(4) Did the motion judge err by applying res judicata, issue estoppel and abuse of process to the master's reasoning rather than to her decision?
(5) Did the motion judge err by failing to apply the "plain and obvious" test?
(6) Did the motion judge err in failing to find that the pleadings could be interpreted to include events in 2008 and 2009?
(7) Did the motion judge err by failing to apply the correct test?

holding:

Motion dismissed.

reasoning:

(1) No.
The appellants argued that the motion judge was obliged, in a motion to strike hearing, to conduct his own assessment of the grounds for striking the pleadings. The Court noted that the appellants mischaracterized the motion judge's ruling. The motion judge undertook his own assessment and found as a matter of law that, given the necessary findings that the Master had made in resolving the pleadings motion, the causes of action in the pleadings that were the subject of the motion to strike before him were prohibited by the re-litigation doctrines. The Court held that the outcome was not the result of deference but rather the result of the motion judge's independent assessment.

(2) No.
The appellants submitted that the motion judge's reliance on the Master's decision gave it the effect of summary judgment, which a Master does not have the jurisdiction to order. The Court disagreed, stating that the Master's decision was not tantamount to summary judgment because it was about what was not pleaded, whereas summary judgment is a determination of what was pleaded.

(3) No.
The appellants argued that a decision of an associate justice in a Rule 26.1 pleadings motion cannot support the application of the re-litigation doctrines in a Rule 21 motion. The Court conceded that there is no case law on whether an associate justice's decision can be used to trigger the re-litigation doctrines. To invoke issue estoppel (1) the issue must be the same as previously decided, (2) the prior judicial decision must be final, and (3) the parties to both proceedings must be the same. The Court noted that there can be no question that the Master acted within her jurisdiction, as a court of competent jurisdiction and that her decision denying the pleadings motion was a "prior judicial decision". The Court held that to suggest that re-litigation doctrines cannot be applied to decisions of an associate justice would make many applications before associate justices pointless.

The Court stated that abuse of process, on the other hand, is much more flexible. It can be applied where the litigation before the court is found to be in essence an attempt to relitigate a claim in which the court has already determined. The Court held that nothing in the doctrine of abuse of process precluded its application to a decision of an associate justice.
The appellants argued that the re-litigation doctrines only apply to findings of fact. The Court disagreed stating that both doctrines operate to prevent the improper re-litigation of issues decided, whether those issues are of fact, mixed fact and law, or law. Furthermore, the Court noted that if parties could disregard pleadings rulings in the expectation that they can be re-litigated later, it would unsettle the efficient and fair administration of justice and render pleadings rulings and appeals from those rulings pointless.

(4) No.
The appellants argued that the motion judge erred in applying the re-litigation doctrines to the "reasoning" of the Master, when these doctrines only apply to decisions. They argued that the only thing the Master decided was stated in her formal order, namely, that leave to amend the statement of claim was dismissed. The Court disagreed, noting that issue estoppel applies to determinations that are fundamental to a judicial decision.

(5) No.
The appellants argued that the motion judge erred by failing to apply the "plain and obvious" test, which applies in motions to strike pleadings. The Court stated that, although the motion judge did not articulate this test, it is clear that this is the standard he applied.

(6) No.
The appellants argued that the motion judge erred because their pleadings "could be interpreted to plead causes of action in relation to events in 2008 and 2009". The Court dismissed this ground of appeal for two reasons. First, the motion before the motion judge was not an appeal of the decision of the Master. That appeal was litigated at the Divisional Court. Second, it was clear on reading the statement of claim that the pre-2010 facts were only included to support the negligence claims the appellants made relating to 2010 and 2011.

(7) No.
The appellants argued that the motion judge erred by striking pleadings without determining whether "the determination of law sought under Rule 21.01 would, dispose of all or part of the action, substantially shorten the trial or result in a substantive savings of costs", which "is the applicable test set out in Rule 21.01(1)". The Court held that this test only applies to a motion under Rule 21.01(1)(a), whereas the respondents' motion was under Rule 21.01(1)(d). The test for Rule 21.01(1)(d) is whether the action is "otherwise an abuse of process of the court", which the motion judge properly applied.

Continental Currency Exchange Canada Inc. v. Sprott, 2023 ONCA 61

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

Counsel:

M.P. Michell and Z. Naqi, for the appellants
P.L. Vay, S.M. Robinson and S. Aylward, for the respondents

Keywords: Solicitor-Client Privilege, Litigation Privilege, Breach of Privilege, Stay of Proceedings, Presumed Prejudice, Rebuttable Presumption, Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, Etco Financial Corp. v. Ontario, [1999] O.J. No 3658 (S.C.), R. v. Babos, 2014 SCC 16, Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, R. v. Bruce Power Inc., 2009 ONCA 573, Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, O'Dea v. O'Dea, 2019 NLSC 206, Morneault v. Dynacorp Acquisition Ltd., 2006 ABQB 831, Dixon v. Lindsay, 2021 ONSC 1360

facts:

In 2015, the respondent ES advised that he no longer wished to participate in a joint venture to establish a new Schedule I bank. Litigation ensued when the transaction did not close. While working to establish the bank, the parties moved into the same office space and shared the same computer file server (the "File Server"). Shortly after ES informed the appellant SP of his intention to stop participating in the project, SP instructed his assistant to save a back up of all of the respondent Continental Bank of Canada's ("Continental") email accounts in the File Server to a separate location. Continental emails consisting of 22 "PST files" were copied onto a hard drive (the "Email Server Copy") and each PST file contained thousands of emails and attachments. The Email Server Copy contained a copy of every email sent or received up to January 13, 2015.

The parties continued to share office space and the File Server for nine months after the transaction was terminated. On September 9, 2015, ES applied for a receiver to be appointed. On September 27, 2015, the appellants removed the File Server which at the time still contained the respondents' data. On October 8, 2015, respondents' counsel wrote to the appellants' counsel demanding a copy of the Continental data on the File Server. On November 6, 2015, the appellants' IT provider confirmed that no Continental data was "currently" accessible by Continental employees. The appellants' IT confirmed that the use of the word "currently" was included because up until that date the Continental data was accessible to the appellants.

In May 2019, the respondents discovered that the appellants were in possession of privileged documents belonging to Continental regarding the joint venture, including: legal opinions and strategy documents prepared for the respondents by counsel, and all emails sent or received by anyone with a Continental email address, including emails from counsel and documents prepared for litigation. As a result, the respondents brought a motion to stay the proceedings.
The motion judge held that: (i) the respondents discharged their burden to demonstrate that the appellants obtained access to their confidential and privileged information that was relevant to the issues in this litigation; (ii) the appellants did not rebut the presumption of prejudice as they led no evidence as to what documents they reviewed; and (iii) the only appropriate remedy was a stay of proceedings. The motion judge found that the appellants had access to the respondents' relevant and privileged information and while there was no direct evidence that the appellants reviewed the documents, the appellants led no evidence to rebut the presumption of prejudice against the respondents. As a result, the motion judge stayed the proceedings.

issues:

(1) Did the motion judge make inconsistent findings as to whether the appellants accessed and reviewed privileged information?
(2) Did the motion judge conflate the presumption of prejudice to the respondent with the imposition of the remedy of a stay of the appellants' proceeding?
(3) Did the motion judge err in holding that the appellants had the onus to "show that there is another remedy, short of a stay of the action, that will cure the problem"?
(4) Did the motion judge err in imposing a stay against all of the appellants although only SP was presumed to have accessed and reviewed the documents?

holding:

Appeal dismissed.

reasoning:

(1) No.
The Court found that the motion judge correctly applied the test set out in Celanese Canada Inc. v. Murray Demolition Corp., noting that the onus is on the party with unauthorized access to show that there is no risk that privileged and confidential information attributable to a solicitor and client relationship will be used to prejudice the party possessing the privilege. The Court noted that although the motion judge stated that it was impossible to know whether the documents were mundane or significant, he found that, once the PST files from the Email Server Copy and the appropriate program to access these files were installed, SP asked his assistant to conduct searches of the emails roughly on a "weekly" basis. The motion judge concluded that the appellants had access to privileged communications "for a long period" and some of the communications were reviewed under SP's direction.
The Court held that there was ample evidence to support the motion judge's finding and held that the appellants provided no evidence of what they actually reviewed, and thus, they failed to rebut the presumption of prejudice.

(2) No.
The Court found that the motion judge did not hold or imply that a stay is always warranted whenever the presumption of prejudice has not been rebutted. The motion judge assessed the significance of the privileged information to the litigation in coming to his decision to stay the proceedings and found that the privileged information was relevant to the transaction at issue in the litigation. The Court noted that the motion judge considered other possible remedies but noted that the appellants did not discharge their onus of rebutting the presumption of prejudice. The Court held that the motion judge did not err in his holding that access to privileged information, such as legal opinions about the transaction, risks serious prejudice.

The Court found that the motion judge's determination of the appropriate remedy did not conflate presumed prejudice and remedy. Presumed prejudice is the precondition for imposition of any remedy and the lack of evidence on the scope of documentary review and the nature of documents accessed is relevant to fashioning the appropriate remedy. The Court found that the motion judge correctly took all of these factors into consideration before addressing possible remedies.

(3) No.
The Court agreed with the appellants that the motion judge mistakenly stated that the appellants had the onus of showing that another remedy would cure the problem, as the onus is on the respondents to show that a stay was the only appropriate remedy. However, Court maintained that the motion judge applied the correct analysis.
The motion judge noted that the appellants had access to the privileged communications over an extended period, the documents were about the very transaction at issue, and some of those documents were searched and reviewed by SP's assistant under his direction. Further, the motion judge found that the appellants' actions to access the respondents' privileged documents were intentional. The Court noted that the motion judge was entitled to presume that the respondents suffered significant and ongoing prejudice for a prolonged period. Thus, the Court held that the motion judge did not err in holding that a stay was warranted because there was significant presumed ongoing prejudice to the respondents. Finally, the Court noted that given the serious prejudice resulting from the breach by the appellants themselves (not their counsel), the motion judge correctly held that no remedy short of a stay would cure the problem.

(4) No.
The Court held that because SP was responsible for managing and conducting the litigation on behalf of all the appellants and on cross-examination, the discussions surrounding the litigation were affected by his access to privileged communications, and those concerns could not be resolved.

SHORT CIVIL DECISIONS

5000933 Ontario Inc. v. Mahmood, 2023 ONCA 58

[MacPherson, Hoy and Coroza JJ.A.]

Counsel:

O. Hoque and F.M. S. B. Hossain, for the appellants
C. D. Neil, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Breach, O. Reg. 332/12 Ontario Building Code

Bitaxis Estate v. Bitaxis, 2023 ONCA 66

[MacPherson, Hoy and Coroza JJ.A.]

Counsel:

D. M. Smith and M. D. Lahn, for the appellant
B. D. Arkin, for the respondent

Austin v. House, 2023 ONCA 55

[Feldman, Lauwers and Roberts JJ.A.]

Counsel:

M. H. Tweyman, for the appellant
N. Wilson, for the respondent

Lalande v. Lalande, 2023 ONCA 68

[MacPherson, Brown and Coroza JJ.A.]

Counsel:

S. M. Fehrle, for the appellant
C. Allen, for the respondent

Keywords: Family Law, Financial Disclosure, Duty to Disclose, Non-Compliance, Motion to Strike, Roberts v. Roberts, 2015 ONCA 450, Family Law Rules, O. Reg. 114/99, r.1(8).

Hategan v. Frederiksen, 2023 ONCA 57

[van Rensburg, Miller and Nordheimer JJ.A.]

Counsel:

J. Kary, for the moving party
A. N. Wood and L. Cadieux-Shaw, for the responding party, E.M.F
M. Freiman, for the responding party B.F.

Keywords: Perfecting Appeal, Extension of Time, Delay, Setting aside Registrar's Dismissal, Prejudice, Oliveira v. Oliveira, 2022 ONCA 218, Issai v. Rosenzweig, 2011 ONCA 112

Ducharme v. Thibodeau, 2023 ONCA 60

[Feldman, Lauwers and Roberts JJ.A.]

Counsel:

A. Rogerson and C. Dookie, for the appellant
O. D. Thomas, for the respondent

Keywords: Wills and Estate, Notice of Objection, Withdrawal of Notice of Objection, Standing, Costs, Substantial Indemnity.

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 23 – 27, 2023)
Blaney's Appeals

Table of Contents

Civil Decisions

Short Civil Decisions

CIVIL DECISIONS

SHORT CIVIL DECISIONS

Canada: Court Of Appeal Summaries (January 23 – 27, 2023) Blaney's Appeals

Table of Contents

Civil Decisions

Short Civil Decisions

CIVIL DECISIONS

SHORT CIVIL DECISIONS

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Canada: Court Of Appeal Summaries (January 23 – 27, 2023)
Blaney's Appeals