Court Of Appeal Summaries (November 30 – December 4, 2020) - Trials & Appeals & Compensation

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Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of November 30, 2020.

In Zoutman v. Graham, another anti-SLAPP, the Court agreed with the motion judge that the appellant's delay of more than 6 months in bringing the motion (after the plaintiff had brought a motion for summary judgment) was fatal to the anti-SLAPP motion, as it subverted the intent and purpose of s. 137.1 of the Courts of Justice Act. The Court also pointed out that where the defendant denies making the allegedly defamatory statements, an anti-SLAPP motion is unavailable to them.

Other topics included rescission as a result of contractual misrepresentation in a residential real estate transaction, jurisdiction in the labour law context, and stay pending appeal.

Wishing our readers an enjoyable weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Civil Decisions

Issa v Wilson, 2020 ONCA 0756

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Material Misrepresentations, Remedies, Rescission, Panzer v Zeifman et al. (1978), 20 OR (2d) 502 (CA), Beer v Townsgate I Limited (1997), 36 OR (3d) 136 (CA)

Nelson v Ontario, 2020 ONCA 751

Keywords: Labour Law, Arbitrations, Jurisdiction, Human Rights, Workplace Discrimination and Harassment, Human Rights Code, R.S.O. 1990, c. H.19, Employment Standards Act, S.O. 2000, c. 41, Labour Relations Act, 1995, S.O. 1995, Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, Naraine v. Ford Motor Co. of Canada (2001), 209 D.L.R. (4th) 465 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 69, Rivers v. Waterloo Regional Police Services Board, 2018 ONSC 4307, aff'd, 2019 ONCA 267, leave to appeal to SCC refused, 38707, Jaffer v. York University, 2010 ONCA 654, Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (OPSEU), 2003 SCC 42.

Bowles v Al Mulla Group, 2020 ONCA 761

Keywords: Conflict of Laws, Civil Procedure, Jurisdiction, Real and Substantial Connection, Forum of Necessity Doctrine, Van Breda v. Village Resorts Limited, 2010 ONCA 84, Ibrahim v. Robinson, 2015 ONCA 21, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Arsenault v. Nunavut, 2016 ONCA 207, West Van Inc. v. Daisley, 2014 ONCA 232, Forsythe v. Westfall, 2015 ONCA 810, Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423.

Kawartha Capital Corp. v 1723766 Ontario Limited, 2020 ONCA 763

Keywords: Contracts, Settlements, Releases, Defences, Economic Duress, Construction Liens, Civil Procedure, Summary Judgment, Genuine Issue Requiring Trial, Techform Products Ltd. v. Wolda (2001), 56 O.R. (3d) 1 (C.A.), leave to appeal refused, [2001] S.C.C.A. No. 603.

Grasshopper Solar Corporation v Independent Electricity System Operator, 2020 ONCA 769

Keywords: Civil Procedure, Stay Pending Appeal, Serious Question, Irreparable Harm, Balance of Convenience, Contracts, Interpretation, Supreme Court Act, R.S.C. 1985, c. S-26, ss. 40(1), 65.1, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Donovan v. Sherman Estate, 2019 ONCA 465.

Zoutman v Graham, 2020 ONCA 767

Keywords: Torts, Defamation, Internet Libel, Civil Procedure, Anti-SLAPP, Summary Judgment, Courts of Justice Act, s. 137.1, Gaskin v. Retail Credit Co., [1965] 2 S.C.R. 297, Crookes v. Newton, 2011 SCC 47, Labourers' International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, Grant v. Torstar Corp., 2009 SCC 61.

Short Civil Decisions

Brampton (City) v Elbasiouni, 2020 ONCA 0758

Keywords: Civil Procedure, Adjournments, Parties Under Disability, Litigation Guardians

Ontario (Funeral, Burial and Cremation Services Act, 2002, (Registrar) v 1868653 Ontario Inc. (Newcastle Funeral Home Ltd.), 2020 ONCA 0771

Keywords: Administrative Law, Licence Appeal Tribunal, Licencing, Funeral and Cremation Licenses, Funeral, Burial and Cremation Services Act, SO 2002, c. 33, s. 14(1)(d)(ii)

CIVIL DECISIONS

Issa v Wilson, 2020 ONCA 0756

[MacPherson, Zarnett and Jamal JJ.A.]

Counsel:

H. Engell, for the appellants

H.L. Shankman, for the respondent

facts:

The respondent was a 26 year old first time home buyer and was looking for a place to live with his parents and siblings. He retained one of the appellants to act as his real estate agent. Both the agent and the owner of the property made several representations to the respondent that the home was 2,000 square feet or larger. The agent relied on the MLS property listing and never verified the measurements himself, which he admitted at trial was negligent on his part.

The respondent inspected the home on multiple occasions. Prior to closing, the respondent obtained an appraisal for his mortgage application and found out the property was only 1,450 square feet. He immediately decided not to proceed with the purchase and sought a declaration that the purchase agreement was null and void and that his deposit should be returned. On hearing the action, the trial judge found in favour of the respondent, holding that despite his opportunities to inspect the property, his expectation that the property was the size represented to him on multiple occasions was not overridden.

The applicant vendor appealed.

issue:

Did the trial judge err in finding that the respondent's inspection of the property did not displace his reliance on the representations?

holding:

Appeal dismissed.

reasoning:

No. The proposition that where a purchaser inspects a property, their reliance on a misrepresentation will be displaced is not absolute. Where the totality of the facts would make the strict application of the proposition unfair, it has not governed.

Rescission of a contract is available as a remedy where the defendant made a false statement that was material or induced the plaintiff to enter into a contract. The trial judge concluded that the misrepresentation as to the size of the property was material and the Court of Appeal saw no reason to question this finding. The plaintiff was explicitly told on multiple occasions, and by persons who would or should have intimate knowledge of the true size, that the property was over 2,000 sq. ft. The discrepancy between the representation and actually size varied from 27-42% depending on the source of information. This difference was substantial. Further, the respondent remained ready to close until the moment he discovered the misrepresentation and immediately communicated his intention not to close on finding out the true size of the home. The trial judge did not err in finding that the respondent's age and inexperience were relevant contextual factors to understanding his reliance on the misrepresentations.

Nelson v Ontario, 2020 ONCA 751

[Hoy, Brown and Thorburn JJ.A.]

Counsel:

K. Agarwal for the appellant, H. N.

T. Curry, R. Jones and D. Contractor for the respondent, Her Majesty the Queen in Right of Ontario

K. McDonald and G. Philipupillai for the respondent, Association of Management, Administrative and Professional Crown Employees of Ontario

facts:

The appellant in this case is an employee of the Ontario Public Service ("OPS") and a member of the Association of Management, Administrative and Professional Crown Employees of Ontario (the "union"). The appellant's relationship with her employer is governed by a collective agreement between the union and the Crown. Article 2 of the collective agreement prohibits discrimination based on sex, disability, race, and colour, among other things. The collective agreement also provides for a comprehensive grievance procedure, including binding arbitration before a labour arbitrator, the Grievance Settlement Board.

In November 2011, pursuant to the collective agreement, the union initiated several grievances on the appellant's behalf asserting discrimination based on sex, gender, disability, race, including anti-Black racism, and harassment by her managers and co-workers in the OPS. The union alleged breaches of the collective agreement, the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") and the Employment Standards Act, S.O. 2000, c. 41. Independently of the union, the appellant also made an application before the Human Rights Tribunal of Ontario (HRTO), alleging discrimination based on race, color, disability, sex, and pregnancy. However, the HRTO deferred her application on the basis that the allegations overlapped significantly with the first grievances filed by the union on her behalf. In April 2017, at the appellant's request, the union withdrew the grievances so that the HRTO hearing could proceed. The application was re-activated in May 2017, then adjourned again in July 2017 at the appellant's request.

In August 2018, the union filed a further grievance on the appellant's behalf that is being held in abeyance, by agreement of the union and the Crown. In February 2019, the appellant commenced this action in the Superior Court of Justice against the Crown and the union. The HRTO then deferred the appellant's application again, pending completion of these civil proceedings. The Crown and the union (the respondents in the appeal) moved to dismiss the action on the basis that the court lacks jurisdiction to hear the matter because it arises out of an employment dispute under a collective agreement and therefore should be heard by a labour arbitrator or the HRTO.

Trial Judge's Decision

The motion judge granted the defendant's motions and struck the action. In doing so, the motion judge applied the Supreme Court's decision in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, which considers the mandatory arbitration provision in s. 48(1) of the Labour Relations Act. The court in Weber stated that the long-standing principles that a court's jurisdiction is ousted when a plaintiff is under a collective bargaining regime. Although courts have jurisdiction to consider matters arising under the Code, it is a very limited jurisdiction which requires the existence of a separate, and additional, cause of action which is properly before the court. Relying on Weber, the motion judge observed that, where the "essential character" of a dispute arises from a collective agreement, the court lacks jurisdiction and the matter is reserved for the labour arbitrator. Further, the trial judge considered s. 7(3) of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 ("CECBA"), which mirrors the provisions considered by the Supreme Court in Weber. The motion judge also considered Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, where the Supreme Court held that the common law duty of fair representation was ousted by a statutory process for addressing that duty before a labour board.

However, the motions judge also considered that Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, ("Morin") and Naraine v. Ford Motor Co. of Canada (2001), 209 D.L.R. (4th) 465 (Ont. C.A.), which held that despite Weber and Gendron, the HRTO has concurrent jurisdiction to consider discrimination complaints arising from the employment context. Thus, the motion judge considered s. 46.1 of the Code, which includes the 2008 amendment invoked by the appellant in support of her argument that the court has concurrent jurisdiction.

The motion judge also noted that s. 46.1 was recently considered in Rivers v. Waterloo Regional Police Services Board, 2018 ONSC 4307. The motion judge concluded that like the claim in Rivers, the appellant's claim "is based entirely on discrimination and harassment in the workplace." Thus, while the appellant pleaded various causes of action, such as negligence and invasion of privacy, the claim must be assessed under the Weber framework. He reasoned that, "the essential character of this dispute, including all of the causes of action, arise in the workplace and are governed by the collective agreement."

The motion judge dismissed the appellant's action on the ground that the court has no jurisdiction over its subject matter. However, the motion judge noted that the appellant can pursue all her complaints, including those against the union, before the HRTO, which can order individual and systemic remedies. The employee appealed.

issue:

Did the motion judge err in not finding that the court has concurrent jurisdiction over her claim?

holding:

Appeal dismissed.

reasoning:

No. The appellant advanced three arguments as to why the motion judge erred in not finding that the court has concurrent jurisdiction over her claim, each of which were dismissed by the Court.

Section 46.1 of the Code and a "presumption of arbitration"

The Court rejected the appellant's argument that the motion judge erred in his analysis by failing to follow the two-step approach in Morin, and instead starting from the positon that there is a presumption of arbitration where the plaintiff's employment is governed by a collective agreement.

The appellant argued that s. 46.1 of the Code was enacted after Weber and should be interpreted without reference to it. In her view, properly interpreted, s. 46.1 permits a plaintiff to bring a civil action that, according to Weber, is within the exclusive jurisdiction of a labour arbitrator provided that the action is brought in conjunction with a breach of the Code.

The Court held that the motion judge properly interpreted s. 46.1 of the Code together with Weber; further, Morin also predates s.46.1 of the Code, so this argument did not assist the appellant. The Court stated that the relevant legislation in this case is the CECBA, which mirrors the LRA, and s. 46.1 of the Code. As Morin notes, Weber has determined that the labour arbitrator's jurisdiction is exclusive, where the essential character of the dispute arises from the collective agreement, either expressly or inferentially. In interpreting s. 46.1, the motion judge applied the approach in Rivers, which was upheld on appeal. The motion judge then considered the nature of the dispute and concluded that the wrongs pleaded by the appellant in her statement of claim were, subject to the limited concurrent jurisdiction of the HRTO, within the exclusive jurisdiction of the labour arbitrator.

The Court held that there is no ground to presume that the legislature, in enacting s. 46(1), intended to grant the Superior Court jurisdiction over claims that otherwise should be heard by labour arbitrators or the HRTO. The Court reiterated the conclusion of the motion judge, stating that "clearer language would need to be used to override Weber, and s. 48(1) of the Labour Relations Act, 1995, which contain fundamental tenets of the collective bargaining regime." Further, the Court did not agree with the appellant's argument that because the Code enjoys quasi-constitutional status, s. 46.1 of the Code should not be limited by Supreme Court authority which pre-dates its enactment.

The "essential character" of the appellant's claims

The Court rejected the appellant's argument that the motion judge erred in finding that the essential character of the dispute, including all of the causes of action, "arise in the workplace and are governed by the collective agreement." The appellant argued that is the workplace was the place of her claim, not its essential character. Instead, the appellant stated that the essential character of her claim was discrimination and harassment, including systemic anti-Black racism, and the court accordingly has concurrent jurisdiction.

The Court held that the motion judge did not simply focus on the place of her claim, and that he accepted that discrimination and harassment arising from her employment were the essential character of her claim. In the motion judge's reasons, he stated that "all the claims are grounded in allegations of discrimination and harassment arising from Nelson's employment by Ontario", which fall within the non-discrimination provisions of Article 2 of the collective agreement. Further, the fact that the essential character of her claim is allegations of discrimination and harassment arising from her employment does not result in the court having concurrent jurisdiction over claims within the exclusive jurisdiction of a labour arbitrator or the HRTO.

The "practical unavailability" of the grievance process

The appellant argued that the motion judge failed to consider whether her evidence established that the grievance and arbitration process under the collective agreement was "practically unavailable" to her. The appellant relied on Rivers, citing the proposition that if the grievance/arbitration process was practically unavailable to a plaintiff, then she may be granted access to the court.

The Court noted that at the appellant's request, the union withdrew the grievances in April 2017 so that her HRTO application could proceed. The motion judge found that she can pursue all her complaints, including those against the union, before the HRTO, which can order individual and systemic remedies. Thus, the Court held that there was no basis to interfere with the motion judge's finding that a remedy is not practically unavailable to the appellant.

Bowles v Al Mulla Group, 2020 ONCA 761

[Fairburn A.C.J.O., Pepall and Roberts JJ.A.]

Counsel:

M. Salama and P. Karam, for the appellant

J. Karayannides and M.C. Mandelker, for the respondents

facts:

The appellant was employed by one of the respondents when he lived in Kuwait. The appellant alleged that he was asked by the respondent to participate in a fraudulent scheme. When he refused, he alleged that he was arrested and beaten. In August 2017, he fled Kuwait and was granted refugee status in Canada. He further claimed that he could not return to Kuwait out of fear for his life because of the respondents who have allegedly threatened him. The appellant sought substantial damages against the respondents. The respondents are all resident in Kuwait with no assets or presence in either Ontario or Canada.

Following a motion brought by the respondents, the appellant's action was stayed for want of jurisdiction on the basis that it had no real and substantial connection to Ontario.

issues:

Did the motion judge err by:

(1) Failing to assume jurisdiction in accordance with the forum of necessity doctrine?

(2) Failing to take into account the appellant's refugee status in Canada?

holding:

Appeal dismissed.

reasoning:

(1) Did the motion judge err by failing to assume jurisdiction in accordance with the forum of necessity doctrine?

No. The appellant alleged that the motion judge failed to consider his refugee status and the threat to his safety if he were to pursue his claim in Kuwait. The Court did not accept these submissions and gave deference to the motion judge's application of the forum of necessity doctrine to the evidentiary record.

The forum of necessity doctrine operates as an exception to the real and substantial connection test in extraordinary circumstances where there is no other forum in which the plaintiff can reasonably seek relief. It allows courts a residual discretion to assume jurisdiction where, despite the absence of a real and substantial connection, there is the need to ensure access to justice. This doctrine is "very stringently construed" and "reserved for exceptional" cases, and therefore typically unavailable because of its high bar (West Van Inc.).

The onus was on the appellant to establish that his was an exceptional case justifying the court's rare assumption of jurisdiction on the basis of the forum of necessity doctrine. The motion judge did not accept the adequacy of the appellant's evidence.

First, the motion judge determined that there was no cogent corroborating evidence of the appellant's alleged atrocious injuries caused by the respondents. Second, the motion judge could not find any credible evidence that the threats emanated directly or indirectly from the respondents, and therefore gave them no weight. Third, he also observed that the appellant had achieved partial success in the proceedings that he had brought in Kuwait before his departure for Canada. As a result, the Court saw no reason to interfere with the motion judge's conclusion to not assume jurisdiction over the appellant's claim.

(2) Did the motion judge err by failing to take into account the appellant's refugee status in Canada?

No. The Court found that the motion judge expressly referenced the fact that the appellant came to Canada as a refugee. However, the appellant's refugee status was only one factor and was not determinative of whether the motion judge should exercise his discretion and assume jurisdiction in accordance with the forum of necessity doctrine. Moreover, before the motion judge, other than his own evidence, the appellant produced no documentation that revealed the basis for his refugee status. The Court emphasized that self-serving affidavits with nothing more are insufficient to invoke the application of such an extraordinary order.

Kawartha Capital Corp. v 1723766 Ontario Limited, 2020 ONCA 763

[MacPherson, Zarnett and Jamal JJ.A.]

Counsel:

N.J. Tourgis and R. Joshi, for the appellants

J.C. Russell, for the respondent

facts:

The corporate appellant retained the respondent to perform construction work. Shortly after, disputes had arisen between the parties regarding unpaid invoices. The respondent proceeded to register a construction lien on the property.

Negotiations took place to resolve the disputes, eventually leading to an executed Minutes of Settlement (the "Minutes") between the parties. The Minutes provided for the corporate appellant to make an initial payment of $400,000, and a subsequent payment of $162,832.33, in exchange for the discharge of the construction lien. The individual appellant signed the Minutes as the personal guarantor of the corporate appellant.

Related to the Minutes, the parties also executed a mutual release from any claim "by reason of any matter or thing existing as of the date hereof, whether known or unknown, with respect to the construction services and materials provided by Kawartha as of the date hereof". Amendments to the payment structure under the Minutes were later made. However, the appellants eventually made the initial payment required. When the subsequent payment was not made on time, the respondent commenced this action. The appellants defended the action by asserting that the Minutes were the product of economic duress, and also brought a counterclaim alleging damages stemming from the respondent's delays in performing the work. The respondents brought a motion for summary judgment, which the motion judge granted on the basis that there was no genuine issue requiring a trial.

issues:

(1) Did the motion judge err in finding that there was no genuine issue requiring a trial?

(2) Did the motion judge err in dismissing the appellant's counterclaim?

holding:

Appeal dismissed.

reasoning:

(1) No. As mentioned above, the appellants asserted the argument that the Minutes were only agreed to as a result of economic duress. The Court began its analysis by summarizing the test that must be met for a party to successfully establish economic duress. The test has two components: first, the party must have been subjected to pressure applied to such an extent that there was no choice but to submit.

Related to this component, there are four factors that a court should consider in its analysis: (1) whether the party protested at the time the contract was entered into; (2) whether there was an effective alternative course open to the party alleging coercion; (3) whether the party received independent legal advice; and (4) whether, after entering the contract, the party took steps to avoid it.

The second overall component of the test is whether the pressure applied was illegitimate. (Techform Products Ltd. v. Wolda (2001), 56 O.R. (3d) 1 (C.A.), leave to appeal refused, [2001] S.C.C.A. No. 603).

The motion judge found that the appellants satisfied none of the four factors relevant to the first component of the test. Given the fact that these findings had a substantial factual component, the Court noted that the motion judge's conclusion was entitled to deference on appeal.

First, there was no evidence that the parties protested at any point during the settlement negotiations, or at the time the Minutes were executed. In fact, the motion judge found that the Minutes were largely based on proposals made on the appellants' behalf. Second, there was similarly no evidence that the appellants considered or pursued any of the alternatives available to them, such as posting a bond to vacate the lien, or suing for damages for a lien's wrongful registration. Third, the appellants undisputedly had access to independent legal advice up to and through the execution of the Minutes. Last, there was no evidence led to show that the appellants made any attempts to avoid the Minutes after they were signed. Instead, the appellants made the initial payment, and even after defaulting on the second payment, requested more time to pay. No steps were taken to challenge the enforceability of the Minutes until they had been sued following their default on the second payment. Accordingly, the Court found no error in the motion judge's findings that there was no genuine issue requiring a trial.

The appellants also argued that the motion judge erred in not addressing the second component of the test for economic duress. However, the Court quickly dismissed this argument by maintaining that both components of the test must be satisfied. Therefore, any consideration of the second component was unnecessary given the conclusions reached on the first component.

(2) No. The motion judge found that the counterclaim raised matters covered by the mutual release executed in relation to the Minutes, and the Court found no error in this conclusion. The Court briefly added that the release prohibited the appellants from pursuing claims arising from a broad spectrum of matters, and that the specific form of the claim the appellants were asserting (i.e. whether equitable set-off or damages) bore no relevance to this conclusion.

Grasshopper Solar Corporation v Independent Electricity System Operator, 2020 ONCA 769

[Trotter J.A. (Motion Judge)]

Counsel:

S.E. Batner and B. Kain, for the moving parties

A.H. Mark and M. Ouanounou, for the responding party

facts:

The respondent, the Independent Electricity System Operator ("IESO"), terminated 36 standard-form contracts, called Feed-in Tariff Contracts ("FIT Contracts"), with the applicant renewable energy companies. Under these contracts, the applicants were to construct solar facilities and provide clean energy to Ontario's electricity grid for 20 years, at enhanced rates. The applicants were required to achieve commercial operation of their facilities by the Milestone Date for Commercial Operation ("MDCO"), failing which, the IESO would be able to terminate the contracts without paying damages. The applicants failed to meet the MCDO, and the respondent gave notice that it would terminate the contract, meaning any energy supplied to the IESO by the applicants would be at market rates instead of enhanced rates.

The applicants applied for declarations that their failure to achieve commercial operation by the MDCO did not constitute a default of the contracts. Their applications were dismissed at the Superior Court of Justice. The appellants appealed, and their appeal was dismissed by the Court of Appeal. The Court confirmed the application judge's conclusion that the respondent could terminate the contracts, and rejected the appellants' submission that the respondent was estopped from terminating the contracts. The applicants have sought leave to appeal to the Supreme Court of Canada on various standards of contractual interpretation, as well as on further issues concerning estoppel and waiver.

In the course of the litigation, the respondent agreed not to terminate the contracts and continued to make FIT payments. These arrangements were reflected in a Forbearance Agreement entered into in July 2019 and signed by the parties, two interlocutory orders, and a Security Agreement entered into in April 2020. The applicants argued that the parties contemplated that these arrangements would remain in place until the matters were finally determined by the Supreme Court. The respondent contended that the agreements were intended to expire upon the conclusion of proceedings in the Court of Appeal.

issue:

Were the applicants entitled to a stay of the orders of the Court of Appeal pending an application for leave to the Supreme Court of Canada?

holding:

Motion granted.

reasoning:

Yes. The interests of justice warranted granting a stay of the Court of Appeal's orders pending the applications for leave to appeal to the Supreme Court. Section 65.1 of the Supreme Court Act empowers the Supreme Court, provincial courts of appeal, or a judge of either court, to stay proceedings with respect to the judgment from which leave to appeal is sought "on terms deemed appropriate." This power is broad.

The test for a stay of proceedings pending an application for leave to the Supreme Court is set out in Livent Inc. v. Deloitte & Touche. The court must consider the following factors:

whether there is a serious question to be determined on the proposed appeal;
whether the moving party will suffer irreparable harm if the stay is not granted; and
whether the balance of convenience favours a stay.

These factors must be assessed as a whole, and the overriding question is "whether the moving party has shown that it is in the interests of justice to grant a stay".

Deciding whether there is a serious issue to be determined requires a preliminary assessment of the proposed merits of the appeal, as well as the proposed merits of the application for leave to appeal. This threshold is low. The Court focused on whether there was arguable merit in the application for leave to appeal to the Supreme Court. The applicants carefully developed several issues that could "go beyond the simple application of a known test to given facts and would transcend the facts of this particular case." Additionally, the Court noted that the foundation of this contractual dispute – between an energy regulator and clean energy suppliers – was atypical and may engage public interests. Therefore, the applicants met the "low" threshold required to satisfy the first part of the test.

The applicants submitted that if the orders were not stayed they would suffer irreparable harm that could not be compensated with damages. If the respondent was entitled to terminate the contracts, the applicants argued they would have been driven out of business, and employees and hundreds of other individuals employed by contractors, subcontractors and suppliers would lose their livelihoods. The respondent argued that any harm caused by terminating the contract could be remedied by reimbursing FIT payments if the applicants succeeded at the Supreme Court.

The Court observed that both parties relied on extensive evidence concerning the corporate structure of the applicants, and their complex credit arrangements. The applicants argued that their creditor would call their loan, triggering financial turmoil and resulting in the irreparable human cost referred to above. The respondent argued that it would make no commercial sense for the applicant's creditor to behave in such a fashion while the leave application was outstanding. Based on the evidence and the parties' submissions, the Court was satisfied that failing to preserve the status quo could result in the consequences the applicants described. Thus, the irreparable harm portion of the test was satisfied.

The Court held that the balance of convenience also favoured the applicants. The respondent argued that granting a stay in favour of the applicants would require the respondent to continue making FIT payments, exposing Ontario ratepayers/taxpayers to irremediable economic consequences. The respondent was concerned it would not be able to cover advanced FIT payments while the case is in the Supreme Court, and that the security it held in the applicants' assets was insufficient to cover that exposure. The applicants asserted that their pledge of security adequately protected the respondent's interests. On balance, the Court was satisfied that the security held by the respondent was sufficient to protect it against the risk of non-recovery of continued FIT payments.

Finally, while granting the stay in favour of the applicants, the Court was clear that the stay would only extend to the point in time when the Supreme Court determined the applications for leave to appeal. If the applications for leave are dismissed, the matter will have been determined. If the applications for leave are allowed, the applicants may then apply for further orders in the Supreme Court.

Zoutman v Graham, 2020 ONCA 767

[Pepall, Benotto and Coroza JJ.A.]

Counsel:

M. Munro, for the appellant

F. McLaughlin, D. Charach and E. Chesney, for the respondent

facts:

At the trial of an action brought by the appellant involving issues of medical negligence, the respondent, a specialist in infectious diseases, was called to give expert testimony on causation. The jury eventually dismissed the action, finding that the plaintiffs had failed to establish causation.

Following this, the appellant admits to posting two derogatory comments about the respondent on doctor rating websites intended for patients to comment on their physicians. Although admitting to two posts, the appellant is alleged to have posted as many as twelve derogatory comments. Eventually, the respondent commenced an action against the appellant for defamation, and subsequently brought a motion for summary judgment.

More than six months following the commencement of the action, the appellant served motion materials to dismiss the respondent's action relying on s. 137.1 of the Courts of Justice Act, commonly known as an "anti-SLAPP (Strategic Lawsuit Against Public Participation) motion".

The motion judge dismissed the appellant's anti-SLAPP motion. Although the motion judge acknowledged that the passage of time alone should not disentitle the appellant from relief, in this case, the appellant's delay was fatal. The respondent's summary judgment motion had been served and filed more than two months before the appellant brought his anti-SLAPP motion. The motion judge held that this subverted the intent and purpose of s. 137.1.

Notwithstanding the foregoing, the motion judge went on to consider the merits of the appellant's motion, and in any event concluded that it did not meet the requirements of s. 137.1(3) of the anti-SLAPP provisions. Namely, the appellant did not acknowledge that ten of the twelve postings were authored by him, or that they related to a matter of public interest. Additionally, the harm suffered by the respondent was sufficiently serious that the public interest in permitting the proceeding to continue prevailed.

The motion judge further granted the respondent's motion for summary judgment. On this point, the motion judge concluded that the appellant had in fact authored all twelve postings, and that the content of these postings were defamatory.

issues:

(1) Did the motion judge err in dismissing the appellant's anti-SLAPP motion under s. 137.1 of the Courts of Justice Act?

(2) Did the motion judge err in granting summary judgment to the respondent?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court did not undertake a thorough overview of the step-by-step requirements necessary to successfully argue an anti-SLAPP motion. The Court elected to focus on specific requirements of the overall framework independently of one another.

First, the Court agreed with the motion judge's conclusion that the anti-SLAPP motion could not result in the dismissal of the respondent's entire action, as the appellant had only admitted to two of the twelve postings in question. This meant that no viable anti-SLAPP argument could be advanced regarding ten of the impugned posts.

Further, although the inadequacies of the appellant's argument made it unnecessary to consider this point, the Court also noted that the respondent's proceeding did have substantial merit, and the appellant had offered no valid defence. This meant the appellant would have likewise been unable to meet the requirements of s. 137.1(4)(a) and (b), which are necessary to succeed on an anti-SLAPP motion.

(2) No. First, the Court rejected the appellant's submission that the motion judge had no jurisdiction to rule on the summary judgment motion once the appellant brought the anti-SLAPP motion. Section 137.1(5) provides that once a s. 137.1 is made, no further steps may be taken in the proceeding until the anti-SLAPP motion, including any appeal, has been finally disposed of.

The Court noted that the respondent brought and scheduled his summary judgment motion well before the appellant brought the anti-SLAPP motion. Further, when the two motions were ordered to be heard at the same time, the appellant did not seek to appeal that decision. Therefore, it could not accurately be said that the respondent actually took any further steps within the meaning of s. 137.1(5).

Turning to the actual merits of the defamation claim, the Court noted the three elements required to be established, on a balance of probabilities, in an action for defamation as outlined in Grant v. Torstar Corp., 2009 SCC 61. First, the defendant must have made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff's reputation in the eyes of a reasonable person. Second, the words must have referred to the plaintiff. And third, the words must have been communicated to at least one other person, other than the plaintiff.

Regarding the first element, there was no question that defamatory comments were made. The appellant admitted as much in the case of two postings. However, the Court also agreed with the motion judge's conclusion that the appellant in fact authored all twelve of the impugned posts. The Court noted that the motion judge considered evidence such as the consistency of the language used in all twelve posts, as well as the IP addresses that they were traced back to. There was also no dispute that the second element of the test was met, as the postings undoubtedly referred to the respondent.

On the third point, the Court agreed with the motion judge's reliance on the authority of Gatley on Libel and Slander, as cited in cases such as Gaskin v. Retail Credit Co., [1965] 2 S.C.R. 297 and Crookes v. Newton, 2011 SCC 47. Specifically, these authorities stand for the proposition that "it is not necessary for the plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third person. If he proves facts from which it can reasonably be inferred that the words were brought to the knowledge of some third person, he will establish a prima facie case."

In this case, the fact that the comments were posted to a popularly visited website which is intended to provide a review forum for physicians, it was reasonable for the motion judge to conclude that these circumstances provided ample evidence of publication.

SHORT CIVIL DECISIONS

Brampton (City) v Elbasiouni, 2020 ONCA 0758

[Fairburn A.C.J.O., Miller and Zarnett JJ.A.]

Counsel:

M. Elbassiouni, for the appellant by his litigation guardian W. Sewilam

C.A. Painter for the respondent, The Corporation of the City of Brampton in C65017

B.H. Kussner, for the respondent, The Corporation of the City of Brampton in C67931

Keywords: Civil Procedure, Adjournments, Parties Under Disability, Litigation Guardians

Ontario (Funeral, Burial and Cremation Services Act, 2002, (Registrar) v 1868653 Ontario Inc. (Newcastle Funeral Home Ltd.), 2020 ONCA 0771

[Strathy C.J.O., Rouleau and Coroza JJ.A.]

Counsel:

B.C. LeBlanc and A. Hountalas, for the appellant

N.C. Tibollo and F. Tibollo, for the respondent

Keywords: Administrative Law, Licence Appeal Tribunal, Licencing, Funeral and Cremation Licenses, Funeral, Burial and Cremation Services Act, SO 2002, c. 33, s. 14(1)(d)(ii)

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 (November 30 – December 4, 2020) Blaney's Appeals

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Canada: Court Of Appeal Summaries (November 30 – December 4, 2020)
Blaney's Appeals