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Good afternoon.
Following are this week’s summaries of the Court of Appeal for Ontario for the week of February 14, 2022.

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In Fanshawe College of Applied Arts and Technology v. Hitachi, a motion to quash an appeal from a judge’s decision made in the claims process in the context of a class action was dismissed. The claims protocol did not clearly bar appeals to the Court of Appeal..

In 2651171 Ontario Inc. v. Brey, the Court allowed the appeal from an order finding that a purchaser was out of time to make an “off-title” requisition regarding the use of the property. The Court determined that the requisition as to whether the property was a legal four-plex was in time, and the vendor’s failure to satisfy the requisition entitled the purchaser to terminate the agreement and demand the return of their deposit. The Court made these findings on appeal, having been satisfied that the record was adequate enough to allow it to do so.

In White v Upper Thames River Conservation Authority, the Court confirmed that the framework governing landlord and tenant relations set out in the Residential Tenancies Act prevails over any negotiated contractual agreement between the parties that is inconsistent with the legislation. Accordingly, there is no room in a residential lease for occupancy limitations whereby a tenant loses the right to occupy the premises for a limited period of time during the course of the tenancy.

In Bakhsh v. Merdad, the Court held that the Ontario Superior Court had jurisdiction to determine a trust or equalization claim in respect of a condo in Ontario between parties that had married and lived in Saudia Arabia and whose marriage was annulled there.

Other topics this week included boomerang summary judgment in the municipal liability context (slip and fall), what does not constitute partial summary judgment in the breach of construction contract context, intention to create a trust, spousal pension entitlement, the appraisal process to resolve claims under the Insurance Act, easements, extensions of time and security for costs.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Richardson v. Arsenov, 2022 ONCA 137

Keywords: Civil Procedure, Cross-Appeals, Extension of Time, Security for Costs, Rules of Civil Procedure, Rules 61.06(1), 61.07(a) and 61.07(b), Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.), affirmed 2009 ONCA 415, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633

Desjardins General Insurance Group v. Campbell, 2022 ONCA 128

Keywords: Insurance, Property, Quantification of Loss, Appraisals, Civil Procedure, Judicial Review, Insurance Act, R.S.O. 1990, c. I.8, s. 128, 148, An Act to Amend the Insurance Act, S.O. 1966, c. 71, s. 8, Rules of Professional Conduct, s. 5.2, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Madhani v. Wawanesa Mutual Insurance Company, 2018 ONSC 4282 (Div. Ct.), Northbridge General Insurance Corp. v. Ashcroft Homes-Capital Hall Inc., 2021 ONSC 1684, D. R. Fraser Co. v. Minister of National Revenue, [1948] 4 D.L.R. 776 (P.C.), Ice Pork Genetics Inc. v Lombard Canada Ltd. et al, 2010 MBQB 77, Florida Insurance Guaranty Association, etc. v. Branco (2014), 148 So. 3d 488, Congregation of Knox’s Church (Trustees) v. Hudson’s Bay Co., [1993] O.J. No. 764 (Ont. C. J. (Gen. Div.)), Shinkaruk Enterprises Ltd. and Mr. Klean Enterprises Ltd. v. Commonwealth Insurance Company et al., 71 D.L.R. (4th) 681 (Sask. C.A.), Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), Prince Edward County Field Naturalists v. Ontario (Environment and Climate Change) (2016), 2 C.E.L.R. (4th) 140 (Ont. Environmental Review Trib.), Birmingham Business Centre Inc. v. Intact Insurance Company, 2018 ONSC 6174 (Div. Ct.), Joseph R. Nolan et al., Black’s Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing, 1990), Bryan A. Garner et al. 8th ed. (St. Paul, Minn.: Thomson/West, 2004)

Collingwood Aviation Partners Ltd. v. Winterland Airfield Holdings Ltd., 2022 ONCA 131

Keywords: Contracts, Interpretation, Real Property, Easements, Easements by Implication, Canadian Aviation Regulations, SOR/96-433, Gardiner v. Robinson, 2006 BCSC 1014, Anger & Honsberger, Law of Real Property, loose-leaf, 3rd ed. (Toronto: Thompson Reuters, 2021)

Bakhsh v. Merdad, 2022 ONCA 130

Keywords: Family Law, Property, Equalization of Net Family Property, Unjust Enrichment, Constructive Trust, Civil Procedure, Jurisdiction, Res Judicata, Limitations Periods, Costs, Family Law Act, s 7(3)(a), Real Property Limitations Act, R.S.O. 1990, c. L.15, s 4, Rules of Civil Procedure, Rules 21.01(1)(a) and (3), McConnell v. Huxtable, 2014 ONCA 86, McNamee v. McNamee, 2011 ONCA 533, Rawluk v. Rawluk, [1990] 1 S.C.R. 70

Feltz Design Build Ltd. v. Larson, 2022 ONCA 150

Keywords: Contracts, Construction, Civil Procedure, Summary Judgment, Construction Act, s. 7, Rules of Civil Procedure, Rule 20, Hryniak v. Mauldin, 2014 SCC 7, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2021 ONCA 589, Malik v. Attia, 2020 ONCA 787, Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265

Fanshawe College of Applied Arts and Technology v. Hitachi, Ltd., 2022 ONCA 144

Keywords: Civil Procedure, Class Proceedings, Claims Process, Appeals, Jurisdiction, Courts of Justice Act, R.S.O. 1990, Section 6(1)(b), c. C.43, Class Proceedings Act, 1992, S.O. 1992, Arbitration Act, 1991, S.O. 1991, c. 17, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, s. 11UNCITRAL Model Law on International Commercial Arbitration, Bancroft-Snell v. Visa Canada Corporation, 2019 ONCA 822, Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471, Dabbs v. Sun Life Assurance Co. of Canada (1998), 41 O.R. (3d) 97 (C.A.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Fontaine v. Canada (Attorney General), 2012 ONCA 206, Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.), Ross v. Canada Trust Company, 2021 ONCA 161, Gefen v. Gaertner, 2021 ONCA 631, Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501

Graham v. Toronto (City), 2022 ONCA 149

Keywords: Torts, Municipal Liability, Slip and Fall, Civil Procedure, Reverse (Boomerang) Summary Judgment, Limitation Periods, Statutory Notice, Reasonable Excuse for Delay, City of Toronto Act, 2006, S.O. 2006, c. 11, ss 42(6) and 42(8), Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06, Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, Seif v. Toronto (City), 2015 ONCA 321, Azzeh v. Legendre, 2017 ONCA 385

White v. Upper Thames River Conservation Authority, 2022 ONCA 146

Keywords: Contracts, Real Property, Residential Tenancies, Occupancy Limitations, Security of Tenure, Reasonable Enjoyment, Administrative Law, Standard of Review, Statutory Interpretation, Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss 2, 3, 4, 5, 22, and 210, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, R. v. Walsh, 2021 ONCA 43, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thompson/West, 2012)

2651171 Ontario Inc. v. Brey, 2022 ONCA 148

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Termination, Off-Title Requisitions, Timeliness, Use of Property, Legality, Civil Procedure, Appeals, Fact-Finding Powers on Appeal, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 134(1) and (4)(a), Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, 306440 Ontario Ltd. v. 782127 Ontario Ltd. (Alrange Container Services), 2014 ONCA 548, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, leave to appeal refused, [2020] S.C.C.A. No. 409, Hryniak v. Mauldin, 2014 SCC 7, Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, Cook v. Joyce, 2017 ONCA 49, Brar v. Smith, 2014 ONSC 5030, 1418885 Ontario Ltd. v. 2193139, 2017 ONSC 3632, rev’d on other grounds, 2018 ONCA 54

Carvalho v. Amorim, 2022 ONCA 158

Keywords: Family law, Property, Separation, Living Separate and Apart, Pension law, Spousal Survivor Entitlement, Pension Benefits Act, R.S.O. 1990, c. P.8, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Housen v. Nikolaisen, 2002 SCC 33, Greaves v. Greaves (2004), 4 R.F.L. (6th) 1 (Ont. S.C.)

Corvello v. Colucci, 2022 ONCA 159

Keywords: Property, Land Use Permit, Trusts, Three Certainties, Intention to Create Trust, Civil Procedure, Evidence, Witnesses, Credibility, Byers v. Foley (1993), 16 O.R. (3d) 641 (Gen. Div.), D.M.W. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984), Chechui v. Nieman, 2017 ONCA 669, Ontario (Training, Colleges and Universities) v. Two Feathers Forest Products LP, 2013 ONCA 598

Short Civil Decisions

Antonyuk v. Antonyuk, 2022 ONCA 145

Keywords: Family Law, Civil Procedure, Private International Law, Conflict of Laws, Foreign Divorces, Recognition, Orders, Setting Aside, Rules of Civil Procedure, Rule 59.06, Divorce Act, R.S.C., 1985, c. 3, s. 22 Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743, 806480 Ontario Limited v. RNG Equipment Inc., 2014 ONCA 796, Kootenay Savings Credit Union v. Brar, 2021 BCSC 2027

S.I. Systems Partnership v. Geng, 2022 ONCA 138

Keywords: Contracts, Restrictive Covenants, Independent Contractors, Costs, Partial Indemnity


CIVIL DECISIONS

Richardson v. Arsenov, 2022 ONCA 137

[Tulloch J.A. (Motion Judge)]

Counsel:

M.A. Jaeger, for the moving parties
P. Riddles, appearing as amicus curiae
G. Smits, for the responding parties

Keywords: Civil Procedure, Cross-Appeals, Extension of Time, Security for Costs, Rules of Civil Procedure, Rules 61.06(1), 61.07(a) and 61.07(b), Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.), affirmed 2009 ONCA 415, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633

facts:

The moving parties and the appellant, J.A., were siblings. Their father was elderly and incapable of managing his affairs. The moving parties alleged that appellants “engaged in a pattern of serious emotional and financial abuse” of their father before placing him in a nursing home.

The primary Order under appeal was the October 25, 2021 judgment of Skarica J. in which the moving parties were successful in obtaining a judgment under Rule 49.09 against the appellants. The responding parties appealed Skarica J’s decision.

The moving parties brought a motion seeking an extension of time to file a cross-appeal under Rules 61.07(a) and (b) of the Rules of Civil Procedure. The moving parties brought a second motion for security for costs under Rule 61.06(1), on that grounds that the responding parties’ appeal was frivolous and vexatious and that the responding parties did not have sufficient assets in Ontario to pay the costs of the appeal.

issues:

(1) Whether the motion seeking an Order for an extension of time to file a cross-appeal should be granted?

(2) Whether the motion seeking an Order for security for costs should be granted?

holding:

Motions granted.

reasoning:

(1) Yes.
While the moving parties delayed in filing their notice of cross-appeal, the motion judge was satisfied that they had every intention of arguing that the responding parties should be liable for partial summary judgment. Moreover, the motion judge noted that the length of delay was not substantial in all the circumstances and that the responding parties would not suffer any prejudice if the extension of time was granted. Lastly, the moving parties raised bona fide issues that were before the Court when the Order under appeal was made.

(2) Yes.
The motion judge found that there was good reason to believe the appeal was frivolous and vexatious. The appeal had little prospect of success. The responding parties were effectively the architects of their own demise: it was by their own actions in cycling through counsel and in failing to respond in a prompt fashion to the proceedings that the October 25, 2021 Order was made with minimal participation by their counsel. Furthermore, based on the responding parties’ materials and arguments, there was little chance of success on the issue of the impugned settlement offer, as well as with respect to the costs award. In terms of the vexatious nature of the appeal, there were numerous changes to counsel and delays that had been suffered by the moving parties over the past two years. Counsel for the responding parties suggested that a nominal amount of costs had been paid but no evidence of such payments had been provided to the court. The motion judge found that the responding parties had failed to fulfill the terms of the previous court orders issued.

Furthermore, the motion judge found that there was good reason to believe that the responding parties had insufficient assets in Ontario to pay the costs of the appeal. The responding parties were subject to a power of sale proceeding against their residence, which was their primary asset. There was also a lack of evidence provided as to the responding parties’ financial state of affairs and any ability to satisfy costs of the appeal. Moreover, the motion judge found it was in the interests of justice to order security, as the moving parties had not delayed in bringing the motion, and the amount of security sought was not prohibitive.


Desjardins General Insurance Group v. Campbell, 2022 ONCA 128

[Benotto, Brown and Harvison Young JJ.A.]

Counsel:

P. Santini, for the appellants

J. Obagi and S. Russell, for the respondent R. C.

Keywords: Insurance, Property, Quantification of Loss, Appraisals, Civil Procedure, Judicial Review, Insurance Act, R.S.O. 1990, c. I.8, s. 128, 148, An Act to Amend the Insurance Act, S.O. 1966, c. 71, s. 8, Rules of Professional Conduct, s. 5.2, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Madhani v. Wawanesa Mutual Insurance Company, 2018 ONSC 4282 (Div. Ct.), Northbridge General Insurance Corp. v. Ashcroft Homes-Capital Hall Inc., 2021 ONSC 1684, D. R. Fraser Co. v. Minister of National Revenue, [1948] 4 D.L.R. 776 (P.C.), Ice Pork Genetics Inc. v Lombard Canada Ltd. et al, 2010 MBQB 77, Florida Insurance Guaranty Association, etc. v. Branco (2014), 148 So. 3d 488, Congregation of Knox’s Church (Trustees) v. Hudson’s Bay Co., [1993] O.J. No. 764 (Ont. C. J. (Gen. Div.)), Shinkaruk Enterprises Ltd. and Mr. Klean Enterprises Ltd. v. Commonwealth Insurance Company et al., 71 D.L.R. (4th) 681 (Sask. C.A.), Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), Prince Edward County Field Naturalists v. Ontario (Environment and Climate Change) (2016), 2 C.E.L.R. (4th) 140 (Ont. Environmental Review Trib.), Birmingham Business Centre Inc. v. Intact Insurance Company, 2018 ONSC 6174 (Div. Ct.), Joseph R. Nolan et al., Black’s Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing, 1990), Bryan A. Garner et al. 8th ed. (St. Paul, Minn.: Thomson/West, 2004)

facts:

This appeal arose out of a number of applications and motions involving three separate insurance claims for damages to the respondent’s house caused by a tornado that hit the city of Ottawa on September 21, 2018. The appellant, Desjardins General Insurance Group (“Desjardins”), was the home insurer. The parties disagreed over the value of the loss, and the respondent triggered the appraisal mechanism under s. 128 of the Insurance Act. The respondent appointed her lawyer, J. O., as appraiser. Desjardins appointed an employee, who was the adjuster assigned to the respondent’s file. The appraisers agreed on the choice of an umpire.

After J. O. advised that he might be bringing a bad faith claim on the respondent’s behalf arising from the adjustment of her file, the umpire expressed concern about J. O.’s dual role as both an appraiser and a lawyer in the incipient action. He also expressed concern with the independence of Desjardins’ appraiser. He advised the parties that the appraisal “must be seen to function as an independent panel under the Insurance Act where there is no actual or perceived conflict of interest.” He would not proceed without directions from the Superior Court of Justice.

Desjardins satisfied the umpire’s concern by appointing an appraiser who was not an employee, but the respondent maintained J. O. as her lawyer-appraiser. Desjardins brought an application for judicial direction, asking the court, among other things, to remove J. O. as the respondent’s appraiser. The application judge held that while the umpire was required to be impartial, that was not true of the appraisers selected by the parties. Desjardins and other involved insurers appealed.

issues:

(1) Did the application judge err in rejecting the appellants’ submission that the Insurance Act implicitly imposes a duty of independence and impartiality on appraisers?

(2) Was the application judge correct in characterizing the appraisal scheme under the Insurance Act as an administrative tribunal?

holding:

Appeal dismissed.

reasoning:

(1) No.
The application judge correctly interpreted the relevant provisions of the Insurance Act. The application judge was correct in finding that there was no basis for requiring the removal of Desjardins’ choice of appraiser who is also her lawyer.

The purpose of the appraisal scheme under the Insurance Act is to provide an easy, expeditious, and cost-effective means for the settlement of claims for indemnity under insurance policies. The narrow function of the appraisal process is to provide the parties to the dispute with a valuation of the loss, and not the determination of legal rights.

The legislature removed the qualification “competent and disinterested” from the word “appraiser” from s. 148 of the Insurance Act through An Act to Amend the Insurance Act, s. 8. Sections 128(2) and (3) of the Insurance Act have never stipulated that appraisers must be “competent and disinterested.” The court must give effect to what the legislature intended, which was to remove the qualification “competent and disinterested” for appraisers.

The purpose of the appraisal scheme under the Insurance Act is to provide an easy, expeditious, and cost-effective means for the settlement of claims for indemnity under insurance policies. It is designed to be collaborative and not adjudicative. To fulfil the purposes of the appraisal scheme and to facilitate a collaborative process, an appraiser must attempt, in good faith, to reach a compromise with their fellow appraiser. If the appraisers are unable to agree, they appoint an umpire to resolve their disagreement, who becomes the tie breaker. The integrity of the process depends on the impartiality of the umpire. The appraisal process is subject to judicial review for denial of procedural fairness at common law from the moment of the umpire’s involvement.

Courts afford the umpire’s choice of procedure considerable deference and will be reluctant to interfere unless there is proof of fraud, collusion, bias, or partiality on the part of the umpire, or the umpire or the appraisers exceed their jurisdiction under the Act. This lack of a rigid structure is deliberate, intended to provide the insureds and the insurers with an expeditious and easy means for the settlement of claims for indemnity under insurance policies.

(2) No.
The application judge erred in characterizing the appraisal process as an administrative tribunal. The appraisal process is not a tribunal. Tribunals are quasi-judicial decision-making bodies tasked with determining issues on the facts and law in each case that comes before them.

There is no indication in the Act that the appraisal mechanism is an administrative tribunal. The appraisal process under the Act is based on discussion and on the sharing of expertise in valuation. It is not an arbitration. Appraisal does not require a hearing, consideration of evidence, or reasons. The ultimate decision maker if the parties are unable to agree is the umpire and not the appraisers.


Collingwood Aviation Partners Ltd. v. Winterland Airfield Holdings Ltd., 2022 ONCA 131

[Huscroft, Sossin and Favreau JJ.A.]

Counsel:

D. W. Levangue and T. Prpa, for the appellant
N. Roberts and M. Sheeley, for the Respondent

Keywords: Contracts, Interpretation, Real Property, Easements, Easements by Implication, Canadian Aviation Regulations, SOR/96-433, Gardiner v. Robinson, 2006 BCSC 1014, Anger & Honsberger, Law of Real Property, loose-leaf, 3rd ed. (Toronto: Thompson Reuters, 2021)

facts:

The appellant, Winterland Airfield Holdings Ltd. (“Winterland”), owns and operates an airport in Collingwood, Ontario. The respondent, Collingwood Aviation Partners Ltd. (“CAPL”), owns the adjoining property and operates air services and a flight school. Winterland appealed the application judge’s judgment in which he granted declarations that CAPL is entitled to unimpeded access to the airport lands and that Winterland is not entitled to charge user fees to CAPL for access to the lands.

The original owners of CAPL set up a company to build a runway on land owned by the Town that was designated for an airport. In exchange, the Town gave CAPL’s predecessor a plot of land abutting the airport lands. As part of the arrangement between the parties, CAPL’s predecessor also agreed to provide air services, including the operation of a flight school, on those lands. In 2014, after CAPL bought the flight school lands, it asked that the arrangement with the Town be reduced to writing. The parties entered an Operating Agreement on June 16, 2014. The Operating Agreement set out CAPL’s right to access the airport lands. Winterland bought the airport from the Town and as part of the transactions, the Town assigned the Operating Agreement to Winterland. In December 2019, Winterland erected a wire fence that surrounded CAPL’s property on three sides. The fence on the northern boundary of CAPL’s property impeded access to a field area that CAPL’s tenants used to used to turn airplanes around. The fence on the southern boundary blocked CAPL’s access to a drainage ditch, which cause problems with snow removal and flooding and a footpath access between two properties.

issues:

(1) Did the application judge err in interpreting the reference to “full access” in the Operating Agreement to mean “unimpeded access”?

(2) Did the application judge err in finding that the CAPL has a right to unimpeded access to the airport property on the basis of a common law easement by implication?
(a) Did the application judge err in finding that unimpeded access is “necessary” to CAPL’s reasonable enjoyment of its lands?
(b) Did the application judge err in failing to address and find that a 1992 agreement extinguished any easement right that may have previously existed?
(c) Did the application judge err by failing to consider that, even if an easement exists, it does not preclude Winterland from exercising some control over access to its property through the use of fences?

(3) Did the application judge err in finding that Winterland cannot charge user fees to CAPL for access to the airport lands?

(4) Did the application judge err in finding that Winterland did not prove that CAPL is underinsured?

(5) Did the application judge erred in dismissing the cross-application without giving it any proper consideration?

holding:

Appeal dismissed.

reasoning:

(1) No.
The Operating Agreement and the declarations granted by the application judge require CAPL to comply with all government laws and regulations. If CAPL does not comply with a particular law or regulation, Winterland is able to pursue available remedies to enforce compliance. The declarations made by the application judge do not preclude Winterland from doing so. There was no error in the application judge’s interpretation of the access clause in the Operating Agreement.

(2) No.

(a) No.
He ultimately concluded that the fencing and restrictions are “not just inconvenient, they are a serious interference with CAPL’s use of its property and, in addition, impose unnecessary hazards for the operation of the aircraft by CAPL and its tenants”. They were findings of fact supported by the record.

(b) No.
The 1992 agreement did not address access rights and, therefore, there was no basis for a finding that it extinguished the easement the application judge found existed in this case.

(c) No.
The application judge concluded that the proposed fencing would constitute a substantial interference with CAPL’s enjoyment of its property.

(3) No.
Winterland’s inability to charge access fees does not make the agreement commercially unreasonable. Winterland is entitled to charge other fees and, as pointed out by CAPL, the Town and now Winterland have derived other benefits from the arrangement between the parties, including CAPL’s obligation to buy fuel exclusively at the airport.

(4) No.
Winterland sought a declaration regarding the issue of insurance on the cross-application. It provided no evidence—notably presenting no expert evidence—that CAPL’s insurance coverage was inadequate. In the circumstances, the application judge made no error in dismissing this aspect of Winterland’s cross-application.

(5) No.
While the application judge’s conclusions on the cross-application are contained in a conclusory one paragraph section of his decision, it is evident from his decision as a whole that he considered the applicant’s cross-application. Winterland placed significant emphasis on the issue of a rolling fence, however, it was evident that this issue was not significant to the arguments before the application judge and did not detract from his finding that CAPL is entitled to unimpeded access to the airport lands.


Bakhsh v. Merdad, 2022 ONCA 130

[van Rensburg and Roberts JJ.A. and Tzimas J. (ad hoc)]

Counsel:

S. Benmor and M. Leslie, for the appellant
W.D.R. Beamish, for the respondent

Keywords: Family Law, Property, Equalization of Net Family Property, Unjust Enrichment, Constructive Trust, Civil Procedure, Jurisdiction, Res Judicata, Limitations Periods, Costs, Family Law Act, s 7(3)(a), Real Property Limitations Act, R.S.O. 1990, c. L.15, s 4, Rules of Civil Procedure, Rules 21.01(1)(a) and (3), McConnell v. Huxtable, 2014 ONCA 86, McNamee v. McNamee, 2011 ONCA 533, Rawluk v. Rawluk, [1990] 1 S.C.R. 70

facts:

The appeal involved a dispute over a condominium property located in Ontario (the “Condominium Property”). The parties were former spouses who were married and resided, and whose marriage was annulled, in Saudi Arabia. The central issue was whether the claim by the respondent in relation to the Condominium Property was an equalization claim under the Family Law Act (FLA) as the appellant argued, or a resulting or constructive trust claim as the respondent pleaded.

The respondent claimed a declaration of her 100% beneficial interest in the Condominium Property, whose legal title was in the appellant’s name. In response, the appellant brought a motion under Rules 21.01(1)(a) and (3) of the Rules of Civil Procedure, to dismiss the action on the basis that the Court had no jurisdiction over the subject matter of the action, or that is was res judicata or statute-barred.

The appellant argued that the claim was an equalization claim and, as such, was precluded because: (i) Ontario has no jurisdiction over a matter that is governed by Saudi Arabian law and should have been heard there, (ii) the parties’ property issues had already been decided in their annulment proceedings in Saudi Arabia, making the claim res judicata, and (iii) the respondent’s equalization claim was statute-barred, as it was not commenced within the applicable two-year limitation period under s. 7(3)(a) of the FLA. The appellant asked in the alternative that the proceedings be transferred to the family law list.

The motion judge refused the appellant’s motion to dismiss the action, transferred the proceedings to the family law list, and granted the respondent $10,000 as her costs of the motion.

issues:

(1) Does the Court lack jurisdiction over the subject matter of the respondent’s claim and is it res judicata?
(2) Is the claim and equalization claim and is it statute-barred?
(3) Did the motion judge err in making the costs order?

holding:

Appeal dismissed.

reasoning:

(1) No.
The Court found that Saudi Arabia did not have jurisdiction over the claim and, accordingly, the claim was not res judicata. The motion judge accepted the expert evidence that Saudi Arabian law does not provide for equalization claims. The family courts in Saudi Arabia resolve issues related to the status of marriages, such as divorce and annulments, but do not have jurisdiction over property and financial disputes. Property and financial disputes are within the jurisdiction of the Saudi Arabian civil courts. Further, the motion judge accepted the expert evidence that the civil courts of Saudi Arabia decline jurisdiction to deal with claims involving ownership of property and land outside of Saudi Arabia. Accordingly, Ontario had jurisdiction to adjudicate the claim of the respondent, who resides in Ontario, concerning property located in Ontario, legal title to which was in the appellant’s name.

The Court found that the motion judge’s determination was amply supported by the record and contained no errors.

(2) No.
The Court rejected the appellant’s submission that the claim was an equalization claim that was statute-barred. The Court disagreed that all property claims between former spouses must necessarily be equalization claims.

The FLA equalization provisions do not deal with property, per se, but, rather, with the equitable calculation, division, and distribution of the value of net family property. The respondent brought forward an equitable trust claim and not a claim for equalization for the value of the parties’ net family property. A trust claim is distinct from a claim for a share in property value. An equitable trust claim addressed the former and the equalization regime of the FLA covers only the latter. The equalization provisions of the FLA also do not preclude an equitable trust claim respecting property. Section 10(1) of the FLA expressly permits a court application for a determination between spouses or former spouses “as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties” and the court may “declare the ownership or right to possession”, as the respondent has claimed, among other remedies. Importantly, the two-year limitation period in s. 7(3)(a) of the FLA applies only to an application based on subsections 5(1) or (2) and not to the determination of a question of ownership between spouses set out in s. 10(1) of that Act.

(3) No.

The Court found there was no basis to interfere with the motion judge’s discretionary costs decision. The parties had agreed that the successful party on the motion would be entitled to costs in the amount of $10,000. It was entirely within the motion judge’s reasonable exercise of her discretion to determine that the respondent was the successful party, especially since she prevailed on the principal disputed issues on the motion.


Feltz Design Build Ltd. v. Larson, 2022 ONCA 150

[Strathy C.J.O., Roberts and Sossin JJ.A.]

Counsel:

E. Kerson, for the appellants
M. Cook, for the respondent

Keywords: Contracts, Construction, Civil Procedure, Summary Judgment, Construction Act, s. 7, Rules of Civil Procedure, Rule 20, Hryniak v. Mauldin, 2014 SCC 7, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2021 ONCA 589, Malik v. Attia, 2020 ONCA 787, Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265

facts:

The appellant Larson Properties Partnership Group (“LPPG”) retained the respondent Feltz Design Build Limited (“Feltz”) to provide construction services in relation to a property. A dispute between the parties arose, and in September 2019 Feltz registered a lien against the property for unpaid fees.

In January 2020, Feltz brought an action against LPPG, among other defendants.

In January 2021 Feltz was granted summary judgment against LPPG and its principal for $530,764.88 for breach of contract and breach of trust. Feltz had not sought summary judgment against the other defendants.

LPPG appeals from the motion judge’s decision.

issues:

(1) Did the motion judge err in failing to find a genuine issue requiring a trial?
(2) Did the motion judge err in finding that the matter was appropriate for partial summary judgment?

holding:

Appeal dismissed.

reasoning:

(1) No.
The motion judge identified the proper standard on a motion for summary judgment under Rule 20 of the Rules of Civil Procedure, citing Hryniak v. Mauldin.

The motion judge’s finding of liability for breach of contract and breach of trust (on the part of LPPG’s principal) and quantum awarded was supported by the evidentiary record and entitled to deference.
(2) No.

The granting of summary judgment was not “partial” with respect to the appellants. Rather, the judgment addressed the liability of the appellants and Feltz’s claims against them in their entirety. The partial nature of the summary judgment, to the extent it could be characterized as such, related to the fact that other parties had encumbrances against the property as well and were included as defendants. There was no basis for appellate intervention on this issue. The concerns set out in the case law relevant to partial summary judgment did not arise in this case. No aspect of the liability toward Feltz remained in doubt following the judgment. The issue of any remedies for or against the other encumbrancers was a separate question which, for all intents and purposes, was no longer


Fanshawe College of Applied Arts and Technology v. Hitachi, Ltd., 2022 ONCA 144

[Lauwers, Huscroft and Coroza JJ.A.]

Counsel:

B. Moran, L. Visser and K. Shapiro, for the moving party
B. Harrison, Paola Ramirez and A. Labib, for the responding party Class Action Capital Recovery LLC

Keywords: Civil Procedure, Class Proceedings, Claims Process, Appeals, Jurisdiction, Courts of Justice Act, R.S.O. 1990, Section 6(1)(b), c. C.43, Class Proceedings Act, 1992, S.O. 1992, Arbitration Act, 1991, S.O. 1991, c. 17, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, s. 11UNCITRAL Model Law on International Commercial Arbitration, Bancroft-Snell v. Visa Canada Corporation, 2019 ONCA 822, Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471, Dabbs v. Sun Life Assurance Co. of Canada (1998), 41 O.R. (3d) 97 (C.A.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Fontaine v. Canada (Attorney General), 2012 ONCA 206, Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.), Ross v. Canada Trust Company, 2021 ONCA 161, Gefen v. Gaertner, 2021 ONCA 631, Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501

facts:

This motion to quash an appeal was brought in the context of a class action for price-fixing related to the sale of cathode ray tube (“CRT”) products by various electronics manufacturers. The action is presently in the settlement administration phase, a court-approved Distribution Protocol was in place, which set out a claims process for distributing settlement funds to class members. The Superior Court’s endorsement dated January 6, 2021, set out Protocol requirements for claimants to submit Claims Forms detailing CRT product purchases. The Protocol provides claimants with a right of appeal against the decisions of the Claims Administrator to the Superior Court or its designate. However, the Protocol purports to prevent any further appeals.

Class Action Capital Recovery LLC (“CAC”) acted as a third-party filer for some claimants, but it is not itself a party to the class action. CAC sought to appeal a decision of the motion judge relating to the claim reconsideration process. Class counsel moved to quash the appeal.

issues:

(1) Does the Court of Appeal have jurisdiction to hear the appeal?
(2) Does CAC have standing?
(3) Is the appeal out of time?
(4) Is the appeal a collateral attack on the January 6, 2021 order?

holding:

Motion dismissed.

reasoning:

(1) Yes.
When he took up his responsibility under the Protocol, the motion judge did not cease acting in his capacity as a Superior Court judge. There is no language in the Class Proceedings Act or in any other Ontario statute ousting the Court of Appeal’s jurisdiction. Paragraph 55 of the Protocol was not sufficient, on its own, to oust the Court’s appellate jurisdiction that it would otherwise have under the Courts of Justice Act. This fact might counsel caution in the future design of class action distribution protocols. Section 30 of the Class Proceedings Act does not specifically address the appeal route for this type of order, therefore appeals of this type are governed by s. 6(1) of the Courts of Justice Act. Under s. 6(1)(b), CAC’s appeal is within the jurisdiction of the Court of Appeal.

(2) Yes.
CAC must be understood as having the status of an agent for its clients in this phase of the class proceeding. A more formalistic approach would only undermine the goals of class proceedings by, for example, requiring each claimant inefficiently and expensively to advance its own appeal.

(3) No.
No formal order was ever entered from the January 6, 2021 decision. The court noted that perhaps it was because the parties could not agree on the terms. The letters that the parties sent to the motion judge seeking to clarify the meaning of the January 6 decision demonstrated their persistent disagreement that was only resolved on September 21, 2021, when the motion judge’s subsequent endorsement was released. Given the continued dispute about the meaning of the January 6 decision, the date on which the judgment exhibited sufficient certainty for appeal purposes was September 21, 2021, when the motion judge’s subsequent endorsement was released. As a result, the appeal was commenced in time.

(4) Not decided.
The collateral attack argument is a defence to be argued on appeal, not a reason to quash an appeal for want of jurisdiction. The issue must be left to the panel hearing the appeal.


Graham v. Toronto (City), 2022 ONCA 149

[Simmons, Pardu and Brown JJ.A.]

Counsel:

E. Vila, for the appellant
J. McCoy and A. Preyra, for the respondents

Keywords: Torts, Municipal Liability, Slip and Fall, Civil Procedure, Reverse (Boomerang) Summary Judgment, Limitation Periods, Statutory Notice, Reasonable Excuse for Delay, City of Toronto Act, 2006, S.O. 2006, c. 11, ss 42(6) and 42(8), Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06, Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, Seif v. Toronto (City), 2015 ONCA 321, Azzeh v. Legendre, 2017 ONCA 385

facts:

On January 2, 2018, the respondent, R.G, tripped on a pothole in a pedestrian crosswalk in mid-town Toronto. R.G and her husband, D.M, sued the City of Toronto (the “City”). The City moved for summary judgment dismissing the action by reason of R.G’s failure to provide timely notice under Section 42(6) of the City of Toronto Act (the “Act”).

The motion judge dismissed the City’s motion, holding that the failure to provide the 10-day notice did not bar her action as there was a reasonable excuse for the want or sufficiency of the notice and the City was not prejudiced in its defence: s. 42(8) of the Act. As well, notwithstanding the absence of a cross-motion, the motion judge granted them summary judgment dismissing the City’s statutory notice defence and declaring that the respondents’ action was not statute-barred by s. 42(6) of the Act, a form of the so-called boomerang or reverse summary judgment.

The City appealed on two grounds.

issues:

(1) Was the summary judgment the product of an unfair process?
(2) Did the motion judge err in applying the twofold requirements of s. 42(8) of the Act: reasonable excuse and no prejudice to the City?

holding:

Appeal dismissed.

reasoning:

(1) No.
Summary judgment motions are intended, in part, to achieve fair and just results. Consequently, where a responding party has not filed a notice of cross-motion that seeks summary judgment against the moving party, yet the motion judge intends to grant judgment against the moving party, the court must give the moving party some notice of that litigation risk so that the moving party can address it. The lack of such notice may render any resulting reverse summary judgment unfair.

There are several ways that a court case ensure a moving party has such notice, including, but not limited to: if, during the course of preparing reasons disposing of the motion the presiding judge forms the view that granting a reverse summary judgment might be appropriate in the circumstances, the judge should so inform the parties and afford them an opportunity to make further submissions.

In this case, the motion judge emailed City counsel to advise them, requested that counsel inform her if they wished to make further submissions, and counsel subsequently advised that they did not wish to make such submissions. Therefore, the court determined that there was no unfairness in the procedure followed because counsel had notice the motion judge was considering reverse summary judgment and declined to make further submissions.

(2) No.
To determine whether a plaintiff has demonstrated a reasonable excuse, a court must ascertain whether, in all of the circumstances of the case, it was reasonable for the plaintiff not to give notice until she did. The motion judge’s reasons disclosed that she considered all the circumstances, did not fail to appreciate relevant evidence, did not misapprehend the evidence, and did not draw any unreasonable inferences. It followed that there was no basis for appellate intervention with the determination that R.G had demonstrated a reasonable excuse.

The motion judge noted that the City’s affiant admitted that the alleged prejudice rested solely on the fact that the City did not take measurements of the pothole before it was repaired. Such measurements would be relevant to any defence by the City that it was not liable for keeping the crosswalk in a reasonable state of repair because at the time it had met the minimum regulatory maintenance standards. The motion judge identified a large body of evidence that led her to conclude that the delay in giving notice would not prejudice the City’s defence: (i) R.G took photos of the pothole within the 10-day period; (ii) D.M gave evidence that he inspected the pothole on the day of the incident and estimated its depth at six inches; (iii) the City took photos of the pothole 17 days after the fall, in response to a complaint about the hole by another person; (iv) the City field investigator who took the photos determined the pothole required repair, which was quickly done; (v) the City did not provide evidence explaining why they did not measure the dimensions before the repair; and (vi) the respondents filed an expert report that opined on the dimensions of the pothole using the various January 2018 photos, yet the City did not cross-examine the expert. Accordingly, ample evidence supported the motion judge’s conclusion that the “no prejudice to the City in its defence” element of s. 42(8) of the Act was satisfied. The Court saw no reversible error in that conclusion.

Finally, the decision did not preclude the City from advancing a defence that the crosswalk was in a state of proper repair based on the minimum standards for pothole repair set out in s. 6 of Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06. Nor did it preclude the trial judge from rejecting the evidence of the respondents’ expert concerning the dimensions of the pothole.


White v. Upper Thames River Conservation Authority, 2022 ONCA 146

[Lauwers, Huscroft and Coroza JJ.A.]

Counsel:

V. Simkic and M. Helfand, for the appellants
I. Wright, for the respondent
E. Fellman and K. Snukal, for the intervener Landlord and Tenant Board
K. Andrews, for the intervener Advocacy Centre for Tenants Ontario

Keywords: Contracts, Real Property, Residential Tenancies, Occupancy Limitations, Security of Tenure, Reasonable Enjoyment, Administrative Law, Standard of Review, Statutory Interpretation, Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss 2, 3, 4, 5, 22, and 210, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, R. v. Walsh, 2021 ONCA 43, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thompson/West, 2012)

facts:

The tenants were the owners of homes which sit on land leased from the Upper Thames River Conservation Authority. The parties have a longstanding rental relationship that has always included occupancy limitations. Under the terms of their leases, for three months out of the year, the tenants were only permitted to reside in theirs homes on the weekend. The Landlord and Tenant Board (the “Board”) initially granted the tenants an order allowing unrestricted access to the property and occupation of their homes. That order was overturned by the Ontario Divisional Court.

This was an appeal from the decision of the Board on a question of law pursuant to the Residential Tenancies Act (the “Act”). As such, the presumption of reasonableness review was rebutted, and the standard of review was correctness.

issues:

Are occupancy limitations inconsistent with the Residential Tenancies Act, and therefore void under section 4 of the Act?

holding:

Appeal allowed.

reasoning:

The Court applied the modern approach to statutory interpretation. The purpose of statutory interpretation is uncontroversial: it is to determine the intention of the legislature. The Supreme Court summarized the modern approach recently in Vavilov, at para. 117:

“A court interpreting a statutory provision does so by applying the “modern principle” of statutory interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: see, e.g., Interpretation Act, R.S.C. 1985, c. I-21”

The modern approach to statutory interpretation is now referred to as “text, context, and purpose”. The Court determined that in this case, the text, context, and purpose of the Act confirm that the Act contemplates only non-temporary, non-conditional, unlimited occupancy arrangements. In short, occupancy limitations in residential leases are not permitted.

The Court cited the submissions of the interveners, Advocacy Centre for Tenants Ontario and the Landlord and Tenant Board, which highlighted the security of tenure provisions of the Act – provisions that the Divisional Court failed to consider. These provisions are premised on the notion that the Act establishes ongoing tenancies that may be renewed following completion of the initial fixed term. The circumstances in which a landlord may take possession of a rental unit from a tenant are strictly limited to lawful termination, abandonment, death, assignment, eviction, or a Board order – in other words, the end of a tenancy in accordance with the Act. Nothing in the Act authorizes a landlord to take possession of a residential unit during an ongoing tenancy or assists the landlord in doing so.

The Court went out to state: “None of this is surprising in the context of an Act that is designed to redress the imbalance in bargaining power between landlords and tenants. Occupancy limitations are at odds with the very scheme of the Act. This is confirmed by the core concepts in the Act – tenant and tenancy agreement – both of which are defined in s. 2(1) in terms of tenants’ right to occupy the units they rent”.

Therefore, the Court determined that the Act establishes security of tenure. Occupancy limitations are inconsistent with the Act and are rendered void by s. 4. In other words, the parties’ agreement to such limitations is simply irrelevant: freedom of contract values cannot be invoked to limit the protection the Act provides.

The Court determined that it was unnecessary to consider, as the Divisional Court had, reasonable enjoyment under section 22 of the Act.


2651171 Ontario Inc. v. Brey ,2022 ONCA 148

[Rouleau, van Rensburg and Roberts JJ.A]

Counsel:

J.F. Lalonde and L. Benoit, for the appellant

M. V. Peters and M. Miklaucic, for the respondent

P. B. M. Swindley, for the respondent, Grapevine Realty Inc.

Keywords: [KEYWORDS]

facts:

The appeal concerned the appellant’s failed real estate purchase from the respondent, P.B., and its claim for damages and the return of its $25,000 deposit held by the listing agent, the respondent, Grapevine Realty Inc., who took no position on the appeal.

The narrow issue on appeal was whether the motion judge erred in her interpretation of the deadline provisions for raising off title objections, which were contained in paragraph 8 of the agreement of purchase and sale between the appellant and the respondent P.B., and by determining that the deadline for the requisitions at issue was August 26, 2019.

The motion judge concluded that her finding of the August 26, 2019 deadline resolved all contractual claims between the parties. She dismissed the appellant’s motion for summary judgment and granted judgment to the respondent in the amount of $52,216.65, including the appellant’s $25,000 deposit, plus costs of $50,000, inclusive of fees and applicable taxes.

The appellant submitted that the motion judge erred by failing to consider paragraph 8 in its entirety. The appellant argued that a proper reading of paragraph 8 placed the ultimate deadline as five days prior to the October 1, 2019 closing date, namely, September 26, 2019. Accordingly, the appellant’s objections were timely and the respondent P.B.’s refusal to respond to them allowed the appellant to terminate their agreement. The appellant asked that the motion judge’s judgment be set aside and that the appellant be granted judgment with costs.

issues:

(1) Did the motion judge err in interpreting a standard form agreement?

(2) Did the appellant raise a valid objection to the legal use of the property?
(3) Was the appellant estopped or otherwise barred from claiming relief with respect to the present use of the property?

(4) Did the appellant’s post-closing conduct affect this appeal?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The motion judge properly instructed herself that, as the court directed in Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, a commercial contract should be interpreted “as a whole, in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective”.

Unfortunately, the motion judge failed to follow these directives. By rejecting the October 16, 2019 date in part (i) of paragraph 8 as commercially absurd, the motion judge failed to consider and give effect to the entirety of the paragraph, as she was required to do. When the paragraph is viewed in its entirety, there is nothing commercially absurd about the October 16th date. It is merely one factor to consider in the entirety of the formula set out in paragraph 8 to determine the requisition deadline.

Paragraph 8 provides for a choice between the earlier of two dates under parts (i) and (ii). In properly interpreting the entirety of the paragraph, it was necessary first to ascertain “the later” of the two dates provided for in part (i), namely, October 16th (30 days from the requisition date of September 16th) and August 26th (30 days from the appellant’s waiver on July 26th). The later date is October 16th. Moving next to part (ii), the date is “five days prior to completion” (October 1st closing date), that is, September 26th. The earlier of October 16th and September 26th, is September 26th. September 26th is prior to the October 1st closing date. When read in its entirety, paragraph 8 does not yield any commercial absurdity.

September 26, 2019 was the correct deadline for the appellant to make the off-title requisitions specified in paragraph 8 of the agreement of purchase and sale, including with respect to the lawful use of the property as a residential fourplex. The appellant therefore made its objections within the deadline provided for under paragraph 8 of the agreement of purchase and sale.

(2) Yes.

The Court agreed with the respondent P.B.’s submission that it was necessary for the court to determine the question of whether the appellant’s objection was valid and therefore triggered paragraph 10 of the agreement of purchase and sale, allowing for the termination of the agreement of purchase and sale. This was an appropriate case for this court to exercise its fact-finding powers and make a decision that the motion judge could have made, pursuant to ss. 134(1) and (4)(a) of the Courts of Justice Act.

Although the motion judge did not make any findings on this issue, the record was sufficient to permit the Court to address and determine the question. It did not require the resolution of credibility issues. In keeping with the Supreme Court’s direction in Hryniak v. Mauldin, the Court’s determination of this issue would be “a proportionate, more expeditious and less expensive means to achieve a just result” without working any unfairness to the parties.

The appellant’s timely requisition raised a legitimate objection as to whether the property could be legally used as a fourplex. Whether the continued use of the property as a fourplex was legal was a valid concern properly raised by requisition as specifically provided for in paragraph 8 of the agreement of purchase and sale.

This was not a peripheral issue. The appellant wished to rent out the property as a commercial investment. The respondent P.B. described the property in the listing as a fourplex. The importance of the legal use of the property was reflected in the provisions of paragraphs 8 and 10 that permitted the appellant to raise a valid objection concerning the legal use of the property as a residential fourplex and terminate the agreement if the objection was not satisfied.

The uncontroverted evidence from the City of Ottawa supported the validity of the appellant’s objection regarding the lawful use of the property as a fourplex. Among other information, the City of Ottawa’s September 26, 2019 Compliance Report advised that conformity of the present use of the property as a fourplex could not be verified. Moreover, the evidence given by P.K., a City of Ottawa Program Manager of Building Inspections for Central East Division, was that the present use of the property as a fourplex was not permitted.

This evidence was sufficient to give rise to a valid objection as to whether the present use of the property as a fourplex could be continued. There was no controverting evidence that the property could be lawfully used as a fourplex in its present state.

Paragraph 10 of the agreement clearly provided that once a valid objection was raised, the respondent P.B. had to “remove, remedy or satisfy” the appellant’s valid objection. The respondent P.B. did not do this; rather, he declined to address the appellant’s objection.

The respondent P.B. having failed to “remove, remedy or satisfy” the appellant’s valid objection, the appellant was entitled to treat the agreement of purchase and sale as at an end and did not breach the agreement by failing to close the transaction on October 1, 2019.

(3) and (4)

It was not necessary to address in detail the other issues raised by the respondent P.B. because they did not affect the outcome of this appeal.

First, estoppel by convention or conduct had no application here. There was no evidence that the appellant at any time waived its rights under paragraphs 8 and 10 of the agreement of purchase and sale. On the contrary, the appellant insisted on them, treated the agreement as at an end, and refused to close the transaction.

Second, the respondent P.B. submitted that the appellant’s conduct in raising the question of the legality of the property’s use as a fourplex with P.K. during the cross-examination on his affidavits was improper and should result in the denial of any remedy. The Court disagreed. There was no impropriety in the appellant’s cross-examination of P.K. It was the respondent P.B. who filed P.K.’s affidavit evidence. It was entirely legitimate for the appellant to cross-examine P.K. on the relevant issue of the property’s legal use.

Once the conditions in paragraphs 8 and 10 were triggered, the appellant was entitled to terminate the agreement.


Carvalho v. Amorim, 2022 ONCA 158

[Trotter, Coroza and Favreau JJ.A.]

Counsel:

P. D. Monte, for the appellant
E. Smolarcik, for the respondent D. C.
D. Yiokaris, for the respondent The Labourers’ Pension Fund of Central and Eastern Canada

Keywords: [KEYWORDS]

facts:

The appellant appeals a judgment declaring that she does not meet the eligibility requirements of a “spouse” under s. 44 of the Pension Benefits Act, R.S.O. 1990, c. P.8.

The parties married in 1980 when they were both residents of Portugal. They had one child. The respondent, D. C., moved to Canada in 1985. The appellant joined him in 1990, but returned to Portugal two months later. D. C. traveled to Portugal from time to time, but worked and lived in Canada while his wife lived in Portugal. The couple were formally divorced on July 14, 2009.

In August 2002, D. C. applied to the Pension Fund for a disability pension. He advised the Pension Fund that he was legally married, but provided a waiver allegedly signed by the appellant waiving her right to a spousal survivor pension.

At the time of the divorce proceedings, the appellant appointed her brother as her attorney for property in Canada. Her brother contacted the Pension Fund to enquire about whether D. C. had applied for a pension, and advised the appellant had never signed a spousal waiver. The Pension Fund subsequently reduced D. C.’s monthly payments to the joint and survivor benefit rate and notified him that he would be required to repay the overpayment unless he could prove that the appellant signed the waiver or that he and the appellant were living separate and apart when his pension began.

D. C. brought an application to the Superior Court. The application judge found that D. C. and the appellant were living separate and apart at the time D. C. started receiving pension benefits. The appellant did not sign the waiver. The appellant did not meet the eligibility requirements of a spouse under the Pension Benefits Act and D. C. was entitled to pension benefits on a “life-only” basis.

issues:

(1) Did the application judge erred in finding that she and D.C. were living separate and apart in 2002?

holding:

Appeal dismissed

reasoning:

(1) No.
There is no error in the application judge’s decision.

The application judge started with the correct legal test. Section 44(1) of the Pension Benefits Act provides that every pension paid to a member who has a spouse is to be paid out on a “joint and survivor pension” basis unless, pursuant to s. 44(4)(b), the member and his or her spouse are living “separate and apart” on the date that the first pension payment is due. The application judge turned to the case law under s. 8 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and reviewed the evidence from both parties about their living arrangements at the relevant time. He concluded that at the time D. C. first began receiving his disability pension, he and the respondent were “living separate and apart”, as they were physically separated, and did not participate in each other’s lives in any meaningful way. There was no reviewable error in the application judge’s findings of fact.


Corvello v. Colucci, 2022 ONCA 159

[Strathy C.J.O., Roberts and Sossin JJ.A]

Counsel:

B. Phillips, for the appellant
F. Schumann, for the respondents

Keywords: Property, Land Use Permit, Trusts, Three Certainties, Intention to Create Trust, Civil Procedure, Evidence, Witnesses, Credibility, Byers v. Foley (1993), 16 O.R. (3d) 641 (Gen. Div.), D.M.W. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984), Chechui v. Nieman, 2017 ONCA 669, Ontario (Training, Colleges and Universities) v. Two Feathers Forest Products LP, 2013 ONCA 598

facts:

At issue was the ownership of a land use permit which was obtained from the Ontario government in 1974 (the “permit”). The permit allows the holders to build on and use the property for recreational purposes. The permit does not confer any rights of ownership over the land or any interest in the land. Since obtaining the permit, the parties and their families had harmoniously enjoyed the use of a recreational property on Lac Seul in the District of Kenora, Ontario. The appellant and the respondents had all contributed to the property, all costs of the property were shared three ways, and the three of them discussed and agreed on any improvements to the property. Once it was permitted by the government to do so, they agreed to put the permit in their three names and the appellant wrote to the government asking for this change. All three referred to themselves as owners of the property, are named insureds on the insurance for the property, and had use of the property without asking the appellant for permission. The appellant later took the position that the permit belonged to him alone and excluded the respondents from the land.

The appellant appealed the trial judgment granting the respondents a declaration that the appellant holds the permit in trust for himself and the respondents as beneficial owners

issues:

(1) Did the trial judge err in law and in fact in determining that an undocumented trust agreement existed when the alleged settlor provided an alternate explanation as to what his intention was?

holding:

Appeal dismissed.

reasoning:

(1) No.
It is well established that the creation of a valid trust requires “three essential characteristics” or three certainties: certainty of intention to create a trust; certainty of subject matter; and certainty of objects. The appellant argued that there was no certainty of intention to create the subject trust.

It was open to the trial judge to accept some, all, or none of any witness’s evidence. Further, the trial judge need not treat the absence of a formal trust agreement or the fact that the permit was in the appellant’s name alone as determinative of intention. Rather, to ascertain certainty of intention in the absence of a written trust agreement, she was required to look at “the surrounding circumstances and the evidence as to what the parties intended, as to what was actually agreed, and as to how the parties conducted themselves”. Furthermore, she was also required to make findings based on her assessment of the credibility and reliability of the evidence presented at trial. Findings open to the judge based on the evidentiary record and credibility findings attract deference. Rather than focus on the appellant’s subjective intention, she was to apply an objective standard to ascertain the certainty of intention of all the parties; to look at the evidence as a whole in determining intention.

The trial judge followed this approach. She reviewed the evidence of each of the three parties, provided detailed reasons for her acceptance of the respondents’ evidence and her conclusion that the intention “was that they were ‘partners’ in and ‘co-owners’ of the [permit].” Therefore, the trial judge appropriately concluded that a trust did exist, that the appellant held the permit in trust for himself and the respondents, and further that the permit was in appellant’s name because the government at the time of issuance would not permit it to be put into more than one name.



SHORT CIVIL DECISIONS

Antonyuk v. Antonyuk, 2022 ONCA 145

[Feldman, Pepall and Tulloch JJ.A.]

Counsel:

I. Antonyuk, acting in person
I. Yushchenko, for the respondent/responding party

Keywords: Family Law, Civil Procedure, Private International Law, Conflict of Laws, Foreign Divorces, Recognition, Orders, Setting Aside, Rules of Civil Procedure, Rule 59.06, Divorce Act, R.S.C., 1985, c. 3, s. 22 Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743, 806480 Ontario Limited v. RNG Equipment Inc., 2014 ONCA 796, Kootenay Savings Credit Union v. Brar, 2021 BCSC 2027

S.I. Systems Partnership v. Geng, 2022 ONCA 138

[Simmons, Pardu and Brown JJ.A.]

Counsel:

J. Dolman and I. Crew, for the appellant
M. Layton and K. Krupat, for the respondents
Keywords: Contracts, Restrictive Covenants, Independent Contractors, Costs, Partial Indemnity


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

Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles professional discipline and professional negligence matters, as well as complex estates and matrimonial litigation. In addition, John represents amateur sports organizations in contentious matters, and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.