Court Of Appeal Summaries (August 14 ' 18, 2023)

• Published date: 29 August 2023
• Subject Matter: Finance and Banking, Consumer Protection, Government, Public Sector, Litigation, Mediation & Arbitration, Charges, Mortgages, Indemnities, Financial Services, Constitutional & Administrative Law, Education, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos and Ines Ferreira

Firstly, we would like to congratulate our firm's very own, Robert Potts (and his co-counsel, Alan Pratt), for the result obtained in Whiteduck v Ontario. In that case, our clients, the Algonquins of Ontario, sought a declaration that Ontario breached its duty to consult and accommodate their interests before it recognized the Killarney and the Mattawa/Ottawa River Métis communities and gave them unlimited harvesting rights. Our clients' claim was struck by the motion judge on the basis of a lack of standing. The appeal was allowed. The duty to consult and accommodate gave the Algonquins the necessary standing to bring the action and to claim the consequential relief sought. The Court also found that the Algonquins were free to challenge Ontario's decision by way of action rather than by way of judicial review.

In Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board, the Court upheld the Divisional Court's decision that the Minister's decisions regarding an application by the appellant to be recognized as a university were reviewable, justiciable, and reasonable. The Court rejected arguments that the Minister's actions exceeded his authority, emphasizing the permissibility of referring matters to a Board and delaying proclamation according to legislative provisions. The Court also dismissed claims of unfairness, maintaining that the process met fairness standards and that the Minister's discretion was subject to legitimate constraints.

Benjamin Cochrane Trust (Re) was a passing of accounts case in which parents who were administering their son's trust funds derived from a personal injury settlement were found not to have properly accounted for the use of the funds and were ordered to pay funds back into the trust. The matter was heard over a 14-day trial involving relatively modest sums.

In Dramel Limited v. Multani, the Court refused a stay of the enforcement of a mortgage over a residential property pending appeal.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Whiteduck v Ontario, 2023 ONCA 543

Keywords: Constitutional Law, Aboriginal Law, Duty to Consult, Duty to Accommodate, Administrative Law, Judicial Review, Civil Procedure, Striking Pleadings, Constitution Act, 1982, s 35(1), Canadian Charter of Rights and Freedoms, Judicial Review Procedure Act, RSO 1990, c J1, ss 2(1), 6, Federal Courts Act, RSC 1985, c F-7, s 18, Courts of Justice Act, RSO 1990, c C43, s 138, Rules of Civil Procedure, rr. 5.03(1), 21.01(1)(b)(3)(a), R. v Powley, 2003 SCC 43, Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53, Mikisew Cree First nation v. Canada (Governor General in Council), 2018 SCC 40, Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73, Mikisew Cree First nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, Mitchell v M.N.R., 2001 SCC 33, Restoule v. Canada (Attorney General), 2021 ONCA 779, Nevsun Resources Ltd. v Araya, 2020 SCC 5, Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, R v Marshall, [1999] 3 S.C.R. 456, Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, Tsilhqot'in Nation v British Columbia, 2014 SCC 44, Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43, Rodaro v Royal Bank of Canada, (2002), 59 O.R. (3d) 74, North Slave Métis Alliance v Canada (Indian Affairs and Northern Development), 2017 FC 932, Behn v Moulton Contracting Ltd., 2013 SCC 23, Chilian v Augdome Corp. (1991), 2 O.R. (3d) 696, Lax Kw'alaams Indian Band v Canadian (Attorney General), 2011 SCC 56, Keewatin v Ontario (Minister of Natural Resources) (2003), 66 O.R. (3d) 370, Canada (Attorney General) v TeleZone Inc., 2010 SCC 62, Apotex Inc. v Ontario (Minister of Health) (2000), 10 CPR (4th) 166, Ontario Federation of Anglers and Hunters v Ontario (Minister of Natural Resources and Forestry), 2015 ONSC 7969, Ontario (Attorney General) v Clark, 2021 SCC 18, Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2016 ONSC 2806, Zhang v Canada (Attorney General), 2007 FCA 201, Krieger v Law Society of Alberta, 2002 SCC 65, R v Anderson, 2014 SCC 41

Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board, 2023 ONCA 544

Keywords: Constitutional Law, Administrative Law, Judicial Review, Ministerial Decisions, Justiciability, Procedural Fairness, Legislation Act 2006, S.O. 2006, c. 21, Sched. F., Northern Regional Health Authority v. Horrocks, 2021 SCC 42, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, University of Ontario Institute of Technology v. Ontario (Finance), 2016 ONSC 7741, Roncarelli v. Duplessis, [1959] S.C.R. 121, C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, R. v. Secretary of State for the Home Department ex p Fire Brigades Union, [1995] UKHL 3 ('Fire Brigades Union'), Authorson v. Canada (Attorney General), 2003 SCC 39, Attorney General of Canada v. Inuit Tapirisat et al., [1980] 2 S.C.R. 735, Canada (Attorney General) v. Mavi, 2011 SCC 30

Dramel Limited v. Multani,, 2023 ONCA 540

Keywords: Contracts, Real Property, Mortgages, Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Writs of Possession, Courts of Justice Act, s. 134(2), Rules of Civil Procedure, r. 63.02(1), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Starkman v. Home Trust Company, 2015 ONCA 436, Morguard Residential v. Mandel, 2017 ONCA 177

Benjamin Cochrane Trust (Re), 2023 ONCA 546

Keywords: Trusts, Trustees, Passing of Accounts, Compensation, Remedies, Equitable Set-Off, Civil Procedure, Prejudgment Interest, Costs, Trustee Act, R.S.O. 1990, c. T.23, Zimmerman v. McMichael Estate, 2010 ONSC 2947, Birks v. Micklethwait (1864), 33 Beav. 409, The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, Toller James Montague Cranston (Estate of), 2021 ONSC 1347, aff'd 2022 ONSC 6636, Steven Thompson Family Trust v. Thompson, 2012 ONSC 7138, Simone v. Cheifetz (2000), 36 E.T.R. (2d) 297 (Ont. C.A.)

Short Civil Decisions

Awad v. Dover Investments Limited , 2023 ONCA 542

Keywords: Civil Procedure, Appeals, Extension of Time, Costs, Machado v. Ontario Hockey Association, 2019 ONCA 210

CIVIL DECISIONS

Whiteduck v Ontario , 2023 ONCA 543

[Fairburn A.C.J.O., Doherty and Lauwers JJ.A]

Counsel:

Robert Potts and Alan Pratt, for the appellants

J. Madden, A. Saieva-Finnie, P. Seaman, and K. Brown, for the respondents, Métis Nation of Ontario and Métis Nation of Ontario Secretariat Inc.

W. MacLarkey and J. Claydon, for the respondent His Majesty the King in Right of Ontario

S. Luk and B. Brookwell, for the interveners

Keywords: Constitutional Law, Aboriginal Law, Duty to Consult, Duty to Accommodate, Administrative Law, Judicial Review, Civil Procedure, Striking Pleadings, Constitution Act, 1982, s 35(1), Canadian Charter of Rights and Freedoms, Judicial Review Procedure Act, RSO 1990, c J1, ss 2(1), 6, Federal Courts Act, RSC 1985, c F-7, s 18, Courts of Justice Act, RSO 1990, c C43, s 138, Rules of Civil Procedure, rr. 5.03(1), 21.01(1)(b)(3)(a), R. v Powley, 2003 SCC 43, Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53, Mikisew Cree First nation v. Canada (Governor General in Council), 2018 SCC 40, Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73, Mikisew Cree First nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, Mitchell v M.N.R., 2001 SCC 33, Restoule v. Canada (Attorney General), 2021 ONCA 779, Nevsun Resources Ltd. v Araya, 2020 SCC 5, Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, R v Marshall, [1999] 3 S.C.R. 456, Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, Tsilhqot'in Nation v British Columbia, 2014 SCC 44, Rio Tinto Alcan Inc. v Carrier Sekani Tribal Council, 2010 SCC 43, Rodaro v Royal Bank of Canada, (2002), 59 O.R. (3d) 74, North Slave Métis Alliance v Canada (Indian Affairs and Northern Development), 2017 FC 932, Behn v Moulton Contracting Ltd., 2013 SCC 23, Chilian v Augdome Corp. (1991), 2 O.R. (3d) 696, Lax Kw'alaams Indian Band v Canadian (Attorney General), 2011 SCC 56, Keewatin v Ontario (Minister of Natural Resources) (2003), 66 O.R. (3d) 370, Canada (Attorney General) v TeleZone Inc., 2010 SCC 62, Apotex Inc. v Ontario (Minister of Health) (2000), 10 CPR (4th) 166, Ontario Federation of Anglers and Hunters v Ontario (Minister of Natural Resources and Forestry), 2015 ONSC 7969, Ontario (Attorney General) v Clark, 2021 SCC 18, Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2016 ONSC 2806, Zhang v Canada (Attorney General), 2007 FCA 201, Krieger v Law Society of Alberta, 2002 SCC 65, R v Anderson, 2014 SCC 41

facts:

The Algonquins have been negotiating with Ontario and Canada under a 1994 framework to arrive at a modern-day treaty concerning, among other matters, the harvesting rights of the Algonquins to fish, hunt and trap wildlife resources within the settlement area.

The competing Indigenous interests at the heart of this case resulted from the Supreme Court's seminal decision in R v Powley. Before Powley, the Algonquins held the only Aboriginal rights to the resources...