Court Of Appeal Summaries (September 18 ' September 22)

• Published date: 28 September 2023
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Contracts and Commercial Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos and Ines Ferreira

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of September 18, 2023. It was a rather light week.

Topics covered this week included lawyers' professional discipline, reopening an appeal dismissed through the fault of counsel who failed to show up while still on the record, fresh evidence in a contract case stayed on jurisdictional grounds, and the enforcement of a default judgment made by a Russian court.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Deokaran v. Law Society of Ontario, 2023 ONCA 602

Keywords: Administrative Law, Regulated Professions, Lawyers, Civil Procedure, Appeals, Extension of Time, Reasonable Apprehension of Bias, Courts of Justice Act, R.S.O. 1990, c. C.43 s.6, Paulsson v. University of Illinois, 2010 ONCA 21, Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Overtveld v. Overtveld, 2021 ONCA 930, R. v. S. (R.D.), [1997] 3 S.C.R. 484

Justein v. DeFi Technologies Inc., 2023 ONCA 615

Keywords: Contracts, Stock Options, Corporations, Oppression, Remedies, Damages, Business Corporations Act, R.S.O. 1990, c. B. 16, s. 248

Agrest v. Pekker, 2023 ONCA 616

Keywords: Civil Procedure, Judgments, Enforcement, Insufficient Notice, Expert Report, Civil Procedure Code of the Russian Federation, Beals v Saldanha, [2003] 3 SCR 416

Pomata Investment Corp. (Treasure Hill Homes) v. Yang, 2023 ONCA 618

Keywords: Civil Procedure, Appeals, Dismissal as Abandoned, Setting Aside, Re-hearing, Representation by Lawyer, Rules of Civil Procedure, Rule 15.05, Pomata Investment Corp. (Treasure Hill Homes) v. Yang, 2022 ONCA 468, Meridian Credit Union Limited v. Baig, 2016 ONCA 942

Tewari v. McIntyre, 2023 ONCA 628

Keywords: Civil Procedure, Costs, Lack of Jurisdiction, Fresh Evidence Motion, Non-Disclosure Agreement, Palmer v The Queen, [1980] 1 SCR 759, Barendregt v Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, Hamilton v Open Window Bakery Ltd, 2004 SCC 9

Fernandez Leon v. Bayer Inc., 2023 ONCA 629

Keywords: Torts, Negligence, Product Liability, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Amending Pleadings, Rules of Civil Procedure, Rule 21,01(1)(b), McHale v Lewis, 2018 ONCA 1048, Klassen v Beausoleil, 2019 ONCA 407, Burns v RBC Life Insurance Company, 2020 ONCA 347, Tran v University of Western Ontario, 2015 ONCA 295, Miguna v Ontario (Attorney General) (2005), 205 OAC 257, Dawson v Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont CA), Rausch v. Pickering (City), 2013 ONCA 740, Kuiper v Cook (Canada) Inc., 2018 ONSC 6487, Martin v Astrazeneca PharmaceuticalsPlc, 2012 ONSC 2744, Vester v Boston Scientific Ltd., 2015 ONSC 7950

9383859 Canada Ltd. v. Saeed, 2023 ONCA 627

Keywords: Civil Procedure, Appeals, Orders, Security for Costs, Enforcement, Rules of Civil Procedure, r. 61.06(2), Virc v. Blair (2016), 134 O.R. (3d) 795 (C.A.), Dataville Farms Ltd. v. Colchester (Municipality), 2014 NSCA 95, 9383859 Canada Ltd. v. Navaratnam, 2021 ONCA 210, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184

CIVIL DECISIONS

Deokaran v. Law Society of Ontario, 2023 ONCA 602

[Tulloch C.J.O., Lauwers and Miller JJ.A]

COUNSEL:

G.D., acting in person

S. Wishart, for the responding party

Keywords: Administrative Law, Regulated Professions, Lawyers, Civil Procedure, Appeals, Extension of Time, Reasonable Apprehension of Bias, Courts of Justice Act, R.S.O. 1990, c. C.43 s.6,Paulsson v. University of Illinois, 2010 ONCA 21, Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Overtveld v. Overtveld, 2021 ONCA 930, R. v. S. (R.D.), [1997] 3 S.C.R. 484

FACTS:

On June 12, 2023, three days before a motion for an extension of time was set to be heard, the appellant amended her notice of motion. She added a request for an order setting aside the Divisional Court's decision on the basis of a reasonable apprehension of bias. The motion judge adjourned the amended motion to a three-judge panel.

The addition of the bias allegation did not alter whether the appellant's proposed appeal met the test for an extension of time. The appellant met the timeline for filing the notice of motion for leave to appeal. However, she did not meet the deadline for the motion record and factum. A week beyond the deadline, the appellant moved for an extension of time to file her factum and motion record.

Leading up to the Divisional Court hearing, the appellant was represented by a lawyer who was on the record for her and who filed the documentation necessary for the hearing. However, the appellant made submissions on her own behalf. The practice of the Divisional Court is to record hearings in which self-represented litigants are involved. However, in this case the hearing was not recorded. There was no inference of malfeasance related to the lack of a recording.

ISSUES:

1. Did the appellant meet the four factors relating to a motion for an extension of time to perfect the motion?
2. Was there a reasonable apprehension of bias against the appellant?

HOLDING:

Appeal dismissed.

REASONING:

1. No

The factors relating to the appellant's motion for an extension of time to perfect the motion are (1) whether she had an intention to appeal within the time for bringing an appeal; (2) the length of the delay, and any explanation for the delay; (3) any prejudice to the respondent caused by the delay; and (4) the justice of the case.

i. The appellant's court filings show that she intended to appeal from the Divisional Court's decision within the time for bringing an appeal, even though the amendment to add the bias allegation was late-breaking.

ii. The appellant's factum was only filed over a month late and it did not address the grounds raised in the original motion. The appellant provided the court with a motion record concerning the issues raised in the original motion for leave four months after the filing deadline had passed in relation to the original motion for leave to appeal. The appellant explained that the Divisional Court had no transcripts or recordings of her hearing, which were "necessary, required and imperative" to her appeal in order to establish a reasonable apprehension of bias.

iii. The Law Society of Ontario's argument that it was prejudiced by the delay because it considered the appellant to be a vexatious litigant was not the sort of prejudice contemplated by the test.

iv. The merits of the proposed appeal, as laid out in the original notice of motion for leave to appeal, were limited. The notice stating that the Court's reasons deprived the appellant of her right...