Court Of Appeal Summaries (November 18-22, 2024)

• Published date: 26 November 2024
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Insurance, Litigation, Mediation & Arbitration, Real Estate and Construction, Financial Services, Corporate and Company Law, Contracts and Commercial Law, Insurance Laws and Products, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Real Estate, Securities, Franchising, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of November 18, 2024.

The headline decision of the week is Aroma Franchise Company, Inc. v. Aroma Espresso Bar Canada Inc. The application judge set aside an arbitrator's award in its entirety on the basis of an allegation of reasonable apprehension of bias. The bias arose after the arbitrator was retained by counsel for one of the parties to handle a completely unrelated arbitration involving different clients and issues. Opposing counsel on the first arbitration was not advised of the new mandate. The Court of Appeal allowed the appeal and restored the arbitrator's award, resulting in a collective sigh of relief for arbitrators and counsel everywhere. The Court held that the arbitrator did not have a duty to disclose that he was involved in the new, unrelated arbitration, and that this new retainer did not create a reasonable apprehension of bias. The matter was remitted to the Superior Court to decide other grounds to set aside the arbitral award that the application judge did not decide.

Fehr v. Sun Life Assurance Company of Canada was an appeal of an order dismissing the appellants' motion for leave to amend their pleadings and add a common issue to a certified class proceeding. The Court dismissed the appeal, upholding the motion judge's finding that the appellants sought to add a new claim in respect of which the limitation period was found to have already expired.

Other topics covered this week included the dismissal of claims made against the MTO, the enforcement of a no-smoking condo bylaw, liability for financing fees under an investment engagement agreement and an appeal from an order made by the Animal Care Review Board that required the removal of 41 cats from the appellant's home.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Table of Contents

Civil Decisions

Rebello v. Ontario (Transportation), 2024 ONCA 842

Keywords: Crown Liability, Civil Procedure, Limitation Periods, Discoverability, Costs, Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27, Limitations Act, 2002, S.O. 2002, c. 24, ss. 4, 5(1), 5(2), Apology Act, 2009, S.O. 2009, c. 3, Courts of Justice Act, R.S.O. 1990, c C.43, s. 131, Rules of Civil Procedure, rr. 49.10(1), 57.01, Fockler v. Spiegel, 2023 ONCA 148, Dass v. Kay, 2021 ONCA 565, Housen v. Nikolaisen, 2002 SCC 33, Longo v. MacLaren Arts Centre, 2014 ONCA 526, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Galganov v. Russell (Township), 2012 ONCA 410, Rebello v. Ontario (Community Safety and Correctional Services), 2024 ONCA 718, Ontario v. Rothmans Inc., 2012 ONSC 1804

Guillaume v. Ontario (Animal Care Review Board), 2024 ONCA 851

Keywords: Administrative Law, Animal Care Review Board, Pet Law, Animal Welfare, Civil Procedure, Appeals, Stay Pending Appeal, Provincial Animal Welfare Services Act, 2019, R.S.O. 2019, c. 13, s. 35(4), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 21(5), Guillaume v. Chief Animal Welfare Inspector, 2023 ONACRB 52, Guillaume v. Chief Animal Welfare Inspector, 2023 ONSC 5782, Guillaume v. Ontario (Chief Animal Welfare Inspector), 2024 ONSC 1087, RJR-MacDonald Inc. v. Canada, [1994] 1 SCR 311, Graff v. Network North Reporting and Mediation, 2020 ONCA 319, Sickinger v. Sickinger, 2017 ONCA 760, Langer v. Yorkton Securities Inc. (1986), 57 O.R. (2d) 555 (C.A.), Teitler v. Dale, 2021 ONCA 577, Derakhshan v. Narula, 2018 ONCA 658, Issai v. Rosenzweig, 2011 ONCA 112

Aroma Franchise Company Inc. v. Aroma Espresso Bar Canada Inc., 2024 ONCA 839

Keywords: Contracts, Franchising, Civil Procedure, Arbitration, International Commercial Arbitration, Procedural Fairness, Reasonable Apprehension of Bias, UNCITRAL Model Law on International Arbitration, article 12, International Bar Association Guidelines on Conflicts of Interest in International Arbitration, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5, Police Services Act, R.S.O. 1990, c. P.15, Halliburton Company v. Chubb Bermuda Insurance Ltd., [2020] UKSC 48, Aiteo Eastern E & P Company Ltd. v. Shell Western Supply and Trading Ltd. & Ors, [2024] EWHC 1993 (Comm), Jacob Securities Inc. v. Typhoon Capital B.V., 2016 ONSC 604, Conmee v. Canadian Pacific Railway Co. (1888), 16 O.R. 639 (Q.B.), Grupo Unidos por el Canal, S.A. v. Autoridad del Canal de Panama, 78 F. (4th) 1252 (11th Cir. 2023), Wewaykum Indian Band v. Canada, 2003 SCC 45, Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, Porter v. Magill, [2001] UKHL 67, Dufferin v. Morrison Hershfield, 2022 ONSC 3485, Ontario Provincial Police v. MacDonald, 2009 ONCA 805, Terceira v. Labourers International Union of North America, 2014 ONCA 839, Housen v. Nikolaisen, 2002 SCC 33, R. v. S. (R.D.), [1997] 3 S.C.R. 484, Rando Drugs Ltd. v. Scott, 2007 ONCA 553, leave to appeal refused, [2007] S.C.C.A. No. 494, Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] 1 All E.R. 65 (Eng. C.A.), Szilard v. Szasz, [1955] S.C.R. 3

Halton Condominium Corporation No. 61 v. Kolarovaliev, 2024 ONCA 848

Keywords: Real Property, Condominiums, Remedies, Compliance Orders, Civil Procedure, Appeals, Fresh Evidence, Condominium Act, 1998, S.O. 1998, c. 19 s. 134, Palmer v. The Queen, [1980] 1 S.C.R. 759

Infor Financial Inc. v. CentriLogic Inc., 2024 ONCA 849

Keywords: Contracts, Interpretation, Civil Procedure, Costs, Offers to Settle, Rules of Civil Procedure, r. 49.10, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326, McFlow Capital Corp v. James, 2021 ONCA 753, Shaulov v. Law Society of Ontario, 2023 ONCA 95

Fehr v. Sun Life Assurance Company of Canada, 2024 ONCA 847

Keywords: Contracts, Insurance, Duty of Good Faith and Fair Dealing, Civil Procedure, Class Proceedings, Certification, Common Issues, Amending Pleadings, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, ss. 4 and 5, Sched. B, Insurance Act, S.O. 1990, c. I.8, s. 439, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 8(3), 12 and 28, Rules of Civil Procedure, r. 26.01, Polla v. Croatian (Toronto) Credit Union Limited, 2020 ONCA 818, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Di Filippo v. Bank of Nova Scotia, 2024 ONCA 33, 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, Klassen v. Beausoleil, 2019 ONCA 407, Crombie Property Holdings Limited v. McColl-Frontenac Inc., 2017 ONCA 16, Soper v. Southcott (1998), 39 O.R. 737 (C.A.), Levac v. James, 2023 ONCA 73, Smith v. Inco Limited, 2011 ONCA 628, R. v. Reid, 2016 ONCA 524, Becker v. City of Toronto, 2020 ONCA 607, Logan v. Canada (Minister of Health) (2003), 36 C.P.C. (5th) 176 (Ont. S.C.), Green v. Canadian Imperial Bank of Commerce, 2014 ONCA 90, Karkhanechi v. Connor, Clark & Lunn Financial Group Ltd., 2022 ONCA 518, Marvelous Mario's Inc. v. St. Paul Fire and Marine Insurance Co., 2019 ONCA 635, Spina v. Shoppers Drug Mart Inc., 2024 ONCA 642, Richards v. Sun Life Assurance Company of Canada, 2016 ONSC 5492

Short Civil Decisions

World Financial Solutions Inc. v. 2573138 Ontario Ltd., 2024 ONCA 844

Keywords: Real Property, Land Titles, Rectification of Register, Civil Procedure, Appeals, Jurisdiction, Land Titles Act, R.S.O. 1990, c. L.5., s. 27, CIBC Mortgages Inc. (c.o.b. Firstline Mortgages) v. Computershare Trust Co. of Canada, 2015 ONCA 846

Zhang Estate v. Wainfleet (Township), 2024 ONCA 846

Keywords: Municipal Law, By-Laws, Jurisdiction, Ultra Vires, Torts, Negligence, Misfeasance in Public Office, Negligent Assumption of Jurisdiction, Trespass, Nuisance, Civil Procedure, Evidence, Admissibility, Expert Evidence, Procedural Fairness, Sufficiency of Reasons, Weed Control Act, R.S.O. 1990, c. W.5, Corporation of the Township of Wainfleet Bylaw No. 028-2013, Being a bylaw to designate certain diseased fruit trees as local weeds in the Township of Wainfleet (11 June 2013)

Sabaratnam v. Yohanathan, 2024 ONCA 845

Keywords: Torts, Defamation, Defences, Truth, Fair Comment, Damages, Civil Procedure, Summary Judgment, Appeals, Fresh Evidence, R. v. Palmer, [1980] 1 S.C.R. 759, OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520

Chowdhury v. Exquisite Bay Development Inc., 2024 ONCA 852

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Construction, Torts, Conspiracy, Civil Procedure, Striking Pleadings, Limitation Periods, Discoverability, Rules of Civil Procedure, rr. 21.01(1)(b) and 59.06(2)(a), ADGA Systems International Ltd. v. Valcom Ltd. (1999), 43 O.R. (3d) 101 (C.A.)

CIVIL DECISIONS

Rebello v. Ontario (Transportation), 2024 ONCA 842

[Hourigan, Madsen and Pomerance JJ.A.]

Counsel:

T. R., acting in person

A. Mortimer and B. Lekhi, for the respondent

Keywords: Crown Liability, Civil Procedure, Limitation Periods, Discoverability, Costs, Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27, Limitations Act, 2002, S.O. 2002, c. 24, ss. 4, 5(1), 5(2), Apology Act, 2009, S.O. 2009, c. 3, Courts of Justice Act, R.S.O. 1990, c C.43, s. 131, Rules of Civil Procedure, rr. 49.10(1), 57.01, Fockler v. Spiegel, 2023 ONCA 148, Dass v. Kay, 2021 ONCA 565, Housen v. Nikolaisen, 2002 SCC 33, Longo v. MacLaren Arts Centre, 2014 ONCA 526, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Galganov v. Russell (Township), 2012 ONCA 410, Rebello v. Ontario (Community Safety and Correctional Services), 2024 ONCA 718, Ontario v. Rothmans Inc., 2012 ONSC 1804

facts:

The appellant appealed the order of the trial judge dismissing her claims against MTO arising from a mistakenly transferred Vehicle Identification Number ("VIN") in 2018, and a medical drivers' license suspension in 2016. She also sought leave to appeal the related costs order. The trial judge dismissed the appellant's claims on the basis that they were statute-barred and ordered costs against her on a...