Court Of Appeal Summaries (December 15 – 19, 2014)

Bank of Nova Scotia v 124155 Canada Inc., 2014 ONCA 894

[Weiler, Feldman and Benotto JJ.A.]

Counsel:

A.M. McLennan, for the appellants

D.A. Bourassa, for the respondent

Keywords:

Appeal Dismissed as Abandoned.

Facts:

This was an appeal from the order of Justice David L. Edwards of the Superior Court of Justice, dated April 29, 2014 and costs endorsement, dated May 16, 2014.

Holding:

Appeal dismissed.

Reasoning:

On consent, the appeal was dismissed as abandoned. No costs.

Ever Fresh Direct Foods Inc. v. Jamia Islamia Canada Ltd.,2014 ONCA 898

[Laskin, Cronk and Pepall JJ.A.]

Counsel:

R. Birken, for the appellant

A. Farooq, for the respondent

Keywords:

Contempt; Costs; Substantial Indemnity

Facts:

(Facts taken from lower court judgment)

On February 1, 2008, the appellant, Ever Fresh entered into a lease agreement with Jamia Islamia Canada Ltd., the respondent, for a period of ten years. The sole purpose of the lease was for Ever Fresh to operate a food manufacturing, distribution and warehouse business. On August 28, 2012, the respondent alleged that Ever Fresh was in breach of the lease agreement and provided a remediation period of 15 days. When the 15 days expired, the respondent served a Notice of Eviction, terminated the lease and changed the locks. This occurred on September 2012. On June 13, 2013, the Ontario Superior Court of Justice heard a contempt motion. The respondents alleged that Ever Fresh had wilfully breached eight separate orders. This court concluded that Ever Fresh had wilfully breached five of those orders and found Ever Fresh in contempt.

The court found that Ever Fresh's actions demonstrated a pattern of complete disregard for court orders and ordered that Ever Fresh pay Jamia Islamia $40,000 in costs within 30 days; comply with the order of Gray J., dated February 8, 2013, and pay Jamia Islamia $20,000 as contemplated in the order. Ever fresh appealed to this court.

Issue(s):

(1) Did the motion judge err in finding Ever Fresh in contempt?

(2) Did the motion judge err in its award of costs in favour of the respondent?

Held:

Appeal allowed in part.

Reasoning:

(1) No. The court found there was no basis for interference with the motion judge's contempt findings. The challenged findings were supported by the evidentiary record before the motion judge and, in significant part, were grounded on his adverse credibility findings.

(2) Yes. The respondent acknowledges that the amount sought by it and awarded by the motion judge was on the full indemnity scale. The court found that the amount awarded was in excess of the respondent's claimed costs and almost four times the amount of the appellant's costs on the contempt motion. Therefore, some reduction of the motion judge's $40,000 award in favour of the respondent for the costs of the contempt motion is necessary. In the circumstances, the costs awarded to the respondent on the contempt motion were reduced to the total amount of $25,000.

1440825 Ontario Inc. v. Lenco Investment Ltd., 2014 ONCA 903

[Cronk, Juriansz and Epstein JJ.A.]

Counsel:

M.S. Shapiro and M. Mednick, for the appellant

W.C. Kort, for the respondent

Keywords:

Commercial Leases; Right of First Refusal; Contract Interpretation

Facts:

Pursuant to a commercial lease, the appellant tenant was granted a right of first refusal to purchase the leased premises in the event that a third party made an offer to the respondent landlord offer to purchase the leased premises.

When the respondent received such an offer from a third party, it unconditionally accepted the offer on the same day it was received, and entered into an agreement of purchase and sale. The respondent never gave the appellant notice of the offer.

Approximately one month later, the respondent delivered a copy of the agreement of purchase and sale to the tenant, together with a notice of termination purporting to terminate the lease. The notice stipulated that the tenant would have to vacate the leased premises in approximately three months' time, and provide vacant possession of the property to the landlord.

The application judge held that the right of first refusal was qualified in that it permitted the landlord to extinguish the right by terminating the tenancy in compliance with the lease mechanism for termination. The landlord complied with the termination provisions.

Issue:

Did the application judge err in ruling that the respondent landlord properly terminated the commercial lease, which included a right of first refusal in favour of the tenant?

Holding:

Appeal is allowed. Declarations are granted that: (1) the right of first refusal under the lease was not terminated by the landlord's purported termination of the lease; and (2) the tenant exercised its right of first refusal in accordance with the terms of the lease.

It is further ordered that the landlord enter into an agreement of purchase and sale with the tenant on the same or similar terms as the agreement of purchase and sale with the third party.

Reasoning:

It cannot be the case that compliance with the right of first refusal clause was entirely at the discretion of the respondent. This would effectively denude the right of any meaning. The right of first refusal and the termination clauses must be read together and, to the extent possible, meaning must be given to each in accordance with the intentions of the parties as reflected in the language of the lease. It was not the intention of the parties to render a key provision of the lease valueless. Such an interpretation would be inconsistent with the landlord's obligation of good faith dealings with the tenant.

Tags:

Commercial Leases, Right of First Refusal, Contract Interpretation

Tarion Warranty Corporation v. Latreille, 2014 ONCA 904

[Cronk, Juriansz and Epstein JJ.A.]

Counsel:

D.R. Adams, for the appellants

N. Abbott, for the respondent

Keywords:

Statutory Interpretation; Section 15 of the Ontario New Home Warranty Plan Act; Condominium Corporation

Facts:

The motion judge found that Mr. Latreille, the appellant, as indemnifier for the builder was personally liable for any deficiency in the monies paid out of the guarantee fund under the Ontario New Home Warranty Plan Act (the "Act") regarding the warranty claims processed by the respondent, Tarion Warranty Corporation, for the common elements at Ottawa Carleton Standard Condominium Corporation No. 737.

The appellant argued that the definitions of "home" and "owner" in s. 1 of the Act did not apply to a condominium corporation and consequently, a condominium corporation would not be entitled to receive payment out of the guarantee fund. The appellant also argued that s. 15(a) of the Act did not deem a condominium to be an owner of a home and the provision was befuddling and thus should not apply.

Issue:

Whether the motion judge erred by concluding that a corporation is a homeowner for the purpose of the warranty provisions of the Act.

Holding:

Appeal dismissed.

Reasoning:

No. The Court held that as per the principle of statutory interpretation, all of the Act's provisions should be read together and each should be given a meaning. It is clear that when enacting s. 15 of the Act, the legislature intended to make warranties under the Act available to a condominium corporation in respect of common elements.

Bayens v Kinross Gold Corporation, 2014 ONCA 901

[Hoy A.C.J.O., Cronk and Pepall JJ.A]

Counsel:

K.M. Baert, C. Poltak and G. Myers, for the appellants

M.A. Gelowitz, A.D. Coleman and R. Carson, for the respondents

Keywords:

Class Action Proceeding; Certification of Class Action; Class Proceedings Act 1992; Securities Act; leave motion; Common Law Misrepresentation; Statutory Misrepresentation; s. 138.3 Securities Act

Facts:

The appellants, the trustees of the Musicians' Pension Fund of Canada, are representative plaintiffs in a putative class proceeding against the respondents, Kinross Gold Corporation, a Toronto-based international mining company, and four of its current or former officers. In their capacity as trustees for the pension fund, the appellants purchased Kinross shares. In 2012, they commenced a class action against the respondents on their own behalf, and on the behalf of other specified persons who...