Court Of Appeal Summaries (February 9 To February 13, 2015)

Hello again to everyone. Below are summaries of this week's Ontario Court of Appeal civil decisions (non-criminal). Topics include nuisance, occupier's liability, estates, procedure to be taken where it is unclear whether an arbitrator has jurisdiction, an unsuccessful attempt to invalidate the actions of a Union at a national convention, summary dismissal of a subrogated action and unconscionability of an exclusion clause under an insurance policy.

1317424 Ontario Inc., v. Chrysler Canada Inc., 2015 ONCA 104

[Feldman, Simmons and Pardu JJ.A.] Counsel: R. F. Leach and M. A. Polvere, for the appellants B. Bresner, for the respondent, Chrysler Canada Inc.

Keywords: Torts, Environmental Law, Nuisance, Requirement of Emanating from Other Land Contamination, Remediation

Facts: The land in issue was operated as a foundry and asbestos insulation producer for several decades, resulting in significant contamination. It was acquired by Chrysler in 1987 and decommissioned to then-current standards. In 1989, Chrysler sold the land to The D'Andrea Group Inc., with a certificate from the Ministry of the Environment confirming that the land had been decommissioned in accordance with existing regulatory requirements. The D'Andrea Group in turn sold the land to the appellants in 1999. The appellants' suit against Chrysler is for negligence in decommissioning the property and failing to remediate it, negligent misstatement that Chrysler had properly remediated the land, and the creation of a stigma to the land.

The appellants later sought to amend to add a claim against Chrysler for nuisance by failing to remediate, causing an unreasonable interference with the use and enjoyment of the land. That amendment was denied by the motion judge. He concluded that, to form a tenable nuisance claim, the interference with the use and enjoyment of the claimant's land must originate outside the plaintiff's land. The appellants appealed, arguing that the scope of nuisance was not finally settled, and that the claim should therefore be allowed to proceed.

Issue: Can a claim in nuisance be made when the nuisance emanates from the plaintiff's own land and not from outside that land?

Decision: Appeal dismissed.

Reasoning: The issue of whether a nuisance must emanate from another's land was recently specifically addressed by the Nova Scotia Court of Appeal in W. Eric Whebby Ltd. v. Doug Boehner Trucking & Excavation Ltd., 2007 NSCA 92, 258 N.S.R. (2d) 41. In Whebby, at para. 128, Cromwell J.A. (as he then was) stated that regardless of who causes the nuisance, the interference with the plaintiff's land must be indirect and not direct, meaning it must originate elsewhere than on the plaintiff's land. Therefore, the alleged nuisance must originate somewhere other than on the plaintiff's land.

Home Trust Company v Fierro Estate, 2015 ONCA 106

[MacFarland, Hourigan and Benotto JJ.A] Counsel: G. Gryguc, for the appellant Fierro R. Migicovsky, for Rose and Rose A. Jackson, for the responding party Home Trust

Keywords: Family Law, Estates, Matrimonial Home, Setting Aside Mortgage, Family Law Act, ss. 21, 23, Summary Judgment

Facts: Victoria Fierro mortgaged a residential property in Vaughan on July 8, 2009, to the respondent as mortgagee. Ms. Fierro died in July 2011. The mortgage went into default in October 2011 and subsequently matured. In March 2012, the respondent commenced an action for payment and possession under the mortgage against Mr. Fierro in his capacity as the estate trustee. In June 2013, a counterclaim was filed arguing the mortgage should be set aside pursuant to ss.21 and 23(3) of the Family Law Act. A third party claim was also commenced against the law firm acting for the parties on the mortgage, alleging they were negligent for not making inquiries into Ms. Fierro's marital status. Mr. Fierro ceased being the estate trustee in 2013.

In March 2014 on a respondent motion for summary judgement, the motion judge found that Mr. Fierro had no claim to the mortgaged property under the FLA. She further found that sections 21 and 23(3) should not be applied to set aside the mortgage as the evidentiary onus had not been met to establish the respondent had actual or constructive notice that Ms. Fierro was a spouse and the mortgaged property was a matrimonial home. Mr. Fierro appeals the order of the motion judge granting summary judgment on the mortgage action against the estate of Victoria Fierro.

Issue: Did the motion judge err in not finding that ss. 21 and 23(3) of the Family Law Act should be applied to set aside the mortgage?

Holding: Appeal dismissed.

Reasoning: No. Given that Mr. Fierro is no longer an estate trustee and was not sued in his personal capacity, he has no capacity to bring the appeal. In any event, the court found the motions judge correctly found that Mr. Fierro had not met his onus of establishing that the respondent had actual or constructive notice that Ms. Fierro was a spouse and the mortgaged property was a matrimonial home.

D'Alimonte v. Weber, 2015 ONCA 79

[MacFarland, Hourigan and Benotto JJ.A.] Counsel: C. Weber, acting in person A. R. Leardi, for the respondent

Keywords: Power of Attorney, Standard of Review, Palpable and Overriding Error

Facts: The appellant appealed the order removing her as the power of attorney for property and care on behalf of her elderly mother.

Holding: Appeal dismissed.

Reasoning: The application judge's findings were factual in nature. There was sufficient evidence before her to support the order. Absent any palpable and overriding...