Court Of Appeal Summaries (November 29-December 4)

There were a number of substantive civil law decisions released this week. Blaney's own Chris McClelland was successful for the respondents in Gill v CPNI Inc. where the Court of Appeal held that the respondents' employment contracts did not authorize deductions from wages imposed by their former employer. Congratulations to Chris on the successful result!

Other topics include the Children's Aid Society's statutory duty under the Child and Family Services Act, the interpretation of a title insurance policy, a wrongful dismissal in the context of a securities dispute, a real estate and gift case involving a dowry and an environmental contamination dispute, among others.

Wishing everyone an enjoyable weekend.

Table of Contents

Roffey v. Hunter Corporation, 2015 ONCA 824 (click on the case name to read the summary)

Keywords: Striking of Pleadings, Late filing of Materials, Failure to Satisfy Undertakings, Cure Default

Ang v. Premium Staffing Ltd., 2015 ONCA 821 (click on the case name to read the summary) Keywords: Oral Contract, Employment Contract, Fraudulent Contract, Temporary Foreign Workers, Equitable Set-Off, Holt v. Telford Test, Motion to Strike Pleading, Rule 21.01(b)

Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828 (click on the case name to read the summary)

Keywords: Notice of Appeal, Merits of Appeal, Motion to Extend Time, Rules of Civil Procedure, 3.02(1), Howard v. Martin, Violation of Court Orders, Abuse of Process

Hoang v. Mann Engineering Ltd., 2015 ONCA 838 (click on the case name to read the summary)

Keywords: Wrongful Dismissal, Breach of Contract, Withheld Sales Commission, Employment Standards Act, 2000, Post-Hearing Submissions, Re-hearing Appeal, Motion in Writing, Rules of Civil Procedure rules 37.12.1(1), 59.06(2) & 2.1.02(1)-(3)

McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830 (click on the case name to read the summary)

Keywords: Damages, Authorized Users of Marijuana, Ejected from Premises, Frivolous Claims, No Reasonable Cause of Action, Abuse of Process, Rule 21 Rules of Civil Procedure

Abdollahpour v. Banifatemi, 2015 ONCA 834 (click on the case name to read the summary)

Keywords: Estate Law, Real Property, Deed of Gift, Revocation, Marriage Contract, Dowry, McNamee v McNamee, Summary Judgment, Evidence, Fresh Evidence, Statute of Frauds, ss. 1(1), s. 4, Appeal Dismissed

Gill v CPNI Inc., 2015 ONCA 833 (click on the case name to read the summary)

Keywords: Employment Law, Summary Judgment, Employment Standards Act, S. 13, Authorization to Deduct from Wages, Stay, Counterclaim, Return of Employer Property

AB2000 Software Corporation v. Infinium Capital Corporation, 2015 ONCA 829 (click on the case name to read the summary)

Keywords: Securities, Trading, Competition, Wrongful Dismissal, Leave to Appeal Costs, Contract Interpretation, Costs, Rules of Civil Procedure, r.49, Appeal Allowed in Part

Children's Aid Society of Toronto v. L.G., 2015 ONCA 840 (click on the case name to read the summary)

Keywords: Family Law, Crown Wardship, Child and Family Services Act, S. 15(3)(c), S. 70, Children's Aid Society

Partridge v. Botony Dental Corporation, 2015 ONCA 836 (click on the case name to read the summary)

Keywords: Employment Law, Wrongful Termination, Discrimination, Notice Period, Family Status, Costs, Ontario Human Rights Code, s.46.1(1), Bardal v. Globe and Mail Ltd, Appeal Dismissed

MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842 (click on the case name to read the summary)

Keywords: Contract Law, Real Estate, Motion for Summary Judgment, Title Insurance, Policy, Coverage, Indemnification, Interpretation, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp, Defect

Chowdhury v. Bangladeshi-Canadian Community Services, 2015 ONCA 844 (click on the case name to read the summary)

Keywords: Civil Litigation, Motion, Strike Out Pleading, Leave to Amend, Rule 21.01(1)(b), Rule 25.11(b)

Kadiri v. Southlake Regional Health Centre, 2015 ONCA 847 (click on the case name to read the summary)

Keywords: Civil Litigation, Summary Judgment, Health Professions Appeal and Review Board, Jurisdiction, Public Hospitals Act, S. 41, Hospital Privileges

Midwest Properties Ltd. v. Thordarson, 2015 ONCA 819 (click on the case name to read the summary) [Feldman, Hourigan and Benotto JJ.A.]

Keywords: Environmental Law, Negligence, Nuisance, Liability, Personal Liability, Toxic Real Estate, Contamination, Remediation Costs, "Corporate Veil", Damages, Punitive Damages, Environmental Protection Act, s. 99(2), "Spills Bills", Limitations Act, s. 17, Antrim Truck Centre Ltd v Ontario (Transportation), Mustapha v Culligan of Canada Ltd., Whiten v Pilot Insurance Co.

CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare Trust Co. of Canada, 2015 ONCA 846 (click on the case name to read the summary)

Keywords: Statutory Interpretation, Commercial Law, Jurisdiction, Appropriate Court Mortgages, Priority, Land Titles Act, S. 24(1), Courts of Justice Act, S. 110

Mwanri v. Mwanri, 2015 ONCA 843 (click on the case name to read the summary)

Keywords: Family Law, Spousal Support, Child Support, Bankruptcy and Insolvency, Office of the Children's Lawyer, Reasonable Apprehension of Bias, Bankruptcy and Insolvency Act, 168.1, Family Law Act, s.9(1)(b), Davis v. Crawford, Wewaykum Indian Band v. Canada, Appeal Allowed in Part

For a list of Civil Endorsements, click here

For a list Criminal Decisions, click here

Civil Decisions

Roffey v. Hunter Corporation, 2015 ONCA 824 [Strathy C.J.O., LaForme and Huscroft JJ.A.]

Counsel: Michael Simaan, for the appellants, 1355394 Ontario Inc. and Richard K. Watson D. Gordon Bent, for the respondents

Keywords: Striking of Pleadings, Late filing of Materials, Failure to Satisfy Undertakings, Cure Default

Facts: The motion judge granted the respondent's motion and struck the appellants' defence. The only reason the motion judge provided was that the material was not filed as directed by order of O'Connell J.

Issues: The appellants made three submissions on appeal:

(1) The motion judge ought to have provided them with a chance to cure the default.

(2) The motion judge failed to consider the proportionality of the remedy and the merits of the defence.

(3) It was unreasonable to strike the defence because the response to undertakings was only 35 days late.

Holding: Appeal Dismissed.

Reasoning: (1) The motion judge had no evidence before him to explain the appellants' failure to satisfy undertakings. On appeal they were still unable to explain what their argument would have been to the striking of the defence.

(2) The motion judge was in a position to consider the relief sought in the context of the entire litigation. The court ruled that this context included lengthy delays, violation of court orders and conduct that could be regarded as obstructionist on the part of the appellants.

(3) The motion judge's order to strike the defence was discretionary, and absent clear error, is entitled to significant deference on appeal.

Ang v. Premium Staffing Ltd., 2015 ONCA 821 [Strathy C.J.O., LaForme and Huscroft JJ.A.]

Counsel: Glenn Yoon, for the appellant, Premium Staffing Ltd. Thomas Mathews, for the respondents

Keywords: Oral Contract, Employment Contract, Fraudulent Contract, Temporary Foreign Workers, Equitable Set-Off, Holt v. Telford Test, Motion to Strike Pleading, Rule 21.01(b)

Facts: The appellant, Premium Staffing Ltd., appealed from an order of the motion judge striking a defence of set-off from its statement of defence. The respondents alleged they paid the appellants $580,000 pursuant to an oral contract in exchange for a guarantee of employment positions for temporary foreign workers, and that the employment contracts turned out to be fraudulent. The appellant counterclaimed for $170,000 it alleged was owing on an oral contract with the respondent that made the respondent the exclusive supplier of candidates for temporary work permits. The appellant also claimed set-off of $170,000 in its defence. The motion judge struck the plea for set-off on the grounds that it was inappropriate.

Issues: Did the motion judge err in her treatment of the claim for equitable set-off?

Holding: Appeal allowed.

Reasoning: This was a proper claim for set-off based on the test in Holt v. Telford, [1987] 2 S.C.R. 193. The motion judge set out the relevant principles governing equitable set-off: 1) The party relying on a set-off must show some equitable ground for being protected against his adversary's demands; 2) The equitable ground must go to the very root of the plaintiff's claim before a set-off will be allowed; 3) A cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim; 4) The plaintiff's claim and the cross-claim need not arise out of the same contract; and 5) Unliquidated claims are on the same footing as liquidated claims. However, her decision did not address these principles specifically, and she reasoned that the claim would be better brought as a counterclaim. Once set-off was pleaded it, was incumbent on the motion judge to address the Telford factors in order to make a decision on the motion and she failed to do so. Although the appellant's plea of set-off was relatively thin, the motion judge was required to read the statement of claim generously under Rule 21.01(b).

Nguyen v. Economical Mutual Insurance Company, 2015 ONCA 828 [Hourigan J.A. (In Chambers)]

Counsel: Binh Thi Nguyen, acting in person Catherine Korte and Matthew W. Malcolm, for the respondent Economical Mutual Insurance Company Jacqueline Cole and Elder C. Marques, for the respondent Dr. Monte Bail

Keywords: Notice of Appeal, Merits of Appeal, Motion to Extend Time, Rules of Civil Procedure, 3.02(1), Howard v. Martin, Violation of Court Orders, Abuse of Process

Facts: The appellant, Ms. Nguyen, commenced an action against the...