Court Of Appeal Summaries (January 11, 2016-January 15, 2016)

The Court of Appeal's civil decisions this week covered a number of areas including insurance, securities (secondary market misrepresentations), dismissal for delay, family, debtor-creditor, limitation periods, summary judgment and franchising in the class action context. There were also numerous short civil and criminal law endorsements.

CIVIL DECISIONS

Conundrum Capital Corporation v. Century Plumbing and Heating, 2016 ONCA 20

[MacPherson, Pepall and Hourigan JJ.A.]

Counsel:

Christopher Morrison and Joel Cormier, for the appellant

John Downing, for the respondents

Keywords: Real Property, Negligence, Summary Judgment, Evidence

Facts:

The appellant, Century Plumbing and Heating, is a defendant in several actions relating to a flood in the TD Canada Trust Tower in Toronto owned by Brookfield. The respondents, ADT Security Services Canada Inc., brought five motions for summary judgment seeking orders removing them as a party from all actions relating to the flood. All of the other parties consented to the removal except the appellant. The motion judge awarded summary judgment dismissing the claims against ADT and the appellant appeals the decision on three grounds.

Issues:

(1) Did the motion judge err by stating that all parties agreed that the Building Automation System ("BAS") on the premises had frozen on the night of the flood?

(2) Did the motion judge err by not considering video evidence tendered by the appellant?

(3) Did the motion judge err in relying on inadmissible evidence including a letter produced by Brookfield to make factual findings against the appellant's position on the issue of the 1:06 AM alarm?

Holding: Appeal Dismissed

Reasoning:

(1) The court did not accept the appellant's submission. It noted that the evidence also included the defendant Brookfield's admission, which was very much against its interest, that its BAS system had frozen at the relevant time.

(2) The court agreed with the motion judge, stating that the motion judge pointed out that there was about a six hour difference between the flood time and the time shown on the video. The video failed to establish a genuine issue requiring trial.

(3) The court ruled that irrespective of that evidence, there was other admissible evidence to support the motion judge's conclusion that the 1:24 AM alarm related to low water pressure, whereas, the 1:06 AM alarm could not have related to anything serious. Further, there was no reliable evidence to the contrary.

McLean v. Boettcher, 2016 ONCA 14

[Juriansz, Hourigan and Brown JJ.A.]

Counsel:

William G. Scott, for the appellants

Suzanne E. Hunt, for the respondent The Corporation of the Township of Cramahe

Tanisha G. Tulloch, for the respondents William Taggart and Taggart & Carroll LLP

No one appearing for the respondents Tracy Boettcher, Elizabeth Boettcher and John Boettcher

Keywords: Real Estate, Dismissal for Delay, Setting Aside, Settlement Discussions, Reid v. Dow Corning Corp. Factors

Facts:

The appellants appeal the order of the motion judge dismissing their motion to set aside the registrar's dismissal of their action for delay. The action relates to a residential real estate purchase agreement dated February 24, 2006. The appellants commenced an action on June 2, 2008 against the defendants. In January 2010, the parties mutually agreed to postpone litigation to investigate an alternative solution to the dispute. The registrar dismissed the action for delay on November 15, 2011. The motion to set aside the registrar's dismissal was served March 22, 2012. However, there were a series of adjournments. On July 29, 2013, the motion was dismissed, with leave to the appellants to bring a new motion. The appellants did not did not bring the second motion to set aside the dismissal for delay for another 14 months. The motion judge dismissed the second motion for delay because the presumed prejudice to the defendants that had not been rebutted and there was actual prejudice because a witness had died.

Issues:

(1) Did the motion judge err in finding that the death of a witness resulted in actual prejudice?

(2) Did the motion judge err in finding that the 14-month delay was fatal to the claim?

Holding: Appeal dismissed.

Reasoning:

(1) No. Although it was possible that the trial would not have been held before the witness' death, the court was satisfied there was ample other evidence upon which the trial judge could find the actual prejudice that had not been rebutted.

(2) No. The motion judge applied the correct test, carefully considering the factors set out in Reid v. Dow Corning Corp. Although part of the delay was the due to the entirely laudable effort to pursue a cost-effective solution outside of the courts, this did not excuse the failure to move the action forward. The Reid factors provide a structured approach to reconciling the principle that civil actions should be decided on their merits, with the principles that civil actions should be resolved within a reasonable timeframe and that the public interest is served by promoting the timely resolution of disputes. It was for the motion judge to balance these competing principles and weigh the 14 month delay in the context of the entire delay and all the circumstances.

Cross Bridges Inc. v. Z-Teca Foods Inc., 2016 ONCA 27

[MacPherson, Pepall and Hourigan JJ.A.]

Counsel:

Romesh Hettiarachchi, for the appellant Julian Binavince, for the respondent

Keywords: Debtor-Creditor, Loan Agreements, Limitation Periods, Extension, Acknowledgment of Debt, Limitations Act, 2002, section 13, Summary Judgment, Costs

Facts:

The appellant, Cross Bridges Inc. ("Cross Bridges") loaned money to the respondent, Z-Teca Foods Inc. ("Z-Teca") pursuant to the terms of a loan agreement. Cross Bridges made demand for payment and pursuant to the loan agreement, payment was required within 60 days of demand. Z-Teca made some payments, the last being a cheque for the payment of interest. The cheque was deposited by Cross Bridges at TD Bank on January 10, 2011. Two days after deposit, TD Bank returned the cheque as NSF.

Cross Bridges issued a statement of claim on January 17, 2013, for claims including damages for the debt owing under the parties' loan agreement. Z-Teca pleaded that the claim was barred due to the expiry of the two-year limitation period under the Limitations Act, 2002. Cross Bridges brought a summary judgement motion requesting an order declaring that it had brought its claim within the limitation period and that the only genuine issue was the amount of its entitlement.

The motion judge held that the limitation period started to run on January 10, 2011, when the cheque was presented to the bank for payment making the January 17, 2013 claim statute barred.

Issues:

(1) Did the motion judge err in finding that the limitation period ran from the date of presentation of the cheque to the bank on January 10, 2011, meaning that the limitation period expired on January 10, 2013?

(2)Is the limitation defence unavailable?

(3)Did the motion judge err in not permitting a set-off of the adverse costs award against the indebtedness?

Holding: Appeal dismissed.

Reasoning:

(1) No. The limitation period began to run on December 20, 2009 which was 60 days after demand was made. However, s. 13 of the Limitations Act, 2002 provides that the limitation clock can be reset by an acknowledgement of debt prior to the expiry of the limitation period. Z-Teca last acknowledged its indebtedness on January 10, 2011, the date the cheque was presented to TD Bank for payment. The motion judge correctly concluded that the two-year limitation period was restarted for a further two-year period on January 10, 2011.

(2) No. Cross Bridges argued that the limitation defence should not be allowed because Z-Teca acknowledged its indebtedness in cross-examination on its affidavit filed on the summary judgment motion. When read in its totality, the admission of indebtedness by Z-Teca was qualified and stated to be subject to the limitation period defence. For an acknowledgement to reset the limitation clock under ss. 13(9) of the Limitations Act, 2002, it cannot be made after the expiry of the limitation period. In this instance, the cross-examination occurred well after the expiry date.

(3) No. The motion judge was not required to order a set-off. There were no supporting materials provided to him on this point and in light of Cross Bridges' lack of success on the motion, there was no reason to interfere on the issue of costs.

Goldsmith v. National Bank of Canada, 2016 ONCA 22

[Weiler, Pardu and Benotto JJ.A.]

Paul J. Bates, Daniel E.H. Bach and S. Sajjad Nematollahi, for the appellant

R. Paul Steep, Eric S. Block, Byron Shaw and Jessica Laham, for the respondent

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