Court Of Appeal Summaries (March 27 – 31, 2017)

There were several substantive civil decisions released this week.

Boaden Catering Limited v. Real Food For Real Kids Inc. was a contest over website domain names.

The decision of United States v Equinix Inc. dealt with the Mutual Legal Assistance in Criminal Matters Act, which allows countries that have a mutual legal assistance treaty with Canada to seek the help of the Minister of Justice in locating and obtaining relevant evidence believed to be in Canada. At issue was whether a judge erred in making an order directing that the seized material be examined by an FBI clean team to prepare a report to assist the court in determining what documents should be delivered to the FBI. The court indicated that someone impartial should be appointed.

There were two real estate law decisions - one dealing withadverse possession and the other with rescission of an APS under the Condominium Act, 1998 related to Trump Tower. Other topics included offers to lease and family law.

Table of Contents:

Hunks v. Hunks, 2017 ONCA 247

Keywords: Family Law, Structured Settlements, Property, Income, Family Law Act

Northridge Property Management Inc. v. Champion Products Corp, 2017 ONCA 249

Keywords: Real Property, Commercial Leases, Offers to Lease, Fundamental Breach, Damages, Pre-Judgment and Post-Judgment Interest

Boaden Catering Limited v. Real Food For Real Kids Inc., 2017 ONCA 248

Keywords: Copyright, Trademarks, Trade Secrets, Website Domain Registrations, Defamation, Arbitration, Civil Procedure, Witnesses, Cross-examination, Rules of Civil Procedure, Rule 39.02(3)

Ontario (Attorney General) v. $25,610 in Canadian Currency, 2017 ONCA 251

Keywords: Civil Procedure, Appeals, Filing Fees, Waiver, Administration of Justice Act

Lloyd v. Bush, 2017 ONCA 252

Kewords: Torts, MVA, Municipal Liability, Non-Repair of Roads, Municipal Act, 2001, Reasonable Apprehension of Bias, Damages, Attendant Care Costs

S.A. v. A.A., 2017 ONCA 243

Keywords: Family Law, Real Estate, Mortgages, Enforceability, Duress

Bimman v. Neiman, 2017 ONCA 264

Keywords: Corporations, Oppression, Ontario Business Corporations Act, s. 248, Valuation, Substantial Indemnity Costs

Currie v. Ontario (Attorney General), 2017 ONCA 266

Keywords: Endorsement, Criminal Law, Private Prosecutions, Prosecutorial Discretion, Judicial Review, Standing, Issue Estoppel

Harvey v. Talon International Inc., 2017 ONCA 267

Keywords: Real Property, Condominiums, Agreements of Purchase and Sale, Rescission, Material Change, Condominium Act, 1998,, s. 74, Limitation Periods, Real Property Limitations Act, s. 4

Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265

Keywords: Real Property, Adverse Possession, Masidon Test, Land Titles Act, s. 51(2), Real Property Limitations Act, s. 4

Unger v. Unger, 2017 ONCA 270

Keywords: Endorsement, Family Law, Custody and Access, Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Children's Law Reform Act, Habitual Residence

United States v. Equinix Inc., 2017 ONCA 260

Keywords: International Law, Mutual Legal Assistance in Criminal Matters Act, RSC 1985 c 30, Evidence, Criminal Law, Criminal Copyright Infringement

Civil Decisions:

Hunks v. Hunks, 2017 ONCA 247

[Gillese, MaFarland and Pepall JJ.A.]

Counsel:

C. Vitsentzatos, T. Zimmerman, for the appellant

P. A. R. Giles, for the respondent

Keywords: Family Law, Structured Settlements, Property, Income, Family Law Act

Facts: The wife was injured in a motor vehicle accident during the marriage. She reached a settlement of her claim. Some of the proceeds of the personal injury settlement were used to create a structured settlement ("SS Annuity") for her. The marriage ended but the wife continued to receive payments from the SS Annuity.

Issues: Are the SS Annuity payments to be treated as property or income under the Family Law Act?

Holding: The payments are income.

Reasoning: The SS Annuity payments should be considered income for the purposes of spousal support and not property under Part 1 of the Act. First, the SS Annuity arose from a structured settlement. A structured settlement is created when some or all of a personal injury settlement is deposited with a life insurance company in exchange for guaranteed tax-free payments for a specific number of years or for the recipient's lifetime. The wife did not receive the whole of the settlement monies during the marriage. She received $200,000 during the marriage, and used the money to benefit the family. Second, the SS Annuity is analogous to disability benefits and not to a pension, and should therefore be treated as income. The SS Annuity payments replace the employment income that the wife would have earned had she been able to work.

Northridge Property Management Inc. v. Champion Products Corp, 2017 ONCA 249

[Epstein, Benotto and Trotter JJ.A]

Counsel:

H. Khukh, for the appellant

D. Landry, for the respondent

Keywords: Real Property, Commercial Leases, Offers to Lease, Fundamental Breach, Damages, Pre-Judgment and Post-Judgment Interest

Facts:

The appellant, Champion Products Corp. ("Champion"), moved into the rental property of the respondent, Northridge Property Management Inc. ("Northridge"), only to move out three weeks later. Northridge claimed damages against Champion for breach of an Offer to Lease ("OTL"). Champion argued it owed no damages because either there was no contract, or, if a contract existed, Northridge had fundamentally breached it. The trial judge rejected both arguments.

Under the OTL, signed by the parties in September 2011, Northridge agreed to renovate parts of the leased premises. Schedule "B", attached to the OTL, set out specific renovations Northridge agreed to undertake. Paragraph 7 of the OTL provided that Champion "shall execute" a standard form of lease, attached as Schedule "C".

The trial judge found the OTL to be a complete agreement. It contained the essential elements of a lease and it contained an arbitration provision. Moreover, the parties conducted themselves as if an agreement existed. Specifically, Northridge upgraded the premises to suit Champion's specific needs, as set out in Schedule "B". Champion took possession of the premises.

The trial judge also held that there had not been a fundamental breach, despite the assertions by Champion that it could not use the property for its business because it was not properly zoned and that the property was unusable due to incomplete renovations. With respect to zoning, the trial judge held that the property was suitable for one of the businesses that Champion intended to operate out of the premises. Furthermore, none of the property deficiencies Champion relied on amounted to a fundamental breach.

Issue:

1) Did the trial judge err in finding that the OTL was a binding agreement?

2) If the OTL was a binding agreement, did the trial judge err in finding Northridge did not fundamentally breach the agreement?

3) Did the trial judge err in awarding 12% interest on his damages award, compounded monthly?

Holding: Appeal dismissed.

Reasoning:

1) No. First, Champion pleaded that the OTL was an agreement the parties entered into. Second, the trial judge correctly relied upon the precedent in Upper Room Alliance Group Ltd. v. John Volken Foundation, 2008 CarswellOnt 5980 (S.C.). Third, the parties were sophisticated corporate entities that discussed the terms of their bargain, reduced those terms to writing, and signed the document reflecting those terms.

The Court gave no credence to Champion's assertion that Northridge promised Champion a location that was the same or better. The alleged assertion was not a term of the OTL. It was not pleaded as a representation that induced Champion to enter into the OTL. If it was made at all, the assertion did not alter Northridge's obligations to Champion.

2) No. The trial judge's finding that Northridge did not breach the OTL was sound. The complaints asserted by Champion at trial, essentially aesthetic, were only raised after it left the premises. Champion's assertion of such work being an important part of the OTL lacked credibility. Even if Northridge had to perform the repairs Champion requested, failure to do so did not deprive Champion of essentially the whole benefit of the contract.

3) No. The discretionary award of pre-judgment interest can only be interfered with if the court finds the trial judge wrongfully exercised his discretion or gave insufficient weight to relevant considerations. The trial judge explained the interest awarded on the basis that it was set out in the OTL as part of Schedule "C". The OTL provided that Champion was "required" to sign a lease in the form contained in Schedule C. The only leeway was that the parties could negotiate non-financial terms - a category into which the rate of interest did not fall.

Boaden Catering Limited v. Real Food For Real Kids Inc., 2017 ONCA 248

[MacFarland, van Rensburg and Huscroft JJ.A.]

Counsel:

A. Jarvis, for the appellant

J. Simpson, for the respondents

Keywords: Copyright, Trademarks, Trade Secrets, Website Domain Registrations, Defamation, Arbitration, Civil Procedure, Witnesses, Cross-examination, Rules of Civil Procedure, Rule 39.02(3)

Facts:

The proceedings arise out of a dispute over website domain names. The appellant Boaden Catering Limited ("Boaden") and the respondent Real Food For Real Kids Inc. ("RFRK") are competitors in the market for healthy children's catering in the Greater Toronto Area. In July 2014 and December 2014, Boaden registered a ".com" domain name (realfoodforrealkidss.com) and three ".ca" domain names (realfoodforkids.ca, rfrk.ca and realfoodlunchclub.ca), which were identical or similar to names that RFRK claimed to have used in its business continuously since 2005. In December 2014, Boaden registered RFRK and RFRK.CA as business names under Ontario's Business Names Act, R.S.O. 1990, c. B.17. Boaden also embedded "RFRK", "Real Food for Real Kids" and other similar keywords as "meta-tags" on its...