Court Of Appeal Summaries (September 16-20)

Good evening,

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario.

The headline decision this week is Toronto (City) v Ontario (Attorney General). Everyone will recall that the Better Local Government Act, 2018, passed shortly before the 2018 municipal election, reduced the number of wards from 47 to 25 in the middle of the election campaign. The City and others challenged the constitutionality of the change. After Belobaba J. declared the change unconstitutional for violating the freedom of expression, last year a three-member panel of the Court of Appeal stayed the lower court decision pending the appeal, permitting the election to proceed on the basis of 25 wards. On the appeal itself, four of the five members of the panel of the Court noted that the section 2(b) protection of expression does not extend to the effectiveness of the expression. The majority therefore concluded that the change mid-election was not unconstitutional. The majority also found that the application judge had improperly subsumed the right to vote into the right to freedom of expression. MacPherson JA dissented, and would have dismissed the appeal, finding that the freedom of expression had been violated.

Our readers will recall that Hilson v 1336365 Alberta Ltd was a decision that was released by the Court in error back in May. Last month, the Court determined that the appeal had to re-heard by a new panel (it is scheduled to be heard at the end of October). The respondent brought a motion for security for costs in advance of the re-hearing. It had not sought security for costs the first time around. In light of the delay, and the circumstances necessitating the re-hearing of the appeal, the Court quite rightly determined that an order for security for costs at this stage would not be just.

Other topics covered this week included contractual interpretation, variation of both a child support and security for costs order, custody and access, extension of time to perfect an appeal and setting aside an order for security for costs in a negligence action against a bank, the determination of rights under a bare trust and MVA.

I hope everyone is enjoying the beautiful end of summer weekend weather.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

AgriMarine Holdings Inc. v. Akvatech AS,2019 ONCA 713

Keywords: Contracts, Interpretation, Breach, Licensing Agreements, Standard of Review, Sattva Capital Corp. v Creston Moly Corp, 2014 SCC 53, Merck & Co., Inc. v Apotex Inc., 2013 FC 751

Gauthier v. Gauthier, 2019 ONCA 722

Keywords: Family Law, Child Support, Variation, Material Change in Circumstances, Civil Procedure, Orders, Varying or Setting Aside, Security for Costs

Hilson v. 1336365 Alberta Ltd., 2019 ONCA 727

Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, 61.06(1)(a) and (c), Trillium Motor World Ltd. v. General Motors of Canada Ltd., 2016 ONCA 702

Montforts v. Clarke, 2019 ONCA 723

Keywords: Family Law, Custody and Access, Joint Custody, Parallel Parenting, Children's Law Reform Act, R.S.O. 1990, c. 12, ss. 24(2), Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.)

FoodInvest Limited v. Royal Bank of Canada, 2019 ONCA 728

Keywords: Civil Procedure, Appeals, Extension of Time, Security for Costs, Rules of Civil Procedure, Rules 56.01(1) and 61.06(1)

Rubner v. Bistricer, 2019 ONCA 733

Keywords: Wills and Estates, Trusts, Bare Trusts, Torts, Conversion, Fiduciary Duties, Trustee de son tort, Civil Procedure, Res Judicata, Teixeira v Markgraf Estate, 2017 ONCA 819, Angus v Port Hope (Municipality), 2017 ONCA 566, In the Estate of Jean Elliott (2008), 45 ETR (3d) 84 (Ont. SC)

Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732

Keywords: Constitutional Law, Freedom of Expression, Voting Rights, Better Local Government Act, 2018, SO 2018, c 11, Canadian Charter of Rights and Freedoms, ss 2(b) and 3, Constitution Act, 1867, Longley v Canada (Attorney General), 2007 ONCA 852, Baier v. Alberta, 2007 SCC 31, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, Dunmore v. Ontario (Attorney General), 2001 SCC 94, Harper v. Canada (Attorney General), 2004 SCC 33, R. v. Oakes, [1986] 1 S.C.R. 103

Rodrigues v. Purtill, 2019 ONCA 743

Keywords: Torts, Negligence, MVA, Evidence, Admissibility, Experts, Damages, Civil Procedure, Reasonable Apprehension of Bias, Costs, Fiddler v Chiavetti, 2010 ONCA 210, Insurance Act, RSO 1990, c I8, O Reg 461/96, s. 4.3, Family Law Act, RSO 1990, c F3

Short Civil Decisions

Damiani v. QSR Group Inc., 2019 ONCA 725

Keywords: Civil Procedure, Default Judgements, Setting Aside

Ross v. Ross, 2019 ONCA 724

Keywords: Wills and Estates, Civil Procedure, Passing Accounts, Orders, Enforcement, Contempt

Carey v. Carey, 2019 ONCA 729

Keywords: Civil Procedure, Appeals, Adjournments

Hasselsjo v. Arcand, 2019 ONCA 735

Keywords: Torts, Defamation, Unjust Enrichment, Summary Judgment

Solomon v. Abughaduma, 2019 ONCA 737

Keywords: Civil Procedure, Costs

Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 744

Keywords: Civil Procedure, Costs

Criminal Decisions

Lochner v. Ontario (Attorney General), 2019 ONCA 730

Keywords: Criminal Law, Private Informations, Summary Determination, Criminal Code, RSC 1985, c C-46, ss 504, 507.1 and 685(1)

R v. Chambers (Publication Ban), 2019 ONCA 736

Keywords: Criminal Law, Sexual Assault, Reasonable Apprehension of Bias, R v Stewart (1992), 62 CCC (3d) 289 (Ont CA), appeal quashed, [1991] SCCA No 110, R v PG, 2017 ONCA 351

R v. Charley, 2019 ONCA 726

Keywords: Criminal Law, Robbery, Delay, Canadian Charter of Rights and Freedoms, s 11(b), Criminal Code, ss 686(4), 752.1, R v Jordan, 2016 SCC 27, R v Morin, [1992] 1 SCR 771, R v MacDougall, [1998] 2 SCR 45, R v Pearson, [1998] 3 SCR 620

R v. AN (Publication Ban), 2019 ONCA 741

Keywords: Criminal Law, Human trafficking, Assault, Evidence, Admissibility, Prior Statements, Video-recorded Statements, R v Sheppard, [2002] 1 SCR 869, R v Dinardo, [2008] 1 SCR 788

R v. Eadie, 2019 ONCA 739

Keywords: Criminal Law, Dangerous Driving Causing Bodily Harm, Failing to Stop, Mens Rea, Wilful Blindness, Sufficiency of Reasons, Criminal Code, ss 249(1)(a), 252(1.2), R v W(D), [1991] 1 SCR 742

R v Williams, 2019 ONCA 743

Keywords: Criminal Law, Aggravated Assault, Jury Instructions, Criminal Code, s 268(1), R v Scopelliti (1982), 34 OR (2d) 524, R v Corbett, [1988] 1 SCR 670, R v Rowbotham; R v Roblin, [1994] 2 SCR 463

Ontario Review Board

Tahuite (Re), 2019 ONCA 720

Keywords: Ontario Review Board, Not Criminally Responsible, R v Smith, [2004] 1 SCR 385

Abeje (Re), 2019 ONCA 734

Keywords: Ontario Review Board, Not Criminally Responsible, Significant Threat to Public Safety, Criminal Code, s 672.54, R v Ferguson, 2010 ONCA 810, Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625, Afemui (Re), 2016 ONCA 689, Sim (Re), 2019 ONCA 719, Woods (Re), 2019 ONCA 87, R v Owen, 2003 SCC 33, Gonzalez (Re), 2017 ONCA 102

Foote (Re), 2019 ONCA 731

Keywords: Ontario Review Board, Sufficiency of Reasons, R v JJRD (2006), 215 CCC (3d) 252 (Ont CA)


AgriMarine Holdings Inc. v. Akvatech AS, 2019 ONCA 713

[Lauwers, van Rensburg and Roberts JJ.A.]


Adam D. H. Chisholm and Holly Sherlock, for the appellants Jason W. J. Woycheshyn and Joseph N. Blinick, for the respondent


This is an appeal by AgriMarine Holdings Inc. and AgriMarine Industries Inc. from an order dismissing an application for a declaration that Akvatech AS was in breach of contract and is not the holder of a license to certain fish-rearing technology owned by the appellants (the "Technology"). The proceedings engage the parties' rights and obligations under a contract (the "Letter Agreement"). At issue in the litigation was whether either party was in breach of the Letter Agreement, whether, after AgriMarine failed to refund the Pre-payment Amount, Akvatech had obtained a license under the Letter Agreement, and whether the appellants' claim was statute-barred or otherwise barred by laches or estoppel.


(1) Did the application judge err in permitting Akvatech to take advantage of its own breach of contract in order to obtain the license to the Technology?

(2) Did the application judge err, after concluding that the Letter Agreement had terminated, and where there was no default by AgriMarine, in permitting Akvatech to obtain a license?

(3) Is the license unenforceable because it appears to be of unlimited duration but does not provide for any royalty payments?


Appeal dismissed.


(1) No. The court found that this is not a case about the exercise of rights and remedies following a breach of contract. The court below found that the parties, through their conduct, agreed to terminate the Letter Agreement.

(2) No. Notwithstanding the positions of their counsel, the parties had agreed that, once the Letter Agreement was terminated, the Pre-payment Amount would be demanded, and a Default Notice would issue. The court found the application judge's decision to be a reasonable interpretation of s. 2 of the Letter Agreement that, as the application judge concluded, it was meant to provide security for the refund of the Pre-payment Amount.

(3) No. The court saw no reason to interfere. The application judge considered all the relevant factors, including the terms of the license, and of the Letter Agreement as a whole, and the fact that the parties had agreed to the provision while represented by legal counsel. The court agreed that the absence of a licensing fee or royalty rate would not make the license unenforceable.

Gauthier v. Gauthier, 2019 ONCA 722

[Hoy A.C.J.O., Nordheimer and Jamal JJ.A.]


E. Vine and J Walsh, for the appellant J. Judge (Gauthier), acting in person


In 2010, the appellant was ordered to pay child support to the respondent. On August 4, 2016, Barnes J of the...

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