Court Of Appeal Summaries (October 21 – October 25 2019)

Good day,

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

The Court released two decisions concerning the fight over the proposed destruction and redevelopment of Glen Abbey Golf Club. In 2018, the Town voted unanimously to reject Clublink's demolition application for planning and heritage reasons. Clublink attempted to appeal the decision to the Local Planning Appeal Tribunal (LPAT), but the Town argued that it could not because the Town had designated the property as a heritage site. Clublink then obtained a decision from the Superior Court of Justice that it had a right to take its demolition application to LPAT. The Town appealed. In Oakville (Town) v Clublink, the Court ruled that the golf course is a "structure" pursuant to s. 34(1) of the Ontario Heritage Act, meaning that Clublink can appeal its rejected demolition permit to LPAT and the Town is bound by LPAT's decision. The Town unsuccessfully argued that s. 33 of the OHA applies instead of s. 34, requiring the Conservation Review Board to hold a hearing and produce a report as to whether or not the application should be approved, and the Board's report is not binding on the Town.

In the second decision, Clublink Corporation ULC v. Oakville (Town), the Town appealed from the lower court's decision quashing 5 municipal by-laws passed to protect the golf course from being repurposed, and a conservation plan requiring Town consent for any changes to the course that affects its heritage attributes. The Court upheld the jurisdiction of the Town to pass the by-laws, but agreed with the lower court's decision that the conservation plan was void as the Town lacked jurisdiction to make it.

Other topics covered this week included assessing damages for past income loss and prejudgment interest in a sexual abuse case and the legal test for Crown wardship on a summary judgment motion.

Hope everyone is having an enjoyable weekend.

Lea Nebel

Blaney McMurtry LLP

416.593.3914 Email

Table of Contents

Civil Decisions

Bernard Property Maintenance v Taylor, 2019 ONCA 830

Keywords: Civil Procedure, Landlord and Tenant Board, Discrimination, Courts of Justice Act, RSO 1990, c C43, s 6(1), s 21(5), s 134(4), Rules of Civil Procedure, Rule 21.01(3)(d), Rule 61.13(1) and (3), Canadian Charter of Rights and Freedoms, Ontario Human Rights Code, RSO 1990, c H19, Overseas Missionary Fellowship v 578369 Ontario Ltd. (1990),73 OR (2d) 73, Alliance to Protect Prince Edward County v Ontario (Environment and Climate Change), 2018 ONCA 576, Coote v Ontario (Human Rights Commission), 2010 ONCA 580, PM v MA, 2017 ONCA 6

Clublink Corporation ULC v. Oakville (Town), 2019 ONCA 827

Keywords: Municipal By-Laws, Conservation Plans, Bad Faith, Ontario Heritage Act, R.S.O. 1990, c. O.18, Municipal Act, 2001, S.O. 2001, c. 25, Equity Waste Management of Canada v. Halton Hills (Town) (1997), 35 O.R. (3d) 321 (C.A.), Toronto Taxi Alliance Inc. v. City of Toronto, 2015 ONSC 685, Ontario Restaurant Hotel & Motel Assn. v. Toronto (City) (2005), 232169 Ontario Inc. (Farouz Sheesha Café) v. Toronto (City), 2017 ONCA 484

Oakville (Town) v. Clublink Corporation ULC, 2019 ONCA 826

Keywords: Statutory Interpretation, Private Property Rights, Ontario Heritage Act, RSO 1990, c O 18 ss. 33 and 34, Planning Act, RSO 1990, c P 13, More Homes, More Choice Act, SO 2019, c 9, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, Canadian National Railways Co. v Canada (Attorney General), 2014 SCC 40, Pharmascience Inc. v Binet, 2006 SCC 48, MacLean v British Columbia (Securities Commission), 2013 SCC 67, Belwood Lake Cottagers Association Inc. v Ontario (Environment and Climate Change), 2019 ONCA 70, St. Peter's Evangelical Lutheran Church v Ottawa, [1982] 2 SCR 616, Algonquin Power (Long Sault) Partnership v. Chubb Insurance Co of Canada, 50 CCLI (3d) 107, R v Bedard (1976), 31 CCC (2d) 559, Cardiff Rating Authority and Cardiff Assessment Committee v. Guest Keen Baldwin's Iron and Steel Co. Ltd., [1949] 1 KB 385

Benson v. Belair Insurance Company Inc. , 2019 ONCA 840

Keywords: Insurance, Contract Interpretation, Standard of Review, Insurance Act, RSO 1990, c I8, Off-Road Vehicles Act, RSO 1990, c O4, Statutory Accident Benefits Schedule-Effective September 1, 2010, O Reg 34/10, Statutory Accident Benefits Schedule -Accidents on or after November 1, 1996, O Reg 403/96, McLean v. British Columbia (Securities Commission), 2013 SCC 67

Donovan v. Waterloo Regional Police Services Board , 2019 ONCA 845

Keywords: Determination of an Issue Before Trial, Absolute Privilege, Self-Represented Litigant, Fleming v. Massey, 2016 ONCA 70, Amato v. Welsh, 2013 ONCA 258, Odhavji Estate v. Woodhouse, 2003 SCC 69, Rules of Civil Procedure, Workplace Safety and Insurance Act, 1997, SO 1997, c. 16, Sched. A

L.M. v. Peel Children's Aid Society (Publication Ban) , 2019 ONCA 841

Keywords: Family Law, Summary Judgment, Custody, Access, Child Protection, Crown Wardship, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Child and Family Services Act, R.S.O. 1990, c. C.11, Courts of Justice Act, R.S.O. 1990, c. C.43, s 134, Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316, Hryniak v. Mauldin, 2014 SCC 7, New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, Dakota Ojibway Child and Family Services v. MBH, 2019 MBCA 91, R. v. Find, 2001 SCC 32, R. v. Spence, 2005 SCC 71, Children's Aid Society of Toronto v. P.M., 2015 ONCA 695, Catholic Children's Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165

La Rose Bakery 2000 Inc. v. Intact Insurance Company , 2019 ONCA 850

Keywords: Insurance Law, Coverage, Exclusions, Civil Procedure, Appeals, Summary Judgment, Butera v. Chown, Cairns LLP, 2017 ONCA 783

MacLeod v. Marshall , 2019 ONCA 842

Keywords: Quantum of Damages, Jury Charges. Prejudgment Interest, Athey v Leonati, [1996] 3 SCR 458, Andrews v Grand & Toy Alberta Ltd., [1978] 2 SCR 229, Whiten v Pilot Insurance Co., [2002] 1 SCR 595, Courts of Justice Act, R.S.O. 1990, c. C.43, Insurance Act, RSO 1990, c.I.8, s. 258.3(8.1)

Wright v. Strauss , 2019 ONCA 844

Keywords: Trust, Jurisdiction, Oppression, Business Corporations Act, RSO 1990, Courts of Justice Act, RSO 1990 c C 43 ss 6(2), 13 and 18, Rules of Civil Procedure, RSO 1990, Reg 194, Ontario Securities Commission v McLaughlin, 2009 ONCA 280, Tomec v Economical Mutual Insurance Company, 2019 ONCA 839

Short Civil Decisions

Karges v. Karges, 2019 ONCA 833

Keywords: Family Law, Divorce, Support Order

Asghar v. Toronto Police Services Board, 2019 ONCA 837

Keywords: Civil Procedure, Motion to Vary

Arrocha v. Harrison, 2019 ONCA 838

Keywords: Civil Procedure, Family Law, Appeal Book Endorsement

Pichelli v. Adair Barristers LLP, 2019 ONCA 843

Keywords: Civil Procedure, Real Estate, Interest in Property, Mortgage, Land Titles Act, R.S.O. c. L.5, s.62(2), Di Michele v. Di. Michele, 2014 ONCA 261

Fung v. Decca Homes Limited, 2019 ONCA 848

Keywords: Civil Procedure, Construction, Application for Payment, Parole Evidence Rule, Hawrish v. Bank of Montreal, [1969] S.C.R. 515

Criminal Decisions

R. v. B., 2019 ONCA 828

Keywords: Criminal Law, Evidence, MLAT Request, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1), Criminal Code, ss. 463 and 465, Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4th Supp.), s. 36(1), Charter of Rights and Freedoms, s. 7 and 11(d)

R. v. R.V. (Publication Ban), 2019 ONCA 834

Keywords: Criminal Law, Sentencing, Sexual Interference, Sexual Assault, Criminal Code, s. 718.01

R. v. R.S. (Publication Ban), 2019 ONCA 832

Keywords: Criminal Law, Youth Offender, Manslaughter, Aggravated Assault, Careless Use of a Firearm, Self-Defence, R v Bengy, 2015 ONCA 397, R v Pétel, [1994] 1 SCR 3, R v RP, 2012 SCC 22, R v Pittiman, 2006 SCC 9, Criminal Code, R.S.C. 1985, C-46, s. 34(2), s. 686(2)

R. v. M. (Publication Ban), 2019 ONCA 836

Keywords: Criminal Law, Sexual Assault, R v Forrester, 2019 ONCA 255

Ontario Review Board Decisions

M. (Re), 2019 ONCA 835

Keywords: Ontario Review Board, Significant Risk, Risk of Relapse, Risk of Reoffending, Risk to Public Safety, Abdulle (Re), 2019 ONCA 812, Mental Health Act, R.S.O. 1990, C.M.7

E. (Re), 2019 ONCA 847

Keywords: Ontario Review Board, Not Criminally Responsible, Detention Order, Criminal Code, s. 672.54, Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, Mental Health Act, R.S.O. 1990, c. M.7

CIVIL DECISIONS

Bernard Property Maintenance v Taylor, 2019 ONCA 830

[Juriansz, Benotto and Miller JJ.A.]

Counsel:

P.T., acting in person

D.S. Strashin, for the respondent

Keywords: Civil Procedure, Landlord and Tenant Board, Discrimination, Courts of Justice Act, RSO 1990, c C43, s 6(1), s 21(5), s 134(4), Rules of Civil Procedure, Rule 21.01(3)(d), Rule 61.13(1) and (3), Canadian Charter of Rights and Freedoms, Ontario Human Rights Code, RSO 1990, c H19, Overseas Missionary Fellowship v 578369 Ontario Ltd. (1990),73 OR (2d) 73, Alliance to Protect Prince Edward County v Ontario (Environment and Climate Change), 2018 ONCA 576, Coote v Ontario (Human Rights Commission), 2010 ONCA 580, PM v MA, 2017 ONCA 6

facts:

The appellant, T, is a tenant in a property managed by the respondent landlord. On June 7, 2017, the landlord commenced applications before the Landlord and Tenant Board (the "Board") to end Mr. T's tenancy, evict him, and collect unpaid rent. On June 12, 2017, the Board gave notice that the applications would be heard on July 17, 2017. Mr. T did not attend on that day and the Board granted the applications and made an eviction order.

Mr. T sought a reconsideration on the grounds that the Board failed to accommodate his disabilities by not granting an adjournment on July 17, 2017. The Board denied Mr. T's request and he appealed to the Divisional Court on July 27, 2017.

The landlord brought two unsuccessful motions to dismiss Mr. T's appeal for delay. The first motion was...

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