Court Of Appeal Summaries (November 4 – November 8 2019)

Good morning.

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

Congratulations to our very own Chad Kopach for successfully acting in First National Financial GP Corporation v. Golden Dragon HO 10 Inc. The case involved a motion by a receiver for directions in respect of the debtors' appeal of a sales approval and vesting order. The sale and vesting order were preserved.

Other topics covered this week included limitation periods to claim SABs, Rule 49, survival of judgments in bankruptcy, agreements of purchase of sale of land, and a sad MVA case involving an eighth grader jumping out the back of a schoolbus.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

Fortress Carlyle Peter St. Inc. v. Ricki's Construction and Painting, 2019 ONCA 866

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Specific Performance, Civil Procedure, Appeals, Fresh Evidence, Morgan v Lucky Dog Ltd. (1987), 45 RPR 263 (Ont HCJ), Palmer v The Queen, [1980] 1 SCR 759, Sengmueller v Sengmueller (1994), 17 OR (3d) 208 (CA)

Little v. Floyd Sinton Limited, 2019 ONCA 865

Keywords: Torts, Negligence, Contributory Negligence, Causation, Damages, Mitigation, Collateral Benefits, Family Law Act, RSO 1990, c F 3, s 61, Insurance Act, RSO 1990, c I 8, ss 267.8(4) & (8), Courts of Justice Act RSO 1990, c C43 ss 134(1) & (6)

First National Financial GP Corporation v. Golden Dragon HO 10Inc., 2019 ONCA 873

Keywords: Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3., s. 193(c) and 195, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611

CBM Ready Mix Division v. 8377278 Canada Inc., 2019 ONCA 886

Keywords: Bankrupcty and Insolvency, Civil Procedure, Default Judgments, Survival in Bankruptcy, Fraud, Misappropriation and Defalcation While Acting in Fiduciary Capacity, Fresh Evidence, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 178(1)(d) and 178(1)(h), Rules of Civil Procedure, Rules 19.04 and 19.05, Batista v. Mason's Masonry Supply Ltd., 2014 ONSC 3955, Simone v. Daley (1999), 43 O.R. (3d) 511 (C.A.), R. v. Palmer, [1980] 1 S.C.R. 759

Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884

Keywords: Contracts, Repudiation, Anticipatory Breach, Civil Procedure, Costs, Offers to Settle, Rules of Civil Procedure, Rule 49.10, Guarantee Co. of North America v. Gordon Capital, [1999] 3 S.C.R. 423

Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882

Keywords:Contracts, Interpretation, Insurance, MVA, Statutory Accident Benefits, Civil Procedure, Limitation Periods, Discoverability, Standard of Review, Insurance Act, RSO 1990, c I8, s 281.1(1), Statutory Accident Benefits Schedule - Accidents On or After November 1, 1996, O Reg 403/96 (SABS), s 51(1), Pioneer Corporation v Godfrey, 2019 SCC 42

Short Civil Decisions

Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd.., 2019 ONCA 889

Keywords: Civil Procedure, Costs

Criminal Decisions

18. v. K., 2019 ONCA 868

    Keywords:Criminal Law, Second Degree Murder, Evidence, Admissibility, Prior Statements, Voluntariness, Jury Instructions

18. v. M.S. (Publication Ban), 2019 ONCA 869

    Keywords:Criminal Law, Sexual Interference, Invitation to Sexual Touching, Sexual Assault, Evidence, Cross-Examination, Credibility, R v TM, 2014 ONCA 854, R v L(L), 2009 ONCA 413, R v Bartholomew, 2019 ONCA 377, R v Batte (2000), 49 OR (3d) 321 (CA)

18. v. M.H., 2019 ONCA 870

    Keywords:Criminal Law, Second Degree Murder, Manslaughter, Evidence, Credibility, Reliability

18. v. S., 2019 ONCA 872

    Keywords:Criminal Law, Dangerous Driving Causing Death, Driving Prohibition, Sentencing, Sufficiency of Reasons

18. v. R. (Publication Ban) (Appeal Book Endorsement), 2019 ONCA 867

    Keywords: Criminal Law, Possession of Child Pornography, Evidence, Search Warrants, R. v. Garofoli, [1990] 2 S.C.R. 1421, R. v. Sadikov, 2014 ONCA 72

18. v. W., 2019 ONCA 878

    Keywords: Criminal Law, Robbery, Sentencing

18. v. D. , 2019 ONCA 875

    Keywords:Criminal Law, Attempted Murder, Firearms Offences, Sentencing, Parole Eligibility, R. v. Bero (2000), 137 O.A.C. 335 (C.A.), R. v. Brown, 2009 ONCA 563

18. v. L.A., 2019 ONCA 877

    Keywords:Criminal Law, Sexual Assault, Defences, Honest but Mistaken Belief, Evidence, Credibility, Criminal Code, R.S.C., 1985, c. C-46, s. 276, R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), R. v. Luedecke, 2008 ONCA 716, R. v. Garciacruz, 2015 ONCA 27, R. v. Park, [1995] 2 S.C.R. 836

18. v. A., 2019 ONCA 881

    Keywords:Criminal Law, Possession, Evidence, Search Warrants, Confidential Informants, Reasonable and Probably Grounds, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s 5(2), Criminal Code, ss. 487.012(3), 492.1, 492.2, 487.012(3), R. v. Debot, [1989] 2 S.C.R. 1140, R. v. Araujo, 2000 SCC 65, R. v. Nero, 2016 ONCA 160

18. v. S., 2019 ONCA 880

    Keywords: Criminal Law, Trafficking, Possession for the Purpose of Trafficking, Sentencing, Aggravating Factors, R. v. Lacasse, 2015 SCC 64

18. v. C., 2019 ONCA 885

    Keywords: Criminal Law, Appeal Abandoned

18. v. D., 2019 ONCA 883

    Keywords:Criminal Law, Sentencing

18. v. L., 2019 ONCA 879

    Keywords: Criminal Law, Appeal Abandoned

18. v. M.S., 2019 ONCA 871

    Keywords:Criminal law, Assault, Assault with a Weapon, Sexual Assault, Assault Causing Bodily Harm, Bail, Enforceability and Reviewability Factors, Public Interest, Public Confidence, Similar Fact Evidence, Jury Instructions, Criminal Code, R.S.C. 1985, c. C-46, ss. 515(10)(c), 679(3), R. v. Oland, 2017 SCC 17, R. v. Farinacci (1993), 86 C.C.C. (3d) 32, R. v. M.(B.), 42 O.R. (3d) 1, R. v. B.(F.F.), [1993] 1 S.C.R. 697, R. v. N.P.C., 2007 ONCA 457, R. v. Sandhu, 2009 ONCA 102, R. v. Iraheta, 2018 ONCA 229

18. v. R., 2019 ONCA 874

    Keywords:Criminal Law, Evidence, Interpreters

18. v. V., 2019 ONCA 887

    Keywords:Criminal Law, Arson, Mischief, Similar Fact Evidence, Sentencing

    Ontario Review Board Decisions

    T (Re), 2019 ONCA 888

    Keywords:Ontario Review Board, Not Criminally Responsible, Criminal Harassment, Breach of Recognizance, Sentencing, Criminal Code, R.S.C., 1985, c. C-46, s. 672.73, 672.78, R. v. Owen, 2003 SCC 33

    CIVIL DECISIONS

    Fortress Carlyle Peter St. Inc. v. Ricki's Construction and Painting, 2019 ONCA 866

    [MacPherson, Pepall and Lauwers JJ.A.]

    Counsel:

    Daniel Schwartz and Scott McGrath, for the appellant

    Maureen L. Whelton and Neil G. Wilson, for the respondent

    Keywords:Contracts, Real Property, Agreements of Purchase and Sale of Land, Specific Performance, Civil Procedure, Appeals, Fresh Evidence, Morgan v Lucky Dog Ltd. (1987), 45 RPR 263 (Ont HCJ), Palmer v The Queen, [1980] 1 SCR 759, Sengmueller v Sengmueller (1994), 17 OR (3d) 208 (CA)

    facts:

    The respondent, Fortress Carlyle Peter St. Inc. ("Fortress"), signed an agreement of purchase and sale ("APS") with the appellant, Ricki's Construction and Painting Inc. ("Ricki's"), to purchase property in Toronto. The transaction did not close and Fortress sued Ricki's for specific performance. The parties brought cross-motions for summary judgment. The motion judge dismissed Ricki's motion for summary judgment, but granted summary judgment in favour of Fortress, and ordered specific performance of the APS. Ricki's appealed that order and sought leave to admit fresh evidence.

    issues:

    (1) Did the motion judge err in deciding the case on a legal theory that was not pleaded or argued?

    (2) Did the motion judge fail to address all of the inconsistencies in the parties' evidence?

    (3) Did the motion judge fail to consider key evidence, thereby making palpable and overriding errors with respect to the timeline of events?

    (4) Did the motion judge err in failing to find that, even if Ricki's acted in bad faith and was deceitful, specific performance was not justified?

    (5) Is this a case in which the court should admit fresh evidence on appeal?

    holding:

    Appeal dismissed.

    reasoning:

    (1) No. The motion judge found that Ricki's delay, deceit, and breach of contract in providing an altered estoppel certificate at noon, and its late delivery of the correct estoppel certificate on the day of closing meant it could no longer rely on time being of the essence. Its misconduct precluded that reliance.

    (2) No. The court found that the motion judge did explain why he accepted the respondent's evidence and rejected that of the appellant.

    (3) No. The court found that the errors were minor in nature and had no impact on the outcome.

    (4) No. The court agreed with the motion judge's conclusion that Ricki's delay was a deliberate tactical decision to discomfit the purchaser, Fortress. The court also found that in the event that both parties were in breach, Ricki's still did not have a defence to the claim for specific performance, as under those circumstances, the contract was not at an end.

    (5) No. The court found that the circumstances of the case did not meet the legal test for the admission of fresh evidence.

    Little v. Floyd Sinton Limited, 2019 ONCA 865

    [Tulloch, Roberts and Miller J.A.]

    Counsel:

    David A. Zuber and James B. Tausendfreund, for the appellant

    Paul J. Pape, Shantona Chaudhury, and Brodie Noga, for the respondents

    Keywords: Torts, Negligence, Contributory Negligence, Causation, Damages, Mitigation, Collateral Benefits, Family Law Act, RSO 1990, c F 3, s 61, Insurance Act, RSO 1990, c I 8, ss 267.8(4) & (8), Courts of Justice Act RSO 1990, c C43 ss 134(1) & (6)

    facts:

    S.L., a grade 8 student, jumped from the back of a moving school bus and suffered a catastrophic head injury as a result. She had been training as a bus patroller and thus, knew how to open the back door. She further understood that it was dangerous to jump from the back of a school bus while it was moving. The back door of the bus...