Court Of Appeal Summaries (November 25 – November 29, 2019)

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

The court summarized the law on the doctrine of frustration in the context of the failure close the purchase of a residential property under an agreement of purchase and sale of land in Perkins v Sheikhtavi. The appellants bought at the height of the real estate market just before the government tightened the mortgage lending rules in April 2017, following which prices precipitously dropped 20-30%. They could not sell their home or get mortgage financing and therefore could not close. They claimed the government policy change was a supervening event that would make "performance of the contract become a 'thing radically different from that which was undertaken by the contract'". The court did not accept this argument. The defendant was found liable for almost $600,000 for the purchase price of a house they never purchased!! One cringes at the thought of what would happen if the market eventually turned into a prolonged and deep slump.

In National Steel Car Limited v. Independent Electricity System, the Court allowed an appeal from the dismissal of National Steel Car's claim on a Rule 21 motion that the Feed in Tariff program that encourages the development of renewable electricity is actually an unconstitutional tax and a reason why our electricity bills have gone up. Barring an appeal to Ottawa, the matter can now proceed on the merits.

Other topics covered were fraud and conversion and appealing from interim injunction orders (you need leave to appeal to the Divisional Court).

Table of Contents

Civil Decisions

Perkins v. Sheikhtavi , 2019 ONCA 925

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Summary Judgment, Doctrine of Frustration, Implied Conditions, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, Capital Quality Homes Ltd. v. Colwyn Construction Ltd. (1975), 9 O.R. (2d) 617 (C.A.), Bang v. Sebastian, 2018 ONSC 6226, Gerstel v. Kelman, 2015 ONSC 978

National Steel Car Limited v. Independent Electricity System , 2019 ONCA 929

Keywords: Constitutional Law, Division of Powers, Taxation, Constitution Act, 1867, s 53

Amphenol Canada Corp. v. Sundaram , 2019 ONCA 932

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Interlocutory Injunctions, Mareva Injunction, Certificates of Pending Litigation, Norwich Orders, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b), Ontario Medical Association v. Miller (1976), 14 O.R. (2d) 468 (C.A.), Grand River Enterprises v. Burnham (2005), 197 O.A.C. 168 (C.A.)

St. Laurent Automotive Group Inc. v. Sami's Garage Ltd. , 2019 ONCA 941

Keywords: Torts, Conversion, Fraud, Negligent Misrepresentation, Contracts, Sale of Goods, Unjust Enrichment, Damages, Mitigation, Contribution and Indemnity, Costs, Sale of Goods Act, R.S.O. 1990, c. S.1, s. 25

Short Civil Decisions

Metropolitan Toronto Condominium Corporation No. 1328 v 2145401 Ontario Inc., 2019 ONCA 944

Keywords: Real Property, Condominiums, Right to Inspect, Torts, Tresspass, Condominium Act, 1998, S.O. 1998, ss 17(3) and 119(3)

Criminal Decisions

18. v C.,, 2019 ONCA 924

    Keywords: Criminal Law, Soliciting Prostitution from Minor, Search and Seizure, Arbitrary Detention, Immigration, Canadian Charter of Rights and Freedoms, ss. 8 and 9, Immigration and Refugee Protection Act, S.C. 2001, c. 27, R. v Pham, 2013 SCC 15

18. v L., 2019 ONCA 928

    Keywords: Criminal Law, Child Pornography, Search Warrants, R. v Mian, 2014 SCC 54

18. v B.G., 2019 ONCA 926

    Keywords: Criminal Law, Child Pornography, Circumstantial Evidence, R. v Villaroman, 2016 SCC 33

18. v. G. , 2019 ONCA 934

    Keywords: Criminal Law, Second Degree Murder, Character Evidence, Prior Bad Acts, R. v Handy, [2002] 2 SCR 908

18. v. V., R. v. V., 2019 ONCA 927

    Keywords: Criminal Law, Sexual Assault, R. v Vuradin, 2013 SCC 38, R. v Khan, 2017 ONCA 114, R. v Dinardo, 2008 SCC 24, R. v Radcliffe, 2017 ONCA 176

18. v. J.A.S., 2019 ONCA 936

    Keywords: Criminal Law, Sexual Abuse, Threatening Bodily Harm, Assault

    Ontario Review Board Decisions

    L.F.(Re),2019 ONCA 930

    Keywords: Ontario Review Board, Criminal Law

16. (Re), 2019 ONCA 931

    Keywords: Ontario Review Board, Criminal Law, Dangerous Operation of a Motor Vehicle, R. v Sheikh, 2019 ONCA 692

    CIVIL DECISIONS

    Perkins v. Sheikhtavi, 2019 ONCA 925

    van Rensburg, Paciocco and Thorburn JJ.A.

    Counsel:

    Brian Sherman, for the appellant Dylan O'Leary, for the respondents Allan D. Powell, for the third parties

    Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Summary Judgment, Doctrine of Frustration, Implied Conditions, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, Capital Quality Homes Ltd. v. Colwyn Construction Ltd. (1975), 9 O.R. (2d) 617 (C.A.), Bang v. Sebastian, 2018 ONSC 6226, Gerstel v. Kelman, 2015 ONSC 978

    facts:

    The respondents listed their home for sale and the appellant made one of the thirteen offers to purchase the home. The appellant's offer was the second highest and was accepted by the vendor. After the unconditional offer was accepted but before closing, the Ontario government made a policy announcement. Within days of this announcement, real estate prices in the area dropped 20-30 per cent.

    On the day of closing, the appellant advised that she could not close, as she had been unable to sell her own home and could not obtain sufficient mortgage financing. Because of this, the respondent put the property back on the market and it sold for $619,112 less. The respondent commenced legal proceedings against the appellant, and the appellant was ordered to pay $619,112 and carrying costs of $4,621.05.

    issues:

    (1) Did the motion judge err by failing to find frustration of the agreement? (2) Did the motion judge err by failing to find that there was an implied condition in the offer? (3) Did the motion judge err by rejecting uncontested evidence?

    holding:

    Appeal dismissed.

    reasoning:

    (1) No. While there was a supervening event (the policy announcement), this did not constitute frustration of the agreement, as the announcement was not such that "performance of the contract becomes a 'thing radically different from that which...