Court Of Appeal Summaries (December 9 – December 13, 2019)

Good afternoon.

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

In Trezzi v Trezzi the court confirmed that a testator can bequeath not only his or her assets owned in their personal name, but also those they own indirectly through a corporation of which they are the sole shareholder. The effect of the Will in this case stripped the corporation of all of its assets, and effectively represented the intention on the part of the testator to wind-up the corporation. His estate trustees had the power to do that under ss 193(1) of the Ontarion Business Corporations Act.

Other topics covered this week included several family law decisions, Anti-SLAPP, two reasonable apprehension of bias decisions (one in the custody and access context), stays in favour of arbitration and the exclusive jurisdiction of the Labour Board in matters covered by a collective agreement.

As many of our readers may know, my partner, Lea Nebel and I have been chairing the last few years a CLE at the OBA of "Top Appeals" from the Court of Appeal over the past year. The program will be a dinner program to take place at the OBA on Thursday, February 27, 2020, so please mark your calendars! Two of the cases we will be featuring this year are Darmar Farms v Sygenta, which deals with the potential new tort of "premature commercialization" and pure economic loss in product liability context, and The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. We have not yet decided whether to feature a third decision. If any of our readers have any suggestions, please let me or Lea know.

Have a nice weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

Eggiman v. Martin , 2019 ONCA 974

Keywords: Contracts, Franchise Agreements, Arbitration Clauses, Appeals, Jurisdiction, Arbitration Act, 1991, S.O. 1991, c. 17 s. 7(1), (2) and (5), Brown v. Murphy, (2002), 59 OR (3d) 404 (C.A.)

Health Genetic Centre Corp. (Health Genetic Center) v. New Scientist Magazine , 2019 ONCA 977

Keywords: Torts, Defamation, Procedural and Natural Justice, Reasonable Apprehension of Bias, Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60, 129 O.R. (3d) 37, R. v. Curragh Inc., [1997] 1 S.C.R. 537, Eckervogt v. British Columbia, 2004 BCCA 398

Hutton v. The Manufacturers Life Insurance Company (Manulife Financial) , 2019 ONCA 975

Keywords: Labour Law, Jurisdiction, Collective Agreements, Arbitration, Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 48(1), Canadian Labour Arbitration, 3rd ed., Rules of Civil Procedure, rr. 20.01, 21.01(3)(a), Barber v. Manufacturer's Life Insurance Company (Manulife Financial), 2017 ONCA 164, 136 O.R. (3d) 198, leave to appeal refused, [2017] S.C.C.A. No. 150, London Life Insurance Co. v. Dubreuil Brothers Employees Assn. (2000), 49 O.R. (3d) 766, leave to appeal refused, [2000] S.C.C.A. No. 496, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929

Raymond J. Pilon Enterprises Ltd. v. Village Media Inc. , 2019 ONCA 981

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(3), 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, New Dermamed Inc. v. Sulaiman, 2019 ONCA 141, Grant v. Torstar Corp., 2009 SCC 61

Leeds Standard Condominium Corporation No. 41 v. Fuller , 2019 ONCA 987

Keywords: Contracts, Arbitration Agreements, Jurisdiction, Real Property, Condominiums, Oppression Remedy, Condominium Act, 1998, S.O. 1998, c. 19, Arbitration Act, 1991, S.O. 1991, c. 17., Haas v Gunasekaram, 2016 ONCA 744, 62 B.L.R. (5th) 1

Mullings v. Robertson , 2019 ONCA 979

Keywords: Family Law, Spousal Support, Child Support, Property Division

Richardson v. Richardson , 2019 ONCA 983

Keywords: Family Law, Custody and Access, Procedural and Natural Justice, Reasonable Apprehension of Bias, Civil Procedure, Settlements, Approval, Canadian Charter of Rights and Freedoms, s. 7, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Family Law Rules, O. Reg. 114/99, r. 2(5)(c), Martin v. Martin, 1981 CarswellBC 773 (C.A.), C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, Harper v. Harper (1991), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), F.J.V. v. W.K.S., 2019 BCCA 67, McKitty v. Hayani, 2019 ONCA 805, Family Law Rules, r. 17(24), Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, Van de Perre v. Edwards, 2001 SCC 60, Perron v. Perron, 2012 ONCA 811

Savage v. Savage , 2019 ONCA 984

Keywords: Family Law, Spousal Support, Variation, Material Change in Circumstances

Traders General Insurance Company v. Gibson , 2019 ONCA 985

Keywords: Torts, Occupier's Liability, Contracts, Insurance, Home Insurance, Interpretation, Coverage, Exclusions, Wawanesa Mutual Insurance Co. v. Hewson, 2003 SKQB 116, Wright v. Canadian Group Underwriters Insurance Co., 2002 BCCA 254, Allstate Insurance Co. of Canada v. Aftab, 2015 ONCA 349

Trezzi v. Trezzi , 2019 ONCA 978

Keywords: Wills and Estates, Wills, Interpretation, Bequests, Surviving Spousal Election, Extension of Time, Corporations, Winding Up, Family Law Act, RSO 1990, C F3, s 2(8), s 5(2), s 6(1), s 6(10), Business Corporations Act, RSO 1990, c B16, s 193(1), s 141(1), Re Burke, [1960] OR 26 (CA), Katz v Nimelman, 2009 ONCA 445

Short Civil Decisions

Curtis v. Pinto , 2019 ONCA 982

Keywords: Civil Procedure, Striking Pleadings, Abuse of Process, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (CA)

Criminal Decisions

R. v. N., 2019 ONCA 966

Keywords: Criminal Law, Uttering Death Threatens, Criminal Harassment, Intimidation, Obstruction of Justice, Evidence, Admissibility, Cross-Count Prior Discreditable Conduct, Sentencing, Criminal Code, s. 683(1)(g), 742.1(a), R v. Tsigirlash, 2019 ONCA 650, R v. T.C., 2019 ONCA 898

R. v. B., 2019 ONCA 970

Keywords: Criminal Law, Evidence, Admissibility, Search Warrants, DNA Evidence, Charter, s. 8, 24(2), R. v. Morelli, 2010 SCC 8, R. v. Araujo, 2000 SCC 65, R. v. Grant, 2009 SCC 32

R. v. R., 2019 ONCA 971

Keywords: Criminal Law, First Degree Murder, Second Degree Murder, Jury Instructions, Criminal Code, s. 686(1)(b)(iii), R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074

R. v. C.W. (Publication Ban), 2019 ONCA 976

Keywords:Criminal Law, Domestic Abuse, Sentencing, Criminal Code, s. 753(1)(a)(i), 753(4.1)

R. v. C., 2019 ONCA 972

Keywords: Criminal Law, Child Luring, Sentencing, Mandatory Minimum Sentence, Constitutional Law, Criminal Code, s. 172.1(2)(a), 212(4), 737, Canadian Charter of Rights and Freedoms, s. 12, 11(b), R. v. Morrison, 2019 SCC 15, R. v. Morin, [1992] 1 S.C.R. 771, R. v. Jordan, 2016 SCC 27, R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Nur, 2015 SCC 15

E. v. Canada (Attorney General), 2019 ONCA 980

Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Evidence, Hearsay, Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, Re Conway, 2016 ONCA 918, Re Ranieri, 2015 ONCA 444

Ontario Review Board Decisions

C.(Re), 2019 ONCA 973

Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Evidence, Hearsay, Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, Re Conway, 2016 ONCA 918, Re Ranieri, 2015 ONCA 444

CIVIL DECISIONS

Eggiman v. Martin, 2019 ONCA 974

[Simmons, Pardu and Nordheimer JJ.A.]

Counsel:

Andy Seretis, for the appellants Todd D. Storms and Zach Flemming-Giannotti, for the respondents

Keywords: Contracts, Franchise Agreements, Arbitration Clauses, Appeals, Jurisdiction, Arbitration Act, 1991, S.O. 1991, c. 17 s. 7(1), (2) and (5), Brown v. Murphy, (2002), 59 OR (3d) 404 (C.A.)

facts:

Appellants and respondents are parties to an arbitration provision that is part of the contractual arrangements by which the appellants operate two "Tim Hortons" franchises on behalf of the respondents. The respondents purported to terminate the Operating Agreements after becoming aware of certain conduct of the appellant. The respondents then commenced an action against the appellants and the other defendant in which they sought damages for breach of contract, intentional interference with economic relations, and conversion. In response, the appellants brought their motion to stay the action in favour of the arbitration process. The motion judge dismissed their motion.

issues:

(1) Did the motion judge err in his decision to dismiss the motion on the basis that s. 7(1) of the Arbitration Act, 1991 requires that the action be stayed and that none of the exceptions to that mandatory stay in s. 7(2) apply?

(2) Did the motion judge err in finding that s. 7(5) of the Arbitration Act, 1991 permitted him to refuse to grant a stay on the ground that it would lead to a multiplicity of proceedings?

holding:

Appeal dismissed.

reasoning:

(1) and (2). No analysis completed on motion judge's reasons. It was found that there was no appeal to the court from the order of the motion judge. Section 7(6) of the Arbitration Act, 1991 precludes any appeal from the decision rendered respecting the motion to stay, whether the order grants or refused the stay. The court clarified that this dismissal was not seen as the Court agreeing with the analysis of the motion judge.

Health Genetic Centre Corp. (Health Genetic Center) v. New Scientist Magazine, 2019 ONCA 977

[Juriansz, Pepall and Miller JJ.A.]

Counsel:

Gil Zvulony, for the appellants Sandra Barton and Erin Farrell, for the respondents

Keywords: Torts, Defamation, Procedural and Natural Justice, Reasonable Apprehension of Bias, Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60, 129 O.R. (3d) 37, R. v. Curragh Inc., [1997] 1 S.C.R. 537, Eckervogt v. British Columbia, 2004 BCCA 398

facts:

Since 2001, Dr. M has been selling a "non-invasive" prenatal paternity test...