Court Of Appeal Summaries (January 6 – January 10, 2020)


There were several substantive decisions released this week by the Court of Appeal. Topics covered included challenging decisions of a voluntary religious association, solicitor liens, limitation periods in the LTD context, enforcement of foreign judgments, adverse possession, and an application for reconsideration of an appeal relating to the assessment of legal accounts in the condominium law context.

Lea Nebel and I will be chairing a CLE at the OBA entitled "Top Appeals of 2019". The program will be a dinner program to take place at the OBA on Thursday, February 27, 2020, so please mark your calendars! Three decisions will be featured. The first is Darmar Farms v Sygenta, which deals with the potential new tort of "premature commercialization" and pure economic loss in product liability context. The second is The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. The third is Wright v Urbanek, which deals with the scope of the doctrines of abuse of process and collateral attack.

Until next week.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

Thompson v Casey , 2020 ONCA 5

Keywords: Contracts, Debts, Assignments, Corporations, Oppression, Civil Procedure, Applications, Orders, Trial of an Issue, Rules of Civil Procedure, Courts of Justice Act, RSO 1990, c C43, s138, Rules 1.04(1.1), 38.10(1)

Bosnali v Michaud , 2020 ONCA 7

Keywords: Contracts, Solicitor and Client, Solicitors Liens, Priority, Set-Off, Solicitors Act, RSO 1990 c S15, s 34, Rules of Practice, RRO 1980, Reg 540, Martin v McColl (1957), 10 DLR (2d) 284 (Ont CA), Durall Construction Ltd. v HJ O'Connell Ltd. (1977), 16 OR (2d) 713 (HC), Guergis v Hamilton, 2016 ONSC 4428, Bell v Wright (1985), 24 SCR 656, Diamond v Western Realty Co. (1925), 28 OWN 120 (CA), Poulin v Pettitt (1992), 10 CPC (3d) 29 (Ont CJ (Gen Div))

Aga v Ethiopian Orthodox Tewahedo Church of Canada , 2020 ONCA 10

Keywords: Corporations, Non-Share Capital Corporations, Voluntary Associations, Contracts, Summary Judgment, Corporations Act, RSO 1990, c C38, Canadian Charter of Rights and Freedoms, s2(a), Courts of Justice Act, RSO 1990, c C43, s134(1)(a), Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall, 2018 SCC 26, Ahenakew et al. v MacKay et al. (2004), 71 O.R. (3d) 130 (CA)

Clarke v Sun Life Assurance Company of Canada , 2020 ONCA 11

Keywords: Contracts, Insurance, Long-Term Disability, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, "Appropriate Means", Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s 5, Pepper v Sanmina-Sci Systems (Canada) Inc., 2017 ONCA 730, Western Life Assurance Company v Penttila, 2019 ONSC 14

HMB Holdings Limited v Antigua and Barbuda, 2020 ONCA 12

Keywords: Civil Procedure, Conflict of Laws, Foreign Judgments, Enforcement, Jurisdiction, Statutory Interpretation, Enforcement of Judgments Act, RSO 1990, c R5, ss 3(b) and (e), Chevron Corp. v Yaiguaji, 2015 SCC 42, Club Resorts Ltd. v Van Breda, 2012 SCC 17

McKay v Vautour, 2020 ONCA 16

Keywords: Real Property, Adverse Possession, Land Titles Act, RSO 1990, c L5, s 51, Pepper v Brooker, 2017 ONCA 532, Barbour v Bailey, 2016 ONCA 98

Temedio v Niagara North Condominium Corporation No. 6, 2020 ONCA 17

Keywords: Real Property, Condominiums, Contracts, Solicitor and Client, Legal Fees, Assessments, Special Circumstances, Condominium Act, 1998, SO 1998, c 19, s 134

Short Civil Decisions

Khan v Krylov & Company, 2020 ONCA 13

Keywords: Civil Procedure, Summary Judgment

Conroy v Vassel, 2020 ONCA 14

Keywords: Family Law, Self-Representation, Costs

Criminal Decisions

R v Mc, 2020 ONCA 2 (Publication Ban)

Keywords: Criminal Law, Child Pornography, Canadian Charter of Rights and Freedoms, s 7, 10(b), and 24(2), R v Grant, 2009 SCC 32

R v W, 2020 ONCA 3 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Kidnapping, Uttering Death Threats, Lord Coke's Principle

R v M, 2020 ONCA 6

Keywords: Criminal Law, Second Degree Murder, Borowski v Canada (Attorney General), [1989] 1 SCR 342

R v E, 2020 ONCA 8

Keywords: Criminal Law, Drug Offences

R v M, 2020 ONCA 9

Keywords: Criminal Law, Firearms Offences, Possession of Property Obtained by Crime, Drug Offences, Canadian Charter of Rights and Freedoms, s 7, 8, 10(b), and 24(2), R v Grant, 2009 SCC 32

R v J, ONCA 2020 15 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, R v TC, (2004), 72 OR (3d) 623

Ontario Review Board Decisions

G (Re), 2020 ONCA 4

Keywords: Ontario Review Board, Not Criminally Responsible, Assault, Forcible Confinement, Interveners, Victim Impact Statement, Criminal Code, s 722


Thompson v Casey, 2020 ONCA 5

[Brown, Huscroft, and Trotter JJA]


C Salazar, for the appellant

KJ Ralston, for the respondent MEC

Keywords: Contracts, Debts, Assignments, Corporations, Oppression, Civil Procedure, Applications, Orders, Trial of an Issue, Rules of Civil Procedure, Courts of Justice Act, RSO 1990, c C43, s138, Rules 1.04(1.1), 38.10(1)


1007937 Ontario Inc. (the "Corporation") was sold by RO to JM who, in partial payment, executed a promissory note for $130,000 in favour of the Corporation which immediately assigned the note to its accountant BT (the appellant) who had lent money to RO but not the Corporation. The Corporation's bank and secured creditor refused to provide a comfort letter to the Corporation to enable the sale, yet RO proceeded to sell the business to JM anyway. When the bank discovered this, it called its loan and gave notice of its intention to realize on its security. RO's common-law spouse, the respondent MEC, had guaranteed the Corporation's debt. She paid the bank and received an assignment of the bank's security over the assets of the Corporation. MEC proceeded to sue the Corporation seeking indemnity for the amount she paid to the bank. MEC also sued RO and JM seeking payment under the security agreement assigned to her by the bank and damages against RO for oppressive conduct. BT sued MEC, RO, the Corporation, and JM seeking various forms of relief because JM had stopped making payments on the note to BT and both proceedings commenced by MEC had not yet gone to trial. BT brought an application to recover under the promissory note, which was dismissed on a without-prejudice basis.


(1) Did the trial judge err in concluding that in order to determine the claim of priority asserted by BT to the proceeds of JM's promissory note, BT first had to demonstrate the validity of the assignment of the note from the Corporation?

(2) Did the trial judge err in disposing of the application?


Appeal allowed in part.


(1) No. The application judge explained why, on the evidence and submissions, she was not able to determine the issue of the validity of the assignment of the promissory note on the application. She indicated to the parties that she was available to further consider the issue and dismissed the application on a without-prejudice basis to allow BT to bring further proceedings to prove the validity of the assignment. It was far from clear that MEC was out of time to challenge BT's claim to priority to the proceeds from the promissory note.

(2) Yes. While an application judge has broad discretion under r. 38.10(1) of the Rules of Civil Procedure in deciding how to dispose of an application, the application judge erred in principle in making the specific disposition that she did. She identified an issue that required further consideration on the merits but dismissed the application on a without-prejudice basis, thereby deferring the determination of that issue to a new proceeding, of which she seized herself. By proceeding this way, the application judge's disposition ran counter to: (i) the principle expressed by s. 138 of the Courts of Justice Act to avoid, as far as possible, the multiplicity of proceedings; and (ii) the related principle found in r. 1.04(1.1) that the court shall make orders that are proportionate to the importance and complexity of the issues. The application judge should have directed the trial of an issue, or of the whole application, pursuant to r. 38.10(1)(b) and remained seized of the matter.


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