Court Of Appeal Summaries (March 16 – March 20, 2020)

Good afternoon.

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

Congratulations to Blaneys' own David Greenwood and Christopher McClelland on successfully responding to an appeal in in Montrose Hammond & Co. v. CIBC World Markets Inc. This was a contract interpretation case involving an exclusion of liability clause that was found not to apply as a bar to recovery of damages for breach of contract by our client.

Other topics covered this week included the duty to defend under an E&O policy, the enforcement of mortgages between family members, sentencing for securities law offences (whether promissory notes are securities under the Securities Act), jurisdiction and forum non-conveniens in a foreign MVA matter that also involved other alleged wrongs, personal injury, child protection, security for costs on appeal and provincial offences.

Please join me and Lea Nebel at our "Top Appeals of 2019" CLE program to take place at the OBA on Wednesday, April 15, 2020, commencing at 5:45pm. In light of COVID-19, the program will be only available via webcast. If you are interested, please register as soon as possible so that we can get our registrations up to where they need to be make the program viable.

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. Our panelists for that decision are Mike Peerless, who represents the plaintiff, and Scott Maidment, who has a depth of experience litigating product liability cases. The second is The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. Counsel who acted on that case, Miranda Spence and Scott Rollwagen, will be joining us. The third decision is Wright v Urbanek, which deals with the scope of the doctrines of abuse of process and collateral attack. John O'Sullivan, who acts for the appellant in seeking leave to the Supreme Court, will be speaking about this decision.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

TABLE OF CONTENTS

Civil Decisions

Children's Aid Society of Toronto v. S.A.P., 2020 ONCA 208 (Publication Ban)

Keywords: Family Law, Child Protection, Expert Evidence, Child and Family Services Act, RSO 1990, c C11, s 37(2)

Ontario Securities Commission v. Tiffin, 2020 ONCA 217

Keywords: Securities, Definition of Security, Promissory Notes, Family Resemblance Test, Offences, Sentencing, Custodial Sentences, Securities Act, RSO 1990, c S5, ss. 1(1), 122(1)(c), Reves v Ernst & Young (1990), 494 US 56, Duplain v Cameron et al, [1961] SCR 693, Ontario (Environment, Conservation and Parks) v. Henry of Pelham Inc., 2018 ONCA 999, R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, Ontario (Labour) v. New Mex Canada Inc., 2019 ONCA 30, R. v. Lacasse, 2015 SCC 64

Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224

Keywords: Torts, Negligence, MVA, Breach of Contract, Breach of Fiduciary Duty, Negligent Misrepresentation, Private International Law, Conflict of Laws, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Ontario (Attorney General) v. Rothmans Inc., 2013 ONCA 353

Brown v. Canada (Attorney General), 2020 ONCA 223

Keywords: Real Property, Environmental Law, Provincial Offences, Jurisdiction, Provincial Offences Act, R.S.O. 1990, c. P.33, Conservation Authorities Act, R.S.O. 1990, c. C.27

Georgina (Town) v Blanchard, 2020 ONCA 232

Keywords: Aboriginal Law, Land Claims, Civil Procedure, Appeals, Extension of Time, Security for Costs, Consolidation, Representation by Lawyer

Manos v. Riotrin Properties (Flamborough) Inc., 2020 ONCA 211

Keywords: Torts, Negligence, Causation, Damages, Non-Pecuniary Loss, Civil Procedure, Experts, Dovbush v. Mouzitchka, 2016 ONCA 381

Montrose Hammond & Co. v. CIBC World Markets Inc., 2020 ONCA 219

Keywords: Contracts, Interpretation, Exclusion Clauses, Agency, Sattva Capital Corp. v. Creston Moly Corp, 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2106 SCC 37, Tercon Contractors Ltd. v. British Columbia, 2010 SCC 4

Van Huizen v. Trisura Guarantee Insurance Company, 2020 ONCA 222

Keywords: Contracts, Interpretation, Standard of Review, Insurance, Coverage, Duty to Defend, Torts, Professional Negligence, Appraisers, Civil Procedure, Summary Judgment, McCunn Estate v. Canadian Imperial Bank of Commerce (2001), 53 O.R. (3d) 304 (C.A.), Progressive Homes Ltd. v. Lombard General Insurance Co., 2010 SCC 33, [2010] 2 S.C.R. 245, Coast Capital Equipment Finance Ltd. v. Old Republic Insurance Company of Canada, 2018 ONCA 540, 81 C.C.L.I. (5th) 220, Re Lawton, [1945] 4 D.L.R. 8 (Man. C.A.), Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49

Hobson v. Hobson, 2020 ONCA 234

Keywords: Contracts, Real Property, Mortgages, Enforceability, Property, Purchase Money Resulting Trusts, Gifts, Civil Procedure, Procedural Fairness

Short Civil Decisions

Thistle v. Schumilas, 2020 ONCA 212

Keywords: Costs Endorsement

Welsh v. Ontario, 2020 ONCA 210

Keywords: Civil Procedure, Class Proceedings, Settlements, Class Proceedings Fund, Law Society Act, R.S.O. 1990, c. L.8, O. Reg. 771/92, s. 10(3)

Abdullahi v. Children's Aid Society of Toronto, 2020 ONCA 225

Keywords: Torts, Libel, Civil Procedure, Libel Notice, Limitation Periods, Striking Pleadings, No Reasonable Cause of Action, Libel and Slander Act, R.S.O. 1990, c. L. 12

Rubner v. Bistricer, 2020 ONCA 226

Keywords: Civil Procedure, Summary Judgment, Litigation Guardians, Costs

Criminal Decisions

R. v. B., 2020 ONCA 206 (Publication Ban)

Keywords: Criminal Law, Dangerous Driving Causing Bodily Harm, Criminal Code, s. 249.4, 249(1), R. v. Roy, 2012 SCC 26

R. v. H. M. R. S., 2020 ONCA 209 (Publication Ban)

Keywords: Criminal Law, Aggravated Sexual Assault, Ineffective Assistance of Counsel, Sentencing, Gladue Factors, Criminal Code, s. 273(1), R. v. Lacasse, 2015 SCC 64

R. v. K., 2020 ONCA 213

Keywords: Criminal Law, Robbery, Evidence, Admissibility, Prosper Warning, R. v. Fountain, 2017 ONCA 596

R. v. L., 2020 ONCA 203 (Appeal Book Endorsement)

Keywords: Criminal Law, Abandoned Appeal

R. v. W., 2020 ONCA 207 (Publication Ban)

Keywords: Criminal Law, Sexual Interference, Child Luring, Making Child Pornography, Dangerous Offenders, Sentencing, Criminal Code, ss. 752, 753(1)(a)(i), R. v. Steele, 2014 SCC 61, R. v. Stuckless, (1998) 41 O.R. (3d) 103 (ONCA)

R. v. Y., 2020 ONCA 215 (Publication Ban)

Keywords: Criminal Law, Administering a Noxious Substance, Invitation to Sexual Touching, Sentencing

R. v. C., 2020 ONCA 221 (Publication Ban)

Keywords: Criminal Law, First-Degree Murder, Motion for Directed Verdict, Jury Charge, Evidence, Admissibility, Post-Offence Conduct, Vetrovec Warning, Pathology Evidence, Victim Character Evidence, Criminal Code, s. 686(1)(b)(i), 686(3), R. v. Robinson, 2017 ONCA 645, R. v. Khela, 2009 SCC 4, R. v. Woodcock, 2015 ONCA 535

R. v. S., 2020 ONCA 201

Keywords: Criminal Law, Domestic Violence, Sentencing, Bail Pending Appeal, Criminal Code, s. 679(3)(c), R. v. Girn, 2019 ONCA 202, R. v. Wong, 2018 SCC 25

R. v. B., 2020 ONCA 218

Keywords: Criminal Law, First Degree Murder, Jury Instructions, R. v. Corbett, [1988] 1 S.C.R. 670, R. v. Newton, 2017 ONCA 496, R. v. Villaroman, 2016 SCC 33

R. v. P., 2020 ONCA 220

Keywords: Criminal Law, Aggravated Assault, Unlawful Confinement, Stay of Proceedings, Delay, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan, 2016 SCC 27

R. v. A.S., 2020 ONCA 229 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Evidence, Corroboration, R. v. Lohrer, 2004 SCC 80, R. v. Sheppard, 2002 SCC 26

R. v. J.C.J., 2020 ONCA 228 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Incest, Ineffective Assistance of Counsel, Sentencing, Criminal Code, s. 155(2), 161

R. v. R.M., 2020 ONCA 231 (Publication Ban)

Keywords: Criminal Law, Gang Sexual Assault, Sexual Assault with a Weapon, Uttering Threats, Robbery, Sentencing, Coke Principle, Youth Criminal Justice Act, S.C. 2002, s. 72(1), R. v. Adan, 2019 ONCA 709, R. v. M.W., 2017 ONCA 22, R. v. Wilson, 2020 ONCA 3, R. v. Kinnear (2005), 199 O.A.C. 323 (ONCA)

Romania v. Boros, 2020 ONCA 216

Keywords: Criminal Law, Extradition, Extradition Act, s. 15, 29(1)(a), 44(1)(a), 57(6), Lake v. Canada (Minister of Justice), 2008 SCC 23, Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65

Ontario Review Board Decisions

A. (Re), 2020 ONCA 214

Keywords: Ontario Review Board, Not Criminally Responsible, Uttering Threats, Resisting Arrest, Detention Order

CIVIL DECISIONS

Children's Aid Society of Toronto v. S.A.P., 2020 ONCA 208 (Publication Ban)

[Rouleau, Hourigan and Robert JJA]

Counsel:

M Feigenbaum, for the appellant

K Atkinson, for the respondent Children's Aid Society of Toronto

A Sudano and R Shawyer, for the respondent MI

J Long, for the respondent Office of the Children's Lawyer

Keywords: Family Law, Child Protection, Expert Evidence, Child and Family Services Act, RSO 1990, c C11, s 37(2)

facts:

The appellant's two sons, JPF and JI, were apprehended and eventually ordered into the care of MI, the stepfather of JPF and the father of JI. The Children's Aid Society of Toronto (the "CAS") proposed that the children be placed with MI permanently while the appellant sought to regain custody under the supervision of the CAS. After trial in the Ontario Court of Justice, the judge ordered that the children remain with MI. The appellant's appeal to the Superior Court of Justice was dismissed.

issues:

(1) Did the trial judge err in concluding that there was a risk of emotional harm if the children moved homes in the absence of any expert evidence as to the existence of such a...