Court Of Appeal Summaries (March 23 – March 27, 2020)

Good evening.

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

In 2352392 Ontario Inc. v. Msi, the Court held that a statement of claim constituted sufficient notice of rescission under ss 6(3) of the Arthur Wishart Act (Franchise Disclosure), 2000. The Court stated that the purpose of notice under the Act is to avoid litigation, not to act as a pre-condition to litigation.

In Beniuk v. Leamington (Municipality), the plaintiffs alleged that heavy trucks using the road adjacent to their property caused vibrations that damaged their home. They unsuccessfully pursued a claim of injurious affection before the OMB, which was dismissed for want of jurisdiction. By the time that proceeding had been completed, more than two years had passed. They then sued the municipality, which successfully moved to have the claim dismissed as being statute-barred. The Court largely, but not completely, upheld the motion judge's conclusions. The Court agreed with the motion judge that the Real Property Limitations Act ("RPLA") does not apply to an action against a municipality in nuisance or negligence for damage relating to real property. Such an action is not one "to recover land" within the meaning of the RPLA. The Court also agreed that any claim for damages suffered more than two years before the claim was issued was statute-barred under the Limitations Act, 2002. The fact that the plaintiffs had pursued a remedy at the OMB did not satisfy the "appropriate means" test so as to suspend the running of the limitation period while the OMB matter remained outstanding. However, the Court partially set aside the motion judge's order to revive any portion of the claim for ongoing damage to the plaintiffs' home that fell inside the two-year limitation period (since trucks continued to use the road and there was evidence of ongoing damage). . The Court also disagreed with the motion judge by leaving open the possibility that s. 44 of the Municipal Act creates a duty of care on the part of a municipality to keep roads in good repair owed not only to users of the road, but to adjacent landowners as well (the motion judge had found there was no duty to adjacent landowners).

In 3113736 Canada Ltd. v. Cozy Corner Bedding Inc., the respondent settled a class action against it for price fixing. The release forming part of the settlement released claims against the respondent, but also provided that certain claims against the respondent could potentially be revived if the appellant became insolvent, in the context of an insolvency proceeding. The day after the class action settlement, the respondent went under CCAA protection. The respondent sued on invoices for product sold owing to it by the appellant. The appellant, which was a class member bound by the terms of the class action settlement, raised the defence of equitable set-off in respect of over-payments it had allegedly made as a result of the price fixing in order to avoid or reduce any amount owing under the outstanding invoices. By way of summary judgment, the motion judge dismissed the set-off defence as having been released under the class action settlement, and granted the respondent judgment on the outstanding invoices. In allowing the appeal, the Court disagreed with the motion judge and determined that the defence of set-off was available. The matter was remitted to the lower court for a determination of the set-off defence on the merits.

On another note, please join me and Lea Nebel at our "Top Appeals of 2019" CLE program scheduled to take place at the OBA on Wednesday, April 15, 2020, commencing at 5:45 pm. 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 ensure that the program can proceed.

Finally, for anyone looking for timely and useful information regarding the ongoing crisis, please visit our firm's COVID-19 Resource Centre. In addition please see the following links to a variety of COVID-19 resources offered by some key legal and governmental institutions:

Ontario Ministry of the Attorney General Law Society of Ontario Ontario Bar Association Toronto Lawyers Association Ontario Superior Court of Justice Ontario Court of Justice Court of Appeal for Ontario Supreme Court of Canada Landlord & Tenant Board Social Justice Tribunals Ontario Licence Appeal Tribunal Local Planning Appeal Tribunal Government of Canada Canada Revenue Agency Employment and Social Development Canada Government of Ontario City of Toronto Toronto District School Board World Health Organization John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

TABLE OF CONTENTS

Civil Decisions

3113736 Canada Ltd. v. Cozy Corner Bedding Inc., 2020 ONCA 235

Keywords: Contracts, Interpretation, Debtor-Creditor, Bankruptcy and Insolvency, Defences, Equitable Set-Off, Civil Procedure, Class Proceedings, Settlements, Enforceability, Companies' Creditors Arrangement Act, R.S.C., 1985, c. C-36, Competition Act, R.S.C., 1985, c. C-34, s. 45(1)(a), (c), Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 29(3), Currie v. McDonald's Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321 (C.A.), Ventas Inc. v. Sunrise Senior Living Real Estate Trust, 2007 ONCA 205, Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, Telford v. Holt, [1987] 2 S.C.R. 193

Beniuk v. Leamington (Municipality), 2020 ONCA 238

Keywords: Torts, Real Property, Negligence, Nuisance, Municipal Liability, Duty of Care, Injurious Affection, Civil Procedure, Limitation Periods, Discoverability, "Appropriate Means", Rolling Causes of Action, Ongoing Damages, Summary Judgment, Limitations Act, 2002, S.O. 2002, C. 24, Sched. B, ss. 4, 5, Real Property Limitations Act, R.S.O. 1990, c. L.15 , s. 4, Harvey v. Talon International Inc., 2017 ONCA 267, Fennell v. Deol, 2016 ONCA 249, 407 ETR Concession Co. v. Day, 2016 ONCA 709, Municipal Act, 2002, S.O. 2001, C. 25, s. 44, Dick v. Vaughan (Township) (1917), 39 O.L.R. 187 (C.A.), Strang v. Township of Arran (1913), 28 O.L.R. 106 (C.A.), Cummings v. Dundas (Town) (1907), 13 O.L.R. 384 (Div. Ct.), leave to appeal refused: 1907 CarswellOnt 627 (C.A.)

2352392 Ontario Inc. v. Msi, 2020 ONCA 237

Keywords: Franchise Law, Contracts, Franchise Agreements, Rescission, Notice, Arthur Wishart Act, (Franchise Disclosure), 2000, S.O. 2000...