Court Of Appeal Summaries (March 2 – March 6, 2020)

Good afternoon.

Please find below our summaries of this past week's civil decisions of the Court of Appeal for Ontario. Topics covered included insurance broker negligence, zoning (use) bylaw enforcement, the wrongful termination of a commercial lease and the automatic right of appeal of bankruptcy orders. Please join me and Lea Nebel at our "Top Appeals of 2019" CLE dinner program to take place at the OBA on Wednesday, April 15, 2020. 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. Wishing everyone an enjoyable weekend.

Table of Contents

Civil Decisions

Cooper v The Landry Lounge, Inc. , 2020 ONCA 166

Keywords: Contracts, Real Property, Commercial Leases, Damages, Set-Off, Commercial Tenancies Act, RSO, 1990, c L-7, s 35

2049390 Ontario Inc. v. Leung , 2020 ONCA 164

Keywords: Torts, Negligent Misrepresentation, Professional Negligence, Insurance Brokers, Duty of Care, Standard of Care, Civil Procedure, Reasonable Apprehension of Bias, Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191, Fine's Flowers Ltd. et al. v. General Accident Assurance Co. of Canada et al. (1978), 17 O.R. (2d) 529 (C.A.), Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25

Royal Bank of Canada v. Bodanis , 2020 ONCA 185

Keywords: Bankruptcy and Insolvency, Bankruptcy Orders, Civil Procedure, Appeals, Stay Pending Appeal, Lifting of Stay, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193, 195, Ravelston Corp (Re) (2005), 24 C.B.R. (5th) 256 (ONCA), First National Financial GP Corp. v. Golden Dragon HO 10 Inc., 2019 ONCA 873

Whitchurch-Stouffville (Town) v. Bolender , 2020 ONCA 172

Keywords: Municipal Law, Zoning By-Laws Permitted Uses, Legal Non-Conforming Use, Burlington (City) v. Burlington Airpark Inc., 2017 ONCA 420, 138 O.R. (3d) 309, Saint-Romuald (City) v. Olivier, 2001 SCC 57

Short Civil Decisions

911 Priority Corporation v. Murray, 2020 ONCA 171

Keywords: Contracts, Real Property, Commercial Leases, Wrongful Termination, Damages

Das Logistics Transport Inc. v. Artex Environmental Corporation , 2020 ONCA 168

Keywords: Punitive Damages

Greenberg v. Nowack, 2020 ONCA 167

Keywords: Civil Procedure, Contempt

Kivell v. Chatham-Kent Children's Services , 2020 ONCA 180

Keywords: Torts, Negligent Investigation

Criminal Decisions

R. v. E.-B., 2020 ONCA 160

Keywords: Criminal Law, Sexual Assault, Sentencing, R. v. W.(D.) [1991] 1 S.C.R. 742, R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), R. v. Jorgge, 2013 ONCA 485

R. v. J.P., 2020 ONCA 162

Keywords: Criminal Law, Sexual Assault, Assault with a Weapon, Uttering Threats, Unlawful Confinement

R. v. M., 2020 ONCA 163

Keywords: Criminal Law, Drug Trafficking, Sentencing, Criminal Code, s. 742.1(c), Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(3)(a), R. v. Lacasse, 2015 SCC 64, R. v. Wong, 2012 ONCA 767, R. v. Nasogaluak, 2010 SCC 6, R. v. Ghadban, 2015 ONCA 760

R. v. J.H., 2020 ONCA 165

Keywords: Criminal Law, Sexual Assault, Evidence, Admissibility, Prior Bad Conduct, Jury Instructions, Criminal Code, ss. 625.1(2), 645(5), Canada Evidence Act, R.S.C. 1985, c. C-5 s. 4(6), R. v. Calnen, 2019 SCC 6, R. v. Robertson, [1987] 1 S.C.R. 918, R. v. F., D.S. (1999), 43 O.R. (3d) 609 (C.A.), R. v. B. (G.), [1990] 2 S.C.R. 57, R. v. Evans, 2019 ONCA 715, R. v. Park, [1981] 2 S.C.R. 64, R. v. D.A.R., 2012 NSCA 31, R. v. Chiasson, 2009 ONCA 789, Boucher v. The Queen, [1955] S.C.R. 16, R. v. Mallory, 2007 ONCA 46, R. v. Stirling, 2008 SCC 10, R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), R. v. M.B., 2011 ONCA 76

R. v. B., 2020 ONCA 170

Keywords: Criminal Law, Importing Drugs, R. v. Villaroman, 2016 SCC 33

R. v. A.G., 2020 ONCA 183

Keywords: Criminal Law, Assault, Sentencing

Ontario Review Board Decisions

Ahmadzai (Re), 2020 ONCA 169

Keywords: Criminal Law, Not Criminally Responsible, Robbery, Assault with a Weapon, Possession of a Weapon, Criminal Code, ss. 672.54(a), 672.54(b), (c), 672.78(1)(a) &(2), 672.78(3)(b), Mental Health Act, R.S.O. 1990, c. M.7, Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, Kassa (Re), 2019 ONCA 313, R. v. Lamanna, 2009 ONCA 612, Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, Valdez (Re), 2018 ONCA 657

CIVIL DECISIONS

Cooper v The Landry Lounge, Inc., 2020 ONCA 166

[Lauwers, Houriga, and Thorburn JJA]

Counsel:

AF on his own behalf and on behalf of The Landry Lounge Inc. K Chator and C Steven, for the respondents

Keywords: Contracts, Real Property, Commercial Leases, Damages, Set-Off, Commercial Tenancies Act, RSO, 1990, c L-7, s 35

facts:

This appeal arises from a successful application brought by the respondents for an order terminating two commercial leases for non-payment of rent, an order requiring vacant possession of the premises, an order granting leave for the Registrar to issue a writ of possession, and orders requiring payment of arrears of rent and damages for lost future rent. The leases in issue are for two properties on adjoining premises. One property was used as a laundromat, and another was used for a dry-cleaning business. The laundromat lease was executed in 2003 and the dry-cleaning lease was executed in 2010.

In December 2017, the heat failed in the laundromat and subsequently, a frozen pipe burst, causing water damage. The respondents offered to reimburse all expenses related to the loss of heat and further agreed to a rent abatement for both leases for January 2018.

The appellants did not provide any receipts for expenses to the respondents. Instead, starting in February 2018, the appellants stopped paying rent. In March 2018, the appellants brought an action, advancing several claims, including breach of contract, misrepresentation, and loss of income. The appellants did not serve their statement of claim. The respondents commenced their application in August 2018.

In October and November 2018, the respondents took steps to terminate the leases, but the bailiff's efforts to take possession were unsuccessful. In December 2018, the appellants paid $35,000, and in January 2019, started paying $7,000 per month, about half of what was owing under the leases.

The application judge ruled that the respondents were entitled to the relief sought and that the appellants had not established a right of set-off pursuant to s 35 of the Commercial Tenancies Act. At the hearing of the appeals, the appellants advised that they have vacated the premises. Therefore, the relief they sought was limited to setting aside the orders with respect to rental arrears, lost future rent damages, pre-judgment interest, and costs.

issues:

(1) Did the application judge err in finding that an application was the correct originating process? (2) Did the application judge err in allowing the appellants to exercise their self-help remedies under the Commercial Tenancies Act? (3) Did the application judge err in finding in awarding damages for lost rent for the balance of the lease term? (4) Was the application judge biased?

holding:

Appeal dismissed.

reasoning:

(1) No. An application was the appropriate procedure, given the straightforward factual and legal issues in play. The fact that...