Court Of Appeal Summaries (March 9 – March 13, 2020)

Good afternoon.

Following are our summaries of the Court of Appeal's civil decisions released last week. There were several high profile decisions released.

In Brazeau v. Canada (Attorney General), Perrell J awarded $20 million in damages for the systemic cruel practice of solitary confinement in Canada's prisons. However, instead of ordering that money to be paid to class members who had suffered as a result of the practice (following an individual claims process), he ordered the money to be used by the government to reform the penal system. The Court of Appeal found that the motion judge had no jurisdiction to make such an order, and that the damages had to be paid to the class members who proved their individual claims. Since the damages were determined on wrong principles, the issue of the amount of damages was remitted back to the motion judge for re-assessment.

In JB v Ontario (Child & Youth Services), a class action relating to the Motherisk scandal (where children were taken away from their parents by Children's Aid Societies on the basis of faulty drug testing), the Court of Appeal confirmed that where government agencies exist to protect children, to avoid conflicting duties, they must only owe a duty of care to the children they serve and not to their parents as well. In addition, the Court held that the Province of Ontario does not owe a private law duty of care to child-plaintiffs to ensure child welfare agencies obtain reliable evidence. The class action on behalf of the parents whose children were taken away from them as a result of the Motherisk scandal was therefore dismissed as disclosing no cause of action. In the same proceeding, the Court released a separate decision dismissing a motion to have Benotto J recuse herself from the hearing of the appeal because she had previously heard an appeal involving the same plaintiff. There was no reasonable apprehension of bias.

In Urbancorp Cumberland 2 GP Inc. (Re), the Court applied The Guarantee Company of North America v Royal Bank of Canada, 2019 ONCA 9 in determining that the proceeds of sale of condominium units following the bankruptcy and subsequent CCAA protection of Urbancorp were trust proceeds under s 9(1) of the Construction Lien Act, and were therefore available to satisfy the claims of unpaid subcontractors that had supplied work and materials to improve the units. The Court distinguished its prior decision in Re Veltri Metal Products Co. (2005), 48 C.L.R. (3d) 161 (Ont. C.A.), which suggested a different outcome, on the facts.

Other topics covered last week included the interpretation of construction warranties, breach of a consulting contract for failure to complete a business survey, the enforceability of release provisions of a separation agreement after the parties reconciled and then subsequently separated again years later, whether there was an intention to enter into a binding settlement and the enforcement and variation of a final order for support.

By now, everyone will have heard about the announcements made by the Court of Appeal, the Superior Court, and the Ontario Court of Justice, effectively adjourning all scheduled matters and providing for the handling of only urgent matters for the time being. Our public institutions are about to be tested perhaps as never before. As officers of the court, it is our job to help the judiciary and MAG navigate this situation in a calm, cooperative and orderly fashion, while at the same time continuing to serve our clients, and ensuring that the Rule of Law remains paramount at all times. Our profession is made up of some of the brightest, most thoughtful and compassionate people within society, so I am sure that we will all be able to rise to the challenge together to get through this successfully.

Wishing everyone the best of health.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

TABLE OF CONTENTS

Civil Decisions

A.A. v. Z.G. , 2020 ONCA 192

Keywords: Family Law, functus officio, Family Law Rules, Rule 15, Spousal Support, Bankruptcy

Miaskowski v. MacIntyre , 2020 ONCA 178

Keywords: Family Law, Contracts, Interpretation, Enforceability, Separation Agreements, Reconciliation, Releases, Equalization of Net Family Property, Pensions, Family Law Act, RSO.1990, c F3, s 4, Sydor v Sydor (2003), 178 OAC 155 (CA)

Rubner v. Rubner , 2020 ONCA 195

Keywords: Contracts, Enforceability, Civil Procedure, Settlements, Agency, Solicitors, Ostensible Authority, Dick v. McKinnon, 2014 ONCA 784, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

J.B. v. Ontario (Child and Youth Services) , 2020 ONCA 198

Keywords: Family Law, Child Protection, Motherisk, Torts, Negligence, Breach of Fiduciary Duty, Bad Faith, Rules of Civil Procedure, Rule 21, Child and Family Services Act, RSO 1990, c C 11, s 1(1), Laboratory and Specimen Collection Centre Licensing Act, RSO 1990, c L1, Public Hospitals Act, RSO 1990, c P40, Constitution Act, 1982, s 35(1), Canadian Charter of Rights and Freedoms, s 7, Syl Apps Secure Treatment Centre v BD, 2007 SCC 38, Anns v Merton London Borough Council, [1978] AC 728, [1977] 2 WLR 1024 (UK HL), Cooper v. Hobart, 2001 SCC 79, R v Imperial Tobacco Canada Ltd, 2011 SCC 42

J.B. v. Ontario (Child and Youth Services), , 2020 ONCA 199

Keywords: Family Law, Child Protection, Civil Procedure, Reasonable Apprehension of Bias, Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, R. v. S. (R.D.), [1997] 3 S.C.R. 484, Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, Miracle v. Miracle, 2017 ONCA 195, R. v. J.L.A., 2009 ABCA 344

Urbancorp Cumberland 2 GP Inc. (Re) , 2020 ONCA 197

Keywords: Bankruptcy and Insolvency, Priorities, Construction Law, Construction Trust, Constitutional Law, Division of Powers, Doctrine of Paramountcy, Construction Lien Act, R.S.O. 1990, c. C.30, ss. 7(2), 7(3), 8(1), and 9(1), Bankruptcy and Insolvency Act, R.S.C. 1985, c. B3, s. 67(1), Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 36(1), Re Veltri Metal Products Co. (2005), 48 C.L.R. (3d) 161 (Ont. C.A.), The Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9

RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP , 2020 ONCA 182

Keywords: Contracts, Breach, Damages, Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13, Meridian Credit Union Ltd. v. Baig, 2016 ONCA 942, Mujagic v. Kamps, 2015 ONCA 360, Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, Place Concorde East Ltd. Partnership v. Shelter Corp. of Canada Ltd. (2006), 270 D.L.R. (4th) 181 (Ont. C.A.), S.M. Waddams, The Law of Damages, 5th ed., James Page: 20 Edelman, McGregor on Damages, 20th ed., Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

2099082 Ontario Limited v. Varcon Construction Corporation , 2020 ONCA 202

Keywords: Contracts, Interpretation, Warranties, Construction, Civil Procedure, Appeals, Final or Interlocutory, Summary Judgment, Rules of Civil Procedure, Rules 20.04(2), 62.02(4), Courts of Justice Act, s. 6(2), Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), Azzeh v. Legendre, 2017 ONCA 385, Hryniak v. Mauldin, 2014 SCC 7, All-Terrain Track Sales and Services Ltd. v. 798839, 2020 ONCA 129

Brazeau v. Canada (Attorney General), , 2020 ONCA 184

Keywords: Torts, Systemic Negligence, Solitary Confinement, Causation, Constitutional Law, Cruel and Unusual Punishment, Right to Life, Liberty and Security of the Person, Charter Damages, Civil Procedure, Class Proceedings, Summary Judgment, Limitation Periods, Canadian Charter of Rights and Freedoms, ss. 7, 12, 24(1), Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 31-37, Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, 1st Sess., 42nd Parl., 2019, Rules of Civil Procedure, Rule 20.04(2.1), Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 34, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 24-26, Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228, Hryniak v. Mauldin, 2014 SCC 7, Doig v. Canada (Minister of National Revenue), 2011 FC 371, Vancouver (City) v. Ward, 2010 SCC 27, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13, Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347, Wynberg v. Ontario (2006), 82 O.R. (3d) 561 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 441, Sagharian v. Ontario (Education), 2008 ONCA 411, 172 C.R.R. (2d) 105, leave to appeal refused, [2008] S.C.C.A. No. 350, Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667, Sansregret v. The Queen, [1985] 1 S.C.R. 570, Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921, Good v. Toronto (Police Services Board), 2016 ONCA 250, leave to appeal refused, [2016] S.C.C.A. No. 255, MacLean v. The Queen, [1973] S.C.R. 2, Cooper v. Hobart, 2001 SCC 79, Edwards v. Law Society of Upper Canada, 2001 SCC 80, Eliopoulos (Litigation Trustee) v. Ontario (Minister of Health and Long-Term Care) (2006), 82 O.R. (3d) 321 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 514

Short Civil Decisions

Moazzani v. Roudechi-Ghias , 2020 ONCA 193

Keywords: Contracts, Real Property, Mortgages, Enforceability, Redemption

Weisleder v. Ontario Secondary School Teachers' Federation , 2020 ONCA 181

Keywords: Torts, Defamation, Defences, Qualified Privilege, Civil Procedure, Summary Judgment, Viva Voce Evidence, Baglow v. Smith, 2012 ONCA 407, McDonald v. Freedman, 2013 ONSC 6812

Caplan v. N.A. , 2020 ONCA 205

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time

Criminal Decisions

R. v. D. , 2020 ONCA 179

Keywords: Criminal Law, Breach of Trust, Fraud, R. v. Boulanger, 2006 SCC 32, R. v...