Court Of Appeal Summaries (February 17 – February 21, 2020)

Good afternoon.

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

The outcome in Austin v. Bell Canada, a class proceeding, hinged on the placement of a comma in the Bell Canada pension plan. The issue was whether Bell was entitled to round the CPI used to calculate annual cost of living increases to the nearest two decimal points. The appropriate contractual method of rounding had a $10 million impact in only one year, and a $100 million impact over the long-term. Bell succeeded on a motion for summary judgment in having the class action dismissed. However, the Court of Appeal not only set aside the dismissal, but granted summary judgment against Bell in favour of the class.

Other topics covered this week included contractual interpretation in the joint venture context, mortgage enforcement, the enforceability of an equipment lease whose onerous terms were not brought to the attention of the contracting party, the stay of a vesting order pending appeal, the (almost) jury nullification as a result of an overly inquisitive jury foreman who conducted his own legal research on the MVA fault determination rules under the Insurance Act (the rules were inapplicable to the determination of fault), and adjournments in the Anti-SLAPP context (the 60-day requirement is not a hard cap on time within which to hear the motion).

Wishing everyone an enjoyable weekend.

Table of Contents

Civil Decisions

All-Terrain Track Sales and Services Ltd. v. 798839 Ontario Limited, 2020 ONCA 129

Keywords: Contracts, Interpretation, Real Property, Mining Rights, Joint Venture Agreements, 798839 Ontario Ltd. v. Platt, 2016 ONCA 488, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Richcraft Homes Ltd. v. Urbandale Corporation, 2016 ONCA 622

The Energy Credit Union Limited v. Radwan, 2020 ONCA 136

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Summary Judgment

M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134

Keywords: Contracts, Real Property, Specific Performance, Civil Procedure, Appeals, Stay Pending Appeal, Rules of Civil Procedure, Rule 63.01, City Commercial Realty (Canada) Ltd v. Backich, [2005] O.J. No. 6443 (CA), RJR-MacDonald Inc v. Canada (Attorney General), [1994] 1 S.C.R. 311

Amorosi v. Barker, 2020 ONCA 144

Keywords: Civil Procedure, Anti-SLAPP, Motions, Adjournments, Cross-Examination, Courts of Justice Act, s 137.1(4)(b), 137(2)

MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139

Keywords: Contracts, Equipment Leases, Enforceability, Termination Clauses, Onerous Provisions, Tilden Rent-A-Car Co. v. Clendenning (1976), 18 O.R. (2d) 601 (C.A.)

Patterson v. Peladeau, 2020 ONCA 137

Keywords: Torts, MVA, Civil Procedure, Jury Trials, Mistrials, Jury Nullification, Extrinsic Evidence, Jury Charges, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 170(12), Fault Determination Rules, R.R.O. 1990, Reg. 668, R. v. Pannu, 2015 ONCA 677

Austin v. Bell Canada , 2020 ONCA 142

Keywords: Contracts, Interpretation, Contra Proferentem, Pension Plans, Class Proceedings, Summary Judgment, Class Proceedings Act, 1992, S.O. 1992, c. 6, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Housen v. Nikolaisen, 2002 SCC 33, Dinney v. Great-West Life Assurance Co., 2009 MBCA 29, Waxman v. Waxman (2004), 186 O.A.C. 201, Scanlon v. Castlepoint Development Corp. (1992), O.R. (3d) 744

Criminal Decisions

R. v. L., 2020 ONCA 128

Keywords: Criminal Law, Firearm Offences, Possession of a Prohibited Device, Drug Offences, Possession of Marijuana, Possession of Cocaine for the Purpose of Trafficking, Possession of Proceeds of Crime, Actus Reus, Mens Rea, Evidence, Expert Evidence, Admissibility, Sentencing, Criminal Code, ss. 4(3), 4(3)(a)(ii), 4(3)(b), 21(1)(b)-(c), 21(2), 84(1), 92(1), 92(2), 95(1), 655, 686(1)(a)(i), Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/98-462, R. v. R.P., 2012 SCC 22, R. v. Yebes, [1987] 2 S.C.R. 168, R. v. Biniaris, 2000 SCC 15, R. v. Burns, [1994] 1 S.C.R. 656, R. v. Sinclair, 2011 SCC 40, Corbett v. The Queen, [1975] 2 S.C.R. 275, R. v. Wu, 2017 ONCA 620, R. v. Beaudry, 2007 SCC 5, R. v. Villaroman, 2016 SCC 33, R. v. Smith, 2016 ONCA 25, R. v. Morin, [1988] 2 S.C.R. 345, Côté v. The King (1941), 77 C.C.C. 75 (S.C.C.), R. v. Bagshaw, [1972] S.C.R. 2, R. v. Mohan, [1994] 2 S.C.R. 9, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Sekhon, 2014 SCC 15, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. J.-L.J., 2000 SCC 51, R. v. Potts, 2018 ONCA 294, R. v. Morelli, 2010 SCC 8, R. v. Beaver, [1957] S.C.R. 531, R. v. Watson, 2011 ONCA 437, R. v. Lincoln, 2012 ONCA 542, United States of America v. Dynar, [1997] 2 S.C.R. 462, R. v. Williams, 2003 SCC 41, R. v. Briscoe, 2010 SCC 13, Sansregret v. The Queen, [1985] 1 S.C.R. 570, R. v. Eastgaard, 2011 ABCA 152, aff'd 2012 SCC 11, R. v. Hunter, 2016 BCCA 94, Re Chambers and the Queen (1985) 20 C.C.C. (3d) (Ont CA), R. v. Pham (2005) 203 C.C.C. (3d) 326 (Ont CA), R. v. Boudreault, 2018 SCC 58

R. v. G.W. (Publication Ban), 2020 ONCA 130

Keywords: Publication Ban, Criminal Law, Sexual Assault, Sexual Interference, Invitation to Sexual Touching

R. v. J.J. (Publication Ban), 2020 ONCA 138

Keywords: Publication Ban, Criminal Law, Sexual Assault, Evidence, Admissibility, Prior Inconsistent Statements

R. v. K.V. (Publication Ban), 2020 ONCA 131

Keywords: Publication Ban, Criminal Law, Sexual Offences, Minors, Appeals, Perfection, Extension of Time, Criminal Code, s 276, Rules of Professional Conduct of the Law Society of Ontario

R. v. R., 2020 ONCA 132

Keywords: Criminal Law, Conspiracy to Kidnap, Conspiracy to Commit Sexual Assault, Conspiracy to Commit Murder, Evidence, Corroboration, Witnesses, Credibility, Reliability

R. v. S., 2020 ONCA 133

Keywords: Criminal Law, Domestic Violence, Assault Causing Bodily Harm, Sentencing, Propensity Evidence

R. v. M. (Publication Ban), 2020 ONCA 141

Keywords: Publication Ban, Criminal Law, Sexual Assault, Administering a Noxious Substance, Bail Pending Appeal, Jury Selection, Peremptory Challenges, Bill C-75, Criminal Code, ss. 679(3), 686, R. v. Chouhan, 2020 ONCA 40, R. v. Oland, 2017 SCC 17, R. v. Iraheta, 2018 ONCA 229, R. v. Fainacci (1993), 86 C.C.C. (3d) 32 (CA), R. v. Esseghaier and Jaser, 2019 ONCA 672

R. v. J.-E. M.-C. (Publication Ban), 2020 ONCA 140

Keywords: Publication Ban, Criminal Law, Sexual Assault, Evidence, Prior Statements, Youth Criminal Justice Act, S.C. 2002, c. 1

Ontario Review Board Decisions

H. (Re), 2020 ONCA 143

Keywords: Ontario Review Board, Criminal Law, Uttering Death Threats, Not Criminally Responsible

CIVIL DECISIONS

All-Terrain Track Sales and Services Ltd. v. 798839 Ontario Limited, 2020 ONCA 129

[Pepall, Pardu and Paciocco JJ.A.]

Counsel:

Donald Rollo and Marc Chaput, for appellants Steve Gearing, for the respondent

Keywords: Contracts, Interpretation, Real Property, Mining Rights, Joint Venture Agreements, 798839 Ontario Ltd. v. Platt, 2016 ONCA 488, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Richcraft Homes Ltd. v. Urbandale Corporation, 2016 ONCA 622

facts:

The appellants are judgment creditors of 798839 Ontario Limited ("39"). The appellants sued the respondent, asserting that 39 had successfully exercised an option contained in a joint venture agreement with the respondent to acquire an interest in the Pardee Mining Development. The appellants hoped to obtain part of a revenue stream originating from that development, in satisfaction of the judgment against 39. The summary judgment motion judge concluded that 39 had not satisfied the contractual prerequisites necessary to acquire an interest in the mining development.

issues:

(1) Did the motion judge err by failing to have regard to the factual matrix surrounding the formation of the contract?

(2) Did the motion judge err in her interpretation of the contract?

holding:

Appeal dismissed.

reasoning:

(1) No. The motion judge accepted the parties' agreement as to the amounts 39 advanced to JBC and the amounts expended on the Pardee claims, mirrored in the other litigation's findings. However, the appellants argued that the motion judge somehow failed to have sufficient regard to other findings made in that litigation. The Court did not agree. The respondent was only peripherally involved in the other litigation and was not a party to the four contracts interpreted in that litigation. The Pardee joint venture agreement with 39 was not interpreted in that litigation. There was no indication that the contracts in the other litigation formed part of a composite whole with the Pardee joint venture agreement. As pointed out by Blair J.A. in the appeal from the other litigation, the appeal was confined to the issue of ownership of the Kipling claims, a matter in which the respondent had no interest.

The Court iterated that the starting point for contractual interpretation is the language of the agreement. Further, the factual matrix should "consist only of objective evidence of the background facts at the time of the execution of the contract, that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting". The Court was not persuaded that any other aspect of the factual matrix as expressed in the other litigation should have been considered by the motion judge but was not.

(2) No. The Court affirmed that the key issue to determine in contractual interpretation is the "intent of the parties and the scope of their...