Court Of Appeal Summaries (February 3 – February 7, 2020)

Good afternoon.

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

In Thistle v Schumilias, an insurer refused to pay out on a life insurance policy on the basis that the insured had failed to disclose a pre-existing medical condition. The respondent commenced an action against the insurance company and during that litigation became aware of the potential professional negligence of the insurance agent who sold the policy.

The appellant brought a summary judgment motion to dismiss the action on the basis that any right to assert a claim against him arose when the respondent was an undischarged bankrupt, and therefore, the cause of action vested with his trustee in bankruptcy. The respondent brought a cross-motion seeking an order nunc pro tunc granting him standing to bring the action in his own name, notwithstanding his assignment in bankruptcy and subsequent discharge. The motion judge relied on section 187(9) of the Bankruptcy and Insolvency Act("BIA") to validate the claim and regularize the proceedings. The motion judge also found that the expiry of the limitation period was not an absolute bar to an order nunc pro tunc, and that the court could still exercise its discretion.

The Court set aside the motion judge's decision, confirming that in circumstances where a motion is brought after the expiry of a limitation period, a nunc pro tunc order cannot be made for the simple reason that such an order is of no practical effect. It would only serve to backdate the order to the date the motion was brought, which was already beyond the expiry of the limitation period. In addition, the Court held that even if the respondent was successful in obtaining a nunc pro tunc order, the cause of action arose during the respondent's bankruptcy, constituted property of the bankrupt under section 2 and section 67(1)(c) of the BIA, and thus vested in the trustee in bankruptcy.

Other topics covered this week included occupiers' liability, Anti-SLAPP, a Hague Convention child abduction application, net family property, enforcement of foreign judgments, vexatious litigants and extensions of time.

Please join me and Lea Nebel at our "Top Appeals of 2019" CLE dinner program to take place at the OBA on Thursday, February 27, 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 the President of the Advocates' Society, 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 Matthew Lerner, 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

Labourers' International Union of North America, Local 183 v. Castellano, 2020 ONCA 71

Keywords: Torts, Defamation, Anti-SLAPP, Trespass, Courts of Justice Act, R.S.O. 1990, c. C. 43 s. 137.1, Trespass to Property Act, R.S.O. 1990, c. T.21, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, Montour v. Beacon Publishing Inc., 2019 ONCA 246, St. Lewis v. Rancourt, 2015 ONCA 513, Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, Rainy River (Town) v. Olsen, 2017 ONCA 605

Youssef v. Misselbrook, 2020 ONCA 83

Keywords: Torts, Occupiers' Liability, Negligence, Contributory Negligence

Kraemer v. Kraemer, 2020 ONCA 91

Keywords: Family Law, Net Family Property, Gifts

Farsi v. Da Rocha, 2020 ONCA 92

Keywords: Family Law, Custody and Access, Child Abduction, Habitual Residence, Convention on the Civil Aspects of International Child Abduction, Can. T. S. 1983 No. 35 (Hague Convention), Office of the Children's Lawyer v. Balev, 2018 SCC 16, H.L. v. Canada (Attorney General), 2005 SCC 25, Salomon v. Matte‑Thompson, 2019 SCC 14

Thistle v. Schumilas, 2020 ONCA 88

Keywords: Torts, Professional Negligence, Insurance Brokers, Life Insurance, Bankruptcy and Insolvency, Property of Bankrupt, Choses in Action, Civil Procedure, Limitation Periods, Orders, Nunc Pro Tunc, Bankruptcy and Insolvency Act, RSC, 1985, c B-3, s2, s41(11), s67(1)(c), s187(9), Canadian Imperial Bank of Commerce v Green, 2015 SCC 60

Activa Trading Co. Ltd. v. Birchland Plywood-Veneer Limited, 2020 ONCA 93

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Fresh Evidence, Rules of Civil Procedure, Rule 2.1, Palmer v. The Queen, [1980] 1 S.C.R. 759

Dupuis v. Waterloo (City), 2020 ONCA 96

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

Sleep Number Corporation v. Maher Sign Products Inc., 2020 ONCA 93

Keywords: Contracts, Sale of Goods, Civil Procedure, Conflict of Laws, Foreign Judgments, Enforcement, Jurisdiction, Real and Substantial Connection, Forum Selection Clause, Summary Judgment, 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA 354, Old North State Brewing Company Inc. v. Newlands Services Inc. (1998), 58 B.C.L.R. (3d) 144, Hollinger International v. Hollinger Inc., 2005 CanLII 4582 (Ont. Div. Ct.)

Short Civil Decisions

Temedio v. Niagara North Condominium Corporation No. 6, 2020 ONCA 81

Keywords: Real Property, Condominiums, Civil Procedure, Costs

Criminal Decisions

United States v. Okorhi, 2020 ONCA 89

Keywords: Criminal Law, Fraud, Extradition

R. v. D.K. (Publication Ban), 2020 ONCA 79

Keywords: Criminal Law, Evidence, Sexual Assault Causing Bodily Harm, Sexual Assault, Evidence, Credibility, Prior Inconsistent Statement, Sentencing, Pre-Sentence Custody, Criminal Code, ss. 271, 272(1)(c), 276, 278, Canada Evidence Act, R.S.C. 1985, c. C-5, s. 11, R. v. Graham, 2019 ONCA 347, R. v. Khan, 2017 ONCA 114, R. v. Stirling, 2008 SCC 10, R. v. Dinardo, 2008 SCC 24, R. v. Divitaris(2004), 188 C.C.C. (3d) 390 (Ont. C.A.), R. v. D.C., 2019 ONCA 442, R. v. S.K., 2019 ONCA 776, R. v. Fair(1993), 16 O.R. (3d) 1 (C.A.), R. v. M.C., 2014 ONCA 611, R. v. J.A.T., 2012 ONCA 177, R. v. L.S., 2017 ONCA 685, R. v. Goldfinch, 2019 SCC 38, R. v. Darrach, 2000 SCC 46, R. v. Riley(1992), 11 O.R. (3d) 151 (C.A.), R. v. C.F., 2017 ONCA 480, R. v. M.T., 2012 ONCA 511, R. v. Strojny, 2019 ONCA 329, R. v. A.C., 2018 ONCA 333

R. v. N., 2020 ONCA 85

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Sentencing, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2), Canadian Charter of Rights and Freedoms, ss. 8, 9, R. v. Lacasse, 2015 SCC 64

R. v. I., 2020 ONCA 90

Keywords: Criminal Law, Sentencing, R. v. Lifchus, [1997] 3 S.C.R. 320

R. v. V.L., 2020 ONCA 87

Keywords: Criminal Law, Sexual Assault, Sentencing, R. v. Lacasse, [2015] 3 S.C.R. 1089

Ontario Review Board Decisions

M. (Re), 2020 ONCA 80

Keywords: Ontario Review Board, Not Criminally Responsible, Detention Order, Conditional Discharge, Mental Health Act, R.S.O. 1990, c. M.7

CIVIL DECISIONS

Labourers' International Union of North America, 2020 ONCA 71

[Rouleau, Roberts and Harvison Young JJ.A.]

Counsel:

Andrew Ostrom, for the appellant

Andrew Faith and Brookelyn Kirkham, for the respondents

Keywords: Torts, Defamation, Anti-SLAPP, Trespass, Courts of Justice Act, R.S.O. 1990, c. C. 43 s. 137.1, Trespass to Property Act, R.S.O. 1990, c. T.21, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, Montour v. Beacon Publishing Inc., 2019 ONCA 246, St. Lewis v. Rancourt, 2015 ONCA 513, Cambie Surgeries Corp. v. British Columbia (Medical Services Commission), 2010 BCCA 396, 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, Rainy River (Town) v. Olsen, 2017 ONCA 605

facts:

The respondents brought a defamation action against the appellant, a former member of the respondent union, Local 183, based on internet posts that the appellant had made. The motion judge granted the respondents' motion for summary judgment and granted them injunctive relief.

The appellant argued on appeal that the motion judge erred in her application of the weighing test to be carried out on the s. 137.1 Anti-SLAPP motion in that: first, any evidence of harm to the respondents was insufficient to outweigh the public interest in the appellant's free expression; second, she understated the public interest value of the expressive content of the appellant's posts. Furthermore, he argued that the injunctive relief was overly broad.

issues:

Did the motion judge err:

(1) in her dismissal of the appellant's s. 137.1 motion?

(2) in the injunctive relief she granted?

holding:

Appeal allowed in part.

reasoning:

(1) No. The motion judge correctly articulated and applied the test set out in 1704604 Ontario Ltd. v. Pointes Protection Association. There was no identifiable legal error, nor was there a palpable and overriding factual error. The court did not see any error in her balancing of the competing interests that would permit appellate intervention. She properly considered the issue of the reputational damage to the respondents. It was not necessary for her to find monetary damages because "a serious libel does not always manifest itself in financial losses": Montour v. Beacon Publishing Inc.

Similarly, the motion judge carefully considered the public interest in the expressive content of the appellant's posts. Her conclusion that the harm suffered by the respondents outweighed the public interest in protecting the...

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