Court Of Appeal Summaries (March 30 – April 3, 2020)

Good afternoon.

Please find below our summaries of this past week's civil decisions of the Court of Appeal for Ontario.

In Carleton Condominium Corporation No. 476 v. Wong, the Court issued its first decision regarding COVID-19. The appellant requested an adjournment of the appeal to the Fall, given that in-person hearings are no longer taking place. Justice Paciocco denied the request for the adjournment. He was of the view that the backlog of appeals that will inevitably be created should not be aggravated by adjourning matters that can be fairly adjudicated in writing.

Markham (City) v AIG Insurance Company of Canada is an insurance coverage dispute between AIG and Lloyd's, dealing with the duty to defend, duty to contribute and right to control a defence where there is concurrent insurance coverage by more than one policy. The dispute related to a personal injury claim that arose during a minor hockey game in which a spectator was struck by a puck. Congratulations to former Blaneys lawyers, Marcus Snowden, and Sebastien Kamayah, on the successful result.

Peerenboom v Peerenboom is a family law dispute involving the determination of net family property and an equalization calculation in the context of a mortgage against the matrimonial home in favour of a parent of one of the spouses.

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. 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.

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 Wishing everyone continued health.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

TABLE OF CONTENTS

Civil Decisions

Peerenboom v, Peerenboom, 2020 ONCA 240

Keywords: Family Law, Net Family Property, Debts, Equalization, Matrimonial Home, Domestic Contracts, Interpretation, Civil Procedure, Default Judgments, Writs of Seizure and Sale, Stay of Enforcement, Striking Pleadings, Orders, Non-Compliance, Family Law Act, RSO 1990, c F3, ss 21, 23, Courts of Justice Act, RSO 1990, c C43, s 106, Maroukis v Maroukis, [1984] 2 SCR 137, Buttarazzi v Buttarazzi (2009), 84 RFL (6th) 240 (Ont SC), Chiaramonte v Chiaramonte, 2013 ONCA 641

Markham (City) v AIG Insurance Company of Canada, 2020 ONCA 239

Keywords: Contracts, Insurance, Coverage, Primary Insurance, Excess Insurance, Duty to Defend, Carriage of Defence, Defence Costs, Family Insurance Corp. v. Lombard Canada Ltd., 2002 SCC 48, Van Huizen v. Trisura Guarantee Insurance Company, 2020 ONCA 222, Hanis v. Teevan, 2008 ONCA 678, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Trenton Cold Storage v. St. Paul Fire & Marine (2001), 199 D.L.R. (4th) 654 (Ont. C.A.), Saanich (District) v. Aviva Insurance Company of Canada, 2011 BCCA 391, State Farm Fire and Casualty Co. v. Royal Insurance of Canada (1998), 115 O.A.C. 388 (C.A.), Carneiro v. Durham (Regional Municipality), 2015 ONCA 909, Unger (Litigation guardian of v. Unger (2004), 68 O.R. (3d) 257 (C.A.), Broadhurst & Ball v. American Home Assurance Co. (1991), 1 O.R. (3d) 225 (C.A.), Aquatech Logistics et al. v. Lombard Insurance et al., 2015 ONSC 5858, General Accident Assurance Co. of Canada v. Ontario Provincial Police Commissioner (1988), 64 O.R. (2d) 321 (H.C.), Brockton (Municipality) v. Frank Cowan Co. (2002), 57 O.R. (3d) 447 (C.A.)

Carleton Condominium Corporation No. 476 v. Wong , 2020 ONCA 244

Keywords: Civil Procedure, Appeals, Adjournments, COVID-19

Criminal Decisions

R. v. B., 2020 ONCA 241

Keywords: Criminal Law, Evidence, Expert Opinion, Admissibility, Jury Charge, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Abbey, 2017 ONCA 640, R. v. J.-L.J., 2000 SCC 51, R. v. Biddersingh, 2015 ONSC 6063, Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008), R. v. Huard, 2013 ONCA 650, leave to appeal refused, [2014] S.C.C.A. No. 13, R. v. Nette, 2001 SCC 78, R. v. Manasseri, 2016 ONCA 703, leave to appeal refused, [2016] S.C.C.A. No. 513, R. v. Fontaine, 2004 SCC 27

R. v. K. (Publication Ban), 2020 ONCA 242

Keywords: Criminal Law, Evidence, Identity, Criminal Code s. 715.1, R. v. Nikolovski, [1996] 3 S.C.R. 1197

R. v. H., 2020 ONCA 243

Keywords: Criminal Law, Evidence, Admissibility, Hearsay, Spontaneous Utterance, Res Gestae, Expert Evidence, Fresh Evidence Kienapple Principle, Ineffective Assistance of Counsel, Delay, Gladue Report, Sentencing, Canadian Charter of Rights and Freedoms, ss. 10(b), 11(b), Criminal Code, s. 718.2(a), White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Palmer, [1980] 1 S.C.R. 759, R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, R. v. Khan (1988), 27 O.A.C. 142, R. v. Nicholas (2004), 70 O.R. (3d) 1 (Ont. C.A.), R. v. Dakin (1995), 80 O.A.C. 253, R. v. Prebtani, 2008 ONCA 735, 243 O.A.C. 207, R. v. Cherrington, 2018 ONCA 653, R. v. Girn, 2019 ONCA 202, R. v. G.B.D., 2000 SCC 22, R. v. Charley, 2019 ONCA 726, R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Rahey, [1987] 1 S.C.R. 588, R. v. MacDougall, [1998] 3 S.C.R. 45, R. v. Cooper (No.2) (1977), 35 C.C.C. (2d) 35 (Ont. C.A.), R. v. Bosley (1992), 59 O.A.C. 161

CIVIL DECISIONS

Peerenboom v. Peerenboom, 2020 ONCA 240

[Tulloch, van Rensburg, and Zarnett JJ.A.]

Counsel:

S. Zucker, for the appellant HP

N.J. Tourgis and L. Paddock, for the appellant RP

D.Z. Frodis, for the respondent

Keywords: Family Law, Net Family Property, Debts, Equalization, Matrimonial Home, Domestic Contracts, Interpretation, Civil Procedure, Default Judgments, Writs of Seizure and Sale, Stay of Enforcement, Striking Pleadings, Orders, Non-Compliance, Family Law Act, RSO 1990, c F3, ss 21, 23, Courts of Justice Act, RSO 1990, c C43, s 106, Maroukis v Maroukis, [1984] 2 SCR 137, Buttarazzi v Buttarazzi (2009), 84 RFL (6th) 240 (Ont SC), Chiaramonte v Chiaramonte, 2013 ONCA 641

facts:

RP and NP married in 2002 and separated in 2013. In October...

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