Court Of Appeal Summaries (April 6 – 10, 2020)

There was only one substantive civil decision released by the Court of Appeal this week – 1842752 Ontario Inc. v Fortress Wismer 3-2001 Ltd. It will be of interest to our colleagues who practice real estate and do lending work. The Court confirmed that a sheriff cannot execute against land when the execution debtor is a beneficial owner, but not the legal owner of the land. In addition, the court determined that a mortgage lender that makes an advance under a charge that was registered before a writ of execution maintains priority over the execution creditor even if the advance was made after the registration of, and with knowledge of, the writ of execution. Apparently, subsequent execution creditors are not treated on the same footing as subsequent mortgagees. The latter do obtain priority over advances made by prior mortgagees with notice of a subsequently registered charge under subsection 93(4) of the Land Titles Act, but that subsection does not apply to execution creditors.

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.

Wishing everyone celebrating a Happy Easter long weekend and Happy Pesach.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

1842752 Ontario Inc. v. Fortress Wismer 3-2011 Ltd., 2020 ONCA 250

Keywords: Real Property, Mortgages, Priority, Civil Procedure, Judgments, Enforcement, Writ of Seizure and Sale, Creditors' Relief Act, 2010, S.O. 2010, s. 14, Execution Act, R.S.O. 1990, c. E.24 s. 9(1), 10, 13, Land Titles Act, R.S.O. 1990, c. L.5 s. 62(1) & (2), 72(1), 93(4), Yaiguaje v. Chevron Corporation, 2018 ONCA 472, Michaud v. Coreslab Structures (Ont.) Inc., 2012 ONSC 355, Sherlick v. Harley (1932), 41 O.W.N. 85, Ferrier v. Civiero, 1999 CarswellOnt 4197Real Property, Mortgages, Priority, Civil Procedure, Judgments, Enforcement, Writ of Seizure and Sale, Creditors' Relief Act, 2010, S.O. 2010, s. 14, Execution Act, R.S.O. 1990, c. E.24 s. 9(1), 10, 13, Land Titles Act, R.S.O. 1990, c. L.5 s. 62(1) & (2), 72(1), 93(4), Yaiguaje v. Chevron Corporation, 2018 ONCA 472, Michaud v. Coreslab Structures (Ont.) Inc., 2012 ONSC 355, Sherlick v. Harley (1932), 41 O.W.N. 85, Ferrier v. Civiero, 1999 CarswellOnt 4197

Short Civil Decisions

Thistle v. Schumilas, 2020 ONCA 248

Keywords: Civil Procedure, Costs, Summary Judgment, Delay

Criminal Decisions

R. v. A., 2020 ONCA 246

Keywords: Criminal Law, Publication Ban, Possession of Child Pornography, Making Child Pornography, Sexual Assault, Voyeurism, Obstruction, Unlawful Detention, Right to Counsel, Unreasonable Search and Seizure, Right to Privacy, Bail, Canadian Charter of Rights and Freedoms, ss. 8, 24(2), R. v. Morelli, 2010 SCC 8, R. v. Grant, 2009 SCC 32, R. v. Paterson, 2017 SCC 15, R. v. Silveira, [1995] 2 S.C.R. 297, R. v. Vu, 2013 SCC 60, R. v. Poirier, 2016 ONCA 582, R. v. Rover, 2018 ONCA 745, R. v. McGuffie, 2016 ONCA 365

R. v. B., 2020 ONCA 245

Keywords: Criminal Law, Drug Trafficking, Possession of Controlled Substances, Firearm Offences, Evidence, Exclusion, Unreasonable Search and Seizure, Unlawful Arrest, Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2), R. v. Grant, 2009 SCC 32, R. v. White, 2015 ONCA 508, R. v. Mian, 2014 SCC 54, R. v. Côté, 2011 SCC 46, R. v. Mann, 2004 SCC 52, R. v. Chehil, 2013 SCC 49, R. v. Simpson, (1993) 79 C.C.C. (3d) 482 (Ont. C.A.), R. v. Rover, 2018 ONCA 745, R. v. Bacon, 2010 BCCA 135, R. v. Kitaitchik, (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), R. v. Storrey, [1990] 1 S.C.R. 241, R. v. Villaroman, 2016 SCC 33, R. v. DaCosta, 2017 ONCA 588, R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, leave to appeal ref'd [2015] S.C.C.A. No. 478

R. v. K., 2020 ONCA 251

Keywords: Criminal Law, Fraud...