Court Of Appeal Summaries (May 25 ' 29, 2020)

• Published date: 10 June 2020
• Author: Mr John Polyzogopoulos
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Criminal Law, Family and Matrimonial, Retirement, Superannuation & Pensions, Family Law, Court Procedure, Trials & Appeals & Compensation, Professional Negligence, Crime
• Law Firm: Blaney McMurtry LLP

Good afternoon.

It was a busier week at the Court of Appeal this past week, with the Court releasing eight substantive civil decisions, one short civil decision and ten criminal decisions.

Topics covered this week included the right of refusal in the sale of a matrimonial home, the valuation of federally regulated pensions for equalization purposes, the re-opening of an appeal based on fresh evidence arising from text messages, the professional negligence of solicitors, and striking pleadings under Rule 2.1 as frivolous, vexatious or abuse of process.

Perhaps the most noteworthy decision of the week, at least for courts of first instance, was Welton v. United Lands Corporation Limited. In that case, the Court heard an appeal over a trial judge's award of compensation for unpaid sales commissions and other compensation. In its decision, the Court expressed concern as to the growing trend of lengthy reasons, like the decision in this case. The Court asked trial judges to focus their analysis on the live issues that will decide the case before setting out the facts to avoid, what the Court referred to as, a "factual data dump". While appreciating that technology has allowed for more detailed note-taking on the part of judges, the Court expressed the view that the role of the trial judge is to "decant and simplify", not to be the court reporter. Digesting unduly lengthy reasons consumes far too much time because every word must be read by the parties, by their counsel at great expense, and by appellate courts.

Bowman v. Martineau illustrates the danger for liability on the part of real estate agents who act on both sides of a transaction (which is very common). The agents were found liable to the purchasers for not ensuring that the vendors had disclosed water damage and mould issues. At trial, they were found liable for the cost of repairs. The Court held that the proper measure of damages against the agents was the diminution in value, not the cost of repairs. The agent's negligence caused the purchasers to enter into a bad bargain. It did not cause the water damage and mould.

Finally, in Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Moulders and Doors), the Court upheld the motion judge's decision to strike out a statement of defence as a result of repeated failures to comply with a judicial order to produce relevant documents, as well as an order for costs against the defendant's law firm personally. Given the potential for a conflict of interest, the Court expressed concern that counsel against whom the costs order had been made who was appealing that costs order was also acting for the client on the client's appeal.

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Table of Contents

Civil Decisions

Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310

Keywords: Civil Procedure, Orders, Enforcement, Striking Pleadings, Costs Against Lawyers, Professional Conduct of Lawyers, Representation, Avoidance of Conflicts of Interest, Contracts, Debtor-Creditor, Fraudulent Conveyances, Rules of Civil Procedure, Rules 1.04, 30.02(1), 30.02(2), 30.06, 30.08, 57.07(2), 61.03(17)(b), Courts of Justice Act, R.S.O. 1990, c. C.43, s 133(b), Rules of Professional Conduct, Rules 3.4-2, 3.4-3, Hryniak v. Mauldin, 2014 SCC 7, Starland Contracting Inc. v. 1581518 Ontario Ltd. (2009), 252 OAC 19 (Div. Ct.)

Khan v. Law Society of Ontario, 2020 ONCA 320

Keywords: Torts, Solicitor Negligence, Civil Procedure, Striking Pleadings, Frivolous, Vexatious and Abuse of Process, Rules of Civil Procedure, Rule 2.1, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, Penner v. Niagara (Regional Police Services Board), [2013] 2 S.C.R. 125

Barry v. Barry, 2020 ONCA 321

Keywords: Family Law, Equalization of Net Family Property, Matrimonial Home, Sale, Right of First Refusal, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43 s. 6(1)(b), Martin v. Martin, [1992] 8 O.R. (3d) 41 (C.A.)

Graff v. Network North Reporting and Mediation, 2020 ONCA 319

Keywords: Civil Procedure, Summary Judgment, Appeals, Perfecting Appeals, Extension of Time, Sickinger v. Sickinger, 2017 ONCA 760

Welton v. United Lands Corporation Limited, 2020 ONCA 322

Keywords: Contracts, Breach, Employment, Wages, Commissions, Restitution, Unjust Enrichment, Quantum Meruit, Civil Procedure, Reasons for Decision, Costs, Offers to Settle, Rules of Civil Procedure, Rules 49.19(2), 49.13, Moore v. Sweet, 2018 SCC 52, König v. Hobza, 2015 ONCA 885, Lawson v. Viersen, 2012 ONCA 25

Bowman v. Martineau, 2020 ONCA 330

Keywords: Contracts, Real Property, Agreement of Purchase and Sale of Land, Representations and Warranties, Misrepresentation, Non-Disclosure, Torts, Professional Negligence, Real Estate Agents, Damages, Diminution in Value, Cost of Repair, Mitigation, Nan v. Black Pine Manufacturing Ltd. (1991), 80 D.L.R. (4th) 153 (B.C.C.A.), Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, Deloitte & Touche v. Livent Inc., 2017 SCC 63, James Street Hardware and Furniture Co. v. Spizziri, 1987 CanLII 4172 (Ont. C.A.), C.R. Taylor (Wholesale) Ltd. and others v. Hepworths Ltd., [1977] 2 All E.R. 784 (Q.B.), Dominion Mosaics and Tile Co. Ltd. and another v. Trafalgar Trucking Co. Ltd. and another, [1990] 2 All E.R. 246 (C.A.), Harbutt's Plasticine Ltd. v. Wayne Tank and Pump Co. Ltd., [1970] 1 All E.R. 225 (C.A.), Kienzle v. Stringer (1981), 35 O.R. (2d) 85, leave to appeal refused, [1982] S.C.C.A. No. 252, Jarbeau v. McLean, 2017 ONCA 115, Tabata v. McWilliams et al. (1982), 40 O.R. (2d) 158 (C.A.), Messineo et al. v. Beale (1978), 20 O.R. (2d) 49 (C.A.), Toronto Industrial Leaseholds Ltd. v. Posesorski (1994), 119 D.L.R. (4th) 193 (Ont. C.A.), Krawchuk v. Scherbak, 2011 ONCA 352

Geliedan v. Rawdah, 2020 ONCA 339

Keywords: Family Law, Custody and Access, Relocation, Civil Procedure, Appeals, Reconsideration, Fresh Evidence, Consent Custody Order, Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 40, First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54, Doman Forest Products Ltd. v. GMAC Commercial Credit Corp. - Canada, 2005 BCCA 111

Van Delst v. Hronowsky, 2020 ONCA 329

Keywords: Family Law, Spousal Support, Child Support, Custody, Equalization of Net Family Property, Pension Benefits, Valuation, Fresh Evidence, Family Law Act, R.S.O. 1990, c. F.3, s. 10.1(2), Family Law Rules, Rules 17(4)(d.1), 20.2(8)2, Pension Benefits Act, R.S.O. 1990, c. P.8, ss. 1(1), 10(1)4, 35(1), 35(3), 67.2, Public Service Superannuation Act, R.S.C. 1985, c. P-36, ss. 12(.01), 12(1), 12.1(2), 13, 13(1), 13.001, Di Francesco v. Di Francesco, 2011 ONSC 3844, Palmer v. The Queen, [1980] 1 S.C.R. 759, R. v. Penunsi, 2019 SCC 39, Kelly v. Kelly, 2017 ONSC 7609, Humphreys v. Humphreys (1987), 1987 CarswellOnt 309, Martin v. Martin, 2018 ONSC 6804, Berta v. Berta, 2015 ONCA 918

Short Civil Decisions

Windsor-Essex Children's Aid Society v. J.C., 2020 ONCA 328

Keywords: Publication Ban, Family Law, Child Protection

Criminal Decisions

R. v. S., 2020 ONCA 311

Keywords: Criminal Law, Impaired Driving, Dangerous Driving, Failing to Stop for Police, Driving While Disqualified, Gladue Reports, Sentencing, Victim Surcharge, Criminal Code, s. 718.2(e), R. v. Gladue, [1999] 1 S.C.R. 68, R. v. Ipeelee, 2012 SCC 13

R. v. G.J.S., 2020 ONCA 317

Keywords: Publication Ban, Criminal Law, Sexual Assault, Sexual Interference, Sexual Exploitation, Sexual Touching, Evidence, Admissibility, Hearsay, Third Party Records, Credibility, Child Witnesses, Recent Fabrication, Reliability, Corroboration, Prior Consistent Statements, Sufficiency of Reasons, Criminal Code, ss. 151(a), 153(1)(a), 271, 278, 696(1)(a)(i), R. v. Khan, [1990] 2 S.C.R. 531, R. v. W.(R.), [1992] 2 S.C.R. 122, Kienapple v. The Queen, [1975] 1 S.C.R. 729, R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), R. v. W.H., 2013 SCC 22, R. v. Burke, [1996] 1 S.C.R. 474, R. v. R.P., 2012 SCC 22, R. v. Tillekaratna (1998), 124 C.C.C. (3d) 549 (Ont. C.A.), R. v. Pittiman, 2006 SCC 9, R. v. R.E.M., 2008 SCC 51, R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), R. v. Stirling, 2008 SCC 10, R. v. Dinardo, 2008 SCC 24, R. v. Khan, 2017 ONCA 114, R. v. D.C., 2019 ONCA 442, R. v. S.K., 2019 ONCA 776, R. v. D.K., 2020 ONCA 79, R. v. G.C., [2006] O.J. No. 2245 (C.A.), R. v. Ellard, 2009 SCC 27

R. v. L., 2020 ONCA 324

Keywords: Criminal Law, Aggravated Assault, Use of Imitation Firearm, Breach of Recognizance, Drug Possession, Robbery, Assault, Uttering Death Threats, Evidence, Admissibility, Gladue Reports, Bail, Sentencing, Pre-Sentence Credit, COVID-19, Criminal Code, ss. 85(2)(a), 145(3), 268, Controlled Drugs and Substances Act, S.C. 2006, c. 19, s. 4(1), R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), R. v. Jacko, 2010 ONCA 452, R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Ipeelee, 2012 SCC 13, R. v. Lacasse, 2015 SCC 64, R. v. Morgan, 2020 ONCA 279, R. v. Lacasse, 2015 SCC 64, R. v. Morgan, 2020 ONCA 279

R. v. M., 2020 ONCA 313

Keywords: Criminal Law, Drug Offences, Possession for the Purpose of Trafficking, Evidence, Admissibility, Search and Seizure, Search Warrants, Confidential Informants, Reasonable Expectation of Privacy, Electronic Devices, Cell Phones, Sentencing, Criminal Code, ss. 4(3)(a)(ii), 4(3)(b), 686(1)(a)(i), Canadian Charter of Rights and Freedoms, ss. 8, 24(2), Controlled Drug and Substances Act, S.C. 1996, c. 19, s. 11(1), R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), R. v. Vu, 2013 SCC 60, R. v. Sadikov, 2014 ONCA 72, Hunter v. Southam Inc., [1984] 2 S.C.R. 145, R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), R. v. Wilson, 2011 BCCA 252, 272 C.C.C. (3d) 269, R. v. Morelli, 2010 SCC 8, R. v. Araujo, 2000 SCC 65, R. v. Nero, 2016 ONCA 160, CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, R. v. Jones, 2011 ONCA 632, R. v. Lights, 2020 ONCA 128, R. v. R.P., 2012 SCC 22. R. v. Villaroman...