Court Of Appeal Summaries (May 19 ' 22, 2020)

• Published date: 06 June 2020
• Author: Mr John Polyzogopoulos
• Law Firm: Blaney McMurtry LLP

Good morning.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario released this past week.

Topics covered this week included rescission of a settlement agreement as a result of an innocent misrepresentation in an historical institutional sexual abuse case, trespass to university property, stay of appeal pending satisfaction of terms in the family law context, setting aside summary judgment in the repair and storage liens context and stay pending an appeal from a default judgment for possession to prevent the sale of a property under power of sale.

The weather is nice, so hopefully everyone enjoys the outdoors this weekend while still practicing physical distancing.

Table of Contents

Civil Decisions

Deschenes v. Lalonde, 2020 ONCA 304

Keywords: Contracts, Settlements, Remedies, Rescission, Innocent Misrepresentation

MCC Mortgage Holdings Inc. v. Mundulai, 2020 ONCA 312

Keywords: Contracts, Real Property, Mortgages, Enforcement, Power of Sale, Civil Procedure, Default Judgments, Setting Aside, Appeals, Stay Pending Appeal, Mortgages Act, R.S.O. 1990, c. M.40, ss. 12, 22 and 23, Chandra v. Canadian Broadcasting Corporation, 2016 ONCA 448, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

R. v. University of Toronto, 2020 ONCA 305

Keywords: Torts, Trespass, Human Rights, Education Law, Health Law, Civil Procedure, Injunctions, RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311

Abu-Saud v. Abu-Saud, 2020 ONCA 314

Keywords: Family Law, Support Order, Equalization, Rules of Civil Procedure, r. 63.01(1), Murphy v. Murphy, 2015 ONCA 69, Dickie v. Dickie (2006), 78 OR (3d) 1, Popa v. Popa, 2018 ONCA 972

Kitchen v. Brian Garratt (Garratt's Garage), 2020 ONCA 309

Keywords: Breach of Contract, Repair and Storage Liens, Civil Procedure, Summary Judgment, Costs

Criminal Decisions

R. v. L., 2020 ONCA 230

Keywords: Criminal Law, Fraud, Mens Rea, Double Jeopardy, Canadian Charter of Rights and Freedoms, s. 11(h), R. v. Théroux, [1993] 2 S.C.R. 5, R. v. Barton, 2019 SCC 33, R. v. Graveline, 2006 SCC 16, R. v. Katigbak, 2011 SCC 48, R. v. McRae, 2013 SCC 68

R. v. R., 2020 ONCA 306

Keywords: Criminal Law, Drug Trafficking, Juries, Alternate Jurors, Evidence, Admissibility, Prior Convictions, Delay, Criminal Code, ss. 631(2.1), 631(2.2), 643(1), 652.1, 686(1)(b)(iv), Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Noureddine, 2015 ONCA 770, R. v. O'Brien, 2011 SCC 29, R. v. Chouhan, 2020 ONCA 40, R. v. Stubbs, 2013 ONCA 514, R. v. Handy, 2002 SCC 56, R. v. Jordan, 2016 SCC 27, R. v. Morin, [1992] 1 S.C.R. 771, R. v. Seegmiller(2004), 191 C.C.C. (3d) 347 (Ont. C.A.), R. v. Steele, 2012 ONCA 383, R. v. J.C.P., 2018 ONCA 986, R. v. Picard, 2017 ONCA 692

R. v. B., 2020 ONCA 315

Keywords: Criminal Law, Bail Pending Appeal, Criminal Code, s. 679(3)(c), R. v. Sekhon, 2014 SCC 15, R. v. Oland, 2017 SCC 17, R. v. Jesso, 2020 ONCA 280

R. v. Becker Bros. Trucking Inc., 2020 ONCA 316

Keywords: Provincial Offences, Appeals, Method of Hearing, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 84(1), Provincial Offences Act, R.S.O. 1990. c. P.33, s. 131, The Rules of the Court of Appeal in Appeals Under the Provincial Offences Act, O. Reg. 721/94, Rules 2(2), 3, 3.7, 4(1), Rules of Civil Procedure, Rules 61.03, 63.03.1(1), York (Regional Municipality) v. Irwin, 2020 ONCA 44, Ontario (Environment, Conservation and Parks) v. Thomas Cavanagh Construction Limited, 2019 ONCA 686, Antorisa Investments Ltd. v. Vaughan (City), 2012 ONCA 586

R. v. H., 2020 ONCA 307

Keywords: Criminal Law, Second Degree Murder, Manslaughter, Mens Rea, Intoxication, Expert Evidence, Admissibility, Jury Instructions, Criminal Code, ss. 229(a)(i), 229(a)(ii), R. v. Daley, 2007 SCC 53, R. v. Chretien, 2014 ONCA 403, R. v. MacKinlay (1986), 28 C.C.C. (3d) 306 (Ont. C.A.), R. v. Canute (1993), 80 C.C.C. (3d) 403 (B.C.C.A.), R. v. Robinson, [1996] 1 S.C.R. 683, R. v. Seymour, [1996] 2 S.C.R. 252, R. v. Lemky, [1996] 1 S.C.R. 757, R. v. Srun, 2019 ONCA 453, R. v. Calnen, 2019 SCC 6, R. v. Jacquard, [1997] 1 S.C.R. 314, R. v. Patel, 2017 ONCA 702, R. v. Shafia, 2016 ONCA 812, R. v. Mills, 2019 ONCA 940, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Abbey, 2017 ONCA 640, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters, 2015)

R. v. P., 2020 ONCA 308

Keywords: Criminal Law, Juries, Challenges for Cause, Language Rights, Charter of Rights and Freedoms, s. 16, Criminal Code, ss. 530(1), 530(1)(c), 530(4), 626(1), 632, 638(1)(b), 638(1)(f), Controlled Drugs and Substances Act, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 11, 12, 13, 14, 15, 16, 17, Juries Act, R.S.O. 1990, c. J.3, Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.), s. 16, Protecting What Matters Most Act (Budget Measures), S.O. 2019, c. 7, Sched. 35, s. 2, Citizenship Act, R.S.C. 1985, c. C-29, ss. 5(1)(d), 5(1)(e), Assessment Act, R.S.O. 1990, c. A.31, Bell ExpressVu Limited

CIVIL DECISIONS

Deschenes v. Lalonde, 2020 ONCA 304

[van Rensburg, Paciocco and Thorburn JJ.A.]

Counsel:

J. K. Downing and B. Whitwham for the appellants

L. P. Merritt for the respondent

Keywords: Contracts, Settlements, Remedies, Rescission, Innocent Misrepresentation

facts:

The respondent alleged that she was sexually assaulted as a child by a priest in the early 1970s. She sued the priest and the appellants, claiming vicarious liability for the priest's actions and negligence in failing to prevent the assaults. The Diocese claimed that it had no knowledge of the priest's prior abuse of others until 1989. As a result, the respondent settled in 2000. However, in 2006 it was revealed that the Diocese knew about additional assaults years before the respondent was assaulted. She subsequently commenced a new action in 2008 claiming rescission of the settlement agreement and the parties moved for summary judgment to determine the enforceability of the 2000 settlement. The appellants asserted that the motion judge erred in rescinding the settlement agreement, but they did not appeal the declaration of vicarious liability.

issues:

(1) Did the motion judge err in rescinding the settlement agreement on the basis of unilateral mistake?

(2) Did the motion judge err in his assessment of materiality?

(3) Did the motion judge err in not giving effect to the "finality of settlements" and in relying on findings in another action in deciding whether to grant the equitable remedy of rescission?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court determined that while a settlement agreement will not be rescinded on the basis of information that has come to light following the settlement, it may be rescinded on the basis of misrepresentation. In a case of misrepresentation, the interest in the finality of settlements will not "trump" the need to rescind a settlement agreement. Rescission is an equitable remedy available for false or misleading representations that induce a contract, and rescission is available even if the misrepresentation was made innocently. For rescission to be granted, the plaintiff must have acted promptly upon discovery of the misrepresentation. A settlement agreement may also be rescinded on the basis of unilateral mistake, and while the motion judge did find a "unilateral mistake by the Diocese," the judge correctly applied the principle of innocent misrepresentation. The appellants assert that the motion judge erred in law when he rescinded the settlement agreement based on unilateral mistake because at the time the Diocese had no actual or constructive knowledge of the mistake and there was no evidence of unconscionable conduct on the part of the Diocese. This Court however found that whether or not the motion judge imputed knowledge to the Diocese had no bearing on his decision to rescind the settlement agreement, because it was rescinded on innocent misrepresentation, which does not require a finding that the Diocese had actual or constructive knowledge that the representation was false at the time that it...