Court Of Appeal Summaries (September 28 ' October 2, 2020)

• Published date: 06 October 2020
• Subject Matter: Finance and Banking, Employment and HR, Litigation, Mediation & Arbitration, Criminal Law, Family and Matrimonial, Financial Services, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation, Family Law, Arbitration & Dispute Resolution, Personal Injury, Crime, Civil Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

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

Becker v Toronto is an occupier's liability case. In upholding the trial judge's decision finding the City liable, the Court rejected the City's arguments that the trial judge erred in failing to consider an alternative theory that although not expressly raised and thoroughly developed at trial was never formally abandoned. Legal theories can be implicitly abandoned when parties neglect to develop them at trial, and a trial judge is under no obligation to consider an issue from any perspective other than those actually articulated by the parties. If a party fails to develop an argument at trial, it may well be too little, too late to try to revive it on appeal.

In Toronto Standard Condominium Corporation No. 1628 v Toronto Standard Condominium Corporation No. 1636, the Court of Appeal considered the Supreme Court's ruling in TELUS Communications Inc. v. Wellman, released just last year. In Wellman, the Supreme Court concluded that the interpretation of s. 7(5) of the Arbitration Act, 1991 as outlined in Griffin v. Dell Canada Inc., 2010 ONCA 29 was bad law. Put succinctly, Wellman stands for the proposition that a motion judge does not have the discretion to refuse to stay claims dealt with in an arbitration agreement. While claims that fall outside the scope of an arbitration agreement may be allowed to proceed as a matter of the motion judge's discretion under s. 7(5), claims that fall within the scope of the arbitration agreement must be arbitrated.

In discussing the principle of stare decisis, the Court of Appeal went on to find that Wellman did not overturn the line of cases beginning with Huras v. Primerica Financial Services Ltd. (2000), 137 OAC 79 (Ont CA), which interpret s 7(6) of the Arbitration Act. Those cases stand for the proposition that s. 7(6) does not bar an appeal when there is no arbitration agreement or applicable arbitration agreement, the dispute lies beyond the scope of s. 7, the Act does not apply or the motion judge did not make a decision under s. 7.

In Belton v Spencer a motion judge struck a jury notice for a ten year old personal injury matter that had been scheduled to go to trial this month, but could not proceed before a jury due to COVID-19. The defendant sought to appeal, sought a stay of the order striking the jury notice pending the appeal, and sought an adjournment of the trial scheduled to proceed before a judge alone. The Court refused to stay the order, finding that it was probably interlocutory, given that it did not substantively decide the parties' rights. The appeal therefore probably should have been brought to the Divisional Court. Moreover, the Court found that the RJR-MacDonald test for a stay was not satisfied. The right to a trial by jury in the civil context is limited and qualified. The fact that COVID-19 was necessitating a further 12-18 month delay, on top of an already decade-long process, amounted to an unconscionable delay and justified the striking of the jury notice. As an aside, in a Civil Bench and Bar Committee meeting I participated in last week, Justices Darla Wilson and Fred Myers confirmed that in-person civil jury trials have resumed in Toronto (but nowhere else). While we still have a ways to go yet, the courts are getting back to business, which is great to see.

In Groves v UTS Consultants Inc., a purchaser of a business was found to owe the vendor 24 months' notice upon dismissing him without cause three years after purchasing the business. The vendor had only resigned as an officer and director but not as an employee. The release he provided purported to release ESA entitlements, which was void and therefore unenforceable, resulting in the purchaser being on the hook for the full notice period from when the vendor had started the business. Careful drafting by the solicitors who handled the purchase and sale transaction could have avoided this outcome.

Walters v Nusseiri is a family law case that deals with the presumptions of resulting trust and advancement.

Finally, we have summarized one criminal decision this week, R. v Hossannah, because it discusses the law of introducing fresh evidence on appeal, which is applicable in civil cases as well. In this sad case, the parents of a young child were found guilty of not providing the necessities of life. The medical experts at trial had concluded that the child had died as a result of a combination of severe malnutrition and asthma. However, on appeal, new medical evidence put forward by the parents revealed that the child died of heart failure due to megaloblastic anemia and Vitamin D deficiency rickets, which is associated with sudden unexpected deaths in children. This caused the Crown's medical expert to change his opinion, and he no longer believed the child had died due to asthma, but only as a result of malnutrition. Even though the parents could have introduced the new medical evidence at trial, given the complexity of the medical evidence, which was the "lynchpin" of the Crown's case at trial, the convictions were set aside and a new trial ordered despite the lack of "due diligence".

Thank you all for your continued support of our blog.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Table of Contents

Civil Decisions

Becker v Toronto, 2020 ONCA 607

Keywords: Torts, Negligence, Occupiers' Liability, Duty Of Care, Standard Of Care, Civil Procedure, Procedural Fairness, New Issues on Appeal, Occupiers' Liability Act, RSO 1990, c. O2, s. 3(1), 1990 Ontario Building Code, O. Reg 413/90, The Queen (Can) v Saskatchewan Wheat Pool, [1983] 1 SCR 205, Union Building Corporation of Canada v Markham Woodmills Development Inc, 2018 ONCA 401, Shaver Hospital for Chest Diseases v Slesar (1979), 27 OR (3d) 383 (CA), leave to appeal refused, [1981] 1 SCR xiii, Cotic v Gray, [1983] 2 SCR 2

Belton v Spencer, 2020 ONCA 623

Keywords:Torts, Negligence, Personal Injury, Civil Procedure, Appeals, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Civil Jury Trials, Striking Jury Notice, COVID-19, Rules of Civil Procedure, Rules 22.03 & 63.02(1)(b), RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, Circuit World Corp v Lesperance (1997), 33 OR (3d) 674 (CA), BTR Global Opportunity Trading Limited v RBC Dexia Investor Services Trust, 2011 ONCA 0620, Cowles v Balac (2006), 83 OR (3d) 660 (CA), leave to appeal refused, [2006] SCCA No, 496, Kostopoulos v Jesshope (1985), 50 OR (2d) 54 (CA), leave to appeal refused, [1985] SCCA No 93, Fontaine v Attonrey General of Canada, 2020 CanLII 64770 (Ont. CA), Ball v Donais (1993), 13 OR (3d) 322, Thomsan v Alberta (Transportation and Safety Board), 2003 ABCA 322

Toronto Standard Condominium Corporation No. 1628 v Toronto Standard Condominium Corporation No. 1636], 2020 ONCA 612

Keywords: Real Property, Condominiums, Civil Procedure, Arbitration Agreements, Appeals, Jurisdiction, Stare Decisis, Arbitration Act, 1991, SO 1991, c .17, s. 7, Condominium Act, 1998, SO 1998, c. 19, s. 135, TELUS Communications Inc v Wellman, 2019 SCC 19, Griffin v Dell Canada Inc., 2010 ONCA 29, Huras v Primerica Financial Services Ltd (2000), 137 OAC 79 (CA), Fernandes v Araujo, 2015 ONCA 571, David Polowin Real Estate Ltd v Dominion of Canada General Insurance Co (2005), 76 OR (3d) 161 (CA), Uber Technologies Inc v Heller, 2020 SCC 16, National Westminster Bank PLC v Spectrum Plus Limited, [2005] UKHL 41

Groves v UTS Consultants Inc, 2020 ONCA 630

Keywords: Contracts, Interpretation, Sale of Business, Employment, Wrongful Dismissal, Reasonable Notice Period, Damages, Bonuses, Employment Standards Act, SO 2000 c 41, Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, Wood v Deeley, 2017 ONCA 158, Payette v Guay Inc, 2013 SCC 45, Cosentino v Sherwood Dash Inc, 2014 ONCA 843, Kerzner v American Iron & Metal Company Inc, 2018 ONCA 989, Paquette v TeraGo Networks Inc, 2016 ONCA 618

Walters v Nusseiri, 2020 ONCA 615

Keywords: Family Law, Property, Family Residence, Joint Tenancy, Presumption of Resulting Trust, Presumption of Advancement, Family Law Act, RSO 1990, c. F.3, s. 14, Kerr v Baranow, 2011 SCC 10, Pecore v Pecore, 2007 SCC 17

Short Civil Decisions

Lone Oak Properties Ltd v Baillie, 2020 ONCA 614

Keywords: Civil Procedure, Appeals, Offer to Settle, Costs, Partial Indemnity Costs, Substantial Indemnity Costs, Rules of Civil Procedure, Rule 49.10(7), Borowski v Canada, [1989] 1 SCR 342, Groh v Steele, 2017 ONSC 4925

1947755 Ontario Ltd v Caruso, 2020 ONCA 0616

Keywords: Civil Procedure, Default Judgments, Setting Aside, Appeals, Motion to Quash, Failure to Comply with an Order, Jurisdiction, Interlocutory vs Final Order, Jurisdiction for Appeal of Interlocutory Order, Inforica Inc v CGI Information Systems and Management Consultants Inc, 2020 ONCA 0642

Elbasiouni v Brampton (City), 2020 ONCA 0628

Keywords: Wills and Estates, Substitute Decisions, Guardian of Property, Civil Procedure, Adjournments

Provincial Offences and Criminal Decisions

R v Nguyen, 2020 ONCA 609

Keywords: Provincial Offences, Constitutional Law ,Procedural and Natural Justice, Right to Trial Within a Reasonable Time, Delay, Presumptive Ceiling, Uniform Ceiling, Evidence ,Onus of Proof, Obligation to Take Steps to Expedite Trial, Charter of Rights and Freedoms, s.11(b), Highway Traffic Act, R v Jordan, 2016 SCC 27, R v KJM, 2019 SCC 55

R v Hosannah, 2020 ONCA 617

Keywords: Manslaughter, Failure to Provide Necessities of Life, Criminal Procedure, Appeals, Fresh Evidence, Expert Medical Evidence, Admissibility, Cogency, Due Diligence, Criminal Code s. 683(1)(d), White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, R v Truscott, 2007 ONCA 575, R v Manasseri, 2016 ONCA 703

CIVIL DECISIONS

Becker v Toronto (City), 2020 ONCA 607

[Watt, Trotter and Zarnett JJ A]

Counsel:

Rebecca L. Bush and Ruby Egit, for the appellant

Jason F Katz and Ari Singer , for the respondent

Keywords: Torts,...