Court Of Appeal Summaries (October 19 ' October 23, 2020)

• Published date: 27 October 2020
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Financial Services, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

There were only three substantive decisions released by the Court of Appeal this week. In Paulpillai Estate v. Yusuf the Court reviewed in detail the factors to be considered in an analysis of whether an order is final or interlocutory for the purposes of determining the proper appeal route.

Other topics covered this week included bank negligence, and building code violations.

Wishing everyone a pleasant weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Table of Contents

Civil Decisions

Paulpillai Estate v. Yusuf , 2020 ONCA 655

Keywords: Civil Procedure, Appeals Jurisdiction, Final or Interlocutory, Corporations, Remedies Oppression, Receiverships, Interim Release of Funds, Injunctions Adding Parties, Sealing Orders, Arbitration, Applications, Actions, Courts of Justice Act, ss. 6(1)(b), ss. (19(1)(b), ss. 101(1), Arbitration Act, ss. 7(1) and ss. 7(6), Grand River Enterprises v. Burnham (2005), 197 OAC 168 (CA), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, Laurentian Plaza Corp. v. Martin (1992), 7 OR (3d) 111 (CA), Ontario Medical Assn. v. Miller (1976), 14 OR (2d) 468 (CA), Illidge (Trustee of) v. St. James Securities Inc. (2002), 60 OR (3d) 155 (CA), Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, Susan J. Model & Talent Management Inc. v. IMG Models Inc., 2006 CanLII 2882 (Ont. CA), Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404

Whitby (Town) v. G & G 878996 LM Ltd., 2020 ONCA 654

Keywords: Municipal Law, Building Code, Civil Procedure, Appeals, New Issue on Appeal, Remedies, Set-off, Building Code Act, 1992, S.O. 1992, c. 23, s 15.10, Kaiman v. Graham, 2009 ONCA 77

Foodinvest Limited v. Royal Bank of Canada , 2020 ONCA 665

Keywords: Torts, Negligence, Duty of Care, Standard of Care, Banking, Fraud, Civil Procedure, Summary Judgment, Deloitte & Touche v. Livent Inc. (Receiver of), [2017] 2 SCR 855

Short Civil Decisions

Ballanger v. Ballanger, 2020 ONCA 663

Keywords: Costs

Samad v. Rasool, 2020 ONCA 656

Keywords: Civil Procedure, Appeals, Extension of Time, Orders, Setting Aside

Pearl Hospitality Inc. v. Ceballos, 2020 ONCA 672

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Torts, Fraudulent Misrepresentation

Levin v. Levin, 2020 ONCA 675

Keywords: Family Law, Costs

Old Navy (Canada) Inc. v. The Eglinton Town Centre Inc., 2020 ONCA 679

Keywords: Consent Dismissal

CIVIL DECISIONS

Paulpillai Estate v. Yusuf, 2020 ONCA 655

[Doherty, Hoy and Jamal JJ.A.]

Counsel:

O.G. Barnwell, for the appellants

E.G. Upenieks and A.H. Kwok, for the respondents

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Corporations, Remedies, Oppression, Receiverships, Interim Release of Funds, Injunctions, Adding Parties, Sealing Orders, Arbitration, Applications, Actions, Courts of Justice Act, ss. 6(1)(b), ss. (19(1)(b), ss. 101(1), Arbitration Act, ss. 7(1) and ss. 7(6), Grand River Enterprises v. Burnham (2005), 197 OAC 168 (CA), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, Laurentian Plaza Corp. v. Martin (1992), 7 OR (3d) 111 (CA), Ontario Medical Assn. v. Miller (1976), 14 OR (2d) 468 (CA), Illidge (Trustee of) v. St. James Securities Inc. (2002), 60 OR (3d) 155 (CA), Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, Susan J. Model & Talent Management Inc. v. IMG Models Inc., 2006 CanLII 2882 (Ont. CA), Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404

facts:

The respondent in this case is the estate of a deceased. The deceased and the appellant operated two universities together in the Caribbean. While several corporate structures and partnerships were interposed, their relationship was ultimately governed by a partnership agreement in Ontario. When the deceased passed away, the appellant suggested to the respondent that they alter the relationship and each take responsibility for one of the schools and no longer run them as affiliated schools. The respondent agreed to this. However, the respondent alleged that the appellant failed to provide proper financial disclosure to allow the respondent to make a proper choice as to which school to assume ownership for. Further, it was alleged the appellant began competing with the school owned by the respondent, poaching its staff and that the appellant also failed to account for partnership funds owed to the deceased's estate arising after the deceased's death.

As a result, the respondents commenced an application, seeking a declaration and damages for corporate oppression, a declaration and damages for breach of the partnership agreement and an accounting and tracing of partnership funds since the death of the deceased, among other relief. The appellant agreed to all the injunctive relief sought at the first appearance and so a consent order was granted. Thereafter, the respondent had reason to believe the appellant was breaching the consent order and so brought the application back before the court.

The motion judge issued the order that gives rise to this appeal, which order: i) appointed BDO Canada Limited ("BDO") as an investigative monitor of the schools; ii) released funds on an interim basis to the appellant for the operation of their school, as an advance of any sum that might be found to be payable to them; iii) enjoined the appellant on an interim basis from competing unfairly with the respondent's school or recruiting its students or personnel; iv) converted the application to an action; v) added parties to the action; and vi) declined to seal the entire court file.

The respondent brought a motion to quash the appeal as being in the wrong court. The appellant sought a stay of the order pending appeal.

issues:

(1) Was the order under appeal final or interlocutory, such that an appeal lay to the Divisional Court, with leave?

(2) Should the order be stayed?

holding:

Motion to quash granted. Motion to stay dismissed.

reasoning:

(1) Was the order under appeal final or interlocutory, such that an appeal lay to the Divisional Court, with leave?

The order was interlocutory. An appeal from an interlocutory order lies to the Divisional Court. The Court of Appeal reviewed the main principles to be considered when assessing whether an order is interlocutory: i) an appeal lies from the court's order, not from the reasons given for making the order; ii) an interlocutory order "does not determine the real matter in dispute between the parties ' the very subject matter of the litigation ' or any substantive right. Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided; iii) in determining whether an order is final or interlocutory, one must examine the terms of the order, the motion judge's reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order; and iv) the question of access to appellate review must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case ... in other words, the characterization of the order depends upon its legal nature, not its practical effect.

The Court of Appeal then considered each element of the order under appeal to determine whether the order was interlocutory.

(i) Appointment of BDO
The motion judge's reasons noted the court had "authority to appoint a receiver and manager by an interlocutory order where it appears to be just or convenient to do so: Courts of Justice Act, s. 101". BDO was appointed to monitor the schools and ensure the respondents' ability to recover was not prejudiced. It is well established before the Court of Appeal that a receiver appointed under s. 101(1) is an interlocutory order, and the court held in this case that appointing BDO an investigative monitor was a parallel decision.

(ii)...