COURT OF APPEAL SUMMARIES (November 2 ' November 6, 2020)

• Published date: 11 November 2020
• Subject Matter: Corporate/Commercial Law, Government, Public Sector, Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Court Procedure, Trials & Appeals & Compensation, Human Rights, Personal Injury, Professional Negligence, Shareholders
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Please find below our summaries of the civil decisions of the Court of Appeal for the week of November 2, 2020. There were quite a few substantive decisions released this week.

In Kreiser v Garber, the appeal arose in the context of a wrongly constructed dock that prevented a neighbour from using their boat. The Court of Appeal engaged in a lengthy discussion on the law of nuisance, the considerations for when to allow fresh evidence on appeal, the special considerations to be taken into account when a court issues a mandatory injunction, as well as a discussion on punitive damages.

Other topics covered this week included another round litigation in the Indian Residential School Settlement, vexatious litigants, the setting aside of an order granting summary judgement in the context of a shareholder's agreement involving a right of first refusal, limitation periods, family law.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Visic v. Elia Associates Professional Corporation, 2020 ONCA 690

Keywords: Civil Procedure, Striking Pleadings, Vexatious Litigants, Frivolous, Vexatious, Abuse of Process, Res Judicata, Issue Estoppel, Rules of Civil Procedure, Rule 2.1.01, Ontario Human Rights Code, R.S.O. 1990, c. H.19, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Khan v. Law Society of Ontario, 2020 ONCA 320, Khan v. Krylov & Company LLP, 2017 ONCA 625, P.Y. v. Catholic Children's Aid Society of Toronto, 2020 ONCA 98, Penner v. Niagara Regional Police Services Board, 2013 SCC 19, Jones v. Tsige, 2012 ONCA 32, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Activa Trading Co. Ltd. v. Birchland Plywood-Veneer Limited, 2020 ONCA 93

Fontaine v. Canada (Attorney General), 2020 ONCA 688

Keywords: Civil Procedure, Class Proceedings, Indian Residential School System Settlement Agreement, Standard of Review, Baxter v. Canada (Attorney General) (2206) 83 OR (3d) 481 (SC), Onion Lake Cree Nation v Stick, 2020 SKCA 101, J.W. v Canada (attorney General), 2019 SCC 20, BG Checo Internation Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 SCR 12

Way v. Schembri, 2020 ONCA 691

Keywords: Contracts, Interpretation, Real Property, Joint Venture Agreements, Rights of First Refusal, Restrictive Covenants, Civil Procedure, Summary Judgment, Partial Summary Judgment, Hryniak v. Mauldin, 2014 SCC 7, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

B. v. Mississauga, 2020 ONCA 697

Keywords: Torts, Negligence, Civil Procedure, Limitation Periods, Discoverability, Capacity, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B., ss. 4, 7, Rules of Civil Procedure, Rule 15.01(1), Canadian Charter of Rights and Freedoms, Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 15, Liu v. Wong, 2016 ONCA 366, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447

Fettes v. Clark, 2020 ONCA 705

Keywords: Family Law, Spousal Support, Property, Unjust Enrichment, , Kerr v Baranow, 2011 SCC 10, Berta v Berta, 2015 ONCA 918, Djekic v Zai, 2015 ONCA 25

Mughal v. Bama Inc., 2020 ONCA 704

Keywords: Tort, Conspiracy to Commit Injury, Request to Adjourn, Ineffective Counsel, Canada Cement Lafarge v. British Columbia Lightweight Aggregate Ltd., [1983] 1 SCR 452, Agribands Purina Canada Inc. v. Kasameka, 2011 ONCA 0460

Krieser v. Garber, 2020 ONCA 699

Keywords: Torts, Nuisance, Remedies, Mandatory Injunctions, Punitive Damages, Civil Procedure, Offers to Settle, Costs, Appeals, Evidence, Fresh Evidence, Character Evidence, Courts of Justice Act, ss. 134(4), St. Lawrence Cement Inc v Barrette, [2008] 3 SCR 392, Antrim Truck Centre Ltd.v. Ontario (Ministry of Transportation), 2013 SCC 13, Tock v. St. John's Metropolitan Area Board, [1987] 2 SCR 1181, Aventis Pharma S.A. v. Novopharm Ltd., 2005 FCA 390, Sengmueller v. Sengmueller (1994), 111 DLR (4^th) 19 (Ont. CA), Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287 (C.A.), Whiten v. Pilot Insurance Co., [2002] 1 SCR 595, Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, Alguire v. The Manufacturers Life Insurance Company (Manulife Financial), 2018 ONCA 0202, TWI Foods Inc. v. Just Energy Corp., 2012 ONCA 0150, Whitfield v. Whitfield, 2016 ONCA 0720, Young v. Young, [1993] 4 SCR 3

Short Civil Decisions

Mudronja v. Mudronja (Costs), 2020 ONCA 702

Keywords: Family Law, Costs, Reasonableness, Proportionality, Family Law Rules, O. Reg. 114/99, Rules 24(1) and 24(12), Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, s.1(1)

CIVIL DECISIONS

Visic v. Elia Associates Professional Corporation, 2020 ONCA 690

[Hourigan, Trotter and Jamal JJ.A.]

Counsel:

C. Du Vernet and C. McGoogan, for the appellant

M. A. Willis, for the respondent University of Windsor

Keywords: Civil Procedure, Striking Pleadings, Vexatious Litigants, Frivolous, Vexatious, Abuse of Process, Res Judicata, Issue Estoppel, Rules of Civil Procedure, Rule 2.1.01, Ontario Human Rights Code, R.S.O. 1990, c. H.19, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Khan v. Law Society of Ontario, 2020 ONCA 320, Khan v. Krylov & Company LLP, 2017 ONCA 625, P.Y. v. Catholic Children's Aid Society of Toronto, 2020 ONCA 98, Penner v. Niagara Regional Police Services Board, 2013 SCC 19, Jones v. Tsige, 2012 ONCA 32, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Activa Trading Co. Ltd. v. Birchland Plywood-Veneer Limited, 2020 ONCA 93

facts:

The appellant sought an order requiring the University of Windsor to permanently delete all references to her 'first' first year law school results and damages against the respondents of $500,000 for invasion of privacy, breach of fiduciary duty, breach of confidence, breach of contract, negligence, defamation, and infringement of the Ontario Human Rights Code. The respondents, Patricia Elia and Elia Associates Professional Corporation (the 'Elia Respondents'), were the appellant's articling principal and former employer, respectively.

The motion judge held that the appellant's action against the University sought to re-litigate the same issues raised in an earlier action and in proceedings before the Human Rights Tribunal of Ontario ('HRTO'), both of which were dismissed. She noted that the HRTO declared the appellant to be a vexatious litigant and the Divisional Court dismissed appeals from these orders.

The motion judge dismissed the appellant's action as against the University under Rule 2.1.01, but allowed the action to continue as against the Elia respondents because the appellant had never sued them in the Superior Court. The appellant appealed the motion judge's order.

issues:

1. Did the motion judge err in dismissing the appellant's action as against the University under Rule 2.1.01?

holding:

Appeal dismissed.

reasoning:

No. The Court first looked at principles governing the application of Rule 2.1.01. The Rule allows a court to stay or dismiss a proceeding if it appears on its face to be frivolous, vexatious or otherwise an abuse of process. The Court stated that the rule may only be used in the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process. The Court also emphasized that a motion under Rule 2.1.01 focuses on the pleadings and any submissions of the parties made under the rule. Additionally, the rule does not replace other rules to strike out actions or to deal with other procedural irregularities summarily. The Court also noted that a motion judge's ruling under Rule 2.1.01 is a discretionary decision entitled to deference. Such a decision may be set aside only if the motion judge misdirected themselves or their decision was so clearly wrong as to amount to an injustice.

The Court held that the motion judge correctly identified the relevant legal principles under Rule 2.1.01 and that her discretionary decision to dismiss the action was entitled to appellate deference. The Court found that the appellant's four grounds of appeal lacked merit.

First, the appellant asserted the statement of claim pled proper causes of action. The Court found that the motion judge, based on her review of the claim, was entitled to conclude that the action involved abusive re-litigation.

Second, the appellant asserted her claim did not seek to re-litigate the same factual circumstances that were dismissed in her court action in 2005 or in her application to the HRTO in 2008. The Court disagreed, finding that her action challenged the same conduct of the University that she had unsuccessfully challenged before.

Third, the appellant asserted that her claim for invasion of privacy rested on a new tort that the court first recognized in Jones v Tsige, after her previous proceedings were dismissed. In rejecting this argument, the motion judge noted that the Court in Jones did not recognize a new tort of invasion of privacy, rather it confirmed a cause of action that already existed at common law. She concluded that the appellant's claim here was barred by the doctrine of cause of action estoppel. That doctrine prevents parties from re-litigating matters by advancing a point in subsequent proceedings which properly belonged to the subject of the previous litigation. The Court agreed with the motion judge's reasoning and conclusion.

Fourth, the appellant asserted the motion judge erred in relying on abuse of process and cause of action estoppel under r. 2.1.01 because she said such a finding required evidence. The Court disagreed with this submission. The Court held that re-litigation of issues determined in a prior judicial proceeding is 'a classic example of abuse of process' under Rule 2.1.01. In applying the rule, the motion judge was entitled to review reasons from other proceedings describing...