Court Of Appeal Summaries (November 9 ' November 13, 2020)

• Published date: 17 November 2020
• Subject Matter: Corporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Contracts and Commercial Law, Unfair/ Wrongful Dismissal, Family Law, Court Procedure, Trials & Appeals & Compensation, Landlord & Tenant - Leases
• 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 9, 2020.

Jesan Real Estate Ltd. v. Doyle deals with relief from forfeiture of deposits in respect of a "rent to own" occupancy agreement in the residential tenancy context. The tenant, who was self-represented on the appeal, arguably failed to properly exercise his option to purchase the property in accordance with the terms of the notice provisions in the agreement and, as a result, risked losing $35,000 in deposits. The owner/landlord brought an application for a declaration that occupancy agreement was null and void, and that the deposits paid had been forfeited. The landlord also sought a writ of possession to evict the tenant and his family.

The application judge found that the notice provisions to exercise the option contained in the occupancy agreement were ambiguous and that the tenant had substantially complied with them, and therefore had validly exercised the option to purchase the property. However, applying the common law of contract and the law of relief from forfeiture, the Court of Appeal reversed this decision, finding that the option to purchase had not been properly exercised. The Court only granted relief from forfeiture in respect of $2,625 of the total of $35,000 in deposits paid. There would appear to be no legislative protection of residential tenants who enter into "rent to own" agreements.

Regarding the landlord's request for a writ of possession, the Court found that the landlord's attempt in the occupancy agreement to contract out of the Residential Tenancies Act was void. The tenant was therefore entitled to the protections of the Residential Tenancies Act, and the Court refused to issue a writ of possession to the landlord. That aspect of the case was referred to the Landlord and Tenant Board, which has exclusive jurisdiction to deal with residential tenancies.

It seems to me that these types of "rent to own" agreements in the residential tenancy context have the potential to be predatory and to be open to abuse, particularly in the current economic environment in which the barrier to first-time home ownership is so high. Perhaps it would be advisable for the legislature to consider regulating the terms of such agreements, whether by way of amendments to the Residential Tenancies Act, the Consumer Protection Act or the introduction of some new piece of legislation.

Other topics covered this week included family law (marriage contracts and access/contempt), the enforcement of settlements, and vexatious litigants.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Jonas v Pacitto, 2020 ONCA 727

Keywords: Family Law, Marriage Contracts, Setting Aside ,Spousal Support, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Family Law Act, R.S.O. 1990, c. F.3, s. 34(4), Spousal Support Guidelines, s.6, Federal Child Support Guidelines, SOR/97-175, s.19(1)(e), Dougherty v. Dougherty, 2008 ONCA 302, Miglin v. Miglin, 2003 SCC 24, Scheel v. Henkelman (2001), 52 O.R. (3d) 1 (C.A.), Rados v. Rados, 2019 ONCA 627, Ballanger v. Ballanger, 2020 ONCA 626, Slongo v. Slongo, 2017 ONCA 272

Kearns v Canadian Tire Corporation, 2020 ONCA 709

Keywords: Contracts, , Interpretation, Settlements, Consensus Ad Idem, Unilateral Mistake, Fraud, Wrongful Dismissal, Employment Law, Wrongful Dismissal, Civil Procedure, Summary Judgment, Rules of Civil Procedure, Rules 20.04(2.1) and (2.2), Oliveri v. Sherman, 2007 ONCA 491, Alampi v. Swartz (1964), 43 D.L.R. (2d) 11 (Ont. C.A.), Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

L v Ontario Civilian Police Commission, 2020 ONCA 720

Keywords: Civil Procedure, Vexatious Litigants, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1, Gao v Ontario (workplace Safety and Insurance Board), 2014 ONSC 6974, Scaduto v The Law Society of Upper Canada, 2015 ONCA 0733, R v Cunningham, 2010 SCC 10, R v 974649 Ontario Inc., 2001 SCC 81, Jonsson v Lymer, 2020 ABCA 167

Gagnon v Martyniuk, 2020 ONCA 708

Keywords: Family Law, Custody and Access, Civil Procedure, Contempt, Fresh Evidence, Family Law Rules, O. Reg 114/99, r.31(5), Les Services aux Enfants et Adultes de Prescott-Russell v. N.G. (2006), 82 O.R. (3d) 669 (C.A.), Godard v. Godard, 2015 ONCA 568, Hefkey v. Hefkey, 2013 ONCA 44

Jesan Real Estate Ltd. v Doyle, 2020 ONCA 714

Keywords: Contracts, Interpretation, Standard of Review, Real Property, Residential Tenancies, Occupancy Agreements, Rent to Own, Options to Purchase, Sufficiency of Notice, Bilateral Contracts, Substantial Non-Performance, Unilateral Contracts, Strict Performance, Time of the Essence, Deposits, Relief from Forfeiture, Unconscionability, Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 3(1), s. 4, Sail Labrador Ltd. v. Navimar Corp., [1999] 1 S.C.R. 265, Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, Fuller v. Aphria Inc., 2020 ONCA 403, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517, leave to appeal to S.C.C. refused, 38247, Ju v. Tahmasebi, 2020 ONCA 383, Azzarello v. Shawqi, 2019 ONCA 820, Stockloser v. Johnson, [1954] 1 Q.B. 476 (Eng. C.A.), Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282, Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468, leave to appeal refused, [2010] S.C.C.A. No. 369

Short Civil Decisions

Jog v Bank of Montreal, 2020 ONCA 721

Keywords: Civil Procedure, Summary Judgment, Procedural Fairness, Self-Represented Litigants

Central Lumber Limited v Gentile, 2020 ONCA 719

Keywords: Contracts, Construction Law, Breach of Trust, Costs, Construction Lien Act; R.S.O. 1990, c. C.30, s. 8 and s. 13

Jay-Pee Drycleaners Inc. v 2321324 Ontario Inc., 2020 ONCA 711

Keywords: Civil Procedure, Appeals, Extension of Time

CIVIL DECISIONS

Jonas v Pacitto, 2020 ONCA 727

[Hourigan, Trotter and Jamal JJ.A.]

Counsel:

M. Tubie, for the appellant

B. Tseitlin, for the respondent

Keywords: Family Law, Marriage Contracts, Setting Aside ,Spousal Support, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Family Law Act, R.S.O. 1990, c. F.3, s. 34(4), Spousal Support Guidelines, s.6, Federal Child Support Guidelines, SOR/97-175, s.19(1)(e), Dougherty v. Dougherty, 2008 ONCA 302, Miglin v. Miglin, 2003 SCC 24, Scheel v. Henkelman (2001), 52 O.R. (3d) 1 (C.A.), Rados v. Rados, 2019 ONCA 627, Ballanger v. Ballanger, 2020 ONCA 626, Slongo v. Slongo, 2017 ONCA 272

facts:

The parties married in 2003 and separated in 2016. Prior to their marriage, they executed a Marriage Contract (the "Contract") which provided that, upon dissolution of the marriage, neither party would be entitled to the property of the other, and the appellant waived any right to claim spousal support.

At trial, the parties provided different versions of how the Contract came into existence. The appellant contested the validity of the Contract on the basis that she was vulnerable as a result of a number of factors. The respondent gave a different account and could not recall discussing the Contract with the appellant. He testified that he advised the appellant to get legal advice and to have the Contract translated and signed.

Based on supporting documentation relating to the execution of the Contract, the trial judge determined that the Contract was valid and binding as it applied to the division of property. However, he found that the appellant's financial circumstances at the time of trial warranted some award of spousal support. He ordered minimal support based on the appellant's annual income of $15,564, and the respondent's declared annual income of $24,226 totalling a lump sum payment of $40,000. The appellant appealed, arguing that the Contract should have been invalidated in its entirety and that the trial judge failed to impute further income from the respondent's rental properties.

issues:

Did the trial judge err:

1. by failing to invalidate the Contract in its entirety?
2. in the amount of support awarded?

holding:

Appeal allowed in part.

reasoning:

1. Did the trial judge err by failing to invalidate the Contract in its entirety?

No. The appellant submitted that she had satisfied the requirements to set aside the Contract in its entirety. She contended that the trial judge failed to give sufficient weight to all relevant considerations. In particular, a combination of factors - including her lack of proficiency in the English language, the lack of independent legal advice, her economic dependency on the respondent, and the prospect of having to return to Hungary - created vulnerabilities that undermined the validity of the Contract. The appellant further submitted that the trial judge failed to take into account the fact that the Contract was not negotiated; instead, it was imposed upon her. Lastly, she contended that the trial judge placed too much weight on the execution documents pertaining to the Contract.

The Court held that the appellant's position could not succeed based on the trial judge's findings. He addressed each of the issues raised on appeal and the appellant failed to adduce sufficient evidence to satisfy the burden of proof required to set aside the Contract. Given the competing accounts between the appellant and the respondent, he was required to make credibility findings. The trial judge did not find that the appellant was vulnerable to the extent that it undermined the Contract she had entered into. He found that she made a number of choices, including not to seek legal advice. Although the appellant claimed that the Contract was imposed upon her, there was no evidence that she attempted to negotiate a more favourable arrangement.

The appellant submitted that the trial judge placed too much weight on the documents that pertained to the execution of the Contract. However, the Court found that this amounted to a...