Court Of Appeal Summaries (November 16 ' November 20, 2020)

• Published date: 24 November 2020
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Criminal Law, Family and Matrimonial, Charges, Mortgages, Indemnities, Financial Services, Family Law, Court Procedure, Trials & Appeals & Compensation, Libel & Defamation, Crime, Civil Law
• 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 16, 2020.

Sokoloff v Tru-Path Occupational Therapy Services Ltd was another anti-SLAPP decision, perhaps the first by the Court since the Supreme Court's recent decision in Pointes Protection..

Skof v. Bordeleau considered the jurisdiction of the Superior Court in a claim by a former police officer against his former employer, and whether that jurisdiction was ousted by the collective bargaining agreement or by the Police Services Act (no in both cases).

Other topics covered this week included family law and stay pending appeal in a mortgage enforcement case.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

2257573 Ontario Inc. v. Furney, 2020 ONCA 742

Keywords: Civil Procedure, Summary Judgment, Stay Pending Appeal, Serious Issue to be Tried, Irreparable Harm, Balance of Convenience, Mortgages, Interest, Order for Possession, Power of Sale, Rules of Civil Procedure, RRO 1990, Reg 194, r 63.01(1), Criminal Code of Canada, RSC 1985, c C.46, s 347, RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, Wilfert v McCallum, 2017 ONCA 895, Starkman v Home Trust Company, 2015 ONCA 436, Circuit World Corporation v Lesperance (1997), 33 OR (3d) 674 (Ont CA), Centurion Farms Ltd v Citifinancial Canada Inc, 2013 ONCA 79, Manufacturers Life Co v Granada Investments Ltd (2001), 150 OAC 253 (Ont CA), Oak Orchard Developments Ltd v Iseman, [1987] OJ No 361 (Ont HC), Joseph E Roach, The Canadian Law of Mortgages, 3rd ed. (Toronto: LexisNexis, 2018)

Skof v. Bordeleau, 2020 ONCA 729

Keywords: Labour Law, Collective Agreements, Regulated Professions, Police, Civil Procedure, Striking Pleadings, Jurisdiction, Judicial Review, Remedies, Declaratory Relief, Injunctive Relief, Damages, Police Services Act, R.S.O. 1990, c. P. 15, s. 89, Judicial Review Procedure Act, s. 8, Rules of Civil Procedure, Rule 21.01(3)(a), TeleZone Inc. v. Canada (Attorney General), 2008 ONCA 892, aff'd 2010 SCC 62, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Piko v. Hudson's Bay Co. (1998), 167 D.L.R. (4th) 479 (Ont. C.A.), leave to appeal refused, [1999] S.C.C.A. No. 23, Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14

Sokoloff v Tru-Path Occupational Therapy Services Ltd, 2020 ONCA 0730

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Public Interest, Costs, Courts of Justice Act, ss. 137.1, 1704604 Ontario Ltd. v Pointes Protection Association, 2018 ONCA 0685, aff'd 2020 SCC 22, Grant v Torstar Corp., 2009 SCC 61, Platnick v. Bent, 2018 ONCA 0687, aff'd 2020 SCC 23, Hamilton v Open Window Bakery Ltd., 2004 SCC 9, Veneruzzo v Storey, 2018 ONCA 0688

Short Civil Decisions

Elguindy v. Elguindy, 2020 ONCA 739

Keywords: Family Law, Civil Procedure, Costs, Leave to Appeal, Courts of Justice Act, RSO 1990, c. C.43, s. 133(b), Brad-Jay Investments Limited v. Village Developments Limited, 218 O.A.C. 315 (C.A.)

Haley v Stepan Canada Inc., 2020 ONCA 0737

Keywords: Civil Procedure, Summary Judgment, Genuine Issue Requiring Trial, Evidence, Onus of Proof, Burden of Proof, Expert Evidence

J.D.M. v T.L.L.M., 2020 ONCA 734

Keywords: Family Law, Civil Procedure, Contempt Evidence, Standard of Proof

CIVIL DECISIONS

2257573 Ontario Inc. v. Furney, 2020 ONCA 742

[Jamal J.A. (Motions Judge)]

Counsel:

R.K. Watson, for the moving parties

H.W. Reininger, for the responding party

Keywords: Civil Procedure, Summary Judgment, Stay Pending Appeal, Serious Issue to be Tried, Irreparable Harm, Balance of Convenience, Mortgages, Interest, Order for Possession, Power of Sale, Rules of Civil Procedure, RRO 1990, Reg 194, r 63.01(1), Criminal Code of Canada, RSC 1985, c C.46, s 347, RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, Wilfert v McCallum, 2017 ONCA 895, Starkman v Home Trust Company, 2015 ONCA 436, Circuit World Corporation v Lesperance (1997), 33 OR (3d) 674 (Ont CA), Centurion Farms Ltd v Citifinancial Canada Inc, 2013 ONCA 79, Manufacturers Life Co v Granada Investments Ltd (2001), 150 OAC 253 (Ont CA), Oak Orchard Developments Ltd v Iseman, [1987] OJ No 361 (Ont HC), Joseph E Roach, The Canadian Law of Mortgages, 3rd ed. (Toronto: LexisNexis, 2018)

facts:

The appellants, experienced real estate investors, owned three properties in Niagara-on-the-Lake. In 2017, the appellants encountered financial difficulties and were introduced to the respondent, a mortgage lender, through an acquaintance investor to obtain short-term financing. This acquaintance owned property in Woodstock. The appellants negotiated several high-interest, short-term loans from the respondent ' totalling almost $900,000 ' secured by mortgages on the appellants' and acquaintance's properties. The appellants were represented by counsel on these transactions. Unable to obtain longer term financing, the appellants accumulated interest, other charges, and penalties on the mortgage loans with the respondent. The appellants defaulted on their loans and have not paid anything towards the mortgages to date.

In late 2017, the respondent sued the appellants for defaulting under the mortgage agreements. The respondent then moved for summary judgment, seeking orders for possession of all properties and repayment of the principal advanced, interest, and other penalties, fees and charges under the agreements. In response, the appellants claimed the respondent had breached an alleged oral agreement, under which the respondent agreed to discharge three executions against the properties. They also claimed the respondent failed to provide timely and accurate mortgage discharge statements and that, once the penalties, fees, and charges were included in the calculation of the effective annual interest rate, the mortgage loans involved a criminal rate of interest contrary to s. 347 of the Criminal Code. Finally, the appellants counterclaimed against the respondent, alleging that they suffered damages when the respondent unreasonably refused to discharge the executions against the Properties.

By order of October 14, 2020, the motion judge granted summary judgment in favour of the respondent for the amounts owing under the mortgage loans, and orders of possession on one property owned by the appellants and the property owned by their acquaintance. These properties were sold under power of sale. The appellants' claim that the respondent orally agreed to discharge three executions against the properties as part of refinancing arrangements was rejected. The motion...