Court Of Appeal Summaries (November 30 ' December 4, 2020)

• Published date: 09 December 2020
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employee Benefits & Compensation, Employee Rights/ Labour Relations, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of November 30, 2020.

In Zoutman v. Graham, another anti-SLAPP, the Court agreed with the motion judge that the appellant's delay of more than 6 months in bringing the motion (after the plaintiff had brought a motion for summary judgment) was fatal to the anti-SLAPP motion, as it subverted the intent and purpose of s. 137.1 of the Courts of Justice Act. The Court also pointed out that where the defendant denies making the allegedly defamatory statements, an anti-SLAPP motion is unavailable to them.

Other topics included rescission as a result of contractual misrepresentation in a residential real estate transaction, jurisdiction in the labour law context, and stay pending appeal.

Wishing our readers an enjoyable weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Table of Contents

Civil Decisions

Issa v Wilson, 2020 ONCA 0756

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Material Misrepresentations, Remedies, Rescission, Panzer v Zeifman et al. (1978), 20 OR (2d) 502 (CA), Beer v Townsgate I Limited (1997), 36 OR (3d) 136 (CA)

Nelson v Ontario, 2020 ONCA 751

Keywords: Labour Law, Arbitrations, Jurisdiction, Human Rights, Workplace Discrimination and Harassment, Human Rights Code, R.S.O. 1990, c. H.19, Employment Standards Act, S.O. 2000, c. 41, Labour Relations Act, 1995, S.O. 1995, Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, Naraine v. Ford Motor Co. of Canada (2001), 209 D.L.R. (4th) 465 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 69, Rivers v. Waterloo Regional Police Services Board, 2018 ONSC 4307, aff'd, 2019 ONCA 267, leave to appeal to SCC refused, 38707, Jaffer v. York University, 2010 ONCA 654, Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (OPSEU), 2003 SCC 42.

Bowles v Al Mulla Group, 2020 ONCA 761

Keywords: Conflict of Laws, Civil Procedure, Jurisdiction, Real and Substantial Connection, Forum of Necessity Doctrine, Van Breda v. Village Resorts Limited, 2010 ONCA 84, Ibrahim v. Robinson, 2015 ONCA 21, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Arsenault v. Nunavut, 2016 ONCA 207, West Van Inc. v. Daisley, 2014 ONCA 232, Forsythe v. Westfall, 2015 ONCA 810, Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423.

Kawartha Capital Corp. v 1723766 Ontario Limited, 2020 ONCA 763

Keywords: Contracts, Settlements, Releases, Defences, Economic Duress, Construction Liens, Civil Procedure, Summary Judgment, Genuine Issue Requiring Trial, Techform Products Ltd. v. Wolda (2001), 56 O.R. (3d) 1 (C.A.), leave to appeal refused, [2001] S.C.C.A. No. 603.

Grasshopper Solar Corporation v Independent Electricity System Operator, 2020 ONCA 769

Keywords: Civil Procedure, Stay Pending Appeal, Serious Question, Irreparable Harm, Balance of Convenience, Contracts, Interpretation, Supreme Court Act, R.S.C. 1985, c. S-26, ss. 40(1), 65.1, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Donovan v. Sherman Estate, 2019 ONCA 465.

Zoutman v Graham, 2020 ONCA 767

Keywords: Torts, Defamation, Internet Libel, Civil Procedure, Anti-SLAPP, Summary Judgment, Courts of Justice Act, s. 137.1, Gaskin v. Retail Credit Co., [1965] 2 S.C.R. 297, Crookes v. Newton, 2011 SCC 47, Labourers' International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, Grant v. Torstar Corp., 2009 SCC 61.

Short Civil Decisions

Brampton (City) v Elbasiouni, 2020 ONCA 0758

Keywords: Civil Procedure, Adjournments, Parties Under Disability, Litigation Guardians

Ontario (Funeral, Burial and Cremation Services Act, 2002, (Registrar) v 1868653 Ontario Inc. (Newcastle Funeral Home Ltd.), 2020 ONCA 0771

Keywords: Administrative Law, Licence Appeal Tribunal, Licencing, Funeral and Cremation Licenses, Funeral, Burial and Cremation Services Act, SO 2002, c. 33, s. 14(1)(d)(ii)

CIVIL DECISIONS

Issa v Wilson, 2020 ONCA 0756

[MacPherson, Zarnett and Jamal JJ.A.]

Counsel:

H. Engell, for the appellants

H.L. Shankman, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Material Misrepresentations, Remedies, Rescission, Panzer v Zeifman et al. (1978), 20 OR (2d) 502 (CA), Beer v Townsgate I Limited (1997), 36 OR (3d) 136 (CA)

facts:

The respondent was a 26 year old first time home buyer and was looking for a place to live with his parents and siblings. He retained one of the appellants to act as his real estate agent. Both the agent and the owner of the property made several representations to the respondent that the home was 2,000 square feet or larger. The agent relied on the MLS property listing and never verified the measurements himself, which he admitted at trial was negligent on his part.

The respondent inspected the home on multiple occasions. Prior to closing, the respondent obtained an appraisal for his mortgage application and found out the property was only 1,450 square feet. He immediately decided not to proceed with the purchase and sought a declaration that the purchase agreement was null and void and that his deposit should be returned. On hearing the action, the trial judge found in favour of the respondent, holding that despite his opportunities to inspect the property, his expectation that the property was the size represented to him on multiple occasions was not overridden.

The applicant vendor appealed.

issue:

Did the trial judge err in finding that the respondent's inspection of the property did not displace his reliance on the representations?

holding:

Appeal dismissed.

reasoning:

No. The proposition that where a purchaser inspects a property, their reliance on a misrepresentation will be displaced is not absolute. Where the totality of the facts would make the strict application of the proposition unfair, it has not governed.

Rescission of a contract is available as a remedy where the defendant made a false statement that was material or induced the plaintiff to enter into a contract. The trial judge concluded that the misrepresentation as to the size of the property was material and the Court of Appeal saw no reason to question this finding. The plaintiff was explicitly told on multiple occasions, and by persons who would or should have intimate knowledge of the true size, that the property was over 2,000 sq. ft. The discrepancy between the representation and actually size varied from 27-42% depending on the source of information. This difference was substantial. Further, the respondent remained ready to close until the moment he discovered the misrepresentation and immediately communicated his intention not to close on finding out the true size of the home. The trial judge did not err in finding that the respondent's age and inexperience were relevant contextual factors to understanding his reliance on the misrepresentations.

Nelson v Ontario, 2020 ONCA 751

[Hoy, Brown and Thorburn JJ.A.]

Counsel:

K. Agarwal for the appellant, H. N.

T. Curry, R. Jones and D. Contractor for the respondent, Her Majesty the Queen in Right of Ontario

K. McDonald and G. Philipupillai for the respondent, Association of Management, Administrative and Professional Crown Employees of Ontario

Keywords: Labour Law, Arbitrations, Jurisdiction, Human Rights, Workplace Discrimination and Harassment, Human Rights Code, R.S.O. 1990, c. H.19, Employment Standards Act, S.O. 2000, c. 41, Labour Relations Act, 1995, S.O. 1995, Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, Naraine v. Ford Motor Co. of Canada (2001), 209 D.L.R. (4th) 465 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 69, Rivers v. Waterloo Regional Police Services Board, 2018 ONSC 4307, aff'd, 2019 ONCA 267, leave to appeal to SCC refused, 38707, Jaffer v. York University, 2010 ONCA 654, Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (OPSEU), 2003 SCC 42.

facts:

The appellant in this case is an employee of the Ontario Public Service ("OPS") and a member of the Association of Management, Administrative and Professional Crown Employees of Ontario (the "union"). The appellant's relationship with her employer is governed by a collective agreement between the union and the Crown. Article 2 of the collective agreement prohibits discrimination based on sex, disability, race, and colour, among other things. The collective agreement also provides for a comprehensive grievance procedure, including binding arbitration before a labour arbitrator, the Grievance Settlement Board.

In November 2011, pursuant to the collective agreement, the union initiated several grievances on the appellant's behalf asserting discrimination based on sex, gender, disability, race, including anti-Black racism, and harassment by her managers and co-workers in the OPS. The union alleged breaches of the collective agreement, the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") and the Employment Standards Act, S.O. 2000, c. 41. Independently of the union, the appellant also...