COURT OF APPEAL SUMMARIES (December 14 ' December 18, 2020)

• Published date: 23 December 2020
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Charges, Mortgages, Indemnities, Financial Services, Employee Benefits & Compensation, Court Procedure, Trials & Appeals & Compensation, Securities
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

Following are our summaries of the past week's civil decisions of the Court of Appeal for Ontario. The Court delivered a flurry of year-end decisions ahead of the holidays.

In Duggan v Durham Region Non-Profit Housing Corporation, the Court overruled the Divisional Court and found that Rule 6.1.01 of the Rules of Civil Procedure ousts the court's inherent jurisdiction to bifurcate a trial without the consent of the parties. The decision involves a very detailed discussion of the law as it existed before this rule was amended in 2008, and the important role that stare decisis plays in our legal system.

In Louis v. Poitras, a jury notice in a personal injury case was struck so that the trial could proceed without a jury in light of the COVID-19 pandemic. Jury trials have been suspended and the matter is seven years old. The Divisional Court set aside the motion judge's order. The Court of Appeal stayed the Divisional Court's order. While a judge should not easily strike a jury notice, once the discretion to do so is exercised, such a decision should not be lightly interfered with lightly, particularly in the current context of a pandemic. The Court was very concerned with addressing delay in the court system caused by the pandemic. The judge-alone trial of the matter is scheduled for February 2021, and the Court will hear the motion for leave to appeal and the appeal together on an expedited basis, presumably in time to allow the trial to proceed as scheduled in the event that the appeal is allowed.

In Hoang v. Mann Engineering Ltd., a judgment-debtor sued a judgment-creditor after he was fired by his employer following garnishment proceedings taken by the creditor against the debtor that involved the employer. The Court unsurprisingly found that a judgment-creditor does not owe a duty of care to a judgment-debtor in those circumstances.

Other topics covered this past week included family law (spousal support in a high income case and quashing appeal for non-compliance with a support order), stay pending appeal, professional negligence (lawyers and accountants), constructive dismissal in a sale of business context, receiverships in the securities law and mortgage enforcement contexts, and amending pleadings to allege a new cause of action mid-trial.

We will not be releasing summaries next week. Accordingly, I would like to wish everyone a happy and healthy holiday season and a Merry Christmas to everyone celebrating.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Aluma Systems Inc. v Resolute FP Canada Inc. , 2020 ONCA 0792

Keywords:Breach of Contract, Damages

Bielanski v Mundenchira, 2020 ONCA 0811

Keywords: Torts, Professional Negligence, Solicitors, Real Property, Defect in Title, Severance, Damages, Housen v. Nikolaisen, 2002 SCC 33

Duggan v Durham Region Non-Profit Housing Corporation, 2020 ONCA 0788

Keywords: Civil Procedure, Bifurcation of Proceedings, Jury Trials, Non-Jury Trials, Inherent Jurisdiction, Statutory Interpretation, Standard of Review, Stare Decisis, Ratio Decidendi, Obiter Dictum, Rules of Civil Procedure, Rule 6.1.01, Courts of Justice Act, ss. 138, Bondy-Rafael v Potrebic, 2015 ONSC 3655 (Div. Ct.), leave to appeal to Ont. CA refused, Hyrniak v Mauldin, 2014 SCC 7, TELUS Communications Inc. v Wellman, 2019 SCC 19, Bell ExpressVu Ltd. Partnership v Rex, 2002 SCC 42, Kovach (Litigation Guardian of) v Kovach, 2010 ONCA 126, leave to appeal refused, [2010] SCCA No. 165, Elcano Acceptance Ltd. v Richmond, Richmond, Stambler & Mills, 55 OR (2d) 56 (CA), Baxter Student Housing Ltd. v College Housing Co-operative Ltd., [1976] 2 SCR 475, Civil Justice Reform Project: Summary of Findings & Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007) ("Osborne Report"), R v Rose, [1998] 3 SCR 262, Carter v Canada (Attorney General), 2015 SCC 5, R v Puddicombe, 2013 ONCA 506, R v Henry, 2005 SCC 76

Louis v Poitras, 2020 ONCA 0815

Keywords: Civil Procedure, Jury Trials, Striking Jury Notices, Leave to Appeal, Stay Pending Leave to Appeal, COVID-19, Insurance Act, R.S.O. 1990, c. I.8, Courts of Justice Act, R.S.O. 1990, c. C.43, Rules of Civil Procedure, rr. 61.03.1 and 63.02(1)(b), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Sault Dock Co. Ltd. v. Sault Ste. Marie (City) (1972), [1973] 2 O.R. 479 (C.A.), Cowles v. Balac (2006), 83 O.R. (3d) 660 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 496, Kostopoulos v. Jesshope (1985), 50 O.R. (2d) 54 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 93, Higashi v. Chiarot, 2020 ONSC 5523, Belton v. Spencer, 2020 ONSC 5327, Jiang v. Toronto Transit Commission, 2020 ONSC 5727, MacDougall v. Sisley, 2020 ONSC 6632, Girao v. Cunningham, 2020 ONCA 260, R. v. Jordan, 2016 SCC 27, Hryniak v. Mauldin, 2014 SCC 7, MacLeod v. Canadian Road Management Company, 2018 ONSC 2186

Hoang v Mann Engineering, 2020 ONCA 0808

Keywords: Torts, Negligence, Duty of Care, Foreseeability, Garnishment, Abuse of Process, 168872 Ont. Inc. v. Maple Leaf Foods Inc., 2020 SCC 36, Cooper v. Hobart, 2001 SCC 79, Rankin v. J.J., 2018 SCC 19

Ontario Securities Commission v Money Gate Mortgage Investment Corporation, 2020 ONCA 0812

Keywords: Securities Law, Unregistered Dealing in Securities, Bankruptcy and Insolvency, Receiverships, Priority, Real Property, Mortgages, Validity, Civil Procedure, Advice and Directions, Summary Judgment, Partial Summary Judgment, Securities Act, R.S.O. 1990, c. S.5, ss. 129 (1) and (2), Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, Land Titles Act, R.S.O. 1990, c. L.5, ss. 78 (4) and (4.1), Polywheels Inc. (Re), 2010 ONSC 1265, 1168760 Ontario Inc. v. 6706037 Canada Inc., 2019 ONSC 4702 (Div. Ct.), Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, Re Urbancorp Cumberland 2 GP Inc., 2017 ONSC 7649, Hryniak v. Mauldin, 2014 SCC 7

Plese v Herjavec, 2020 ONCA 0810

Keywords: Family Law, Spousal Support, Compensatory Support, Needs-Based Support, Standard Of Review, Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), s. 15.2, Spousal Support Advisory Guidelines, Halliwell v. Halliwell, 2017 ONCA 349, Ballanger v. Ballanger, 2020 ONCA 626, Hickey. Hickey, [1999] 2 S.C.R. 518, Miglin v. Miglin, 2003 SCC 24

7084421 Canada Ltd. v Vinczer, 2020 ONCA 0829

Keywords: Contracts, Debtor-Creditor, Mortgages, Civil Procedure, Default Judgment, Setting Aside, Stay Pending Appeal, Jurisdiction, Self-Represented Corporations, Security for Costs, Writs of Possession, Courts of Justice Act, s. 110, Rules of Civil Procedure, Rules 15.01(2), 60.1(2), 63.01(1), 63.02(1), 63.03(5)

Abu-Saud v Abu-Saud, 2020 ONCA 0824

Keywords: Family Law, Spousal Support, Civil Procedure, Quashing Appeals, Orders, Non-Compliance, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(3), Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, Family Law Rules, O. Reg. 114/99, Rules 1(8)(e), 2(2), 2(3)(b), Dickie v. Dickie, 2007 SCC 8, Brophy v. Brophy (2004), 180 O.A.C. 389 (C.A.), Siddiqui v. Anwar, 2018 ONCA 965, Cosentino v. Cosentino, 2017 ONCA 593

C & K Mortgage Services Inc. v Camilla Court Homes Inc., 2020 ONCA 0817

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Equitable Interests, Mortgages, Priority, Bankruptcy and Insolvency, Receiverships, Armadale Properties Ltd. v. 700 King Street (1997) Ltd. (2001), 25 CBR (4th) 198 (Ont SC)

McGuinty v 1845035 Ontario Inc. (McGuinty Funeral Home), 2020 ONCA 0816

Keywords: Contracts, Employment, Sale of Business, Constructive Dismissal, Fundamental Breach, Condonation,, Damages, Potter v New Brunswick (Legal Aid Services Commission), 2015 SCC 10, Persaud v Telus Corporation, 2017 ONCA 479, Belton v Liberty Insurance Co. of Canada (2004), 72 OR (3d) 81 (CA), R v Lohrer, 2004 SCC 80, Martin v Goldfarb (1990), 41 OR (3d) 161 (CA), leave to appeal refused, [1998] SCCA No. 516, Ruston v Keddco Mfg. (2011) Ltd., 2018 ONSC 2919, aff'd 2019 ONCA 0125

Polla v Croatian (Toronto) Credit Union Limited, 2020 ONCA 0818

Keywords: Torts, Negligence, Misrepresentation, Civil Procedure, Amending Pleadings, New Causes of Action, Irreparable Prejudice, Limitation Periods, Standard of Review, Limitations Act, 2002, s. 4, Credit Unions and Caisses Populaires Act, 1994, S.O. 1994, c. 11, s. 82, Rules of Civil Procedure, Rule 26.01, Blueberry River First Nation v. Lair, 2020 BCCA 76, Strathan Corporation v. Khan, 2019 ONCA 418, Longo v. MacLaren Art Centre, 2014 ONCA 526, Tuffnail v. Meekes, 2020 ONCA 340, Klassen v. Beausoleil, 2019 ONCA 407, 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, Ivany v. Financiere Telco Inc., 2011 ONSC 2785, Rabb Construction Ltd. v. MacEwen Petroleum Inc., 2018 ONCA 170, P.M. Perell & J.W. Morden, The Law of Civil Procedure in Ontario, 4^th ed. (Toronto: LexisNexis Canada, 2020)

Short Civil Decisions

JGB Collateral v Rochon, 2020 ONCA 0804

Keywords: Contracts, Real Property, Mortgages, Farmers, Civil Procedure, Summary Judgment, Farm Debt Mediation Act, S. C. 1997, c. 21, ss. 21, 5

Murray v 8165246 Canada Inc., 2020 ONCA 0832

Keywords: Civil Procedure, Appeals, Fresh Evidence, Litigation Privilege, Directions, Facta, Appeal Management Conferences, "Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario", (March 1, 2017), s. 7.2.6

CIVIL DECISIONS

Aluma Systems Inc. v Resolute FP Canada Inc., 2020 ONCA 0792

[Strathy C.J.O., Rouleau and Coroza JJ.A.]

Counsel:

C. Willson for the appellant, Aluma Systems Inc.

R.W. Johansen for the respondent, Resolute FP Canada Inc.

Keywords: Breach of Contract, Damages

facts:

The appellant (plaintiff) is a seller and lessor of scaffolding equipment. The respondent (defendant) operates a pulp and paper mill. The appellant rented scaffolding equipment and...