Court Of Appeal Summaries (December 21 ' December 31, 2020)

• Published date: 04 January 2021
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Government, Public Sector, Litigation, Mediation & Arbitration, Charges, Mortgages, Indemnities, Financial Services, Contracts and Commercial Law, Court Procedure, Trials & Appeals & Compensation, Human Rights
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Below are our last summaries of 2020, which include all civil decisions released by the Court of Appeal for Ontario for the weeks of December 21 and 28, 2020.

Topics covered included human rights in the employment context, the refusal to enforce a foreign letter of request in the family law context, a breach of contract decision in the real estate development context issued by the Court in French (summarized by us in English), interveners in the administrative law context (ancillary fees at Ontario colleges and universities) and a decision in respect of the administration of a claims process in a receivership.

On another note, please mark down April 27, 2021, from 5:30-7:45pm in your calendars for our fifth annual "Top Appeals" CLE, which will take place via Zoom again. I am very pleased to announce that Justice Benjamin Zarnett will be co-chairing the event with me and Chloe Snider of Dentons. We are in the process of reviewing and deciding on the top appeals of the year, so if anyone has any suggestions, please let us know. In the meantime, please register for the program by visiting the OBA's website.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Longueépée v. University of Waterloo, 2020 ONCA 830

Keywords:Administrative Law, Judicial Review, Standard of Review, Reasonableness, Patent Unreasonableness, Human Rights, Discrimination, Duty to Accommodate, Undue Hardship, Human Rights Code, R.S.O. 1990, c. H.19, s. 34, s. 11, s. 45.8, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Dunsmuir v. New Brunswick, 2008 SCC 9, British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Groia v. Law Society of Upper Canada, 2016 ONCA 471, Ball v. McAulay, 2020 ONCA 481, British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3. S.C.R. 3, Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15

Glegg v. Glass, 2020 ONCA 833

Keywords: Family Law, Custody, Torts, Intentional Interference with Custodial Rights, Intentional Infliction of Emotional Distress, Civil Procedure, Private International Law, Conflict of Laws, Documentary Discovery, Foreign Letters of Request/Letters Rogatory, Enforcement, Solicitor-Client Privilege, Litigation Privilege, Public Policy, Rules of Civil Procedure, Rule 38.09.1(1), Blank v. Canada (Minister of Justice), 2006 SCC 39, R. v. Zingre, [1981] 2 S.C.R. 392, Frame v. Smith, [1987] 2 S.C.R. 99, Maranda v. Richer, 2003 SCC 67, Desc'teaux et al. v. Mierzwinksi, [1982] 1 S.C.R. 860, Gulf Oil Corporation v. Gulf Canada Ltd. et al., [1980] 2 S.C.R. 39, Treat America Ltd. v. Nestlé Canada Inc., 2011 ONCA 560, R.G. v. K.G., 2017 ONCA 108, Perlmutter v. Smith, 2020 ONCA 570, Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264, Young v. Tyco International of Canada Ltd., 2008 ONCA 709, Presbyterian Church of Sudan v. Taylor, (2006), 275 D.L.R. (4th) 512 (Ont. C.A.), France (Republic) v. De Havilland Aircraft of Canada Ltd., (1991), 3 O.R. (3d) 705 (C.A.), O.G. v. R.G., 2017 ONSC 6490, Re Friction Division Products, Inc. and E.I. Du Pont de Nemours & Co. Inc. et al. (No. 2), (1986), 56 O.R. (2d) 722 (H.C.), Fecht v. Deloitte & Touche, (1996), 28 O.R. (3d) 188 (Gen. Div.), aff'd (1997) 32 O.R. (3d) 417 (C.A.), Re Westinghouse Electric Corporation and Duquesne Light Co. (1977), 16 O.R. (2d) 273 (H.C.)

1750738 Ontario Inc. c. 1750714 Ontario Inc., 2020 ONCA 836

Keywords: Contracts, Real Property, Interpretation, Oral Contracts, Essential Terms, Part Performance, Exclusion Clauses, Corporations, Shareholder Agreements, Adoption of Pre-Incorporation Contracts, Remedies, Specific Performance, Civil Procedure, Costs, Offers to Settle, Ontario Business Corporations Act, RSO 1990 c B.16, s. 21(2), Rules of Civil Procedure, Rule 49.10, Modern Paving Ltd v. Donovan Homes Ltd., 2011 NLCA 39, Bawitko Investments Ltd v. Kernels Popcorn Ltd. (1991), 79 DLR (4th) 97 (Ont CA), Credit Security Insurance Agency Inc v. CIBC Mortgages Inc. (2006), 268 DLR (4th) 725 (Ont SC), aff'd 2007 ONCA 287, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Matic et al. v. Waldner et al., 2016 MBCA 60, UBS Securities Canada Inc v. Sands Brothers Canada Ltd, 2009 ONCA 328, Singh v. Trump, 2016 ONCA 747, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, DLG & Associates v. Minto Properties Inc., 2015 ONCA 705, Douez v. Facebook Inc., 2017 SCC 33, Matthew Brady Self Storage Corporation v. InStorage Limited Partnership, 2014 ONCA 858, de Montigny v. Brossard (Succession), 2010 SCC 51, Beswick v. Beswick, [1968] AC 58 (HL), Gasparini et al. v. Gasparini et al. (1978), 20 OR (2nd) 113 (Ont CA), Smith v. Inco Limited, 2013 ONCA 724, Seaton v. Bolton, 2007 CanLII 46250 (Ont SC), Niagara Structural Steel (St Catharines) Ltd. v. WD Laflamme Ltd., 1987 CanLII 4149 (Ont CA), GHL Fridman, The Law of Contract in Canada, 6th ed (Toronto, Thompson Reuters Canada Ltd, 2011)

Canadian Federation of Students v. Ontario (Colleges and Universities), 2020 ONCA 842

Keywords: Administrative Law, Colleges and Universities, Ancillary Fees, Civil Procedure, Interveners, Friends of the Court, Rules of Civil Procedure, Rule 13.02, Canadian Charter of Rights and Freedoms, s. 2(b), Canadian Federation of Students v. Ontario, 2019 ONSC 6658, Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47

Manthadi v. ASCO Manufacturing, 2020 ONCA 839

Keywords: Contracts, Solicitor and Client, Solicitor's Liens, Solicitors' Act, s. 34(1), Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 7(2) and (3), Weenen v. Biadi, 2018 ONCA 288, Dalcor Inc. v. Unimac Group Ltd., et al, 2017 ONSC 945, Foley v. Davis, 1996 CanLII 1145 (Ont. C.A.)

Comfort Capital Inc. v. Yeretsian, 2020 ONCA 846

Keywords: Bankruptcy and Insolvency, Receiverships, Claims Process, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 243(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101, Coast Capital Savings Credit Union v. Symphony Development Corp., 2011 BCSC 333, DBDC Spadina Ltd. v. Walton, 2015 ONSC 5608, Lilydale Cooperative Limited v. Meyn Canada Inc., 2019 ONCA 761

Short Civil Decisions

1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843

Keywords: Civil Procedure, Appeals, Palpable and Overriding Error, Costs, Rules of Civil Procedure, Rule 29

Krieser v. Garber, 2020 ONCA 840

Keywords: Civil Procedure, Appeals, Motions, Costs

Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 849

Keywords: Costs Endorsement

CIVIL DECISIONS

Longueépée v. University of Waterloo, 2020 ONCA 830

[Strathy C.J.O., Lauwers and van Rensburg JJ.A.]

Counsel:

F. Cesario and A.P. Cohen, for the appellant

D. Baker and L. Lepine, for the respondent R.L.

B.A. Blumenthal and J. Tam, for the respondent Human Rights Tribunal of Ontario

Keywords: Administrative Law, Judicial Review, Standard of Review, Reasonableness, Patent Unreasonableness, Human Rights, Discrimination, Duty to Accommodate, Undue Hardship, Human Rights Code, R.S.O. 1990, c. H.19, s. 34, s. 11, s. 45.8, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Dunsmuir v. New Brunswick, 2008 SCC 9, British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Groia v. Law Society of Upper Canada, 2016 ONCA 471, Ball v. McAulay, 2020 ONCA 481, British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3. S.C.R. 3, Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15

facts:

The individual respondent brought an application to the Human Rights Tribunal of Ontario (the "HRTO") alleging discrimination under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") against the University of Waterloo (the "University"). Specifically, the respondent alleged that the University discriminated against him on the basis of his disabilities by refusing him admission.

Several years before applying to the University, the respondent had attended Dalhousie University ("Dalhousie"), where he achieved grades well below the minimum threshold for admission to the University as a transfer student. However, satisfied that the respondent's Dalhousie grades were rendered at a time when the respondent had undiagnosed disabilities, the University convened an Admissions Committee to give special consideration to his application. The Admissions Committee was provided with an application package consisting of academic transcripts, information about the respondent's volunteer work, medical reports, and reference letters. Nevertheless, the Admissions Committee ultimately concluded that the application did not demonstrate the respondent's ability to succeed at university, and opted to refuse admission.

When the respondent brought an application to the HRTO, the Vice Chair of the HRTO concluded that the respondent did in fact have a "disability" within the meaning of the Code, and that the respondent was discriminated against in the admissions process. Having made a finding of prima facie discrimination, the Vice Chair then identified the issue to be determined as whether the University accommodated the respondent in the admissions process to the point of undue hardship, pursuant to s. 11 of the Code.

The Vice Chair agreed with the respondent's submission that the duty to accommodate has both procedural and substantive components. The Vice Chair concluded that the University met its procedural duty to accommodate by considering the...