Court Of Appeal Summaries (January 18 ' 22, 2021)

• Published date: 25 January 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Criminal Law, Family and Matrimonial, Family Law, Court Procedure, Trials & Appeals & Compensation, Professional Negligence, Libel & Defamation, Broadcasting: Film, TV & Radio, Securities, Franchising, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

This past week, the Court of Appeal for Ontario provided us with several substantive and interesting civil decisions.

The Court of Appeal released two related decisions in Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation. Subway sued the CBC and Trent University, which conducted DNA testing for the CBC, after the CBC broadcasted a widley publicized story that Subway's chicken sandwiches only contained 50% of actual chicken. Both decisions dealt with Anti-SLAPP provisions in s.137.1 of the Courts of Justice Act, which were recently considered by the Supreme Court of Canada companion decisions in 1704604 Ontario Ltd. v. Pointes Protection Association ("Pointes") and Bent v. Platnick ("Bent"). Both appeals were allowed.

In the first decision, the Court of Appeal found that the motion judge erred in reaching the conclusion that the claim by Subway against Trent University in negligence in its DNA testing methods did not arise from an expression that related to a matter of public interest and it was an error of law to view s. 137.1 as aimed at a limited category of torts like defamation. Further, the Court of Appeal noted that the motion judge did not have the benefit of the Pointes decision, which described the applicable standard as one that is more demanding than the one applicable on a motion to strike. In the result, the negligence claim against Trent was dismissed (a defamation claim against Trent remains).

In the second decision, the Court of Appeal found that the motion judge erred in law by applying the wrong test in deciding whether there were grounds to believe CBC had no valid defence, and assessing the claim as though he were the ultimate trier of fact, not a motion judge making a preliminary assessment. The Court of Appeal held that the motion judge erred in law in the manner in which he considered the harm the appellant likely suffered, and in his approach to weighing the public interest. The defamation claim against the CBC was revived and allowed to proceed.

In Kaynes v. BP p.l.c., the Court of Appeal dealt with one of numerous class proceedings commenced throughout Canada and the US, which arose from the Deepwater Horizon explosion in 2010, wherein one of the BP's oil rigs exploded in the Gulf of Mexico.The plaintiff's claims had been previously dismissed for various reasons, including being out of time. He brought yet another claim, reframing it in fraudulent misrepresentation in order to try to beat the limitation period. The Court dismissed the appeal, finding the newly framed claim was still statute-barred.

In Carroll v Toronto-Dominion Bank, the Court of Appeal dealt with another decision under rule 21.01 of the Rules of Civil Procedure, where it was found that the appellant, a former employee, lacked standing to bring the application. The appellant had initially sought multiple orders that would result in the disclosure, discovery, and redress for alleged financial irregularities and misconduct by TD relating to its role as Trustee of certain mutual funds. However, the Court of Appeal dismissed the appeal and upheld the motion judge's decision, finding that the appellant did not qualify for private interest or public interest standing.

Finally, in BMW Canada Inc. v. Autoport Limited the Court of Appeal addressed the proper test to employ in considering whether to make an order for the interim preservation of property that is evidence in litigation, pursuant to Rule 45.01 of the Rules of Civil Procedure. BMW sued Autoport for $175 million for damage to almost 3,000 new cars stored by Autoport that allegedly made them unsellable. BMW had conducted its testing and wished to destroy the vehicles. However, it had not provided Autoport with the results of its testing. The Court sided with the appeal judge, and disagreed with the master and Divisional Court in the result, who had permitted BMW to destroy the vehicles. The Court ordered BMW to hold onto the vehicles for 90 days while it provided Autoport with its testing results so that Autoport could determine what further testing of its own to conduct and which vehicles it wished to preserve and take custody of.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

BMW Canada Inc. v. Autoport Limited , 2021 ONCA 42

Keywords: Civil Procedure, Interim Preservation of Property, Evidence, Spoliation, Rules of Civil Procedure, Rules 45.01, 32.01, Taribo Holdings Ltd. v. Storage Access Technologies Inc., [2002] O.J. No. 3886 (S.C.), McDougall v. Black & Decker Canada Inc., 2008 ABCA 353

Carroll v Toronto-Dominion Bank , 2021 ONCA 38

Keywords: Equity, Trusts, Inherent Jurisdiction, Beneficiary Principle, Civil Procedure, Striking Pleadings, Standing, Private Interest Standing, Public Interest Standing, Rules of Civil Procedure, Rule 21.01, Crociani v. Crociani, [2014] UKPC 40, McLean v. Burns Philp Trustee Co. Pty. Ltd. (1985), 2 N.S.W.L.R. 637 (S.C.), MF Global UK Ltd. (In Special Administration), Re, [2013] EWHC 1655 (Ch.), Morice v. Bishop of Durham (1804), 32 E.R. 656 (Ch.), aff'd (1805) 32 E.R. 947 (Ch.), Campisi v. Ontario (Attorney General), 2018 ONCA 869, leave to appeal refused, [2019] S.C.C.A. No. 52., Landau v. Ontario (Attorney General), 2013 ONSC 6152, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, The Polish National Catholic Church of Canada v. Polish National Church, 2014 ONSC 4501, Air Canada v. M & L Travel Ltd., [1993] 3 S.C.R. 787, Donovan W.M. Waters, Q.C., Mark R. Gillen & Lionel D. Smith, eds., Waters' Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters, 2012)

Hilton v. Hilton , 2021 ONCA 29

Keywords: Family Law, Property, Matrimonial Home, Civil Procedure, Noting in Default, Uncontested Trial, Setting Aside, Fraud, Misrepresentation, Family Law Rules, O. Reg. 114/99, ss. 25(19), 25(19)(a), Ketelaars v. Ketelaars, 2011 ONCA 349, Gray v. Gray, 2017 ONCA 100

Kaynes v. BP p.l.c. , 2021 ONCA 36

Keywords: Securities Law, Misrepresentation, Fraudulent Misrepresentation, Civil Procedure, Striking Pleadings, Determination of Legal Issue, Limitations Periods, Discoverability, Limitations Act, 2002, s. 2(1), s. 4, s. 5(1)(a), Rules of Civil Procedure, Rule 21.01(1)(a), r. 25.06(1), r. 25.06(8), Securities Act, RSO 1990 c. S.5, s. 138.14, s. 138.3, Kaynes v BP, P.L.C., 2018 ONCA 337, Beardsley v. Ontario (2001), 57 OR (3d) 1 (CA), Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156, Lawless v Anderson, 2011 ONCA 102, Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320, leave to appeal refused, [2017] S.C.C.A. No. 246, Unisys Canada Inc. v. York Three Associates Inc. (2001), 150 O.A.C. 49 (C.A.), 1100997 Ontario Ltd. v. North Elgin Centre Inc., 2016 ONCA 848, Davidoff v. Sobeys Ontario, 2019 ONCA 684, Brozmanova v. Tarshis, 2018 ONCA 523, Justice Graeme Mew, Debra Rolph & Daniel Zacks, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016)

Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation , 2021 ONCA 25

Keywords: Torts, Defamation, Negligence, Pure Economic Loss, Anns/Cooper Test, Duty of Care, Proximity, Reasonable Foreseeability, Civil Procedure, Strategic Litigation Against Public Participation Suit (Anti-SLAPP), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Bent v. Platnick, 2020 SCC 23, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Bella v. Young, 2006 SCC 3, Cooper v. Hobart, 2001 SCC 79, Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, Shtaif v. Toronto Life Publishing Co. Ltd., 2013 ONCA 405, 1688782 Ontario Inc. v Maple Leaf Foods Inc., 2018 ONCA 407, Cleveland (Litigation Guardian of) v. Hamilton Health Sciences Corp., 2009 CanLII 70130, aff'd 2011 ONCA 244, Correia v. Canac Kitchens, 2008 ONCA 506, Bertin v. Kristofferson, 2000 CanLII 1109, (NB QB), rev'd 2001 NBCA 118, Neufville v. Sobers, 1983 CarswellOnt 2621 (Ont. H.C.), Lavender v. Miller Bernstein LLP, 2018 ONCA 729, leave to appeal refused, [2018] S.C.C.A. No. 488, Haskett v. Trans Union of Canada Inc., (2003), 63 O.R. (3d) 577 (C.A.), leave to appeal refused, [2003] S.C.C.A. No. 208, Green v. The Hospital for Sick Children, 2017 ONSC 6545, aff'd 2018 ONSC 7058 (Div. Ct.), Lowe v. Guarantee Co. of North America, (2005), 80 O.R. (3d) 222 (C.A.), Elliott v. Canadian Broadcasting Corp., (1993), 16 O.R. (3d) 677 (Gen. Div.), aff'd (1995), 25 O.R. (3d) 302 (C.A.), leave to appeal refused, [1995] S.C.C.A. No. 393, Avalon Rare Metals Inc. v. Hykawy, 2011 ONSC 5569, Roy v. Ottawa Capital Area Crime Stoppers, 2018 ONSC 4207, Guergis v. Hamilton, 2015 ONSC 4915, Fulton v. Globe & Mail, (1997), 207 A.R. 374 (Alta. Q.B.), Rubens v. Sansome, 2017 NLCA 32, Spring v. Guardian Assurance plc, [1994] 3 All E.R. 129 (HL (Eng))

Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation , 2021 ONCA 26

Keywords: Torts, Defamation, Strategic Litigation Against Public Participation Suit (Anti-SLAPP), Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 173.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Bent v. Platnick, 2020 SCC 23, Level One Construction Ltd. v. Burnham, 2018 BCSC 1354, Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, Hamlin v. Kavanagh, 2019 ONSC 5552, Grant v. Torstar Corp., 2009 SCC 61, Casses v. Canadian Broadcasting Corporation, 2015 BCSC 215, Platnick v. Bent, 2018 ONCA 687

CIVIL DECISIONS

BMW Canada Inc. v. Autoport Limited, 2021 ONCA 42

[Feldman, van Rensburg and Thorburn JJ.A.]

Counsel:

R. B. Bell, E.Y. Fan and J. Boddy, for the appellant

E. Machum, K. Ereaux, M.D. Isaacs and M. Staples, for the...