Court Of Appeal Summaries (March 8 ' March 12, 2021)

• Published date: 15 March 2021
• Subject Matter: Corporate/Commercial Law, Employment and HR, Government, Public Sector, Litigation, Mediation & Arbitration, Family and Matrimonial, Corporate and Company Law, Contract of Employment, Unfair/ Wrongful Dismissal, Health & Safety, Employee Benefits & Compensation, Disclosure & Electronic Discovery & Privilege, Constitutional & Administrative Law, Court Procedure, Trials & Appeals & Compensation, Libel & Defamation, Civil Law, Shareholders, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 8, 2021.

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In Mikelsteins v. Morrison Hershfield Limited, the Court of Appeal had to reconsider its previous decision on remand from the Supreme Court of Canada in light of the Supreme Court's decision in Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26.

The case involved a wrongfully terminated employee's rights to additional damages in relation to shares he held in the parent company of his employer. The Court of Appeal ultimately held that the Ocean Nutrition decision did not change its approach to the appeal, as Ocean Nutrition deals with the rights of an employee qua employee, whereas the subject appeal involved the employee's rights under a shareholders' agreement. The original decision to allow the appeal was upheld. The appellants in this case were represented by Blaneys' own David Greenwood and Christopher McClelland. Congratulations to them.

Other topics of note this week included and administrative law decision under the Pay Equity Act, limitation periods in estate litigation, a procurement case, defamation in a child protection context, and stay pending appeal.

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. Justice Benjamin Zarnett will be co-chairing the event with myself and Chloe Snider of Dentons. Following is our excellent slate of decisions and speakers:

2020 Update from the Bench
The Honourable Benjamin Zarnett, Court of Appeal for Ontario

Panel 1 - Advocacy Practice Tips from the Court

Girao v. Cunningham, 2020 ONCA 260

OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532

Welton v. United Lands Corporation Limited, 2020 ONCA 322

Jordan Goldblatt, Adair Goldblatt Bieber LLP

Sara Erskine, Weintraub Erskine Huang LLP

Panel 2 - Negligently Designed Financial Products - A New Age in Product Liability?

Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337

Seumas Woods, Blake, Cassels & Graydon LLP

Alistair Crawley, Crawley MacKewn Brush LLP

Elizabeth Bowker, Stieber Berlach LLP

Panel 3 - Developments in Insolvency Law - Priority of Construction Trust Claims and Landlord Claims in Bankruptcy

Urbancorp Cumberland 2 GP Inc. (Re), 2020 ONCA 197

7636156 Canada Inc. (Re), 2020 ONCA 681

Ken Kraft, Dentons LLP

Kevin Sherkin, Miller Thomson LLP

D.J. Miller, Thornton Grout Finnigan LLP

In the meantime, please register for the program by visiting the OBA's website.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

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Table of Contents

Civil Decisions

Ducharme v. Hudson, 2021 ONCA 151

Keywords: Health Law, Consent and Capacity, Capacity to Consent to Treatment, Civil Procedure, Stay Pending Appeal, Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, s. 18, s. 19, Rules of Civil Procedure, Rule 63.02(1), RJR MacDoanld Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620

Inzola Group Limited v. Brampton (City), 2021 ONCA 143

Keywords: Contracts, Interpretation, Procurement, Requests for Proposal, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, City of Toronto, Toronto Computer Leasing Inquiry and Toronto External Contracts Inquiry, The Honourable Denise E. Bellamy, 2005 ("Bellamy Report")

Ontario Nurses' Association v. Participating Nursing Homes, 2021 ONCA 148

Keywords: Administrative Law, Judicial Review, Labour and Employment, Pay Equity, Proxy Methodology, Gender-Neutral Comparison System, Standard of Review, Reasonableness, Pay Equity Act, R.S.O. 1990, c. P.7, Agraira v. Canada (Public Safety and Preparedness), 2013 SCC 36, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

Participating Nursing Homes v. Ontario Nurses' Association, 2021 ONCA 149

Keywords: Administrative Law, Judicial Review, Labour and Employment, Pay Equity, Proxy Methodology, Gender-Neutral Comparison System, Standard of Review, Reasonableness, Pay Equity Act, R.S.O. 1990, c. P.7, Agraira v. Canada (Public Safety and Preparedness), 2013 SCC 36, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

AA v. BB, 2021 ONCA 147

Keywords: Torts, Defamation, Slander, Qualified Privilege, Courts of Justice Act, s. 134, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, ss. 87(8), 125, RTC Engineering Consultants Ltd. v. Ontario (2002), 58 O.R. (3d) 726 (C.A.), W. (D.) v. White, 2001 CarswellOnt 5892 (S.C.), Nadejda Ryabikhina v. Stanislav (Stan) Savranskiy, 2010 ONSC 3860, Sullivan v. Draper-Sereda, [2006] O.J. No. 4671, Korach v. Moore (1991), 1 O.R. (3d) 275 (C.A.), Bent v. Platnick, 2020 SCC 23, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, Vancouver Sun (Re), 2004 SCC 43, L.C.F. v. G.F., 2016 ONSC 6732, S.M. v. C.T., 2020 ONSC 4819, G.S. and K.S. v. Metroland Media Group et al., 2020 ONSC 5227, Raymond E. Brown, Brown on Defamation, 2nd ed. (Toronto: Thomson Reuters, 2020), at ch. 6.1

Mikelsteins v. Morrison Hershfield Limited, 2021 ONCA 155

Keywords: Employment Law, Wrongful Dismissal, Corporations, Shareholders, Shareholders Agreements, Civil Procedure, Remand from Supreme Court, Business Corporations Act, R.S.O. 1990, c. B.16, s. 32, Canada Business Corporations Act, R.S.C. 1985, c. C-44, Supreme Court Act, R.S.C. 1985, c. S-26, s. 43(1.1), Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, leave to appeal refused, [2106] S.C.C.A. No. 249

Zachariadis Estate v. Giannopoulos Estate, 2021 ONCA 158

Keywords: Wills and Estates, Civil Procedure, Limitation Periods, Appeals, Fresh Evidence, Adjournments, Substantial Indemnity Costs, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s 4, Trustee Act, R.S.O. 1990, c. T.23, s 38(3), Rules of Civil Procedure, Rules 39 and 57.01, Khimji v. Dhanani (2004), 128 A.C.W.S. (3d) 904 (Ont. C.A.), Burns Estate v. Mellon [2000] O.J. No. 2130 (C.A.), Canadian Broadcasting Corporation Pension Plan v. BF Realty Holdings Ltd., 214 DLR (4th) 121, R. v. Burns, [1994] 1 S.C.R. 656, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Levesque v. Crampton Estate, 2017 ONCA 455, M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, Pioneer Corp. v. Godfrey, 2019 SCC 42

Short Civil Decisions

Paulpillai Estate v. Yusuf, 2021 ONCA 146

Keywords: Civil Procedure, Appeals, Motions to Reconsider, Jurisdiction, Final or Interlocutory, Rules of Civil Procedure, Rule 59.06, Meridian Credit Union v. Baig, 2016 ONCA 942

CIVIL DECISIONS

Ducharme v. Hudson, 2021 ONCA 151

[Harvison Young J.A. (Motion Judge)]

Counsel:

C.D., acting in person

A.F. Raviele, appearing as amicus curiae

J.L. Lefebvre and J.P. Thomson, for the responding party

Keywords: Health Law, Consent and Capacity, Capacity to Consent to Treatment, Civil Procedure, Stay Pending Appeal, Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, s. 18, s. 19, Rules of Civil Procedure, Rule 63.02(1), RJR MacDoanld Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620

facts:

The moving party is a patient at a high-security forensic hospital where he is being detained as a result of him being found not criminally responsible on account of mental disorder in relation to certain criminal charges. The respondent is the physician responsible for his care.

The Consent and Capacity Board (the "Board") confirmed the respondent's finding that the moving party lacks capacity to consent to treatment. Immediately following this confirmation, the moving party filed a notice of appeal. Since then, the moving party has not taken any steps to advance the appeal. However, s. 18 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the "Act"), provides that treatment cannot commence on non-consenting individual until such appeal has been determined.

Accordingly, the respondent brought a motion pursuant to s. 19(1) of the Act, which would authorize the treatment to proceed pending the appeal of the Board's decision. The motion judge granted the order, and the moving party subsequently brought this motion for a stay of the order pending appeal.

issues:

Should a stay pending appeal of the motion judge's order be granted?

holding:

Motion dismissed.

reasoning:

Should a stay pending appeal of the motion judge's order be granted?

No. The three-part test for a stay pending appeal was articulated in RJR MacDoanld Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311: (i) whether there is a serious issue to be tried; (ii) whether the moving party would suffer irreparable harm if the stay is not granted; and (iii) whether the balance of convenience favours granting the stay. All three components are interrelated in the sense that the overriding inquiry focuses on whether the moving party has demonstrated that it is in the interests of justice to grant a stay (BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620).

(i) Is there a serious issue to be determined?

With respect to the first inquiry, whether there is a serious question to be determined, the Court noted that the odds for the success of the moving party's appeal were slim to none. While the bar for a finding that there is a serious question to be tried is notably low, the Court found that the moving party did not appear to be willing or able to either instruct counsel or to accept and cooperate with the assistance provided by the amicus.

Also, the motion judge properly applied the...