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

• Published date: 16 February 2021
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Charges, Mortgages, Indemnities, Financial Services, Insolvency/Bankruptcy, Family Law, Court Procedure, Trials & Appeals & Compensation, Professional Negligence, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

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

In Champoux v. Jefremova, the Court confirmed that when a party refuses to admit a fact in a request to admit, the reason for the refusal can itself become an admission. In this case, the reason for the refusal was an alternative version of the fact than the fact set out in the request to admit. The alternative version of the fact set out in the refusal to admit therefore could not be withdrawn without leave. The lesson is that care must be taken in the reasons given to refuse to admit a fact contained in a request to admit.

In Crystallex International Corporation (Re), a CCAA matter that has been ongoing since 2011, Crystallex was denied a sealing order of what it alleged was confidential information, and was denied leave to appeal that decision.

Wishing everyone a safe and happy Family Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

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Table of Contents

Civil Decisions

Crystallex International Corporation (Re), 2021 ONCA 87

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Leave to Appeal, Sealing Orders, Companies' Creditors Arrangement Act, R.S.C., 1985, c. C-36, ss. 10(3), Sierra Club of Canada v. Canada (Ministry of Finance), 2002 SCC 41, Stelco Inc. (Re) (2005), 75 OR (3d) 5 (CA), Timminco Ltd. (Re), 2021 ONCA 552, Nortel Networks Corp. (Re), 2016 ONCA 332

Champoux v. Jefremova, 2021 ONCA 92

Keywords: Torts, Professional Negligence, Med Mal, Standard of Care, Civil Procedure, Evidence, Admissions, Requests to Admit, Withdrawal of Admissions, Appeals, Sufficiency of Reasons, F.H. v. McDougall, 2008 SCC 53, Longo v. MacLaren Art Centre, 2014 ONCA 526, Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293, Antipas v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.), Liu v. The Personal Insurance Company, 2019 ONCA 104, Allto Construction Services Ltd. v. Toronto and Region Conservation Authority, 2017 ONCA 488

Royal Bank of Canada v. Azkia, 2021 ONCA 89

Keywords: Contracts, Debtor-Creditor, Mortgages, Civil Procedure, Summary Judgment, Certificates of Pending Litigation, Damages for Improper Registration, Fresh Evidence, Hryniak v. Mauldin, 2014 SCC 7, Palmer v. R., [1980] 1 S.C.R. 759, Sengmueller v. Sengmueller, 111 D.L.R. (4th) 19 (Ont. C.A.)

Short Civil Decisions

L.R. v. Children's Aid Society of Toronto, 2021 ONCA 84

Keywords: Publication Ban, Family Law, Crown Wardship, Civil Procedure, Status Review, Appeals, Mootness

CIVIL DECISIONS

Crystallex International Corporation (Re), 2021 ONCA 87

[Rouleau, Benotto and Thorburn JJ.A.]

Counsel:

R. Schwill, N. Renner and M. Littlejohn, for the moving party Crystallex International Corporation

T. Pinos, S. Kukulowicz and R. Jacobs, for the moving party Tenor Special Situation I, LP

A.H. Mark, R.J. Chadwick, P. Ruby and C. Armstrong, for the responding parties

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Leave to Appeal, Sealing Orders, Companies' Creditors Arrangement Act, R.S.C., 1985, c. C-36, ss. 10(3), Sierra Club of Canada v. Canada (Ministry of Finance), 2002 SCC 41, Stelco Inc. (Re) (2005), 75 OR (3d) 5 (CA), Timminco Ltd. (Re), 2021 ONCA 552, Nortel Networks Corp. (Re), 2016 ONCA 332

facts:

The moving party, Crystallex International Corporation ("Crystallex") has been in CCAA protection since 2011. Crystallex had a gold mine in Venezuela that the Venezuelan government expropriated its rights to. In 2016, the World Bank's International Centre for the Settlement of Investment disputes awarded Crystallex roughly $1.2 billion in damages and Crystallex has been trying to enforce that award ever since.

In May 2020, Crystallex sought an extension of the initial order under the CCAA and requested certain information in the Monitor's Third Party Report (the "Report") be sealed. Computershare Trust Company of Canada ("Computershare") opposed the motion in relation to the sealing of certain financial information. On hearing the motion, the judge refused to seal the contested information, holding that Crystallex had not met the test in Sierra Club of Canada v. Canada (Ministry of Finance), 2002 SCC 41 for the sealing of court files. The affidavit evidence did "not provide detailed or compelling reasons about how this information, if disclosed, could be used to the detriment of Crystallex or any details whatsoever as to the feared consequences of its disclosure to the public". The evidence was "highly speculative and [did] not specify any incremental risk that Crystallex may suffer from the disclosure of this information over and above the risk it is already exposed to."

The parties subsequently agreed to redact some portions of the Report in August of 2020. Crystallex and Tenor Special Situation I, LP ("Tenor") sought leave to appeal the May 2020 endorsement refusing to seal the Report.

issues:

(1) Should leave to appeal be granted?

holding:

Motion dismissed.

reasoning:

(1) Should leave to appeal be granted?

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