COURT OF APPEAL SUMMARIES (February 15 ' February 19, 2021)

• Published date: 23 February 2021
• Subject Matter: Corporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Insolvency/Bankruptcy/Re-structuring, Corporate and Company Law, Directors and Officers, Insolvency/Bankruptcy, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation, Court Procedure, Trials & Appeals & Compensation, Securities, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Please find below our summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 15, 2021.

Bourke is a family law child custody and mobility decision containing a detailed discussion of the law in this area, including ss. 16.92(2) of the Divorce Act, which comes into effect on March 1, 2021. That new provision addresses the "classic double-bind" dilemma that arises in mobility cases (if the parent says they will not move if they do not get custody, then their move is not that necessary; if they say they will move even if they lose custody, then they are bad parents).

In Actava, the Court refused to enforce US letters of request against a stranger to the US litigation carrying on business in Ontario. The foreign plaintiff merely sought the Ontario corporation's financial information to try to prove its damages by using the Ontario corporation as a "yardstick" for the damages it suffered (arguing that it would have earned a similar profit to the Ontario corporation). The Court determined that the documents sought were not relevant and the request was highly intrusive and infringed on Canadian sovereignty (as such an order would not have been made in an Ontario action against a non-party in Ontario).

In Royal Bank of Canada v. 1643937 Ontario Inc., the Court set aside summary judgment against guarantors on the basis that the motion judge did not adequately explain why she rejected the appellants' evidence that they thought their collective liability under the guarantees would be $600,000 (rather than each being liable for $600,000, as claimed by the bank).

Drywall Acoustic Lathing and Insulation is a securities class action decision in which the plaintiff sought leave to commence a secondary market misrepresentation claim against Barrick Gold under the Securities Act. In its decision, the Court noted that although it is permissible for a court to assume that one constituent element of a cause of action or legal test has been satisfied, and subsequently dispose of the case on the basis of a different constituent element not being established, this method of legal analysis should be used sparingly in securities class action cases. Both issuers and the public have an interest in the accuracy of disclosure made by public companies, and an analysis whereby a court assumes misrepresentations were made but disposes of a claim on other grounds does nothing to address the possible misrepresentations and restore confidence in the disclosures of the company moving forward.

In Abbasbayli, a wrongful dismissal case, the Court restored some pleadings that may have been awkward but should not have been struck, as they did disclose a reasonable cause of action.

Finally, 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.

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, Rueters 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, Levine, Sherkin, Boussidan

D.J. Miller, Thornton Grout Finnigan LLP

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

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Abbasbayli v. Fiera Foods Company, 2021 ONCA 95

Keywords: Employment Law, Wrongful Dismissal, Unpaid Wages, Corporations, Directors Liability for Unpaid Wages, Oppression, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Appeals, Jurisdiction, Final and Interlocutory Orders, Employment Standards Act, 2000, S.O. 2000, c. 41, s. 81, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss 131, 248, Rules of Civil Procedure, Rule 21, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 6(2), Ontario Securities Commission v. McLaughlin, 2009 ONCA 280, Buccilli v. Pillitteri, 2016 ONCA 775, Lax v. Lax (2004), 239 D.L.R. (4th) 683 (Ont. C.A.), Azzeh v. Legendre, 2017 ONCA 385, leave to appeal refused, [2017] S.C.C.A. No. 289, 2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202, Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Wellington v. Ontario, 2011 ONCA 274, leave to appeal refused, [2011] S.C.C.A. No. 258, Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Apotex Inc. v. Eli Lilly and Co., 2015 ONCA 305, leave to appeal refused, [2015] S.C.C.A. No. 291, Tran v. University of Western Ontario, 2015 ONCA 295, Ricci v. Chippingham Financial Group Ltd., 2017 ONSC 6958, Beadle v. Gudgeon Brothers Ltd., 2006 CanLII 2612 (Ont. S.C.), Walls v. Lewis (2009), 97 O.R. (3d) 16 (S.C.), Churchill v. Aero Auction Sales, 2019 ONSC 4766, Downtown Eatery (1993) Ltd. v. Ontario (2001), 200 D.L.R. (4th) 289 (Ont. C.A.), leave to appeal refused, [2001] S.C.C.A. No. 397, Brigaitis v. IQT, Ltd. c.o.b. as IQT Solutions, 2014 ONSC 7, Wilson v. Alharayeri, 2017 SCC 39, Jacobson v. Skurka, 2015 ONSC 1699, Mirshahi v. Suleman, 2008 CanLII 64006 (Ont. S.C.), Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 256 D.L.R. (4th) 407 (Ont. C.A.), Copland v. Commodore Business Machines Ltd. (1985), 52 O.R. (2d) 586 (S.C., Master), aff'd (1985), 52 O.R. (2d) 586, George v. Harris, [2000] O.J. No. 1762 (S.C.), Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649, Foodcor Services Corp. v. Seven-Up Canada Inc., [1998] O.J. No. 2576 (Gen. Div.), Ontario Consumers Home Services Inc. v. EnerCare Inc., 2014 ONSC 4154, Transamerica Occidental Life Insurance Co. v. Toronto-Dominion Bank, [1997] O.J. No. 1 (Gen. Div.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 218, Mitchell v. Lewis, 2017 ONCA 105

Bourke v. Davis , 2021 ONCA 97

Keywords:Family Law, Custody and Access, Mobility Orders, Maximum Contact Principle, Best Interest of the Child, "Double-Bind", Divorce Act, s. 16(10), s. 16.92(2), Children's Law Reform Act, Gordon v. Goertz, [1996] 2 SCR 27, Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230, Thompson v. Drummond, 2018 ONSC 1975, Lamont-Daneault v. Daneault, 2003 MBCA 111, Porter v. Bryan, 2017 ONCA 677, Segal v. Segal (2002), 26 R.F.L. (5th) 433 (Ont. C.A.), Spencer v. Spencer, 2005 ABCA 262, Hopkins v. Hopkins, 2011 ABCA 372, Young v. Young (2003), 63 O.R. (3d) 112 (C.A.), Prokopchuk v. Borowski, 2010 ONSC 3833, Maharaj v. Wilfred-Jacob, 2016 ONSC 7925, Newstead v. Hachey, 2018 ONSC 1317

Actava TV, Inc. v. Matvil Corp., 2021 ONCA 105

Keywords: Private International Law, Conflict of Laws, Civil Procedure, Documentary Discovery, Foreign Letters of Request (Letters Rogatory), Sovereignty, Comity, Canada Evidence Act, R.S.C. 1985, c. C-5, s. 46, Ontario Evidence Act, R.S.O. 1990, c. E.23, s. 60, Ontario Rules of Civil Procedure, Rule 30.10, Business Records Protection Act, R.S.O. 1990, c. B.19, Presbyterian Church of Sudan v. Taylor (2006), 215 O.A.C. 140 (C.A.), Hilton v. Guyot, 159 U.S. 113 (1895), The Signe, 37 F. Supp. 819 (E.D. La. 1941), R. v. Zingre, [1981] 2 S.C.R. 392, Gulf Oil Corporation v. Gulf Canada Limited et al. [1980] 2 S.C.R. 39, Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, 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.), Connecticut Retirement Plans and Trust Funds v. Buchan, 2007 ONCA 462, Lantheus Medical Imaging Inc. v....