Court Of Appeal Summaries (March 29 ' April 2, 2021)

• Published date: 06 April 2021
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Litigation, Mediation & Arbitration, Real Estate and Construction, Insolvency/Bankruptcy/Re-structuring, Financial Services, Financial Restructuring, Corporate and Company Law, Insolvency/Bankruptcy, Contracts and Commercial Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Construction & Planning, Real Estate, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario.

In a lengthy decision in Fram Elgin Mills 90 Inc. v Romandale Farms Limited, the Court set aside the trial judge's decision and ordered specific performance against the respondent, requiring it to fulfill its obligations under an agreement of purchase and sale of land entered into in 2005. In coming to this conclusion, the Court held the principle of estoppel by convention applied to estop the respondent from arguing that the agreement was no longer enforceable.

Francis v. Ontario involves a class action lawsuit brought by a former inmate against the province. The Court addressed the constitutionality of administrative segregation, or "solitary confinement", as practiced in Ontario prisons. The Court of Appeal upheld the motion judge's finding that placing inmates suffering from serious mental illness in administrative segregation for any length of time (or placing any inmates in administrative segregation for more than 15 days at a time) violated their right to life under s. 7 of the Charter, as well as their right to be free of cruel and unusual treatment under s. 12. The Court concluded that the motion judge's award of aggregate damages in the amount of $30,000,000 was appropriate. The Court also addressed whether the province could be held liable for systemic negligence for breaching the duty of care owed to inmates subjected to administrative segregation. The Court rejected the province's attempt to classify the manner in which administrative segregation was carried out as "policy" rather than "operations" under the Crown Liability and Proceedings Act. To allow for such an expansive definition of "policy" would carry the risk of effectively immunizing the Crown from civil liability. The Court held the province's actions were operational in nature, and the province was liable for systemic negligence.

Fontaine v. Canada (Attorney General) is the latest instalment the Indian Residential School Settlement litigation and deals with the production and archiving of claim and non-claim records. The Court, applying the principles in the companion decision of Canada (Attorney General) v. Fontaine, 2017 SCC 47, held that any records containing confidential, sensitive and/or privileged information should not be produced or archived. However, a finding that any information or records in fact raised such confidentiality, sensitivity or privilege concerns must be based on an actual evidentiary record, rather than theoretical inferences.

Other topics covered this week included security for costs, summary judgment in respect of the failure to close on an agreement of purchase and sale of land, oppression applications under the Condominium Act, 1998, spousal support, rights of appeal under the Bankruptcy and Insolvency Act, 1985, and sealing orders in the context of the Laurentian University insolvency under the Companies' Creditors Arrangement Act, 1985.

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.

Wishing everyone celebrating a Happy Easter long weekend and Happy Pesach.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Danesh v Vahed, 2021 ONCA 189

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Completion Date, Extension, Deposits, Forfeiture, Civil Procedure, Summary Judgment, Appeals, Fresh Evidence, Hryniak v. Mauldin, 2014 SCC 7

Mohamoud v Carleton Condominium Corporation No. 25, 2021 ONCA 191

Keywords: Real Property, Condominiums, Oppression, Condominium Act, 1998, S.O. 1998, c. 19, ss. 89, 90, 135, Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650

Cvetkovic v Cvetkovic-Gorovic, 2021 ONCA 193

Keywords: Family Law, Spousal Support, Review, Termination, Variation, Material Change in Circumstance, Expert Evidence, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), ss 15.2(6) and 17(7)

Shaver-Kudell Manufacturing Inc. v Knight Manufacturing Inc., 2021 ONCA 202

Keywords: Bankruptcy and Insolvency, Stay of Proceedings, Lifting of Stay, Obtaining Property by False Pretences, Torts, Breach of Confidence, Misappropriation of Trade Secrets, Civil Procedure, Appeals, Extension of Time, Security for Costs, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss 69(1), 69.4, 178(1)(e), 193, Bankruptcy and Insolvency General Rules, C.R.C., c. 368, Rule 31(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1), Rules of Civil Procedure, Rule 61.06(1)(c), Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, Water Matrix Inc. v. Carnevale, 2018 ONSC 6436, Beneficial Finance Co. v. Durward (1961), 2 C.B.R. (N.S.) 173 (Ont. Co. Ct.), Graves v. Hughes, 2001 NSSC 68, 25 C.B.R. (4th) 255, Gray (Re), 2014 ONCA 236, Korea Data Systems (USA), Inc. v. Aamazing Tehnologies Inc., 2015 ONCA 465, H.Y. Louie Co. Limited v. Bowick, 2015 BCCA 256, Lawyers' Professional Indemnity Company v. Rodriguez, 2018 ONCA 171, leave to appeal refused, [2018] S.C.C.A. No. 128, Re McKee (1997), 47 C.B.R. (3d) 70 (Alta. Bankruptcy Registrar), Re Mariyanayagam (1998), 10 C.B.R. (4th) 105 (Ont. Gen. Div.), Re Bissonette, 2006 CarswellOnt 7023 (Bankruptcy Registrar), Re Di Paola (2006), 84 O.R. (3d) 554 (C.A., In Chambers), Re Berger, 2010 ONSC 4376, (Bankruptcy Registrar), Dal Bianco v. Deem Management Services Limited, 2020 ONCA 585, Third Eye Capital Corporation v. Resources Dianor Inc./Dianor Resources Inc., 2019 ONCA 508, 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, MNP Ltd. v. Wilkes, 2020 SKCA 66, 80 C.B.R. (6th) 1, Royal Bank of Canada v. Bodanis, 2020 ONCA 185, (In Chambers), Elias v. Hutchison, 1981 ABCA 31, Ravelston Corp., Re (2005), 24 C.B.R. (5th) 256, (Ont. C.A.), Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Canada (Attorney General) v. Bourassa (Trustee of), 2002 ABCA 205, Lang v. Soyatt (1988), 68 C.B.R. (N.S.) 201, (Ont. Sup. Ct.), Re Wilson (1930), 11 C.B.R. 425 (Ont. Sup. Ct.), Re Cameron, 2002 ABCA 183, 40 Park Lane Circle v. Aiello, 2019 ONCA 451, H.Y. Louie Co. v. Bowick, 2015 BCCA 363, Celanese Canada Inc. v. Murray Demolition Corp., [2010] O.J. No. 6347 (S.C.), Toronto Dominion Bank v. Cushing, 2007 BCSC 1581, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, Perron v. Perron, 2011 ONCA 776 (In Chambers), Henderson v. Wright, 2016 ONCA 89 (In Chambers), York University v. Markicevic, 2017 ONCA 651 (In Chambers)

Laurentian University of Sudbury, 2021 ONCA 199

Keywords: Bankruptcy and Insolvency, Civil Procedure, Sealing Orders, Appeals, Leave to Appeal, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C.36, s. 13, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137(2), Canadian Charter of Rights and Freedoms, s.2(d), Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10, Edgewater Casino Inc. (Re), 2009 BCCA 40, Nortel Networks Corp. (Re), 2016 ONCA 332.

Francis v Ontario, 2021 ONCA 197

Keywords: Torts, Negligence, Constitutional Law, Charter Claims, Right to Life and Security of the Person, Freedom from Cruel and Unusual Punishment, Oakes Test, Crown Liability, Corrections, Administrative Segregation (Solitary Confinement), Civil Procedure, Class Proceedings, Canadian Charter of Rights and Freedoms, ss. 7, 12, 24(1), Constitution Act, 1982, s. 52, Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, ss. 20(1.1), 20(2), 20(3), 60(1), General, R.R.O. 1990, Reg. 778, ss. 2(1), 34(1), 34.0.1, 34(5), Correctional Services and Reintegration Act, 2018, S.O. 2018, c. 6, Sched. 2, Crown Liability and Proceedings Act, 2019, S.O. 2019 c. 7, Sched. 17, ss. 11, 31(4), Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 5, Corrections and Conditional Release Act, S.C. 1992, c. 20, Class Proceedings Act, 1992, S.O. 1992, c. 6, Bill 100, An Act to implement Budget measures and to enact, amend and repeal various statutes, 1st Sess., 42nd Parl., Ontario, 2019 (short title "Protecting What Matters Most Act (Budget Measures), 2019"), Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, Brazeau v. Canada (Attorney General), 2020 ONCA 184, Brazeau v. Canada (Attorney General), 2020 ONSC 3272, Brazeau v. Attorney General (Canada), 2019 ONSC 1888, Reddock v. Canada (Attorney General), 2019 ONSC 5053, Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC...