Court Of Appeal Summaries (March 1 ' March 5, 2021)

• Published date: 09 March 2021
• Subject Matter: Finance and Banking, Insurance, Litigation, Mediation & Arbitration, Family and Matrimonial, Financial Services, Family Law, Insurance Laws and Products, Trials & Appeals & Compensation
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Please find below our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 1 to 5, 2021.

In 1062484 Ontario Inc. v. McEnery, a lawyer defaulted on two loans and the lawa firm he was associated with was also sued. The lawyer was found not to be a partner and the firm was therefore found not liable for the debt. The Court upheld the motion judge's "boomerang order" wherein she granted summary judgment in favour of the firm and dismissed the appellants' claims against it, even though the firm had not brought a cross-motion seeking such relief.

In Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), a product liability case, the Court allowed the appeal on the basis that the motion judge incorrectly applied the doctrines of res judicata, cause of action estoppel, issue estoppel, and abuse of process.

In Dhatt v. Beer, the Court dismissed an appeal from a judgment granting specific performance of an agreement of purchase and sale of land and substantial indemnity costs after an uncontested trial following the trial judge's refusal to grant an adjournment.

There were several family law decisions. In dismissing the appeal in Booth v Bilek, the Court held that the trial judge did not err either in finding that full equalization would be unconscionable, or in her exercise of discretion in setting the appropriate payment at 10% of the amount that would fully equalize the parties' net family properties.

Lenihan v. Shankar involved a family law custody and relocation case in which the Court ordered for security for costs and refused to stay the custody and relocation order pending appeal. The Court noted that while it is especially rare to award security for costs in a child-related matter, this case was one of those exceptional circumstances.

Manchanda was another family law decision.

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.

Table of Contents

Civil Decisions

1062484 Ontario Inc. v. McEnery, 2021 ONCA 129

Keywords: Partnerships, Liability, Civil Procedure, Summary Judgment, Boomerang Orders, Partnerships Act, R.S.O. 1990, c. P.5, ss. 2, 11-12, 15, 15(1), Housen v. Nikolaisen, 2002 SCC 33, Hryniak v. Mauldin, 2014 SCC 7, Continental Bank Leasing Corp. v. Canada, [1998] 2 SCR 298, Dawson v. Halpenny Insurance Brokers Ltd., 2017 ONSC 4487, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, Moore v. Wienecke, 2008 ONCA 162

Booth v. Bilek, 2020 ONCA 128

Keywords: Family Law, Equalization of Net Family Property, Unequal Division, Unconscionability, Family Law Act, R.S.O. 1990, c. F.3, ss. 5(1), 5(6), Serra v. Serra: 2009 ONCA 105, Gomez v. McHale, 2016 ONCA 318, Zheng v. Xu, 2019 ONSC 865

Davidson (Re), 2021 ONCA 135

Keywords: Bankruptcy and Insolvency, Family Law, Property of the Bankrupt, Civil Procedure, Appeals, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss 38, 163 & 193, Re Ravelston Corp. (2005), 24 C.B.R. (5th) 256 (Ont. C.A.), 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, Enroute Imports Inc. (Re), 2016 ONCA 247, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Re Zammit (1998), 3 C.B.R. (4th) 193 (Ont. Gen. Div.), Re Jolub Construction Ltd. (1993), 21 C.B.R. (3d) 313 (Ont. Gen. Div.)

Dhatt v. Beer, 2021 ONCA 137

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Specific Performance, Civil Procedure, Trials, Adjournments, Substantial Indemnity Costs, Rules of Civil Procedure, Rule 52.02, Statement of Principles on Self-represented Litigants and Accused Persons (2006), Dhatt v. Beer, 2020 ONCA 545, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), Lucas v. 1858793 Ontario Inc. (Howard Park), 2021 ONCA 52, John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2001), 56 O.R. (3d) 341 (S.C.), Pintea v. Johns, 2017 SCC 23, Morwald-Benevides v. Benevides, 2019 ONCA 1023

Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141

Keywords: Torts, Negligence, Product Liability, Civil Procedure, Striking Pleadings, Res Judicata, Cause of Action Estoppel, Issue Estoppel, Abuse of Process, Rules of Civil Procedure, Rule 21.01(3)(d), Simone Estate v. Cheifetz (2005), 201 O.A.C. 120 (C.A.), Salasel v. Cuthbertson, 2015 ONCA 115, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Henyen v. Frito Lay Canada Ltd. (1999), 45 O.R. (3d) 776 (C.A.), Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63

Lenihan v. Shankar, 2021 ONCA 142

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Security for Costs, Stay Pending Appeal, Rules of Civil Procedure, Rule 61.06(1), Henderson v. Wright, 2016 ONCA 89, Morwald-Benvenides v. Benvenides, 2017 ONSC 3786, RJR-McDonald Inc. v. Canada (Attorney-General), [1994] 1 S.C.R. 311

Manchanda v. Thethi, 2021 ONCA 127

Keywords: Family Law, Spousal Support, Property, Remedies, Constructive Trust, Vesting Orders, Family Law Rules, O Reg 114/99, Rules 1(8.4), 2, 24(12)(a), Family Law Act, R.S.O. 1990, c. F. 3, ss. 5(6), 9(1)(d), Divorce Act, R.S.C. 1985 c. 3, s. 15.2(6), Manchanda v. Thethi, 2016 ONCA 909, Abu-Saud v. Abu-Saud, 2020 ONCA 824, Dickie v. Dickie, 2007 SCC 8, Murphy v. Murphy, 2015 ONCA 69, Leskun v. Leskun, 2006 SCC 25, Cunha v. Cunha (1994), 99 B.C.L.R. 93 (S.C.), Meade v. Meade (2002), 31 R.F.L. (5th) 88 (Ont. S.C.), Purcaru v. Purcaru, 2010 ONCA 92, Mullin v. Sherlock, 2018 ONCA 1063, Titova v. Titov, 2012 ONCA 864, Martin v. Sansome, 2014 ONCA 14

Short Civil Decisions

Banerjee v. Mathoo, 2021 ONCA 140

Keywords: Family Law, Property, Matrimonial Home, Net Family Property, Civil Procedure, Offers to Settle, Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711, M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619

Capone v. Fotak, 2021 ONCA 144

Keywords:Family Law, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Hopkins v. Kay, 2014 ONCA 514

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CIVIL DECISIONS

1062484 Ontario Inc. v. McEnery, 2021 ONCA 129

[Roberts, Zarnett and Sossin JJ.A.]

Counsel:

C.G. Carter, for the appellants

S. Cavanagh and R.S. Brown, for the respondents Williams McEnery and Williams Litigation Lawyers

No one appearing for the respondent, PM

Keywords: Partnerships, Liability, Civil Procedure, Summary Judgment, Boomerang Orders, Partnerships Act, R.S.O. 1990, c. P.5, ss. 2, 11-12, 15, 15(1), Housen v. Nikolaisen, 2002 SCC 33, Hryniak v. Mauldin, 2014 SCC 7, Continental Bank Leasing Corp. v. Canada, [1998] 2 SCR 298, Dawson v. Halpenny Insurance Brokers Ltd., 2017 ONSC 4487, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, Moore v. Wienecke, 2008 ONCA 162

facts:

This was a consolidated appeal from two summary judgments, one brought by the appellant 1062484 Ontario Inc. ("106 Ontario") and one by the appellant 1770650 Ontario Inc. ("177 Ontario"). The respondent, Williams McEnery, now Williams Litigation Lawyers (the "Firm"), is a civil litigation boutique in Ottawa, ON. The respondent PM was a lawyer who shared space with the Firm.

106 Ontario sued for recovery of outstanding amounts under two loans issued in favour of PM. 177 Ontario alleged that it provided funds to PM to be used to pay off and discharge a mortgage. The mortgage remains registered on title. 177 Ontario sought to recover the amount advanced plus costs incurred to maintain the mortgage in good standing. Both 106 Ontario and 177 Ontario alleged that both PM and the Firm were liable as PM was dealing as, or was held out to be, a partner of the Firm.

The motion judge granted summary judgment in favour of the appellants as against PM, but dismissed the appellants' motions for summary judgment as against the Firm. The motion judge also granted summary judgement in favour of the Firm, dismissing the appellants' actions against the Firm. Specifically, the motion judge found that PM was not a partner of the firm and that the respondents conducted "two distinct businesses." Therefore, the Firm was not liable for the actions of PM. Her findings were based on a close reading of the Firm's partnership agreement, Law Society filings, accounting records, and other documentary evidence. Further, since no credit was given to PM in...