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

Published date10 February 2021
Subject MatterFinance and Banking, Employment and HR, Environment, Litigation, Mediation & Arbitration, Family and Matrimonial, Charges, Mortgages, Indemnities, Financial Services, Unfair/ Wrongful Dismissal, Environmental Law, Family Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
Law FirmBlaney McMurtry LLP
AuthorMr John Polyzogopoulos

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 1, 2021.

In Albert Bloom Limited v London Transit Commission, the Court explored limitation periods in the context of a historical environmental contamination claim.

In Pearce v. Canada (Staff of the Non-Public Funds, Canadian Forces), the Court found that under the terms of the relevant collective bargaining agreement, the Superior Court had jurisdiction to entertain a claim of constructive dismissal.

In United Mexican States v. Burr, an appeal from an international arbitral decision under NAFTA, the Court quashed the appeal on the grounds that the UNCITRAL Model Law on International Commercial Arbitration prohibited an appeal on a "preliminary question" of jurisdiction.

There were also a couple of family law decisions.

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

Bank of Montreal v Georgakopoulos , 2021 ONCA 60

Keywords: Contracts, Debtor-Creditor, Mortgages, Remedies, Equitable Mortgages, Civil Procedure, Summary Judgment, Rules of Civil Procedure, r. 20, 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280 (C.A.), Hryniak v. Mauldin, 2014 SCC 7, Elias Markets Ltd. (Re) (2006), 274 D.L.R. (4th) 166 (Ont. C.A.)

Siddiqui v Riahi , 2021 ONCA 63

Keywords: Family Law, Property, Resulting Trust, Beneficial Ownership, Net Family Property, Debts, Spousal Support, Child Support, Family Law Act, RSO 1990, c F3, "property", ss. 4(1), Kerr v. Baranow, 2011 SCC 10, Korman v. Korman, 2015 ONCA 578

United Mexican States v Burr, 2021 ONCA 64

Keywords: International Law, Trade Law, North American Free Trade Agreement, Civil Procedure, International Arbitration, Appeals, Jurisdiction, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, s. 11, UNCITRAL Model Law on International Commercial Arbitration, arts. 16 and 34, United Mexican States v. Cargill, Inc., 2011 ONCA 622, The Russia Federation v. Luxtona Limited, 2019 ONSC 7558

Pearce v. Canada (Staff of the Non-Public Funds, Canadian Forces), 2021 ONCA 65

Keywords: Labour and Employment Law, Statutory Interpretation, Unionized Employees, Constructive Dismissal, Civil Procedure, Striking Pleadings, Jurisdiction, Rules of Civil Procedure, Rule 21.01(3)(a), Financial Administration Act, R.S.C. 1985, c. F-11, Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 236, Interpretation Act, R.S.C. 1985, c. I-21, s. 12, Bron v. Canada (Attorney General), 2010 ONCA 71, Vaughan v. Canada, 2005 SCC 11, Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, Evans v. Teamsters Local Union No. 31, 2008 SCC 20, Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10

Albert Bloom Limited v London Transit Commission, 2021 ONCA 74

Keywords: Real Property, Environmental Law, Historical Environmental Contamination, Torts, Negligence, Nuisance, Continuing Torts, Civil Procedure, Limitation Periods, Discoverability, Ultimate Limitation Period, Contribution and Indemnity, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss. 5(1)(a), 17, 18, Environmental Protection Act, R.S.O. 1990, c. E.19, s. 99, Crombie Property Holdings Limited v. McColl-Frontenac Inc., 2017 ONCA 16, Commercial Bank (Canada) v. Yung, 2018 ONCA 429, Longo v. MacLaren Art Centre, 2014 ONCA 526, Kaiman v. Graham, 2009 ONCA 77, Vellenga v. Boersma, 2020 ONCA 537, Starline Entertainment Centre Inc. v. Ciccarelli, (1995) 25 O.R. (3d) 765 (S.C), RVB Managements Ltd. v. Rocky Mountain House (Town), 2015 ABCA 188, Roberts v. City of Portage la Prairie, [1971] S.C.R. 481, Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Brozmanova v. Tarshis, 2018 ONCA 523

Short Civil Decisions

Patterson v Patterson, 2021 ONCA 70

Keywords: Wills and Estates, Attorneys for Property, Civil Procedure, Passing of Accounts, Appeals, Extension of Time, Substitute Decisions Act, s. 42(4)(6), Rules of Civil Procedure, Rules 61.07(1)(a), 61.12(6)(b), Rizzi v. Mavros, 2007 ONCA 350

Wang v Banton, 2021 ONCA 72

Keywords: Torts, Negligence, MVA, Civil Procedure, Appeals, Jurisdiction, Extension of Time, Medical Examinations, Courts of Justice Act, s. 19(1)(b), Rules of Civil Procedure, Rules 2.1.02(3), 3.02, 62.02(3), Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806

T.J.L v E.B., 2021 ONCA 75

Keywords: Publication Ban, Family Law, Divorce, Custody and Access, Joint Custody, Principal Residence, Child Support, Civil Procedure, Reasonable Apprehension of Bias, Presumption of Fairness, Children's Law Reform Act, s. 24, Gordon v. Goertz, [1996] 2 SCR 27, Van de Perre v. Edwards, 2001 SCC 60, Perron v. Perron, 2012 ONCA 811, leave to appeal refused, [2013] SCCA No 26, Miglin v. Miglin (2001), 53 OR (3d) 641 (CA), reversed on other grounds, 2003 SCC 24, Yukon Francophone School Board, Education Areas #23 v. Yukon (Attorney General), 2015 SCC 25, Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369

CIVIL DECISIONS

Bank of Montreal v Georgakopoulos, 2021 ONCA 60

[Strathy C.J.O., Zarnett and Sossin JJ.A.]

Counsel:

P.G. and A.G., acting in person

C.J. Staples, for the respondent

Keywords: Contracts, Debtor-Creditor, Mortgages, Remedies, Equitable Mortgages, Civil Procedure, Summary Judgment, Rules of Civil Procedure, r. 20, 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280 (C.A.), Hryniak v. Mauldin, 2014 SCC 7, Elias Markets Ltd. (Re) (2006), 274 D.L.R. (4th) 166 (Ont. C.A.)

facts:

A Line of Credit Agreement had been entered into between the respondent bank and the appellants in 2008, secured by a mortgage on the appellants' property in Oakville. The credit facility was repaid in 2015, out of the proceeds of sale of the Oakville property, and the mortgage was discharged.

The credit facility was supposed to be blocked by the respondent so that there could not be any further advances, but by mistake it was not. The appellants then drew another $295,000 from the facility, which they were not authorized to do, and which they did not repay. The evidence showed that the funds drawn from the credit facility in 2015 were used to pay off another lender's mortgage on the appellants' Toronto property.

The respondent brought a motion for summary judgment. The motion judge granted the motion and ordered the appellants to pay $342,316.74, representing the unauthorized credit advances and interest thereon. The motion judge's order also declared an equitable mortgage in favour of the respondent over the Toronto property, and dismissed the appellants' counterclaim.

issues:

  1. Did the motion judge lack jurisdiction to deal with any aspect of the respondent's claims?
  2. Did the motion judge wrongly accept the evidence proffered by the respondent in justifying the order granting summary judgment?
  3. Did the motion judge lack the authority to declare an equitable mortgage against the Toronto property?
  4. Did the motion judge improperly dismiss the appellants' counterclaim?

holding:

Appeal dismissed

reasoning:

(1) Did the motion judge lack jurisdiction to deal with any aspect of the respondent's claims?

No. The respondent's action was for: (i) repayment of unauthorized amounts drawn from the credit facility; (ii) an equitable mortgage to secure those amounts; (iii) repayment of unpaid credit card debt. The Court noted that the Superior Court of Justice has jurisdiction over all of those matters, as the Superior Court's jurisdiction is unrestricted in substantive law in civil matters, except where there is a specific provision to the contrary (80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280 (C.A.)).

(2) Did the motion judge wrongly accept the evidence proffered by the respondent in justifying the order granting summary judgment?

No. As stated by the Court, a motion judge's conclusion that there is no genuine issue requiring a trial is one of mixed fact and law which, in the absence of extricable legal error, will only be reversed for palpable and overriding error (Hryniak v. Mauldin, 2014 SCC 7). Contrary to the appellants' submissions, the respondent's evidence was not inadmissible hearsay, but rather the sworn statement of an employee discussing matters within her responsibility and personal knowledge. The Court also noted that the respondent's evidence was more than sufficient to support the order, while the appellants offered no evidence to contradict that of the respondent's witness.

The motion judge also applied the correct legal test...

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