Court Of Appeal Summaries (April 26 ' April 30, 2021)

Published date04 May 2021
Subject MatterEmployment and HR, Litigation, Mediation & Arbitration, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Contract of Employment, Unfair/ Wrongful Dismissal, Employment Litigation/ Tribunals, Family Law, Court Procedure, Trials & Appeals & Compensation, Civil Law
Law FirmBlaney McMurtry LLP
AuthorMr John Polyzogopoulos

Good evening.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of April 26, 2021.

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In Parliament v. Conley, the Court ordered a new trial in a MedMal case tried before a jury because the doctors' expert crossed the line by commenting on matters of the credibility of the parties. Even though the plaintiff did not object at the expert's testimony at trial, the Court was of the view that the trial judge should have excluded it and provided special instructions to the jury to disregard the expert's oath helping evidence. The failure to do so resulted in a miscarriage of justice necessitating a new trial.

In Dowdall v. Dowdall, the Court upheld the motion judge's decision refusing to enforce an accepted offer to settle. The appellant accepted the respondent's offer after he had accepted a new job offer that substantially increased his income. He did not disclose the new income before accepting the offer to settle. The Court held that the offer to settle had been predicated on a different income level of the appellant, and he could not take advantage of his non-disclosure to accept the offer.

In Dia v. Calypso Theme Waterpark, the Court set aside the motion judge's summary judgment dismissing an assault claim against the respondent. The motion was granted even though the respondent had not filed an affidavit denying any involvement in the assault. The Court was of the view that the motion judge ought to have drawn an adverse inference from the respondent's failure to submit to cross-examination. Moreover, parts of the police file were put into evidence through a legal assistant's affidavit, which was not admissible.

Other topics covered this week included contractual misrepresentation, prescriptive easements, an order of no costs to a successful party in a slip and fall matter that involved a novel elder care issue, summary judgment, stay pending appeal of a decision staying an action on the basis of forum non conveniens and wrongful dismissal.

Our Top Appeals of 2020 CLE took place on April 27, 2021. We had over 70 registrants and eleven panelists, and very good feedback from our attendees. Thank you to Justice Zarnett, all of our panelists and our registrants for another successful CLE. The program qualified for 30 minutes of professionalism CPD credit and 2.75 hours of substantive content credit. If anyone would like to register for the program on demand, please visit the OBA's website.

Wishing everyone celebrating a Happy Greek/Eastern Orthodox Easter.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Parliament v. Conley, 2021 ONCA 261

Keywords: Torts, Negligence, MedMal, Standard of Care, Civil Procedure, Jury Trials, Jury Instructions, Evidence, Credibility, Expert Evidence, Admissibility, Appeals, New Issues on Appeal, Failure to Object at Trial, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Mohan, [1994] 2 S.C.R. 9, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. Abbey, 2009 ONCA 624, leave to appeal refused, [2010] S.C.C.A. No. 125, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, leave to appeal refused, [2017] S.C.C.A. No. 343, R. v. Sekhon, 2014 SCC 15, R. v. White, 2011 SCC 13, R. v. Bingley, 2017 SCC 12, Marshall v. Watson Wyatt & Co. (2002), 209 D.L.R. (4th) 411 (Ont. C.A.), Harris v. Leikin Group Inc., 2014 ONCA 479, Maurice v. Alles, 2016 ONCA 287, Arland and Arland v. Taylor, [1955] 3 D.L.R. 358 (Ont. C.A.), G.K. v. D.K., 1999 CanLII 935 (Ont. C.A.), Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board, 2004 CanLII 874 (Ont. C.A.), Hoang v. Vicentini, 2016 ONCA 723

Wen v. Gu, 2021 ONCA 259

Keywords: Contracts, Breach, Misrepresentation, Frustration, Civil Procedure, Admissions, Rules of Civil Procedure, Rule 51.03, Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, Man Financial Canada Co. v. Keuroghlian, 2008 ONCA 592

Dowdall v. Dowdall, 2021 ONCA 260

Keywords: Family Law, Spousal Support, Material Change in Circumstances, Civil Procedure, Disclosure, Settlements, Enforcement,Appeals, Jurisdiction, Final or Interlocutory, Standard of Review, Deference, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Family Law Rules, Rules 13(15), 18(13)(a) and 18(5), Milos v. Zagas (1998), 38 O.R. (3d) 218 (C.A.), Magnotta v. Yu, 2021 ONCA 185, Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc., 2007 ONCA 497, Ballanger v. Ballanger, 2020 ONCA 626, Rick v. Brandsema, 2009 SCC 10

Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266

Keywords: Real Property, Rights of Way, Easements, Prescriptive Easements, Road Access Act, R.S.O. 1990, s.1, c. R.34, Highway Traffic Act, R.S.O. 1990, c. H.8, Carpenter v. Doull-MacDonald, 2017 ONSC 7560, aff'd 2018 ONCA 521, Temma Realty Co. Ltd. v. Ress Enterprises Ltd. et al., [1968] 2 O.R. 293 (C.A.), Carlini v. Hammoud, 2011 ONCA 285, 2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586, Blais v. Belanger, 2007 ONCA 310

Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267

Keywords: Torts, Occupier's Liability, Negligence, Slip and Fall, Elder Law, Civil Procedure, Costs, Novelty of Claim, Standard of Review, Deference, Rules of Civil Procedure, Rule 57.01, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Bell Canada v. Olympia & York Developments Ltd., 1994 ONCA 239, Childs v. Desormeaux (2004), 239 D.L.R. (4th) 61 (Ont. C.A.)

UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited, 2021 ONCA 279

Keywords: Contracts, Debtor-Creditor, Commercial Lending, Security, Receivables, Guarantees, Enforcement, Unjust Enrichment, Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Stay Pending Appeal, Expedited Appeals, Jurisdiction, Forum Non Conveniens, Forum Selection Clauses, Attornment, Anti-Suit Injunctions, Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, (March 1, 2017), ss. 12.1(4), BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 2257573 Ontario Inc. v. Furney, 2020 ONCA 742, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (CA), Heidari v. Naghshbandi, 2020 ONCA 757, Amchem Products Incorporated v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Forbes Energy Group Inc. v. Parsian Energy Rad Gas, 2019 ONCA 372, Young v. Tyco International of Canada Ltd., 2008 ONCA 709, Patterson v. EM Technologies, Inc, 2013 ONSC 5849, Wilson c. Fernand Campeau & Fils Inc., 2020 ONCA 384, Osman v. Markplan Inc., 2018 ABCA 215, Douez v. Facebook, Inc., 2017 SCC 33, ECS Educational Consulting Services Canada Ltd. v. Al Nahyan (2000), 44 C.P.C. (4th) 111, M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, Lilydale Cooperative Ltd. v. Meyn Canada Inc., 2019 ONCA 761, Fraser v. 4358376 Canada Inc., 2014 ONCA 553, T Films S.A. v. Cinemavault Releasing International Inc., 2014 ONSC 4138, 1092072 Ontario Inc. (Elfe Juvenile Products) v. GCan Insurance Co., 2008 CanLII 51922 (Ont. S.C.)

Dia v. Calypso Theme Waterpark, 2021 ONCA 273

Keywords: Torts, Assault, Civil Procedure, Summary Judgment, Evidence, Adverse Inferences, Admissibility, Affidavits, Information and Belief, Hearsay, Crown Brief, Rules of Civil Procedure, Rules 39.01(4), 39.04(2), 20.02(1), and 20.04(2.2), Hryniak v. Mauldin, 2014 SCC 7, Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, Lana International Ltd. v. Menasco Aerospace Ltd. (2000), 50 O.R. (3d) 97 (C.A.), 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.), Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, Butera v. Chown, Cairns LLP, 2017 ONCA 783

Nagpal v. IBM Canada Ltd., 2021 ONCA 274

Keywords: Contracts, Employment, Wrongful Dismissal, Short-Term Disability, Resignation, Abandonment, Frustration, Civil Procedure, Summary Judgment, Genuine Issue Requiring Trial, Standard of Review, Question of Mixed Fact and Law, Palpable and Overriding Error, Kieran v. Ingram Micro Inc. (2004), 189 O.A.C. 58 (C.A.), Betts v. IBM Canada Ltd., 2015 ONSC 5298, aff'd 2016 ONSC 2496 (Div. Ct.), Pereira v. The Business Depot Ltd., 2009 BCSC 1178, rev'd on other grounds, 2011 BCCA 361, Duong v. Linmar Corp, 2010 ONSC 3159, aff'd 2011 ONCA 38, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, Antonacci v. Great Atlantic & Pacific Company of Canada Ltd. (1998), 35 C.C.E.L. (2d) 1 (Ont. C.J.), aff'd 128 O.A.C. 236 (C.A.), Ciszkowski v. Canac Kitchens, 2015 ONSC 73, Hryniak v. Mauldin, 2014 SCC 7, Leeming v. IBM Canada Ltd., 2015 ONSC 1447, Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200 (S.C.), Cheong v. Grand Pacific Travel & Trade (Canada) Corp., 2016 BCSC 1321

Short Civil Decisions

Segura Mosquera v. Ottawa Public Library, 2021 ONCA 275

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, Rule 37.17, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.)

Toronto (City) v. Queen-St. Patrick Market Inc., 2021 ONCA 276

Keywords: Contracts, Real Property, Commercial Leases, Relief from Forfeiture, Standard of Review

Bogue v. Miracle, 2021 ONCA 278

Keywords: Contracts, Solicitor-Client, Contingency Fee Agreements, Enforcement, Receiverships, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101, Indian Act, R.S.C. 1985, c. 1-5, ss. 29, 89, Borden & Elliot v. Temagami First Nation, [2009] 3 C.N.L.R. 30 (Ont. S.C.), Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561, R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96


Parliament v. Conley, 2021 ONCA 261

[Huscroft, Nordheimer and Harvison Young JJ.A.]


G. MacKenzie, B. MacKenzie, H.Y. Elmaleh and M.A. Hershkop, for the...

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