Court Of Appeal Summaries (April 19 ' April 23, 2021)

• Published date: 27 April 2021
• Subject Matter: Corporate/Commercial Law, Employment and HR, Insurance, Government, Public Sector, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Corporate and Company Law, Health & Safety, Family Law, Insurance Laws and Products, Constitutional & Administrative Law, Court Procedure, Trials & Appeals & Compensation, Construction & Planning, Divorce
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of April 19, 2021.

In Fercan Developments v Canada, the Court confirmed that the plaintiffs who waited until after criminal and civil forfeiture proceedings were concluded before suing the Crown for malicious prosecution and related torts were entitled to do so on the basis that their claims were not discoverable under the "appropriate means" branch of the discoverability test in ss. 5(1)(a)(iv).

In Law Society of Ontario v Diamond the Court upheld the Law Society's finding of professional misconduct for failure to cooperate with its investigation.

Other topics covered this week included a priority dispute to the proceeds of sale a matrimonial home between a spouse and a judgment creditor and occupational health and safety.

Our "Top Appeals" of 2020 CLE is finally upon us. Please join us this Tuesday evening, April 27, 2021, from 5:30 to 7:45 pm via Zoom. We are set to have a great turnout. Justice Benjamin Zarnett will be co-chairing the event with me and Chloe Snider. Following is our excellent slate of decisions and panelists:

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

There is still time to 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

Iafolla v. Lasota, 2021 ONCA 245

Keywords: Family Law, Child Support, Variation, Material Change in Circumstances, Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Writs of Execution, Priority, Creditors' Relief Act, 2010, S.O. 2010, c. 16, s. 2, Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), s. 11, Maroukis v. Maroukis (1981), 33 O.R. (2d) 661 (C.A.), aff'd [1984] 2 S.C.R. 137, Stevens v. Stevens (2005), 20 R.F.L. (6^th) 453 (Ont. S.C.J.), aff'd 214 O.A.C. 201, Willick v. Willick, [1994] 3 S.C.R. 670, L.M.P. v. L.S., 2011 SCC 64

Martin v. 11037315 Canada Inc., 2021 ONCA 246

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, section 19(1)(b), Rules of Civil Procedure, Rules 59.06(2) and 62.02(1), Laurentian Plaza Corp. v. Martin (1992), 89 D.L.R. (4th) 50 (Ont. C.A.), Lax v. Lax (2004), 239 D.L.R. (4th) 683 (Ont. C.A.), Abbott v. Collins, (2002), 62 O.R. (3d) 99 (C.A.), Azzeh v. Legendre, 2017 ONCA 385, Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, 2099082 Ontario Limited v. Varcon Construction Corporation, 2020 ONCA 202, Cooper v. The Laundry Lounge, Inc., 2020 ONCA 166, Antique Treasures of the World Inc. v. Bauer, 2003 CanLII 35349 (Ont. C.A.)

Fercan Developments Inc. v. Canada (Attorney General), 2021 ONCA 251

Keywords: Torts, Malicious Prosecution, Negligent Investigation, Misfeasance in Public Office Conspiracy, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, "Appropriate Means", Limitations Act, 2002, s. 5(1)(a)(iv), Controlled Drugs and Substances Act, S.C. 1996, c. 19, Civil Remedies Act, S.O. 2001, c. 28, Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325, Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, Sosnowski v. MacEwan Petroleum Inc., 2019 ONCA 1005, Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

Law Society of Ontario v. Diamond, 2021 ONCA 255

Keywords: Administrative Law, Regulated Professions, Lawyers, Professional Misconduct, Failure to Co-operate with Law Society, Standard of Review, Law Society Act, R.S.O. 1990, c. L.8, ss. 34(1) and 49.38, Canadian Charter of Rights and Freedoms, s 8, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s. 24(2), Rules of Professional Conduct, Rule 7.1-1, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Housen v. Nikolaisen, 2002 SCC 33, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Longueépée v. University of Waterloo, 2020 ONCA 830, Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, Law Society of Upper Canada v. Ghobrial, 2014 ONLSHP 5, Law Society of Upper Canada v. Boissonneault (May 23, 2008), Toronto, CN04/08 (Law Society of Upper Canada Hearing Panel), Law Society of Upper Canada v. Cucci, 2012 ONLSHP 131, Law Society of Upper Canada v. Gray, 2011 ONLSHP 198, Law Society of Upper Canada v. Rosenthal, 2011 ONLSHP 103, Law Society of Upper Canada v. Leahy, 2014 ONLSTH 104, Law Society of Upper Canada v. Gavris, 2015 ONLSTH 144, Groia v. Law Society of Upper Canada, 2018 SCC 27, Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 76 D.L.R. (3d) 38 (Ont. Div. Ct.), Barrington v. The Institute of Chartered Accountants of Ontario, 2011 ONCA 409, leave to appeal refused, [2011] S.C.C.A. No. 367, Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct.), Law Society of New Brunswick v. Ryan, 2003 SCC 20, Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, Law Society of Upper Canada v. Baker, 2006 ONLSHP 21, Law Society of Upper Canada v. Wysocky, 2009 ONLSHP 77

Ontario (Labour) v. Sudbury (City), 2021 ONCA 252

Keywords: Labour and Employment Law, Provincial Offences, Occupational Health and Safety, Definition of "Employer", Defences, Due Diligence, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, ss. 1(1), 1(3), 25(1)(c), Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 121, 125, 134, Construction Projects, O. Reg. 213/91, Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006, R. v. Wyssen, 1992 CanLII 7598 (Ont. C.A.), Ontario (Labour) v. Nugent, 2019 ONCA 999, R. v. Francis (1996), 92 O.A.C. 308 (C.A.), R. v. Thorne, [1997] O.J. No. 1036 (C.A.), Ottawa (City) v. Spirak, 2008 ONCA 299, Ontario (Ministry of Labour) v. Modern Niagara Toronto Inc., 2008 ONCA 590, R. v. Courtice Auto Wreckers Limited, 2014 ONCA 189, R. v. Maxwell, 2007 ONCA 834

Short Civil Decisions

Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc., 2021 ONCA 250

Keywords: Contracts, Real Property, Commercial Leases, Civil Procedure, Appeals, Monetary Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1)(a), 110

Moar v. McLaughlin, 2021 ONCA 264

Keywords: Family Law, Custody and Access, Variation, Material Change in Circumstances, Family Law Rules, Rules 15, 16, Gordon and Goertz [1996] 2 S.C.R. 27

CIVIL DECISIONS

Iafolla v. Lasota, 2021 ONCA 245

[Rouleau, Benotto and Miller JJ.A.]

Counsel:

P. Ezzatian, for the appellant

B.P. Pilley, for the respondent

Keywords: Family Law, Child Support, Variation, Material Change in Circumstances, Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Writs of Execution, Priority, Creditors' Relief Act, 2010, S.O. 2010, c. 16, s. 2, Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), s. 11, Maroukis v. Maroukis (1981), 33 O.R. (2d) 661 (C.A.), aff'd [1984] 2 S.C.R. 137, Stevens v. Stevens (2005), 20 R.F.L. (6^th) 453 (Ont. S.C.J.), aff'd 214 O.A.C. 201, Willick v. Willick, [1994] 3 S.C.R. 670, L.M.P. v. L.S., 2011 SCC 64

facts:

This appeal concerned a dispute between a judgment creditor and the ex-wife of an individual ("Z.A.") with respect priority over Z.A.'s share of the proceeds from the sale of the matrimonial home.

In July 2018, as part of divorce proceedings between the respondent and Z.A., the presiding judge ordered that the arrears of child support owed by Z.A. be deducted from his share of the sale proceeds, and that the remaining balance be held in trust as security for Z.A.'s future support obligations (the "Divorce Order").

The appellant is a judgment creditor of Z.A., and brought an application to determine who had priority over the remaining balance of the funds held in trust pursuant to the Divorce Order. The appellant cited...