Court Of Appeal Summaries (May 3-7, 2021)

• Published date: 10 May 2021
• Subject Matter: Corporate/Commercial Law, Consumer Protection, Insurance, Litigation, Mediation & Arbitration, Real Estate and Construction, Contracts and Commercial Law, Insurance Laws and Products, Arbitration & Dispute Resolution, Education, Trials & Appeals & Compensation, Personal Injury, Landlord & Tenant - Leases, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of May 3, 2021.

Topics covered this week included leave to issue a writ of seizure and sale outside the six year period from the date of the judgment, assault in the context of use of excessive force by police, the interpretation of a commercial lease (term length and obligation to repair roof) and an appeal from a jury award in an MVA case.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Achtem v. Boese, 2021 ONCA 284

Keywords: Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Writs of Seizure and Sale, Rules of Civil Procedure, Rule 60.07(2), Rule 60.08(2), Royal Bank of Canada v. Correia, 2006 CanLII 26976 (Ont. S.C. (Master), Adelaide Capital Corporation v. 412259 Ontario Ltd., 2006 CanLII 34725 (Ont. S.C.).

Scala v. Toronto (Police Services Board), 2021 ONCA 297

Keywords: Torts, Assault, Negligence, Breach of Fiduciary Duty, Evidence, Credibility, Civil Procedure, Costs, Criminal Code, section 25(1), Wilsdon v. Durham Regional Police, 2011 ONSC 3419, R. v. Nasogaluak,[2010] 1 S.C.R. 206, R. v. Power, 2016 SKCA 29

Orillia (City) v. Metro Ontario Real Estate Limited, 2021 ONCA 291

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Term, Renewal Options, Repairs, Commercial Reasonableness, Civil Procedure, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Chilton v. Co-operators General Insurance Co. (1997), 143 DLR (4th) 647 (Ont CA), Amberber v. IBM Canada Ltd., 2018 ONCA 571, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517, G.M. Pace Enterprises Inc. v. Tsai, 2003 BCSC 1336, Lurcott v. Wakely, [1911] 1 KB 905 (CA (Eng)), Ravenseft Properties Ltd. v. Davstone (Holdings) Ltd., [1980] QB 12 (QBD (Eng)), Morcom v. Campbell-Johnson, [1955] 3 WLR 497 (CA (Eng)), Brew Brothers Ltd. v. Snax (Ross) Ltd., [1970] 1 Q.B. 612 (C.A. (Eng.)), Norbury Sudbury Ltd. v. Noront Steel (1981) Ltd. (1984), 11 DLR (4th) 686 (Ont HC), Hall v. Campbellford Cloth Co. Ltd., [1944] 2 DLR 247 (Ont HC), 708-1111 West Hastings Ltd. v. Coopers & Lybrand Vancouver Ltd., 1990 CanLII 1084 (BC Co Ct), Post Office v. Aquarius Properties Ltd., [1987] 1 All ER 1055 (CA), Haskell v. Marlow, [1928] 2 KB 45 (KBD (Eng)), Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 CanLII 9852 (Ont CA), G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), Nicholas Dowding et al., eds., Woodfall: Landlord and Tenant, (London: Sweet & Maxwell, 2020) (loose-leaf updated 2021, release 122), vol. 1.

West v. Knowles , 2021 ONCA 296

Keywords: Torts, Negligence, MVA, Causation, "But For" Test, "Material Contribution" Test, Damages, Past and Future Income Loss, Civil Procedure, Jury Charge, Evidence, Admissibility, Public Documents, Experts, Re-examination, Standard of Proof, Past Events, Hypothetical Events, "Real and Substantial Risk or Possibility of Loss", Evidence Act, R.S.O. 1990, c. E.23, s.32, Pereira v. Hamilton Township Farmers' Mutual Fire Insurance Co. (2006), 209 O.A.C. 127, Ross v. Bacchus, 2015 ONCA 347, Samms v. Moolla, 2019 ONCA 220, Clements v. Clements, 2012 SCC 32, Donleavy v. Ultramar Ltd., 2019 ONCA 687, Athey v. Leonati, [1996] 3 S.C.R. 458, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. Anderson (1914), 22 C.C.C. 455 (Alta. C.A.), R. v. St. Lawrence Cement Inc. (2002), 60 O.R. (3d) 712 (C.A.), R. v. Spence, 2005 SCC 71, R. v. Perkins, 2007 ONCA 585, MacLeod v. Marshall, 2019 ONCA 842, Gao v. Dietrich, 2018 BCCA 372.

Short Civil Decisions

Hornstein v. Kats, 2021 ONCA 293

Keywords: Business Associations, Partnerships, Real Property, Beneficial Interests, Torts, Slander of Title, Evidence, Credibility, Punitive Damages, Independent Actionable Wrong, Land Titles Act, RSO 1990, c L5, s 132, Whiten v Pilot Insurance Co., 2002 SCC 18.

CIVIL DECISIONS

Achtem v. Boese, 2021 ONCA 284

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

Counsel:

D.M. Sinko, for the appellant

M.J. Lambert, for the respondent

Keywords: Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Writs of Seizure and Sale, Rules of Civil Procedure, Rule 60.07(2), Rule 60.08(2), Royal Bank of Canada v. Correia, 2006 CanLII 26976 (Ont. S.C. (Master), Adelaide Capital Corporation v. 412259 Ontario Ltd., 2006 CanLII 34725 (Ont. S.C.).

facts:

The appellant obtained an order against the respondent from the Supreme Court of British Columbia in 2009. In 2011, the appellant obtained an order from the Ontario Superior Court of Justice registering the order as an Ontario judgment. While partial payment of the judgment was made by the respondent, there remained more than $330,000 outstanding.

In July 2012, the appellant's lawyer advised him that any further enforcement measures would likely not result in any benefit, due to the limited amount of the respondent's assets, and the extent of the encumbrances over those assets. Accordingly, the appellant did not issue a writ of seizure of and sale within six years of obtaining the Ontario order. However, in March 2018, the appellant was advised that the British Columbia order would soon be expiring, and he reassessed his options. In October 2018, the respondent was served with a motion record for an order granting leave to issue a writ of seizure and sale, pursuant to Rule 60.07(2) of the Rules of Civil Procedure.

The motion judge dismissed the appellant's motion for leave to file a writ. In reaching this finding, the motion judge found that the appellant did not provide evidence to explain his delay, had by inference waived his rights, and that it would be inequitable to enforce the judgment due to the respondent's detrimental reliance on the inferred waiver.

issue:

Did the motion judge err in dismissing the appellant's motion for leave to file a writ?

holding:

Appeal allowed.

reasoning:

Yes. First, the Court noted that the motion judge did identify the correct test for leave to file a writ, which is the same test for leave to issue a notice of garnishment under Rule 60.08(2). Specifically, the plaintiff must adduce evidence explaining the delay such that the court may conclude that the plaintiff has not waived its rights under the judgment or otherwise acquiesced in non-payment of the judgment (Royal Bank of Canada v. Correia, 2006 CanLII 26976 (Ont. S.C. (Master)). The applicable evidentiary threshold is very low, and it is a rare case where a judgment creditor cannot satisfy the requirements of the test (Adelaide Capital Corporation v. 412259 Ontario Ltd., 2006 CanLII 34725 (Ont. S.C.)).

The Court disagreed with the motion judge's conclusion that waiver of the appellant's rights could be inferred in this case. The only evidence of "waiver" was the delay itself, which was relatively short. There was no other conduct on the part of the appellant whereby a true waiver or acquiescence of non-payment could be inferred. The parties only ever communicated through counsel, and therefore the respondent could not point to any words or actions on the part of the appellant that would support such an argument.

Further, the appellant provided adequate explanation for this delay, being the belief that enforcement was a futile effort. Again, the Court emphasized the low evidentiary threshold applicable in this analysis. By equating a delay of a mere 13 months from the expiry of the six year period within which a writ could be issued as of right with waiver, the motion judge was in effect imposing a much higher threshold, considering that the outstanding judgment amount was around $330,000.

Last, the Court similarly found that it would not be inequitable to enforce the judgment. Once again, it was unreasonable for the respondent to believe, based solely on the absence of any communication from the appellant, that he had waived his rights to enforce judgment at some point. Again, the fact that a significant sum of money was at stake, and that the parties had never directly communicated with one another, further supported this conclusion. The respondent's argument that she detrimentally relied on such a belief was similarly dismissed. The suggestion that she would...