Court Of Appeal Summaries (May 25-28, 2021)

Published date02 June 2021
Subject MatterInsurance, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Family Law, Insurance Laws and Products, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Real Estate
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 May 25, 2021.

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In Cirillo v. Ontario, the Court concluded that this class action claiming redress for the criminal justice system's failure to hold timely bail hearings for accused persons fell squarely within "core policy" decisions of the government and the Crown was therefore immune from liability in negligence or breach of fiduciary duty. Moreover, while there may have been a viable claim for breach of Charter rights, there was no adequately identifiable class or common issues. A class proceeding was therefore not the preferable procedure to hear that claim.

In Rooplal v Fodor, the Court concluded that the limitation period with respect to actions against insurers for uninsured motorist coverage under section 265 of the Insurance Act is triggered when the claimant's demand for indemnification is refused by the insurer.

Other topics included anti-SLAPP in a quite personal context that nonetheless was found to be a matter relating to the public interest, summary judgment in respect of the breach of an an agreement of purchase and sale of land, stay in favour of arbitration in the condominium context, and the dismissal of a motion for leave to appeal under s. 193 of the Bankruptcy and Insolvency Act in the receivership context

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Mazhar v Farooqi , 2021 ONCA 355

Keywords: Torts, Defamation, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, United Soils Management Ltd. v. Mohammed, 2019 ONCA 128

Cirillo v Ontario , 2021 ONCA 353

Keywords: Torts, Negligence, Breach Fiduciary Duty, Breach of Charter Rights, Crown Liability, Criminal Justice, Bail Within Reasonable Time, Core Policy Decisions, Duty of Care, Civil Procedure, Class Proceedings, Certification, Identifiable Class, Common Issues, Preferable Procedure, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, subsection 11(4) and (5), Canadian Charter of Rights and Freedoms, Class Proceedings Act, 1992, S.O. 1992, c. 6, Section 5(1), Criminal Code, Rules of Civil Procedure, Rules 21.01, Phaneuf v. Ontario, 2010 ONCA 901, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hinse v. Canada, 2015 SCC 35, Hollick v. Toronto, 2001 SCC 68, Ragoonanan Estate v. Imperial Tobacco (2005), 78 O.R. (3d) 98 (S.C.), Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Thorburn v. British Columbia, 2013 BCCA 480, Dennis v. Ontario Lottery and Gaming Corp., 2013 ONCA 501, Fram Elgin Mills 90 Inc. v. Romandale Farms Ltd., 2016 ONCA 404, Leroux v. Ontario, 2021 ONSC 2269, Francis v. Ontario, 2021 ONCA 197

Spiridakis v Li , 2021 ONCA 359

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Anticipatory Breach, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR. 87, Butera v. Chown, Cairns LLP, 2017 ONCA 783

Hillmount Capital Inc v Pizale , 2021 ONCA 364

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Leave to Appeal, Reviews of Decisions, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5), 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Romspen Investment Corporation v. Courtice AutoWreckers Limited, 2017 ONCA 301, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

Rooplal v Fodor , 2021 ONCA 357

Keywords: Torts, Negligence, MVA, Insurance, Unidentified Motorist Coverage, Civil Procedure, Adding Parties, Limitation periods, Insurance Act, R.S.O. 1990, c I.8, s. 265, Uninsured Automobile Coverage, R.R.O. 1990, Reg. 676 (Section 6 of Schedule), Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4 and 5, Longo v. MacLaren Art Centre, 2014 ONCA 526, Apotex Inc. v. Nordion (Canada) Inc., 2019 ONCA 23, July v. Neal (1986), 32 D.L.R. (4th) 463 (Ont. C.A.), Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, Schmitz v. Lombard General Insurance Company of Canada, 2014 ONCA 88, leave to appeal refused, [2014] S.C.C.A. No. 143, Chahine and Al-Dahak v. Grybas, 2014 ONSC 4698, Platero v. Pollock, 2015 ONSC 2922, Sukhu v. Bascombe, 2018 ONSC 2878, Johnson v. Wunderlich (1986), 34 D.L.R. (4th) 120 (Ont. C.A.), Hier v. Allstate Insurance Co. of Canada (1988), 51 D.L.R. (4th) 1 (Ont. C.A.), Chambo v. Musseau (1993), 106 D.L.R. (4th) 757 (Ont. C.A.), Morrison v. Barzo, 2018 ONCA 979, Kosanovic v. Wawanesa Mutual Insurance Co. (2004), 237 D.L.R. (4th) 441 (Ont. C.A.), Galego v. Pereira (2005), 207 O.A.C. 384 (Div. Ct.), Bhatt v. Doe, 2018 ONSC 950, Wilkinson v. Braithwaite, 2011 ONSC 2356, Tucker v. Unknown Person, 2015 NLCA 21, leave to appeal refused, [2015] S.C.C.A. No. 250

Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2021 ONCA 360

Keywords: Real Property, Condominiums, Oppression, Contracts, Cost-Sharing, Common Facilities, Civil Procedure, Stay in favour of Arbitration, Fresh Evidence, Costs, Condominium Act, 1998, S.O. 1998, c. 19, s. 132(1), s. 132, ss. 133 and 135, Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(2), TELUS Communications Inc. v. Wellman, 2019 SCC 19, Uber Technologies Inc. v. Heller, 2020 SCC 16, MTCC No. 965 v. MTCC No. 1031 and No. 1056, 2014 ONSC 5362, Deluce Holdings Inc. v. Air Canada (1992), 98 D.L.R. (4th) 509 (Gen. Div.), Palmer v. The Queen, [1980] 1 S.C.R. 759

Short Civil Decisions

Cheng v Sze, 2021 ONCA 346

Keywords: Family Law, Equalization of Net Family Property, Child Support, Civil Procedure, Standard of Review, Evidence, Family Law Act, R.S.O. 1990, c. F.3, ss. 4(3), Child Support Guidelines O. Reg 391/97, s. 19, Hickey v. Hickey, [1999] 2 SCR 518, Jonas v. Pacitto, 2020 ONCA 727, Drygala v. Pauli (2002), 219 D.L.R. (4th) 319 (Ont. C.A.)

Subway Franchise Restaurants of Canada Ltd. v. BMO Life Assurance Company, 2021 ONCA 349

Keywords: Contracts, Real Property, Commercial Leases, Renewal, Duty of Good Faith, CM Callow Inc. v. Zollinger, 2018 ONCA 896, C.M. Callow Inc. v. Zollinger, 2020 SCC 45

C.C. v J.B., 2021 ONCA 363

Keywords: Family Law, Custody and Access, Civil Procedure, Jurisdiction, Forum Non Conveniens, Family Law Act, R.S.O. 1990, c. F.3, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16.1, 3 and 4, Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 21 and 72, Family Law Rules, O. Reg. 114/99, Rule 16(12), Lilydale Cooperative Limited v. Meyn Canada Inc., 2019 ONCA 761, Kunuthur v. Govindareddigari, 2018 ONCA 730, Club Resorts Ltd. v. Van Breda, 2012 SCC 17

Walcott v Toronto Transit Commission, 2021 ONCA 358

Keywords: Intellectual Property, Copyright, Civil Procedure, Summary Judgment, Harte-Eichmanis v. Fernandes, 2012 ONCA 266


Mazhar v Farooqi, 2021 ONCA 355

[Juriansz, van Rensburg and Sossin JJ.A.]


M. M, acting in person

N. R. Hasan and C. Di Carlo, for the respondent

Keywords: Torts, Defamation, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, United Soils Management Ltd. v. Mohammed, 2019 ONCA 128


The respondent had refused the appellant's marriage proposals numerous times in the past. After the respondent became engaged to her long-term partner, the appellant sent the respondent a lengthy email detailing his hatred for her and the negative thoughts he had against her and her family. The email prompted the respondent to report her concerns about the appellant to the chair of the Muslim Awards for Excellence ("MAX"), an organization both the appellant and respondent volunteer with. The appellant commenced an action in defamation against the respondent based on the complaint.

The respondent successfully brought a motion to have the action dismissed pursuant to s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the anti-SLAPP provision). The legislation encourages individuals to express themselves on matters of public interest, to promote broad participation in debates on matters of public interest, to discourage the use of litigation as a means of unduly limiting expression on matters of public interest, and to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

The motion judge found that the respondent met her onus to show the impugned expression related to a matter of public interest under s. 137.1(3), and that the respondent could establish the defence of justification as her comments were substantially true, that the defence of fair comment was established, and that all the elements of the defence of qualified privilege were satisfied.


(1) Did the motion judge engage in a one-sided consideration of the facts?
(2) Did the motion judge err in his application of the test applicable to motions under s. 137.1 of the Courts of Justice Act?
(3) Did the motion judge err in awarding the respondent full indemnity costs and s. 137.1(9) damages?


Appeal dismissed.


1. No.
The Court of Appeal does not revisit the findings of fact made by the court below absent palpable and overriding error. In this case, the motion judge's findings were fully supported by the record. After reviewing the entire record, the Court found the appellant's persistent and frustrated romantic attachment to the respondent provided the proper context for the motion judge's decision. A significant finding of fact was that the appellant brought his defamation action in bad faith and for an improper purpose. The motion judge characterized the appellant's defamation action as a "reprisal".

2. No.
The Court found that MAX was...

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