Court Of Appeal Summaries (May 31 ' June 4)

• Published date: 10 June 2021
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Financial Services, Insolvency/Bankruptcy, Family Law, Trials & Appeals & Compensation, Landlord & Tenant - Leases
• 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 31, 2021.

Continue Reading

Topics covered this week included medmal, constructive trust in the family law context, the interpretation of a commercial lease, the dismissal of a motion for leave to appeal from a sale process proposed by a receiver, partial summary judgment on the eve of trial involving a claim of negligence against a parent corporation in relation to negligence of its subsidiary, claiming interest under construction liens and trusts, and a child protection decision in French.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Marchant Realty Partners Inc. v. 2407553 Ontario Inc., 2021 ONCA 375

Keywords: Bankruptcy and Insolvency, Receiverships, Commercial Mortgages, Enforcement, Civil Procedure, Appeals, Leave to Appeal, Commercial List, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193, Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), Ravelston Corp. Ltd. (Re), 2007 ONCA 135

Fram Elgin Mills 90 Inc. v. Romandale Farms Limited , 2021 ONCA 381

Keywords: Contracts, Real Property, Estoppel by Convention, Civil Procedure, Costs, Offers to Settle, Rules of Civil Procedure, Rule 49, Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33

Great Northern Insulation Services Ltd. v. King Road Paving and Landscaping Inc., 2021 ONCA 367

Keywords: Contracts, Construction Liens, Trusts, Solicitors, Charging Orders, Priority, Interest, Construction Lien Act, R.S.O. 1990, c. C.30 ss. 1(1), 8, 11, 14(2), 71, Solicitors Act, R.S.O. 1990, c. S.15, s. 34(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64(1), Sunview Doors Ltd. v. Academy Doors & Windows Ltd., 2010 ONCA 198, Fundy Ventilation Limited v. Brunswick Construction Ltd., Fraser Companies Limited and Minister of National Revenue, (1982), 40 N.B.R. (2d) 484 (C.A.), Kaiman v. Graham, 2009 ONCA 77, Markevich v. Canada, 2003 SCC 9, The Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9

Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution), 2021 ONCA 361

Keywords: Torts, Negligence, Duty of Care, Proximity, Corporations, Subsidiaries, Piercing Corporate Veil, Civil Procedure, Partial Summary Judgment, Consolidated Practice Direction for Civil Actions, Applications, Motions and Procedural Matters in the Toronto Region, s. 69, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, Vedanta Resources PLC v. Lungowe, [2019] UKSC 20, AAA v. Unilever PLC, [2018] EWCA Civ. 1532

Uribe v. Tsandelis , 2021 ONCA 377

Keywords: Torts, Negligence, Medical Malpractice, Standard of Care, Causation, Apportionment of Fault, Civil Procedure, Juries, Evidence, Witnesses, Questioning by Judge, Rules of Civil Procedure, Rule 52.08(1), Donleavy v. Ultramar Ltd., 2019 ONCA 687, Stilwell v. World Kitchens, 2014 ONCA 770, Salter v. Hirst, 2011 ONCA 609, Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, R. v. Danial, 2016 ONCA 822

Lesko v. Lesko , 2021 ONCA 369

Keywords: Family Law, Property, Unjust Enrichment, Constructive Trust, Joint Family Venture, Equalization of Net Family Property, Spousal Support, Income for Support Purposes, Family Law Act, R.S.O. 1990, c. F.3, Federal Child Support Guidelines, S.O.R./97-175, Family Law Rules, O. Reg. 114/99, Hickey v. Hickey, [1999] 2 S.C.R. 518, Kerr v. Baranow, 2011 SCC 10, Martin v. Sansome, 2014 ONCA 14, McNamee v. McNamee, 2011 ONCA 533, Punzo v. Punzo, 2016 ONCA 957, Mason v. Mason, 2016 ONCA 725, Decaen v. Decaen, 2013 ONCA 218, Gray v. ICBC, 2010 BCCA 459

Paletta International Corporation v. Liberty Freezers London Ltd., 2021 ONCA 383

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Canada Square Corp. v. Versafood Services Ltd. (1982), 130 D.L.R. (3d) 205 (Ont. C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Building Code Act, S.O. 1992, c. 23, Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, Meditrust Healthcare Inc. v. Shoppers Drug Mart (2002), 220 D.L.R. (4th) 611 (Ont. C.A.), Martin v. Goldfarb (1998), 41 O.R. (3d) 161 (C.A.)

Valoris for children and adults of Prescott-Russell v KR , 2021 ONCA 366

Keywords: Family Law, Custody and Access, Supervised Visitation, Civil Procedure, Orders, Enforcement, Contempt, Child, Youth and Family Services Act, 2017, ss. 87(8), (9), and 142(3), Carey v. Laiken, 2015 SCC 17, Services for children and adults of Prescott-Russell c. NG (2006), 271 DLR (4th) 750, TG Industries v. Williams, 2001 NSCA 105, Hefkey v. Hefkey, 2013 ONCA 44, Ruffolo v. David, 2019 ONCA 385, Culligan Canada Ltd. v. Fettes, 2010 SKCA 151, Telus Communications Inc. v. Cherubin, [2005] OJ No. 5534 (CS), 884772 Ontario Ltd. (cob Team Consultants) v. SHL Systemhouse Inc. (1993), Jaskhs Enterprises Inc. v. Indus Corp., [2004] OJ No. 4062, Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, Chong v. Donnelly, 2019 ONCA 799

Short Civil Decisions

Grist v. TruGrp Inc., 2021 ONCA 374

Keywords: Torts, Defamation, Anti-SLAPP, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(8), Veneruzzo v. Storey, 2018 ONCA 688

8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc., 2021 ONCA 371

Keywords: Contracts, Real Property, Commercial Leases, Options to Renew, Duty of Good Faith, Remedies, Relief from Forfeiture, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 98

AA v BB, 2021 ONCA 384

Keywords: Torts, Intentional Infliction of Emotional Distress, Conspiracy, Defamation, Libel, Slander, Family Law, Crown Wardship, Costs

Nagpal v. IBM Canada Ltd., 2021 ONCA 391

Keywords: Costs

CIVIL DECISIONS

Marchant Realty Partners Inc. v. 2407553 Ontario Inc., 2021 ONCA 375

[Jamal J.A. (Motions Judge)]

Counsel:

S.L. Graff, M. Spence and S. Nadler, for the moving parties/appellants

S. Wilson and K. Kraft, for the responding party Zeifman Partners Inc.

Keywords: Bankruptcy and Insolvency, Receiverships, Commercial Mortgages, Enforcement, Civil Procedure, Appeals, Leave to Appeal, Commercial List, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 193, Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), Ravelston Corp. Ltd. (Re), 2007 ONCA 135

facts:

The moving parties are debtors ("Debtors"). Marchant Realty Partners Inc., as agent for a group of lenders, commenced three related receivership proceedings before the Commercial List concerning loans the Lenders made to the Debtors. As of October 2020, the Debtors owed more than $16 million under the loans.

Zeifman Partners Inc., ("Receiver") is the court-appointed receiver and manager over the assets, undertakings, and real property of the Debtors. The Debtors sought leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ("BIA"), from the orders of the motion judge approving the Receiver's proposed sale process and list prices for five commercial properties in downtown Niagara Falls, Ontario.

issues:

(1) Does the proposed appeal raise an issue of general importance to bankruptcy/insolvency practice or the administration of justice?

(2) Is the proposed appeal prima facie meritorious?

(3) Would the proposed appeal unduly hinder the progress of the receivership proceedings?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Debtors asserted that the proposed appeal raises an issue of general importance to bankruptcy/insolvency practice regarding the extent of deference that the Court owes to a receiver's business judgement when approving a sale process.

The Court found that while the court should consider and apply the principles of deference applicable to a receiver's business judgment, those principles are not in dispute. They were correctly stated by the motion judge: Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.) Applying settled principles of deference to the Receiver's business decisions would not raise an issue of general importance.

(2) No.

The Debtors argued that the motion judge erred in law by failing to state or apply the Soundair test for evaluating whether a receiver has acted properly: Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.). The Court stated that considerable deference must be given to commercial court judges in such proceedings: Ravelston Corp. Ltd. (Re), 2007 ONCA 135. Further, commercial court judges give considerable deference to receivers: Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.). In his decision, the commercial list judge did apply the Soudair test in his reasons. Thus, there was no error and the appeal lacked prima facie merit.

(3) Yes.

All the loans in issue matured three to four years ago. Considerable time had been given to the Debtors in order to allow them to refinance, which was not done. The property tax is a carrying cost to the Receiver, which ranks ahead of the Lenders' mortgages, eroding potential recovery. Therefore, the proposed appeal would hinder the receivership process.

Fram Elgin Mills 90 Inc. v. Romandale Farms Limited , 2021 ONCA 381

[Gillese, Lauwers and Benotto JJ.A.]

Counsel:

C.G. Paliare and T.H. Lie, for the appellants Jeffrey Kerbel, 2001251 Ontario Inc., and First Elgin Developments Inc.

S.R. Block, J. Opolsky, S.J. Erskine, and B Lerer for the appellants Fram Elgin Mills 90 Inc.

S.E. Batner, K. Kalogiros, and A. Bourassa, for the respondent

Keywords: Contracts, Real Property, Estoppel by Convention, Civil Procedure, Costs, Offers to Settle, Rules of Civil Procedure, Rule 49, Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33

facts:

Four actions were tried together in the fall of 2018 (the "Actions"). The Respondent was awarded costs of the Actions...